Miller, Demontrell ( 2015 )

WR-81,581-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/5/2015 8:10:09 AM
Accepted 6/5/2015 9:06:00 AM
Texas Board of Legal Specialization
ABEL
Criminal Law ACOSTA
(1991)
Criminal Appellate Law (2011)CLERK
RECEIVED
COURT OF CRIMINAL APPEALS
6/5/2015
ABEL ACOSTA, CLERK
To: Hon. Abel Acosta
Date: June 5, 2015
Subject: Ex parte Demontrell Miller; No. WR-81,581-01
Dear Mr. Acosta:
I have received notice that, on May 20, 2015, the Court of Criminal Appeals denied the Applicant’s motion
for rehearing / reconsideration in the above captioned case. Pursuant to Article 11.071 section 2 (e), I have
caused a motion to be filed in the United States District Court for the Eastern District of Texas, Tyler Division,
a motion requesting the appointing of counsel to represent Mr. Miller in a habeas corpus proceeding under 28
USC 2254, in federal court. A copy of that motion is attached. and I have
Certificate of Compliance and Delivery
This is to certify that: (1) this document, created using WordPerfect™ X7 software, contains 112 words, excluding
those items permitted by Rule 9.4 (i)(1), Tex.R.App.Pro., and complies with Rules 9.4 (i)(2)(B) and 9.4 (i)(3),
Tex.R.App.Pro.; and (2) on June 5, 2015, a true and correct copy of the above and foregoing memo was
transmitted via the eService function on the State’s eFiling portal, to Michael J. West (mwest@smith-
county.com), counsel of record for the State of Texas.
Respectfully submitted,
____________________________________
David A. Schulman
Attorney at Law
1801 East 51st Street, Suite 365-474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
eMail: zdrdavida@davidschulman.com
State Bar Card No. 17833400
Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 1 of 5 PageID #: 1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
Demontrell Lamar Miller §
Petitioner §
§
vs. § No. ________________
§ Capital Case
William Stephens, Director §
TDCJ-CID §
Motion for Appointment of Counsel
IN FORMA PAUPERIS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Demontrell Lamar Miller (“Petitioner”), by and
through David A. Schulman, his current court-appointed lawyer
(“Movant”), and respectfully requests that new counsel be
appointed, pursuant to 18 USC § 3599(a)(2), to represent him in
a habeas corpus proceeding under 28 USC § 2254. In support of
this request, Petitioner sets forth the following:
I
Petitioner was charged by indictment with the offense of
capital murder, upon which the State sought the imposition of the
death penalty. On his plea of “Not Guilty,” Petitioner was
convicted by a jury and a death sentence was imposed. This
Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 2 of 5 PageID #: 2
conviction was affirmed on direct appeal. Miller v. State, No.
AP-76,270 (Tex.Cr.App. May 23, 2012).
Following trial, Petitioner was deemed an indigent in state
district court, and his first application for post-conviction writ of
habeas corpus under Article 11.071, V.A.C.C.P. was timely filed,
by the undersigned counsel, on January 6, 2012. On April 15,
2015, the Court of Criminal Appeals of Texas denied habeas
corpus relief. See Ex parte Miller, No. WR-81,581-01 (Tex.Cr.App.
April 15, 2015). Motion for rehearing was denied on May 20,
2015.
II
Petitioner is entitled to appointment of counsel pursuant to
18 USC § 3599(a)(2). He has proceeded as an indigent, with
appointed counsel, throughout state court proceedings. He
remains indigent, and has never had his constitutional claims for
relief addressed by a federal court. He is, therefore, entitled to the
assistance of counsel in order to present those claims. See
McFarland v. Scott, 512 U.S. 849, 857-858 (1998).
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Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 3 of 5 PageID #: 3
III
Undersigned counsel does not seek appointment, because he
represented Petitioner in the state habeas corpus proceedings.
Under Martinez v. Ryan, No. 10-1001 (March 20, 2012), Trevino
v. Thaler, No. 11-10189 (February 25, 2013), and Christeson v.
Roper, No. 14-6873 (January 20, 2015), Petitioner has the right
to raise as cause for a procedural default any ineffective assistance
by undersigned counsel in raising or failing to raise in state
habeas corpus proceedings claims of trial counsel's ineffectiveness.
For this reason, undersigned counsel might be conflicted and
should not represent Petitioner in federal habeas corpus
proceedings.
IV
The Texas Habeas Assistance and Training (“TX HAT”) project,
established by the Defender Services Committee of the Judicial
Conference to consult with and assist counsel appointed in capital
2254 cases in Texas, has been attempting to recruit qualified,
knowledgeable counsel to recommend to the Court for
appointment. Working their own contacts and with the American
Bar Association's Capital Post-Conviction Representation Project,
they are continuing to search for counsel. This motion for
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Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 4 of 5 PageID #: 4
appointment has been deferred in the hope that such efforts would
yield a recommendation. No one has yet agreed to take the
appointment, however, so the motion has been filed. Richard Burr
of TX HAT (dick@burrandwelch.com, 713-628-3391) is the point
person on TX HAT's continuing efforts to find counsel for
Petitioner and will inform the Court of any person or firm willing
and able to take the appointment.
Prayer
WHEREFORE, PREMISES CONSIDERED, Movant respectfully
requests that the Court appoint new counsel to represent
Petitioner in his habeas corpus proceeding under 28 USC § 2254.
Respectfully submitted,
____________________________________
David A. Schulman
Attorney at Law
1801 East 51st Street, Suite 365474
Austin, Texas 78723
Tel. 512-474-4747
Fax: 512-532-6282
eMail: zdrdavida@davidschulman.com
State Bar Card No. 17833400
Attorney for Demontrell Lamar Miller
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Case 6:15-cv-00535 Document 1 Filed 06/04/15 Page 5 of 5 PageID #: 5
Certificate of Delivery
This is to certify that a true and correct copy of the above and
foregoing Motion for Appointment of Counsel has been or will be
hand-delivered, mailed postage prepaid, or transmitted via
telecopier, or a portable document format computer document will
be transmitted via eMail, to the office of the Attorney General of
Texas, Capital Litigation Division, Attention: Katherine Hayes
(katherine_hayes@oag.state.tx.us), on June 4, 2015.
______________________________________
David A. Schulman
5