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PD-0358_0363-16

PD NO. 0358-16
PD NO. 0359-16
PD NO. 0360-16
PD NO. 0361-16
PD NO. 0362-16
PD NO. 0363-16

COURT OF CRIMINAL APPEALS


AUSTIN, TEXAS
Transmitted 5/9/2016 2:02:10 PM
Accepted 5/9/2016 2:25:36 PM
ABEL ACOSTA
CLERK

IN THE COURT OF CRIMINAL APPEALS


AUSTIN, TEXAS
_______________________________________________________________________
CALVIN WALKER,
PETITIONER
VS.
THE STATE OF TEXAS,
RESPONDENT
________________________________________________________________________
On appeal from the Ninth Court of Appeals, Beaumont, Texas
Appeal Nos. 09-15-00037-CR, 09-15-00038-CR, 09-15-00039-CR,
09-15-00040-CR, 09-15-00041-CR and 09-15-00042-CR
and the Criminal District Court for Jefferson County, Texas
Trial Court Nos. 14-19965, 14-19966, 14-19967,
14-19968, 14-19969 and 14-19970
________________________________________________________________________
CALVIN WALKERS PETITION FOR DISCRETIONARY REVIEW
________________________________________________________________________

May 9, 2016

May 8, 2016

DEGUERIN, DICKSON, HENNESSY & WARD


Dick DeGuerin
State Bar No. 05638000
Matt Hennessy
State Bar No. 00787677
1018 Preston, 7th Floor
Houston, Texas 77002
(713) 223-5959 Telephone
(713) 223-9231 Facsimile
Attorneys for Petitioner

ORAL ARGUMENT REQUESTED

TABLE OF CONTENTS
Table of Contents..

ii

Table of Authorities...

iii

Identity of Parties and Counsel..

Statement Regarding Oral Argument.

Statement of the Case.

Statement of Procedural History

Factual Background

Grounds for Review

Argument

Conclusion..

15

Certificate of Service..

18

Certificate of Compliance

18

Appendix A

ii

TABLE OF AUTHORITIES
Cases

Page

Alabama Great So. R.R. Co. v. Louisville and Nashville R.R.,


224 F.2d 1 (5th Cir. 1955)

14

Bartkus v. Illinois, 359 U.S. 121, 124 (1959)..

12, 8

Click v. State, 39 S.W.2d 39, 41 (1931).

10

Croley v. Matson Navigation Co., 434 F.2d 73, 77 (5th Cir. 1970)

14

Ex parte Gary, 895 S.W.2d 465, 468 (Tex. App.Amarillo 1995,


pet. refd).

12

Ex parte Hargett, 819 S.W.2d 866, 867 (Tex. Crim. App. 1991)..

10

Ex parte Walker, __ S.W.3d __, 2016 WL 908374 at *1 (Tex.


App.Beaumont March 9, 2016, pet. pending).

1, 8, 10, 11

Greenville v. State, 798 S.W.2d 361, 362 (Tex. App.Beaumont


1990, no pet.)...

11, 12

In re Piper, 105 S.W.3d 107, 110 (Tex. App.Waco 2003, orig.


proceeding)

10, 11, 12

Lipschutz v. Gordon Jewelry Corp., 373 F.Supp. 375, 385 (S.D.


Tex. 1975).

14

Marsden v. Patane, 380 F.2d 489 (5th Cir. 1967)

14

NLRB v. Smith Industries, 403 F.2d 889, 895 (5th Cir. 1968).

14

RileyStabler Constr. Co. v. Westinghouse Electric Co., 396 F.2d


274, 277 (5th Cir. 1968)

14

Rinaldi v. United States, 434 U.S. 22, 26-29 (1977)..

12

Stephens v. State, 806 S.W.2d 812, 814 (Tex. Crim. App. 1990)

Stewart v. Credit Bureau, Inc., 734 F.2d 47, 54 (D.C. Cir. 1984).

14

United States v. Belcher, 762 F.Supp. 666, 671 (W.D. Va. 1991).

9, 13

United States v. Moore, 958 F.2d 646, 650 (5th Cir. 1992).

12

iii

United States v. Wheeler, 435 U.S. 313, 320 (1978)..

13

Statutes
Tex. Code Crim. Proc. Ann., art. 11.15...

7, 8, 10

Tex. Const., art. V, 8.

10

Tex. Govt Code 24.011

10

Tex. Code Crim. Proc. Ann., art. 11.05

5, 10, 11, 12

Tex. Const., art. I, 12.

10

iv

IDENTITY OF PARTIES AND COUNSEL


The undersigned counsel of record for Appellant certifies that to his knowledge only
the parties listed below have an interest in the outcome of this case. They are as follows:
Honorable John Stevens
Judge, Criminal District Court
1085 Pearl Street
Beaumont, Texas 77701
Calvin Walker, Petitioner
Dick DeGuerin
State Bar No. 05638000
Matt Hennessy
State Bar No. 00787677
DeGuerin, Dickson, Hennessy & Ward
1018 Preston, 7th Floor
Houston, Texas 77002
(713) 223-5959
Attorneys for Petitioner

The State of Texas, Respondent


Wayln G. Thompson
State Bar No. 19959725
Jefferson County Assistant District Attorney
1085 Pearl St.
Beaumont, Texas 77701
(409) 835-8550
Attorney for Respondent
Lisa McMinn
State Prosecuting Attorney
P. O. Box 13046
Austin, Texas 78711

Statement Regarding Oral Argument


This petition presents important issues involving pretrial habeas process. The first,
threshold issue questions whether a court of appeals has jurisdictional authority to decide
whether a district court should have issued a writ a habeas corpus. The second issue
concerns what burden must be met to trigger the issuance of a writ of habeas corpus. The
third concerns what burden must be met to require a hearing on the merits of a habeas
application after the proper issuance of a writ. Oral argument will assist the Court in
determining the matter.
Statement of the Case
This is a consolidated appeal of the district courts denial of Calvin Walkers six
pretrial applications for habeas relief, all of which raised the same double jeopardy
challenges.
The State obtained six indictments against Walker based on the same conduct that
had been adjudicated previously in federal court. Those previously adjudicated federal
charges were resolved with a plea agreement that, in return for a guilty plea on one count,
provided for the dismissal of all remaining counts and a guarantee that no additional
charges would be filed based on the same conduct or any other conduct that was known to
the authorities at the time. Ex parte Walker, __ S.W.3d __, 2016 WL 908374 at *1 (Tex.
App.Beaumont March 9, 2016, pet. pending) (Appendix A to this petition).
Due to the unusual circumstances that are present here, prosecution of the six state
cases should be barred by double jeopardy based on the federal plea agreement. The district
court was presented with materials that warranted further examination in a hearing on the
1

merits, but the district court summarily denied Walkers applications without prior notice
to the parties.
The district court never issued a writ on any of Walkers applications and there is,
therefore, some ambiguity as to the meaning of the courts summary denial. See id. at *5.
The district courts order seems to address the substantive relief sought, but it could also
be interpreted as refusing to issue the writs because no writs were ever issued.1 On appeal,
the court of appeals held that the district court could have refused even to issue the writs,
and affirmed the district courts order on that sole basis. Id. at *5, *9.
By this petition, Walker seeks an initial determination of whether the court of
appeals had jurisdiction to determine that the district court could have properly refused to
issue the writs sought by Walkers applications. If the court of appeals lacked the
jurisdiction to so decide, the cases should be remanded to the court of appeals to address
the issues actually raised by the parties. If the court of appeals appropriately exercised its
jurisdiction, this Court should review the court of appeals holding that Walker failed to
meet his burden to warrant the issuance of writs of habeas corpus by the district court. If
that burden was in fact met, the cases should be remanded to the court of appeals to address
issues raised in the parties briefs.

The final paragraph of the district courts order states:


Based on the foregoing findings, the Court concludes that the dual sovereignty
doctrine has not been forfeited by the state in the six pending indictments at issue.
Therefore, applicants double-jeopardy claim for relief submitted in applicants six
pretrial applications is without merit and is, in all things, denied.
Id. at *3. On appeal, both the State and the defense assumed that the district court ruled on the
merits, but the court of appeals reasoning in affirming the district court tends to call that
assumption into question.
2
1

Walker alternatively seeks remand to the district court so that the district court can
clarify whether its denial of relief was a refusal to issue the writs, or a denial of relief on
the merits. If it was the former, Walker seeks remand for the issuance of a writ by the
district court or another court of competent jurisdiction followed by an evidentiary hearing.
If it was the latter, Walker seeks remand for an evidentiary hearing.
Statement of Procedural History
The State filed the six cases against Walker on July 29, 2014.

The pretrial

applications for habeas relief were filed on November 14, 2014. The district court never
issued writs on the applications and it denied relief on December 18, 2014. Walker
appealed the denial to the Ninth Judicial District Court of Appeals in Beaumont. The court
of appeals issued its opinion affirming the district courts decision on March 9, 2016. No
motion for rehearing was filed. Pursuant to an extension granted by this Court, this petition
for discretionary review is due on May 8, 2016.
Factual Background
The United States Attorneys Office for the Eastern District of Texas (USAO) filed
its case against Walker in federal court on May 4, 2011. Id. at *1. The thirty-seven count
indictment alleged that Walker defrauded the Beaumont Independent School District
(BISD) by billing for materials and services provided by his electrical contracting business
at various district-owned facilities. Id. The case drew considerable media attention in
Beaumont and the surrounding area from the time it was filed until its ultimate resolution.
It remains a topic of public interest.

The federal trial ended with a mistrial in December 2011 after the jury could not
reach a verdict. Id. Shortly before a second trial was to begin, Walker and the authorities
reached an agreement to finally resolve all pending charges and investigations. Id. Walker
agreed to plead guilty to a charge of failing to pay income tax. Id. In return, the USAO
agreed not to prosecute Walker for any offenses of which it has knowledge, including any
additional tax or non-tax related charges based upon the conduct underlying and related to
[Walkers] plea of guilty. See id.2 Consistent with that agreement, the USAO dismissed
all other charges against Walker in the federal indictment on December 12, 2012, and no
federal charges have been filed since. Id.
The Jefferson County District Attorneys Office filed six felony cases against
Walker on July 29, 2014. Id. The charges are based on the exact same conduct resolved
by the federal plea agreement. Id. At the time that the state cases were filed, Cory
Crenshaw was the district attorney. He was appointed to that position in January 2014. Id.
at *2. Prior to his appointment, Crenshaw served as a federal prosecutor in the same office
that prosecuted Walkers federal case. Id.
Many individuals within law enforcement in the Beaumont area were unhappy that
Walkers trial did not end with his conviction, and they were dissatisfied with the way the
charges were resolved despite the fact that it was an agreed resolution. In a press
conference on January 9, 2014, United States Attorney John Malcolm Bales expressed
these lingering sentiments. Id. The press conference was called to address the recent

The plea agreement remains under seal in federal court.


4

federal indictment of two BISD administrators, but the discussion eventually focused on
Walker. Id. The Examiner article that followed the press conference reported:
Bales addressed a topic that has obviously bothered him since his ill-fated
prosecution of electrician Calvin Walker. One of the things we have
experienced here was quite surprising to me, began Bales. I lived in
Beaumont for six years in the late 80s and early 90s; I love Beaumont; two
of my children were born here. But I was not prepared for the polarization.
The last time we made a charge of something I thought was fraudulent at
BISDand I still dowas the sensitivities in this community that are
racially charged. Im not used to being accused of being on anybodys side.
The only side were on is law and orderand justice.
Id. Crenshaw was still a federal prosecutor under Bales at the time of these remarks. Id.
Less than three weeks later, Crenshaw was sworn in as the Jefferson County District
Attorney. Id.
On March 5, 2014, Crenshaw and his former boss, announced the formation of a
joint task force. Id. The announcement from Bales USAO, stated: The mission of the
task force will be to investigate and prosecute major crimesmore specifically, violent
crime and crimes related to the abuse of public trust. Id. To further solidify the joint
mission, Crenshaw was sworn in as a Special Assistant United States Attorney of the
USAO on May 12, 2014, to assist with Joint Task Force Cases, thus pooling state and
federal prosecutorial authority in a single office. See id. The letter authorizing Crenshaws
appointment expressly states that he shall report to and act under the direction of Bales
while serving as district attorney at the same time. Id.
Crenshaws office filed the state cases against Walker on July 29, 2014. Id. at *1.
Walker filed his habeas applications on November 14, 2014. The court never issued the
writs sought by the applications as required by Article 11.05 of the Texas Code of Criminal
5

Procedure. The district court originally set the applications for a hearing to be held on
December 15, 2014, but then moved the hearing date up to November 24, 2014. See id. at
*3. In anticipation of that hearing, the defense subpoenaed Crenshaw and Bales to testify.
Id. The defense also subpoenaed records from the Jefferson County District Attorneys
Officerecords showing communications between the district attorneys office and the
USAO regarding Walker and the decision to prosecute him in state court. Id. The state
filed a motion to quash the subpoena for records, and the defense filed a response. Id.
On November 21, 2014, without notice or explanation, the district court cancelled
the hearing scheduled for November 24, 2014. Id. The district court had not yet ruled on
the States motion to quash the defenses subpoena for records of communications between
the state and federal authorities at the time. Thereafter, the defense repeatedly called the
district courts coordinator seeking to re-schedule a hearing on the habeas applications.
The district court summarily denied Walkers applications in a written order on December
18, 2014. Id. The defense received the order by fax. The district court never gave notice
that it intended to take action on Walkers applications without a hearing.
Walker appealed the district courts summary denial, and the Beaumont court of
appeals affirmed. The court of appeals stated:
In this case, the record contains no order or other documentation showing
that the trial court formally issued the writs of habeas corpus requested in
Walkers habeas petitions. Instead, it appears from the record that the trial
court originally set the petitions for a hearing. The trial court later cancelled
that hearing based on its determination that it could render a proper ruling
without further factual development of applicants claim. It then issued its
December 18, 2014 order, in which the trial court addressed the merits of the
allegations set forth in Walkers habeas petitions and, finding them to be
without merit, denied habeas relief. Although the trial courts order indicates
6

that it entertained the merits of Walkers habeas claims and ultimately denied
the relief requested, we conclude, for the reasons set forth below, that it [is]
manifest from Walkers petitions, together with the documents attached to
those petitions, that he is entitled to no relief whatever. See Tex. Code
Crim. Proc. Ann. art. 11.15. Therefore, the trial court, upon examining the
petitions, would have been fully justified under article 11.15 in refusing to
issue the writs of habeas corpus and, thus, never reaching the need to conduct
a formal evidentiary hearing on the merits of Walkers claims. See id.
Id. at *5.
Grounds for Review
1.

Whether the court of appeals had the authority to decide that the district court

was right to deny an evidentiary hearing on Walkers habeas applications because the
district court could have refused to issue writs in the first place. In other words, did the
court of appeals improperly exercise original jurisdiction in a habeas matter by deciding
that the district court could have correctly refused to issue the sought-after writs?
2.

Whether writs of habeas corpus should have been issued based on the

allegations in Walkers applications.


3.

Whether the district court should have granted a hearing to permit Walker to

develop the factual basis for the habeas relief sought by his applications.
Argument
I.

Reason for Review.


The district courts reasoning for summarily denying relief was unjustly circular.

The district court denied relief because there was insufficient evidence to support Walkers
claims, and the evidence was insufficient because there was no hearing, and there was no
hearing because relief was denied. The summary denial was, according to the district
7

courts logic, self-justifying. The district courts decision also had an ironic twist in that
Walker had validly-served, outstanding subpoenas for testimony and records when relief
was summarily denied. The subpoenas that could have produced the evidence to show that
relief was warranted were rendered impotent by the denial.
The court of appeals decision is also flawed, but for different reasons. The court
stated:
Because we conclude that the facts alleged in Walkers habeas petitions, even
if proven true, do not show that the States prosecution of Walker is a sham
and cover for a second federal prosecution, we conclude that it [is]
manifest from the face of Walkers habeas petitions and the documents
attached thereto that Walker is entitled to no relief whatever. Tex. Code
Crim. Proc., art. 11.15.
Ex parte Walker, 2016 WL 908374 at *9. However, even a cursory examination of
Walkers applications show that the courts conclusion is incorrect. The second paragraphs
of the applications expressly state:
A state is not entitled to invoke the dual sovereignty doctrine when its
prosecution [is] merely a tool of the federal authorities.3 Habeas relief is
warranted because the state and federal authorities have operated as a single
sovereign in their mutual pursuit of Walker.4
CR. (Cause No. 14-19965) at 4-5.5
The final paragraphs state:
The two sovereigns at issue here are substantially more intertwined, and the
procedural history presents a more compelling case for dismissal than in
Belcher. When it comes to Joint Task Force casesand that is exactly what
3

Bartkus v. Illinois, 359 U.S. 121, 124 (1959)


Stephens v. State, 806 S.W.2d 812, 814 (Tex. Crim. App. 1990) (the pretrial writ of habeas
corpus is an appropriate remedy to review a double jeopardy claim).
5
All six of Walkers applications are identical and the district court entered a single order
addressing all applications, so for simplicity, the record cite for but one of the applications is
used for reference.
8
4

the state cases areCrenshaw cannot be viewed as a state or a federal


prosecutor. He is both. Crenshaw draws his powers from two sovereigns
and he is simultaneously bound by the laws of both. He possesses the power
to proceed in both state and federal courts. Any case that Crenshaw brought
against Walker in federal court would be barred. But this inability to bring a
viable federal case does not somehow empower Crenshaw to file state cases
based on the same facts as the federal case. By holding the unified authority
of a state and federal prosecutor, Crenshaw and his office cannot resort to the
dual sovereignty doctrine to justify their continued pursuit of Walker. In the
cases against Walker, there is in reality but one sovereign at work. Because
of that the state cases are barred and must be dismissed.
CR. (Cause No. 14-19965) at 8.
It cannot, therefore, be disputed that Walker alleged facts in his applications that, if true,
would show that he is being prosecuted by the same sovereign. Indeed, he said exactly
that.
The court of appeals holding is not only flawed by a false premise, it is undercut
by an improper exercise of jurisdiction as well. Courts of appeals do not have original
jurisdiction of habeas matters, but here the court of appeals affirmed the district court by
deciding that the district court could have refused to issue writs sought by Walkers
applicationsa decision that was beyond its authority.
The district court and the court of appeals have so far departed from the accepted
and usual course of judicial proceedings as to call for an exercise of this Courts power of
supervision. Review is warranted.

II.

Discussion.
A.

A Writ of Habeas Corpus Is a Writ of Right.

Texas district courts have constitutional and statutory authority to issue writs of
habeas corpus. Tex. Const., art. V, 8; Tex. Govt Code 24.011; Tex. Code Crim. Proc.,
art. 11.05; Ex parte Hargett, 819 S.W.2d 866, 867 (Tex. Crim. App. 1991). The Texas
Constitution provides that the writ of habeas corpus is a writ of right. Tex. Const., art.
I, 12. The Texas Code of Criminal Procedure further provides that it is the duty of a
district court, upon proper motion, to [issue] the writ under the rules prescribed by law.
Tex. Code Crim. Proc., art. 11.05.6 The writ shall be [issued] without delay by the judge
or court receiving the petition, unless it be manifest from the petition itself, or some
documents annexed to it, that the party is entitled to no relief whatsoever. Id. art. 11.15.
Where one entitled to a writ of habeas corpus makes proper application for it to the proper
court having jurisdiction, said application conforming to all the statutory requirements and
probable cause being shown, the writ of habeas corpus cannot be denied, for it then
becomes a constitutional right. Neither can it be denied where the [issuing] of it is made
an imperative duty by statute. Click v. State, 39 S.W.2d 39, 41 (1931); see also In re
Piper, 105 S.W.3d 107, 110 (Tex. App.Waco 2003, orig. proceeding).
B.

Courts of Appeals Have No Authority to Issue Writs of Habeas Corpus.

The court of appeals decided that the district court could have correctly refused to
issue writs when presented with Walkers applications. Ex parte Walker, 2016 WL 908374

Article 11.05 uses the word grant instead of issue. By grant, the code refers to the issuance
of the writ, not the grant of relief. Issue was substituted for grant here and below for clarity.
10
6

at *5, *9. However, courts of appeals do not have jurisdiction to decide whether to issue
writs of habeas corpus. See Tex. Code Crim. P., art. 11.05; Greenville v. State, 798 S.W.2d
361, 362 (Tex. App.Beaumont 1990, no pet.) (Art. 11.05 specifically omits courts of
appeals from the list of courts empowered to issue or grant a writ of habeas corpus). A
court of appeals jurisdictionis strictly appellate[.] Greenville, 798 S.W.2d at 362.
A court of appeals has no authority to issue a writ of habeas corpus, nor does it have
authority to review a district courts refusal to issue a writ, despite its strictly appellate
jurisdiction. An applicants remedy from a district courts refusal to issue a writ is to
present his application to another court of competent jurisdiction. In re Piper, 105 S.W.3d
at 110. An applicant has no right to appeal such a refusal. Id.
In Greenville, the appellant appealed to the court of appeals from the denial of a
pretrial writ. On appeal, the appellant raised issues that had not been presented to the
district court by either party. The court held that, in the particular context of an appeal
from the denial of pretrial habeas relief, to rule upon issues raised to us for the first time
would place us in the position of exercising original jurisdiction, a position that [Article]
11.05 indicates we do not have. Greenville, 798 S.W.2d at 362 (emphasis in original).
The State never contended, in either the district court or in the court of appeals, that
the district court could have denied an evidentiary hearing on Walkers applications
because it could have refused to issue the writs at the very beginning. That after-the-fact
ratification of the district courts summary denial a hearing was conceived by the court of
appeals sua sponte. See Ex parte Walker, 2016 WL 908374 at *5, *9. By raising and
deciding the issue on its own, the court of appeals exercised original jurisdiction over a
11

matter (whether a writ should be issued) that Article 11.05 indicates a court of appeals does
not have. See Greenville, 798 S.W.2d at 362. Alternatively, the court of appeals reviewed
a district court decision that it had no authority to review. See In re Piper, 105 S.W.3d at
110. Either way, review by this Court is warranted.
C.

The Sham Prosecution Exception.

Walker presented a viable claim for relief in his habeas applications, and the district
court should have issued writs and conducted an evidentiary hearing. See CR. (Cause No.
14-19965) at 4-56 (the application with exhibits). Successive prosecutions such as those
brought by the State against Walker have long been disfavored as a matter of sound public
policy. See Rinaldi v. United States, 434 U.S. 22, 26-29 (1977) (discussing the Petite
policy and the unfairness that is associated with successive prosecutions [by different
sovereigns] based on the same conduct). While being consistently disfavored, successive
prosecutions by different sovereigns are legally permissible except where the separate
sovereigns have effectively become one.

The circumstances here present such an

impermissible situation.
The only deviation from the dual sovereignty rule is found in the sham
prosecution exception. United States v. Moore, 958 F.2d 646, 650 (5th Cir. 1992); see
also Ex parte Gary, 895 S.W.2d 465, 468 (Tex. App.Amarillo 1995, pet. refd). This
narrow exception bars a subsequent prosecution if the two sovereigns were so intertwined
that the state in bringing its prosecution was merely a tool of the federal authorities[.]
Moore, 958 F.2d at 650 (quoting Bartkus, 359 U.S. 121).

12

[The notion of dual sovereignty] rest[s] on the basic structure of our federal
system, in which states and the national government are separate political
communities. State and federal governments [derive] power from different
sources, each from the organic law that established it....Each has the power,
inherent in any sovereign, independently to determine what shall be an
offense against its authority and to punish such offenses, and in doing so each
is exercising its own sovereignty, not that of the other.
United States v. Wheeler, 435 U.S. 313, 320 (1978) (citations omitted). However, if the
same prosecutor simultaneously derives power from both a state and the federal
government, then the whole underpinning of federalism is destroyed. United States v.
Belcher, 762 F.Supp. 666, 671 (W.D. Va. 1991). When two sovereigns have essentially
pooled their powers in one prosecutorin reality there are no longer two sovereigns at
work. Instead, the pooling of prosecutorial power effectively creates one super sovereign,
i.e., a unitary government. Id.
Contrary to the court of appeals finding, Walker set out allegations that, if true,
would have triggered the sham prosecution exception and barred further prosecution. See
CR. (Cause No. 14-19965) at 4-56 (the application with exhibits). State and federal
authority was pooled in the Jefferson County District Attorneys Office when the decision
was made to seek the indictments now pending against Walker. Walker clearly made that
very allegation in his applications. See id. at 4-5, 8. Walker made a sufficient showing to
require the issuance of writs on his applications, and an evidentiary hearing should have
been held to determine the merits of those applications. They should not have been
dismissed out of hand.
Even if the court of appeals had the initial authority to consider whether the district
court could have refused to issue writs on Walkers applications, the court of appeals still
13

erred in ultimately concluding that Walker was not entitled to have the writs issued.
Review should be granted to cure that error, and the court of appeals should be required to
address the issues presented in the parties briefs.
D.

Summary Denial Was Inappropriate.

Summary disposition is improper if factual issues necessary for decision involve the
determination of individuals subjective state of mind. See Croley v. Matson Navigation
Co., 434 F.2d 73, 77 (5th Cir. 1970) (addressing summary judgment); NLRB v. Smith
Industries, 403 F.2d 889, 895 (5th Cir. 1968) (same); RileyStabler Constr. Co. v.
Westinghouse Electric Co., 396 F.2d 274, 277 (5th Cir. 1968), rehearing denied 401 F.2d
526 (5th Cir. 1968) (same); Marsden v. Patane, 380 F.2d 489 (5th Cir. 1967) (same);
Alabama Great So. R.R. Co. v. Louisville and Nashville R.R., 224 F.2d 1 (5th Cir. 1955)
(same). [W]here motive, intent, subjective feelings and reactions, consciousness and
conscience [are] to be searched,examination and cross-examination [are] necessary
instruments in obtaining the truth. Alabama Great So. R.R. Co., 224 F.2d at 5.
[In evaluating summary disposition, a court should weigh]the need for
cross-examinationin relation to the evidentiary materials, the general
desirability of demeanor testimony, theaccess to proof by the opposing
partyand the desirability that the case receive the full exploration of [an
evidentiary hearing].
Stewart v. Credit Bureau, Inc., 734 F.2d 47, 54 (D.C. Cir. 1984) (quoting Lipschutz v.
Gordon Jewelry Corp., 373 F.Supp. 375, 385 (S.D. Tex. 1975)).
Walkers claims for relief based on the sham prosecution exception are entirely
dependent on the motivation and intent of the state and federal authorities. The question
is whether the state and federal prosecutors colluded and pooled their resources and
14

authority in a mutual pursuit of Walker manifested in the pending indictments. These stateof-mind questions are not suitable for summary disposition, nor can an applicant be
expected to marshal evidence of a persons state of mind without an evidentiary hearing.
See id. The district court erred by summarily denying relief, and the court of appeals was
wrong to ratify that denial on any reasoning. See id.
Real harm occurred when the district court ruled without a hearing. The district
courts order assumes without basis that there was in fact no collusion between the state
and federal officials. Walkers access to potentially helpful evidence was cut off when the
district court issued its summary denial because he no longer had the power of compulsory
process. Without the authority to subpoena documents and witnesses to a hearing, Walker
had no chance of securing the evidence needed to show he was entitled to relief. It is
fundamentally unfair for a court to decide that an applicant cannot prove his case without
first giving him a reasonable chance to prove it.
Walkers applications were sufficient to warrant the issuance of writs of habeas
corpus. The allegations in the applications also warranted examination in a hearing at
which witnesses could be compelled to produce evidence and testify. The district courts
summary denial was improper. See id.
III.

Conclusion.
The court of appeals never actually decided the issue with which it was presented,

i.e., whether the district court erred in failing to holding an evidentiary hearing on Walkers
applications. The court of appeals decided that the district court could have refused to issue

15

writs on Walkers applications insteada decision about which the court of appeals had
absolutely no authority to make.
Walker seeks review for an initial determination of whether the court of appeals had
jurisdiction to determine that the district court could have properly refused to issue the
writs sought by Walkers applications. If the court of appeals lacked the jurisdiction to so
decide, the cases should be remanded to the court of appeals to address the issues actually
raised by the parties. If the court of appeals appropriately exercised its jurisdiction, this
Court should review the court of appeals holding that Walker failed to meet his burden to
warrant the issuance of writs of habeas corpus by the district court. If that burden was in
fact met, the cases should be remanded to the court of appeals to address issues raised in
the parties briefs.
Walker alternatively seeks review and remand to the district court so that the district
court can clarify whether its denial of relief was a refusal to issue the writs, or a denial of
relief on the merits. If it was the former, Walker seeks remand for the issuance of a writ
by the district court or another court of competent jurisdiction followed by an evidentiary
hearing. If it was the latter, Walker seeks remand for an evidentiary hearing.

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Respectfully submitted,
DEGUERIN, DICKSON, HENNESSY & WARD
/s/Dick DeGuerin
Dick DeGuerin
State Bar No. 05638000
dick@deguerin.com
Matt Hennessy
matt@deguerin.com
State Bar No. 00787677
1018 Preston, 7th Floor
Houston, Texas 77002
(713) 223-5959 Telephone
(713) 223-9231 Facsimile
Attorneys for Petitioner

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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been delivered to
the following parties via electronic filing on May 9, 2016:
Wayln G. Thompson
Assistant District Attorney
1085 Pearl St.
Beaumont, Texas 77701
Lisa McMinn
State Prosecuting Attorney
P O Box 13406
Austin, Texas 78711

/s/Dick DeGuerin
Dick DeGuerin

CERTIFICATE OF COMPLIANCE
Pursuant to TEX. R. APP. P. 9.4, counsel hereby certifies that this brief contains
3910 words. This is a computer-generated document created in Microsoft Word, using 13point typeface for all text, except for footnotes which are in 12-point typeface. In making
this certificate of compliance, I am relying on the word count provided by the software
used to prepare the document.

/s/Dick DeGuerin
Dick DeGuerin

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