State Removal Notice

Case 1:11-cv-00603-LY Document 1
Filed 07/18/11 Page 1 of 4
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION v. RICK PERRY, Governor, State of Texas; BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice; ANGIE McCOWN, Director, TDCJ Victim Services Division; RISSIE OWENS, Member Texas Board of Pardons and Paroles, Defendants. RAIS BHUIYAN, Plaintiff,
Civil Action No. 1:11-CV-00603
NOTICE OF REMOVAL1 NOW COME Defendants Brad Livingston, Angie McCown and Rissie Owens and remove Cause No. D-1-GN-11-002118 from the District Court of Travis County, Texas, to the United States District Court for the Western District of Texas, Austin Division, pursuant to 28 U.S.C. 1441 and 1446. 1. On or about July 13, 2011, Plaintiff filed a petition seeking injunctive
relief against Defendants in Travis County District Court, Cause No. D-1-GN-11-002118. 2. Defendants have attached Attachment 1, which is incorporated herein by
reference, all state-court pleadings, processes, and orders filed in Cause No. D-1-GN-11002118 as required by 28 U.S.C. 1446(a), 1447(b) and 1449. 3. 4. 25) All served Defendants have consented to removal. Plaintiff has indicated he intends to assert his right to a jury trial. (Att. 1 at
Subject to the demonstration of personal jurisdiction as to Perry.
5.
Plaintiff demands relief for the alleged failure of Defendants to provide
him notice of his rights and the opportunity to mediate with Mark Stroman scheduled to be executed on July 20, 2011 as a crime victim pursuant to TEX. CONST. Art. 1, 30 and TEX. CODE CRIM. P. Arts. 56.02 and 56.13. 6. Among others claims based on federal law, Plaintiff asserts, through 42
U.S.C. 1983, substantial and disputed questions of federal law, including but not limited to a violation of his First Amendment rights to free exercise of religion (Att. 1 at 14, 19) and freedom of association (Att. 1 at 20); violation of his due-process and equalprotection rights under the Fifth and Fourteenth Amendments (Att. 1 at 22); claims under the Eighth, Ninth and Tenth Amendments (Att. 1 at 23-24); and a claim to be free from a bill of attainder. (Att. 1 at 21) 7. Removal is proper in this case because: a. This is an action in which the district court has original jurisdiction
founded on a claim or right arising under the Constitution, treaties or laws of the United States. 28 U.S.C. 1331. A district court has removal jurisdiction in any case where it has original jurisdiction. 28 U.S.C. 1441(a). Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008). A federal question exists if there appears on the face of the complaint some substantial, disputed question of federal law. Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 366 (5th Cir. 1995). b. Notice of removal must be filed within 30 days of receiving a
copy of the initial pleading setting forth the claim for relief. 28 U.S.C. 1446(b), Cole ex rel. Ellis v. Knowledge Learning Corp., 416 Fed.Appx. 437, 439 (5th Cir. 2011).
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Defendants received notice of Cause No. D-1-GN-11-002118 on or about July 13, 2011. Removal is therefore timely. c. A case may be removed to a federal district and division that
encompasses the state court where the matter was pending. 28 U.S.C. 1446(a). This Court is proper venue for removal because civil action No. D-1-GN-11-002118 was filed and remains pending in the Travis County District Court. WHEREFORE, Defendants remove this action from the Travis County District Court to the United States District Court for the Western District of Texas, Austin Division, pursuant to 28 U.S.C. 1441 and 1446. Respectfully submitted, GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General BILL COBB Deputy Attorney General for Civil Litigation DAVID C. MATTAX Director of Defense Litigation DAVID A. TALBOT, JR. Assistant Attorney General Chief, Law Enforcement Defense Division
/s/ Allan K. Cook ALLAN K. COOK Assistant Attorney General Attorney-in-Charge Texas Bar No. 24004374 Office of the Attorney General
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P.O. Box 12548 Austin TX 78711-2548 (512) 463-2080/Fax (512) 495-9139 allan.cook@oag.state.tx.us ATTORNEYS FOR DEFENDANTS
NOTICE OF ELECTRONIC FILING I, ALLAN K. COOK, Assistant General of Texas, do hereby certify that I have electronically submitted a true and correct copy of the foregoing for filing in accordance with the Electronic Case Files System of the Western District of Texas, on July 18, 2011. /s/ Allan K. Cook ALLAN K. COOK Assistant Attorney General
CERTIFICATE OF SERVICE I, ALLAN K. COOK, Assistant Attorney General of Texas, certify that a true and correct copy of the foregoing in addition to being served by electronic filing notice was mailed, faxed to (713) 886-3811 and e-mailed to staff@gracelaw.org on July 18, 2011: Khurrum Wahid Wahid Vizcaino LLP 6221 W. Atlantic Blvd. Margate FL 33063 Danalynn Recer The Gulf Region Advocacy Center 2307 Union St. Houston TX 77007-6129 Counsel for Plaintiff /s/ Allan K. Cook ALLAN K. COOK Assistant Attorney General
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Case 1:11-cv-00603-LY Document 1-1
rd 353
TRAVIS COUNTY DISTRICT COURT
v. RICK PERRY, Governor, State of Texas; BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice; ANGIE McCOWN, Director, TDCJ Victim Services Division; RISSIE OWENS, Member Texas Board of Pardons and Paroles, Defendants.
ATTACHMENT 1
RAIS BHUIYAN, Plaintiff,
No. D-1-GN-11-002118

Filed II July 13 P6:30 Amalla Rodrlguez-Mendo DIstii Cledc Travis District D-1-GN-11-002118
IN THE l)ISTRICT COURT OF TRAViS COUNTY, TEXAS Trial Court Cause No.
RAIS BHUIYAN, Plainti ft

V.
RICK PERRY, GOVERNOR, State Of Texas, BRAD LIViNGSTON, EXECUTIVE DIRECTOR Texas Department Of Criminal Justice, ANGIE McCOWN, DIRECTOR TDCJ Victim Services Division RISSIE L. OWENS, Member Texas Board of Pardons and Paroles Defendants.
TO THE HONORABLE DISTRICT COURT IN AND FOR TRAVIS COUNTY: COMPLAINT PLAINTIFF files the following complaint, seeking injunctive relief and such other equitable relief as the Court deems fit and just.
PARTIES 1. The Plaintiff in this action is Rais Bhuiyan, who is a competent adult citizen
of the United States and resident of Dallas County, Texas. 2. The Defendants in this action are: a. Rick Perry, Governor, the State of Texas, who is an adult citizen of the
United States and, for purposes of this litigation, is legally present in

Travis County, Texas;
b. Brad Livingston, the executive director of the Texas Department of Criminal Justice (TDCJ), who is an adult citizen of the United States
and, for purposes of this litigation, is legally present in Travis County, Texas. c. Angie McCown, Director of the Victim Services Division of the Texas Department of Criminal Justice (TDCJ), who is an adult citizen of the United States and, for purposes of this litigation, is legally prcscnt in Travis County, Texas. d. Rissie L. Owens is a member of the Texas Board of Pardons and
Paroles, and is the person to whom submissions are made for clemency. She is assigned to Huntsville but, for purposes of this
litigation, is legally present in Travis County, Texas. 3. All Defendants are sued in their official capacities. JURISDICTION, VENUE, JURY TRIAL 4. Jurisdiction is appropriate pursuant to Tex. Civ. P. & R. Code Tit. 5, Sec. 8. 5. Venue is appropriate in Travis County, Texas, because the defendants are legally situated there. Tex. Civ. P. & R. Code Tit. 5, Sec. 15.002.
6. When it becomes procedurally necessary, Plaintiff notes that he intends to assert his right to trial by jury. Tex. Const. Art. 1, 15; Tex. Civ. P. & R. Code Tit. 5, Sec. 10. STATEMENT OF MATERIAL FACTS 7. The following are the materials facts relevant to Plaintiffs complaint: 1. PLAINTIFFS DESIRE TO ENGAGE IN MEDIATION AND RECONCILIATION
8. Plaintiff is a United States citizen who is Muslim. His family come from
Bangladesh.
9. While working in a Dallas convenience store in Septembcr 2001, Plainttf was shot in the eye by Mark Str,nan. Mr. Strman shot three people in three
different incidents in the wake of his sisters death in the World Trade Center attacks. lie is currently scheduled to be executed on July 20, 2011 for capital murder. Plaintiff wishes to seek reconciliation with Mark Strman, and to pursue full mediation with him. 10. Plaintiff feels this way because his parents raised him with the
religious principle that he is best who can forgive easily. He believes, as a Muslim, that human life is precious and that no one has the right to take anothers life. II. Plaintiff also seeks solace for the widows and children of murder
victims Vasudev Patel and Waqar Flasan, who are also victims in this tragedy, and who support Plaintiff in his efforts to seek reconciliation. 12. Plaintiff is strongly motivated by his religious beliefs. Forgiveness is a
long standing mechanism within many faiths, Islam being one of them, towards the healing of the soul. As a Muslim, Plaintiff is of the belief that when he forgives or promotes mercy for his attacker, the government should no longer have a duty or a right to exact the ultimate punishment upon Mr. Stroman. 13. Plaintiff understands that while he does not properly understand why
he did what he did, Mark Strman recognizes that his actions were profoundly wrong
and had a terrible impact upon Plaintiff, as well as the families of Mr. Patel and Mr. 1-lasan. Plaintiff understands that Mark Strrnan is very remorseful for taking two
lives, almost taking a third, and for the pain and suffering that he has caused. 2.
14. long time.
PLAINTIFFS DESIRE RECONCILIATION
FOR
MEDIATION
AND
Plaintiff strongly desires mediation and reconciliation, and has for a
15. State of Texas.

16.
Plaintiff has never been informed of his right to such mediation by the
Plaintiff has not otherwise been shown the respect that is mandated by
the Texas Victims Bill of Rights. 17. Plaintiff was not given rneaningftil mental health assistance by the
State of Texas to work through the terrible trauma that he suffered during the crime. 18. Plaintiff was not informed by the State of Texas of his right to testify
to what he truly believed at trial, but was rather told he could only ask the questions that he was asked. 19. Plaintiff has not been accorded any of the rights that should, by law, be
his inhis role asavictim. 20. Plaintiff is a victim. As such, he did not want to rush into a public
spotlight Had he only known his rights, he would have been quietly pressing for his rights for a long time. There are various reasons why this was not possib le. 21. First, neither the TDCJ nor any other Texas official told him about his
right to mediation. 22. Second, he understood that it was not permissible for him to contac t
Mark Strman and not permissible for Mark to contact him. 23. Only when he learned that an execution date had been set for Mark
Strman did it become clear that he had to act. He made clear in public his opposition to executing Mark Strman
a step he took after considerable thought, as he knew it
would cause him to relive a great deal of pain. 24. Only when he began to make his feelings known in public did he learn
that his rights as a victim had been ignored or trodden on for the past nine and a half years.
25.
Plaintiff understands that Mark StrOman had also previously been
informed by officials of the TDCJ that he could not Contact Plaintiff and the oilier victims. 26. Plaintiff understands, to a certain degree, why Mark StrOman acted as
he did. However, to a greater extent Plaintiff lacks understanding, and is looking for these answers. lie anticipates that a full mediation and reconciliation proces s with Mark will help him to reach this better understanding. 27. Plaintiff also understands to a certain extent where Mark Strman
obtained the racist beliefs that partially drove him in 2001
now that he had seen
evidence of Mark StrOmans terrible childhood and background. Plainti ff understands that Mark Stroman has, to a certain extent, been able to rehabilitate himself even while on death row. Plaintiff is glad that this has been the case. Howev er, Plaintiff understands that Mark Strman has a long way to go before he will properly understand the reasons why he acted in the way he did, and fuily compr ehend the tragedy of the racial beliefs that lie inherited from his stepfather. 28. Plaintiffs own ability to reach a cathartic point in his own recovery
depends very much on his being able to make full efforts to help Mark StrOm an to reach his full potential, and to overcome the very negative lessons that he was taught as a child. 29. This will inevitably be a process that will take time. 3. 30. infotmed him. 31. Mark Strman had been informed by Texas officials that it would be a PLAINTIFFS DEMAND FOR THE BENEFif OF THE TDCJ MEDIATION PROCEDURES
Plaintiff did not know of his rights because no Texas official had
vioLation of TDCJ rules for him to contact Plaintiff. Only the dire straits of Mark
Strmans execution date led him to question whether the action of Defend ants was legal. 32. Mark Strman wrote to the TDCJ authorities asking for the
opportunity to meet with Plaintiff and initiate mediation as soon as Plaintiffs comments in the media suggested to him that Plaintiff might be open to it. Mark Strmans counsel wrote again, dated July 7, 2011, confirming the written request made to TDCJ on June 22, 2011, and asking what had come of it. 33. Plaintiflcalled the TDCJ to learn what he had to do in order to benefit
from mediation with Mark StrUman. On July 7, 2011, he also wrote to confirm the
details of the conversation. 34. Plaintiff also made a specific request, on June 29, 2011, to appear in
person before the Pardons Board, to plead

(a) that the Board set this matter for a full hearing at a time and a location convenient to the Board, pursuant to Rule 143.43(f)(3) of the Board s rules of procedure; arid, (b) that the Board allow Rais Bhuiyan to appear before it to state his position and the position of other victims with respect to commutation. ..
Clemency Petition on behalf ofMark SirOman, at 23 (June 29, 2011). Plaintiff has not heard anything back on this request, and has not been invited to speak to the Board.
35.
Defendants have made no response to any of his requests as the time
ticks by towards Mark Strmans execution date. 36. The TDCJ states on its website as follows:
tt is not uncommon for states to have victim offender dialogu e programs for nonviolent offenses. The uniqueness of the TDCJ program is that it has been developed for victims of violent crime. The VOM/D process can only be initiated at the request of the victim, and offender participation is volunt ary. If an offender chooses to participate, he/she must admit guilt and take responsibility for the offense. Either party may withdraw from the VOM/D process at any time. Participation in the VOM/D program is not expect ed to affect the offenders prison, parole, or community supervision (proba tion) status. Therefore, it is assured that offenders are not participating in order to
enhance their chances fi,r parole approval. Through VOM/D, the victim may receive answers to questions, which may facilitate his/her healing and recovery. It provides offenders the opportunity to take responsibility for their actions and to be accountable for the pain and suffering (hose actions have caused. See Texas Department of Criminal Justice, htLp://www,tclci.sla(e.tx.u s/vict i rn/victim vonij.htm. 37. The frequently asked questions on the TDCJ website include the
following queries and their answers: When will the mediation take place? Every case is unique and the preparation process varies in length for each case. However, the preparation usually lasts between 4 and 6 months from the time a mediator is assigned to the case, and the actual mediation day. How long before a mediator is assigned to the case? There is a waiting list of individuals requesting mediation and many variabl es affect the length of waiting time. Meeting with an offender is a very import ant step, and the VOMD staff will make every effort to begin each case as soon as possible. Does the offender have to agree to mediation? Offender participation in VOMD is voluntary, but many offenders agree to participate. An offender may decline further participation at any time prior to and including the day of the mediation. If the offender chooses not to participate, other options are available in the mediation program.
Is it permissible to write or visit the offender prior to the mediation?

Corresponding/visiting with the offender prior to mediation is highly discouraged during the mediation preparation process, as there is a chance of re victimization. Any correspondence with the offender prior to or after the mediation is required to go through the VOMD office. Can a support person come to the mediation session? This is something that will be discussed with the mediator and the VOMD Program Supervisor. Victims are encouraged to have a support person in a waiting area of the prison during the mediation. Breaks will be taken as often as needed during the meeting.
See http://www.tdcj.state.tx.us/fag/fag-victim-vomd.htm. What this means, of course, is that it takes four to six months to initiate the process. 38. Mark StrOman could not put Plaintiff on his visitation list, because
offenders are forbidden from adding their victims to their visitation lists. 39. The TDCJ has established a rule that violent prisoners cart only engage
in mediation with the victim after their legal challenges to their conviction and sentence are concluded. This means in effect that capital defendants and their victims (or the families of the deceased victims) bear the greatest benefits 40.
the instances where reconciliation would
can effectively not benefit from the rights under the law.
While in theory a victim could go through their offices victim-
offender mediation/dialogue program to meet with Mark Stroman, Plaintiff knows of no occasion when this has been done with death ttw inmates, however, because the TDCJ policy is not to allow victim-offender mediation/dialogue so long as the offenders case is on appeal, and death row offenders cases are always on appeal. 41. In addition to the offender, both the offenders attorney and the AG
would have to consent to the dialogue. Even if PlaintifI Mark StrOman and Mr. Strmans attorney all consented, the Attorney General cart block the process withou t giving public reasons. 4. 42. TDCJ DEFENDANTS 1JTERLY MANIPULATION 01? THE PROCESS INEQUITABLE
If the process cannot begin until appeals the offenders case are
concluded, that means it is not possible for the mediation to begin in Petitioners case until (at the earliest) roughly four months after the denial of certiorari in Petitioners
Filed 07/18/11 Page 10 of 31
case
which took place on June 27, 2011. Sfronian v. TIwler, 2011 WI. 1324467
(Julie 27, 201 1). 43. At the same time, it was the State of Texas that set Mr. Stromans
execution date for July 20, 2011. Thus, no matter what side one looks a this from, the State of Texas is trying to render nugutory the right to mediation. REQUEST FOR INJUNCTIVE RELIEF
44.
Plaintiff seeks injunctive relief pursuant to Tex. Civ. P. & R. Code Tit.
5, Sec. 106.002, Sec. 110.005 and other state statutes permitting such relief. 45. Defendant intends to execute Mark Strnian on July 20, 2011, at which
time Defendant will have rendered it impossible to repair the damage caused by Defendants actions. 46. The only way to allow for a meaningful resolution of this litigation is
by preserving the status qua, and enjoining the Defendant from further violating Plaintiffs legal rights. Immediate injunctive relief is therefore appropriate. CLAIMS FOR RELIEF
47.
Plaintiff asserts the following claims for relief.
DEFENDANTS HAVE VIOLATED THE LAW AND THEIR OWN REGULATIONS IN REFUSING TO ALLOW MEANINGFUL MEDIATION BETWEEN PLAINTIFF (E VICTIM) AND THE MAN WHO SHOT HIM 48. Plaintiff incorporates herein all the allegations in this complaint that
both precede and follow.

49. As a victim under Texas law, Plaintiff has a number of clear legal
rights:
Indeed, if Mr. Strtman (reasonably enough) files additionaL challenges to his conviction and sentence as has apparently happened the TDCJ rules do not even allow the process to begin then.
Filed 07/18/11 Page 11 of 31
In Texas, victims of crime have the Crime Victims Bill of Rights, created by the legislature in 1985. It has been amended and expanded during the past twenty years, and explicitly lists remedies and redress options that a victim, guardian of a victim, or close relative of a deceased victim is entitled to within the criminal justice system. Of the thirteen numbered rights, the twelfth is the right to request victim-offender mediation coordinated by the victim services division of the Texas Department of Criminal Justice. This portion of the statute was not enacted until the 77th legislative session in 2001.
...
Patrick Drake, Victim-Offender Mediation j Texas: When Eye for Eye Becomes Eye to Eye, 47 S. Tex. L. Rev. 647 (2006) (footnotes omitted). 50. The relevant statute reads as follows:
Art. 56.02. CRIME VICTIMS RIGHTS. (a) A victim, guardian of a victim , or close relative of a deceased victim is entitled to the following rights within the criminal justice system: (1) the right to receive from law enforcement agencies adequate protect ion from harm and threats of harm arising from cooperation with prosecution efforts; (2) the right to have the magistrate take the safety of the victim or his family into consideration as an element in fixing the amount of ball for the accuse d;
(3) the right, if requested, to be informed:
(A) by the attorney representing the state of relevant court procee dings, including appellate proceedings, and to be informed if those proceedings have been canceled or rescheduled prior to the event; and
(B) by an appellate court of decisions of the court, aer the decisio ns are entered but before the decisions are made public; (4) the right to be informed, when requested, by a peace officer concerning the defendants right to bail and the procedures in criminal investigations and by the district attorneys office concerning the general procedures in the crimin al justice system, including general procedures in guilty plea negotia tions and arrangements, restitution, and the appeals and parole process; (5) the right to provide pertinent information to a probation departm ent conducting a presentencing investigation concerning the impact of the offense on the victim and his family by testimony, written statement, or any other manner prior to any sentencing of the offender; (6) the right to receive information regarding compensation to victims of crime as provided by Subchapter B, including information related to the costs that may be compensated under that subchapter and the amount of compensation ,
10
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Filed 07/18/11 Page 12 of 31
eligibility for compensation, and procedures for application for compe nsation under that subchapter, the payment for a medical examination under Article 56.06 for a victim of a sexual assault, and when requested, to referra l to available social service agencies that may offer additional assistance; (7) the right to be informed, upon request, of parole procedures, to partici pate in the parole process, to be notified, if requested, of parole procee dings concerning a defendant in the victims case, to provide to the Board of Pardons and Paroles for inclusion in the defendants file information to be consid ered by the board prior to the parole of any defendant convicted of any crime subject to this subchapter, and to be notified, if requested, of the defendants release ; (8) the right to he provided with a waiting area, separate or secure from other witnesses, including the offender and relatives of the offender, before testifing in any proceeding concerning the offender; if a separate waitin g area is not available, other safeguards should be taken to minimize the victim s contact with the offender and the offenders relatives and witnesses, before and during court proceedings; (9) the right to prompt return of any property of the victim that is held by a law enforcement agency or the attorney for the state as evidence when the property is no longer required for that purpose; (10) the right to have the attorney for the state notify the emplo yer of the victim, if requested, of the necessity of the victims cooperation and testimony in a proceeding that may necessitate the absence of the victim from work for good cause; (11) the right to counseling, on request, regarding acquired immun e deficiency syndrome (AIDS) arid human irnmunodeficiency virus (HIV) infecti on and testing for acquired immune deficiency syndrome (AIDS ), human immunodeficiency virus (HIV) infection, antibodies to HIV, or infecti on with any other probable causative agent of AIDS, if the offense is an offense under Section 21.02, 21.1 l(a)(1), 22.011, or22.021, Penal Code;
(JV the right to request victim-offender mediation coordinated by the victim services division ofthe Texas Department ofCriminal Justice;
(13) the right to be informed of the uses of a victim impact statement and the staternents purpose in the criminal justice system, to complete the victim impact statement, and to have the victim impact statement considered: (A) by the attorney representing the state and the judge before sentencing or before a plea bargain agreement is accepted; and (B) by the Board of Pardons and Paroles before an inmate is released on parole; (14) to the extent provided by Articles 56.06 and 56.065, for a victim of a sexual assault, the right to a forensic medical examination if, within 96 hours of the sexual assault, the assault is reported to a law enforcement agency or a
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forensic medical examination is otherwise conducted at a health care facility; and (15) for a victim of an assault or sexual assault who is younger than 17 years of age or whose case involves family violence, as defined by Section 71.004, Family Code, the right to have the court consider the impact on the victim of a continuance requested by the defendant; if requested by the attorney representing the state or by counsel for the defendant, the court shall state on the record the reason for granting or denying the continuance.
Tex. Code Crim. Proc. 56.02(a) (emphasis supplied).

51. Given that the delay in asserting these rights is all due to Defendants
and their agents failure to inform P1aintiff there can be no assertion that the failure to conduct meaningftil mediation is the fault of anyone but Defendants. Certainly, as a victim, Plaintiff cannot be expected to know his rights, and be told he must forfeit them if he does not know of them. Rather, just as with the criminal defendants famous Miranda rights, it is the duty of those responsible for victim coordination to ensure that victims are clearly informed of their rights, so that they may assert them. 52. Even were there not a statutory basis for the right to mediation,
Defendants would still be required to proceed in a fair and non-discriminatory manner. 53. Rather, here, Defendants have made it impossible for essentially one
class of victims to benefit from mediation
those whose firm religious beliefs prompt
them to seek mediation and reconciliation in capital cases where the Defendants want to execute the prisoner. 54. In this regard, Defendants actions are illegal. Tex. Civ. P. & R. Code
Tit. 5, Sec. 106.001, provides: Sec. 106.001. PROHIBITED ACTS. (a) An officer or employee of the state or of a political subdivision of the state who is acting or purporting to act in an official capacity may not, because of a persons race, religion, color, sex, or national origin: (1) reftise to issue to the person a license, permit, or certificate;
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(2) revoke or suspend the persons license, permit, or certili.cate; (3) refuse to permit the person to use facilities open to the public and owned, operated, or managed by or on behalf of the state or a political subdivision of the state;
(4,) rfiise 10 permit (lie person to participate in a progran oiined, operated, or managed by or on behalfofthe state or a political subdivision of the state:
(5,) refitse to grant a benefit to the person; (6) impose an unreasonable burden on the person: or (7) refuse to award a contract to the person. (emphasis supplied) 55. Where there is a violation of this law, Tex. Civ. P. & R. Code Tit. 5,
Sec. 106.002, provides for injunctive relief:
Sec. 106.002. REMEDIES. (a) If a person has violated or there are reasonable grounds to believe a person is about to violate Section 106.00 1, the person aggrieved by the violation or threatened violation may sue for prevenilve relief including a permanent or temporary ii!jzmction, a restraining order, or any other order.
(b) In an action under this section, unless the state is the prevailing party, the court may award the prevailing party reasonable attorneys fees as a part of the costs. The states liability for costs is the same as that of a private person. Tex. Civ. P. & R. Code Tit. 5, Sec. 106.002 (emphasis supplied) 56. Indeed, the actions of the agents of the State of Texas and the
Defendants in this case are not merely wrong, they are potentially criminal in nature: Sec. 106.003. PENALTIES. (a) A person commits an offense if the person knowingly violates Section 106.001.
(b) An offense under this section is a misdemeanor punishable by: (1) a fine of not more than $1,000;
(2) confinement in the county jail for not more than one year; or (3) both the fine and confinement.
Tex. Civ. P. & R. Code Tit. 5, Sec. 106.003.
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57.
Plaintiff therefore has the right to injunctive relief not only ordering
the Defendants to permit the immediate initiation of mediation, but also enjoining the
Defendants and the State of Texas from executing Mark Strman until Plaintiff has had the opportunity to engage in this mediation and reconciliation.
ii.
DEFENDANTS HAVE VIOLATED PLAINTIFFS FEDERAL AND STATE CONSTTTJTIONAL RIGHTS 58. The State of Texas and all of its official arms, including the Defendant
in this case, are bound to respect Plaintiffs rights under the US Constitution. This Court is similarly required to enforce those rights. See US CONST. ART. VI, Clause 2 (This Constitution, and the Laws of the United States which shall be made in Pursuance thereof and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.). 59.
See 42 U.S.C
Defendant is under a legal duty not to violate Plaintiffs civil rights.
1983. Section 1983 provides:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceedingfor redress, except that in any action brought against a judicial officer for an act or omission taken in such officers judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. 42 U.S.C.
1983 (emphasis added).
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60.
The State of Texas and all of its official arms, including the Defendant
in this case, are bound to respect Plaintiffs rights under the Constitution of the State
of Texas. This Court is similarly required to enforce those rights. 1.

61.
PLAINTIFF IS SUFFERING DISCRIMINATION BASED ON HIS RELIGIOUS BELLEFS
Plaintiff incorporates herein all the allegations in this complaint that
both precede and follow. 62. As previously stressed, Plaintiff is strongly motivated by his religious
beliefs. Forgiveness is a long standing mechanism within many faiths, Islam being one of them, towards the healing of the soul. As a Muslim, Plaintiff is of the belief that when he forgives, or promotes mercy for, his attacker the government should no longer have a duty or a right to exact the ultimate punishment upon Mr. Stroman. 63. At the time of the trial process, in 2001-02, it was the policy of the
previous incumbent in the Office of the District Attorney in Dallas County to refuse a plea bargain to life if the victim refuses to agree to the proposal in a capital case. In another capital case returned for resentencing, the current Dallas County District Attorneys stated rationale, provided to defense counsel in writing, for seeking the death penalty was that the victims mother had rejected the defendants offer to accept a sentence of incarceration for the remainder of his natural life. While this was an inappropriate delegation of the District Attorneys constitutional duty to exercise discretion in narrowing the class of death-eligible prisoners, it is also a clear indication that the Dallas County DA treats victims with one set of beliefs very differently than victims with another set of beliefs. While the office abdicates its own authority in favor of the judgment of victims who seek vengeance, it ignores and disregards the judgment of victims whose faith leads them to seek avenues of reconciliation.
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64.
[t is also the overriding policy of the Governor of the State of Texas to
refuse clemency if the victims opposc it. 65. It Is the policy of the TDCJ to refuse mediation to those whose
religious beliefs compel them to see meaningftil mediation with the perpetrators of capital crimes, even though the victims of other (apparently equal or lesser) crimes are allowed this right. 66. This violates the Texas Constitution. Tex. Const. Art. 1,
(FREEDOM OF WORSHIP.
All men have a natural and indefeasible right to
worship Almighty God according to the dictates of their own consciences. No man shall be compelled to attend, erect or support any place of worship, or to maintain any ministry against his consent. No human authority ought, in any case whatever, to control or interfere with the rights of conscience in matters of religion, and no preference shall ever be given by law to any religious society or mode of worship. But it shall be the duty of the Legislature to pass such laws as may be necessary to
protect equally every religious denomination in the peaceable enjoyment of its own mode of public worship.). 67. provides: It also violates Texas Jaw. Tex. Civ. P. & R. Code Tit. 5, Sec. 110.001.
(a) In this chapter: (1) Free exercise of religion means an act or refusal to act that is substantially motivated by sincere religious belief. In determining whether an act or refusal to act is substantially motivated by sincere religious belief under this chapter, it is not necessary to determine that the act or refusal to act is motivated by a central part or central requirement of the persons sincere religious belieL (2) Government agency means: (A) this state or a municipality or other political subdivision of this state; and
16
Filed 07/18/11 Page 18 of 31
(13) any agency of this state or a municipality or other political subdivision of this state, including a department, bureau, board, commission, office, agency, council, or public institution of higher education. (b) In determining whether an interest is a compelling governmental interest under Section 110.003, a court shall give weight to the interpretation of compelling interest in federal case law relating to the free exercise of religion clause of the First Amendment of the United States Constitution. Sec. 110.002. APPLICATION. (a) This chapter applies to any ordinance, rule, order, decision, practice, or other exercise of governmental authority. (b) This chapter applies to an act of a government agency, in the exercise of governmental authority, granting or refusing to grant a government benefit to an individual. (c) This chapter applies to each law of this state unless the law is expressly made exempt from the application of this chapter by reference to this chapter. Tex. Civ. P. & R. Code Tit. 5, Sec. 110.002. 68. Texas law protects religious freedom:
Sec. 110.003. RELIGIOUS FREEDOM PROTECTED. (a) Subject to Subsection (b), a government agency may not substantially burden a persons free exercise of religion. (b) Subsection (a) does not apply if the government agency demonstrates that the application of the burden to the person: (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that interest. (c) A government agency that makes the demonstration required by Subsection (b) is not required to separately prove that the remedy and penalty provisions of the law, ordinance, rule, order, decision, practice, or other exercise of governmental authority that imposes the substantial burden are the least restrictive means to ensure compliance or to punish the failure to comply. Tex. Civ. P. & R. Code Tit. 5, Sec. 110.003. 69. circumstances: Sec. 110.005. REMEDIES. (a) Any person, other than a government agency, who successfully asserts a claim or defense under this chapter is entitled to recover: Texas law specifically provides for injunctive relief under these
17
Filed 07/18/11 Page 19 of 31
(I) declaratory relief under Chapter 37; (2) injunctive relief to prevent the threatened violation or continued violation; (3) compensatory damages for pecuniary and nonpec uniary losses; and
(4) reasonable attorneys fees, court costs, and other reasonable expenses incurred in bringing the action. (1,) Corn pensatory damages awarded under Subsection (a)(3) may not exceed $10,000 for each entire, distinct controversy, without regard to the number of members or other persons within a. religious group who claim injury as a result of the government agencys exercise of governmental authority. A claimant is not entitled to recover exemplary damages under this chapter.
(c) An action under this section must be brought in district court. (d) A person may not bring an action for damages or declaratory or injunctive relief against art individual, other than an action brought against an individual acting in the individuals official capacity as an officer of a government agency. (c) This chaptcr does not affect the application of Section 498.0045 or 501.008, Government Code, or Chapter 14 of this code. Tex. Civ. P. & R. Code Tit. 5, Sec. 110.005. 70. Texas law provides for accommodation, where possib le:
Sec. 110.006. NOTICE; RIGHT TO ACCOMMODATE. (a) A person may not bring an action to assert a claim under this chapte r unless, 60 days before bringing the action, the person gives written notice to the government agency by certified mail, return receipt requested:
(1) that the persons free exercise of religion is substa ntially burdened by an exercise of the government agencys governmental authority; (2) of the particular act or refusal to act that is burden ed; and (3) of the manner in which the exercise of governmental authority burdens the act or refusal to act. (b) Notwithstanding Subsection (a), a claimant may, within the 60-day period established by Subsection (a), bring an action for declaratory or injunctive relief and associated attorneys fees, court costs, and other reasonable expenses, if: (1) the exercise of governmental authority that threate ns to substantially burden the persons free exercise of religion is imminent; and
18
18
Filed 07/18/11 Page 20 of 31
(2) the person was not informed and did not otherwise have knowledge of the exercise of the governmental authority in lime to reasonably provide the notice. (c) A government agency that receives a notice under Subsection (a) may remedy the substantial burden on the persons free exercise of religion. (d) A remedy implemented by a government agency under this section: (1) may be designed to reasonably remove the substantial burden on the l,ersons free exercise of religion; (2) need not be implemented in a manner that results in an exercise of governmental authority that is the least restrictive means of furthering the governmental interest, notwithstanding any other provision of this chapter; and (3) must be narrowly tailored to remove the particular burden for which the remedy is implemented. (e) A person with respect to whom a substantial burden on the persons free exercise of religion has been cured by a remedy implemented under this scction may not bring an action under Section 110.005. (1) A person who complies with an inmate grievance system as required under Section 50 1.008, Government Code, is not required to provide a separate written notice under Subsection (a). In conjunction with the inmate grievance system, the government agency may remedy a substantial burden on the persons free exercise of religion in the manner described by, and subject to, Subsections (c), (d), and (e). (g) In dealing with a claim that a persons free exercise of religion has been substantially burdened in violation of this chapter, an inmate grievance system, including an inmate grievance system required under Section 501.008, Government Code, must provide to the person making the claim a statement of the government agencys rationale for imposing the burden, if any exists, in connection with any adverse determination made in connection with the claim. Tex. Civ. P. & R. Code Tit. 5, Sec. 110.006. 71. Under these circumstances, the timing is such that an injunction must
be issued in order to preserve the status quo. 72. Plaintiff enjoys the same rights to religious freedom under the federal
constitution and laws. See U.S. CONST. Amend. I.
19
Filed 07/18/11 Page 21 of 31
2.
PLAINntr, IS BEING DENIED PROTECTION OF THE LAW
THE
EQUAL
73.
both precede arid follow.

74. Plaintiff has the right to equal rights and equal protection of the laws
under both the state and federal constitution. See Tex. Const. Art. I,
(EQUAL
RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.); Tex. Const. Art. I,
3a
(EQUALITY
UNDER THE LAW. Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.); U.S. CONST. Amend. V, XIV. 75. Defendants deny Plaintiff effective mediation where those who are the
victims of lesser crimes, or crimes that are perhaps essentially identical in all respects but for Defendants plan to inflict capital punishment on the perpetrator, enjoy this right.
3. 76.
THE RIGHT TO FREEDOM OF ASSOCIATION
both precede and follow. 77. Plaintiff enjoys the right under the First Amendment to the United
States Constitution to freedom of association. See US CONST. AMEND. I (Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the Government for a
redress of grievances.).
20
20
Filed 07/18/11 Page 22 of 31
78.
This has been construed, and rightly so, to include the right to Freedom
of Association. Such a right cannot be violated on a discriminatory basis. 79. In this case, while Defendant allows a large number of people to visit
Mark Sirman and associate with him, including significant numbers of foreign nationals from countries such as Britain and Germany, Plaintiff is not allowed to meet with him. Indeed, Defendant purports to impose limits on Mark StrUmans right even to write to Plaintiff. Meanwhile, CBS News and large numbers of oilier media outlets are also allowed to meet with Mark Strman. 80. These discriminatory rules are vague, arbitrary and wrong.
4.
81.
FREEDOM FROM A BILL OF ATADER
both precede and follow. 82. Plaintiff has the right to freedom from being singled out for
punishment. See US CONST. ART. 1, Section 9 (No Bill of Attainder or ex post facto Law shall be passed.); ART. I, Section 10, Clause I (No State shall
...
pass
any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.). See also Tex. Const. Art. 1,
16 (BILLS
OF ATIA[NDER; EX POST FACTO OR RETROACTiVE LAWS; iMPAIRiNG OBLIGATION OF CONTRACTS. No bill of attainder, ex post facto law, retroactive
law, or any law impairing the obligation of contracts, shall be made.)

83. Defendants actions operate as a bill of attainder, singling out a
particular class of people for arbitrary punishment without any due process.
5.
PLAINTIFF HAS BEEN DENIED THE PRIVTLEGES AND IMMUNiTIES 01? TEXAS CITIZENS
84.
both precede and follow.
21
Filed 07/18/11 Page 23 of 31
85.
Plaintiff has the right to enjoy the Privileges and immunities of other
citizens. See US CONST. ART, IL, Section 2, Clause I (The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.). While other citizens (and, indeed, even non-citizens) are allowed to meet with Mark Strman, Plaintiff is not. While other victims are permitted meaningfi.il mediation, Plaintiff is not. 6. 86. PLAINTIFF HAS BEEN DENIED DUE PROCESS OP LAW
both precede and follow. 87. Plaintiff has a liberty interest in his relationship with Mark Strman,
and his right to associate with him, which cannot be taken from him arbitrarily, in an
inequitable fashion, or without due process of law. See US CONST. AMEND. V (No person shall
...
be deprived of life, liberty, or property, without due process of
law....); US CONST. AMEND. XIV Section 1 (MI persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shalL any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.); see also Tex. Const. Art. 1, COURSE OF LAW. 19 (DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE
No citizen of this State shall be deprived of life, liberty,
property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land).
22
22
Filed 07/18/11 Page 24 of 31
88.
In this case, Plaintiff has been allowed no due process, and Defendant
is discriminating against him in a way that is invidious, and based purely on the ground that he is a victim. 7. 89. PLAINTIFF IS BEING PUNISHED UNCONSTiTUTIONAL MANNER IN AN
both precede and follow. 90. Plaintiff will suffer a great deal if he is not permitted a fair opportunity
to come to terms with the fact that he was shot in the face, and could have died, as a result of Mark Strrnans attack on him. In arbitrarily denying him the right to
attempt to reach some degree of catharsis on this point, Defendant is inflicting cruel and unusual punishment on him, and without due process. US CONST. AMEND. VIII (Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.); Tex. Const. Art. I,
13 (EXCESSIVE BAlL OR
F[NES; CRUEL AND UNUSUAL PUNISHMENT; REMEDY BY DUE COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.) 8. 91.
PLAINTIFFS RIGHT TO RESPECT AND DIGNiTY
both precede and follow. 92. Nothing in the US or Texas Constitution purports to take away
Petitioners right, as a victim, to seek positive mediation with the perpetrator of the crime against him, Mark Strman. As a result, this right inures to him at least as powerfully, and perhaps more powerfully, then the right to privacy. See US. CONST.
23
23
Filed 07/18/11 Page 25 of 31
AMEND. DC (The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.); see also US CONST. AMEND. X (The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people.).
Ill.
DEFENDANTS HAVE FAILED TO RESPECT PLAINTiFFS DIGNITY AND HIS RIGHTS UNDER THE TEXAS BILL OF RIGHTS
93. Plaintiff incorporates herein all the allegations in this complaint that
both precede and follow. 94. Tex. Const. Art. 1, 30 sets out the rights of crime victims: (a) A crime victim has the
Sec. 30. RiGHTS OF CRIME ViCTIMS. following rights:
(1) the right to be treated with fairness and with respect for the iicthn r dignity and privacy throughout the criminaljusiice process; and
(2) the right to be reasonably protected from the accused throughout the criminal justice process. (b) On the request of a crime victim, the crime victim has the following rights: (I) the right to notification of court proceedings; (2) the right to be present at all public court proceedings related to the offense, unless the victim is to testif and the court determines that the victims testimony would be materially affected if the victim hears other testimony at the trial; (3) the right to confer with a representative of the prosecutors office; (4) the right to restitution; and
(5) the right to informatIon about the conviction, sentence, imprisonment, and release of the accused.
(Added Nov. 7, 1989) (emphasis supplied)
95.
Plaintiff has been and continues to be, denied his rights under the
Texas Constitution.
24
24
Filed 07/18/11 Page 26 of 31
CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE PLAINTIFF respectfully requests that (his Court enter an order as follows: a. requiring that the defendant respond under an expedited schedule; b. enjoining the defendant from carrying out (he execution of Mark Strman and entering an order preserving the stalits quo until such time as the complaint may be resolved; c. ordering discovery under an expedited schedule; d. ordering a trial by jury of the merits of the cause; e. granting Plaintiff damages in the sum of $[] in compensatory damages for the violation of his rigbts; f granting Plaintiff damages in the sum of
$11
in punitive damages for the
violation of his rights; g. granting an injunction requiring that the Defendants permit him a
meaningful opportunity for mediation and reconciliation; h. granting such other equitable relief as the Court may deem just and right.
25
25

Jul 1311 04:llp
Filed 07/18/11 Page 27 of 31
This j day ofJuly, 2011.
-:--Th
TChurrum Wahid Wahid Vizcalno LL.P 6221 W. Atlantic Blvd iviargate Fl 33063 (305) 444-4303 (305) 444-4302 www.wvmlawfinmcom
+ 4 Counsel to Rais Bhuiyun Mr. Vahid is a member of the Bar of the State of Florida, and a Motion to 4ppear Pro Hac Vice accompanies this law suiL Mr. Wahid has submitted the required affidavit to the Texas Bar Examiners. However, the non-resident acknowledgment letter will not be issued untiL the application has been submitted with a causc number for this action, so it cannot be submitted simultaneousLy with the suit Dana1in Reccr SBOT 00792935 2307 Union Houston, Texas 77(107 Office: (713) 8694722 Mobile: (832) 969-0444 Fax: (713)880-3811 Local co-counsel for Mr. l3huyian+ -Counsel axe acting pro bonn pzcblico on this case, given the importance of the issues.
26
26
Filed 07/18/11 Page 28 of 31
CERTIFICATE 01? SERVICE

[hereby certify that I have caused the foregoing pleading to be served on the defendants, via
hand delivery and/or overnight delivery to: Governor Rick Perry Office of the Governor State insurance Building 1100 San Jacinto Austin, Texas 78701 l3rad Livingslon Texas Department of Criminal Justice Executive Director 209 West 14th Street, 5th Floor, Price Daniel Building, Austin, Texas 78701 Angie McCown, TDCJ Victim Services Division, 8712 Shoal Creek Blvd, Ste 265, Austin, Texas 78757 Rissie L. Owens Tcxas Board of Pardons and Paroles 209 West 14th Street, Suite 500, Austin, Texas 78701. This 13th day of July 201 I.
DanaLynn Recer
27
Filed 07/18/11 Page 29 of 31

11July14 P2:54 Amalla Rodrlguez-Mendoz Distii Clerk Tra1e Dlstr1
Flied
IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS Trial Court Cause No. D-I-GN-1 1-002118
D-1-GN-ll-00211B

V.
RICK PERRY, GOVERI4OR, State Of Texas, BRAD LIVINGSTON, EXECUTIVE DIRECTOR Texas Department Of Criminal Justice, ANGIE McCOWN, DiRECTOR TDCJ Victim Services Division Defendants.
NOTICE OF HEARING Please take notice that an emergency hearing has been set regarding the injunction to the execution of Mark Stroman as requested by the Plaintiff. This hearing will be heard on Monday, July 18, 2011 at 3:00 p.m. in the 353rd Travis County District Court before Judge Sulak. Dated: July 14, 2011
Khurrum Wahid Wahid Vizcaino LLP 6221 W. Atlantic Blvd Margate Fl 33063 (305) 444-4303 (305)444-4302 www.wvmlawfirm.com
28
Filed 07/18/11 Page 30 of 31
Counsel to Rais Bhuiyan+ Mr. Wahid is a member of the Bar of the State of Florida, and a Motion to Appear Pro Ilac Vice accompanies this law suit. Mr. Wahid has submitted the required affidavit to the Texas Bar Examiners. However, the non-resident acknowledgment letter will not be issued until the application has been submitted with a cause number for this action, so it cannot be submitted simultaneously with the suit.
*
Danalynn Recer SBOT 00792935 2307 Union Houston, Texas 77007 Office: (713) 8694722 Mobile: (832) 969-0444 Fax: (713)880-3811 Local co-counsel for Mr. Bhuyian+ +Counsel are acting pro bono publico on this case, given the importance of the issues.
29
Filed 07/18/11 Page 31 of 31
CERTIFICATE OF SERVICE
I hcrcby certify that I have caused the foregoing pleading to be served on the defendants, via hand delivery and/or overnight delivery to: Governor Rick Perry Office of the Governor State Insurance Building 1100 San Jacinto Austin, Texas 78701 Brad Livingston Texas Department of Criminal Justice Executive Director 209 West 14th Street, 5th Floor, Price Daniel Building, Austin, Texas 78701 Angie McCown, TDCJ Victim Services Division, 8712 Shoal Creek Blvd, Ste 265, Austin, Tcxas 78757 Rissie L. Owens Texas Board of Pardons and Paroles 209 West 14th Street, Suite 500, Austin, Texas 78701. This 14th day of July 2011.
Danalynn Recer
30
___________
ENTHE INSTRICT COURT OF TRAVIS COUNTY, TEXAS
Trial Court Cause No.

V.
RICK PERRY, GOVERNOR, State Of Texas, BRAD LJV1NGSTON, EXECUTIVE DIRECTOR Texas Department Of Criminal Justice, ANGIE McCOWN, DIRECTOR TDCJ Victim Services Division RISSIE L. OWENS, Member Texas Board of Pardons and Paroles Defendants.
MOTION FOR ADMISSION OF NON-RESIDENT COUNSEL
NOW INTO COURT through undersigned counsel comes Rais Bhuiyan to move this Court
to permit the appearance of non-resident attorney Khurrum Wahid as counsel in this cause of action.
In
support
of this motion, undersigned counsel states as follows:
1. Undersigned counsel will act as local counsel alongside non-resident attorney

Khurrurn Wahid, of Florida. 2. Mr. Wahid is acting in compliance with the requirements of Texas Government Code Section 82.0361 concerning submission of an application and payment of a non-resident attorney fee to the Texas Board of Law Examiners, a process that cannot be completed until assignment of a cause number to the law suit. He has also filed a Motion or Leave to Appear Pro Hue Vice
31
with this Court. as required by Rule XIX(a of the Rules Governing Admission I) the Bar ?t
Texu.c (hereinaller Rule XIX).

5. Pursuant to subsection (b) of Rule XIX. undersigned counsel moves this Court to allow Mr. Wahid to appear in the cause of Ruis l3huiyan
Periy cial., and states that 1 know Mr.
Wahid to be a reputable attorney and recommend that he be granted permission appear to on behalf of Mr. Bhuiyan in proceedings before this Court. 6. Mr. Wahid is aware of the ethical standards required of attorneys licensed in Texas and has sworn to observe those standards. Mr. Wahid does not appear freque ntly in Texas courts and has never engaged in the unauthorized practice of law. Thus, no good cause exists for denying his motion to appear before this court on a pro hac vice basis. WHEREFORE. Mr. Bhuiyan prays that this Court will grant his Motion for Admis sion of Non-Resident Counsel and pemiit Khurrum Wahid to appear before this Court.
Respectfully Submitted,
Danalynn Recer TX Bar No. 00792935 2307 Union St. Houston, TX 77007 Tel: (713) 869-4722 Fax: (713) 880-3811
32
CERTIFICATE OF SERVICE
I hereby certify that I have caused the foregoing pleading to be served on the defendants. via hand delivery and/or overnight delivery: Governor Rick Perry Ollice of the Governor State Insurance Building 1100 San Jacinto Austin, Texas 78701 Brad Livingston Texas Department of Criminal Justice Executive Director 209 West 14th Street, 5th Floor, Price Daniel Building, Austin, Texas 78701 Angie McCown. TDCJ Victim Services Division. 8712 Shoal Creek Blvd. Ste 265, Austin, Texas 78757 Rissie L. Owens Texas Board of Pardons and Paroles 209 West 14th Street, Suite 500, Austin, Texas 78701. This day of July 2011.
Danalynn Recer
33
IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS Trial Court Cause No. RAIS BHUIYAN, Plaintiff,
V.
RICK PERRY, GOVERNOR, State Of Texas, BRAD LIVINGSTON, EXECUTIVE DIRECTOR Texas Department Of Criminal Justice, ANGIE McCOWN, DIRECTOR TDCJ Victim Services Division R1SSIE L. OWENS, Member Texas Board of Pardons and Paroles Defendants.
ORDER Wherefore. premises considered, Mr. Bhuiyans Motion for Admission of Non-Resident
Counsel is Hereby GRANTED.
Signedthis
dayof
.2011.
Travis County District Court Judge
34

....
i.,
vt.
IN THE I)ISTRICT COURT OF TRAVIS COUNTY, TEXAS frial Court Cause No. RAIS BI{UIYAN, Plaintiff,
V.
RICK PERRY, GOVERNOR, State Of Texas, BRAD LIVINGSTON, EXECUTIVE DIRECTOR Texas Department Of Criminal Justice, ANGIE McCOWN, DIRECTOR TDCJ Victim Services Division RISSIE L OWENS, Member Texas Board of Pardons aod Paroles Defendants.
MOTION TO APPEAR PRO HAC VICE NOW COMES, Khurrum Wahid, a non-resident attorney, and mspectfully requests permission to appear in this Honorable Court Pro Hac Vice on behalf of Rais Bhuiyan as reason thcrcfore, and upon my oath,] state: 1. T have complied with the requirements of Texas Government Code Section 82.0361 concerning payment of a non-resident attorney fee a the Board of Law Examiners. See attached Non Resident Acknowledgment Letter dated July 13, 2011. Pursuant to Rule XIX(a) of the Rules Governing Athnis.siorz to the Bar of Texas, (hereinafter Rule )UX), I now make this written, sworn motion seeking permission to appear before this court in cause of Rais Bhuiycin. 2. My primary office is 6221 W. Atlantic Blvd, Pompano Beach Fl, 33063.
35

Jul Ii
flu4:flp
3. During Mr. Bhuiyans thai, I will be associated with Danalyim Recer, a practicing
lawyer with offices at 2307 Union St., Houston, Texas 77007, phone (713)869-4722, fax
(7i 3)880-3811, and reachable through her offices. Ms. Recer is a member in good standing of the State Bar of Texas, bar number #00792935. Ms. Recers Motion for Admission ofNon Resident Co-counsel is attached as required by Rule XDC(b). 4. 1 have not appeared nor sought leave to appear in any other Texas court within the past two years. 5. 1 am an active member in good standing of the State Bars of Flonda and New York as well as the federal courts of Southern District of Florida, Middle District of Florida, Southern District ofNew York, and the Eastern DLstrict ofNew York, the U.S. Court of Appeals for the 11th Circuit and the U.S. Court of Appeals lbr the 2nd Circuit 6. 1 have not been the subject of any disciplinary action by the bar or courts of any jurisdiction during the last five years. 7. 1 have not been denied admission to any state or federal court during the last five years. 8. 1 am familiar with the State Bar Act, the State Bar Rules, and the Texas Disciplinary Rules of Professional Conduct governing the conduct of members of the State Bar of Texas, and will at all times abide by and comply with the same so long as Mr. Bhuiyans cause is pending and I have not withdrawn as counsel. 9. 1 have paid the non-resident attorney application fee to the Board of Law Examiners and attach proof of payment as required by Rule X]X(c).
36

Jul 1311 O4llp
WHEREFORE, based on the foregoing, Khuxruni Wahid respecifluly prays this court will allow me to appcar in this matter Pro Ilac Vice on behalf of Rais Bhuiyan and for such other and further relief that may be awarded at law or in cquity. Signed under the pains and penalties of perjury. Respectfully Submitted,
IGiurrum Wahid Wabid Viwaino LU 6221 W. Atlantic Blvd Pompano Beach, FL 33063 (305)4444303 (305)4.44-4302
37

5 p.
CERTIFICATE OF SI3RVICE I hereby certify that I have caused the foregoing pleadin g to be served on the State of in Texas, this 13th day of July 2O 1.
hurrum Wahid Wahid Vbcaino LLP 6221 W. Atlantic Blvd Pompano Beach, FL.. 33063 (305)444-4303 (305)444-4302
38
__________________________________________ ________________
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Filed 07/18/11 Page 10 of 37

FUed 11 July 14 A11:46 Amelia Rodrlguez-Mendoz Dlsti1 Clark Trala Dlatilct D-1-GN-11-002118
IN TIlE DISTRICT COURT OF TRAVIS COUNTY, TEXAS Trial Court Cause No. D-I-GN-ll-002118
RAIS BHUrYAN, Plaintiff,

V.
RICK PERRY, GOVERNOR, State Of Texas, BRAD LIVINGSTON, EXECUTIVE DIRECTOR Texas Department Of Criminal Justice, ANGIE McCOWN, DIRECTOR TDCJ Victim Services Division Defendants.
TO THE HONORABLE DISTRICT COURT IN AND FOR TRAVIS COUNTY: MEMORANDUM OF LAW PLAINTIFF has filed a complaint seeking injunctive relief, and such other equitable relief as the Court deems fit and just. He also files this memorandum of law in support of his complaint. THE RIGHTS OF THE VICTIM ARE NOW RECOGNIZED SUCH THAT THEY SHOULD BE UNIVERSALLY RESPECTED The rights of the victims of crime have been recognized in all fifty states, making victims participants, rather than mere witnesses, to the criminal justice system. Texas has enacted a constitutional amendment on the subject. Tex. Const. art. 1, 30. AlL the other 49 states either have enshrined this in their constitutions, or on t
Ala. Const. Amend. No. 557; Alaska Const. art. 1, 24; Ariz. Coust. art. II, 2.1; Cal. Const. art. 1, 28; Cob. Const. art. II., 16a; Conn. Const. art. 1, 8; FIa. Const.
40
Filed 07/18/11 Page 11 of 37
their stutute books. The provisions passed with overwhelming popular support. 2 Paul G. Cassell, Recognizing Victi,ns in the Federal Rules of Crinzinal Procedure: Proposed An,endme,,ts in Light of the Crime Victinis Rights Act, 2005 B.U.U. L. Rev. 835 (2005). The move towards recognizing victims rights has come about primarily in the last quarter century, representing a shift back towards the way that the judicial system used to operate when the United States was founded, and for some time afterwards. The earliest criminal prosecutions were largely private proceedings through which a victim sought retribution against and restitution from the perpetrator of the crime. Peggy M. Tobolowsky. Victim Participation in the crinii,,al Justice Process: Fifteen Years After the President y Task Force on Victims of rf,ne, 25 Crim. & Civil Confinement 21, 21 (1999), citing AS. DIAMOND, PRiMITIVE LAW 277-330 (2d ed. 1950). iie formalization of the law was designed to end the blood feuds that plagued early resolution of wrongs. Nevertheless, it was not very long ago that almost all criminal prosecutions were initiated
and ended by the victim of the crime:
in England, the legal system on which the American justice system is most closely based, wide authorization of private (i.e., victim) initiation and conduct of criminal prosecution existed until the nineteenth century, as well as public or governmental criminal prosecution. *** Although private citizens theoretically retain a right to initiate and conduct prosecutions for many crimes, this right is rarely exercised and is generally limited to cases involving commercial or business offenses or very minor crimes.
art. 1, 16(b); Ill. Const. art. I, 8.1; Idaho Const. art. I, 22; md. Const. art. 1, 13(b); Kan. Const. art. 15, 15; La. Const. art. I, 13; Md. Cousti. Declaration of Rights, art. 47; Mich. Const. art. 1, 24; Miss. Const. art. 3, 26a; Mo. Const. art. I, 32; Neb. Coust. art I, 28; Nev. Const. art. 1, 8; N.J. Const. art. I, 22; N.M. Const. art. 11, 24; Ohio Const. art. I, 10A Okia. Const. art. II, 34; Or. Const. art. 1, 42; RI. Const. art. 1, 23; S.C. Xonst. Art. I, 24(B); Tenn. Const. art. 1, 35; Utah Const. art. 1, 28; Va. Consi. art. I, 8-A; Wash. Const. art. 1, 25; Wis. Const. art. I, 25.
2
See the discussion below.
41
Filed 07/18/11 Page 12 of 37
Tobolowsky. Victim Participation, 25 Crirn. & Civil Confinement at 24 n. 16 (noting that in vanous other European countries the victim still maintains the right of prosecution). Even today, private prosecutors are permitted in some U.S. states. 1L at 32 n. 48 (Some states even authorize limited forms of private prosecution or private assistance in public prosecutions, approaches endorsed by some commentators.). 3 Indeed, there remain some areas of the law where the private party continues to be the one who actually brings the criminal action, and while the victim cannot be the only party to such proceedings, the victim can play a central role. 4 The trend away from private involvement in criminal prosecutions caine about
primarily as a result of the perception that some private prosecutions were corrupt.
The Twentieth Century initially saw a strong swing away from such proceedings, to the extent that the victim became almost forgotten: Citing 725 ILL. COMP. STAT. ANN. 120/4.5 (West Supp. 1998); LA. REV. STAT. ANN. 46:1844 (West Pamp. 1998); Cardenas, supra note 3, at 372-98; Gittler, supra note 25, at 150-63, 168-71; Abraham S. Goldstein, Defining the Role of the Victim in criminal Prosecution, 52 MISS. Li. 515, 547-61 (1982); Ellen Yarosbevsky, Balancing Victims Rights and Vigorous Advocacy for the Defendant, 1989 ANN. SURV. AM. L. 135, 145-46 (1989). See Polo Fashions Inc. v. Stock Buyers mt 7 Inc. 760 698, 704 (6 Cir. 1985) (If the United States Attorney should decline to prosecute upon request, then the district court may appoint one or more disinterested attorneys to do so. In that event, again, counsel for an interested party may be appointed to assist. However, in this circuit an attorney for a party in underlying litigation may not conduct criminal contempt proceedings as sole or primary counsel.); cf Richmond Black Police Qffiers Ass ii v. City of Richmond, 548 F.2d 123, 129 Cir. 1977); Roberts v. Webster, 776 F.2d 607, 612 u6 (6 Cir. 1985) (allowing plaintiffs counsel to prosecute the contempt Mr. Rogers, who sought to cause the Court to hold Mr. Webster in civil contempt, had the burden of establishing that Mr. Webster had disobeyed the orders of the District Court); Hubbard v. Fleet Mortgage Co., 810 F.2d 778, 781 (8 Cir. 1987) (per curiam) (no impropriety having civil counsel deal with contempt procedure); United States v. Crawford Enter Inc., 643 F.Supp. 370, 380 (S.D. Tex. 1986) (finding it entirely proper for private attorney involved in the civil action to prosecutor criminal contempt proceeding), affd in part, Petroleos Mexicanos v. Craiford Enter. th 5 Inc., 826 F.2d 392, 399 n.12 ( Cir. 1987); but see Young v. United States, 481 U.S. 787, 107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987) (disapproving the use of private attorneys related to the litigation to prosecute criminal contempt).
47
Filed 07/18/11 Page 13 of 37
The criminal justice system has long ftinctioned on the assumption that crime victims should behave like good Victorian children--seen but not heard. The Crime Victim& Rights Act sought to change this by making victims independent participants in the criminal justice process. Kenna v. United States District court, 435 F.3d 101 1, 1013
1h 9 (
Cir. 2006), citing
Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims Rights Act, Pub. L. No. 108-405,
101-104, 118 Slat. 2260, 2261-
65 (2004) (codified at 18 U.S.C.
3771).
Obviously society must excise corruption from the system of justice; it may well be that society should discourage the cycle of revenge; but there was never any room for the criticism of victims who were interested in restorative justice, or who advocated compassion. Ironically, it is these victims who have now lost any voice in the judicial process. H. PLAINTIFF, AS A MUSLIM, WISHES TO DO EVERYTHING POSSIBLE TOWARDS RECONCILING MUSLIMS AND OTHER AMERICANS, WHICH lIE FEELS HAS BEEN MADE ALL THE MORE IMPORTANT BY THE HATRED SPAWNED BY SOME IN RECENT YEARS Plaintiff is a Muslim. His family heralds from Bangladesh. When he
committed his crimes against Plaintiff and the other two victims, Mark Strman was a racist. Racism is rooted in prejudice; prejudice is a word that comes from pre-judging people
essentially, from ignorance. Plaintiff is gratified that Mark Strman appears
to have learned some lessons from the crime that he committed. Plaintiff hopes that Mark Strman can learn further lessons, and also help teach them to others who come from the same sad background of ignorance. The first lesson that might come as a surprise to many people is that Islamic law does not call for mandatory killing of everyone who commits murder, or the chopping
Filed 07/18/11 Page 14 of 37
off of hands at Lhe first opportunity. condemned, mercy is vigorously upheld:
Rather, while murder is obviously strongly
...lfanyone kills a it would be as ifhe killed all pcople.Anclfunvone scnes a it iiould he as if he saved the l4fe ofall people
...
Quran 5:32. When it comes to the forgiveness of the killer, the translations ol the Quran may read slightly differently. but the message is the same: 5:45 [Translation by Yusuf Au] We ordained therein for them: Life for life, eye for eye, nose or nose, ear for ear, tooth for tooth, and wounds equal for equal. But f any one remUs the retaliation by way of charity, it is an act ofatoneinent for himsef: And if any fail to judge by (the light of) what Allah hath revealed, they are no better than wrong-doers. 5:45 [Translation by Picklall] And We prescribed for them therein: The life for the life, and the eye for the eye, and the nose for the nose, and the ear for the ear, and the tooth for the tooth, and for wounds retaliation. But whoso forgoeth fun the way of charity ii shall be expiatio,i for him. Whoso judgeth not by that which Allah bath revealed: such are wrongdoers. 42:40 [Translation by M Asad] But [remember that an attempt at] requiting evil may, too, become an evil: hence, whoever pardons [his foe] and makes peace, his reward rests with God for, verily, He does not love evildoers.
-
42:40 Translation by Yusuf Au] The recompense for an injury is an injury equal thereto (in degree): but if a person forgives and makes reconciliation, his reward is due from Allah, for Allah loveth not those who do wrong.
It is therefore central to Islam in this case
and to the religious beliefs that drives Plaintiff It might be
that a faithful Muslim should try to exercise mercy.
compared to the admonition in the Bible, Blessed are the merciful for they shall obtain mercy. Matthew 5:vii. Under one interpretation, this means that if one does not show mercy, one cannot expect to receive it. Perhaps it has been true in Christian society at various times, but the process of showing mercy is more integrated into the Islamic legal tradition today than it is in many Western legal system. Divat is defined as the amount of money that a 5
44
Filed 07/18/11 Page 15 of 37
perpetrator of an offense must pay to (he victim or his fanilly in
COmpensatiOn
for the
crime. An offer of cilyal might be accepted by the victim, or it might not, if it is. then
the crime is forgiven. A form of dfyai existed in Arabia before Islam, but it was
formalized by the Islamic tradition. However, today, a victim can express the same
form of forgiveness with or without the payment of an actual sum of money. 5

There are sonic crimes that were considered particularly threatening to the
fabric of a nation. These are called Fasad-Fil-Arz, which technically means
Hspreading mischief in the land and is interpreted to mean those crimes that affect the community as a whole, and destabilize the society. Murder might be one;
terrorism another. Even if a Diyat application has been submitted, in such cases the
court is empowered to rule that Fasad-Fil-Arz applies, in which case the accused may
be convicted and sentenced. However, crucially, the court cannot condemn the accused to death, only to a maximum term of years. 6 In Islam, then, the victim is hugely respected. This has not been Plaintiffs experience of the judicial process in Texas to date. Plaintiff hopes that his work for reconciliation in this case may help educate and reconcile those of different faiths, and may also persuade those in political power to adopt a compassionate approach
that is similar to that described above.
A typical example of this may be seen in the law of Pakistan. See Pakistan Penal Code Section 311 (if the court considers that the principle of Fasad-Fil-Arz applies, or if all the heirs do not waive the right to Qisas, the court can sentence a person to 14 years of imprisonment; however, ifjust one heir waives Qisas, an execution cannot be carried out).
6
In addition to expressing mercy, this tradition focuses attention on the fallibility of human nature, and the possibility of error in the legal system. The Quran expresses strong concern at the dangers of venality in the justice system. While murder is listed as the second greatest sin, to make a false statement, or to give a false witness is listed soon after. Hadith of Sahii Bukhari, Volume 9, Book 83, Number 10. Furthermore, Islamic law imposes rigorous rules on the number, nature and reliability of witnesses whose testimony is meant to support a capital conviction.
Filed 07/18/11 Page 16 of 37
III
TIlE VICTIM hAS TIlE RIGhT TO SEEK INJUNCTIVE RELIEF There is no question that a victim may seek injunctive relief where the State of Texas is violating his rights. Indeed, two of the statutes providing lbr the rights of victims provide an explicit injunctive remedy. See Tex. Civ. P. & R. Code Tit. 5, Sec. 106.002, Sec. 110.005. This should come as no surprise. Victims have been allowed to bring writs of mandamus to enforce their rights. Sec Kenna v. United States District Court, 435 F.3d 1011, 1018
th 9 (
Cir. 2006) (We grant the petition for writ of mandamus and hold that
the district court erred in refusing to allow Kenna and other victims to speak at Zvi Leichners sentencing hearing.); Sawn v. WindaIl, 912 P.2d 1384, 1397 (D. Cola. 1996) (allowing mandamus review by victim); State ex reh Beach v Norbiad, 781 P.2d 349, 350 (Or. 1989) (allowing mandamus review where victim challenged order allowing access to victims homel; Melissa J v. Superior Court, 237 Cal. Rptr. 5 (CaL Ct. App. 1987) (allowing mandamus review where victim was not given an opportunity to be heard in the trial court). 7 Victims have been allowed to bring writs of prohibition to enforce their rights. State ex rel. Miller
i.
Smith, 285 S.E.2d 500, 505-07 (W.Va. 1981) (writ granted to
prevent prosecutor from interfering with victims access to grand jury where victim was trying to complain against two police officers). Victims have brought writs of certiorari. Ford v. State, 829 So.2d 946 (Fla. DCA 4 2002) (writ granted where the This has frequently been done in Texas. See Stale ex reh Holmes i Landford, 764 S.W.2d 593, 594 (Tex. Ct. App. 14 Dist. 1989) (court had no jurisdiction to order mental health evaluation of the victim, which would be to force a complaining witness to submit to such an invasion of her right to privacy); see also In re Robinson, 116 S.W.3d 115, 118 (Tex. Ct. App. 14 Dist. 2002) (trial court had no authority to force a complaining witness to submit to such an invasion of her right to privacy); Torres v. Stale, 2009 Tex. App. LEXIS 8100, *25 (Tex. Ct App. 14 Dist. 2009) (on privacy grounds, a court cannot order a child witness in a criminal prosecution to undergo a psychological examination); Tzdlos v. Slate, 1991 Tex. App. LEXIS 1732, *8 Tex. Ct App. 14 Dist. 1991).
46
Filed 07/18/11 Page 17 of 37
victim was denied the right to know of plea agreement or to he present at sentencin g); &ate IIe.ct, 320 N.W.2d 570, 574-75 (Iow a 1982) (reviewing petition, though ultimately finding that petitioner did not fit the statutory definition of victim). lixus, there can be no dispute that this Court has jurisdiction to issue the injunctive relief sought. Obviously, Plain tiffs legal rights cannot be respected if the Defendants kill Mark Strmnn next th week, on July 20 His execution mus t be enjoined pending resolution of this case . Furthermore, the Defendants must be ordered to allow mediation, to allow Plain tiff to appear in person before the Board of Pardons and Parole, and to respect the other rights discussed in his complaint and below.
.
IV.
DEFENDANTS HAVE NEVER GIVEN PLAINTIFFS NOTICE OF ILLS RIGHTS AS A VICTIM
The State of Texas and its employe es cannot violate the victims rights laws , and think that they can just ignore Plain tiff when he complains. At the dawn of this Nation, in Marburyi Madison, 5 U.S. 137, 163, 2 L.Ed. 60 (1803), Justice Mars hall wrote that [tjhe government of the Unit ed Stales has been emphatically termed a government of laws, and not of men . It will certainly cease to deserve this high appellation if the laws furnish no remedy for a violation of a vested legal right. A century and a quarter later, Justice Bran deis continued along this theme in his famous Ohnstead dissent: In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or ill, it teaches the whole people by example. Crime is contagious. If the government becomes the lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.
Olnistead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).
47
Filed 07/18/11 Page 18 of 37
The purpose of the victims rights provisions in the bw is to provide precise ly the assistance and rehabilitation discussed in the complaint, and below. But there can be no meaningful right if the person possessing (hat right is not told about it. This is
the essence of due process. See 150 Cong. Rec. S 10911 (daily ed. Oct. 9, 2004)
(statement of Sen. Kyl) (Of course, fairness [to victims] includes the notion of due process.). Due process requires that parties whose tights are to be affecte are d entitled to be heard and, in order that they may enjoy that right, they must first be notified.
Fuentes v. Sheiin, 407 U.S. 67, 80 (1972), quoting, Baldwin v. Hale, 68 U.S. 223, 233
(1963). To meet the minimum requirements of due process, such notice must be
meaningful. Mullane v. central Hanover Bank Tr. Co., 339 U.S. 306, 313 (1950) (to
satisfy due process, notice must be reasonably calcula ted, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.). One of the rights that victims have is to be given notice of those rights. See, e.g., Tex. Code Crirn. Proc. Ann. art. 56.08(b) (Vernon 2004) (requir ing prosecutor to give victim notice of court proceedings). 8 Even where there exists no specific
See, e.g., Ala. Code 15-23-62(8) (2000) (requiring law enforcement officer s to give victims imtial description of their rights and the name and telepho ne number of the office of the prosecuting attorney to contact for further information); Ariz. Rev. Stat. 13-4409 (2001) (requiring prosecutor to provide notice to victim of criminal proceedings; Conn. Gen. Stat. Ann. 51 -286c (2000) (requiring prosec utor to notify victim of any judicial proceedings related to the case); Del. Code Ann. tit. 11, 9411 (2001) (requiring Attorney General to provide information to victim includi ng notice of the scheduling of court proceedings and changes including trial date, case review and sentencing hearings); Ga. Code Ann. 17-17-8(b) (2004) (requiring prosec utor where possible to give victim prompt advance notification of any schedu led court proceedings); Ky. Rev. Stat. Ann. 421.500.5 (LexisNexis 1992) (requiring prosecutor to provide victim prompt notification, if possible, of judicial procee dings relating to the case); Me. Rev. Stat. Ann. tit. 15, 6101 (2003) (requiring prosec utor to provide victims of certain crimes notice of any plea agreement and of trial date); Mass. Gen. Laws Ann. cli. 258B, 3 (West 2004) (requiring prosecutor give to victims 9
4R
Filed 07/18/11 Page 19 of 37
st.atutory duty imposed on the court, or where the prosecutor proves incapable of abiding by his statutory duty, the courts have taken it upon themselves to provide the
necessary notice. See United States 2005) (1
now i.
Turner, 367 F.Supp.2d 319, 320 (E.D.N.Y.
direct the government to provide the court with sufficient infonnation
about the victims in this case to fulfill its independent obligation to ensure that those victims are afforded their rights. That information must include the name and contact information For each victim, or victims surrogate or lawful
representative).
While nothing in the law required the Court to take action on behalf of the victims, the Court in Turner was clearly upset that the prosecutor had not fulfilled his duty towards the victims: When it became apparent that the alleged victims here had not been given specific notice of the first two proceedings, J considered an adjournment as an alternative to further proceedings in violation of the victims rights. Another alternative, and one that I concluded was preferable under the circumstances, was to order the government to provide a written summary or transcript of the proceedings to any victim who was denied notice and to make it clear that I would hear any victim witi) respect to whether the decision I made in the victims absence should be reconsidered.
notice of various rights); Mich. Comp. Laws Ann. 780.755(1) (West 1998) (requiring prosecutor to give victims notice of court proceedings); Minn. Stat. Ann. 611 A.03 (West 2003) (requiring prosecutor to give victim notice of plea agreement and sentencing hearing); N.M. Stat. Ann. 31-26-9(B) (LexisNexis 2004) (requiring prosecutor to provide victim with notice of scheduled court proceedings); N.Y. [Executive] Law. 646a (MeKinney 2005) (requiring prosecutor to provide notice of court proceedings); S.D. Codified Laws 23A-28C-l (2004) (requiring prosecutor to notify victim of certain hearings); Teen. Code Ann. 40-38-103 (2003) (requiring prosecutor to notify victim of times, dates, and locations of all pertinent stages in the proceedings); Utah Code Ann. 77-38-3 (2004) (requiring prosecutor to give victim notice of important criminal justice hearings); Wis. Stat. Ann. 972.1 4(2m) (West 1998) (Before pronouncing sentence, the court shall inquire of the district attorney whether he or she has complied with 971.095(2) and with sub. (3)(b), whether any of the victims of a crime considered at sentencing requested notice of the date, time and place of the sentencing hearing and, if so, whether the district attorney provided to the victim notice of the date, time and place of the sentencing hearing.); Wyo. Stat. Ann. I -40-204(b)(i) (2004) (requiring prosecutor to inform victim about all hearings). But see Ohio Rev. Code Ann. 2930.06(C) (2005) (requiring court to give notice to victim of court proceedings).
10
4q
Filed 07/18/11 Page 20 of 37
Id. at 324. United States v, fiigrassia, 2005 U.S. Dist. LEXIS 27817 (E.D.N.Y. Sept. 7, 2005) (ordering the government to give written notice to all 200 victims in the case). It goes without saying that the authorities have the duty to tell victims what their rights are: the Utah Supreme Court has held that prosecutors have the responsibility to assist victims in exercising their rights. State v. Shaffer, 239 P.3d 285, 294 (Utah App. 2010), quoting State v. casey, 44 P.3d 756 (Utah 2002) (plea hearing reopened to cure failure to give notice to victim and opportunity to be heard) The defendant in a criminal case is provided with counsel. Either the lawyer, or the police, tell him about his rights. See, e.g., Miranda
.
Arizona, 384 U.S. 436
(1966). The victim is not provided with his own lawyer, but he does get to depend on
the lawyer for the state (usually the District Attorney) for an explanation of his rights.
That is basic fairness. Indeed, surely no agent of the State is going to argue that the victim should have fewer rights than the accused. Cf. Creekmore v. State, 860 S.W.2d 880, 887 (Tex. CL App. 4, 1993) (For too long, the victims of crime have been left out of the criminal justice process. They are often regarded as mere witnesses of the state or simply as troublesome spectators. This altitude gives an increasing number of victims and their families the impression the state is more concerned with the rights of the criminal than with those of the victim), quoting HOUSE COMM. ON CRIMINAL JURISPRUDENCE, BILL ANALYSiS, Tex. H.B. 235, 69th Leg., R.S. (1985). In this case, Plaintiff has never been told his rights. When he fmally began to
figure them out for himself, the Defendants have done nothing but obstruct his
assertion of those rights. Thus, the Defendants axe equitably estopped from claiming
50
Filed 07/18/11 Page 21 of 37
that Plaintiffs intervention comes too late, even if that were an argument that had any
merit (which it does not).

V. THE PROVISIONS OF THE TEXAS VICTIMS BILL OF RIGHTS AND OTHER RELATED LAW ARE MANDATORY AND ENFORCEABLE Perhaps Defendants will argue that the Texas laws providing rights to the victims of crime are just so much hot air, and are not really meant to be enforceable. If that is an argument to be made, then Defendants are obviously mistaken. The limited number of Texan cases on (he issues have made clear that the laws are enforceable. See, e.g., Montalo v. State, 315 S.W.2d 588, 595 (Tex. CL. App. I, 2010) (The parties do not directly address the future safety of the victims and the community.
Il
Nevertheless, we assume, as we must, that the trial court considered
these factors in assessing bail.), citing Tex code Cr1,,:. Proc. Ann. Art 56. 02a)(2) (Vernon Supp. 2009) (A victim, guardian of a victim, or close relative of a deceased victim is entitled to.
..
the right to have the magistrate take the safety of the victim or
his family into consideration as an element in fixing the amount of bail for the accused). One of the few cases to hold otherwise was a panel in the Tim McVeigh case, the Oklahoma Bombing. (hilled States
i
McVeigh, 106 F.3d 325
d 10 (
Cir. 1997).
Rather than wait for the Supreme Court to overturn the decision, Congress stepped in and passed the crime Victims Rights Act (CVRA), 18 U.S.C.
3771
(2004), to make
their intentions clear. See Federal Judicial Center, The Crime Victims Rights Act of
2004 and the Federal courts, at 1 (Oct. 24, 2005) (available at v.tic.aov) (42 U.S.C. 10606 (Victims Rights), now replaced by the CVRA,
...
included a list of
victims rights but did not provide any means of enforcement). Since the CVRA clarified the law, the courts have clearly defined the victims role in enforcing their rights. See Kenna v United States District Court, 435 F.3d 1011
th 9 (
Cir. 2006). Other
12
Si
Filed 07/18/11 Page 22 of 37
states have similarly found the rights to be enforceable. London
i.
State, 1999 WL
46543 at *2 (Alaska App. Feb. 3, 1999) (even without enabling legislation, the tights are self-executing and enforceable). VI. THE RIGHTS OF THE VICTIM INCLUDE THE RIGHT NOT TO BE REVICT1MISED BY THE LEGAL SYSTEM So what are those rights? The first agree
and one with which surely everyone can
is the victims right not to be revictimized by the system. Harvard Professor
Laurence Tribe is one of the leading constitutional scholars or our day. He has written on the subject of avoiding the revictiniization of the person who suffers at the bands of the violent offender
Pursuing and punishing criminals makes little sense unless society does so in a manner that fully respects the rights of their victims to be accorded dignity and respect, to be treated fairly in all relevant proceedings, and to be assured a meaningful opportunity to observe, and take part in such proceedings. These are the very kinds of rights with which our Constitution is typically and properly concerned. The rights in question, rights ofcrime iicthns not to be victimized yet again through the processes by iihich goiermnent bodies and officials prosecute, punish and release the accused or convicted offender, are indisputably basic human rights that any civilized system of justice would aspire to protect and strive never to violate.
Statement of Laurence Tribe, Processor of Constitutional Law, Harvard Law School, A proposed Constitutional Amendment to Protect Victims of crime: Hearings on SJ Res 6 Before the Senate Committee on the Judiciaiy, supplied).
th 105
Cong. 11(1997) (emphasis
Thus far, the State of Texas has, sadly, done nothing but revictimize Plaintiff
in this case. The Defendants and their officials failed to tell Plaintiff (or the other victims family members) of their rights. The former Dallas District Attorney plowed ahead with the death penalty without ever discussing the issue with the victims. The prosecution called Plaintiff at trial, told him to answer the questions asked, and choreographed the trial so [hat it seemed to the jurors
who were similarly betrayed
52
Filed 07/18/11 Page 23 of 37
that Plaintiff wanted the death penalty imposed. Plaintiff was never allowed to make a victim impact statement before the jury or before the Court. Since that time, their pound of flesh exacted, the Defendants and their agents have shown Plaintiff no respect at all. The Defendants told Mark Strman that he could not contact Plaintiff and effectively made Plaintiff one of the only people on the planet who was barred from visiting Mark Strman. No official told him about his right to mediation, but when lie fmally learned about it he (and Mark Strman) asked for the process to be initiated. He has not heard back. He has asked for the right to appear in person before the Pardon and Parole Board, and nobody has had the courtesy to get back to him on it. All in all, the Defendants have shown no respect for a single right that he possesses. Governor Perry decreed that April 10-16, 2011, would be Victims Rights Week. I encourage all Texans, he said, to join in this effort by learning more about victims rights and supporting victims of crime whenever.possible. We can help our fellow Texans on the road to recovery with compassion and respect. 9 These are tine words. However, they do not appear to be backed up by action. Governor Perry has shown no compassion and no respect to Plaintiff; and neither have his agents. VII. THE VICTIMS RIGHT TO FAIRNESS AND RESPECT IS A VERY REAL RIGHT MosE victims rights provisions provide that victims should be treated with dignity and respect. See 18 US. C. 3771(a)(2), (4), (8). Tex. Const. Art. 1, 30(a)( 1) (A crime victim has the following rights: (1) the right to be treated with fairness and with respect for the victims dignity and privacy throughout the criminal justice process). See http://www.texansforegualiustice.ordocs/cvrw1 1. pd f.
S3
Filed 07/18/11 Page 24 of 37
The courts have recognized that the right to dignity, fairness and respect is not a hollow drum, but is an enforceable right. See RoinThy
i.
Schneider, 45 P.3d 685, 688
(Ariz. Ct. App. 2002) (right to liimess, dignity and respect to be free from intimidation, harassment and abuse relevant to the question of whether a victim should be fingerprinted over objection); Stale v. ONeill, 836 P.2d 393, 394 (Ariz. Ct. App. 1991) (right to fairness, dignity and respect to be free from intimidation, harassment and abuse relevant to the issue of recording all witness interviews); Slate
i.
Broberg, 677 A.2d 602, 612 (Md. 1996) (while the right to dignity, respect and
sensitivity is relevant to the issue, it does not compel admission of in life pictures of the victim at trial); State v. Tininiendequas, 737 A.2d 55, 75-82 (N.J. 1999) (right to fairness and dignity includes the right for the victims voice to be beard in the balance when changing venue); State in the Interest of KP., 709 A.2df315, 321 (N.J. Super. Ct. 1997) (language of fairness, compassion and respect create mandatory and self-executing rights for victims); State v. Gonzales, 912 P.2d 297, 300 (N.M. 1996) (identifying right to dignity and privacy, but ruling in this case that it does not permit the selective assertion of privilege); State v. McDonald, 839 S.W.2d 854, 85859 (Tex. 1992) (iight to fairness gives the victim tight to access to the prosecutor, but not an unfettered right to material about the defendant in the prosecutors file). This right has simply been ignored in Plaintiffs case, and must be enforced by this Court. Vifi. THE VICTIM CLEARLY HAS THE RIGHT TO HAVE A SAY IN THE PROPER DISPOSiTION OF THE CASE Plaintiff also has the right to have a say in the disposition of the case. It should have taken place prior to trial (where he would have advocated strongly for a peal
process that could have spared everyone the years of heartache, and guaranteed that
54
Filed 07/18/11 Page 25 of 37
Mark Strman spent life in prison). Given that this right was denied to him, it must take place now.
There is no question but that Plaintiff has this right:

It would be difficult to conceive of a more absurd result than to adopt a construction [of the victims right to address the court at all sentencing proceedings] which would prevent a victim from having a meaningful opportunity to protest a plea bargain that will allow a defendant to escape the punishment which the victim feels is appropriate to the crime. [Such a] Construction would reduce the victims statement to an arid riti.ial of meaningless form...
... ...
People v. Slringharn, 206 Cal. App. 3d 184, 196, 253 Cal. Rptr. 484,491 (1988). With respect to the California court, there is one more absurd scenario: that the victims should not be consulted when certain State politicians want to impose a harsher punishment that will add to the victims grief. IX. WHILE RESPECflNG THE CONSTITUTIONAL RIGHTS OF THE ALLEGED OFFENDERL, THE VICTIM CLEARLY HAS THE RIGHT TO EXPRESS RESTORATIVE VIEWS CONCERNING THE FUTURE TREATMENT OF THE PERSON ON TRIAL Plaintiff has the right to be heard by both the District Attorney and the Board of Pardons and Paroles: (13) the right to be informed of the uses of a victim impact statement and the statements purpose in the criminal justice system, to complete the victim impact statement, and to have the victim impact statement considered: (A) by the attorney representing the state and the judge before sentencing or before a plea bargain agreement is accepted; and (B) by the Board of Pardons and Paroles before an inmate is released on parole;
Tex. Code Crim. Proc. 56.02(a). This right has never been respected.
It is clear that this means the right to speak orally, not merely write a letter. Who ever heard of a victim impact statement in Court being delivered before the jury in writing? Of course not
in capital trials, at least, they invariably take the form of
oral testimony. Indeed, this is Plaintiffs right The federal courts have dealt with
16
Filed 07/18/11 Page 26 of 37
what it means to be reasonably heard in this context. They have determined that it means to speak orally, not merely to submit a letter: Prosecutors and defendants already have the right to speak at sentencing, see Fed. R. Crim. P. 32(i)(4)(A); our interpretation puts crime victims on the same footing. Our interpretation also serves to effectuate other statutory aims: (1) To ensure that the district court doesnt discount the impact of the crime on the victims; (2) to force the defendant to confront [he human cost of his crime; and (3) to allow the victim to regain a sense of dignity and respect rather than feeling powerless and ashamed. Jayne W. Barnard, Allocution for Victims of Economic Crimes, 77 Notre Dame L. Rev. 39, 41(2001). Limiting victims to written impact statements, while allowing the prosecutor and the defendant the opportunity to address the court, would treat victims as secondary paiticipants in the sentencing process. The CVRA clearly meant to make victims lull participants. Kenna v. United States District court, 435 F.3d 1011, 1016
th 9 (
Cir. 2006); Slate v.
casey, 44 P.3d 756, 760 (Utah 2002) (We further hold that M.R., as the victim of a crime, had both a constitutional and statutory right to be heard at defendants change of plea hearing and that he properly invoked this right by informing the prosecutor that he desired to be heard.). At trial, this should have meant that Plaintiff could speak to the jury about what he wanted to do and what he wanted to happen to Mark Strman. There are different rules in capital and non-capital trials, and for the purposes of this case we will deal solely with the former. In Payne v. Tennessee, 500 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), the Supreme Court recognized that victim impact evidence should be admitted in a capital trial. This evidence relates to the victim as a unique individual and the specific harm that he (or his family) suffered. It is generally accepted that Payne did not alter the rule in Booth v. Maiyland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), and South carolina v. Gathers, 490 U.S. 805, 109 S. Ct. 2207, 104 L. Ed. 2d 876 (1989), that a victim may not express the desire that the offender should be executed. Payne, 500 U.S. at 830
56
Filed 07/18/11 Page 27 of 37
n.2 (noting that the case does not present the admission of a victims family members characterizations and opinions about capital case); liL at 833 (OConnor, J., concurring). however, ii is also well settled that in non-capital sentencing the victim may express whatever view he or she wishes on sentencing. See 150 Cong. Rec. SI 0911 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl); PRESIDENTs TASK FORCE ON VIC1IMS OF CRIME, FINAL REPORT 77-78 (1982) (evesy victim must be allowed to speak at the time of sentencing. The victim, no less than the defendant, comes to court seeking justice. When the court hears, as it may, from the defendant, his lawyer, his family and friends, his minister, and others, simple fairness dictates that the person who has borne the brunt of the defendants crime be allowed to speak); Douglas E. Beloof, Constitutional Implications of Crime Iktin,s as
Participants, 88 Cornell L. Rev. 282, 289 (2003) (noting that
...
the appropriate sentence in a
[un
examining the
constitutionality of participant sentencing recommendations in noncapilal cases, no court has every found a constitutional violation.). The question here, unresolved by Booth or Gathers, is whether there is any prohibition against Plaintiff telling the jury that he opposed the death penalty for Mark Strman? The answer must be that there is not. ft is a settled principle of constitutional interpretation that whenever reasonably
possible, every provision of the Constitution should be given meaning and effect, and
related provisions should be harmonized. Park v. State, 528 P.2d 785, 787 (Alaska 1974). Thus, the victims right to make a full statement must be respected, along with the defendants right to a fair trial, and if the two cannot be harmonized, perhaps the
defendants rights will win out. See Ford v. State, 829 So.2d 946, 948 (Fla. DCA 4 2002) (although we are sensitive to this victims rights, those rights must not
18
57
Filed 07/18/11 Page 28 of 37
interfere with the constitutional rights of the accused.). Where the
victim
wishes to
make an emotional scene, or a rabid plea for death, then the wishes of the victim are likely to be in conflict with the rights of the accused
and that vill be forbidden.
When, however, the victim wishes to show compassion and mercy, there is no dichotomy. Cf. United Slates v. Brou.csard, 767 F.Supp. 1536, 1544 (D. Ore. 1991)
(in balancing the rights of a child victim with the rights of the accused in a complex
case, I find that subsection (j) of the Act does not infringe upon defendants Sixth Amendment rights to a adequately prepare for trial. I see nothing in either
provision which makes the two designations mutually exclusive.; herculean task ahead of defense counsel likely to outweigh the victims desire for speedy trial). Thus, Plaintiff should have been permitted to tell the jury that he did not wish
the death penalty to be imposed. Had he done this
as reflected by the submissions
made to the state and federal courts by Mark Strmans lawyers
jurors in the case
have made clear that they would not have imposed death, and that would have been the end of it. This would have been the end of the pain and suffering for everyone. 11
Since the Defendants and their agents failed to respect Plaintiffs rights in this
regard, this Court must return him to the position he would have been in but for their violation of his nghts. This means taking Mark Stroman off death row. Neither may the prosecutor orchestrate an emotional display by showing the victims mother a picture of her child at the morgue, in order to override the defendants right to a fair trial. Stahl v. State, 749 S.W.2d 826, 828 (Tex. CL Crim. App. 1988). Actually, there is no need for the Court to go this far. Juror Sheehan makes it abundantly clear in her declaration before the state and federal courts that she would never have voted for the death penalty were it not for her misunderstanding created by the prosecuting attorney that Plaintiff wanted the death penalty. Had she seen Plaintiff being recalled as a witness by the defense (as would have happened had Plaintiff known his rights), and describing various patently admissible matters (such as his desire to work on the rehabilitation of Mark Strman) sake would have voted against the death penalty and it could not have been imposed, no matter what other jurors might have wished.
10
19
58
Filed 07/18/11 Page 29 of 37
There is a secondary issue here as well: Plaintiffs right to be heard by the Board of Pardons and Paroles. He has asked for an oral hcaring under the Boards
rules. The Board has not even shown basic respect for him as a victim by replying to
his request. This Court should enjoin the Board, ordering them to do at least this. This right is a continuing one, and while it should have been applied to later state judicial proceedings, it should also be applied at the clemen cy hearing now pending: Nor was Kennas statutory right vindicated because he had the opport unity to speak at Moshes sentencing three months earlier. The statute gives victims a right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. 18 U.S.C. 3771(a)(4). This language means that the district court must hear from the victims, if they choose to speak, at more than one criminal sentencing. The court cant deny the defendant allocution because it thinks there just isnt anything else that could possib ly be said. Victims now have an indefeasible right to speak, similar to that of the defendant, and for good reason: The effects of a crime arent fixed forever once the crime is committedphysical injuries sometimes worsen; victims feelings change; secondary and tertiary effects such as broken families and lost jobs may not manifest themselves until much time has passed. The district court must consider the effects of the crime on the victims at the time it makes its decision with respect to punishment, not as they were at some point in the past.
Kenna v United States District Court, 435 F.3d lOll, 1016-17 ( Cir. th 9 2006). X. THE VICTIM CLEARLY HAS THE ENFORCEABLE RIGHT TO SEEK MEDIATION WHERE POSSIBLE
Ultimately, perhaps the most important right that has been denied to Plainti ff is
the right to cngagc in mcaningfui mediation with Mark Strnia n. The impact of
violent crime on the innocent victim is well known. See, e.g., Lynne N. Henderson, The Woi;gs of Victim c Rights, 37 STAN. L. REV. 937, 953-66 (1985) (discussing feelings of fear, isolation, mortality, and loss of control as victim s seek meaning to victimization); Robert F. Kidd & Ellen F. Chayet, Why Do Victim s Fail to Report?
The Psychology ofCriminal
Victimization,
40 J. SOC. ISSUES 39 (1984) (discussing
20
59
Filed 07/18/11 Page 30 of 37
the relationship of fear, helplessness, powerlessness, and threat of further victimization); Dean Ci. Kilpairick & Randy K. Otto, Constitutionally Guaranteed Participation in Criminai Justice Proceedings for Victims: Potential !ffecis
0,,
Psychological Functioning, 34 WAYNE L. REV. 7, 9-20, 26 (1987) (describing trauma, anxiety fear, loss of control, helplessness, vulnerability from victimization in 1 terms of specific explanatory psychological theories). See generally Pamela Tontodonato & Edna Erez, Crin,e, Punishme,,!, and Victim Distress, 3 INTL REV. VICTIMOLOGY 33, 34-36 (1994) (providing overview of psychological research on victim responses to crime and the criminal justice process). Less well known is the victims need for reconciliation with the offender, and understanding of the offense. See, e.g., Ezzat A. Fattah, Toward a Victim Policy A i,ned at Healing, Not Siffering, in VICTIMS OF CRIME 211, 257 (Robert C. Davis et al. eds., 2d ed. 1997) (suggesting that a restorative justice system based on mediation, reconciliation, restitution, and compensation is more responsive to victim needs of healing, recovery, redress, and prevention of future victimization than increased input and participation in a punishment-based system) There is no question that Plaintiff has the right to seek mediation: (12) the right to request victim-offender ,nediation coordinated by the victim services division ofthe Texas Department of Criminal Justice; Tex. Code Crim. Proc. 56.02(a) (emphasis supplied). Texas boasts of the way in which it respects this right: In Texas, victims of crime have the Crime Victims Bill of Rights, created by the legislature in 1985. It has been amended and expanded during the past twenty years, and explicitly lists remedies and redress options that a victim, guardian of a victim, or close relative of a deceased victim is entitled to within the criminal justice system. Of the thirteen numbered rights, the twelfth is the right to request victim-offender mediation coordinated by the victim services division of the Texas Department of Criminal Justice. This portion of the statute was not enacted until the 77th legislative session in 2001.
...
21
60
Filed 07/18/11 Page 31 of 37
Patrick Drake, Victim-Offender Mediation in Texas: When
ije
/r Eye Becomes
Eye to Eye, 47 S. Tex. L. Rev. 647 (2006) (footnotes omitted).
As set out in the Complaint, while Plaintiff was never informed of his rights by Defendants, the TDCJ has such a program, both Plaintiff and Mark Strman have
asked to take part in it, and yet Defendants have not even rep)ied to the request It is illegal for Defendants to deny Plaintiff this right. Tex. Civ. P. & R. Code Tit. 5, Sec. 106.00 1, provides: Sec. 106.001. PROHIBiTED ACTS. (a) An officer or employee of the state or of a political subdivision of the state who is acting or purporting to act in an official capacity may not, because of a persons race, religion, color, sex, or national origin: (1) refuse to issue to the person a license, permit, or certificate; (2) revoke or suspend the persons license, permit, or certificate; (3) refuse to permit the person to use facilities open to the public and owned, operated, or managed by or on behalf of the state or a political subdivision of the state;
(4) refuse to permit the person to participate in a program owned, operated. or managed by or on behaifofthe state or a political subdivision ofthe slate;
(5) to grant a benefit to the person;
(6) impose an unreasonable burden on the person; or
(7) refuse to award a contract to the person. (emphasis supplied) Thus, the actions of the agents of the State of Texas and the Defendants in this case .are not merely wrong, they are potentially criminal in nature: Sec. 106.003. PENALTIES. (a) A person commits an offense if the person knowingly violates Section 106.001. (b) An offense under this section is a misdemeanor punishable by: (1) a fine of not more than $1,000; (2) confinement in the county jail for not more than one year; or
22
61
Filed 07/18/11 Page 32 of 37
(3) both the fine and confinement. Tex. Civ. P. & R. Code Tit. 5, Sec. 106.003.
This Court should order the Defendants to respect Plaintiffs rights to

mediation, and order that the pmcess move forward with all due deliberate speed. Cf.
Thomas v. State, 1998 WL 696001 at *2 (Alaska App. Oct. 7, 1998) (victim has the
enforceable, constitutional right to restitution).
23
62
Filed 07/18/11 Page 33 of 37
CONCLUSION WHEREFORE PLAINTIFF respectfully requests that this Court enter the order prayed for in his complaint.
This 14th day of July, 2011.
Khurrum Wahid Wahid Vizcaino LLP 6221 W. Atlantic Blvd Margate Fl 33063 (305) 4444303 (305) 444-4302 www.wvmlawfirm.com
Counsel to Rais Bhuiyan*+
* Mr. Wahid is a member of the Bar of the State of Florida, and a Motion to Appear Pro Hac Vice accompanies this law suit. Mr. Wabid has submitted the required affidavit to the Texas Bar Examiners. However, the non-resident acknowledgment letter will not be issued until the application has been submitted with a cause number for this action, so it cannot be submitted simultaneously with the suit.
Danalynn Recer SBOT 00792935 2307 Union Houston, Texas 77007 Office: (713) 8694722 Mobile: (832) 969-0444 Fax: (713) 880-3811 Local co-counsel for Mr. Bhuyian+ +Counsel are acting pro bono publico on this case, given the importance of the issues.
24
63
Filed 07/18/11 Page 34 of 37
CERTIFICATE OF SERVICE I hereby certify that I have caused the foregoing pleading to be served on the defendants,
via
hand delivery and/or overnight delivery to:
Governor Rick Perry Office of the Governor State Insurance Building 1 100 San Jacinto Austin, Texas 78701 Brad Livingston Texas Department of Criminal Justice Executive Director 209 West 14th Street, 5th Floor, Price Daniel Building, Austin, Texas 78701 Angie McCown, TDCJ Victim Services Division, 8712 Shoal Creek Blvd. Ste 265, Austin, Texas 78757 Rissic L. Owens Texas Board of Pardons and Paroles 209 West 14th Street, Suite 500, Austin, Texas 78701. This 14th day of July 2011.
Danalynn Recer
25
Filed 07/18/11 Page 35 of 37

Filed II July 14 P5:49 Amalla Rodriguez-Mend Dlsti1 Clerk Travis Olsti D-1-GN-11-002118
IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS Trial Court Cause No. D-1-GN-I 1-002118

V.
RICK PERRY,
Ct
al.
Defendants.
APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM TO THE HONORABLE DISTRICT COU RT IN AND FOR TRAVIS COUNTY: COMES NOW, Rais Bhuiyan, Plaintiff in the above styled and numbered cause, and files this Application for Writ of Habeas Corpus Ad Testificandum, for Mark Anthony Strman. Mark Anthony StrUman is currently an inmate at Polunsky Unit Death Row, 3872 FM 350 South Livingston, Texas. His prison identification number is TDCJ-1D #999-409. The presence of Mark Anthony StrOman is required because he is a necessary and material witness in this case. A Writ of Habeas Corpus Ad Testificandum is necessary to protect Petitioner, Plaintiffs rights enshrined in Articles 1.19 and 1.30 of the Texas Constitution and his right to equal protection and compulsory process under the Fourteenth Amendment of the United States Constitution.
6S
Filed 07/18/11 Page 36 of 37
WHEREFORE Petitioner respectfully requests that this Court issue an order
directing the clerk of the Court to issue a Writ of Habea s Corpus Ad Testificandum, addressed to the Warden, Polunsky Unit, South Livingston, Texas commanding him
or his duly authorized representative to deliver the witnes s, Mark Anthony Strman, to the District Court of Travis County, Texas on the 18th day of July, 2011, and continuing for such time as necessary.
Danalynn Recer Local co-counsel for Mr. Bhuyian SBOT 00792935 2307 Union Houston, Texas 77007 Office: (713) 8694722 Mobile: (832) 969-0444 Fax:(713)880-3811 Khurrum Wahid Wahid Vizcaino LLP 6221 W. Atlantic Blvd Margate Fl 33063 (305) 444-4303 (305) 444-4302 www.wvmlawfirm.com Counsel to Rais Bhuiyan* Counsel are acting pro bono publico on this case, given the importance of the issues. Mr. Wahid is a member of the Bar of the State of Florida, and will be seeking to appear pro hac vice with Ms. Recer as local counse l. However, it is his understanding that he cannot submit his application until he receives notice of the case number of the case. Until that time, therefore, Ms. Recer is acting as sole counsel on the case.
*
66
Filed 07/18/11 Page 37 of 37
114 THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS
Trial Court Cause No. D-1-GN-l 1-002118

V.
RICK PERRY, et al. Defendants.
ORDER ON THE APPLICATION OF Rais Bhuiyan, Plaintiff in the above styled and numbered cause, for a Writ of Habeas Corpus Ad Testjflcandum, it is hereby ordered that the Sheriff secure the person of Mark Anthony Strman, an inmate at Polunsky Unit Death Row, 3872 FM 350 South Livingston, Texas, prison identification number is TDCJ-]D #999-409, and bring him to the Court to appear at 3:00 pm on the 18th day of July, 2011. Done this
day of July, 2011.
Judge, District Court

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Case 1:11-cv-00603-LY Document 1

Filed 07/18/11 Page 1 of 4

Civil Action No. 1:11-CV-00603

Subject to the demonstration of personal jurisdiction as to Perry.

Case 1:11-cv-00603-LY Document 1

Filed 07/18/11 Page 2 of 4

Plaintiff demands relief for the alleged failure of Defendants to provide

Case 1:11-cv-00603-LY Document 1

Filed 07/18/11 Page 3 of 4

Case 1:11-cv-00603-LY Document 1

Filed 07/18/11 Page 4 of 4

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 1 of 31

TRAVIS COUNTY DISTRICT COURT

RAIS BHUIYAN, Plaintiff,

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 2 of 31

RAIS BHUIYAN, Plainti ft

United States and, for purposes of this litigation, is legally present in

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 3 of 31

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 4 of 31

PLAINTIFFS DESIRE RECONCILIATION

Plaintiff strongly desires mediation and reconciliation, and has for a

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 5 of 31

15. State of Texas.

a step he took after considerable thought, as he knew it

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 6 of 31

Plaintiff understands that Mark StrOman had also previously been

obtained the racist beliefs that partially drove him in 2001

now that he had seen

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 7 of 31

person before the Pardons Board, to plead

Defendants have made no response to any of his requests as the time

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 8 of 31

Is it permissible to write or visit the offender prior to the mediation?

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 9 of 31

the instances where reconciliation would

While in theory a victim could go through their offices victim-

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 10 of 31

Plaintiff asserts the following claims for relief.

both precede and follow.

Case 1:11-cv-00603-LY Document 1-1

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Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 12 of 31

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 13 of 31

Tex. Code Crim. Proc. 56.02(a) (emphasis supplied).

class of victims to benefit from mediation

those whose firm religious beliefs prompt

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 14 of 31

Sec. 106.002, provides for injunctive relief:

Tex. Civ. P. & R. Code Tit. 5, Sec. 106.003.

Case 1:11-cv-00603-LY Document 1-1

Filed 07/18/11 Page 15 of 31