IN HE UNT ED ST TES DISTRICT COUR > 

FOR TIE EASTERN DISTRICT f TEX S

TYLER DIVISION

'/Vi

Dusty Hernandez

Peti ioner,

v.

Lorie Davis, D rector

Texas Departmen ot Criminal Justice

Correction Institut ons Division

Respondent,

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CV NO:

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MC TfeDN FOR LEAVE TO FILE OUT-dF-TF FE PE CT N

PURSU NT TO 28 U.S'JC. §2244(;dT

O THE HON RABLE SAID COUR :

Now co es DiUsty Hernan ez, Petition, and tiles this Motion tor Leave to

tile his Out-of-ti e fe eral habeas petition pursuant to 28 U.S.C1.1 §2244(d).

On or about the week of March 13, 2020 Petitioner iscover factual predi¬

cates that suppo t his Ineffective ssistance of Counsel claiWi filed in his

state application. Since then, petitioner has ade a due diligence to become

Better acqjainted wit the law an other facts supporting his claim. Peti¬

tioner would show this iourt the follo ing:

I.

EDb 's REQUIREMENTS

he ntiterrorism and Effe tive Death Paialty Act of 1996 (" Mdpa"),

as contained in 28 U.s'Jc. §2244(d), provi tes in part that:

(ity A one- ear period of limitation shall apply to an application for

a writ of habeas corplis by a person in obstody pursuant to the ju g¬

ment of a State court. The limitation period shall run from the

otion for Leave -1-

6:20CV299 JDK/JDL 
latest of 

(A) the date on Which the judgment beca e final by the conclusion

of direct reWi&i or the expiration of the time fo seeking such rev ew;

(B) the date on which the impe iMent to filing an application c eate 

by Stafc action In violation of the onstitution o laws of the United

States is emoved, if the applicant was p evented from filing by

suc State action;

(C ) the ate on wh!ich the constitutional right asse te was initially

ecogn''zed by the Sup e e tid' t, if the right has been newly ecognized

by the Supreme Cou t and ade retroactively applicable to cases on

collateral eview; or

(D) the dafe on wh'lch the factual pre icate of the claim or claims

p esented could ave been iscove e th ough the exercise of diie

d ligence.

(2) he time d ing which a prope ly fileft: appl cation fo State posticonviction or other collateral reviiew with respect to the pe tinent judgment

o claiim is pending shall rtBt be counte towa d any pe iod of li itation un¬

de this subsection.

Because petitioner has recently iscovere that his sentencing trial,

and subseqently, the sti te haBeas evidentiary hea ing proceeding, we e fun¬

a entally unfair, Petitione is raising a fede al claim in iolation of the

U.S. Constition, na ely his S xth A end ent right to effective assistance

of counsel, an hiis Due B riae&shrighfc.rhh ough the FoWrteenth Amen ent in

the state co rt1inf inged in petitione 's ight to present hihgly favo able

m tigating evidence, central to his clai s, in a new sentencing trial.

otion fo Leave -2-
GROUNDS ttafeED

Pet tioner raised One roun of Ineffect ve Assistance of Counsel he ellin

"IAC") ii'n his state application which he complains of seven different aspects

of that claim. Petitioner argue that trial counsel failed to make timely

objections, jjace ara for filial, challenge the State's expert witness and p e¬

sent readily available mitigating evi ence. A brief escription of these com¬

plaints ab as follow:

1. Trial counsel failed to object to four of the state's witness on the

proper punishment to assess petitione h violation of the Texas Code of Cri¬

nal P oce ure, Article 42.03, si ply because she "di not want to ups t

the jbry and make them ma at He nandez," an'b because she "di n't want to

come across as the lawyer ho Beats up on ids."

Because the trial court deter ined that the stabe did not ment'&Dn these

recommendations in thier closing argu ent, petitioner as not har e .

The state court'er eB. iii :stibsbituting its own judgment fob: that of the

trial court when it adopted their Proposed Order and was unreasonable in their

etermination because the recor before the state court controveiits their

decision in that the State advised the jury to "start at Life," "give hi 

the same sentence he gave all of his victi s," an "ask your elf if he has

presented anything showing thfeB he derserves any less." Petiti Her was seriously

prej diced because there is no evi ence to show that the jury did not take these

recommendations because etitioner eceived the maximam in all these counts.

2. hereas an objective reasonable application of Stricklan v. ash ngton,

(466 U.S. 688), principles compels the conclusion thai: counsel was prejudi¬

cially ineffective in her failure Ho further invest at -and develop for sen¬

tencing purposes, evidence of Hernandez's Low-risk of reoffending, incest

Motion fob Leave -3-
offenders have the lowest ate of recidivism, recid vism rates, the different

classification of sex offenders and their respective rates, an Hernandez's

Personali y and Sexual Disorde .

This type of mitigatttmg ev dence was crucial to his defense of convinc ng

the jury he was suitable for probation. ccording to Supreme Calirt, "any rea¬

sonable competent attorney would have realized that rsuing these leads as 1

necessary to making an infor ed choice among possible defenses." Wiggins v.

Smith# SfJH U.S. at 510. 525. instead, counsel strategically choose not pu sue

t is defense simply because she "did not want to any doors," an decided to fo¬

cus on Hernandez's "good" character, which was compro ised when defense char¬

acter witnesses suddenly lost all credibility, when confronted by the state's

evidence, on c oss-exa nat on, because counsel failed to prepare them to

take the stan . Counsel was ed ced to a residual oubt st ategy and the ;jury

only heard one mitigation facto petit one had no p ior convicitons.

Because Peti io e 's case s "materially i distinguishable" from the

u reme Calirt prece ents of Wiggins# Williams v. Taylor# 529 U.S. 362, and

Rompiiilla v. Bea iH 545 U.S. 374, the state court's application of Strickland

was unreasonable when it etermined trial counsel s performance was adequate

despite the ecords show ng of her many omissions and failures.

. The state court's decision was, both, contrary to such clearly established

federal law, insofar as the the decision turned on an e roneous view that

suc mit'igation evidence would be "meaningless" to the ury, is not su fi¬

cient enough to es ablish constitutionally ineffective assistance of counsel, an(g

n un asonable applicaiton of federal law, insofar as (1 the state coiirt's

analysis concerning a "ttieaningless" difference in outcome relied on an inap¬

plicable exception to Strickland v. Washington, ''(*2) the state cou t failed to

Motion for Leave - -
evaluate the totality of t e available mitigation evidence, both add ced at

trial and at hatieas procee ing, in rewe ghiing it against the evidence ii'n ag 

gravation, '{'3) sane evidence not presented by counsel sue has 'the graphic

descript on of petitioner's childhood filled with sex al abuse from any adults

males in his extended fa ily and frineds of his father, incest was a common¬

place, sold nto prost tution at the age of 5 years until he was about 8 years

old, reso ting to living his childhood abuse later in a olescent years ight

well have influenc d the jury's appraisal of petitioner's ioral culpability,

or the privation of a nor al chil hood and the reality that pe itioner suf¬

fered from a Personality Disorder aid Sexual Disorder as a result of his p o¬

longed-sexual abust as a child, (4)/ the circu stances in all three doctor's

eports are consistent with the view that petitioenr's behavior as an imulsive eaction rather than a prodiict of a sexual predator, and 5) by failing

to entertain the possfciliity that mitigating evidence unrelated to danger¬

ousness bight have altered the jury's selection of Life in prison, the state

court failed to accord appropriat weight to the body of mitigating ev udence

avaialable to trial counsel.

4. To the extent the state habeas record includ s neW factual allegations,

findings and evideice of petitioner's low-risM. of re offending as a result

of researchebsed risk assesanents, Which we e not done at trial, conducted

by a Licensed Sex Offen e Ptreatment pfovider and highly-qualified Forens c

Psycho ogist, Dr. J. Ran all Price, and stud es in regard to eliable expert

opinion of recidiv sm rates and petitioner's capability of having his risk

further red ced wiih speciali ed sex offender treatment.

STATE COURT'S UNREA3D;NABLE D TERM NATIONS

5. In making their ete mination, the state court held that because "only 5%

Motion for Leave -5-
of sex offense victims against children are reported," "if you on't ever

catch the offender an they commit another cr me," "this li pe of'dnformat!bn

Uould be "meaningless."

he state court requ re "certainty" that the jury would taaveh eac ed

a ifferent result. This standa is mo e onerous than either the preponder¬

ance of evidence standard rejected as too emanding by Supreme Court in Strick¬

land or the one adopted in petitioner's case. The efore, petitioner as held

to an ina propriate high standard of proof that wa cont ary to Stric land's

standard of a "reasonable robability" of a d' fferent result. Strickland,

466 CJ.S. at 694; S8 U.S.C. §2254idi).

6. &lso, in reaching its conclusion, state court improperly iscounted miti¬

gat ng e idence that could have been introdUced at sentencing for the jury

to re-weigh against the aggravating factors introduced at trial. An , as Peti¬

tioner recently discovered, as tie Su reme Court noted in Miller-El, the state

court's fack-f nding fe undermined where the state court has before it, yet

apparently ignores, evidence that supports petitioner's clai , 537 U 'S. at

346, when considered in the context of the full ecord bea ing on the issue

presented in the habeas petition.

Therefore, tihere was no reasonable basis for the state court to substitute

iks own judgment for that of the trial court an not conduct an analysis of

its own or to ignore the fact that counsel had a constitutional duty, under

prevailing p ofessional norms, to ma e a easonable investigat on in p esen 

ting mitigating e idence t at was later introlfciced at state habeas p oceedings.

7. The state court confronted the same set of facts that are materially

indistinguishable from the decisions of S preme Court in Tekry williams, iggins, and Rom illa, and nevertheless arr ved at a different resiilt si ply

Motion for Leave _6h-
because it woul be "meaningless."

The state <x>urtl!,s decision to eny petitioner's applicait n was "unrea¬

sonable a plicaiton" of Strickland ecause petitioner's counsel was far mo e

deficient thah the a torneys in Willia s, Wiggins, and ttompilla, where n

each case the Supre e Court upheld the pe itioner's l ineffective assistance

of counsel claim.

8. In additfcn to the tact that state cour 's failure to consdier ey as-l!

pects of the recor iSs a defect in the fact-finding p ocess, Miller-El,537

U.S. at 348; Collins, 348 Pi!3d at 1097, the state court plainly misapprehen ed

and/or misstated the record in making findings, an the mi'sapp ehension goes

to a material factual issue that is cnetrial to petit oner's clai , that mis¬

apprehension can fatally undermine the fa t-finding poRcess rendering the

esui'ting factual finding unreasonable. fiSJiggins, 123 S.Ct. at 2538-39.; Hall,

343 F.lRd at §83.

9. Beca se the state/ttrial court's arguments and/or theo ies are inconsis¬

tent with these holdings, petitioner now rleies on, t Ss possible fairminded

jurists could disagree that the state court un easonably applied clearly es¬

tablished tifederal law of Strickland when it determined trial counsel was

not deficient.

Fu thermo e, Petitione will show pre udice in that:

10. Consi ering petitioner's con elling new evidence, the court's determina¬

tion that counsel was not deficient, the state court Ne er reached the pre¬

j dice prong of StricRland.

11. For this very reason, the Supreme Cou t has conside ed IAC claims under

AEDPA in casesR \Uhere the relevant statie court had not reached one of the

Motion for Leave -2-
tbwa prongs of Strickland. See Pofeer v. McCullum 130 S.Ct. ati:452; Rom{galla/

545 U.S. at 390. Therefore this Court can review petitioner's clai s De Novo.

12. Petiltioner emonstrates yhat state coii t di not a dress or acknowledge

Dr. price report in ny of its responses Hurling habeas proceed'ings. And be¬

cause petitioner obtain this eport belatedly, iH would place hfen in an im¬

possible posit on by prohibiting him from presenting evfeience to rectify his

counsel's consti ut onal eficiency. Siich an app oach would dl rectly contra¬

vene the uncont oversial req irement that a court assessing prejudice under

Stric land must consiHer a missi le 'tq.ttigating evidence develop d in postconviciton p ocee ings." Williams, 529 U.S. at 398

13. Petit one points:outithat trial Counselcgave fionsBensical eas ns or

excuses fo her trial strategy'. hich inclu ed: "it was not my job" to investi¬

gate into the unreliable opinions of the state' expert witness, "I don't

nol why I iiich't object," "I idn't want to open doors," to isk .of reof¬

fend ng o eci ivism ates, "I choose not to investigate," into any of the

state witnesse , "I didn't want to upset the jAJry andi.Make the mad ak y

client," "I didn't want to look like the attorney who beats u on kids," and

"our goal was to show thak Hernandez was a gooH person."

The mitigation evi ence, pet tioner p esented at haBeas hearing, adds

up to a mitigation case bearing no relation to the few naked pleas for mercy

counsel puB before the jury. The undisco ered evi ence, taken as a whole,

' ight well have influenced the juror's appraisal of Hernandez's moral cul¬

pability," Rompilla, 545 U.S1* 374, 398, and the likelihood of a different

result, had the evidence gone in, the outco e actually reache at sentencing.

14. Therefore, Petitione a giies that this Cou t can not i no e the S p e e

Motion for Leave 18-
Court holdingsnJ'entioned above. In light of these precedents it is reason* 

able that fairm’indeii. jiUrist :aan disagree that counsel's failures and om’jbst' ons

consHitufe deficient perforamcne under Strickland.

And because the state court's ruling on petitioner's claim was so lac ¬

ing in justification that there was an error well understood and co prehended

Sn existing law beyond any possibility for fairminded disagreement.

15. ddi ionally/ the state court ailed to give deference to the trial

court's contention that such mitigation evidence is "the kind of evidence

that juries want to know/" and (its agreement that "it is clear/ risk assess¬

ments or studies on recidivism rates weren't introda ced by e ther party’.’"

Petitioner argues that: this ty e of psycholog cal assistance and iti¬

gating evidence is essential because without it he can not offer a well-in¬

formed expert's opposing view/ and thereby loses a significant opportunity

to raise in the juror's minds qilesions about the state's proof of an agg a¬

vating facto .

In sum/ the state court's factual findings we e under a misapprehension

as to the correct le al standard. And because the state court's legal error

ilifec -s the fact-finding process/ the resul ing factual determination will

be unreasonable and no presumption of correctness can attach to it.

Petitioner has demonstrated prejudice as a result of trial counsel's

e ficiency with respect to sentencing and a new sentencing hearing is arranted.

And having shown hat the state co rt's decision o deny Petitioner's

state habeas application was "tased on an antecedent ...unreasonable determina 

tion of the facts/" ainder §2254(d)(2)/ the requirement set forth in §2254(d)

Bs satisfied an this Court need not continue to apply AEDPA deference to

Motion for Leave -9-
the cate court's decision and can consider Petitioner's IAC claim e novo.

RELIEF SO GHT

For the reasons and grounds state above. Petitioner respectflilly rec esti that th>!s ourt GRAN his Motion for Leave to file ftis Out-of- TiBie

HaBea Corpus petition pursuant to 28 ulslb'. §2254.

Petitioner rem nds this ttou t, because of the Corona Virus pandem c,

the M chael Unit is currently quarantine until ' rther notice. his had put

strict limitations on accessing law l b ary material n o de to co plete

the research process and com lete a memorandum to file with the fede al peti¬

tion. Tterefore, Petitioner seeks suff cient amoUnt of time to pr cee with

this ap eal process, if addit on infor ation is neected to support, petitioner

can provide law libray notices.

Dat Signed Dusty lae nan

Michael Unit

2664 FM 2054

ennessee Colony, TX 75886

Motion tor Leave -10-
CERTIFICATE OF SERVIC 

1/ Dusty Hernandez/ he eby certify feat on

2020, a true an correct copy of the above and foregoing Motin for Leave to

iiStSie Out-of- ime Petition purs ant to 28 U.S'*C. §2254 and §2244(ia) was placed

in the Michael Unit nternal mailing service addressed to the U.S. Disitrict

Court tjlerk, Eastern Division of exas, 211 W!J Fergu on St., R .106, Federal

Bldg., tfyler, fe 75702 AffidavB.tj/Unswo n Declaration in Support accompanies

th s Motion.

Mot on for Leave -11 
INMATE UNSWORN DECLaH T ON

(Pursuant to Fe eral Law)

I, Diu&'tyc,fl5er Ktande / TDCJ# 1562435, being presently inca ce a¬

ted n the M c ael Unit, i n Mennt ssee iiolony, n e son County,

Texas, declare under penalty of pe ju y tha the f regoing

ue and co ect.

I, Dusty Hernan ez Hectare that on o aBout the week of March

13, 2020 scovered a H.S. Supreme tiou t'case, namely, Willia s

v. Taylor, where the state' coiirt' s analys s conce ning a ".Mere"

difference in outcome relie on an napplicable exception to

Stric land . W shington. This encou aged me to look fu ther

ini: o

into the facts of my case because of the s&ate cou t's similar

conclu ion and learned that my case is indistiinguishable .• mate i¬

ll , from this case.

I, Dusty He nandez, ecla e ..tlia t since then I have made a

due iligent effo t to lea n of the facts in my pa ticula case

and have become bette acqiiainted with the law conce ning my

ineffective assistance of callnsei claim1.1 nd I have discovere 

that the state court, in my case, held me to an inapp opriate

high standard of proof that was c nt ary to the stan ard that

1 relied on in my state application. This also directed me to

oBhe similar cases.

I, Dusty Hernandez, decla e that because I asse ted a fe e al

constitutional clai , t;Vie applicable law was not teasonablly

applied to my case.

I, Dusty Hernandez, declate that I am simplly strengthening

my fede al claim By adding new factual and legal material in

y federal petition. I am supplementing y claims and not a ding

any nevJ claims.

I, Dusty He nandez, eclate that peU factual arHd legal mate ¬

ial inclu e.§uch info mation as trial counsel's knowledge of

Unswo n Declar d on -1-
he ff . iniab 1 it y to be prepared an endangering my Sixth Amendmen 

right to effec ive assistance of counsel iin a otion Hea ing

conducted on February 6, 2009.

I, Dusty Hernande / declare that my State application was filed,

on my behalf, by Habea CouiHsei, Robert Udashen, on April 24

or 27, 2012, which was Denied on Septem er 18, 2013.

In a letter, dated September 23, 2013, he advised of nothing

else he could do fo me, n lieu of this denial. However, &HJ!

formed ie that I only had about a week left on the time per od

for filing a peti ion fede al coilrt fraik;.Uhen the state ap¬

plicat on was filed. Therefore, he does not have enough ti e

to raft an file a etition in federal court.

I, Dusty He na idez, de lare that I am 'la man at lai and since

March 13, 2020 I have ade an effort to familiarize myself with

the federal habeas corpus re iew rocess, which prompted y

Motion for Leave.

Executed on the 2020.

2664 FM 2054

ennessee Colony, TX 7 5686

Unsli n tieclaration 2-"-
May 29 f 2020

U.S. District Court iiLERK

Eastern Division

11 West Ferguson St.# RtA 106

Federal Bldg.

5?yler, TX 75702

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J'' \ 1 (1o

11 N \)\[>\ ¦

RE: Motion for Leave to file Oiit of Time Petition

Dear Clerk,

Enclose please f nd one original copy of my w'otiBn for Leave to

ile (5.ut-of-T ime Petition purs ant to 28 U.S.C. §2244(D). My Un¬

sworn Inmate Declaration is attached to t is motion. Please be

advised that I have also included a copy of the first-page of this

Motion to be filed and stamped tB be returned to e. I have p o¬

vided a SASE envelope fo your c iHvience.

Also, be advised thiBt I am a layman at law and am not familiar with

this court's filing procedures*.' In the event that there is a dis¬

crepancy of any nature, A request that you notify me as soon as

possib e in order to correct it to pre ent anything fraW proced rally keeping my federal petition fro being revie ed by this

Court. I am learning as I go, to put it in simle terms. In addition,

I ask this tiourt to construe y Motio fo Leave an /o any othe 

dccdMIent I inteiH to file in this ti urt liberally; and if a con-

¦¦BtitutiBnal violatiBiH caiH be ecifered friBm my arguments, to please

eem it as such j I hope that I am filing it in the co rect tjoiirt.

Thank you for your attention to this matte .

Sincerely,

DusBty Harnand/:

Micha -f Unit

2664 FM 2054

#156240!

Tennessee Colony, TX 75886

cB: File/dh

Enclosures: UnsBorn Declaration, Motion fiBr Leave
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