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Texas Triad of Injustice

By Justin Panus, TDCJ #02167693. August 24, 2023



I would like to present to you a petition I helped submit in 2022 to a body of the United Nations: The Inter-American Commission on Human Rights (IACHR) Special Rapporteur for the United States, Commissioner for Persons Deprived of Liberty.



In short, the rights of Texas prisoners guaranteed by the United States and Texas Constitution are meaningless. For decades Texas has been withholding our right to an attorney during the Habeas Corpus appellate process. For decades we have been prevented from obtaining the necessary evidence to prove our innocence by Texas statutes. And lastly, for decades the Texas Court of Criminal Appeals has been in violation of the Texas constitution by issuing appellate decisions by a single proxy judge, rather than the constitutionally required panel of three judges or en banc court, which was exposed in 2016 in the case of Ex parte Dawson, 509 S.W.3d 294.


Combine this with the 1993 Crime Bill which instituted 34 USCS § 12103 and 12104 "Violent Offender Incarceration and Truth-In-Sentencing Incentive Grants," which gives states federal funding in the form of grants to not only incarcerate more people, but to increase the prison time actually served. This rewarded the State of Texas to create a system of arbitrary detention that it's citizens have blindly accepted.



Before you read I would like you to bear in mind that it is difficult to simplify the complexity of these issues and that this petition was tailored for those with a basic understanding of American Jurisprudence. All facts referenced in this petition can be fact checked at their source.



The following is a copy of the above mentioned petition. As of this writing, we have not heard back from the Special Rapporteur regarding this matter.



THE TEXAS TRIAD OF INJUSTICE


This petition to the Special Rapporteur is submitted on behalf of all present and future prisoners incarcerated within the Texas Department of Criminal Justice (TDCJ), in the State of Texas, Unites States of America and respectfully requests the the Special Rapporteur immediately exercise his authority under the thematic mandate to investigate the following issues related to Texas prisoners being systemically denied meaningful habeas corpus review.



This petition is on the Texas Triad of Injustice which consists of three equally impeding state-created obstructions working in tandem. The triad is deliberately designed to create an insurmountable barrier between Pro Se prisoners and meaningful access to Habeas Corpus review. This barrier has rendered Habeas Corpus review in Texas an ineffectual remedy to the extent that it results in a consistent pattern of gross, flagrant and mass violation of human rights. This is because it systemically deprives hundreds of thousands of people the universally recognized right to liberty with no meaningful redress. The Texas Triad of Injustice consists of:


* Denial of Counsel during Habeas Corpus process


* Insurmountable Statutory Obstruction of Evidentiary Burden


* Quorum of One: Unconstitutional Habeas Review


UN STANDARDS FOR JUSTICE



The United Nations "International Covenant on Civil and Political Rights" (ICCPR) guarantees that: "All persons shall be equal before the Courts and Tribunals" [See, ICCPR, art. 14.1] and that "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law" [See, ICCPR, art. 14.5].



The ICCPR also ensures "that any person whose rights or freedoms as herein recognized are violated have an effective remedy" [ICCPR, art. 2.3(a)] and "that any person claiming such remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities" [ICCPR, art. 2.3(b)].



This fundamental Human Right is designed to protect liberty and is echoed by Article 7 and 8 of the Universal Declaration of Human Rights ("All are equal before the law", "Everyone has the right to an effective remedy by the competent national tribunals for acts violating fundamental rights guaranteed him by the constitution or by law").



DENIAL OF COUNSEL DURING HABEAS CORPUS PROCES


The Writ of Habeas Corpus is essential to the protection of fundamental and constitutional rights - but in Texas, Habeas Corpus has been rendered a meaningless ritual for those unable to afford appellate counsel. This means that justice is equal only to that which a prisoner can afford.



The structure, design, and operation of the Texas procedural system dictate that no indigent prisoner in Texas is entitled to the benefit of counsel in raising a claim of "Ineffective Assistance of Trial Counsel" (IATC). This is because Texas procedures make it 'virtually impossible' to present an adequate claim of IATC on Direct Appeal. The Texas Court of Criminal Appeals has explicitly stated that as a general rule a prisoner should NOT raise an issue of IATC on Direct Appeal and that the exclusive and correct forum is Habeas Corpus.



However, by deliberately choosing to move IATC claims outside of Direct Appeal process where counsel is constitutionally guaranteed, Texas has significantly diminished prisoners ability to file such claims. This is because a prisoner, unlearned in the science of law, cannot be expected to possess the legal knowledge necessary to prepare thoughtful and meritorious Habeas Corpus applications. A prisoner may not only misapprehend the substantive details of Federal Constitutional Law, or fail to comply with the State's procedural rules, but while confined in prison, the prisoner is in no position to develop the evidentiary basis for a claim of IATC - which often turns on evidence outside the trial record. This is significant because in Habeas Corpus the burden is on the prisoner to allege and prove facts which, if true, entitle the prisoner to Habeas relief.



Not only do Texas prisoners have to contend with the inherent restrictions of their confinement, but Texas has implemented a number of statutes that erect an insurmountable obstruction in obtaining this evidence necessary to carry their burden of proof. The statutory obstructions are explained in more detail in section "Insurmountable Statutory Obstruction".



The U.S. Supreme Court has severely criticized the Texas appellate system as it relates to the necessity of Habeas Counsel in Texas. Yet the Texas Legislature has not even blinked after these holdings. See, Martinez v. Ryan, 132 S.Ct. 1309 (2012) and Trevino v. Thaler, 133 S.Ct. 1911 (2013).



Significantly, the U.S. Supreme Court held that Habeas Corpus is the " initial-review collateral proceeding" for IATC claims in Texas, and as such, the equivalent of a prisoners direct appeal as to such claims. See also, Ex parte Buck, 418 S.W.3d 98, 109 (Tex. Crim. App. 2013).



If a State does not appoint appellate counsel on a Direct Appeal, it would be deemed unconstitutional. It stands to reason that when an "initial-review collateral proceeding" (i.e. Habeas Corpus) is the equivalent of a prisoner's Direct Appeal as to IATC, then it follows that it is necessary for the State to appoint appellate counsel for that appeal otherwise it would be unconstitutional. They are fundamentally the same in all but name.


 

The U.S. Supreme Court has further held that when counsel is not appointed for an "initial-review collateral proceeding" it raises "a significant risk of injustice". See, Martinez, id, and Trevino, id.



Unfortunately, Texas prisoners lack standing to challenge the very structure or design of the judicial system which deprives them of their liberty. The system is designed as a closed loop which only those wealthy enough to afford appellate counsel can escape.



INSURMOUNTABLE STATUTORY OBSTRUCTION


As explained briefly above, Texas has implemented a number of statutes that erect an insurmountable obstruction in obtaining the evidence necessary to carry a prisoners burden of proof in their Habeas Corpus application. This compounds the damage caused by the denial of counsel during the Habeas Corpus process. Some of those statutes are as follows:



Texas Government Code §552.028 is part of the Texas Public Information Act and allows government bodies to simply ignore all requests for information from any person incarcerated in an institution - even if that person offers to pay for such information. Although §552.028(b) technically allows a prisoner to request information pertaining only to themselves, in practice this is not the case. Government bodies in Texas routinely ignore such requests and cite §552.028 broadly to deny prisoners the information they seek for their Habeas Corpus applications.



Texas Code of Criminal Procedure, article 39.14(f) specifically prohibits an attorney from providing a prisoner with a copy of the "discovery" items in their case or the content of their case file/client-attorney file (other than the prisoners own statement). See, In re Powell, 516 S.W.3d 488 (Tex. Crim. App. 2017).



Interestingly, art. 39.14 is commonly known as the 'Michael Morton Act' which is named after the exonerated Texas prisoner. Michael Morton was granted habeas corpus relief after he discovered untested DNA evidence in his case file that proved his actual innocence. Significantly, if Michael Morton was in a Texas prison today, the statute carrying his namesake would prevent him from obtaining the very evidence he needed to prove his innocence. This is clearly the underlying intent of the Texas Legislature when they enacted this statute.



552.028 and 39.14(f) work in concert to deny prisoners the evidence necessary to prove their claims in an application of Habeas Corpus. The obvious question must be asked: How is an unrepresented prisoner meant to prove their allegations of IATC if they are prevented by both statute and their physical confinement from obtaining the necessary evidence? THEY CAN'T!



THE QUORUM OF ONE


The Texas Constitution governs the manner in which the Texas Court of Criminal Appeals must convene to decide its cases. It mandates that a quorum of judges decide whether Habeas Corpus relief should be denied - either a panel of THREE judges or by the en banc court. See, Tex. Const. art. V, §4.



However, as exposed in Ex parte Dawson, 509 S.W.3d 294 (Tex. Crim. App. 2016) the Texas Court of Criminal Appeals' internal administrative procedures effectively acts as a standing order permitting an individual judge to act as a proxy for a quorum of judges on the basis of a pre-vote on a category of cases that are never actually seen by a judge other than the proxy judge.



In other words, rather than the constitutionally required quorum of three judges or the en banc court, the votes of all the required quorum are given to a single proxy judge who votes on their behalf. It is essentially a quorum of one.



Although the State has the right to decide how it reviews its Habeas Corpus applications, when the manner in which the review must be conducted is expressly prescribed by law (in this case the Texas Constitution), then due process and equal protection demand that review be meaningful, fair and adequate in accord with the prescribed law. Since the Texas Constitution expressly states that Habeas Corpus review MUST be done by a panel of three judges or be the en banc court the Texas Court of Criminal Appeals can not legally get around this requirement by appointing a proxy judge to act as a quorum of one - BUT THEY DO!



To add insult to injury, every application for Writ of Habeas Corpus is reviewed by a "Writ Staff Attorney" who drafts memoranda analysing every claim a prisoner asserts. The single judge (for which the Habeas Corpus application is randomly appointed) bases their proxy vote on the writ staff attorney's opinion in that memoranda and their recommendation to deny relief.



In essence, the writ staff attorney (who is unelected) is the one making the decisions which Habeas Corpus applications receive habeas relief and which ones are denied. Then the single proxy judge votes on behalf of the constitutional quorum.


 

It is beyond doubt that such is a judicial facade that is depriving all Texas prisoners of meaningful and effectual review of their convictions and sentences. And as such, for as long as this practice has been going on, Texas prisoners have been denied full and fair adjudication of their Habeas Corpus applications.



WHY THIS ISSUE WARRANTS CONSIDERATION



As this Human Rights Council likely knows, Mass Incarceration is a serious issue in the United States of America. The United States only represents 5% of the world's population but a massive 25% of the world's prison population. Texas by itself incarcerates an average of 140,000 people. The Texas incarceration rate is at least 176 points higher than the U.S. average. The Texas incarceration rate is 840 per 100,000 people - higher than any nation on earth.


 

To systematically deny such a large prison population their right to equal standing before the law and meaningful review, is a human rights violation of such a magnitude as to warrant serious consideration by the Special Rapporteur. Such international scrutiny may prove to be the impetus for much needed judicial reform in Texas.



That concludes our petition. This clearly shows that some constitutional conservatives are more than willing to ignore the constitution in order to convict someone and keep them incarcerated. I cannot say that we are whistleblowers because this is information available to the public and is taking place in clear view of the public. It is simply an act of deception upon the people.



In 2022 Texas Governor Greg Abbott pulled $840.1 million out of the TDCJ budget to fund his 'Operation Lone Star' border security operation (January 2022 = $426.9 million, April 2022 = $53.6 million, October 2022 = $359.6 million). Over $300 million of that was COVID relief funding given to Texas by the federal government to be specifically used for its prisons but instead, it was clearly directed elsewhere.



Since then, the prison population has remained relatively unchanged despite the significant budget cuts. Prisons are severely understaffed, our daily calorie intake has been reduce to 1,100 - 1,600 calories, and the majority of Texas legislators still refuse to provide prisoners with air-conditioning. Arguably these issues would not be as problematic if we were not suffering from massive budget cuts and gross overpopulation. It seems that our incarceration is no more than a source of funding.


I have personally succumbed to these constitutional obstructions. I was not provided a Habeas attorney, my trial counsel refused to provide me with any part of my client-attorney file (including a redacted version), and I was denied fair and meaningful review of my application for write of Habeas Corpus. My trial attorney submitted a perjured affidavit to the trial court during my Habeas proceeding where he made numerous false statements that were unequivocally contrary to the trial record. This was in regards to his decision to violate my autonomy by not allowing me to testify and not pursing my chosen trial defense, which was clearly established under the Supreme Court in McCoy v. Louisiana, 138 S.Ct. 1500.




Upon my submission of the evidence of the trial record itself to disprove his claims, my evidence was ignored and the Texas Court of Criminal Appeal (CCA) denied relief without an opinion, but stated that they have based their decision from the findings of the trial court, whom relied upon the perjured affidavit of my trial counsel. Subsequently I filed a Motion for Reconsideration to the CCA and this time I presented more evidence and challenged the quorum of one review process. Within a month the CCA denied my motion without providing me notice and fortunately, a friend recently discovered this denial prior to my AEDPA expiration to file a federal appeal. See, Ex parte Justin Panus, WR-94,335-01.


 

This also happened to a friend of mine in the case of Ex parte Scott Ash James Zirus, a foreign national from Australia. He presented a sworn federal deposition of a police officer admitting that he violated Zirus' rights by illegally interrogating him without requested counsel, but the CCA held that he presented no credible evidence and denied relief.



This of course is no coincidence but rather, it is a flagrant attack on our constitutional rights in the name of money and imagine. Justice has simply become a demonstration of power.



I, Justin Panus, am a prisoner in the Texas Department of Criminal Justice. I am the General Secretary of the National Lawyers Guild - Prison Chapter (NLG-PC). Since my wrongful conviction I have vehemently and aggressively fought for my innocence and have taken a firm stance against the unconstitutional conditions of my confinement. The unfortunate reality is that I remain alone in this fight with zero support from the public or professional legal representation. Together, the NLG-PC (a guild of prisoners) has initiated a series of law suits intended for class certification on the following issues:



-Baker, et al v. Collier, et al, 1:22-CV-01249 (Extreme Heat/Universal AC)


-Zirus, et al v. Religious Practice Committee, et al, 1:22-CV-00191-H (Buddhist Religious Rights)


-Panus, et al v. O'Daniel, et al, 1:23-CV-00086-H (Inhumane and Inadequate Feeding Practices)


-Cox, et al v. Collier, et al (TBA. Short staffing/overcrowding)



If someone could request and obtain a copy of my Writ Staff Draft Memoranda and related documents analyzing the claims and arguments in my application for writ of Habeas Corpus, it would likely reveal the practices and procedures stated in our petition and in Ex parte Dawson. As of August 2023 I have filed my federal application for writ of Habeas Corpus in the U.S. District Court of Austin. The Write to Writ Draft Memoranda could show that the State made an "unreasonable determination of the facts," a standard that is required to be met in federal court to be granted review.



I would like to ask you:


1) Would you or someone you know be willing to investigate and publish a story on this topic?


2) Would you or someone you know be willing to obtain my "Writ Staff Draft Memorandum" to aid my appeal and prove to the public that this is taking place? If so, I've provided information on how to make such a request.


3) Do you know an attorney who would be willing to accept my appeal pro bono, which has already been filed to the U.S. District Court in Austin, Texas as of August 2023?


If you cannot help with any of these requests, I truly understand. I would at least like to thank you for taking the time to read this and I would please ask you to share and discuss this amongst your friends, family, colleagues, and concerned citizens.



HOW TO MAKE THIS REQUEST


This would be considered a common-law request as Rule 12 does not permit this request under the Open Records Provision. You will need to print and attach 5 exhibits to this request which are the following Rule 12 Appeal Decisions:


17-006 (exhibit A)


17-017 (exhibit B)


17-005 (exhibit C)


00-001 (exhibit D)


00-003 (exhibit E)



PLEASE NOTE: This request cannot be made for me or on my behalf. This request is specifically for YOU.



This is an example of the letter that could be mailed to the Texas Court of Criminal Appeals. Simply copy and paste and fill in the required criteria. I am unsure on what to do or who to file to if this request goes unanswered. My thoughts are a possible notice to the State Attorney General's Office or a Mandamus to the Texas Court of Appeals.


Texas Court of Criminal Appeals


ATTN: Custodian of the Records


P.O. Box 12308


Austin, Texas 78711-2308


 


RE: REQUEST UNDER OPEN COURTS PROVISION



To The Custodian of the Records,



This is a request under the Open Courts Provision in the Texas Constitution, Article I, Section 13  the First Amendment to the United States Constitution  and the common-law of the State of Texas. Please direct this request to all appropriate offices and components and/or departments.



I respectfully request a copy of all Writ Staff Draft Memoranda and related documents analyzing the claims and arguments presented in the following applications for writ of habeas corpus:


> Ex parte Justin Edward Panus


         WR-94,335-01




LEGAL RIGHT TO REQUESTED DOCUMENTS


As I am sure that you understand, the government bodies subject to the Texas Open Records Act do NOT include the judiciary. Tex. Gov. Code 552.003(1)(B).


However, this request is NOT made pursuant to chapter 552. Instead, I make this request pursuant to the Open Records Provision and the common-law right to public access.



It is also relevant that the Officer of the Court Administration has determined that the above requested documents are NOT a "Judicial Record" as defined by Rule 12.2(d). See, Rule 12 Appeal Decisions 17-006 and 17-017 (ATTACHMENT A and B).


This is relevant because it has been clearly determined that case records and court records which are not "Judicial Records" within the meaning of Rule 12 may be open pursuant to the common-law right to public access. See, Rule 12 Appeal Decision 17-005  00-001  00-003 (ATTACHMENT C, D, E)  also see, Express-News Corp. v. MacRae, 787 S.W.2d 451, 452 (Tex. App. - San Antonio 1990).



Since this request is not made pursuant to Chapter 552 and the requested documents are not a "Judicial Record", I have a common-law right to access the requested Writ Staff Memoranda and related documents analyzing the claims and arguments presented in the above listed application for writ of habeas corpus.

 


FULFILLING REQUEST


For convenience, an electronic format of the requested documents may be sent to the email listed below:


(your email)


Alternatively, I can be reached via written correspondence at the address below. If there are any fees or costs for providing a copy of the requested documents, please contact me with the exact amount and I will promptly organize for it to be paid in full.


 


EXPEDITED PROCESSING REQUEST


 

I certify that the above information is true and correct to the best of my knowledge. I ask this Office to respond to this request within 20 business days of its receipt. If this request is denied in whole or in part, I ask that this Office provide explanations of all deletions by reference to specific exemptions.



Thank you for your time and prompt response to this request. It is greatly appreciated.



Respectfully Submitted,


(Your name and address)




Thank you for your time!

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Kontakt / Contact

Danke für's Absenden!

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Untitled

Der erste Brief / The first letter 


Was schreibt man als erstes an einen Häftling? Komischerweise, hatte ich keine Probleme die passenden Worte zu finden. Einfach alles fühlte sich ganz natürlich an, als würde ich seine Seele schon sehr lange kennen. (Nein, nicht im romantischen Sinne.) Ich spürte einfach eine tiefe Verbundenheit. Bei einem Verbündeten stellt sich die Frage nicht, welche Themen angebracht sind. Mein erster Brief an ihn war 10 Seiten lang. Ich musste mich quasi bremsen, denn an Ideen mangelte es nicht. Ich erzählte ihm über Intuition, wie ich ihn gefunden habe, über die Macht der Gedanken. Meine Träume und Wünsche. Einfach alles, was mir auf der Seele lag und wovon ich genau wusste, dass er weiß wovon ich rede. Eine Woche habe ich gebraucht um zu überlegen, ob ich das wirklich möchte. Man hört schließlich von Gefahren und Warnungen was solche Brieffreundschaften betrifft. Aber wie kann ich meiner Intuition eine Abfuhr erteilen? Garnicht, ganz genau! Also ab zur Post damit. 22 Tage habe ich gewartet... Dann war sie da, seine Antwort. Nicht nur die Antwort auf meinen Brief, sondern auch die Antwort auf meine Intuition. Auf 14 Seiten schrieb er genauso, wie ich es gehofft hatte. Das ist die Seele, die ich schon kenne. Kein Zweifel. 



What is the first thing you write to a prisoner? Strangely enough, I had no trouble finding the right words. Just everything felt natural, as if I had known his soul for a very long time. (No, not in the romantic sense.) I just felt a deep connection. With an ally, there is no question about what topics are appropriate. My first letter to him was 10 pages long. I had to sort of slow myself down, because there was no shortage of ideas. I told him about intuition, how I found it, about the power of thoughts. My dreams and wishes. Just everything that was on my mind and that I knew he knew what I was talking about. It took me a week to think about whether I really wanted this. After all, one hears of dangers and warnings concerning such pen pals. But how can I refuse my intuition? Not at all, exactly! So off to the post office with it. 22 days I waited... Then there it was, his answer. Not only the answer to my letter, but also the answer to my intuition. On 14 pages he wrote exactly as I had hoped. This is the soul I already know. No doubt about it.

Die Anfänge / The beginnings

2022, nach einem wundervoll inspirierendem Abend bei einer Freundin, folgte ich meiner Intuition auf der Suche nach... Ja, nach was eigentlich? Das wusste ich zu diesem Zeitpunkt noch nicht. Ich vertraute meiner inneren Stimme und ließ mich einfach leiten. In den Tiefen weiten des Internets, durchforstete ich Seiten nach Schreibutensilien. Ich liebe alte Füllfederhalter, Kugelschreiber, schönes Papier und tolle Briefumschläge. Stundenlang sah ich mir antike Füller an, las Poesie und Kurzgeschichten, bis ich auf einer Seite für Brieffreundschaften landete. Ich dachte mir, es sei nett, mal wieder etwas anderes in meinem Briefkasten zu finden, als Rechnungen. Irgendwie spürte ich jedoch, dass dies nicht das ist, wonach ich "gesucht" habe. Durch Zufall stieß ich dann auf eine Seite names "Wire of Hope". Es hat ein paar Minuten gedauert, bis ich begriffen habe worum es eigentlich ging. Es ist eine wundervolle Seite, die US-Häftlinge vorstellt, welche auf der Suche nach Brieffreundschaften sind. Zugegeben, hatte auch ich ein paar Vorurteile und dachte mir "Naja, Brieffreunde suchen die sicherlich nicht". Trotzdem hat meine Neugierde gesiegt und ich sah mir ein paar Profile von Insassen an. Was habe ich überhaupt erwartet? Ich weiß es nicht! Die ersten drei Profile waren, mehr oder weniger,  genau das, was ich vermutet hatte. Eben Männer auf der Suche nach etwas, vorzugsweise weiblicher, Ablenkung. Wer kann es ihnen verübeln? Das vierte Inserat las sich jedoch anders. Ich erinnere mich genau an dessen Anfang "Perspective defines individuality. Individuality changes with new perspective. Let us evolve our individualism and share our perspectives. I welcome a conversation with an open mind... " Und da war es, dieses besondere Gefühl. Meine Intuition führte mich nicht zu etwas, sondern zu Jemandem! Justin. 
In 2022, after a wonderfully inspiring evening at a friend's house, I followed my intuition in search of.... Yes, for what actually? I didn't know that at the time. I trusted my inner voice and simply let myself be guided. In the depths of the Internet, I searched pages for writing utensils. I love old fountain pens, ballpoint pens, beautiful paper and great envelopes. I spent hours looking at antique fountain pens, reading poetry and short stories, until I landed on a site for pen pals. I thought it would be nice to find something other than bills in my mailbox. Somehow, however, I felt that this was not what I was "looking" for. By chance I came across a site called "Wire of Hope". It took me a few minutes to realize what it was all about. It is a wonderful site that features US prisoners who are looking for pen pals. Admittedly, I too had some preconceptions and thought to myself "well, they certainly aren't looking for pen pals". Nevertheless, my curiosity won out and I looked at a few profiles of inmates. What was I expecting to find anyway? I don't know! The first three profiles were, more or less, exactly what I had suspected. Just men looking for some, preferably female, distraction. Who can blame them? The fourth ad, however, read differently. I remember exactly how it began: "Perspective defines individuality. Individuality changes with new perspective. Let us evolve our individualism and share our perspectives. I welcome a conversation with an open mind... "And there it was, this special feeling. My intuition led me not to something, but to Someone! Justin.

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