Supreme Court of the United States

Cause No.

In The SUPREME COURT OF THE UNITED STATES

Petition for a Writ of CERTIORARI

Robert Norman Smithback, Petitioner, V.

STATE OF TEXAS, Respondant.

On Appeal From The SUPREME COURT OF TEXAS

Robert-Norman. .Smithback ®

#1080109 - Mark W. Stiles iMt C/O 3060 Farmers Market 3514 Beaumont, Texas state uS.A. Petitioner (Pro Se), Sui Juris Issues Presented For Review

Smithback hereby presents. the following issues before this. Court in consideration for the Petition for Writ of Certorari.

Issue #1. Whether Texa. Jurisprudence.enforcés constitutional guarentees, especially and specifically this Court's Farmer v. Brennan, 511 U.S. 825 (1994) decision; and, Issue #2. Whether Texas Jurisprudence equally protects Smithback's constitutional guarentees, especially and specifically, this Court's Farmer v. Brennan, 511 U.S. 825 (1994) decision.

ii. List of Parties & Counsel

Not all parties appear in the caption of this case. Michael Butcher, Warden of the Allen B. Polunsky Unit, defaulted by failing to file an answer to the civil action under review in this case. He is not represented by any attorney, and has waved such representation via default. The rest of the Respondents are being represented by the Attorney General of Texas. For the convenience of this Courts Petitioner provides the list of parties below:

Robert Norman Smithback Petitioner

Robert-N..Smithback® do 3060 Farmers Market 3514 Beaumont, Texas U.S.A. Non-Domestic near7 7705

Petitioner (Pro Se). Sui Juris

STATE OF TEXAS Respondant

KEN PAXION - ATTORNEY GENERAL Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548

Counsel for Respondant

CAPTAIN JOHN P. BOLTON ALLEN B. POLUNSKY UNIT TEXAS DEPARTMENT OF CRIMINAL JUSTICE 3872 Farmers Market 350 South Livingston Texas 77351 Respondant LLC & KEN PAXTON - ATTORNEY GENERAL Office of the Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548

Counsel for Respondant

11].. Index of Authorties Arizona v. Fulminante. 499 U.S. 279, 309 (1991) Carmell v. Texas. 529 U.S. 513. 533 (2000) Farmer v. Brennan, 511 U.S. 825 (1994) Hazel-Atlas Glass Co. v. Hartford-Em Co. 322 U.S. 238 (1944) United States v. L.A. Tucker Truck Lines, Inc. 344 U.S. 33. 37 (1952) Woodford v. Ngo, 548 U.S. 817 90 (2006)

Matter of Cober, 100 F.3d 1195 (5th Cir. 1996) Ruiz v. Estelle, 679 F.2d 11151 1115-16 (5th Cir. 1980)

Dickson v. Strickland, 144 Tex. 176, 256 S.W. 1012 (1924) Doyle v. Lucy. No. 14-03-0039-cV, 2004 WL 612905, at *3 (Tex.App.-Houston 114th Dist.] Mar. 30, 2004, no pet.)(Mem.op.) Hickson v.. Moya, 926 S.W.2d 3971 399 (Tex.App..-Waco, 1996, no writ) Holt Atherton Industries, Inc. v. Heine, 853 S.W.2d 80 (Tex. 1982) Texas v. White,, 7 Wallace 700 (1869)

iv. Al4 Table of Contents

Opinions Below #1. Statement of Jurisdiction #2. Constitutional And Statutory Provisions Involved #3. Statement of the Case A. Argument In Support of Granting Certorari #12. Conclusion #15. Index of Appendicies

Appendix "A" - Civil Complaint Smithback v. Butcher, et.ral., C1V29146 (411th District Court; Polk County, Texas).

Appendix "B" - Correspondence from Cathy Dollinger, Court Coordinator; 60th District Court; Jefferson County, Texas.

Appendix "C" - "Citation By Mailing" from the Jefferson County Court Clerk; Certified Mail Receipt to Michael Butcher, and Return Receipt; Return of Service from Michael 'Butcher; "Motion For Default Judge-. ment" by Robert-Norman. .Smithback in Smithback v. Butcher, B-195847 (60th District Court; Jefferson County, Texas); Judgement of Kaycee L. Jones, 411th District Court.

Appendix "D" - "Judgement" denying Motion To Compel Discovery; "Motion To Quash, Motion For Protective Order, And Objections To Discovery" by the Dallas County District Attorney's Office, filed in Smithback v. Butcher, C1V29146 (411th District Court).

Appendix "E" - "Zero Tolerance" notice (in both English and Spanish)

by the Texas Department of Criminal Justice - Exec- utive Director; "Prison Rape Elimination Act" Notice published in The Echo (in both English and Spanish).

Appendix "F" - Prison Rape Elimination Act notice from the American Correctional Association (in both Englih and Spanish). r- NOU

V& - o( (r Spe In The SUPREME COURT OF THE UNITED STATES OF AMERICA

PETITION FOR WRIT OF CERTORARI

OPINIONS BELOW

Petitioner Robert Norman Smithback (hereinafter "Smithback") respect fully prays that this Court issue a Writ of CERTORARI in this case that, reverses and remands for a jury trial, the judgement rendered by the Ninth Court of Appeals of Texas at Beaumont in Cause Number 09-16-00210-CV (Pet. for Review Denied, 23 Mar., 2018; 18-0034; Texas Supreme Court); and any other relief this Court deems proper and just in the enforcement of Smithback's Civil Rights.

#1. STATEMENT OF JURISDICTION

This Court possesses jurisdiction over this case under Article III, Section .3,- United States Constitution, and Title 28 U.S.C. Section 1651(a). Smithback seeks review by this Court of a judgement of the Ninth Court of Appeals at Beaumont (Texas), in Smithback v. Butcher, et al., Cause Number 09-16-00210-CV. The Texas Supreme Court denied Smith-back's Petition for Review on March 23, 2018, without written order. See Smithback v. Butcher, Cause Number 18-0034.

#2. Statement of the Case In 1993, the Texas Legislature amended the Texas Code of Criminal Pro- ceedure in effect reducing the quantum of evidence required to cOvict crim-i- inal defendants for certain crimes. One of those amendments were to chapter 38, Section 38.07 of the Texas Code of Crimininal Proceedure. This amendment only allowed the testimony of 'a child, ;whom cannotbbeccross-exaxninéd; by:_ any defense attorney, to be sufficient to convict thedefendant. OnMy2nd, 2000, this Court held in Carmeil v. Texas, 529 U.S. 513 that such amendments were .a violation of the ex post facto clause Of the United States Constitution. This court ,hold that the rules of evidence regarding a conviction of treason, i.e.', requiring two or more witnesses, also applies to other crimes. This Coiiirt further held that the amendment to Section 38.07 àcilitates an. easier conviction as such amendment places the burden of: prov ing a defendants innocents on the defendant(s). Texas "fails to abide by it's own rules, altering them' in order. to facilitate an easier conviction." Id @ 533. unfortinuately, Texas has essentially ignored this Court's legal dec- isioni Less than a year later, Smithback was served with an arrest warrant while he was in the Carter County Detention ,Center 'in Ardmore, OklahOma. Oklahoma forced Smithback to wave .hiâ:extradition rights, an6 øn or about April 18th, 2001, a Deputy from the' Dallas County (Texas)' _Sherriff' s Departm ived__ County Jail. About fours hours later, 'he was arraigned on one count of AggrivatedSexual Assault of a Child persuant to Cha- pter 22, Section 22.021, TexasPenal Code.' During this arraignment, a Magist- rate Judge, acting on behalf of both the 183rd District Court, and the Dallas Coutny District Attorney's Office a criminal prosecutor was not at the arraignment), placed a $75,000 bond on the charge, and initiated proceedures foré- resentation by counsel for him. Paul J. Johnson (hereinafter "Johnson") was eventually appointed to represent Smithback in the case. During their first meeting, which was held outside the 265th District Court- room, but before Smithback was formally indicted, 'Mr. Johnson revealed' to him • that the State :.needs not probable cause, nor evidence to convict him on the said charge. It would be later discovered that Mr. Johnson was recruited by the Dallas County Assistant District Attorny, S. Ward Maedgen (hereinafter "Maedgen?) to assist in the conviction through fraudulent representation. ' On or' about April 20th,' 2001, Smithback was formally indicted by a Dallas. County Grand Jury on said charge. The Dallas County Sherriff' s Department has a rule regarding 'the "inniatés" access to the courtroom. Unless the inmate's case is high profile, drawing medis attention, or is going to.trial, pleading guilty, or' being sentenced, the inmate is not allow to be present inside the courtroom. S/he must wait in a holding cell outside the courtroom's confrence wall untill s/he is transported back to the jail. The inmate cannot see inside the courtroom, nor can' s/he hear the interactions going on inside. When inmates confer with their' attorney, it is done through a bullet proof window with a metal "speaker". Any documents that is needed to be transferred is done under a small slit in the bottom of the window frame. When Mro;Johnson and Smithback 'met a few days late for the preliminary hearing, Smithback communicated to Mr. Johnson his desire to plead not guilty. Mr. Johnson returned to the courtroom, and did not return. Smithback was not

#4. 1

informed that a trial by jury date was set for July 30thi 2001. nit.hback was tt.h&t án`:Offer of ten years differed-adjudicated probation was available for his consideration in the event he wished to plea guilty. Smithback refused the offer citing his actual innocents. Smithback would not hear from Mr. John- son until Jul 30th. On that day, Smithback was brought to the holding cell outside the courtroom wearing his "street" cloths. Mr. Johnson enterd the confrence area, and a. jailer released Smithback to speak with Mr. Johnson. Mr. Johnson asked him whether he was, still pleading not guilty, and Smithback affirmed. Smithback asked him about contacting. a specific witness that could possibly exonerate him in trial. Mr. Johnson took this information down, and as Smithback would later discover, refused to persue that witness. It was later discovered that the complaining witness, and her mother, deliberately refused to appear for trial. The Dallas County District Attorney's office contacted' her that';afternoon regarding their deliquency. Mrs. Rebecca McRaei mother of- the complaining witness, Jessica McRae, explained to the unidentified 'individual-, that she did not want to continue the.', prosecution of the case, and asked the individual to have the case dismissed. Mr. Johnson was notified of the deliquency, and the unwillingness 'of the witnesses to testify against Smithback, but he did not inform Smithback of the developement, nor did 'he seek a dismissal of the case for want of prosecution. Judge Keith Thomas Dean (hereinafter "Judge Dean"), presiding judge of the 265th' District_Court, was notified of the delequency as eII aseThest of justice', he allowed a joint motion for continuence, setting a hearing for August 12th (on or about), 2001.

On that day, Smithback was again brought to the courthouse, but did not see Mr. Jornson. it was later discovered that on this day, Judge Dean granted a new trial by jury date for September 17th, '2001.. There' was no attempt by the court to inform Smithback of the new trial date, thus engaging in active deception and fraud for the purpose 'of elicting a conviction 'contrary to both federal and state constitutional laws. At no time during the adjudication of this case was the State interested in 'acheiving justice. i.twas later discovered that the purpose, of' this deception and fraud was to protect the State from civil liability since the State actually failed to possess jurisdiction under Carmell Mr. Johnson's assignment. to Smithback's case was engineered not to ensure the enforcement of Smithback's civil rights, but to ensure State dominion over the people.- through enforcement of the State's will. About a week later, Mrs.. Rebecca McRae (hereinafter "Mrs. 'McRae") was again served with a subpoena, ordering her to appear for jury. trial on September 17th, 2001. She was further !ordered to bring the complainant, Jessica McRae. On September 17, Smithback was again' brought to the holding cell outside the courtroom in his "street" cloths. Smithback was suspecting that the jury trial. date was nearing, but was unaware of the deception being perpetrated against him. Mr. Johnson entered the confrence area, and a jailer released , Smithback to speak with him. Mr Johnson was made aware of Mrs. McRae'.s failure to appear through Maedgeni but due to the agreement made between Mr. Johnson and r4aedgen, Mr. Johnson did not relay this information to Smithback. Smithback was begining to suspect illicit activity due to Mr. Johnson's- reluctance to.. i inform Smithback of pertinent information regarding the status of the case. Mr. Johnson only informed Smithback of a modified plea agreement that Mr. John- son encouraged him to accept. This modified agreement was a reduction of probation from ten years-differed-adjudication, to five years differred-adjudication. Smithback would still have to register as a sex offender, attend sex offender treetment programs, and refrain from placing himself where children may congreg-

#5. ate, which ment he could not go anywhere., church, restaurants, public trans- portation, sidewalks, etc. Smithback refused the agreement, again citing his actual innocents. After the meeting, Mr. Johnson returned to the courtroom, and Smithback was placed back into the holding cell until he was escorted back to the jail. Smithback would not see Mr. Johnson again until October 3rd, 2001. Judge Dean allowed another continuance for that date despite being told of the mother's deliquency and her refusal to cooperate with the: prosecutor's attempts at obtaining a conviction. on October. 3rd , Smithback was borught to,.,.-the holding cell, and eventually met Mr. Johnson in the confrence area. It was at that time that Smithback tried to fire Mr. Johnson. Mr. Johnson told Smithback that the court would not allow it, citing a polity that prohibits a defendant from obtaining new counsel during the adjudication of the case. Mr. Johnson did not show Smithback where the pol- icy could be found. Instead, Mr. Johnson. continued to encourage him into accepting the plea agreement. Smithback refused. Smithback did not ask Mr. Johnson when he was going to trial,, as Smithback. was only intrested in removing Mr. John- son from the case. f.The meeting concluded with a stalemate, and Mr. Johnson returned to the courtroom. Smithback was placed baci into the holding cell. It was later discovered that any further attempts to 'bring the case to jury trial would have been futile, so Judge Dean did not order a new jury trial date, thus depriving Smithback of his right to a trial,, - by jury. .. On October 4th, 2001, Smithback was again.brought the the courthouse, and -----thetrotd i ng'e1l- - to await, another meeting with Mr. Johnson. Smithback thought that this was the begining'of the jury trial as héwas 'allowed to change into his street cloths. He meet briefly with.Mr.. Johnson, whom encouraged Smithback into accepting the plea deal. To further pressure Smithback, Judge Dean allowed Smithback to enter the courtroom wherein Judge Dean explained the requirements that apply to the acceptance of the plea deal, should Smithback accept. This interaction was not recorded'-by.the court reporter', so this information is lik- not to be ely found on the public records. Smithback did not request 'Mr. 'John- son's removal from the case, nor did he ask when he was going to trial. Smith- back unfortunately assumed that this. trial was within the next few days due to the activity surrounding his continued .appearences at the courthouse. Smithback was brought back to the confrence area when Judge' Dean .was finished with the explaination of the probation requirements, wherein Mr.. Johnson..continued to encourage Smithback into accpting .the plea agreement. Mr. Johnson restated the evidentary requirement the State needs to convict., which was none, suggest- ing that Smithback was going to.be convicted regardless of whether Smithback went.-to trial, or plead to the agreement. Due to this information, Smithback told Mr. Johnson that he would consider the agreement. Mr. Johnson warned him that if he went to trial, the judge would sentence him to seventy-five yearsin prison. After this meeting, Smithback was placed back into'the holding cell, then eventually back to jail. The next day, October 5th, 2001, Smithback again was brough to the holding cell, the to the 'confrence area, wherein he communicated to Mr. Johnson his desire to plead guilty. Smithback figured that his. chance to fight his conviction was better if he were unconfined to the jail, free to investigate his case thoroughly. Smithback was taken into the courtroom, plead guilty, and Judge Dean placed him on five years differred-adjudicated probation, as promised in the agreement. Less than four hours later, Smithback was released from the Dallas County Jail.

#6. Two days later, Smithback and Mrs. McRae met on a public street corner in the West End section of downtown Dallas. Smithback did not seek Mrs. McRae for this meet, nor did Mrs. McRae seek this meeting with him. This meeting was unexpected by both parties. Mrs. McRae's daughter was not present. It was at this meeting, however, that Smithback learned of her deliberate deliquency to appear in court. She couldn't tell Smithback what the hearings were about, as she trashed the subpoenas she received. She did inform him that she was not sure why i was convicted. She was told that she received a phone call from the Dallaâ County District Attorney's office asking her why she did not appear for court. She further explained that she told the individual of her desire not to persue the case against Smithback, and further told that individual of her desire to have the case dismissed. She tols Smithback that she got a phone call from the District Attorney's office telling her of Smithback guilty plea. One of the provisions of Smithback's probation was that he was not to have any con- tact with the "victim" or her family. Even though this meeting was unexpected, and on a public street corner, where children could..-congregate, this meeting was a direct violation of his probation. Smithback located Mr. John's law office, coincidentially located about-- one-half a block away from where Mrs. McRae and Smithback met. About a week later, Smithback went to Mr. Johnson's law office, originally seeking copies of the criminal case. Mr. Johnson was not at his 'office, but his partner, whom Smithback could not identify, was. This individual cell h - ---to--contactMrTohfl5on, whT _p one. - -was .at,.--t- üth&ise.., Smithback talked to Mr. Johnson on the cell phone, asking first for copies of the criminal case. He then mentioned to Mr. Johnson the meeting he had with Mrs.'. McRae. Mr. Johnson told him that she was lying. Mr. Johnson claimed that he personally saw her 'at theeourthouse. Mr. Johnson promised to have copies for Smithback's but did not state when. Smithback woul.discover that Mr. Johnson wouldreview, violate the attorney-client privilege by notifying both Judge Dean and Mr. Maedgen of Smithback's meeting with Mrs. McRae. Neither Mr. Maedgen or Judge Dean would take immediate action against Smithback fearing possible legal implications. that would expose the conspiricy against Smithback. Two weeks later, Smithback would return to Mr. Johnsonts law office for the copies. Mr. Johnson was there, but did not have the copies. Sinithback again mentioned the meeting he had with Mrs. McRae, stating again what she told him. regarding her delinuency. Again Mr. Johnson stated this information was false, as her personally saw her at the courthouse on both datesi Smithback told Mr. Johnson of his desire to appeal the conviction but Mr. Johnson decried this, claiming that Smithback could not appeal since he plead guilty. Mr.John- son would never provide Smithback with the copies. It would take nearly four years for Smithback to pay fourty dollars for fourty pages from the court clerk's records before he would finally discover the truth stated here. Upon the conclusion of this meeting with Mr. Johnson, Smithback concluded that he was being defrauded by not only the State, but also b .MrJohnson through active deception. Smithback further concluded that the plea agreement was viod on grounds of such fraud and deception, and therefore declared the right to withdraw from the agreement since the agreement was ultra vires. Essentially, Smithback did not follow the requirements of the probation, including the requirement of appearing to the parole officer, and registering as a sex offender. No arrest warrant was issued for Smithbacks violation of probation until December 16th (on or about), 2001.

#7. On December 16th, 2001, Smithback was at the West End Marketplace, a well known tourist attraction in downtown Dallas. He was playing video games in the Tilt Entertainment Company's store in the basement og the West End Marketplace when he got into a sports dicussion with two gentlemen, one whom was publicly intoxicated. Smithback said some insulting remarks about the Dallas Cowboys professional football team., and their loosing record. The first gentlemen: (Smithback does not recall the nmes of either individual) laughed at ,-- Smithback made, implying that he was not a Dallas Cowboys fan. The second-the remark gentle- man felt so of fended, probably due to his intoxication, that the called:.911.Emeg- ency, claiming that Smithback was impersonating -a public servant., A few minutes later, two officers from the Dallas Police Department arrived in the. basement to investigate. The lead officer ignored the intoxication of the second gentle- man, and immediately detained Smithback without probable cause to conduct a de- tainiment.(5mithback does not recall the names of the officers at the site). This officer discovered that Smithback was on probation, and immediately placed him under arrest for impersonating a public servant, and criminal tresspassing. Smithback was transported to the Dallas County Jail. Smithback was only arraigned on the impersonation:.chargesince the criminal. tresapassing charge was only a misdemeanor., and appointer Mr. Johnson as his attorney. The case was assigned to the 265th Judicial District Court, with Judge Dean presiding, and Mr. Maedgen as the State's prosecutor. The misdemeanor was. immediately dismissed for want of prosecution. Bail on the impersonation charge

tresspassing charge before it's dismissal, but Smithback does not.recall the name of that attorney since they only met oncei. But it was at that one meeting that the attorney warned Smithback to try to make bail. Oddly, the misdemeanor wasbrouht before a different court, and not the 265th District Court, where the felony impersonation charge was heard Unfortunately, Smithback did not have the $1,500 bail, and on December 18th, 2001, Judge Dean issued a probation viofLàion warrant for Smithback, ante-dating all documents to show that the warrant was issued before Smithback's December 16th 2001 arrest. Once the probation violation warrant was issued, the felony impersonation charge was dismissed for lack of evidence) One month later, Smithback was brought into the courtroom for the probation violation hearing. Smithback acknowleged the violation of all but one of the requirements, but did not mention.:-the meeting between Mrs. .McRae and himself. Judge Dean found Smithback in violation of his probation.,, and sentenced him to fourty-five years confinement in the Texas Department of Criminal Justice, where Smithback is today. See Texasv, Smithback, No. F01-73701TR. Sometime in mid 2002, Smithback filed his first federal Application for Writ of Habeas Corpus under Title 28 U.S.C. § 2254. Smithback believed that he was prohibited from seeking State habeas action due to his guilty plea. See Smithback v. .Cockrell, No. 3:02-CV--1901-L (N.D.Tex.decided Nov. 8, 2002). Thettjn.ited. States District Court for the Northern District of Texas Division dismissed the case as premature,. since Smithback failed to exhaust- Dallas his State remedies,. subsequently, Smithback filed his Paalication for Writ of Habeas Corpuspersuant to: Article 11.07 of . the Texas Code of Criminal Proceedure. See Ex Parte Robert Norman Smithback, No. W01-73701-R(A), No. 54,603-01. The: Texas Court of Criminal Appeals denied, without written order, the application çn. .June 18th, 2003. Smithback ref iled for federal habeas review in Smithback y. Dretke, No. 3:03-CV-2896-H.dn the United States District Court, Dallas.

#8. Contrary to this Court's holding in Duncan v. Walker, 533 U.S. 167 (2000), and Slack v. McDaniel, 529 U.S. 473, 484 (2000), that court refused to maitain all jurisdiction in the case., dismissing it with prejudice, and denying his certificate of appealability. Smithback did not appeal to the Fifthe Circuit Court of Appeals. In 2006, Smithback ref iled a mixed Civil Action/Habeas Corpus with the United States District Court for the Northern District of Texas -Dallas Div- ision. See Smithback.v. Quarterman,No 3:06-CV-1419-(H). On October 23rd, 2006, Magistrate Judge Irma Carrillo Ramirez refused to allow Smithback to persue his civil action, and recomended that the habeas. case be dismissed without prejudice pending review by a three-judge panel of the Fifth Circuit Court of Appeals. Smithback appealed. See Smithback v. Quarterman, No. 06-:. 11299 (%thCir. Dec. ii, 2007). On appeal., the Fifth Circuit heldthat "Smith- back has failed to show that his petition falls under §2241 rather'than § 2254... Smithback argues that the prohibition on filing second or successive § 2254 petitions without first obtaining authorization from this court violates the Suspension Clause. Smithback.has failed to show that jurists of reason would find it debatable whether the district court was correct in dismissing his petition as an unauthorized successive •2254..;petition. Accordingly, his request for a COA is denied. See Slack .v. McDaniel, 529 U.S. 473, 484 (2000),It Smith-

back attempted to appeal to this Court ,. but for unknown reasons, the clerk would not accept the documents. The United States District Court for the -Northern-Di:6tr:Lct-o-f-- Texas— saiitbESftiTthbak for the attempted enforcement of his civil rights. See Smithback v. Texas, 3 :O7-V-0288-M(BH) (May 27,, 2007). In 2010, .Smithback filed a federal criminal complaint with the United States District Court for the Northern District of Texas - Dallas Division against numerous federal and state officials for the violations of his civil rights. See Smithback v. Texas, civil case number unknown. One of the defendants, District Judge Marbaba M.G. Lynn of the United States District Court for the Northern District of Texas - Dallas Division, assigned herself to the case, then auotmaticcally dismissed the case .persuant• to the. .Sanctions•Order in Smithback v. Texas, No. 3:07_CV_0288_M:(BH). Smithback refiled "Obstruction of Justice" crs:in that same court, but this time fileing a Motion for Leave to File a Federal Complaint. Se'eSmithback v. Barbara MG. Lynn, No. 3:10-V-1850-N. Citing a home grown case law that ignores Title 18 § 3041 of the United States Code,. that court held that. a private citizen'doés not have the right to initiate a criminal complaint since that authority resides solely in the "Executive Brance." Smithback tried to filed these complaint in August of 2010. On the night. oLAugust 21st,, through.the morning of the 22nd, Smithback was sexually assaulted while he was at the Allen B. Polunsky Unit. This sexual assault was sanctioned by the defendant, most of whom are State employees, and some who are employees of the Texas Department of Criminal Justice. The sexual assault was in retaliation for the attempted initiation of the federal criminal complaint against the numerous federal and state officials. The next after noon. (the afternoon of August 22nd, 2011), Smithback noti- if ied a prison security guard of the assault while' Smithback's assailant was at a family visit. Smithback was immediately take to a safe area:. in the prison infirmary. Twelve hours later, Smithback was seen by a prison physician and a sexual assault kit was used to collect any evidence. The kit was placed into

the custody of the Office of the Inspector General - Texas Department of Criminal #9. Justice, then later submitted to a Texas Department of PUblic Safety Crime Lab On August 24th, 2011, Smithback was taken to an interviewing room where he was questioned by three members of the Texas Department of Criminal Justice's Office of Inspector General During this first round of questioning, Snu.thback told all three officers of his desire to persue criminal charges against his assailant Smithback wrote'a statement for the investigating officers ad re- quested The next day, Smithback was requestioned by only one officer of the Office of the Inspector General, restating the events of the night of the 21st through the moning of the 22nd Smithback further restated his desire to file criminal charges against his assailant. To this day, no charges have been brought before the Polk County, Texas District Attorney's Office, and the Texas Department of Public Safety's Crime Lab has not been tested While Smithback was still at the Allen B Polunsky Unit, he initiated the exhaustion of his adminisative remedies by filing a Step 1 Greivance. It=-was discovered by Smithback that the sexual assault was likely sanctioned by members of the Executive Office of Texas in i retaliation for the inception of the federal criminal complaint stated above. Smithback mentioned this in the Step 1 Greiv- ance, however, this was ignored Smithback was too fearful to mention this to the Officers from the Office of the Inspector General Smithback felt that had he done so, he would be ignored, and quite likely the case would never be pro- secuted Warden Michael Butcher replied to the Step 1 Greivance, stating that a request has been submitted for Smithback to be reassigned to another prison,

- - but- the-decision-by-the-Texas -Departmentof-cri nina1-rustice' sRegonaIClassif ication CormTettee has not been made Smithback would eventually be reassigned - to the Mark W Stiles Unit where he is currently incarcerated Smitback was obviously unsatisified by the answer to the Step 1 Greivance so he filed his Step 2 Greivance This greivance was sent tot eh regonal office, and two monts later, was returned, stating that a transfer was cleared by the State classification Commettee, but no further action would be necessary While Smithback was still at the Allen B. Polunsky Unit, he received the address of a civil attorney in Houston, Texas who specializes in civil rights cases Smithback wrote to this attorney, but never received a responce. Smith- back believes that the mailroom at the Allen B. polunsky Unit intercepted this letter, and destroyed it, acting in concert with those involved in Smithback's assault inorder to assist thoes individuals with protection from both civil and criminal prosecutions When Smithback was transfered to the Mark W Stiles Unit he wrote two other attorney's. One in the Beaumont, Texas area, and the other in the Houston, Texas area. Smithback did not receive . a response from them, either. Smithback believes the mailroom at the Stiles unit destroyed thoes letters., too, for the same reason the mailroornat the PoIufisktiit destroyed legal. correspandence' to the attorney in Houston. : Believing that Chapter 16..of the Texas Civil Practices and Remedies Code, specifically Section 16 0045, equally applies to Smithback, he subsequentially filed a civil complaints which 'is. subject to this review, in the 60th Judicial District Court; Jefferâon, County, Texas. Smithback filed all requisite documents under Chapter 14 of the Texas Civil Practices and Remedies Code, including the Affidavit of Previous filings, and a Motion for. Appointment of Counsel. About four months 'later,, Defendants Michael Butcher, Warden of the Allen B. Polunsky Unit, and Captain John Bolton, a corrections officer at the Polünsky Unit, were served process. Captain 'John Bolton timely filed a response to the . complaint.. Warden Michael Butcher hàth not filed a response, and is therefore in default. Smithback.would attempt to file for default judgement against Warden

#10. - - Michael Butcher, but neither the civil courts, nor the Ninth Court of Appeals ndTthe Texas Supreme Court would allow it. Counsel assigned by the Office of the Texas Attorney General was Jennifer Daniel...-. It has been discovered that The chief of the Civil Department of the Jefferson County Court Clerk's office, Regan Corbello, is a close relation to Assistant Texas Attorney General Courtney Brooke Corbello. It is this relationship that a fraud on the court ensued. Regan Corbello assisted the defense of Warden Michael Butcher, and Captain JOhn Bolton by failing to bring any doáuinents filed by Smithback to the attention of the Court. She would further sabotage Smithback's case by removing already filedlegal documents, namely Smithback's Declaration of Previous Filings, and Motion for Bench Warr- ant. Both Documents were received by the Court Coordinator for the 60th Dist- rict Court, as Smithback received correspondence from the Court Coordinator stating so. Neither the Ninth Court of Appeals, or the Texas Supreme Court

would acknowledge the document...... Eventually, the case would be transfered to the 411th District Court; Polk County, Texas where it would be dismissed. That Court would not allow

Smithback to conduct Discovery, or, as previously noted, obtain a Default -, judgement against Warden Michael Butcher. Any relief Smithback sought would be quickly denied. The judgedidnot allowSmi,thback threply to the Defend-. ant's Motion to Dismiss. . This strongly suggests that there was ex parte comm- unication between the Office of the Attorney General, and Judge Kayceé L. Jones .------..------of--the- 4HthDjstrict- Court= ------Smithback appealed to the Ninth Court of Appeals, and the Texas Supreme Court, which denied relief. Smithback now appeals to this Court for Certorari: review.

#11. Argument In Support of Granting Certorari

Gráund #1. - Texas Jurisprudence Does Not Enforce Farmer v. Brennan, 511 U.S. 825.

In 1994, this Court held in Farmer v. Brennan, 511 U.S. 825 that sexual assaults in prison violate the Eighth Amendment's prohibition against deliberate indifference. Texas immediately began placing road blocks in front of litigation by passing a series of laws deliberately designed to deprive them of access to state civil courts. Chapter 14 of the Civil Practices and Remedies code places a number of hurdles an inmate must jump over in order to gain access to state courts. However, Chapter 16, Section 16.0045 of the Texas Civil Practices and Remedies Code makes an exception to thoes whom are a victim of sexual assaults. Setion 16.0045 states: "(a) A person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates:

Section 22.011, Penal Dode (Sexual Assault); or Section 22.021, Penal Code (Aggrivated Sexual AU1t"

In this case, Section 14.005, which places a 31 day statute of limitation on inmates who redeiv&their.step 2 Greivance reply from the- regional Greivance investigator to file their suit in state courts. Texas courts have applied this law.to superceed Section 16.0045 on grounds that it does not equally apply to inmates. See, e.g. Appendix B-1.@.,.5 and Doyle v. Lucy, No. 14-03-0039-Cv, 2004 WL 612905, at *3 (Tex.App.-Houston [14th Dist.] Mar. 30, 2004, no pet.) (Mem. Op.). However, in 2007, Texas's 80th Legislature adopted provision of the Federal 'Prison Rape Elimination Act", Texas Government Code, Section 501.171 through Section 501.178(hereinafter, "PREA"). See Appendix E--21 and E-3. Under the Federal PREA provisions, states who are in compliance with Federal PREA stand- ards are afforded access to Federal Grant money offered through the United States Department of Justice. Such "accreditation" is offered, for a fee, by the nat- ionally known non-profit organization, American Correctional Aâsociation. See Appendix B-4. Texas does not offer to it's inmate victims, any kind of recourse at law. Texas will even obstruct an inmatesattempt by strictly enforcing Sect- ion 14.005, despite the fact that Section 16.0045 superceeds Section 14.005. Section 16.0045 became effective on June 15, 1995, and Section 14.005 was effective June 8, 1995. This makes Section 16.0045 superior to Section 14.005 since Section 16,0045 went into effect after Section 14.005. Texas doesn't see it this way. Texas' Ninth Court of Appeals held that even if Smithback's case was filed within the 31 day limitations, state courts still would not want to entertain such a case. It qouted this Court's Woodford v. Ngo, 548 U.S. 81, 90 (2006) decision, citing United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) "[A]s a general rule... courts should not topple over administrative decisions unless the administrative body has not only erred, [but has erred against objection made at the time appropriate under it's practice]." With emphasis added. See Appendix B-i @ 5.. In other words, if TDCJ Administ- ration did not find anything wrong, neither will the courts. This is a direct

#12. violation of the seperation-o--powers doctrine, and Farmer v. Brennan The actions of Texas reenforce the idea that the State is sovereign over the people, especially thoes the State chooses to incarcerate. Texas has gone to great lengths to circumvent constitutional guarentees by designing it's jurisprudence to become ineffective when charged with the enforcement of constitutional guarentees. Smithback was sexually assaulted in retaliation for an attempted initiation of a federal criminal complaint. Texas uses sexual assaults as a means of punishing thoes who act in an undesireable manner, such as Smithback's attempted initiation of the federal criminal complaint. Despite all of the public boasting of legislation that should reduce sexual assaults in secretly does the exact opposite. There is no better example of thisTDCJ, than Texas the actions of Texas in this case. It is for this reason that Smithback seeks from this Court the Granting of Certorari in the intrest of enforcing Farmer, and other constitutional guarentees.

Ground #2. - Texas Jurisprudence Does Not Equally Protect Smithback' S Constitutional Guarentees, Especially And Specifically This V. Brennan, Court's Farmer 511 U.S. 825 (1994) decision, Through The Denial of Equal Action Under The Law.

On June 1st, 2014, Smithback filed a civil rights complaint in the 60th ___JudiciaLDistrict Court ,--JeffersonCounty, Texas. -- S .App:"A"Thë complaint was against Allen B. Polunsky Unit Warden Michael Butcher, Captain-original John P. Bolton, and other unktbwn State and private individuals. Process was not executed on them until December 2nd, 2014 due to a fraud on the court. Deputy District Clerk Regan Corbello, a relative of Assistant Texas Attorney General Courtney Corbello, refused to bring the case before the 60thDistriát Court, and even went as far as removing documents filed by Smithback before they were officially filed by Smithback (these documents were entitled "Aff- idavit of previous Filings", :a "Motion for Appointment of Counsel", and a PM floi1 Bench Warrant"). See App.E?Br and B-1 @ 4. The case would eventually be transfered to the 411th Judicial District Court, Polk County Texas. That Court would not allow Smithback toconduct the following legal proceedures: secure a Default Judement against Warden Michael Butcher, execute Discovery, or enforce any other legal remedy recognized under Texas law. Spe- cifically, Smithback shows this Court the following:

A. - Default Judgement. Warden Michael Butcher was served process on Dec- ember 2nd, 2014 via the Jefferson County Court Clerk's Office. See App. C. (hereinafter, "Warden Butcher"). Warden Butcher did not file an answer to the complaint. Under Rule 239 of the Texas Civil Practices and Remedies Code, Smithback filed a Motion For Default Judgement. Rule 239 states "Upon such call of the docket, or at any time after a defendant is required to answer, the plaintiff may in term time take judgement by default against such defendant if he has not previously filed an answer, and provided that the return of service shall have been on file with the clerk for the length of time requ- irde by Rule 107." The Fifth Circuit Court of Appeals has held that "Undr Texas law, in no-answer default judgement where defendant fails to answer plaintiff's complaints nonanswering is deemed to have admitted facts properly plead and justice of opponent's claim." Matter of Cober, 100 F.3d 1195 (5th cir. 1996). Texas courts have essentially held the same. "Once default judgement is taken on unliquidated claim, all alligations of facts setforth in petition are deemed admitted, except for amount of damages." Holtz Atherton Industries, Inc. v. Heine, 835 S.W. 2d 80 (Tex. 1992). Sadly, Judge Kaycee L. Jones of the 411th Judicial District Court refused to recognize the equal application of this law, and denied Smithback's Default Judgement. See App. C @ 6. -Discovery. Once all parties were served with process, then answered said complaint (excluding Warden Butcher), Sniithback began conducting discovery on numerous individuals. ThOse Discovery requests went unanswered. Smithback filed anIEmérgency Motion to Compel .Discovery. Judge Kaycee L. Jones immedia tély denied the motion, but did not actively deny Smithback's attempts to re- new Discovery requests. See App. b @1. Smithback reexecuted discovery. Only the Dallas County District Clerk and Attorney's office filed Motions to Quash. See App. D-2. Before Smithback could file a second Motion to -compel Discovery, Texas filed a Motion to Dismiss, which was quickly granted without a hearing by Judge Kaycee L. Jones.

- Other Legal Remedies. During the course of this case, Smithback attempted to utilize both the Texas Rules of Civil Proceedure, the Texas Civil Pra- ctices and Remedies Code, and attempted to file mail fraud charges against emp- .ioyees-ofthe---Mark-W-St-i-ies-Unit- under Title-18.U.S;C; r3O4i7F mthTinit- iation of the Civil Complaint, through Default, Discovery, and until it's dismissal, Texas successfully thwarted Smithbackkrs attempts at enforcing Farmer Brennan. Texas has denied Smithback equal access:andnfórcemehtof the law v.by designing and enforcing jurisprudence that denies said equal -,protections in favor of immunizing certain officials and individuals from liability for their usage of sexual assaults as a means of punishment.

For the reasons stated above, Smithback seek from this Court a Writ of Cert- orari in the hopes that this Court will consider any and all relief it deems proper and just in the enforcement of Farmer v. Brennan.

CONCLUSION This'tis.a case :where a State of the Union, Texas, has desided that certain constitutional guarentees od not apply to the people of Texas. Carmell V. Texas, and Farmer v. Brennan have been totally ignored by Texas as a means of maintaining the status quo. Texas has denied Smithback all protections under both the United States Constitution, and Texas's Constitution, and has even deliberately punished Smithback for the attempted enforcement of thoes rights by setting Smithback up to be sexually assaulted. Texas has the engineered it's jurisprudence in order to protect itself, and it's members from being held liable for their illegal actions. What mekes this case even worse is that the United States District Court for the Northern District of Texas, Dallas Division has provided the federal protection of Texas by punishing Smithback and denying him access to their court. Texas has ignored this Court's rulings. This Court should reestablish itself as a body politic with the power to enforce it's legal decisions. This is what Smithback seeks. What Smithback seeks, this Court must provide in it'a own intrest,. which is in the best intrest of justice.

#17 . Prayer

WHEREFORE, PREMISES CONSIDERED, Petitioner Robert Norman Smithback respectfully prays to this high appellation that it GRANTS this Petition for Writ of Certorari, providing him with any and all relief it deems is proper and just. pectfill Submd

Certificate of Service

I, Robert-Norman. .Smithback, Petitioner (Pro Se) Sui Juris, do hereby swear that a true and correct copy was served on the Attorney General for the State of Texas. via United States Certified Mail to: P.O. Box 12548, Capitol Station; Austin, Texas 78711-2548. on this, the 30th day of July, 2018 A.D.

#18.