Brian Keith Gorham v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division
DueProcess HabeasCorpus Privacy
Whether the Fifth Circuit erred in finding no prejudice from the bias implied by an unqualified juror being seated on Gorham's jury, the court's abuse of discretion in not dismissing the juror and declaring a mistrial, and appellate counsel's failure to address the court's abuse
QUESTIONS PRESENTED Gorham alleged that his trial counsel was ineffective for, a) opening the door to testimony accusing him of domestic violence and abusive behavior, b) opening the door to the introduction of testimony of past criminal history, and c) eli¢iting inadmissible testimony from an expert witness attesting to the truthfulness of the complainant. Gorham was covicted in large part, by the taint this left upon his already illegitimate jury. Counsel's errors unecessarily exposed the jury, as Justice Keel agreed, to testimony that was extraordinarily damaging to Gorham's character, and to prejudicial effect. In finding that Gorham had failed to show a vakid claim of the denial of a constitutional right, the Fifth Circuit relied upon the standard set forth in Slack v. McDonald, 529 U.S. 473,484(2000), but grossly misapplied it to Gorham's case. The case thus presents the following question. Did the Fifth Circuit err in finding that Gorham had not been prejudiced by his attorney opening the door to the character damaging testimony of alleged family violence, abuse and otherwise neglectful or ciminal behavior and did they, likewise, err in finding that Gorham had not been prejudiced when his attorney had elicitedfrom an expertinadmissible testimony in which this expert declared his accuser to be believed as absolutely truthful? Using a habeas applceation form, dated 01/14/14, Gorham submitted his 11.07; it was duly accepted by the court. Gorham then filed a supplemental ground (#11) to his application, but this single additional ground he submitted on plain paper rather than on the prescribed application form. Because there is a poverty of written instruction (clear or otherwise) regarding the submission of additional ground to supplement or otherwise amend an application which has been accepted by the court, but not yet decided, Gorham did not understand the expectation that he, in order to effect the additionaof another ground, resubmit his application in its entirity (including the additional ground) on the prescribed form. That the 175th Dist. Court likewise did not understand this became demonstratedly clear when theyzacceptéd Gorham's supplemental ground~on plain paperand answered it on its merits. The actions of the 175th in this matter clearly demonstrates that this rule is not clear, and a plethora of court decisions on similar matters strenit . t uously suggest that neither is it firmly established. Time barring further action from Gorham then was a simple matter of procedural ploys. This case thus presents the following questions. Did the Fifth Circuit err in finding, that Gorham is not entitled to relief, solely because he failed .to comply with a procedural rule that is so ambiguous that even the courts themselves seem not to fully apprehend it; that Gorham is time barred; and that the Court is more apt ; to consider an undeniably ambiguous procedural rule rather than a structural constitutional error? Tit