IN THE U.S DISTRICT COURT
WESTERN DISTRICT, TEXAS(AUSTIN)
BRIEF IN SUPPORT OF 42 U.S.C. § 1983 COMPLAINT
COLLINS O. NYABWA
PETITIONER (PRO SE)
1341 W. 43RD STREET, #163
HOUSTON, TX 77018
1
TABLE OF CONTENTS
LIST OF PARTIES________________________________________________________________3
INDEX OF AUTHORITIES__________________________________________________________4
PROCEDURAL BACKGROUND___________________________________________________5-10
PREAMBLE___________________________________________________________________11
ARGUMENT_______________________________________________________________12-18
HECK BAR_________________________________________________________________18-19
ABSOLUTE IMMUNITY_______________________________________________________19-20
RELIEF SOUGHT_______________________________________________________________20
CERTIFICATE OF SERVICE________________________________________________________21
2
LIST OF PARTIES
 COLLINS O. NYABWA (PETITIONER PRO SE)
 TEXAS COURT OF CRIMINAL APPEALS JUSTICES(RESPONDENTS)
3
INDEX OF AUTHORITIES
Barker v. Wingo, 407 U.S. 514, 530 (1972)__________________________________________16
Ex Parte Donald Ray Chance, 439 S.W. 3d 918 (Tex.Crim.App.2014)_____________________14
Ex Parte Lo, 424 S.W. 3d 10 (PD-1560-12)(Tex.Crim.App.October 30, 2013)_______________14
Ex Parte Nyabwa, 366 S.W. 3d 710, 711(Tex Crim. App. 2012)___________________________6
Ex Parte Nyabwa, 366 S.W. 3d 719(Tex. App. 2011)___________________________________5
Ex Parte Ronald Thompson,_S.W. 3d__(Tex.Crim.App. 2014) (No. PD-1371-13; 9-17-14)_____10
Ex Parte Siebold, 100 U.S. 371(1879)_______________________________________________8
Heck v. Humphrey, 512 U.S. 477 (1994)_____________________________________________18
Judicial
Independence
and
Politics,
http://www.c-span.org/video/?319854-1/judicial-
independence-politics C-Span, (June 9, 2014)________________________________________20
Reyes-Requena v United States, 243 F. 3d 893, 903-4 (5th Cir. 2011)_____________________14
Shelton v Heard, 696 F.2d 1127, 1128-29(5th Cir. 1983)_________________________________16
Stump v Sparkman, 435 U.S. 349, 356-57(1978)______________________________________19
4
PROCEDURAL BACKGROUND

On June 8, 2010 petitioner was charged with 3 counts of Improper Photography and
detained at the Harris County Jail. Bail was set at $ 30, 000.

On July 9, 2010 petitioner was released from Harris County jail after posting bail.

On February 2, 2011 in an effort to terminate his criminal prosecution, petitioner filed a
Pretrial Writ of Habeas Corpus arguing that Texas Improper Photography law $
21.15(b)(1) on its face violated the First Amendment.

On 3/9/2011 the trial court denied petitioner’s Pretrial Writ upon which petitioner
appealed to the Texas 14th Court of Appeals. (Case #s 14-11-00250-CR, 14-11-00251-CR
and 14-11-00252-CR).

On July 29, 2011 while petitioner’s Pretrial Writ was still pending at the Texas 14th Court
of Appeals, petitioner pled guilty to the 3 counts of Improper Photography and was
sentenced to 1 year State Jail to run concurrently. Part of the motivation behind the guilty
plea was petitioner’s confidence that the Texas 14th Court of Appeals would invalidate
petitioner’s statute of conviction.

Petitioner began his State Jail sentence on 8/15/2011

On December 13, 2011 The Texas 14th Court of Appeals dismissed petitioner’s Pretrial
Writ holding that Texas Improper Photography law did not violate the First Amendment.
Ex Parte Nyabwa, 366 S.W. 3d 719(Tex. App. 2011). A three judge panel of the Texas 14th
Court concluded inter alia that the Improper Photography statute was not overbroad1
1
No credible appellate panel, either state or federal can justify this statute on overbreadth grounds. Texas
Improper Photography law § 21.15(b)(1) provides in relevant part:
(b) A person commits an offense if the person;
5

On January 11, 2012 while serving his sentence at Pam Lychner State Jail, petitioner filed
an Original Writ of Habeas Corpus at the Texas Court of Criminal Appeals again raising the
facial invalidity claim. (Case # WR-76, 991-01).

Two days later on January 13, 2012 petitioner filed a Petition for Discretionary Review
with the Texas Court of Criminal Appeals regarding the December 13, 2011 Texas 14 th
Court of Appeals decision (PD-0073-12, PD-0074-12 and PD-0075-12).

On February 1, 2012 The Texas Court of Criminal Appeals denied petitioner’s Original Writ
without written order(filed January 11, 2012)

On March 28, 2012 the Texas Court of Criminal Appeals with a written order declined
petitioner’s request for a review of the December 13, 2011 Texas 14th Court of Appeals
decision2. Ex Parte Nyabwa, 366 S.W. 3d 710, 711(Tex Crim. App. 2012)

On April 12, 2012, having exhausted available state remedies, petitioner filed a § 2254
Federal Habeas Corpus raising the same facial invalidity claim.(Case # 4-12-CV-01152).

On May 1, 2012 while his Federal § 2254 was pending, petitioner filed an Article 11.07
State Post-Conviction Habeas Corpus with the Harris County 248th District Court again
raising the same facial invalidity claim. Petitioner’s post-conviction application was
transmitted to the Texas Court of Criminal Appeals on August 16, 2012. (WR-76-991, 03,
WR-76-991-04 and WR-76-991-05).
(1) Photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of
another at a location that is not a bathroom or private dressing room;
(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person
2
This was clearly an abuse of discretion because this was a very questionable state felony statute. It was in the
interest of both the State of Texas and criminal defendants that this court settle the constitutionality of this felony
statute.
6

On June 11, 2012 upon completion of his Texas State Jail sentence, petitioner was
transferred to an immigration detention center in Houston, Texas for removal
proceedings. Petitioner was held under Mandatory Detention by immigration authorities
(no possibility for bond).

On July 26, 2012 in an effort to reflect his change in custody status petitioner, a pro se
litigant, erroneously motioned the U.S. District Court to substitute the Texas state
respondents on his Federal § 2254 Habeas Corpus with federal immigration respondents.
At that time petitioner was not aware that because a Federal § 2254 attacks state
convictions, the state is always the respondent3.

On September 22, 2012 the U.S. District Court dismissed petitioner’s Federal § 2254
Habeas Corpus for failure to exhaust state remedies4.

On September 26, 2012 literally 4 days after the U.S. District Court dismissed petitioner’s
Federal § 2254 application, the Texas Court of Criminal Appeals dismissed without written
order petitioner’s Article 11.07 Post-Conviction application5.

On October 12, 2012 petitioner appealed the dismissal of his Federal § 2254 to the 5 th
Circuit Court of Appeals (Case # 12-20682).
3
The Motion to Substitute Parties later comes into play after the 5 th Circuit Court remands case
The District Court argued that because petitioner had a post-conviction habeas corpus pending at the Texas Court
of Criminal appeals(WR-76-991-03, WR-76-991-04 and WR-76-991-05), he had not exhausted state remedies even
though the same court had denied petitioner’s Petition for Discretionary Review on March 28, 2012. It is the
March 28, 2012 denial of the Petition for Discretionary Review that initiated petitioner’s Federal § 2254 application
so petitioner had clearly exhausted state remedies.
5
Whether the 4-day lapse was a coincidence is anybody’s guess but it certainly has the appearance of impropriety.
Did the Texas High Court keep petitioner’s post-conviction writ pending just long enough to cripple his Federal §
2254 writ?
4
7

With his appeal pending at the 5th Circuit Court, petitioner filed a Federal § 2241 Habeas
Corpus at the U.S. District Court challenging his Mandatory Detention by immigration
authorities (Case # H-12-2518). The basis of petitioner’s § 2241 was again the facial
invalidity of Texas Improper Photography law.

On October 26, 2012 the U.S. District Court dismissed petitioner’s Federal § 2241 arguing
that under the REAL ID Act, a district court has no authority to interfere in removal
proceedings6. Petitioner appealed this decision with the 5th Circuit Court of Appeals (Case
# 12-20739)

On April 3, 2013 the Immigration Judge ordered petitioner removed/deported.

On April 19, 2013 petitioner appealed the order of removal with the Board of Immigration
Appeals (BIA).

On June 20, 2013 the 5th Circuit Court of appeals remanded petitioner’s Federal § 2254
Habeas Corpus to the U.S. District Court holding that petitioner had exhausted available
state remedies.

On July 26, 2013 with his immigration appeal pending, the 5th Circuit Court dismissed
petitioners Federal § 2241 appeal. The Court argued that petitioner’s § 2241 had attacked
his pre-adjudication detention. Because petitioner had been ordered removed, his preadjudication detention challenge was moot.7
6
Petitioner’s Federal § 2241 was attacking his Mandatory Detention not his immigration proceedings. An
unconstitutional statute cannot be made the basis of confinement, immigration or otherwise. Ex Parte Siebold, 100
U.S. 371(1879)
7
An alien’s order of deportation becomes final only after its affirmed by the Board of Immigration Appeals (BIA).
At the time of this ruling (July 26, 2013), petitioners appeal was still pending at the BIA. Petitioner was still under
pre-adjudication detention because his deportation order was not final.
8

On August 29, 2013 the 5th Circuit Court dismissed without written order petitioner’s
Petition for Rehearing on his §2241 in which petitioner reminded the court that his
deportation order was not yet final8.

On September 16, 2013 the Board of Immigration Appeals (BIA) remanded petitioner’s
case to immigration court for further proceedings.

On remand petitioner’s Federal § 2254 Habeas Corpus was referred to U.S. Magistrate
Frances H. Stacy.

On October 11, 2013 the Magistrate strangely granted petitioner’s erroneous Motion to
Substitute parties9. Troubled by this blatant attempt to delay/cripple petitioner’s valid
writ, petitioner filed a judicial complaint against this Federal Magistrate (Case #s 05-1590008 and 05-15-90009)

On November 8, 2013 based on the BIA’s instructions on remand, the Immigration Judge
terminated petitioner’s immigration proceedings.

On September 17, 2014 The Texas Court of Criminal Appeals Declared Improper
Photography law unconstitutional in Ex Parte Ronald Thompson (Tex.Crim.App. 2014) .

On September 22, 2014 petitioner filed a Motion for Declaration of Innocence with the
U.S. District Court
8
Petitioner’s immigration appeal was still pending at the time his Petition for Rehearing was denied (8/29/2013).
The 5th Circuit panel therefore knew their 7/26/2013 decision was factually erroneous yet still chose to deny
petitioner a rehearing.
9
The Magistrate knew or should have known that petitioner’s Motion to Substitute parties was erroneous and
injurious to his petition. In Federal § 2254 applications the respondent is always the state not federal actors. The
case was on remand from the 5th Circuit and the justices had already designated the TDCJ Director as the proper
respondent. Petitioner considered this a deliberate attempt to cripple or otherwise needlessly delay his petition
and therefore filed a disciplinary complaint against this Magistrate (Case # 05-15-90008 and 05-15-90009) The
complaint was dismissed on 11/21/2014 but never addressed petitioner’s question as to how a U.S. Magistrate
could mistake the proper respondents to a Federal § 2254 Habeas Corpus.
9

The political turmoil created by petitioner’s Declaration of Innocence Motion caused the
Federal Magistrate to sua sponte appoint an attorney (Nicole DeBorde) to “represent”
petitioner. Her real mission however was to take petitioner’s claim from federal court
back to the Texas Court of Criminal Appeals. In several phone conversations with the
attorney, petitioner openly expressed high skepticism with the circumstances
surrounding her sudden sua sponte appointment. The statute in question had at that
point been invalidated so petitioner was sure the federal magistrate would grant relief.

On January 20, 2015, instead of granting petitioner relief, U.S. Magistrate Judge stayed
the case forcing petitioner to go back to the Texas Court of Criminal Appeals 10.
10
Notice in petitioner’s judicial complaint about the U.S. Magistrate, petitioner’s main concern about going back to
the Texas Court of Criminal Appeals was the predictable indefinite delay the Court has become synonymous with.
10
PREAMBLE
Like Marriage (man and woman), Judgeship is a sacred institution ordained by God. Judgeship
was in existence way before the advent of kingdoms and the city state.
“But select capable men from all the people –men who fear God, trustworthy men who hate
dishonest gain –and appoint them as officials over thousands, hundreds, fifties and tens. Have
them serve as judges for the people at all times, but have them bring every difficult case to you;
the simple cases they can decided themselves. That will make your load lighter because they will
share it with you. If you do this and God so commands, you will be able to stand the strain, and
all these people will go home satisfied.” Exodus 18:21-23 (Jethro, Priest of Midian to his Son-inLaw Moses).
Petitioner’s experience at the hands of the Texas Court of Criminal Appeals Justices’ has seriously
deflated his confidence in the integrity of the judiciary. With this complaint, petitioner hopes to
remind the defendants of the sanctity of their profession.
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ARGUMENT
Petitioner was arrested and charged with Improper Photography on June 8, 2010. Texas Improper
Photography law § 21.15(b)(1) provides in relevant part;
(b) A person commits an offense if the person;
(1) Photographs or by videotape or other electronic means records, broadcasts, or transmits a
visual image of another at a location that is not a bathroom or private dressing room;
(A) without the other person’s consent; and
(B) with intent to arouse or gratify the sexual desire of any person
As is evident from the procedural history, since January 2012 (more than 3 years ago)
petitioner has repeatedly argued before the defendants(Texas CCA Justices) that Texas Improper
Photography law § 21.15(b)(1) on its face violates the First Amendment of the U.S. Constitution.
The first time was through an Original Writ of Habeas Corpus (filed January 11, 2012). This was
closely followed by a Petition for Discretionary Review filed two days later on January 13, 2012.
After the denial/dismissal of both writs, petitioner then presented the same facial invalidity claim
12
with an Article 11.07 Post-Conviction Habeas Corpus that was delivered to the defendants on
8/16/2012. After the denial of the Petition for Discretionary Review (PDR) on March 28, 2012
petitioner took the same facial invalidity claim to federal court (§ 2254 filed 4/12/2012). The
Article 11.07 Post-Conviction Habeas Corpus was filed while petitioner’s federal habeas was still
pending. During the pendency of the federal habeas, the Texas Court of Criminal Appeals in an
unrelated case Ex Parte Ronald Thompson_S.W.3d_(Tex.Crim.App.2014)(No. PD-1371-13,
9/17/2014), unanimously declared Texas Improper Photography law unconstitutional. With the
constitutionality of § 21.15(b)(1) finally settled, petitioner on 9/22/2014 motioned the federal
court to decide if he qualifies for actual innocence. Unbeknownst to petitioner, the actual
innocence claim in federal court ignited a huge political firestorm in Texas.
In a bizarre turn of events, the Texas Attorney-General’s office pressured11 the Federal
Magistrate to take petitioner’s claim back to the Texas Court of Criminal Appeals, the same Court
that had repeatedly expressed a total unwillingness to entertain petitioner’s valid claim on the
merits. After his nightmarish ordeal at the hands of the Texas Court of Criminal Appeals,
petitioner was naturally very opposed to any move back to the court. The federal magistrate sua
sponte forced upon petitioner a court appointed attorney to effect this move back to the Texas
11
A ruling that criminal defendants incarcerated pursuant to unconstitutional statutes are entitled to
compensation would have put the blame squarely on then AG and now Texas Governor Greg Abbott. The actual
innocence debate in Texas is largely based on Texas “sexual offenses” statutes Improper Photography §21.15(b)(1)
and Online Solicitation of a Minor. A finding that these sex offenders are entitled to compensation would have
caused then AG Abbott and the Texas CCA Justices serious blowback from the Texas electorate which is high on
moral values.
13
Court of Criminal Appeals. The actions of this Federal Magistrate to this day remain highly
questionable but is a battle for another day12.
Petitioner’s latest Article 11.07 Post-Conviction Habeas Corpus raising facial invalidity and
actual innocence claims was filed with the court on 3/9/2015 and submitted to the defendants
on 3/16/2015(Case #s WR-76, 991-09, WR-76, 991-10 and WR-76, 991-11). In repeated phone
calls to the Texas Court of Criminal Appeals’ Clerk, petitioner has been reassured that his writs
were submitted to the defendants on 3/16/2015 and that the only thing petitioner can do is
“write them a letter”. The petition has been pending ever since (5 months) and is the basis of this
42 U.S.C § 1983 complaint. Petitioner has clearly demonstrated that this Court has for purely
political reasons refused to decide on the merits of his valid legal claim since January 2012. Texas
elects its judges through partisan political elections. The Justices since 2012 have stone-walled
petitioner’s valid legal claim for fear of political backlash by Texas voters. Petitioner’s current 5
month delay is also purely political, to wit; This Court is simply waiting for September 1, 2015
when the modified Improper Photography law comes into effect. After September 1, 2015 the
Court plans to argue that petitioner is not entitled to actual innocence because the same conduct
he was convicted for is now proscribed in Texas. This flawed reasoning is actually contained in
Presiding Judge Sharon Keller’s dissent in Ex Parte Donald Ray Chance, 439 S.W. 3d 918
(Tex.Crim.App.2014). Chance sought and was granted habeas relief because his statute of
conviction, Online Solicitation of a Minor §33.021(b) was declared unconstitutional in Ex Parte
Lo, 424 S.W. 3d 10 (PD-1560-12)(Tex.Crim.App.October 30, 2013). The concurrence in Ex Parte
12
Before this decision to return petitioner’s case to State Court, the same Federal Magistrate attempted to
cripple/delay petitioner’s federal habeas by assigning federal immigration respondents to petitioner’s § 2254. It is
settled law that in a § 2254 attacking state convictions, the respondent is always the state.
14
Chance relying on Supreme Court precedent in Ex Parte Siebold and 5th circuit precedent in ReyesRequena v United States, 243 F. 3d 893, 903-4 (5th Cir. 2011) correctly concluded that a conviction
based on a void statute is an automatic case of actual innocence. The dissent, led by Presiding
Judge Keller, deliberately sidestepped both Supreme Court and 5th circuit precedent delivering
instead this novel interpretation of actual innocence;
We held in Lo that the statute was overly broad, in that it prohibited “a wide range of
constitutionally protected speech, “ but we do not know whether the conduct for which applicant
was convicted fell within this constitutionally protected range or outside of it. There might be a
difference between (1) a defendant who engages in conduct that was legitimately criminalized
but who is charged under a constitutionally overbroad statute, and (2) a defendant who engages
in conduct that cannot constitutionally be criminalized (an example of the latter being the
defendants convicted of homosexual conduct in Lawrence v. Texas).
In other words, when deciding actual innocence claims the court has to look into the actual
charging documents (criminal complaint and indictment) to decide whether the underlying
conduct fits any other criminal scheme. This radical reasoning is not only contrary to 5th circuit
precedent but also goes against the long held legal presumption that someone is innocent until
proven guilty. When someone is convicted using a statute that is later invalidated, the Justices at
the Texas Court of Criminal Appeals cannot go back and look at his offense report and decide
from Austin that the person is not entitled to actual innocence because his conduct fits some
other criminal scheme for which the person was not charged with nor indicted. Such adjudication
of guilt from the appellate bench without the benefit of a trial is in itself a due process violation.
15
The Texas Appellate Court should stick to its proper function of reviewing actual criminal
convictions not perceived ones.
What Presiding Judge Keller essentially did was hand the State of Texas a political way out
of paying actual innocence claims. Based on her reasoning, when the state convicts and imprisons
someone based on an unconstitutional law, all they have to do to avoid compensating the injured
party is to craft a new law making sure they still criminalize the particular conduct in question.
The State of Texas has taken this political lifeline and swiftly enacted new Improper Photography
and Online Solicitation of a Minor Statutes that take effect on September 1, 2015. The Texas
Court of Criminal Appeals is therefore waiting for the new laws to take effect in September so
they can apply the political fix—deny the actual innocence claims because the conduct in
question is now “legitimately criminalized”. The defendants have therefore for purely political
reasons sat on petitioner’s Article 11.07 application just waiting for September 1, 2015.
Because this delay is purely political it is unconstitutional (due process violation).
In determining whether the delay is violative of due process, the following factors are examined
(Barker v. Wingo, 407 U.S. 514, 530 (1972)):
1. The length of the delay
2. The reasons for the delay
3. The petitioner’s assertion of his rights and
4. The prejudice to the petitioner on account of the delay
LENGTH OF DELAY
16
Because petitioner has repeatedly made the same facial invalidity claim before the Texas Court
of Criminal Appeals since January 2012, the latest 5 month delay cannot be considered in
isolation. Reasonable jurists will agree that because the defendants have for purely political
reasons repeatedly turned away petitioner, his delay began in January 2012, the first time
petitioner presented the court with his valid facial invalidity claim. That puts petitioner’s delay at
more than 3 years which exceeds the 5th circuit’s range of excessive delay Shelton v Heard, 696
F.2d 1127, 1128-29(5th Cir. 1983)
REASONS FOR THE DELAY
As petitioner has aptly demonstrated, the reason for the delay is purely political, to wit: The Texas
Court is waiting for the new Improper Photography law to come into effect on September 1, 2015
so they can apply the political fix handed down by Presiding Judge Sharon Keller. It is only after
September 1, 2015 that they can argue that the underlying conduct in petitioner’s case are now
“legitimately criminalized”. This is pure political machination and conduct unbecoming of a court
of law. It takes the phrase “politicians in robes” to the next level.
The court may argue that the reason for the delay is the emergent actual innocence
debate. This issue however is foreclosed by Supreme Court precedent in Ex Parte Siebold and 5th
circuit precedent in U.S.v Reyes-Requena, 243 F. 3d 893, 904(5th Cir 2001). In Reyes-Requena, the
5th Circuit Court boiled down the actual innocence debate to this basic principle.
“Courts have framed the actual innocence factor differently, but the core idea is that the
petitioner may have been imprisoned for conduct that was not prohibited by law.”
17
On July 29, 2011 petitioner was convicted for making video recordings without consent and with
an intent to arouse himself sexually. Per 5th circuit precedent, because the Texas statute in
question has since been invalidated, making video recordings with an intent to arouse myself
sexually was not prohibited by law in 2011 and should not have been the basis for my subsequent
incarceration. The fact that Texas has enacted a new Improper Photography law in 2015 has
absolutely no bearing on my 2011 actual innocence claim. The Sharon Keller political fix
deliberately ignores this clear 5th circuit guideline that has been in place since 2001.
ASSERTION OF RIGHTS
As stated earlier, this is the fourth time petitioner is appearing before the Texas Court of Criminal
Appeals with the same facial invalidity claim. Petitioner has therefore asserted his rights indeed.
PREJUDICE ON ACCOUNT OF DELAY
Petitioner has suffered terribly as a result of the political actions of the Texas Court of Criminal
Appeals. The injurious delay and inaction by the Justices has caused petitioner to endure a
needless 1 year Texas State jail incarceration, a one and a half year mandatory detention by
immigration authorities and now almost 2 years of being unable to secure a job commensurate
with his mental skills13 or even rent an apartment. The Texas Court of Criminal Appeals could
have saved petitioner from all these problems way back in January 2012 if they simply did what
13
Petitioner’s felony convictions have relegated him to manual labor jobs
18
they swore under oath—to uphold the U.S. Constitution. Instead, they have chosen the political
path.
HECK BAR
In Heck v. Humphrey, 512 U.S. 477 (1994) the Supreme Court crafted the favorable-termination
rule which provides;
In order to recover damages for allegedly unconstitutional conviction or imprisonment or for other
harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a §
1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ of habeas corpus
Petitioner clears the Heck bar because his statute of conviction was declared unconstitutional on
9/17/2014. The trial court has recommended relief. It is only the unconstitutional and politically
motivated delay by the defendants that leaves petitioner straddled by his void convictions.
ABSOLUTE IMMUNITY
In Stump v Sparkman, 435 U.S. 349, 356-57(1978) the U.S. Supreme Court held that judges are
always entitled to absolute immunity from suit except in cases where they act in the “clear
absence of all jurisdiction”. Petitioner’s suit is alleging political oppression by appellate justices,
the quintessential “clear absence of all jurisdiction”. The United States is a paragon of political
freedom and has been at the forefront in the fight to end political oppression worldwide.
Therefore it goes without saying that when such political oppression emanates from the judicial
19
bench, it cannot be covered by absolute immunity. The defendants in this case are politicians
through and through, complete with Rs14 and Ds affixed to their names. They are elected through
partisan judicial elections just like regular politicians. An argument could be made therefore that
unlike federal judges who are pure jurors enjoying lifetime tenure, state elected judges are at
best quasi-jurors (politicians/judges). Allegations of political machinations against a federal judge
with lifetime tenure, however plausible, are at best speculative. The defendants here on the
other hand actually identify themselves as Republican or Democrat, receive political
contributions, and actually campaign using specific party agendas. The Republican party for
example is big on moral values so you will hear a Republican Judge campaigning using phrases
like “Tough on Crime”, “I will go after sex offenders” etc. Presiding Judge Keller openly refers to
herself and is known in the Republican campaign circuit as a “Pro-Prosecution” Judge. So where
as here, she goes out of her way to craft a radical political fix not rooted in circuit precedent, her
political actions are real and not speculative.
The argument that partisan politics is crippling the effective functioning of state appellate
courts is not just the rumblings of a convicted felon. The same argument was made by an
esteemed panel of senior female appellate justices in a June 9, 2014 C-Span video titled “Judicial
Independence and Politics”15. Two of the panelists, Chief Justice (Former) Barbara Pariente of the
Florida Supreme Court and Chief Justice (Former) Marsha Ternus of the Iowa Supreme Court
openly acknowledged the problems partisan politics are having on state appellate courts.
Petitioner is simply a real life victim of the problem the esteemed justices acknowledged. In the
14
15
Republicans and Democrats
http://www.c-span.org/video/?319854-1/judicial-independence-politics
20
C-Span video Justice Pariente, attempting not to sound highly critical, openly questions the
impartiality of the Texas Judicial system given the fact that the Justices identify themselves as
Republican or Democrat. Because petitioner’s complaint is rooted in a real and acknowledged
problem in state appellate courts, it must be taken very seriously.
RELIEF SOUGHT
Petitioner seeks $5,000,000 (5 million dollars) in monetary damages for the needless political
oppression he has suffered at the hands of the Texas Court of Criminal Appeals Justices.
CERTIFICATE OF SERVICE
I Collins O. Nyabwa hereby certify that on this the 20th day of August 2015 a true and proper copy
of this complaint was mailed to the defendants at the following address:
U.S. District Clerk’s Office
501 West Fifth Street, Suite 1100
Austin, TX 78701
Collins O. Nyabwa
Petitioner (Pro se)
1341 W. 43RD Street, #163
Houston, TX 77018
21