NO. _______________________________
BRADLEY J. BARTON, §
.,_.Relator,
·v. § IN THE COURT OF CRIMINAL APPEALS
OF THE ST~'eetMEo ~N
HON~ STACEY BOND, COURT OF CRHIRINAlt Ai!!PPEALS
JlJ[ffi of tre 176th District Cart of Hm:is Canty,
Respondent~ § JUN 01 20:5
MOTION FOR LEAVE TO. FILE ORIGINAL APPLICATION· FOR 1WiBfiiJ811@lJ:'~i~·~US
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
Comes now,Bradley J. Barton,Relator,and pursuant to Rule 72.1. of theRules of Appellate
Procedure,files this motion for leave to file an application for Writ of Mandamus directing
Hon. Stacey Bond,the Judge of the 176th District Court of Harris County,Respondent,to,pursu-
ant to this Court's "abstention doctrine, "Ex parte Moreno,245 S.W.3d 419,;428 (Tex.Crim.App.
2008),suspend proceedings of Relator's application for writ of habeas corpus until his fede-
ral Petition for Writ of Habeas Corpus currently being considered in the United States Dist-
rict Court for the Southern District of Texas is disposed of. In support of this Motion for
Leave,Relator will show the following:
. -,· I .· .
r.
On March 19 ,20p, the relator. filed an applicatio~ for writ of habeas_ corpus,pursu~t to Art. i
11.07 of the .Cod~ of Criminal Proced~e,under ca~se number 1206429~B in the 176th District
Court of Harris County. -On May 2,2012,the State received service of the habeas application.
On May 17,2012,the State filed a motion requesting designation of issues to be resolved. On
June 4,2012,the 176th District Court ordered the designation of issues to be resolved. After
the Order Designating Issues (ODI) was entered,Relator moved for an evidentiary hearing and
appointm~nt of counsel,as well as the recusal of the original habeas judge. All motions went
unruled upon. Relator ultimately sought mandmus relief againsttthe original judge on his mo-
tion to recuse,which eventually led to an order_ of this Court.See 1WR-76,811-03. The applica-
tion,however,remained ~tagnant,despite Relator's many attempts to_get the habeas proceedings
underway.
II.
Because of the circumstances described above,Relator filed for identical habeas.relief in t
the United States District Court for the Southern District of Texas-Houston Division. That
court has taken jurisdiction,and on March 12,2015,ordered the Attorn~y General's Office to
respond. On April 1S~ 2015,o~tensibly after the fed~ral court's orde~,and after_three years
of ~o other filings by the State in relation to the hab~:as application, the State moved for
the habeas court to ·order affidavits from lawyer~ who repr~sented certain ind~viduals who .
are apart of the habeas applications allegations. This was/is apparently in an attempt to
help resolve a factual issue designated for resolution-"whether the applicant is actually
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innoc'ent"~by ascertaining if these lawyers were "ever made aware" of ,or "ever received inf-
ormation';' concerning allegations made in the application. The respondent, three days later,
entered the State's proposed orders concerning those affidavits,and thus is proceeding to
consider the application.
Relator has filed a motion in Respondent's court clearly bringing to her attention the fact
that he has his federal habeas petition,which is identical to the orie pending in her court,
pending and under consideration in federal court. Relator has also clearly brought to her .'.:
attention this Court's "abstentionrule." Relator has moved Respondent to suspend considera-
tion of his habeas application until the federal court dispose.s of his federal petition. ·Re-
spondent,however,has chosen not to suspend consideration of the applicatfon·,and has proceed-
ed to consider the habeas case.
III.
Respondent's failure to act as requested by Relator is a failure to perform a ministerial ~
function,under the facts of this case,because this Court,"[s]ince 1972 0 has dismissed state
habeas corpus applications when the applicant also has a writ pending in the federal courts
that relates to the same conviction or same matter."Ex parte Soffar,14) S.W.3d 804,805 (Tex.
Crim.App.2004)(citations omitted). The Court has made explicitly and unequivocally clear th-
at it will "not ,and a trial court in this State should not ,consider a [applicant's] applica-
tion [for writ of habeas corpus] so long as the federaL courts retain jurisdiction of the :.
same matter."Ex parte Green,548 S.W.2d 914,916 (Tex.Crim.App.1977). As detailed above,Relat-
or has a federal Petition for Writ of Habeas Corpus pending in federal" court that is materi-
a,lly indistinguishable from the instant application for writ
' .
of. habeas· corpus. Petitioner,::
.
thus,indisputably.has a writ pending in the federal court~ that rel~tes to the same convict-
ion or same matter that the habeas application Respondent is proceeding on does. And theref-
ore the habeas application falls under the "abstention doctrine."
IV.
The relator has no adequate remedy at law to pursue the requested relief other than through
mansamus relief from this Court.
v.
This Court has jurisdiction to issue a grant of leave to file an application for writ of ma-
ndamus in this cause under Rule 72.2. of the Rules of Appellate Procedure and Article 5,sec.
5 of the Texas Constitution.
WHEREFORE,Relator prays the Court grant him leave to file an application for Writ of Mandam-
us directing Respondent to abide by this Court's abstention doctrine by suspending the habe-
as proceedings in Cause Number 1206429-B,due to Relator's federal habeas petition pending :,
under Case No.4:15-CV-00587 in the U.S. District Court for the Southern District of Texas.
Respectfully Submitted,
~·
BRADLEY J. BARTON, Relator
12071 FM 3522
Abilene,TX 79601
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INMATE'S DECLARATION
!,Bradley Jared Barton,being presently incarcerated in TDCJ-Robertson Unit,declare under _,
penalty of perjury that the foregoing facts are true and correct.
05/ZI!/5
Date Signature of Relator
Certific~te of S~rvice
· Service has been accomplished by mailing P true and correct copy of the foregoing instrum-
ent to Respondent at the following address:
Hon. Stacey Bond
176th District Court,19th Floor
1201 Franklin
Houston,Tx 77002
This the Zl +'-' day of May, 2015.
L
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