. ~ 552 ,@LM ~02 R§©EWED §w COURT OF CR|M\NAL APPEALS Marco A. Ehairez 265 015 Heg. No: 2&939-076 OCT 2 Federal Correctional Institution P.@. wm A@@w@@§@@,©n@ve< Three Rivers, Texas 73071 Eause No. CH-1253-D§-E(1) Ex parte : In The Texas Criminal Court of Appeals Marco Antonio Chairez, : _ wR-BZ,DE?-UZ Applicant : Capitol Station,Austin, Texas Applicant's Reply To The 37Uth District Court's Findings of Fact, Conclusion ' of Lam; Recommendation and Urder To The Hunurable dodge of said cuurt: Eomes Nom; the Bpplicant, Marco Antonio Chairez, appearing without the benefit of counsel, and files his reply to the 37Uth Judicial District Eourt's Findings of Facts Eonclusion of Lam, Recommendation and Urder in reference to his Application For a writ UF Habeas Corpus, 5eeking RelieF From Final Felony Conviction Under Code UF Eriminal Procedure; Article 11.07 and would show that, pursuant to the Supreme Eourt's decision in Strickland v. washington, AEE us.EEB, 10& s.ct.2052,BU l.ed.2d 67h (1984},;QOUUSEl;weS ineffective and a hearing is necessary in this matterj and that, in fact the Application For writ of Hebeas Corpus should be granterd. § Procedural History Un April 17, 2014, Applicant filed his First application For writ of Habeas Corpus under the Texas ¢ode of Eriminal Prooedure, Article 11.07. In Uctober B, 201& the Texas Court of Criminal Appealsi dismissed the application based on a discharged gentence. (uH'-Bz,u's?_m). nn February 18, '2015, Appiicant' filed his gamma application for a writ of Habeas Corpus under the Texas Code of Criminal Procedure}$ § -1_ Article 11.07. Dn September B, 2015 the 37Uth District Eourt's Honorable Judge Noe Gonzalez recommended that the application for a writ of Habeas Eorpus be denied, and ordered the clerk of the court to send certify copies of all fillings relating to this application for writ of Habeas Borpus, including the State's response and all supplements and amendments there to; and the District Court's Findings of Facts, Conclusion of Law, Recommendation and Urder; and to send to the Te#as Bourt of Eriminal Appeals. Applicant hereby submits his;reply_rg mae 37Dth District Court‘s Finding of Fact, Conclusion of Law, Recommendation and Urder. Memorandum of Law, Points, and Facts The Six Amendment guarantees that in all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Eounsel for his defrence. U.S Const. Amend. 6. The right of effective.assistance of counsel is guaranteed by the Six Amendment to the United States Constitution. 5ee Mcmann v. Hichardson, 376 U.S. 759, 770-71.90 s.ct. 1&4,25 L.ed. 2d 763 (1970). This Constitution guarantee attaches to both retained and appointed counsel. In accordance with Strickland v. washington, h66 U.B. 666,104 S. Et. 2052, BU L.ed. 2d 674 (1984), Applicant's counsel Jose Reyna representation was ineffective for failure to investigate Exculpatory witness Steven Puentes, who under penalty of perjury pursuant to 28 U.S.E. § 1746 filed a notarized affidavit in the District Eourt exonerating the Applicant of any blame in the alleged assault that took place-in January, 21, 2002. See Bryant v. Scott, 28 F.Zd 1&11, 1&20 (Fifth Eir. 199&) (stating that "counsel has a duty to investigate all witnesses who allegedly possessed knowledge concerning the defendant's guilt or innocence.") Given the fact that Steven Puente has exonerated Marco Chairez of any blame in connection with the incident that occurred on January 21, 2002, it cannot §§ ...2_ possibly be said with ”fair assurance" that the Applicant Marco Chairez would have agreed to entertain a plea bargain, as opposed to going to trail, had his attorney interviewed Steven Puente and informed him that Steven Puente "was available and willing to testify" as to Mr. Chairez innocence. Nor can it be said with "fair assurance" that had a trial jury heard Steven _Puente's confession it would have found the Applicant Marco Chairez guilty of assault. without being redundant, "it is more likely than not that no reasonable~ juror would have found the Applicant guilty beyond a reasonable doubt", in light of Steven Puente's confession. Moreover, having this conviction for an alleged assault in Applicant's current Federal Prison File, has enhanced his offender status level to a "Career Offender" and is preventing him from being eligible from receiving any Time Relief" in reference to his current Federal Prison Sentence. Accordingly, because counsel's deficient performance has resulted in the conviction of one who is actually innocent, Applicant Marco Chairez was denied his Six Amendment right to to the effective assistance of counsel, and relief is therefore appropriate in this instance. wherefore, based on the foregoing reasons, Applicant respectfully prays that this Honorable Court grant his request for Coram Nobis relief. Specifically, Applicant requests that his conviction be vacated, the expired sentence be set aside, and the charge of assault; Texas Penal Code § 22.01, be dismissed via judgement of acquittal. GOD BLESS YOU. Respectful submitted, §7¢6¢€7/ Au. 1/7/ A/z::\ Mardb”hntonio Chaikez\»//L/ 7 ji:> / A true and correct copy Findings of Fact, Conclusion this 20th day of 0ct., 2015, prepaid postage, using first Laura Hinojosa Hidalgo County District Elerk Post Uffice Box 07 Edinburg Texas 70539 District Attorney's 0ffice 100 n. Elosner St. lst Fl. Edingburg§`Texas 70540 Certificatexuf 5ervice of the forgoing response to the 370th District Court’s of Law, Recommendation and 0rder was filed -by placing the same in the United States Mail, class stamps, and certified for delivery to ; 5/%7 v /%Y Nco A. Chairez (2?939- 076 §§