March 2, 2015
Abel Acosta, Clerk
Court of Criminal Appeals
Post Office Box 12308
Austin, Texas 78711-2308
Re: Writ No. WR-71,478-02
Dear Mr. Acosta:
Enclosed for filing is Relator's Second Motion for
a Writ of Mandamus.
Thank you for presenting this to the Court.
Yours Sincerely,
Livingston, Texas 77351
RECEIVED IN
COURT OF CRIMINAL APPEALS
MAR 06 2015
cc: Jana Duty, District Attorn~y
Williamson County Courthouse
Post Office Box 24
Georgetown, Texas 78627
IN THE COURT OF CRP1INAL APPEALS
OF TEXAS
JOHNNY ANTHONY MORENO, §
§
§
§ WRIT NO. WR-71,478-02
§
§
RELATOR §
RELATOR MORENO'S SECOND PETITION FOR WRIT OF MANDAMUS
On February 4, ~015, this Court denied Relabbr's Original
Application for Writ of Mandamus. Accordingly, this second app-
lication is presented on an "EMERGENCY BASIS" because:
I
The Williamson County, Texas, District Attorneyj Jana Duty,
is purposefully denying Relator, Johnny A~thony Moreno, meaningful
access to court on a gen0ine issue of material fact affecting his
confinement in which he can prevail by refusing to forward his
September 18, 2014, State Habeas Corpus Application (EXHIBIT A),
to the Texas Court of Criminal Appeals, or in the alternative,
comply with the provision ~f Article 11.07, §§ 3(a), 3(b), and
3(c), of the Texas Coqe of Criminal Procedure, which provides:
3(b) The State shall answer within 15 days.
3 (c) 20 days for theL-tr.,tial court to determine ,
whether there are any controverted issues
regarding the legality.;of Applicant's
confinement. If there are no issues the
convicting court must immediately forward
the application to the Court of Criminal
appeals.
-1-
3(d) If the convicting court finds th9t there
are controverted unresolved facts, the
trial court shall designate the J.ssues
to be resolved.
But in Relator's State habeas corpus application neither
the District Attorney nor. the trial court' took the initiative to
comply with these provision.even though Relator timely and prop-
erly filed his application.
Moreover, the very language of the habeas corpus statute,
i.e., [shall] and ~rmust] clearly mandate that theses are min-
isterial durites as opposed to some elective discretionary funct-
ion. And, in postconviction habeas corpus cases, it is well estab-
lished that it is the Texas Court of Crim'inal Appeals, [not] the
local District Attorney who is the ultimate fact finder. Ex Parte
Henderson, 384 S.W.3d 833 (Tex.Crim.App. 2012). Accordingly, the
district attorney cannot circumvent the power of the Texas Court
of Criminal Appeals by withhoiding habeas corpus applications.
II
The issues raised in Relator's State habeas corpus applic-
ation are also cognizable by Federal Habeas Corpus review follow-
ing the United States Supreme Court's decision in Martinez v Ryan,
u.s. I 132 s.ct. 1309, 162 L.Ed.2d 272 (2012), where the
Court determined:
"A criminal defendant has the Constitutional right to the
effective assistance of counsel in a postconviction coll-
ateral proceeding."
In Ex Parte Gutierrez, 337 S.W.3d 883 (Tex.Crim.App. 2011),
-2-
this Court determined that once the trial court found reasonable
grounds for QNA testing, ihe trial court was authori~ed to app-
oint counsel for the postconviction DNA testing. But it was in
Martinez v Ryan, supra, that the Supreme Court decided a defendant
is entitled to the effective assistance of ~ounsel in these coll-
ateral proceeding where this is the only opport~nity a defendant
can raise his claim of innocence or in the alternative provide a
"gateway" for further proceedings and relief.
The changes in the law regarding counsel in. collateral post-
conviction case decided by the Un.ited States Supreme Court in
Martinez v Ryan, supra,~apply directly to Re1~tor's case because
his counsel at his DNA hearing was so grossly ineffective that
Relator was virtually without counsel. Also, the Supreme Court in
Trevino v Thaler, u.s. 133 s.ct. 1911, 185 L.Ed.2d 1044
(2013), decided one year.after Martinez v Ryan, decided that the
Court's ruling ip Martinez applies to Texas cases because it is
highly unlikely that an inmate could raise a meaningful claim of
ineffective assistance of counsel on direct appeal. Cf. Mata v
State, 226 s.w.3d 425,430 (Tex.Crim.App. 200~), and Williams v
State, 301 S.W.3d 675 (Tex.Crim.App. 2009).
In Relator Moreno'~ case, he vigorously allege~ that onGe
the trial court recognized that, that Mr. Moreno showed entitle-
ment to DNA testing, his appointed counsel undermined every Single
legitimate issue that would have entitled him to DNA testing. And
the iecord supports this claim.
PRAYER FOR RELIEF
-i-
Now, for all the reasons stated herein, Re1~tor now prays
that the Honorable Court of Criminal Appeals will [ORDER] the
Williamson County District Attorney,-Jana Duty, to come into full
compliance with provisions of Article 11.07, §§ 3(b)~3(c) and 3(d),
or in _the alternative pro@ptly forward Rel~tor's habeas corpus
application to the Court of Criminal_ Appeals without delay.
Respectfully Submitted
Livingston, Texas 77351
Executed: March _d__, 2015.
-4-
CERTIFICATE OF SERVICE
Service has been accomplished by forwardin~ a true and
correct copy of MOVANT MORENO'S SECOND PETITION FOR WRIT OF
MANDAMUS, postage prepaid, via United States Postal Service on
this d/lt/of ·/t!MeJ_
I
, 2015, to:
Jana Duty, District Attorney
Williamson County Courthouse
Post Office Box 24
Georgetown, Texas 78627
-5-
-.
Case No. 01- 1J~[{;g£;
(The Clerk of the convicting court will fill this line in.).
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
APPLICATION FORA WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM FINAL FELON\' CONVICTION
UNDER CODE OF CRIMIN'AL PROCEDURE, ARTICLE 11.07
NAME: Johrwy Moreno
September 19, 1965 ~
DATE OF BIRTH: --~-----~,.....,..,,..-----...,;.;....,....,...------
PLACE OF CONFINEMENT: Pclunsky Unit.- TDCJ-CID
TDCJ-CIDNUMBER: 14853;35 . Sli> NUMBER: 9~~.:....3~0~6~4~27J...-----
(1) This application concerns (check all that apply): DEFENDANT'S
lXI a conviction 0 parole EXHIBIT
"A"
~ a sentence 0 mandatory supervision
0 time credit 0 out,.of-tiriie ~ppeal or petition for
X DNA discreqonaty· tevie:w·
(2) What distr:ict court entered. the judgment ofthe, conviction you want relieffrom?
(Include tbe court number and county.)
368th Judicial District Court - Williams~n County, Texas
(3) What was tbe.case number in tbe.trialcoun?
----------------------------------0-7-=-7-1-2=K36B----=------------------------------------'-----· ------------------------------------------------
(4) Wbatwas the name ofthe (fia.Iifudge~
Burt Carnes
.): SEP 1C201~
Effective~ January l, 2014
~W~
District Clerk
' . amson co., TX.
Rev. 01114/14
NO. 07-712-K368B
§ IN THE
§ 368TH JUDICIAL DISTRICT
THE STATE OF TEXAS VS. JOHNNY
MORENO
§ COURTOF
§ WILLIAMSON COUNTY, TEXAS
§
WAIVER OF SERVICE
NOW COMES JANA DUTY, District Attorney of Williamson County, Texas, and hereby
acknowledges that she has on the I 8th day of September, 2014, received from the District Clerk's Office a
copy of the Application for Writ of Habeas Corpus filed on September I 8, 2014, in the above entitled and
numbered cause and she hereby waives delivery to her of said Application by certified mail.
. . . ~.t~MZUN~•-"t,.~..-rs·"•r.~.,.,~l:
DEFENDANT 'S ~·
, District Attorney i EXHIBIT
'
i
ounty, Texas ".B I I
BY:
LISA DAVID, District Clerk
Williamson County, Texas
,{!~FILED~·
at~o'clock
·
SEP 1 9 2014
~~
/ . .. . . _ Dlatrlct Clerk, Wllllams~n ~
{jl ku-&~ t(w f l'ecvdJ to(P-rt/f1
Moreno, Johnny Anthony
Combined Opinion