Munoz, Juan Ricardo ( 2015 )

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COURT OF CRIMINAL APPEALS r\V U1LP*V^
FEB 062015 &feYlTY??Q(7
Ab@8 Acosta, Clerk
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RE: QUESTION OF LAW/DISCRETIONAL AUTHORITY
DEAR \^,fi t^cl^A- fae-y&f^i
UNDER ART.11.05 T.C.C.P.,ANY JUDGE OF THE COURT OF CRIMINAL
APPEALS HAS THE POWER TO ISSUE THE WRIT OF HABEAS,CORPUS;AS UNDER
ART.11.07 §5,THE COURT OF CRIMINAL APPEALS "MAY DIRECT THAT THE
CAUSE BE CHECKED AND HEARD AS THOUGH CRIMINALLY PRESENTED TO SAID
COURT OR AS AN APPEAL".
YOUR HONOR HOLDS EXCLUSIVE DISCRETIONARY AUTHORITY TO REVIEW
MATTERS RELATIVE TO VIOLATIONS OF CONSTITUTIONAL DUE PROCESS. IN
EFFECT,ART.11.04 STATES THAT "EVERY PROVISION RELATING TO THE WRIT .
OF HABEAS CORPUS SHALL BE MOST FAVORABLY CONSTRUED IN ORDER TO GIVE
EFFECT TO THE REMEDY,AND PROTECT THE RIGHTS OF THE PERSON SEEKING
RELIEF UNDER IT". WITH THIS SAID, I RESPECTFULLY IMPLORE YOUR DISERS
ETIONAL AUTHORITY TO REVIEW,AND INTERVINE AS APPROPRIATE TO THE FOL
LOWING: (QUOTING RULE 79.2(a) A MOTION FOR REHEARING AN ORDER THAT
DEiSIIES HABEAS CORPUS RELIEF UNDER CODE OF CRIMINAL PROCEDURE, ART.
11=07 OR 11.071,MAY NOT BE FILED. THE COURT ON ITS OWN INITIATIVE
RECONSIDER THE CASE.-AMENDED JULY 12,2011,EFF. SEPT. 11 ,2011-T.ft.ft.P. )
A WRIT OF HABEAS CORPUS UNDER ART. 11 .0.7 WAS FILED ON SEPT.18,
2012(WRIT NO.WR-78,478-01). THE COURT OF CRIMINAL APPEALS DENIED
WITHOUT WRITTEN ORDERPON OCT.24,2012,AND A PETITION FOR RE60NSIDERA-
BTOHEWABWSUBSEQUENTLY FILED 'ON-NOV.15, 2012 BUT.WAS- NOT ENTERTAINED
J3Y THIS COURT.
THE GROUNDS WITHIN SAID WRIT ENTAILED,ONE:INEFFECTIVE ASSISATAN-
CE OF COUNSEL; AND TWO:A VIOLATION OF APPLICABLE RULE OF LAW-21.9
TEXIS RULES OF COURT/RULES OF APPELLATE PROCEDURE.
ALTHOUGH THE STATE EXCERCISED THEIR RIGHT TO DENY THE APPLICA
TION UNDER THE AUTHORITY OF ART.11.07 §3*-b),NO EXPLANATION OR REASON
WAS GOJVEN TO REJECT EITHER GROUND AS MERITLESS. THE APPLICANT SOUGHT
T9 EXCERCISE RIGHT TO A REMEDY OF LAW. ENTITTLED BY THE CONSTITUTIO
NAL RCDGHT:- TO DUE ^PROCESS, BUT THE REMEDY SOUGHT WITHIN THE 11.07 APP
LICATION WAS MISTAKENLY 'OVERLOOKED. NO EXPLANATION RELATIVE TO' THE
RECOMENDATION OF THE STATE TO DENY EACH GROUND WAS GIVEN. ALTHOUGH
APPLICANTS GROUND OF A VIOLATION TO RULE 21.9 HAD MERIT AS CONCURREB
(1)
BY THE UNITED STAES DISTRICT COURT FQ THE WESTERN DISTRICT(SEE
ATTACHMENT A.) THE COURT OF CRIMINAL APPEALS FURTHER DENIED THE
WRIT AND BASICALLY AFFIRMED THE TRIAL COURTS NEGLECT TO ADDRESS A
A VALID CLAIM.
IT IS WITH THIS SUSTENANCE THAT THE APPLICANT RESPECTFULLY
.RE.Q.UESTS .T.HA.T_Y.O.UR._ HONOR. TAKE__A.P PRPRIATE^DISCRETIONARY AUTHORITY
TO REVIEW WRIT. APPLICANT SEEKS TO EXHAUST HIS RIGHTFUL REMEDY OF
LAW AND SEEK RELIEF FOR A VIOLATION AGAINST HIS RIGHT OF DUE PROC
ESS. ALL IS WANTED IS THAT THE STATE ANSWER MY WRIT,AND GIVE SUPPO
RTING REASONS TO THEIR'DENIED OF MY GROUNDS SO THAT I MAY SEEK REL
IEF IN A HIGHER COURT. IN A PROPER EXAMINATION OF MY GROUNDS THIS
HONORABLE COURT SHALL DETERMINE THAT THE' TRIAL COURT ABUSED ITS- DIS
CRETION IN DECLARING A MISTRIAL AS TO ITS ENTIRETY,WHEREAREAS,UNDER
RULE 21.9 ADOPTED BY THIS HONORABLE COURT,RESENTENCING WAS THE APP
ROPRIATE RECOURSE AT LAW.-APPLICANT PRAYS THAT YOUR HONOR CONSIDER
THIS REQUEST.
RESPECTFULLY SUBMITTED,
DOUPH-^RTStrOE UNIT
1459 WEST HWY.85
DILLEY,TEXAS 78017
(2)
Case 3:13-cv-00015 Document 4 Filed 01/29/2013DPage 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
JUANMUNOZ, §
TDCJ # 1467005, §
Petitioner, §
- -•'- - —.— • —-•§-
v. § EP-13-CV-15-PRM
§
BRAD LIVINGSTON, §
Executive Director, Texas Department of §
Criminal "Justice, §
Respondent. §
ORDER FOR RESPONDENT TO ANSWER
In apro se petition for awrit of habeas corpus pursuant to 28 U.S.C. §2254, Petitioner
Juan Munoz ("Petitioner") challenges his convictions for three counts of aggravated sexual
assault by ajury in an El Paso County state court.1 Mindful ofPetitioner'spro se status,2 the
Court understands him to assert that (1) the trial court erred when it declared amistrial during the
punishment phase of the trial and ordered are-trial ofthe entire case, and (2) his appellate
counsel provided constitutionally ineffective assistance when he failed to raise the trial court's
error in declaring amistrial during the punishment phase and ordering are-trial ofthe entire case.
Upon review, the Court concludes that summary dismissal ofthe petition is not
appropriate. Accordingly, the Court enters the following orders and advisories:
1. . Service on Respondent: The Court ORDERS the Clerk ofthis Court to serve a
copy ofthe petition and this order upon counsel for Respondent, the Texas Attorney General. All
documents shall be sent to the attention ofthe Chief, Postconviction Litigation Division.
1State v Munoz. Cause Number 20060D04737 (210th Dist. Ct., El Paso Cnty. Tex., Sept. 25,
2007), aff'd, No. 08-07-00304-CR, 2010 WL 546676 (Tex. App.—El Paso, Feb. 17,2010, pet. dism'd).
2See Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding/^ se pleadings to less stringent
standards than formal pleadings drafted by lawyers); see also Franklin v. Rose, 765 F.2d 82, 85 (6th Cir.
1985) (explaining that liberal construction allows for active interpretation ofapro se pleading to
encompass any allegation which may raise aclaim for federal relief).
ATTACHMENT (A)