Ramirez, Juan Raul Navarro ( 2015 )

WR-71,401-01
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/24/2015 11:26:00 AM
Accepted 7/24/2015 11:30:19 AM
ABEL ACOSTA
IN THE TEXAS COURT OF CRIMINAL APPEALS CLERK
AUSTIN, TEXAS RECEIVED
COURT OF CRIMINAL APPEALS
7/24/2015
ABEL ACOSTA, CLERK
) Writ No.
EX PARTE ) \ryR-71,401-01
JUAN RAUL )
NAVARRO-RAMIRF.Z, )
APPLICANT )
)
)
APPLICANT'S MOTION TO DECLARE HIS INITIAL
APPLICATION FOR WRIT OF HABEAS CORPUS TIMELY FILED AS
oF APRrL 18, 2007
JEREMY SCI{EPERS (No. 24084578)
(Email : Jeremy.Schepers@ocw.texas.gov)
ERIN ECKHOFF (No. 24090910)
(E-Mail : Erin.Eckhoff@ocw.texas. gov)
Post-Conviction Attorneys
Office of Capital Writs
1700 N. Congress Ave., Suite 460
Austin, Texas 78701
(s12) 463-8600
(st2) 463-8s90 (fax)
Attorneys for Applicant
IN THE TEXAS COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
) Writ No.
EX PARTE ) wR-71,401-01
JUAN RAUL )
NAVARRO-RAMIREZO )
APPLICANT )
)
)
APPLICANT'S MOTION TO DECLARE HIS INITIAL
APPLICATION FOR WRIT OF HABEAS CORPUS TIMELY FILED AS
oF APRIL 18, 2007
Juan Raul Navarro-Ramirez ("Ramirez"), by and through his attorneys, the
Office of Capital Writs ("OCW"), respectfully requests that this Court order his
previously filed initial application to be considered timely filed as of April 18,2007
Doing so will preserve Ramirez's ability to pursue federal remedies if this Court
denies relief on his initial application. Further, it prevents Ramirez from suffering
harm from his prior counsel's failure to timely file his initial application pursuant to
the mandates of Article 1 I .07 I of the Texas Code of Criminal Procedure.
A. Statement of Facts
Ramirez is confined under a sentence of death pursuant to the judgment of the
370th District Court, Hidalgo County, Texas, case number CR-0551-04-G, which
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was entered on December 22,2004. (2 CR aT 591-98.)' On direct appeal, this Court
granted relief on one count of Ramirez's conviction as violating double jeopardy and
affirmed the judgment of a second count. Ramírez v. State,2007 WL 4375936 (Tex.
Crim. App. Dec. 72,2007) (unpublished). The Supreme Court denied Ramirez's
petition for writ of certiorari on October 6,2008. Navarro-Ramirez v. Texas,555
u.s. 831 (2008).
The trial court appointed David Sergi to represent Ramirez in filing an initial
application for a writ of habeas corpus on December 22, 2004. (2 CR at 599.)
Because the State's Answer on direct appeal was f,rled on December 4, 2006,
Ramirez's initial application was due on January 18,2007. The trial court granted
Mr. Sergi three extensions to file, two of which were not authorized under Article
1 1.071. Ex parte Juan Raul Navarro Ramirez, No. AP-75,167 (Tex. Crim. App.
July 7,2008) (per curiam) (unpublished). On August 15, 2007, after an initial
application was not filed, the trial court held a hearing on Ramirez's pro se motion
to remove Mr. Sergi as writ counsel. 1d. This request was granted by the trial court
"for reasons unrelated to [Mr. Sergi's] failure to timely frle an application." Id. This
Court ordered Mr. Sergi to file an affidavit with reasons showing good cause for his
failure to timely file the initial application. Id. On July 7, 2008, having not yet
received an affidavit from Mr. Sergi, this Court found him in contempt. Id. It
I ccçp:: refers to the Clerk's Record in Ramirez's trial
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imposed a $500 fine, ordered him to return any attorney's fees that were paid to him
for work on Ramirez's case, and forwarded a copy of the order to the Chief
Disciplinary Officer at the State Bar of Texas. Id. On the same date, Paul Mansur
was appointed to represent Ramirez and to file an initial application in the trial court
within 270 days. Id.
After receiving one ninety day extension, Mr. Mansur filed Ramirez's initial
application on July 9, 2009. The State's Answer to that application was filed on
September 7,2012. After Mr. Mansur was unable to continue his representation of
Ramirez, the trial court appointed the Offrce of Capital Writs ("OCW") to represent
Ramirez in his state post-conviction litigation on November 9,2012. The trial court
held a live evidentiary hearing on November 3 and 4, 2014, on the issues raised in
the initial application. On January 20, 2015, the trial court adopted the State's
Proposed Findings of Fact and Conclusions of Law verbatim and recommended that
relief be denied. On February 9,2015, Ramirez filed objections to those findings
with this Court. Ramirez's initial application remains pending before this Court.
B. Prior Counsel's Actions Have Severely Compromised Ramirez's Abilify
to Seek Federal Review
If this Court were to deny relief on Ramirez's Initial Application, prior post-
conviction counsel's actions have left Ramirez less than three months in which to
file a petition seeking federal habeas corpus relief. The Antiterrorism and Effective
Death Penalty Act provides for federal habeas writ applications a one-year period of
a
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limitation that runs from "the latest of the date on which the judgrnent became final
by the conclusion of direct review or the date of the expiration of the time for seeking
such review." 28 U.S.C. ç 2244(dXlXA). Federal law also calls for "a properly
filed application for State post-conviction or other collateral review" to toll the time
limitation to fìle for federal habeas relief. Id. at (d)(2). Ramirez's one year
limitations period began on October 6,2008, when the Supreme Court denied his
petition for writ of certiorari on direct appeal. It continued to run until July 9, 2009,
when Mr. Mansur filed Ramirez's initial application, which leaves Ramirez with
only eighty-nine days in which to fìle his federal petition.2
C. Ramirez's lnitial Application Should be Considered Timely Filed as of
April 18,2007
Ramirez, through no fault of his own, is at risk for losing over nine months of
time for filing his petition in federal court. This will significantly compromise and
limit his ability to seek federal review, particularly in light of the voluminous nature
of the proceedings and filings during his state court proceedings. As outlined above,
Mr. Sergi failed to timely file Ramirez's initial application on April 18, 2007-rhe
date that it was due following the granting of one ninety day extension, as authorized
by statute. See Tpx. Coos Cruv. Pnoc. art. 1 1.071 $ 4(b). Ramirez asks that his
2
Ramirez's federal counsel will not have the entirety of this time to work on his
petition. A possibly signif,rcant amount of time will be lost until the federal district
court actually appoints an attorney for Ramirez.
4
subsequently f,rled initial application be considered timely filed as of that date. To
do otherwise would unfairly punish Ramirez forhis prior attorney's actions-actions
that this courl deemed worthy of a contempt order, fines, and repayment of attorney's
fees
Respectfully submitted,
DATED: July 24,2015 By
SCFIEPERS
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IN THE TEXAS COURT OF CRIMINAL APPE,ALS
AUSTINO TEXAS
) Writ No.
EX PARTE ) wR-71,401-01
JUAN RAUL )
NAVARRO.RAMIREZ, )
APPLICANT )
)
)
ORDER
This Court grants this motion and orders that Ramirez's initial application for
writ of habeas corpus will be considered timely filed as of April 18, 2007
ORDERED AND SIGNED on this day of July,20l5
Judge
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CERTIFICATE OF SERVICE
I, the undersigned, declare and certiff that I have served the foregoing Applicant's
Motion to Declare his Initial Application for \Mrit of Habeas Corpus Timely Filed as
of April 78,2007 upon:
Court of Criminal Appeals
P.O. Box 112308
Austin, Texas 7871I
(Original by e-File)
Hidalgo County District Attorney
Ted Hake, Asst. Crim. D.A.
100 N. Closner Blvd.
Edinburg,TX 78539
Juan Ramirez
TDCJ # 999490
TDCJ Polunsky Unit
3872 FM 350 South
Livingston, TX 77351
This certification is executed on July 24,2015, at Austin, Texas.
I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge.
JEREMY SCHEPERS
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