Munoz, Juan Ricardo ( 2015 )


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    HON . -S rva.haro (Ceffe P
    ©9WW0F CRMAL APPBILS
    MAY 29 2015
    RE:   QUESTION OF LAW/DISCRETIONAL      AUTHORITY
    A83@iAGG§ta, Clerk
    dear AIS. Ke/fer
    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 RELA'TING 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 DISERe
    ETIONAL AUTHORITY TO REVIEW, AND INTERVINE AS APPROPRIATE TO THE FOLr,
    LOWING: (QUOTING RULE 79.2(a) A MOTION FOR REHEARING AN ORDER THAT
    DENIES 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.R.ft.P. )
    A WRIT OF HABEAS CORPUS UNDER ART.11.07 WAS FILED ON SEPT.16,
    2012(WRIT NO.WR-78,478-01). THE COURT OF CRIMINAL APPEALS DENIED
    WITHOUT WRITTEN ORDERPON OCT.24,2012,AND A PETITION FOR RESONSIDERA-
    KTONEWABWSUBSEQUENTLY FILED 'ON NOV.15, 2012 BUT ".WAS NOT ENTERTAINED
    §Y 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
    TEXHS 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 GIVEN TO REJECT EITHER GROUND AS MERITLESS. THE APPLICANT SOUGHT
    TO EXCERCISE RIGHT TO A REMEDY OF LAW. ENTITTLED BY THE CONSTITUTIO
    NAL E'DGHT:T0: 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 FO 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
    REQUESTS .THAT_Y.O.U.EL HONOR. TAKE APPRPRIATE'^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,
    1459 WEST HWY.85
    DILLEY,TEXAS 78017
    (2)
    Case 3:13-cv-00015 Document 4                                              Filed 01/29/2013CPage 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 a writ ofhabeas 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 of Petitioner's pro 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 of the 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. d.sm'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)
    

Document Info

Docket Number: WR-78,478-01

Filed Date: 5/29/2015

Precedential Status: Precedential

Modified Date: 9/29/2016