Calvert, James ( 2018 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-85,283-01

EX PARTE JAMES CALVERT

ON NOTICE OF UNTIMELY APPLICATION FOR WRIT OF HABEAS CORPUS

FILED IN CAUSE NO. 241-1467-12

IN THE 241 ST JUDICIAL DISTRICT COURT

SMITH COUNTY

Per curiam .  

O R D E R

This case is before us because an application for a writ of habeas corpus has not been timely filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. ^{(footnote: 1)}

The trial court appointed counsel to represent Applicant in a post-conviction writ of habeas corpus under Article 11.071.  Approximately two months later, Katherine Ginzburg Treistman was allowed to substitute as retained counsel.  On June 19, 2018, the State filed in this Court its brief on Applicant’s direct appeal.  Pursuant to Article 11.071, § 4(a), counsel should have filed Applicant’s writ application no later than August 3, 2018.

Applicant filed in the trial court a motion requesting a 90-day extension for filing his writ application.  When the trial court failed to rule on this motion before August 3, 2018, Applicant sent to this Court his “Emergency Motion for Extension of Time to File Initial State Habeas Application.”  On August 6, 2018, the trial court signed an order purporting to grant Applicant’s request for a 90-day extension and to make Applicant’s writ due on November 1, 2018.  On August 9, 2018, we received Applicant’s “Withdrawal of Emergency Motion for Extension of Time to File Initial State Habeas Application.”

Applicant’s writ application was not filed by August 3, 2018, as required by Article 11.071, § 4(a).  However, the trial judge’s order granting an extension was not authorized because he signed the order granting the extension three days after the statutory deadline.  Without the intervention of this Court, any writ filed after August 3, 2018 would be untimely.  Under these circumstances, we find good cause to permit counsel to continue representing Applicant, and we will set a new due date.  Applicant’s request for an extension is granted, and his motion to withdraw the request is denied.  The writ application will be considered timely if it is filed in the trial court by November 1, 2018.            

IT IS SO ORDERED THIS THE 24 TH DAY OF OCTOBER, 2018.

Do Not Publish

FOOTNOTES

1:

  Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.