                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                                ________________

                               NO. 09-14-00358-CR
                                ________________

              EX PARTE AMIR TAVAKKOLI, Appellant
__________________________________________________________________

             On Appeal from the County Court at Law No. 1
                     Montgomery County, Texas
                       Trial Cause No. 14-28246
__________________________________________________________________

                          MEMORANDUM OPINION

      This is an appeal from the trial court’s order denying appellant Amir

Tavakkoli’s second application for writ of habeas corpus. See Tex. Code Crim.

Proc. Ann. art. 11.09 (West 2005). In three appellate issues, Tavakkoli contends

the trial court (1) failed to properly consider two cases that apply the right to

effective assistance of counsel to a writ of habeas corpus; (2) erred in not granting

appellant’s second writ due to new testimony; and (3) erred by using the doctrine

of laches to dismiss his writ. We affirm the trial court’s judgment.




                                          1
                                 BACKGROUND

      As we explained in our opinion on Tavakkoli’s appeal of the denial of his

first application for writ of habeas corpus, Tavakkoli was born in Iran in 1988,

moved to the United States in 2002, and became a legal permanent resident. Ex

parte Tavakkoli, No. 09-13-00082-CR, 2013 WL 5428138, at *1 (Tex. App.—

Beaumont Sept. 25, 2013, pet. ref’d) (mem. op.). On December 8, 2006, when

Tavakkoli was an eighteen-year-old college student, he was arrested for reckless

driving, and drug paraphernalia and marijuana were found in the vehicle during an

inventory. Id. On December 15, 2006, Tavakkoli met with his appointed counsel,

pleaded guilty “to possession of marijuana in exchange for a twenty-day jail

sentence and dismissal of the reckless driving charge[,]” and was released after

serving his twenty-day sentence. Id. Tavakkoli went to Sweden in July 2012, and

he was denied reentry upon his return to the United States because he had pleaded

guilty to possession of marijuana. Id. In his first application for writ of habeas

corpus, Tavakkoli alleged that trial counsel provided ineffective assistance by

failing to advise Tavakkoli of the immigration consequences of pleading guilty to

the 2006 drug possession charge. Id. The trial court denied Tavakkoli’s

application, and Tavakkoli appealed to this Court. Id. This Court affirmed the trial

court’s judgment. Id. at *7.

                                         2
      Tavakkoli filed a second petition for writ of habeas corpus, in which he

contended that his writ counsel’s delay in filing his application for writ of habeas

corpus caused retroactivity under Padilla v. Kentucky to become an issue, and his

first petition “focused on Padilla and did not use any authority that discussed the

lack of counsel acting adversarial and taking a good plea agreement under the Fifth

Amendment.” See Padilla v. Kentucky, 559 U.S. 356 (2010). Tavakkoli also

argued that his trial counsel failed to be adversarial by failing to inquire about what

evidence the State had to hold the State to its burden of proof. In addition,

Tavakkoli contended that his Fifth Amendment rights were violated because his

counsel “took the worst possible outcome” by advising Tavakkoli to plead guilty to

possession of marijuana in return for dismissal of the reckless driving charge.

      The trial court held a hearing on Tavakkoli’s application. At the hearing,

Tavakkoli, appearing pro se, argued that trial counsel spoke to him for no more

than ten minutes at the jail, and Tavakkoli agreed to plead guilty to possession of

marijuana in exchange for a dismissal of the reckless driving charge. In addition,

Tavakkoli argued that the Supreme Court had not issued its decision in Chaidez v.

United States, in which the Court determined that Padilla is not applied

retroactively, until after he had already filed his first writ, and that he did not have

the opportunity to amend his writ to raise “new arguments” because the trial court

                                           3
made its decision two days after Chaidez was decided. See Chaidez v. United

States, ___ U.S. ___, 133 S.Ct. 1103, 1113, 185 L.Ed.2d 149 (2013). Tavakkoli

also contended that new testimony from trial counsel from the hearing on the first

writ had become available. According to Tavakkoli, trial counsel stated that he did

not check the weight of the marijuana, and Tavakkoli argued that he would have

been eligible for a waiver if the record had shown that the amount of marijuana

was less than thirty grams. Tavakkoli contended that because he left the United

States and tried to re-enter, he has the burden to prove the weight was less than

thirty grams, but he has “no records to show that.” Tavakkoli argued that he did not

have the right to a writ of habeas corpus until 2012 when he was placed under

deportation proceedings. Furthermore, Tavakkoli asserted that his counsel at the

writ hearing was ineffective because counsel did not raise all possible arguments

and defenses.

      The State argued that Tavakkoli was not entitled to a hearing because he did

not meet the requirements of article 11.59 of the Texas Code of Criminal

Procedure, which governs second applications for habeas corpus relief. See Tex.

Code Crim. Proc. Ann. art. 11.59 (West 2005). Specifically, the State argued that

article 11.59 requires that new evidence must have been discovered since the last

hearing, and the alleged new evidence was actually discovered at the first hearing.

                                         4
The State also argued that the equitable doctrine of laches applies because the

marijuana has been destroyed, “[t]he officer likely has no independent recollection

of any of these events, trial counsel “testified at the last hearing that he has no

independent recollection of his representation of Mr. Tavakkoli” and cannot locate

his case file, and the State cannot locate its case file concerning Tavakkoli.

According to the State, “it would be almost impossible to retry [Tavakkoli] for

either the reckless driving or the possession of marijuana because we have one

statement in a police report written seven and a half years ago[,]” and the arresting

officer cannot recall the ancillary trial testimony connected with Tavakkoli’s

offense. The State also argued that “[t]here is no entitlement to counsel on [an]

11.09 writ” and Tavakkoli could not demonstrate ineffective assistance of counsel.

Furthermore, the State asserted that laches runs from the time of conviction, and

that Tavakkoli has “always had collateral consequences of a marijuana

conviction.”

      Tavakkoli testified that trial counsel did not discuss alternative plea options,

and “pleading guilty to possession of marijuana was the only option given to me

after I told him I wanted to get out of jail. And no defenses were raised. Deferred

adjudication and probation were never discussed.” According to Tavakkoli, trial

counsel did not investigate the circumstances and validity of the inventory search

                                          5
of the vehicle, ownership of the vehicle, the substance found in the bag, or the

weight of the substance. Tavakkoli read into the record trial counsel’s testimony

regarding “his admission of lack of investigation” at the previous writ hearing.

Tavakkoli testified that he mentioned his college final examination to trial counsel.

      The trial court signed findings of fact and conclusions of law and an order

denying Tavakkoli’s application. In its findings and conclusions, the trial court

determined that (1) Tavakkoli’s trial counsel has no independent recollection of the

events surrounding Tavakkoli’s plea and cannot locate the case file; (2) the facts

supporting Tavakkoli’s current claims were available when he filed his original

writ application; (3) Tavakkoli has not presented any new evidence that was not

available at the hearing on his previous application; (4) the State’s ability to retry

Tavakkoli if habeas relief were granted “would be prejudiced by dissipation of

evidence that has occurred in the seven years since the offense date[;]” (5) the

equitable doctrine of laches requires denial of habeas relief; (6) Tavakkoli’s current

application is barred as a subsequent application because his current claims for

relief were available during his first writ application; and (7) Tavakkoli failed to

prove by a preponderance of the evidence that he was denied effective assistance

of counsel. Tavakkoli then filed this appeal.



                                          6
                             STANDARD OF REVIEW

      An applicant for a writ of habeas corpus must prove his allegations by a

preponderance of the evidence. Ex parte Klem, 269 S.W.3d 711, 718 (Tex. App.—

Beaumont 2008, pet. ref’d). We review a trial court’s decision to grant or deny

relief on an application for writ of habeas corpus under an abuse of discretion

standard. Id. We review the facts in the light most favorable to the trial court’s

ruling, and we afford almost total deference to the trial court’s determination of

historical facts supported by the record, especially when the trial court’s fact

findings are based upon its evaluation of credibility and demeanor. Id. When

resolution of the appellate issues turns on application of legal standards, we review

the trial court’s determination de novo. Id.

                                     ISSUE ONE

      In his first issue, Tavakkoli argues that the trial court erred by not

considering Trevino v. Thaler and Martinez v. Ryan. Tavakkoli asserts that both

Trevino and Martinez hold that an applicant for writ of habeas corpus has the right

to effective assistance of counsel. See Martinez v. Ryan, 132 S.Ct. 1309, 1320

(2012) (“[A] procedural default will not bar a federal habeas court from hearing a

substantial claim of ineffective assistance at trial if, in the [state’s] initial-review

collateral proceeding, there was no counsel or counsel in that proceeding was

                                           7
ineffective.”); see also Trevino v. Thaler, 133 S.Ct. 1911, 1920-21 (2013)

(applying the rule of Martinez to federal review of Texas state court convictions).

      The Court of Criminal Appeals has not yet addressed the application of

Trevino and Martinez to the jurisprudence of Texas. See, e.g., Ex parte McCarthy,

No. WR-50360-04, 2013 WL 3283148, at *1 (Tex. Crim. App. June 24, 2013) (not

designated for publication) (Price, J., concurring) (noting that the Court has not

reviewed its construction of article 11.071 of the Texas Code of Criminal

Procedure in light of Martinez and Trevino). Neither the U.S. Constitution nor the

Texas Constitution recognizes a claim of ineffective assistance of counsel on a writ

of habeas corpus. Ex parte Graves, 70 S.W.3d 103, 113 (Tex. Crim. App. 2002).

However, assuming without deciding that Tavakkoli has the right to assistance of

counsel when applying for a post-conviction writ of habeas corpus, Tavakkoli did

not demonstrate that counsel on his first writ provided ineffective assistance.

Accordingly, we overrule issue one.

                                    ISSUE TWO

      In his second issue, Tavakkoli contends the trial court erred in denying his

second application for writ of habeas corpus because new testimony was available

at the second writ hearing that was not available when he filed his first writ. Article

11.59 of the Texas Code of Criminal Procedure provides as follows:

                                          8
             A party may obtain the writ of habeas corpus a second time by
      stating in a motion therefor that since the hearing of his first motion
      important testimony has been obtained which it was not in his power
      to produce at the former hearing. He shall also set forth the testimony
      so newly discovered; and if it be that of a witness, the affidavit of the
      witness shall also accompany such motion.

Tex. Code Crim. Proc. Ann. art. 11.59 (emphasis added). Tavakkoli’s arguments at

the hearing, as well as his appellate brief, indicate that the “new” evidence upon

which he relies consists of trial counsel’s testimony at the hearing on his first

application for writ of habeas corpus. Because the evidence upon which Tavakkoli

relies was adduced at the hearing on his first application for writ of habeas corpus

rather than since that hearing, Tavakkoli does not meet the requirements of article

11.59. See id. Therefore, the trial court did not err by denying Tavakkoli’s

application on that basis. We overrule issue two.

                                  ISSUE THREE

      In his third issue, Tavakkoli contends the trial court erred by using the

doctrine of laches as a basis for denying his application for writ of habeas corpus.

Tavakkoli argues that “[i]t was not until July 2012, when appellant was placed

under deportation proceedings[,] that appellant’s right to a writ of habeas corpus

became ripe.” In addition, Tavakkoli maintains that if he were granted habeas

corpus relief and granted a new trial, the State “would be in the same position as it

was in 2006[.]”
                                         9
      “Given the nature of habeas corpus relief, it is reasonable to permit a court to

consider whether an applicant has slept on his rights and, if he has, how that has

affected the State, and whether, in light of the delay, it is fair and just to grant him

relief.” Ex parte Perez, 398 S.W.3d 206, 218-219 (Tex. Crim. App. 2013). The

doctrine of laches is applied on a sliding scale; therefore, “the longer the delay, the

less prejudice must be shown.” Id. at 219 (citing Smith v. Caterpillar, Inc., 338

F.3d 730, 733 (7th Cir. 2003)). The doctrine of laches will bar habeas relief “when

an applicant’s unreasonable delay has prejudiced the State, thereby rendering

consideration of his claim inequitable.” Id.

      As discussed above, the trial court heard and observed the State’s arguments

at the hearing. At the hearing, counsel for the State represented that the marijuana

has been destroyed, the arresting officer likely has no independent recollection of

events, trial counsel has no independent recollection of his representation of

Tavakkoli, trial counsel cannot locate his case file, and the State cannot locate its

case file. Counsel for the State represented that it would be “almost impossible” to

retry Tavakkoli. Reviewing the facts in the light most favorable to the trial court’s

ruling and affording almost total deference to the trial court’s determination of

historical facts supported by the record, we cannot say that the trial court abused its

discretion by denying Tavakkoli’s application for writ of habeas corpus. See Ex

                                          10
parte Klem, 269 S.W.3d at 718. Accordingly, we overrule issue three. Having

overruled each of Tavakkoli’s issues, we affirm the trial court’s judgment.

      AFFIRMED.

                                        ________________________________
                                               STEVE McKEITHEN
                                                   Chief Justice

Submitted on December 31, 2014
Opinion Delivered March 4, 2015
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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