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COURT OF CR|M\NAL APPEALS

Marco A. Ehairez 265 015
Heg. No: 2&939-076 OCT 2

Federal Correctional Institution

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Three Rivers, Texas 73071

Eause No. CH-1253-D§-E(1)

Ex parte : In The Texas Criminal Court of Appeals
Marco Antonio Chairez, : _ wR-BZ,DE?-UZ
Applicant : Capitol Station,Austin, Texas

Applicant's Reply To The
37Uth District Court's
Findings of Fact, Conclusion
' of Lam; Recommendation and Urder
To The Hunurable dodge of said cuurt:

Eomes Nom; the Bpplicant, Marco Antonio Chairez, appearing without the
benefit of counsel, and files his reply to the 37Uth Judicial District Eourt's
Findings of Facts Eonclusion of Lam, Recommendation and Urder in reference to his
Application For a writ UF Habeas Corpus, 5eeking RelieF From Final Felony
Conviction Under Code UF Eriminal Procedure; Article 11.07 and would show that,
pursuant to the Supreme Eourt's decision in Strickland v. washington, AEE us.EEB,
10& s.ct.2052,BU l.ed.2d 67h (1984},;QOUUSEl;weS ineffective and a hearing is

necessary in this matterj and that, in fact the Application For writ of Hebeas

Corpus should be granterd.

§

Procedural History
Un April 17, 2014, Applicant filed his First application For writ of Habeas Corpus
under the Texas ¢ode of Eriminal Prooedure, Article 11.07. In Uctober B, 201&
the Texas Court of Criminal Appealsi dismissed the application based on a discharged
gentence. (uH'-Bz,u's?_m). nn February 18, '2015, Appiicant' filed his gamma

application for a writ of Habeas Corpus under the Texas Code of Criminal Procedure}$

§ -1_

Article 11.07. Dn September B, 2015 the 37Uth District Eourt's Honorable Judge

Noe Gonzalez recommended that the application for a writ of Habeas Eorpus be

denied, and ordered the clerk of the court to send certify copies of all fillings
relating to this application for writ of Habeas Borpus, including the State's
response and all supplements and amendments there to; and the District Court's
Findings of Facts, Conclusion of Law, Recommendation and Urder; and to send to

the Te#as Bourt of Eriminal Appeals. Applicant hereby submits his;reply_rg mae 37Dth

District Court‘s Finding of Fact, Conclusion of Law, Recommendation and Urder.

Memorandum of Law, Points, and Facts
The Six Amendment guarantees that in all criminal prosecutions, the accused

shall enjoy the right to have the Assistance of Eounsel for his defrence.

 

U.S Const. Amend. 6. The right of effective.assistance of counsel is guaranteed
by the Six Amendment to the United States Constitution. 5ee Mcmann v. Hichardson,
376 U.S. 759, 770-71.90 s.ct. 1&4,25 L.ed. 2d 763 (1970). This Constitution
guarantee attaches to both retained and appointed counsel.

In accordance with Strickland v. washington, h66 U.B. 666,104 S. Et. 2052,
BU L.ed. 2d 674 (1984), Applicant's counsel Jose Reyna representation was ineffective
for failure to investigate Exculpatory witness Steven Puentes, who under penalty
of perjury pursuant to 28 U.S.E. § 1746 filed a notarized affidavit in the
District Eourt exonerating the Applicant of any blame in the alleged assault that
took place-in January, 21, 2002. See Bryant v. Scott, 28 F.Zd 1&11, 1&20 (Fifth
Eir. 199&) (stating that "counsel has a duty to investigate all witnesses who
allegedly possessed knowledge concerning the defendant's guilt or innocence.")

Given the fact that Steven Puente has exonerated Marco Chairez of any blame in

connection with the incident that occurred on January 21, 2002, it cannot §§

...2_

possibly be said with ”fair assurance" that the Applicant Marco Chairez would
have agreed to entertain a plea bargain, as opposed to going to trail, had his
attorney interviewed Steven Puente and informed him that Steven Puente "was
available and willing to testify" as to Mr. Chairez innocence. Nor can it be
said with "fair assurance" that had a trial jury heard Steven _Puente's
confession it would have found the Applicant Marco Chairez guilty of assault.
without being redundant, "it is more likely than not that no reasonable~ juror
would have found the Applicant guilty beyond a reasonable doubt", in light of
Steven Puente's confession. Moreover, having this conviction for an alleged
assault in Applicant's current Federal Prison File, has enhanced his offender
status level to a "Career Offender" and is preventing him from being eligible
from receiving any Time Relief" in reference to his current Federal Prison
Sentence. Accordingly, because counsel's deficient performance has resulted in
the conviction of one who is actually innocent, Applicant Marco Chairez was
denied his Six Amendment right to to the effective assistance of counsel, and
relief is therefore appropriate in this instance.

wherefore, based on the foregoing reasons, Applicant respectfully prays
that this Honorable Court grant his request for Coram Nobis relief.
Specifically, Applicant requests that his conviction be vacated, the expired
sentence be set aside, and the charge of assault; Texas Penal Code § 22.01, be

dismissed via judgement of acquittal. GOD BLESS YOU.

Respectful submitted,
§7¢6¢€7/ Au. 1/7/ A/z::\

Mardb”hntonio Chaikez\»//L/ 7 ji:>

/

A true and correct copy
Findings of Fact, Conclusion
this 20th day of 0ct., 2015,

prepaid postage, using first

Laura Hinojosa

Hidalgo County District Elerk
Post Uffice Box 07

Edinburg Texas 70539

District Attorney's 0ffice
100 n. Elosner St. lst Fl.
Edingburg§`Texas 70540

 

Certificatexuf 5ervice

 

of the forgoing response to the 370th District Court’s

of Law, Recommendation and 0rder was filed

-by placing the same in the United States Mail,

class stamps, and certified for delivery to ;

5/%7 v /%Y

Nco A. Chairez (2?939- 076

§§

