' 6666\711)111

 

 

CGURT oF cR»MlNAL APPEALS wR`u ’“60'11
JAN 27 2015~
IN.THE
Abe|Acosta',, Glerk ~ ' 1 cOUR,T. oF :cRIMINAL ~,A.P_P.EAI;S
1011IEXAS
EX'PARTE

" .QDELL BuRcEss,
` APPLIcANT ~’

 

on wkIT‘oF‘HABEAs coRPus FRQM THE
1aoTH D1STR1CT eovRT dF HARR1S, couNTY
` cAsE No. 1376303-1 `

 

APPLI¢ANTjs“wRITTEN'QBJECTIONS ANB REQUES.Tv
THAT THE¢coURT's.FINDINGS 01 FACT ANp‘
cQNcLusloNs 01 116 BE.RENDERED As,“MQoT".

 

10 THE HONORABLE JUDGES OF SAID CGURT~'

 

1 * gr.

b NOW COMES ODELL BURGESS, the Appllcant in the abovo styled
and numbered causé and flles thls 616 ertten Objections And “""5
Request Tbat The Court 6 Findings 6f Fact And Conclusion 0£ Law

Be Bendered As "Moot“. In support of this pleading, the applicant

i) 4 k 1 ~*’

will show this court the followlng t6 wit.

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11
" PRochuRAL HISTORY 61 cAsE.

1

1) On the flllng 6£ hls appllcation f6r wrlt 61 habeas corpus,

l‘e:\:;

the Stat filed it6 answer asklng the dlstrlct t6 dlsmlss the

 

 

W& 1 of 5 pages

 

f

petition because the direct appeal was still pending. The district
court, relying on the State’ s exhibit, adopted the State' s proposed
finding. The applicant filed his "written objections" to the`b
State's proposed_findings, but the_district court had already signed
the document on December 3, 2014 (one day after the State presented
it~~not giving the applicant a chance to respond). Hence, the
applicant will demonstrate to this court, why his objections should
be sustained and why the courtfs findings should be rendered as
moot . -
II.
l STATE'S ARGUMENTS;

2) The State argued to the district court that the applicant'
filed his application for writ of habeas corpus on November 20, 2014.
The State then presented a computer document off the Court of Appeals
tdweb page reflecting that the court's Mandate was going to issue on'
12~ 29- 2014, and asked the court to use the date as evidence that the
application was filed pending review as mandated by EX PARTE BROWN

662 S. w. 2d 3 (Tex crim. App. 198§). And that for reasons Stated,
the application for habeas corpus should be dismissed. The court

agreed, and gave its recommendation to this court to dismiss.
l ` 111.
APPLICANT' S ARGUMENTS:

3) The State s Exhibit "A" attached to its original answer
reflects .the necessary dates for discussion. The Applicant' s
appellant brief was filed.on 9-26-2013 and the State's brief was
filed on 11~08-2013.1he Court of Appeals issued their Opinion '
and affirmed the case on 9 30-2014. The Applicant didn' t file
any motion for rehearing by 10~15 2014, nor did he move the court

for extension of time to file a motion for rehearing. There£ore,

~2 of 5 pages

 

that time limit had expired.-RULE 49.1 TEX.R}APP.P. The Applicant's
petition for a discretionary review was dued on 10~30-2014, but no
petition was filed,.nor was an extension of time filed requesting
for time co file the PDR. 68. 2(3).,(¢) rex R. AFP. P.

.|' 4) Moreover, when the State filed its original answer on
December 2, 2014, the Court of Appeals' plenary power had expired.
.lf no timely motion for rehearing was timely filed, and it was not
in the applicant' s case, the Court’ s plenary power expired in

60 days after its judgment on 9 30~ 2014. RULE 19§1(a) TEX.R.AP?;P.
That means by law, after the Court of Appeals' plenary powers
expires, that court cannot.vacate or modify its judgment. RULE'19.3
TEX.R.APP.P,; The issue was moot on December 2, 2014 when the

state filed its answers 4' §

5) Finally, the meet serious matter is that_the 12529¢2014
date used to issue the mandate was_illegal. The date was 90 days
after the Court of Appeals judgment, which was a Violation. §§§§*
18.1(a) TEX?R;APP.P., states that 10 days after the time expired
for filing a motion to extend to file...a petition for discretionary
review the mandate must issue. ln the case at berg the time for
filing an extension had expired by 10-30-2014, and the mandate
should have issued atleast by Nov. 10, 2014.

' l lv.
MOGTNESS:. v

6) Assuming‘Arguendo§`that the 12-29-2014 was the relevant
date to end the review, that date is no longer relevant because it
has expired before this.court could rule on the issue; and is now`
subject to the mootness doctrine.' A issue is moot when the legalv

dispute between the parties has been resolved for practical purposes

3 of 5 pages'

on has ceased to exist.‘{Mootness is established only if: a)
it can be said with assurance that there is no reasonable expectation
that the allege violation will reoccur...and b) events have completely
and irrevocably eradicated the effects of the alleged violation.
couNTY oF Los ANCELES v. nAvis, 440 u.s. 62$, 631, 99 s.ct. 1379
11979); accord; PARENTS INVOLVED lN GOMMUNITY SCHOOL V. SEATTLE SCH
DIST. NO. l 551 U.S.}?Ol; 719, 127 S.Ct. 2738 (2007). A issue
can become moot at the time it is filed,~or it can become moot
while in is in progress§ even on`appealb'¢f., cITY oF‘MEsQuITE'
vt ALADDIN'S GASTLE, lNC.1 455 U.S. 283, 288 n. 9, 102 S.Ct.
1070 (1982).
“ v‘.-
FEDERAL LAW ON TIME LIMIT:

7) ln 1996, Congress enacted the Antiterrorism and Effective
b Death Penalty Act of 1996 (AEDPA), which amended the habeas statute
to impose severe restrictions on the filing of habeas petitions.,
lFor\examp'le, prisoners must file the writ within one year from the v
date the criminal judgment becomes final, which means the point
where the applicant have exhausted his state court temedies.
28 U.S.C. § 2241(d)(1); see, DAY V. McDONOUGH, 547 U.S. 198, 208~210,
126 S.Ct. 1675 (2006)(discussing habeas one~year time limit). _
Federal law do not look to the Court of Appeals' mandate to start
the time; instead, it looks at the time for filing the PDR and
if the 30 days expires-without filing the PDR or getting an
extension of time, the clock begins because the case is final.

WHEREFORE, the Applicant prays that this court grants hisb
objections and rule the issue as moot. Order the.case back to

'the district court or rule on the merits~itself{

 

CERTIFI¢ATE OF SERVICE: -

I, Odell.Burgess, hereby certify that a true and correct
copy of the Applicant‘s Wcitten Objections And Request That The
Gourtfs Findings of Fact and Conclusion of Law Be Rendered-As
Moot was served by placing same in the prison mail system to:
Andrew Smith, Assistant District Attorney, 1201 Franklin, Suite
600, Houscon, Texas 77002 on this date;jzud/;R¢j¢%- 2015

    

ipsa #579316
wYNNE unit
810 nn 2821
nunrsvlttn, TExAs 77369

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