                                                                                 PD-0448-15
                          PD-0448-15                           COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                               Transmitted 4/27/2015 4:06:43 PM
                                                                 Accepted 4/27/2015 4:51:21 PM
                                                                                 ABEL ACOSTA
                               IN THE                                                    CLERK
                   TEXAS COURT OF CRIMINAL APPEALS

Ex Parte Amir Tavakkoli
      Appellant, Pro Se

vs.

The State of Texas,
      Appellee.


                 PETITION FOR DISCRETIONARY REVIEW



                                Amir Tavakkoli
                                17101 Kuykendahl Rd
                                Houston, TX 77068
                                Tel: (281) 537-2171
                                Fax: (832) 787-0313
                                State Bar No. 24093240
                                info@atlawoffice.com

        April 27, 2015
                                William J. Delmore III
                                Assistant District Attorney
                                Montgomery County
                                207 W Phillips St. 2nd Floor
                                Conroe, TX 77301
                                Tel. (936) 539-7979
                                Fax (936) 760-6940
                                Attorney for Appellee,
                                The State of Texas

APPELLANT REQUESTS ORAL ARGUMENT
                                     Identity of Parties

Amir Tavakkoli
17101 Kuykendahl Rd
Houston, TX 77068
Tel: (281) 537-2171
Fax: (832) 787-0313
State Bar No. 24093240
info@atlawoffice.com

William J. Delmore III
Assistant District Attorney
Montgomery County
207 W Phillips St. 2nd Floor
Conroe, TX 77301
Tel. (936) 539-7979
Fax (936) 760-6940
Attorney for Appellee,
The State of Texas

Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
Fax: (512) 463-5724


Trial Court Judge: Dennis Watson

                                 TABLE OF CONTENTS

                                                           Page(s)

Index of authorities                                       3

Statement regarding oral argument                          3

Statement of the case                                      4

Statement of procedural history                            5
Tavakkoli, Amir – Petition For Discretionary Review              Page 2
Grounds for review                                                            6

Argument                                                                      7

   a) Reviewing courts cannot grant deference to ‘implied factual findings’
      not supported in the record. The Ninth Court of Appeals erred in
      implying that the habeas court found appellant’s testimony unreliable
      and failed to consider that the court admonishments regarding
      consequences to pleading guilty were also misadvice.

   b) Reviewing courts cannot grant deference to ‘implied factual findings’
       not supported in the record. The Ninth Court of Appeals erred in
       implying that the writ counsel was no ineffective.

Statement Requesting Nondisclosure of Records to Public                       10

Prayer for relief                                                             11

Certificate of Service                                                        12

Certificate of Compliance                                                     12

                               INDEX OF AUTHORITIES

Ex Parte Peterson, 117 S.W. 3d 804, 819 (Tex. Crim. App. 2003)                6, 9-10

Ex parte Wheeler, 203 S.W. 3d 317, 324 (Tex. Crim. App. 2006)                 6, 9-10

Martinez v. Ryan, 132 S.Ct. 1309 (2012)                                       5-7, 9

Trevino v. Thaler, 133 S.Ct. 1911 (2013)                                      5-7, 9

                STATEMENT REGARDING ORAL ARGUMENT

       Appellant requests oral argument. Because of the complexities of this case

the Court of Criminal Appeals will benefit from oral argument.




Tavakkoli, Amir – Petition For Discretionary Review                                     Page 3
                             STATEMENT OF THE CASE

       On January 4, 2013, appellant filed an Application for writ of habeas corpus

in County Court at Law #1 in Montgomery County, Cause No. CR 13-26,808

claiming ineffective assistance of counsel under Padilla v. Kentucky from his 2006

class B misdemeanor conviction for possession of marijuana; the court denied his

writ On January 22, 20131. The findings of fact and conclusions of law of the lower

court show that appellant was denied relief solely for the reason that under Chaidez

v. United States, 133 S.Ct. 1103 (2013) the ruling of Padilla v. Kentucky, 130 S. Ct.

1473 (2010) does not apply retroactively.

       On appeal to this court, appellant raised the arguments that his trial counsel,

William Pattillo (“Pattillo”) was ineffective because of lack of proper investigation

and also because he made appellant take the worst possible plea bargaining

agreement, considering the circumstance and the fact that appellant was an

immigrant. The Ninth Court of Appeals did not consider those arguments when they

were raised on appeal because they were not raised at the writ hearing.

Consequently, appellant filed another writ of habeas corpus in July of 2014 claiming

that his writ counsel was ineffective for not raising the proper arguments, and that

there was new testimony available to allow for a second writ of habeas corpus under

Article 11.59 of the Texas Code of Criminal Procedure.




Tavakkoli, Amir – Petition For Discretionary Review                             Page 4
       Appellant relied on his writ counsel to raise all proper arguments available at

his previous writ of habeas corpus. Appellant’s writ counsel’s failure to raise the

proper arguments is ineffective assistance of counsel in itself which requires a new

writ hearing to determine the basis of appellant’s claim based on the merits of the

case and not a procedural issue. In Martinez v. Ryan, 132 S.Ct. 1309 (2012) and

Trevino v. Thaler, 133 S.Ct. 1911 (2013) the Supreme Court of the United States

made clear that the right to effective assistance of counsel applies to the first writ of

habeas corpus and counsel’s failure to be effective at a writ of habeas corpus gives

cause for remand of the case to determine whether writ counsel was ineffective and

a new hearing is necessary. The trail court never considered or addressed whether

Martinez v. Ryan and Trevino v. Thaler were applicable and whether Appellant’s

writ counsel was ineffective for not raising all proper arguments in his first writ. On

appeal, the Ninth Court of Appeals also failed to address whether Martinez and

Trevino applied; instead waiting on this Honorable Court of Appeals to make that

decision. A motion for en banc reconsideration was filed with the Ninth Court of

Criminal Appeals to make a ruling on the issue of whether Martinez and Trevino

apply; the motion was denied.

                   STATEMENT OF PROCEDURAL HISTORY

       On 08/28/2014 Notice of Appeal filed in habeas court.

       On 11/03/2014 Case began in Ninth Court of Appeals.


Tavakkoli, Amir – Petition For Discretionary Review                                Page 5
       On 03/04/2015 Opinion was issued.

       On 03/17/2015 Motion for En Banc Reconsideration was filed.

       On 03/17/2015 Motion for En Banc reconsideration was denied.

                               GROUNDS FOR REVIEW

1.-    Whether Ryan and Martinez apply to this case so the record is clear for

appellate review. 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 8 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).


2.-    The Ninth Court of Appeals incorrectly implied facts not found in the record.

The Appellate Court is not free to defer to the trial Court’s implied factual findings

“if they are unable to determine from the record what the trial court’s implied factual

findings are.” Ex Parte Peterson, 117 S.W. 3d 804, 819 (Tex. Crim. App. 2003)

(per curiam), overruled on other grounds by Ex Parte Lewis, 219 S.W. 3d 335 (Tex.

Crim. App. 2007); Ex parte Wheeler, 203 S.W. 3d 317, 324 (Tex. Crim. App. 2006).

The findings of facts and conclusions of law of the habeas court state the only

reasons for denying appellant’s relief as laches and no evidence of new testimony.

The habeas court did not even consider whether Appellant’s first writ counsel was

Tavakkoli, Amir – Petition For Discretionary Review                                 Page 6
ineffective and whether Martinez and Trevino applied. The Ninth Court of Appeals

incorrectly held (implied) that Appellant did not prove that his habeas counsel was

ineffective even after habeas counsel failed to raise crucial arguments in the habeas

hearing.


                                        ARGUMENT

   c) Reviewing courts cannot grant deference to ‘implied factual findings’ not
      supported in the record. The Ninth Court of Appeals erred in implying
      that the habeas court found appellant’s testimony unreliable and failed
      to consider that the court admonishments regarding consequences to
      pleading guilty were also misadvice.


       In Trevino v. Thaler, the Supreme Court held that ineffective assistance of

counsel at initial-review collateral proceedings may establish cause for a defendant’s

procedural default of a claim of ineffective assistance of counsel and remand was

required to determine whether petitioner’s attorney in his first state collateral

proceeding was effective. 133 S.Ct. 1911, 1921 (2013).

       The petitioner in Trevino was “convicted of capital murder in Texas state court

and sentenced to death after the jury found insufficient mitigating circumstances to

warrant a life sentence.” Id. Neither his appeal counsel nor his first writ counsel

raised the argument that petitioner’s trial counsel was ineffective for lack of proper

investigation by not raising mitigating factors to reduce the sentence of death. Id.

The court reasoned that the nature of reasoned that Texas procedural framework, by


Tavakkoli, Amir – Petition For Discretionary Review                             Page 7
its design and operation makes it highly unlikely in a typical case that a defendant

will have a meaningful opportunity to raise an ineffective assistance of trial counsel

claim on direct appeal. Id. at 1918. The nature of an ineffective-assistance claim

means that the trial record is likely to be insufficient to support the claim. Id. And a

motion for a new trial to develop the record is usually inadequate because of Texas

rules regarding time limits on the filing, and the disposal, of such motions and the

availability of trial transcripts. Id. Thus, a writ of habeas corpus is normally needed

to gather the facts necessary for evaluating these claims in Texas. Id. As a result, the

Court held that ineffective assistance of counsel at initial-review collateral

proceedings may establish cause for a defendant’s procedural default of a claim of

ineffective assistance of counsel at trial and remand was required to determine

whether the petitioner’s attorney in his first state collateral proceeding was

ineffective, whether underlying ineffective assistance of trial counsel was

substantial, and whether petitioner was prejudiced. Id. at 1921.

       Similarly, in appellant’s case, his first writ counsel failed to raise the argument

of ineffective assistance of counsel because of lack of proper investigation by

appellant’s trial counsel to determine whether appellant had any defenses and

whether the amount of the marijuana was less than 30 grams to allow appellant relief

from deportation. Appellant’s writ counsel also failed to raise the argument that

appellant’s trial counsel took the worst possible plea bargain agreement considering


Tavakkoli, Amir – Petition For Discretionary Review                                 Page 8
the circumstance of appellant’s case and considering that pleading guilty to a drug

offense would be virtually a death sentence for appellant. Supra note 5. Martinez v.

Ryan, 132 S. Ct. 1309, decided by the Supreme Court in 2012 has the same holding

as Trevino and further supports appellant’s argument and proves the lower court’s

failure.

       The lower court erred in completely failing to consider Martinez and Trevino

even though appellant attempted to bring this to the attention of the lower court

repeatedly. RR, 17-18, 47.

   d) Reviewing courts cannot grant deference to ‘implied factual findings’ not
      supported in the record. The Ninth Court of Appeals erred in implying
      that the writ counsel was no ineffective.

       The Ninth Court of Appeals incorrectly implied facts not found in the record.

The Appellate Court is not free to defer to the trial Court’s implied factual findings

“if they are unable to determine from the record what the trial court’s implied factual

findings are.” Ex Parte Peterson, 117 S.W. 3d 804, 819 (Tex. Crim. App. 2003)

(per curiam), overruled on other grounds by Ex Parte Lewis, 219 S.W. 3d 335 (Tex.

Crim. App. 2007); Ex parte Wheeler, 203 S.W. 3d 317, 324 (Tex. Crim. App. 2006).

The findings of facts and conclusions of law of the habeas court do not indicate

whether Appellant’s habeas counsel was ineffective. The Ninth Court of Appeals

incorrectly held that Appellant did not prove that his habeas counsel was ineffective

even after habeas counsel failed to raise crucial arguments in the habeas hearing.


Tavakkoli, Amir – Petition For Discretionary Review                              Page 9
       Neither Ex Parte Peterson nor Ex parte Wheeler support giving deference to

the trial Court’s ‘implied findings of fact’. The better approach is to remand the case

to the Trial Court so the court may make appropriate findings of fact and conclusions

of law and whether writ counsel was ineffective.

    STATEMENT REQUESTING NONDISCLOSURE OF RECORDS TO
                         PUBLIC

       The appellant is a newly license practicing Texas attorney in good standing

who has his own practice. Appellant’s livelihood and his ability to make a living is

dependent on his reputation and good character. Appellant understands and takes

responsibility for his mistakes in the past. However, appellant respectfully requests

that this court does not make any motions, pleas, petitions, opinion, or any other

document relevant to this case available to the public. Alternatively, appellant

requests that this court remove any identifying information of appellant including

his name and any identifying information which would give a person knowledge that

the case pertain to appellant even without the name being identified. Such

information includes most facts given in the statement of facts section including the

details of the arrest, etc.

                                                .




Tavakkoli, Amir – Petition For Discretionary Review                             Page 10
                                          PRAYER

       Appellant, Amir Tavakkoli, prays that this Court grant his Petition for

Discretionary Review.



                                             Respectfully submitted,

                                             ____________________________
                                             Amir Tavakkoli
                                             17101 Kuykendahl Rd
                                             Houston, TX 77068
                                             Tel: (281) 537-2171
                                             Fax: (832) 787-0313
                                             State Bar No. 24093240
                                             info@atlawoffice.com




Tavakkoli, Amir – Petition For Discretionary Review                              Page 11
                         CERTIFICATE OF COMPLIANCE

       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with
the word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
2137 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).



                             CERTIFICATE OF SERVICE


      I certify that on April 22, 2015 a true and correct copy of Appellant’s Petition
for Discretionary Review was served to each person listed below by the method
indicated.


                                             /s/Amir Tavakkoli
                                             Amir Tavakkoli

Via Fax to:
William J. Delmore III
Assistant District Attorney
Montgomery County
207 W Phillips St. 2nd Floor
Conroe, TX 77301
Tel. (936) 539-7979
Fax (936) 760-6940
Attorney for Appellee,
The State of Texas

Lisa McMinn
State Prosecuting Attorney
P.O. Box 13046
Austin, Texas 78711
Fax: (512) 463-5724




Tavakkoli, Amir – Petition For Discretionary Review                              Page 12
                                  IN THE
                      TEXAS COURT OF CRIMINAL APPEALS

Ex Parte Amir Tavakkoli
      Appellant,

vs.

The State of Texas,
      Appellee.


                                          APENDIX-

                    PETITION FOR DISCRETIONARY REVIEW




Index:



1-11                  Opinion of The Ninth Court of Appeals in Case No. 09-14-00358-CR

12                    Order on Motion for Reconsideration




Tavakkoli, Amir – Petition For Discretionary Review                                Page 13
                                       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.




                                         11
                                                                                    FILE COPY




CHIEF JUSTICE
STEVE MCKEITHEN                        Court of Appeals                                    CLERK
                                                                                  CAROL ANNE HARLEY

JUSTICES
CHARLES KREGER
                                            State of Texas                                   OFFICE
                                                                                           SUITE 330
HOLLIS HORTON
LEANNE JOHNSON
                                             Ninth District                              1001 PEARL ST.
                                                                                    BEAUMONT, TEXAS 77701
                                                                                 409/835-8402 FAX 409/835-8497
                                                                               WWW.TXCOURTS.GOV/9THCOA.ASPX


                                       Monday, March 23, 2015

           Amir Tavakkoli                           William J. Delmore III
           16503 Creek South Road                   Asst. District Attorney
           Houston, TX 77068                        207 W. Phillips, 2nd Floor
           * DELIVERED VIA E-MAIL *                 Conroe, TX 77301
                                                    * DELIVERED VIA E-MAIL *

           RE:     Case Number:           09-14-00358-CR
                   Trial Court Case       14-28246
                   Number:

           Style: Ex Parte Amir Tavakkoli




                The Appellant's motion for rehearing en banc in the above styled and
           numbered cause was overruled this date.

                                                              Sincerely,

                                                              CAROL ANNE HARLEY
                                                              CLERK OF THE COURT



           cc:   Mark Turnbull (DELIVERED VIA E-MAIL)
                 Graciela Caka (DELIVERED VIA E-MAIL)
                 Judge Dennis D. Watson (DELIVERED VIA E-MAIL)
