                            March 2, 2015



Abel Acosta, Clerk
Court of Criminal Appeals
Post Office Box 12308
Austin, Texas 78711-2308


                                   Re:   Writ No. WR-71,478-02


Dear Mr. Acosta:

       Enclosed for filing is Relator's Second Motion for
a Writ of Mandamus.

       Thank you for presenting this to the Court.



                                   Yours Sincerely,




                                   Livingston, Texas             77351




                                                       RECEIVED IN
                                                  COURT OF CRIMINAL APPEALS

                                                        MAR 06 2015
cc: Jana Duty, District Attorn~y
    Williamson County Courthouse
    Post Office Box 24
    Georgetown, Texas 78627
                     IN THE COURT OF CRP1INAL APPEALS
                                       OF TEXAS



JOHNNY ANTHONY MORENO,                      §
                                            §
                                            §
                                            §     WRIT NO. WR-71,478-02
                                            §
                                            §
RELATOR                                     §



          RELATOR MORENO'S SECOND PETITION FOR WRIT OF MANDAMUS



          On February 4,    ~015,      this Court denied Relabbr's Original

Application for Writ of Mandamus. Accordingly,                 this second app-

lication is presented on an "EMERGENCY BASIS" because:


                                            I

          The Williamson County, Texas, District Attorneyj Jana Duty,

is purposefully denying Relator, Johnny              A~thony   Moreno, meaningful

access to court on a gen0ine issue of material fact affecting his

confinement in which he can prevail by refusing to forward his

September 18,    2014, State Habeas Corpus Application (EXHIBIT A),

to the Texas Court of Criminal Appeals,              or in the alternative,

comply with the provision         ~f   Article 11.07, §§ 3(a), 3(b), and

3(c), of the Texas Coqe of Criminal Procedure, which provides:

                 3(b)    The State shall answer within 15 days.

                 3 (c)   20 days for theL-tr.,tial court to determine ,
                         whether there are any controverted issues
                         regarding the legality.;of Applicant's
                         confinement. If there are no issues the
                         convicting court must immediately forward
                         the application to the Court of Criminal
                         appeals.



                                          -1-
                     3(d)   If the convicting court finds th9t there
                            are controverted unresolved facts, the
                            trial court shall designate the J.ssues
                            to be resolved.

          But in Relator's State habeas corpus application neither

the District Attorney nor. the trial court' took the initiative to

comply with these provision.even though Relator timely and prop-

erly filed his application.

          Moreover,       the very language of the habeas corpus statute,

i.e.,    [shall] and        ~rmust]   clearly mandate that theses are min-

isterial durites as opposed to some elective discretionary funct-

ion. And,       in postconviction habeas corpus cases,         it is well estab-

lished that it is the Texas Court of Crim'inal Appeals,                [not]   the

local District Attorney who is the ultimate fact finder.                   Ex Parte

Henderson, 384 S.W.3d 833 (Tex.Crim.App. 2012). Accordingly,                   the

district attorney cannot circumvent the power of the Texas Court

of Criminal Appeals by withhoiding habeas corpus applications.


                                             II

          The issues raised in Relator's State habeas corpus applic-

ation are also cognizable by Federal Habeas Corpus review follow-

ing the United States Supreme Court's decision in Martinez v Ryan,

        u.s.         I   132 s.ct. 1309, 162 L.Ed.2d 272 (2012), where the

Court determined:

               "A criminal defendant has the Constitutional right to the
               effective assistance of counsel in a postconviction coll-

               ateral proceeding."

          In Ex Parte Gutierrez, 337 S.W.3d 883 (Tex.Crim.App.                 2011),



                                           -2-
this Court determined that once the trial court found reasonable

grounds for QNA testing, ihe trial court was authori~ed to app-

oint counsel for the postconviction DNA testing. But it was in

Martinez v Ryan, supra, that the Supreme Court decided a defendant

is entitled to the effective assistance of           ~ounsel     in these coll-

ateral proceeding where this is the only            opport~nity    a defendant

can raise his claim of innocence or in the alternative provide a

"gateway" for further proceedings and relief.

         The changes in the law regarding counsel in. collateral post-

conviction case decided by the Un.ited States Supreme Court in

Martinez v Ryan,      supra,~apply    directly to    Re1~tor's    case because

his counsel at his DNA hearing was so grossly ineffective that

Relator was virtually without counsel. Also,            the Supreme Court in

Trevino v Thaler,           u.s.            133 s.ct. 1911, 185 L.Ed.2d 1044

(2013), decided one year.after Martinez v Ryan, decided that the

Court's ruling ip Martinez applies to Texas cases because it is

highly unlikely that an inmate could raise a meaningful claim of

ineffective assistance of counsel on direct appeal. Cf. Mata v

State,   226 s.w.3d 425,430 (Tex.Crim.App.          200~),   and Williams v

State, 301 S.W.3d 675 (Tex.Crim.App. 2009).

         In Relator   Moreno'~     case, he vigorously       allege~   that onGe

the trial court recognized that, that Mr. Moreno showed entitle-

ment to DNA testing, his appointed counsel undermined every Single

legitimate    issue that would have entitled him to DNA testing. And

the iecord supports this claim.

                              PRAYER FOR RELIEF



                                      -i-
       Now, for all the reasons stated herein,      Re1~tor    now prays

that the Honorable Court of Criminal Appeals will [ORDER] the

Williamson County District Attorney,-Jana Duty, to come into full

compliance with provisions of Article 11.07, §§         3(b)~3(c)   and 3(d),

or in _the alternative pro@ptly forward     Rel~tor's   habeas corpus

application to the Court of Criminal_ Appeals without delay.



                                      Respectfully Submitted




                                      Livingston, Texas              77351




Executed:   March   _d__,   2015.




                                    -4-
                       CERTIFICATE OF SERVICE



         Service has been accomplished by    forwardin~   a true and

correct copy of MOVANT MORENO'S SECOND PETITION FOR WRIT OF

MANDAMUS,   postage prepaid, via United States Postal Service on

this   d/lt/of   ·/t!MeJ_
                 I
                               , 2015, to:



                            Jana Duty, District Attorney
                            Williamson County Courthouse
                            Post Office Box 24
                            Georgetown, Texas 78627




                                 -5-
-.


                                                      Case No.   01- 1J~[{;g£;
                                        (The Clerk of the convicting court will fill this line in.).


                                     IN THE COURT OF CRIMINAL APPEALS OF TEXAS

                                    APPLICATION FORA WRIT OF HABEAS CORPUS
                                  SEEKING RELIEF FROM FINAL FELON\' CONVICTION
                                 UNDER CODE OF CRIMIN'AL PROCEDURE, ARTICLE 11.07


               NAME:           Johrwy Moreno

                                   September 19, 1965              ~
               DATE OF BIRTH: --~-----~,.....,..,,..-----...,;.;....,....,...------

               PLACE OF CONFINEMENT:                  Pclunsky Unit.- TDCJ-CID

               TDCJ-CIDNUMBER:                 14853;35 .                Sli> NUMBER: 9~~.:....3~0~6~4~27J...-----

               (1)     This application concerns (check all that apply):                                         DEFENDANT'S
                       lXI     a conviction                      0       parole                                      EXHIBIT
                                                                                                                         "A"
                       ~       a sentence                        0       mandatory supervision

                       0       time credit                       0       out,.of-tiriie ~ppeal or petition for
                       X       DNA                                       discreqonaty· tevie:w·


              (2)      What distr:ict court entered. the judgment ofthe, conviction you want relieffrom?
                       (Include tbe court number and county.)


                           368th Judicial District Court -                        Williams~n           County, Texas

              (3)      What was tbe.case number in tbe.trialcoun?

----------------------------------0-7-=-7-1-2=K36B----=------------------------------------'-----· ------------------------------------------------


              (4)     Wbatwas the name ofthe (fia.Iifudge~


                                  Burt Carnes




                                                                                                 .):        SEP 1C201~
              Effective~     January l, 2014
                                                                                                          ~W~
                                                                                                District Clerk
                                                                                                           ' . amson co., TX.
                                                                                                            Rev. 01114/14
                                            NO. 07-712-K368B

                                                         §   IN THE
                                                         §   368TH JUDICIAL DISTRICT
THE STATE OF TEXAS VS. JOHNNY
MORENO
                                                         §   COURTOF
                                                         §   WILLIAMSON COUNTY, TEXAS
                                                         §



                                         WAIVER OF SERVICE


       NOW COMES JANA DUTY, District Attorney of Williamson County, Texas, and hereby

acknowledges that she has on the I 8th day of September, 2014, received from the District Clerk's Office a

copy of the Application for Writ of Habeas Corpus filed on September I 8, 2014, in the above entitled and

numbered cause and she hereby waives delivery to her of said Application by certified mail.
                                                                                             . . . ~.t~MZUN~•-"t,.~..-rs·"•r.~.,.,~l:

                                                                                                DEFENDANT 'S                       ~·
                                                               , District Attorney     i             EXHIBIT
                                                                                       '
                                                                                       i
                                                               ounty, Texas                                ".B I I



                                          BY:



                                                 LISA DAVID, District Clerk
                                                 Williamson County, Texas




                                                                                      ,{!~FILED~·
                                                                                     at~o'clock
                                                                                             ·

                                                                                           SEP 1 9 2014

                                                                                       ~~
                                                / . ..            .    .   _ Dlatrlct Clerk,   Wllllams~n ~

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