                                                                        WR-71,401-01
                                                        COURT OF CRIMINAL APPEALS
                                                                        AUSTIN, TEXAS
                                                      Transmitted 7/24/2015 11:26:00 AM
                                                        Accepted 7/24/2015 11:30:19 AM
                                                                         ABEL ACOSTA
        IN THE TEXAS COURT OF CRIMINAL           APPEALS                         CLERK

                     AUSTIN, TEXAS                          RECEIVED
                                                     COURT OF CRIMINAL APPEALS
                                                            7/24/2015
                                                       ABEL ACOSTA, CLERK
                          )     Writ No.
EX PARTE                  )     \ryR-71,401-01
JUAN RAUL                 )
NAVARRO-RAMIRF.Z,         )
        APPLICANT         )
                          )
                          )


         APPLICANT'S MOTION TO DECLARE HIS INITIAL
 APPLICATION FOR WRIT OF HABEAS CORPUS TIMELY FILED AS
                    oF APRrL 18, 2007



                       JEREMY SCI{EPERS (No. 24084578)
                       (Email : Jeremy.Schepers@ocw.texas.gov)
                       ERIN ECKHOFF (No. 24090910)
                       (E-Mail : Erin.Eckhoff@ocw.texas. gov)
                       Post-Conviction Attorneys
                       Office of Capital Writs
                       1700 N. Congress Ave., Suite 460
                       Austin, Texas 78701
                       (s12) 463-8600
                       (st2) 463-8s90 (fax)

                       Attorneys for Applicant
              IN THE TEXAS COURT OF CRIMINAL APPEALS
                                        AUSTIN, TEXAS



                                              )        Writ No.
EX PARTE                                      )        wR-71,401-01
JUAN RAUL                                     )
NAVARRO-RAMIREZO                              )
         APPLICANT                            )
                                              )
                                              )

          APPLICANT'S MOTION TO DECLARE HIS INITIAL
  APPLICATION FOR WRIT OF HABEAS CORPUS TIMELY FILED AS
                     oF APRIL 18, 2007
      Juan Raul Navarro-Ramirez ("Ramirez"), by and through his attorneys, the

Office of Capital Writs ("OCW"), respectfully requests that this Court order his

previously filed initial application to be considered timely filed as of April 18,2007

Doing so will preserve Ramirez's ability to pursue federal remedies if this Court

denies relief on his initial application. Further, it prevents Ramirez from suffering

harm from his prior counsel's failure to timely file his initial application pursuant to

the mandates of Article   1   I .07   I of the Texas   Code of Criminal Procedure.

   A. Statement of Facts

      Ramirez is confined under a sentence of death pursuant to the judgment of the

370th District Court, Hidalgo County, Texas, case number CR-0551-04-G, which




                                                  I
was entered on December 22,2004. (2 CR aT 591-98.)' On direct appeal, this Court

granted relief on one count of Ramirez's conviction as violating double jeopardy and

affirmed the judgment of a second count. Ramírez v. State,2007 WL 4375936 (Tex.

Crim. App. Dec. 72,2007) (unpublished). The Supreme Court denied Ramirez's

petition for writ of certiorari on October 6,2008. Navarro-Ramirez v. Texas,555

u.s. 831 (2008).

        The trial court appointed David Sergi to represent Ramirez in filing an initial

application for a writ of habeas corpus on December 22, 2004. (2 CR at 599.)

Because the State's Answer on direct appeal was f,rled on December             4, 2006,

Ramirez's initial application was due on January 18,2007. The trial court granted

Mr. Sergi three extensions to file, two of which were not authorized under Article

1   1.071. Ex parte Juan Raul Navarro Ramirez, No. AP-75,167 (Tex. Crim. App.

July 7,2008) (per curiam) (unpublished). On August 15, 2007, after an initial

application was not filed, the trial court held a hearing on Ramirez's pro se motion

to remove Mr. Sergi as writ counsel. 1d. This request was granted by the trial court

"for reasons unrelated to [Mr. Sergi's] failure to timely frle an application." Id. This

Court ordered Mr. Sergi to file an affidavit with reasons showing good cause for his

failure to timely file the initial application.   Id.   On July 7, 2008, having not yet

received an affidavit from Mr. Sergi, this Court found him in contempt.          Id. It

I ccçp:: refers to the Clerk's Record in Ramirez's trial

                                           2
imposed a $500 fine, ordered him to return any attorney's fees that were paid to him

for work on Ramirez's case, and forwarded a copy of the order to the Chief

Disciplinary Officer at the State Bar of Texas.   Id. On the same date, Paul Mansur
was appointed to represent Ramirez and to file an initial application in the trial court

within 270 days. Id.

      After receiving one ninety day extension, Mr. Mansur filed Ramirez's initial

application on July 9, 2009. The State's Answer to that application was filed on

September   7,2012. After Mr. Mansur was unable to continue his representation of

Ramirez, the trial court appointed the Offrce of Capital Writs ("OCW") to represent

Ramirez in his state post-conviction litigation on November 9,2012. The trial court

held a live evidentiary hearing on November 3 and 4, 2014, on the issues raised in

the initial application. On January 20, 2015, the trial court adopted the State's

Proposed Findings of Fact and Conclusions of Law verbatim and recommended that

relief be denied. On February 9,2015, Ramirez filed objections to those findings

with this Court. Ramirez's initial application remains pending before this Court.

   B. Prior Counsel's Actions Have Severely Compromised Ramirez's Abilify
      to Seek Federal Review

      If this Court were to deny relief   on Ramirez's Initial Application, prior post-

conviction counsel's actions have left Ramirez less than three months in which to

file a petition seeking federal habeas corpus relief. The Antiterrorism and Effective

Death Penalty Act provides for federal habeas writ applications a one-year period    of
                                            a
                                            -l
limitation that runs from "the latest of the date on which the judgrnent became final

by the conclusion of direct review or the date of the expiration of the time for seeking

such   review." 28 U.S.C. ç 2244(dXlXA). Federal law also calls for "a properly

filed application for State post-conviction or other collateral review" to toll the time

limitation to fìle for federal habeas relief. Id. at (d)(2). Ramirez's one year

limitations period began on October 6,2008, when the Supreme Court denied his

petition for writ of certiorari on direct appeal. It continued to run until July 9, 2009,

when Mr. Mansur filed Ramirez's initial application, which leaves Ramirez with

only eighty-nine days in which to fìle his federal petition.2

    C. Ramirez's lnitial Application Should be Considered Timely Filed as of
       April 18,2007
       Ramirez, through no fault of his own, is at risk for losing over nine months   of

time for filing his petition in federal court. This will significantly compromise and

limit his ability to seek federal review, particularly in light of the voluminous nature

of the proceedings and filings during his state court proceedings. As outlined above,

Mr. Sergi failed to timely file Ramirez's initial application on April   18,   2007-rhe

date that it was due following the granting of one ninety day extension, as authorized

by statute. See Tpx. Coos Cruv. Pnoc. art. 1 1.071 $ 4(b). Ramirez asks that his



2
 Ramirez's federal counsel will not have the entirety of this time to work on his
petition. A possibly signif,rcant amount of time will be lost until the federal district
court actually appoints an attorney for Ramirez.
                                           4
subsequently f,rled initial application be considered timely filed as of that date. To

do otherwise would unfairly punish Ramirez forhis prior attorney's actions-actions

that this courl deemed worthy of a contempt order, fines, and repayment of attorney's

fees



Respectfully submitted,




DATED:       July 24,2015                     By
                                                               SCFIEPERS




                                          5
                IN THE TEXAS COURT OF CRIMINAL APPE,ALS
                                AUSTINO TEXAS



                                       )       Writ No.
EX PARTE                               )       wR-71,401-01
JUAN RAUL                              )
NAVARRO.RAMIREZ,                       )
       APPLICANT                       )
                                       )
                                       )

                                      ORDER

      This Court grants this motion and orders that Ramirez's initial application for

writ of habeas corpus will be considered timely filed   as of   April   18, 2007




ORDERED AND SIGNED on          this        day of   July,20l5




                                               Judge




                                           6
                        CERTIFICATE OF SERVICE

I, the undersigned, declare and certiff that I have served the foregoing Applicant's
Motion to Declare his Initial Application for \Mrit of Habeas Corpus Timely Filed as
of April 78,2007 upon:

Court of Criminal Appeals
P.O. Box 112308
Austin, Texas 7871I
(Original by e-File)

Hidalgo County District Attorney
Ted Hake, Asst. Crim. D.A.
100 N. Closner Blvd.
Edinburg,TX 78539

Juan Ramirez
TDCJ # 999490
TDCJ Polunsky Unit
3872 FM 350 South
Livingston, TX 77351


  This certification is executed on July 24,2015, at Austin, Texas.

  I declare under penalty of perjury that the foregoing is true and correct to the best
of my knowledge.


                                              JEREMY SCHEPERS




                                          7
