NO. ______________________________ _ 

BRADLEY J. BARTON, 

.,_.Relator, 

·v. 

HON~ STACEY BOND, 

JlJ[ffi of tre 176th District Cart of Hm:is Canty, 

Respondent~ 

§ 

§ IN 

§ 

THE COURT OF CRIMINAL APPEALS 

OF THE ST~'eetMEo ~N 

COURT OF CRHIRINAlt Ai!!PPEALS 

JUN 01 20:5 

MOTION FOR LEAVE TO. FILE ORIGINAL APPLICATION· FOR 1WiBfiiJ811@lJ:'~i~·~US 

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS: 

Comes now,Bradley J. Barton,Relator,and pursuant to Rule 72.1. of theRules of Appellate 

Procedure,files this motion for leave to file an application for Writ of Mandamus directing 

Hon. Stacey Bond,the Judge of the 176th District Court of Harris County,Respondent,to,pursuant to this Court's "abstention doctrine, "Ex parte Moreno,245 S.W.3d 419,;428 (Tex.Crim.App. 

2008),suspend proceedings of Relator's application for writ of habeas corpus until his federal Petition for Writ of Habeas Corpus currently being considered in the United States District Court for the Southern District of Texas is disposed of. In support of this Motion for 

Leave,Relator will show the following: 

r. . -,· I .· . 

On March 19 ,20p, the relator. filed an applicatio~ for writ of habeas_ corpus,pursu~t to Art. i 

11.07 of the .Cod~ of Criminal Proced~e,under ca~se number 1206429~B in the 176th District 

Court of Harris County. -On May 2,2012,the State received service of the habeas application. 

On May 17,2012,the State filed a motion requesting designation of issues to be resolved. On 

June 4,2012,the 176th District Court ordered the designation of issues to be resolved. After 

the Order Designating Issues (ODI) was entered,Relator moved for an evidentiary hearing and 

appointm~nt of counsel,as well as the recusal of the original habeas judge. All motions went 

unruled upon. Relator ultimately sought mandmus relief againsttthe original judge on his motion to recuse,which eventually led to an order_ of this Court.See 1

WR-76,811-03. The application,however,remained ~tagnant,despite Relator's many attempts to_get the habeas proceedings 

underway. 

II. 

Because of the circumstances described above,Relator filed for identical habeas.relief in t 

the United States District Court for the Southern District of Texas-Houston Division. That 

court has taken jurisdiction,and on March 12,2015,ordered the Attorn~y General's Office to 

respond. On April 1S~ 2015,o~tensibly after the fed~ral court's orde~,and after_three years 

of ~o other filings by the State in relation to the hab~:as application, the State moved for 

the habeas court to ·order affidavits from lawyer~ who repr~sented certain ind~viduals who .. 

are apart of the habeas applications allegations. This was/is apparently in an attempt to 

help resolve a factual issue designated for resolution-"whether the applicant is actually 

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innoc'ent"~by ascertaining if these lawyers were "ever made aware" of ,or "ever received information';' concerning allegations made in the application. The respondent, three days later, 

entered the State's proposed orders concerning those affidavits,and thus is proceeding to 

consider the application. 

Relator has filed a motion in Respondent's court clearly bringing to her attention the fact 

that he has his federal habeas petition,which is identical to the orie pending in her court, 

pending and under consideration in federal court. Relator has also clearly brought to her .'.: 

attention this Court's "abstentionrule." Relator has moved Respondent to suspend consideration of his habeas application until the federal court dispose.s of his federal petition. ·Respondent,however,has chosen not to suspend consideration of the applicatfon·,and has proceeded to consider the habeas case. 

III. 

Respondent's failure to act as requested by Relator is a failure to perform a ministerial ~ 

function,under the facts of this case,because this Court,"[s]ince 1972 0 has dismissed state 

habeas corpus applications when the applicant also has a writ pending in the federal courts 

that relates to the same conviction or same matter."Ex parte Soffar,14) S.W.3d 804,805 (Tex. 

Crim.App.2004)(citations omitted). The Court has made explicitly and unequivocally clear that it will "not ,and a trial court in this State should not ,consider a [applicant's] application [for writ of habeas corpus] so long as the federaL courts retain jurisdiction of the :. 

same matter."Ex parte Green,548 S.W.2d 914,916 (Tex.Crim.App.1977). As detailed above,Relator has a federal Petition for Writ of Habeas Corpus pending in federal" court that is materia,lly indistinguishable from the instant application for writ of habeas· corpus. Petitioner,:: ' . . . 

thus,indisputably.has a writ pending in the federal court~ that rel~tes to the same conviction or same matter that the habeas application Respondent is proceeding on does. And therefore the habeas application falls under the "abstention doctrine." 

IV. 

The relator has no adequate remedy at law to pursue the requested relief other than through 

mansamus relief from this Court. 

v. 

This Court has jurisdiction to issue a grant of leave to file an application for writ of mandamus in this cause under Rule 72.2. of the Rules of Appellate Procedure and Article 5,sec. 

5 of the Texas Constitution. 

WHEREFORE,Relator prays the Court grant him leave to file an application for Writ of Mandamus directing Respondent to abide by this Court's abstention doctrine by suspending the habeas proceedings in Cause Number 1206429-B,due to Relator's federal habeas petition pending :, 

under Case No.4:15-CV-00587 in the U.S. District Court for the Southern District of Texas. 

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Respectfully Submitted, 

~· 

BRADLEY J. BARTON, Relator 

12071 FM 3522 

Abilene,TX 79601 
L 

INMATE'S DECLARATION 

!,Bradley Jared Barton,being presently incarcerated in TDCJ-Robertson Unit,declare under _, 

penalty of perjury that the foregoing facts are true and correct. 

05/ZI!/5 

Date Signature of Relator 

Certific~te of S~rvice 

· Service has been accomplished by mailing P true and correct copy of the foregoing instrument to Respondent at the following address: 

This the 

Hon. Stacey Bond 

176th District Court,19th Floor 

1201 Franklin 

Houston,Tx 77002 

Zl +'-' day of May, 2015. 

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