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

Dear Mr. Acosta: March 2, 2015

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

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 COURTOFCRIMINALAPPEALS

cc: Jana Duty, District**Attorn~y** Williamson County Courthouse Post Office Box 24 Georgetown, Texas 78627 

## MAR 06 2015IN 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 application 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 properly filed his application. Moreover, the very language of the habeas corpus statute, i.e., [shall] and**~rmust]** clearly mandate that theses are ministerial durites as opposed to some elective discretionary function. And, in postconviction habeas corpus cases, it is well established 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 application are also cognizable by Federal Habeas Corpus review following 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 collateral 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 appoint 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 collateral 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 postconviction 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 entitlement 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 ofthe convicting court will fill this line in.).
IN THE COURTOFCRIMINAL APPEALS OFTEXAS

APPLICATION FORA WRITOFHABEAS CORPUS SEEKING RELIEFFROM FINAL FELON\'CONVICTION UNDER CODE OFCRIMIN'AL PROCEDURE,ARTICLE 11.07 NAME: Johrwy Moreno September 19, 1965**~** DATE OFBIRTH:**--~-----~,.....,..,,..-----...,;.;....,....,...------** PLACE OFCONFINEMENT: Pclunsky Unit.- TDCJ-CID TDCJ-CIDNUMBER: 14853;35
.. Sli>NUMBER:**9~~.:....3~0~6~4~2** 7J...----- (1) This application concerns (checkall that apply): lXI aconviction**~** a sentence 0 

### time credit X DNA 0 0 

### 0 parole mandatory supervision 

### out,.of-tiriie**~ppeal**or

### petition

### for discreqonaty·

### tevie:w· DEFENDANT'S EXHIBIT "A"

(2) 

### Whatdistr:ict

### courtentered.the

### judgmentofthe,conviction you want

### relieffrom? (Include tbe court numberand county.)

368th Judicial District Court

-**Williams~n** County, Texas 

### (3) Whatwas 

### tbe.case

## numberin 

### tbe.trialcoun? ----------------------------------0-7-=-7-1-2=K36B----=------------------------------------'-----·

------------------------------------------------ (4) Wbatwasthename

### ofthe**(fia.Iifudge~** Burt Carnes**Effective~**

### January l,2014 

## .): SEP 1C**201~**

# ~ DistrictClerk

# W~ '
. amson co., TX. Rev. 

### 01114/14

### THE STATE OF 

### TEXAS VS. JOHNNY MORENO NO. 07-712-K368B § IN THE § 

### 368TH JUDICIAL DISTRICT 

## § COURTOF § 

### WILLIAMSON COUNTY, TEXAS §

WAIVEROFSERVICE 

### NOW COMES JANA DUTY, District Attorney ofWilliamson County, Texas, and hereby acknowledges that she has on the I8th day ofSeptember, 2014, received from the District Clerk's Office a copy ofthe Application for Writ ofHabeas Corpus filed on September I8, 2014, in the above entitled and numbered cause and she hereby waives delivery to her ofsaid Application by certified mail.

BY: 

### ,District Attorney ounty, Texas

LISA DAVID, District Clerk Williamson County, Texas i ' i ......**~.t~MZUN~•-"t,.~..-rs·"•r.~.,.,~l:** DEFENDANT 'S

### ~· EXHIBIT ".B II

## ,{!~FILED~·**at~o'clock** · 

## SEP 1 92014

# ~~ /
. . . . . _ DlatrlctClerk,

# Wllllams~n**~** 

# {jl**ku-&~**t(w

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