Ex Parte Alberto Giron PEREZ

445 S.W.3d 719, 2014 Tex. Crim. App. LEXIS 1509, 2014 WL 5154722
CourtCourt of Criminal Appeals of Texas
DecidedOctober 8, 2014
DocketAP-76,800
StatusPublished
Cited by13 cases

This text of 445 S.W.3d 719 (Ex Parte Alberto Giron PEREZ) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Alberto Giron PEREZ, 445 S.W.3d 719, 2014 Tex. Crim. App. LEXIS 1509, 2014 WL 5154722 (Tex. 2014).

Opinions

OPINION

ALCALA, J.,

delivered the opinion of the Court in which

KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

In his post-conviction application for a writ of habeas corpus, Alberto Giron Perez, applicant, raises claims of ineffective assistance of appellate counsel and seeks permission to file an out-of-time petition for discretionary review for the purpose of appealing his 1991 murder conviction. After applicant filed his application in 2011, and after an initial remand to the trial court for evidentiary development of applicant’s claims, this Court issued an opinion in which it revised its approach to laches as that doctrine applies in the context of a long-delayed application for a post-conviction writ of habeas corpus. See Ex parte Perez, 898 S.W.3d 206, 208 (Tex.Crim.App.2013) (adopting Texas common-law doctrine of laches as proper standard in post-conviction writ proceedings). We then remanded the case to the trial court a second time for consideration of applicant’s claims in light of this revised approach. On remand, the trial court entered findings of fact and conclusions of law and, based on applicant’s unreasonable and unjustified delay in filing the application and the State’s assertion that it has been prejudiced as a result of the delay, it recommended that relief be denied. Having reviewed the record and after weighing the relevant equitable considerations, we agree with the trial court’s findings and conclusions. We, therefore, deny relief.

I. Procedural History

A. Applicant Files Writ Application Nearly Twenty Years After Conviction

In 1991, applicant was convicted of murder and sentenced to eighty-five years’ imprisonment. The Seventh Court of Appeals affirmed his conviction in 1992. Perez v. State, No. 07-91-00225-CR (Tex.App.-Amarillo Oct. 9, 1992). In September 2011, applicant filed his initial post-conviction application for a writ of habeas corpus, in which he raised several claims of ineffective assistance of appellate counsel, including counsel’s failure to raise meritorious points of error on appeal, failure to timely notify applicant that his conviction had been affirmed on appeal, and failure to advise applicant of his right to file a petition for discretionary review. In November 2011, this Court remanded the application to the trial court to obtain affidavits [721]*721and to make fact findings addressing applicant’s claims. See Ex parte Perez, No. WR-76,604-01, 2011 WL 5420849 (Tex.Crim.App. Nov. 9, 2011).

On initial remand, the trial court received affidavits from both appellate counsel and the Cottle County District Attorney. In his affidavit, counsel stated that he has “little independent memory of the events described in applicant’s writ” and could only respond to applicant’s allegations “based on [his] record review and usual practice and routine.” Based upon his “custom and practice” at the time, counsel would have told applicant “that he had a first appeal as a matter of right, that a second appeal was not a matter of right and that [counsel] would not file a merit-less PDR, though [applicant] could.” Although it was his “usual practice” to send a copy of the appellate court’s opinion within the appropriate time frame for seeking discretionary review, counsel acknowledged that he “informed [applicant] of the [appellate] court’s decision after the time limit had passed for [filing] a PDR.” Counsel said he “do[es] not remember” why applicant did not timely receive a copy of the appellate court’s opinion. In 1993, counsel sent applicant a letter “offer[ing] to visit [him in prison and] bring the file to help him with the decision whether to seek further review by writ (for an out of time pro se PDR).”1 Counsel explained that applicant “answered [counsel’s] offer -with a law complaint in 1998 with a regulatory agency and later filed a civil proceeding, in which ... applicant indicated he knew of his right to seek further review and was denied it by [counsel’s] failure to communicate.” From this, counsel “infer[red] that from the time of trial, or at least since 1993, [ ] applicant has known of his right to file a PDR, pro se[.]”

In response to applicant’s allegations, the Cottle County District Attorney filed an affidavit asserting that “the State has been prejudiced by applicant’s delay in the filing of his writ[.]” He explained that the State was prejudiced “because of the passage of time as well as its inability to locate the murder weapon, key eyewitnesses to the shooting and its reasonable expectation that the faded memories of the witnesses will hamper the State’s ability to present a case. The lead investigator ... is elderly and retired, and is now in his eighties.”

Based on the affidavits, the trial court entered findings of fact and conclusions of law. Regarding applicant’s claim that he had been deprived of his right to petition for discretionary review as a result of counsel’s ineffectiveness, the trial court found that counsel “did not provide notice or a copy of the [direct appeal] opinion until the time had passed for applicant to submit a pro se PDR.” The trial court further found that applicant (1) “knew before the decision of the court of appeals that he could file a pro se PDR”; (2) “could have filed a pro se PDR in 1992 had counsel timely furnished a copy of the opinion”; (3) “had the information needed to file for an out of time PDR as early as 1993 ... but failed to do so until almost two decades later”; and (4) “failed to show that absent counsel’s conduct [he] would have [timely] filed for [a] PDR[.]”

With respect to the State’s assertion of prejudice, the trial court concluded that applicant’s delay had prejudiced the State by hampering its ability to present a case [722]*722on retrial.2 It further concluded that “the State has shown that it is prejudiced in its ability to respond because of appointed counsel’s hazy memory of the events related to the PDR, that the prejudice! ] was caused by applicant’s having filed a late writ, and that applicant has not acted with reasonable diligence as a matter of law.” The trial court recommended that relief be denied in light of applicant’s delay in filing his application and the resulting prejudice to the State.3

This Court filed and set the application to determine whether the State’s assertion that it would be prejudiced in its ability to retry applicant if this Court were to grant relief was sufficient to invoke the doctrine of laches. See Ex parte Perez, No. AP-76,800, 2012 WL 1882284 (Tex.Crim.App. May 16, 2012).

B. Court Revises Approach to Lach-es in Habeas Corpus Context

In Ex parte Perez, this Court altered the parameters of the equitable doctrine of laches as it applies in the context of a long-delayed application for a post-conviction writ of habeas corpus. 398 S.W.3d at 208. Specifically, we abandoned a stringent test for the applicability of laches that had required the State to demonstrate a particularized form of prejudice that was limited to its ability to respond to the application, and we instead adopted a totality-of-the-circumstances approach that is consistent with the Texas common-law definition of laches. Id. at 208, 211-12. We explained that, at common law, the doctrine of laches was defined as

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Bluebook (online)
445 S.W.3d 719, 2014 Tex. Crim. App. LEXIS 1509, 2014 WL 5154722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-alberto-giron-perez-texcrimapp-2014.