Mofidinasab, Hani

• Court: Court of Criminal Appeals of Texas
• Decided: April 26, 2017
• Docket: WR-86,317-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-86,317-01

EX PARTE HANI MOFIDINASAB, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 120-15-A IN THE 2ND 25TH DISTRICT COURT FROM GONZALES COUNTY

ALCALA , J., filed a concurring opinion.

CONCURRING OPINION

Hani Mofidinasab, applicant, presents a complicated double-jeopardy claim that is beyond

the scope of matters that an ordinary pro se litigant might reasonably be expected to effectively

litigate in a post-conviction habeas proceeding. Thus, although I agree with this Court’s remand

order’s determination that applicant has alleged facts that, “if true, might entitle him to relief,” I do

not join this Court’s order because I conclude that, on remand, it would be in the interests of justice

for the habeas court to appoint counsel for applicant upon request if he is indigent, regardless of

whether the habeas court conducts a live hearing. See Ex parte Pointer, 492 S.W.3d 318, 320-21

(Tex. Crim. App. 2016) (per curiam) (Alcala, J., concurring). Specifically, in addition to the order’s

current admonition that the appointment of counsel is mandatory for an indigent applicant upon

request if the habeas court holds a hearing, I would include a further admonishment that an indigent

applicant is “entitled” to the appointment of counsel upon request “if the court concludes that the Mofidinasab - 2

interests of justice require representation.” See TEX . CODE CRIM . PROC. ART . 1.051(d). With these

comments, I respectfully concur in this Court’s order that remands this case to the habeas court.

Filed: April 26, 2017 Do Not Publish