Illiterate Defendant's Ineffective Assistance of Counsel Held No Excuse for Habeas Application Almost 20 Years after Conviction

Alberto Giron Perez was convicted of murder. He received a 88-year sentence in 1991. He had appointed counsel on appeal-- it is not clear whether his appellate counsel was the same as his trial counsel-- and Perez lost his appeal October 9, 1992. His appointed lawyer failed to notify Perez of his loss at the Court of Appeals until 1993. Perez had a right to appointed counsel on appeal to the Court of Appeals, but did not have a right to appointed counsel to apply to get discretionary review from the Texas's Court of Criminal Appeals. From the time that the appeals court finally decides a case, the loser in that court only has 30 days to file a petition for discretionary review, and, ordinarily, an indigent has to file it without the help of counsel. More than 30 days had passed when Perez first learned that he had lost his appeal-- he only found out in 1993-- so he was barred from asking the CCA to consider his case on direct appeal. When Perez found out about his loss and that his lawyer's action barred him from direct appeal, he sued that lawyer civilly and filed a grievance. However, Perez did not file an application for a writ for habeas corpus until September 2011. Applicants like Perez are subject to Texas Code of Criminal Procedure article 11.07. It has no deadline by which an initial application must be made. The district attorney in the case complained that Perez's delay in applying for his writ made the case not capable of being retried if Perez prevailed. Judge Elsa Alcala wrote for all the members of the court save dissenting Judge Laurence E. Meyers .The court held that Perez knew or should have known that he had a meritorious writ application in 1993, and that the delay between 1993 and 2011 was his fault so that the equitable doctrine of laches applied to his application. In equity, if someone asks for relief from a court, but delays asking for that relief so that the person asking for relief gains a marginal advantage over that person's adversary, that is not fair to the adversary and relief should be denied on that basis. This result obtains even if the relief is sought within a statute of limitations. 11.07 gives no deadline for a first application for habeas corpus.
Judge Meyers's dissent argued that the court's opinion contravened the will of the legislature since the Lege could have easily put in:

1.  a deadline or
2. an acknowledgement that laches applied

to 11.07 writ applications, but it did not. He noted that Perez was illiterate, and that Perez was in this mess because of his appellate counsel's ineffective assistance of him, which was not Perez's fault.
I hate it when people are denied appellate relief other than on the merits.  See Tex. R. Civ. P. 1. But Perez or his family members were almost certainly told by the initial appellate lawyer or the lawyer who did the civil suit that Perez should apply for habeas corpus relief, and, generally, the sooner the better. Really, more than 19 years is too long to wait.
The thinking in this case might lay the groundwork for how Texas courts deal with Jerry Hartsfield, the defendant whose 1983 reversal of his conviction was never implemented. His efficacious federal writ application was filed Oct. 22, 2007. His facts are different, though. He filed a number of pro se motions for relief earlier and didn't have counsel to help him until shortly after he filed his federal writ. Hartsfield's claims of post-conviction ignorance are much more reasonable than Perez's. The law in his case is different, too. Hartsfield got the death penalty at the trial court, so his post-conviction rules are different.
Hat tip for this case to the estimable Jim Skelton.
Ex parte Perez, No. AP-76,800 (Tex. Ct. Crim. App. Oct. 8, 2014 available at ww.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=35d3f487-d044-4f01-9b49-c473fa02ef2b&coa=coscca&DT=OPINION&MediaID=55f5c7f0-26f3-4adb-b5d0-1b93e38aff4e)

A Switch of Parties by a Statewide Appellate Judge and Other Political News about Texas's Supreme Court

Texas state judges are elected by the voters, except when they are appointed to fill unfinished terms. Texas's highest court-- whose jurisdiction is generally limited to civil matters-- is the Texas Supreme Court. For criminal matters in the Texas state system nothing is higher than the Court of Criminal Appeals. Their courts' jurisdiction cover the state-- every county. All of the courts above the trial level and lower than those two have jurisdiction over multiple counties. To apply to seek nomination of the Democratic or Republican parties for offices covering more than one county, one applies at the respective party state headquarters in Austin. If you try to find from the state Republican web site who the candidates are, the that site sends you to the Texas Secretary of State's site. which did not say and does not say that it is complete. I assume that after the last three days, SecState's site is current. Understand that they do not promise it is, and know that a person with a writ could get anything changed.

Day before yesterday I published lineups based on premature SecState information for which I am heartily sorry.

It is obvious to me that reporting the Texas appellate court races will require more than one post. This post will be about l'affaire Meyers and other SCOTX news. I will follow up with posts about the contest for a seat on the Beaumont bench and for seats on the Texas Court of Criminal Appeals and Texas courts of appeals' races.

1.  Texas Court of Criminal Appeals judge Lawrence Meyers switched from my Grand Old Party to the Democrats to run against Jeff Brown for a Texas Supreme Court seat. Don't know the backstory to this, but and Cynthia Hampton and I, among many others, don't understand why he's doing this. He does not have to leave his seat on the  CCA to run to be a Supreme. His CCA term ends January 2017. The Democrat blog Burnt Orange Report points out that this makes Meyers

the first Democrat statewide officeholder since the second millennium of the common era (1998). Here's what Jeff Brown looks like.

Poor fellow, he has drawn repeat candidate Joe Pool, Jr. as a primary opponent, who is discussed in the post after next I missed him the first couple of days.
2. The Chief Justice race is covered in a subsequent post; this corrects an error in an earlier version of this post.
3. Democrat Corpus/Edinburg Appeals Court Justice Gina Benavides

challenges Republican incumbent Jeff Brown.

4. The battle for Place Eight is covered in a subsequent post, correcting that contest's nonappearance in an earlier version of this post.