EX PARTE JOE LUNA (other)

ON UNOPPOSED MOTION TO FILE SKELETAL WRIT TO TOLL RUNNING OF FEDERAL STATUTE IN CAUSE NO. 2006-CR-0033

IN THE 379TH JUDICIAL DISTRICT COURT

BEXAR COUNTY

Before us is applicant's motion to file a skeletal application for writ of habeas corpus pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071. (1) The purpose of the motion is to provide him a vehicle by which he can effectively toll the running of the federal statute of limitations without restricting his ability to later file, within the appropriate time period, a fully developed application that will still be considered applicant's initial, and not a successor, application.

On March 9, 2006, the trial court appointed counsel to represent applicant in Article 11.071 post-conviction writ of habeas corpus proceedings. On August 15, 2007, the State filed in this Court its brief on applicant's direct appeal. Pursuant to Article 11.071, 4(a), counsel should have filed applicant's application for writ of habeas corpus in the convicting court no later than October 1, 2007, or by December 28, 2007, had a motion for extension been timely filed and granted. Art. 11.071, 4(b). However, counsel failed to timely file an application on applicant's behalf. Consequently, on October 1, 2008, this Court held that counsel in contempt, relieved her of her responsibilities in the case, and appointed new counsel. New counsel was ordered to file an application for writ of habeas corpus "on or before the 270th day from the date of [that] order." Ex parte Luna, No. WR-70,511-01 (Tex. Crim. App. Oct. 1, 2008)(not designated for publication).

When the opinion in applicant's direct appeal was handed down on October 29, 2008, and mandate issued on November 24, 2008, the federal statute of limitations began to run in applicant's case. By the motion currently before us, applicant does not assert that he needs more time in which to file his application, he simply wants to toll the federal statute of limitations while preserving his right to timely supplement his filing without risk that it will be deemed a subsequent application. In light of these facts, we grant applicant's motion to file a skeletal application in the trial court. Any supplemental or amended application filed "on or before the 270th day from the date of [our October 1, 2008] order" shall be deemed an initial, and not a successor or subsequent, application. (2) Further, the actions and time frames set out in Article 11.071, 6, et seq., shall be triggered by the timely filing of the amended or supplemental application and not by the filing of the skeletal application.

IT IS SO ORDERED THIS THE 17TH DAY OF DECEMBER, 2008.

Do Not Publish

1. Unless otherwise indicated all references to Articles refer to the Code of Criminal Procedure.

2. Applicant calculates the 270th day from October 1, 2008, to be July 1, 2009. Applicant's calculations are incorrect. Correctly calculated, June 28, 2009, is 270 days from October 1, 2008. Because June 28th is a Sunday, the application should be deemed timely filed on Monday, June 29, 2009. See Tex. Gov't Code 311.014(b).