Tavakkoli, Ex Parte Amir ( 2015 )


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  •                           PD-0448-15
    IN THE
    TEXAS COURT OF CRIMINAL APPEALS
    Ex Parte Amir Tavakkoli
    Appellant,
    vs.                                                           April 22, 2015
    The State of Texas,
    Appellee.
    PETITION FOR DISCRETIONARY REVIEW
    Amir Tavakkoli
    17101 Kuykendahl Rd
    Houston, TX 77068
    Tel: (281) 537-2171
    Fax: (832) 787-0313
    State Bar No. 24093240
    info@atlawoffice.com
    William J. Delmore III
    Assistant District Attorney
    Montgomery County
    207 W Phillips St. 2nd Floor
    Conroe, TX 77301
    Tel. (936) 539-7979
    Fax (936) 760-6940
    Attorney for Appellee,
    The State of Texas
    APPELLANT REQUESTS ORAL ARGUMENT
    TABLE OF CONTENTS
    Page(s)
    Index of authorities                                                          2
    Statement regarding oral argument                                             3
    Statement of the case                                                         3
    Statement of procedural history                                               5
    Grounds for review                                                            5
    Argument                                                                      6
    a) Reviewing courts cannot grant deference to ‘implied factual findings’
    not supported in the record. The Ninth Court of Appeals erred in
    implying that the habeas court found appellant’s testimony unreliable
    and failed to consider that the court admonishments regarding
    consequences to pleading guilty were also misadvice.
    b) Reviewing courts cannot grant deference to ‘implied factual findings’
    not supported in the record. The Ninth Court of Appeals erred in
    implying that the writ counsel was no ineffective.
    Statement Requesting Nondisclosure of Records to Public                       10
    Prayer for relief                                                             11
    Certificate of Service                                                        12
    Tavakkoli, Amir – Petition For Discretionary Review                                 Page 2
    INDEX OF AUTHORITIES
    Ex Parte Peterson, 
    117 S.W. 3d 804
    , 819 (Tex. Crim. App. 2003)          6, 9
    Ex parte Wheeler, 
    203 S.W. 3d 317
    , 324 (Tex. Crim. App. 2006)           6, 9
    Martinez v. Ryan, 
    132 S.Ct. 1309
     (2012)                                 4-6, 8
    Trevino v. Thaler, 
    133 S.Ct. 1911
     (2013)                                4-8
    STATEMENT REGARDING ORAL ARGUMENT
    Appellant requests oral argument. Because of the complexities of this case
    the Court of Criminal Appeals will benefit from oral argument.
    STATEMENT OF THE CASE
    On January 4, 2013, appellant filed an Application for writ of habeas corpus
    in County Court at Law #1 in Montgomery County, Cause No. CR 13-26,808
    claiming ineffective assistance of counsel under Padilla v. Kentucky from his 2006
    class B misdemeanor conviction for possession of marijuana; the court denied his
    writ On January 22, 20131. The findings of fact and conclusions of law of the lower
    court show that appellant was denied relief solely for the reason that under Chaidez
    v. United States, 
    133 S.Ct. 1103
     (2013) the ruling of Padilla v. Kentucky, 
    130 S. Ct. 1473
     (2010) does not apply retroactively.
    On appeal to this court, appellant raised the arguments that his trial counsel,
    William Pattillo (“Pattillo”) was ineffective because of lack of proper investigation
    and also because he made appellant take the worst possible plea bargaining
    Tavakkoli, Amir – Petition For Discretionary Review                              Page 3
    agreement, considering the circumstance and the fact that appellant was an
    immigrant. The Ninth Court of Appeals did not consider those arguments when they
    were raised on appeal because they were not raised at the writ hearing.
    Consequently, appellant filed another writ of habeas corpus in July of 2014 claiming
    that his writ counsel was ineffective for not raising the proper arguments, and that
    there was new testimony available to allow for a second writ of habeas corpus under
    Article 11.59 of the Texas Code of Criminal Procedure.
    Appellant relied on his writ counsel to raise all proper arguments available at
    his previous writ of habeas corpus. Appellant’s writ counsel’s failure to raise the
    proper arguments is ineffective assistance of counsel in itself which requires a new
    writ hearing to determine the basis of appellant’s claim based on the merits of the
    case and not a procedural issue. In Martinez v. Ryan, 
    132 S.Ct. 1309
     (2012) and
    Trevino v. Thaler, 
    133 S.Ct. 1911
     (2013) the Supreme Court of the United States
    made clear that the right to effective assistance of counsel applies to the first writ of
    habeas corpus and counsel’s failure to be effective at a writ of habeas corpus gives
    cause for remand of the case to determine whether writ counsel was ineffective and
    a new hearing is necessary. The trail court never considered or addressed whether
    Martinez v. Ryan and Trevino v. Thaler were applicable and whether Appellant’s
    writ counsel was ineffective for not raising all proper arguments in his first writ. On
    appeal, the Ninth Court of Appeals also failed to address whether Martinez and
    Tavakkoli, Amir – Petition For Discretionary Review                                Page 4
    Trevino applied; instead waiting on this Honorable Court of Appeals to make that
    decision. A motion for en banc reconsideration was filed with the Ninth Court of
    Criminal Appeals to make a ruling on the issue of whether Martinez and Trevino
    apply; the motion was denied.
    STATEMENT OF PROCEDURAL HISTORY
    On 08/28/2014 Notice of Appeal filed in habeas court.
    On 11/03/2014 Case began in Ninth Court of Appeals.
    On 03/04/2015 Opinion was issued.
    On 03/17/2015 Motion for En Banc Reconsideration was filed.
    On 03/17/2015 Motion for En Banc reconsideration was denied.
    GROUNDS FOR REVIEW
    1.-    Whether Ryan and Martinez apply to this case so the record is clear for
    appellate review. Martinez v. Ryan, 
    132 S.Ct. 1309
    , 1320 (2012) (“[A] procedural
    default will not bar a federal habeas court from hearing a substantial claim of
    ineffective assistance at trial if, in the [state’s] initial-review collateral proceeding,
    there was no counsel or counsel in that proceeding was 8 ineffective.”); see also
    Trevino v. Thaler, 
    133 S.Ct. 1911
    , 1920-21 (2013) (applying the rule of Martinez to
    federal review of Texas state court convictions).
    2.-    The Ninth Court of Appeals incorrectly implied facts not found in the record.
    The Appellate Court is not free to defer to the trial Court’s implied factual findings
    Tavakkoli, Amir – Petition For Discretionary Review                                 Page 5
    “if they are unable to determine from the record what the trial court’s implied factual
    findings are.” Ex Parte Peterson, 
    117 S.W. 3d 804
    , 819 (Tex. Crim. App. 2003)
    (per curiam), overruled on other grounds by Ex Parte Lewis, 
    219 S.W. 3d 335
     (Tex.
    Crim. App. 2007); Ex parte Wheeler, 
    203 S.W. 3d 317
    , 324 (Tex. Crim. App. 2006).
    The findings of facts and conclusions of law of the habeas court state the only
    reasons for denying appellant’s relief as laches and no evidence of new testimony.
    The habeas court did not even consider whether Appellant’s first writ counsel was
    ineffective and whether Martinez and Trevino applied. The Ninth Court of Appeals
    incorrectly held (implied) that Appellant did not prove that his habeas counsel was
    ineffective even after habeas counsel failed to raise crucial arguments in the habeas
    hearing.
    ARGUMENT
    c) Reviewing courts cannot grant deference to ‘implied factual findings’ not
    supported in the record. The Ninth Court of Appeals erred in implying
    that the habeas court found appellant’s testimony unreliable and failed
    to consider that the court admonishments regarding consequences to
    pleading guilty were also misadvice.
    In Trevino v. Thaler, the Supreme Court held that ineffective assistance of
    counsel at initial-review collateral proceedings may establish cause for a defendant’s
    procedural default of a claim of ineffective assistance of counsel and remand was
    required to determine whether petitioner’s attorney in his first state collateral
    Tavakkoli, Amir – Petition For Discretionary Review                              Page 6
    proceeding was effective. 
    133 S.Ct. 1911
    , 1921 (2013).
    The petitioner in Trevino was “convicted of capital murder in Texas state court
    and sentenced to death after the jury found insufficient mitigating circumstances to
    warrant a life sentence.” 
    Id.
     Neither his appeal counsel nor his first writ counsel
    raised the argument that petitioner’s trial counsel was ineffective for lack of proper
    investigation by not raising mitigating factors to reduce the sentence of death. 
    Id.
    The court reasoned that the nature of reasoned that Texas procedural framework, by
    its design and operation makes it highly unlikely in a typical case that a defendant
    will have a meaningful opportunity to raise an ineffective assistance of trial counsel
    claim on direct appeal. 
    Id. at 1918
    . The nature of an ineffective-assistance claim
    means that the trial record is likely to be insufficient to support the claim. 
    Id.
     And a
    motion for a new trial to develop the record is usually inadequate because of Texas
    rules regarding time limits on the filing, and the disposal, of such motions and the
    availability of trial transcripts. 
    Id.
     Thus, a writ of habeas corpus is normally needed
    to gather the facts necessary for evaluating these claims in Texas. 
    Id.
     As a result, the
    Court held that ineffective assistance of counsel at initial-review collateral
    proceedings may establish cause for a defendant’s procedural default of a claim of
    ineffective assistance of counsel at trial and remand was required to determine
    whether the petitioner’s attorney in his first state collateral proceeding was
    ineffective, whether underlying ineffective assistance of trial counsel was
    Tavakkoli, Amir – Petition For Discretionary Review                               Page 7
    substantial, and whether petitioner was prejudiced. 
    Id. at 1921
    .
    Similarly, in appellant’s case, his first writ counsel failed to raise the argument
    of ineffective assistance of counsel because of lack of proper investigation by
    appellant’s trial counsel to determine whether appellant had any defenses and
    whether the amount of the marijuana was less than 30 grams to allow appellant relief
    from deportation. Appellant’s writ counsel also failed to raise the argument that
    appellant’s trial counsel took the worst possible plea bargain agreement considering
    the circumstance of appellant’s case and considering that pleading guilty to a drug
    offense would be virtually a death sentence for appellant. Supra note 5. Martinez v.
    Ryan, 
    132 S. Ct. 1309
    , decided by the Supreme Court in 2012 has the same holding
    as Trevino and further supports appellant’s argument and proves the lower court’s
    failure.
    The lower court erred in completely failing to consider Martinez and Trevino
    even though appellant attempted to bring this to the attention of the lower court
    repeatedly. RR, 17-18, 47.
    d) Reviewing courts cannot grant deference to ‘implied factual findings’ not
    supported in the record. The Ninth Court of Appeals erred in implying
    that the writ counsel was no ineffective.
    The Ninth Court of Appeals incorrectly implied facts not found in the record.
    The Appellate Court is not free to defer to the trial Court’s implied factual findings
    “if they are unable to determine from the record what the trial court’s implied factual
    Tavakkoli, Amir – Petition For Discretionary Review                                 Page 8
    findings are.” Ex Parte Peterson, 
    117 S.W. 3d 804
    , 819 (Tex. Crim. App. 2003)
    (per curiam), overruled on other grounds by Ex Parte Lewis, 
    219 S.W. 3d 335
     (Tex.
    Crim. App. 2007); Ex parte Wheeler, 
    203 S.W. 3d 317
    , 324 (Tex. Crim. App. 2006).
    The findings of facts and conclusions of law of the habeas court do not indicate
    whether Appellant’s habeas counsel was ineffective. The Ninth Court of Appeals
    incorrectly held that Appellant did not prove that his habeas counsel was ineffective
    even after habeas counsel failed to raise crucial arguments in the habeas hearing.
    Neither Ex Parte Peterson nor Ex parte Wheeler support giving deference to
    the trial Court’s ‘implied findings of fact’. The better approach is to remand the case
    to the Trial Court so the court may make appropriate findings of fact and conclusions
    of law and whether writ counsel was ineffective.
    Tavakkoli, Amir – Petition For Discretionary Review                              Page 9
    STATEMENT REQUESTING NONDISCLOSURE OF RECORDS TO
    PUBLIC
    The appellant is a newly license practicing Texas attorney in good standing
    who has his own practice. Appellant’s livelihood and his ability to make a living is
    dependent on his reputation and good character. Appellant understands and takes
    responsibility for his mistakes in the past. However, appellant respectfully requests
    that this court does not make any motions, pleas, petitions, opinion, or any other
    document relevant to this case available to the public. Alternatively, appellant
    requests that this court remove any identifying information of appellant including
    his name and any identifying information which would give a person knowledge that
    the case pertain to appellant even without the name being identified. Such
    information includes most facts given in the statement of facts section including the
    details of the arrest, etc.
    .
    Tavakkoli, Amir – Petition For Discretionary Review                           Page 10
    PRAYER
    Appellant, Amir Tavakkoli, prays that this Court grant his Petition for
    Discretionary Review.
    Respectfully submitted,
    ____________________________
    Amir Tavakkoli
    17101 Kuykendahl Rd
    Houston, TX 77068
    Tel: (281) 537-2171
    Fax: (832) 787-0313
    State Bar No. 24093240
    info@atlawoffice.com
    Tavakkoli, Amir – Petition For Discretionary Review                              Page 11
    CERTIFICATE OF SERVICE
    I certify that on April 22, 2015 a true and correct copy of Appellant’s Petition
    for Discretionary Review was served to each person listed below by the method
    indicated.
    /s/Amir Tavakkoli
    Amir Tavakkoli
    Via Fax to:
    William J. Delmore III
    Assistant District Attorney
    Montgomery County
    207 W Phillips St. 2nd Floor
    Conroe, TX 77301
    Tel. (936) 539-7979
    Fax (936) 760-6940
    Attorney for Appellee,
    The State of Texas
    Lisa McMinn
    State Prosecuting Attorney
    P.O. Box 13046
    Austin, Texas 78711
    Fax: (512) 463-5724
    Tavakkoli, Amir – Petition For Discretionary Review                            Page 12
    IN THE
    TEXAS COURT OF CRIMINAL APPEALS
    Ex Parte Amir Tavakkoli
    Appellant,
    vs.
    The State of Texas,
    Appellee.
    APENDIX-
    PETITION FOR DISCRETIONARY REVIEW
    Index:
    1-11                  Opinion of The Ninth Court of Appeals in Case No. 09-14-00358-CR
    12                    Order on Motion for Reconsideration
    Tavakkoli, Amir – Petition For Discretionary Review                                Page 13
    In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    ________________
    NO. 09-14-00358-CR
    ________________
    EX PARTE AMIR TAVAKKOLI, Appellant
    __________________________________________________________________
    On Appeal from the County Court at Law No. 1
    Montgomery County, Texas
    Trial Cause No. 14-28246
    __________________________________________________________________
    MEMORANDUM OPINION
    This is an appeal from the trial court’s order denying appellant Amir
    Tavakkoli’s second application for writ of habeas corpus. See Tex. Code Crim.
    Proc. Ann. art. 11.09 (West 2005). In three appellate issues, Tavakkoli contends
    the trial court (1) failed to properly consider two cases that apply the right to
    effective assistance of counsel to a writ of habeas corpus; (2) erred in not granting
    appellant’s second writ due to new testimony; and (3) erred by using the doctrine
    of laches to dismiss his writ. We affirm the trial court’s judgment.
    1
    BACKGROUND
    As we explained in our opinion on Tavakkoli’s appeal of the denial of his
    first application for writ of habeas corpus, Tavakkoli was born in Iran in 1988,
    moved to the United States in 2002, and became a legal permanent resident. Ex
    parte Tavakkoli, No. 09-13-00082-CR, 
    2013 WL 5428138
    , at *1 (Tex. App.—
    Beaumont Sept. 25, 2013, pet. ref’d) (mem. op.). On December 8, 2006, when
    Tavakkoli was an eighteen-year-old college student, he was arrested for reckless
    driving, and drug paraphernalia and marijuana were found in the vehicle during an
    inventory. 
    Id.
     On December 15, 2006, Tavakkoli met with his appointed counsel,
    pleaded guilty “to possession of marijuana in exchange for a twenty-day jail
    sentence and dismissal of the reckless driving charge[,]” and was released after
    serving his twenty-day sentence. 
    Id.
     Tavakkoli went to Sweden in July 2012, and
    he was denied reentry upon his return to the United States because he had pleaded
    guilty to possession of marijuana. 
    Id.
     In his first application for writ of habeas
    corpus, Tavakkoli alleged that trial counsel provided ineffective assistance by
    failing to advise Tavakkoli of the immigration consequences of pleading guilty to
    the 2006 drug possession charge. 
    Id.
     The trial court denied Tavakkoli’s
    application, and Tavakkoli appealed to this Court. 
    Id.
     This Court affirmed the trial
    court’s judgment. Id. at *7.
    2
    Tavakkoli filed a second petition for writ of habeas corpus, in which he
    contended that his writ counsel’s delay in filing his application for writ of habeas
    corpus caused retroactivity under Padilla v. Kentucky to become an issue, and his
    first petition “focused on Padilla and did not use any authority that discussed the
    lack of counsel acting adversarial and taking a good plea agreement under the Fifth
    Amendment.” See Padilla v. Kentucky, 
    559 U.S. 356
     (2010). Tavakkoli also
    argued that his trial counsel failed to be adversarial by failing to inquire about what
    evidence the State had to hold the State to its burden of proof. In addition,
    Tavakkoli contended that his Fifth Amendment rights were violated because his
    counsel “took the worst possible outcome” by advising Tavakkoli to plead guilty to
    possession of marijuana in return for dismissal of the reckless driving charge.
    The trial court held a hearing on Tavakkoli’s application. At the hearing,
    Tavakkoli, appearing pro se, argued that trial counsel spoke to him for no more
    than ten minutes at the jail, and Tavakkoli agreed to plead guilty to possession of
    marijuana in exchange for a dismissal of the reckless driving charge. In addition,
    Tavakkoli argued that the Supreme Court had not issued its decision in Chaidez v.
    United States, in which the Court determined that Padilla is not applied
    retroactively, until after he had already filed his first writ, and that he did not have
    the opportunity to amend his writ to raise “new arguments” because the trial court
    3
    made its decision two days after Chaidez was decided. See Chaidez v. United
    States, ___ U.S. ___, 
    133 S.Ct. 1103
    , 1113, 
    185 L.Ed.2d 149
     (2013). Tavakkoli
    also contended that new testimony from trial counsel from the hearing on the first
    writ had become available. According to Tavakkoli, trial counsel stated that he did
    not check the weight of the marijuana, and Tavakkoli argued that he would have
    been eligible for a waiver if the record had shown that the amount of marijuana
    was less than thirty grams. Tavakkoli contended that because he left the United
    States and tried to re-enter, he has the burden to prove the weight was less than
    thirty grams, but he has “no records to show that.” Tavakkoli argued that he did not
    have the right to a writ of habeas corpus until 2012 when he was placed under
    deportation proceedings. Furthermore, Tavakkoli asserted that his counsel at the
    writ hearing was ineffective because counsel did not raise all possible arguments
    and defenses.
    The State argued that Tavakkoli was not entitled to a hearing because he did
    not meet the requirements of article 11.59 of the Texas Code of Criminal
    Procedure, which governs second applications for habeas corpus relief. See Tex.
    Code Crim. Proc. Ann. art. 11.59 (West 2005). Specifically, the State argued that
    article 11.59 requires that new evidence must have been discovered since the last
    hearing, and the alleged new evidence was actually discovered at the first hearing.
    4
    The State also argued that the equitable doctrine of laches applies because the
    marijuana has been destroyed, “[t]he officer likely has no independent recollection
    of any of these events, trial counsel “testified at the last hearing that he has no
    independent recollection of his representation of Mr. Tavakkoli” and cannot locate
    his case file, and the State cannot locate its case file concerning Tavakkoli.
    According to the State, “it would be almost impossible to retry [Tavakkoli] for
    either the reckless driving or the possession of marijuana because we have one
    statement in a police report written seven and a half years ago[,]” and the arresting
    officer cannot recall the ancillary trial testimony connected with Tavakkoli’s
    offense. The State also argued that “[t]here is no entitlement to counsel on [an]
    11.09 writ” and Tavakkoli could not demonstrate ineffective assistance of counsel.
    Furthermore, the State asserted that laches runs from the time of conviction, and
    that Tavakkoli has “always had collateral consequences of a marijuana
    conviction.”
    Tavakkoli testified that trial counsel did not discuss alternative plea options,
    and “pleading guilty to possession of marijuana was the only option given to me
    after I told him I wanted to get out of jail. And no defenses were raised. Deferred
    adjudication and probation were never discussed.” According to Tavakkoli, trial
    counsel did not investigate the circumstances and validity of the inventory search
    5
    of the vehicle, ownership of the vehicle, the substance found in the bag, or the
    weight of the substance. Tavakkoli read into the record trial counsel’s testimony
    regarding “his admission of lack of investigation” at the previous writ hearing.
    Tavakkoli testified that he mentioned his college final examination to trial counsel.
    The trial court signed findings of fact and conclusions of law and an order
    denying Tavakkoli’s application. In its findings and conclusions, the trial court
    determined that (1) Tavakkoli’s trial counsel has no independent recollection of the
    events surrounding Tavakkoli’s plea and cannot locate the case file; (2) the facts
    supporting Tavakkoli’s current claims were available when he filed his original
    writ application; (3) Tavakkoli has not presented any new evidence that was not
    available at the hearing on his previous application; (4) the State’s ability to retry
    Tavakkoli if habeas relief were granted “would be prejudiced by dissipation of
    evidence that has occurred in the seven years since the offense date[;]” (5) the
    equitable doctrine of laches requires denial of habeas relief; (6) Tavakkoli’s current
    application is barred as a subsequent application because his current claims for
    relief were available during his first writ application; and (7) Tavakkoli failed to
    prove by a preponderance of the evidence that he was denied effective assistance
    of counsel. Tavakkoli then filed this appeal.
    6
    STANDARD OF REVIEW
    An applicant for a writ of habeas corpus must prove his allegations by a
    preponderance of the evidence. Ex parte Klem, 
    269 S.W.3d 711
    , 718 (Tex. App.—
    Beaumont 2008, pet. ref’d). We review a trial court’s decision to grant or deny
    relief on an application for writ of habeas corpus under an abuse of discretion
    standard. 
    Id.
     We review the facts in the light most favorable to the trial court’s
    ruling, and we afford almost total deference to the trial court’s determination of
    historical facts supported by the record, especially when the trial court’s fact
    findings are based upon its evaluation of credibility and demeanor. 
    Id.
     When
    resolution of the appellate issues turns on application of legal standards, we review
    the trial court’s determination de novo. 
    Id.
    ISSUE ONE
    In his first issue, Tavakkoli argues that the trial court erred by not
    considering Trevino v. Thaler and Martinez v. Ryan. Tavakkoli asserts that both
    Trevino and Martinez hold that an applicant for writ of habeas corpus has the right
    to effective assistance of counsel. See Martinez v. Ryan, 
    132 S.Ct. 1309
    , 1320
    (2012) (“[A] procedural default will not bar a federal habeas court from hearing a
    substantial claim of ineffective assistance at trial if, in the [state’s] initial-review
    collateral proceeding, there was no counsel or counsel in that proceeding was
    7
    ineffective.”); see also Trevino v. Thaler, 
    133 S.Ct. 1911
    , 1920-21 (2013)
    (applying the rule of Martinez to federal review of Texas state court convictions).
    The Court of Criminal Appeals has not yet addressed the application of
    Trevino and Martinez to the jurisprudence of Texas. See, e.g., Ex parte McCarthy,
    No. WR-50360-04, 
    2013 WL 3283148
    , at *1 (Tex. Crim. App. June 24, 2013) (not
    designated for publication) (Price, J., concurring) (noting that the Court has not
    reviewed its construction of article 11.071 of the Texas Code of Criminal
    Procedure in light of Martinez and Trevino). Neither the U.S. Constitution nor the
    Texas Constitution recognizes a claim of ineffective assistance of counsel on a writ
    of habeas corpus. Ex parte Graves, 
    70 S.W.3d 103
    , 113 (Tex. Crim. App. 2002).
    However, assuming without deciding that Tavakkoli has the right to assistance of
    counsel when applying for a post-conviction writ of habeas corpus, Tavakkoli did
    not demonstrate that counsel on his first writ provided ineffective assistance.
    Accordingly, we overrule issue one.
    ISSUE TWO
    In his second issue, Tavakkoli contends the trial court erred in denying his
    second application for writ of habeas corpus because new testimony was available
    at the second writ hearing that was not available when he filed his first writ. Article
    11.59 of the Texas Code of Criminal Procedure provides as follows:
    8
    A party may obtain the writ of habeas corpus a second time by
    stating in a motion therefor that since the hearing of his first motion
    important testimony has been obtained which it was not in his power
    to produce at the former hearing. He shall also set forth the testimony
    so newly discovered; and if it be that of a witness, the affidavit of the
    witness shall also accompany such motion.
    Tex. Code Crim. Proc. Ann. art. 11.59 (emphasis added). Tavakkoli’s arguments at
    the hearing, as well as his appellate brief, indicate that the “new” evidence upon
    which he relies consists of trial counsel’s testimony at the hearing on his first
    application for writ of habeas corpus. Because the evidence upon which Tavakkoli
    relies was adduced at the hearing on his first application for writ of habeas corpus
    rather than since that hearing, Tavakkoli does not meet the requirements of article
    11.59. See 
    id.
     Therefore, the trial court did not err by denying Tavakkoli’s
    application on that basis. We overrule issue two.
    ISSUE THREE
    In his third issue, Tavakkoli contends the trial court erred by using the
    doctrine of laches as a basis for denying his application for writ of habeas corpus.
    Tavakkoli argues that “[i]t was not until July 2012, when appellant was placed
    under deportation proceedings[,] that appellant’s right to a writ of habeas corpus
    became ripe.” In addition, Tavakkoli maintains that if he were granted habeas
    corpus relief and granted a new trial, the State “would be in the same position as it
    was in 2006[.]”
    9
    “Given the nature of habeas corpus relief, it is reasonable to permit a court to
    consider whether an applicant has slept on his rights and, if he has, how that has
    affected the State, and whether, in light of the delay, it is fair and just to grant him
    relief.” Ex parte Perez, 
    398 S.W.3d 206
    , 218-219 (Tex. Crim. App. 2013). The
    doctrine of laches is applied on a sliding scale; therefore, “the longer the delay, the
    less prejudice must be shown.” 
    Id.
     at 219 (citing Smith v. Caterpillar, Inc., 
    338 F.3d 730
    , 733 (7th Cir. 2003)). The doctrine of laches will bar habeas relief “when
    an applicant’s unreasonable delay has prejudiced the State, thereby rendering
    consideration of his claim inequitable.” 
    Id.
    As discussed above, the trial court heard and observed the State’s arguments
    at the hearing. At the hearing, counsel for the State represented that the marijuana
    has been destroyed, the arresting officer likely has no independent recollection of
    events, trial counsel has no independent recollection of his representation of
    Tavakkoli, trial counsel cannot locate his case file, and the State cannot locate its
    case file. Counsel for the State represented that it would be “almost impossible” to
    retry Tavakkoli. Reviewing the facts in the light most favorable to the trial court’s
    ruling and affording almost total deference to the trial court’s determination of
    historical facts supported by the record, we cannot say that the trial court abused its
    discretion by denying Tavakkoli’s application for writ of habeas corpus. See Ex
    10
    parte Klem, 
    269 S.W.3d at 718
    . Accordingly, we overrule issue three. Having
    overruled each of Tavakkoli’s issues, we affirm the trial court’s judgment.
    AFFIRMED.
    ________________________________
    STEVE McKEITHEN
    Chief Justice
    Submitted on December 31, 2014
    Opinion Delivered March 4, 2015
    Do Not Publish
    Before McKeithen, C.J., Kreger and Horton, JJ.
    11
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    STEVE MCKEITHEN                        Court of Appeals                                    CLERK
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    Ninth District                              1001 PEARL ST.
    BEAUMONT, TEXAS 77701
    409/835-8402 FAX 409/835-8497
    WWW.TXCOURTS.GOV/9THCOA.ASPX
    Monday, March 23, 2015
    Amir Tavakkoli                           William J. Delmore III
    16503 Creek South Road                   Asst. District Attorney
    Houston, TX 77068                        207 W. Phillips, 2nd Floor
    * DELIVERED VIA E-MAIL *                 Conroe, TX 77301
    * DELIVERED VIA E-MAIL *
    RE:     Case Number:           09-14-00358-CR
    Trial Court Case       14-28246
    Number:
    Style: Ex Parte Amir Tavakkoli
    The Appellant's motion for rehearing en banc in the above styled and
    numbered cause was overruled this date.
    Sincerely,
    CAROL ANNE HARLEY
    CLERK OF THE COURT
    cc:   Mark Turnbull (DELIVERED VIA E-MAIL)
    Graciela Caka (DELIVERED VIA E-MAIL)
    Judge Dennis D. Watson (DELIVERED VIA E-MAIL)