Tavakkoli, Ex Parte Amir, PD-0448-15

Background

In 2006 Amir Tavakkoli (then 18) pleaded guilty to possession of marijuana in Montgomery County, Texas, receiving a 20‑day jail sentence and dismissal of a reckless‑driving charge.
Tavakkoli later became subject to immigration consequences (denied reentry in 2012) and filed a habeas application claiming trial counsel failed to advise him about deportation risks (Padilla claim).
The trial court denied the first habeas application; the Ninth Court of Appeals affirmed. Tavakkoli then filed a second habeas application asserting (1) his first habeas counsel was ineffective for failing to raise additional arguments, (2) there was newly discovered testimony, and (3) Padilla retroactivity issues should be reconsidered in light of Martinez/Trevino.
At the second‑writ hearing Tavakkoli reiterated that trial counsel did little investigation, did not discuss plea alternatives, and failed to check the weight of the marijuana; he relied in part on counsel’s testimony from the first hearing as "new" evidence.
The trial court denied the second writ, finding the asserted evidence was not newly discovered, applying laches (prejudice to the State from delay and lost/destroyed evidence), and concluding Tavakkoli did not prove ineffective assistance by a preponderance.
The Ninth Court of Appeals affirmed, holding (inter alia) that Tavakkoli failed to show his first‑writ counsel was ineffective under Martinez/Trevino, the Article 11.59 standard for a second writ was not met, and laches barred relief.

Issues

Issue	Plaintiff's Argument (Tavakkoli)	Defendant's Argument (State)	Held
Applicability of Martinez/Trevino to permit relief for ineffective assistance of first‑writ counsel	Martinez/Trevino require remand to assess whether first‑writ counsel was ineffective and thus excuse procedural default	Martinez/Trevino not yet applied by Court of Criminal Appeals; Tavakkoli did not prove first‑writ counsel was ineffective	Court assumed without deciding the right to counsel but held Tavakkoli failed to demonstrate first‑writ counsel was ineffective; issue overruled
Article 11.59 second‑writ/new evidence requirement	Counsel’s testimony from the prior hearing and additional circumstances constitute "important testimony" unavailable at the first hearing	The purported "new" evidence was already presented at the first hearing; Article 11.59 requires evidence obtained since the prior hearing	Denial affirmed: evidence relied on was not newly discovered since the prior hearing, so 11.59 not satisfied
Use of laches to deny habeas relief	Tavakkoli: right to habeas ripened only upon immigration/deportation proceedings in 2012; delay was not unreasonable	State: delay since 2006 prejudices State—marijuana destroyed, witnesses and files unavailable—making retrial impracticable	Denial affirmed: trial court did not abuse discretion; laches and prejudice to State justify denial

Key Cases Cited

Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise noncitizen clients about deportation risk of a guilty plea)
Martinez v. Ryan, 566 U.S. 1 (2012) (ineffective assistance at initial‑review collateral proceeding may establish cause to excuse procedural default)
Trevino v. Thaler, 569 U.S. 413 (2013) (applies Martinez rule to typical Texas procedural framework)
Chaidez v. United States, 133 S. Ct. 1103 (2013) (Padilla does not apply retroactively in federal collateral proceedings)
Ex parte Klem, 269 S.W.3d 711 (Tex. App.—Beaumont 2008) (burden and standard for proving habeas allegations by a preponderance)