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Belated Habeas Relief

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January 13, 2016, 20:50
Martin Peterson
Belated Habeas Relief
Pursuant to a plea bargain, Tracy Gibson pleaded guilty to same transaction aggravated robbery, possession of a firearm by a felon, and theft in April of 2007. He did not then seek to appeal. The trial court later amended the aggravated robbery judgment nunc pro tunc to reflect that Gibson was guilty only of robbery. This occurred after Gibson had filed an 11.07 writ, but before the trial court had considered the writ. This change removed any harm that the BPP would delay consideration of Gibson for parole (since robbery is not a 3g offense), but Gibson was still left with a claim that his guilty plea was involuntary since he was admonished that the minimum punishment for his offense was 15 years rather than 5 years (because everyone assumed the range of punishment was enhanced under section 12.42(c)(1), rather than (as was true) under section 12.42(b), PC). He had accepted a 20 year sentence.

The CCA denied the writ on January 9, 2008. Gibson thereafter filed subsequent writs challenging the conviction, all of which were likewise denied. Gibson became eligible for release on parole in March of 2012. On June 30, 2015, the CCA filed its own motion to reconsider its disposition of the case on the basis that it had "come to light" that the disposition in 2008 may have been erroneous. Today, the CCA indeed determined that Gibson was entitled to a new trial because of the defective admonishment. Thus, there appears to be no time limit on the court's authority to reconsider a habeas application on its own initiative under TRAP 79.2(d). Hence, no order denying relief is ever actually final. Arguably, inmates should never give up hope. This case also points out how important it is for the prosecutor to know what offense is charged and what the punishment range is. Gibson