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Ex parte Reynoso

Although the court finds good cause for the tardy filing of the application, the claim was raised and rejected on direct appeal and is not cognizable on habeas review. Court of Criminal Appeals, No. AP-75,963

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Price, J., filed a concurring opinion.

OPINION

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.071. In an order delivered on June 27, 2007, dismissing the application as untimely, we set out a detailed account of applicant’s repeated attempts to waive his appeals that were interspersed with an occasional desire to pursue those same appeals. Ex parte Reynoso, 228 S.W.3d 163 (Tex. Crim. App. 2007). Given the timing and applicant’s repeated claims that he did not want to pursue his appeals, we held that, although his application was filed during an interval in which he chose to pursue his appeals, applicant could not show good cause for the untimely filing. Id. Therefore, we dismissed his application in its entirety and declined to appoint him new counsel under Article 11.071 § 4A. Id. Applicant subsequently filed a suggestion that we reconsider the case on our own initiative as allowed under Texas Rule of Appellate Procedure 79.2(d). Applicant asserted that the Court had not considered the application of Texas Rule of Appellate Procedure 4.1(a) in calculating the date on which applicant’s habeas application had been due. We granted rehearing on our own initiative and asked for briefs on the issue. Throughout the scholarly debate that followed, the Court discovered that the issue was much more detailed and complicated than simply asking whether the calculation rule should be applied. We now file and set and issue the following opinion, concluding that there was good cause for applicant’s tardy filing, but denying relief on his writ.

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