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Ex parte Tamayo

Court of Criminal Appeals of Texas

January 21, 2014

EX PARTE EDGAR ARIAS TAMAYO

Do Not Publish

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE Nos. 9422714-E, F IN THE 209TH DISTRICT COURT HARRIS COUNTY.

ORDER

PER CURIAM.

These are subsequent applications for writs of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5. [1]

In October 1994, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted under Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Tamayo v. State, No. AP-72, 033 (Tex. Crim. App. December 11, 1996)(not designated for publication).

Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on February 23, 1998. This Court denied relief. Ex parte Tamayo, No. WR-55, 690-01 (Tex. Crim. App. June 11, 2003)(not designated for publication). Thereafter, applicant filed a federal habeas petition, which was stayed pending the United States Supreme Court's and this Court's resolution of issues arising under the Vienna Convention. See Tamayo v. Quarterman, No. H-03-3809, slip op. at 1 (S. Dist. Tex., Aug. 3, 2009)(not selected for publication). Applicant then filed two subsequent applications for writs of habeas corpus raising claims under the Vienna Convention. This Court dismissed both applications. See Ex parte Tamayo, No. WR-55, 690-02 (Tex. Crim. App. Sept. 10, 2003)(not designated for publication) and No. WR-55, 690-03 (Tex. Crim. App. July 2, 2008)(not designated for publication).

Applicant thereafter filed an amended federal habeas petition, adding a claim that he is mentally retarded and so the Eighth Amendment bars his execution. See Atkins v. Virginia, 536 U.S. 304, 321 (2002). He also filed a motion to stay the federal proceeding so that he could return to this Court to exhaust the Atkins claim. The federal district court granted the motion. Applicant's third subsequent application in which he raised a claim that he was mentally retarded was filed in the trial court on March 15, 2010. Holding that applicant failed to make a threshold showing, this Court dismissed the application. See Ex parte Tamayo, No. WR-55, 690-04 (Tex. Crim. App. June 9, 2010)(not designated for publication). Applicant's fourth subsequent writ application was filed in the trial court on January 14, 2014. His fifth subsequent writ application was filed in the trial court on January 16, 2014.

In his fourth subsequent writ application, applicant asserts that his right to due process was violated when the State failed to disclose that they had extensively coached a witness and that the witness had testified falsely at trial. However, applicant has failed to show that the facts underlying this claim could not have been ascertained previously and raised in one of the prior writ applications. Nor has applicant otherwise shown that he has met any of the dictates of Article 11.071 § 5. Accordingly, we dismiss applicant's fourth subsequent writ application as an abuse of the writ without considering the merits of the claim.

In his fifth subsequent writ application, applicant asserts that a decision issued by the Inter-American Commission on Human Rights requires this Court to address the merits of his Vienna Convention claim. Applicant also asserts that the Court should reconsider his claim of mental retardation. Contrary to applicant's arguments, he has not met the dictates of Article 11.071 § 5. Accordingly, we dismiss his fifth subsequent writ application as an abuse of the writ without considering the merits of the claims. We also decline to consider the application under our original habeas jurisdiction.

The motions to stay applicant's execution, which were filed with each of these applications, are denied.

IT IS SO ORDERED.

DISSENTING AND CONCURRING STATEMENT

Price, J.

I respectfully dissent to the Court's dismissal of the applicant's fourth subsequent application for a writ of habeas corpus. [1] Article 11.071, ยง 5 of the Texas Code of Criminal Procedure allows this Court to consider the merits of (and ...


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