IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM HARRIS COUNTY
ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to Tex. Code Crim. Proc. art. 11.071.
On December 2, 1991, applicant was convicted of the offense of capital murder. The jury answered the special issues submitted under Article 37.071, Tex. Code Crim. Proc., and the trial court, in accordance with the jury's answers, sentenced applicant to death. This Court affirmed applicant's conviction and death sentence on direct appeal. Goynes v. State, No. 71,387 (Tex. Crim. App., December 14, 1994) (not designated for publication).
Applicant filed an initial application for habeas corpus relief with the convicting court on April 8, 1997, and we denied relief on that original application on June 26, 2002. In this subsequent writ, applicant brings one claim, an allegation of mental retardation under Atkins v. Virginia, 536 U.S. 304 (2002). However, we are informed that applicant is currently seeking federal habeas relief from this conviction in Cause No. H-02-2665, in the United States District Court for the Southern District of Texas, Houston Division. We have not received notice from applicant that the federal courts have stayed all action in his federal writ application while applicant seeks habeas relief from the Texas state courts.
Therefore, under Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004), we dismiss this application without prejudice because applicant's federal writ of habeas corpus challenging his capital murder conviction and death sentence is pending in the federal district court and that court has not stayed its proceedings for applicant to return to state court to consider his current unexhausted claims.
IT IS SO ORDERED THIS THE 10th DAY OF NOVEMBER, 2004.
Do Not Publish