IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
AND MOTION FOR STAY OF EXECUTION FROM CAUSE NO. 694175
IN THE 179TH JUDICIAL DISTRICT COURT
HARRIS COUNTY
O R D E R
This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, § 5, and a motion for stay of execution.
In May 1996, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure 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. Johnson v. State, No. AP-72,422 (Tex. Crim. App. Feb. 25, 1998). Applicant filed his initial post-conviction application for writ of habeas corpus in the convicting court on July 17, 1998. This Court denied applicant relief. Ex parte Johnson, No. WR-57,854-01 (Tex Crim. App. Feb. 18, 2004)(not designated for publication). Applicant's subsequent application was received in this Court on February 10, 2009.
Applicant presents three allegations in his application. In his first claim, applicant asserts that his execution would violate the United States Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304 (2002), holding that the Eighth Amendment prohibits the execution of the mentally retarded. In his second and third claims, applicant asserts that his execution would violate due process and equal protection unless he is given a meaningful opportunity to present and be heard on his Atkins claim.
We have reviewed the application and find that applicant has failed to make a prima facie case of mental retardation. Otherwise, applicant's claims fail to meet the dictates of Article 11.071, § 5. Accordingly, we dismiss his application and deny his motion to stay his execution.
IT IS SO ORDERED THIS THE 11TH DAY OF FEBRUARY, 2009.
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