Opinion
NO. WR-56,841-06
09-18-2018
EX PARTE DANIEL CLATE ACKER, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION IN CAUSE NO. 0016026 IN THE 8TH JUDICIAL DISTRICT COURT HOPKINS COUNTY Per curiam. ORDER
We have before us a subsequent application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5 and a motion to stay applicant's execution.
Unless otherwise indicated, all future references to Articles are to the Texas Code of Criminal Procedure.
In March 2001, a jury found applicant guilty of the March 2000 capital murder of Marquette George. The jury answered the special issues submitted pursuant to 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. Acker v. State, No. AP-74,109 (Tex. Crim. App. del. Nov. 26, 2003)(not designated for publication).
In his initial application for a writ of habeas corpus, applicant raised over forty claims. In several sub-claims, applicant broadly alleged that Articles 37.071 and 11.071 were unconstitutional and his trial and appellate counsel were both ineffective. This Court denied relief on those claims and dismissed as subsequent several additional claims that applicant later filed pro se. Ex parte Acker, Nos. WR-56,841-01 and -03 (Tex. Crim. App. Nov. 15, 2006)(not designated for publication).
Applicant's -02 writ was a writ of mandamus which this Court denied leave to file without written order on June 28, 2006. --------
Applicant's counsel filed a second subsequent writ application (our -04) in the trial court on February 7, 2008. In this application, applicant raised fifteen claims in which he asserted that: he was actually innocent; the trial court denied him due process and a fair trial; his trial and appellate counsel rendered ineffective assistance; he was denied access to the courts by the appointment of ineffective habeas counsel; he was denied experts under Ake v. Oklahoma; the prosecutor repeatedly engaged in misconduct; and the death penalty scheme is unconstitutional. This Court determined that applicant's claims did not meet the requirements of Article 11.071 § 5 and dismissed the application. Ex parte Acker, No. WR-56,841-04 (Tex. Crim. App. Sept. 10, 2008)(not designated for publication).
Applicant filed a third subsequent writ application pro se in March 2014. However, because applicant had federal proceedings pending, the Court dismissed the state application "without prejudice." Ex parte Acker, No. WR-56,841-05 (Tex. Crim. App. May 14, 2014)(not designated for publication).
On August 31, 2018, applicant filed in the trial court the instant writ application. In this application, applicant raises five claims in which he complains that his due process rights were violated by the admission of false evidence in his trial and the exclusion of evidence of his innocence. He also asserts that he is actually innocent and that his initial state habeas counsel performed deficiently.
Applicant has failed to meet the requirements of Article 11.071 § 5 and Article 11.073. Accordingly, we dismiss this application as an abuse of the writ without reviewing the merits of the claims raised. Art. 11.071 § 5(c). Applicant's motion to stay his execution is denied.
IT IS SO ORDERED THIS THE 18th DAY OF SEPTEMBER, 2018. Do not publish