Opinion
WR-71 070-04
10-08-2021
EX PARTE STEPHEN DALE BARBEE, Applicant
Do Not Publish
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION IN CAUSE NO. 1004856R IN THE 213TH DISTRICT COURT TARRANT COUNTY
ORDER
PER CURIAM.
We have before us Applicant's third subsequent post-conviction 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 specified, all references to articles in this order refer to the Texas Code of Criminal Procedure.
In February 2006, a jury convicted Applicant of the offense of capital murder. Pursuant to the jury's answers to the special issues set forth in Article 37.071, the convicting court sentenced Applicant to death. This Court affirmed Applicant's conviction and sentence on direct appeal. Barbee v. State, No. AP-75, 359 (Tex. Crim. App. Dec. 10, 2008) (not designated for publication).
On November 4, 2008, Applicant filed in the convicting court his initial post-conviction application for a writ of habeas corpus. He raised four claims in the application, including three ineffective assistance of counsel claims and a Brady claim. We denied relief. Ex parte Barbee, No. WR-71, 070-01 (Tex. Crim. App. Jan. 14, 2009) (not designated for publication).
Applicant filed his first subsequent habeas application in the convicting court on July 15, 2011, raising twenty-one claims for relief. Among other issues, the claims included an actual innocence claim, an attorney-conflict-of-interest claim, and several ineffective assistance of counsel claims. We remanded only the conflict-of-interest claim for further review in the trial court. After the case was returned to this Court, we denied habeas relief on the remanded claim and dismissed the remainder of the claims for failing to meet the requirements of Article 11.071 § 5. Ex parte Barbee, No. WR-71, 070-02 (Tex. Crim. App. May 8, 2013) (not designated for publication).
On August 6, 2019, Applicant filed in the convicting court his second subsequent habeas application. Relying on McCoy v. Louisiana, 138 S.Ct. 1500 (2018), Applicant raised a single claim for relief alleging that his "[trial] counsel improperly overrode [Applicant's] Sixth Amendment right to insist that counsel maintain his innocence, resulting in structural error that requires a new trial." We filed and set the issue and ultimately dismissed the application, determining that the legal basis for Applicant's claim existed previously. Ex parte Barbee, 616 S.W.3d 836 (Tex. Crim. App. 2021).
Applicant filed the instant habeas application in the convicting court on October 1, 2021. He raises two claims in this application. In the first claim, Applicant asserts that "recent disclosures regarding the coroner Dr. Marc Krouse buttress [his] claim of innocence, cast doubt on the State's theory of guilt, and raise questions about the fairness of [his] trial." In the second claim, Applicant argues that his "well-documented arm immobility and range-of-motion disabilities mean that TDCJ's execution protocol will subject him to cruel and unusual punishment in violation of the Eighth Amendment."
We have reviewed the application and find that Applicant has failed to make a prima facie showing on his first allegation. We have further determined that his second allegation is not cognizable on habeas because it does not challenge the validity of his conviction or the legality of his sentence of death. See Ex parte Alba, 256 S.W.3d 682 (Tex. Crim. App. 2008). Therefore, the allegations do not satisfy the requirements of Article 11.071 § 5. Accordingly, we dismiss the application as an abuse of the writ without reviewing the merits of the claims raised. Art. 11.071 § 5(c). We deny Applicant's motion to stay his execution.
IT IS SO ORDERED.