Opinion
NO. WR-40,214-03
02-09-2016
EX PARTE GUSTAVO JULIAN GARCIA
ON APPLICATION FOR WRIT OF HABEAS CORPUS AND MOTION TO STAY THE EXECUTION IN CAUSE NO. 366-80185-91 IN THE 366TH JUDICIAL DISTRICT COURT COLLIN COUNTY
Per curiam. ORDER
This is 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.
In December 1991, 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 ultimately affirmed applicant's conviction on direct appeal, but his sentence was later vacated by a federal district court. Garcia v. State, 919 S.W2d 370 (Tex. Crim. App. 1996) (reversed and remanded on original submission; affirmed on rehearing), sentence vacated in Garcia v. Johnson, No. 1:99-cv-00134-TH (E.D. Tex. delivered Sept. 7, 2000). After a second punishment hearing, the jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.0711, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's sentence on direct appeal. Garcia v. State, No. AP-71,417 (Tex. Crim. App. delivered Nov. 12, 2003)(not designated for publication).
Applicant filed his complete first initial post-conviction application for a writ of habeas corpus in the convicting court on July 24, 1997. This Court denied applicant relief. Ex parte Garcia, No. WR-40,214-01 (Tex. Crim. App. Feb. 10, 1999)(not designated for publication). After re-trial, applicant filed his initial post-conviction application for a writ of habeas corpus in which he raised eighty-eight claims in the convicting court on April 15, 2003. This Court again denied applicant relief. Ex parte Garcia, No. WR-40,214-02 (Tex. Crim. App. Oct. 15, 2008)(not designated for publication). Applicant filed this his first subsequent writ application in the convicting court on February 5, 2016.
In his application, applicant raises a single allegation which he acknowledges is procedurally barred. However, he argues that the ineffective assistance of initial habeas counsel resulted in the procedural bar, and he urges this Court to allow the claim to be heard in light of the recent decisions of the United States Supreme Court in Martinez v. Ryan, 132 S.Ct. 1309 (2012), and Trevino v. Thaler, 133 S.Ct. 1911 (2013).
After reviewing the application, this Court has determined that applicant has failed to meet the dictates of Article 11.071, § 5. Accordingly, we dismiss the application as an abuse of the writ without considering the merits of the claim, and we deny applicant's motion to stay his execution.
IT IS SO ORDERED THIS THE 9th DAY OF FEBRUARY, 2016. Do Not Publish