Opinion
NO. WR-68,348-04
09-16-2020
EX PARTE JUAN LIZCANO
ON APPLICATION FOR WRIT OF HABEAS CORPUS IN CAUSE NO. W05-59563-S IN THE 282ND JUDICIAL DISTRICT COURT DALLAS 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, Section 5.
In October 2007, Applicant was convicted of capital murder and sentenced to death for killing a Dallas police officer in 2005. This Court affirmed Applicant's conviction and sentence on direct appeal. Lizcano v. State, No. AP-75,879 (Tex. Crim. App. May 5, 2010)(not designated for publication).
Applicant then filed an initial post-conviction application for writ of habeas corpus in which he alleged, among other claims, that he is intellectually disabled and ineligible for the death penalty under the United States Supreme Court's holding in Atkins v. Virginia, 536 U.S. 304, 321 (2002). We denied relief on that application in 2015. Ex parte Lizcano, No. WR-68,348-03 (Tex. Crim. App. April 15, 2015)(not designated for publication). On June 6, 2018, we exercised our authority to reconsider the case and remanded it to the convicting court to make findings and conclusions on the issue of intellectual disability. On September 16, 2020, we granted relief on Applicant's intellectual disability claim and reformed his sentence of death to a sentence of life imprisonment without parole.
Applicant's instant post-conviction application for writ of habeas corpus was received in this Court on December 4, 2017. In "Part A" of this application, he again alleges that he is intellectually disabled and ineligible for the death penalty. This claim, which has already been resolved in Applicant's favor, is moot.
Applicant presents ten more allegations in "Part B" of the instant application. In Claims One and Five, he complains that "prior counsel" failed to investigate and present mitigating evidence and to "uncover critical evidence" of intellectual disability. Applicant also contends that trial counsel were ineffective for: "presenting expert testimony that made [his] race pertinent to the jury's sentencing decisions and failing to raise equal protection and due process issues" (Claim Two); failing to object to testimony "regarding the State's future dangerousness case" (Claim Three); failing to ensure that the jury received proper penalty phase instructions (Claim Six); failing to adequately litigate a Batson issue (Claim Seven); and failing to object to "pervasive prosecutorial misconduct" (Claim Eight). In Claim Four, Applicant complains that "the trial court failed to order sua sponte the requisite competency proceedings[.]" With regard to Claims Two, Three, Four, Six, Seven, and Eight, Applicant further asserts that appellate counsel "labored under a conflict of interest" and that he received ineffective assistance from both appellate and habeas counsel. In Claim Nine, Applicant complains that appellate counsel "failed to request rehearing on cumulative error claims" and habeas counsel "failed to raise appellate counsel's ineffectiveness." Finally, Applicant asserts in Claim Ten that his "conviction and sentence are unconstitutional due to the cumulative effect of prior counsel's inadequate representation" and habeas counsel "ineffectively failed to raise a cumulative error claim."
Batson v. Kentucky, 476 U.S. 79 (1986).
We have reviewed the claims raised in "Part B" of this application and find that Applicant has failed to satisfy the requirements of Article 11.071, Section 5(a). This portion of the application is an abuse of the writ, and we will not consider the merits of these claims. Accordingly, we dismiss the instant application.
To the extent that these claims pertain to the punishment phase of Applicant's trial, they are also moot. --------
IT IS SO ORDERED THIS THE 16TH DAY OF SEPTEMBER, 2020. Do Not Publish