Opinion
NO. WR-85,343-01
11-18-2020
EX PARTE NAIM RASOOL MUHAMMAD, Applicant
ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS FROM CAUSE NO. W11-00698 IN THE 4TH CRIMINAL DISTRICT COURT DALLAS COUNTY Per curiam. YEARY and NEWELL, JJ., concurred. ORDER
This is an application for a writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
Under Article 11.071, § 4(a), an initial writ of habeas corpus "must be filed in the trial court not later than . . . the 45th day after the date the State filed its brief with this Court on direct appeal[.]" Article 11.071 § 4(b) provides that, before the applicable filing date, the convicting court may, for good cause shown, grant one 90-day extension of the filing deadline. An application filed after the applicable filing date is untimely.
In this case, the initial application should have been filed in the trial court on or before June 18, 2015. The record indicates it was filed on June 23, 2015. Under Article 11.071, § 4A, Applicant's failure to timely file should have been brought to this Court's attention. Instead, Applicant filed an "Unopposed Motion to Enter Findings of Fact and Conclusions of Law" in the trial court, asking it to rule that his application was timely filed. The trial court subsequently made such findings. Although the correct procedure was not followed, we now adopt the trial court's findings on this issue and declare the writ application timely filed as of June 18, 2015.
In May 2013, a jury convicted Applicant of capital murder for drowning his two young sons because he was angry at their mother, who had separated from him about eight months prior to the offense. See TEX. PENAL CODE § 19.03. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Muhammad v. State, No. AP-77,021 (Tex. Crim. App. Nov. 4, 2015) (not designated for publication).
In his application, Applicant presents nine challenges to the validity of his conviction and sentence. The trial court held an evidentiary hearing, entered findings of fact and conclusions of law, and recommended that we deny the relief Applicant seeks.
We have reviewed the record regarding Applicant's allegations. Claims 6 through 9 are procedurally barred because they were raised and rejected on direct appeal, or they could have been raised on direct appeal, but were not. See Ex parte Hood, 304 S.W.3d 397, 402 n.21 (Tex. Crim. App. 2010) ("[T]his Court does not re-review claims in a habeas corpus application that have already been raised and rejected on direct appeal."); Ex parte Nelson, 137 S.W.3d 666, 667 (Tex. Crim. App. 2004) ("It is 'well-settled that the writ of habeas corpus should not be used to litigate matters which should have been raised on direct appeal.'").
In Claims 1 and 4, Applicant alleges that his trial counsel were constitutionally ineffective for failing to: sufficiently investigate and present mitigation evidence (Claim 1); and preserve the record for appeal (Claim 4). In Claim 5, Applicant alleges that trial counsel's cumulative deficient performance prejudiced him. However, Applicant fails to meet his burden under Strickland v. Washington, 466 U.S. 668 (1984), to show by a preponderance of the evidence that his counsel's representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different but for counsel's deficient performance. See Ex parte Overton, 444 S.W.3d 632, 640 (Tex. Crim. App. 2014) (citing Strickland, 466 U.S. at 688).
In Claim 2, Applicant alleges that he is intellectually disabled under Atkins v. Virginia, 536 U.S. 304 (2002). However, the record shows that Applicant abandoned this claim during the subsequent habeas proceedings.
We adopt the trial court's findings of fact and conclusions of law. Based upon the trial court's findings and conclusions and our own review, we deny relief on Claims 1 and 3 through 9. We dismiss Claim 2.
IT IS SO ORDERED THIS THE 18TH DAY OF NOVEMBER, 2020. Do Not Publish