Opinion
WR-50,361-04
March 15, 2007. DO NOT PUBLISH.
On application for Writ of Habeas Corpus in Cause no. F97-52818-H from the Criminal District Court no. 1 of Dallas County.
ORDER
This is a subsequent application for writ of habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant was convicted of capital murder on September 2, 1998. After review this Court affirmed the conviction and sentence of death. Nealy v. State, No. 73,267 (Tex.Crim.App. September 13, 2000). On July 7, 2000, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Nealy, No. WR-50,361-01 (Tex.Crim.App. October 24, 2001). On November 9, 2006, applicant filed a subsequent application that alleged that, under the Fifth Amendment, he was actually innocent. This claim is based on a new recantation by his cousin, who testified at trial, and alleged subordination of perjury by the prosecutor. We dismissed his claim of actual innocence and remanded the claim of prosecutorial misconduct to the convicting court for resolution. After the case was returned to this Court we denied relief. Ex parte Nealy, WR-50,361-03 (Tex.Crim.App. February 7, 2007). Applicant now argues that the same prosecutorial misconduct that he identified in his first subsequent application also rendered his conviction unreliable, in violation of the Eighth Amendment. But he alleges no facts that were unavailable to him through reasonable diligence prior to filing his first subsequent application, and the legal basis for his present claim was also available at that time. We therefore dismiss this claim as an abuse of the writ. Applicant also argues that he is mentally retarded and cannot be executed. Under our recent holding in Ex parte Blue, S.W.3d , AP-75,254 (Tex.Crim.App. March 7, 2007), applicant must show "evidence of a sufficiently clear and convincing character that we could ultimately conclude, to that level of confidence, that no rational factfinder would fail to find he is in fact mentally retarded." Slip op at 18. Applicant has failed to meet this standard, and we dismiss the claim as an abuse of the writ. Applicant's motion for stay of execution is denied.