EX PARTE BOBBY WAYNE WOODS (other)

OF TEXAS

NO. AP-76,034

EX PARTE BOBBY WAYNE WOODS

ON SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS

IN CAUSE NO. 7487 IN THE 355TH DISTRICT COURT

HOOD COUNTY

Per Curiam.

O R D E R

On October 23, 2008, we granted applicant s motion for a stay of execution based on his subsequent application for a writ of habeas corpus in which Applicant asserts that he is mentally retarded and, therefore, his execution would violate the constitution. Applicant was convicted of capital murder on May 21, 1998. We affirmed the conviction and sentence on direct appeal. Woods v. State, No. AP-73,136 (Tex. Crim. App. June 14, 2000)(not designated for publication). On September 15, 1999, applicant filed his initial post-conviction application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Woods, No. WR-44,856-01 (Tex. Crim. App. Sept. 13, 2000)(not designated for publication). Applicant filed a subsequent application in which he asserted that he was mentally retarded. We held that the application met the requirements of Article 11.071, 5, and remanded the case to the trial court for consideration of the mental retardation claim. After the convicting court conducted a hearing and entered findings, we denied relief. Ex parte Woods, No. WR-44,856-02 (Tex. Crim. App. Apr. 27, 2005)(not designated for publication).

On October 15, 2007, we received a second subsequent application and a motion for leave to file a writ of prohibition challenging Texas execution protocol. We dismissed the subsequent application and denied leave to file the writ of prohibition. Ex parte Woods, Nos. WR-44,856-03 and -04 (Tex. Crim. App. September 10, 2008). The present application was received on October 21, 2008. Applicant raises a single claim in the application: that he is mentally retarded and that his execution will violate the constitution. Applicant raised this claim in a previous writ application.

This Court has determined that the case should be filed and set. Both parties should brief the following issues:

(1) Does the fact that Applicant raised this claim in a previous writ application bar him from re-litigating this claim pursuant to Ex parte Blue, 230 S.W.3d 151, 154, 162 (Tex. Crim. App. 2007)?

(2) If he is not barred from re-litigating this claim, what must he establish as a threshold showing in his writ application under Ex parte Blue?

(3) To what extent should this Court give deference to the habeas court s original findings of fact and conclusions of law on the underlying claim in determining whether a court may consider the merits of a subsequent writ application, raising that same claim, under Article 11.071, 5?

The Court will hear oral argument. Briefs from both applicant and the State are due in this Court within 45 days of the date of this order. No motions for extension of time to file will be entertained.

IT IS SO ORDERED THIS THE 5TH DAY OF NOVEMBER, 2008.

Do Not Publish