EX PARTE JONATHAN MARCUS GREEN (other)

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION FROM CAUSE NO. 00-10-06435-CR(2) IN THE 221ST DISTRICT COURT

MONTGOMERY COUNTY

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, 5, and a motion for a stay of execution.

In July 2002, 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 affirmed applicant's conviction and sentence on direct appeal. Green v. State, No. AP-74,398 (Tex. Crim. App. Dec. 1, 2004)(not designated for publication).

In June 2004, applicant filed in the trial court his initial post-conviction application for writ of habeas corpus. This Court denied applicant relief. Ex parte Green, No. WR-61,225-01 (Tex Crim. App. Mar. 23, 2005)(not designated for publication). Applicant filed this his first subsequent application in the trial court on June 23, 2010.

Applicant asserts in his application that (1 & 2) he is incompetent to be executed, (3) he is entitled to a hearing on his competency, (4) he is entitled to a stay of execution in order to litigate the issue of his competency, and (5) because of his morbid obesity and mental illness, lethal injection would be cruel and unusual in his case. After reviewing the application, we file and set applicant's competency claims to determine whether such claims are cognizable in a writ of habeas corpus under Texas Code of Criminal Procedure article 11.071, especially in light of the enactment of Article 46.05 in 1999 providing a procedure by which a defendant can fully litigate such claims. Applicant's fifth allegation is dismissed. Because a stay of execution is granted in connection with the Article 46.05 review, this motion for stay of execution is dismissed as moot.

IT IS SO ORDERED THIS THE 30th DAY OF JUNE, 2010.

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