Reed, Rodney ( 2015 )


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  •                                                                  WR-50,961-07
    COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 3/6/2015 4:03:06 PM
    Accepted 3/6/2015 4:17:38 PM
    ABEL ACOSTA
    No. WR-50, 961-07                                         CLERK
    IN THE                          RECEIVED
    COURT OF CRIMINAL APPEALS
    Court of Criminal Appeals of Texas            3/6/2015
    ABEL ACOSTA, CLERK
    EX PARTE RODNEY REED,
    Applicant,
    STATE’S MOTION TO DISMISS APPLICATION FOR WRIT OF
    HABEAS CORPUS AS ABUSIVE
    BRYAN GOERTZ
    Criminal District Attorney
    Bastrop County, Texas
    MATTHEW OTTOWAY
    Assistant Attorney General/
    Assistant District Attorney
    Bastrop County, Texas
    Texas Bar No. 24047707
    Post Office Box 12548, Capitol Station
    Austin, Texas 78711
    Tel.: (512) 936-1400
    Fax: (512) 320-8132
    Email: matthew.ottoway@texasattorney
    general.gov
    Attorneys for the State
    MOTION TO DISMISS APPLICATION FOR WRIT OF HABEAS
    CORPUS AS ABUSIVE
    Applicant Rodney Reed is a Texas inmate convicted and sentenced
    to death for the abduction, rape, and murder of Stacey Stites.                     On
    February 18, 2015—little more than two weeks before his then-scheduled
    execution of March 5, 2015—Applicant filed his seventh (sixth
    subsequent) state habeas application in the trial court. 1.SHCR-07, at
    8–.1 On February 23, 2015, this Court stayed Applicant’s execution by
    order issued in Applicant’s seventh state habeas proceeding. Order, No.
    WR-50,961-07 (Tex. Crim. App. Feb. 23, 2015). The State asks that this
    subsequent application be dismissed as abusive.2
    I.    Applicant’s litigation history
    A jury found Applicant guilty of capital murder for abducting,
    raping, and strangling to death Stacey Stites, and he was sentenced to
    1     “SHCR-07” refers to the clerk’s record for Applicant’s seventh state habeas
    proceedings. The references are preceded by volume number and followed by page
    numbers.
    2     To be clear, the State is not challenging the Court’s recently-issued stay order.
    The State is merely requesting that, when the Court considers Applicant’s seventh
    state habeas application in due course, the Court find that Applicant has not
    overcome the applicable procedural barriers to merits review and that Applicant’s
    present application be dismissed on procedural grounds.
    1
    death on May 30, 1998.          1.CR.489–493.3       Applicant’s conviction was
    affirmed on direct appeal by this Court on December 6, 2000, Reed v.
    State, No. 73,135 (Tex. Crim. App. Dec. 6, 2000) (Reed I), and the
    Supreme Court of the United States denied Applicant a writ of certiorari
    later that next year, Reed v. Texas, 
    534 U.S. 955
    (2001).
    With direct appeal pending, Applicant filed an initial application
    for state habeas relief on November 15, 1999. 2.SHCR-01/02, at 2–251.4
    A little more than a year later, Applicant filed a “supplemental claim.”
    3.SHCR-01/02, at 391–402. On February 13, 2002, this Court denied
    Applicant’s initial application on findings by the trial court sitting in
    habeas and found the “supplemental claim” to be a subsequent
    application and dismissed it as abusive. Ex parte Reed, Nos. 50,961-01,
    50,961-02 (Tex. Crim. App. Feb. 13, 2002) (Reed II).
    Applicant turned to federal court on February 13, 2003, filing a
    petition for writ of habeas corpus in the Western District of Texas, Austin
    Division. Petition for a Writ of Habeas Corpus, Reed v. Thaler, No. A-02-
    3     “CR” refers to the clerk’s record for Applicant’s capital murder trial. The
    references are preceded by volume number and followed by page numbers.
    4     “SHCR-01/02” refers to the clerk’s record for Applicant’s first and second state
    habeas proceedings. The references are preceded by volume number and followed by
    page numbers.
    2
    CV-142-LY (W.D. Tex. Sept. 26, 2012). The case was stayed and placed
    in abeyance on March 1, 2004, so that Applicant could exhaust certain
    claims through the state system. Order, Mar. 1, 2004, Reed v. Thaler,
    No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012). As described in more
    detail below, Applicant thereafter proceeded to file four additional state
    habeas applications.
    On March 29, 2005, Applicant filed his third state habeas
    application. 1.SHCR-03, at 2–343.5 On October 19, 2005, this Court
    dismissed all of Applicant’s claims as abusive, with the exception of two
    claims that were remanded to the trial court for factual development. Ex
    parte Reed, No. WR-50961-03, 
    2005 WL 2659440
    , at *1 (Oct. 19, 2005)
    (Reed III). After a live evidentiary hearing and findings from the trial
    court, this Court issued an exhaustive opinion denying relief and finding
    that Applicant’s gateway-innocence claim was not persuasive enough to
    overcome the untimeliness of his procedurally defaulted claims. Ex parte
    Reed, 
    271 S.W.3d 698
    (Tex. Crim. App. 2008) (Reed IV).
    5     “SHCR-03” refers to the clerk’s record for Applicant’s third state habeas
    proceeding. The references are preceded by volume number and followed by page
    numbers.
    3
    With his third state habeas application pending, Applicant filed his
    fourth and fifth state habeas applications on March 5, 2007, and July 16,
    2008, respectively. SHCR-04, at 2–15;6 SHCR-05, at 2–89.7 Both of these
    applications were dismissed as abusive by this Court in a single opinion.
    Ex parte Reed, Nos. WR-50,961-04, WR-50,961-05, 
    2009 WL 97260
    , at *1–
    6 (Tex. Crim. App. Jan. 14, 2009) (Reed V).
    After those proceedings terminated, Applicant filed his sixth state
    habeas application on April 21, 2009. SHCR-06, at 2–59.8 This, too, was
    dismissed as abusive by this Court. Ex parte Reed, No. WR-50961-06,
    
    2009 WL 1900364
    , at *1–2 (Tex. Crim. App. July 1, 2009) (Reed VI).
    The stay in federal district court was lifted on August 20, 2009.
    Order, Aug. 20, 2009, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.
    Sept. 26, 2012).      On June 12, 2012, a federal magistrate judge
    recommended denial of relief, Report and Recommendation of the United
    6     “SHCR-04” refers to the clerk’s record for Applicant’s fourth state habeas
    proceeding. The references are preceded by volume number and followed by page
    numbers.
    7     “SHCR-05” refers to the clerk’s record for Applicant’s fifth state habeas
    proceeding. The references are preceded by volume number and followed by page
    numbers.
    8     “SHCR-06” refers to the clerk’s record for Applicant’s sixth state habeas
    proceeding. The references are preceded by volume number and followed by page
    numbers.
    4
    States Magistrate Judge, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.
    Sept. 26, 2012), which the federal district judge largely adopted, and who
    independently denied relief on September 26, 2012, Order on Report and
    Recommendation, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept.
    26, 2012).   The federal district judge also denied or overruled all of
    Applicant’s post-judgment filings on February 4, 2013. Order, Feb. 4,
    2013, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012).
    Applicant then appealed the denial of federal habeas relief, but the
    Court of Appeals for the Fifth Circuit affirmed on January 10, 2014. Reed
    v. Stephens, 
    739 F.3d 753
    (5th Cir. 2014) (Reed VII). On March 19, 2014,
    the same court also rejected Applicant’s attempts at rehearing without
    the necessity of an internal poll.      On Petition for Rehearing and
    Rehearing En Banc, Reed v. Stephens, 
    739 F.3d 753
    (5th Cir. 2014) (No.
    13-70009). The Supreme Court of the United States denied Applicant’s
    petition for writ of certiorari from this proceeding on November 3, 2014.
    Reed v. Stephens, 
    135 S. Ct. 435
    (2014).
    5
    On February 18, 2015,9 slightly more than two weeks before his
    then-scheduled execution, Applicant filed his seventh state habeas
    application. 1.SHCR-07, at 8–84. On February 23, 2015, this Court
    stayed Applicant’s execution via an order issued in Applicant’s seventh
    state habeas proceeding. Order, No. WR-50,961-07 (Tex. Crim. App. Feb.
    23, 2015). Applicant’s seventh habeas application is now pending before
    the Court. 10
    II.   Evidence at Applicant’s trial
    Stacey Stites was a happily-engaged nineteen-year-old just
    eighteen days shy of her wedding. 43.RR.81–82, 85.                   She lived in an
    apartment complex with her police-officer fiancé, Jimmy Fennell, and her
    mother, Carol, who lived in an apartment below Stites’s, and with whom
    Stites spent her last days alive planning her upcoming nuptials.
    43.RR.81; 44.RR.51.
    9      Applicant originally filed his seventh application on February 13, 2015, but did
    not attach any exhibits; the “original” seventh application is not in the clerk’s record,
    however. On February 18, 2015, Applicant filed his “corrected” seventh application
    with the exhibits. 1.SHCR-07, at 8–84; 2.SHCR-07, at 92–255; 3.SHCR-07, at 261–
    437.
    10     Applicant also filed a Chapter 64 motion in the trial court for additional DNA
    testing and the appeal from that proceeding is also currently pending before the
    Court. See generally Reed v. State, No. AP-77,054 (Tex. Crim. App.).
    6
    Stites worked at a HEB grocery store in Bastrop, Texas—the store
    was about thirty miles from her residence in Giddings, Texas—and was
    scheduled for a 3:30 a.m. shift on April 23, 1996. 43.RR.95; 44.RR.48.
    When she did not show, a fellow employee became worried and eventually
    called Carol around 6:30 a.m. 43.RR.96, 101–02. In turn, Carol called
    Fennell, and he went to look for Stites while Carol informed authorities
    about Stites’s absence from work. 44.RR.70–71.
    Before Carol knew about Stites’s disappearance, a Bastrop police
    officer had, at 5:23 a.m., discovered the pickup truck Stites took to work—
    Fennell’s red, compact truck—seemingly abandoned in a local high school
    parking lot. 43.RR.117. Because the truck was not reported stolen, the
    officer took no further action. 43.RR.118,122. Before he left, however, he
    noticed a piece of a belt lying outside the truck. 43.RR.120.
    Later that day, Stites’s body was found off a rural road. 44.RR.18,
    21. Texas Department of Public Safety (DPS) crime laboratory personnel
    processed the scene.    44.RR.108.       They observed a partially clothed
    Stites—her shirt removed, bra exposed, and missing a shoe and an
    earring. 44.RR.113. Her pants were undone, the zipper broken, and her
    panties were bunched at her hips.            44.RR.113–14, 122. She was
    7
    discovered with work apparel—a nametag and a large knee brace.
    44.RR.128, 151.    On the side of the road was another piece of belt.
    44.RR.115.
    Because of obvious signs of rape, a DPS criminalist took vaginal
    and breast swabs from Stites’s body.      44.RR.123; 45.RR.51.     On-site
    chemical testing of a vaginal swab signaled the presence of semen.
    44.RR.124–27.     Around 11:00 p.m. that night, microscopic analysis
    showed the presence of intact sperm, which indicated recent seminal
    deposit—based on scientific articles, sperm remains whole within the
    vaginal cavity for usually no longer than twenty-six hours. 44.RR.131;
    45.RR.15–16.
    Later forensic testing matched the belt fragments to each other,
    and it appeared that the belt was torn apart, not cut, 47.RR.83–85, and
    Fennell identified the belt as Stites’s, 45.RR.102. A search of the truck
    by DPS criminalists yielded Stites’s missing shoe and earring, and the
    remnants of a smashed, plastic drinking glass. 47.RR.44–45; 49.RR.34,
    38. Additionally, the driver’s-side seatbelt was still engaged and the seat
    was angled in such a way that a 6’2’’ person could properly utilize the
    rearview mirror. 46.RR.101; 49.RR.43.
    8
    Stites’s body was autopsied the next day by Dr. Roberto Bayardo.
    48.RR.111. He observed a large mark across Stites’s neck that matched
    the pattern of her belt. 48.RR.119–20, 136–37. There were bruises on
    Stites’s arms consistent with forcible restraint, bruises on her head
    consistent with the knuckles of a fist, and bruises on her left shoulder
    and abdomen consistent with an over-the-shoulder seat belt. 48.RR.115–
    18.   Based on physical changes in the body, Dr. Bayardo estimated
    Stites’s time of death to be 3:00 a.m., give or take four hours. 48.RR.113–
    14.
    Dr. Bayardo also took vaginal swabs, in addition to oral and rectal
    swabs. 48.RR.121–23. He too observed intact sperm from a vaginal
    swab, which he stated indicated “quite recent[]” seminal deposit.
    48.RR.121–22.    There were also injuries to Stites’s anus, including
    dilation and lacerations. 48.RR.126. These were consistent with penile
    penetration inflicted at or near the time of Stites’s death—or peri-
    mortem. 48.RR.126–27. And, Dr. Bayardo, via microscopic analysis,
    thought he saw sperm heads from a rectal swab, though he acknowledged
    that chemical testing was negative for semen from this swab. 48.RR.123–
    24. He noted, however, that sperm break down quicker in the rectal
    9
    cavity than in the vaginal cavity, so the fragmented sperm further
    indicated recent seminal deposit. 48.RR.125.
    Thereafter, DPS personnel conducted DNA testing on the vaginal,
    rectal, and breast swabs, and the results indicated that the foreign DNA
    came from a single source. 49.RR.95–113. They also “mapped” Stites’s
    panties, which showed little movement after semen was deposited in her
    vaginal cavity.     44.RR.190–91; 55.RR.40.         This, too, demonstrated
    seminal deposit just before her murder. 55.RR.41.
    For approximately a year, law enforcement—state, county, and
    municipal—searched for Stites’s killer to no avail. They interviewed
    hundreds and obtained biological samples from twenty-eight males; none
    matched the foreign DNA in and on Stites. 46.RR.111–12; 49.RR.114–
    19. And none mentioned Applicant associating with Stites. 46.RR.112.
    Applicant became a suspect in Stites’s murder after he was arrested
    for kidnapping, beating, and attempting to rape and murder another
    nineteen-year-old woman, Linda Schlueter. 46.RR.122.11 Schlueter was
    abducted by Applicant approximately six months after Stites’s murder,
    11   The specific facts of Schlueter’s abduction, assault, and attempted rape and
    murder was not revealed to the jury until the punishment phase of trial.
    10
    near both the route Stites typically took to work and the time she
    disappeared—3:00 a.m.        61.RR.10, 37–47.      Moreover, Applicant was
    regularly seen in this area by Bastrop police officers in the early morning
    hours, and his home was close to where both Stites’s and Schlueter’s
    vehicles were abandoned. 50.RR.70–73, 80, 95–96. Further, Applicant’s
    height—6’2’’—aligned with the angle of the driver’s seat. 49.RR.43.
    Given these similarities, law enforcement inquired with DPS if they
    had Applicant’s DNA profile (this was pre-CODIS); they did because
    Applicant had raped a mildly intellectually disabled woman, Caroline
    Rivas. 46.RR.122–23.12 Applicant’s DNA profile was compared to the
    foreign DNA inside and on Stites’s body and the two were consistent.
    50.RR.104. Applicant was then questioned and he repeatedly denied
    knowing Stites. 48.RR.82–83. Additional biological samples were taken
    from Applicant pursuant to a search warrant. 48.RR.18, 86–92.
    More DNA testing was performed by DPS and a private laboratory
    on the new samples from Applicant and those taken from Stites’s body.
    49.RR.118–19; 50.RR.120–36, 140; 49.RR.127; 51.RR.33–34. The results
    12    Again, the underlying facts of Rivas’s physical- and sexual-abuse were not
    provided to the jury until the punishment phase of trial.
    11
    were conclusive—Applicant could not be excluded as the foreign DNA
    contributor but 99% of the world’s population could be, and one would
    only expect to see the foreign DNA profile in one person in anywhere from
    24 to 130 billion people. 49.RR.118, 122; 50.RR.144–45; 51.RR.80. But,
    just to be sure, samples were taken from Applicant’s father and three of
    his brothers, and they were ruled out as contributors too. 49.RR.123–25
    Applicant’s trial counsel attempted to counter this damning
    evidence with a two-pronged attack—they tried to blame someone else
    for the murder, and they argued that Applicant and Stites were engaged
    in a clandestine but consensual, sexual relationship.
    To prove the former, Applicant’s DNA expert testified that a hair
    found on Stites’s back did not match any of the samples gathered by law
    enforcement, and a couple of witnesses testified that they saw a white
    truck with three men in it near the area where Stites’s body was
    recovered. 51.RR.107–08, 124–25; 54.RR.50–52. The latter witnesses’
    testimony was significantly impeached. 51.RR.115, 119, 128–29.
    Trial counsel also suggested that Fennell was the murderer. Law
    enforcement interviewed Fennell several times and collected biological
    samples from him, but they never searched his apartment. 45.RR.110–
    12
    12; 46.RR.62. Fennell was eventually cleared after law enforcement
    investigated, and ruled impossible, Fennell’s ability to travel to Bastrop,
    murder Stites, and return home for Carol’s phone call within the known
    timeframes and without any sort of transportation. 46.RR.127.
    Further still, trial counsel cast suspicion on David Lawhon, a
    Bastrop resident who murdered another woman, Mary Ann Arldt, two
    weeks after Stites’s death. 46.RR.158. They called several witnesses that
    testified about a connection between Stites and Lawhon, including one
    who said Lawhon had confessed to killing Stites. 52.RR.29–31, 89. They
    were all greatly impeached—the confession witness actually told police
    someone other than Lawhon had confessed to Stites’s murder, Stites’s
    good friends testified in rebuttal that Stites never dated Lawhon, and
    Lawhon’s ex-wife testified that nothing unusual occurred around the
    time of Stites’s murder, which was different than when Lawhon
    murdered Ardlt. 52.RR.93; 54.RR.130, 138, 141–43.
    As to the secret-relationship defense, one witness testified that she
    saw Stites and Applicant talking at the grocery store, and another said
    Stites came by Applicant’s house looking for him. 51.RR.136; 53.RR.92.
    These were not credible accounts, however, as Applicant’s family were
    13
    frequent guests at the first witness’s bar, and the second witness initially
    said “Stephanie,” not “Stacey,” was looking for Applicant, and she did not
    identify Stites when shown her driver’s license photo. 51.RR.138–39;
    53.RR.92–93. The jury found Applicant guilty of two counts of capital
    murder. See also Reed 
    IV, 271 S.W.3d at 702
    –12 (providing an extensive
    recitation of the facts from Applicant’s trial).
    ARGUMENT
    I.   The standards for subsequent applications.
    A court may not consider the merits of a subsequent state habeas
    application “except in exceptional circumstances.”      Ex parte Kerr, 
    64 S.W.3d 414
    , 418 (Tex. Crim. App. 2002); Tex. Code Crim. Proc. art.
    11.071 § 5(a). Section 5(a)—the “abuse-of-the-writ” bar—was enacted to
    hasten postconviction review and discourage piecemeal litigation. 
    Id. at 418–19.
    In other words, “none of this ‘every week you file a new petition’
    which is basically what happens.” 
    Id. at 419
    (citation omitted). Thus, an
    applicant must file an application which “contains sufficient specific facts
    establishing,” Tex. Code Crim. Proc. art. 11.071 § 5(a), one of these
    “exceptional circumstances,” Ex parte 
    Kerr, 64 S.W.3d at 418
    .
    First, an applicant can prove either factual or legal unavailability
    of the claim. Tex. Code Crim. Proc. art. 11.071 § 5(a)(1). This requires
    14
    proof of unavailability during all prior state habeas applications. See Ex
    parte Campbell, 
    226 S.W.3d 418
    , 421 (Tex. Crim. App. 2007) (“[T]he
    factual or legal basis for an applicant’s current claims must have been
    unavailable as to all of his previous applications.”). Legal unavailability
    occurs when a claim “was not recognized or could not have been
    reasonably formulated from a final decision of the United States Supreme
    Court, a court of appeals of the United States, or a court of appellate
    jurisdiction of this state.” Tex. Code Crim. Proc. art. 11.071 § 5(d). In
    addition, an applicant must also make a prima facie showing of facts
    sufficient to invoke the new law. See Ex parte Brooks, 
    219 S.W.3d 396
    ,
    400 (5th Cir. 2007). This makes sense because,
    [t]o read the statute otherwise would mean that every time a
    new law is passed or precedent is set, every inmate could file
    a subsequent application for writ of habeas corpus, regardless
    of whether the newly available legal basis applied to his
    situation, and the court would have to consider the merits.
    This clearly undermines the purpose of the subsequent-writ
    provisions.
    
    Id. at 400.
         To prove factual unavailability, an applicant must
    demonstrate that the factual basis of the claim “was not ascertainable
    through the exercise of reasonable diligence.” Tex. Code Crim. Proc. art.
    11.071 § 5(e).
    15
    Second, an applicant can prove that “but for a violation of the
    United States Constitution no rational juror could have found the
    applicant guilty beyond a reasonable doubt.” Tex. Code Crim. Proc. art.
    11.071 § 5(a)(2). This requires an applicant to “make a threshold, prima
    facie showing of innocence by a preponderance of the evidence.” Reed 
    IV, 271 S.W.3d at 733
    (citation omitted). Innocence in this context is not a
    freestanding claim, but a procedural one “that does not provide a basis
    for relief, but is tied to a showing of constitutional error at trial.” Ex parte
    Franklin, 
    72 S.W.3d 671
    , 675 (Tex. Crim. App. 2002). A “claim” of this
    sort is also known as a “Schlup-type claim,” 
    id., because Section
    5(a)(2)
    “was enacted in response to” Schlup v. Delo, 
    513 U.S. 298
    (1995), Reed
    
    IV, 271 S.W.3d at 733
    .
    Third, an applicant can prove that, “by clear and convincing
    evidence, but for a violation of the United States Constitution no rational
    juror would have answered in the [S]tate’s favor one or more of special
    issues.” Tex. Code Crim. Proc. art. 11.071 § 5(a)(3). Section 5(a)(3), “more
    or less, [codifies] the doctrine found in Sawyer v. Whitley, 
    505 U.S. 333
    (1992).” Ex parte Blue, 
    230 S.W.3d 151
    , 151 (Tex. Crim. App. 2007).
    16
    II.   Applicant fails to prove entitlement to merits review of his
    claims.
    Applicant appears to raise three claims.        First, he raises a
    freestanding claim of innocence under Ex parte Elizondo, 
    947 S.W.2d 202
    (Tex. Crim. App. 1996). 1.SHCR-07, at 18, 62–68. Second, he argues that
    new scientific evidence establishes his probable innocence under Article
    11.073 of the Texas Code of Criminal Procedure. 1.SHCR-07, at 18, 68–
    75. And third, he asserts that the State presented “false, misleading, and
    scientifically invalid testimony” which, he claims, violates Ex parte
    Chabot, 
    300 S.W.3d 768
    (Tex. Crim. App. 2009). 1.SHCR-07, at 18, 75–
    82. Though not a claim, Applicant also asks that this Court to, in the
    alternative, reconsider its prior decisions regarding Applicant’s multiple,
    previous applications. 1.SHCR-07, at 18, 82–83. While Applicant briefs
    the merits of these apparent claims, he fails to discuss Section 5 at all.
    That is not surprising because Applicant does not make a sufficient
    showing to overcome the abuse-of-the-writ bar. As a result, the Court
    should dismiss Applicant’s seventh state habeas application.
    A.   Applicant fails to prove that the Court may consider
    his freestanding-innocence claim.
    A freestanding-innocence claim is also referred to as a “Herrera-
    type claim” based on Herrera v. Collins, 
    506 U.S. 390
    (1993). Ex parte
    17
    
    Franklin, 72 S.W.3d at 674
    . “[A]n exceedingly high standard applies to
    the assessment of claims of actual innocence that are not accompanied by
    a claim of constitutional error at trial.” Ex parte 
    Elizondo, 947 S.W.2d at 209
    . Thus, an applicant “must show by clear and convincing evidence
    that no reasonable juror would have convicted him in light of the new
    evidence.” 
    Id. This “is
    a Herculean task.” Ex parte Brown, 
    205 S.W.3d 538
    , 545 (Tex. Crim. App. 2006). And it requires that an applicant rely
    upon “‘newly discovered’ or ‘newly available’” evidence in making his
    freestanding claim of innocence, meaning “[h]e cannot rely upon evidence
    or facts that were available at the time of his trial, plea, or post-trial
    motions.” 
    Id. Importantly, “[a]
    claim of actual innocence is not an open
    window through which an applicant may climb in an out of the
    courthouse to relitigate the same claim before different judges at
    different times.” 
    Id. 545–46. 1.
       Applicant fails to address legal or factual
    unavailability and therefore forfeits his right to
    rely on such exceptions.
    Initially, the Court should dismiss Applicant’s freestanding-
    innocence claim because he makes no argument that it overcomes the
    abuse-of-the-writ bar. The failure to adequately brief a point of error
    18
    results in forfeiture of the issue. See Lucio v. State, 
    351 S.W.3d 878
    , 896–
    97 (Tex. Crim. App. 2011).          Thus, because Applicant does not even
    attempt to engage in the required showing for merits consideration of a
    claim in a subsequent application, this Court should summarily dismiss
    his freestanding-innocence claim.
    In any event, Applicant cannot demonstrate that he overcomes
    Section 5(a)(1), the only arguably applicable exception to his
    freestanding-innocence claim.13 To do this, Applicant must prove that
    the factual and legal bases of his claim were unavailable and that his
    Herrera-type claim is prima facie sufficient. He fails in this undertaking.
    2.    Applicant fails to prove legal unavailability.
    Applicant does not prove that the legal basis of his freestanding-
    innocence claim was unavailable when he filed his initial application or
    any of his subsequent applications. This Court’s recognition of the legal
    standard for freestanding-innocence claims predates Applicant’s initial
    13     Section 5(a)(2) does not apply to Applicant’s freestanding-innocence claim
    because Applicant does not raise “a claim of constitutional error at trial.” Ex parte
    
    Elizondo, 947 S.W.2d at 209
    . In other words, a freestanding-innocence claim cannot
    use Section 5(a)(2) as a gateway to merits adjudication because a freestanding-
    innocence claim, a Herrera-type claim, requires a showing of innocence without
    constitutional error at trial while a Schlup-type claim is always accompanied with an
    alleged trial-level constitutional error. See Ex parte 
    Franklin, 72 S.W.3d at 675
    .
    Section 5(a)(3) does not apply to Applicant’s freestanding-innocence claim
    because Applicant alleges actual innocence of his offense, not his sentence.
    19
    state habeas application. Compare Ex parte 
    Elizondo, 947 S.W.2d at 205
    (opinion issued December 18, 1996), with 1.SHCR-01, at 2–242 (initial
    application filed November 11, 1999). Indeed, Applicant has repeatedly
    asserted a freestanding claim of innocence, including in his initial
    application. See, e.g., 1.SHCR-01, at 17–18. Thus, Applicant cannot
    overcome the abuse-of-the-writ bar for his freestanding-innocence claim
    based on legal unavailability.
    3.    Applicant fails to prove factual unavailability.
    Applicant also does not prove that the facts he now asserts were
    unavailable at the time he filed his initial application or any thereafter.
    Applicant appears to rely on the following “new” evidence of “innocence:”
    opinions from three forensic pathologists, Drs. Spitz, Baden, and Riddick;
    “recantations” from two of the State’s witnesses at Applicant’s trial, Dr.
    Bayardo and Meghan Clement; and “observations” from two former
    coworkers of Sites, Alicia Slater and Lee Roy Ybarra. See 1.SHCR-07, at
    62–68. None of this evidence was unavailable when Applicant filed his
    prior applications.
    First, Applicant has had the assistance of a forensic pathologist for
    at least a decade. 1.SHCR-03, at 110–13 (Dr. Riddick’s prior affidavit
    20
    appended to Applicant’s third state habeas application). And Applicant
    filed three more state habeas applications after first presenting Dr.
    Riddick’s opinion to this Court. Clearly, Applicant has had at his disposal
    a forensic pathologist for the last four of his prior state habeas
    applications. Thus, Applicant surely cannot suggest that the factual
    basis of his freestanding-innocence claim was unavailable to him—he
    needed only to have asked his decade-long-retained forensic pathologist,
    Dr. Riddick. Applicant, in failing to provide this information earlier
    despite having access to expert assistance, fails to prove reasonable
    diligence. Cf. Ex parte Smith, 
    444 S.W.3d 661
    , 670 (Tex. Crim. App. 2014)
    (“A ten-and-a-half year delay is extraordinary.”).
    Second, there has been no recantation from Dr. Bayardo. Indeed,
    two federal courts have agreed that Dr. Bayardo’s affidavit differs only
    slightly from his trial testimony. See Reed 
    VII, 739 F.3d at 770
    (“Dr.
    Bayardo’s purported ‘disavowal’ of his trial testimony does not contradict
    much of his original testimony.”); Order on Report and Recommendation
    13, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex. Sept. 26, 2012) (“Even
    if the court were to overlook [Applicant’s] delay, it would conclude that
    Bayardo’s affidavit has little probative value.”). And, as for Clement, her
    21
    email to Applicant states that her “testimony speaks for itself and can be
    argued on its own merit.             Therefore, I won’t be sending the
    affidavit/declaration.” 2.SHCR-07, at 101. Thus, these “recantations”
    cannot be the basis of supposedly unavailable facts.
    But, further, it is clear that even if these “recantations” were truly
    reflective of about-face changes, Applicant still fails to prove diligence in
    obtaining them. Applicant first offered Dr. Bayardo’s affidavit to the
    federal   district   court   after   receiving   an   adverse   report   and
    recommendation from the federal magistrate judge. Order on Report and
    Recommendation 12, Reed v. Thaler, No. A-02-CV-142-LY (W.D. Tex.
    Sept. 26, 2012).        The federal district judge found Applicant’s
    “extraordinary delay” in presenting Dr. Bayardo’s affidavit to be
    inexcusable, 
    id. at 12–13,
    a determination upheld on appeal, Reed VII,
    
    739 F.3d 769
    n.5 (“[Applicant] has provided no persuasive reason for
    waiting well over a decade to revisit Dr. Bayardo’s testimony.”).
    Similarly, the federal district judge found the email from Clement to be
    untimely, Order 12–13, Feb. 4, 2013, Reed v. Thaler, No. A-02-CV-142-
    LY (W.D. Tex. Sept. 26, 2012), which was again upheld on appeal, Reed
    
    VII, 739 F.3d at 776
    n.12 (“This evidence is untimely and does not lend
    22
    [Applicant] any support beyond that already provided by the affidavits of
    Dr. Bayardo and Dr. Riddick.”). While these findings of untimeliness are
    not binding on this Court, they should be persuasive evidence that
    Applicant is engaging in piecemeal litigation. Indeed, it appears that
    Applicant simply had to ask Dr. Bayardo and Clement for their “new”
    opinions, see 2.SHCR-07, at 100 (Clement emailed Applicant), and could
    have done so at any time during Applicant’s six prior state habeas
    applications.   The failure to prove diligence—and the affirmative
    evidence demonstrating a lack thereof—means that Applicant cannot
    prove unavailable facts as to Dr. Bayardo and Clement. Cf. Ex parte
    
    Smith, 444 S.W.3d at 670
    .
    Third, as to the HEB employees, Applicant has provided no
    evidence that they were unavailable during any of Applicant’s prior state
    habeas proceedings. A witness testified at trial that she saw Applicant
    talking with Stites at HEB, 51.RR.136 (testimony of Julia Estes), and
    Applicant provided an affidavit in his first state habeas proceeding that
    he and Stites were seen together at HEB, 1.SHCR-01, at 233 (affidavit of
    Elizabeth Keehner, stating “it dawned on me that Stacy [sic] might be
    the girl Rodney was holding hands with at H.E.B.”), though, these
    23
    witnesses were discredited for a variety of reasons.         Accordingly,
    Applicant knew that HEB employees might be able to shed light on his
    supposedly preexisting, consensual relationship with Stites.         Yet,
    Applicant has provided this Court with no evidence that he inquired with
    these employees to establish reasonable diligence. In fact, Applicant has
    provided no additional consensual-relationship witnesses to any court
    since his initial state habeas application terminated in 2002. Hence,
    Applicant has failed to demonstrate factual unavailability with respect
    to Slater and Ybarra. Cf. Ex parte 
    Smith, 444 S.W.3d at 670
    .
    At bottom, Applicant has had the means—attorneys, investigators,
    and experts—to obtain and present the “new” evidence he now provides,
    long ago. Waiting until the last minute—about two weeks from his then-
    existing execution date—is not reasonable diligence.       Consequently,
    Applicant has failed to prove that the factual basis for his freestanding-
    innocence claim was unavailable.
    4.     Applicant fails to make a prima facie case of
    actual innocence.
    Moreover, Applicant has also failed to make a prima facie case of
    freestanding innocence even if he could prove factual or legal
    unavailability.   In order to prove a freestanding-innocence claim,
    24
    Applicant has to rely on newly available facts. See Ex parte 
    Brown, 205 S.W.3d at 545
    . This requires evidence that “could not be known to [an
    applicant] even with the exercise of due diligence.” 
    Id. Thus, much
    of
    the above unavailability discussion dovetails with the newly-available
    requirement of a freestanding-innocence claim.
    None of Applicant’s forensic pathologists indicate that their
    opinions could not have been formed at the time of Applicant’s trial.
    Accordingly, these opinions are not newly available. See Ex parte Briggs,
    
    187 S.W.3d 458
    , 465 (Tex. Crim. App. 2005) (rejecting a claim of actual
    innocence based, in part, on trial court’s findings that the medical
    evidence supporting an applicant’s claim had been available at the time
    of trial).   Moreover, as to Dr. Bayardo and Clement, they have not
    recanted their trial testimony which, in turn, means that there is nothing
    new about their recent statements. And, as to the HEB employees, there
    was testimony at Applicant’s trial that he and Stites were seen together
    at HEB but this was obviously rejected by the jury. Even accepting as
    credible all of Applicant’s “new” evidence, he has failed to prove that it is
    newly available for purposes of a freestanding-innocence claim, meaning
    he fails to make out a prima facie case of actual innocence. For this
    25
    reason, and because Applicant fails to prove factual and legal
    unavailability, the freestanding-innocence claim should be dismissed as
    failing to overcome the abuse-of-the-writ bar.
    B.    Applicant fails to prove that he qualifies to proceed
    under Article 11.073.
    Article 11.073 provides an applicant with a potential remedy
    regarding “certain scientific evidence.” Tex. Code Crim. Proc. art. 11.073.
    To take advantage of the statute, an applicant must prove that there is
    “relevant scientific evidence” that “was not available to be offered” at the
    applicant’s trial or “contradicts scientific evidence relied on by the [S]tate
    at trial.” Tex. Code Crim. Proc. art. 11.073(a)(1)–(2).
    This requires an applicant to file a state habeas application
    “containing specific facts indicating that” the “relevant scientific evidence
    is currently available and was not available at the time of the
    [applicant’s] trial because the evidence was not ascertainable through the
    exercise of reasonable diligence” and that the “scientific evidence” would
    be admissible under the Texas Rules of Evidence. Tex. Code Crim. Proc.
    art. 11.073(b)(1)(A)–(B). If those prerequisites are met, an applicant
    must show that, by a preponderance of the evidence, “had the scientific
    26
    evidence been presented at trial . . . the [applicant] would not have been
    convicted.” Tex. Code Crim. Proc. art. 11.073(b)(2).
    For purposes of the abuse-of-the-writ bar, an applicant can prove
    unavailability “if the claim or issue is based on relevant scientific
    evidence that was not ascertainable through the exercise of reasonable
    diligence by the [applicant] on or before the date on which the original
    application or a previously considered application, as applicable, was
    filed.” Tex. Code Crim. Proc. art. 11.073(c). In considering whether the
    “relevant scientific evidence” was not ascertainable, a “court shall
    consider whether the scientific knowledge or method on which the
    relevant scientific evidence is based has changed since . . . the date on
    which the original application or a previously considered application, as
    applicable, was filed, for a determination made with respect to a
    subsequent application.” Tex. Code Crim. Proc. art. 11.073(d)(1)–(2).
    1.    Applicant does not prove that there were facts
    unavailable to him.
    Applicant does not even attempt to prove that there were facts
    unavailable for purposes of this claim. Thus, the Court should find this
    argument to be waived. See 
    Lucio, 351 S.W.3d at 896
    –97. And, as
    discussed above, so far as his “facts” are based on forensic pathology, he
    27
    has had the assistance of a forensic pathologist for over a decade. 
    See supra
    Argument(II)(A)(2). He cannot demonstrate factual unavailability
    and it should not be a basis for overcoming the abuse-of-the-writ-bar.
    2.     Applicant fails to make a prima facie showing of a
    change in scientific knowledge or method.
    Applicant tries to partake of Article 11.073 by claiming that Dr.
    Bayardo has changed his opinion.                1.SHCR-07, at 69–73.            But, as
    explained above, Dr. Bayardo has not actually changed his opinion from
    the time of trial. Thus, even assuming that an expert’s change of heart
    is sufficient to invoke Article 11.073, see Ex parte Robbins, No. WR-
    73,484-02, 
    2014 WL 6751684
    , at *10 (Tex. Crim. App. Nov. 26, 2014),
    reh’g filed (Tex. Crim. App. Dec. 18, 2014),14 Dr. Bayardo’s affidavit is
    insufficient to fall within Article 11.073’s ambit.                 A point-by-point
    analysis of Dr. Bayardo’s affidavit shows why.
    At trial, Dr. Bayardo estimated that Stites, “[b]ased on changes that
    occur after death in the body,” died “around 3:00 a.m. on April 23, 1996.”
    48.RR.113–14.        Dr. Bayardo made clear that time of death was an
    educated guess because there is “not a precise scientific way of making a
    14     The State, here, adopts the arguments of the State’s motion for rehearing in
    Ex parte Robbins, in that an expert’s re-evaluation of their prior opinion is insufficient
    to prove a change in scientific knowledge or method.
    28
    determination of the time of death, we can only make estimates.”
    48.RR.113. In his affidavit, Dr. Bayardo says his “estimate of time of
    death, again, was only an estimate.” 2.SHCR-07, at 96. He also states
    that “pinpointing a precise time of exactly when Ms. Stites died would
    have been, and remains, impossible.” 2.SHCR-07, at 96. There is nothing
    different in Dr. Bayardo’s affidavit than what he testified to, and it
    certainly does not demonstrate a reversal of opinion.
    Dr. Bayardo testified that the discovery of morphologically intact
    spermatozoa—heads with attached tails—indicated “that this semen was
    placed in the vagina quite recently.”        48.RR.121–22.     On cross-
    examination, trial counsel noted that Dr. Bayardo had found “there were
    few spermatozoa [with] heads and tails” and clarified with Dr. Bayardo
    that this meant that “intercourse happened a day or two before the
    exam.” 48.RR.144. Dr. Bayardo now states, “in my professional opinion,
    the spermatozoa I found in Ms. Stites’s vaginal cavity could have been
    deposited days before her death.” 2.SHCR-07, at 96 (emphasis added).
    Again, Dr. Bayardo’s testimony is in accord with his affidavit and, again,
    this is not a reversal of opinion.
    29
    In Dr. Bayardo’s testimony at trial, he stated that chemical testing
    of the rectal swabs from Stites’s body “was reported as negative,”
    although “[t]here was a little bit of a reaction but not enough to call it
    positive.” 48.RR.123. Upon microscopic examination of slides created
    from the rectal swabs, Dr. Bayardo saw “several spermatozoa heads, but
    because they were no longer attached to the tails, or the tails were not
    visible, it was reported as negative.”      48.RR.124.    And, on cross-
    examination, Dr. Bayardo agreed that “other biological material” could
    look like sperm heads and said that “it’s not possible to be a hundred
    percent sure that there is sperm there.” 48.RR.146. In his affidavit, Dr.
    Bayardo affirmed that he testified in the manner above and reiterated
    that he “reported the smear[-slides] as negative on the autopsy report.”
    1.SHCR-07, at 97. Dr. Bayardo’s affidavit on this topic is no different
    than his trial testimony and, thus, Applicant fails to prove withdrawal of
    his opinion.
    As to sexual-organ injuries, Dr. Bayardo testified that he saw no
    injuries to Stites’s vagina but he saw dilation and lacerations of Stites’s
    anus that he concluded were peri-mortem. 48.RR.125–27.          On cross-
    examination, Dr. Bayardo was asked if he contended that “the presence
    30
    of sperm . . . is a result of non-consensual sexual intercourse.” 48.RR.145.
    Dr. Bayardo answered “[n]o,” and clarified that the peri-mortem injuries
    combined with the presence of sperm caused him to state that the sexual
    intercourse was non-consensual.        48.RR.145.     Dr. Bayardo, in his
    affidavit, notes that there were no injuries to “Stites’s vaginal cavity” and
    reaffirms that “Stites was sexually assaulted in her anal cavity.”
    2.SHCR-07, at 97–98. Once again, Dr. Bayardo’s affidavit is not an
    about-face of his trial testimony.
    Because Dr. Bayardo has not changed his opinion, Applicant cannot
    show any change sufficient to invoke the process of Article 11.073. And,
    to the extent that Applicant asks this Court to consider Drs. Spitz and
    Baden’s affidavits under Article 11.073, see 1.SHCR-07, at 73–74, those
    affidavits are entirely devoid of assertions that there has been any
    change in the “scientific knowledge or method” of forensic pathology as it
    applies to the issues Applicant now raises. As such, Applicant has failed
    to make a prima facie showing that there has been a change in the
    “scientific knowledge or method” since his last (or any) state habeas
    application. Tex. Code Crim. Proc. art. 11.073(c). His claim must be
    dismissed as a result.
    31
    C.    Applicant fails to prove that his false-evidence claims
    can be considered on the merits.
    This Court has recognized a due-process violation when the State
    unknowingly uses false evidence. See, e.g., Ex parte Ghahremani, 
    332 S.W.3d 470
    , 478 (Tex. Crim. App. 2011). An applicant must first prove
    that the evidence he or she challenges is false. 
    Id. at 477.
    If an applicant
    makes this showing, the applicant must then prove that, by a
    preponderance of the evidence, “the error contributed to his conviction or
    punishment.” Ex parte Napper, 
    322 S.W.3d 202
    , 242 (Tex. Crim. App.
    2010).
    1.    Applicant does not discuss any exception to the
    abuse-of-the-writ bar and, therefore, he should
    not be permitted to rely on them.
    At the outset, the Court should dismiss Applicant’s unknowing-use-
    of-false-evidence claim because he does not provide any briefing on
    overcoming the abuse-of-the-writ bar. Inadequately briefed points of
    error results are considered forfeited. See 
    Lucio, 351 S.W.3d at 896
    –97.
    Thus, because Applicant fails to engage in the required showing for
    merits consideration of a claim in a subsequent application, this Court
    should summarily dismiss his unknowing-use-of-false-evidence claim.
    32
    2.    Applicant fails to prove legal unavailability.
    As stated above, in order to prove legal unavailability, an applicant
    must prove that the legal rule “was not recognized or could not have been
    reasonably formulated from a final decision of the United States Supreme
    Court, a court of appeals of the United States, or a court of appellate
    jurisdiction of this state.”   Tex. Code Crim. Proc. art. 11.071 § 5(d).
    Applicant fails to make this showing.
    On December 9, 2009, this Court handed down Ex parte Chabot,
    which held that the State’s unknowing use of false evidence could violate
    the Due Process 
    Clause. 300 S.W.3d at 769
    . This case was handed down
    after the last of Applicant’s prior subsequent applications was dismissed.
    Nonetheless, Ex parte Chabot’s legal foundation was decided before
    Applicant filed his fourth, fifth, and sixth state habeas applications.
    In Ex parte Chabot, this Court explicitly held that “[b]ased on our
    decision in [Ex parte] Carmona, [
    185 S.W.3d 492
    (Tex. Crim. App. 2006),]
    we agree with the convicting court that the circumstances of the present
    case merit a finding that the applicant’s due-process rights were violated,
    notwithstanding the absence of the State’s knowledge of the perjured
    testimony at the time of 
    trial.” 300 S.W.3d at 772
    (emphasis added). By
    33
    relying upon Ex parte Carmona, which was decided on March 1, 2006, to
    find a due-process violation in Ex parte Chabot, the Court was necessarily
    “agree[ing]” that the legal basis of an unknowing-use-of-false-evidence
    claim “could . . . have been reasonably formulated from a final decision
    of . . . a court of appellate jurisdiction of this state.” Tex. Code Crim. Proc.
    art. 11.071 § 5(d); but see Ex parte Chavez, 
    371 S.W.3d 200
    , 206–07 (Tex.
    Crim. App. 2012) (holding that Ex parte Chabot was a new legal basis).
    Moreover, holdings from the United States Court of Appeals for the
    Second Circuit prove that the unknowing-use-of-false-testimony claim
    could “have been reasonably formulated from a final decision of . . . a
    court of appeals of the United States.” Tex. Crim. Proc. art. 11.071 § 5(d).
    For example, in Ortega v. Duncan, the Second Circuit granted federal
    habeas relief when the inmate proved that “eyewitness” testimony
    presented at his trial was false. 
    333 F.3d 102
    , 104 (2d Cir. 2003). It
    summarized the law as follows:
    We have held that a showing of perjury at trial does not
    in itself establish a violation of due process warranting habeas
    relief. Instead, when false testimony is provided by a
    government witness without the prosecution’s knowledge, due
    process is violated only “if the testimony was material and ‘the
    court [is left] with a firm belief that but for the perjured
    testimony, the defendant would most likely not have been
    convicted.’”
    34
    
    Id. at 108
    (alteration in original) (footnotes omitted) (quoting United
    States v. Wallach, 
    935 F.2d 445
    , 456 (2d Cir. 1991)). This standard is
    practically indistinguishable from Ex parte Chabot. In Ex parte Chabot,
    it did not matter whether prosecutors knew the falsity of the evidence,
    just like in Ortega. And in Ex parte Chabot, the Court adopted a “more
    likely than not” standard, virtually identical to the “most likely” standard
    used in Ortega. It is beyond clear that the legal basis of Ex parte Chabot
    could have been formulated by “a court of appeals of the United States”
    at least as early as June 17, 2003, and most likely well before that date,
    which means it could have been formulated, at the very least, before
    Applicant’s third, fourth, fifth, and sixth state habeas applications. But
    see Ex parte 
    Chavez, 371 S.W.3d at 206
    –07. Thus, Applicant cannot rely
    on an unknowing-use-of-false-evidence claim as an unavailable legal
    basis.
    3.    Applicant fails to prove factual unavailability.
    The same analysis for purposes of Applicant’s freestanding-
    innocence claim applies here—none of Applicant’s “new” “facts” were out
    of his reach had he simply used reasonable diligence.            
    See supra
    Argument II(A)(3).    In short, Applicant has had the assistance of a
    35
    forensic pathologist for over a decade and his latest forensic-pathology-
    related affidavits do not indicate that they are based on recent advances
    in medical science. 
    See supra
    Argument II(A)(3). Applicant, therefore,
    cannot rely upon factual unavailability to overcome the abuse-of-the writ
    bar.
    4.    Applicant does not prove gateway innocence or
    innocence of his death sentence nor does he make
    a prima facie case of unknowing use of false
    evidence.15
    This Court has previously considered and extensively analyzed the
    bulk of Applicant’s evidence, or the same category of evidence, in
    rejecting his Schlup-type claims throughout his multiple state habeas
    applications. For the most part, then, the “law of the case” doctrine
    applies. See State v. Swearingen, 
    424 S.W.3d 32
    , 35–36 (Tex. Crim. App.
    2014) (describing the law-of-the-case doctrine). Here, because “the facts
    and legal issues are virtually identical” to Applicant’s prior state habeas
    applications, the present decision “should be controlled by [this Court’s]
    previous resolution[s].” 
    Id. at 36.
    Nonetheless, the State will address all
    of Applicant’s contentions.
    15     Applicant’s unknowing-use-of-false-evidence claim is largely supported by
    evidence that Applicant believes proves his innocence. Thus, the State addresses
    these two issues—gateway innocence and prima facie showing—together.
    36
    As to the proper-timing inference to be drawn from morphologically
    intact sperm, 1.SHCR-07, at 76–79, Applicant previously argued this
    point to the Court and provided it with studies showing that
    morphologically intact sperm can remain in a vaginal cavity for up to ten
    days, calling the State’s evidence on this topic “patently false.” Reed 
    IV, 271 S.W.3d at 745
    . This Court held that “even if we assume that Blakley
    [sic] and Dr. Bayardo underestimated the length of time that sperm will
    remain intact, we conclude that, given the other evidence in this case,
    [Applicant] has failed to meet his burden.” 
    Id. at 750.
    The decision today
    should be no different than it was six years ago.
    Indeed, Applicant provides the Court with more of the same type of
    evidence—sperm can possibly last longer than 24 to 26 hours in the
    vaginal cavity.16 But Applicant’s description of the trial testimony is
    myopic. When Blakely testified, she stated that intact sperm within
    16    In federal court, Applicant attached medical literature to his habeas petition
    containing the following statements: “The longest time recorded for spermatozoa is
    120 hours and for those with tails the record is 26 hours” and “[n]on-motile
    spermatozoa are found usually for seven to 12 hours after coitus; in exceptional
    instances, such sperm have been found for 18 to 24 hours.” Second Amend. Pet. Ex.
    36, at 136, ECF No. 137-7; Second Amend. Pet. Ex. 37, at 514, ECF No. 137-7
    (emphasis added). Unsurprisingly, Applicant does not append these studies, which
    demonstrate probability of finding intact sperm instead of possibility, to his current
    application.
    37
    Stites’s vaginal cavity indicated “recent” deposit. 45.RR.13–14. When
    asked about the deposit timeframe, Blakely stated she had “published
    documentation that says that 26 hours is about the outside length of time
    that tails will remain on a sperm head inside the vaginal tract of the
    female.”   45.RR.16.     Trial counsel questioned Blakely about the
    “published documentation” by “Mr. Willot and Allard” and she conceded
    that “components of semen” could be found up to 120 hours within the
    vaginal cavity. 45.RR.16–17. On recall, Blakely also conceded that she
    had found studies “where sperm was found in a body after 16 days.”
    55.RR.35–36.
    Clement testified that, based on her experience, she did not recall
    “finding intact sperm more than . . . 20 to 24 hours . . . from the time of
    the sexual assault [to] the time the collection was made.” 51.RR.56. This
    is entirely consistent with her email—“My testimony did not address the
    length of time sperm can last in the body based on literature or opinions
    but rather, my experience in observation of intact sperm on rape kit items
    based on the length of time from an alleged incident to the time of kit
    collection.” 2.SHCR-07, at 100. Indeed, Clement’s email “clarification”
    38
    is, practically, the same as her trial testimony, which is most likely why
    she stated, “the testimony speaks for itself.” 2.SHCR-07, at 101.
    Further, Dr. Bayardo testified that intact sperm meant “quite
    recent[]” deposit, saying that deposit could have been two days before the
    autopsy. 48.RR.121–22, 144. Considering all of the trial evidence, the
    possibility that sperm could remain morphologically intact longer than
    26 hours was before the jury and they still found Applicant guilty (most
    likely because Applicant’s evidence of a consensual relationship was
    weak—and has always been weak—so there was no reason why
    Applicant’s sperm should have been anywhere in Stites’s body at any
    time). Applicant fails to make a showing that his intactness-of-sperm
    evidence proves gateway innocence or a prima facie case of falsity.17
    As to anal injuries, 1.SHCR-07, at 79–80, Applicant takes issue
    with Dr. Bayardo’s testimony that anal dilation occurs “very late in the
    stages of body decomposition, and that usually occurs 4 or 5 days.”
    1.SHCR-07, at 79 (quoting 48.RR.142).               This, too, was previously
    17     Also, Applicant necessarily cannot make out a prima facie case of harm for his
    unknowing-use-of-false-evidence claim. That is because the standard for such a claim
    is “more likely than not” test, see Ex parte 
    Chabot, 300 S.W.3d at 772
    , which is the
    same “more likely than not” standard utilized in the Schlup-type claim already
    rejected by this Court concerning the timing inferences to be drawn from
    morphologically intact sperm, see Reed 
    IV, 271 S.W.3d at 733
    .
    39
    addressed by the Court when Applicant claimed that, after rigor mortis
    passes, “dilation of the anus [becomes] easier, whether by finger, swab,
    or another object.” Reed 
    IV, 271 S.W.3d at 743
    . It rejected Applicant’s
    contention, holding that “opinions that there is no evidence that Stacey’s
    anus was dilated and that it cannot be concluded with any degree of
    scientific certainty that Stacey’s anus was lacerated merely presents
    differing opinions that a jury could reject.” 
    Id. at 748.
    Moreover, beyond
    medical evidence, there was “[c]ompelling, independent circumstantial
    evidence show[ing] that [Applicant] forced Stacey to have vaginal
    intercourse.” 
    Id. at 748–49.
    Additional evidence presenting nothing
    more than what this Court has already seen should be met with the same
    response—dismissal.
    Additionally, Applicant’s current evidence does not actually provide
    a timeframe in which one would expect to see anal dilation—he only
    provides evidence that medical examiners may mistake anal dilation as
    evidence of penetration. See 2.SHCR-07, at 106, 143, 187. The possibility
    that Dr. Bayardo misinterpreted anal dilation as penile penetration is
    not affirmative evidence of anything, let alone gateway innocence or
    falsity.   And, in any event, there was “[c]ompelling, independent
    40
    circumstantial evidence show[ing] that [Applicant] forced Stacey to have
    vaginal intercourse.” Reed 
    IV, 271 S.W.3d at 748
    –49. Again, Applicant
    fails to prove a prima facie case of false evidence or gateway innocence.18
    Finally, Applicant tries to claim that the punishment-phase
    testimony of Royce Smithey was false. 1.SHCR-07, at 80–82. Smithey,
    the chief investigator for the Special Prosecution Unit, testified that,
    based on his experience, a hypothetical person with Applicant’s past
    would “present a threat or a danger to other” general population inmates.
    63.RR.64–66. On cross-examination, Smithey admitted that his answer
    to the hypothetical was not that Applicant “could not comport his
    behavior to the institution.” 63.RR.68–69. He further admitted that
    violent individuals have been sent to Texas prisons and then not
    committed additional acts of violence. 63.RR.69, 74.
    Applicant tries to pigeonhole Smithey’s testimony into future-
    dangerousness predictions made by psychologists and then call it false.
    See Coble v. State, 
    330 S.W.3d 253
    , 270–80 (Tex. Crim. App. 2010). But
    cases like Coble did not demonstrate such evidence was false, it was just
    18     Again, Applicant also fails to prove prima facie harm from the supposedly false
    evidence of anal injuries because the substance of the alleged falsity has already been
    rejected by this Court using the same test—“more likely than not.” 
    See supra
    Note
    17.
    41
    not admissible under the Texas Rules of Evidence. 
    Id. at 279–80.
    And,
    Smithey’s testimony was not a scientific prediction of future behavior,
    but a reasonable opinion that someone with Applicant’s violent past could
    be dangerous to other general population inmates. Thus, Applicant does
    not make a prima facie case of falsity.
    In any event, the punishment case against Applicant was
    overwhelming. In addition to the abduction, rape, and murder of Stites,
    Applicant emotionally, physically, and sexually abused numerous other
    women. First was Connie York, a nineteen-year-old who had come home
    late one evening after swimming with friends. 57.RR.34–35. Applicant
    grabbed York from behind and told her “don’t scream or I’ll hurt you.”
    57.RR.35–36. When York did not listen, Applicant repeatedly struck her,
    dragged her to her bedroom, and raped her multiple times. 57.RR.37–42.
    Next was A.W., a twelve-year-old girl, who was home alone, having
    fallen asleep on a couch after watching TV. 58.RR.36–42. A.W. awoke
    when Applicant began pushing her face into the couch and blindfolded
    and gagged her. 58.RR.42–43. Applicant repeatedly hit A.W. in the head,
    called vulgar names, and orally, vaginally, and anally raped her.
    58.RR.43–49. When A.W. accidentally bit Applicant’s penis during forced
    42
    oral copulation, Applicant returned to vaginally raping A.W., grabbed her
    head, and repeatedly bit her face. 58.RR.47.
    Then came Lucy Eipper, the mother of two of Applicant’s children.
    59.RR.13–14, 19–20 Throughout their on-and-off relationship, Applicant
    physically abused Eipper, including while she was pregnant, and raped
    her “all the time,” including once in front of their two children. 59.RR.14–
    17, 21, 25–32. Applicant rarely paid child support, he never sent his
    children presents, and eventually his parental rights were terminated.
    59.RR.37–38; SX.155, at 3.
    Afterwards, Applicant began “dating” Caroline Rivas, a mildly
    intellectually disabled woman. 60.RR.39–41. Rivas’s caseworker noticed
    bruises on Rivas’s body and, when asked about them, Rivas admitted that
    Applicant would hurt her if she would not have sex with him. 60.RR.41,
    61. Later, Rivas’s caseworker noticed that Rivas was walking oddly and
    sat down gingerly. 60.RR.43. Rivas admitted that Applicant had, the
    prior evening, hit her, called her vulgar names, and anally raped her.
    60.RR.44, 63–65.
    Shortly thereafter, and about six months before Stites’s murder,
    Applicant raped Vivian Harbottle underneath a train trestle as she was
    43
    walking home. 59.RR.87–92. When she pleaded for her life for the sake
    of her children, Applicant laughed at her. 59.RR.94.
    Finally, and about six months after Stites’s murder, Applicant
    convinced nineteen-year-old Linda Schlueter to give him a ride home at
    about 3:30 a.m. 61.RR.10, 37–47. Applicant led her to a remote area and
    then attacked her. 61.RR.47–58. After a prolonged struggle, Schlueter
    asked Applicant what he wanted from her and Applicant responded, “I
    want a blow job.” 61.RR.60. When Schlueter told Applicant that “you
    will have to kill me before you get anything,” Applicant stated “I guess
    I’ll have to kill you then.” 61.RR.60. Before Schlueter could be raped and
    murdered, a car drove by and Applicant fled. 61.RR.62–64.
    In addition, Applicant was found guilty of felony theft, SX.127, he
    admitted to using illegal drugs, SX.155, at 3, and he sold crack cocaine
    on multiple occasions, 61.RR.86–95. Applicant also behaved poorly while
    incarcerated—he did not follow jail rules, he fought with other inmates,
    and he threatened a guard. 65.RR.169.
    Finally, a psychological evaluation of Applicant stated what is
    obvious from his crimes—Applicant was superficially socially facile,
    angry, resentful, impulsive, and violent.     65.RR.157–58.    He had a
    44
    personality disorder, likely Antisocial or Histrionic.        65.RR.159–61.
    Accordingly, even if Smithey’s testimony was false, which it was not,
    Applicant does not make a prima facie case that it affected his sentence
    whatsoever or that he is actually innocent of his death sentence. This
    claim should therefore be dismissed.
    5.    Applicant’s evidence unrelated to a particular
    claim does not prove gateway innocence.
    If Applicant desires to have all of his evidence considered for
    purposes of a Schlup-type claim tied to his unknowing-use-of-false-
    evidence claims, though he does not specifically request it, he still fails to
    prove gateway innocence.
    As mentioned above, the vast majority of the evidence now
    presented by Applicant has already been considered by the Court, either
    specifically or in like kind. Challenges to collection of evidence and
    possible cross-contamination of DNA, 1.SHCR-07, at 24, have already
    been rejected by this Court, Reed 
    IV, 271 S.W.3d at 750
    . Evidence that
    Fennell was deceptive, jealous, and violent, 1.SHCR-07, at 27–35, and
    purportedly had accomplices, 1.SHCR-07, at 35–37, has been rejected as
    well by this Court, Reed VI, 
    2009 WL 1900364
    , at *1–2; Reed V, 
    2009 WL 97260
    , at *1–5; Reed 
    IV, 271 S.W.3d at 747
    . Further, evidence of a
    45
    clandestine, consensual relationship between Applicant and Stites,
    1.SHCR-07, at 38–41,19 has also been rejected by this Court, Reed 
    IV, 271 S.W.3d at 748
    –50. And so has evidence regarding the timing inference
    to be drawn from intact sperm, 1.SHCR-07, at 41–42, 55, the evidence of
    anal injuries, 1.SHCR-07, at 42–43, 56–58, the presence of sperm in
    Stites’s rectum, 1.SHCR-07, at 43, and whether there was saliva on
    Stites’s breasts, 1.SHCR-07, at 44, been rejected by the Court too, Reed
    
    IV, 271 S.W.3d at 748
    –50. Applicant’s evidence simply reiterating these
    already-rejected challenges does nothing to undermine the Courts prior
    determinations.
    Applicant now relies on time-of-death estimates from Drs. Spitz,
    Baden, and Riddick, to argue that the State’s timing theory was off.
    1.SHCR-07, at 47–58. But this, too, is simply more of the same. Dr.
    19     Applicant claims that his assertion of a consensual-relationship has been
    “consistent.” 1.SHCR-07, at 38. This blatantly ignores that he denied knowing Stites
    when questioned by law enforcement. 48.RR.82–83. And it also ignores that
    Applicant had never, under oath, provided details of his “consensual” relationship
    with Stites until he filed his affidavit with his Chapter 64 motion. Thus, there was
    nothing with which Applicant’s almost twenty-year-delayed affidavit could be
    compared to in order to determine consistency. Moreover, Applicant references
    several individuals in his latter-day affidavit in an attempt to bolster its credibility,
    but this Court has already found that these individuals lack credibility. See Reed 
    IV, 271 S.W.3d at 735
    –37, 746 (Kay Westmoreland and Chris Aldridge). This obviously
    undermines Applicant’s own credibility and so does the significantly belated nature
    of the affidavit. 
    Id. at 750
    (finding witnesses lacking in credibility because of their
    late disclosure).
    46
    Riddick, in Applicant’s third state habeas application, asserted that Dr.
    Bayardo’s time-of-death estimate was scientifically unreliable because
    certain measurements were not taken from Stites’s body upon discovery,
    including “rigor mortis, post mortem lividity, and body temperature,” and
    “whether that lividity was blanchable.” 1.SHCR-03, at 111. Because of
    this, “it was too late for accurate assessments” of such conditions “to
    produce a reliable determination of time of death.” 1.SHCR-03, at 111.
    Now, Drs. Spitz and Baden argue that they can make an accurate
    time-of-death estimate, 2.SHCR-07, at 104–06, 141–44, but they fail to
    address Dr. Riddick’s—Reed’s own, longtime expert’s—prior assertions
    that no accurate time-of-death estimate could ever be made, 2.SHCR-03,
    at 111–12. And Dr. Riddick has not backed away from this opinion
    either—“[c]urrently in forensic practice, there is no scientific means of
    determining [time of death] with precision.” 2.SHCR-07, at 182. Indeed,
    Dr. Spitz seems to agree with this proposition as well, though he
    mentions it not in his affidavit—“[i]n conclusion, none of the methods
    used in establishing the time of death are totally reliable and
    mathematically precise. Dogmatic and pinpoint accuracy in this matter
    is clearly not achievable.” Spitz and Fisher’s Medicolegal Investigation
    47
    of Death 127, (Werner U. Spitz & Daniel J. Spitz eds., 4th ed. 2004).20
    Ultimately, Applicant has “merely present[ed] differing opinion that a
    jury could reject,” Reed 
    IV, 271 S.W.3d at 748
    , and this does not prove
    gateway innocence, or even suggest it.
    Moreover, Applicant’s new timing theory contradicts his other
    attempts to dispute the State’s theory of the case. In his first state
    habeas application, he disputed the 3:00 a.m. time-of-death estimate
    because an individual, Robert Curtis, saw a “pickup matching in
    description to the vehicle driven by Ms. Stites on the morning of her
    disappearance at around 2:50 to 3:00 AM,” with two people in it.
    1.SHCR-01, at 8.       And, in his third application, Applicant relied on
    “[e]yewitness information from Martha Barnett that she had seen Stacy
    and Fennell the morning that Stacey was murdered,” specifically
    between 4:45 to 5:30 a.m. thereby attempting to undermine the 3:00 a.m.
    time-of-death estimate. Reed 
    IV, 271 S.W.3d at 716
    –17, 720; 1.SHCR-03,
    at 28 (“Several hours after the time that the State’s experts say Ms. Stites
    20    Dr. Baden is a contributor to this treatise as well. Spitz and Fisher’s
    Medicolegal Investigation of Death vii, (Werner U. Spitz & Daniel J. Spitz eds., 4th
    ed. 2004).
    48
    had died, Martha Barnett saw Fennell with Ms. Stites on the morning of
    the murder.”).
    Although Applicant does not ask this Court to consider his prior
    evidence, which he used in an attempt to overturn his conviction, the
    Court should consider both the “old and new,” and the Court should also
    reaffirm its earlier finding:
    [W]e note that what separates this case from the majority of
    gateway-innocence cases is the complete lack of a cohesive
    theory of innocence. [Applicant’s] claim of innocence is
    seriously disjointed and fragmented—he presents numerous
    alterative but critically incomplete theories. By focusing on a
    romantic relationship between himself and Stacey as well as
    pointing to several alternative suspects—Fennell, Lawhon,
    and some unknown dark-skinned man—the new evidence
    before us fails to tell a complete, rational exculpatory
    narrative that exonerates [Applicant].
    Reed 
    IV, 271 S.W.3d at 746
    . In this sense, Applicant’s attack on the time-
    of-death estimate, now contradicting his own prior evidence, is more of
    the same scattershot approach and it undermines his gateway-innocence
    case.
    Further, Applicant’s new theory of “innocence” requires the Court
    to conveniently accept Fennell’s testimony that he was alone with Stites
    after about 8:00 p.m. on April 23, 1996, but reject all of his other
    testimony. This, too, is inconsistent with Applicant’s prior evidence. As
    49
    mentioned above, Applicant alleged that Stites was possibly seen at 2:50
    to 3:00 a.m. by Robert Curtis, 1.SHCR-01, at 8, or seen by Barnett
    between 4:45 to 5:30 a.m, Reed 
    IV, 271 S.W.3d at 716
    –17, 720.          In
    addition, Applicant, in his third state habeas application, claimed that
    Jennifer and Brenda Prater spotted Stites in the early morning of her
    murder, between 1:00 and 3:00 a.m (which is also inconsistent with
    Applicant’s current time-of-death estimate). 
    Id. at 741–42.
    Thus, if the
    Court is to engage in selective credibility determinations, like Applicant
    requests, it is just as easy for the Court to believe that Stites was not
    with Fennell in the early morning of her murder, which means that the
    new time-of-death estimate does not inculpate Fennell. But this still
    leaves the Court with the same facts which doom Applicant’s gateway-
    innocence case—if there is no credible evidence of a consensual
    relationship, and there is none, then Applicant’s sperm and DNA should
    not be on and in Stites physically- and sexually-abused body at any time.
    Ultimately, Applicant’s attempt to cherry-pick facts that now
    support his latest theory of “innocence” should not be tolerated, and his
    omission of prior, contradictory evidence, which he proffered in an
    attempt to overturn his conviction, should be considered and held against
    50
    him as undermining his “new” time-of-death gateway-innocence case,
    which he clearly fails to prove with reliable evidence.
    Besides the “new” evidence from forensic pathologists, Applicant
    relies on two former HEB employees—Slater and Ybarra—who state they
    knew of the “secret,” romantic relationship between Applicant and Stites.
    2.SHCR-07, at 235–37, 241–42. This Court should find these affiants as
    lacking credibility.
    Slater, a then-high school student and part-time HEB employee,
    asserts that Stites confided in her that, while the two were having lunch,
    she was cheating on her fiancé with a “black guy named Rodney and that
    she didn’t know what her fiancé would do if he found out.” 2.SHCR-07,
    at 236. That is patently unbelievable. If Stites was truly afraid that
    Fennell would find out about her supposed affair with Applicant, why
    would she tell a teenaged high school student and part-time co-worker
    about the affair?
    Moreover, Slater admits that she talked to the Bastrop Police in
    connection with Stites’s murder but failed to mention the secret-affair
    information and admits that she did not “remember telling anyone about
    the information that Stacey shared with me.” 2.SHCR-07, at 236. She
    51
    also admits that, in 2003, she was talking to a friend about Stites’s
    murder but did “not tell her anything about what I knew.” 2.SHCR-07,
    at 236. Instead, Slater admits that the first time she approached anyone
    was when she read a Facebook post about Applicant’s then-upcoming
    execution date. She claims to have called the Bastrop District Attorney’s
    Office but does not “recall leaving a message.”     2.SHCR-07, at 237.
    Instead of follow-up with law enforcement, Slater sought out those
    aligned with Applicant. 2.SHCR-07, at 237. Slater’s ridiculous tale, her
    admitted lack of forthrightness, her alignment with Applicant’s defense
    team, and her nearly two-decades-long delay amply prove that she is not
    worthy of belief. See Reed 
    IV, 271 S.W.3d at 750
    –51 (finding delay in
    coming forward as undermining reliability).
    Ybarra, another former HEB employee, claims to have seen Stites
    talking with a “young black man” at HEB and that these interactions
    would put her “in a good mood.” 2.SHCR-07, at 241. Ybarra then claims
    to have known that Stites was seeing “this same black man” while
    engaged to a “police officer” but he does not explain how he knew this.
    2.SHCR-07, at 241. Further, he asserts that Stites would “become a
    52
    nervous wreck” when her fiancé visited the HEB. 2.SHCR-07, at 241.
    Ybarra’s tale is also unworthy of belief.
    Ybarra identifies the “young black man” as Applicant based on a
    single photograph in a single newspaper article. 2.SHCR-07, at 241. This
    is the same type of single-photo-identification long-condemned by the
    Supreme Court as inherently unreliable. See Simmons v. United States,
    
    390 U.S. 377
    , 383 (1968) (“This danger [of incorrect identification] will be
    increased if the police display to the witness only the picture of a single
    individual who generally resembles the person he saw, or if they show
    him the pictures of several persons among which the photograph of a
    single such individual recurs or is in some way emphasized.”). And
    Ybarra provides no details about how he knew Stites was engaged in an
    affair or had a police-officer fiancé. See Reed IV, 271 S.3d at 747 (finding
    an affiant lacking in credibility because he “offer[ed] no specific facts that
    have been or could be corroborated”).
    In addition, the fact that Ybarra was living in a relatively small
    town and that his former employer, HEB, offered $50,000 for information
    leading to the identification of Stites’s murderer, makes it all the more
    unbelievable that Ybarra has not come forward in the nearly two decades
    53
    since Stites’s murder, except, only to talk to “a television crew.” 2.SHCR-
    07, at 241–42. Ybarra is also not worthy of belief. See Reed 
    IV, 271 S.W.3d at 750
    –51 (finding delay in coming forward as undermining
    reliability).
    Ultimately, Applicant must come forward “with reliable evidence”
    to make a persuasive Schlup-type claim. Reed 
    IV, 271 S.W.3d at 733
    .
    This    includes   “exculpatory   scientific   evidence   [or]   trustworthy
    eyewitness accounts.” 
    Id. The only
    arguably “new” evidence Applicant
    brings forward is his unscientific time-of-death estimates and his
    untrustworthy consensual-relationship affiants. This evidence is not the
    type of “reliable evidence” needed to mount an effective gateway-
    innocence case and this Court should reject it and dismiss Applicant’s
    seventh state habeas application.
    D.   Applicant fails to demonstrate why this Court should
    reconsider its prior opinions.
    This Court interpreted Rule 79.2(d) of the Texas Rules of Appellate
    Procedure as allowing reconsideration of its past habeas dispositions
    without temporal limit. See Ex parte Moreno, 
    245 S.W.3d 419
    , 427 (Tex.
    Crim. App. 2008). Reconsideration is appropriate only “under the most
    54
    extraordinary,” 
    id., or “compelling
    circumstances,” 
    id. at 428.
    This Court
    has noted its hesitancy to exercise such authority, however:
    We should and will be extremely hesitant ever to exercise our
    authority to reconsider a decision on an initial post-conviction
    habeas corpus application, particularly after the passage of a
    substantial number of years. In almost every instance, the
    State’s legitimate interest in the repose and finality of
    convictions—even its interest in punishment as weighty and
    irrevocable as the death penalty—will be substantial indeed
    and ought not to be disturbed, even in the face of a reasonable
    and good faith argument that our disposition on original
    submission was “incorrect.”
    
    Id. at 429.
    In this case, there is nothing extraordinary or compelling that
    requires reconsideration.
    First, Applicant is not seeking reconsideration of only his “initial
    post-conviction habeas corpus application,” but every one of his six prior
    applications, all of which this Court thoroughly reviewed. Reed VI, 
    2009 WL 1900364
    , at *1–2; Reed V, 
    2009 WL 97260
    , at *1–6; Reed 
    IV, 271 S.W.3d at 701
    –50.      Reconsideration after having been provided six
    opportunities in state court, not to mention thorough federal-court
    analysis of his claims, which found this Court’s decisions to be objectively
    reasonable, should weigh even more heavily against reconsideration.
    Second, Applicant comes to this Court more than five years after it
    dismissed the last of his six state habeas applications. And, as discussed
    55
    above, all of the evidence he now relies upon could have been discovered
    with reasonable diligence. 
    See supra
    Argument II(A)(3), (B)(1), (C)(3).
    Indeed, this Court has previously found Applicant to have engaged in
    “piecemeal” litigation, Reed V, 
    2009 WL 97260
    , at *1, which should
    significantly counsel against reopening any of Applicant’s prior state
    habeas applications.
    Finally, Applicant has failed to prove that this Court was incorrect
    in any of its prior decisions. His “new” evidence is more of the same and
    none of it is any more believable than what he has previously provided.
    Applicant has been provided a bevy of resources, abundant opportunity,
    and ample time to attack his conviction. His lack of success is not because
    this Court or the federal courts were in any way wrong, but because his
    evidence is weak and because his guilt is strong.        Thus, the State
    respectfully urges the Court to decline Applicant’s invitation to
    reconsider its denials and dismissals of Applicant’s prior state habeas
    applications and let finality have its day.
    56
    PRAYER FOR RELIEF
    The State respectfully requests that the Court find that Applicant
    has not met any exception to the abuse-of-the-writ bar or demonstrated
    that any of his prior state habeas applications warrants reconsideration
    and, therefore, the State respectfully requests dismissal of Applicant’s
    seventh state habeas application.
    Respectfully submitted,
    BRYAN GOERTZ
    Criminal District Attorney
    Bastrop County, Texas
    /s/ Matthew Ottoway
    MATTHEW OTTOWAY
    Assistant Criminal District Attorney/
    Assistant Attorney General
    Texas Bar No. 24047707
    Post Office Box 12548, Capitol Station
    Austin, Texas 78711
    Tel.: (512) 936-1400
    Fax: (512) 320-8132
    Email: matthew.ottoway@texasattorney
    general.gov
    Attorneys for the State
    57
    CERTIFICATE OF SERVICE
    I do hereby certify that a true and correct copy of the foregoing
    pleading was served by placing same in the United States mail, postage
    prepaid, on this the 6th day of March, 2015, addressed and electronically
    sent to:
    Bryce Benjet                      Mark S. Chehi
    40 Worth Street, Suite 701        Robert A. Weber
    New York, New York, 10013         Jason M. Liberi
    bbenjet@innocenceproject.org      Nicole A. DiSalvo
    Andrew G. Mirsis
    Andrew F. MacRae                  SKADDEN, ARPS, SLATE, MEAGHER &
    LEVATINO PACE LLP                       FLOM LLP
    1101 S. Capital of Texas Hwy.     One Rodney Square, P.O. Box 636
    Building K, Suite 125             Wilmington, Delaware 19899
    Austin, Texas 78746               mchehi@skadden.com
    amacrae@levatinopace.com          robert.weber@skadden.com
    /s/ Matthew Ottoway
    MATTHEW OTTOWAY
    Assistant Criminal District Attorney/
    Assistant Attorney General
    58