Carpenter, David Lynn ( 2018 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-49,656-06
EX PARTE DAVID LYNN CARPENTER
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NO. F9777949-U IN THE 291 ST JUDICIAL DISTRICT COURT
DALLAS COUNTY
Per curiam.
ORDER
This is a subsequent application for a writ of habeas corpus filed pursuant to the
provisions of Texas Code of Criminal Procedure Article 11.071, section 5.1
Applicant was convicted in March 1999 of capital murder committed in August 1991.
T EX. P ENAL C ODE A NN. § 19.03(a). Based on the jury’s answers to the special issues set
1
Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal
Procedure.
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forth in the Texas Code of Criminal Procedure, Article 37.071, sections 2(b) and 2(e), the
trial court sentenced him to death. Art. 37.071, § 2(g). This Court affirmed applicant’s
conviction and sentence on direct appeal. Carpenter v. State, No. AP-73,442 (Tex. Crim.
App. Oct. 24, 2001) (not designated for publication).
Applicant filed his initial habeas application in the trial court on August 30, 2000.
This Court denied relief. Ex parte Carpenter, No. WR-49,656-01 (Tex. Crim. App. Dec. 19,
2001) (not designated for publication). Applicant then filed a petition for a writ of habeas
corpus in federal district court. Carpenter v. Davis, No. 3:02-CV-01145 (N. D. Tex. March
13, 2003). On July 18, 2003, while the federal petition was pending, applicant filed his first
subsequent state writ application. We dismissed that application. Ex parte Carpenter, No.
WR-49,656-02, slip op. at 2 (Tex. Crim. App. Oct. 1, 2003) (not designated for publication)
(“This Court will not consider this request for relief so long as relief is being sought in
federal court.”). The federal district court then stayed the proceedings. Carpenter, No. 3:02-
CV-01145, Docket No. 39.
Applicant filed his second subsequent application on April 19, 2004. Following
remand, we denied relief. Ex parte Carpenter, No. WR-49,656-03 (Tex. Crim. App. March
7, 2007) (not designated for publication). Applicant filed his third subsequent application
with the trial court on Dec. 16, 2010. We dismissed it as subsequent. Ex parte Carpenter,
No. WR-49,656-04 (Tex. Crim. App. May 11, 2011) (not designated for publication).
Applicant filed his fourth subsequent application on May 22, 2014. We dismissed it as
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subsequent. Ex parte Carpenter, No. WR-49,656-05 (Tex. Crim. App. Oct. 8, 2014).
Applicant then filed this fifth subsequent application for writ of habeas corpus in the
convicting court on Nov. 20, 2017. In compliance with Article 11.071, section 5(b)(1), the
convicting court forwarded this application to this Court.
This application includes six allegations. Attempting to meet the requirements of
Article 11.071, section 5, applicant asserts that he has new scientific evidence in support of
his claim concerning eyewitness-identification expert testimony, placing the allegation within
the ambit of Article 11.073. Applicant asserts that his Brady2 and false testimony claims
meet the exceptions of Article 11.071, section 5(a). Applicant also urges this Court to reach
the merits of his ineffective assistance of trial counsel claims. He asserts that previous
habeas counsel was ineffective for failing to raise them, and he argues that we should
overrule Ex parte Graves, 70 S.W.3d 103, 113 (Tex. Crim. App. 2002), in which we held that
claims of ineffective assistance of prior habeas counsel are not cognizable in post-conviction
writ proceedings. Applicant urges us to apply the rationale of Martinez v. Ryan, 132 S. Ct.
1309, 1320 (2012), and Trevino v. Thaler, 133 S. Ct. 1911, 1920-21 (2013), to state habeas
proceedings. Those cases held that the rules of procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective assistance of trial counsel if state
law requires, as a practical matter, that such claims be raised in an initial-review collateral
proceeding and counsel in that proceeding was ineffective for failing to raise the claim.
2
Brady v. Maryland, 373 U.S. 83, 87 (1963).
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A review of applicant’s prior writ applications demonstrates that he actually raised his
current claims, or substantially similar claims relying on the same scientific and factual bases,
in his previous applications. Only his Brady and false testimony allegations concerning
eyewitness Whittal have not been raised in a previous application. But these claims fail to
“allege sufficient specific facts that, if proven, establish a federal constitutional violation
sufficiently serious as to likely require relief from his conviction or sentence.” See Ex parte
Campbell, 226 S.W.3d 418, 422 (Tex. Crim. App. 2007).
We have reviewed this subsequent application and find that the allegations fail to meet
the requirements of Article 11.071, section 5 and Article 11.073. Therefore, we dismiss this
application as an abuse of the writ without considering the merits of the claims. Art. 11.071,
§ 5(c).
IT IS SO ORDERED THIS THE 28TH DAY OF MARCH, 2018.
Do Not Publish