Moreno, Ex Parte Jose Angel

• Court: Court of Criminal Appeals of Texas
• Decided: August 22, 2007
• Docket: AP-75,748
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,748 EX PARTE JOSE ANGEL MORENO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 1986-CR1042 FROM THE

227th DISTRICT COURT OF BEXAR COUNTY

Per Curiam. Hervey, J., not participating.

ORDER

On May 10, 2007, we granted applicant a stay of execution to reconsider, on our own initiative, a Penry-based claim that had been raised and rejected during his original writ application.

We now file and set this claim to decide, among other things,

(1) What jurisdiction does this Court have to reconsider, on its own motion, a previously denied habeas claim when the applicant subsequently filed his state-exhausted claims concerning the same conviction in federal courts?

(2) At the time this Court denied applicant's first application in 2000, was his Penry-based claim based on "clearly established" law? Was his claim available in 2003 when he filed his second, Atkins-based claim?

(3) What is the legal significance of the fact that the remedy that applicant had requested at trial was a jury-nullification instruction?

(4) Did applicant demonstrate, in his original application for habeas corpus relief, that he was entitled to prevail on the merits of his Penry-based claim?

We order the parties to brief these and any other related issues concerning applicant's claim number 10. All briefs, including amicus briefs, must be submitted to this Court within sixty days from the date of this Order.

IT IS SO ORDERED THIS THE 22^ND DAY OF AUGUST, 2007.

Do Not Publish