No. EX PARTE IN THE TEXAS COURT OF CRIMINAL APPEALS and THE CRIMINAL DISTRICT COURT NO. 2 RODERICK D. NEWTON, OF DALLAS COUNTY, TEXAS Applicant STATE'S MOTION TO DISMISS, IN PART, NEWTON’S SUBSEQUENT APPLICATION FOR WRIT OF HABEAS CORPUS The State of Texas, through the Criminal District Attorney of Dallas County, files this motion to dismiss, in part, Newton’s subsequent writ application in his death penalty case. Newton raises two new claims and reasserts two claims previously asserted in federal court. The State moves to dismiss claims one (Atkins), three (incompetency to stand trial), and four (ineffective representation at punishment) for failure to comply with Texas Code of Criminal Procedure article 11.071, section 5, The State joins in Newton’s motion for stay of execution to litigate the second claim (Brady). 1 Procedural Background ‘Newton is confined pursuant to a judgment and sentence of the Criminal District Court No. 2 of Dallas County, Texas, Cause No. F99-36618-HI. He was convicted and sentenced to death for the intentional murder of Jesus Montoya in the course of a robbery, alleged to have been committed on March 8, 1999. The case was affirmed on direct appeal in 12002. Newton v. State, No. 73,778 (Tex. Crim. App. June 12, 2002) (unpublished). In 2003, the Texas Court of Criminal Appeals denied habeas relief. Ex parte Newton, No. 54,073-01 (Tex. Crim. App. Jan. 15,2003) (unpublished). The federal district court denied habeas relief in 2007. See Newton v. Quarterman, No. 3:03-CV-01770-K ECF, 2007 U.S. Dist. LEXIS 22418 (N.D. Tex. Mar. 28, 2007) (unpublished). In 2008, the United States Court of Appeals for the Fifth Circuit denied Newton’s certificate of appealability. Newton v. Quarterman, No. 07-70022, 272 Fed. Appx. 324, 2008 U.S. App. LEXIS 6814 (5th Cir. Mar. 31, 2008) (unpublished). The United States Supreme Court denied certiorari in October of 2008. Newton v. Quarterman, 129 S.Ct. 286 (2008). Newton’s execution is presently scheduled for July 23, 2009. I, for Relief: Brady Issue Second ‘The State joins in Newton’s request for a stay on this issue onl Newton has alleged that the State failed to disclose a “view questionnaire” filled out by co-defendant Julian Williams while in police custody. Newton further claims that, had the defense been aware of this questionnaire and been able to use it in the cross-examination of Williams, a jury would have acquitted him. On June 24, 2009, at the request of Newton’s writ counsel, David Finn, District Attorney employees interviewed Julian Williams about the circumstances surrounding his plea bargain agreement with the State. During the interview, Williams incidentally mentioned a “first statement” to police, which he said was “trash” and which the police threw away 2because they recognized it as such. The undersigned attorney subsequently conducted an investigation into the matter and learned that Williams had filled out “view questionnaire” for the police before giving two voluntary statements. See Writ Exhibit 5. In July 2009, this questionnaire was found in the police file, but copies were not found in the District Attorney’ files, and the reporter’s record does not reflect that the defense team knew about it or used it to cross-examine Williams at trial. ‘The State agrees that this newly discovered evidence of a possible Brady violation satisfies the requirements for a subsequent writ application under article 11.071, section 5(a)(1) and joins in Newton’s request for a stay of execution on this issue alone. The State does not agree or admit to any of the facts asserted in the writ application except that (1) the questionnaire was in possession of the police at the time of trial, and (2) the reporter's record does not reflect that it was known or used by the defense at trial. The State asks this Court to set a reasonable deadline for the resolution of this claim and the filing of the trial court's findings and conclusions. tl. First Claim for Relief: Atkins Issue A. This claim should be dismissed because it was available when Newton filed his original writ. Newton next claims that his execution is Atkins barred. See Atkins v. Virginia, 536 US. 304 (2002). A court may not consider an Atkins claim raised in a subsequent application for writ of habeas corpus unless that claim was legally unavailable on the date the original