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Click here for the full text of this decision The parties are ordered to brief the issue of whether this court should modify the Powers abstention doctrine to permit consideration of the merits of a subsequent writ, not otherwise barred by Texas Code of Criminal Procedure Article 11.071 �5, if the federal court having jurisdiction over a parallel writ enters an order staying its proceedings to allow the applicant to return to the appropriate Texas courts to exhaust his state remedies. FACTS:The applicant was convicted of capital murder in 1981 and sentenced to death. This court affirmed that conviction on direct appeal. On April 8, 1996, this court denied the applicant’s first writ of habeas corpus. On Aug. 7, 1997, the U.S. District Court denied applicant relief on his federal writ which was based upon claims previously exhausted in his first state writ. On Dec. 21, 2000, a panel of the 5th U.S. Circuit Court of Appeals granted the applicant a certificate of appealability on three of his habeas claims and granted relief on one of his claims. An en banc 5th Circuit vacated this decision on July 29, 2002, and remanded the case to the 5th Circuit panel to consider the merits of the remaining issues for which it had granted the certificate of appealability. That case is still pending in federal court. On June 13, 2003, applicant filed his current application for writ of habeas corpus in the 232nd District Court of Harris County. This is a subsequent writ in which applicant alleges two new claims: 1. “Mr. Soffar is an individual with mental retardation, and, pursuant to the Supreme Court’s recent ruling in Atkins v. Virginia, 536 U.S. 304 (2002), the execution of a death sentence against Mr. Soffar by the State of Texas would violate the Eighth and Fourteenth Amendments to the United States Constitution”; and 2. “[S]ince Mr. Soffar filed his prior petition for habeas corpus relief, new evidence has emerged that demonstrates that Mr. Soffar is actually innocent of the murders for which he was convicted and sentenced to death. Thus, Mr. Soffar’s conviction and sentence violate the Fourteenth Amendment.” HOLDING:The court holds the motion in abeyance and orders the parties to brief the following issue: whether the Powers abstention doctrine (Ex parte Powers, 487 S.W.2d 101 (Tex. Crim. App. 1972)) should be modified to permit the consideration of the merits of a subsequent writ, which is not otherwise barred by Texas Code of Criminal Procedure Article 11.071 �5, if the federal court with jurisdiction over a parallel writ enters an order staying its proceedings to allow the applicant to return to the appropriate Texas courts to exhaust his state remedies. The abstention doctrine in both federal and state courts and the exhaustion doctrine in federal courts complement each other and are designed to achieve the jurisprudential goals of comity, efficiency and expediency. On the whole, they work well to give state prisoner habeas applicants one, and only one, full and fair opportunity to litigate constitutional claims sequentially, first in state court and, if relief is denied there, then in federal court. However, because of the strict one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act of 1996, 28 U.S.C. �2244(d)(1), there is at least one class of cases in which the normal application of these salutary doctrines may lead to unintended and unfortunate consequences. That situation is when the Supreme Court announces a “watershed” procedural or substantive change in the law which applies retroactively to all cases, even those on collateral review. Atkins v. Virginia, 536 U.S. 304 (2002), would seem to be one such case, the court states. The problematic scenario is one in which a death-sentenced writ applicant had exhausted his writ claims in state court and had timely filed his writ application in federal court. While the federal writ was pending, the Supreme Court announced its decision in Atkins. Assuming that Atkins applies retroactively, a death row inmate who might fall within the definition of mentally retarded is faced with this dilemma under the federal AEDPA and the current Texas abstention doctrine: 1. he may temporarily ignore the Atkins claim and continue his federal writ; 2. he may file his Atkins claim in the federal district court even though it is unexhausted; or 3. he may file his Atkins claim in the Texas convicting court as a subsequent writ. None of these choices is entirely satisfactory, the court states. OPINION:Per curiam.

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