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Click here for the full text of this decision FACTS:Defendant’s 1981 conviction for capital murder was affirmed by the Court of Criminal Appeals in 1987. The CCA denied defendant’s first habeas corpus petition in 1996. In 2000, a panel of the 5th U.S. Circuit Court of Appeals dismissed defendant’s claims that were exhausted in his state writ but allowed three others and issued a certificate of appealability. The full 5th Circuit vacated that decision in 2002 on a claim having to do with the 5th Amendment and remanded the case back to the panel to consider the merits of the rest of the issues allowed by the certificate of appealability. That action is still pending. Meanwhile, defendant filed another writ of habeas corpus in a Harris County trial court, raising two new allegations, including a mental retardation claim under Atkins v. Virginia, 536 U.S. 304 (2002). The state moved to dismiss the application as an abuse of the write, claiming that defendant had failed to meet the requirements of C.C.P. Art. 11.071, �5. This court asked both parties to brief the question, which bears on this court’s jurisdiction to hear defendant’s appeal: “Whether the Powers abstention doctrine should be modified to permit the consideration of the merits of a subsequent writ, which is not otherwise barred by 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. HOLDING:Defendant’s writ dismissed without prejudice. The Powers doctrine, based on Ex parte Powers, 487 S.W.2d 101 (Tex.Crim.App. 1972), says that state habeas applications should be dismissed when the applicant also has a writ pending in the federal courts that relates to the same conviction or same matter. The doctrine, also called the “two forums” rule, was adopted on principles of comity. Since 1972, federal and state statutes have significantly narrowed defendants’ ability to file post-conviction writs, thereby eliminating many of the problems created by the piece-meal post-conviction writ process in place at the time of Powers. The 5th Circuit has since questioned the breadth of the Powers doctrine when this court has refused to consider habeas claims even when the parallel federal procedures have been held in abeyance. Such a practice ultimately thwarts the underlying policy of writs of habeas corpus that if “claims are meritorious, relief should be speedy.” Now, owing to a strict one-year statute of limitations in the Anti-Terrorism and Effective Death Penalty Act of 1996, application of the Powers doctrine “may lead to unintended and unfortunate consequences.” This problem is highlighted when the U.S. Supreme Court announces a “watershed” procedural or substantive change in law, such as the Atkins decision. “The Powers doctrine worked well in an era in which there were no federal or state time limits within which to bring habeas corpus writs and no limit upon the number of writs an applicant could file. The court believes, however, that judicially created doctrines may, and sometimes should, be modified when they no longer serve the jurisprudential interests for which they were originally crafted. The court therefore modifies the Powers abstention doctrine to permit consideration of the merits of a subsequent writ, not otherwise barred by article 11.071, � 5, if the federal court having jurisdiction over a parallel writ enters an order staying all of its proceedings for the applicant to return to the appropriate Texas court to exhaust his state remedies. The defendant in this case has not asked the federal court to stay his federal proceeding (in fact, he filed another petition for a writ just two days before the court’s order to the parties to brief the Powers doctrine issue). If the federal court grants his petition, he state petition would become moot. Therefore, because no federal court has entered an order staying all proceedings in defendant’s parallel federal write, the defendant’s state court writ is dismissed without prejudice. OPINION:Per curiam.

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