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Ex parte Alba

John Avalos Alba's habeas claim - that the chemical protocol used for lethal injection is unconstitutional because it may cause unnecessary pain - is not cognizable under Texas Code of Criminal Procedure Art. 11.071. Court of Criminal Appeals, No. AP-75,510.

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Meyers, J., announced the judgment of the Court and delivered an opinion in which Keller, P.J., and Keasler, and Hervey, JJ., joined. Cochran, J., filed a concurring opinion in which Womack, J., joined. Price, J., filed a dissenting opinion. Johnson, J., filed a dissenting opinion in which Holcomb, J., joined.

OPINION

Applicant was found guilty of capital murder and, pursuant to the jury’s answers to the special issues, the trial court assessed a sentence of death. In Alba v. State, 905 S.W.2d 581 (Tex. Crim. App. 1995), we affirmed the conviction and sentence. Applicant then filed an application for writ of habeas corpus, which we denied. In 2000, the Fifth Circuit reversed Applicant’s sentence and remanded the case for a new sentencing hearing. Based on the second jury’s answers to the special issues, Applicant was again sentenced to death. We affirmed the sentence on appeal and again denied habeas relief. Applicant did not raise claims related to the lethal-injection procedure until he filed for federal habeas corpus relief. As a result, the federal district court determined that the claim was unexhausted and ordered Applicant to raise the issue in state court. Accordingly, Applicant filed this subsequent application for writ of habeas corpus, claiming that the chemical protocol used for lethal injection is unconstitutional because it may cause unnecessary pain. We filed and set this case to determine whether a claim that the lethal-injection protocol may violate the constitutional rights of the condemned is cognizable in a writ of habeas corpus under Texas Code of Criminal Procedure Article 11.071.*fn1 We hold that it is not and dismiss the application.

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