EX PARTE JOHN LEZELL BALENTINE (other)

ON APPLICATION FOR POST-CONVICTION WRIT OF HABEAS CORPUS AND MOTION FOR STAY OF EXECUTION

FROM CAUSE NO. 39,532 IN THE 320TH JUDICIAL DISTRICT COURT

POTTER COUNTY

This is a subsequent application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071, 5.

In April 1999, a jury found applicant guilty of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure Article 37.071, and the trial court, accordingly, set applicant's punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Balentine v. State, 71 S.W.3d 763 (Tex. Crim. App. 2002). Applicant filed his initial post-conviction application for writ of habeas corpus in the trial court on January 22, 2001. This Court denied relief. Ex parte Balentine, No. WR-54,071-01 (Tex. Crim. App. Dec. 4, 2002)(not designated for publication). Applicant's subsequent application was filed in the trial court on August 21, 2009.

Applicant presents two allegations in his application. In the first allegation, applicant asserts that he was deprived of his Sixth Amendment right to effective assistance of trial counsel because counsel failed to adequately investigate, develop, and present mitigation evidence in the punishment phase of the trial. In his second allegation, applicant asserts that the prosecution unconstitutionally exercised peremptory challenges on two venire persons in violation of Batson v. Kentucky, 476 U.S. 79 (1986). We have reviewed the application and find that his allegations fail to satisfy the requirements of Article 11.071 5. Accordingly, applicant's application is dismissed, and his motion to stay his execution is denied. Likewise, applicant's motion to vacate the judgment rendered in his initial state writ application is denied, and the Court otherwise declines to reconsider that case.

IT IS SO ORDERED THIS THE 22ND DAY OF SEPTEMBER, 2009.

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