Garcia v. Sanchez (793 F. Supp. 2d 866, 2011)

MEMORANDUM OPINION AND ORDER DENYING TEMPORARY RESTRAINING ORDER AND DISMISSING AMENDED COMPLAINT

ORLANDO L. GARCIA, District Judge.

Plaintiff Humberto Leal Garcia has filed an amended complaint and motion for temporary restraining order pursuant to Title 42 U.S.C. Section 1983 and the Supreme Court’s recent holding in Skinner v. Switzer, — U.S. -, 131 S.Ct. 1289, 179 L.Ed.2d 233 (2011), seeking an order from this Court directing officials with the Bexar County Clime Lab to turn over to plaintiffs representatives certain items of clothing and vaginal swabs introduced into evidence during petitioner’s July, 1995 capital murder trial for additional DNA testing. For the reasons set forth at length hereinafter, principally because the presence of additional DNA from third parties on any of the material in question would not be probative or material on the issue of plaintiffs guilt or innocence, plaintiff is not entitled to any relief from this Court pursuant to Section 1983.

I. Section 1983 is the Proper Vehicle for Obtaining Post-Iudgment DNA Testing

In Skinner v. Switzer, the Supreme Court held an action filed pursuant to Title 42 U.S.C. Section 1983 is an appropriate means for obtaining post-judgment DNA testing in a criminal case. Skinner v. Switzer, — U.S. at -, 131 S.Ct. at 1298. Thus, Leal Garcia has chosen an appropriate means to obtain testing of the DNA found in vaginal swabs, clothing, and other items introduced into evidence during his 1995 capital murder trial.

II. Procedural History

The problem facing Leal Garcia is not the type of legal action he has chosen to pursue; rather, it is the simple fact that, under the facts and circumstances of his offense, there is not even a remote possibility additional DNA testing of the items in question will produce any evidence probative or material on the issue of plaintiffs guilt or innocence of the charge of capital murder.

Pursuant to Rule 201, Fed.R.Evid, this Court hereby takes judicial notice of the contents of all the pleadings, motions, and state court records filed in, or submitted to, this Court in connection with plaintiffs previous federal habeas corpus proceedings, as well as the contents of all orders and opinions issued by this Court in those same proceedings, i.e., cause nos. SA-99CA-1301-RF and SA-07-CA-214-RF.

A. Overview of Previous State and Federal Habeas Actions

In July, 1995, a Bexar County jury convicted plaintiff of capital murder in connection with the May, 1994 kidnaping, aggravated sexual assault, and bludgeoning death of 16-year-old Adria Sauceda. The Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence in an unpublished opinion. Leal v. State, No. 72,210 (Tex.Crim.App. February 4, 1998), cert. denied, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999).

Sometime during calendar year 1997, petitioner notified the Mexican government of his capital murder conviction and sentence of death. Petition for a Writ of Habeas Corpus, filed March 14, 2007 in cause SA-07-CA-214-RF, docket entry no. 1, at p. 6.

In September, 1997, petitioner filed his first application for state habeas corpus relief. The state habeas trial court held several days of evidentiary hearings on petitioner’s application in October and November, 1998. In an Order issued April 23,1999, the state habeas trial court issued its findings of fact, conclusions of law, and recommendation that petitioner’s first state habeas corpus application be denied. The Texas Court of Criminal Appeals subsequently denied petitioner’s first state habeas corpus application in an unpublished order, based on the state habeas trial court’s findings and conclusions. Ex parte Humberto Leal, Jr., App. No. WR-41,743-01 (Tex.Crim.App. October 20,1999).

On March 13, 2000, under the name “Humberto Leal, Jr.,” petitioner filed his first federal habeas corpus petition in this Court challenging his capital murder conviction and death sentence. At no time during that proceeding did petitioner request a stay so he could return to state court and seek further DNA testing in connection with his case. This Court denied petitioner’s request for federal habeas corpus relief, rejecting on the merits all of petitioner’s myriad assertions of ineffective assistance by his trial counsel and denying petitioner a Certificate of Appealability (“CoA”). Leal v. Dretke, 2004 WL 2603736, *34 (W.D.Tex. October 20, 2004). On October 13, 2005, the Fifth Circuit denied petitioner’s request for a CoA. Leal v. Dretke, 428 F.3d 543, 553 (5th Cir.2005). The United States Supreme Court denied petitioner’s petition for a writ of certiorari on April 17, 2006. Leal v. Dretke, 547 U.S. 1073, 126 S.Ct. 1771, 164 L.Ed.2d 522 (2006).

Petitioner filed his second state habeas corpus application, arguing therein that he was entitled to relief from his capital murder conviction and sentence of death by virtue of the determination on March 31, 2004 by the International Court of Justice at the Hague (henceforth “ICJ”) in the case of Avena and Other Mexican Nationals (Mexico v. United States of America) that the United States of America had failed to fulfill its treaty obligations under Article 36 of the Vienna Convention with regard to petitioner and numerous other Mexican citizens then on death row in various jurisdictions throughout the United States. See Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.A), No. 128, 2004 I.C.J. 12, 2004 WL 2450913 (March 31, 2004)(henceforth “Avena”). The Texas Court of Criminal Appeals summarily dismissed petitioner’s second state habeas corpus petition pursuant to the Texas writ-abuse statute. Ex parte Humberto Leal, App. No. WR-41,743-02, 2007 WL 678628 (Tex.Crim.App. March 7, 2007).

On March 14, 2007, under the name “Humberto Leal Garcia,” petitioner filed his second federal habeas corpus action in this Court challenging his July, 1995 Bexar County capital murder conviction and sentence and asserting the same legal arguments premised upon the Avena decision he had raised in his second state habeas corpus application. In a Memorandum Opinion and Order issued by Judge Royal Furgeson, this Court concluded (1) petitioner’s second federal habeas corpus action was precluded by virtue of the failure of petitioner therein to first obtain permission for the filing of what was essentially a successive federal habeas corpus petition from the Fifth Circuit in accordance with Title 28 U.S.C. § 2244(b)(3) or, alternatively, (2) petitioner’s Avena claim lacked merit because (a) petitioner had voluntarily furnished police a written statement implicating himself in Sauceda’s murder prior to petitioner being placed in custodial detention (thus, the Vienna Convention was inapplicable to petitioner’s written statements to police) and (b) the most inculpatory evidence introduced during petitioner’s capital murder trial consisted was wholly unrelated to petitioner’s written statements, i.e., (1) excited utterances made by petitioner’s brother Gualberto suggesting petitioner had arrived home covered in blood and muttering about having killed a girl, (2) evidence showing Sauceda had fought her attacker violently and the presence of many wounds on petitioner’s upper body, (3) the undisputed evidence showing petitioner was the last person seen with Sauceda when she was alive and the close proximity in time and space between petitioner’s departure with Sauceda from the party and the discovery of Sauceda’s battered body nearby, (4) the presence of blood inside and outside petitioner’s vehicle, and (5) forensic evidence linking multiple bite marks found on Sauceda’s body to petitioner’s unique dental pattern. Leal v. Quarterman, 2007 WL 4521519 (W.D.Tex. December 17, 2007). The Fifth Circuit subsequently (1) rejected this Court’s conclusion petitioner’s second federal habeas corpus petition was subject to dismissal pursuant to Section 2244, (2) concluded this Court erred in alternatively reaching the merits of petitioner’s Avena claim, but (3) nonetheless denied relief on the merits based upon the Supreme Court’s then-recent opinion in Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008). Leal Garcia v. Quarterman, 573 F.3d 214, 224-25 (5th Cir.2009).

In 2008, plaintiff filed a motion pursuant to Chapter 64 of the Texas Code of Criminal Procedure requesting post-conviction DNA testing of a wide variety of items of physical evidence relating to his capital offense. The state trial court denied same without holding a hearing. Plaintiff appealed. The Texas Court of Criminal Appeals affirmed the trial court’s denial of plaintiffs motion, concluding plaintiff had failed to demonstrate that additional testing of the materials in question would establish by a preponderance of the evidence that plaintiff would not have been convicted. Leal v. State, 303 S.W.3d 292, 301-02 (Tex.Crim.App.2009).

B. This Action

On December 1, 2009, plaintiff filed this action pursuant to Title 42 U.S.C. § 1983, asserting rather vaguely defined Fourth, Eighth, and Fourteenth Amendment claims and seeking (1) a declaratory judgment compelling officials of Bexar County, Texas to produce plaintiffs underwear for further DNA examination, (2) an order requiring the same officials to release “biological material” requested by plaintiff, in-eluding the aforementioned underwear, and (3) attorneys fees. In a Memorandum Report and Recommendation issued December 17, 2009, the Magistrate Judge concluded, under Fifth Circuit precedent, plaintiff was not entitled to declaratory or injunctive relief. In an Order issued April 21, 2010, this Court adopted the Magistrate Judge’s recommendation and dismissed this cause without prejudice.

On May 18, 2010, following the Supreme Court’s issuance of its holding in Skinner v. Switzer, supra, plaintiff filed a motion to alter or amend judgment and, a week later, a motion requesting a stay. On July 28, 2010, this Court granted plaintiffs request for a stay pending the Supreme Court’s decision in Skinner v. Switzer, supra. On March 7, 2011, the Supreme Court handed down its decision in Skinner v. Switzer, abrogated Fifth Circuit case law, and held a prisoner may employ Section 1983 to seek post-conviction DNA testing of crime scene evidence. Skinner v. Switzer, — U.S. at-, 131 S.Ct. at 1298.

On April 8, 2011, plaintiff filed a supplemental brief in support of his motion to alter or amend judgment. On June 10, 2011, plaintiff filed a motion for a hearing. On June 13, 2011, plaintiff filed an amended complaint in which he again requested declaratory and injunctive relief granting him access to his underwear and the cuttings of his underwear which the State’s expert had testified at trial contained blood matching Sauceda’s. On June 14, 2011, plaintiff filed a motion for temporary restraining order arguing therein that, without access to the underwear and cuttings from his underwear, he will be denied “any chance to present a meaningful and complete clemency petition or successive post-conviction application based on his innocence of capital murder and will likely be executed without the opportunity to do so.”

III. The Issues

A. Section 1988 Generally

Title 42 U.S.C. Section 1983 permits private individuals to sue state actors to enforce constitutional rights as well as right created by federal statutes. Anderson v. Jackson, 556 F.3d 351, 356 (5th Cir.2009); Energy Management Corp. v. City of Shreveport, 467 F.3d 471, 481 (5th Cir.2006); Johnson v. Housing Authority of Jefferson Parish, 442 F.3d 356, 359 (5th Cir.), cert. denied, 549 U.S. 821, 127 S.Ct. 136, 166 L.Ed.2d 36 (2006). Section 1983 does not create any substantive rights, but instead was designed to provide a remedy for violations of federal statutory and constitutional rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1916, 60 L.Ed.2d 508 (1979); Southwestern Bell Telephone v. City of Houston, 529 F.3d 257, 260 (5th Cir.2008); Hernandez v. Texas Department of Protective and Regulatory Services, 380 F.3d 872, 879 (5th Cir.2004).

There are two essential elements to a Section 1983 action: (1) the conduct in question must be committed by a person acting under color of state law; and (2) the conduct must deprive the plaintiff of a right secured by the Constitution or the laws of the United States. Kovacic v. Villarreal, 628 F.3d 209, 213 (5th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 2995, 180 L.Ed.2d 821, 2011 WL 1374077 (June 13, 2011); Bryant v. Military Department of Mississippi, 597 F.3d 678, 686 (5th Cir.), cert. denied, — U.S. -, 131 S.Ct. 287, 178 L.Ed.2d 141 (2010); Southwestern Bell Telephone v. City of Houston, 529 F.3d at 260.

B. The Gist of the Conflict Herein

In pertinent part, Chapter 64 of the Texas Code of Criminal Procedure authorizes a motion seeking forensic DNA testing of evidence containing biological material that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense but was either (1) not previously subjected to DNA testing (under circumstances unrelated to plaintiff’s claims herein) or (2) “although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.” Leal v. State, 303 S.W.3d at 295; Article 64.01(b), Texas Code of Criminal Procedure Annotated (Vernon Supp. 2010).

Chapter 64 also requires, in pertinent part, a showing that (1) unaltered evidence is available for testing, (2) identity was an issue in the case, (3) there is a greater than 50% chance the defendant would not have been convicted if DNA testing provided exculpatory results, and (4) the request is not to delay the execution of the sentence. Leal v. State, 303 S.W.3d at 296; Article 64.03(a), Texas Code of Criminal Procedure Annotated (Vernon Supp. 2010).

The Texas Court of Criminal Appeals ruled plaintiff failed to show additional testing of the materials in question would establish by a preponderance of the evidence that plaintiff would not have been convicted. Leal v. State, 303 S.W.3d at 301-02.

The question before this Court in this Section 1983 action is whether the state courts’ rejection of plaintiffs request for post-conviction DNA re-testing of his underwear and the cuttings therefrom deprived plaintiff of any federal constitutional right.

IV. Review Under Sections 1915A(b)(l) & 1915(e)(2)

Title 28 U.S.C. Section 1915A requires a federal district court to review a prisoner’s complaint as soon as practicable and to dismiss any claims the court finds to be frivolous, malicious, or inadequate to state a claim upon which relief may be granted. Title 28 U.S.C. Section 1915(e)(2)(B) contains a similar mandate, requiring federal courts to dismiss a case at any time if the court determines the action is frivolous or malicious or fails to state a claim on which relief may be granted. Jones v. Bock, 549 U.S. 199, 214, 127 S.Ct. 910, 920, 166 L.Ed.2d 798 (2007).

A claim may be dismissed as frivolous if it does not have an arguable basis in fact or law. Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 3368, 176 L.Ed.2d 1254 (2010); Samford v. Dretke, 562 F.3d 674, 678 (5th Cir.2009). A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges violation of a legal interest which clearly does not exist. Samford v. Dretke, 562 F.3d at 678; Geiger v. Jowers, 404 F.3d 371, 372 (5th Cir.2005).

Ordinarily, a prisoner must be offered an opportunity to amend his complaint before it may be dismissed as frivolous. Brewster v. Dretke, 587 F.3d at 767-68. In plaintiffs case, however, he not only filed an amended complaint but has, through the filing of his voluminous motion for temporary restraining order and its accompanying exhibits, finally furnished this Court with an intelligible explanation of the factual and evidentiary bases underlying his Section 1983 claims herein. Simply put, plaintiff has now “pleaded his best case” and further opportunity to amend is unnecessary. Brewster v. Dretke, 587 F.3d at 768.

V. The Facts of Plaintiff’s Capital Offense & Trial

Plaintiffs pleadings herein contain a distorted picture of the evidence presented during petitioner’s July, 1995 capital murder trial and subsequent state habeas corpus proceedings. More specifically, plaintiff repeatedly claims the only evidence linking him to the capital murder of Adria Sauceda consisted of blood stains found on plaintiffs underwear which were determined to be consistent with Sauceda’s blood type. Plaintiffs descriptions of the evidence presented during his capital murder trial and state habeas corpus proceedings are factually inaccurate. To set the record straight, this Court will furnish a detailed recitation of the evidence elicited during those proceedings.

A. The Offense and Its Aftermath

Late on the evening of May 20, 1994, and continuing well into the next morning, several persons attended an outdoor party held near the home of Juan Francisco “Paco” Delgado at the end of Vincent Street in San Antonio, Texas. Among the party goers was sixteen-year-old Adria Sauceda. At one point during the early morning hours of May 21, an apparently inebriated and only partially clad Adria was observed in the middle of a circle of males who were taking turns getting on top of her. When two women approached and attempted to lend her assistance, Adria refused their offers and told them to leave her alone. Adria appeared to be drunk and was unable to assist the women as they attempted to pull her pants back on her.

Around the same time, another party goer, Simon Ortega, became aware that Adria was in a crowd of people in the dark behind the bushes. Ortega was approached by a male, whom he did not recognize, who advised Ortega that Adria had passed out, was back behind the bushes, and had her clothes off. This same individual invited Ortega to have sex with her. Ortega rudely declined the invitation and, a couple hours later, observed another male carry Adria out from behind the bushes and place her on the hood of Ortega’s car. At that time, Adria appeared to Ortega to be “real shaken up,” “disoriented,” “not all there,” and “like if she was in shock.” Ortega unsuccessfully attempted to communicate with Adria while she was lying on the hood of his car.

Another male whom Ortega did not recognize then picked up Adria, carried her to a truck that was parked in the driveway of the home nearest to the party, and proceeded to “have his way with her.” Ortega then directed the male who sexually assaulted Adria in the truck to place her inside Ortega’s vehicle so that he could take her home. At that point, petitioner approached and directed that Adria be placed inside his vehicle, instead. When Ortega protested, the petitioner informed Ortega that he knew the girl and her family, knew where she lived, and would take her home and explain everything to her family. Petitioner then drove away with Adria in his blue Mercedes.

Shortly thereafter, petitioner’s brother Gualberto and petitioner’s sister Nancy arrived at the party. Gualberto was obviously excited and agitated, shouting, talking fast, and gesturing in an animated manner. According to Simon Ortega, petitioner’s brother Gualberto jumped out his car and yelled ‘What the hell happened?” Ortega testified that Gualberto continued yelling, informing those present that petitioner had arrived at his house “full of blood, saying he had killed a girl.” According to witnesses, shortly after petitioner’s brother and sister departed the scene, two of the males who had remained at the party produced Adria’s purse, began scattering the contents of same, and threw it up into a tree, where it became stuck in the branches.

About the same time, several individuals began searching for Adria’s body. One group of young men finally found Adria lying nude on her back on a dirt road and notified the police.

Photographs introduced into evidence at petitioner’s trial documented the grisly scene which greeted police officers. The autopsy performed on Adria’s body revealed (1) she had extremely high levels of alcohol and cocaine in her blood, (2) a stick with a screw in one end had been inserted into her vagina and was protruding from same, (3) Adria suffered extensive bruising and numerous lacerations to her head with accompanying hemorrhage to the soft tissue of the face, (4) the bridge of her nose was fractured and lacerated, (5) the right side of her neck exhibited an oval bruise suggestive of a bite mark, (6) her shoulders, back, and arms displayed numerous bruises and abrasions, (7) an obvious bite mark with visible teeth impressions was present on the left side and back of her chesfi (8) the nail on Adria’s left middle finger was almost completely torn off while the nail on her right middle finger was completely torn off and missing, (9) Adria suffered massive hemorrhage throughout her scalp and diffuse bleeding in the cranial cavity, as well as bruising of the right front area of the brain, just under the part of the brain that rests on top the eyes, and small hemorrhages of the left side of the brain, resulting from a tremendous amount of force having been applied to her head, (10) Adria had been beaten repeatedly about the face and head with a blunt object, possibly the bloody asphalt rock found near her body, although some of her injuries had definitely been caused by something other than that rock, (11) bruising to the exterior of Adria’s neck was consistent with manual strangulation, and (12) Adria died from blunt trauma to her head.

When contacted by the police later on the afternoon of May 21, 1994, petitioner voluntarily accompanied officers to the police station. There, petitioner gave police two written statements. In his first statement, admitted into evidence at petitioner’s trial as State Exhibit No. 48, petitioner stated that (1) he drove a girl, whom he said gave him her name as Evalin Salazar, away from the party toward her home, which she indicated was on Buda Street; (2) the girl began striking the steering wheel as he drove; (3) the girl told him to go a different direction; (4) he restrained her when she attempted to exit his vehicle while it was moving; (5) he drove her down Coconino Street and stopped at the end of that street, where she exited his vehicle; (6) he exited the vehicle and offered to take her home but she said no and ran into the bushes; and (7) after he waited ten-to-fifteen minutes for her to return and she did not, he drove home.

Shortly after petitioner gave police his first handwritten statement, outlined above, San Antonio Police Homicide Detective David Evans informed petitioner that petitioner’s brother Gualberto had given police a written statement in which Gualberto stated that the petitioner had returned home that morning covered in blood and confessed to having killed a girl. At that point, petitioner indicated that he wished to make a second statement to police. In his second handwritten statement, which was admitted into evidence at his trial as State Exhibit No. 49, petitioner stated that (1) the girl was fighting with him to get out of his car; (2) after she ran into the woods, he followed her and attempted to take her back to his car; (3) she hit him and scratched him in the face so he pushed her and she fell back to the ground; (4) she did not get up and he was unsuccessful in attempting to wake her; and (5) he saw bubbles coming out her nose, got scared, and went home.

While conducting a consent search of petitioner’s residence the same day as the discovery of Adria Sauceda’s body, two San Antonio Police Homicide Detectives discovered a beige blouse lying on the floor under a pile of laundry in the laundry room. The blouse was later identified as Adria’s. DNA testing of blood stains on the blouse could not exclude Sauceda as a possible source- of the blood thereon but did exclude plaintiffs girlfriend as a possible source of those blood stains.

B. Petitioner’s Indictment

On August 17, 1994, a Bexar County grand jury indicted petitioner in case no. 94-CR-4696 on a charge of capital murder.

C. Petitioner’s Trial

1. Guilt-Innocence Phase

The guilt-innocence phase of petitioner’s trial commenced on July 5,1995.

a. The Prosecution’s Evidence

The prosecution presented the testimony of Mirasol Torres. Simon Ortega, and Juan Martinez, outlined above, concerning the events that transpired at the party on Vincent Street that culminated in the discovery of Adria Sauceda’s body. A trio of law enforcement officers testified concerning the condition of Adria’s body and the surrounding crime scene at the time of her discovery.

In addition to hearing expert testimony concerning the results of the autopsy performed on Adria Sauceda’s body, outlined above, the jury also heard testimony from forensic serologists and DNA experts which established that (1) DNA testing performed on blood stains found on Adria’s brown blouse were consistent with Adria’s DNA type and inconsistent with the DNA of both petitioner and petitioner’s girlfriend and (2) DNA testing of stains found on petitioner’s underwear determined that the stains contained a mixture of body fluids (i.e., blood, semen, and vaginal secretions) from different individuals and that at least some of the genetic material found in those mixtures could not have come from either petitioner or petitioner’s girlfriend Elvira Briones but could have come from Adria Sauceda.

San Antonio Police evidence technician Warren Titus testified that his Luminol tests for the presence of blood performed on the Blue Mercedes in which petitioner admitted he drove Adria Sauceda from the party on Vincent Street were positive (1) on the exterior of that vehicle and indicated that the exterior had been wiped in an effort to clean same, (2) on the interior passenger door panel and indicative of wipe marks in a downward direction from the door handle, and (3) on the passenger seat and consistent with a person bleeding while sitting in that seat. Based on the foregoing, officer Titus opined that blood could have been wiped from each of these surfaces.

A San Antonio Police Detective testified that he took photographs of petitioner’s face and chest on May 21, 1994 after petitioner was arrested.

A trace evidence analyst testified that both pubic and head hair samples found on the large asphalt rock found lying on Adria Sauceda’s left arm were microscopically similar to Adria’s hair.

A dental professor expressed opinions that (1) petitioner’s teeth matched the bite marks found on Adria’s body, (2) only a powerful and prolonged bite would have been sufficient to cause the bite marks on Adria’s body, and (3) slippage in one of the marks suggested that either Adria had moved while she was being bitten or the person biting her had made more than one attempt to bite her in the same location.

b. The Lone Defense Witness

The defense called only one witness, petitioner’s girlfriend Elvira Briones, who testified that she and petitioner engaged in sexual intercourse the night of the party and that she did not notice Adria Sauceda with any men at the party.

c. The Verdict

After deliberating approximately ninety minutes on July 10, 1995, the jury returned its verdict of guilty.

2. Punishment Phase of Trial

The punishment phase of petitioner’s capital murder trial began and ended the following day, July 11,1995.

a. The Prosecution’s Evidence

The prosecution presented the testimony of (1) then 16-year-old Melissa Ruiz, who testified about an incident in May of 1994, about two weeks before the murder of Adria Sauceda, in which petitioner sexually assaulted and bit Ruiz on the neck; (2) the San Antonio Police Officer who investigated Ruiz’s report of petitioner’s assault upon her and photographed the bite marks and bruises on Ruiz’s body; (3) the physician who examined Ruiz approximately 66 hours after the assault; and (4) Ruiz’s older sister Iza Marie, who stated that petitioner had called her repeatedly at her place of employment in the weeks following his assault on Melissa, threatening to have someone kill her if she testified against petitioner. The prosecution also introduced testimony from law enforcement and school officials establishing that petitioner’s reputation for being peaceful and law abiding was bad and that petitioner had a history of intimidating and bullying his fellow students and teachers.

b. The Defense’s Evidence

The defense offered the testimony of psychiatrist Raymond Potterf, who testified on direct examination that (1) petitioner suffered from alcohol dependence and pathological intoxication, (2) the latter condition occurs when a person who ingests alcohol experiences a sudden change in mental status and becomes very aggressive, and (3) there is no cure for petitioner’s condition. On cross-examination, Dr. Potterf admitted that it was possible petitioner’s tendency toward violence predated petitioner’s problems with alcohol. On re-direct, petitioner’s trial counsel elicited testimony from Dr. Potterf suggesting that petitioner had been beaten as a child and that such children tend to develop antisocial personalities. On re-cross-examination, Dr. Potterf admitted that persons with anti-social personalities tend to ignore societal norms and can be dangerous.

The defense also called (1) one of petitioner’s former high school teachers, who testified she had counseled petitioner when he was her student, petitioner’s father had mistreated petitioner and one of petitioner’s brothers, and she had never felt afraid of petitioner; (2) a 14-year-old friend of petitioner, who testified about an incident in which petitioner had saved his life by shoving him out of the way of gunfire; (3) petitioner’s 14-year-old brother Carlos, who testified that Melissa Ruiz had sent petitioner love letters a few years before petitioner’s assault on her; and (4) petitioner’s mother, who testified petitioner began drinking until he passed out about a year and a half ago and requested the jury to be merciful and have pity on petitioner.

Petitioner testified that (1) although he did not get along with his father, his father had never beaten or hurt him; (2) he was sorry the girl had died but felt her family, rather than the jury, should decide his fate; (3) he had been a good inmate while awaiting trial, he had no criminal record other than this one offense, and he was not a violent person; (4) he was very drunk on the date in question and, while what he did was wrong, he had not done what he was accused of having done; (5) he would probably keep the peace if sent to prison but would act to defend himself if he felt threatened; and (6) he had no gang affiliation. On cross-examination, petitioner (1) insisted that he was innocent despite the jury’s verdict of guilty; (2) admitted that Adria scratched him, he pushed Adria, he felt something wet on the back of her head, he shook Adria in an unsuccessful attempt to wake her, and he fled in fear when he saw bubbles coming out of her nose; (3) denied he (a) wiped blood from the Mercedes, (b) did anything more to Adria than push her down, (c) took her clothes off, (d) beat her with a rock, (e) bit her, or (f) shoved a stick inside her; (4) suggested that his father found Adria’s blouse in the street and brought it inside the house; (5) stated that, as he was taking Adria from the party, he turned at the end of Vincent Street in the opposite direction from the way Adria directed him to go and, when Adria attempted to get out of his car, he initially refused to allow her to do so and refused to stop so she could do so; (6) stated that Adria got out his vehicle and, when he attempted to take her back to his car, she began hitting, pushing, and scratching his face; (7) stated that he left Adria’s body fully clothed, along the side of a street, three or four streets over from the location where he nude body was found; (8) denied that he bit her neck or chest; and (9) admitted that any person who could bash in Adria’s head, leave her with a stick inside her, and take a piece of her clothing as a trophy was a violent and dangerous person. On re-direct and recross-examination, petitioner denied that he raped or bit Melissa Ruiz.

c. The Verdict

After deliberating less than two hours on July 11, 1995, the jury returned its verdict at the punishment phase of petitioner’s capital murder trial, finding that (1) there was a probability petitioner would commit criminal acts of violence that would constitute a continuing threat to society and (2) there was insufficient mitigating evidence to justify a life sentence rather than a sentence of death.

D. Direct Appeal

Petitioner appealed his conviction and sentence. In an unpublished opinion, the Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Leal v. State, No. 72,210 (Tex.Crim.App. February 4, 1998). The United States Supreme Court denied petitioner’s petition for writ of certiorari on February 22, 1999. Leal v. Texas, 525 U.S. 1148, 119 S.Ct. 1046, 143 L.Ed.2d 53 (1999).

E. First State Habeas Corpus Proceeding

On September 17, 1997, petitioner filed an application for state habeas corpus relief. On October 19 through 21 and November 23, 1998, the state trial court held an evidentiary hearing in petitioner’s state habeas corpus proceeding. On April 23, 1999, the state trial court issued an Order containing its findings of fact, conclusions of law, and recommendation that petitioner’s first state habeas corpus application be denied. On October 20, 1999, the Texas Court of Criminal Appeals denied petitioner’s state habeas corpus application in an unpublished written Order based on the findings made by the state trial court. Ex parte Humberto Leal, Jr., App. No. 41,743-01 (Tex.Crim.App. October 20, 1999).

VI. Standards for Interlocutory Injunctive Relief

Pursuant to Rule 65(b)(1)(A), Fed.R.Civ. P., this Court may grant a temporary restraining order without notice to the adverse party or its attorney only if the moving party furnishes specific facts in an affidavit or a verified complaint which clearly show immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition.

The four elements a plaintiff must establish to secure a preliminary injunction are: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest. Janvey v. Alguire, 628 F.3d 164, 174 (5th Cir.2010); United States v. Billingsley, 615 F.3d 404, 408 n. 4 (5th Cir.2010); Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir.2009).

When denying a motion for preliminary injunction, a district court must offer findings of fact and conclusions of law to justify the denial. Ali v. Quarterman, 607 F.3d 1046, 1048 (5th Cir.2010); Rule 52(a)(2), Fed.R.Civ.P.

VII. Analyzing the Signiñcance of Plaintiff’s Stained Underwear

A. Factual Findings

As explained above, the expert testimony at plaintiffs July, 1995 trial established only (1) the stains found on plaintiffs underwear contained a mixture of body fluids (i.e., blood, semen, and vaginal secretions) from different individuals and (2) at least some of the genetic material found in those mixtures could not have come from either plaintiff or his girlfriend Elvira Briones but could have come from Adria Sauceda (i.e., while plaintiff and his girlfriend could not be ruled out as possible sources of some portions of the mixed stains, at least some of the DNA found in those mixed stains could not have come from plaintiff or his girlfriend but may have come from Sauceda). Thus, the expert testimony about the stains on plaintiffs underwear furnished during plaintiffs capital murder trial was hardly the “smoking gun,” “most damaging evidence,” or “deciding factor” plaintiff has represented same to be in his pleadings herein. Contrary to the suggestions underlying plaintiffs constitutional claims herein, plaintiff has failed to allege any specific facts showing additional DNA testing of plaintiffs underwear is likely to produce any evidence significantly probative of plaintiffs guilt or innocence.

Contrary to the suggestions contained in plaintiffs pleadings herein, absence of evidence linking plaintiffs DNA to the body of Adria Sauceda is probative of nothing. The evidence introduced during plaintiffs trial did not tend to establish plaintiff had sexually assaulted Adria Sauceda with his own penis. Rather, when viewed in the light most favorable to the jury’s verdict, the evidence showed plaintiff committed aggravated sexual assault on Adria Sauceda with a piece of lumber, which was still protruding from her lifeless body when discovered, and then bashed her head in with a cement boulder.

Furthermore, when viewed in the light most favorable to the jury’s verdict, even disregarding the mixed stains on plaintiffs underwear, the evidence now before this Court (including the uncontradicted testimony from plaintiffs trial counsel during plaintiffs first state habeas corpus proceeding) establishes (1) plaintiff drove a semi-conscious Adria away from a party after she had already been repeatedly sexually assaulted by other men, (2) not long thereafter, plaintiffs brother arrived at the party and exclaimed in an excited manner that plaintiff had arrived home bloody and mumbling about having killed a girl, (3) shortly thereafter, Adria’s nude body was discovered with her head badly bludgeoned, (4) a piece of lumber was protruding from her vagina, (5) autopsy results showed the metal bolt on the end of the piece of lumber used to violate Adria’s body had caused internal bruising establishing she was still alive when she was brutally violated with that piece of wood, (6) plaintiff admitted to his trial counsel he had fought violently with Adria and plaintiffs body bore the marks of a violent confrontation, (7) Adria’s blood-stained blouse was found inside plaintiffs residence, (8) there was evidence of bloodstains on the inside and exterior of the vehicle plaintiff had used to drive Adria away from the party, (9) plaintiff admitted to his trial counsel he was alone with Adria when she “fell” and began bleeding from the nose, (10) plaintiffs teeth matched the bite marks on Adria’s body, and (11) plaintiff was the last person to see Adria alive.

Quite frankly, the most salient aspect of Ms. Clements’ testimony at plaintiffs trial was her assertion that the brown blouse found inside plaintiffs residence and identified by other witnesses as similar to the one worn by Adria Sauceda on the night of her murder bore blood stains for which Sauceda could not be ruled out as a possible source. Plaintiff does not suggest there was anything erroneous with that scientific finding. The presence of Sauceda’s bloody blouse inside plaintiffs residence the morning after the murder was far more inculpatory than the findings Ms. Clements pronounced regarding the possible sources of the mixed DNA stains on plaintiffs underwear.

Plaintiff has alleged no specific facts showing there is any rational basis to believe there was any error or inaccuracy in the DNA tests conducted on the mixed stains found on plaintiffs underwear prior to his 1995 capital murder trial or in the interpretation of those test results given during his trial by the prosecution’s DNA expert. The highly speculative assertions of Dr. Elizabeth Johnson are unconvincing for a number of reasons, chief among them her own qualifications on her opinions. At one point in her declaration, Dr. Johnson challenges the actions of a Texas Department of Public Safety employee but claims to possess no personal knowledge of how that employee actually undertook her work in connection with the strips of material cut from plaintiffs underwear. In fact, Dr. Johnson does not appear to assert she has ever possessed any personal knowledge regarding the manner in which plaintiffs underwear was examined by any person prior to plaintiffs capital murder trial. At best, Dr. Johnson’s complaints in her declaration amount to criticisms of the record-keeping of LabCorp and the Texas Department of Public Safety.

Plaintiff has been on constructive notice of the scope of Chapter 64 of the Texas Code of Criminal Procedure since April 5, 2001, i.e., the effective date of the original version of Article 64.01. It is not too much to ask plaintiff to furnish this Court, more than a decade later, with specific facts showing why the rather vague DNA test results on his underwear produced in 1995 about which Ms. Clement testified in such an ambiguous manner during plaintiffs capital murder trial are no longer worthy of serious consideration by a capital jury.

Plaintiff does not allege the stains in question were anything other than what they were identified to be during his trial (i.e., mixtures of DNA from multiple persons consisting of blood, semen, and vaginal secretions, some of which may have come from plaintiff and his girlfriend at the time and some of which may have come from Sauceda). This is really all the expert testimony at plaintiffs trial established vis-a-vis the underwear stains in question.

Neither Dr. Johnson nor plaintiff alleges any specific facts showing any currently available DNA testing techniques are reasonably likely to furnish test results identifying or excluding any individual as a possible contributor to the mixed DNA stains found on plaintiffs underwear.

Likewise, plaintiff has not alleged any facts suggesting precisely how further DNA testing of the stains in question (assuming such is even possible at this juncture) could produce admissible exculpatory or mitigating evidence, much less proof of plaintiffs “actual innocence.” While this Court is well aware of the advances in DNA testing which have occurred since 1995, plaintiff does not explain why his expert believes any of the more advanced DNA-testing techniques currently available are likely to produce new or different results, superior to those produced in 1995.

Moreover, plaintiff fails to explain how further testing of the stains will furnish exculpatory or mitigating evidence. The prosecution’s expert admitted during her trial testimony that at least some portions of the mixed stains on plaintiffs underwear could have been furnished by plaintiff and his girlfriend. Plaintiff does not apparently challenge the expert testimony suggesting plaintiff and his then-girlfriend may have contributed DNA to the mixed sample found on plaintiffs underwear. Nor does plaintiff suggest how confirmation or negation of the presence of his own DNA or that of his then-girlfriend on plaintiff’s underwear would impact the outcome of his capital murder trial.

Assuming further testing of plaintiffs underwear might eliminate Sauceda as a possible contributor to the mixed stains on plaintiff’s underwear (something plaintiff does not allege with any factual specificity), that fact would not impact the overwhelming weight of the inculpatory evidence presented during the guilt-innocence phase of plaintiffs capital murder trial. If additional testing of the mixed stains in question were merely to confirm the presence of some DNA in the mixed stains on plaintiffs underwear for which Sauceda could not be eliminated as a potential source, there would be no change to the status quo whatsoever. The DNA evidence potentially linking Sauceda’s body fluids or blood to the stains on plaintiffs underwear was not conclusive or even significant to the prosecution’s charge plaintiff had murdered Sauceda while committing or attempting to commit aggravated sexual assault. The evidence at trial established plaintiff sexually assaulted Sauceda with a piece of lumber.

Significantly, during the evidentiary hearing held in plaintiffs first state habeas corpus proceeding, one of plaintiffs former trial counsel testified in pertinent part, without contradiction, that (1) plaintiff gave the defense team many different versions of the circumstances surrounding Sauceda’s death, ranging from plaintiffs assertions that he was not present when Sauceda died to plaintiffs admissions he had violently fought with Sauceda and fled the scene when she fell down and blood began bubbling out of her nose, (2) in all of plaintiff’s versions of Sauceda’s final minutes alive, plaintiff and Sauceda were the only persons present, (3) plaintiff’s accounts of his interactions with Sauceda confirmed most of what plaintiff had told police in his written statements, and (4) the defense team did not seek independent DNA testing of the blood stains on plaintiffs clothing because plaintiff informed his defense counsel he had sat on Sauceda at one point during their struggles and it was quite possible her blood had gotten on his clothing and possibly even soaked through his jeans to his underwear. Plaintiffs other co-counsel at trial testified during petitioner’s first state habeas corpus proceeding that petitioner gave him an account of Sauceda’s murder that was consistent with what plaintiff had told police in his written statements. Plaintiff does not allege any facts refuting or contradicting the sworn testimony given by his state trial counsel that plaintiff told said counsel (1) he sat on Sauceda at one point during their struggle and (2) Sauceda’s blood could very well have gotten on his clothing and underwear. Based on plaintiffs statements to them, plaintiffs trial counsel made an objectively reasonable decision not to challenge the DNA evidence showing Sauceda could not be eliminated as a possible contributor to the mixed stains found on plaintiffs underwear.

Plaintiff has not alleged any specific facts showing state or local law enforcement officials acted in a manner inconsistent with plaintiffs Fourth and Fourteenth Amendment rights when they conducted DNA tests on the stains found on plaintiffs underwear or sought to introduce evidence of those tests results during plaintiffs 1995 capital murder trial. Plaintiff has not alleged any specific facts showing there was anything inappropriate, much less illegal, about the means or manner by which law enforcement officers secured plaintiffs underwear or tested same prior to plaintiffs 1995 capital murder trial. In fact, plaintiffs original and amended complaints herein are bereft of any specific facts showing precisely when and how police obtained plaintiffs underwear. Plaintiffs motion for temporary restraining order is likewise ambiguous in connection with this same complaint: “Shortly after his arrest, the police confiscated clothing Mr. Leal [sic] was wearing, including his undergarments. They had no warrant for his property.”

The identity of the contributors to the mixed stains on plaintiffs underwear was not a significant issue in the context of plaintiffs capital murder trial. There is not even a scintilla of evidence, much less a preponderance of the evidence, to suggest that, but for Ms. Clements’ trial testimony identifying Sauceda as a possible contributor to the mixed DNA stains on plaintiffs underwear, the jury would have acquitted plaintiff of capital murder in connection with Sauceda’s brutal murder.

B. Conclusions of Law

Further DNA-testing of plaintiffs underwear and underwear cutting, regardless of the results of such testing, will not establish plaintiffs “actual innocence” on the charge of Sauceda’s capital murder. See House v. Bell, 547 U.S. 518, 536-37, 126 S.Ct. 2064, 2076-77, 165 L.Ed.2d 1 (2006)(holding prisoner asserting innocence as a gateway to defaulted claims must establish that, “in light of new evidence, it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt”). New test results which might exclude Sauceda as a possible contributor to the mixed stains found on plaintiffs underwear would merely remove one pebble from the vast mountain of remaining circumstantial evidence establishing plaintiffs guilt. Such new test results will not impact any of the other, overwhelming, evidence of plaintiffs guilt. Such new evidence would most certainly not create any serious doubt as to plaintiffs guilt. See House v. Bell, 547 U.S. at 539, 126 S.Ct. at 2078 (the proper inquiry “requires a holistic judgment about ‘all the evidence,’ and its likely effect on reasonable jurors applying the reasonable-doubt standard.”) (Citation omitted).

Plaintiff will not be deprived of any constitutionally protected liberty interest in “demonstrating his innocence through post-conviction DNA testing” by virtue of the State’s refusal to render plaintiffs underwear and underwear cuttings to plaintiffs experts for further DNA analysis. See District Attorney’s Office for the Third Judicial District v. Osborne, 557 U.S. 52, 129 S.Ct. 2308, 2320, 174 L.Ed.2d 38 (2009)(“A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man. At trial, the defendant is presumed innocent and may demand that the government prove its case beyond reasonable doubt. But ‘[o]nce a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.’ ”). New test results excluding Sauceda as a possible contributor to the mixed stains on plaintiffs underwear will not undermine the overwhelming remaining evidence establishing plaintiffs guilt or raise any legitimate doubt regarding his guilt for Sauceda’s capital murder.

The State of Texas’ refusal to turn over to plaintiff his underwear and underwear cuttings does not transgress any recognized principle of fundamental fairness because the exclusion of Sauceda as a possible contributor to the mixed stains on plaintiffs underwear will not exculpate plaintiff or otherwise vindicate plaintiffs substantive rights. Plaintiffs right to due process in a post-conviction proceeding is not parallel to a trial right but, rather, must be analyzed in light of the fact he has already been found guilty at a fair trial and has only a limited interest in post-conviction relief. District Attorney’s Office for the Third Judicial District v. Osborne, — U.S. at-, 129 S.Ct. at 2320.

As the Texas Court of Criminal Appeals correctly noted, additional DNA testing of plaintiffs underwear and underwear cuttings will not furnish any new or additional evidence relating to the capital murder during a kidnaping charge against plaintiff. Leal v. State, 303 S.W.3d at 302.

The State of Texas’ insistence that plaintiff present evidence, as a condition to obtaining post-conviction DNA testing, which established by a preponderance of the evidence that plaintiff would not have been convicted under the “capital murder during an aggravated sexual assault” theory if exculpatory results had been obtained does not offend notions of due process or fundamental fairness. In so requiring, Texas is merely requiring a showing analogous to that required by the United States Supreme Court to overcome a procedural default through a showing of actual innocence. House v. Bell, 547 U.S. at 536-37, 126 S.Ct. at 2076-77. There is nothing fundamentally unfair about requiring a criminal defendant such as plaintiff, convicted of an offense after a fair trial, to establish that any new evidence which might result from additional DNA testing raise legitimate doubts as to the defendant’s guilt before such testing will be required. This is essentially what the Supreme Court already requires in order to satisfy the fundamental miscarriage of justice exception to the procedural default doctrine. Id.

Plaintiff has failed to allege any specific facts showing his Fourth and Fourteenth Amendment rights to freedom from unreasonable search and seizure were violated in connection with the pretrial seizure and DNA-testing of the stains on his underwear.

Plaintiff has failed to allege any specific facts showing his Fourth, Eighth, or Fourteenth Amendment rights will be violated absent DNA-re-testing of plaintiffs underwear and underwear cuttings using the most current DNA-testing techniques available.

Any new scientific evidence showing Sauceda was not a contributor to the mixed stains found on plaintiffs underwear and underwear cuttings would not be material within the meaning of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), to the outcome of either phase of plaintiffs 1995 capital murder trial. Such evidence would be neither factually exculpatory nor mitigating in light of the overwhelming evidence of plaintiffs guilt, the level of brutality inherent in the manner plaintiff murdered Sauceda, and the lurid manner in which plaintiff posed Sauceda post-mortem.

Any new scientific evidence confirming the results of the previous DNA-testing performed on plaintiffs underwear, i.e., evidence showing Sauceda was a possible contributor to the mixed stains on plaintiffs underwear, would likewise be immaterial to the outcome of either phase of plaintiffs capital murder trial.

Insofar as plaintiff complains about either (1) the seizure or DNA-testing of plaintiffs underwear prior to his 1995 capital murder trial, (2) the scientific validity of the prosecution’s bite mark testimony introduced during plaintiffs capital murder trial, or (3) the failure of plaintiffs trial counsel to call plaintiffs parents to testify at trial regarding the circumstances surrounding the discovery of Sauceda’s blouse inside the plaintiffs residence, those claims are barred by the Supreme Court’s holding in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because such claims necessarily impinge upon the validity of plaintiffs capital murder conviction and are, therefore, not cognizable in this action for relief pursuant to Section 1983. See Heck v. Humphrey, 512 U.S. at 486, 114 S.Ct. at 2372 (“the hoary principle that civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments applies to § 1983 damages actions that necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement, just as it has always applied to actions for malicious prosecution.”).

Plaintiff has failed to establish either (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, or (4) that the grant of an injunction will not disserve the public interest.

Plaintiffs claims herein challenging the state appellate court’s refusal to grant plaintiff re-testing of the mixed DNA samples found on plaintiffs underwear all lack an arguable basis in law, i.e., they are based upon indisputably meritless legal theories, and are properly subject to dismissal as frivolous under Section 1915(e)(2)(B)(i). In so ruling, the state appellate court applied a legal principle not dissimilar to the Supreme Court’s “actual innocence” standard for overcoming a procedural default. Application of this principle did not violate plaintiffs Fourteenth Amendment due process, Fourth Amendment, or Eighth Amendment rights. Moreover, plaintiff clearly failed to satisfy that standard.

VIII. Conclusions

Because plaintiffs complaints lack any arguable legal basis, they are subject to summary dismissal as frivolous pursuant to Section 1915(e)(2)(B)(i). Given the uncontradicted evidence admitted during his capital murder trial and subsequent state habeas corpus proceedings, plaintiffs complaints about the state court’s refusal to permit plaintiff to undertake re-testing of the mixed DNA samples found on plaintiffs underwear and cuttings therefrom plaintiff cannot satisfy the “actual innocence” standard set forth in House v. Bell and cannot satisfy Article 64.03(a)(2)(A) of the Texas Code of Criminal Procedure. Application of those legal standard does not offend plaintiffs Fourth, Eighth, or Fourteenth Amendment rights. Therefore, plaintiff has failed to demonstrate a substantial likelihood of success on the merits.

Plaintiff was convicted more than a decade and a half ago of a brutal, senseless, crime; a crime for which he has steadfastly refused to accept any responsibility despite his admissions to police and his own trial counsel that (1) he pushed Sauceda down, (2) she fell hard and did not move thereafter, and (3) he fled the scene when he observed blood flowing from her face and never made any effort to seek assistance for her. Plaintiff also admitted to his trial counsel that he fought violently with Sauceda. The lurid manner Sauceda’s body was posed post-mortem reflects a level of depravity shocking even for a capital offense.

Despite the overwhelming evidence of plaintiffs guilt (even disregarding the potential presence of Sauceda’s DNA on plaintiffs underwear) and the glaring absence of any truly mitigating evidence from the record in this cause, plaintiff continues to engage in dilatory tactics designed to delay his execution without providing any new, truly exculpatory, evidence. Plaintiff deliberately omitted his Vienna Convention claim from his first federal habeas corpus petition herein (after having presented same in his initial state habeas corpus application). Plaintiff then filed his second federal habeas corpus petition under a different name and in a different Division of this Court and asserted therein essentially the same Vienna Convention claim he had originally included in his first state habeas corpus action almost a decade before. When this Court addressed the merits of plaintiffs Avena /Vienna Conviction claim in the context of plaintiffs second federal habeas corpus proceeding, plaintiff argued on appeal this Court erred in so doing. Despite the passage of Chapter 64 of the Texas Code of Criminal Procedure in 2001, plaintiff waited until 2008 to file a motion in the appropriate state court seeking re-testing of items containing DNA which had been admitted into evidence during his 1995 capital murder trial.

Adria Sauceda has now been dead for more years than she was allowed to live before plaintiff took her life in May, 1994. Plaintiff has fully litigated multiple state and federal habeas corpus actions challenging his 1995 capital murder conviction and death sentence. Contrary to plaintiffs repeated assertions, there has been no “rush to judgment” in his criminal case.

Accordingly, it is hereby ORDERED that:

1. All relief requested in plaintiffs amended complaint, filed June 13, 2011, docket entry no. 28, is DENIED.

2. Plaintiffs motion for Temporary Restraining Order, filed June 14, 2011, docket entry no. 29, is DENIED.

3. Plaintiffs motion for hearing, filed June 10, 2011, docket entry no. 26, is DENIED.

4. Plaintiff’s motion to amend judgment, filed May 25, 2010, docket entry no. 13, is DENIED.

5. All other pending motions are DISMISSED AS MOOT.

6. This cause is DISMISSED WITHOUT PREJUDICE pursuant to Title 28 U.S.C. Section 1915(e)(2)(B)(i).

7. The Clerk shall prepare and enter a Judgment in conformity with this Memorandum Opinion and Order.

. Plaintiff filed his second federal habeas corpus action in the Austin Division of this Court and included therein no reference whatsoever to his prior federal habeas corpus action which had been filed and fully litigated to Judgment in the San Antonio Division of this Court as cause no. SA-99-CA-1301. After much confusion engendered by petitioner’s deceptive actions, the Clerk of this Court realized the petitioner who filed that Section 2254 fed