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Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION DARLIE LYNN ROUTIER, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutional Division, Respondent.

§ § § § § § § § § § §

Civil No. SA-05-CA-1156-FB

PETITIONER’S RESPONSE TO SHOW CAUSE ORDER

TO THE HONORABLE COURT: Counsel for Petitioner Darlie Lynn Routier (“Petitioner”) respectfully submits this response to the Court’s Show Cause Order dated November 21, 2013. Petitioner requests that the Court continue to maintain the stay currently in effect in this case because the parties and the state trial court are actively continuing the process of obtaining and completing the DNA and forensic testing at issue in both the state and federal proceedings. In support whereof, Petition would show the Court as follows: 1.

Counsel for Petitioner have reviewed the Status Report (Doc. 58) filed by

Respondent on December 10, 2013, and it appears that Petitioner and Respondent agree on both the status of the DNA testing pending before the state court and their mutual request that this federal case continue to be held in abeyance until that testing is concluded. Petitioner files this separate response in order to more fully address the matters contained in the Court’s order.

PETITIONER’S RESPONSE TO SHOW CAUSE ORDER 01793-401

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Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 2 of 6

2.

Much, but not all, of the DNA testing authorized by the Texas Court of Criminal

Appeals in this case has been completed. On November 19, 2013, the state trial court issued an order requiring that three final extracts maintained by the Texas Department of Public Safety be transferred to the University of North Texas for Quantifiler Duo testing. That testing is being performed to determine how much human DNA is present in the extracts and how much of it is male. Following the completion of the Quantifiler Duo testing, the state court will make a determination as to whether additional Y-STR testing will be conducted on those samples. See Exhibit 1 (Order for Additional DNA Testing). Although the samples have been transferred to the UNT lab, the testing has not been completed at the present time. 3.

In addition to the foregoing, on November 1, 2013, Petitioner filed her Second

Motion for Forensic DNA Testing Pursuant to Chapter 64 of Code of Criminal Procedure. See Exhibit 2. In that motion, Petitioner seeks DNA testing on six additional items of evidence, including blood stains and limb hairs from the tube sock found in the alley behind Petitioner’s home the morning after her sons were stabbed to death. Petitioner had previously sought DNA testing on those items, but it was denied by the Court of Criminal Appeals because the state DNA statute required Petitioner to demonstrate that the items had not been tested at the time of trial through no fault of her own. However, the state legislature subsequently amended the statute to eliminate that requirement and permit testing of all evidence not previously subject to DNA testing. See Tex. Code Crim. P. art. 64.01(b). 4.

Petitioner’s motion for additional DNA testing is pending before the state trial

court. However, for this Court’s own decision-making process, there are two important items the Court should consider. First, the items Petitioner has asked to have tested consist of some of the same items for which this Court has previously granted Petitioner’s request for forensic

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Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 3 of 6

discovery. See Order Granting in Part Motion for Discovery (Doc. 40); Order Regarding Motion for Funding of DNA Testing (Doc. 47). The Chief Judge of the Fifth Circuit subsequently disallowed the funding for that testing (Doc. 49), but the issue of funding would be mooted if the state court orders the testing to be performed pursuant to its own authority in the case. Second, counsel for Petitioner and counsel for the Dallas County District Attorney are attempting to reach an agreement by which the items may be voluntarily tested by the University of North Texas laboratory. If such an agreement can be finalized, it would also dispose of this Court’s need to make any subsequent ruling on the testing of the requested items. 5.

Petitioner requests that the Court continue to maintain this cause on the docket.

The original rationale for holding the case in abeyance remains as valid today as it was when the Court first issued that order: [I]n an order dated April 27, 2009, docket no. 49, the United States Court of Appeals for the Fifth Circuit rejected authorization of federal funding for DNA retesting and concluded ‘in the interest of comity, the federal courts should defer until the proceedings connected to that retesting have run their course in state court.’ This Court will therefore grant petitioner’s unopposed motion to vacate the latest scheduling order and establish a status report procedure to facilitate future scheduling. This Court will also stay and administratively close this case until the proceedings connected to the DNA testing and retesting have run their course in state court. In the interest of justice and closure, the State of Texas will hopefully move expeditiously to conclude the DNA testing and any other relevant investigative matters. (Doc. 53).

While the DNA testing has not proceeded to an expedited conclusion, it has

nevertheless continued to move forward while this federal case has been stayed to permit the testing to be accomplished. Moreover, the State’s recent proposal to resolve of Petitioner’s renewed motion for testing of additional items of evidence by agreement would materially advance, and perhaps partially negate, the DNA testing issues presented to this Court. 6.

By law, Petitioner’s application for federal habeas corpus relief was required to be

filed on or before December 1, 2005, one year after the Texas Court of Criminal Appeals denied PETITIONER’S RESPONSE TO SHOW CAUSE ORDER 01793-401

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Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 4 of 6

her habeas corpus petition under state law. See 28 U.S.C. § 2244(d). Second or successive applications for habeas corpus are permitted only in very narrow circumstances. Id. § 2244(b). Dismissing Petitioner’s application would work a substantial injustice, as it would deny her the ability to have the issues presented in her motion determined by the federal courts.

The

undersigned attorney apologizes for the oversight of maintaining the 180-day status reports required by the Court’s prior order, and will ensure that in the future they are timely and properly filed on whatever schedule the Court may wish to impose.

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Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 5 of 6

DATED: December 10, 2013

Respectfully submitted,

/s/ Richard A. Smith Richard Burr Texas Bar No. 24001005 BURR & WELCH, PC 412 Main Street, Suite 1100 Houston, Texas 77002 (713) 628-3391 (713) 893-2500 (fax) Lauren E. Schmidt Colorado Bar No. 37002 BROWNSTEIN HYATT FARBER SCHRECK, LLP 410 Seventeenth Street, Suite 2200 Denver, Colorado 80202 (303) 223-1207 (303) 223-8007(fax) J. Stephen Cooper Texas Bar No. 04780100 4711 Gaston Avenue Dallas , TX 75246-1013 214-522-0670 Fax 1-866-840-3860 Richard A. Smith Texas Bar No. 24027990 LYNN TILLOTSON PINKER & COX, LLP 2100 Ross Avenue, Suite 2700 Dallas, Texas 75201 (214) 981-3800 (214) 981-3839 (fax) COUNSEL FOR PETITIONER DARLIE LYNN ROUTIER

PETITIONER’S RESPONSE TO SHOW CAUSE ORDER 01793-401

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Case 5:05-cv-01156-FB Document 59 Filed 12/10/13 Page 6 of 6

CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing document was served on the Attorney General for the State of Texas, Counsel for Respondent, on December 10, 2013, via ECF filing and by mailing a copy of the instrument, with first class postage affixed to: Tomee Heining, Esquire Postconviction Litigation Division P.O. Box 12548 Austin, Texas 78711-2548

/s/ Richard A. Smith Richard A. Smith

4818-8892-1367, v. 1

PETITIONER’S RESPONSE TO SHOW CAUSE ORDER 01793-401

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