             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-75,134-03


                   EX PARTE DANA ABDOLAHI-DAMANEH, Applicant


                ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. W05-00507-W(C) IN THE 363RD DISTRICT COURT
                            FROM DALLAS COUNTY


        Per curiam.

                                              ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of the offense of

aggravated robbery and sentenced to imprisonment for forty years. The Fifth Court of Appeals

affirmed Applicant’s conviction in Abdolahi-Damaneh v. State, No. 05-05-01312-CR (Tex.

App.—Dallas 2007)(not designated for publication).

        In June of 2009, Applicant filed his initial application for habeas relief in the trial court,

alleging, among other things, ineffective assistance of counsel. On September 14, 2011, this Court

denied relief. Ex parte Abdolahi-Damaneh, No. WR-75,134-01 (Tex. Crim. App. 2011)(not
designated for publication).

       In this subsequent application, Applicant alleges the State suppressed exculpatory evidence

at Applicant’s trial. Applicant also alleges new mitigating evidence has been discovered that would

change the outcome of the sentencing hearing. Applicant claims that because the factual basis for

Applicant’s current claim was not available when he filed his previous application, this application

is not barred under the provision of provisions of Article 11.07, Section 4(a) of the Texas Code of

Criminal Procedure.

       However, it appears that Applicant may have been able to access the prosecutor’s trial file

during the previous habeas proceedings since the initial application was filed after Dallas County

instituted the open file policy for post-conviction matters. Therefore, additional facts are needed in

order to determine whether this Court is barred from considering the merit of the instant application.

As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is

the appropriate forum for findings of fact. The trial court may use any means set out in TEX . CODE

CRIM . PROC. art. 11.07, § 3(d).

       The trial court shall make findings of fact and conclusions of law as to whether or not the

factual basis of Applicant’s claims were ascertainable through the exercise of reasonable diligence

on or before the date the initial application was filed. Ex parte Lemke, 13 S.W.3d 791 (Tex. Crim.

App. 2000). The trial court shall also make findings of fact and conclusions of law as to whether

Applicant’s claims are barred by TEX . CODE CRIM . PROC. art. 11.07, § 4(c). The trial court shall also

make any other findings of fact and conclusions of law that it deems relevant and appropriate.
       This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 30 days of this order. A supplemental transcript containing all

affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall

be forwarded to this Court within 60 days of the date of this order. Any extensions of time must be

requested by the trial court and shall be obtained from this Court.



Filed: October 18, 2017
Do not publish
