Damaneh, Dana Abdolahi ( 2017 )

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