Opinion
No. WR-70,832-02
October 6, 2010. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus Cause No. W00-02424-M(B), appeal from the 194th Judicial District Court, Dallas County.
ORDER
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 June 2001, Applicant was convicted of the offense of capital murder. The jury answered the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc., and the trial court, accordingly, set punishment at death. This Court affirmed Applicant's conviction and sentence on direct appeal. Murphy v. State, 112 S.W.3d 592 (Tex. Crim. App. 2003). This Court denied relief on Applicant's initial post-conviction application for writ of habeas corpus. Ex parte Murphy, No. WR-70,832-01 (Tex. Crim. App. March 25, 2009) (not designated for publication). Applicant's instant post-conviction application for writ of habeas corpus was received in this Court on July 26, 2010. The record reflects that Applicant is currently challenging his conviction in Cause No. 3:10-CV-163-N, styled Jedidiah Isaac Murphy v. Rick Thaler, in the United States District Court for the Northern District of Texas, Dallas Division. The record also reflects that the federal district court has entered an order staying its proceedings for Applicant to return to state court to consider his current unexhausted claims. Therefore, this Court may exercise jurisdiction to consider this subsequent state application. See Ex parte Soffar, 143 S.W.3d 804 (Tex. Crim. App. 2004). Applicant presents three allegations. The second and third allegations do not satisfy an exception to Texas Code of Criminal Procedure Article 11.071, § 5, and are dismissed as an abuse of the writ. Before determining whether the first allegation satisfies the requirements of Texas Code of Criminal Procedure Article 11.071, § 5, we order the trial court to make findings of fact and conclusions of law regarding whether or not the factual basis of the claim was ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed. See Art. 11.071, § 5(e). If the trial court determines that the factual basis of the claim was not ascertainable through the exercise of reasonable diligence on or before the date the initial application was filed, then it will proceed to determine the merits of the claim. The trial court shall resolve the issues presented within 90 days of the date of this order. A supplemental transcript containing all affidavits and the trial court's findings of fact and conclusions of law shall be returned to this Court within 120 days of the date of this order. IT IS SO ORDERED THIS THE 6TH DAY OF OCTOBER, 2010.
Any extensions of time should be obtained from this Court.