Opinion
WR-76,669-15 WR-76,669-16
10-09-2024
EX PARTE MICHAEL ASIBEY OSEI, Applicant
Do not publish
On Applications for writs of Habeas Corpus Cause Nos. W-0348341-D & W-0348342-D in the 194th District Court from Dallas County
ORDER
PER CURIAM.
Applicant was convicted of aggravated assault on a public servant with a deadly weapon and sentenced to 40 years' imprisonment. The Fifth Court of Appeals affirmed his convictions. Osei v. State, Nos. 05-04-00389-CR, 05-04-0090-CR (April 22, 2005, pet. ref'd). Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant filed motions to recuse the habeas judge, asserting that the judge's failure to hold live hearings before denying Applicant's previous writs reflected his bias in favor of the State. -15 WRIT 88; see Tex. R. Civ. P. Rule 18a; Ex parte Sinegar, 324 S.W.3d 578, 581 (Tex. Crim. App. 2010). The records before this Court do not indicate that the judge took any action on these motions, or any other action in these cases. This Court's disposition of these applications is based on our independent review of the records. See Art. 11.07, Sec. 3(c). Therefore, it is not necessary to remand these applications for the habeas judge to address the motions to recuse.
Applicant challenged these convictions in previous Article 11.07 applications that were disposed on the merits. Therefore, these applications are subsequent. Tex. Code Crim. Proc. art. 11.07, § 4. Applicant's first allegation of ineffective assistance of trial counsel does not rely on a previously unavailable factual or legal basis or contain sufficient facts establishing that, by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found Applicant guilty beyond a reasonable doubt. Tex. Code Crim. Proc. art. 11.07, § 4(b). This Court may not consider the merits of this allegation. Tex. Code Crim. Proc. art. 11.07, § 4(a).
Applicant's second and third allegations rely on a notice raising concerns about the State's forensics examiner's ballistics analysis. This notice post-dates the previous applications. These allegations could not have been presented in previously considered Article 11.07 applications because the factual basis was unavailable when Applicant filed the previous applications. Tex. Code Crim. Proc. art. 11.07, § 4(a)(1), (c). Therefore, this Court has considered Applicant's second and third allegations on the merits.
Based on our independent review of the records, we conclude that Applicant has not shown by clear and convincing evidence, that despite the evidence of guilt that supports his convictions, no reasonable juror could have found him guilty in light of the new evidence. Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006); Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002); see also Ex parte Coty, 418 S.W.3d 597, 605 (Tex. Crim. App. 2014). Applicant's second and third allegations are without merit.
Applicant's first allegation is dismissed as subsequent. Applicant's second and third allegations are denied.
Copies of this order shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.