Opinion
No. WR-52,775-02
October 18, 2005. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus in Cause No. B-98-0444-S from the 119th District Court of Tom Green County
ORDER
This is a subsequent application for habeas corpus filed pursuant to Texas Code of Criminal Procedure, Article 11.071, Section 5. Applicant asserts he is actually innocent and that his attorney was ineffective for failing to discover his alibi witness. Applicant was convicted of capital murder in May, 1999. We affirmed the conviction and sentence. Ramirez v. State, No. 73,510 (Tex.Crim.App. Feb. 13, 2002). In March, 2002, applicant filed his initial application for writ of habeas corpus pursuant to Article 11.071. We denied relief. Ex parte Ramirez, No. WR-52,775-01 (Tex.Crim.App. October 23, 2002). Applicant's claims of actual innocence and ineffective assistance of counsel are raised on the same facts he brought in his initial writ application. The decisions of the Supreme Court of the United States in Wiggins v. Smith, 123 S.Ct. 2527 (2003), and Rompilla v. Beard, 125 S.Ct. 2456 (2005), were subsequent to and unavailable at the time of the initial application in this cause. However, neither decision creates a new legal basis for a review of the factual allegations which were presented and reviewed on applicant's initial writ application. We have reviewed the application and find that it fails to meet the requirements of Texas Code of Criminal Procedure, Article 11.071, Section 5. Accordingly the application is dismissed as an abuse of the writ. IT IS SO ORDERED.