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Thus, Applicant contends that the decision of the state court on remand was not in accordance with federal law as determined by the Supreme Court, and that the Supreme Court’s remand to this Court was not intended to be a ruling on the merits of the subsequent applications of Applicant. Therefore, Applicant argues that the Court of Appeals erred in not re-open the appeal when it determined, on remand, that it was improper to dismiss the appeal and remand only for the retrial of the guilt/innocence phase.
Applicant has raised a substantial showing that the application of federal law as determined by the Supreme Court was erroneously rejected. Ground two of the Petitioner’s application for writ of habeas corpus is therefore granted.
C. Pre-Sentence Investigation Materials and General Evidence
In ground three of the application, Applicant seeks to challenge his conviction on the basis of the improper denial of discovery of evidence. Respondent asserts that the issue was raised in an application for post-conviction relief, and has been rejected in the State’s motion for dismissal. In his concurrence to the motion for dismissal, the state district court judge stated that this claim was procedurally barred under TEX.CRIM. PROC.CODE ANN. § 27.05 (Vernon 2000).
For the reasons stated in the Court’s findings of fact and conclusions of law in applicant’s application for federal habeas corpus relief, ground three of the Petitioner’s application for writ of habeas corpus is granted.
D. Lack of Effective Assistance of Counsel During Guilt/Innocence Phase
Ground four of the application raises a claim of ineffective assistance of counsel during the guilt/innocence phase. Applicant *717 contends that his attorney was ineffective in not securing the discovery of the pre-sentence investigation (PSI) materials. This material contained information about the previous arrest of George Hatcher, a witness who testified against the Defendant. Applicant also contends that his attorney failed to adequately pursue mitigation evidence during the punishment phase of the trial.
The Court agrees with the findings of fact and conclusions of law set forth in the state court order on remand and the State’s motion for dismissal. The Court acknowledges that a claim of ineffective