Espinoza v. Thaler
Filing
21
ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 15 Memorandum and Recommendations, adoopted 11 MOTION for Summary Judgment with Brief in Support is GRANTED. Action is Dismissed, and a Certificate of Appealability is DENIED..(Signed by Judge Nelva Gonzales Ramos)(Petitioner notified with white card/lrs) Parties notified.(lsmith, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
SAMUEL ESPINOZA,
Petitioner
v.
RICK THALER, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent
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CIVIL ACTION NO. 2:11-CV-00146
ORDER ADOPTING MAGISTRATE JUDGE’S
MEMORANDUM AND RECOMMENDATION REGARDING
RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION
Pending before the Court is Respondent’s Motion for Summary Judgment. (D.E. 11.)
On November 17, 2011, United States Magistrate Judge B. Janice Ellington signed a
Memorandum and Recommendation addressing Respondent’s Motion for Summary Judgment.
(D.E. 15.) The Magistrate Judge recommends that the Court grant Respondent’s Motion for
Summary Judgment and deny Petitioner’s habeas corpus petition. (Id. at 1–2.) Petitioner filed
numerous objections to the Magistrate Judge’s Memorandum and Recommendation. (D.E. 20.)
Petitioner is entitled to a de novo disposition of those portions of the Magistrate Judge’s
Memorandum and Recommendation to which timely objections were filed. FED. R. CIV. P. 72(b);
28 U.S.C. § 636(b)(1); Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993). After reviewing
the Magistrate Judge’s findings of fact and conclusions of law, Petitioner’s objections, and all
other relevant parts of the record, and having made a de novo disposition of those portions of the
Magistrate Judge’s recommended disposition to which objections were raised, the Court
overrules Petitioner’s objections and adopts as its own the findings and conclusions of the
Magistrate Judge, as supplemented herein.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On February 2, 2006, Petitioner Samuel Espinoza was found guilty of solicitation to
commit capital murder, a first degree felony, in the 214th Judicial District Court of Nueces
County, Texas. (D.E. 7-14, Tr. vol. V, 40:21–24.) The indictment charged that on or about
April 27, 2005, Petitioner requested, commanded, or attempted to induce John Lubbock, an
undercover agent, to cause the death of Federico Hernandez, the husband of Ms. Herminia
Ozuna. (D.E. 7-7 at 8–9.) Petitioner and Ms. Ozuna were romantically involved and working
together to arrange a drug transaction.
In the course of negotiating the drug deal with a
confidential police informant, Ms. Ozuna inquired whether the informant knew anybody she
could hire to kill her husband. The confidential informant set up a meeting between Ms. Ozuna
and John Lubbock, a retired Texas Department of Public Safety Officer who agreed to pose as
the “hit man.” The confidential informant indicated to Ms. Ozuna that the murder would cost
$5,000, and she would have to pay the hit man half of the money up front.
Petitioner was aware of the murder-for-hire scheme through his dealings with Ms. Ozuna.
Petitioner accompanied Ms. Ozuna to the meeting with Mr. Lubbock, which took place in a
Corpus Christi motel room. The meeting was videotaped, and the videotape was shown to the
jury during trial. During the meeting, Ms. Ozuna presented Mr. Lubbock with a picture of her
husband, a note with his address, and forty dollars as a down payment. Petitioner asserted his
agreement with the murder-for-hire plan, and he can be seen on the videotape mimicking a pistol
with his hand. At trial, Mr. Lubbock testified that Petitioner indicated he wanted the husband
2
killed with a pistol by holding his hand and saying, “I want it done that way.” (D.E. 7-12,
Tr. vol. III, 205:10–206:10.) In the transcript of the videotape, Petitioner does not use those
exact words, but he does assent to the murder. (Tr. vol. III, 196:14–200:10.)
After finding Petitioner guilty of solicitation to commit capital murder, the jury sentenced
Petitioner to sixty years confinement in the Institutional Division of the Texas Department of
Criminal Justice. (D.E. 7-15, Tr. vol. VI, 52:16–21.) Following his conviction and sentencing,
Petitioner filed a motion for a new trial which was denied by the trial court. (D.E. 7-8 at 87–90;
D.E. 7-16, Tr. vol. VII, 21:19–20.) Petitioner then filed a direct appeal with the Court of
Appeals for the Thirteenth District of Texas. The Court of Appeals affirmed the trial court’s
judgment. (D.E. 7-3.) Petitioner filed a petition for discretionary review with the Texas Court of
Criminal Appeals, which was refused. (D.E. 7-4 & 7-5.)
Petitioner filed a petition for habeas corpus relief in state court on August 22, 2008.
(D.E. 7-19 at 7–65.) On November 23, 2010, the trial court entered its proposed findings of fact
and conclusions of law. (D.E. 7-19 at 113–26.) The Texas Court of Criminal Appeals denied
Petitioner’s application for a writ of habeas corpus without a written order on the findings of the
trial court. (D.E. 7-19 at 2.) Petitioner filed a petition for habeas corpus relief with this Court on
April 30, 2011 pursuant to 28 U.S.C. §§2241 and 2254, claiming that his constitutional rights
were violated during his trial and appellate proceedings because of ineffective assistance of
counsel, lack of due process, and improper communication between the trial judge and the jury.
(D.E. 1.)
Respondent filed a Motion for Summary Judgment, requesting that Petitioner’s
application for habeas corpus relief be dismissed with prejudice. (D.E. 11.) United States
Magistrate Judge B. Janice Ellington filed a Memorandum and Opinion, recommending that the
3
Court grant Respondent’s Motion for Summary Judgment and deny Petitioner’s request for
habeas relief. (D.E. 15 at 1–2.) Petitioner objects to the Magistrate Judge’s Memorandum and
Recommendation in its entirety and requests an evidentiary hearing. (D.E. 20.)
III.
STANDARD OF REVIEW
Petitions for habeas corpus relief are governed by the standard set forth by Congress in
the Antiterrorism and Effective Death Penalty Act (AEDPA). Under the AEDPA standard, a
state prisoner may not obtain relief with respect to any claim for habeas corpus relief that was
adjudicated on the merits in state court, unless the adjudication of the claim:
(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.
28 U.S.C. § 2254(d). A state court’s decision is deemed contrary to clearly established federal
law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court
or if it reaches a different conclusion than the Supreme Court based on materially
indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404–08 (2000). A state court
unreasonably applies clearly established precedent if it identifies the correct governing legal
principle but unreasonably applies that principle to the facts of the case. See Brown v. Payton,
544 U.S. 133, 141 (2005). Under this standard, an unreasonable application is more than merely
incorrect or erroneous; rather, the state court's application of clearly established law must be
“objectively unreasonable.” Williams, 529 U.S. at 409.
Review under § 2254(d)(1) is limited to the record that was before the state court that
adjudicated the claim on the merits. Cullen v. Pinholster, ––– U.S. –––, 131 S.Ct. 1388, 1398
4
(2011). Additionally, a state court's findings of fact are presumed to be correct and the petitioner
has the burden of rebutting this presumption by clear and convincing evidence. See 28 U.S.C. §
2254(e)(1).
IV.
PETITIONER’S REQUEST FOR AN EVIDENTIARY HEARNING
Petitioner requests an evidentiary hearing on his ineffective assistance of counsel claims
to develop the state court record. (D.E. 20 at 5.) Under the AEDPA, the Court shall not hold an
evidentiary hearing unless the applicant shows that—
(A)
the claim relies on
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B)
the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable fact-finder would have found the applicant guilty of the
underlying offense.
28 U.S.C. § 2254(e).
The state court requested submissions by the parties on any pertinent factual information
regarding Petitioner’s claims. (D.E. 7-19 at 79.) There is no record of any submissions by
Petitioner. Petitioner had the opportunity to develop the record in state court, but failed to do so.
Petitioner has not shown that his claim relies on a new, retroactive constitutional law or a factual
predicate that could not have been previously discovered. Moreover, Petitioner failed to show
that, if he were granted a hearing and his allegations were proven true, he is entitled to relief. See
Murphy v. Johnson, 205 F.3d 809, 816 (5th Cir. 2000). Therefore, the Court denies Petitioner’s
request for an evidentiary hearing.
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V.
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
Ineffective assistance of counsel claims are analyzed under the two-prong test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must demonstrate that counsel’s
performance fell below an objective standard of reasonableness and that the deficient
performance prejudiced the defense. “This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687-88. Judicial
scrutiny of counsel’s performance must be highly deferential and a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance. Id. at 689. In addition, federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with unreasonableness under §2254(d). “When
§2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is
whether there is any reasonable argument that counsel satisfied Strickland’s deferential
standard.” Harrington vs. Richter, ---U.S.---, 131 S. Ct. 770, 778 (2011).
A.
Trial Counsel’s Failure to Have Petitioner Testify at the Suppression
Hearing
The trial court held a suppression hearing to address the admissibility of a statement
Petitioner made to a law enforcement officer. Petitioner did not testify at the hearing. As part of
the state habeas record, Petitioner’s attorney submitted an affidavit regarding the ineffective
assistance of counsel claims. (D.E. 7-19 at 82-86).
The state court found that Petitioner did not ask to testify at the suppression hearing, nor
did he indicate to his trial counsel that he could have testified that he misunderstood his legal
rights, or that he did not voluntarily relinquish those rights when he made his statement.
(D.E. 7-19 at 113–14.) The state court also found that defense counsel made a tactical decision
not to call Petitioner at the suppression hearing because his testimony could have been used to
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impeach him at trial. (D.E. 7-19 at 114.) The state court concluded that Petitioner received
competent representation. (D.E. 7-19 at 113–14, 118.)
This Court finds that the state court’s decision did not constitute an unreasonable
determination of the facts, nor was it contrary to or based on an unreasonable application of
clearly established Supreme Court precedent. Accordingly, Respondent is entitled to summary
judgment on this issue.
B.
Trial Counsel’s Failure to Have Petitioner Testify at Trial
Every criminal defendant possesses a constitutional right to testify on his own behalf.
Rock v. Arkansas, 483 U.S. 44, 49–52 (1987). Trial counsel has a duty to advise his client
regarding his right to testify and assist him in deciding whether or not to testify; however, the
right to testify can only be waived by the accused. Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir.
1994). A violation of a defendant’s right to testify occurs when counsel does not properly
inform the defendant of his rights, or the decision not to testify is made against the defendant’s
will. In such cases, the defendant’s decision is not a knowing, voluntary, and intelligent waiver
of his right to testify. Id.
Trial counsel stated in his affidavit that he urged Petitioner to testify during the guiltinnocence phase of the trial, but Petitioner refused to do so. (D.E. 17-9 at 84.) After the close of
evidence, Petitioner testified outside the presence of the jury that it was his decision not to
testify, and his decision was not influenced by his counsel.
(D.E. 7-14, Tr. vol. V, 6:25–7:9.)
The state court found that Petitioner’s trial counsel consulted with his client on whether he
should testify during the guilt-innocence phase of his trial, and Petitioner knowingly and
voluntarily refused to testify. (D.E. 7-19 at 116.)
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Petitioner seeks to supplement the record with an affidavit from his mother indicating
that, from the beginning of the criminal proceedings, Petitioner’s trial counsel never intended to
call him to testify. (D.E. 20 at 5 & 7.) This Court’s review under the AEDPA is limited to the
record that was before the state court so this additional evidence will not be considered.
This Court concludes that Petitioner failed to demonstrate that the state court’s decision
was based on an unreasonable determination of the facts or contrary to or based on an
unreasonable application of clearly established Supreme Court precedent.
Accordingly,
Respondent is entitled to summary judgment on this issue.
C.
Trial Counsel’s Failure to Have Petitioner Testify at Punishment Phase of
Trial
Petitioner argues that had he testified about his mental problems at the punishment phase
of the trial, he could have influenced the jury to impose a lighter sentence. (D.E. 20 at 8.) The
state court found that Petitioner failed to present any evidence indicating that Petitioner wished
to testify at the punishment phase or that his testimony could have influenced the jury to impose
a lesser sentence and thus Petitioner failed to show that his attorney was ineffective. (D.E. 7-19
at 117.)
This Court concludes that Petitioner failed to demonstrate that the state court’s decision
was based on an unreasonable determination of the facts or contrary to or based on an
unreasonable application of clearly established Supreme Court precedent.
Accordingly,
Respondent is entitled to summary judgment on this issue.
D.
Trial Counsel’s Failure to Call Dr. Capitaine at the Suppression Hearing and
at Trial
Prior to trial, Petitioner was examined by Dr. Raul Capitaine, a psychiatrist, to determine
whether Petitioner was competent to stand trial and whether Petitioner was insane at the time of
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the offense. (D.E. 7-7 at 74–77). Dr. Capitaine opined that Petitioner was competent to stand
trial and was not insane or mentally retarded at the time of the offense. (D.E. 7-7 at 78–82).
Petitioner argues that Dr. Capitaine could have testified at the suppression hearing and at trial
concerning Petitioner’s dementia, his episodes of uncontrollable violence, and his inability to
understand his legal rights. Petitioner claims this testimony could have rebutted the state’s
evidence regarding the voluntariness of his statement. Additionally, Dr. Capitaine could have
testified regarding Petitioner’s insanity and whether Petitioner understood “aiding and abetting”
and the defense of entrapment. (D.E. 1 at 10–13, 18–20; D.E. 20 at 8–9.)
Trial counsel stated in his affidavit that Dr. Capitaine’s testimony would have had little
relevance to the issues and defenses raised at the suppression hearing or trial and that Dr.
Capitaine’s testimony could have been very damaging because he had knowledge of unfavorable
mental health reports and records indicating that, among other things, Petitioner beat his dogs,
was prone to angry outbursts, and had a history of unprovoked assaultive conduct. (D.E. 7-19 at
85, 113, 116–17.) Because Dr. Capitaine’s report indicated that Petitioner’s mental health
problems did not interfere with his ability to discriminate between right and wrong, trial counsel
believed that rather than pursue an insanity defense, the best trial strategy was to show that
Petitioner did not know of Ozuna’s plan to hire a killer at the time he drove her to the meeting
and that he did nothing meaningful to encourage or aid her in that plan. (D.E. 7-19 at 83–84).
The state court found that trial counsel made a reasonable strategic decision not to call
Dr. Capitaine to testify. This Court concludes that Petitioner failed to demonstrate that the state
court’s decision was based on an unreasonable determination of the facts or contrary to or based
on an unreasonable application of clearly established Supreme Court precedent. Therefore,
Respondent is entitled to summary judgment on this issue.
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E.
Trial Counsel’s Failure to Call Any Witnesses During Trial
Ineffective assistance of counsel claims based on a failure to call witnesses at trial present
a very difficult burden for habeas petitioners to overcome because they fall within the area of
trial strategy, which is the domain of trial counsel. See Alexander v. McCotter, 775 F.2d 595, 602
(5th Cir. 1985). For this reason, such claims are disfavored. United States v. Cockrell, 720 F.2d
1423, 1427 (5th Cir. 1983). Petitioner must demonstrate prejudice, which requires that he show
that a particular witness would have testified at trial, and that the testimony would have been
favorable to Petitioner. Alexander, 775 F.2d at 602.
The state court found that Petitioner failed to provide his counsel with the names of any
witnesses who could dispute Petitioner’s role in the offense, and despite his best efforts, trial
counsel failed to find any witnesses.
Therefore, trial counsel’s actions did not constitute
ineffective assistance of counsel. (D.E. 7-19 at 117.)
This Court concludes that Petitioner failed to demonstrate that the state court’s decision
was based on an unreasonable determination of the facts or contrary to or based on an
unreasonable application of clearly established Supreme Court precedent.
Therefore,
Respondent is entitled to summary judgment on this issue.
F.
Trial Counsel’s Alleged Failure to Present a Defense
Petitioner argues that trial counsel failed to advance an insanity defense or make use of
the available psychiatric evidence.
As previously stated, Petitioner was examined by Dr.
Capitaine to determine his competency to stand trial and to consider the viability of an insanity
defense. (D.E. 7-7 at 74–77.) Dr. Capitaine concluded that Petitioner was competent to stand
trial and that he was able to distinguish between right and wrong and conform his behavior to the
requirements of the law. (D.E. 7-7 at 78–90.) Based on Dr. Capitaine’s report, as well as his own
10
observations, Petitioner’s trial counsel concluded that pursuing an insanity defense would be a
poor trial strategy because there was little indication that the defense applied, and Petitioner
would be tacitly admitting he was guilty. (D.E. 7-19 at 83–84.)
The state court found that there was no evidence to support an insanity defense; therefore,
the state court concluded that Petitioner’s trial counsel was not ineffective for failing to present
an insanity defense. (D.E. 7-19 at 114–15, 122.) This Court concludes that Petitioner failed to
demonstrate that the state court’s decision was based on an unreasonable determination of the
facts or contrary to or based on an unreasonable application of clearly established Supreme Court
precedent. Accordingly, Respondent is entitled to summary judgment on this issue.
G.
Trial Counsel’s Failure to Object to Evidence Referring to Petitioner as a
Drug Dealer and Smuggler
Petitioner argues that his attorney should have objected to evidence that Petitioner was
involved in a drug transaction because it was prejudicial. At the beginning of the trial, trial
counsel moved the court to order the State not to refer to any extraneous offenses by Petitioner,
including any involvement with drugs or a drug conspiracy. (D.E. 7-11, Tr. vol. II, 4:21–5:2.)
The trial judge denied counsel’s motion and instructed counsel that it was not necessary for him
to continue to object because a record of his objection had already been made. (Tr. vol. II, 5:18–
5:22.)
The state court found that trial counsel’s assistance was not ineffective because he had
objected to the evidence. (D.E. 7-19 at 119.) Petitioner has failed to demonstrate that the state
court’s decision was based on an unreasonable determination of the facts or contrary to or based
on an unreasonable application of clearly established Supreme Court precedent. Therefore,
Respondent is entitled to summary judgment on this issue.
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H.
Trial Counsel’s Elicitation of Testimony Referencing the Medellin Cartel of
Mexico
At trial, Sergeant Gerald Silva of the Nueces County Sheriff’s Department testified for
the prosecution concerning several recorded telephone conversations that Petitioner’s
co-defendant, Ms. Ozuna, made while in custody following her arrest. (D.E. 7-13, Tr. vol. IV,
93–159.) During one of the conversations that was played for the jury, someone states, “So, but
I mean, I don’t have the connections that Sam and his mom have. I mean, he works for the damn
Medallines, and they have connections all over the damn place.” (Tr. vol. IV, 123:8–12.) On
cross examination, the following exchange occurred between Petitioner’s trial counsel and
Sergeant Silva:
Mr. DICARLO: Your Honor, I had—I had a question. He said—
the witness said that he was Spanish-speaking, and there was a
phrase that I thought was in Spanish used that was—I was gonna
ask him about just one word. Is that all right?
THE COURT: Of course.
Q.
(By Mr. DiCarlo) What is—there was something said about
work for medejinas. What is a medejinas?
A.
I do not know.
Q.
You don’t know that? Medellin? Do you know what that
is?
A.
It’s South America. I mean, the only time I’ve ever heard
that term is in reference to people that are involved in
drugs.
Q.
What is a mechanic in Spanish, do you know?
A.
The commonly used word is mecanico, which is not an
appropriate—not the correct Spanish word.
Q.
Okay. Is there any other word that you know of—
A.
No.
(Tr. vol. IV, 161–62.) Petitioner asserts that his attorney’s elicitation of this evidence was
prejudicial and thus his attorney was ineffective. (D.E. 20 at 12.)
The state court found that the “Medellin” reference had already been made before the
issue was raised by trial counsel, and Officer Silva’s response to trial counsel’s questioning on
cross-examination was vague and unspecific, such that it neither helped nor hurt Petitioner.
12
(D.E. 17-9 at 119.) Accordingly, the state court concluded that Petitioner failed to show trial
counsel’s strategy was unsound or that his questioning was prejudicial. (Id.)
This Court
concludes that the state court’s decision was not based on an unreasonable determination of the
facts or contrary to or based on an unreasonable application of clearly established Supreme Court
precedent. Therefore, Respondent is entitled to summary judgment on this issue.
I.
Trial Counsel’s Failure to Raise a Confrontation Clause Objection
Petitioner argues that trial counsel should have objected to the admission of recorded
telephone conversations (D.E. 7-13, Tr. vol. IV, 93–159) which his co-defendant, Ms. Ozuna,
made from jail while awaiting trial. (D.E. 1-2 at 14–15.) Petitioner claims that the statements are
testimonial and their admission violated his Sixth Amendment right to confront the witnesses
against him. (D.E. 1-2 at 14–15; D.E. 20 at 13–14.)
The Sixth Amendment confrontation clause provides that in all criminal prosecutions, the
accused shall enjoy the right to be confronted with the witnesses against him. The provision bars
admission of testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had a prior opportunity for cross examination.
Crawford vs. Washington, 541 U.S. 36, 53-54 (2004).
Testimony typically is a “solemn
declaration or affirmation made for the purpose of establishing or proving some fact.” Id. at 51
(quoting 2 N. WEBSTER, AN AMERICAN DICTIONARY
OF THE
ENGLISH LANGUAGE (1828)). An
accuser who makes a formal statement to government officers bears testimony in a sense that a
person who makes a causal remark to an acquaintance does not. Id.. Testimonial statements
include, but are not limited to (1) ex parte in-court testimony or its functional equivalent; (2)
extrajudicial statements contained in formalized testimonial materials, such as confessions,
affidavits, depositions or prior testimony and (3) statements that were made under circumstances
13
which would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial date. Id. at 51–52.
The state court found that the recorded telephone conversations were initiated by Ms.
Ozuna, not law enforcement, and they constituted spontaneous statements she made to private
persons; as such, they did not qualify as “testimonial statements” barred by the confrontation
clause. (D.E. 7-19 at 120). Consequently, the state court concluded that trial counsel did not
provide ineffective assistance by failing to object. (Id. at 123.) Because the state court’s decision
is neither contrary to nor an unreasonable application of clearly established Supreme Court
precedent, and because the state court’s determination of the facts was not unreasonable in light
of the evidence presented to it, Petitioner’s claim is without merit. Respondent is therefore
entitled to summary judgment on this issue.
J.
Trial Counsel’s Failure to Request an Instruction on Accomplice Witness
Testimony
Petitioner argues that the testimony of his co-defendant, Ms. Ozuna, was essential to the
prosecution’s case against him, and had the jury been informed that it could not convict him
without some corroboration of his co-defendant’s testimony, there is a reasonable probability
that a rational jury would not have voted to convict. (D.E. 1-2 at 6–7; D.E. 20 at 14–15.)
Article 38.14 of the Texas Code of Criminal Procedure states that “[a] conviction cannot
be had upon the testimony of an accomplice unless corroborated by other evidence . . . .” Only
in-court accomplice testimony, however, is subject to the accomplice rule. Maynard v. State, 166
S.W.3d 403, 410 (Tex. App. 2005). Where there is no promise of immunity or leniency in
exchange for an accomplice’s testimony, then the justification for the rule—that an accomplice
may be inclined to fabricate her testimony to save herself at the expense of her co-defendant—is
lacking. Bingham v. State, 913 S.W.2d 208, 211 (Tex. Crim. App. 1995).
14
The state court found that because Ms. Ozuna did not testify at trial, she was not an
accomplice witness so Petitioner’s trial counsel was not ineffective for failing to request an
accomplice-witness instruction. (D.E. 7-19 at 119.) This Court concludes that the state court’s
decision did not constitute an unreasonable determination of the facts, nor was it contrary to or
based on an unreasonable application of clearly established Supreme Court precedent.
Therefore, Respondent is entitled to summary judgment on this issue.
K.
Trial Counsel’s Failure to Timely Secure Petitioner’s Presence at Hearing for
a New Trial
Petitioner was not released from custody to attend the hearing on the motion for new trial
because trial counsel failed to properly identify him in a bench warrant. Trial counsel did not
seek a continuance of the hearing. Petitioner asserts that he had a constitutional right to be
present at the hearing and his presence at the hearing would have resulted in a different outcome.
Petitioner wanted to attend the hearing to present evidence regarding his incompetency to stand
trial and his insanity defense. (D.E. 1-1 at 24–26; D.E. 20 at 15–17.)
Every defendant has a due process right under the Fourteenth Amendment to attend
hearings where “ ‘his presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge.’ ” Kentucky v. Stincer, 482 U.S. 730, 745 (1987)
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06 (1934)). This right is not absolute,
particularly “when the presence would be useless, or the benefit but a shadow.” Snyder, 291 U.S.
at 106–07.
The state court found that trial counsel did not intend to have Petitioner testify at the
hearing on his motion for new trial, and that trial counsel was unaware of anything that Petitioner
might have said at the hearing that would have assisted his cause. (D.E. 7-19 at 118.) Moreover,
the state court found that Petitioner failed to present any evidence that his presence would have
15
added anything to his motion for new trial, and therefore, he was not prejudiced. (Id.) Based on
these findings, the state court concluded that Petitioner failed to demonstrate he received
ineffective assistance of counsel. (Id. at 118 & 122.) This Court concludes that the state court’s
decision did not result from an unreasonable determination of the facts, nor was it contrary to or
based on an unreasonable application of clearly established Supreme Court precedent.
Therefore, Respondent is entitled to summary judgment on this issue.
L.
Cumulative Error
Petitioner argues that his attorney’s errors, taken together, amounted to ineffective
assistance of counsel. The state court found that because Petitioner’s individual claims for
habeas relief failed, he could not show that the cumulative effect of the alleged errors violated
his constitutional right. (D.E. 7-19 at 123.) This Court concludes that the state court’s decision
was not contrary to, nor did it involve an unreasonable application of clearly established
Supreme Court precedent, and it did not result from an unreasonable determination of the facts in
light of the evidence before the court. Accordingly, Respondent is entitled to summary judgment
on this issue.
M.
Ineffective Assistance of Appellate Counsel Claim
Petitioner claims that appellate counsel rendered ineffective assistance by failing to argue
on direct appeal that the evidence was legally insufficient to support a conviction for solicitation
to commit capital murder. (D.E. 1-2 at 19–24.) Petitioner argues that there was no evidence that
he knew of the forty dollars or that he personally offered the money to the undercover agent
posing as a hit man. (D.E. 1-2 at 22–23.) As remuneration is an element of solicitation, Petitioner
argues that there was insufficient evidence to support his conviction. (Id.)
The relevant inquiry on a legal sufficiency claim is “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact would have found the
16
essential elements of the crime beyond a reasonable doubt.” Clayton v. State, 235 S.W.3d 772,
778 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trial
court instructed the jury on the “law of parties” which allowed the jurors to find Petitioner guilty
of solicitation to commit capital murder based on Ms. Ozuna’s conduct if Petitioner knew of
Ozuna’s intent to commit capital murder and acted with intent to promote or assist the
commission of the offense by encouraging, directing, aiding, or attempting to aid Ozuna in the
commission of the offense. (D.E. 7-19 at 134.)
The state court concluded that Petitioner was not entitled to habeas relief because the
evidence presented at trial was more than sufficient to support Petitioner’s conviction. (D.E. 7-19
at 123). This Court finds that the state court’s decision was not contrary to, nor did it involve an
unreasonable application of clearly established Supreme Court precedent, and it did not result
from an unreasonable determination of the facts in light of the evidence before the court.
Accordingly, Respondent is entitled to summary judgment on this issue.
VI.
DUE PROCESS CLAIMS
A.
Trial Court’s Failure to Hold a Hearing to Evaluate Petitioner’s Competency
to Stand Trial
Petitioner claims that he was denied due process of law when the state court failed to
conduct a competency hearing to determine whether he was fit to stand trial. (D.E. 20 at 22.)
The state court found that Petitioner’s due process claim was not cognizable on a habeas petition
because Petitioner failed to raise the issue on direct appeal. (D.E. 7-19 at 124.) However, the
court considered the merits of Petitioner’s due process claim and concluded (1) there was no
evidence upon which a jury could have made a finding that Petitioner was incompetent, and
therefore, the trial court did not err in failing to hold a competency hearing; and (2) any error in
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failing to conduct a competency hearing was harmless and did not contribute to Petitioner’s
conviction or punishment. (Id.)
Petitioner contends that he can raise lack of competency for the first time on a petition for
habeas corpus. (D.E. 20 at 23.) Under Texas law, it appears that a “lack of competency can be
raised for the first time by post-trial writ of habeas corpus.” Ex Parte Wilkinson, 2008 WL
2078508, at *4 (Tex. App. 2008); Godoy v. State, 122 S.W.3d 315, 320 (Tex. App. 2003); Ex
Parte Yarborough, 607 S.W.2d 565, 567 (Tex. Cr. App. 1980)). However, the habeas petitioner
has the burden to demonstrate a lack of competency to stand trial. Id.
Under article 46B.004, TEX. CODE CRIM. PROC., when there is a suggestion that the
defendant may be incompetent to stand trial, the state court must make an informal inquiry of
whether there is any evidence to support such a finding. If, after an informal inquiry, the state
court determines that there is evidence to suggest that the defendant may be incompetent, then it
must order an examination by an expert. Art. 46B.005(a).
A formal trial on the issue of
competency is not required if neither party requests a trial. Art. 46B.005(c).
Dr. Capitaine conducted a psychiatric evaluation of Petitioner before trial. (D.E. 7-18
at 77–103.) He determined that Petitioner was not insane or retarded, and that he was competent
to stand trial. (Id.) Petitioner presents no evidence to rebut these findings. Petitioner alleges that
his mental evaluation was not performed by Dr. Capitaine, but by one of his assistants, and
therefore, he was never properly evaluated. (D.E. 20 at 23.) However, this issue was never
brought to the trial judge’s attention. It was first raised by Petitioner in his state habeas petition.
(D.E. 7-19 at 57.)
Petitioner’s trial counsel stated in his affidavit that he believed Dr. Capitaine was correct
in his conclusions and that Petitioner was able to understand the charge against him and assist in
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his defense.
Counsel also stated that Petitioner appeared rational and responsive in his
conversations with counsel. (Id. at 82.) Petitioner never stated that he was mentally incompetent
nor did he indicate to trial counsel that he desired to raise the competency issue at trial or
sentencing. (Id.)
This Court concludes that the state court’s decision that a competency hearing was not
required did not result from an unreasonable determination of the facts in light of the available
evidence, nor was it contrary to or based on an unreasonable application of clearly established
Supreme Court precedent. Therefore, Respondent is entitled to summary judgment on this issue.
B.
Trial Court Permitted Petitioner to Plea to a Fundamentally Defective
Indictment
Petitioner contends that he was prejudiced because the trial judge did not have the full
indictment read to the jury. (D.E. 1-3 at 2; D.E. 20 at 24.) When the prosecutor read the
indictment, he omitted any reference to Petitioner’s co-defendant, Herminia Ozuna. (D.E. 7-12,
Tr. vol. III, 6:20–7:21.) Trial counsel objected that this did not constitute a direct reading of the
indictment. (Tr. vol. III, 7:7–8.) Petitioner then entered a plea of not guilty. (Tr. vol. III, 7:24.)
Petitioner argues that the state court erred by allowing Petitioner to plead to a fundamentally
defective indictment and that the omission in the reading of the indictment led to trial counsel not
requesting an instruction on accomplice witness testimony. (D.E. 1-3 at 1–3; D.E. 20 at 24.)
The state court determined that Petitioner’s claim was not cognizable on habeas review
because he failed to raise the issue at trial or on direct appeal. (D.E. 7-19 at 124.) Alternatively,
the state court determined that the indictment was not defective and there was no error in not
reading a co-defendant’s name when the co-defendants are tried separately. (Id. at 124–25.) The
state court concluded that, at most, the omission of Ms. Ozuna’s name constituted a violation of
a procedural statute, which is not cognizable on a writ of habeas corpus. (Id. at 124.)
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Petitioner failed to show that the state court’s decision was based on an unreasonable
determination of the facts or contrary to or based on an unreasonable application of clearly
established Supreme Court precedent. Therefore, Respondent is entitled to summary judgment
on this issue.
VII.
CLAIM THAT THE TRIAL JUDGE IMPROPERLY MET WITH JURY
Petitioner claims that he was denied his right to a fair trial because the trial judge
improperly communicated with the jury both before and after the trial outside the presence of
Petitioner and his trial counsel. (D.E. 1-3 at 3–5; D.E. 20 at 24.) The state court found that
Petitioner’s claim was not cognizable on habeas review, and that the trial judge committed no
error by conducting the general assembly portion of the jury selection process and privately
speaking with the jurors after the trial had ended, as neither of these periods were part of the trial.
(D.E. 7-19 at 125.) Petitioner failed to present any evidence or legal authority to support his
claim that the state court’s decision constituted an unreasonable determination of the facts or was
contrary to or based on an unreasonable application of clearly established Supreme Court
precedent. Accordingly, Respondent is entitled to summary judgment on this issue.
VIII. CERTIFICATE OF APPEALABILITY
Petitioner requests that the Court grant him a certificate of appealability. (D.E. 20 at 25.)
Petitioner argues that reasonable jurists could find the district court’s assessment of his
constitutional claims debatable or wrong. (Id.) And for those claims dismissed on procedural
grounds, Petitioner argues that jurists of reason would find it debatable whether his habeas
petition states a valid claim for denial of a constitutional right, and that jurists of reason would
find it debatable whether the district court erred in its procedural ruling. (Id. at 25–26.) The
Court disagrees. Accordingly, Petitioner’s request for a certificate of appealability is denied.
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IX.
CONCLUSION
Having reviewed the findings of fact and conclusions of law in the Magistrate Judge’s
Memorandum and Recommendation (D.E. 15), Petitioner’s objections (D.E. 20), and all other
relevant documents from the record, and having made a de novo disposition of those portions of
the Magistrate Judge’s Memorandum and Recommendation to which objections were raised, the
Court adopts as its own the findings and conclusions of the Magistrate Judge, as supplemented
herein. Accordingly, Petitioner’s objections (D.E. 20) are OVERRULED; Respondent’s Motion
for Summary Judgment (D.E. 11) is GRANTED; this action is DISMISSED WITH
PREJUDICE; and a Certificate of Appealability is DENIED.
ORDERED this 8th day of March 2012.
____________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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