Rincon v. Davis, No. 4:2018cv00312 - Document 17 (S.D. Tex. 2018)
Court Description: MEMORANDUM OPINION AND ORDER granting 14 MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Rincon v. Davis Doc. 17 United States District Court Southern District of Texas ENTERED August 31, 2018 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LAURO GRIMALDO RINCON, TDCJ #1922349, David J. Bradley, Clerk § § § § § Petitioner, v. § § § § § § § § LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-18-0312 MEMORANDUM OPINION AND ORDER Lauro Grimaldo Rincon has filed a Petition for a Habeas Corpus By a Person in State Custody Entry No. conviction substance. 1), seeking relief for possession with under intent 28 to ("Petition") U.S.C. deliver 2254 a (Docket from a controlled Pending before the court is Respondent Lorie Davis's Motion for Summary Judgment With Brief in Support MSJ") § Writ of (Docket Entry No. 14). Rincon has not filed a response and his time to do so has expired. the state court record, ("Respondent's After considering the pleadings, and the applicable law, the court will grant Respondent's MSJ and will dismiss this action for the reasons explained below. Dockets.Justia.com I. A grand jury in Background Montgomery County, Texas, returned an indictment against Rincon in case number 12-02-01982-CR, charging him with "possess[ion] substance, Ill namely, with cocaine, intent to deliver in an amount of 400 a controlled grams or more The indictment was enhanced for purposes of punishment as a habitual offender with allegations that Rincon had at least two prior felony convictions for possession distribute marijuana and for attempted murder. 2 with intent to A jury in the 9th District Court for Montgomery County found Rincon guilty as charged in the indictment and sentenced him to 99 years' imprisonment. 3 On direct appeal Rincon argued that the trial court abused its discretion by refusing to order the state to divulge the identity of a confidential informant and made several erroneous evidentiary rulings. 4 Rincon's An intermediate court of appeals arguments after summarizing the rejected all of evidence presented at trial, as follows: The Informant, cooperating with the United States Drug Enforcement Agency (DEA), negotiated with Angel Vazquez to purchase twenty kilograms of cocaine for $710,000. DEA Special Agent Joel Saldana testified that Vazquez was 1 Indictment, Docket Entry No. 15-13, p. 14. For purposes of identification, all page numbers refer to the pagination imprinted by the court's electronic filing system, CM/ECF. 3 Judgment of Conviction by Jury, Docket Entry No. 15-13, p. 92. 4 Brief for Appellant, Docket Entry No. 15-8, pp. 3-5. -2- brokering the deal, so Vazquez would put the buyer and seller together and would make a profit out of the deal. The Informant and an undercover DEA agent met with Vazquez and others in December 2012 to complete the sale. The sale fell through, however, because the sellers wanted to see the money first, and the DEA did not have the money. Agent Saldana testified that Vazquez seemed determined to make the sale. Vazquez told the Informant that he had found someone else to supply the cocaine. Over [Rincon's] hearsay and Confrontation Clause objections, the trial court admitted several Spanish-to-English translated transcripts of recorded telephone calls including Vazquez, the Informant, and the Informant's wife between February 11, 2013, and February 18, 2013. During the calls, Vazquez repeatedly referred to unidentified owners of the cocaine as "they," "he," and "those people."[] He also referenced his conversations with "the old man."[] At around noon on February 22, Agent Saldana and Houston Police Officer Jose Benevides (both undercover) met with Vazquez, Vazquez's brother, and [Rincon] at a motel in Houston. During the meeting, Vazquez referred to [Rincon] as "el viejo," which means "older man." Agent Saldana testified that Vazquez said, "This is the man that is going to make it happen. He knows the source of supply. He is good friends with them. He's going to make it happen. That's why I brought him with me." Vazquez continued, "Look at him. He looks like a day laborer. No one ever suspects of him being involved in this." Agent Saldana brought a vehicle with secret trap compartments for storing cocaine. Agent Saldana showed the three suspects how to use the trap compartments although Vazquez was already familiar with the vehicle from his prior dealings with the Informant. [Rincon] sat in the passenger seat of the car to look at the trap near the glove box. Agent Saldana asked Vazquez to send Saldana a picture of the cocaine next to the vehicle, and Vazquez agreed. As the three suspects left in the trap vehicle, Vazquez said that [Rincon] was going to take them to where the cocaine was located. The three suspects went to the stash house, which was then placed under surveillance. [] Because Agent Saldana's pictures, Vazquez sent Blackberry could not the picture of the -3- receive cocaine (State's Exhibit 183) to the Informant, who forwarded it to Officer Benevides. Later that evening, Agent Saldana met with Vazquez and [Rincon] in the parking lot of a restaurant. Agent Saldana asked Vazquez to show Saldana one kilogram of cocaine before consummating the transaction. At this request, Vazquez became "very agitated." [Rincon] got out of the vehicle, and Agent Saldana said, "I just want to see one kilo." [Rincon] appeared receptive because he said "un kilo" or "solo kilo," which to Agent Saldana was "like, oh, it's only one kilo. Let's be reasonable." But Vazquez became belligerent and was trying to get Agent Saldana in their vehicle. Agent Saldana refused, went to his vehicle, and drove away while radioing Officer Benevides to activate a "kill switch" for the trap vehicle. This immobilized the vehicle. Ultimately, [Rincon] and Vazquez were arrested, and two cell phones were seized - a Samsung phone and an LG phone. Meanwhile, a van occupied by Vazquez's brother and two other people left the stash house. A deputy with the Montgomery County Sheriff's Department stopped the van and searched it after obtaining the driver's consent. The deputy found ten kilograms of cocaine and at least four cell phones. Rincon v. State, No. 14-14-00535-CR, 2016 WL 675410, at *1-2 (Tex. App. - Houston Thereafter, [14th Dist.] Feb. 18, 2016) (footnotes omitted). the Texas Court of Criminal Appeals refused Rincon's petition for discretionary review. Rincon challenged his conviction further by filing an Application for a Writ of Habeas Corpus Seeking Relief From Final Felony Conviction Under [Texas] Code of Criminal Article 11.07 ("Application") with the trial court. 5 Procedure Rincon argued that he was denied effective assistance of counsel at trial and on direct appeal, prosecutorial 5 and he misconduct also asserted in connection multiple with Application, Docket Entry No. 16-37, pp. 6-31. -4- claims the of state's presentation of its case at trial. 6 The trial court entered findings of fact and concluded that Rincon was not entitled to relief. 7 The Texas Court of Criminal Appeals agreed and denied relief without a written order on findings made by the trial court without a hearing. 8 Rincon now contends that he is entitled to federal habeas relief from his conviction under 28 U.S. C. § 2254 (d) for the following reasons: 1. He was denied effective assistance of counsel at trial because his attorney failed to offer an affidavit or testimony from a co-defendant who claimed "total responsibility" for the controlled substance on which the petitioner's conviction was based. 2. He was denied effective assistance of counsel on direct appeal because his attorney failed challenge the sufficiency of the evidence or his trial attorney's failure to call a co-defendant as a defense witness. 3. The prosecution failed to timely disclose exculpatory evidence in the form of an affidavit from a co-defendant, which showed that the petitioner had no "affirmative links" to the controlled substance. 9 The respondent moves for summary judgment, arguing that Rincon is not entitled to relief because his ineffective-assistance claims 6 See id. at 11-28. Findings of Fact No. 16-39, pp. 24-27. 7 and Conclusions of Law, Docket Entry 8 Action Taken on Writ No. 87,645-01, Docket Entry No. 16-35, 9 Petition, Docket Entry No. 1, pp. 6-7. p. 1. -5- were properly rejected on state habeas corpus review, and his claim of prosecutorial misconduct is procedurally barred as well as without merit. 10 II. Standard of Review A federal habeas corpus petitioner "must exhaust all available state remedies before he may obtain federal habeas relief." v. Hargett, 61 F.3d 410, 414 (5th Cir. 1995). Sones To the extent that the petitioner's claims were adjudicated on the merits in state court, his claims are subject to review under the Antiterrorism and Effective Death Penalty Act of u.s.c. may § not 2254(d) grant ( "AEDPA"), codified at decision unless that unreasonable application of, the was state contrary court's to, or adjudication involved an clearly established Federal law, as determined by the Supreme Court of the United States[.]" § 2254(d) (1). 28 Under the AEDPA a federal habeas corpus court relief "resulted in a 1996 28 U.S.C. Likewise, if a claim presents a question of fact, a petitioner cannot obtain federal habeas relief unless he shows that the state court's denial of relief "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." "'A state court's 28 U.S.C. decision is § 2254 (d) (2). deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a 10 prior decision of the Supreme Court Respondent's MSJ, Docket Entry No. 14, pp. 9-19. -6- or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.'" 215 (5th Cir. 2015) Matamoros v. Stephens, (citations omitted) . To 783 F.3d 212, constitute an "unreasonable application of" clearly established federal law, a state court's holding "must be objectively unreasonable, not merely wrong; even clear error will not suffice." S. Ct. 1372, 1376 (2015) 1697, 1702 (2014)). is required to Woods v. Donald, 135 (quoting White v. Woodall, 134 S. Ct. "To satisfy this high bar, a habeas petitioner 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)). The evaluating AEDPA "imposes state-court a 'highly rulings,' deferential [which] standard 'demands state-court decisions be given the benefit of the doubt.'" v. Lett, 130 S. Ct. 1855, 1862 (2010) for that Renico (citations omitted) This standard is intentionally "difficult to meet" because it was meant to bar relitigation of claims already rejected in state proceedings and to preserve federal habeas review as "a 'guard against extreme malfunctions in the state criminal justice systems,' substitute for ordinary error correction through appeal." 131 S. Ct. at 786 2796, n.S (1979) (quoting Jackson v. Virginia, (Stevens, J., concurring)). -7- 99 S. not a Richter, Ct. 2781, A state court's factual determinations are also entitled to deference on federal habeas corpus review. "presumed findings § to be with 2254 (e) (1). correctn "clear unless and Findings of fact are the petitioner convincing evidence.n rebuts 28 those u.s.c. This presumption of correctness extends not only to express factual findings, but also to implicit or "'unarticulated findings which are necessary to the state court's conclusions of mixed law and fact. at *13 'n Murphy v. Davis, - F.3d -, 2018 WL 4042362, (5th Cir. Aug. 24, 2018) (quoting Valdez v. Cockrell, 274 F. 3d 941, 948 n.11 (5th Cir. 2001)) i see also Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir. 2006) (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005) (5th Cir. 2004)). characterize A these Young v. Dretke, 356 F.3d 616, 629 i federal state-court unreasonable 'merely because 2277 (2010)). (2015) § 2254 (d) (2) court "may not determinations as would have reached a different 'n (quoting Wood v. "Instead, corpus factual [it] conclusion in the first instance. 2269, habeas Brumfield v. Cain, 135 S. Ct. Allen, 130 S. requires that Ct. A. 849 [a federal court] accord the state trial court substantial deference.n III. 841, Id. Discussion Ineffective Assistance of Counsel at Trial (Claim 1) Rincon contends that his trial attorney (John E. Choate, Jr.) was ineffective testimony from for a failing to co-defendant offer an affidavit who -8- claimed or present responsibility for possessing the conviction. 11 controlled Claims substance that resulted in Rincon's for ineffective assistance of counsel are governed by the standard announced in Strickland v. Washington, 104 S. Ct. 2052 (1984). To prevail under the Strickland standard a defendant must demonstrate (1) that his counsel's performance was deficient and defense. (2) that the deficient performance prejudiced the Id. at 2064. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." "To satisfy the deficient performance prong, Id. 'the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" (5th Cir. 2014) Hoffman v. Cain, 752 F.3d 430, 440 (quoting Strickland, 104 S. Ct. at 2064) . This is a "highly deferential" inquiry; "[t]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 104 S. Ct. at 2065) . To satisfy the prejudice prong" [t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 104 s. Ct. at 2068. must "affirmatively prove prejudice." A habeas petitioner Id. at 2067. A petitioner cannot satisfy the second prong of Strickland with mere speculation 11 Petition, Docket Entry No. 1, p. 6. -9- and conjecture. Cir. 1992). See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Conclusory allegations are insufficient to demonstrate either deficient performance or actual prejudice. See Day v. Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009). At the state habeas corpus court's request, Choate provided an affidavit in response to Rincon's claim that he failed to interview a co-defendant with exculpatory information. 12 Choate explained that he interviewed a co-defendant identified as Jose D. Vazquez, who had already pled guilty to the drug trafficking charges against him and had signed an affidavit defendants. 13 trying to exonerate the other Choate determined that Vazquez was "highly involved" in the charged offense and that he had information that implicated Rincon. 14 Choate noted that Vazquez would be subject to cross- examination if he testified, Rincon . 15 which could be "very damaging" After discussing it with his client, to Choate concluded that it was "too much of a risk" to call Vazquez as a witness at trial. 16 Choate asked to speak with Rincon's other co-defendants, who were represented by counsel pending trial, but was not given permission to interview them. 17 12 Affidavit, Docket Entry No. 16-39, pp. 8-9. 13 See id. at 9. 14 Id. 1sid. 16 Id. 17Id. -10- In its findings of fact, the state habeas corpus court observed that it was "familiar with the quality of Choate's legal representation" and found that he was "well-qualified to serve as appointed counsel in felony cases." 18 After finding that Choate's affidavit was "credible," the state habeas corpus court found that Choate made a valid strategic decision not to call Rincon's codefendant as a witness because Choate believed that the testimony would be "detrimental" to Rincon's defense. 19 The state habeas corpus court concluded that Rincon failed to establish that he was denied the right to effective assistance of counsel at his trial. 20 " [A] strategy conscious and informed decision on trial cannot be the basis of tactics and constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates Pape v. the entire trial with obvious unfairness." F.3d 281, 291 (5th Cir. marks omitted) 2011) Thaler, 645 (citation and internal quotation Rincon has not offered any evidence to rebut the state court's fact findings or credibility determinations, which are § presumed correct 2254(e) (1). on federal review. See 28 u.s. c. He has not otherwise alleged any facts showing that his defense counsel's strategic decision was ill conceived or that 18 Findings of Fact No. 16-39, p. 25 ~ 5. 19 20 Id. ~~ and Conclusions of Law, Docket Entry 8 and 10. Id. at 26 669 (1984)). ~ 2 (citing Strickland v. Washington, 466 U.S. 668, -11- the state habeas corpus court's conclusion was contrary to or an unreasonable application of the highly deferential standard that applies on federal habeas review. Strickland See Richter, 131 S. Ct. at 788 (emphasizing that the standards created by Strickland and§ 2254(d) are both "highly deferential," and "doubly so" when applied in tandem) (citations omitted); Beatty v. (same) . Stephens, and internal 759 F.3d 455, quotation marks (5th Cir. 2014) 463 Accordingly, Rincon does not show that he is entitled to relief on this claim. B. Ineffective Assistance of Counsel on Appeal {Claim 2) Rincon contends that he was denied effective assistance of counsel on appeal because his attorney did not challenge the sufficiency of the evidence against him or his trial attorney's deficient failure to call co-defendant Jose Vazquez as a defense witness. 21 claim, The state habeas corpus court summarily rejected this concluding that a challenge to the sufficiency of the evidence would not have been successful because the state presented "[a]mple evidence" linking Rincon to the cocaine and because Rincon failed to show that he was denied effective assistance of counsel at trial. 22 A claim of ineffective assistance on appeal is governed by the above-referenced Strickland standard, which requires the defendant 21 22 Petition, Docket Entry No. 1, p. 6. Findings of Fact No. 16-39, p. 26 ~ 2. and Conclusions -12- of Law, Docket Entry to establish both constitutionally deficient performance and actual prejudice. To establish that appellate counsel's performance was deficient in the context of an appeal, a petitioner must show that his attorney was objectively unreasonable arguable issues to appeal -- that is, in failing such a showing, demonstrating a he must also "reasonable appeal." Smith v. If the petitioner succeeds in establish probability" counsel's deficient performance, find that counsel unreasonably failed to discover non-frivolous issues and raise them. Robbins, 120 S. Ct. 746, 764 (2000). to actual that, prejudice but for by his "he would have prevailed on his Id. The record reflects that Rincon's appellate attorney (Rick Brass) filed an articulate, well-researched brief, which asserted seven points of error for consideration on appeal. 23 Rincon does not allege facts to support his claim that counsel was deficient for failing to raise any other issue on appeal or that the result would have been different if he had. The Fifth Circuit has made clear that conclusory ineffective-assistance claims do not merit federal habeas corpus relief. F.3d 577, 587 (5th Cir. 2002) See, e.g., Collier v. Cockrell, 300 ("This Court has made clear that conclusory allegations of ineffective assistance of counsel do not raise a constitutional issue in a (citing Miller v. 23 Johnson, federal 200 F. 3d 274, habeas proceeding.") 282 (5th Cir. Brief For Appellant, Docket Entry No 15-8, pp. 1-48. -13- 2000)); Green v. Johnson, conclusory 160 F.3d 1029, allegations in 1042 support of (5th Cir. a claim 1998) of ("Mere ineffective assistance of counsel are insufficient to raise a constitutional issue."); Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (holding that the petitioner's conclusory allegations failed to establish a valid ineffective assistance of counsel claim) . As explained above, Rincon has failed to establish that he had a valid ineffective-assistance claim against his trial counsel. The court's own review of the record confirms that there was more than sufficient evidence to show that Rincon was actively involved in the drug transaction that formed the basis for his conviction. There was testimony at trial showing that Rincon was the person responsible for providing the cocaine and that he was more than merely present during a meeting with an undercover DEA agent, where the transaction was negotiated at arms' length. 24 After viewing all of the evidence as required in the light most favorable to the prosecution, a rational trier of fact could have found essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 99 S. Ct. 2781, 2789 (1979) the See (holding that a conviction passes constitutional muster where a reviewing court concludes that, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of 24 pp • 6 3 the crime beyond a Court Reporter's Record, vol. 7 2- 7 51 8 9- 9 9 10 7 111-15) • 1 1 1 -14- 6, reasonable Docket Entry No. 15-23, doubt") that (emphasis in original) . the state habeas corpus Rincon does not otherwise show court's decision to reject the ineffective-assistance claim levied at his appellate attorney was objectively unreasonable under Strickland. Therefore, he is not entitled to relief on this claim. C. Prosecutorial Misconduct {Claim 3) Rincon contends that the prosecutor engaged in misconduct by failing to disclose exculpatory evidence that a co-defendant (Jose Vazquez) claimed responsibility for the drugs, which would have shown that Rincon had no "affirmative links" to the cocaine that formed the basis for his conviction. 25 notes that a claim concerning the The respondent correctly state's failure to disclose exculpatory evidence arises under Brady v. Maryland, 83 S. Ct. 1194 ( 1963) , court. 26 and that Rincon did not raise a Brady claim in state Because Rincon has no available avenue to return to state court to exhaust this procedurally barred claim, from the respondent argues federal review. 27 that Alternatively, respondent argues that the claim lacks merit. 28 25 Peti tion, Docket Entry No. 1, p. 7. 26 Respondent's MSJ, Docket Entry No. 14, pp. 14-19. 27 Id. at 14-17. 28 Id. at 18-19. -15- it is the 1. The Claim is Procedurally Barred Review of the state court record reflects that, although Rincon lodged several allegations of prosecutorial misconduct in his state habeas Application, 29 he did not mention a failure to disclose evidence or raise his proposed Brady claim on state habeas corpus review. He therefore failed to exhaust his available state remedies as required by 28 U.S.C. § 2254(b). exhaust state court remedies when he Rincon's failure to had the chance to do so constitutes a procedural default that is adequate to bar federal review. See Neville v. Dretke, 423 F.3d 474, 480 (5th Cir. 2005) (concluding that unexhausted claims, raised in state court due which could no to Texas' longer be prohibition on successive writs, were procedurally defaulted); see also Finley v. Johnson, 243 F.3d 215, 220 (5th Cir. 2001) (same) (citing Fearance v. Scott, 56 F.3d633, 642 (5thCir. 1995)). If a petitioner has committed a procedural default, habeas corpus review is available only if he federal can demonstrate: (1) "cause for the default and actual prejudice as a result of the alleged violation of federal law," or (2) that "failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991). To satisfy the exception of reserved for fundamental miscarriages justice, a petitioner must provide the court with evidence that would support 29 See Application, Docket Entry No. 16-37, pp. 15-28. -16- a "colorable showing of factual innocence.n 10 6 s. Ct . 2 616 innocence, and I 2 6 2 7 ( 19 8 6) . he does Kuhlmann v. Wilson, Rincon makes no showing of factual not otherwise demonstrate cause for his default. attempt Accordingly, to explain or Rincon's Brady claim is procedurally barred from federal review. 2. The Claim Lacks Merit More importantly, Rincon's Brady claim lacks merit for reasons explained by the respondent. "must show three things: the defense, either To prove a Brady claim a petitioner (1) the evidence at issue is favorable to because it is exculpatory or impeaching, (2) the prosecution suppressed the evidence, and (3) the evidence is material.n v. Brown, 650 Murphy, 2018 WL 4042362, at *13 (citing United States F. 3d 581, 587-88 (5th Cir. 2011)) "Suppressed evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. v. Bagley, 105 S. Ct. 3375, 3383 Id. In (quoting United States (1985)) The record reflects that Rincon's trial attorney was aware that Jose Vazquez had signed an affidavit attempting to exonerate his co-defendants and that counsel interviewed Vazquez deciding not to call Vazquez as a witness at trial. 30 before Because this evidence was known to defense counsel, it was not suppressed. See Brown, 650 F.3d at 588 (Evidence is not suppressed for purposes of 30 Affidavit, Docket Entry No. 16-39, p. 9. -17- establishing a violation of Brady "'if the defendant knows or should know of the essential facts that would enable him to take advantage of it.'") (quotation omitted) For this additional reason, Rincon is not entitled to relief on this claim. Because Rincon has relief, failed to establish any valid claim for Respondent's MSJ will be granted and this case will be dismissed. IV. Certificate of Appealability Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of right," 28 demonstrate court's U.S.C. "that 2253(c) (2), § 'reasonable assessment the denial of a of the which requires jurists would constitutional constitutional a petitioner to find the claims district debatable wrong."' Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) Slack v. McDaniel, 120 S. 1595, standard "jurists of reason could disagree with the of his requires 1604 controlling resolution this Ct. constitutional a (2000)). petitioner claims or to (quoting Under show [reviewing] that or the that court's jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Buck v. Davis, 137 S. Ct. 759, 773 (2017) (citation and internal quotation marks omitted) A district sua sponte, court may deny a certificate of appealability, without requiring further briefing or argument. -18- See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). After careful review of the pleadings and the applicable law, the court concludes that reasonable jurists would not find the assessment of the constitutional claims debatable or wrong. Because the petitioner does not demonstrate that his claims could be resolved in a different manner, a certificate of appealability will not issue in this case. V. Conclusion and Order The court ORDERS as follows: 1. Respondent Lorie Davis's Motion for Summary Judgment (Docket Entry No. 14) is GRANTED. 2. Lauro Grimaldo Rincon's Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DENIED, and this action will be dismissed with prejudice. 3. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 31st day of August, 2018. 7 SIM LAKE UNITED STATES DISTRICT JUDGE -19-
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