Arredondo v Thaler, No. 4:2009cv01459 - Document 10 (S.D. Tex. 2010)

Court Description: MEMORANDUM AND OPINION granting 8 MOTION for Summary Judgment. Certificate of appealability will not issue.(Signed by Judge Lee H Rosenthal) Parties notified.(esmith, )

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nse. The testimony cited by Arredondo's counsel in this habeas petition is not to the contrary. Arredondo testified that he did not throw the first punch in the bar fight. He did not specifically testifl that he struck the victim. Instead, Arredondo testified that he "assumed" he hit the victim. He denied having a beer bottle, and he denied any knowledge of how the victim's ear was cut. Arredondo essentially denied that he had committed aggravated assault. He did not testify that he was in fear or that he reasonably believed that his conduct was immediately necessary to protect himself. He suggested that others involved in the ensuing maylay in the bar might have struck the blow that injured the victim's ear. (Docket Entry No. 9, pp. 3-4). Arredondo did not testie that he acted in self-defense. Any objection that defense counsel might have made to the jury charge because it lacked a self-defense instruction, would have been futile. Counsel cannot be deficient for failing to press a frivolous point. Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. '1990); Green v. Johnson, 160 F.3d 1029, 1036-37 (5th Cir. 1998), cert. denied, 525 U.S. 1174 (1999) (citing Sones v. Hargett, 61 F.3d 410, 415 (5th Cir. 1995)). Because the evidence at trial did not raise the issue of self-defense, trial counsel's failure to request a jury instruction was neither deficient nor prejudicial. Arredondo requests an evidentiary hearing. (Docket Entry No. 1, p. 23). Section 2254(e)(2) provides: If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that- P:\CASES\prisoner-habeasUOO9\09-1459.W3 wpd 10 (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 factfinder would have found the applicant guilty of the underlying offense. Id. A petitioner is not entitled to an evidentiary hearing "if his claims are merely conclusory allegations unsupported by specifics or contentions that in the face of the record are wholly incredible." Young v. Herring, 938 F.2d 543,559 (5th Cir. 1991). "If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the petition asjustice shall require." Rule 8 of the Rules Governing Section 2254 Cases. This court has been able to resolve all the issues raised in this case based on the pleadings and state-court records. Arredondo has failed to provide a factual basis for granting an evidentiary hearing. An evidentiary hearing is not required because there are no relevant factual disputes that would require development to resolve the claims. Robinson v. Johnson, 151 F.3d 256,268 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). The request for an evidentiary hearing is denied. IV. Conclusior~ The respondent's motion for summary judgment, (Docket Entry No. 8), is granted. Arredondo's petition for a writ of habeas corpus is denied. Any remaining pending motions are denied as moot. P:\CASES\prisoner-habeasDoO9\Q9-1459.b03 wpd Under the AEDPA, a petitioner must obtain a certificate of appealability before appealing the district court's denial of habeas relief. 28 U.S.C. fj 2253(c)(2). "This is a jurisdictional prerequisite because the COA statute mandates that '[ulnless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals . . . ."' Miller-El v. Cockrell, 537 U.S. 322 (2003) (citing 28 U.S.C. 5 2253(c)(1)). "The COA statute establishes procedural rules and requires a threshold inquiry into whether the circuit court may entertain an appeal." Id. (citing Slack v. McDaniel, 529 U.S. 473,482 (2000); Hohn v. United States, 524 U.S. 236,248 (1998)). A COA will be granted only if the petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing, a petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880,893 n.4 (1983) (citation and internal quotation marks omitted). Arredondo has not made "a substantial showing of the denial of a constitutional right." A certificate of appealability will not issue. SIGNED on June 4,2010, at Houston, Texas. Lee H. Rosenthal United States District Judge P \CASES\prisoner-hateasU009\09-1459.W3wpd

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