Ayestas v. Thaler, No. 4:2009cv02999 - Document 51 (S.D. Tex. 2014)
Court Description: MEMORANDUM OPINION AND ORDER denying 49 Sealed Motion for Funding of Ancillary Services, mooting 48 Opposed MOTION Proceed Ex Parte and Under Seal under 18 U.S.C. s. 3599. Petitioner's Ineffective Assistance of Counsel Claims are denied as procedurally defaulted. No Certificate of Appealability will issue in this case. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Ayestas v. Thaler Doc. 51 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CARLOS AYESTAS, § § § § § § § § § § § § Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice-Correctional Institutions Division, Respondent. CIVIL ACTION NO. H-09-2999 MEMORANDUM OPINION AND ORDER Petitioner Carlos Ayestas habeas corpus under 28 U.S.C. § filed a petition for this court granted the writ of 2254 challenging his state court conviction and death sentence for capital murder. 2011, a respondent's On January 26, motion judgment and entered judgment for the respondent. for summary On February 28, 2011, this court denied petitioner's motion to alter or amend the judgment. On February 22, 2012, the Fifth Circuit denied Ayestas' request for a certificate of appealability. Ayestas v. Thaler, No. 11-70004 (5th Cir., Feb. 22, 2012). On June 6, 2013, the Supreme Court granted certiorari and remanded the case to the Fifth Circuit for reconsideration in light of the Supreme Court's decisions in Martinez v. Ryan, 1309 (2012) 132 S. Ct. (holding that ineffective assistance of state habeas counsel could, in certain circumstances, constitute cause to excuse Dockets.Justia.com a procedural default of an ineffective assistance of trial counsel claim), and Trevino v. Thaler, 133 S. Ct. 1911 (2013) applicable to the Texas capital (holding that Martinez is postconviction process) The Fifth Circuit subsequently remanded the case to this court. The parties have filed supplemental briefing on the effect of Martinez on this case. Having petition, the state court record, carefully considered Ayestas's the parties' submissions, and the applicable law, the court finds that Ayestas fails to establish cause and prejudice to excuse the procedural default of his claims of ineffective assistance of trial counsel. Therefore, the court will deny Ayestas's petition for a writ of habeas corpus on these claims. The reasons for these rulings are set out in detail below. I . Backgroundl Ayestas was convicted of capital murder for murdering Santiaga Paneque during the course of committing or attempting to commit robbery or burglary. About two weeks before the murder Ayestas and a friend went to look at a car offered for sale by Anna McDougal, who lived across the street from Paneque. McDougal went inside her house for about 15 minutes while the men inspected the car. When she came back outside, McDougal saw the two men leaving Paneque's lThis statement of facts is repeated from January 26, 2011, Memorandum Opinion and Order respondent's motion for summary judgment. -2- this court's granting the house. When she asked what they were doing, the men told McDougal that Paneque called them over to look at some furniture she was trying to sell. Paneque's son, Elin, left the house at about 8:30 a.m. He returned home for lunch at 12:23 p.m. 2 and September 5, 1995. rang the doorbell, but there was no response. the doorknob, but saw on noticed that that the the room was door He put his key in was ransacked unlocked. and items Upon entering, he were missing. The rest of the house was in much the same condition. Elin went to the house of a neighbor, Maria Diaz, and called 911. Upon returning to his house, he found his mother's body on the floor of the master bathroom. ankles. She had silver duct tape on her Elin returned to Diaz's house and asked her to go make sure that his mother was dead. called Ms. Paneque's name. on the floor. Diaz entered the Paneque house and She found Ms. Paneque lying face down Her face was a dark color and she was not breathing. Detective Mark Reynolds of the Harris County Sheriff's Department testified that the house was ransacked but bore no signs of forced entry. and vomit. Paneque's body was face down in a pool of blood Her wrists were bound with the cord from an alarm clock and then wrapped in silver duct tape. her eyes and around her neck. Reynolds also testified that it was apparent that Paneque was beaten. 2He She also had duct tape over Her face was swollen and covered stated that he specifically noted the time. -3- Reynolds showed neighbors photographs of with cuts and bruises. two suspects, and McDougal identified them as the same two men who were in Paneque's house about two weeks before the murder. One of the suspects was Petitioner and the other was Frederico Zaldivar. An autopsy conducted by Dr. Marilyn Murr, an assistant medical examiner for Harris County, revealed that Paneque suffered multiple blows while she was still alive, resulting in numerous bruises and lacerations. She had fractured bones in her right elbow and neck, and bruises on each side of her pelvic area, just above the hips. An internal examination revealed extensive hemorrhaging in the neck She had another fracture, and head. amount of force," eye. Dr. Murr substantial caused by a "significant in the roof of the orbit containing her right determined enough to kill that none of injuries The Paneque. these cause of was death was asphyxiation due to continual pressure applied to her neck for three to six minutes. indicated Dr. Murr testified that her initial report asphyxiation by ligature strangulation, but she reexamined the evidence shortly before trial at the request of the prosecutor. She then changed her conclusion to "asphyxiation due to strangulation," which allowed for the possibility that a hand or hands might have caused the asphyxia. Police recovered fingerprints from the crime scene. prints recovered from the tape around Paneque's ankles, recovered from the roll of tape, matched Ayestas. Two and two On cross- examination the defense brought out that the two prints on the tape -4 - around Paneque's ankles were only discovered shortly before trial, approximately 20 months after the murder, based on a reexamination undertaken at the prosecutor's request. Henry Nuila testified that he met Ayestas in mid-September 1995 at Ayestas' s sister's house in Kenner, Louisiana. On September 20 an intoxicated Ayestas told Nuila that he was involved in the murder of a woman in Houston. Ayestas asked Nuila for help in killing the other two participants in the murder because "they had spoken too much. Ayestas told Nuila that, /I Ayestas would kill him. Ayestas brandished a gun. Ayestas talking until Ayestas passed out. They arrested Ayestas, police. if he declined, Nuila kept Nuila then called the still in possession of the gun. Based on this evidence the jury found Ayestas guilty of capital murder for murdering Paneque during the commission or attempted commission of a burglary, robbery, or both. During the penalty phase the State presented evidence that Ayestas served possession and time in purchase misdemeanor theft. prison for in sale of that three narcotics, and Texas for burglary, and He was also the subject of a California warrant for illegal transportation of aliens. fied California days after the Candelario Martinez testi- murder Ayestas outside a motel where he was waiting for a friend. approached him After a brief conversation, Ayestas pulled a gun on Martinez and ordered him into one of the rooms. Martinez's friend was also in the room. -5- Ayestas • ordered Martinez onto the floor and threatened to kill him. Ayestas and two others took Martinez's personal belongings and forced him into the bathroom, where they again told him that they would kill him. Martinez begged discussed who would kill him. for his life as the three Ayestas finally said that he would let Martinez live, but threatened to kill his family if Martinez told the police. Ayestas and his accomplices left in Martinez's truck. Based on this evidence, along with brutality of Paneque's murder, the likelihood commit that Ayestas would violence posing a continuing actually caused Paneque's anticipated that mitigating evidence imprisonment. a human did evidence of the jury found that there is a threat death the or future to acts society, intended life would be not warrant to taken, a of criminal that Ayestas kill her and sentence that of or the life Accordingly, the trial court sentenced Ayestas to death. The TCCA affirmed Ayestas's conviction and sentence, Ayestas v. State, No. 72,928 (Tex. Crim. App. Nov. 4, 1998), and denied his application for habeas corpus relief, 69,674-01 (Tex. Crim. App. Sept. 10, Ex parte Ayestas, No. WR2008). Ayestas filed a petition for a writ of habeas corpus in this court on September 11, 2009. As discussed above, this court denied the petition and the Fifth Circuit denied a certificate of appealability. -6- This case is now back before this court of remand for reconsideration of several procedurally defaulted claims in light of the Supreme Court's decision in Martinez. II. The Applicable Legal Standards In Martinez the Supreme Court carved out a narrow equitable exception to the rule that a federal habeas court cannot consider a procedurally defaulted claim of ineffective assistance of counsel. [W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim . . . where appointed counsel in the initial-review collateral proceeding. . was ineffective under the standards of Strickland v. Washington, 466 U.S. 668 . . . (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trialcounsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit. Martinez, 132 S. Ct. at 1318. To prevail on a claim for ineffective assistance of counsel, Petitioner must show that . counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the [petitioner] by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail on the first prong of the Strickland test, Petitioner must -7- demonstrate that counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. Reasonableness is measured against prevailing professional norms, and must be viewed under the totality of the circumstances. counsel's performance is deferential. In the context of a capital Review of Id. at 688. Id. at 689. sentencing proceeding, "the question is whether there is a reasonable probability that, absent the errors, the sentencer would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Strickland, 465 U.S. at 695. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. III. A. Analysis Ineffective Assistance of Counsel Ayestas contends that his counsel rendered ineffective assistance during the penalty phase by failing to investigate and present mitigating evidence of Ayestas's history of mental illness and substance abuse. He argues that trial counsel was ineffective for failing to investigate and develop this evidence, habeas counsel evidence and was argue ineffective that for trial failing counsel to and that investigate rendered the ineffective assistance. As discussed in this court's original Memorandum Opinion and Order denying Ayestas's petition (Docket Entry No. 19), the state -8- habeas court found that Ayestas did not agree to let counsel contact his family until after jury selection was complete. The court also found that counsel made every effort to contact the family after Ayestas permitted her to do so. The court further found that the defense investigator sent a letter to the family in Honduras on May 29, 1997, six weeks before the penalty phase began. Counsel sent a second letter on June 10, 1997, stating that Ayestas finally agreed to let counsel contact his family. third letter on July 2, 1997, Counsel sent a and faxed a letter to the United States Embassy in Honduras to expedite the family's travel to the United States. Counsel informed the embassy of the need for the family's presence at trial, arranged a July 3, 1997, meeting for the family at the embassy, 1997, letter. and included a copy of the June 10, The court also found that counsel communicated with the Ayestas family by phone beginning on June 3, 1997. She spoke with Ayestas's mother, explained the situation, and requested the family's presence at trial. back. Ayestas's mother said she would call Counsel heard from the family on June 25, when Ayestas's sister, Somara Zalaya, informed counsel that the family would have difficulty leaving Honduras for the trial. Among the stated were their father's illness and economic reasons. reasons Counsel called the family again on June 26 and 27, and July 2. Ayestas's mother appeared unconcerned and gave evasive responses. Counsel's assistants also noted the mother's apparent lack of concern. The state habeas court further found that counsel informed the Honduran -9- consulate of Ayestas's arrest, indictment, and upcoming trial on June 9, 1997. Counsel evidence. has a duty Wiggins v. to Smith, investigate 539 U.S. 510 possible mitigating (2003). The record establishes, however, that counsel did attempt to investigate and develop evidence concerning Ayestas's background. Neither Ayestas instructed counsel not to call his family. the Supreme Court nor the Fifth Circuit has ever held that a lawyer provides ineffective assistance by complying with the client's clear and unambiguous instructions to not present evidence. fact, the Fifth Circuit has held on several occasions In that a defendant cannot instruct his counsel not to present evidence at trial and then later claim that his lawyer performed deficiently by following those instructions. (5th Cir. 1984), the In Autry v. McKaskle, 727 F.2d 358 defendant prevented his attorney from presenting any mitigating evidence during the punishment phase of his capital trial. The Fifth Circuit rejected Autry's claim that counsel was ineffective for heeding his instructions: knowingly made the choices, follow Autry's wishes." F.3d 318, 325-26 [his lawyer] "If Autry was ethically bound to Id. at 362;3 see also Nixon v. Epps, 405 (5th Cir. 2005) (finding that counsel was not ineffective for failing to present additional mitigating evidence 3The Autry court also rej ected the defendant's claim that counsel was required to request a competency hearing before agreeing to comply with the client's decisions. rd. -10- "A defendant cannot block his counsel over client's objection: from attempting one line of defense at trial, and then on appeal assert that counsel was ineffective for failing to introduce evidence supporting that defense."); Roberts v. Dretke, 356 F.3d 632, 638 (5th Cir. 2004) (noting that defendant may not obstruct attorney's efforts, then claim ineffective assistance of counsel); Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (finding that counsel was not ineffective for failing to call family members during punishment phase where defendant stated that he did not want family members to testify).4 Ayestas now contends that a properly conducted investigation would have uncovered evidence abuse. Respondent points of out, mental however, illness that and substance Ayestas has not presented any medical records supporting his claim that he suffered from mental medical illness records from Ayestas's conviction. before his TDCJ, trial. these While records he were submits created some after Therefore, Ayestas fails to demonstrate that counsel had any reason to believe that Ayestas suffered from mental illness, or was deficient for failing to conduct an investigation into Ayestas's alleged mental illness. 4Cf. Schriro v. Landrigan, 550 u.s. 465, 475-77 (2007) (stating that, if defendant instructed counsel not to present mitigating evidence, "counsel's failure to investigate further could not have been prejudicial under Strickland"); Amos v. Scott, 61 F.3d 333, 348-49 (5th Cir. 1995) (denying ineffective assistance claim for want of prejudice where defendant "strongly opposed" presenting any witnesses during punishment phase of trial) . -11- The record also shows that state habeas counsel retained two investigators. Petitioner's Brief on Remand (Docket Entry No. 40) at Exhibits A and B. family, In addition to speaking with Ayestas's counsel obtained Ayestas's birth certificate and school records, and was aware of his criminal history and history of substance abuse. Id. at 26, Exhibit V. Ayestas evaluated by a psychologist. Habeas counsel also had Habeas counsel raised 16 claims for relief, including 10 claims of ineffective assistance of trial counsel. SH at 2-195. While it may be possible that habeas counsel have an could raised counsel claim regarding trial ineffective-assistance-of-trialcounsel's Ayestas's history of substance abuse, failure has noted in addressing an investigate it cannot be said that the failure to do so constituted deficient performance. Court to As the Supreme ineffective-assistance-of- appellate-counsel claim, counsel are not required to raise every possible non-frivolous claim. beyond memory have "Experienced advocates since time emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." u.S. 745, 751-52 (1983). Moreover, Jones v. Barnes, 463 in light of the extremely brutal nature of Ayestas's crime and Ayestas's history of criminal violence, it is highly unlikely that evidence of substance abuse would have changed the outcome of the sentencing phase of trial or of the state habeas corpus proceeding. demonstrate ineffective assistance of -12- Therefore, Ayestas fails to state habeas counsel and .' cannot show cause for his procedural default of his claims of ineffective assistance of trial counsel. B. Investigative Funding Ayestas funding to contends that investigate assistance claims, Martinez and further ineffective assistance claim. to develop to his time and ineffective create a in support of his The decision, by its own terms, limited longstanding procedural default Thompson, 501 U.S. 722 (1991). evidence Martinez did not create any new claims for relief or new rights. only him and he filed a motion for funding to hire an investigator to develop additional serves entitles equitable exception to the rule articulated in Coleman v. Thus, to qualify for investigative funding a petitioner must satisfy the conditions of the funding statute, 18 U.S.C. That statute § 3599(f). provides that "[u]pon a finding that investigative, expert, or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence, the court may authorize the defendant's attorneys to obtain such services on behalf of the defendant [.]" 18 U.S.C.A. § 3599(f). Neither the Supreme Court nor the Fifth Circuit has defined the phrase "reasonably necessary" beyond the statute's plain language. The Fifth Circuit, however, requires a petitioner to show "that he ha[s] for investigative or expert assistance. -13- a substantial need" Clark v. Johnson, 202 F.3d 760, 768 (5th Cir.), cert. denied, 531 U.S. 831 (2000); see also Fuller v. Johnson, 114 F.3d 491, 502 (5th Cir.), cert. denied, 522 U.S. 963 (1997) that Fuller ("In light of the statutory language, we first note did assistance.") not show a substantial need for expert The Fifth Circuit upholds the denial of funding "when a petitioner has (a) failed to supplement his funding request with a viable constitutional claim that is not procedurally barred, or (b) when the sought-after assistance would only support a meritless claim, or (c) when the sought after assistance would only supplement prior evidence." Smith v. Dretke, 422 F.3d 269, 288 (5th Cir. 2005); see also Woodward v. Epps, 580 F.3d 318, 334 (5th Cir. 2009), cert. denied, 130 S. Ct. 2093 (2010). As discussed above, Ayestas fails to demonstrate that trial counsel was deficient, that there is a reasonable probability that his claimed evidence of substance abuse would have changed the outcome of either his trial or his state habeas corpus proceeding, or that his state habeas counsel was ineffective. Therefore, he fails to demonstrate that the funding he requests is reasonably necessary. Accordingly, Ayestas's motion (Docket Entry No. 49) will be denied. IV. Although Certificate of Appealability Ayestas has not requested a certificate of appealability ("COA"), the court may nevertheless determine whether he is entitled to this relief in light of the court's rulings. -14- See J t f • Alexander v. Johnson, 211 F.3d 895, 898 perfectly lawful for district court's (5th Cir. [sic] 2000) to deny ("It is [a] COA sua The statute does not require that a petitioner move for a sponte. COA; it merely states that an appeal may not be taken without a certificate of appealability having been issued."). A petitioner may obtain a COA either from the district court or an appellate court, but an appellate court will not consider a petitioner's request for a COA until the district See Whitehead v. Johnson, request. court has denied such a 157 F.3d 384, 1988); see also Hill v. Johnson, 114 F.3d 78, 82 388 (5th Cir. (5th Cir. 1997) ("the district court should continue to review COA requests before the court of appeals does") . A COA may issue only if the petitioner has made a "substantial showing of § the denial of a constitutional right." 28 U.S.C. 2253 (c) (2); see also United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). demonstrates A petitioner "makes a substantial showing when he that his application involves issues that are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further." 213 F.3d 243, 248 (5th Cir.), cert. denied, Hernandez v. Johnson, 531 U.S. 966 The Supreme Court has stated that When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of -15- (2000). reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court has carefully considered Ayestas' s concludes that his ineffective assistance foreclosed by clear, binding precedent. of argument and trial The court concludes that under such precedents Ayestas has failed to make a showing of § the 2253 (c) (2) . denial of a claims are constitutional right." "substantial 28 U.S.C. The court therefore concludes that Ayestas is not entitled to a certificate of appealability on his claims. v. Conclusion and Order For the foregoing reasons, it is ORDERED as follows: 1. Ayestas's ineffective assistance of counsel claims are denied as procedurally defaulted; 2. No Certificate of Appealability shall issue in this case; 3. Petitioner's Motion for Funding for Services in Accordance with 18 U. S. C. (Docket Entry No. 49) is DENIED; and 4. Ancillary 3599 (f) § Petitioner's Motion for Leave to File Ex Parte and Under Seal a Motion for Funding for Ancillary Services in Accordance with 18 U.S.C. § 3599{f) (Docket Entry No. 48) is MOOT. SIGNED at Houston, Texas, on this 18th day of November, 2014. ~ UNITED STATES DISTRICT JUDGE -16-
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