Mendoza v. Stephens, No. 4:2015cv03085 - Document 10 (S.D. Tex. 2016)

Court Description: MEMORANDUM OPINION AND ORDER granting 8 MOTION for Summary Judgment with Brief in Support. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)

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Mendoza v. Stephens Doc. 10 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION June 27, 2016 David J. Bradley, Clerk BRUILO RUDIO MENDOZA , TDCJ #01820675, Petitioner, CIVIL ACTION NO . H-15-3085 LORIE DAV IS, Director , Texas Department of Criminal Justice - Correctional Institutions D ivision , Respondent x MEMOPAHDUM OPINION AND ORD ER Bruilo Rudio Mendoza , an inmate in the Texas Department of Criminal Justice Correctional Institutions Div ision , filed a Petition for a Writ of Habeas Corpus By a Person in State Custody (upetition' ') challenging aggravated assault from Harris County , Texas. the validity the 230th of his conviction for Judicial District Court of ( Docket Entry No. Pending before the court is Respondent 's Motion for Summary Judgment with Brief in Support (A 'Respondent's MSJ') ( ' Docket Entry No . 8). Mendoza has not filed a rep ly to the motion , and the state court records have been l Effective May 1, 2016 , Lorie Davis has succeeded W illiam Stephens as Director of the Texas Department of Crim inal Justice Correctional Institutions Division . Accordingly , Dav is is automatically substituted as the respondent pursuant to Rule 25( d) of the Federal Rules of Civil Procedure . A l1 page number citations are to the pagination imprinted by the federal court 's electronic filing system at the top and right of the document . Dockets.Justia.com subm itted for review . The court concludes that Mendoza is not entitled to federal habeas relief and w ill grant Respondent's MSJ for the reasons explained below . 1. Procedural Historv and Claims In Montgomery County cau se number 12-07-07741-CR Mendoza was charged by indictment with two counts of aggravated sexual assault of a child C' counts I and 11' and one count of sexual assault of ') a child (ncount 111' 2 Mendoza executed waivers of his rights and '). entered a guilty plea to the charges against him under the term s of a written plea agreement. 3 Mendoza elected to have a judge determine his punishment. The trial judge sentenced Mendoza to 4 forty years' imprisonment on Counts I and II5 and to twenty years' imprisonment on Count to run concurrently x Mendoza did not appeal his conv iction .? On July 2013 , Mendoza signed a state application for habeas relief challenging his conviction . th is application , z lndictment , Docket Entry No . 9-2 , p . 52 . 3 Waivers, Consent , Judicial Confession Docket Entry No . 9-2 , pp . 57, 64 , 7l . & Plea Agreement , 4Id . Sludgment of Conviction by Court ( Counts Entry No . 9-2 , pp . 54 , 6 1 . and 11), Docket 6 ludgment of Conviction by Court ( Count 111), Docket Entry No . 9-2, p . 68 . Rpetition , Docket Entry No . Mendoza argued that he was entitled relief because his gu ilty plea was not voluntary , he was denied the effective assistance of trial counsel, and he is actually innocent of the offenses for which he has been convictedx The state habeas court entered that Mendoza findings of fact and concluded was not entitled to relief on any of his claim s .g On Augu st 26 , 2015, the Texas Court of Criminal Appeals denied the application without written order on the findings of the trial courtx o Mendoza has now filed a petition for federal habeas corpus relief under 28 U .S .C . 5 2254 .1 1 In his Petition, Mendoza raises the same claims that were presented in state court on collateral reviewx z Arguing that these claims are without merit, the Respondent moves for summary judgmentx3 II . A. Standard of Review Summary Judgment summary judgment is appropriate if the movant establishes that there no genuine dispute about any material fact and the movant B petition, Docket Entry No . g Findings of Fact No . 9-2, pp . 49-50 . and pp . Conclusions of Law , Docket lo Action Taken , Writ No . 83,696-01, Docket Entry No . 9-1, l lpetition , Docket Entry No . l 2Id . at 6-8 . HRespondent's Motion , Docket Entry No . 8 . Entry is entitled to judgment as a matter of law. Fed. 56( a). Disputes about material facts are ugenuine' if the evidence is such ' that a reasonable jury could return a verdict for the nonmoving party . ( 1986). Anderson v . Liberty Lobby , Inc w 2505 , 2511 The Supreme Court has interpreted the plain language of Rule 56( to mandate the entry of summary judgment 'after adequate c) ' time for discovery and upon motion , against a party who fails to make a showing sufficient to establish the ex istence of an element essential to that party 's case, and on which that party will bear the burden of proof at tr ial ' ' Celotex Corp . v . Catrett, 106 S. Ct. 2548, 2552 ( 1986) A party moving for summary judgment ' ' must ' demonstrate the absence of a genuine issue of material fact ,' but need not neqate the elements of the nonmovant 's case .' Little v . Licuid Air Corp w ' F . 1069, 1075 ( 3d 5th Cir. 1994) ( per curiam) ( quoting Celotex, Ct . at 2553) the moving party meets this burden, Rule 56( requires the nonmovant to show that specific facts exist c) over which there is a genuine issue for trial . Celotex, 106 S. Ct. at 2553-54). Id. ( citing In reviewing the evidence uthe court must draw all reasonab le inferences in favor of the nonmoving party , and it may not make credibility determinations or weigh the evidence .' Reeves v . Sanderson Plumbing Products, Inc ., ' 2097, 2110 (2000). - 4- S . Ct . B. Presumptions App lied in Habeas Cases 28 U .S .C . 2254 , as amended Effective Death Penalty by the Antiterrorism and 1996 (' A AEDPA' , provides ' tlhe Q 'E statutory authority of federal courts to issue habeas corpus relief for persons in state custody .' Harrinqton v . Richter , ' 770, 783 ( 2011). When considering a summary judgment motion courts usually resolve any doubts and draw any inferences in favor of the nonmoving party . Reeves , amendments to 28 U .S .C . at 2110 . 2254 contained However , the the AEDPA change the way in which courts consider summary judgment in habeas cases. In a habeas proceeding 28 U. . S C. findings of fact made by a state 2254 4 ( mandates that e) 1) court are 'presumed to be ' correct.' This statute overrides the ordinary summary judgment ' rule. Smith v . Cockrell, 311 F. 3d 661, 668 ( 5th Cir. 2002) ( overruled on other grounds by Tennard v . Dretke, 124 S. 2565 ( 2004)) 2562, Therefore, a court will accept any findings made by the state court as correct unless the habeas petitioner can rebut the presumption of correctness nby clear and conv incing evidence .' ' 28 U . C . S. 2254 ( 1) e)( The provisions of 5 2254 ( d) set forth a 'highly deferential ' standard for evaluating state-court rulings .' Lindh v . Murphy , 117 ' S. 2059, 2066 (1997). federal court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court proceeding : ( l) resulted in a decision that was contrary to, or involved an unreasonable app lication 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 determ ination of the facts in light of the evidence presented in the State court proceeding . 28 U . . 5 2254 ( S C. d). A decision is contrary to clearly established federal 1aw if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts . Tavlor, 12O S . Ct. 1495, 1519-20 ( 2000). William s v . A decision an unreasonable application of clearly estab lished federal 1aw uif the state court identifies the correct governing legal principle but unreasonably prisoner's case .' ' applies that principle Id . at 1523 . to the facts of the review ing a state court's determ ination regarding the merit of a petitioner's habeas claim , a federal court cannot grant relief ufairminded jurists could disagree state on the Richter, correctness of at court 's decision .' ' ( internal quotation marks omitted). 111 . A. the Analvsis Involuntary Guilty Plea Mendoza contends that his guilty p lea was not intelligently or voluntarily made becau se his first appointed attorney did not meet with a private investigator and because Mendoza could not adequately communicate with her becau se she spoke a different - 6- dialect of spanishx4 After a new attorney , William Pattillo, was appointed Mendoza alleges that Pattillo did not speak Mendoza 's native dialect, did not investigate the case , and told Mendoza that he did not take the plea deal without parolexs court . would be given fifty years This claim was rejected by the state habeas A fter considering an affidavit from defense counsel , the state habeas court found that Mendoza and his attorney 'were able ' to communicate sufficiently, and E Mendoza's) claim that he was unable to understand ( his attorney) is not credible.'l The state '6 habeas court further found that uE tqhere is no credible evidence suggesting that applicant was not competent to stand trial . There is no credible evidence that material exculpatory evidence existed, but was not discovered by Patillo E sic). E Mendoza's) suggestion to the contrary is not credible .'l? Therefore , the state ' habeas court concluded that Mendoza 'knowingly and voluntarily ' entered a plea of guilty .' 'l8 It is well established that ' a) guilty plea will be upheld on 'E habeas rev iew if entered into l 4petition , Docket Entry No . knowingly , voluntarily , and pp . l yd . 5 l 6Findings of Fact and No. 9-2, p. 50 $ 5. wyd. jj lId. ! 8. 8 Conclusions Law , Docket Entry intelligently .' Montova v . Johnson, 226 F.3d 399, 404 ( ' 5th 2000) uThe critical issue determining whether a plea was voluntary and intelligent is 'whether the defendant understood the nature and substance of the charges against him , and not necessarily whether he understood their technical legal effect .'' ' James v . Cain, 56 F.3d 662, 666 ( 5th Cir . 1995) ( citation omitted) uOn federal habeas review , suffices of the maximum term of imprisonment. a defendant is informed ' long as E As the defendant) understood the length of time he might possibly receive , he was fully aware of his plea 's consequences .r' Hobbs v . Blackburn , ' F.2d 1079, 1082 ( 5th Cir. 1985) ( quoting Bradburv v . Wainwriqht, 658 F. 1083, 1087 ( 2d 5th Cir . 1981)). The habeas record established that Mendoza understood the charges against him and the consequences guilty . were to plead He executed judicial confessions to two counts aggravated sexual assault of child and one count sexual assault of a child in open court on October 19, 2012 .1 Mendoza was 9 admonished that he faced a sentence life or a term of not more than 99 years or less than 15 years in prison for Counts I and 11 .2 0 In exchange for Mendoza 's agreement to plead guilty to Counts I and the State agreed to recommend years' confinement in the Hwaivers , Consent, Judicial Confession Docket Entry No . 9-2, pp . 57 , 64 , 71. & Plea Agreement , zo Admonitions to the Defendant for Plea to Court , Docket Entry No . 9-2, pp . 56, 63 . - 8- TDCJ .2 l In connection with his guilty plea to Count 111 , Mendoza was admonished that he faced a sentence of no more than 20 years or less than two years .2 2 In exchange for his agreement , the state recommended a sentence of 20 years in TDCJ .23 For Counts 1, and 111, the state agreed to allow Mendoza's jail time credit of 3O8 days to count towards his sentence .z4 Mendoza was also admonished of the sexual offender registration requirements that would be imposed upon him if he pled guilty. 5 The judicial confessions were 2 signed by Mendoza , his defense counsel, the prosecutor , and the trial court .26 Mendoza 's defense counsel , William Pattillo , subm itted an affidav it to the state habeas court refuting Mendoza 's assertion that he cou ld not effectively communicate with his counse1 .2 7 In his affidavit , Pattillo exp lained that he was fluent in Spanish , nWaivers, Consent, Judicial Confession Docket Entry No . 9-2 , pp . 57 , 64 . Plea Agreement , H Admonitions to the Defendant for Plea to Court, Docket Entry No . 9-2, p . 7O . H Waivers, Consent, Judicial Confession Docket Entry No . 9-2 , p . 71 . 2 4Id . at & Plea Agreement , 64 , 71 . zs supp lemental Admonitions to the Defendant for Sex Offender Registration Requirements, Docket Entry No . 9-2 , pp . 58-59, 65-66, 72 -7 3 . z6 Waivers, Consent, Judicial Confession Docket Entry No . 9-2 , pp . 57 , 64 , 71 . & Plea Agreement, 27 Patti1lo A ffidavit , Docket Entry No . 9-2 , p . had a co-worker of Hispanic descent who was also fluent in Spanish , and that a certified court reporter was present at each of Mendoza 's court settings .z8 In response to Mendoza 's comp laint that Pattillo did not adequately investigate the case ,29 Pattillo stated that ' tlhere was NO evidence that controverted the state's case 'E against Brulio E sicq Mendoza. accept a plea bargain offer .r o '3 There was no alternative BUT Furthermore , Mendoza fails suggest how counsel failed to discover any ev idence favorable case . Pattillo discussed the plea offer with Mendoza and believed that it was in Mendoza 's best interest to accept the plea deal becau se , given the nature of the charge against Mendoza , a conservative Montgomery County jury could have given Mendoza a life Sentence Or a Sentence longer than the plea bargain offer .3 l In concluding that the guilty plea was 50th knowing and voluntary , the state habeas court found that Pattillo 's affidavit was ucredible .' z '3 Mendoza's conclusory allegation that he would not have p leaded guilty but for being 'very scared and E ' feeling) intimidated'3 by '3 his attorney and the sentence he would likely receive if the case went to trial does not render h is p lea involuntary . 28yd . M petition , Docket Entry No . pp . M pattillo A ffidavit , Docket Entry No . 3 d . at 1y H Findings of Fact and Conclusions of 9-2, p. 50 $ 4. H petition , Docket Entry No . Law , Docket Entry Official court records, such as the judicial confessions executed by Mendoza , defense counsel, the prosecutor, and the trial court , uare entitled to a presumption of regularity and are accorded great evidentiary weight' on habeas corpus rev iew . Hobbs, ' 757 F . at 1081 ( 2d citations omitted). Likewise, ' solemn) declara'l tions in open court carry a strong Blackledqe v . A llison, presumption of verity .' ' 1621, 1629 ( 1977); see also United States v . Cothran , 302 F.3d 279, 283-84 ( 5th Cir. 2002) (uReviewing courts give great weight to the defendant's statements at the plea colloquy .' ; United States v . Cervantes, 132 F. 1106, o 3d 1110 ( 5th Cir . 1998) ( quoting Blackledqe) Deville v . Whitley, 21 F. 3d 654, 659 (5th Cir. 1994) (u Although their attestations to voluntariness are not an absolute bar to raising this claim , Appellants face a heavy burden in proving that they are entitled to relief because such open court carries a strong testimony presumption of verity .' '). Representations made by the defendant, his counsel, and the prosecutor at a plea hearing , as well as the findings made by the trial judge accepting the plea, create a form idable barrier to a subsequent collateral attack . Blackledge, 97 S . at 1630. Credibility findings , such as those made by the state habeas court with regard to Pattillo 's Affidavit ,3 are 4 substantial deference on federal habeas rev iew . 3 4Pattillo Affidavit , Docket Entry No . - 11 - entitled to See Coleman v . p . 38 . Quarterman , 456 F. 3d 537, 541 ( 5th Cir. 2006) ( citing Guidrv v . Dretke, 397 F. 3d 306, 326 ( 5th Cir. 2005)). factual findings and credibility The state court's determ inations are presumed correct for the purposes of federal habeas corpus review unless they are rebutted with 'clear and convincing evidence .' 28 U .S .C . ï ' 5 2254 ( ( ; Valdez v . Cockrell, 274 F .3d 941, 947 ( e) 1) 5th Cir . 2001) see also Mavs v . Sterhens, F. 3d 211, ( 5th Cir . 2014) (M The presumption is especially strong when the state habeas court and the trial court are one in the same.'' ( ') quoting Clark v. Johnson, 202 F. 3d ( 5th Cir . 2000)7 Bovle v . Johnson , F. 3d 180, 186 ( 5th Cir . 1996) ('The presumption is particularly ' strong where , as here , the habeas court was the same court that presided over the trial.') ' Because Mendoza does not present any evidence rebutting the state findings , the state court's fact findings are presumed correct . Mendoza has not overcome the substantial barrier imposed by the record , and he has not demonstrated that his guilty p lea was involuntarily or unknowingly made . Because Mendoza has not established that the state habeas court 's decision to deny relief was objectively unreasonable, he is not entitled to relief on this claim . B. Ineffective A ssistance of Trial Counsel Mendoza argues that he was denied the effective assistance of trial counsel because his trial counsel failed to conduct a complete and thorough investigation; ( to have Mendoza evaluated 2) by a forensic p sychologist b0th for competence and to determ ine whether he fit the profile of a pedophile ; to request access to the minutes of the Grand Jury from the trial court , because the complaining witness was unwilling to participate in the investigation of the allegations contained within the indictment used to prosecute Mendoza; to interview the complaining witness or other witnesses who Mendoza had in formed his counsel could provide favorable evidence for his defense , and to provide any assistance other than a pro forma representation .3 Mendoza 's claim s of ineffective assistance of trial counsel was rejected on state habeas corpus review. The state habeas court found that uE Mendozaq has failed to prove by a preponderance of the evidence that he was denied his right to the effective assistance of counsel .'36 ' claim of ineffective assistance of counsel is governed by the test set out in Strickland v . Washinqton , 104 S . Ct . 2052 , 2064 ( 1984), which requires the defendant to establish both constitutionally deficient performance and actual prejudice. To be entitled to habeas corpu s relief on this issue , Mendoza must show that his trial counsel's performance was deficient and that his trial counsel's deficient performance prejudiced the defense. Id. The first prong of the test requires a show ing that 'counsel made ' M petition , Docket Entry No . M Findings of Fact and pp . Conclusions of Law , Docket 9- p. 50 $ 2. 2, - 1 3- Entry errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment .' ' Id . Under the second prong the defendant must show that 'there is ' a reasonable probability that , but for counsel's unprofessional errors , the result of the proceeding wou ld have been different.' ' Id . at 2068. See also Wilkerson v . ( 5th Cir. 1992). Collins , 950 F .2d 1054 , 1064 A u mere possibility' that a different result ' might have occurred is not enough to demonstrate prejudice. Lamb v . Johnson, 179 F. 352, 359 ( 3d 5th Cir. 1999). In the guilty-plea context, the prejudice inquiry ufocuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process.' Hill v . Lockhart, 1O6 S . Ct. 366, 370 (1985) ' Mendoza bears the burden of demonstrating that 'there ' is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial .' ' Id . Further, he mu st demonstrate a reasonable probability that he would have changed his p lea . See Arnold v . Thaler , 63O F .3d 37O ( 5th Cir. 2011). If the petitioner makes an insufficient showing on one prong the test, the Strickland , 104 S . court need not address the other prong . at 2069 . To prevail Mendoza must overcome a strong presumption that counsel rendered adequate assistance and made decisions in the exercise of reasonable professional judgment. Id . at 2065 . He must also overcome the presumption that under the circumstances his attorney 's acts or omissions might be considered - 14 - sound trial strategy . Id . See also Bell v . Cone , 122 S . Ct . 1843, 1852 ( 2002). Mendoza 's five grounds for relief pertain to his attorney 's failure thoroughly sexual investigate assault of his stepdaughter . In determining whether or not an attorney 's investi- gation was reasonable the court must consider the evidence already known to counsel and whether such evidence would lead a reasonable attorney investigate further . Wiqgins v . Smith , 2527, 2538 ( 2003). ' AI particular decision not to investigate 'I must assessed directly for reasonableness in the circum stances, applying a heavy measure of deference to counsel's judgments.' ' Strickland, at 2066. defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome United States v . Green, 882 F. 2d 999, 1003 of the trial.' ' (5th Cir . 1989) Counsel shou ld interview potential w itnesses and independently investigate the facts and circumstances of the case . 1994). Brvant v . Scott, 28 F.3d 1411, 1415 ( 5th However, defense counsel is not required investigate everyone whose name is mentioned by the defendant . Schwander v . Blackburn , 750 F .2d 494 , 5OO ( 5th Cir. 1985). Mendoza relies solely upon own conclusory allegations , wh ich are not supported in the record . In his affidavit Pattillo described his investigation of the facts of the case and why he - 15 - explained to Mendoza that it was in h is best interest to accep t a plea bargain .3? Hav ing considered the A ffidavit , the state habeas court and the Court of Criminal Appeals rejected Mendoza's claim of ineffective counse1 .38 In his federal Petition , Mendoza does not rebut the state court's determ inations . He fails to address b0th the state habeas court's findings and Pattillo's Affidavit .o Mendoza also does not show how Pattillo failed to discover any new evidence favorab le to him . Mendoza has therefore not met the burden of showing with specificity what the investigation wou ld have revealed and how would have altered his decision to go to trial . More importantly , Mendoza does not demonstrate the requisite prejudice because he does not allege that, but for his counsel's adv ice, he would not have pleaded guilty and wou ld have insisted on going to trial . See Hill, lO6 S . Ct . at 370 . Absent a showing of deficient performance and actual prejudice, Mendoza has not shown that the state court's decision to deny relief was objectively unreasonable. C. Actual Innocence Mendoza asserts that he is innocent of the offenses for which he has been conv icted . In support of his alleged innocence he 3 7Pattillo A ffidavit , Docket Entry No . 9-2 , 38 . 3 Action Taken , Writ No . 83,696-01, Docket Entry No . 9-1, p . 8 M petition , Docket Entry No . pp . 6-8 . contends that a adduced ufatal variance' existed between the evidence ' trial and the evidence alleged in the indictment for Counts I and 11 because each failed to specify where he uhad stuck his finger into' or uwhere applicant allegedly inserted his sexual ' organ .v4o He also alleges that the evidence at trial failed to ucomport with' the allegations in Count III of the indictment . The ' state habeas court rejected Mendoza's claim of actual innocence. The state habeas court determ ined that uthere evidence that material excu lpatory evidence no credible existed E Mendoza's) suggestion to the contrary is not credible.'4 Thus, 'l Mendoza 's actual innocence claim A claim of actual meritless . innocence , standing alone , is not a cognizable ground for relief on federal habeas corpus review . Herrera v . Collins, 86O (1993). Instead, a claim of actual innocence is ua gateway through which a habeas petitioner must pass have his otherwise E procedurallyq constitutional claim considered on the merits .' ' Id . barred 862 . Moreover , claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding . Id . at A peti- tioner seeking to surmount a procedural default through a showing 4o petition , Docket Entry No . H Findings of Fact and pp . 10-11 . Conclusions No. 9-2, p. 50 ! 7. - 17 - Law , Docket Entry of uactual innocence' must support h is allegations with new , ' reliable evidence that was not presented at trial and must show that it was more likely than not that in light of the new evidence no juror, acting reasonably, would have voted to find the petitioner guilty beyond a reasonable doubt . Schlup v . Delo, 115 S. Ct. 851, 866-67 ( 1995). Mendoza provides no new evidence or facts to support his innocence . Instead , he alleges that there was a variance between the indictment and the evidence adduced at trial .42 The state habeas court rejected Mendoza's claim because 'the indictment in ' this case was not defective' and thus a fatal variance does not ' ex ist .4 3 u'he sufficiency of a state indictment is not a matter for r federal habeas corpus relief unless indictment is so defective that the can be shown that the convicting jurisdiction.' Yohev v. Collins, 985 ' court had no 229 ( 5th Cir. 1993); Johnson v . Puckett, 930 F.2d 445, 447 ( 5th Cir. 1991)7 Morlett v . Lynaugh, 851 1521, ( 5th 1998). Whether an indictment is fatally defective must be determ ined by nlooking to the 1aw of the state where the indictment was issued .' Yohey , ' 985 F .2d at 229 ; Johnson , 930 F .2d at H petition , Docket Entry No . O Findings of 9-2, p . 50 . Fact and federal habeas court p . 8. Conclusions Law , Docket Entry will not consider such claims if the sufficiency of the indictment has been presented to the highest state court of appeals , either explicitly or implicitly , and that court has held that the trial court has jurisdiction over the case. Yohev, 985 F. at 229; 2d Morlett , 85l F .2d at 1523; Alexander v . Mccotter, 775 F .2d 595, 599 ( 5th Cir . 1985) Mendoza raised this claim of defective indictment in his state habeas corpus application .4 4 denied relief, thereby The Texas Court of Criminal Appeals rejecting Mendoza's claim indictment was insufficient .o that the Because the highest state court has considered the sufficiency of Mendoza 's indictment and failed to find defective, Mendoza is foreclosed from proceeding on this ground a federal habeas action . Furthermore, a v iolation pertaining to a variance under state law is a question of state criminal procedure that not cognizable in a federal habeas court . Rubio v . Estelle , 689 F.2d 533, 536 ( 5th Cir . 1982) Mendoza 's challenge to the validity Thus, indictment fails to state a claim upon which relief can be granted . Because Mendoza has failed to establish a valid claim for relief under U .S .C . 5 2254 ( d), his federal petition will be denied . 44 State App lication for a Writ of Habeas Corpus , Docket Entry No . 9-2 , pp . 11-13 . 4s Action Taken , Writ No . 83 ,696-01 , Docket Entry No . 9-1, p . IV . Certificate of Appealability The Petition filed in this case is governed by the AEDPA , codified U .S .C . ï 2253, which requ ires a certificate appealability to issue before an appeal may proceed . See Hallmark v . Johnson, 1073, ( 5th actions filed under either 28 U .S .C . certificate of appealability). 1997) ( noting that 2254 or 5 2255 require a Rule of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate appealability when entering a final order that adverse to the petitioner . A certificate of appealability w ill not issue unless the petitioner makes a usubstantial constitutional right,' 28 U . . ' S C. showing of the denial of a 2253 ( 2), which requires a c)( petitioner to demonstrate 'that reasonable jurists would find the ' district court's assessment of the constitutional claims debatable or wrong.' Tennard, 124 S . Ct. at 2565 ( ' quoting Slack, 12O S. Ct. at 1604) Under the controlling standard this requires a petitioner to show uthat reasonable jurists could debate whether ( or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve Miller-El, 123 S . procedural grounds, encouragement to proceed further .'' ' at 1039 . Where denial of relief is based on the petitioner must show not only that ujurists of reason wou ld find debatable whether the petition states a valid claim of the denial of a constitutional right ,' but also that ' they uwould find debatable whether the district court was correct in its procedural ruling .' Slack , l20 S . Ct . at 1604 . ' A district court may deny a certificate of appealability , sua soonte , without requiring briefing or argument . See A lexander v. Johnson, 211 F. 895, 898 ( 3d 5th Cir. 2000). For reasons set forth above, this court concludes that jurists of reason would not debate whether the petitioner states a valid claim for relief . Therefore , a certificate of appealability will not issue . V. For the reasons Conclusion and Order explained above , the court ORDERS the follow ing : Respondent's Motion for Summary Judgment ( Docket Entry No. 8) is GRANTED . Bruilo Rudio Mendoza 's Petition for a W rit of Habeas Corpus By a Person in State Custody ( Docket Entry No . 1) is DENIED , and this action will be dismissed with prejudice. A certificate of appealability is DENIED . SIGNED at Houston , Texas, on this the 27th day of June , 2016. e' F SIM LAK E UN IT ED STAT ES D ISTR ICT JUD GE

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