Perez v. Stephens Director TDCJ-CID

Filing 16

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION for 12 Report and Recommendations. The petitioner's objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's recommendation. A certificate of appealability will not be issued. Signed by Judge Richard A. Schell on 3/22/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
ERNEST LUCKY PEREZ
VS.
DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:13-CV-715

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Ernest Lucky Perez, a prisoner confined at the Hughes Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
The Court referred this matter to the Honorable Kimberly C. Priest Johnson, United States
Magistrate Judge, for consideration pursuant to applicable laws and orders of this Court. The
magistrate judge has submitted a report recommending denial of the petition.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. The petitioner filed
objections to the Report and Recommendation.
The Court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the Court concludes the
objections are without merit.
First, the petitioner contends there is no basis in Texas law for the state court to have
concluded that the testimony of Esther Echavery, Brittany Rhinebarger, Natalie Kreitels, Paul
Oliveira, and Elizabeth Oliveira was admissible. Therefore, the petitioner contends the magistrate
judge should not have relied on the trial court’s findings that the testimony was admissible. The

petitioner asserts that the testimony of Detective Chris Burns was clearly inadmissible. Regardless
of whether the testimony was admissible under state law, the petitioner has not demonstrated that
he was prejudiced by the testimony. The state court found that the evidence would have resulted in
a conviction absent the allegedly objectionable testimony. Because the state court’s findings are not
an unreasonable application of Strickland, the petitioner has not met his burden of showing he is
entitled to relief on these grounds.
The petitioner contends that the testimony of Detective Chris Burns and Dr. Arnold Mech
that bolstered the victim’s credibility was inadmissible. The state court agreed that some of the
testimony of Detective Burns was inadmissible. However, the state court concluded that counsel’s
failure to object furthered his strategy of using the testimony to undermine the credibility of other
witnesses. The state court also found that counsel’s failure to object to the testimony did not change
the outcome of the trial. The state court’s findings of fact were a reasonable determination of the
facts in light of the evidence presented in the state court. Further, the state court’s adjudication was
not contrary to, and did not involve an unreasonable application of, clearly established federal law.
The petitioner argues that counsel should have objected to the expert testimony of Jennifer
Edwards regarding sex offenders. Although the petitioner acknowledges this type of testimony is
generally admissible, he contends the magistrate judge erroneously accepted the state court’s findings
that specific statements made by Ms. Edwards were admissible. The petitioner also contends counsel
failed to adequately cross-examine Ms. Edwards, and that she testified falsely. During the state
habeas proceedings, the trial court held an evidentiary hearing and made extensive findings of fact
and conclusions of law with respect to these issues. The trial court found that the testimony of Ms.
Edwards was not false. In addition, the trial court found that the complained-of statements were
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admissible under state law, a finding that is not reviewable in a federal habeas proceeding. The trial
court found that trial counsel’s cross-examination of Ms. Edwards was not deficient. Finally, the trial
court concluded that the petitioner was not prejudiced by the testimony or cross-examination of the
expert witness. The petitioner did not rebut the state court’s findings of fact by clear and convincing
evidence, and the state court’s findings were not an unreasonable application of Strickland.
The petitioner contends trial counsel should have called an expert to testify at trial to refute
the state’s expert. As an example of the kind of expert testimony the petitioner alleges his trial
counsel should have presented, the petitioner called Al Merchant to testify at the evidentiary hearing
in state court. After reviewing the record and making extensive findings of fact, the trial court found
that the testimony of an expert like Al Merchant would not have benefitted the petitioner. The
petitioner did not rebut the state court’s factual determinations by clear and convincing evidence, and
he did not show that the state court’s adjudication was contrary to, or involved an unreasonable
application of, clearly established federal law.
In this case, the petitioner is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues
a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting
a certificate of appealability, like that for granting a certificate of probable cause to appeal under
prior law, requires the petitioner to make a substantial showing of the denial of a federal
constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362
F.3d 323, 328 (5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that
substantial showing, the petitioner need not establish that he should prevail on the merits. Rather,
he must demonstrate that the issues are subject to debate among jurists of reason, that a court could
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resolve the issues in a different manner, or that the questions presented are worthy of encouragement
to proceed further. See Slack, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.
2009). If the petition was denied on procedural grounds, the petitioner must show that jurists of
reason would find it debatable: (1) whether the petition raises a valid claim of the denial of a
constitutional right, and (2) whether the district court was correct in its procedural ruling. Slack, 529
U.S. at 484; Elizalde, 362 F.3d at 328. Any doubt regarding whether to grant a certificate of
appealability is resolved in favor of the petitioner, and the severity of the penalty may be considered
in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
The petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason. The factual and legal questions advanced by the petitioner are not novel and
have been consistently resolved adversely to his position. In addition, the questions presented are not
worthy of encouragement to proceed further. The petitioner has failed to make a sufficient showing
to merit the issuance of a certificate of appealability.
ORDER
Accordingly, the petitioner’s objections are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge’s
recommendation. A certificate of appealability will not be issued.
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SIGNED this the 22nd day of March, 2017.

_______________________________
RICHARD A. SCHELL
UNITED STATES DISTRICT JUDGE
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