Martinez v. Director TDCJ

Filing 43

ORDER OF DISMISSAL ADOPTING 33 REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE. ORDERED that the petition for a writ of habeas corpus which has been filed pursuant to 28 U.S.C. § 2254 is DENIED and the case is DISMISSED with prejudice. All motions not previously ruled on are hereby DENIED. A certificate of appealability shall not be issued in this matter. Signed by Judge Amos L. Mazzant, III on 9/1/2017. (daj, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
JOHNNY RAY MARTINEZ

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 4:14cv473

ORDER OF DISMISSAL
Petitioner Johnny Ray Martinez, a prisoner confined in the Texas prison system, proceeding
pro se, filed the above-styled and numbered petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. The cause of action was referred to United States Magistrate Judge Christine A. Nowak,
who issued a Report and Recommendation concluding that the petition should be denied and that
a certificate of appealability should not be issued. Petitioner has filed objections.
Petitioner is challenging a conviction for sexual assault of a child. Petitioner contends his
counsel was ineffective because he: (1) failed to seek out and interview potential witnesses; (2) failed
to call character witnesses during the punishment phase; (3) failed to adequately advise him as to
whether he should testify; (4) failed to prepare him to testify; (5) failed to request or receive notice
of the prosecution’s intention to introduce evidence of extraneous offenses or bad acts; (6) failed to
object to testimony from the victim and (7) elicited testimony from petitioner that he had been in jail
for two years prior to trial.
Pursuant to 28 U.S.C. § 2254(d), a federal court may not grant relief on a claim adjudicated
in state court proceedings unless the adjudication: (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by the
Supreme Court or (2) resulted in a decision based on an unreasonable determination of the facts in
light of the evidence presented in state court. The Magistrate Judge analyzed each of petitioner’s
grounds for review and concluded that based on upon the applicable legal standard, they were
without merit.

First Ground for Review
Petitioner was accused of having sexual relations with the victim in Denton County when she
was less than 17 years of age. The victim and petitioner conceived a son when she was 16 years of
age. As described by the intermediate appellate court, petitioner’s defense at trial was based solely
upon venue:
At trial, Appellant admitted he had sex with J.C. when he was forty-three years old
and she was sixteen, but he insisted that sexual relations occurred only in Dallas
County. He denied having intercourse with J.C. before she was sixteen. Around the
time of Halloween 2005, their sexual liaisons were always at J.C. father’s apartment
[in Dallas County] or at a hotel in Dallas County, but never at [petitioner’s home in
Denton County].
Martinez v. State, 2013 WL 241816 at *2 (Tex.App.-El Paso 2008).
In his first ground for review, petitioner asserted his trial strategy was always to prove the
victim lied about a sexual relationship occurring in Denton County and that she had motive to lie
because officials in Dallas County refused to pursue an indictment against him. Petitioner states he
provided counsel with the names of three individuals would could have disproved much of what the
victim told the police in her initial sworn statement and shown she had a motion to lie.
To establish counsel provided ineffective assistance, a habeas petitioner must demonstrate:
(1) counsel’s performance fell below an objective standard of reasonableness and (2) counsel’s
performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish counsel’s performance prejudiced the defense, a petitioner must demonstrate there is a
reasonable probability the result of the proceeding would have been different if counsel had
performed properly. Day v. Quarterman, 566 F.3d 527, 536 (2009).
The Magistrate Judge concluded petitioner failed to demonstrate he suffered prejudice
because counsel failed to interview the persons identified and call them to testify at trial. The
Magistrate Judge observed that as petitioner admitted he had sex with the victim when she was 16
years of age, the only factual issue the jury was required to decide was whether they had sex in
Denton County, which, under Texas law, the prosecution was only required to prove by a
preponderance of the evidence. The Magistrate Judge found that while the testimony petitioner
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states would have been provided by the three individuals he identified could have called into
question certain aspect of the victim’s testimony and explained why she might have had a motive
to testify falsely against petitioner, the testimony would not have contradicted her testimony that she
and petitioner had sex in Denton County when she was 16 years old. As a result, the Magistrate
Judge concluded there was not a reasonable probability petitioner would have been acquitted if the
three individuals identified by petitioner had testified.
In his objections, petitioner states his only defense was even though he conceded having sex
with the victim when she was 16 years old, this did not occur in Denton County. He states it was
counsel’s job to show they did not have sex in Denton County, as asserted by the victim. He states
the best way to do this was to demonstrate the victim’s story was not consistent and that she was
motivated to lie so that petitioner would not get custody of their children. Petitioner asserts his
proposed witnesses could have explained why the victim had a motive to provide false testimony and
shown that the victim’s story was not consistent.
The Magistrate Judge correctly points out that as petitioner admitted having sexual relations
with the victim several times when she was 16 years old, the only issue for the jury to decide was
whether the sexual relations occurred in Denton County or Dallas County. Moreover, Article 13.17
of the Texas Code of Criminal Procedure only required the prosecution to prove venue by a
preponderance of the evidence rather than beyond a reasonable doubt.
With this in mind, it cannot be concluded the determination by the state courts that petitioner
did not suffer prejudice as a result of counsel’s failure to seek out, interview and call witnesses was
contrary to, or an unreasonable application of, clearly established federal law. As the Magistrate
Judge points out, the victim provided clear testimony that she and petitioner had sex in Denton
County several times when she was 16 years old. Petitioner provided conflicting testimony.
Petitioner’s proposed witnesses may have called certain aspects of the victim’s testimony into
question and demonstrated she had a motive to provide false testimony. As described by petitioner,
however, their testimony would have had no relevance to the issue of where the victim and
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petitioner engaged in sexual relations. In light of the victim’s clear testimony regarding venue and
the reduced evidentiary burden applicable to this issue, there is not a reasonable probability petitioner
would have been acquitted if his proposed witnesses had testified.
Second Ground for Review
No witnesses were called to testify on petitioner’s behalf during the punishment phase of the
proceedings. Petitioner states counsel told him he was not going to call character witnesses to testify
in order to avoid opening the door to testimony regarding a charge of Engaging in Organized
Criminal Activity. This charge was based on petitioner’s activities while incarcerated in the Denton
County Jail.1 Counsel and the prosecutor agreed that this charge would not be brought up during the
trial. Petitioner states their agreement did not extend to the punishment phase and that the
prosecution presented evidence regarding the charge during the punishment phase. Petitioner states
counsel should have requested a list of character witnesses, interviewed them, and called them to
testify on his behalf.
The Magistrate Judge concluded petitioner failed to demonstrate he suffered prejudice
because witnesses were not called to testify on his behalf during the punishment phase. The
Magistrate Judge acknowledged petitioner received the maximum sentence that could be imposed
for his offense. However, she stated that in light of the testimony the jury heard concerning
petitioner’s offense and his prior felony convictions, there was not a reasonable probability petitioner
would have received a significantly less harsh sentence if witnesses had testified on petitioner’s
behalf during the punishment phase.
In his objections, petitioner states his prior convictions were not for sexual offenses and that
they were committed more than 25 years prior to his trial. He states he had built a successful
business and had clients, friends and family members who were prepared to testify on his behalf.

1

In an affidavit filed in connection with petitioner’s state applications for writ of habeas corpus, counsel
stated this charge was based on allegations that petitioner: (1) acted as the “mastermind” behind a scheme in which
jailers provided him with special favors, such as access to cellular phones; and (2) paid jailers to threaten the victim
while they were off duty. State Habeas Clerk’s Record at 1460.

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Petitioner’s assertion that the age of his prior convictions would have had a mitigating effect
is correct. Nonetheless, petitioner did have two prior convictions for which terms of imprisonment
of 40 and 60 years of imprisonment were imposed. The seriousness of the prior offenses is
demonstrated by the lengthy prison terms petitioner received. Moreover, the jury heard evidence
demonstrating petitioner committed acts constituting sexual assault of a child on several occasions.
The character testimony described might have been of some benefit to petitioner. However, in light
of the number of times he committed the offense with which he was charged and the fact that this
was his third felony conviction, the Court is unable to conclude there is a reasonable probability he
would have received a significantly less harsh sentence if character witnesses had testified.2
Petitioner has therefore failed to demonstrate prejudice.
Third Ground for Review
In his third ground for review, petitioner contends counsel failed to advise him as to whether
he should testify on his own behalf and failed to explain the advantages of doing so. While he
acknowledges he had concluded the only way for him to prevail at trial would be for the jury to hear
the truth and that he was the only person available to tell it, he states he was still counting on the
guidance of counsel as to how this could best be done.
The Magistrate Judge concluded petitioner had not shown he suffered prejudice with respect
to this ground for review. She stated petitioner appeared to be asserting that if counsel had done a
better job of explaining the advantages and disadvantages of testifying, he would not have testified.
However, this would have meant there would have been no testimony contradicting the victim’s
testimony that she and petitioner had sex in Denton County while she was 16 years old. The
Magistrate Judge concluded there was not a reasonable probability the jury would have disregarded
the victim’s uncontradicted testimony and acquitted petitioner.

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To demonstrate Strickland prejudice with respect to a noncapital sentence, a petitioner must show that
but for counsel’s errors, there is a reasonable probability his sentence would have been significantly less harsh. Dale
v. Quarterman, 553 F.3d 876, 880 (5th Cir. 2008).

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Petitioner states counsel acknowledged that he did not give any advice to petitioner with
regard to testifying. He states counsel had a duty to provide advice on this point so petitioner could
make an informed decision about whether or not to testify. Petitioner asserts that if counsel had done
a better job of explaining the advantages and disadvantages of testifying, he might have chosen not
to testify.
Petitioner testified that he and the victim had sex in Dallas County rather than Denton
County. The victim testified to the contrary. If petitioner had not testified, there would have been
no evidence to contradict the victim’s testimony. The Magistrate Judge correctly concluded that in
the absence of any contradictory evidence, there is not a reasonable probability the jury would have
ignored her testimony and acquitted petitioner.
Fourth Ground for Review
Petitioner states counsel only met with him four times prior to trial and that each visit lasted
approximately 10-20 minutes. He state counsel mainly focused on telling him not to say he was a
“good guy,” as this would have opened the door to testimony regarding the charge of Engaging in
Organized Criminal Activity. He contends counsel failed to properly prepare him to testify.
The Magistrate Judge again concluded petitioner had failed to demonstrate prejudice. She
observed petitioner had not explained what additional steps counsel should have taken to prepare
him to testify. Nor had he explained how additional preparation would have put him in a better
position to contradict the victim’s testimony that she and petitioner had sex in Denton County when
she was 16 years old. As this was the only factual issue the jury needed to resolve, the Magistrate
Judge stated there was not a reasonable probability petitioner would have been acquitted if counsel
had taken additional steps to prepare him to testify.
Petitioner states he has demonstrated counsel’s over-all lack of preparation for trial. He
states counsel should have gone over police reports and all of the discovery with petitioner. He also
asserts counsel should have told him to keep his answers brief and succinct and not to attempt to
explain his answers, which made petitioner appear nonresponsive. Petitioner states counsel failed
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to provide the jury with evidence that was readily available to him proving petitioner and the victim
did not have sex in Denton County while she was 16 years old.3
Petitioner has now identified additional steps counsel could have taken to better prepare him
for his testimony. While these steps might have been beneficial to petitioner, they would not have
made his assertions that he and the victim had sex when she was under 17 years of age in Dallas
County rather than Denton County more persuasive. In the absence of any indication better
preparation would have made petitioner’s testimony on the only factual issue in the case more
persuasive, there is not a reasonable probability petitioner would have been acquitted if counsel had
taken the additional steps petitioner now describes.
Fifth and Sixth Grounds for Review4
In his fifth ground for review, petitioner faults counsel for failing to request or receive notice
of the prosecution’s intention to introduce evidence of extraneous offenses or bad acts. He states
counsel observed in an affidavit that he requested and received notice that if the door was opened,
the prosecution would introduce evidence regarding the charge of Engaging in Organized Criminal
Activity. Despite this, petitioner states allegations against him by a former stepdaughter were
introduced at trial. Petitioner states that while counsel should have been aware of the allegations,
he failed to request notice from the prosecution of its intention to bring up these prior bad acts.
The Magistrate Judge noted that counsel had submitted an affidavit stating he had requested
and received notice of extraneous and bad acts. The state habeas trial court found the statements in
counsel’s affidavit to be credible and specifically found petitioner requested and received evidence
of petitioner’s extraneous bad acts. The Magistrate Judge concluded that in light of counsel’s
affidavit, the state court’s findings were not an unreasonable determination of the facts in light of
the evidence presented in state court. Accordingly, counsel’s actions with respect to this ground for

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Petitioner has not described the evidence that was supposedly available to counsel showing he and the
victim did not have sex in Denton County.
4

As petitioner combined these grounds for review in his objections, the Court will also combine them.

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review did not fall below an objective standard of reasonableness. Further, the Magistrate Judge
found that as the allegations made against petitioner by his stepdaughter were not related to the issue
of whether the victim and petitioner had sex in Denton County when she was 16 years old, there was
not a reasonable probability the result of the proceeding would have been different if the evidence
petitioner described had not been presented.
In his sixth ground for review, petitioner states Detective Michelle Grigg previously
investigated him regarding allegations made by a former stepdaughter. He states he passed a
polygraph examination regarding the allegations and that no charges were filed. Petitioner states that
in her sworn affidavit concerning the charge at issue in this proceeding, Detective Grigg included
several pages concerning the prior incident. He states that when the prosecutor asked Detective
Grigg during trial if she knew petitioner prior to making a statement against him, she stated she had
investigated petitioner in a prior case. Petitioner asserts counsel should have objected to this
testimony and attempted to question Detective Grigg about the prior investigation. In addition,
petitioner contends counsel should have objected to the victim’s statement that petitioner had
confessed to molesting his former stepdaughter and established during cross-examination that her
statement was not true.
The Magistrate Judge stated that based on counsel’s affidavit, the state habeas trial court
found petitioner instructed counsel not to object to allegations of other sexual misconduct because
petitioner wanted counsel to embrace these allegations as proof that the victim was crazy and
therefor not a credible witness. The Magistrate Judge stated this finding was not an unreasonable
determination of the facts in light of the evidence presented in state court and that, as a result, it
could not be concluded counsel performance on this point fell below an objective standard of
reasonableness.
The Magistrate Judge further concluded petitioner had not established prejudice.

The

Magistrate Judge stated Detective Grigg’s statements were innocuous and provided no details
concerning the prior investigation. She also stated that while the victim’s statement was more
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damaging because it involved conduct similar to that for which petitioner was on trial, petitioner
admitted in his testimony that he committed the acts alleged in the indictment. As a result, the
effects of the victim’s testimony regarding petitioner’s confession were mitigated. The Magistrate
Judge therefore concluded there was not a reasonable probability the result of the proceeding would
have been different if counsel had made the objections and taken the additional steps petitioner
describes.
In his objections, petitioner reasserts his contentions and states it was error for counsel not
to object and allow the testimony petitioner describes to stand. He contends that statements made
in counsel’s affidavit were not credible and disagrees with the Magistrate Judge’s conclusion
regarding prejudice.
As stated above, a federal habeas court can only disregard a state court’s findings of fact if
it concludes the state court made an unreasonable determination of fact in light of the evidence
before it. This requires a petitioner to rebut the state court’s findings by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1). Petitioner has failed to meet this burden. While the state court
could have found counsel’s affidavit not to be credible, it chose not to do so. The record in this
matter does not demonstrate this finding was unreasonable.5 As a result, this Court is bound by the
finding and is therefore unable to conclude counsel’s performance on this point fell below an
objective standard of reasonableness.
Further, petitioner has failed to establish prejudice. The testimony regarding petitioner’s
stepdaughter’s allegations and his supposed confession was damaging. However, the testimony was
not related to the sole factual issue in the case. In light of the victim’s clear testimony regarding
where she and petitioner had sex, there is not a reasonable probability petitioner would have been
acquitted if the testimony he describes had been stricken as a result of any objection by counsel.

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With respect to the state court’s finding that petitioner told counsel not to object to allegations of other
sexual misconduct in order to show the victim was crazy and therefore not credible, the Magistrate Judge observed
that reasonable minds could disagree as to whether petitioner or counsel was more credible. The Court agrees.
However, petitioner has not presented clear and convincing evidence that the state court’s finding was erroneous.

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Seventh Ground for Review
In his final ground for review, petitioner states counsel was ineffective for eliciting testimony
that petitioner had been incarcerated while awaiting trial. He asserts that while counsel states it was
petitioner’s idea to bring this up, counsel nevertheless had a legal obligation to explain why such
testimony could be damaging. He also denies ever instructing counsel to bring up the fact he was
incarcerated while awaiting trial and states he knew this fact would cause some jurors to believe his
pre-trial incarceration was the result of his being on probation as the result of a prior conviction.
Based on counsel’s affidavit, the state habeas trial court found that petitioner asked counsel
to elicit testimony petitioner had been in jail for two years prior to trial as part of a jury nullification
strategy. The state court further found that while counsel told petitioner this information might hurt
his case, petitioner still wanted the testimony elicited. The Magistrate Judge stated this finding was
not an unreasonable determination of the facts and that, as a result, it could not be concluded
counsel’s performance on this point fell below an objective standard of reasonableness. The
Magistrate Judge further concluded petitioner had not demonstrated prejudice because petitioner’s
assertion as to what the jury might believe was speculative and petitioner’s pretrial incarceration was
not related to the issue of whether petitioner and the victim had sex in Denton County when she was
16 years old.
Petitioner states counsel’s eliciting testimony regarding his pretrial incarceration
demonstrated a total lack of professionalism. He repeats his assertion that he did not instruct counsel
to ask him about his pretrial incarceration. He states the Magistrate Judge is naive to believe people
do not understand that defendants who remain incarcerated prior to trial typically do so because their
release on parole or probation has been revoked.
As stated above, a state court’s findings of fact may only be disregarded by a federal habeas
court if a petitioner rebuts them by clear and convincing evidence. While the state courts could have
chose not to find counsel’s affidavit credible, their failure to do so was not an unreasonable
determination of the facts in light of the evidence before them. Petitioner has not presented clear and
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convincing evidence to the contrary. Counsel’s performance on this point therefore did not fall
below an objective standard of reasonableness. In addition, the Court agrees with the Magistrate
Judge’s conclusion that petitioner has not demonstrated prejudice because his assertion as to what
conclusion the jury might have drawn from his pretrial incarceration is speculative and his pretrial
incarceration is not related to the only factual issue in the case.
Motion to Amend
In addition to his objections, petitioner has filed a motion (doc. no. 41) seeking leave to
amend his petition to include an additional ground for review. Petitioner was represented at trial by
Derek A. Adame, who was appointed to represent petitioner. Petitioner states he had previously
been represented by three retained attorneys and two appointed attorneys. In his additional ground
for review, petitioner contends the trial court erred by permitting two of his retained attorneys,
Margaret Shelton and Denver McCarty, to withdraw. He asserts this error deprived him of his
counsel of choice.
Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts
permits application of the Federal Rules of Civil Procedure in habeas cases “to the extent that [the
civil rules] are not inconsistent with any statutory provisions or [the habeas] rules.” Mayle v. Felix,
545 U.S. 644, 654 (2005); see also FED. R. CIV. P. 81(a)(2) (The civil rules “are applicable to
proceedings for . . . habeas corpus.”). In addition, 28 U.S.C. § 2242 provides that habeas petitions
“may be amended . . . as provided in the rules of procedure applicable to civil actions.”
Petitioner filed his motion more than 21 days after the respondent filed an answer. As a
result, Federal Rule of Civil Procedure 15(a)(2) requires him to obtain leave of court to amend his
petition. Rule 15(a)(2) provides that the court “should freely give leave when justice so requires.”
However, “the grant or denial of an opportunity to amend is within the discretion of the District
Court,” and the court may deny a motion to amend when the amendment would be futile. Foman
v. Davis, 371 U.S. 178, 182 (1962); see also Duzich v. Advantage Finance Corp., 395 F.3d 527, 531
(5th Cir. 2004) (concluding that the district court did not abuse its discretion in denying a motion to
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amend when amendment would be futile). An amendment is futile when the additional ground for
review would be subject to dismissal. DeLoach v. Woodley, 405 F.3d 496, 496-97 (5th Cir. 1968)
(“The liberal amendment rules of [Rule] 15(a) do not require that courts indulge in futile gestures.”).
For the reasons set forth below, petitioner’s additional ground for review is subject to
dismissal as procedurally barred. Petitioner’s motion to amend will therefore be denied as futile.
A state prisoner must normally exhaust all available state remedies before he can apply for
federal habeas relief. See Ex parte Royall, 117 U.S. 241, 251 (1886); 28 U.S.C. §2254(b) and (c).
To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance
of his claim to the highest state court. Picard v. Connor, 404 U.S. 270, 275 (1971).
A distinct but related limit on the scope of federal habeas review is the doctrine of procedural
default. If a state court clearly and expressly bases its dismissal of a petitioner’s claim on a state
procedural rule, and that procedural rule provides an independent and adequate ground for dismissal,
the prisoner has procedurally defaulted his federal habeas claim. Coleman v. Thompson, 501 U.S.
722, 729 (1991). A procedural default also occurs when a prisoner fails to exhaust available state
remedies and “the court to which the prisoner would be required to present his claims in order to
meet the exhaustion requirement would find the claims procedurally barred.” Id. at 735, n. 1.
In Ex parte Barber, 879 S.W. 2d 889 (Tex.Crim.App. 1994), the Texas Court of Criminal
Appeals announced that it would as a rule dismiss as an abuse of the writ a successive state
application for writ of habeas corpus which raised issues that existed at the time a prisoner filed his
initial state application. The United States Court of Appeals for the Fifth Circuit subsequently
concluded Texas courts were regularly and strictly applying the abuse of the writ doctrine and that
the doctrine could therefore be relied upon as an adequate and independent state ground forming the
basis for application of the procedural default doctrine. Emery v. Johnson, 139 F.3d 191, 195 (5th
Cir. 1997); Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995).
Petitioner did not assert his additional ground for review in his petition for discretionary
review or his state applications for writ of habeas corpus. He has therefore not presented his
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additional ground for review to the highest state court. As the Court of Criminal Appeals would not
consider a further state application asserting his additional ground for review, and as petitioner has
not shown cause and prejudice for failing to previously present the additional ground for review or
that a fundamental miscarriage of justice would result from this court’s refusal to consider the claim,6
consideration of the additional ground for review would be procedurally barred. Granting petitioner
leave to add his additional ground for review would therefore be futile and the motion to amend is
accordingly DENIED.
The Report of Magistrate Judge Nowak, which contains her proposed findings of fact and
conclusions of law, as well as a recommendation for the disposition of this action, has been
presented for consideration, and having made a de novo review of the objections raised by petitioner
to the Report, the Court is of the opinion the findings and conclusions of the Magistrate Judge are
correct and petitioner’s objections are without merit. Therefore, the Court adopts the findings and
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conclusions of the Magistrate Judge as the findings and conclusions of the Court. It is accordingly
ORDERED that the petition for a writ of habeas corpus which has been filed pursuant to 28
U.S.C. § 2254 is DENIED and the case is DISMISSED with prejudice. All motions not previously
ruled on are hereby DENIED. A certificate of appealability shall not be issued in this matter.
SIGNED this 1st day of September, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

6

A procedural bar may be overcome by demonstrating cause and prejudice for the default or
establishing that a fundamental miscarriage of justice would result from the court’s refusal to consider the claim.
Coleman, 501 U.S. at 749-50.

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