Alfaro v. Director, TDCJ-CID

Filing 11

ORDER OF DISMISSAL adopting 9 Report and Recommendation. Accordingly, it is ORDERED the petitions for writ of habeas corpus are DENIED, and the cases are DISMISSED with prejudice. Certificates of appealability are DENIED. It is further ORDERED all motions by either party not previously ruled on are hereby DENIED. Signed by District Judge Amos L. Mazzant, III on 3/24/2020. (daj, )

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

EDUARDO ENRIQUE ALFARO, #1831119
VS.
DIRECTOR, TDCJ-CID

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§ CIVIL ACTION NOS. 4:16cv797, 4:16cv798
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ORDER OF DISMISSAL
The above-entitled and numbered civil actions were referred to United States Magistrate
Judge Christine A. Nowak. The Report and Recommendation of the Magistrate Judge, which
contains proposed findings of fact and recommendations for the disposition of such actions, has been
presented for consideration. Petitioner filed objections.
The Magistrate Judge recommended the petitions for writ of habeas corpus be dismissed
with prejudice. In his objections, Petitioner first asserts that the procedural history section of the
Magistrate’s Report and Recommendation requires clarification. He notes that the state habeas
court’s findings of facts and conclusions of law were submitted prior to the time he filed an affidavit
of the proposed testimony of a mitigation expert, Dr. Proctor. However, the Magistrate Judge
addressed this issue in her Report and Recommendation.
Petitioner argues that the state habeas court erred in rejecting his claim when it found
that he provided no evidence of the proposed testimony of an expert. (Dkt. # 2, p
13). However, this was due to the fact that the state habeas court signed its findings
of fact and conclusions of law on April 25, 2016. Subsequently, Petitioner
supplemented the record with the affidavit on May 19, 2016. The TCCA [Texas
Court of Criminal Appeals] noted this in its opinion, and denied relief based on an
independent review of the record:
On April 25, 2016, the trial court signed findings of fact and
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conclusions of law recommended denying relief. Findings of fact
numbers thirty-eight and thirty-nine erroneously stated that Applicant
failed to present any evidence of what a mitigation expert would have
testified. However, on May 19, 2016, Applicant supplemented the
record with an affidavit from a mitigation expert. Therefore, this
Court does not adopt findings thirty-eight and thirty-nine. Based on
this Court’s independent review of the record, and the trial court’s
other findings of fact and conclusions of law, we deny relief.

(Dkt. # 9-17, p. 2.). Thus, the TCCA received the affidavit and, after reviewing it, declined to adopt
the trial court’s two findings regarding Dr. Proctor. Nonetheless, the TCCA denied relief after
conducting both a review of the trial court’s findings of fact and conclusions of law and an
independent review. A state application that is denied with written order by the TCCA, as in the
present case, is an adjudication on the merits. Singleton v. Johnson, 178 F.3d 381, 384 (5th Cir.
1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). The state court’s
determination is granted “a deference and latitude that are not in operation when the case involves
review under the Strickland standard itself.” Harrington v. Richter, 562 U.S. 86, 101 (2011).
In his objections, Petitioner argues that the Magistrate Judge erred in finding that trial
counsel’s decision not to consult with a mitigation expert was trial strategy. Petitioner contends that
the Magistrate Judge’s finding contradicts “a long line of well-established Supreme Court
precedent.” (Dkt. # 10, p. 3). He cites to two cases to support his argument. Wiggins v. Smith, 539
U.S. 510, 522-23 (2003) and Rompilla v. Beard, 545 U.S. 374 (2005). However, those decisions
pertain only to capital cases. See Rompilla, 545 U.S. at 380-81 ([t]his case, like some others
recently, looks to norms of adequate investigation in preparing for the sentencing phase of a capital
trial); Wiggins, 539 U.S. at 511 ([s]tandard practice in Maryland capital cases at that time included
the preparation of a social history report). Thus, Petitioner fails to demonstrate that either the state
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court’s decision or the Magistrate Judge’s finding was contrary to or involved an unreasonable
application of clearly established federal law, or was based on an unreasonable determination of
facts. Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
The “pivotal question” for this Court is not “whether defense counsel’s performance fell
below Strickland’s standard”; it is “whether the state court’s application of the Strickland standard
was unreasonable.” Richter, 562 U.S. at 101, 131. Trial counsel stated in an affidavit presented to
the state habeas court that, at the time of Petitioner’s trial, mitigation experts were not generally used
except in capital cases. First, Petitioner fails to demonstrate the state court decision, in denying his
application without written order, was contrary to, or involved an unreasonable application of,
clearly established federal law, or was based on an unreasonable determination of facts. Williams,
529 U.S. at 402-03. Secondly, Petitioner has not presented any evidence to refute trial counsel’s
assertion. Thus, Petitioner has not met his burden to show that “counsel’s representation fell below
an objective standard of reasonableness,” with reasonableness judged under professional norms
prevailing at the time counsel rendered assistance. Strickland v. Washington, 466 U.S. 668, 688
(1984) (emphasis added).
Next, Petitioner argues that the Magistrate Judge erred in finding that he has failed to show
prejudice from trial counsel’s failure to consult with a mitigation expert. Respondent re-urges his
argument that Dr. Proctor’s testimony would have resulted in a lesser sentence. To show prejudice
in the state sentencing context, “the relevant inquiry is whether, absent counsel’s errors, there is a
reasonable probability that the defendant’s sentence would have been significantly less harsh, taking
into account such factors as the defendant’s actual sentence, the potential minimum and maximum
sentences that could have been received, the placement of the actual sentence within the range of
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potential sentences, and any relevant mitigating or aggravating circumstances.” Dale v. Quarterman,
553 F.3d 876 (5th Cir. 2008) (internal citations and quotations omitted). “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
“That requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a different result.” Richter, 562
U.S. at 112.
Petitioner argues that “when Dr. Proctor’s report is read in conjunction with the trial record,
its defensive value is crystal clear. Dr. Proctor determined that the Petitioner represented a low risk
for recidivism which would have directly contradicted the State’s position at sentencing that
Petitioner had an insatiable appetite and would represent a continuing danger to children.” (Dkt. #
10, pp. 4-5). This argument overlooks the fact that Dr. Proctor also states in his expert report that
Petitioner denied all allegations made against him, and that Petitioner had been investigated for
abuse of his biological daughter. Dr. Proctor would have been subject to cross-examination on these
issues. Petitioner’s counsel argued for the minimum sentence of twenty-five years, and the state
sought life. The court sentenced Petitioner to forty years. Petitioner has not met his burden of
showing, “absent counsel’s errors, there is a reasonable probability that the defendant’s sentence
would have been significantly less harsh.” Dale v. Quarterman, 553 F.3d 876 (5th Cir. 2008)
(internal citations and quotations omitted).
Petitioner fails to demonstrate the state habeas court’s decision was contrary to, or involved
an unreasonable application of, clearly established federal law, as determined by the Supreme Court
of the United States; or resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding. Williams, 529 U.S. at 40203. Petitioner also has not shown that his counsel’s representation fell below an objective standard
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of reasonableness. Strickland, 466 U.S. at 688. Nor has Petitioner shown that there is a reasonable
probability that the result of the proceeding would have been different. In sum, Petitioner fails to
provide a valid basis for his objections, or demonstrate how the Magistrate Judge’s recommendation
is incorrect. After reviewing the Report and Recommendation and conducting a de novo review of
Petitioner’s objections, the Court concludes the findings and conclusions of the Magistrate Judge are
.

correct, and adopts the same as the findings and conclusions of the Court.
Accordingly, it is ORDERED the petitions for writ of habeas corpus are DENIED, and the
cases are DISMISSED with prejudice. Certificates of appealability are DENIED. It is further
ORDERED all motions by either party not previously ruled on are hereby DENIED.
SIGNED this 24th day of March, 2020.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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