Reyna v. Stephens, Director, TDCJ-ID

Filing 18

Order Accepting 15 the Findings, Conclusions, and Recommendation of the United States Magistrate Judge and Denying Certificate of Appealability. (Ordered by Judge Sam A Lindsay on 8/3/2017) (ykp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
GERARDO REYNA,
Petitioner,
v.
LORIE DAVIS, Director, TDCJ-CID,
Respondent.

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Civil Action No. 3:15 -CV-3584-L

ORDER
This habeas case, which was brought pursuant to 28 U.S.C. § 2254, was referred to
Magistrate Judge Paul D. Stickney, who entered the Findings, Conclusions, and Recommendation
of the United States Magistrate Judge (“Report”) on December 5, 2016. The Report recommends
that the court deny with prejudice Petitioner’s habeas corpus petition, as he failed to make a
substantial showing of the denial of a federal right. Petitioner filed an objection to the Report. 1
Petitioner objects to the Report’s finding that the state did not fail to disclose impeachment
evidence for witnesses Roman Medina, Jesus Cardenas, and Michael Livermore. Petitioner
contends that this determination ignores the circumstantial evidence that each of these witnesses
received lenient sentences after testifying. The court, however, disagrees. A multitude of factors
may influence a sentence imposed by a court; therefore, the sentence that these witnesses received
does not establish that the state offered them plea deals in exchange for testifying in Petitioner’s

1

On December 19, 2016, Petitioner Gerardo Reyna (“Petitioner”), filed a Motion for Extension of Time to File
Objections (Doc. 16). Petitioner filed his motion on the same day as the deadline to file objections to the Report.
Petitioner filed his objection on January 9, 2017, without an order from the court. The court recognizes that
Petitioner’s motion was unopposed; however, the court instructs the parties not to wait until the eleventh hour to file
requests for extensions of time. The court needs sufficient time to review the request. That the parties agree does not
necessarily mean the court will also agree. The court grants Petitioner’s motion, and Petitioner’s Objection to the
Findings and Conclusions and Recommendation of the United States Magistrate Judge (Doc. 17) is deemed filed as
of December 19, 2016.

Order – Page 1

case.

Moreover, Petitioner’s objection mischaracterizes the Report’s finding.

The Report

determined that the record reflects that the jury was informed that each of these witnesses hoped
their testimony in Petitioner’s case would be taken into consideration for their own sentence.
Further, the Report states that during the state habeas review the defense attorneys who represented
Medina, Cardenas, and Livermore when they were sentenced each testified that their clients did
not receive a deal from the state before he testified. Additionally, the state prosecutor submitted
an affidavit stating that the state did not offer, promise, or guarantee leniency to the witnesses in
exchange for their testimony. Given the overwhelming amount of direct evidence, the Report
correctly determined that Petitioner failed to establish that the prosecutor made any plea deals to
Medina, Cardenas, or Livermore in exchange for testifying in Petitioner’s case. The court,
therefore, overrules Petitioner’s objection.
Having reviewed the file, Report, record, applicable law, and conducting a de novo review
of Petitioner’s objection, the court determines that the findings and conclusions of the magistrate
judge are correct, and accepts them as those of the court.

Accordingly, the court denies

Petitioner’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody (Doc. 1); and dismisses with prejudice this action.

Order – Page 2

Considering the record in this case and pursuant to Federal Rule of Appellate Procedure
22(b), Rule 11(a) of the Rules Governing §§ 2254 and 2255 proceedings, and 28 U.S.C. § 2253(c),
the court denies a certificate of appealability.

2

The court determines that Petitioner has failed to

show: (1) that reasonable jurists would find this court’s “assessment of the constitutional claims
debatable or wrong;” or (2) that reasonable jurists would find “it debatable whether the petition
states a valid claim of the denial of a constitutional right” and “debatable whether [this court] was
correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In support of this
determination, the court accepts and incorporates by reference the Report filed in this case. In the
event that Petitioner files a notice of appeal, he must pay the $505 appellate filing fee or submit a
motion to proceed in forma pauperis (“IFP”), unless he has been granted IFP status by the district
court.
It is so ordered this 3rd day of August, 2017.

_________________________________
Sam A. Lindsay
United States District Judge

2

Rule 11 of the Rules Governing §§ 2254 and 2255 Cases provides as follows:
(a)
Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the final order,
the court may direct the parties to submit arguments on whether a certificate should issue. If the
court issues a certificate, the court must state the specific issue or issues that satisfy the showing
required by 28 U.S.C. § 2253(c)(2). If the court denies a certificate, the parties may not appeal the
denial but may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22. A motion to reconsider a denial does not extend the time to appeal.

(b)
Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to appeal an
order entered under these rules. A timely notice of appeal must be filed even if the district court
issues a certificate of appealability.
Order – Page 3