Hidrogo v. Stephens
Filing
23
Memorandum Opinion and Order: The court ORDERS that the petition of petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. For the reasons discussed herein, the court further ORDERS that a certificate of appealability be, and is hereby, denied. (Ordered by Judge John McBryde on 10/30/2015) (ewd)
1 "'· r' < ~ : r cn; nr
NOIHll Eli\ lJl' i 'W T Ul !T\ \S
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF EXAS
FORT WORTH DIVISION
ROCKY DEE HIDROGO JR.,
OCT 3 0 2015 ',
CI.ERK, L.S. DISTRICT CGLRf
§
By----::----:----
§
Petitioner,
-·-FlLLB ----l
····- --- ·- '
Dept•t~·
§
§
v.
§
No. 4:14-CV-137-A
§
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
§
§
§
§
§
Respondent.
§
MEMORANDUM OPINION
and
ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C.
§
2254 filed by petitioner, Rocky Dee Hidrogo Jr., a state
prisoner currently incarcerated in the Correctional Institutions
Division of the Texas Department of Criminal Justice (TDCJ)
against William Stephens, Director of TDCJ, respondent.
After
having considered the pleadings, state court records, and relief
sought by petitioner, the court has concluded that the petition
should be denied.
I.
Factual and Procedural History
In October 2008 petitioner was indicted in the 220th
Judicial District Court of Comanche County, Texas, with capital
murder.
Adm. R., WR-80,475-01 writ, Indictment, ECF No. 19-4.
The Eleventh Court of Appeals of Texas summarized the evidence as
follows:
The evidence showed that, on July 5, 2008, Eddie Ray
Jr. and appellant committed five burglaries in the
rural area near the victim's house.
Eddie testified at
trial and admitted he was involved in the burglaries,
including the burglary of the victim's house.
Eddie
said he dropped appellant off outside the houses, left,
and came back to pick appellant up a short while later.
When Eddie picked appellant up from the victim's house,
appellant had a shotgun and a .32 caliber revolver,
which he had taken from the victim's home. Appellant
told Eddie that he had shot and killed a man in that
house. The victim was later found lying in his bed
with a single gunshot wound to the head from a .32
caliber bullet.
Crime scene evidence revealed that the
victim was asleep when he was shot. A shotgun
identified by serial number as the victim's missing
shotgun was recovered after Eddie led police to the
location where Eddie had discarded it.
Id., Mem. Op. 133-34.
The evidence also included witness testimony and videotape
footage placing Eddie and petitioner together after the time the
burglaries occurred at an Allsup's store, witness testimony that
Eddie and petitioner were the only two involved in the burglaries
and that Eddie and petitioner returned to the Ray's apartment
with guns on the night of the burglaries, and expert testimony
that a blood smear found on a "water filtration device" in the
victim's house was a mixture of the victim's and petitioner's
DNA.
2
Based on the evidence, a jury found petitioner guilty, and
the trial court sentenced him to an automatic life sentence
without parole.
Id.,
Judgment of Conviction by Jury 147.
Petitioner appealed the judgment, but the Eleventh Court of
Appeals of Texas affirmed the judgment, the Texas Court of
Criminal Appeals refused his petition for discretionary review,
and the United States Supreme Court denied writ of certiorari.
Hidrogo v. Texas, 133 S. Ct. 194 (2012); Ex parte Hidrogo, 2013
WL 6311876 (Tex. Crim. App. Nov. 27, 2013); Hidrogo v. Texas, 352
S.W.3d 27 (Tex. App.-Eastland 2011).
Petitioner also filed a
state habeas application challenging his conviction, which was
denied by the Texas Court of Criminal Appeals on the findings of
the trial court.
ECF No. 19-1.
Adm. R., WR-80,475-01 writ, Action Taken Sheet,
This federal habeas petition followed.
II.
Issues
Petitioner raises five grounds for habeas relief:
(1)
Trial counsel failed to present testimony and
evidence of a witness that would have been
material to the defense;
(2)
Trial counsel failed to object to the
"police/agents of the state's destruction of
exculpatory evidence, to-wit: text messages";
(3)
His right to due process was violated by the
state's destruction of text messages that pointed
to another as the killer;
3
(4)
His Sixth and Fourteenth Amendment rights were
violated when he was denied the right to present a
complete defense; and
(5)
His right to due process was violated by the
state's use of junk science.
Pet. 6-7, 1 ECF No. 1.
III.
Rule 5 Statement
Respondent believes that petitioner has sufficiently
exhausted his claims in state court and that the petition is
neither successive nor time-barred.
28
u.s.c.
§
2244 (b)'
(d)
He does contend however that petitioner's third claim is
procedurally barred.
Resp't's Answer 4, 13-14, ECF No. 20.
IV.
Discussion
Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C.
§
2254(d), a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a state court
shall not be granted with respect to any claim that was
adjudicated on the merits in state court proceedings unless he
shows that the prior adjudication:
(1) resulted in a decision
that was contrary to, or involved an unreasonable application of,
clearly established federal law, or (2) resulted in a decision
1
Because one or more pages of the petition and inserts are not
paginated, the pagination reflected in the ECF header is used.
4
that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court.
2254(d).
28 U.S.C.
§
A decision is contrary to clearly established federal
law if the state court arrives at a conclusion opposite to that
reached by the United States 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.
Williams v. Taylor,
529 U.S. 362, 405-06 (2000).
A state court
decision will be an unreasonable application of clearly
established federal law if it correctly identifies the applicable
rule but applies it unreasonably to the facts of the case.
Williams,
529 U.S. at 407-08.
The statute further requires that federal courts give great
deference to a state court's factual findings.
Section
2254(e) (1) provides that a determination of a factual issue made
by a state court shall be presumed to be correct.
The petitioner
has the burden of rebutting the presumption of correctness by
clear and convincing evidence.
28 U.S.C.
§
2254(e) (1).
When the
Texas Court of Criminal Appeals denies a federal claim in a state
habeas corpus application without written order, "it may be
presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural
5
principles to the contrary."
1088, 1094 (2013)
98-99 (2011)).
Johnson v. Williams, 133 S. Ct.
(quoting Harrington v. Richter, 562 U.S. 86,
With these principles in mind, the court
addresses petitioner's claims.
Ineffective Assistance of Counsel
Petitioner was represented at trial by Kenneth G. Leggett
and Doyle Keith Woodley.
In his first and second grounds,
Petitioner claims counsel was ineffective by failing to call
Ryleigh LaFlame, Chastity Keele, Paige Clark or Sabrina Bernardo
to testify regarding text messages from Ryleigh LeFlame to Paige
Clark implicating Brian Ray, Eddie's brother, in the murder and
to object to the state's destruction of the text messages.
A criminal defendant has a constitutional right to the
effective assistance of counsel at trial.
U.S. CONST. amend. VI,
XIV; Evitts v. Lucey, 469 U.S. 387, 393-95 (1985); Strickland v.
Washington, 466 U.S. 668, 688 (1984).
An
ineffective assistance
claim is governed by the familiar standard set forth in
Strickland v. Washington.
466 U.S. at 668.
To establish
ineffective assistance of counsel a petitioner must show (1) that
counsel's performance fell below an objective standard of
reasonableness, and (2) that but for counsel's deficient
performance the result of the proceeding would have been
6
different.
Id. at 688.
In applying this standard, a court must indulge a strong
presumption that counsel's conduct fell within the wide range of
reasonable professional assistance or sound trial strategy.
at 668, 688-89.
Id.
Judicial scrutiny of counsel's performance must
be highly deferential and every effort must be made to eliminate
the distorting effects of hindsight.
Id. at 689.
Where a
petitioner's ineffective assistance claims have been reviewed on
their merits and denied by the state courts, federal habeas
relief will be granted only if the state courts' decision was
contrary to or involved an unreasonable application of the
Strickland standard in light of the state court record.
Harrington, 131 S. Ct. at 785 (quoting Williams v. Taylor, 529
U.S. at 410); Bell v. Cone, 535 U.S. 685, 698-99 (2002).
Thus, a
federal court's review of state-court decisions regarding
ineffective assistance of counsel must be "doubly deferential" so
as to afford "both the state court and the defense attorney the
benefit of the doubt."
(2013)
Burt v. Titlow, 571 134 S. Ct. 10, 13
(quoting Cullen v. Pinholster, 563 131 S. Ct. 1388, 1403
(2011)).
Petitioner raised his claims in his state habeas application
and, in support, produced, among other things, a purported
7
affidavit by Ryleigh LaFlame (Exhibit B) stating that Brian Ray
admitted to her that he was responsible for killing the victim.
Adm. R., WR-80,475-01 writ, 11-23, 73-74, ECF No. 19-4.
The
state responded and produced an affidavit by the state
prosecutor, Wesley Mau, in which he states:
In preparing for trial in the case, I reviewed
witness statements and interviewed witnesses whose
testimony might be offered during trial. Two
witnesses, Samantha Bernardo and Ryleigh LeFlamme, rzJ
were identified as having potential knowledge of an
alleged statement made by Brian Ray in which Brian Ray
was supposed to have admitted being present or possible
[sic] participating during the murder of Rev. Bundy.
This information was based on text messages that Paige
Clark, Rocky Hidrogo's niece, claimed to have received
on her cell phone from Ryleigh LeFlamme.
I was provided with reports from the Comanche
Sheriff's Office about their investigation into the
text messages, which included a summary of an interview
with Ryleigh LeFlamme and a signed statement by her
denying that she had sent texts such as the ones Paige
Clark claimed to have received.
I have reviewed
Applicant's Exhibit B,
. which contains a statement
of facts relating to the text messaging written from
the point of view of Ryleigh LeFlamme. Applicant's
Exhibit B is unsigned, contains an incorrect spelling
of Ryleigh LeFlamme's name on the signature line, and
is completely inconsistent with the prior statements
known to me to have been made by Ryleigh LeFlamme.
I
am aware of no evidence or prior statements by Ryleigh
LeFlamme which would suggest that she would testify in
accordance with Applicant's Exhibit B, which she either
did not or would not sign.
~
-There are multiple variations of Ryleigh LaFlame's name throughout the
record.
8
On September 9, 2009, I personally spoke to
Samantha Bernardo. She told me that Brian Ray never
told her he was involved in the murder or present at
the murder scene.
I had seen a written statement from
her that is confusing on this point, but Samantha
Bernardo told me that in her prior statements to law
enforcement she only meant to indicate that Brian had
told her about his brother Eddie being in trouble.
All of the reports and written statements to which
I referred to above, other than my personal interview
with Samantha Bernardo, were provided to Rocky
Hidrogo's defense attorney prior to trial, and to the
best of my knowledge and belief, they were aware at the
time of trial that Ryleigh LeFlamme and Samantha
Bernardo would have testified that they had never heard
Brian Ray confess to having murdered Rev. Bundy.
Id., WR-80,475-01 writ, 143-44, ECF No. 19-4.
The state habeas court found there were no controverted,
previously unresolved facts material to the legality of
petitioner's confinement.
Id. at 145.
The application was
forwarded to the Texas Court of Criminal Appeals, which remanded
the case to the trial court to conduct an evidentiary hearing to
collect additional facts concerning petitioner's ineffectiveassistance claims.
Id. at cover,
"Action Taken," ECF No. 19-4 &
Supp. R., Order 4, ECF No. 19-3.
Toward that end, the state habeas court directed counsel to
provide affidavits addressing petitioner's claims.
In his
affidavit, attorney Leggett responded as follows:
I was ordered by the Court of Criminal Appeals and
9
the trial Court to respond to Rocky's claim of
ineffective assistance of counsel relating to the
decision of myself and Keith Woodley (co-counsel for
Rocky) to not call a witness to testify at trial.
During Mr. Woodley and my investigation of the
case, we became aware of a claim made by Rocky's niece
that she had received text messages from a girl which
indicated that someone other than Rocky had been
involved in or had committed the murder for which Rocky
was on trial. We determined that these messages had
been turned over to the Comanche County Sheriff. We
discussed the same with the Sheriff and found that the
phone on which the messages were received had been
delivered to a Sheriff's deputy and that the messages
had ultimately been deleted. A deputy had written down
the substance of the messages and, during trial, we
attempted to put the Sheriff's deputy's notes into
evidence.
That offer was objected to and objection
sustained.
During our investigation of the case, we had
determined further that the sender of the deleted
messages was one Ryleigh LaFlame. Mr. Woodley and I
sent our investigator (Michael P. McNamara) out to talk
to Ms. LaFlame.
Our belief was that, based upon what
Rocky's niece had told us, that a man named Brian Ray
(a brother of Rocky's co-defendant Eddie Ray) had told
Ms. LaFlame that he (Brian) had actually committed the
murder for which Rocky was charged.
Ms. LaFlame
denied that Brian (also known as BooBoo) had made the
statements set forth in the deleted text messages.
We were not completely convinced that Ms. LaFlame
had told our investigator the complete truth so we sent
him back to Ms. LaFlame on April 10, 2009. Ms. LaFlame
was contacted but no information was offered.
We sent Mr. McNamara out again in regards to Mr.
[sic] LaFlame and had him set up the meeting through Jo
Haslik (Ryleigh's mother). That meeting occurred on
April 23, 2009.
10
On April 7, 2009, Mr. McNamara spoke with Sabrina
Bernardo, a person who, according to Rocky's niece (and
Ms. LaFlame) was at the house when the deleted text
messages were being sent. Ms. Bernardo did not hear
Mr. Ray (Brian or BooBoo) say he killed the deceased.
Our investigator also indicated that a man named
Jason Moya was at Ryleigh's house when the deleted
messages were sent and may have heard Brian BooBoo Ray
inculpate himself. Mr. McNamara talked [to] Mr. Moya
on May 14, 2009.
Mr. Moya denied hearing Ray say he
was involved in the murder.
Mr. Woodley and I had Ms. LaFlame subpoenaed for
trial
I had hopes that she would change her
story before she was called as a witness.
She would
never admit to the defense team that Brian Ray had said
that he had killed the deceased, therefore, we could
not prove Brian's alleged declaration against interest.
Since Mr. Woodley and I had made an issue out of
the text messages and the jury had heard some testimony
about the same (although the Judge would not allow us
to put the deputy's notes of the substance of the
messages into evidence), we did not call Ms. LaFlame as
a witness because her denial of authoring text messages
indicating Brian Ray was the killer would undermine
what we had been able to get on the record about the
Sheriff destroying exculpatory text messages.
If Ms. LaFlame had ever told me, Mr. Woodley, or
Mr. McNamara that she had sent messages that named
Brian Ray as the killer or that she had heard him say
he was the killer, she would have been called as a
witness to offer testimony to the jury.
Id., WR-80,475-01 writ, Supp. R. 20-23, ECF No. 19-3.
Attorney Woodley responded by affidavit as follows:
As I understand the allegation, Mr. Hidrogo claims
ineffective assistance of counsel relating to a
11
decision made by counsel not to call Ryleigh LaFlame as
a witness at trial. Two people were indicted for the
murder of the retired Lutheran minister, to wit: Rocky
Dee Hidrogo, Jr., and Eddie Ray.
In preparation for trial, the Court authorized Kenneth
G. Leggett, co-counsel, and me to employ Mike McNamara,
former Deputy United States Marshal, from Waco, Texas,
as our investigator. Mr. McNamara did a thorough job
of investigation and interviewing all potential
witness[es], including Ryleigh LaFlame.
During the investigation of the case we (Kenneth G.
Leggett and I) became aware of a claim made by Mr.
Hidrogo's niece, Paige Clark, that she had received
text messages from Ryleigh LaFlame which indicated that
someone other than Mr. Hidrogo and Eddie Ray had been
involved in, or had committed, the murder. We learned
that the cell phone that had received the text messages
had been delivered by Paige Clark to the Chief Deputy
for the Comanche County Sheriff. We discussed that
with the Sheriff and found that the phone on which the
messages were received had in fact been delivered to
the Chief Deputy, and that the Chief Deputy had deleted
the messages from the phone. The Chief Deputy had
allegedly written down the substance of the messages.
Paige Clark claimed that Ryleigh LaFlame, by text
message, related that Brian Ray, who was Eddie Ray's
brother, had either committed the murder or was present
when the murder was committed. Based on that
information, Mr. McNamara interviewed Ryleigh LaFlame
and others .
Ms. LaFlame denied to Mr. McNamara that Brian Ray ever
made the statements that he had killed the decedent or
that he was present when the decedent was killed. She
denied that she had sent text messages to Paige Clark
that Brian Ray had made the statements. Mr. McNamara
interviewed every person who was allegedly present when
Brian Ray allegedly made the statements to Ms. LaFlame.
Every person denied that Brian Ray made the statements.
12
Therefore, we could not prove Brian Ray's alleged
declaration against penal interest through Ms. LaFlame
or any other witness. We presented evidence about the
deleted text messages, and the jury heard some
testimony about the content of the text messages.
We did not call Ryleigh LaFlame as a witness because
she denied that Brian Ray had made the statements to
her, and she denied that she had sent text messages to
Paige Clark that Brian Ray had made the statements to
her.
Her testimony would have contradicted the
evidence the jury had heard about the Chief Deputy
destroying the text messages allegedly sent by Ryleigh
LaFlame to Paige Clark.
I do not believe that decision
shows ineffective assistance of counsel.
I believe
that decision was proper trial strategy.
recall that Mr. Leggett and I advised Rocky Dee
Hidrogo, Jr., of Mr. McNamara's investigation, and the
result of the investigation concerning Ms. LaFlame and
other potential witnesses.
I
Id. at 5-6.
The state habeas court entered findings of fact consistent
with counsel's affidavits and the documentary record and
concluded that counsel made a reasonable investigation of the
evidence relating to the text messages and admissions by Brian
Ray; made an informed strategic decision not to call LaFlame or
others alleged to have heard Brian Ray confess involvement in the
offense because none of them admitted hearing Brian Ray make such
a statement; and made an informed strategic decision not to call
LaFlame or others to testify regarding text messages because none
would admit having sent such messages.
13
The application was
forwarded to the Texas Court of Criminal Appeals, which denied
the application without written order on the findings of the
trial court.
Id. at 37-40 & "Action Taken," ECF Nos. 19-3 & 19-
1, respectively.
Deferring to the state court's findings, in the absence of
clear and convincing evidence in rebuttal and having
independently reviewed petitioner's claims in conjunction with
the record, the state courts' application of Strickland was not
unreasonable.
Petitioner's claims are conclusory with no factual
or evidentiary basis, contradicted by the record,
3
or involve
strategic and tactical decisions made by counsel after a thorough
investigation, all of which generally do not entitle a state
petitioner to federal habeas relief.
See, e.g., Strickland, 460
U.S. at 689 (holding strategic decisions by counsel are virtually
unchallengeable and generally do not provide a basis for postconviction relief on the grounds of ineffective assistance of
counsel); Green v. Johnson, 160 F.3d 1029, 1042 (5th Cir. 1998)
3
The record reflects that counsel did object and move for a dismissal
based on Deputy Chris Pounds's failure to preserve the cell phone and the text
messages implicating Brian Ray in the murder, but the motion was denied. Adm.
R., RR 6 of 9, Def.'s Ex. 20, ECF No. 17-3. The record further reflects that
counsel, on numerous occasions throughout the trial, questioned witnesses
regarding the text messages, but was prevented from inquiring about the
content of the messages on the state's hearsay objections.
Counsel also made
a bill of exception showing that Chastity Keele and Paige Clark would have
testified that Ryleigh LaFlame sent text messages to Paige stating that Brian
Ray admitted to being involved in the murder if the testimony had not been
excluded.
14
("Mere conclusory allegations in support of a claim of
ineffective assistance of counsel are insufficient to raise a
constitutional issue."); Alexander v. McCotter, 775 F.2d 595, 602
(5th Cir. 1985)
(ineffective assistance claims "based upon
uncalled witnesses [are] not favored because the presentation of
witness testimony is essentially strategy and thus within the
speculations as to what these
trial counsel's domain, and .
witnesses would have testified is too uncertain")
Due Process Violations
In his third ground, petitioner claims his right to due
process was violated by Deputy Chris Pounds's bad-faith
"destruction" of the text messages pointing to Brian Ray as the
killer.
Pet. 7, ECF No. 1.
This claim was raised in
petitioner's state habeas application for the first time, and the
Texas Court of Criminal Appeals addressed the claim as follows:
Applicant also raises due process challenges regarding
the non-availability of the text messages fo use as
evidence at trial, regarding items found in the
victim's home that were excluded from evidence by the
trial court, and regarding DNA evidence admitted at
trial. These claims were either raised on direct
appeal or should have been raised on direct appeal, so
they are procedurally barred from consideration in
collateral review.
Ex parte Hidrogo, No. WR-80,475-01, 2013 WL 6311876, at *2 (Tex.
Crim. App. Nov. 27, 2013).
15
Respondent argues that the state court's application of the
procedural bar similarly bars review of the claim in this forum.
Resp't's Answer 13, ECF No. 20.
The court agrees.
The Texas
Court of Criminal Appeals has repeatedly held that claims that
could have been raised on direct appeal may not be raised in a
state habeas petition.
Ex parte Gardner, 959 S. W·. 2d 189, 199-200
(Tex. Crim. App. 1998).
Under the procedural default doctrine, a
federal court may not consider a state prisoner's federal habeas
claim when the last state court to consider the claim expressly
and unambiguously based its denial of relief on an independent
and adequate state procedural default.
501 U.S. 722, 729,
See Coleman v. Thompson,
(1991); Johnson v. Puckett, 176 F.3d 809, 823
(5th Cir. 1999); Fisher v. State, 169 F.3d 295, 300 (5th Cir.
1999).
The state court clearly relied upon a firmly established
and regularly followed state procedural rule to deny petitioner's
claim that, in turn, represents an adequate state procedural bar
to federal habeas review.
Ex parte Gardner, 959 at 199.
See
also Ex parte Banks, 769 S.W.2d 539, 540 (Tex. Crim. App. 1989)
(holding "the Great Writ should not be used to litigate matters
which should have been raised on appeal").
Therefore, absent a
showing of cause and prejudice or a miscarriage of justice, such
showing not having been demonstrated, petitioner's third claim is
16
procedurally barred from the court's review.
In his fourth ground, petitioner claims his Sixth and
Fourteenth Amendment rights were violated when he was denied the
right to present a defense-i.e., evidence of the victim's "secret
life."
Pet. 10, ECF No. 1.
Specifically, he asserts that
evidence excluded by the trial court that women's underwear,
condoms, daisy-duke shorts, and pornographic movies were found in
the victim's home, and later retrieved from a dumpster, could
have led the jury to conclude the victim led a secret life and
could have been killed by a jealous lover.
He urges that had the
jury heard about this "dark side," they might have drawn a
different conclusion about the murder.
Id. at 13.
Petitioner
raised this claim on direct review and the state appellate court
in overruling the issue addressed it as follows:
In the second issue, appellant argues that the
trial court abused its discretion in excluding evidence
concerning the victim's "involvement with women's
underwear, condoms, and pornographic movies."
Appellant asserts that the excluded evidence tended to
show that the victim had a secret life, that something
other than burglary was possibly involved, and that
somebody else committed the murder. Nothing in the
record suggests that the excluded evidence was relevant
to the burglary or the victim's death. Neither the
victim's character nor his alleged secret life was
shown to be relevant to this case. The trial court did
not abuse its discretion in excluding such evidence.
See TEx. R. Evrn. 401, 402, 404(a). Moreover, the trial
court permitted appellant to introduce evidence that
17
the victim was clad only in pink panties at the time of
his death, and even though the trial court had ruled
that the other evidence was not admissible, Texas
Ranger Jess Ramos subsequently testified in the jury's
presence that he collected condoms and "porn"
videotapes from the victim's house.
Hidrogo v. State, 352 S.W.3d 27, 30 31 (Tex. App. 2011).
"A state court's evidentiary rulings present cognizable
habeas claims only if they run afoul of a specific constitutional
right or render the petitioner's trial fundamentally unfair."
Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999)
(citing
Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994)).
"The
failure to admit evidence amounts to a due process violation only
when the omitted evidence is a crucial, critical, highly
significant factor in the context of the entire trial."
821
Id. at
(citing Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir. 1987).
This court agrees that evidence of the victim's sexual
proclivities or sexual preference is irrelevant to the
circumstances of his murder.
Accordingly, it cannot be said the
exclusion of the evidence had a substantial and injurious effect
or influence on the jury's verdict.
Finally, in his fifth ground, petitioner claims his right to
due process was violated by the state's use of "junk science."
Pet. 14, ECF No. 1.
According to petitioner, over his objection
18
at trial, the state was allowed to present DNA evidence that did
not meet the reliability test because it was based on an unproven
science-a "minifiler" kit.
Id.
The state appellate court in
overruling the claim addressed it as follows:
In his final issue, appellant argues that the
trial court abused its discretion in admitting DNA
evidence that was not shown to be sufficiently
reliable. We disagree.
In its position as the
gatekeeper of scientific evidence, the trial court has
discretion in determining the relevance and reliability
of expert testimony. When the subject of the expert's
testimony is "hard" scientific knowledge, the basis of
that testimony must be grounded in accepted methods and
procedures of science and meet three criteria: (1) the
underlying scientific theory must be valid; (2) the
technique applying the theory must be valid; and (3)
the technique must have been properly applied on the
occasion in question.
The record shows that the trial court conducted a
hearing outside the jury's presence to determine the
admissibility of the testimony of the State's DNA
expert, Brent Wayne Watson. At the hearing, Watson,
who is a forensic scientist in the DNA unit of the
Texas Department of Public Safety crime lab in Waco,
testified regarding his qualifications and experience
in analyzing DNA evidence. Watson testified that he
used the STR technique for DNA analysis, that the STR
technique was recognized as scientifically valid by an
overwhelming majority in that field, that he ran two
tests in this case using commercial kits based upon the
STR technique, and that all procedures and protocols
were followed in this case. Watson testified that the
kits have been validated by the DPS for use in all
types of DNA samples, including samples like the one in
the present case where there is a low quantity of DNA
present in the sample. According to Watson, the DNA
analysis in this case met the threshold required for
validation. At the conclusion of the hearing, the
19
trial court ruled that Watson's testimony would be
permitted. 1 We find no abuse of discretion in this
ruling because the State met its burden .
Watson subsequently testified that the
DNA sample in question was obtained from a
blood smear on a water filtration unit that
was inside the bathroom where the perpetrator
had apparently entered the house through a
window. The results of Watson's tests
revealed that the probability of someone
other than appellant being the contributor of
the DNA was one in 825.8 million Caucasians,
one in 10.35 billion Blacks, and one in 15.52
billion Hispanics.
1
Mem. Op. 4-5, ECF No. 14-6.
Hidrogo v. State, 352 S.W.3d 27, 32
(Tex. App.-Eastland Aug. 24, 2011, pet. ref'd)
(citations
omitted) .
As previously noted,
"[a] state court's evidentiary rulings
present cognizable habeas claims only if they run afoul of a
specific constitutional right or render the petitioner's trial
fundamentally unfair."
Johnson, 176 F.3d at 820.
Petitioner has
failed to identify any legal basis for excluding Watson's trial
testimony as a matter of federal-constitutional due process or to
present clear and convincing evidence that the DNA results were
inaccurate.
On the contrary, petitioner's own DNA expert
admitted that Watson's testimony could have been accurate.
For the reasons discussed herein,
The court ORDERS that the petition of petitioner for a writ
20
of habeas corpus pursuant to 28 U.S.C.
denied.
§
2254 be, and is hereby,
For the reasons discussed herein, the court further
ORDERS that a certificate of appealability be, and is hereby,
denied.
SIGNED October
_f 0
, 2015.
UNITED STATES
21
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