Sanchez v. Stephens, Director, TDCJ-ID

Filing 17

Memorandum Opinion and Order... The court ORDERS that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be, and is hereby, denied. The court further ORDERS that a certificate of appealability be, and is hereby, denied, as petitioner has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 5/17/2017) (wxc)

U.S. D!STRTCT COURT

IN THE UNITED STATES DISTRICT

J:lffiPIJIERN D! .

FOR THE NORTHERN DISTRICT OF TEXAS!
FORT WORTH DIVISION
ROBERTO SANCHEZ,

!'T OF TEXAS

MAY I 7 2817

§

cu:::··

§

Petitioner,

§

Deputy

§

v.

§

.JURT

By~~~~~~~~~~-

No .. 4: 15-CV-948-A

§

LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

§
§
§
§
§

Respondent.

§

MEMORANDUM OPINION
and
ORDER

This is a petition for a writ of habeas corpus pursuant to
28 U.S.C.

§

2254 filed by petitioner, Roberto Sanchez, a state

prisoner incarcerated in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ) , against Lorie
Davis, 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. Procedural History

In June 2009 petitioner was indicted in Tarrant County,
Texas, Case No. 1152436D, for the murder of Sergio Gonzalez.
(Clerk's R. 6, ECF No. 9-13.) Following a jury trial, the jury
found petitioner guilty and assessed his punishment at seventy

years' confinement and a $10,000 fine.

(Id. at 91.) Petitioner

appealed his conviction, but the Second District Court of Appeals
of Texas affirmed the trial court's judgment, and the Texas Court
of Criminal Appeals refused his petition for discretionary
review.

(Mem. Op. & Dkt Sheet, ECF Nos. 9-4 & 9-2, respectively.)

Petitioner also filed a state postconviction habeas application
challenging his conviction, which was denied without written
order by the Texas Court of Criminal Appeals on the findings of
the trial court.

(State Habeas R., Action Taken, ECF No. 10-7.)

This federal petition followed.
The state appellate court summarized the background facts of
the case as follows:
Sanchez and his friend drove to a Fort Worth
nightclub where Sanchez's two cousins, Ingrid and
Dilcia, worked. Dilcia spent most of the evening
drinking and talking with Sergio Gonzalez, a customer.
Around closing time, Dilcia told Sergio that she was
leaving with Sanchez, Ingrid, and Sanchez's friend.
Sergio, upset that Dilcia was leaving with
Sanchez, confronted the group in the parking lot as
they prepared to drive away, shouting expletives and
banging on the car's window. Sanchez and his friend got
out of the car, and, after exchanging heated words with
Sergio, Sanchez pulled a knife from his pocket. Sergio
then fled to a parking lot next door as Sanchez chased
him with the knife. Sanchez caught up to Sergio near an
ice machine across the parking lot and, as Sergio
leaped backwards to avoid the knife, Sanchez stabbed
him once in the chest.

2

Before trial, the State informed the court and
Sanchez's counsel that Dilcia, Ingrid, and Sanchez were
in the country illegally, and during Dilcia's
testimony, when the State asked her if Sanchez was in
the country illegally, Dilcia said that he was. At the
close of evidence, Sanchez requested jury instructions
on self-defense, defense of third persons, and
necessity. The trial court denied the request, finding
that the instructions had not been raised by the
evidence.
(Mem. Op. 1-2, ECF No. 9-4.)
II. Issues

In four grounds for relief, petitioner complains of
ineffective assistance of trial counsel.

(Pet. 6, ECF No. 6-7.)

III. Rule 5 Statement

Respondent believes that petitioner has sufficiently
exhausted his state court remedies as to the claims raised and
that the petition is neither time-barred nor subject to the
successive-petition bar.

u.s.c.

§

2244(b),

(Resp't's Answer 4, ECF No. at 11.) 28

(d).
IV. Discussion

Legal Standard for Granting Habeas Corpus Relief

A

§

2254 habeas petition is governed by the heightened

standard of review provided for by the Anti-Terrorism and
Effective Death Penalty Act (AEDPA). 28 U.S.C.

§

2254. Under the

Act, a writ of habeas corpus should be granted only if a state

3

court arrives at a decision that is contrary to or an
unreasonable application of clearly established Supreme Court
precedent or that is based on an unreasonable determination of
the facts in light of the record before the state court.
Harrington v. Richter, 562 U.S. 86, 100-01 (2011); 28 U.S.C.

§

2254 (d) (1)- (2). This standard is difficult to meet and "stops
short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings." Harrington, 562
U.S. at 102.
Additionally, the statute requires that federal courts give
great deference to a state court's factual findings. Hill v.
Johnson,

210 F.3d 481, 485 (5th Cir. 2000). 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); Miller-El v.

§

Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor,

529 U.S.

362, 399 (2000). Further, when the Texas Court of Criminal
Appeals denies a federal claim in a state habeas corpus
application without written opinion, a federal court may presume
"that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to
4

the contrary" and applied the correct "clearly established
federal law, as determined by the Supreme Court of the United
States" unless there is evidence that an incorrect standard was
applied, in making its decision. Johnson v. Williams, - U.S.
133 S. Ct. 1088, 1094 (2013); Harrington, 562 U.S. at 99;
Schaetzle v. Cockrell, 343 F.3d 440, 444

(5th Cir. 2004).

Ineffective Assistance of Counsel
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, 396 (1985); Strickland v.
Washington,

466 U.S. 668, 688 (1984). 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 different. Strickland, 466 U.S.
at 688. In applying this test, a court must indulge a strong
presumption that counsel's conduct fell within the wide range of
reasonable professional assistance. Id. at 668, 688-89. 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.
The Supreme Court emphasized in Harrington v. Richter the
5

manner in which a federal court is to consider an ineffective
assistance of counsel claim raised in a habeas petition subject
to AEDPA's strictures:
The pivotal question is whether the state court's
application of the Strickland standard was
unreasonable. This is different from asking whether
defense counsel's performance fell below Strickland's
standard. Were that the inquiry, the analysis would be
no different than if, for example, this Court were
adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court.
Under AEDPA, though, it is a necessary premise that the
two questions are different. For purposes of §
2254 (d) (1), "an unreasonable application of federal law
is different from an incorrect application of federal
law." A state court must be granted a deference and
latitude that are not in operation when the case
involves review under the Strickland standard itself.
562 U.S. at 101 (quoting Williams, 529 U.S. at 410). Accordingly,
it is necessary only to determine whether the state courts'
rejection of petitioner's ineffective assistance claims was
contrary to or an objectively unreasonable application of
Strickland. Bell v. Cone, 535 U.S. 685, 698-99 (2002); Kittelson
v. Dretke, 426 F.3d 306, 315-17 (5th Cir. 2005); Schaetzle v.
Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).
Petitioner asserts his trial counsel was ineffective as
follows:
(1)

failing to present evidence to support the
theories of self-defense, defense of a third
person, and necessity;

6

(2)

failing to request a jury instruction on sudden
passion during the guilt/innocence phase of trial;

(3)

failing to object when the prosecutor asked a
state's witness whether petitioner was an illegal
alien; and

(4)

failing to request an instruction on sudden
passion during the sentencing phase.

(Pet. 6-7, ECF No. 1.)
In an affidavit filed in the state habeas proceedings, lead
counsel, Eloy Sepulveda, licensed to practice for over thirty
years, testified generally regarding his representation of
petitioner and specifically in response to petitioner's claims,
in pertinent part, as follows:
Defendant ROBERT SANCHEZ was arrested April 1,
2009, and on April 2, 2009, I was court-appointed to
represent ROBERTO SANCHEZ. On April 16, I wrote a
letter in Spanish to the Defendant at the Tarrant
County Jail. Then on April 22, I spoke to the Defendant
by phone. On June 18, 2009, I obtained a court order
appointing an investigator, and by June 23, I had
obtained 115 pages of investigative reports. I gathered
some of the reports and sent them to the investigator
on July 1, 2009, with instructions. On July 3, 2009, my
investigator interviewed the Defendant in the jail. On
July 7, 2009, I met with the investigator to discuss
the Defendant's case. I continued to obtain evidence
including videos of interviews done with the Defendant
and other witnesses. I obtained a court order for the
release of the Grand Jury transcript of two (2)
witnesses' testimony. I filed five (5) pretrial motions
in anticipation of trial. All together, I obtained from
the State, a total of 15 CDs/DVDs consisting of
.interviews with the Defendant and witnesses, and some
crime scene photos. Prior to trial, I spent over 100

7

hrs. working on this case over a three-year period.

My investigator started by locating two witnesses
(both female cousins of the Defendant) that were
present at the scene of the crime and who had also
testified before the Grand Jury. These witnesses were
interviewed by my investigator and his findings were
given to me. Their testimony was very incriminatingsobering and vivid. Eventually, I also contacted an
aunt of the Defendant. She was the only family that the
Defendant had in the United States.
I discussed with the Defendant in jail the offer
being made to him of 25 yrs TDC. During these visits I
also played the CDs of the interviews given by his two
cousins who were witnesses to the crime. I translated
to the Defendant the transcribed statements made by
these same two witnesses to the Grand Jury. Each time,
the Defendant rejected the 25 years and said he wanted
five(5) years, or else he wanted a trial.
I met with my investigator and we both went to the
crime scene where we took pictures, and spoke to people
with knowledge of the crime scene and property. Later,
I personally went to the home where one of the cousins,
a key witness, was living and interviewed her. Her
testimony was very damaging and incriminating to the
Defendant as she was a witness to the entire incident
and could testify about what the Defendant said after
the incident and the incriminating words said by the
Defendant.
Later we located other witnesses and interviewed
them though they could not identify the Defendant.
These witnesses also were at the scene and saw someone
run after the victim for about 75 yards and corner him
and make a stabbing motion towards the victim. They
also saw that same person run back to a car that came
by and picked him up and sped away.
Before the defendant was arrested, he was

8

interviewed by the detective and the Defendant admits
that he stuck a knife into the chest of the victim. As
the evidence became more and more clear, I explained
and showed the Defendant the enormous amount of
evidence against him and how it all made it very
difficult to defend him. I met with him more than nine
(9) times, often for two or more hours trying to get
him to understand the strong evidence that existed
against him. I also spoke to his aunt, with the
Defendant's permission, and explained to her the
overwhelming evidence against him. She agreed that he
should not go to trial, so I arranged for her to visit
the Defendant since she did not have transportation.
She spoke to him and begged him to accept a plea deal.
But the Defendant refused to change his mind. The
Defendant also told me that he did not care what
happened to him. He said he had no desire of being
deported more quickly since he had nothing worth going
back to his country of Honduras.
I told him that to raise any defenses at trial, he
would do that best by testifying. I explained that he
could testify about being frightened or provoked and
put in fear of his life. But he told me that he was
never scared or afraid of the victim, or the situation.
The Defendant said he did not want to testify in the
trial, but that he would let me know at the time of
trial if he changed his mind. The Defendant did testify
at his suppression hearing, which was during the trial.
When he ultimately decided he would not testify during
the trial on the merits, I had already done all I could
through the cousins, the State's witnesses, but it was
imperative that the Defendant testify if he wanted to
raise any defenses. This was something I could not get
the Defendant to understand. Yet, strangely enough, I
was able to convince him to testify at the motion to
suppress hearing. I thought then that the Defendant
might agree to testify to his defense.
I had already filed a motion to suppress the
Defendant's confession made to the police in the event
the Defendant did not testify. When it appeared before
trial that he might not testify, I proceeded with the

9

motion to suppress. In the process of telling me before
trial that he didn't want to testify, he also said he
didn't care what happened. He did agree to testify as
to the facts surrounding his interview and arrest, but
when the State rested, he chose not to testify in his
own defense. Since I was not sure that he would
testify, my legal strategy became to do something, and,
at the least, attack the evidence and credibility of
the witnesses. At that point also, one of the witnesses
who was in the car, and whom I had re-interviewed a few
days before trial at her home, told me that she had
lied to the Grand Jury and that she did not hear or see
the Defendant do or say anything incriminating, and
that her cousin had lied also. During the trial, the
motion to suppress was granted and that removed the
confession made by the Defendant to the detective. That
only left the two cousins who were in the car and who
had previously made statements to the Grand Jury
recounting the Defendant's admission of the crime and
his lack of fear or remorse. However, even though just
a few days before, she had told me that she had lied
and that her cousin had also lied, when she testified
at the trial and in the presence of the jury, she
changed her story and repeated the exact same thing
that she had told the Grand Jury and incriminating the
Defendant. When I questioned her about what she had
told me earlier, she admitted that she lied to me but
that the truth was what she told the Grand Jury and
what she was now also testifying to the jury. When
asked why she would lie to me, she said she did not
want to talk to me so she just told me what she
believed I wanted to hear. I was able to show the jury
her inconsistencies. Yet, her testimony was very strong
and was also supported by her earlier sworn Grand Jury
testimony.

In response to the first reason given of failing
to present EVIDENCE in support of the theories of selfdefense, defense of third persons, and necessity, I
submit the following.

10

As counsel for the Defendant, I urged Defendant to
testify if he clearly wanted to raise the issue of
self-defense, defense of third persons, and necessity.
However, the Defendant refused to testify, thereby
tying my hands. Through cross-examination of the two
State's witnesses (the Defendant's cousins), I made an
effort to establish facts so as to try to raise these
defenses. These witnesses would not and did not testify
that the Defendant was in fear of his life, or that he
felt threatened. Only the Defendant could do that.
Since he was not going to testify, his statement to the
detective, if admitted, did nothing but confirm the
lack of provocation. His statement also would show that
he and his friend, the driver, were sufficient to
defend themselves, and he also admitted that the
deceased ran away when the deceased saw his friend get
knocked down; that it was then that he decided to chase
the decedent across a vacant lot and ultimately stab
him in the heart. Therefore, I made the decision that
we had a better chance if we won the motion to suppress
which I believed we would, and we did. Then I could try
to attack and use the testimony of the two witnesses in
the car (the cousins) to our benefit. Also, these two
witnesses were without a place to live and not from
this country so there was the possibility that they
would not be available for trial.
In response to the second reason of failing to
request a jury instruction on sudden passion during the
guilt/innocence phase of the trial, I submit the
following:
For offenses after September 1, 1994, the question
of whether a Defendant has acted under the influence of
sudden passion arising from an adequate cause is an
issue of punishment, not of guilt/innocence.
In response to the third reason alleged of failing
to object when the prosecutor asked the State witness
whether or not Sanchez was an illegal alien, I submit
the following:
When the State introduced a response from a
11

State's witness about the Defendant's status, I did not
object as I believed that if the Defendant testified he
would, on his own, offer that information. The strategy
would be that he wanted to be up front and truthful
about himself in support of his testimony being
credible. I was prepared to object to the question if
it was repeated at any other time so as not to be used
to appeal to any prejudice. So once it was in one time,
I made sure that it was not repeated or referenced
again. The State never again referenced the Defendant's
status through evidence or in closing. The Defendant
ultimately chose not to testify. Nevertheless, this did
not result in a fundamental error nor was it harmful.
The erroneous admission of evidence is harmless unless
the error probably caused the rendition of an improper
judgment. Probable error is not subject to precise
measurement, but it is something less than certitude;
it is a matter of judgment drawn from an evaluation of
"the whole case from voir dire to closing argument,
considering the state of the evidence, the strength and
weakness of the case, and the verdict."
All cases that can be presented to show harm
involve cases where there was the repeated injection
into the case of the Defendant's .
. illegal
immigrant status (that) was plainly calculated to
inflame the jury against him. "In contrast, here in
this Sanchez case, his illegal status was mentioned
only once during the entire proceeding, and the State
did not predicate its trial strategy or shape its
closing argument around that status." Here in this
case, the evidence against the Defendant was clear,
unrebutted, overwhelming, and convincing. The strength
of the case was very clear. The error of admission of
the illegal status had no impact in the judgment
rendered. The Appellate Court in this case further
noted that although they recognized the non-objection
by the defense, they made it clear that they did not
"condone in any way the State's decision to introduce
Sanchez's illegal status during the guilt/innocence
phase of trial."
Also, there is no clear evidence in the record
12

that the evidence of the Defendant's illegal status
resulted in a more severe sentence. The purported harm
is mere speculation regarding what the jury might have
considered. The Defendant cannot identify any actual
harm. Nothing in the record supports the assertion that
the jury increased his sentence based on the knowledge
of his illegal status. That the error occurred is not
proof that it contributed to his conviction or
punishment. Sanchez has not presented facts nor
affidavits in support of his requested relief. He has
only presented conclusions and his sworn allegations
alone are not sufficient to prove his claims.
In response to the fourth reason of failing to
request an instruction regarding sudden passion during
the punishment phase, I submit the following:
I researched the issue and found not a scintilla
of evidence that justified a request for a charge of
sudden passion in the facts presented.
My research found that with respect to sudden
passion, the cases are clear that something more than
the presence of simple fear is required. For a claim of
fear to rise to the level of sudden passion, there must
be evidence that the Defendant's state of mind rendered
him incapable of cool reflection. A sudden passion
charge should not be given absent some evidence of the
condition of the accused's mind at the time of the
offense. Courts have stated that one is not free to
recognize the requisite heightened emotional state by
implication. "In other words, (sudden passion) is not
available to one whose actual emotional responses are
aberrational in this society." The breaking of one's
car windows is not adequate in this society to justify
a killing." "Without legally adequate cause, no amount
of subjective passion will justify submission of
(sudden passion.)"
In the present case, Defendant Roberto Sanchez
never testified, so nothing was offered by him that
described his emotional state. Even the statements by
the two witnesses in the car did not indicate any

13

degree of "anger, rage, or resentment, or terror in a
person of ordinary temper necessary to create adequate
cause." Again one is "not free to recognize the
requisite heightened emotional state by implication."
Before trial, when I asked the Defendant if he was
scared or frightened he told me "no." When I asked him
if he became ''scared or \\angry,
he said ''no.
Also,
unfortunately, he did not testify because he chose not
to testify, so the jury never heard from him even admit
the charge and/or describe how he felt emotionally at
the time of the offense. The only evidence was from the
cousin witnesses in the car. One of .
. them
testified that the only confrontation the Defendant had
with the victim was an exchange of words and that the
Defendant pulled a knife and chased down the victim and
that she saw a stabbing motion. In fact, the only
emotion she described of the Defendant was when he
returned to the car, when she said he acted happy, and
he told her "that it felt good to kill somebody."
11

11

11

Based on all the above, I made the decision that
there was not an adequate provocation nor evidence of
any passion or emotion to support any rational jury
making findings of sudden passion because the evidence
was "so weak" and actually absent of any evidence that
demanded the charge of sudden passion be requested.
(State Habeas R., 50-55, ECF No. 10-9)

(citations omitted)

(emphasis in original) .
The state habeas court adopted the state's proposed findings
of fact, based largely on counsel's affidavit, and, applying the
Strickland standard, found that counsel's chosen defense was the
result of reasonable trial strategy and that petitioner had
failed to demonstrate ineffective assistance of counsel or show a
reasonable probability that the result of his trial would have
14

been different had counsel presented more evidence; requested a
sudden passion jury instruction during the guilt/innocence phase
of trial; objected to the single reference to petitioner's
illegal status; or requested a sudden passion jury instruction
during the punishment phase of trial.

(Id. at 66-67.) The Texas

Court of Criminal Appeals in turn adopted the trial court's
findings and presumably applied the Strickland standard in
denying petitioner's state habeas application.

(Id.,

"Action

Taken," ECF No. 10-7.)
Absent clear and convincing evidence in rebuttal, this court
must defer to the state courts' factual findings. Applying the
appropriate deference, and having independently reviewed
petitioner's claims in conjunction with the state court records,
the state courts' application of Strickland was not unreasonable,
particularly in light of the overwhelming evidence of
petitioner's guilt. Petitioner's claims are largely conclusory,
with no legal and/or evidentiary basis, and involve strategic and
tactical decisions made by counsel, both 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
15

ineffective assistance of counsel); Green v. Johnson, 160 F.3d
1029, 1042 (5th Cir. 1998)

("Mere conclusory allegations in

support of a claim of ineffective assistance of counsel are
insufficient to raise a constitutional issue.").
Counsel explained to petitioner the weaknesses and problems
associated with petitioner's theories of self-defense, defense of
third parties, and necessity, however petitioner asserts that
counsel should have investigated and searched for evidence in
support of the defensive theories.

(Pet'r's Reply 4, ECF No. 14.)

Clearly, counsel gathered a substantial amount of information in
petitioner's case, and petitioner fails to point to any evidence
known to counsel that would have led a reasonable attorney to
investigate further. Wiggins v. Smith, 539 U.S. 510, 527 (2003)
Counsel cannot produce evidence out of thin air to support a
defensive theory where none exists. As found by the state habeas
court, the testimony of the state's witnesses, including the
testimony of petitioner's cousins, did not support petitioner's
defensive theories; thus, petitioner was the only person who
might have provided testimony related to those defenses, and he
voluntarily chose not to testify.

(State Habeas R. 66, ECF No.

10-9.)
Petitioner also asserts that counsel should have used his
16

confession to the police in support of his defensive theories.
(Pet' r's Reply 3-4, ECF No. 14.) In his oral statement,
petitioner told the detective that the victim was drunk and
jealous because he did not believe petitioner was Dilcia's
cousin; that the victim "threw a punch" in petitioner's face with
his hand; that petitioner was going to get into the car when the
victim "threw" another punch at petitioner but missed; and that
after the victim threw the second punch, petitioner "followed"
the victim with a "little knife" and •cut him once."

(Reporter's

R., vol. 7, State's Ex. 49, ECF No.9-11.) The state habeas court
found that petitioner's statement "established that he chased the
victim [who was unarmed] down and killed him," and that counsel's
decision to keep the statement out was the result of reasonable
trial strategy.

(State Habeas R. 66, ECF No. 10-9.) The state

court's determination is not unreasonable. Under Texas law, a
person is justified in using force or deadly force against
another when and to the degree the actor reasonably believes the
force or deadly force is immediately necessary to avoid imminent
harm or to protect the actor or a third party against the other's
use or attempted use of unlawful force or unlawful deadly force.
See TEX. PENAL CODE ANN.

§§

9.22, 9.31

&

9.33

(West 2011). Although

the reasonableness of a defendant's apprehension of the victim's

17

use of unlawful force or unlawful deadly force may be raised
without the testimony of the defendant, petitioner's statement
does not establish his subjective state of mind at the time of
the offense or that his state of mind was reasonable. See Smith
v. State, 676 S.W.2d 584, 586-87 (Tex. Crim. App. 1984).
Further, under the facts of this case, any request for a
jury instruction on sudden passion at either phase of the trial
would have been futile. Petitioner's criticism of his trial
counsel's failure to seek a jury instruction on sudden passion
concerns a state law issue that is not subject to federal habeas
review. See Creel v. Johnson, 162 F.3d 385, 390 (5th Cir. 1998)
(citing Valles v. Lynaugh, 835 F.2d 126, 127 (5th Cir. 1988));
Alexander v. Mccotter, 775 F.2d 595, 601 (5th Cir. 1985). Federal
courts defer to the state courts on whether such an instruction
is warranted. See,

e.g., Valles, 835 F.2d at 126 ("We defer to

the state court in its interpretation of its law, and must accept
same, for '[i]t is not our function as a federal appellate court
in a habeas proceeding to review a state's interpretation of its
own law,' unless that interpretation violates the Constitution."
(citation omitted)

(quoting Moreno v. Estelle, 717 F.2d 171, 179

(5th Cir. 1983)). First, under state law, sudden passion is a
matter for the punishment phase. And, second, assuming that the
18

state courts determined that, based on the evidence presented, no
instruction on sudden passion was justified, any such request by
counsel would have been denied. Counsel is not ineffective for
failing to request a jury instruction to which the defendant is
not entitled. Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990)
(providing that counsel is not required to make futile motions or
objections).
Finally, petitioner asserts that the state court's
determination that no prejudice resulted from counsel's failure
to object to the single reference to his illegal status is
unreasonable because it poisoned the minds of the jury against
him. As proof, he directs the court to a jury note sent to the
trial court during deliberations in the punishment phase asking
"[i]f prisoner is ever released on parole, will the defendant
remain in our country, or would he be deported back to Honduras."
(Pet'r's Reply 9, ECF No. 14; Clerk's R. 85, ECF No. 9-13.)

"Not

objecting" can be a reasonable trial strategy. Furthermore,
although the appellate court expressly noted that it did not
condone the state's decision to question petitioner about his
illegal status, the court specifically noted that the matter was
mentioned only once during the entire proceeding and that the
state did not predicate its trial strategy or shape its closing
19

argument around that status.

(Mem. Op. 7 n.7, ECF No. 9-4.) Also,

counsel explained his motivation for not objecting to the
question and stated that he was prepared to object if it was
repeated.

(State Habeas R. 53-54, ECF No. 10-9.) Although the

jury questioned the effect of petitioner's illegal status as it
related to his punishment, this court cannot say that the jury
note, on its own, is clear and convincing evidence of ethnic or
racial bias or proof that petitioner's illegal status had a
substantial and injurious influence on the jury's verdict in
either phase of petitioner's trial.
For the reasons discussed herein,
The court ORDERS that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

denied. The court further ORDERS that a certificate of
appealability be, and is hereby, denied, as petitioner has not
made a substantial showing of the denial of a constitutional
right.
SIGNED

May~,

2017.

BRYDE
STATES DISTRIC

20