Hernandez v. Stephens, Director, TDCJ-ID
Filing
20
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. (see order for further specifics) (Ordered by Judge John McBryde on 11/8/2017) (mpw)
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U.S. DISTR1CTCOURT
NORTHERN DISTRICT OF TEXAS
FILE_D~
E
l
82017
IN THE UNITED STATES DISTRI T COU
FOR THE NORTHERN DISTRICT 0 TEXA
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CLERK, U.S. DISTRICT COURT
FORT WORTH DIVISION
RITCHIE HERNANDEZ,
Petitioner,
v.
LORIE DAVIS, Director, 1
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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No. 4:16-CV-147-A
MEMORANDUM OPINION
and
ORDER
This is a petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 filed by petitioner, Ritchie Hernandez, 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 2004 petitioner was indicted in Tarrant County,
Texas, Case No. 12876010, for the murder of Charles Perry.
(Clerk's R. at 3.) Following a jury trial, the jury found
petitioner guilty and assessed his punishment at 35 years'
1Effective May 4, 2016, Lorie Davis replaced William Stephens as
director of the Correctional Institutions Division of the Texas Department of
Criminal Justice. Pursuant to Federal Rule of Civil Procedure 25(d), Davis is
automatically substituted as the party of record.
confinement.
(Id. at 74.) The Second District Court of Appeals of
Texas affirmed the trial court's judgment on the jury verdict,
the Texas Court of Criminal Appeals refused petitioner's petition
for discretionary review, and the United States Supreme Court
denied his petition for writ of certiorari.
2.)
(Docket Sheet at 1-
Petitioner also filed a state postconviction application for
writ of habeas corpus challenging his conviction, which the Texas
Court of Criminal Appeals denied without written order on the
findings of the trial court.
(Action Taken)
The state appellate court summarized the evidence in the
case as follows:
On March 7, 2004, Lisa Jones and her brother were
driving in the Westpoint area of Fort Worth when Jones
saw a man covered in blood lying face-down in a ditch.
Jones saw another man, later identified as appellant,
sitting behind the wheel of a car on the side of the
road near the ditch. Jones pulled over to the nearest
stop sign and called 9-1-1.
While Jones waited for the police to arrive, she
saw appellant get out of the car, walk over to the man
in the ditch, try to lift him, fail, and lay the man
back on the ground. Appellant, who appeared to be in
shock, next walked back to his car, leaned on its
bumper, rocked back and forth, and attempted to use his
cell phone.
Later, Latasha Morgan, a nurse's aide, also drove
by. Morgan saw appellant kneeling on the ground near a
body and crying hysterically. Morgan got a towel from
her car to use as a pressure bandage, brought the towel
to appellant, and told appellant to apply pressure.
Appellant did not comply, and told Morgan that "[t]hose
niggers did it.n
When the paramedics arrived, they noticed that the
victim, who was later identified as Charles Perry, had
2
several deadly chest wounds. Although the paramedics
took Perry to the hospital, Perry was dead before he
left the scene.
Before Perry was transported, however, Officer
Shawn Elliott from the White Settlement Police
Department stopped at the scene and saw appellant lying
over Perry in the ditch. Both appellant and Perry were
covered in blood. Officer Elliott asked appellant what
happened, and appellant said that he had picked up
Perry from a motel on Highway 80. According to
appellant, Perry was already injured when he picked him
up. When Officer Elliott asked why appellant did not
transport Perry to a hospital, appellant said that
Perry did not want to go because he had some illegal
narcotics on him. Officer Elliott next asked appellant
for more details about where the assault had taken
place, and this time appellant stated that he had
picked up Perry at Rosedale and I-35, which is not near
Highway 80.
An autopsy revealed that Perry died of multiple
stab wounds and blunt force trauma to the head. Three
days after Perry died, the officers obtained consent to
search a fenced-off area near where Perry's body was
found; during this search, they found a butterfly knife
with Perry's blood on it lying several feet from the
nearby fence line. The knife contained the blood of at
least one other person.
(Mem. Op. at 2-3, 5-8.)
II. Issues
In one ground, petitioner claims that his trial counsel was
ineffective by failing to investigate the butterfly knife
allegedly used in the murder. In support, he asserts that
post-conviction forensic testing establishes that the
knife allegedly used as the murder weapon was in fact
incompatible with the victim's wounds. Had trial
counsel investigated the matter and consulted with an
expert, he would have ascertained as much. Counsel was
profoundly ineffective on this basis because the
location in which the knife was discovered was pointed
to as crucial evidence in [his] guilt.
3
(Pet. at 6.)
III. Rule 5 Statement
Respondent believes that the petition is timely filed, that
the petition is not successive, and that petitioner has
sufficiently exhausted his state-court remedies as to his claim.
(Resp't' s Answer at 7.) 28 U.S.C.
§§
2244 (b),
(d)
&
2254 (b) (1).
IV. Discussion
A. Lega1 Standard for Granting Habeas Corpus Re1ie£
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
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. 28
U.S.C. § 2254(d)(l)-(2); Harrington v. Richter, 562 U.S. 86, 10001 (2011). 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)
4
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
the contraryn 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, 568 U.S.
289, 298
(2013); Harrington, 562 U.S. at 99; Schaetzle v.
Cockrell, 343 F.3d 440, 444
(5th Cir. 2003).
B. Ineffective Assistance of Counse1
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
5
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
manner in which a federal court is to consider an ineffectiveassistance-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.n 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.
6
685,
698-99
(2002); Kittelson
v. Dretke, 426 F.3d 306, 315-17
(5th Cir. 2005); Schaetzle, 343
F.3d at 443.
Petitioner's postconviction habeas counsel filed a motion
for an independent expert to examine the butterfly knife found at
the scene, and the motion was granted.
(State Habeas R. 118-29.)
Ed Hueske, a forensic scientist, prepared a report opining that
the butterfly knife, a single-edged knife, was incompatible with
the victim's wounds and that the wounds were caused by a doubleedged knife.
(Id. at 167-77.) Thus, petitioner amended his state
habeas application to include a claim that trial counsel was
ineffective for failing to investigate the matter and consult
with an expert.
(Id. at 136.) The state responded that petitioner
presented no evidence, or specific facts, regarding Hueske's
training or experience indicating he had any specialized
knowledge in stab wounds.
(Id. at 226.) Habeas counsel then
requested that Hueske provide his curriculum vitae and address
the issue of his expertise.
(Id. at 336.) Hueske provided his
curriculum vitae and an affidavit, statingAttached hereto is my CV and my qualifications on
knife examinations. The facts stated in the report are
true and correct. Knife wounds come under the general
forensic heading of tool marks - pure and simple. There
have been numerous publications in the forensic
literature on the subject by firearm/tool mark
examiners over the years. Additionally, over the last
42 years I have attended numerous forensic society
meetings where the topic of knife wounds was presented
and discussed. I included a copy of my article on knife
blade impressions some time back re the Hernandez case.
It is listed in my CV in the publications section
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("Making Knife Blade Test Impressions," SWAFS Journal,
2007).
I, as do other firearm/tool examiners, rely on a
forensic pathologist for knife wound descriptions in
addition to reviewing autopsy photographs of the wounds
as in this case. The wound descriptions and
photographic images are then compared to test
impressions created as described in my 2007 paper on
the subject. I would submit that most forensic
pathologists rely on firearm/tool mark examiners to
make forensic comparisons of suspect knives to stab/cut
wounds per their written descriptions and scaled
photographs. If I had been requested to testify, I
would have appeared and testified as set out in my
report.
(Id. at 336.)
Based thereon, the state submitted the following proposed
findings of fact on the issue, which were adopted by the state
habeas court, save for finding number 14 which was modified by
the court as reflected below:
7.
Edward Hueske has given an opinion that the
butterfly knife found near the body is not the
weapon that caused the injuries.
8.
Applicant presents no evidence that Mr. Hueske has
any specialized knowledge in stab wounds.
9.
Applicant presents no evidence, specific facts, or
authority, to support Mr. Hueske's conclusion that
"[k]nife wounds come under the general forensic
heading of tool marks - pure and simple."
10.
Applicant presents no evidence, or specific facts,
that Mr. Hueske has had any specialized training,
degrees or certifications in the identification of
stab wounds or pathology.
11.
Mr. Hueske authored a paper, Making Knife Blade
Test Impressions.
12.
Mr. Hueske's article discusses the benefits of
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using Bio-Foam™ to make test impressions for
comparison to stab wounds.
13.
Mr. Hueske's article does not present any
evidence, or authority, that knife impressions in
Bio-Foam™ mimic the wounds found on flesh-andblood, alive and kicking, stabbing victims.
14.
There is no evidence that Mr. Hueske's test
impressions in Bio-Foam™ of the suspect knife are
comparable to what damage the knife would have
made on a living and moving victim.
15.
Mr. Hueske's article does not establish that Mr.
Hueske has any specialized knowledge about the
identification of stab wounds or pathology.
16.
Mr. Hueske is well known in the field of shooting
reconstruction.
17.
Tarrant County has used Mr. Hueske as a crime
reconstruction expert for shootings.
18.
There is no evidence that Mr. Hueske has an
advanced degree regarding pathology or the
identification of stab wounds.
19.
Mr. Hueske's affidavit that he has "attended
numerous forensic society meetings where the topic
of knife wounds was presented and discussedn is
not sufficient to establish that Mr. Hueske has
specialized training in the study and
identification of stab wounds.
20.
There is no evidence that Mr. Hueske has ever
presented a paper on the identification of stab
wounds.
21.
There is no evidence that Mr. Hueske has ever
taught a class regarding the identification of
stab wounds.
22.
There is no evidence that Mr. Hueske has ever been
published regarding the identification of stab
wounds.
23.
There is no evidence that Mr. Hueske has ever
written or produced a training video on the
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identification of stab wounds.
24.
There is no evidence that Mr. Hueske has ever
testified before regarding the identification of
stab wounds.
25.
Mr. Hueske does not list on his website that
identification of stab wounds is an area of his
expertise.
26.
There is no evidence that Mr. Hueske is an expert
in the field of pathology or the identification of
stab wounds.
27.
There is no evidence that Mr. Hueske has the
ability to identify whether a stab wound has been
made by a particular knife.
28.
The medical examiner stated in his report that
"[t]he ends appear pointed" in his description of
the wounds.
29.
Mr. Hueske states that the fact that the wounds
have "pointed ends" proves that the wounds were
made by a double-edged blade.
30.
There is no evidence, or explanation, as to what
photographs Mr. Hueske looked at to develop his
opinion.
31.
Wounds #1, #2, #7, have blunt edges and match Mr.
Hueske's test impressions of the knife blade in
question.
32.
Wounds #1, #2, and #7 appear to be caused by a
single-edged knife like the one tested by Mr.
Hueske.
33.
The victim's other wounds have "pointed ends."
34.
There is authority that "pointed ends" "[d]o not
necessarily indicate that a knife with two sharp
edges was used, as the skin often splits behind
the blunt edge to produce a symmetrical
appearance."
35.
There is authority that a single-edged
make the wounds with "pointed ends."
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blade can
36.
There is no credible evidence that the victim's
wounds could not have been made by a single-edged
blade.
37.
There is no credible evidence that counsel would
have discovered the butterfly knife was not the
murder weapon had additional investigation been
done.
38.
There is no evidence that a reasonable likelihood
exists that the outcome of the proceeding would
have been different had counsel investigated the
butterfly knife more.
(Id. at 338-42, 356.)
Based on its findings, and applying the Strickland standard,
the state habeas court concluded that petitioner failed to prove
that counsel's investigation into the butterfly knife constituted
deficient representation or that there existed a reasonable
probability that the result of petitioner's trial would have been
different had counsel done more investigation regarding the
knife.
(Id. at 351-52.)
The Texas Court of Criminal Appeals, in
turn, denied relief based on the state habeas court's findings.
Under state law, an expert may be "qualified as an expert by
knowledge, skill, experience, training, or education" to give an
expert opinion. TEX. R. EVID. 702. The degree of education,
training, or experience that is required for a witness to be
qualified as an expert depends on several factors,
including "the
complexity of the field about which he proposes to testify"; the
conclusiveness of the expert's opinion; and how dispositive the
expert's testimony is to the central issue(s) in the case.
11
Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006).
Petitioner has not shown by clear of convincing evidence that the
state courts'
factual findings are erroneous and not subject to
deference under§ 2254(e) (1). And, having reviewed Hueske's
credentials, his article on knife impressions, and his affidavit,
the state courts' finding that his background demonstrates a lack
of specialized knowledge, education, training, or experience to
qualify him as an expert in stab wounds was not unreasonable.
Thus, relying on the presumptive correctness of the state courts'
factual findings, the state courts' adjudication of petitioner's
ineffective-assistance claim comports with Strickland.
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 November
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2017.
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