Martinez v. Livingston
Opinion and Order. For the reasons discussed herein, Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED. Further, for the reasons discussed, a certificate of appealability is DENIED. (Ordered by Judge Reed C. O'Connor on 11/29/2017) (trt)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
LORIE DAVIS, Director,1
Texas Department of Criminal Justice,
Correctional Institutions Division,
Civil Action No. 4:16-CV-216-O
OPINION AND ORDER
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed
by petitioner, Rhonald Martinez, a state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, Director of TDCJ,
Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded
that the petition should be denied.
Petitioner was charged in Tarrant County, Texas, Case No. 1253416D, with possession with
intent to deliver four grams or more but less than 200 grams of methamphetamine. Adm. R., SH15
WR-16,448-11 95, ECF No. 9-58. On August 1, 2013, following a bench trial in the 297th District
Court, the trial court found Petitioner guilty of the offense and true to the habitual-offender notice
in the indictment. Id. On December 20, 2013, following preparation of a presentence investigation
report, the court assessed his punishment at 40 years’ confinement. Id. Petitioner appealed his
Effective May 4, 2016, Lorie Davis replaced Williams 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.
conviction and filed a postconviction state habeas-corpus application challenging his conviction, to
The state appellate court set out the background facts of the case as follows:
One night in September 2011, Fort Worth Police Department Officer Aaron
Cade was on patrol in a “high crime, very high drug activity area” when he saw a car
with a defective license plate and an expired registration. Officer Cade conducted a
traffic stop. As he approached [Petitioner]’s car, [Petitioner] lowered his driver’s side
window, quickly raised it back up, and began stepping out of the car. Officer Cade
instructed [Petitioner] to sit in the car, but [Petitioner] said that his window was not
working. Nonetheless, [Petitioner] sat in the car and again lowered the window.
Officer Cade asked [Petitioner] for his identification and told him why he had
been stopped. Then, Officer Cade asked him where he was going and what he was
doing. [Petitioner] could not answer those questions. He appeared to be “really
nervous”; his hand shook as he handed Officer Cade his driver’s license, his voice
was unsteady, and he was sweating. When Officer Cade asked [Petitioner] why he
was nervous, [Petitioner] said, “I respect the police.” Officer Cade asked whether
[Petitioner] had anything illegal in the car, and [Petitioner] said that he did not. Based
on [Petitioner]’s strange behavior, Officer Cade called for the help of another officer.
By consent, Officer Cade searched [Petitioner]’s clothing but found nothing
of consequence. Officer Cade also asked if he could search [Petitioner]’s car.
[Petitioner] initially said yes. But when Officer Cade attempted to open the car, he
noticed that [Petitioner] had locked its doors and had left its keys in the ignition with
the car still running. Because [Petitioner] had given consent for Officer Cade to
search the car but had then locked it with the keys inside, Officer Cade became
“fairly certain . . . that [Petitioner] was hiding something.” Officer Cade called for
a narcotics dog and detained [Petitioner] in the back of the patrol car. [Petitioner]
then withdrew his consent for the search of the car.
Minutes later, the narcotics dog-“Z”-arrived and “hit” on the driver’s side
door of [Petitioner]’s car. The police, believing that they had developed probable
cause to search the car, found a way to open it, searched it without obtaining a
warrant, and discovered a baggie containing methamphetamine under the driver’s
side seat. [Petitioner]’s car also contained marijuana, more methamphetamine in the
glove box, several empty baggies that had the potential to be used for packaging
methamphetamine, and a syringe. Officer Cade arrested [Petitioner] without writing
citations or warnings for the traffic offenses. From the traffic stop to [Petitioner]’s
arrest, thirteen minutes elapsed.
A grand jury indicted [Petitioner] with possessing while intending to deliver
between four and two hundred grams of methamphetamine. [Petitioner]’s indictment
included a paragraph alleging that he had been previously convicted of two felony
offenses. The trial court appointed counsel to represent [Petitioner]. [Petitioner] filed
several pretrial motions, including a motion to suppress evidence “obtained as a
result of illegal acts on behalf of the Government.” Specifically, in the motion to
suppress, [Petitioner] contended that his roadside detention was not reasonable.
The trial court denied [Petitioner]’s motion to suppress. [Petitioner] waived
his right to a jury trial and pled not guilty. At trial, he testified that he did not own the
car he was driving on the night of his arrest, that he never gave consent for Officer
Cade to search the car or his clothes, and that he did not know drugs were in the car
before his arrest.
Id., Mem. Op. 2-3, ECF No. 9-4.
Petitioner raises four grounds for relief, wherein he claims that (1) the search of the car was
unconstitutional, (2) he was denied effective assistance of counsel on appeal, (3) the medical
examiner who retested the drugs was not independent of the state or a “chemist expert,” and (4) the
state withheld exculpatory evidence in violation of Brady. Pet. 6-7, ECF No. 1.
III. RULE 5 STATEMENT
Respondent believes that the petition is neither barred by the statute of limitations nor
successive but asserts that grounds one and three are procedurally barred. Resp’t’s Ans. 11-15, ECF
IV. PROCEDURAL DEFAULT
Respondent claims petitioner’s grounds one and three are procedurally barred from federal
habeas review. Under his first ground, Petitioner claims that the search of the car following a routine
traffic stop and investigation violated his constitutional rights under the Fourth Amendment. A
federal habeas court is generally barred from reviewing Fourth Amendment claims. Stone v. Powell,
428 U.S. 465, 481 (1976). In Stone, the United States Supreme Court held that “where the State has
provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner
may not be granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.” Id. at 494. To satisfy the “opportunity
for full and fair litigation” requirement, the state need only provide the processes whereby a
defendant can obtain full and fair litigation of a Fourth Amendment claim. Petitioner litigated his
Fourth Amendment claim, although unsuccessfully, during trial and again on appeal. Consequently,
he had the “opportunity for full and fair litigation” of the claim and federal habeas review of the
claim is not available.
Under his third ground, Petitioner claims that the Tarrant County medical examiner appointed
to retest the drugs “was not independent of the state or a chemist expert.” Pet. 7, ECF No. 1.
Petitioner raised this claim for the first time in his state habeas application and the state habeas court
entered the following relevant findings of fact regarding the claim:
Jennifer (Jondran) Mocking, trained in drug chemistry and board certified by
the American Board of Criminalistics, of the Fort Worth Crime Lab’s drug
chemistry section initially tested the controlled substances.
There is no evidence, or allegation, that Mrs. Mocking was not qualified to
test the controlled substances.
[Petitioner] filed a motion for independent test of the controlled substances
on April 20, 2012.
In July 2013, both parties agreed to have the controlled substances retested
by the Fort Worth Crime Lab and, if there was a problem, an alternative lab
would then be used.
Instead of the Fort Worth Crime Lab, the Tarrant County Medical Examiner’s
Office tested the controlled substances.
Sarah Skiles of the Tarrant County Medical Examiner’s Office retested the
controlled substances and confirmed it was methamphetamine in the amount
of over 4 grams but less than 200 grams.
[Petitioner] had “no objection” to the admission of Ms. Skiles’ lab report for
purposes of the record only.
[Petitioner] did not raise on direct appeal that he was denied an independent
expert examination of the controlled substances.
Ms. Skiles is a forensic chemist.
[Petitioner] presents no evidence to support his claim that Sarah Skiles was
not properly trained to analyze the controlled substances.
There is no evidence that there was any error in the examination,
identification, or weight of the controlled substances.
Adm. R., SH15 WR-16,448-11 66-67, ECF No. 9-58 (record references omitted).
The state court determined that the claim was nevertheless forfeited under Texas’s
contemporaneous-objection rule because Petitioner did not lodge an objection to the medical
examiner’s report at trial or request additional testing after the second test was done. Id. at 76.
Respondent contends the claim is barred from this Court’s review based on this procedural default
in state court. Resp’t’s Answer 11-15, ECF No. 8.
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. See Coleman v.
Thompson, 501 U.S. 722, 729, (1991); Fisher v. Texas, 169 F.3d 295, 300 (5th Cir. 1999). In other
words, when a state law default prevents the state court from reaching the merits of a federal claim,
that claim can ordinarily not be reviewed in federal court. Ylst v. Nunnemaker, 501 U.S. 797, 801
(1991); Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977); Murray v. Carrier, 477 U.S. 478, 485-492
(1986). “This doctrine ensures that federal courts give proper respect to state procedural rules.”
Glover v. Cain, 128 F.3d 900, 902 (5th Cir. 1997). The Fifth Circuit has recognized that Texas’s
contemporaneous-objection rule, which requires a timely objection to preserve error for appeal, is
strictly and regularly applied, and is therefore an adequate state procedural bar to federal habeas
review. Dowthitt v. Johnson, 230 F.3d 733, 752 (5th Cir. 2000). In such cases, federal review of the
claim is barred unless a petitioner can demonstrate “cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate that failure to consider the claim will
result in a fundamental miscarriage of justice” due to actual innocence. Sawyer v. Whitley, 505 U.S.
333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner has not
demonstrated cause and prejudice nor has he presented any new, reliable evidence to make a
colorable showing of actual innocence. Therefore, absent a showing of cause and prejudice or a
miscarriage of justice, such showing not having been demonstrated, ground three is procedurally
barred from the Court’s review.
A § 2254 habeas petition is governed by the heightened standard of review provided for in
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 federal law as established by the Supreme
Court 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)(1)–(2); Harrington v. Richter, 562 U.S. 86, 100 (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) provides that a determination of a
factual issue made by a state court shall be presumed to be correct. A 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).
Finally, 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
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, 568 U.S. 289, 292-93 (2013); Harrington, 562 U.S. at 99;
Schaetzle v. Cockrell, 343 F.3d 440, 444 (5th Cir. 2004).
A. Ineffective Assistance of Counsel on Appeal
Under his second ground, Petitioner claims his appellate counsel was ineffective by failing
to challenge the sufficiency of the evidence on appeal. Pet. 6, ECF No. 1. A criminal defendant has
a constitutional right to the effective assistance of counsel at trial and on a first appeal as of right.
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); Anders v. California, 386 U.S. 738, 744 (1967). An
ineffective assistance claim is governed by the familiar standard set forth in Strickland v.
Washington. 466 U.S. at 668. See also Styron v. Johnson, 262 F.3d 438, 450 (5th Cir. 2001)
(applying the Strickland standard to ineffective assistance claims against appellate counsel). 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. Both prongs of
the Strickland test must be met to demonstrate ineffective assistance. Id. at 687, 697. 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. 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 recently emphasized in Harrington v.
[t]he 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 v. Taylor, 529 U.S. 362, 410 (2000) (emphasis in original)).
Accordingly, it is necessary only to determine whether the state courts’ adjudication of Petitioner’s
ineffective-assistance claim is 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).
In the state habeas application, Petitioner argued that–
[w]hen reviewing the entire record of the trial in a light most favorable to the
prosecution it was the prosecution who insisted the car that the methamphetamine
was found in belongs to someone other than [Petitioner]. This fact required additional
proof that [Petitioner] who had merely been driving the car after working on it all day
had knowledge of and control over the contraband found hidden in various place[s]
in the car or there are additional facts and circumstances which affirmatively link the
accused to the contraband. [Petitioner]’s defense was his mere presence in driving
the car had nothing to do with a knowledge or intent in possessing or selling the
drugs found in it. His custody of the car which narcotics were found in are [sic] not
dispositive of knowledge of narcotics located in the car. Nor is it synonymous with
control of the contraband found therein.
Adm. R., SH15 WR-16,448-11 16, ECF No. 9-58.
Appellate counsel responded to Petitioner’s allegation by affidavit as follows:
Martinez complains that on appeal, I failed to raise a complaint that the
evidence supporting the trial court’s judgment was insufficient.
Martinez entered an open plea to the trial court. Article 1.15 of the Texas
Code of Criminal Procedure provides that in the event of a felony conviction based
upon a guilty plea in lieu of a jury verdict, “it shall be necessary for the state to
introduce evidence into the record showing the guilt of the defendant and . . . in no
evidence shall a person charged be convicted upon a guilty plea and to satisfy the
requirements of article 1.15 so long as the judicial confession covers all of the
elements of the charged offense. Since Martinez pled guilty as charged in the
indictment, his plea covered all the elements of the charged offense. Thus, the
evidence-in the form of Martinez’s judicial confession-was sufficient to support the
Adm. R., SH15 WR-16,448-11, 63, ECF No. 9-58 (citations omitted).
A review of the state court record reflects that counsel is mistaken in his assertion that
Petitioner pleaded guilty, when in fact he pleaded not guilty; thus, counsel’s response is not on point.
Nevertheless, based on the recitation of the background facts of the case by the appellate court, the
state habeas court entered the following factual findings, which were adopted by the Texas Court of
[Petitioner] asserts that appellate counsel should have attacked the sufficiency
of the evidence to support his conviction.
Officer Cade found $214 in [Petitioner]’s wallet in the form of one 50, eight
20s, and four ones.
Detective Rhodes testified that he had a lot of experience with narcotic cases.
Detective Rhodes testified that, based on his training and experience, factors
like the total amount of the controlled substances, how it is packaged, and
possession of a large amount of currency in smaller increments are indicative
of possession with intent to delivery [sic].
Detective Rhodes testified that the amount [Petitioner] had was indicative of
possession for dealing and not personal use.
Detective Rhodes testified that having multiple small baggies with the drugs
is indicative of possession for dealing and not personal use.
Detective Rhodes testified that having a couple hundred dollars in cash in
smaller increments is indicative of a person intending to distribute.
Both tests of the controlled substances established that the amount of
methamphetamine was over four grams but less than 200 grams.
There was sufficient evidence to support [Petitioner]’s conviction for
possession with intent to distribute.
No reasonable likelihood exists that the outcome of the appellate proceeding
would have been different had counsel attacked the sufficiency of the
evidence on direct appeal.
Id. at 72-73 (record references omitted).
Based on its findings, the state habeas court concluded that the evidence was sufficient to
support Petitioner’s conviction under the standard set out by the United States Supreme Court in
Jackson v. Virgin, 443 U.S. 307, 319 (1979), and that Petitioner had failed to satisfy either prong of
the Strickland test because the issue would have been frivolous. Id. at 79-80. Appellate counsel is
not required to raise every conceivable argument urged by his client on appeal, regardless of merit.
Smith v. Robbins, 528 U.S. 259, 287-88 (2000). It is counsel’s duty to choose among potential issues,
according to his judgment as to their merits and the tactical approach taken. Jones v. Barnes, 463
U.S. 745, 749 (1983). Giving appropriate deference to the state courts’ factual findings, and having
independently reviewed Petitioner’s claim and the state court record, the state courts’ application of
Strickland was reasonable.
B. Prosecutorial Misconduct
Under his fourth ground, Petitioner claims that the Fort Worth police department and the
Tarrant County prosecutors withheld the dash-cam video recordings of the traffic stop in violation
of Brady v. Maryland, 373 U.S. 83 (1963), and that the recordings would have constituted material
exculpatory or impeachment evidence. Pet. 7, ECF No. 1. In support of his claim, Petitioner relies
upon Officer Cade’s testimony in Petitioner’s civil forfeiture proceeding that the dash-cam
“videotape was never tagged as evidence” and alleged information obtained from the State Counsel
for Offenders that the backup patrol car had dash-cam recordings. Pet’r’s Traverse 8, ECF No. 11.
In Brady, the Supreme Court held “that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373
U.S. at 87. In order to prevail on a true Brady claim, however, it is not enough simply to say that
favorable evidence was withheld. A petitioner must establish that (1) the prosecution suppressed or
withheld evidence; (2) the evidence was favorable to the defense; and (3) the evidence was material
to either guilt or punishment. United States v. Fisher, 106 F.3d 622, 634 (5th Cir. 1997) (quoting
Westley v. Johnson, 83 F.3d 714, 725 (5th Cir. 1996), cert. denied, 519 U.S. 1094 (1997)). Evidence
is material only if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. Kyles v. Whitley, 514 U.S. 419, 434
(1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
The state habeas court entered factual findings, which were adopted by the Texas Court of
Criminal Appeals, including findings that the state court records did not include a copy of any dash
cam recording; that no audio or video recordings were submitted into evidence or submitted to the
Tarrant County Criminal District Attorney’s Office; that no audio or visual recordings were admitted
at trial; and that there was no evidence that an audio or video recording of the traffic stop was made.
Adm. R., SH15 WR-16,448-11 68, ECF No. 9-58. Based on its findings, the state court concluded
that Petitioner had failed to prove the state withheld evidence from the defense. Id. at 76. Giving
appropriate deference to the state courts’ factual findings, the state courts’ adjudication of the claim
was reasonable. Petitioner has not demonstrated that any of the alleged dash-cam recordings actually
exist or existed. And more importantly, even if the Court assumes that such recordings did exist,
Petitioner has simply not established that the recordings would show what he claims that they would
show, namely, that–
Officer Cade lied about consent to search, what I told him when he asked me where
I was driving to, and the fact that he ordered me out of the car under arrest, frisked
me, seized my wallet with $214.00 and gold watch, then cuffed me and made me sit
in the street in front of his car.
Pet’r’s Traverse 8, ECF No. 11.
For the reasons discussed herein, Petitioner’s petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 is DENIED. Further, for the reasons discussed, a certificate of appealability is
SO ORDERED on this 29th day of November, 2017.
UNITED STATES DISTRICT JUDGE
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