Carrizales v. Director of Texas Dept. of Corrections-CID

Filing 36

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: denying as moot 31 MOTION for Discovery, denying as moot 35 MOTION for Evidentiary Hearing, granting 14 MOTION for Summary Judgment with Brief in Support, denying as moot 34 MOTION for Appointment of Counsel, adopting 24 Memorandum and Recommendation (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GILBERT CARRIZALES,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

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§ CIVIL ACTION NO. 2:13-CV-82
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Respondent’s motion for summary judgment.
D.E. 14. On November 5, 2013, United States Magistrate Judge B. Janice Ellington
submitted a Memorandum and Recommendation recommending that Respondent’s
motion for summary judgment be granted. D.E. 24. Petitioner timely filed his objections
on February 12, 2014. D.E. 33.
In her Memorandum and Recommendation, the Magistrate Judge found that
Petitioner’s action was time-barred, unexhausted, and procedurally barred. Petitioner
does not contest the conclusion that his claim is unexhausted and procedurally barred or
that his claim is time-barred. Rather, Petitioner urges that his failure to comply with
procedural requirements is not fatal to his claim because he is actually innocent of the
crime for which he was convicted.
In his objections, Petitioner alleges that the prosecutor and the police conspired to
willfully and knowingly withhold evidence of his innocence—namely the record of a
sexual assault examination conducted after the complaining witness made allegations of
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abuse. Petitioner contends that the medical record proves that he is actually innocent of
the first-degree felony for which he was convicted because the record provides that: (1)
the complaining witness indicated she was touched while fully-clothed, and (2) there was
no evidence of trauma to the vaginal area. Petitioner further asserts that the inadequate
preparation of his court-appointed counsel prevented him from becoming aware of this
purportedly exculpatory evidence until after he was tried and convicted.
The Supreme Court has held that both a procedural bar and the expiration of the
AEDPA statute of limitations can be overcome by a showing of actual innocence.
McQuiggins v. Perkins, 133 S.Ct. 1924, 1928 (2013). “A petitioner does not meet the
threshold requirement [for establishing actual innocence] unless he persuades the district
court that, in light of new evidence, no juror, acting reasonably, would have voted to find
him guilty beyond a reasonable doubt.” Id. (quoting Schlup v. Delo, 513 U.S. 298, 329
(1995)).
Contrary to Petitioner’s assertion, the evidence he relies on does not establish his
actual innocence. At trial, the complaining witness testified under oath that Petitioner
touched her under her clothing. D.E. 13-15, p. 9-11. Moreover, the examination relied
upon by Petitioner occurred at least one year after the assault was said to have been
committed—rendering any evidence of trauma unlikely. D.E. 19-1, p. 8. The purported
discrepancies Petitioner points to are not determinative as to his innocence because a
reasonable juror presented with this evidence could have believed the complaining
witness’s testimony at trial over her initial report to the sexual assault examiner.
Furthermore, due to the significant delay between the assault and the examination, the
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absence of physical trauma noted by the examiner would likely have had minimal, if any,
probative value to a juror. As a result, Petitioner has not persuaded this Court that, in
light of this evidence, no juror, acting reasonably, would have voted to find him guilty
beyond a reasonable doubt. Because he has not made the necessary showing of actual
innocence, Petitioner’s action must be dismissed as time-barred and procedurally
defaulted. Petitioner’s objection is OVERRULED.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Petitioner’s objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Petitioner’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Respondent’s motion for summary
judgment (D.E. 14) is GRANTED, Petitioner’s action (D.E. 1) is DISMISSED with
prejudice, and Petitioner’s motion for leave to conduct discovery (D.E. 31), motion for
appointment of counsel (D.E. 34), and motion for evidentiary hearing (D.E. 35) are
DENIED as moot.

ORDERED this 19th day of February, 2014.

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NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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