Canales v. Davis

Filing 51

ORDER ADOPTING 33 MEMORANDUM AND RECOMMENDATIONS and granting re: 15 MOTION FOR SUMMARY JUDGMENT. Petitioner's petition for writ of habeas corpus 1 is DENIED. A certificate of appealability is GRANTED only as described in this Order.(Signed by Judge David S Morales) Parties notified.(arodriguez, 2)

Case 2:19-cv-00330 Document 51 Filed on 01/07/21 in TXSD Page 1 of 2
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
VICTOR HUGO CANALES; aka
RIVERA-SALAZAR,
Petitioner,
VS.
LORIE DAVIS,
Respondent.

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January 07, 2021
Nathan Ochsner, Clerk

CIVIL ACTION NO. 2:19-CV-330

ORDER ADOPTING MEMORANDUM & RECOMMENDATION
Before the Court is Magistrate Judge Julie Hampton’s Memorandum and
Recommendation (M&R). (D.E. 33). The M&R recommends that the Court grant
Respondent’s motion for summary judgment (D.E. 15) and dismiss Petitioner’s petition for
writ of habeas corpus (D.E. 1). However, the M&R recommends that the Court grant
Petitioner a certificate of appealability. (D.E. 33, p. 2); see 28 U.S.C. § 2253(c).
The parties were provided proper notice of, and the opportunity to object to, the
Magistrate Judge’s M&R. See U.S.C. § 636(b)(1); FED R. CIV. P. 72(b); General Order No.
2002-13. Petitioner timely filed objections to the M&R. (D.E. 44).1 Having carefully
reviewed the proposed findings and conclusions of the M&R, the record, the applicable
law, and having made a de novo review of the portions of the M&R to which Petitioner’s

1

Petitioner also filed a premature motion for a certificate of appealability in Docket Entry 45. The
Magistrate Judge terminated the premature motion, as the district court had not yet ruled on the
M&R at that time, and indicated that the filing should be construed as objections to the Magistrate
Judge’s recommendation to grant a certificate of appealability on only a single issue. (D.E. 47).
Accordingly, the Court has considered Docket Entry 45 as objections to the M&R (D.E. 33) and
overrules those objections to the extent they are contrary to the M&R’s recommendation.
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Case 2:19-cv-00330 Document 51 Filed on 01/07/21 in TXSD Page 2 of 2

objections were directed, 28 U.S.C. § 636(b)(1), the court OVERRULES Petitioner’s
objections. (D.E. 44).
Accordingly, the Court:
(1) ADOPTS the M&R in its entirety. (D.E. 33).
(2) Respondent’s motion for summary judgment (D.E. 15) is GRANTED.
(3) Petitioner’s petition for writ of habeas corpus is DENIED. (D.E. 1).
(4) A certificate of appealability is GRANTED only as to the following issue: Whether
the state court’s denial of Petitioner’s ineffective-assistance claim was contrary to,
or an unreasonable application of, clearly established federal law where counsel
failed to object or seek a curative instruction to the state’s questioning about the
details of Petitioner’s prior drug conviction. See (D.E. 33, p. 23).2
SO ORDERED.

DAVID S. MORALES
UNITED STATES DISTRICT JUDGE

Dated: Corpus Christi, Texas
January 7, 2021

2

Petitioner also prematurely filed a notice of appeal (D.E. 46), apparently appealing the M&R
before the district court had ruled on it, and before any certificate of appealability had been granted
as to any issue in this habeas corpus action. See 28 U.S.C. § 2253(c). Petitioner’s notice of appeal
is considered timely as of the date of this order. See FED. R. APP. P. 3(a), 4(a)(1)(A).
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