Romero v. Thaler, Director TDCJ-CID

Filing 49

MEMORANDUM AND ORDER (Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
NELSON ROMERO,
Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

April 26, 2018
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 3:13-CV-98
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MEMORANDUM AND ORDER

State inmate Nelson Romero seeks a federal writ of habeas corpus under 28 U.S.C.
§ 2254 challenging his Texas state court conviction for possessing a deadly weapon in a
penal institution. (Docket Entry No. 3). Respondent Lorie Davis has filed a motion for
summary judgment, arguing that Romero’s claims are without merit and that he is not
entitled to relief. (Docket Entry No. 20). Romero has responded. (Docket Entry Nos.
44, 47, 48). After reviewing the record, the pleadings, and the applicable law, with
special consideration given to the Anti-Terrorism and Effective Death Penalty Act’s
(“AEDPA”) deferential standard of review, the Court will grant Respondent’s motion for
summary judgment and deny Romero’s petition. The Court will not certify any issue for
appellate review.
The Court sets forth the reasons for its adjudication below.
BACKGROUND
Romero was imprisoned in the Darrington Unit of the Texas Department of
Criminal Justice on May 28, 2006, when a riot broke out. As a result of Romero’s

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actions during a fight, the State of Texas charged him with the felony offense of
possessing a deadly weapon in a penal institution. Clerk’s Record at 2. The indictment
specified that Romero possessed “a metal rod sharpened to a point.” Clerk’s Record at 2.
The indictment included two enhancement paragraphs based on Romero’s prior
convictions for aggravated assault and aggravated robbery. Clerk’s Record at 2.
The State tried Romero under cause number 58710 in the 23rd Judicial District
Court of Brazoria County, Texas. The trial testimony showed as follows:
Inmate Ricky Zackery testified that [Romero] “tried to take my life” and
“tried to kill me” with the shank by stabbing him below the chest and in the
shoulder during the prison fight.
Zackery testified that he lost
consciousness after the fight and was transported to the hospital in an
ambulance. Zackery testified that he stayed in the hospital approximately
two days, and he was given pain medication for seven days after the
incident.
Inmate Adrian Richmond testified at trial that he saw [Romero] stab
Zackery and at least one other inmate with a shank during the prison fight.
Richmond testified that Zackery was “covered in blood” after [Romero]
stabbed Zackery two times, and that “blood was everywhere.” Inmate Fred
Primes also testified that he saw [Romero] holding a shank during the fight.
Primes testified that although he did not see [Romero] stab anyone, other
inmates did. Richmond and Investigator Rebecca Dougherty testified that
weapons similar to the shank [Romero] used in the prison fight were
“capable of causing death or serious bodily injury.”
Richmond admitted that his trial testimony differed from one of his initial
statements to police, in that (1) he testified at trial that [Romero] held two
shanks during the fight, but stated at an earlier point that [Romero] held one
shank; and (2) one of his initial statements identified a different inmate as
the individual who stabbed Zackery. Richmond testified that “when the
shanks came out . . . I mean it happened fast.”

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Romero v. State, 331 S.W.3d 82, 84 (Tex. App. -Houston [14th Dist.], 2010). The jury
found Romero guilty and assessed his punishment at thirty years confinement. Clerk’s
Record at 60, 79.
Through appointed counsel, Romero filed an appeal arguing that the evidence was
factually and legally insufficient to sustain his conviction for using a deadly weapon.
The Fourteenth Court of Appeals of Texas affirmed his conviction in a published opinion.
Romero v. State, 331 S.W.3d 82 (Tex. App. -Houston [14th Dist.] Dec. 2, 2010, pet.
ref’d). The Texas Court of Criminal Appeals refused Romero’s out-of-time petition for
discretionary review (“PDR”). Ex parte Romero, 2011 WL 5220479 (Tex. Crim. App.
Nov. 2, 2011); Romero v. State, PDR. No. 1756-11.1
Romero did not seek state habeas relief from his conviction or sentence.
On March 31, 2013, Romero filed a federal petition for a writ of habeas corpus
and a memorandum brief in support. (Docket Entry Nos. 3, 4). Romero’s petition again
challenges the factual and legal sufficiency of the evidence supporting his conviction.
Respondent has moved for summary judgment,2 and Romero has responded. This matter
is ripe for adjudication.

1

Romero missed the initial deadline for filing a PDR. Romero filed a state habeas
application requesting permission to file an out-of-time PDR because the United States Postal
Service held his petition for more than a month before returning it for insufficient postage. The
Texas Court of Criminal Appeals granted Romero’s request and considered his subsequent PDR
as if timely filed.
2

Because Romero did not file a timely reply to the summary judgment motion, his petition
was initially dismissed for a failure to prosecute. (Docket Entry No. 22). Romero filed a motion
for reconsideration, but subsequently appealed the dismissal. (Docket Entry Nos. 23, 24). The
Court of Appeals for the Fifth Circuit vacated the judgment and remanded this case for further
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STANDARD OF REVIEW
The writ of habeas corpus provides an important, but narrow, examination of an
inmate’s conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011);
Barefoot v. Estelle, 463 U.S. 880, 887 (1983).

“Society’s resources have been

concentrated at [a criminal trial] in order to decide, within the limits of human fallibility,
the question of guilt or innocence of one of its citizens.” Wainwright v. Sykes, 433 U.S.
72, 90 (1977); see also McFarland v. Scott, 512 U.S. 849, 859 (1994) (stating that a
“criminal trial is the ‘main event’ at which a defendant’s rights are to be determined”).
The States, therefore, “possess primary authority for defining and enforcing the criminal
law.

In criminal trials they also hold the initial responsibility for vindicating

constitutional rights.” Engle v. Isaac, 456 U.S. 107, 128 (1982). As “a foundational
principle of our federal system,” state courts “are adequate forums for the vindication of
federal rights.” Burt v. Titlow, 571 U.S. 12, 15 (2013); see also Woodford v. Visciotti,
537 U.S. 19, 24 (2002) (recognizing AEDPA’s “presumption that state courts know and
follow the law”).

Given this required deference to the state-court system, several

principles circumscribe both the nature of federal habeas review and the availability of
federal habeas relief.
Mirroring a foundational principle in federal habeas law, AEDPA “unambiguously
provides that a federal court may issue the writ to a state prisoner ‘only on the ground
that he is in custody in violation of the Constitution or laws or treaties of the United
proceedings. Romero v. Stephens, 624 F. App’x 231, 232 (5th Cir. 2015). Romero has since
responded to the summary judgment motion.

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States.’” Wilson v. Corcoran, 562 U.S. 1, 16 (2010) (quoting 28 U.S.C. § 2254(a)).
Accordingly, “federal habeas corpus relief does not lie for errors of state law.” Swarthout
v. Cooke, 562 U.S. 216, 219 (2011) (quotation omitted); see also Corcoran, 562 U.S. at
16; Estelle v. McGuire, 502 U.S. 62, 67 (1991). “[O]nly noncompliance with federal law
. . . renders a State’s criminal judgment susceptible to collateral attack in the federal
courts.” Corcoran, 562 U.S. at 5.
If the inmate has presented federal constitutional claims to the state courts in a
procedurally proper manner, and the state courts have adjudicated their merits, AEDPA
provides for a deferential federal review. “[A] habeas petitioner has the burden under
AEDPA to prove that he is entitled to relief.” Montoya v. Johnson, 226 F.3d 399, 404
(5th Cir. 2000); see also DiLosa v. Cain, 279 F.3d 259, 262 (5th Cir. 2002). Under
AEDPA’s rigorous requirements, an inmate may only secure relief after showing that the
state court’s rejection of his claim was either “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of
the United States,” or was “based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),(2).
To merit relief under AEDPA, a petitioner may not merely show legal error in the
state court’s decision. See White v. Woodall, ___ U.S. ___, 134 S. Ct. 1697, 1702 (2014)
(stating being “merely wrong” or in “clear error” will not suffice federal relief under
AEDPA). AEDPA review exist only to “guard against extreme malfunctions in the state
criminal justice systems . . . .” Woods v. Donald, ___ U.S. ___, 135 S. Ct. 1372, 1376
(2015) (quotation omitted). “[F]ocus[ing] on what a state court knew and did,” Cullen v.
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Pinholster, 563 U.S. 170, 182 (2011), AEDPA requires inmates to “‘show that the state
court’s ruling on the claim being presented in federal court was so lacking in justification
that there was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.’” Woodall, 134 S. Ct. at 1702 (quoting Richter,
562 U.S. at 103); Berghuis v. Thompkins, 560 U.S. 370, 380 (2010); Williams v. Taylor,
529 U.S. 362, 413 (2000). “If this standard is difficult to meet, that is because it was
meant to be.” Richter, 562 U.S. at 102.
Respondent moves for summary judgment. Summary judgment is proper when
the record shows “that the moving party is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(c).

“As a general principle, Rule 56 of the Federal Rules of Civil

Procedure, relating to summary judgment, applies with equal force in the context of
habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). AEDPA,
however, modifies summary judgment principles in the habeas context. See Torres v.
Thaler, 395 F. App’x 101, 106 n.17 (5th Cir. 2010) (“Summary judgement in federal
habeas is different than in the average civil case.”); Smith v. Cockrell, 311 F.3d 661, 668
(5th Cir. 2002) (Rule 56 “applies only to the extent that it does not conflict with the
habeas rules”), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
For example, § 2254(e)(1), mandating that a state court’s findings are presumed to be
correct, overrides the summary judgment rule that all disputed facts must be construed in
the light most favorable to the non-movant. Smith, 311 F.3d at 668. Unless a petitioner
can rebut the presumption of correctness of a state court’s factual findings by clear and

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convincing evidence, such findings must be accepted as correct by the federal habeas
court. See 28 U.S.C. § 2254(e)(1).
Romero represents himself. Federal courts do not hold pro se habeas petitions “to
the same stringent and rigorous standards as are pleadings filed by lawyers.” Hernandez
v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (quotation omitted). Accordingly, “[t]he
filings of a federal habeas petitioner who is proceeding pro se are entitled to the benefit
of liberal construction.” Id.
ANALYSIS
Romero’s federal petition raises one ground for relief urging the same basic
arguments he made on direct appeal: the evidence was legally and factually insufficient
to support his conviction. On direct appeal, Romero emphasized that, to prove his guilt
for possessing a deadly weapon, the evidence had to show that the “shank” he possessed
could cause serious bodily injury or death. Romero asserted that the evidence was
insufficient because no medical testimony described the extent of the wounds suffered by
those Romero stabbed, allegedly preventing jurors from finding that the shank he
possessed was a deadly weapon. Thus, Romero argued that the evidence was both
factually and legally insufficient to support his conviction.3
As discussed at length below, the Court finds that the federal constitution does not
require courts to engage in a factual-sufficiency review. The Court also concludes that

3

In his response to the summary judgment motion, Romero claims that trial and appellate
counsel were ineffective for not raising certain arguments. This Court will only consider issues
Romero has exhausted in the state courts. 28 U.S.C. § 2254(b)(1).

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the state court was not unreasonable in finding that legally sufficient evidence supported
his conviction.
A.

Factual Sufficiency
Romero only merits federal habeas relief after showing “a violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The federal
constitution establishes baseline requirements for the evidence necessary to support a
criminal conviction. The Due Process Clause “requires proof of each element of a
criminal offense beyond a reasonable doubt.” Dretke v. Haley, 541 U.S. 386, 395 (2004)
(citing In re Winship, 397 U.S. 358, 364-65 (1970)). In Jackson v. Virginia, 443 U.S.
307 (1979), the Supreme Court set out the constitutional standard governing whether
sufficient evidence supports each element of a charged offense.

Under Jackson, a

reviewing court affirms a jury’s conviction if, considering all of the evidence in a light
most favorable to the prosecution, a rational trier of fact could have returned a verdict
unfavorable to the defendant.
Texas courts now follow Jackson in deciding whether the evidence supporting an
inmate’s conviction is legally sufficient. See Cary v. State, 507 S.W.3d 761, 765 (Tex.
Crim. App. 2016); Fernandez v. State, 479 S.W.3d 835, 837 (Tex. Crim. App. 2016).
States, however, may create protections more rigorous than federal constitutional
standards. See Mills v. Rogers, 457 U.S. 291, 300 (1982) (“Within our federal system the
substantive rights provided by the Federal Constitution define only a minimum. State
law may recognize liberty interests more extensive than those independently protected by
the Federal Constitution.”). Prior to 2010, Texas courts engaged in a sufficiency-of-the8 / 14

evidence review broader than that required by Jackson. In what became known as the
Clewis standard, Texas courts crafted a factual-insufficiency-of-the-evidence review
which
asked whether the verdict was “so contrary to the overwhelming weight of the evidence
as to be clearly wrong and unjust.” Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim.
App. 1996). Texas derived that review exclusively from state law.

See Woods v.

Cockrell, 307 F.3d 353, 358 (5th Cir. 2002) (“The Clewis standard is rooted in the Texas
constitution.”). In 2010, the Court of Criminal Appeals abolished the Clewis factual
sufficiency review.

Texas courts now only apply the federal Jackson standard in

deciding whether sufficient evidence was presented at trial. See Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010).
Romero argues that he merits federal habeas relief because the state court did not
engage in a Clewis factual-sufficiency review when denying his appeal. Texas based its
former factual-sufficiency on state law; the federal constitution, however, does not
require that analysis.

Federal law does not compel state courts to engage in any

sufficiency analysis apart from that outlined in Jackson. See Woods v. Cockrell, 307 F.3d
353, 358 (5th Cir. 2002); see also West v. Johnson, 92 F.3d 1385, 1394 (5th Cir. 1996)
(explaining that, “in challenges to state convictions under 28 U.S.C. § 2254, only Jackson
[v. Virginia] need be satisfied, even if state law would impose a more demanding
standard of proof”) (quotation and citations omitted). The state court’s failure to apply its

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former law does not give rise to a viable federal constitutional issue.4 Federal review
only becomes available if Romero can show that the state court unreasonably applied
Jackson.
B.

Legal Sufficiency
As stated above, Jackson asks whether, viewing the evidence “in the light most

favorable to the prosecution, any rational trier of fact could have found the existence of
facts necessary to establish the essential elements of the offense beyond a reasonable
doubt.” Jackson, 443 U.S. at 318-19; Dupuy v. Cain, 201 F.3d 582, 589 (5th Cir. 2000).
Under this standard, a court must refer to “the substantive elements of the criminal
offense as defined by state law,” Jackson, 443 U.S. at 324 n. 16, and resolve credibility
choices and conflicting inferences in favor of the verdict. United States v. Cyprian, 197
F.3d 736, 740 (5th Cir. 1999); United States v. Nguyen, 28 F.3d 477, 480 (5th Cir. 1994).

4

As a subsidiary argument, Romero says that, by failing to apply Clewis, the state court
“was prohibited from analyzing the credibility of the witnesses,” leaving the court to ask only
“whether there is any evidence to support each of the elements” and to grant relief “only if there
is no evidence to support one of the elements.” (Docket Entry No. 47 at 7). Romero bases this
argument on a concurring opinion in his case by Justice Charles W. Seymore of the Fourteenth
Court of Appeals. Justice Seymore expressed concern that the abandonment of the Clewis
standard ignored the “factual-conclusivity clause of the Texas constitution.” Romero, 531
S.W.3d at 85 (Seymore, J., concurring). The federal constitution contains no comparable
counterpart and the Jackson standard does not require a factual sufficiency review. Jackson
expressly rejected a “no evidence” standard of review. Jackson, 443 U.S. at 314. The federal
Jackson standard also does not provide for the reassessment of credibility issues. “Determining
the weight and credibility of the evidence is within the sole province of the jury,” United States
v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992), and “[a]ll credibility choices and conflicting
inferences are to be resolved in favor of the verdict,” Ramirez v. Dretke, 398 F.3d 691, 695 (5th
Cir. 2005). See also Schlup v. Delo, 513 U.S. 298, 250 (1995) (stating that, “under Jackson, the
assessment of the credibility of witnesses is generally beyond the scope of review”).

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Under Texas law, a person is guilty of possessing a deadly weapon in a penal
institution if “he intentionally, knowingly, or recklessly . . . carries on or about his person
a deadly weapon” or “possesses or conceals a deadly weapon in the penal institution.”
TEX PENAL CODE § 46.10. The Texas penal code defines a “deadly weapon” as either
“(A) a firearm or anything manifestly designed, made, or adapted for the purpose of
inflicting death or serious bodily injury” or “(B) anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17).
“Serious bodily injury” is “bodily injury that creates a substantial risk of death or that
causes death, serious permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” Id. § 1.07(a)(46).
“Homemade weapons or ‘shanks’ can be considered deadly weapons.” Barrera v.
State, 2010 WL 1655478, at *3 (Tex. App. -Houston [14 Dist.], 2010). To decide
whether an object was a deadly weapon, “a jury may consider all facts, including (1) the
physical proximity between the victim and the object, (2) the threats or words used by the
defendant, (3) the size and shape of the weapon, (4) the weapon’s ability to inflict death
or serious injury, and (5) the manner in which the defendant used the weapon.” Adame v.
State, 69 S.W.3d 581, 584 (Tex. Crim. App. 2002) (Meyer, J., concurring). Whether an
object is “capable of causing death or serious bodily injury” depends on the facts that
actually existed at the time of the offense. Drichas v. State, 175 S.W.3d 795, 798 (Tex.
Crim. App. 2005).
Here, the Texas court evaluated the evidence showing that Romero possessed a
deadly weapon and “conclude[d] that viewed in the light most favorable to the jury’s
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guilty verdict, the evidence sufficiently supports the jury’s finding that the weapon used
by [Romero] was deadly.” Romero, 331 S.W.3d at 84. Romero argues that the trial
evidence was insufficient because it did not show that he actually caused any serious
bodily injury. (Docket Entry No. 47 at 4). Texas law, however, did not require such a
showing.

Instead, Texas law allowed for his conviction if he possessed a weapon

capable of causing such an injury. See Johnson v. State, 509 S.W.3d 320, 324 n.6 (Tex.
Crim. App. 2017).
The state court’s decision was not unreasonable in finding that sufficient evidence
supported Romero’s conviction.

Trial testimony explained that a shank like that

brandished by Romero could be a deadly weapon. Testimony showed that Romero used
a shank to stab other inmates, causing them to suffer injuries requiring hospitalization and
pain medication.

Whether or not Romero’s assault actually caused life-threatening

injuries, the trial testimony unequivocally showed that his weapon was, at a minimum,
capable of causing such. Moreover, the nature, extent, and severity of the wounds caused
by Romero’s shank would allow a reasonable jury to find that he possessed a deadly
weapon without needing medical testimony to establish that fact. Considering the trial
testimony and the requirements of state law, and doing so in a light most favorable to the
jury’s verdict, Romero has not shown that the state court’s adjudication of his claim was
contrary to, or an unreasonable application of, federal law. See 28 U.S.C. § 2254(d)(1).
CERTIFICATE OF APPEALABILITY
Under AEDPA, a prisoner cannot seek appellate review from a lower court’s
judgment without receiving a Certificate of Appealability (“COA”).
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See 28 U.S.C.

§ 2253(c). Romero has not yet requested that this Court grant him a COA, though this
Court can consider the issue sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898
(5th Cir. 2000). “The COA statute establishes procedural rules and requires a threshold
inquiry into whether the circuit court may entertain an appeal.” Slack v. McDaniel, 529
U.S. 473, 482 (2000). A court may only issue a COA when “the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Fifth Circuit holds that the severity of an inmate’s punishment, even a
sentence of death, “does not, in and of itself, require the issuance of a COA.” Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir. 2000). The Fifth Circuit, however, anticipates that
a court will resolve any questions about a COA in the death-row inmate’s favor. See
Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir. 2000). The Supreme Court has
explained the standard for evaluating the propriety of granting a COA on claims rejected
on their merits as follows: “Where a district court has rejected the constitutional claims
on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack, 529 U.S. at 484; Miller-El, 537 U.S. at
336-38. On the other hand, a district court that has denied habeas relief on procedural
grounds should issue a COA “when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling. Slack, 529 U.S. at 484; Miller-El, 537

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U.S. at 336-38. Unless the prisoner meets the COA standard, “no appeal would be
warranted.” Slack, 529 U.S. at 484.
Having considered the merits of Romero’s petition, and in light of AEDPA’s
standards and controlling precedent, this Court determines that a COA should not issue
on any claim.
CONCLUSION
For the reasons described above, the Court GRANTS Respondent’s motion for
summary judgment, DENIES Romero’s petition, and DISMISSES this case WITH
PREJUDICE. All other requests for relief are DENIED. The Court will not certify any
issue for appellate review.
SIGNED at Galveston, Texas, this 26th day of April, 2018.
___________________________________
George C. Hanks Jr.
United States District Judge

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