Aldaba v. Thaler
Filing
25
MEMORANDUM OPINION AND ORDER granting 21 Supplemental MOTION for Summary Judgment with Brief in Support; denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MERVYN LOPEZ ALDABA,
TDCJ-CID NO. 1506941,
Petitioner,
RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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CIVIL ACTION NO. H-11
MEMORANDUM OPINION AND ORDER
Mervyn Lopez Aldaba, an inmate of the Texas Department of
Criminal Justice - Correctional Institutions Division ("TDCJ-CID"),
filed a Petition Under 28 U.S.C.
§
2254 for a Writ of Habeas Corpus
by a Person in State Custody (the "Petition") (Docket Entry No. 1)
challenging a criminal conviction in state court.
The Respondent
has filed a Supplemental Motion for Summary Judgment with Brief in
Support (the "Supplemental Motion for Summary Judgment") (Docket
Entry
No.
21) .
After
reviewing
the
record,
the
court has
determined that the motion should be granted.
I.
On May
Procedural Historv
1, 2008, a jury in the 232nd District Court of
Harris County convicted Mervyn Lopez Aldaba of capital murder and
sentenced him to life in prison.'
The Fourteenth Court of Appeals
of Texas affirmed Aldabars conviction on April 16, 2009.'
Texas Court of Criminal Appeals refused Aldaba's
Discretionary Review
("PDR") on August 19, 2009.3
The
Petition for
The Supreme
Court of the United States denied Aldaba's petition for a Writ of
Certiorari on March 1, 20102
On September 24, 2010, Aldaba filed an application for a writ
of habeas corpus pursuant to Article 11.07 of the Texas Code of
Criminal P r ~ c e d u r e . ~
The Texas Court of Criminal Appeals denied
the application without a hearing and without a written order on
the findings of the trial court.6 Aldaba filed the instant habeas
petition on June 8, 2011.7
In his Original Petition Aldaba alleged eighteen claims for
relief.'
On August 26, 2011, Respondent filed his first Motion for
'~udgmentof Conviction, Docket Entry No. 8-4, pp. 151-52.
'court of Appeals Opinion, Docket Entry No. 8-17, p. 130.
3~ee
Aldaba v. State, PDR No. 0931-09, Docket Entry No. 8-17,
p. 10.
4 ~ l d a b a Texas, 130 S. Ct. 1704 (2010).
v.
'~ldaba v. State, Application No. WR-75,327-01, Docket Entry
No. 8-7, p. 8.
60rder, Docket Entry No. 8-17, p. 2.
'~etition, Docket Entry No. 1, p. 1.
Summary J ~ d g m e n t . ~
In a Memorandum Opinion and Order entered on
February 16, 2012, the court partially granted and partially denied
that
motion,
leaving
Aldaba
with
four
remaining
claims.l o
Respondent has now filed its second Motion for Summary Judgment on
Aldaba's remaining claimsl1 to which Aldaba has filed a Motion in
Opposition.l2
11.
Facts Established at Trial
The following excerpt from the Fourteenth Court of Appealsr
opinion is relevant in evaluating the Petition and the Motion for
Summary ~ u d g m e n tl 3
:
Appellant
[Aldaba] and complainants, Angelito
Montemayor and Eloisa Cruz, arranged to meet on a street
in front of a home for the purpose of selling narcotics
to Cloefe Ennis, who lived there. As they waited for
Ennis to arrive at the home, appellant shot and killed
Montemayor and Cruz. A neighborhood resident saw the
shooting through a window in his home and saw the shooter
leave the scene in a white truck. Police arrived on the
scene in response to calls regarding a shooting in
progress.
Another neighborhood resident heard noises outside
his home and heard a vehicle leave the scene in front of
g~espondent's Motion for Summary Judgment with Brief in
support ("First Motion for Summary Judgment"), Docket Entry No. 11,
p. 1.
1°~emorandumOpinion and Order, Docket Entry No. 15, pp. 3-6.
ll~upplementalMotion
No. 21, p. 1.
for
Summary
Judgment,
Docket
Entry
12~etitioner's
Motion in Opposition to Summary Judgment with
Brief in Support ("Petitioner's Motion in Opposition"), Docket
Entry No. 24, p. 1.
13Court of Appeals Opinion, Docket Entry No. 8-17, pp. 131-33.
his home. This man recognized the sound of the vehiclers
muffler as belonging to appellant's white truck. This
man gave appellant's cell phone number to investigating
officers .
Investigating officers who arrived on the scene
discovered the bodies of Montemayor and Cruz, as well as
a number of spent shell casings and cigarette butts, one
of which was later linked by DNA to appellant.
Investigators did not find any weapons at the scene.
On the same night, appellant gave a gun to a friend
and asked the friend to hold on to it. Investigators
later recovered the weapon as part of an unrelated
narcotics investigation and determined the weapon had
been used in the shootings of Montemayor and Cruz.
On cross-examination, the State questioned appellant
about his interview with homicide detectives on the day
of his arrest, prompting the following exchange:
[PROSECUTOR]
:
. . . But you recall a conversation with
two homicide detectives?
[APPELLANT]: Yes, sir.
[PROSECUTOR]: During that interview they specifically
asked you if you heard a shooting about a Phillippino
[sic] couple didn't you?
[APPELLANT]:
Yes, sir.
[PROSECUTOR]: You lied to them about that?
[APPELLANT]:
sir.
I exercised my right to remain silent yes,
:
That's actually not true. You lied and
[PROSECUTOR]
said no didn't you?
[APPELLANT]: I told him no yes [sic] 'cause I didn't
have a lawyer.
[PROSECUTOR]: In fact they got more specific with you.
They asked if you heard through any conversations in the
Phillippino [sic] community about the murders, whether
you heard any news reports about the murders. Even asked
you if you were familiar with the location of the murder
and each time you said no. Isn't that true?
[APPELLANT]: The location sir. Yes, I remember that
question, but the rest of it I don't remember them
talking about that sir.
[PROSECUTOR]: All right. But you said you weren't even
familiar with the location of the murder didn't you?
[APPELLANT]: Yes, sir.
I told them that.
[PROSECUTOR]: So again you lied to them. You knew about
that location didn't you?
[APPELLANT]: Yes, sir I lied to them.
[PROSECUTOR]: Now they continued asking you whether or
not you killed anybody and you said no.
[APPELLANT]:
No I didn't.
question sir.
They didn't get to that
[PROSECUTOR] Well, yes they did Mr. Aldaba. Do you not
:
recall them asking you that question?
[APPELLANT]:
No sir.
[PROSECUTOR]: How about the fact that at some point you
denied killing the Phillippino [sic] couple when they
asked you. You recall that?
[APPELLANT]:
No, sir.
Do
[PROSECUTOR]:
anything about it?
[APPELLANT]:
you
recall
denying
even
hearing
No, sir.
[PROSECUTOR]: Okay. And you deny that you told these
detectives you know absolutely nothing about a murder?
[APPELLANT]:
No, sir.
[PROSECUTOR]: Would you agree with me this would have
been an opportunity for you to share with the detectives
the version of events that you're sharing with this jury
today?
[APPELLANT]:
would sir.
Yes, sir.
If I had my lawyer present I
[PROSECUTOR]: And that's fine but lawyer or no lawyer
you had an opportunity to tell these detectives what had
happened, the version of events you're telling this jury
today you chose rather to lie about it didn't you?
[DEFENSE ATTORNEY]:
[TRIAL COURT]:
[APPELLANT]:
Judge that was asked and answered.
Overruled.
Sir?
[PROSECUTOR]: You chose to lie about it didn't you?
[APPELLANT]: Yes, sir.
111.
Grounds for Relief
Aldaba now asserts the following grounds for relief:14
A.
Aldaba's trial counsel was ineffective for failure to:
3.
object to prosecutor's comments concerning
Aldaba's invoking his right to remain silent;
4.
request a hearing regarding the voluntariness
of Aldaba's statement to the police;
5.
request an instruction limiting the use of
Aldabaf s statement to impeachment and not as
general evidence;
6.
request a jury instruction pursuant to Tex.
Code Crim. Proc. Ann. art. 38.22.
IV.
Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of
1996 codified at 28 U. S.C.
§
2254, findings of fact made by a state
court are "presumed to be correct."
§
2254 (e)(1).
This statute
14~emorandum
Opinion and Order, Docket Entry No. 15, pp. 5-6.
-6-
overrides the ordinary summary judgment rule.
Smith v. Cockrell,
311 F.3d 661, 668 (5th Cir. 2002) (overruled on other grounds by
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)).
Therefore, a
court will accept findings made by the state court as correct
unless the habeas petitioner can rebut the presumption of correctness by clear and convincing evidence.
28 U. S.C.
§
2254 (e)(1)
("The applicant shall have the burden of rebutting the presumption
of correctness by clear and convincing evidence.").
The provisions of
§
2254 (d) set forth a "highly deferential
standard for evaluating state-court rulings." Lindh v. Murphv, 117
S. Ct. 2059, 2066 n.7 (1997).
A federal court cannot grant a writ
of habeas corpus with respect to any claim that was adjudicated on
the merits in state court unless the state court proceeding:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that 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). A decision is contrary to clearly established
federal law if the state court arrives at a conclusion opposite to
that reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court on a
set of materially indistinguishable facts. Williams v. Tavlor, 120
S. Ct. 1495, 1519-20 (2000). A decision is an unreasonable appli-
cation of clearly established federal law "if the state court
identifies
the
correct
governing
legal principle
.
. .
but
unreasonably applies that principle to the facts of the prisoner's
case."
I . at 1523.
d
V.
Ineffective Assistance of Counsel
A federal habeas corpus petitioner's claim that he was denied
effective assistance of counsel is measured by the standards set
out in Strickland v. Washinston, 104 S. Ct. 2052 (1984).
Under
Strickland Aldaba must establish that his counsel's performance was
deficient and that actual prejudice resulted from his counsel's
deficient performance.
I . at 2064.
d
The failure to demonstrate
either deficient performance or actual prejudice is fatal to an
effective assistance claim.
Green v. Johnson, 160 F.3d 1029, 1035
(5th Cir. 1998) .
A.
Actual Prejudice
Even a professionally unreasonable error does not warrant
setting aside the judgment of a criminal proceeding if the error
had no effect on the judgment.
Strickland, 104 S. Ct. at 2066.
Instead, the petitioner must show actual prejudice.
I . Actual
d
prejudice is shown if there is a reasonable probability that, but
for counselfs unprofessional error, the result of the trial would
have been different.
I . at 2068.
d
The petitioner cannot show
actual prejudice if the evidence of guilt is so overwhelming that
the error could not have contributed to the jury's guilty verdict.
See id.
- - at
2059
("the
aggravating
-8-
circumstances
were
so
overwhelming that no substantial prejudice resulted"); Pondexter v.
Quarterman, 537 F.3d 511, 525 (5th Cir. 2008) ("the overwhelming
evidence of [the petitioner's]
guilt precluded his establishing
prejudice") .
Aldaba's four remaining claims are based on the use at trial
of Aldaba' s false statements to the police.
Therefore, to show
prejudice there must be a reasonable probability that the jury
would have acquitted Aldaba without the use of those statements.
If the jury would have found Aldaba guilty even without trial
testimony about Aldaba's
false statements to the police, Aldaba
cannot show prejudice and his habeas claims will fail.
The state
courts found that there was "overwhelming evidence of [Aldaba' s]
guilt."I5
Aldaba thus bears the heavy burden of showing not only
that "his counsel's deficiency prejudiced him," but also that "no
reasonable jurist could conclude otherwise."
--- F.3d
Williams v. Thaler,
--- (5th Cir. 2012).
In the face of the overwhelming evidence against him, Aldaba
has failed to meet this burden.
Aldaba testified that he shot the
two victims .I6 Although he stated that he did so in self-defense,''
Court of Appeals Opinion, Docket Entry No. 8-17, p. 142; see
also Statefs Proposed Findings of Fact, Conclusions of Law and
Order ("Findings and Conclusions"), Docket Entry No. 8-17, p. 104
("The Court agrees with the appellate court's opinion that 'the
trial [court] outcome was not likely to have turned on the
admission of applicantfs statementsf" ) .
15
16~rial
Transcript, Docket Entry No. 8-8, pp. 86, 92.
17petition, Docket Entry No. 1, p. 8.
-9-
overwhelming evidence in the record shows otherwise. For instance,
Aldaba admitted to having a twenty-second cell phone conversation
i.'
with a friend while one victim was allegedly trying to kill h m '
Aldaba further testified that he shot the second victim four times
in the back while she sat in her car."
Aldaba acknowledged that
he immediately fled from the police and tried to hide the gun.20
The police did not find any guns or evidence at the scene to
corroborate Aldaba' s story.
Aldaba acknowledged that his victims
never fired a single shot at him.22 In light of these facts, as
well as numerous others presented at trial, Aldaba has not shown
that the juryfs verdict in any way depended on Aldaba's
statements to the police.
false
As such, Aldaba has not carried his
burden of demonstrating prejudice, and all of Aldaba's claims must
fail.
For the sake of thoroughness the court will nevertheless
examine the alleged deficiency of Aldaba's counsel's performance.
See
- Strickland, 104 S. Ct. at 2071 (analyzing both prejudice and
deficiency before concluding the petitioner's
case was a "double
failure") .
rial Transcript, Docket Entry No. 8-8, p. 101.
" at
a
110.
' I .at 111-12.
'd
at 105.
2 - at 110.
2~d.
B.
Deficiency
An attorney's performance is deficient if it falls below an
objective standard of reasonableness.
2064.
Strickland, 104 S. Ct. at
In determining whether counsel's performance was deficient
judicial scrutiny must
be
highly
deferential,
with
a
strong
presumption in favor of finding that the trial counsel rendered
adequate assistance and that the challenged conduct was the product
of reasoned trial strategy.
(5th Cir. 1996) .
West v. Johnson, 92 F.3d 1385, 1400
"A conscious and informed decision on trial
tactics and strategy cannot be the basis for constitutionally
ineffective assistance of counsel unless it is so ill chosen that
it permeates the entire trial with obvious unfairness."
Skinner v.
Quarterman, 528 F.3d 336, 341 (5th Cir. 2008) suotins Cotton v.
Cockrell, 343 E.3d 746, 752-53 (5th Cir. 2003).
Because Aldaba has not refuted them with clear and convincing
evidence, this court relies on the following relevant factual
findings adopted by the state habeas court:23
[Findings of Fact]
4. The Court finds the facts asserted in the
affidavit of Laine Lindsey [Aldabafs trial counsel] are
true, and that the affidavit of Lindsey is credible.
6. The Court finds based on the court reporter's
record that the applicant's statement to the police was
not admitted into evidence, but it was used by the State
23~indings
and Conclusions, Docket Entry No. 8-17, pp. 101-02,
104.
to impeach the applicant when the applicant testified
during the guilt stage of his trial.
7. The Court finds based on the court reporter's
record that the applicant did not request a lawyer when
he gave his statement to the police.
10. The Court finds based on the credible affidavit
of Lindsey that Lindsey did not pursue the motions to
suppress because the applicant never suggested to Lindsey
that the applicant's statement was involuntary.
12. The Court finds based on the credible affidavit
of Lindsey that Lindsey did not request a limiting
instruction with regard to the applicant's statement to
the police only be used for impeachment purposes because
Lindsey did not want to call the jury's attention to the
applicant's false statements to the police again.
[Conclusions of Law]
4. The
applicant was
not
entitled
to an
instruction under sections 6 and 7 of article 38.22 of
the Texas Code of Criminal Procedure.
Aldaba, 2009
WL 1057685 at *3-4.
The state habeas court concluded that Aldaba's
effective
assistance
counsel
required
attorney provided
Strickland.2 4
Because, as discussed below, the record supports the findings of
the state habeas court, Aldaba cannot show that his attorney was
deficient.
1.
Claim One: Aldaba's attorney f a i l e d t o o b j e c t t o testimony
revealing t h a t Aldaba had exercised h i s r i g h t t o counsel and
h i s r i g h t t o remain s i l e n t .
Aldaba testified during his cross-examination that he made
false statements to the police.
Aldaba argues that he invoked his
Sixth Amendment right to counsel and his right to remain silent
prior to making those false
statement^.^^ Aldaba thus argues that
the police obtained his false statements in violation of the Sixth
Amendment, precluding their use at
Aldaba asserts that his
attorney was constitutionally ineffective because he failed to
object to the introduction of these false statements at
An attorney's failure to make a futile objection cannot form
the basis of an ineffective assistance claim.
138 F.3d 1007, 1012 (5th Cir. 1998).
court's
Means v. Johnson,
The Texas state habeas
Findings of Fact Nos. 6-7 make Aldaba's
Sixth Amendment
objection futile for a number of reasons.
Aldaba failed to invoke his Sixth Amendment rights.
To
successfully invoke his Sixth Amendment rights, the accused must
"unequivocally" and "unambiguously" assert them.
Berqhuis v.
Thompkins, 130 S. Ct. 2250, 2259-60 (2010), reh's denied, 131
S. Ct. 33 (2010). When the accused "makes no statement" implicating the Sixth Amendment, the accused has not invoked his Sixth
Amendment rights.
I . Here, the record does not reflect that
d
Aldaba ever asked the police for an attorney or said he wished to
remain silent.
p.
Therefore, because
he
"ma [de] no
statement"
25~etitioner's Motion in Opposition, Docket Entry No. 24,
17.
concerning his rights, Aldaba did not avail himself of the Sixth
Amendment.28
Whether Aldaba invoked the Sixth Amendment is "an
objective inquiry."
Davis v. United States, 114 S. Ct. 2350, 2355
(1994). Aldaba's failure to objectively invoke the Sixth Amendment
made any objection based on the Sixth Amendment futile.
Moreover,
Aldaba's
by
using Aldaba' s false statements
to
impeach
credibility as a witness, the prosecutor did not violate
the Sixth Amendment.
Harris v. New York, 91 S. Ct. 643, 645-46
(1971) (permitting prosecutors
to use
statements
gathered
in
violation of the Sixth Amendment for the purpose of impeaching the
defendant's credibility as a witness); United States v. Cherrv, 759
F.2d 1196, 1209 (5th Cir. 1985) (holding that Miranda "does not bar
introduction of incriminating statements for purposes of impeachment on cross-examination").
The prosecutor mentioned Aldaba's
statements during Aldaba's cross-examination, not during its casein-chief. By pointing to Aldaba' s "prior inconsistent utterances"
the prosecutor "did no more than utilize the traditional truthtesting devices of the adversary process."
645-46.
Harris, 91 S. Ct. at
Doing so did not violate the Sixth Amendment.
I.
d
Therefore, any Sixth Amendment objection would have failed.
28~espondent
argues that Aldaba waived his rights by knowingly
lying to the police. The court finds it unnecessary to address
this argument given that Aldaba's objection would have failed for
other reasons.
2.
Claim Two: Aldabars attorney failed to request a hearing
regarding the voluntariness of Aldaba's statement to the
police.
Aldaba argues that he made his statements to the police
involuntarily because he ingested methamphetamine prior to making
them.29 Aldaba therefore asserts that his false statements to the
police were gathered in violation of his due process rights.30
Aldaba argues that his attorney should have requested a hearing to
investigate the voluntariness of Aldabars false statements to the
police.31
The state habeas court rejected this claim because
nothing in the record indicated that Aldaba made his statements to
the police i n ~ o l u n t a r i l y . ~ ~
The due process clause prohibits "m criminal trial use
against a defendant of [an] involuntary statement."
Mincev v.
Arizona, 98 S. Ct. 2408, 2416 (1978). "Coercive police activity is
a necessary predicate to the finding that a [statement was] not
voluntary."
I . (internal quotation marks omitted). The mere fact
d
that a person talked to the police while "intoxicated" or "not
cognizant of what he was [saying]" does not render a statement
29~etition,
Docket Entry No. 1, p. 6.
32~onclusion
of Law No. 4, Docket Entry No. 8-17, p. 104,
citinq Court of Appeals Opinion, Docket Entry No. 8-17, p. 135
("Appellant has not pointed to any evidence of police overreaching
or presented evidence suggesting that his statements to detectives
were given under duress of hallucinations, illness, medication, or
')
a private threat . I .
involuntary.
Martinez v. Ouarterman, 270 Fed. Appx. 277, 289-290
(5th Cir. 2008), citing Colorado v. Connellv, 107 S. Ct. 515, 522
(1986).
The record does not reflect evidence of any "coercive police
activity." Although Aldaba states that the police threatened him,
this court defers to the state courtfs rejection of that assertion.
Indeed, Aldaba's trial counsel stated in his affidavit that "Aldaba
never suggested to me
involuntary.
. . .
that his statement to the police was
The absence of police coercion precludes a finding
that Aldaba made his statements to the police involuntarily.
3.
Claim Three:
Aldaba's attorney failed to request a jury
instruction limiting the use of Aldaba's false statements to
impeachment of Aldaba's credibility.
Aldaba argues that his attorney should have requested a jury
instruction permitting the jury to use Aldaba's false statements to
"It
the police solely to evaluate Aldaba's ~ r e d i b i l i t y . ~ ~ is the
duty of the court, when so requested, to instruct the jury as to
the limited purpose for which the impeaching evidence is admitted
and advise the jury as to the extent to which the evidence may be
considered."
1973).
United States v. Hill, 481 F.2d 929, 932 (5th Cir.
Aldaba's
instruction.
attorney chose not to request such a limiting
The state habeas court found that Aldaba's attorney
made an informed tactical decision not to do so.35
33~ffidavit,
Docket Entry No. 8-17, p. 96.
4 d
1 .
35~inding Fact No. 12, Docket Entry No. 8-17, p. 102.
of
Many criminal trials involve facts that a trial attorney might
"not
want
to
draw
any
Livinqston
v.
Johnson,
more
107
attention
F.3d
297,
to
308
than
necessary."
(5th Cir.
1997).
Different attorneys respond to these sorts of problems in different
ways, and an "informed decision on trial tactics" can only rarely
rise to the level of a constitutional violation. Skinner, 528 F.3d
at 341 (finding constitutionally deficient performance only when a
tactical
choice
"permeates
the
entire
trial
with
obvious
unfairness") .
In this case, Aldaba's attorney stated in his affidavit that
"I didn't get a limiting instruction because I didn't want to call
attention to Aldaba's false statements to the police."36 That is,
Aldaba's attorney did not want to "draw any more attention than
necessary" to Aldaba's "unflattering testimony." Skinner, 528 F.3d
at 341; Livinqston, 107 F.3d at 308.
The affidavit shows that
Aldaba' s attorney made an informed tactical decision not to request
a limiting jury instruction.
4.
Claim Four:
Aldaba's attorney failed to request a jury
instruction pursuant to Tex. Code Crin. Proc. Ann. art. 38.22.
Aldaba argues that the trial court should have given the jury
an instruction pursuant to the Texas Code of Criminal Procedure
Article 38.22.
The Fourteenth Court of Appeals considered this
claim on direct appeal.
Applying state law, the Fourteenth Court
36~ffidavit,
Docket Entry No. 8-17, p. 96.
-17-
of Appeals concluded that no part of Article 38.22 applied to
Aldaba' s case.37
The state habeas court agreed.38
Federal habeas proceedings are limited to reviewing questions
of federal law.
Estelle v. McGuire, 112 S. Ct. 475, 480 (1991).
Federal courts are not authorized to determine whether the state
courts have misinterpreted the staters own laws.
Charles v.
Thaler, 629 F.3d 494, 500-01 (5th Cir. 2011). When the Texas Court
of Criminal Appeals has made determinations on questions regarding
its own state law, "those conclusions are state law." Charles, 629
F.3d at 501.
A
claim
that
a
Texas
court
failed
to
properly
apply
Article 38.22 of the Texas Code of Criminal Procedure does not
See Amador v. Ouarterman, 458
raise a question of federal law.
F.3d 397, 412 (5th Cir. 2006) ("The prejudice inquiry in this case
turns on a question of Texas state law:
whether the statement was
in fact admissible under Article 38.22") ; Evans v. McCotter, 790
F.2d 1232, 1238 n.6 (5th Cir. 1986) ("Regardless of whether the
statement was properly admitted as a matter of the Texas [Code of
Criminal Procedure Article 38-22], the alleged error must violate
the federal constitution or federal laws for the writ to be
granted.") (citations omitted).
This claim has no merit.
3 7 ~ o ~ oft Appeals Opinion, Docket Entry No. 8-17, p. 137.
r
38~onclusion Law No. 4, Docket Entry No. 8-17, p. 104.
of
-18-
C e r t i f i c a t e of A p p e a l a b i l i t y
VI.
Although
Appealability
Aldaba
has
not
yet
requested a
("COA"), the court may
deny a COA
Alexander v. Johnson, 211 F.3d 895, 898
curiam).
Certificate
of
sua sponte.
(5th Cir. 2000)
(per
To obtain a COA for claims denied on the merits Aldaba
must make a substantial showing of the denial of a constitutional
right. 28 U.S.C.
§
2253(c)(2); Tennardv. Dretke, 124 S. Ct. 2562,
2569 (2004). To make such a showing Aldaba must demonstrate that
it is debatable among reasonable jurists whether a court could
resolve the issues in a different manner or that the issues
presented are adequate to deserve encouragement to proceed further.
Tennard, 124 S. Ct. at 2569.
For the reasons stated in this
Memorandum Opinion and Order, Aldaba has not made a substantial
showing of a denial of a constitutional right.
Accordingly, a
Certificate of Appealability will not issue in this case.
VII.
For
the
reasons
C o n c l u s i o n and O r d e r
explained
above,
the
court
ORDERS
the
following:
1.
Respondent's
Supplemental Motion
for Summary
Judgment (Docket Entry No. 21) is GRANTED.
2.
The Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus By a Person in State Custody (Docket
Entry No. 1) is DENIED.
3.
A Certificate of Appealability is DENIED.
SIGNED at Houston, Texas,
this t h e L z a 2 0 1 2 .
SIM LAKE
UNITED STATES DISTRICT JUDGE
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