De La Garza v. Stephens
Filing
17
MEMORANDUM AND OPINION granting 14 MOTION for Summary Judgment. De La Garza's petition for a writ of habeas corpus is DENIED. This case is DISMISSED. All remaining pending motions are DENIED as MOOT. (Signed by Judge Lee H Rosenthal) Parties notified. (wbostic, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
EDWARD DE LA GARZA,
(TDCJ-CID #1821775)
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Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.
CIVIL ACTION NO. H-14-0635
MEMORANDUM AND OPINION
The petitioner, Edward De La Garza, sues under 28 U.S.C. § 2254, challenging a 2012 state
conviction. The respondent filed a motion for summary judgment with a copy of the state court
record, and De La Garza filed a response.
(Docket Entry Nos. 14, 15).
Based on careful
consideration ofthe pleadings, the motion and response, the record, and the applicable law, the court
grants the respondent's motion and, by separate order, enters final judgment. The reasons are set out
below.
I.
Background
De La Garza pleaded guilty to the offense of burglary of a habitation with intent to commit
aggravated assault with a deadly weapon. (Cause Number 1316671). On November 5, 2012, the
state trial court sentenced De La Garza to a 20-year prison sentence. On August 25,2013, De La
Garza filed an application for state habeas corpus relief, which the Texas Court of Criminal Appeals
denied without written order on February 19,2014. Exparte De La Garza, ApplicationNo. 80,56701 at cover.
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On March 13, 2014, this court received De La Garza's federal petition. De La Garza
contends that his conviction is void for the following reasons:
(1)
He did not enter his guilty plea voluntarily because his trial counsel, Michael P.
Fosher, disregarded his request for a jury trial.
(2)
Trial counsel rendered ineffective assistance by failing to conduct a pretrial
investigation and by failing to interview witnesses who may have testified favorably for the
defense.
(3)
The state court habeas denied him a hearing.
(Docket Entry No.1, Petition for Writ of Habeas Corpus, pp. 6-7).
The allegations are reviewed under the applicable legal standards.
II.
The Applicable Legal Standards
De La Garza's petition for a writ of habeas corpus is reviewed under the federal habeas
statutes amended by the Antiterrorism and Effective Death Penalty Act of1996 (AEDPA), 28 U.S.C.
§ 2254. The AEDP A provides:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the merits
in State court proceedings unless the adjudication of the claim (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.
(e)( 1) In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
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State court, a determination of a factual issue made by a State court
shall be presumed to be correct. The applicant shall have the burden
of rebutting the presumption of correctness by clear and convincing
evidence.
Subsections 2254(d)(1) and (2) of AEDP A set out the standards of review for questions of
fact, questions of law, and mixed questions of fact and law that result in an "adjudication on the
merits." An adjudication on the merits refers to whether a court's disposition of the case is
substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274,281 (5th Cir. 2000).
A state-court determination of questions of law and of mixed questions of law and fact is
reviewed under 28 U. S. C. § 2254( d)( 1) and receives deference unless it "was contrary to, or involved
an unreasonable application of clearly established Federal law, as determined by the Supreme Court
of the United States." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state-court decision is
"contrary to" Supreme Court precedent if: (1) the state court's conclusion is "opposite to that reached
by [the Supreme Court] on a question of law" or (2) the "state court confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent" and arrives at an opposite
result. Williams v. Taylor, 120 S. Ct. 1495 (2000). A state court unreasonably applies Supreme
Court precedent if: (1) it unreasonably applies the correct legal rule to the facts of a particular case;
or (2) it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context
where it should not apply or unreasonably refuses to extend that principle to a new context where
it should apply." Id. at 1495. In deciding whether a state court's application was unreasonable, a
federal court considers whether the application was "objectively unreasonable." Id. at 1495; Penry
v. Johnson, 215 F.3d 504,508 (5th Cir. 2000).
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The state court's factual findings are reviewed under 28 U.S.C. § 2254(d)(2). The findings
are "presumed to be correct ... and [receive] deference ... unless it 'was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding. '" Hill,
210 F.3d at 485 (quoting 28 U.S.C. § 2254(d)(2)). In addition, a state court's factual findings are
presumed correct under 28 U.S.C. § 2254(e)(I) unless they are rebutted by "clear and convincing
evidence." Garcia v. Quarterman, 454 F.3d 441,444 (5th Cir. 2006) (citing Hughes v. Dretke, 412
F.3d 582,589 (5th Cir. 2005) and 28 U.S.C. § 2254(e)(l)). This deference extends not only to the
state court's express factual findings, but also to the implicit findings. Garcia, 454 F.3d at 444-45
(citing Summers v. Dretke, 431 F.3d 861,876 (5th Cir. 2005); Young v. Dretke, 356 F.3d 616,629
(5th Cir. 2004)). Section 2254(e)(I)'s mandate that a state court's fact findings are "presumed to
be correct" overrides the ordinary rule that, in deciding a summary judgment motion, the court takes
disputed facts in the light most favorable to the nonmoving party. Unless the petitioner can "rebut[
] the presumption of correctness by clear and convincing evidence," the state court's findings of fact
must be accepted as correct. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002).
De La Garza is a pro se petitioner. Pro se habeas petitions are construed liberally and are
not held to the same stringent and rigorous standards as pleadings filed by lawyers. See Martin v.
Maxey, 98 F.3d 844, 847 n.4 (5th Cir. 1996); Guidrozv. Lynaugh, 852 F.2d 832,834 (5thCir. 1988);
Woodall v. Foti, 648 F.2d 268,271 (5th Cir. Unit A June 1981). De La Garza's state and federal
habeas petitions are broadly interpreted. Bledsue v. Johnson, 188 F.3d 250,255 (5th Cir. 1999).
III.
The Claim that the Guilty Plea Was Involuntary
De La Garza claims that his guilty plea was involuntary because counsel, F osher, coerced him
to enter the plea. A federal court upholds a guilty plea challenged in a habeas corpus proceeding if
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the plea was knowing, voluntary and intelligent. Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th
Cir.), cert. denied, 474 U.S. 838 (1985). A guilty plea is invalid if the defendant does not understand
the nature of the constitutional protection that he is waiving or if he has such an incomplete
understanding of the charges against him that his plea cannot stand as an admission of guilt.
Henderson v. Morgan, 426 U.S. 637, 645 n.l3 (1976). The critical issue in determining whether a
plea was voluntary and intelligent is "whether the defendant understood the nature and substance of
the charges against him, and not necessarily whether he understood their technical legal effect."
Taylor v. Whitley, 933 F.2d 325,329 (5th Cir. 1991), cert. denied, 503 U.S. 988 (1992). lfthe record
shows that the defendant "understood the charge and its consequences," a federal habeas court will
uphold the guilty plea as voluntary even if the trial judge failed to explain the offense. Davis v.
Butler, 825 F.2d 892,893 (5th Cir. 1987).
The record shows that on November 5, 2012, De La Garza appeared in open court and
entered a plea of guilty. (Docket Entry No. 11-1, State Court Record, pp. 63-68). The state court
admonished De La Garza, in writing, as to the nature of the offense charged-burglary of a
habitation with intent to commit aggravated assault with a deadly weapon-and the punishment
range. (Id. at 65). De La Garza signed a document containing thirteen statements and waivers, and
put his initials beside each. The document stated, in part:
(1)
I am mentally competent and I understand the nature of the
charge against me;
(2)
I understand the admonishments of the trial court set out
herein;
(3)
I hereby WAIVE the right to have the trial court orally
admonish me;
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(4)
I WAIVE the right to have a court reporter record my plea;
(5)
I represent to the trial court that the State will make the plea
bargain agreement or recommendation, if any, set forth in the Waiver
of Constitutional Rights, Agreement to Stipulate, and Judicial
Confession herein and I understand the consequences, as set out
above, should the trial court accept or refuse to accept the plea
bargain or plea without an agreed recommendation;
(6)
I understand that before sentence may be imposed, the Court
must order preparation of a Presentence Investigation Report by the
probation officerpursuantto Article 42.12, Sec. 9, V.A.C.C.P. Ihave
thoroughly discussed this matter with my attorney and believe that for
the Court to compel me to participate in the preparation of such a
report would abridge the protection provided me by the Constitution
of the United States and the Constitution and laws of the State of
Texas and could result in further prejudice to me. Therefore, I hereby
in writing respectfully decline to participate in the preparation of a
Presentence Investigation Report and request that said report not be
made prior to the imposition of sentence herein. I further knowingly,
voluntarily, and intelligently waive any right which I may have to the
preparation of said report either under Article 42.12, Sec. 9,
V.A.C.C.P. or under Article 42.09, Sec. 8, V.A.C.C.P;
(7)
I understand that ifthe Court grants me Deferred Adjudication
under Article 42.12 Sec. 3d(a) V.A.C.C.P. on violation of any
condition I may be arrested and detained as provided by law. I further
understand that I am then entitled to a hearing limited to a
determination by the Court of whether to proceed with an
adjudication of guilt on the original charge. If the Court determines
that I violated a condition of probation, no appeal may be taken from
the Court's determination and the Court may assess my punishment
within the full range of punishment for this offense. After
adjudication of guilt, all proceedings including the assessment of
punishment and my right to appeal continue as if adjudication of guilt
had not been deferred;
(8)
I further understand that if I was under 21 years of age at the
time I committed the offense of driving while intoxicated, or an
offense involving the manufacture, possession, transportation or use
of an alcoholic beverage, or the manufacture, delivery, possession,
transportation or use of a controlled substance, dangerous drug or
simulated controlled substance that my Texas driver's license or my
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privilege to obtain a Texas driver's license and a driver's license in
many other states will be automatically suspended for one (1) year
from the date sentence is imposed or suspended in open court and that
my driver's license suspension shall remain in effect until I attend and
successfully complete an alcohol education program in this state.
And, if I am over 21 years of age and I receive a final conviction or
a suspended sentence for driving while intoxicated, or for violating
the Controlled Substances Act, or a drug offense, my Texas driver's
license will be suspended, and will remain suspended until I
successfully attend and complete a drug or alcohol education program
as prescribed by law, report the successful completion to the Court in
which I was convicted, and the Texas Department of Public Safety
receives notice of the completion. I also understand that I may be
eligible to receive a restricted license from the court during this
period of suspension.
(9)
fully understand the consequences of my plea herein, and after
having fully consulted with my attorney, request that the trial court
accept said plea;
(10) I have freely, knowingly, and voluntarily executed this
statement in open court with the consent of and approval of my
attorney;
(11)
I read and write/understand the English language; the
foregoing Admonishments, Statements, an Waivers as well as the
attached written Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession, were read by me or were read to
me and explained to me in that language by my attorney and/or an
interpreter, namely Mike Fosher, before I signed them, and I
consulted fully with my attorney before entering this plea;
(12) Waiver ofIndictment: I am the Defendant in the above felony
information. My attorney has explained to me my right to be
prosecuted by grand jury indictment, which I hereby waive, and I
consent to the filing of the above felony information.
(13)
I have been convicted of a felony offense.
Joined by my counsel, I state that I understand the foregoing
admonishments and I am aware of the consequences of my plea. I am
mentally competent to stand trial and my plea is freely and voluntarily
made. If my counsel was appointed, I waive and give up any time
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provided me by law to prepare for trial. I am totally satisfied with the
representation provided by my counsel and I received effective and
competent representation. Under Art. 1.14 V.A.C.C.P. I give up all
rights given to me by law, whether of form, substance or procedure.
Joined by my counsel, I waive and give up my right to a jury in this
case and my right to require the appearance, confrontation and crossexamination of the witnesses. I consent to oral and written
stipulations of evidence in this case. I have read the indictment and
I committed each and every element alleged. I waive and give up my
right of confidentiality to the pre-sentence report filed in the case and
agree that the report may be publicly filed. Under oath, I swear that
the foregoing and all the testimony I give in this case is true.
(Docket Entry No. 11-1, State Court Record, pp. 67-68).
By initialing each statement, De La Garza acknowledged that he was pleading guilty and that
the State would recommend a 20-year prison term; that he fully understood the consequences ofthe
plea and had consulted with counsel; and that he freely and voluntarily entered his plea with his
counsel's approval. De La Garza's signature indicates that he understood the nature of the charge
against him and the consequences of his plea.
De La Garza also signed a document entitled "WAIVER OF CONSTITUTIONAL RIGHTS,
AGREEMENTTOSTIPULATE,ANDJUDICIALCONFESSION." By his signature, DeLaGarza
stated that he waived his constitutional rights to a jury trial; to the appearance, confrontation, and
cross-examination of witnesses; and to his right against self-incrimination. (Docket Entry No. 11-1,
State Court Record, p. 63). De La Garza attested to the truth ofthe allegations in the indictment and
confessed that he had committed the alleged acts on July 28,2008. De La Garza, his attorney, and
the State executed this document. De La Garza's lawyer also signed the plea and a statement that
he had fully discussed the plea and its consequences with De La Garza and believed that the plea was
knowing and voluntary. (Id. at 64). By signing each ofthe documents and pleading guilty, De La
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Garza made declarations entitled to significant weight. "Solemn declarations in open court carry a
strong presumption of verity," forming a "formidable barrier in any subsequent collateral
proceedings." United States v. Cervantes, 132 F.3d 1106,1110 (5th Cir. 1998)(quotingBlackledge
v. Allison, 431 U.S. 63, 73-74 (1977». These documents are entitled to a presumption of regularity
under 28 U.S.C. § 2254(e), and this court gives them evidentiary weight. Carter v. Collins, 918 F.2d
1198, 1202 n.4 (5th Cir. 1990).
The state trial court determined that De La Garza had entered his plea knowingly and
voluntarily after discussing the case with his attorney. (Docket Entry No. 11-1, State Court Record,
pp. 57, 64). The Texas Court of Criminal Appeals also denied relief. On habeas review, the federal
courts are bound by the state court's credibility choices and presume the fact findings correct if
supported by the record. Loydv. Smith, 899 F.2d 1416, 1425 (5th Cir. 1990). The record supports
the state court's explicit finding that De La Garza's guilty plea was voluntary. The record shows that
De La Garza voluntarily entered a guilty plea after consulting with counsel. The state court's
decision to deny relief was not contrary to clearly established federal law as determined by the
Supreme Court of the United States. De La Garza's habeas claim based on the involuntariness of
his guilty plea lacks merit. 28 U.S.C. § 2254(d)(I).
IV.
The Claim of Ineffective Assistance of Counsel
De La Garza claims that he did not receive effective assistance of counsel because he failed
to conduct an adequate pretrial investigation. The relevant inquiry is whether his counsel's
performance interfered with De La Garza's ability to understand the nature of the charges against
him and the consequences of his plea. Once a guilty plea has been entered, claims of ineffective
assistance of counsel are waived except insofar as the alleged ineffectiveness relates to the
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voluntariness of the guilty plea. Smith v. Estelle, 711 F.2d 677,682 (5th Cir.), cert. denied sub nom.
Smith v. McKaskle, 466 U.S. 906 (1984).
To prevail on a claim of ineffective assistance of counsel, a petitioner must show that: (1)
his counsel's actions fell below an objective standard of reasonableness; and (2) the ineffective
assistance of counsel prejudiced him.
Strickland v. Washington, 466 U.S. 668 (1984); Hill v.
Lockhart, 474 U.S. 52 (1985); Moawad v. Anderson, 143 F.3d 942,946 (5th Cir. 1998). A court
may resolve a claim by finding either that counsel rendered reasonably effective assistance or that
there was no prejudice. There is no need to decide both issues ifthe defendant makes an insufficient
showing on one. Strickland, 466 U.S. at 697.
In assessing the reasonableness of counsel's performance, the court must indulge a strong
presumption that the performance falls within the "wide range ofreasonable professional assistance"
and that "the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at
689; Gray v. Lynn, 6 F.3d 265,268 (5th Cir. 1993). If counsel's action is based on well-informed
strategic decisions, it is "well within the range of practical choices not to be second-guessed."
Rector v. Johnson, 120 F.3d 551,564 (1997) (quoting Wilkerson v. Collins, 950 F.2d 1054, 1065
(5th Cir. 1992), cert. denied, 509 U.S. 921 (1993)).
In the context of a guilty plea, prejudice is present ifthere is a reasonable probability that
absent counsel's errors, the defendant would not have pleaded guilty and instead insisted on a trial.
United States v. Payne, 99 F.3d 1273,1282 (5th Cir. 1996); Mangum v. Hargett, 67 F.3d 80 (5th Cir.
1995), cert. denied, 516 U.S. 1133 (1996). A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694.
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De La Garza alleges that his attorney relied on statements given to the police and statements
given to an investigator hired by the codefendants. De La Garza asserts that a pretrial investigation
would have disclosed a witness with favorable testimony.
In his affidavit to the state habeas court, counsel testified as follows:
I was the attorney for EDWARD DELAGARZA. He was originally
charged with Capital Murder in Cause No. 1176445 in the 179th
District Court. His brothers, Richard Deleon and Gabriel Deleon were
also charged as co-defendants. The date of the offense was July 28,
2008 and I was appointed to represent Mr. Delagarza on August 5,
2008. Mr. Delagarza was indicted on October 24, 2008 for the offense
of Capital Murder in that he had unlawfully, while in [t]he course of
committing and attempting to commit the Burglary of a Habitation
owned by Jessica Gutierrez, intentionally cause of death of William
Douglas by stabbing William Douglas with a deadly weapon, namely
a knife.
During my investigation and representation of Mr. Delagarza I
collaborated with Gerald Bourque, attorney for co-defendant Richard
Deleon wherein we exchanged information, offense reports,
investigators notes and reports, etc.
3. PLEASE STATE WHETHER WITNESS, JESSICA
GUTIERREZ, WAS EVER SPOKEN TO. WHY OR WHY NOT?
IF INVESTIGATION WAS LIMITED, PLEASE EXPLAIN.
Mr. Delagarza now alleges that Jessica Gutierrez, the complainant in
the new indictment would come to Court and testify that he, Edward
Delagarza never assaulted her or burglarized her house and he claims
that I never talked to Jessica Gutierrez and that I told him that I
would. During my representation of Mr. Del [a] garza, he never
mentioned the name of Jessica Gutierrez. Jessica Gutierrez was the
complaining witness in the new indictment for the burglary of a
habitation with the intent to commit aggravated assault. Ms. Gutierrez
was interviewed by co-counsel' s investigator which I was privy to
and had copies of his report. There was no need for us to talk to her
again before trial. Also according to her statement to police she would
testify that she was the owner and had possession of the apartment on
the day ofthe alleged offense and that she would testify that she and
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her sister, Victoria, lived there and Christine Martinez and Kasandra
Rodriguez were also there and when Mr. Delagarza and his brother,
Richard Deleon, broke into the apartment, kicked the door in and
Edward began to yell at Richard to fuck her up, fuck her up indicating
Christine. Jessica Gutierrez then runs down to Dartantin's apartment
to get help. Dartantin, William and Jason ran upstairs.
Jessica at that point stayed downstairs and didn't see the resulting
altercations. It is not plausible to contend that Jessica Gutierrez
would now deny what she told the police and our investigator was not
true and would testifY for the defense. Mr. Delagarza's fails to
recognize the fact that to be convicted he did not have to have the
intent to assault Jessica but could have had the intent to assault
anyone else in the apartment. There would be testimony by a twelve
year old that Edward specifically assaulted her with threats and that
appellant had made an attempt to stab one of the children in the house
by the name of Michelle Rodriguez. To summarize this point since
co-counsel's investigator had already obtained a statement from
Jessica Rodriguez there was no further need to obtain another
statement from her since we knew what her testimony would be and
that it was not going to be helpful to our defense. Also Mr. Delagarza
never during my representation ever mentioned her or that she would
be helpful to us.
In conclusion Mr. Delagarza decided that it was in his best interest to
accept the State's plea offer of20 years in TDCJ instead oftaking a
risk of going to trial where he could receive upon conviction
punishment from five to ninety-nine years or life in prison. He was
also aware that under the circumstances of this case if convicted the
result from a jury would be in all likelihood on the higher end ofthe
range of punishment. Mr. Delagarza made his decision of his own
free will without any coercion, with[]out any intimidation, and
without any threats. This was his decision only and based on
everything involved in this case he made a reasonable choice.
The state habeas court found:
5.
The applicant's counsel reviewed the statement that witness
Jessica Gutierrez gave the police, and the statement that Gutierrez
gave to the codefendant's investigator.
6.
The applicant has not presented any evidence of what further
investigation would have shown.
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(Docket Entry No. 11-1, State Court Record, p. 57).
The state habeas court concluded:
1. The applicant fails to show that counsel's conduct fell below an
objective standard of reasonableness and that, but for trial counsel's
alleged deficient conduct, there is a reasonable probability that the
result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 686 (1984); Hernandez v. State, 726
S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting the Strickland
standard in Texas); and Narvaiz v. State, 840 S.W.2d 415,434 (Tex.
Crim. App. 1992) (defining the two-part Strickland standard).
(Docket Entry No. 11-1, State Court Record, p. 58).
This court presumes the state court's factual findings correct. De La Garza has failed to rebut
the findings. 28 U.S.C. § 2254(d)(2). The record shows that counsel reviewed the evidence against
De La Garza and advised him about the legal options and the advantages and disadvantages of each.
Based on his review ofthe evidence and his knowledge ofthe law, counsel told De La Garza that
he should enter a plea of guilty. Counsel's actions were based on well-informed strategic decisions,
and they are well within the range of practical choices not to be second-guessed. The state court's
decision was a reasonable application of the law to the facts and was not contrary to clearly
established federal law as determined by the Supreme Court of the United States. Relief cannot be
granted under 28 U.S.C. § 2254(d)(1).
The record also fails to show a reasonable probability that but for counsel's alleged
unprofessional errors, De La Garza would not have entered a guilty plea. He received a 20-year
prison term when he pleaded guilty. A trial exposed him to a prison sentence ranging from 5 to 99
years. There is no basis for an inference that he would have gone to trial had another potential
witness been interviewed.
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On habeas review, the state trial court found that De La Garza had voluntarily entered his
guilty plea. The Texas Court of Criminal Appeals denied relief. The decisions were not contrary
to clearly established federal law as determined by the Supreme Court of the United States. 28
U.S.C. § 2254(d)(1). De La Garza's claim for habeas relief based on the ineffective assistance of
counsel lacks merit.
V.
The Claims Based on Errors in the State Habeas Proceedings
De La Garza alleges that the state habeas court denied him a fair hearing. The infirmities in
state habeas proceedings on habeas review that De La Garza alleges are not grounds for habeas relief
in federal court. Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999); Hallmarkv. Johnson, 118
F.3d 1073, 1080 (5th Cir.), cert. denied, 118 S. Ct. 576 (1997); see Nichols v. Scott, 69 F.3d 1255,
1275 (5th Cir. 1995)("An attack on a state habeas proceeding does not entitle the petitioner to habeas
relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not
the detention itself."); Morris v. Cain, 186 F.3d 581,585 n.6 (5th Cir. 1999). De La Garza has not
identified an error affecting the deference due the state court's findings in the habeas proceedings.
The claim for habeas relief on this basis is without merit.
VI.
Conclusion
The respondent's motion for summary judgment, (Docket Entry No. 14), is granted. De La
Garza's petition for a writ of habeas corpus is denied. This case is dismissed. Any remaining
pending motions are denied as moot.
Under the AEDPA, a petitioner must obtain a certificate of appealability from a district
court's denial of habeas relief. 28 U.S.C. § 2253(c)(2). "This is ajurisdictional prerequisite because
the COA statute mandates that' [u]nless a circuit justice or judge issues a certificate of appealability,
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an appeal may not be taken to the court of appeals: ... ", Miller-EI v. Cockrell, 537 U.S. 322
(2003)(citing 28 U.S.C. § 2253(c)(1)). A certificate of appealability will be granted only if the
petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). To make such a showing, a petitioner "must demonstrate that the issues are debatable
among jurists of reason; that a court could resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S.
880,893 n.4 (1983) (citation and internal quotation marks omitted). "This threshold inquiry does
not require full consideratiOli of the factual or legal bases adduced in support of the claims."
Miller-EI, 537 U.S. at 336. Rather, '''[t]hepetitionermust demonstrate that reasonable jurists would
find the district court's assessment of the constitutional claims debatable or wrong. ", Id. at 338
(citing Slack v. McDaniel, 529 U.S. 473, 484).
A district court may deny a certificate of appealability on its own, without requiring further
briefing or argument. Alexander v. Johnson, 211 F.3d 895,898 (5th Cir. 2000). The court finds that
De La Garza has not made a substantial showing ofthe denial of a constitutional right." A certificate
of appealability is not issued.
SIGNED on May 19,2015, at Houston, Texas.
Lee H. Rosenthal
United States District Judge
P:\CASES\prisoner-habeas\2014\14-0635,d02.wpd
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