Facunda v. Davis
Filing
5
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, dismissing 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
August 04, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VALENTINE FACUNDO,
BOP #33945-380,
David J. Bradley, Clerk
§
§
§
§
Petitioner,
§
§
§
§
§
§
§
§
§
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent . 1
CIVIL ACTION NO. H-16-2294
MEMORANDUM OPINION AND ORDER
Valentine Facundo (BOP #33945-380) has filed a Motion Under 28
U.S.C.
in
§
2255 to Vacate, Set Aside, or Correct Sentence by a Person
Federal
Custody
("Motion")
(Docket
Entry No.
1)
Because
Facundo challenges a state court judgment of conviction, his Motion
is construed as a petition for a writ of habeas corpus governed by
28 U.S.C.
§
2254 ("Petition").
After considering the pleadings and
the applicable law as required by Rule 4 of the Rules Governing
Section 2254 Cases in the U.S.
District Courts,
the court will
dismiss this case for the reasons explained below.
1
Petitioner is in federal custody and names the United States
as the respondent. Because he challenges a state court conviction,
the court substitutes Director Lorie Davis of the Texas Department
of Criminal Justice - Correctional Institutions Division as the
proper respondent pursuant to Rule 2(a) of the Rules Governing
Section 2254 Cases in the U.S. District Courts.
I.
Background
Facundo was charged with aggravated sexual assault of a child
in Harris County cause number 698837. 2
found Facundo guilty as charged. 3
On January 10, 1996, a jury
He received a 30-year prison
sentence in that case. 4
On direct appeal Facundo challenged the sufficiency of the
evidence.
The intermediate court of appeals rejected his argument
after summarizing the evidence presented at trial:
On July 18, 1995, Officer David Williams ("Officer
Williams") arrested Valentine Facundo ( "Facundo") for the
aggravated sexual assault of a seven year old girl ("the
complainant") . According to the complainant, her cousin,
Carla ("Carla") , sent her to Carla's apartment, which she
shared with Facundo, to retrieve Carla's food stamp card.
While retrieving this card, Facundo grabbed her and threw
her on the bed.
Facundo removed both the complainant's
and his own clothes.
According to the complainant,
Facundo repeatedly inserted his penis into her vagina,
but he withdrew before ejaculation. During the rape, the
complainant testified she screamed for her mother. When
Facundo let her go, the complainant ran upstairs and told
Carla and her mother what had occurred. Carla called the
police. After Officer Williams arrived, the frightened
complainant told him that Facundo attacked her. Officer
Williams went downstairs and Carla identified Facundo.
After complaining of vaginal pain, the complainant was
admitted to a hospital for a week. A doctor's examination revealed that the complainant's vagina was red and
swollen and the vaginal opening was larger than normal
for a child of her age.
However, the examination
revealed no semen, bleeding, or tearing.
At trial, a
doctor testified that even without the presence of semen,
blood,
or tears,
the complainant's injuries were
2
Motion, Docket Entry No.
4
Id.
1,
p. 1.
-2-
consistent with the sort of trauma to the tissue such as
those caused by the penetration of a penis.
Facundo v. State, 971 S.W.2d 133, 134
Dist.] 1998).
(Tex. App. - Houston [14th
The Texas Court of Criminal Appeals denied Facundo's
petition for discretionary review from that decision.
Facundo v.
State, No. PD-1163-98 (Tex. Crim. App. Sept. 16, 1998).
Facundo filed two post-conviction motions
for DNA testing
pursuant to Chapter 64 of the Texas Code of Criminal Procedure,
which were denied by the trial court.
Both denials were affirmed
on
No.
appeal.
WL 502979
See
(Tex.
Facundo
App. -
v.
State,
Houston
14-03-00592-CR,
[14th Dist.]
March 16,
2004
2004,
no
pet.); Facundo v. State, No. 14-10-01106-CR, 2011 WL 6046496 (Tex.
Houston [14th Dist.] Dec. 6, 2011, pet. ref'd).
App.
Facundo executed the pending federal habeas corpus petition on
July 14, 2016, 5 challenging his conviction in cause number 698837. 6
Facundo contends that he is entitled to relief for the following
reasons:
(1) the prosecution failed to disclose evidence favorable
to the defendant;
5
(2)
his conviction was the result of evidence
Motion, Docket Entry No. 1, p. 13.
6
The Supreme Court has clarified that, for jurisdiction to
attach, a habeas corpus petitioner must be "in custody" at the time
his petition is filed.
Carafas v. LaVallee, 88 S. Ct. 1556, 1560
(1968).
Court records show that Facundo is currently in federal
custody serving a 46-month sentence as the result of his conviction
for illegal reentry into the United States following deportation.
See United States v. Manolio Valentin Facundo-Martinez, Crim.
No. 14-0475-01 (W.D. Del Rio Div. Jan. 5, 2015).
Presumably, his
federal sentence is a collateral consequence of his underlying
conviction in Harris County cause number 698837. Accordingly, the
court does not address this issue further.
-3-
obtained during an unlawful arrest;
assistance of counsel;
and
(3)
he was denied effective
he is actually innocent. 7
(4)
These
claims concern inconsistent affidavits that were submitted during
Facundo's initial post-conviction DNA proceeding. 8
Although these
affidavits appear to have been submitted in 2003, Facundo claims
that they are "newly discovered evidence" of his actual innocence. 9
Court records confirm that Facundo filed a previous federal
habeas corpus petition to challenge his conviction and subsequent
post-conviction
district
court
prejudice.
DNA proceedings
denied
relief
in
cause
number
and dismissed
that
698837.
The
petition with
See Facundo v. Stephens, Civil No. H-12-1417 (S.D. Tex.
July 8, 2013).
Facundo did not pursue an appeal.
II.
Discussion
This case is governed by the Anti-Terrorism and Effective
Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C.
§
2244(b), which imposes restrictions on the filing of "second or
successive" applications for habeas relief.
Before a second or
successive application permitted by this section may be filed in
the district court the applicant must move in the appropriate court
of appeals for an order authorizing the district court to consider
7
Motion, Docket Entry No. 1, pp. 4-8.
8
Appellant's Brief, Docket Entry No. 1, pp. 23, 27 (describing
the conflicting affidavits) .
9
"Memorandum in Support of Defendant's Motion Under 28 U.S.C.
§ 2255 Brought Under Newly Discovered Evidence Actual Innocence
Under the Tuley Standard in Violation of the Defendant 14th
Amendment Right to U.S.C.," Docket Entry No. 3, p. 2.
-4-
the application.
See 28 U.S.C.
2244 (b) (3) (A).
§
To the extent
that the pending Petition qualifies as a successive writ, the court
has no jurisdiction to consider it absent prior authorization from
the Fifth Circuit.
The
Fifth
Circuit
has
recognized
that
"a
prisoner's
application is not second or successive simply because it follows
an earlier federal petition."
Cir. 1998).
it (1)
In re Cain, 137 F.3d 234, 235 (5th
A subsequent application is second or successive when
"raises a claim challenging the petitioner's conviction or
sentence
that
was
petition;" or
(2)
or
could
have
been
raised
in
an
earlier
"otherwise constitutes an abuse of the writ."
Id.; see also United States v. Orozco-Ramirez, 211 F.3d 862,
867
(5th Cir. 2000).
The claims presented in Facundo's pending Motion
could
raised
have
been
proceeding.
in
his
earlier
federal
habeas
corpus
The pending Motion therefore meets the second-or-
successive criteria.
The issue of whether a habeas corpus petition is successive
may be raised by the district court sua sponte.
Johnson, 104 F.3d 694,
697
(5th Cir. 1997).
See Rodriguez v.
Because the pending
Petition is successive, Facundo is required to seek authorization
from
the
Fifth
Circuit
application.
See 28 U.S.C.
of [28 U.S.C.
§
before
§
this
court
2244 (b) (3) (A).
can
consider
his
"Indeed, the purpose
2244(b)] was to eliminate the need for the district
courts to repeatedly consider challenges to the same conviction
unless an appellate panel first found that those challenges had
-5-
some merit."
2000)
United States v. Key,
(citing In re Cain,
205 F.3d 773,
137 F.3d 234,
235
774
(5th Cir.
(5th Cir.
Facundo has not presented the requisite authorization.
1998)).
Absent such
authorization this court lacks jurisdiction over the Petition.
at 775.
Id.
Accordingly, to the extent that Facundo seeks relief from
his conviction in Harris County cause number 698837 his Motion will
be dismissed as an unauthorized successive writ. 10
III.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a
final
order that
is adverse
to
the petitioner.
A
certificate of appealability will not issue unless the petitioner
makes
"a substantial showing of the denial of a constitutional
right,"
28 U.S.C.
demonstrate
"that
§
2253(c) (2),
reasonable
of
the
which requires a petitioner to
jurists
would
constitutional
find
claims
the
court's
assessment
wrong."
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
district
debatable
or
(quoting
Where denial of
relief is based on procedural grounds, the petitioner must show not
only that "jurists of reason would find it debatable whether the
10
Alternatively, the conviction at issue became final in 1998,
and the evidence on which the proposed claims are based was
presented in state court in 2003, at the latest.
The statute of
limitations on Facundo's claims expired over a decade ago. See 28
U.S.C. § 2244(d) (1).
Notwithstanding Facundo's claim of actual
innocence, which is both stale and unsubstantiated, he presents no
basis for statutory or equitable tolling.
For this additional
reason, the Petition is subject to dismissal.
-6-
petition states a valid claim of the denial of a constitutional
right," but also that they "would find it debatable whether the
district court was correct in its procedural ruling."
Slack, 120
S. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
See
Alexander v.
For
Johnson,
211 F.3d 895,
898
(5th Cir.
2000).
reasons set forth above, the court concludes that jurists of reason
would not debate whether any procedural ruling in this case was
correct or whether the petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
IV.
Conclusion and Order
Accordingly, the court ORDERS as follows:
1.
Petitioner's motion to proceed in forma pauperis
(Docket Entry No. 2) is GRANTED.
2.
The federal habeas corpus petition filed by
Valentine Facundo (Docket Entry No. 1) is DISMISSED
without prejudice as an unauthorized successive
petition.
3.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 3rd day of August, 2016.
UNITED STATES DISTRICT JUDGE
-7-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?