Arzate v. Davis
Filing
20
MEMORANDUM OPINION AND ORDER granting 18 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, 4)
United States District Court
Southern District of Texas
ENTERED
September 08, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FRANCISCO ARZATE, TDCJ #01821766,
Petitioner,
v.
§
§
§
§
§
§
§
§
§
§
§
§
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3782
MEMORANDUM OPINION AND ORDER
Francisco Arzate has filed a Petition for a Writ of Habeas
Corpus By a
Person in State Custody
No. 1), seeking relief under 28 U.S.C.
("Petition")
§
(Docket Entry
2254 from a capital murder
conviction that resulted in a sentence of life imprisonment.
The
respondent has filed a Motion for Summary Judgment with Brief in
Support ("Respondent's Motion")
a
copy of
Arzate has
the
state
court
(Docket Entry No. 18), along with
records
(Docket
Entry Nos.
14-17) .
filed Petitioner's Reply to Respondent's Motion for
Summary Judgment with Brief and Affidavit in Support ("Petitioner's
Reply")
(Docket
pleadings,
Entry No.
19) .
the state court record,
After considering all of
the
and the applicable law,
the
court will grant Respondent's Motion and will dismiss this action
for the reasons explained below.
I.
A
Harris
grand
jury
Background
returned
County cause
an
indictment
number 1317247,
against
Arzate
in
charging him with capital
murder for killing his father-in-law, Guillermo Valdez, by shooting
him with a deadly weapon, a firearm, while committing burglary of
Valdez's habitation. 1
shot
his
The state presented evidence that Arzate
father-in-law
and
his
mother-in-law,
multiple times during the same incident,
2
Maria
Valdez,
which stemmed from a
dispute with his wife, Patricia, from whom Arzate was separated. 3
On November
Harris
12,
County,
indictment. 4
2012,
Texas,
a
jury
found
in
the
Arzate
232nd District
guilty
as
Court
charged
in
of
the
Because the state did not seek the death penalty, the
trial court automatically sentenced Arzate to life without parole
pursuant to
§
12.31(a) (2) of the Texas Penal Code. 5
On direct appeal Arzate challenged the legal sufficiency of
the evidence to support his conviction. 6
1
An intermediate court of
Indictment, Docket Entry No. 14-9, p. 21.
2
vol.
51
Docket Entry No.
15-18,
3
vol.
6
Docket Entry No.
15-19,
Court Reporter's Record,
pp. 129-36, 138-39.
Court Reporter's Record,
pp. 38-46.
4
Verdict, Docket Entry No. 14-10, p. 32.
5
Judgment of Conviction by Jury Entry No. 14-12, p. 23.
6
t
Non-Death Capital, Docket
Brief of Appellant, Docket Entry No. 14-2.
-2-
appeals
rejected
that
argument
after
summarizing
the
evidence
presented at trial as follows:
Arzate was married to Maria and Guillermo Valdez's
daughter, Patricia, for almost ten years, but he and
Patricia had separated two years before the incident.
Patricia and Arzate had five children.
Patricia
testified
that
she
and Arzate
had
an unstable
relationship and often fought and that she moved to her
parents' home upon her separation from Arzate. In August
2011, Arzate was upset because he had recently learned
that Patricia was in a relationship with another man.
Arzate had called Patricia upset about her boyfriend and
threatened that he would take action if Patricia did not
end that relationship.
Patricia testified that on the day of the incident,
August, 19, 2011, she talked to Arzate about paying
school tuition, but they did not fight, and it was a
"normal day."
Arzate left a voicemail on Patricia's
phone around 11:30 p.m. that night saying that "he was
suffering so [Patricia was] going to suffer the same way
that he was suffering."
Patricia was at the hospital
with her oldest son that night, but she called her sister
because the voicemail worried her. A few minutes later,
Maria called Patricia and told her that Arzate had shot
Maria and Guillermo.
Although Patricia was not at her parents' home at the
time of the shooting, several others were.
Maria
testified that she and Guillermo were in their bedroom
watching television with the door closed late at night
when Maria heard a noise. Guillermo opened the bedroom
door, Maria heard Arzate say "he was going to kill us,"
and Arzate began shooting at Maria and Guillermo. Maria
testified that she had heard Arzate's voice on many
occasions and immediately recognized it.
Maria also
testified that she saw the side of the shooter's body and
it looked like Arzate.
On the night of the shooting,
Maria told police that she saw only the shooter's shadow,
and not the shooter's face.
Guillermo and Maria's other daughter, Elizabeth, was also
at the scene.
She had fallen asleep in one of the
bedrooms a little after midnight, but she woke up when
she heard Arzate screaming in Spanish from the living
room several times, "where' s the bastard?"
Elizabeth
-3-
then heard gunshots and Maria screaming, so she ran to
the living room and saw that the front door, which had
been closed and locked, was open and appeared to have
been forced open.
She saw that Guillermo was lying on
his back- shot more than once- and Maria was bleeding.
When Elizabeth saw Maria, Maria was screaming, "why
Francisco, why?" and Elizabeth believed that Maria was
referring to Arzate. Elizabeth did not see the shooter,
but she testified that there was no doubt in her mind
that the voice she heard yelling "where is the bastard?"
was the voice of Arzate.
Elizabeth's thirteen year old son, Heron, was also home
and sleeping on the living room couch when the shooting
took place.
Heron testified that he also heard Arzate
yelling, "where was the bastard at?" Heron did not see
Arzate on the night of the shooting, but recognized his
voice because he had often visited Arzate's house. Heron
also testified that he heard Maria say, "why Francisco,
why?"
By the time police and EMS arrived, Guillermo was dead
from four gunshot wounds. Arzate called Patricia after
the incident, but she did not answer.
The day after the shooting, Arzate called his employer,
Richard Gonzalez, and told him "that he wasn't going to
be coming in because he had an issue, something happened
with his family and he doesn't know if he's ever going to
come back."
Gonzalez testified that during the same
phone call, Arzate also said, "what happened happened."
The police suspected Arzate was the shooter and that he
had fled to Mexico shortly after the shooting. Arzate's
brother and sister testified that Arzate went to Mexico
but added that the trip was a planned vacation to visit
family. Patricia testified that this was Arzate's first
trip to Mexico and that he would not have vacationed
there because he did not have documentation that would
allow him to re-enter the United States.
A few months after the shooting, Arzate sent Patricia a
text message that said, "I'm sorry. Are you guys okay.
Are my kids okay." Patricia testified that Arzate also
called her from Mexico.
In one such call, Arzate, who
had said he was angry that Patricia was not taking his
calls, threatened Patricia by saying that "The same thing
that he did to [her] dad he was going to do it to [her]
-4-
grandma, that he knew where she lived and he was going to
go over there and get her also."
Patricia also testified that Arzate attempted to have her
create an alibi for him. In a letter, Arzate wrote: "do
it for our children and for the love we had between us.
You know it wasn't my fault about your father.
Why do
you want to take your children's father away."
The
letter continued:
"If you feel something in your heart
you tell the lawyer that I was in Mexico."
Arzate also called Gonzalez and threatened that Gonzalez
would suffer the same fate as Guillermo.
When Arzate
left for Mexico, Arzate had left his car and tools with
Gonzalez. Gonzalez testified that Arzate told him that
if Gonzalez did not pay Arzate's brother for the vehicle
and his tools, that he "was going to kill me and come
after my family." Gonzalez testified that Arzate added,
"If you don't believe me you saw what happened to my
in-laws."
Arzate v. State, No. 01-12-01074-CR, 2013 WL 6670854, at *1-2 (Tex.
App. -
Houston
Criminal
[1st Dist.]
Appeals
refused
Dec.
17,
Arzate's
2013).
petition
The Texas Court of
for
discretionary
review. 7
Shortly after Arzate's
appeal
he
received
a
letter
conviction was
from
7
the
affirmed on direct
Harris
County
District
Arzate's initial petition for discretionary review was
stricken as untimely filed.
See Arzate v. State, No. PD-0091-14
2014 WL 1875372 (Tex. Crim. App. May 7, 2014).
Arzate filed a
state habeas corpus application alleging that his appellate
attorney had promised to file a petition for discretionary review,
but failed to do so.
See State Habeas Application, Docket Entry
No. 17-4, p. 10. On October 14, 2015, the Texas Court of Criminal
Appeals granted relief and allowed Arzate to file an out-of-time
petition for discretionary review.
See Action Taken on Ex parte
Arzate, Writ No. 83,117-01, Docket Entry No. 16-11, p. 1. The outof-time petition for discretionary review was refused by the Texas
Court of Criminal Appeals on February 10, 2016.
See Arzate v.
State, PD-1343-15.
-5-
Attorney's Office. 8
That letter,
which is dated May 20,
2014,
advised Arzate that Sergeant Ryan Chandler of the Houston Police
Department
case,
( "HPD")
Homicide Division,
had been fired on April
4,
offense report by documenting a
who investigated Arzate's
2014,
for
(1)
falsifying an
conversation with an Assistant
District Attorney who advised him to refer the case to a grand jury
for
review
Attorney's
while
never
Office;
and
forwarding
the
(2)
untruthful
making
case
to
the
and
District
misleading
statements during an ensuing investigation of that incident by the
( "IAD") . 9
HPD Internal Affairs Division
At a press conference
about the termination, then-HPD Chief Charles A. McClelland, Jr.,
commented that Chandler was fired because he was "lazy" and he was
"a liar." 10
In a state habeas corpus application filed on June 20, 2016,
Arzate argued that he was entitled to relief from his conviction
because Chandler conducted an inadequate investigation.u
Arzate
argued further that he was denied effective assistance of counsel
at his trial and that one of the state's key witnesses "violated
8
May 20, 2014, Letter
No. 16-16, pp. 59-60.
9
to
Francisco
Arzate,
Docket
Entry
Id. at 59.
10
Id. at 60 (summarizing Chief McClelland's statement
providing a link to a video of the press conference) .
11
and
Application for a Writ of Habeas Corpus Seeking Relief from
Final Felony Conviction Under Code of Criminal Procedure, Article
11. 07 ("State Habeas Application") , Case No. 1317247 -c, Docket
Entry No. 16-16, pp. 11-12.
-6-
the witness rule" by discussing the case with another person who
had been in court listening to the testimony. 12
corpus court,
The state habeas
which also presided over Arzate's trial,
entered
findings of fact and concluded that he was not entitled to relief . 13
The
Texas
Court
of
Criminal Appeals
agreed and denied
relief
without a written order on the trial court's findings. 14
Arzate now seeks a federal writ of habeas corpus under 28
U.S.C.
§
2254 to challenge his capital murder conviction. 15
Arzate
raises the following grounds for relief:
1.
The state violated his right to due process by
suppressing evidence that the lead homicide
investigator
(Chandler)
was
fired
for
dishonesty and incompetence.
2.
There was insufficient evidence to support his
conviction.
3.
He was denied effective assistance of counsel
when his trial attorney failed to impeach
Richard Gonzalez.
4.
He was denied due process when the trial court
failed or refused to strike the testimony of a
witness who violated Rule 614 of the Texas
Rules of Evidence. 16
12
Id. at 13, 15.
13
State's Proposed Findings of Fact, Conclusions of Law, and
Order ("Findings and Conclusions"), Docket Entry No. 16-18,
pp. 45-51.
14
Action Taken on Writ No. 83,117-05, Docket Entry No. 16-12,
15
Peti tion, Docket Entry No. 1, p. 2.
16
Id. at 6-7.
p. 1.
-7-
The respondent moves for summary judgment, arguing that Arzate is
not entitled to relief because his claims are either procedurally
barred or without merit under the governing federal habeas corpus
standard of review.
II.
Standard of Review
To the extent that the petitioner's claims were adjudicated on
the merits in state court, his claims are subject to review under
the
Antiterrorism
("AEDPA"),
and
Effective
codified at 28 U.S.C.
Death
§
Penalty
2254(d).
Act
of
1996
Under the AEDPA a
federal habeas corpus court may not grant relief unless the state
court's adjudication "resulted in a decision that was contrary to,
or involved an unreasonable application of,
federal
law,
as
United States[.]"
determined
28
u.s.c.
by
§
presents a question of fact,
the
clearly established
Supreme
2254(d) (1).
Court
of
the
Likewise, if a claim
a petitioner cannot obtain federal
habeas relief unless he shows that the state court's denial of
relief "was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."
u.s.c.
§
28
2254 (d) (2).
"'A state
court's
decision is
deemed contrary to
clearly
established federal law if it reaches a legal conclusion in direct
conflict with a
prior decision of
the
Supreme Court or if
it
reaches a different conclusion than the Supreme Court on materially
indistinguishable facts.'"
Matamoros v. Stephens,
-8-
783 F.3d 212,
215
(5th Cir.
Taylor,
120
2015)
S.
(citations omitted);
Ct.
1495,
1519-20
see also Williams v.
(2002).
To
constitute
an
"unreasonable application of" clearly established federal law, a
state court's holding "must be objectively unreasonable, not merely
wrong; even clear error will not suffice."
Woods v. Donald, 135
s. Ct. 1372, 1376 (2015)
Woodall,
1697, 1702 (2014)).
(quoting White v.
134 S.
Ct.
"To satisfy this high bar, a habeas petitioner
is required 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.'"
Id. (quoting Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011)).
The
AEDPA
evaluating
"imposes
state-court
a
'highly
rulings,'
deferential
[which]
standard
'demands
state-court decisions be given the benefit of the doubt.'"
v. Lett, 130 S. Ct. 1855, 1862 (2010)
for
that
Renico
(citations omitted).
This
standard is intentionally "difficult to meet" because it was meant
to bar relitigation of claims already rejected in state proceedings
and to preserve federal habeas review as "a 'guard against extreme
malfunctions
in
the
state
criminal
justice
systems,'
substitute for ordinary error correction through appeal."
131 S. Ct. at 786
2796, n.S
(1979)
(quoting Jackson v. Virginia,
not
a
Richter,
99 S. Ct. 2781,
(Stevens, J., concurring)); see also White, 134
s. Ct. at 1702.
-9-
A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
Findings of fact are
"presumed to be correct" unless the petitioner rebuts those findings
28
with "clear and convincing evidence."
u.s.c.
§
2254 (e) (1).
This presumption of correctness extends not only to express factual
findings,
but also to the state court's implicit findings.
Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir. 2006)
Summers v.
Dretke,
431 F.3d 861,
876
(5th Cir.
Dretke, 356 F.3d 616, 629 (5th Cir. 2004)).
2005);
See
(citing
Young v.
A federal habeas corpus
court "may not characterize these state-court factual determinations
as unreasonable 'merely because [it] would have reached a different
conclusion in the first instance.'"
2269,
2277
(2010)).
(2015)
Brumfield v. Cain, 135 S. Ct.
(quoting Wood v.
"Instead,
§
2254 (d) (2)
Allen,
130
requires that
S.
A.
841,
849
[a federal court]
accord the state trial court substantial deference."
III.
Ct.
Id.
Discussion
Suppression of Impeachment Evidence
In
his
first
ground
for
relief
prosecution violated his
right
Maryland,
(1963),
83 S.
Ct.
1194
to
Arzate
due
process
claims
under
that
the
Brady v.
by withholding or suppressing
evidence that the lead homicide investigator on his case,
former
Sergeant Ryan Chandler, was the subject of an IAD investigation by
HPD. 17
17
Arzate contends that this information was material for the
Petition, Docket Entry No. 1, p. 6.
-10-
purpose of impeaching Chandler, who was eventually terminated by
HPD for misconduct and incompetence. 18
The respondent argues that
this claim is barred by the doctrine of procedural default because
Arzate never presented a Brady claim for review at the state court
level. 19
The respondent argues further,
in the alternative, that
Arzate's Brady claim is without merit. 20
1.
Arzate's Brady Claim is Procedurally Barred
On state habeas corpus review Arzate claimed that Chandler
violated
his
right
investigation by
to
(a)
due
process
during
the
course
obtaining his identification as a
of
his
suspect
through "impermissibly suggestive" meansi (b) improperly influencing a witness (Richard Gonzalez) to discredit Arzate's attempt to
establish an alibi, i.e., that Arzate was in Mexico at the time his
father-in-law was killedi
(c)
suspects i
to obtain phone records,
and
(d)
failing
failing to investigate any other
written or audio/video statements from witnesses,
identification procedure. 21
voice
Chandler
effectively
suppressed
by
calls,
or conduct a
Although Arzate
evidence
911
argued that
conducting
an
"unreliable" investigation, 22 the record confirms that Arzate did
lBid.
19
Respondent's Motion, Docket Entry No. 18, p. 18.
2oid.
21
State Habeas Application, Docket Entry No. 16-16, pp. 11-12.
22
Memorandum in Support of § 11.07 Application for Writ of
Habeas Corpus, Docket Entry No. 16-16, p. 41.
-11-
not claim at any time that the prosecution withheld evidence of the
HPD internal affairs
investigation that eventually resulted in
Chandler's termination or any other evidence that would have been
useful
for
impeachment
in violation
Arzate's Brady claim is unexhausted.
of
Brady.
As
See 28 U.S.C.
(requiring a petitioner to exhaust all
a
result,
2254(b) (1)
§
"remedies available"
in
state court before seeking federal habeas review) .
Arzate could have,
but did not,
state habeas corpus review.
present his Brady claim on
Because a successive state habeas
corpus application would be barred by the Texas abuse-of-the-writ
statute, see TEx. CODE CRIM. PROC. art. 11. 07,
§
4 (a) , this default
represents an adequate state procedural ground that bars federal
review of Arzate's Brady claim unless an exception applies.
Finley v.
Fearance v.
Johnson,
Scott,
243
F. 3d 215,
56 F. 3d 633,
220
642
Neville v. Dretke, 423 F.3d 474, 480
(5th Cir.
(5th Cir.
2001)
1995));
(5th Cir. 2005)
See
(citing
see also
(concluding
that unexhausted claims, which could no longer be raised in state
court
due
to
Texas's
prohibition
on
successive
writs,
were
procedurally defaulted)
If a petitioner has committed a procedural default,
habeas
corpus
review is available only if he
federal
can demonstrate:
(1) "cause for the default and actual prejudice as a result of the
alleged violation of federal law," or (2) that "failure to consider
the claims will result in a fundamental miscarriage of justice."
-12-
Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991).
Arzate has not
offered any explanation for his failure to raise his Brady claim in
state court and he has not demonstrated cause for his default.
Arzate likewise fails to establish prejudice or that his default
will result in a fundamental miscarriage of justice because he has
not
provided
the
court
with
evidence
"colorable showing of factual innocence."
that
would
support
a
Kuhlmann v. Wilson, 106
S. Ct. 2616, 2627 (1986); see also Schlup v. Delo, 115 S. Ct. 851,
861
(1995)
(describing actual innocence as a
"'gateway through
which a habeas petitioner must pass to have his otherwise barred
constitutional
omitted).
claim
considered
on
the
(citation
merits'")
The court therefore concludes that Arzate's Brady claim
is barred by the doctrine of procedural default.
Alternatively,
the claim is without merit for the reasons explained briefly below.
2.
Arzate's Brady Claim is Without Merit
In Brady the Supreme Court held that the government violates
due process when it fails to disclose evidence favorable to the
accused where such evidence is "material either to guilt or to
punishment,
irrespective of the good faith or bad faith of the
prosecution."
83
s. Ct. at 1196-97.
The government's duty to
disclose extends to both impeachment and exculpatory evidence.
United States v. Bagley, 105 S. Ct. 3375, 3380
establish
a
Brady
violation
a
defendant
(1985).
must
See
Thus, to
prove
that
(1) evidence was withheld or suppressed by the prosecutor, either
-13-
willfully or inadvertently;
defendant,
either because it was exculpatory or because it has
impeachment value;
prejudice ensued.
(1999) .
(2) the evidence was favorable to the
and
(3)
the evidence was material such that
See Strickler v. Greene, 119 S. Ct. 1936, 1948
Evidence is material under Brady "only if there is a
reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different."
Bagley, 105 S. Ct. at 3383.
As
noted
above,
Arzate
alleges
that
prosecutors
withheld
impeachment evidence showing that former Sergeant Chandler was the
subject of an IAD investigation for misconduct that led to his
eventual termination in 2014.
The offense that Arzate was charged
with occurred in the early morning hours of August 20, 2011,
23
and
his trial took place the following year during November of 2012. 24
Arzate does not allege facts or present any evidence showing that
Chandler was under investigation during the time he was assigned to
investigate Arzate's case or that there was anything to suppress
before
his
trial
took
place
in
2012.
As
a
result,
Arzate' s
allegations of wrongful suppression are "purely speculative" and
cannot support a Brady claim.
629-30
(5th Cir. 1999)
See Hughes v. Johnson, 191 F.3d 607,
(citing United States v. Pretel,
939 F.2d
233,240 (SthCir. 1991)).
23
Indictment, Docket Entry No. 14-9, p. 21.
24
Harris County Criminal District Docket Sheet, Docket Entry
No. 14-12, pp. 35-38.
-14-
Moreover,
the record reflects that Chandler's testimony was
brief and limited to facts about the investigation, 25 which was
subject to scrutiny on cross-examination by defense counsel. 26
The
record
the
further
shows
investigation that
testimony
from
mother- in-law,
that
Chandler's
led to Arzate's
additional
fact
Maria Valdez,
testimony
arrest
witnesses,
and
was
about
corroborated by
including
Arzate's
two other family members
who
identified Arzate as the man who broke into the family mobile horne
and shot Guillermo Valdez to death. 27
Impeachment evidence is not
material where the testimony of the witness who might have been
impeached
is
strongly
corroborated
supporting a guilty verdict.
F.2d 1257, 1262
by
additional
evidence
See United States v. Weintraub, 871
(5th Cir. 1989)
(citing United States v. Risken,
788 F.2d 1361, 1375 (8th Cir. 1986)); see also Rocha v. Thaler, 619
F.3d 387, 396-97 (5th Cir. 2010).
Arzate
has
not
shown that
Chandler engaged
in misconduct
during the investigation of his case or that Arzate was convicted
as the result of any wrongdoing that rendered his trial unfair.
Arzate has not otherwise shown that any impeachment evidence was
suppressed by prosecutors or that the result of his trial would
25
vol.
51
Docket Entry No.
15-18,
26
vol.
61
Docket Entry No.
15-19,
27
vol.
5,
Docket Entry No.
15-18,
Court Reporter's Record,
pp. 216-34.
Court Reporter's Record,
pp. 77-118, 123-31.
Court Reporter's Record,
pp. 34-43, 129-51, 196-203.
-15-
have been any different if that evidence had been available to the
defense.
Therefore, Arzate has not established that there was a
violation of Brady in his case.
Because Arzate's Brady claim has
no merit, he is not entitled to relief on the claim.
B.
Legal Sufficiency of the Evidence
Arzate
contends
that
his
conviction violates
due
process
because it is not supported by legally sufficient evidence. 28
The
respondent argues that Arzate's challenge to the sufficiency of the
evidence,
which was
raised and
rejected on direct
appeal,
is
without merit.
On
habeas
corpus
review
of
a
state
court
conviction,
a
challenge to the legal sufficiency of the evidence is governed by
Jackson v.
Virginia,
99 S.
Ct.
2781
(1979),
federal constitutional due process standard.
S. Ct. 1068, 1073
(1970)
which reflects the
See In re Winship, 90
("[T]he Due Process Clause protects the
accused against conviction except upon proof beyond a reasonable
doubt of every fact necessary to constitute the crime with which he
is charged.").
This standard requires only that a reviewing court
determine "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found
the
doubt."
28
essential elements of
the
crime beyond a
reasonable
Jackson, 99 S. Ct. at 2789 (emphasis in original).
Petition, Docket Entry No. 1, p. 6.
-16-
The Supreme Court has emphasized "that Jackson claims face a
high bar in federal habeas proceedings because they are subject to
two layers of judicial deference."
2060,
2062
questions
(2012)
only
Coleman v. Johnson, 132 S. Ct.
(per curiam).
whether
the
A federal habeas corpus court
state
court's
assessment
already-strict Jackson standard was unreasonable.
§
2254 (d) (1) .
dose
of
of
the
See 28 U.S.C.
Together, Jackson and the AEDPA require a "double
deference
that
can
rarely
be
surmounted."
Boyer v.
Bellegue, 659 F.3d 957, 964 (9th Cir. 2011).
In
conducting
its
review
under
this
doubly
deferential
standard, the court looks to the last reasoned state judgment that
considered and rejected the petitioner's federal claim.
v. Nunnemaker,
111 S. Ct.
2590,
2594
(1991).
See Ylst
That judgment was
issued by the intermediate court of appeals, which set forth the
elements of the offense and concluded that there was more than
enough evidence to support Arzate's capital murder conviction for
killing Guillermo Valdez during the course of a burglary:
To prove that Arzate is guilty of capital murder, the
State had to prove beyond a reasonable doubt that Arzate,
in the course of a burglary or attempted burglary,
knowingly or intentionally caused Guillermo's death or
intended to cause Guillermo serious bodily injury and
committed an act clearly dangerous to human life that
caused Guillermo's death.
See TEx. PENAL CoDE ANN.
§§ 19.02 (b) (1); 19.03 (a) (2)
We conclude the evidence supports the jury's guilty
verdict. First, three witnesses who had known Arzate for
years identified Arzate as the shooter based on his
voice. Maria testified that she heard Arzate say "he was
going to kill us" and then the shooter began shooting at
-17-
her and Guillermo.
Elizabeth testified that it was
Arzate who screamed "where's the bastard" right before
she heard gunshots.
Heron also testified that it was
Arzate who yelled those words. Voice identification is
an acceptable means of identification and has been held
sufficient to support a conviction. See Locke v. State,
453 S.W.2d 484, 485 (Tex. Crim. App. 1970) ("Voice is a
competent means of identification if the witness had any
previous acquaintance with the person identified"); Davis
v. State, 180 S.W.3d 277, 285-86 (Tex. App. -Texarkana
2005, no pet.) (holding voice identification sufficient
to support conviction) .
Second, Arzate's conduct after the murder indicates
consciousness of guilt.
There is evidence that Arzate
was in Mexico after the shooting, despite the fact that
he had not previously traveled to Mexico because his
immigration status made it impossible for him to return.
Gonzalez testified that Arzate told him the day after the
murder "something happened with his family and he doesn't
know if he's ever going to come back."
Finally,
there is evidence that Arzate implicitly
admitted shooting Guillermo, explicitly asked Patricia to
create an alibi for him, and threatened both Patricia and
Gonzalez that their relatives would meet the same fate as
Guillermo if his demands were not met.
Patricia
testified that Arzate sent her a letter asking Patricia
to lie about his whereabouts on the night of the
shooting.
Patricia also testified that a few months
after Guillermo's murder, Arzate sent her a text message
stating that he was "sorry" and that Arzate also called
her from Mexico and threatened to do the "same thing" to
her grandma that he did to Guillermo. Gonzalez testified
that Arzate called him several times after the murder and
during one call threatened to kill Gonzalez and go after
his family if Gonzalez did not pay Arzate's brother.
Gonzalez testified that Arzate substantiated the threat
by saying, "if you don't believe me you saw what happened
to my in-laws. What do you think is going to happen to
you[?]" And, in a voicemail Arzate left Patricia on the
night of the shooting, he warned that he was going to
make her suffer like she was making him suffer.
Arzate v. State, No. 01-12-01074-CR, 2013 WL 6670854, *4 (Tex. App.
-Houston [1st Dist.] Dec. 17, 2003, pet. ref'd).
-18-
In reaching this
conclusion,
the court of appeals expressly followed the standard
announced in Jackson.
See id., 2013 WL 6670854, *3-5.
Arzate does not take issue with any particular finding or
conclusion by the state court of appeals, whose opinion is entitled
to "great weight."
Cir.
1985)
Parker v.
(citing Jackson,
Callins v. Collins,
Procunier,
99 S.
998 F.2d 269,
its
deference.").
Instead,
666
(5th
Ct.
at 2790,
n.15);
see also
276
(5th Cir.
1993)
("Where a
state appellate court has conducted a
evidence,
763 F.2d 665,
thoughtful review of the
determination
is
Arzate maintains
entitled
that
the
to
great
evidence
is
insufficient because three of the state's witnesses (Ryan Chandler,
Richard Gonzalez, and Brenda Awawdeh) lacked credibility. 29
argues
in particular that his
Arzate
conviction was based on circum-
stantial evidence "manufactured" by Chandler, whose investigation
was inadequate, and that Gonzalez and Awawdeh were investigated for
fraud.
30
The respondent notes that Arzate offers no proof that any
evidence was manufactured or tainted by Chandler. 31
acknowledges that Awawdeh,
a rebuttal witness,
The respondent
was charged with
fraud in 2016, but notes that there is no evidence that she had any
involvement in a scheme to commit fraud when she testified as a
rebuttal witness at Arzate's trial in 2012. 32
29
The respondent notes
Petition, Docket Entry No. 1, p. 6.
3oid.
31
Respondent's Motion, Docket Entry No. 18, p. 24.
32Id.
-19-
further
that Gonzalez
testified about
fraud
charges
that
were
lodged against him and that issues regarding his credibility were
for the jury to resolve. 33
The
record confirms
that
all
three witnesses
examined by Arzate's defense counsel and that
opportunity to assess
their credibility. 34
the
were
cross-
jury had an
To the extent
that
Arzate asks this court to re-weigh the evidence and decide if the
jury's decision was correct, this type of inquiry exceeds the scope
of review permitted under the Jackson standard.
Delo, 513 U.S. 298, 330 (1995)
the credibility of witnesses
review.").
("[U]nder Jackson, the assessment of
is generally beyond the
scope of
A federal habeas corpus court may not substitute its
view of the evidence for that of the fact-finder.
Scott,
See Schlup v.
55 F.3d 1059,
1062
(5th Cir.
1995).
See Weeks v.
Under the Jackson
standard "[a]ll credibility choices and conflicting inferences are
to be resolved in favor of the verdict."
F.3d 691, 695 (5th Cir. 2005)
Ramirez v. Dretke, 398
(citation omitted).
Viewing all of
the evidence under the doubly deferential standard that applies on
federal habeas review, Arzate has not shown that the state court's
decision was objectively unreasonable or that he is entitled to
relief under Jackson.
33
The court's own review of the record shows
Id. at 23-24.
34
Court Reporter' s Record, vol. 5, Docket Entry No. 15-18,
pp. 164-88; Court Reporter's Record,
vol.
6, Docket Entry
No. 15-19, pp. 77-131, 193-204.
-20-
that
there
was
overwhelming
evidence
to
support
the
verdict.
Therefore, Arzate's challenge to the sufficiency of the evidence
has no merit.
C.
Ineffective Assistance of Counsel
Arzate
claims
that
his
trial
attorney
was
deficient
for
failing to adequately cross-examine or impeach Richard Gonzalez
with his record of committing crimes of moral turpitude. 35
state habeas corpus court rejected this claim,
The
concluding that
Arzate "fail[ed] to show [that] his trial counsel's representation
fell below an objective standard of reasonableness in any way and
that,
but
for
counsel's
alleged
deficiencies,
there
[was]
a
reasonable probability that the result of the proceeding would have
been different. " 36
As the state habeas corpus court correctly noted, claims for
ineffective assistance of counsel are governed by the standard
found in Strickland.
To prevail under the Strickland standard a
defendant must demonstrate (1) that his counsel's performance was
deficient and
defense.
(2)
that the deficient performance prejudiced the
Id. at 2064.
"Unless a defendant makes both showings, it
cannot be said that the conviction . . . resulted from a breakdown
in the adversary process that renders the result unreliable."
35
Id.
Petition, Docket Entry No. 1, p. 7.
Findings and Conclusions, Docket Entry No. 16-18, p. 50 ~ 9
(citing Strickland v. Washington, 104 S. Ct. 2052, 2064 (1984)).
36
-21-
"To satisfy the deficient performance prong,
'the defendant
must show that counsel's representation fell below an objective
standard of reasonableness.'"
(5th Cir.
denied,
2014)
135 S.
Hoffman v. Cain, 752 F.3d 430, 440
(quoting Strickland,
Ct.
1160
(2015).
104 S.
Ct.
at 2064),
cert.
This is a "highly deferential"
inquiry; "[t]here is 'a strong presumption that counsel's conduct
falls
within
assistance.'"
the
Id.
wide
range
of
professional
(quoting Strickland, 104 S. Ct. at 2065) .
To satisfy the prejudice prong,
that there is a
reasonable
"[t]he defendant must show
reasonable probability that,
but for counsel's
unprofessional errors, the result of the proceeding would have been
different."
Strickland, 104 S. Ct. at 2068.
must "affirmatively prove prejudice."
A habeas petitioner
Id. at 2067.
A petitioner
cannot satisfy the second prong of Strickland with mere speculation
and conjecture.
Cir. 1992).
See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th
Conclusory allegations are insufficient to demonstrate
either deficient performance or actual prejudice.
See Day v.
Quarterman, 566 F.3d 527, 540-41 (5th Cir. 2009); see also Lincecum
v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992)
(stating that an
ineffectiveness claim based on speculation or conclusional rhetoric
will not warrant relief) .
Because Arzate's ineffective-assistance claim was rejected by
the state court, the issue is not whether this court "'believes the
state court's determination'
incorrect
but
whether
that
under the Strickland standard
determination
-22-
was
'was
unreasonable -
a
substantially higher threshold.'"
1411, 1420 (2009)
Knowles v. Mirzayance, 129 S. Ct.
(quotation omitted).
In addition,
"because the
Strickland standard is a general standard, a state court has even
more
latitude to reasonably determine that a
satisfied that standard."
Id.
defendant has not
When applied in tandem with the
highly deferential standard found in 28 U.S.C. § 2254(d), review of
ineffective-assistance claims
corpus review.
is
"doubly deferential"
Id. at 1413; see also Richter,
on habeas
131 S. Ct. at 788
(emphasizing that the standards created by Strickland and§ 2254(d)
are both "highly deferential," and "'doubly'
tandem)
(citations and quotations omitted); Beatty v. Stephens, 759
F.3d 455, 463 (5th Cir. 2014)
The
so" when applied in
record in this
(same).
case
supports
the
state habeas
corpus
court's conclusion that defense counsel was not deficient.
The
record shows that Richard Gonzalez owned the auto repair business
where Arzate worked as a mechanic until the day of the shooting. 37
Gonzalez, who testified that Arzate threatened him and made other
inculpatory remarks about the shooting incident, admitted during
his testimony that he was facing criminal charges for insurance
fraud.
the
38
Defense counsel cross-examined Gonzalez at length about
charges
that
were
37
pending
Court Reporter's Record,
pp. 152-66.
38
against
vol.
Id. at 160-61.
-23-
5,
him,
which
reportedly
Docket Entry No.
15-18,
involved multiple
instances
of
fraud.
39
Defense
counsel
also
referenced Gonzalez's "criminal history" again during his crossexamination of Ryan Chandler,
noting that insurance fraud was a
"crime of dishonesty," which called Gonzalez's credibility into
question. 40
At the state court level, Arzate argued that his lead defense
counsel was deficient because he did not cross-examine Gonzalez
about
other
(Harris
(Harris
County
County
offenses,
number
cause
cause
convictions
including
number
1136768)
1136820);
(Harris County cause number 115503 0) . 41
i
and
for
theft
illegal
dumping
domestic
assault
The state habeas corpus
court found that Gonzalez's prior conviction for theft was not
admissible
for
purposes
of
impeachment
because
he
received
a
sentence of deferred adjudication, which he successfully discharged
before the date of Arzate's trial. 42
Likewise,
Gonzalez's prior
conviction for illegal dumping was not admissible for impeachment
purposes because it was a misdemeanor. 43
39
Although Gonzalez's prior
Id. at 166-87.
4
°Court Reporter's Record,
p. 114.
vol.
6,
Docket Entry No.
15-19,
41
Indictments against Richard Gonzalez, also known as Ricardo
Gonzales, Docket Entry No. 16-17, pp. 53, 55, 57.
42
Findings and Conclusions, Docket Entry No. 16-18, pp. 47, 49
(citing TEX. R. EVID. 609(a)).
43
Id. at 47, 50.
-24-
conviction for domestic assault was admissible,
the state habeas
corpus court concluded that defense counsel's failure to crossexamine Gonzalez about this offense was not deficient because it
was reasonable trial strategy. 44
The record reflects that defense counsel elected to crossexamine Gonzalez about the insurance fraud charges pending against
him, arguing that Gonzalez was dishonest and that he had a motive
to testify against Arzate in hopes of having the fraud charges
dropped. 45
defense
Arzate does not overcome the strong presumption that his
counsel's
chosen trial
strategy,
with
its
emphasis
on
showing that Gonzalez was dishonest and therefore not credible, was
reasonable.
See Strickland, 104 S. Ct. at 2065.
Arzate does not
otherwise demonstrate that his trial was tainted by his counsel's
deficient
performance.
Given
the
substantial
nature
of
the
evidence against him, Arzate has not demonstrated that the result
of his trial would have been any different if additional questions
had
been
Absent a
posed
about
Gonzalez's
domestic
assault
conviction.
showing of deficient performance and actual prejudice
Arzate fails to show that he was denied effective assistance of
counsel or that the state court's decision to reject this claim was
44
Id. at 47, 49.
45
See Court Reporter's Record, vol. 5, Docket Entry No. 15-18,
pp. 166-87; Court Reporter's Record, vol. 6, Docket Entry No. 1519, p. 114. See also Court Reporter's Record, vol. 7, Docket Entry
No. 15-20, pp. 15-16 (closing arguments).
-25-
unreasonable.
Accordingly,
Arzate is not entitled to relief on
this claim.
D.
Violation of the Texas Rules of Evidence
In his final ground for relief, Arzate contends that the trial
court erred by refusing to strike testimony from his mother-in-law,
Maria
Valdez
("Mrs.
Valdez"),
who
identified
Arzate
as
the
individual who shot her and her husband after forcibly entering
their home. 46
Arzate maintains that Mrs. Valdez violated Rule 614
of the Texas Rules of Evidence by discussing the proceedings with
one of her daughters (Marrilou), who was not a witness and who had
been in court observing the testimony. 47
Rule 614, commonly known as "the Rule," provides that "[a]t
the request of a party the court shall order witnesses excluded so
that they cannot hear the testimony of other witnesses."
Evm. 614. 48
TEx. R.
The purpose of the Rule is "to prevent the testimony
of one witness from influencing the testimony of another."
State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989)
Webb v.
(quoting Cook v.
State, 30 Tex. App. 607, 18 S.W. 412 (1892)); see also Sponsler v.
State, No. 03-11-00654-CR, 2013 WL 6002763, *10 (Tex. App. -Austin
Nov.
8, 2013, pet. ref'd)
46
(explaining that Rule 614 codifies the
Peti tion, Docket Entry No. 1, p. 7.
47Id.
48
A corresponding provision is found in Rule 615 of the Federal
Rules of Evidence.
-26-
"witness-sequestration
rule,"
which
is
"designed
to
prevent
witnesses from altering their testimony, consciously or not, based
on other witnesses' testimony")
(citations omitted).
The record shows that the trial court excluded all witnesses
from the courtroom pursuant to Rule 614, advising them as follows:
"The witnesses cannot listen to each other testify.
discuss
receive
your
information
testimony." 49
strike
testimony
in
from
the
presence
anybody
of
another
about
another
You can't
witness
or
witness's
During the trial Arzate's defense counsel moved to
testimony
from
Mrs.
Valdez,
objecting
that
she
had
a
conversation with Marrilou before she testified about whether the
front door was unlocked or there was forced entry into the family
home. 50
The prosecutor attempted to explain that she had instigated
a conversation with Mrs. Valdez by using Marrilou as a translator
to communicate in Spanish, but that they did not discuss testimony
given by any other witness. 51
In Texas it is within the trial court's discretion to allow
the testimony of a witness who has violated the Rule.
State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996)
See Bell v.
("[T]he ruling of
the trial court on an objection to a witness testifying when he has
remained in the courtroom after having been placed under the 'rule'
49
Court Reporter's Record, vol. 5, Docket Entry No. 15-18, p. 4.
50
Id. at 142-44.
51
Id. at 142, 143.
-27-
may not be relied upon as a ground for reversal unless an abuse of
discretion is showni and until the contrary has been shown, it will
be
presumed
on
exercised.")
appeal
such
(citing Valdez v.
Crim. App. 1989)).
the
that
parties'
discretion
State,
was
776 S.W.2d 162,
properly
170
(Tex.
After considering Mrs. Valdez's testimony and
arguments,
the
trial
court
overruled
Arzate's
objections and denied his motion to strike. 52
The
respondent
challenge
the
trial
respondent argues
notes
that
court's
that
Arzate
ruling
on
could have
direct
but
did not
appeal. 53
The
the claim is barred by the doctrine of
procedural default because the state habeas corpus court rejected
it for procedural reasons. 54
Specifically, the state habeas corpus
court concluded that Arzate forfeited review of his claim about
Maria Valdez's testimony because error was preserved but not raised
on appeal. 55
In doing so, the state habeas corpus court relied on
the rule in Ex parte Townsend, 137 S.W.3d at 81, which held that
"[e] ven a constitutional claim
[in a
state habeas petition]
is
forfeited if the applicant had the opportunity to raise the issue
on appeal."
The Fifth Circuit has recognized that the rule found
52
Id. at 143-45.
53
Respondent's Motion, Docket Entry No. 18, pp. 34-37.
s4Id.
55
Findings and Conclusions, Docket Entry No. 16-18, pp. 48, 50
(citing Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App.
2004)).
-28-
in Ex parte Townsend, which requires that a petitioner raise any
claims based on the trial record on direct appeal before raising
them in a state habeas petition,
capable
of
Quarterman,
Dretke,
habeas
barring
federal
482 F.3d 815,
359 F. 3d 708,
corpus
court
719
827
is an "'adequate state ground
habeas
review.'"
(5th Cir.
(5th Cir.
expressly based
2007)
v.
(quoting Busby v.
Because the state
2004)).
its
Scheanette
dismissal
on a
state
procedural rule found adequate to bar federal review, Arzate has
procedurally defaulted his federal habeas claim.
Tha 1 e r ,
6 2 6 F . 3d 8 15 ,
8 2 0 - 21
( 5th Ci r . 2 0 1 0 ) .
See Rocha v.
Arzate does not
overcome his default by showing that an exception applies. 56
The respondent also argues that Arzate is not entitled to
relief
on any claim based on Rule
Evidence because the violation,
614
if any,
56
of
the
Texas
Rules
of
does not implicate the
Arzate argues that his default should be excused because he
was denied effective assistance of counsel on direct appeal.
Petitioner's Reply, Docket Entry No. 19, p. 13.
Ineffective
assistance of counsel can constitute cause for purposes of excusing
a procedural default. See Edwards v. Carpenter, 120 S. Ct. 1587,
1591 (2000).
"Not just any deficiency in counsel's performance
will do, however; the assistance must have been so ineffective as
to violate the Federal Constitution."
Id.
"In other words,
ineffective assistance adequate to establish cause for the
procedural default of some other constitutional claim is itself an
independent constitutional claim."
Id. (emphasis in original) .
Thus, the Supreme Court has emphasized that a claim of ineffective
assistance must "be presented to the state courts as an independent
claim before it may be used to establish cause for a procedural
default."
Id. (quoting Murray v. Carrier, 106 S. Ct. 2639, 2646
(1986)). Because Arzate did not raise his ineffective-assistance
claim at the state court level, his allegation cannot qualify as
cause and does not overcome the procedural bar.
-29-
United States Constitution. 57
The respondent correctly notes that
federal habeas corpus relief is only available to vindicate rights
protected by federal law and does not extend to violations of state
rules of procedure. 58
710, 711
See,
e.g., Manning v. Blackburn,
(5th Cir. 1986).
786 F.2d
The Fifth Circuit has made clear that
federal habeas corpus courts do not sit to review the admissibility
of evidence under state law.
862
(5th Cir. 1998)
(5th Cir. 1991)).
See Little v. Johnson, 162 F.3d 855,
(citing Peters v. Whitley,
942 F.2d 937,
940
An evidentiary error during a state court trial
justifies federal habeas corpus relief only if the error is so
extreme that it constitutes a denial of fundamental fairness in
violation of the Due Process Clause.
See Little, 162 F.3d at 862;
see also Bridge v. Lynaugh, 838 F.2d 770, 772 (5th Cir. 1988).
The
alleged evidentiary error must be "'a crucial, critical, or highly
significant factor in the context of the entire trial.'"
Bridge,
838 F.2d at 772 (quoting Thomas v. Lynaugh, 812 F.2d 225, 230 (5th
Cir. 1987)).
To obtain relief the petitioner must show that the
trial court's error in admitting the evidence had a "substantial
and
injurious
verdict."
effect
Brecht v.
or
influence
Abrahamson,
in
113 S.
determining
Ct.
1710,
the
jury's
1714
(1993)
(quoting Kotteakos v. United States, 66 S. Ct. 1239, 1253 (1946)).
57
Respondent's Motion, Docket Entry No. 18, pp. 34-37.
58
Id. at 37.
-30-
Arzate
appears
to argue
that Mrs.
Valdez's
testimony was
significant because the state had no other proof that he forcibly
entered the home,
which is a requisite element for purposes of
showing that the murder occurred during the course of a burglary. 59
The court disagrees.
The evidence presented at trial was more than
sufficient to show that Arzate shot and killed Guillermo Valdez
after entering the Valdez family home in the middle of the night
without permission.
In this context, the trial court's error, if
any, did not have a substantial effect on the jury's verdict. 60
See
Brecht,
was
113
S.
Ct.
at
1714.
Because
the
alleged
error
harmless, Arzate is not entitled to relief on his claim that the
trial court erred by refusing to strike the testimony given by
Mrs. Valdez.
Because Arzate has
failed to establish a
valid claim for
relief, Respondent's Motion for Summary Judgment will be granted
and the Petition will be denied.
59
Peti tion, Docket Entry No. 1, p. 7.
60
The record reflects that Marrilou only spoke to her mother
as a translator for the prosecutor in preparation for her mother's
giving testimony.
See Court Reporter's Record, vol. 5, Docket
Entry No. 15-18, pp. 142, 143. The record does not establish that
the prosecutor or Marrilou relayed information to Maria Valdez
about any particular witness's testimony.
Assuming that she did
and that Maria Valdez heard about testimony given by another
witness, there is no showing that Mrs. Valdez's testimony was
influenced by what she heard or that a violation of Rule 614
occurred.
See Archer v. State, 703 S.W.2d 664, 667 (Tex. Crim.
App. 1986)
(holding that a violation of the "rule" requires
reversal only where the witness's testimony corroborates material
testimony of other witnesses for the State or contradicts the
testimony of any defense witness that he heard) .
For this
additional reason, Arzate's claim fails.
-31-
IV.
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
right,"
28 U.S.C.
demonstrate
court's
"that
assessment
2253(c) (2),
§
'reasonable
of
the
constitutional
which requires a petitioner to
jurists
would
constitutional
find
the
claims
district
debatable
wrong.'"
Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)
Slack v.
McDaniel,
120 S.
Ct.
1595,
1604
(2000)).
or
(quoting
Under the
controlling standard this requires a petitioner to show "'that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or that the issues presented were "adequate to deserve encouragement to proceed further."'"
1029, 1039 (2003).
Miller-El v.
Cockrell,
123 S.
Ct.
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 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.
Alexander v.
Johnson,
211 F.3d 895,
-32-
898
(5th Cir.
2000).
See
After
careful review of the pleadings and the applicable law, the court
concludes that reasonable jurists would not find the assessment of
the
constitutional
claims
debatable
or
wrong.
Because
the
petitioner does not demonstrate that his claims could be resolved
in a different manner,
a certificate of appealability will not
issue in this case.
V.
Conclusion and Order
The court ORDERS as follows:
1.
Respondent's Motion for Summary Judgment
Entry No. 18) is GRANTED.
(Docket
2.
Francisco Arzate's Petition for a Writ of Habeas
Corpus By a Person in State Custody (Docket Entry
No. 1) is DENIED, and this action will be dismissed
with prejudice.
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 7th day of September, 2017.
7
SIM LAKE
UNITED STATES DISTRICT JUDGE
-33-
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