Romero v. Davis
Filing
16
MEMORANDUM OPINION AND ORDER granting 14 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
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FRELIN ARMANDO ROMERO,
TDCJ #01920910,
§
§
§
§
§
§
§
§
§
§
§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
September 14, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-17-0387
MEMORANDUM OPINION AND ORDER
Frelin Armando Romero has
filed a
Petition for a Writ of
Habeas Corpus By a Person in State Custody ("Petition")
Entry No.
1),
seeking
relief
under
28
U.S.C.
§
(Docket
2254
aggravated robbery conviction in Montgomery County,
from
Texas.
an
The
respondent has filed a Motion for Summary Judgment with Brief in
Support ("Respondent's MSJ")
(Docket Entry No. 14) , along with a
copy of the state court records (Docket Entry No. 15).
Romero has
not filed a response and his time to do so has expired.
considering
the
applicable law,
pleadings,
the
state
court
record,
After
and
the
the court will grant Respondent's MSJ and will
dismiss this action for the reasons explained below.
I.
Background
A Montgomery County grand jury returned a two-count indictment
against Romero in cause number 12-10-10751-CR, charging him with
aggravated robbery with a deadly weapon,
a firearm.
1
The state
subsequently enhanced the indictment for purposes of punishment
with allegations that Romero had two prior felony convictions in
federal court for illegal reentry into the United States following
deportation. 2
At
a
jury
trial
in
the
435th
District
Court
for
Montgomery County the state presented evidence that Romero and two
other individuals robbed a jewelry store in Conroe that was owned
by Mitchell Wilkins
Mr.
Wilkins'
face
("Mr.
during
Wilkins") . 3
Romero pointed a gun in
the
and
Romero fired his weapon twice,
robbery
missing Mr.
a
struggle
ensued. 4
Wilkins both times. 5
Romero then struck Mr. Wilkins multiple times in the face with the
firearm,
causing Mr. Wilkins to bleed profusely, 6 while Romero's
associates held a
gun on Mr.
Wilkins'
elderly mother,
Shirley
1
Indictment, Docket Entry No. 15-35, p. 85. Count one of the
indictment accused Romero of robbing Mitchell Wilkins and count two
accused Romero of robbing Shirley Mitchell during the same
incident.
See id.
2
Notice of Enhancement, Docket Entry No. 15-5, p. 39; see also
Court Reporter's Record, vol. 4, Docket Entry No. 15-14, p. 25
(referencing Romero's previous federal conviction from the Southern
District of Texas, Laredo Division, in United States v. Romero,
Cause No. 5:02-cr-0571-01).
3
Court Reporter's Record,
pp. 10-11, 174-76.
4
Id. at 180-87.
5
Id. at 185.
6
vol.
Id. at 182-84.
-2-
3,
Docket Entry No.
15-13,
Wilkins,
who was working at the jewelry store that day. 7
After
dropping his gun during the struggle with Mr. Wilkins, Romero fled
the jewelry store and was later found hiding in a nearby field.
8
Mr. Wilkins identified Romero in a photographic line-up and in open
court as the man who injured him while robbing his jewelry store at
gunpoint. 9
Romero's fingerprints were recovered from the firearm
that he left behind at the scene. 10
DNA evidence confirmed that
Mr. Wilkins' blood was on the clothing that Romero was wearing when
he was arrested. 11
After hearing all of the evidence,
the jury
found Romero guilty as charged in both counts of the indictment. 12
During the punishment phase the state presented additional DNA
evidence linking Romero to another aggravated robbery of a pawn
shop, 13 which was captured on video surveillance. 14
that the enhancement allegations were true,
7
the
After finding
jury sentenced
Id. at 184-85, 203, 207-08.
8
Id. at 14, 187. A female co-defendant was also captured and
charged in connection with the aggravated robbery.
Id. at 11-12.
Another male who was involved got away and was never found. Id. at
11.
9
Id. at 57, 182-83, 195-96.
10
Id. at 116.
11
Id. at 12, 31, 156-58.
12
Court Reporter's Record,
vol.
p. 22.
13
Id. at 30-33, 50-51.
14
Id. at 74-77.
-3-
4,
Docket Entry No.
15-14,
Romero to 60 years' imprisonment on each count of the indictment, 15
which the trial court imposed to run concurrently. 16
On direct appeal Romero challenged the admissibility of the
photographic
line-up
identification. 17
that
was
used
to
obtain
his
pretrial
An intermediate court of appeals rejected this
claim in an unpublished opinion,
noting that Romero failed
to
Romero v.
properly preserve error with respect to that issue.
State, Nos. 09-14-00073-CR, 09-14-00074-CR, 2015 WL 184414, at *1
(Tex. App. -Beaumont Jan. 14, 2015, no pet.).
Romero now seeks a federal writ of habeas corpus to challenge
his aggravated robbery conviction under 28 U.S. C.
raises
the
following
claims
for
relief:
( 1)
the
2254.
§
trial
He
court
violated his right to due process during voir dire by excusing
prospective
juror #42
without a
legitimate reason;
(2)
he was
denied effective assistance of counsel at his trial; and (3) he was
denied effective assistance of counsel on appeal. 18
were
raised
15
previously
on
collateral
review 19
These claims
where
they
were
Id. at 119-20.
16
Judgment of Conviction by Jury (counts one and two), Docket
Entry No. 15-35, pp. 86, 90.
17
Appellant's Brief, Docket Entry No. 15-26, pp. 5-9.
18
Petition, Docket Entry No. 1, pp. 6-11.
19
Application for a Writ of Habeas Corpus Seeking Relief from
Final Felony Conviction Under Code of Criminal Procedure,
Article 11.07, Docket Entry No. 15-35, pp. 9-25.
-4-
rejected by the Texas Court of Criminal Appeals on findings made by
the state habeas corpus court. 20
The respondent moves for summary
judgment, arguing that Romero 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
the
2254(d) (1)
clearly established
Supreme
Court
of
the
Likewise, a court may
not grant relief on a claim that presents a question of fact unless
the petitioner 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
§
[s]tate court proceeding."
28
u.s.c.
2254 (d) (2).
For purposes of review under
§
2254 (d) (1), "'[a] state court's
decision is deemed contrary to clearly established federal law if
20
Action Taken on Writ No. 82,987-02, Docket Entry No. 15-33,
p. 1; Findings of Fact and Conclusions of Law ("Findings and
Conclusions"), Docket Entry No. 15-35, pp. 78-82.
-5-
it reaches a
decision
of
legal conclusion in direct conflict with a prior
the
Supreme
Court
or
if
it
reaches
a
different
conclusion than the Supreme Court on materially indistinguishable
facts."'
Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
(citations omitted); see also Williams v. Taylor, 120
1519-20
(2002) .
s. Ct. 1495,
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
Woods v.
suffice."
(quoting White v.
Donald,
Woodall,
satisfy this high bar,
134 S.
135
Ct.
S.
1372,
Ct.
1697,
1702
1376
(2015)
(2014)).
"To
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."
-6-
not
a
Richter,
131 S. Ct. at 786
2796, n. 5 (1979)
s.
(quoting Jackson v. Virginia,
(Stevens,
J.,
99 S. Ct.
2781,
concurring)); see also White,
134
Ct. at 1702.
A state court's factual determinations are also entitled to
great deference on federal habeas corpus review.
Findings of fact
are "presumed to be correct" unless the petitioner rebuts those
findings
§
with
2254 (e) (1).
"clear
and
2006)
evidence."
28
u.s.c.
This presumption of correctness extends not only to
express factual findings,
findings.
convincing
but also to the state court's implicit
See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.
(citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005);
Young v. Dretke,
356 F.3d 616,
629
(5th Cir.
2004)).
A federal
habeas corpus court "may not characterize these state-court factual
determinations as unreasonable
'merely because
[it]
reached a different conclusion in the first instance.'"
would have
Brumfield
v. Cain, 135 S. Ct. 2269, 2277 (2015)
(quoting Wood v. Allen, 130
s.
2254 (d) (2) requires that [a
Ct. 841, 849 (2010)).
"Instead,
§
federal court] accord the state trial court substantial deference."
Id.
III.
A.
Discussion
Error by the Trial Court During Voir Dire
In his first ground for relief Romero contends that the trial
court erred during voir dire by excusing prospective juror #42 for
"employment reasons," which is not a legitimate basis to excuse
-7-
someone from jury duty. 21
Romero contends, therefore, that he was
denied due process and a fair trial by a jury of his peers. 22
The state habeas corpus court rejected Romero's claim for
procedural reasons because it was "based on the record" and could
have been raised on direct appeal, but was not. 23
In doing so, the
state habeas corpus court relied on Ex parte Richardson,
emphasizes the well-established rule that
habeas
corpus]
should not be used'
which
"'the Great Writ
[of
to
litigate matters
'which
should have been raised on appeal [.] '"
201 S.W.3d 712,
713-14
(Tex. Crim. App. 2006)
(quoting Ex parte Townsend, 137 S.W.3d 79,
81 (Tex. Crim. App. 2004)).
The
respondent
argues
that
Romero's
due
process
claim is
precluded by the doctrine of procedural default because the state
habeas corpus court based its decision on a state procedural rule
that
is
adequate
Scheanette
v.
to
bar
Quarterman,
federal
482
habeas
F.3d
815,
corpus
827
review. 24
(5th
Cir.
See
2007)
(recognizing that the Texas rule requiring a petitioner to present
any claims based on the trial record on direct appeal,
raising them in a state habeas petition,
21
before
"is an 'adequate state
Petition, Docket Entry No. 1, ·p. 6.
22Id.
23
Findings and Conclusions, Docket Entry No. 15-35, p. 80
(citing Ex parte Richardson, 201 S.W.3d 712, 713 (Tex. Crim. App.
2006)).
24
Respondent's MSJ, Docket Entry No. 14, pp. 5-7.
-8-
ground capable of barring federal habeas review'")
v. Dretke, 359 F.3d 708,
719
(quoting Busby
(5th Cir. 2004)); see also Moses v.
Davis, 673 F. App'x 364, 367 (5th Cir. 2016)
(per curiam)
(same).
Romero has not filed a response to Respondent's MSJ, and he has not
at tempted to dispute
Because
applies,
that
this
claim is procedurally barred. 25
the pleadings do not otherwise
26
the
court
concludes
that
show that
Romero's
an exception
claim
concerning
prospective juror #42 is barred from federal review.
The respondent also argues, in the alternative, that Romero's
claim lacks merit because it is factually incorrect and unsupported
by the record. 27
The record reflects that defense counsel initially
agreed with the state to excuse prospective juror #42, a division
president for a home builder, because he was scheduled to fly to
California for work. 28
After defense counsel withdrew consent to
25
Romero was ordered to respond within thirty days to any
dispositive motion filed by the respondent.
See Order, Docket
Entry No. 3, pp. 3-4. Romero has not complied as directed.
26
Where a petitioner has committed a procedural default federal
habeas corpus review is available only if he 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."
Coleman v. Thompson, 111 S. Ct. 2546, 2565 (1991). The record does
not disclose any cause to excuse the default in this instance.
Even assuming that Romero could show cause, he cannot demonstrate
actual prejudice or show that a fundamental miscarriage of justice
will result from his default because Romero's underlying claim is
without merit.
27
28
Respondent's MSJ, Docket Entry No. 14, p. 7, n.3.
Court Reporter's Record,
pp. 100-102, 104.
vol.
-9-
2B,
Docket Entry No.
15-11,
excuse the juror, prospective juror #42 was removed from the panel
by the state with a peremptory strike. 29
Thus, prospective juror
#42 was not excused by the trial court for reasons related to his
employment, as Romero claims.
Under these circumstances Romero has
not shown that the trial court violated his right to due process
during jury selection,
and he is not entitled to relief on this
issue.
B.
Ineffective Assistance of Counsel
Romero claims that his trial attorney was constitutionally
ineffective for several reasons, which the court has consolidated
for analysis, because she failed to do the following:
(1) properly
object and preserve error when the trial court "sua sponte" excused
prospective juror #42 for employment reasons;
(2) request funds to
hire independent experts on DNA evidence, fingerprint analysis, and
ballistics
to
testify
on
his
behalf;
( 3)
conduct
a
thorough
investigation of the case by visiting the scene of his arrest;
(4) utilize a certified translator to discuss the case and prepare
a
defense;
and
(5)
file
a
proper motion
supervision as an option at sentencing. 30
to
request
community
After considering a
detailed affidavit from Romero's trial attorney, Heather Hall, the
state habeas corpus court rejected all of Romero's ineffective-
29
Appeared Juror Listing, Docket Entry No. 15-35, p. 61.
30
Petition, Docket Entry No. 1, pp. 6-9.
-10-
assistance claims,
concluding that he
"failed to show that his
trial counsel's representation was constitutionally deficient." 31
As the state habeas corpus court correctly noted, claims for
ineffective assistance of counsel are governed by the standard
found in Strickland v.
Washington,
104 S.
Ct.
2052
( 1984) .
To
prevail under the Strickland standard a defendant must demonstrate
(1) that his counsel's performance was deficient and (2) that the
deficient
performance
prejudiced
the
defense.
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."
Id.
"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)
Hoffman v. Cain, 752 F.3d 430, 440
(quoting Strickland,
135 S. 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
reasonable
professional
(quoting Strickland, 104 S. Ct. at 2065).
To satisfy the prejudice prong "[t] he defendant must show that
there
is
a
reasonable
probability
that,
but
for
counsel's
unprofessional errors, the result of the proceeding would have been
31
Findings and Conclusions, Docket Entry No. 15-35,
(citing Strickland v. Washington, 104 S. Ct. 2052 (1984)).
-11-
p.
81
different."
Strickland, 466 U.s. at 694.
"affirmatively prove prejudice."
A habeas petitioner must
Id. at 693.
A petitioner cannot
satisfy the second prong of Strickland with mere speculation and
conjecture.
1992) .
See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir.
Conclusory allegations are
insufficient
either deficient performance or actual
to demonstrate
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 the petitioner's ineffective-assistance claims were
rejected by the state court, the issue is not whether this court
"'believes the state court's determination' under the Strickland
standard
'was
unreasonable -
incorrect
a
but
whether
determination
was
Knowles v.
substantially higher threshold. '"
Mirzayance, 129 S. Ct. 1411, 1420 (2009)
addition,
that
(quotation omitted).
In
"because the Strickland standard is a general standard,
a state court has even more latitude to reasonably determine that
a defendant has not satisfied that standard."
Id.
When applied in
tandem with the highly deferential standard found in 28 U.S.C.
§
2254 (d),
review
deferential"
of
on habeas
ineffective-assistance
corpus
review.
Id.
claims
at
is
1413;
"doubly
see
also
Richter, 131 S. Ct. at 788 (emphasizing that the standards created
by Strickland and
"'doubly'
§
2254 (d)
are both "highly deferential,"
so" when applied in tandem)
-12-
and
(citations and quotations
omitted)
Beatty v.
i
(same) .
Stephens,
759 F. 3d 455,
463
None of Romero's allegations merit
(5th Cir.
2014)
relief under this
deferential standard.
1.
Failure to Object
Romero contends that his defense counsel was deficient for
failing to properly object and preserve error when the trial court
"sua
sponte"
excused
reasons . " 32
The
counsel did,
prospective
in fact,
state habeas
juror
corpus
#42
court
for
found
"employment
that
defense
object to the discretionary dismissal of
prospective juror #42,
who was ultimately struck pursuant to a
peremptory challenge by the state. 33
This claim fails because Romero's underlying contention that
the trial court erred by excusing prospective
merit.
juror #42
lacks
Romero does not demonstrate that the trial court erred in
any way or that his defense counsel had,
valid objection.
but failed to make,
a
Under these circumstances Romero has not shown
that his defense counsel was deficient or that the state habeas
corpus court's decision was unreasonable.
F.3d
959,
objections
opposite.")
966
is
(5th
Cir.
1994)
not
ineffective
See Clark v. Collins, 19
("Failure
lawyeringi
to
it
raise
is
meritless
the
very
Therefore, Romero is not entitled to relief on this
claim.
32
Petition, Docket Entry No. 1, p. 6.
33
Findings and Conclusions, Docket Entry No. 15-35, p. 79.
-13-
2.
Failure to Hire Experts
Romero contends that his defense counsel was deficient for
failing
to
evidence,
behalf
request
funds
to
hire
independent
experts
on
DNA
fingerprint analysis, and ballistics to testify on his
at
trial. 34
In response
to
these
allegations
Romero's
defense counsel explained in her affidavit to the state habeas
corpus court that she did not request additional DNA testing or
funds
to hire
Rather
than
experts,
experts
pursue
in
these
additional
areas
testing
for
or
strategic
retain
reasons. 35
independent
defense counsel elected to counter the state's DNA and
fingerprint experts through cross-examination. 36
She specifically
decided to pursue this strategy and not request additional DNA
testing or hire a DNA expert because, after consulting with several
experts, she learned that the test results obtained by the state
were weak and that the evidence had been cross-contaminated. 37
She
did not hire a ballistics expert because Romero used his firearm to
strike,
not
irrelevant. 38
34
shoot,
the
victim,
making
ballistics
evidence
Defense counsel also did not want to put more focus
Petition, Docket Entry No. 1, pp. 7, 8.
35
Affidavit of Heather Hall ("Hall Affidavit"), Docket Entry
No. 15-35, pp. 52, 54.
36Id.
37
Id.
at 52.
38
Id.
at 54.
-14-
on the firearm and its "potential effects. " 39
corpus
court
concluded
that
Hall's
The state habeas
strategic
decisions
"reasonable" and that Romero failed to show that
were
"no competent
attorney would have made the same choices. " 40
Romero does not demonstrate that his counsel's failure to hire
expert
witnesses
deficient.
or
"Claims
present
of
expert
uncalled
testimony
witnesses
at
are
trial
was
disfavored,
especially if the claim is unsupported by evidence indicating the
witnesses's
willingness
proposed testimony."
Cir. 2010)
to
testify
and
Gregory v. Thaler,
the
substance
601 F.3d 347,
of
the
352
(5th
(citing Harrison v. Quarterman, 496 F.3d 419, 428 (5th
Cir. 2007)).
A petitioner who alleges ineffective assistance of
counsel based on the
failure
to call either a
"lay or expert
witness" must "name the witness, demonstrate that the witness was
available to testify and would have done so, set out the content of
the witness's proposed testimony, and show that the testimony would
have been favorable to a particular defense."
(citations omitted) .
would
have
offered
Day, 566 F. 3d at 538
Absent a showing that a particular witness
testimony
favorable
to
the
petitioner's claim is speculative and conclusory,
defense,
the
and does not
demonstrate either deficient performance or resulting prejudice on
39Id.
4
°Findings and Conclusions, Docket Entry No. 15-35,
(citing Strickland v. Washington, 104 S. Ct. 2052 (1984)).
-15-
p.
81
his trial counsel's part.
See Sayre v. Anderson, 238 F.3d 631, 636
(5th Cir. 2001).
Romero does
not
identify any particular witness
that
his
defense counsel could have called or allege facts showing how their
testimony would have
helped his
Romero' s
defense.
cone 1 usory
allegations do not overcome the strong presumption that his defense
counsel's chosen trial strategy was reasonable and do not establish
deficient performance.
a
See Strickland, 104 S. Ct. at 2065.
Absent
showing of deficient performance and actual prejudice as the
result of his defense counsel's strategic decisions, Romero fails
to show that he was denied effective assistance of counsel or that
the state court's decision to reject this claim was unreasonable.
Accordingly, Romero is not entitled to relief on this claim.
3.
Failure to Conduct an Adequate Investigation
Romero contends that his defense counsel was deficient for
failing to conduct a thorough investigation of the case by visiting
the scene of his arrest. 41
As a result,
Romero claims that his
defense counsel mischaracterized the area where he was taken into
custody by police. 42
In
response
to
this
allegation,
defense
counsel explained that she personally visited the scene multiple
times before the trial and knew the area well because it was near
41
Petition, Docket Entry No. 1, p. 7.
42Id.
-16-
her office,
the courthouse, and businesses that she frequented. 43
Crediting defense counsel's explanation,
the state habeas corpus
court found that defense counsel visited the crime scene multiple
times and observed that her characterization of the location where
Romero was
found
hiding
in an area with heavy brush was
not
inaccurate or inconsistent with other evidence. 44
Romero has not offered any evidence to contradict his defense
counsel's assertions, and his pleadings are insufficient to rebut
the
state
habeas
corpus
court's
presumed correct under 28 U.S.C.
findings
§
of
fact,
2254 (e) (1).
which
are
The record of
Romero's trial, which shows that defense counsel was prepared and
presented a coherent strategy,
court's findings.
supports the state habeas corpus
Romero has not otherwise alleged facts showing
what additional investigation would have revealed and how it would
have changed the outcome of his
trial;
therefore,
establish deficient performance or actual prejudice.
Dretke, 420 F.3d 356, 361 (5th Cir. 2005).
he does not
See Miller v.
Because Romero does not
demonstrate that his counsel was ineffective for failing to conduct
an adequate investigation, he does not show that the state court's
decision was unreasonable, and he is not entitled to relief on this
claim.
43
Hall Affidavit, Docket Entry No. 15-35, p. 53.
44
Findings and Conclusions, Docket Entry No. 15-35, p. 79.
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4.
Failure to Use a Certified Translator
Romero, who is from Honduras, contends that his trial counsel
was deficient for failing to utilize a
certified translator to
discuss the case and prepare a defense because she only spoke "TexMex Spanish," which he found difficult to understand. 45
In her affidavit to the state habeas corpus court defense
counsel responded that a translator was not necessary because she
spoke Spanish fluently and had done so from an early age because
she was raised in a multi-lingual home on the South Texas border
with
Mexico. 46
Defense
counsel
never
that
indicated
she
had
that
he
extensive
discussions
with Romero,
understand,
and there was no indication that an interpreter was
needed. 47
who
noted
did not
Defense counsel noted further that she employed a native
Spanish speaker as an assistant at her office who would have helped
if a translator was needed. 48
The state habeas corpus court found that defense counsel was
able to effectively communicate with Romero in Spanish and that
Romero never indicated that he did not understand any of their
conversations or the courtroom proceedings such that an interpreter
45
Petition, Docket Entry No. 1, pp. 8-9.
46
Hall Affidavit, Docket Entry No. 15-35, p. 55.
47
Id. at 55-56.
48
Id. at 55.
-18-
was required. 49
contrary,
Because Romero has not offered any evidence to the
the state habeas corpus court's findings of fact are
presumed correct under 28 U.S.C.
§
2254(e) (1).
Romero does not
otherwise allege specific facts demonstrating how his defense was
hampered by any language barrier or the lack of a translator.
conclusory
allegations
of
ineffectiveness
are
His
insufficient
to
demonstrate deficient performance or actual prejudice.
566 F.3d at 540-41.
Because Romero does not demonstrate that he
was denied effective assistance of counsel in the preparation or
presentation of
his
defense,
he
does
not
show that
the
state
court's decision was unreasonable, and he is not entitled to relief
on this claim.
5.
Failure to Request Community Supervision
Romero contends that his defense counsel was deficient for
failing to file a sworn motion with a signed affidavit from him
asking the jury to consider community supervision as an option at
sentencing. 50
The record confirms that a
supervision was made,
request for community
but that the affidavit in support of that
request was not sworn to or signed by Romero. 51
In Texas a defendant is eligible to have the jury recommend
community
supervision
only
if,
before
the
trial
begins,
49
Findings and Conclusions, Docket Entry No. 15-35, p. 80.
50
the
Petition, Docket Entry No. 1, p. 9.
51
Application for Community Supervision From the Jury, Docket
Entry No. 15-3, pp. 26-28.
-19-
defendant files a sworn written motion with the court indicating
that he has not previously been convicted of a felony,
and the
jury, in its verdict, finds that the information in the defendant's
motion is true.
See Tex. Code Crim. Proc. Ann. art. 42.12,
re-codified at Tex. Code Crim. Proc. art. 42A.055(b)
2016) .
Defense
counsel
responded
that
a
timely
§
4(e)
(West Supp.
request
for
community supervision was made and accepted by the trial court, but
that
the
request
supervision . was
reflects
that
ultimately
not
had
available
defense
no
bearing
in Romero's
counsel
filed
a
because
case. 52
request
community
The
for
record
community
supervision on Romero's behalf, without a signed affidavit swearing
that he had no prior felony convictions, before the state filed its
notice
of
intent
to
enhance
the
indictment
for
purposes
of
punishment with allegations that Romero had at least two previous
convictions
that
qualified
as
felony
offenses. 53
Likewise,
a
defendant is not eligible for community supervision based on a
jury's recommendation if he is sentenced to a term of imprisonment
in excess of ten years.
See id. art. 42.12
Tex. Code Crim. Proc. art. 42A.056(1)
§
4(d) (1) recodified at
(West Supp. 2016).
The state habeas corpus court rejected Romero's claim, noting
that any deficiency in counsel's failure to file a sworn motion was
52
Hall Affidavit, Docket Entry No. 15-35, p. 56.
53
See Application for Community Supervision From the Jury,
Docket Entry No. 15-3, pp. 26-28 (filed on May 3, 2013); Notice of
Enhancement, Docket Entry No. 15-5, p. 39 (filed on February 10,
2014) .
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"inconsequential" because Romero had a prior felony conviction and
he
was
sentenced by
the
jury to
a
term exceeding
ten years'
imprisonment,
which excluded him from eligibility for community
supervision. 54
The state court's fact findings are supported by the
record and,
correct.
because they are uncontradicted by Romero,
See 28 U.S.C.
§
2254(e) (1).
presumed
Romero does not demonstrate
that he was eligible for community supervision or that, but for his
defense counsel's failure to make a proper request, the result of
his sentencing proceeding would have been different.
Accordingly,
he does not establish that actual prejudice resulted from the
error, if any, by his counsel.
Romero does not otherwise show that
the state court's decision was unreasonable or wrong, and he is not
entitled to relief on this claim.
C.
Ineffective Assistance of Counsel on Appeal
Finally,
Romero
contends
that
he
was
denied
effective
assistance of counsel on appeal because his attorney raised only
one
ground,
which
had
not
been preserved
"patently frivolous [.] " 55 Noting that
he
for
failed
review
and
was
to propose any
additional points of error that could have been raised, the state
habeas corpus court concluded that Romero failed to establish that
54
Findings and Conclusions, Docket Entry No. 15-35, pp. 80, 81
(citing Tex. Code Crim. Proc. Ann. art. 42.12, § 4 (West Supp.
2016)) .
55
Petition, Docket Entry No. 1, pp. 10, 11.
-21-
his appellate counsel was deficient or that he was prejudiced in
any way. 56
To
establish
that
appellate
counsel's
deficient under the Strickland standard,
performance
was
the defendant must show
that his attorney was objectively unreasonable in failing to find
arguable issues to appeal -
that is,
that counsel unreasonably
failed to discover non-frivolous issues and raise them.
Robbins, 120 S. Ct. 746, 764 (2000).
such
a
showing,
demonstrating
a
then
he
must
"reasonable
appeal."
If the defendant succeeds in
establish
probability"
counsel's deficient performance,
Smith v.
actual
that,
prejudice
but
for
by
his
"he would have prevailed on his
Id.
Romero
does
not
allege
facts
showing
that
his
appellate
attorney had any other meritorious ground for relief to assert on
direct appeal.
Nor does he demonstrate that
the result of his
appeal would have been any different if his attorney had raised any
particular issue.
Romero's conclusory allegations are insufficient
to demonstrate either deficient performance or actual prejudice and
do not articulate a valid claim for relief.
540-41.
See Day, 566 F.3d at
Because Romero has failed to establish a valid claim for
relief, Respondent's MSJ will be granted and the Petition will be
denied.
56
Findings and Conclusions, Docket Entry No. 15-35, pp. 80, 81.
-22-
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 constitutional
right,"
28 U.S.C.
demonstrate
court's
"that
assessment
2253 (c) (2),
§
'reasonable
of
the
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,
-23-
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. 14) is GRANTED.
(Docket
2.
Frelin Armando Romero'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 14th day of September, 2017.
SIM LAKE
UNITED STATES DISTRICT JUDGE
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