Guzman v. Davis
Filing
27
MEMORANDUM OPINION AND ORDER granting 12 MOTION for Summary Judgment with Brief in Support, denying 22 Motion in Opposition, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BARTHOLOMEW ANTONIO GUZMAN,
TDCJ #1399983,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
§
§
§
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-17-0596
MEMORANDUM OPINION AND ORDER
Bartholomew Antonio Guzman has filed a Petition for a Writ of
Habeas Corpus By a Person in State Custody
Entry No. 1) seeking relief under 28 U.S.C.
("Petition")
§
(Docket
2254 from a convic-
tion for causing serious bodily injury to a child.
Pending before
the court are Respondent's Motion for Summary Judgment with Brief
in
Support
("Respondent's
MSJ")
(Docket
Entry
No.
12)
and
Petitioner's Motion in Opposition to Summary Judgment with Brief in
Support ("Petitioner's Opposition")
considering
the
applicable law,
pleadings,
the
(Docket Entry No. 22).
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
Guzman was charged in Harris County case number 1053411 with
causing serious bodily injury to a 17-month old child ("E.A.") . 1
The
indictment
was
enhanced
for
purposes
of
punishment
with
allegations that Guzman had at least two prior felony convictions. 2
At trial the State presented evidence from a pediatric specialist
(Dr. Len Tanaka) and a pediatric ophthalmologist (Dr. Helen MintzHittner)
who examined E.A.
and determined that the little girl
suffered severe brain damage and retinal hemorrhaging consistent
with being violently shaken,
a condition known as
Syndrome, " after she was left in Guzman's care. 3
"Shaken Baby
A jury in the
262nd District Court of Harris County, Texas, found Guzman guilty
as charged and sentenced him to 90 years' imprisonment. 4
On direct appeal Guzman argued that the evidence was factually
insufficient to support his conviction. 5
appeals
rejected
that
argument
after
An intermediate court of
summarizing
the
evidence
presented at trial, as follows:
1
Indictment, Docket Entry No. 13-3, p. 18.
For purposes of
identification, all page numbers refer to the pagination imprinted
by the court's electronic filing system, CM/ECF.
Court Reporter' s Record
No. 13-14, pp. 91-100, 112-16.
3
of
Trial,
vol .
4,
Docket
Entry
4
Judgment of Conviction by Jury, Docket Entry No. 13-4, p. 41.
5
Appellant's Brief, Docket Entry No. 13-1, p. 11.
-2-
E.A. was 17 months old when she was left at home in
appellant's care. E.A.'s mother, Susan Bravo, had taken
one of appellant's children and one of her own
ice-skating, leaving E.A. and appellant's 18-month-old
daughter with appellant.
Unhappy that she was not
allowed to go ice-skating, E.A. cried when Bravo and the
others left.
E.A. could walk, talk, breathe, eat, and
play like other normal toddlers when Bravo left.
When
Bravo returned home around 10: 00 p.m., appellant informed
Bravo that E.A. was sleeping, but had fallen in the tub
earlier in the night.
Appellant took E.A. out of her
room and brought her to the room that he shared with
Bravo. Bravo noticed a red mark on E. A. 's head and noted
that E.A. was "snoring heavily."
Bravo did not try to
wake E.A.
Bravo then showered, and appellant returned
E.A. to her room. Bravo considered appellant's behavior
in taking E.A. out of her room while she was sleeping
unusual because he had never done that before. Appellant
also professed his love to Bravo for the first time that
night.
Before leaving for work the next morning, appellant asked
Bravo if she had checked on the children during the
night.
He also called 20 minutes after leaving to ask
about E.A. Bravo stated that E.A. was not yet awake, but
that she would probably take her to the doctor because of
the fall in the bathtub the previous night.
Appellant
told Bravo not to take E.A. to the doctor because Child
Protective Services would become involved.
Appellant
called again about 40 minutes later and asked about E.A.
Around that time, E.A.'s older sister, J.A., tried to
wake E.A., but was unable to do so.
After trying to
arouse E.A. several times, J.A. saw E.A. having what may
have been a seizure.
A short time later, Bravo called
9-1-1.
The paramedics could not get E.A. to respond to verbal
stimuli. The paramedics noted multiple injuries, including those to E.A.'s forehead, right foot, back, and
buttocks. After examining E .A., Dr. Len Tanaka diagnosed
her with left subdural hemorrhage, or bleeding on the
left side of the brain.
Dr. Tanaka concluded that, in
addition to the injuries noted by the paramedics, E.A.
had bruising to her neck, her pelvic region, her
perineal, and her genitals and had suffered permanent
brain injuries caused by severe and forceful shaking. As
a result, E.A. now requires artificial help to breathe
and to eat.
Dr. Tanaka testified that E.A. would have
-3-
shown the effects of being violently shaken immediately.
Dr. Tanaka's diagnosis was further confirmed by Dr. Helen
Hittner, a pediatric ophthalmologist, who testified that
E.A. suffered retinal hemorrhaging that was caused by a
violent back and forth motion, or intentional shaking.
While in jail, appellant sent multiple letters to Bravo
in which he professed his love and his intent to marry
her.
Appellant repeatedly asked Bravo to give him
another chance and to forgive him. He wrote, "I ask God
everyday to let you forgive me."
Appellant never
indicated for what he sought forgiveness.
Guzman v. State, No. 01-06-00946-CR, 2008 WL 340001, at *1-2 (Tex.
App. -Houston [1st Dist.] Feb. 7, 2008).
Court
of
Criminal
Appeals
discretionary review of
his
refused
factual
Subsequently, the Texas
Guzman's
petition
insufficiency claim.
for
See
Guzman v. State, No. PD-0262-08 (Tex. Crim. App. Sept. 10, 2008).
In his pending Petition Guzman contends that he is entitled to
relief from his conviction for the following reasons:
1.
The prosecution withheld exculpatory evidence
in violation of Brady v. Maryland, 83 S. Ct.
1194 (1963).
2.
The prosecution engaged in misconduct by
failing to inform the
jury that E.A.'s
injuries
could have
been caused by an
accidental fall.
3.
He was denied effective assistance of counsel
because his trial attorney (a)
failed to confer with him or speak to his
family members;
(b)
failed to investigate E.A.'s history of
epilepsy and other falls that could have
explained her injuries;
(c)
failed to interview witnesses;
-4-
(d)
(e)
4.
failed to request funds
to hire a
forensic pathologist to controvert the
State's medical experts; and
failed to present evidence in the form of
letters from Daniel's elementary school
teachers
about
his
"irrational
and
sometimes violent behavior towards the
other children."
He was denied due process when the state court
of appeals used flawed reasoning to reject his
challenge to the sufficiency of the evidence. 6
With the exception of Claims 3 (a)
and 3 (c),
these grounds
for
relief were raised by Guzman in an Application for a State Writ of
Habeas Corpus Under Article 11.07 of the Texas Code of Criminal
Procedure ("State Habeas Application") , 7 and rejected by the Texas
Court of Appeals without a written order based on findings made by
the trial court following an evidentiary hearing. 8
The respondent
moves for summary judgment, arguing that Guzman is not entitled to
relief because Claims 3(a) and 3(c) are procedurally barred, and
his remaining claims lack merit under the governing federal habeas
corpus standard of review.
6
Petition, Docket Entry No. 1, pp. 6-11.
7
State Habeas Application, Exhibit
Docket Entry No. 12-2, pp. 7-17.
See
Separate Memorandum of Law in Support of
Application, Docket Entry No. 17-17, pp.
8
A to Respondent's MSJ,
also Applicant Guzman's
His State Habeas Corpus
25-42.
See Action Taken on Writ No. 75,864-03 (Tex. Crim. App.
Feb. 1, 2017), Docket Entry No. 15-16, p. 1; State's Proposed
Findings of Fact, Conclusions of Law and Order After Remand dated
May 15, 2014, Exhibit E to Respondent's MSJ, Docket Entry No. 12-6,
pp. 1-5; State's Proposed Findings of Fact, Conclusions of Law and
Order After Remand dated Sept. 24, 2015 ("Supplemental Findings and
Conclusions"),
Exhibit F to Respondent's MSJ,
Docket Entry
No. 12-7, pp. 1-14.
-5-
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
determined
28 U.S.C.
United States[.]"
by
2254(d) (1).
presents a question of fact,
§
the
clearly established
Supreme
Court
Likewise,
of
the
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.
"A
§
28
2254 (d) (2).
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."
(5th Cir. 2015)
able
(citations omitted).
application of"
court's
holding
Matamoros v. Stephens, 783 F.3d 212, 215
"must
To constitute an "unreason-
clearly established federal
be
law,
objectively unreasonable,
not
a
state
merely
wrong; even clear error will not suffice."
Woods v. Donald, 135
S.
Woodall,
Ct.
1372,
1376
(2015)
(quoting White v.
-6-
134 S.
Ct.
1697, 1702 (2014)).
"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
deferential
[which]
rulings, '
standard
'demands
state-court decisions be given the benefit of the doubt.'"
v. Lett, 130
for
that
Renico
s. Ct. 1855, 1862 (2010) (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.5
(1979)
(quoting Jackson v. Virginia,
not
a
Richter,
99 S. Ct.
2781,
(Stevens, J., concurring)).
A state court's factual determinations are also entitled to
deference on federal habeas corpus review.
"presumed
findings
§
to
with
2254 (e) (1) .
be
correct"
"clear
and
unless
Findings of fact are
the
petitioner
convincing
evidence."
rebuts
28
those
u.s.c.
This presumption of correctness extends not only to
express factual findings, but also to the state court's implicit
findings.
2006)
See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir.
(citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005);
-7-
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]
would have
reached a different conclusion in the first instance.'"
Brumfield
v. Cain, 135 S. Ct. 2269, 2277 ( 2015)
(quoting Wood v. Allen, 130
S. Ct. 841, 849 (2010)).
2254 (d) (2) requires that [a
"Instead,
§
federal court] accord the state trial court substantial deference."
III.
A.
Discussion
Suppression of Evidence
In
his
first
ground
for
relief
prosecution violated his
right
Maryland,
( 1963) ,
83 S.
Ct.
impeachment evidence.
1194
to
due
Guzman
claims
process
under
that
the
Brady v.
by suppressing exculpatory or
He apparently references statements that
were part of a Child Protective Services Investigation Report (the
"CPS Report")
(Docket Entry No. 17-17), which were the subject of
his claim on state habeas review.
contained
statements
showing
9
that
He argues that the CPS Report
E.A. 's
mother,
Susan Bravo,
lacked credibility and that investigators concluded that he had not
engaged in any wrongdoing. 10
9
State Habeas Application,
Docket Entry No. 12-2, p. 7.
10
Exhibit A to
Respondent's
MSJ,
Petitioner's Opposition, Docket Entry No. 22, pp. 16-19.
-8-
In Brady the Supreme Court held that the government violates
due process when it fails to disclose evidence favorable to the
accused
if
such
punishment,
evidence
is
"material
either
to
guilt
or
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
establish
to
a
v.
Bagley,
Brady
s.
violation
Ct.
a
105
defendant
3375,
3380
must
(1985).
prove
See
To
that:
(1) evidence was withheld or suppressed by the prosecutor, either
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.
The CPS Report is in the state court record, 11 along with an
assortment of other documents from CPS and the Texas Department of
Family and Protective Services.
investigators
concluded
that
E.A.
According to
sustained
the CPS Report,
"extreme
physical
abuse" that was not consistent with a fall and was inflicted either
11
CPS Report, Docket Entry No. 17-17, pp. 79-96.
-9-
by Susan Bravo or Guzman. 12
Investigators noted that Guzman's own
children, Daniel and Milagro, disclosed no abuse or neglect, and it
could not be determined whether they had been abused. 13
Guzman does not point with particularity to any part of the
CPS Report that he claims is exculpatory or beneficial in terms of
impeachment value.
CPS
Report
was
More importantly, Guzman has not shown that the
suppressed.
Defense
counsel
testified
at
the
hearing on Guzman's State Habeas Application that he saw the CPS
Report
when he
reviewed the prosecutor's
available to him before trial. 14
file,
which was made
Defense counsel used his notes
from reviewing the CPS Report at trial to cross-examine E.A.'s
mother about untrue statements that she made to CPS during the
investigation. 15
The
record confirms
that
defense
counsel
had
reviewed a copy of the CPS Report because he cross-examined E.A.'s
mother
about
Defense
counsel
examining
12
the
CPS
statements
also
she
referred
to
gave
to
the
CPS
Investigator Juan Barnel,
CPS
who
investigators . 16
Report
when
admitted
cross-
that
the
Id. at 96.
14
Court Reporter' s Record of Writ Hearing, vol. 2, Docket Entry
No. 16-16, p. 28; Court Reporter's Record of Writ Hearing, vol. 3,
Docket Entry No. 16-17, p. 41.
15
Court Reporter' s Record of Writ Hearing, vol . 5, Docket Entry
No. 16-19, pp. 6-12, 21.
16
Court Reporter' s Record of Trial, vol . 4, Docket Entry
No. 13-14, pp. 79-80; Court Reporter's Record of Trial, vol. 5,
Docket Entry No. 13-15, pp. 7-10, 13, 26-27.
-10-
investigation did not disclose evidence that Guzman's own children
had been abused. 17
The state habeas corpus court found that defense counsel's
testimony at the evidentiary hearing was "true and credible. " 18
The
Fifth Circuit has emphasized that "[a]
trial court's credibility
determinations
conflicting
made
on
the
basis
of
evidence
are
entitled to a strong presumption of correctness and are 'virtually
unreviewable' by the federal courts."
782,
792
effort
(5th Cir.
to
2005)
challenge
any
Pippin v. Dretke, 434 F.3d
(citations omitted).
of
the
fact
Guzman makes no
findings
or
credibility
determinations made by the state habeas corpus court, and he does
not otherwise show that the prosecution suppressed the CPS Report.
See,
e.g.,
United States v.
Agurs,
96 S.
Ct.
2392,
2397
(1976)
(Clarifying that the Brady rule applies to information that was
"known
to
the
prosecution but
unknown
to
the
defense"
during
trial.); United States v. Brown, 650 F.3d 581, 588 (5th Cir. 2011)
(Evidence is not suppressed "'if the defendant knows or should know
of the essential facts that would enable him to take advantage of
it.'").
Based on this record, Guzman has failed to show that the
state habeas corpus court contravened Brady by summarily denying
relief on this claim.
Accordingly, the respondent is entitled to
summary judgment on this claim.
17
Court Reporter's
No. 13-15, pp. 56-62.
Record
of
18
Trial,
vol.
Supplemental
Findings
and Conclusions,
Respondent's MSJ, Docket Entry No. 12-7, p. 4.
-11-
5,
Docket
Exhibit
Entry
F
to
B.
Prosecutorial Misconduct
Guzman argues that the prosecutor engaged in misconduct by
failing to tell the
jury that E .A.'s
injuries could have been
caused by an accidental fall in the bathtub or down the stairs. 19
The state habeas corpus court summarily rejected this claim, and
the respondent argues that it is without merit because there was no
evidence
that
E. A. 's
injuries
were
caused
by
a
fall.
20
The
respondent points to the trial testimony of the State's experts,
Dr.
Tanaka and Dr.
Mintz-Hittner,
who also provided affidavits
during the state habeas corpus proceeding. 21
Both of these experts,
who are pediatric specialists, examined E.A. and determined that
she sustained severe brain damage and retinal hemorrhaging that was
consistent
intentional
with
being
manner. 22
violently
In
other
shaken
words,
consistent with Shaken Baby Syndrome. 23
back
and
E.A.'s
forth
injuries
in
an
were
Both experts testified at
trial that her injuries were not consistent with an accidental fall
19
Petition, Docket Entry No. 1, pp. 14-15.
20
Respondent's MSJ, Docket Entry No. 12, p. 17.
21
Id.; see also Affidavit of Helen Mintz-Hittner, M.D., Docket
Entry No. 12-3, pp. 2-4; Affidavit of Len Tanaka, M.D., Docket
Entry No. 12-4, pp. 2-4.
22
Court Reporter's Record
No. 13-14, pp. 91-100, 112-16.
23
of
Id. at 95-96, 111, 115-16.
-12-
Trial,
vol.
4,
Docket
Entry
in the bathtub or a fall down the stairs of the sort described by
Guzman. 24
Guzman takes issue with the "one-sided presentation" of this
evidence to the
jury and accuses
the prosecutor of
improperly
disregarding "reputable scientific and medical evidence" calling
the State's theory into question. 25
from Dr.
John Plunkett,
a
Guzman points to an affidavit
forensic pathologist who opines that
E.A. 's head injury was caused by a
low-velocity impact as the
result of a short-distance fall in the bathtub. 26
The state habeas
corpus court found that Dr. Plunkett's affidavit was "not credible
and carried no evidentiary value" for a number of reasons, 27 based
on "undisputed facts" showing that:
(a)
Dr.
Plunkett
never
personally
examined
the
complainant unlike the complainant's treating physicians,
Dr.
Helen
Mintz-Hittner
and
Dr.
Len
Tanaka;
(b) Dr. Plunkett's affidavit only generally addressed the
complainant's
symptoms
of
subdural
and
retinal
hemorrhaging; and (c) Dr. Plunkett failed to address the
types and locations of the retinal hemorrhages which
indicated multiple,
forceful back-and-forth shaking
motions [as reflected in Dr. Mintz-Hittner's affidavit]
as well as (i) the substantial, unexplained "fresh"
bruising
throughout
the
complainant's
body
and
(ii)
bruising to the deep central parts of the
complainant's brain [thalami and basal ganglia] which
24
Id. at 96, 100, 106-07, 118-19, 127-31.
25
Petition, Docket Entry No. 1, pp. 14-15.
26
Affidavit of John Plunkett, M.D., Exhibit E to Petitioner's
Opposition, Docket Entry No. 22-2, p. 23.
27
Supplemental
Findings
and Conclusions,
Respondent's MSJ, Docket Entry No. 12-7, p. 11.
-13-
Exhibit
F
to
required substantial traumatic force to reach these deep,
central brain areas (as reflected in Dr. Tanaka's
affidavit] . 28
Guzman does not present any evidence to rebut the state habeas
corpus
court's
findings,
show
credibility
determination
which are presumed correct,
that
these
interpretation
findings
of
the
record.
See
any
of
its
fact
and he does not otherwise
based
are
or
28
on
an
U.S.C.
unreasonable
§§
2254 (d) (2),
2254 (e) (1).
More importantly, Guzman cites no authority in support of his
claim
that
the
prosecutor
engaged
presentation of the State's case. 29
in
misconduct
during
her
A prosecutor may not knowingly
suborn perjury, present false evidence, or allow false testimony to
go uncorrected at trial,
see Giglio v. United States,
92 S. Ct.
763, 765-66 (1972), and Napue v. People of the State of Illinois,
79 S. Ct. 1173, 1177 (1959).
But a prosecutor is not required to
present
of
evidence
in
appears to suggest.
court's
decision
unreasonable
precedent,
u.s.c.
28
§
to
support
the
defense's
case,
as
Because Guzman has not shown that the state
reject
application
of
this
claim was
clearly
contrary
established
(d)
to
Supreme
he is not entitled to relief on this claim.
2254
Guzman
or
an
Court
See 28
(1).
Id. at 12.
29
Petition, Docket Entry No. 1, pp. 11, 14-15; Petitioner's
Opposition, Docket Entry No. 22, pp. 19-25.
-14-
C.
Ineffective Assistance of Counsel
On state habeas corpus review Guzman claimed that his defense
counsel
(Gerardo Harry Gonzales)
was ineffective for failing to
adequately investigate or hire a
defense expert to contest the
State's theory of Shaken Baby Syndrome by presenting evidence that
E.A.'s injuries could have been caused by a fall.
30
Guzman also
claimed that defense counsel was ineffective for failing to present
evidence showing that his son Daniel was physically aggressive and
could have caused E. A. 's injuries. 31
the
state
habeas
court,
These claims were rejected by
which made
detailed
findings
following an evidentiary hearing on these issues. 32
of
fact
For the first
time on federal review Guzman also claims that his defense counsel
was ineffective for failing to consult with him or members of his
family and for failing to interview witnesses. 33
Claims for ineffective assistance of counsel are governed by
the standard announced 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.
30
State Habeas Application,
Docket Entry No. 12-2, pp. 8-9.
31
Exhibit A to Respondent's MSJ,
Id. at 9-10.
32
Supplemental
Findings
and
Conclusions,
Exhibit
Respondent's MSJ, Docket Entry No. 12-7, pp. 5-13.
33
Id. at
Petition, Docket Entry No. 1, pp. 6, 9-10.
-15-
F
to
2064.
"Unless a defendant makes both showings, it cannot be said
that
the
conviction
resulted
from
a
breakdown
adversary process that renders the result unreliable."
"To satisfy the deficient performance prong,
in
the
Id.
'the defendant
must show that counsel's representation fell below an objective
standard of reasonableness.'"
(5th Cir. 2014)
Hoffman v. Cain, 752 F.3d 430, 440
(quoting Strickland, 104 S. Ct. at 2064).
This is
a "highly deferential" inquiry; "[t]here is 'a strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance.'"
Id.
(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
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
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) .
-16-
A petitioner claiming ineffective assistance of counsel faces
a high bar on federal
habeas
review.
To the extent that his
ineffective-assistance claims were rejected by the state court, the
issue is not whether "'the state court's determination' under the
Strickland standard 'was incorrect but whether that determination
was unreasonable- a substantially higher threshold.'"
Mirzayance, 129 S. Ct. 1411, 1420 (2009)
Knowles v.
(citation omitted).
In
addition, "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 of
deferential"
ineffective-assistance
on habeas
corpus
review.
claims
Id.
at
is
1413;
"doubly
see also
Richter, 131 S. Ct. at 788 (emphasizing that the standards created
by Strickland and
"'doubly'
§
are both "highly deferential,"
so" when applied in tandem)
omitted); Beatty v.
(same).
2254 (d)
Stephens,
and
(citations and quotations
759 F.3d 455,
463
(5th Cir.
2014)
None of Guzman's allegations of ineffective assistance,
which are discussed separately below,
are sufficient to warrant
relief under this standard.
1.
In
Failure to Investigate or Hire a Defense Expert
two
related
grounds
Guzman
contends
that
his
defense
counsel was deficient for failing to investigate whether E.A.'s
injuries could have been caused by other means, such as a fall in
-17-
the bathtub as the result of an epileptic seizure or a fall down
the stairs. 34
Guzman argues further that his counsel should have
hired a medical expert to present evidence of this theory and to
counter testimony from the State's expert witnesses, who diagnosed
E.A. with Shaken Baby Syndrome. 35
affidavit from Dr.
In support, Guzman points to the
Plunkett and his theory that E.A.'s injuries
could have been sustained by a low-velocity impact as the result of
falling in the bathtub. 36
In his affidavit to the state habeas corpus court defense
counsel
stated
that
he
did
not
conduct
any
investigation
to
determine whether the injuries were caused by an accidental fall
because it was evident that the injuries were caused "by someone
shaking the baby violently. " 37
court
evidentiary
investigation
or
Counsel elaborated during the state
hearing
that
hire
medical
a
he
did
not
expert
information provided to him by Guzman,
pursue
additional
because,
based
on
he elected to pursue a
defense at trial showing that Guzman was not present when E.A. was
hurt and did not know how she sustained the injuries. 38
34
Part of
Petition, Docket Entry No. 1, p. 9.
3sid.
36
Petitioner's Opposition, Docket Entry No. 22, pp. 27-28.
37
Affidavi t
from Gerardo Harry Gonzales,
Respondent's MSJ, Docket Entry No. 12-5, pp. 2-3.
38
Exhibit
D
to
Court Reporter's Record of Writ Hearing, vol. 2, Docket Entry
No. 16-16, p. 24; Court Reporter's Record of Writ Hearing, vol. 3,
Docket Entry No. 16-17, pp. 40-41; Court Reporter's Record of Writ
Hearing, vol. 4, Docket Entry No. 16-18, pp. 14-17.
-18-
this strategy was to discredit Susan Bravo with prior inconsistent
statements to CPS and to indirectly suggest that another party,
such as
Bravo or Guzman's
injuries. 39
son,
Daniel,
could have
caused the
Defense counsel explained that he saw no reason to
investigate E.A.'s history of epilepsy because it did not fit with
Guzman's chosen defensive strategy. 40
When confronted with Dr. Plunkett's affidavit, which concluded
that E. A. 's
injuries
could have been caused by a
impact as the result of a
short-distance fall,
low-velocity
defense counsel
stated that he did not believe it would have made a difference if
he had presented this evidence at trial. 41
court
agreed,
finding
that
Dr.
The state habeas corpus
Plunkett's
affidavit
was
not
credible and lacked evidentiary value for reasons set forth above. 42
The state habeas corpus court also concluded that, if Dr. Plunkett
had testified, it was "not reasonably probable that the jury would
have
rejected
the
expert
opinions
of
Dr.
Mintz-Hittner
and
Dr. Tanaka and accepted Dr. Plunkett's expert opinion in order to
acquit
[Guzman] . " 43
The
state
habeas
corpus
court
concluded,
39
Court Reporter's Record of Writ Hearing, vol. 5, Docket Entry
No. 16-19, pp. 73, 86-87, 89.
40
Id. at 126-27.
41
Id. at 95.
42
Supplemental
Findings
and Conclusions,
Respondent's MSJ, Docket Entry No. 12-7, p. 11.
43
ld. at 12.
-19-
Exhibit
F
to
therefore, that defense counsel was not objectively deficient for
failing to investigate or present evidence from Dr. Plunkett that
E.A.'s injuries were the result of an accidental fall, nor was he
prejudiced by the purportedly deficient conduct. 44
Guzman offers nothing to rebut the presumption of correctness
that attaches to the trial court's fact findings or credibility
determinations, which were made after an evidentiary hearing on his
ineffective-assistance
claims.
See
Pippin,
434
F. 3d at
7 92.
Guzman does not allege facts showing that his counsel's failure to
hire an expert or his chosen trial strategy was unreasonable.
conscious
and
informed decision on
trial
tactics
" [A]
and strategy
cannot be the basis for constitutionally ineffective assistance of
counsel unless it is so ill chosen that it permeates the entire
trial with obvious unfairness."
(5th Cir. 2011)
Pape v. Thaler, 645 F.3d 281, 291
(citation and internal quotation marks omitted).
Considering the detailed testimony by the State's experts and the
severe nature of E.A.'s injuries, Guzman also fails to show that
the
result
would have
been different
if
he
had presented the
proposed testimony from Dr. Plunkett or if he had pursued another
strategy at trial.
Based on this record Guzman fails to show that
the
decision
state
court's
unreasonable.
Therefore,
to
deny
relief
on
this
claim was
the respondent is entitled to summary
judgment on these claims.
44Id.
-20-
2.
Failure to Present Evidence
Guzman claims that his defense counsel was deficient because
he failed to present evidence of an alternative suspect, namely,
Guzman's son Daniel. 45
In particular, Guzman refers to letters from
Daniel's elementary school teachers about his aggressive behavior
with other children. 46
Defense counsel testified during the evidentiary hearing that
at
Guzman's
injuries
request
were
he
caused by
explored
the
Susan Bravo
possibility
or
by
his
that
E.A.'s
Daniel. 47
son,
Defense counsel acknowledged that Guzman gave him some letters from
Daniel's elementary school showing that Daniel slapped or hit other
students
on
at
least
three
occasions
and
that
he
acted
out
physically. 48 As a result defense counsel considered whether Daniel
could have caused E.A.'s injuries, 49 and pursued a defensive theory
suggesting that Daniel could have been an alternative suspect. 50
The record reflects that defense counsel established through
cross-examination
of
Susan
Bravo
that
45
acted
out
in
Petition, Docket Entry No. 1, p. 9.
46
Daniel
Id. at 9-10.
47
Court Reporter's Record of Writ Hearing, vol. 2, Docket Entry
No. 16-16, p. 25; Court Reporter's Record of Writ Hearing, vol. 3,
Docket Entry No. 16-17, pp. 62-66.
48
Court Reporter' s Record of Writ Hearing, vol. 4, Docket Entry
No. 16-18, pp. 8-11.
49
Id. at 10-11.
°Court Reporter' s Record of Writ Hearing, vol . 5, Docket Entry
No. 16-19, pp. 73, 85-89.
5
-21-
aggressive ways and was alone with E.A.
taken to the hospital. 51
on the morning she was
He presented testimony from a
defense
witness who worked as Guzman's nanny (Maria Camarillo) that Daniel
was physically aggressive and that she saw Daniel hit and push the
other children in the household,
including E.A. 52
Guzman also
testified on his own behalf that Daniel was "hyper" and that he was
"sometimes" aggressive toward Susan Bravo's children. 53
At the evidentiary hearing defense counsel conceded that he
had
subpoenaed
teachers
from
Daniel's
elementary
school
and
Daniel's pediatrician (Dr. Hanby), but that he did not call them as
witnesses. 54
Defense counsel explained that he did not want Guzman
to blame Daniel during trial because he
thought
it would make
Guzman look like a "jerk" for blaming his own son. 55
The record
reflects that defense counsel's instincts were accurate and that
the evidence about Daniel's aggressive nature proved to be doubleedged.
The jury heard evidence that Daniel was only four years old
when E.A. was severely injured in February of 2005. 56
At 38 pounds,
51 Court Reporter's Record of
No. 13-14, pp. 62-63, 65, 68, 73.
Trial,
vol.
4,
Docket
Entry
52 Court Reporter's
No. 13-15, pp. 71-73.
Trial,
vol.
5,
Docket
Entry
Record
of
53Id. at 97, 105.
54 Court Reporter's Record of Writ Hearing, vol. 5, Docket Entry
No. 16-19, pp. 118-19, 140-42.
55 Court Reporter' s Record of Writ Hearing, vol. 5, Docket Entry
No. 16-19, p. 89.
56 Court Reporter' s
No. 13-15, p. 78.
Record
of
-22-
Trial,
vol .
5,
Docket
Entry
he outweighed E.A. by only 10 pounds,
57
have lifted or violently shaken her.
meaning that he could not
The prosecutor ridiculed
Guzman on cross-examination and during her summation for attempting
to create a "rabbit trail" by implicating his four-year-old son in
a shameless effort to deflect blame away from himself. 58
Because
already
evidence
before
the
about
jury,
Daniel's
Guzman
aggressive
fails
to
show
behavior
that
was
defense
counsel's strategic decision not to present more of the same was
deficient.
Defense counsel is not deficient for failing to present
evidence that is duplicative or double-edged.
179
F.3d 352,
358
(5th Cir.
1999).
See Lamb v. Johnson,
Likewise,
Guzman has not
demonstrated that the outcome of his trial would have been any
different if his defense counsel had presented additional evidence
of his son's aggressive nature.
Based on this record Guzman's
allegations
overcome
are
insufficient
to
the
presumption
that
counsel's decision not to present the additional evidence was sound
trial strategy.
See Strickland, 104 S. Ct. at 2065.
Guzman does
not otherwise demonstrate that the state habeas corpus court's
decision to deny relief on this claim was objectively unreasonable.
Therefore, the respondent is entitled to summary judgment on this
claim.
57
Id. at 125.
58
Id. at 125-26, 150.
-23-
3.
Guzman's Remaining Ineffective-Assistance Claims are
Procedurally Barred and, Alternatively, Without Merit
Although Guzman raised several
allegations
of
ineffective
assistance on state habeas review, the record reflects that he did
not include a claim that his counsel failed to confer with him or
his family and he did not include a claim that counsel failed to
interview witnesses. 59
these
claims
As a result,
unexhausted. 60
are
the respondent argues that
See
(requiring a petitioner to exhaust all
28
u.s.c.
2254(b) (1)
§
"remedies available"
in
state court before seeking federal habeas review) ; see also Jones
v. Jones, 163 F.3d 285, 296-98 (5th Cir. 1998)
(holding that where
a petitioner lodges multiple claims for ineffective assistance of
counsel each distinct allegation of ineffective assistance must be
exhausted) .
By failing to exhaust state court remedies when he had
an opportunity to do so, the respondent argues further that these
claims are barred by the doctrine of procedural default. 61
Guzman
could have,
but
did
ieffective-assistance
claims
on
Because a
state
successive
not,
state
habeas
present
habeas
corpus
his
unexhausted
corpus
review.
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
59
State Habeas Application,
Docket Entry No. 12-2, pp. 8-10.
Exhibit A to Respondent's MSJ,
60
Respondent's MSJ, Docket Entry No. 12, pp. 11-12.
61
Id. at 13-14.
-24-
procedural ground that bars federal review of Guzman's unexhausted
ineffective-assistance claims unless an exception applies.
Finley v.
Johnson,
Fearance v.
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'
prohibition
on
successive
writs,
were
procedurally defaulted).
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).
offered any explanation or cause for his default.
Guzman has not
Guzman likewise
fails to establish prejudice or show that his default will result
in a fundamental miscarriage of justice because he has not provided
evidence
that
innocence."
would
support
a
"colorable
showing
of
factual
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 claim considered on the
merits")
Guzman's
failure
(citation omitted).
unexhausted
to
claims
The court concludes, therefore, that
concerning
confer with him or
his
-25-
his
family
counsel's
and
his
alleged
failure
to
interview witnesses
default.
are
barred
by
the
doctrine
of
procedural
The respondent is entitled to summary judgment on these
claims.
Alternatively,
Guzman's
unexhausted
allegations
of
ineffectiveness are insufficient to state a valid claim for relief.
Defense counsel testified at the state evidentiary hearing that he
consulted with Guzman during the preparation of his defense, that
he discouraged Guzman from testifying, and that he also consulted
with members of Guzman's family.
62
Guzman's mother and brother
testified as defense witnesses at the trial. 63
identify
any
other
witnesses
that
defense
Guzman does not
counsel
could
have
interviewed and he does not allege facts showing that additional
consultation with him or his family members would have changed the
outcome. 64
His
conclusory
allegations
are
insufficient
to
demonstrate deficient performance or actual prejudice.
566 F.3d at 540-41; see also Collier v. Cockrell, 300 F.3d 577, 587
(5th
Cir.
2002)
('"This
Court
has
made
clear
that
conclusory
allegations of ineffective assistance of counsel do not raise a
constitutional issue in a
federal habeas proceeding.'")
Miller v. Johnson, 200 F.3d 274, 282
(5th Cir. 2000)).
62
(citing
For this
See Court Reporter's Record of Writ Hearing, vol. 5, Docket
Entry No. 16-19, pp. 103-05, 125-26.
63
Id. at 80-88.
64
Petition, Docket Entry No. 1, pp. 6, 9-10.
-26-
additional
reason,
Guzman
is
not
entitled
to
relief
on
his
unexhausted ineffective-assistance claims.
D.
Due Process on Direct Appeal
Finally, Guzman contends that he was denied due process when
the state court of appeals used "flawed" reasoning to reject his
challenge to the factual sufficiency of the evidence. 65
Guzman
argues that the State's evidence of Shaken Baby Syndrome was "too
weak"
jury's
verdict. 66
to
support
the
arguments
in his
petition for
Guzman raised similar
discretionary review,
which was
summarily rejected by the Texas Court of Criminal Appeals. 67
Because
evidence,
Guzman
challenges
his claim concerns
the
factual
the
issues of state law that are not
actionable on federal habeas review.
F.3d 353, 358 (5th Cir. 2002).
sufficiency of
See Woods v. Cockrell, 307
A federal habeas corpus court does
not sit as a "super state supreme court" to review issues decided
by state courts on state law grounds.
See Montgomery v. Cockrell,
32 F. App'x 126, 2002 WL 334631, at *2 (5th Cir. 2002); Porter v.
Estelle, 709 F.2d 944, 957 (5th Cir. 1983); Martin v. Wainwright,
428 F.2d 356, 357 (5th Cir. 1970).
A federal habeas corpus court
reviewing a petition under 28 U.S.C.
65
2254 asks only whether a
Id. at 11, 12-13.
66
§
Id. at 13.
67
Appellant's Petition for Discretionary Review, Docket Entry
No. 13-8, pp. 1-18.
-27-
constitutional violation infected the petitioner's state trial.
See Estelle v. McGuire, 112 S. Ct. 475, 480
(1991); Pemberton v.
Collins, 991 F.2d 1218, 1223 (5th Cir. 1993).
Because Guzman's challenge to the factual sufficiency of the
evidence does not implicate a constitutional violation, it does not
afford a basis for relief on federal habeas review. 68
Accordingly,
the respondent is entitled to summary judgment on this claim.
Because Guzman has failed to establish any valid claim for
relief, Respondent's Motion for Summary Judgment will be granted
and Petitioner's Motion in Opposition will be denied.
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
68
constitutional
0n habeas corpus review of a state court conviction, a
challenge to the sufficiency of the evidence is governed by Jackson
v. Virginia, 99 S. Ct. 2781 (1979), which reflects the federal
constitutional due process standard. See In re Winship, 90 S. Ct.
1068, 1073 (1970) ("[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. II) .
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 essential elements of the crime beyond a reasonable
doubt.
Jackson, 99 S. Ct. at 2789 (emphasis in original) . Guzman
did not challenge the legal sufficiency of the evidence in state
court, and he does not attempt to do so on federal habeas review.
Therefore, the court does not consider this issue further.
11
-28-
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,
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.
-29-
v.
Conclusion and Order
The court ORDERS as follows:
1.
Respondent's Motion for Summary Judgment (Docket
Entry No. 12) is GRANTED and Petitioner's Motion in
Opposition to Summary Judgment
(Docket Entry
No. 22) is DENIED.
2.
Bartholomew Antonio Guzman'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 February, 2018.
LAKE
UNITED STATES DISTRICT JUDGE
-30-
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