Mejia v. Stephens

Filing 57

ORDER ADOPTING PORTIONS OF MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS, DEEMING PETITION A SUMMARY JUDGMENT MOTION, AND WIHDRAWING REFERENCE Magistrate Judges Report and Recommendation [Doc. #54] is ADOPTED in part and Respondents Amended Mot ion for SummaryJudgment [Doc. # 47] is GRANTED in part. Summary judgment is granted toRespondent on Petitioners claims that (i) Petitioner was denied due process by theStates alleged concealment of its promises not to prosecute witnesses and its alle gedthreats against witnesses; (ii) Petitioners trial counsel rendered ineffective assistanceof counsel for failure to examine the States witnesses about promises of immunityfrom prosecution or threats against them; (iii) Petitioner was constructively deniedcounsel on direct appeal; and (iv) Petitioners trial counsel rendered ineffectiveassistance at the punishment phase for failure to investigate Petitioners juvenilecriminal record. It is further4 (...continued)that trial counsel was ineffective for failure to call Marcus Mejia to the witness stand.The Court declines to adopt the Report and Recommendation on this point, and theparties may address these issues in their supplemental briefing.P:\ORDERS.Prsnr\2013\V47.wpd 170525. 1147 4ORDERED that, regarding the remaining issues (ineffective assistance ofcounsel for failure to call Marcus Mejia as a witness, for counsels failure to disclosea direct conflict of interest, and for counsels failure to request jury instructions o nlesser-included offenses), the Court deems the Petition [Doc. # 45] a motion forsummary judgment upon which the Court may grant relief. The parties may submitsupplemental briefing limited to these issues on or before June 7, 2017, and may filerespon ses on or before June 16, 2017. It is furtherORDERED that the Court hereby WITHDRAWS the reference of thisproceeding to United States Magistrate Judge John Froeschner. This Court willadjudicate all pending and future matters. Courtesy copies of all documents filedhereafter must be provided promptly to the undersigned.SIGNED at Houston, Texas, this 25th day of May, 2017.(Signed by Judge Nancy F Atlas) Parties notified.(sashabranner, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
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Petitioner,
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v.
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LORIE DAVIS, Director,
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Texas Department of Criminal Justice - §
Correctional Institutions Division,
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Respondent.
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May 25, 2017
David J. Bradley, Clerk

DAVID MEJIA,
TDCJ # 863486,

CIVIL ACTION NO. 6:13-CV-47

ORDER ADOPTING PORTIONS OF MAGISTRATE JUDGE’S REPORT
AND RECOMMENDATION, DEEMING PETITION A SUMMARY
JUDGMENT MOTION, AND WITHDRAWING REFERENCE
In this habeas case, United States Magistrate Judge John Froeschner issued a
Report and Recommendation [Doc. # 54] on March 14, 2017, recommending that
Respondent Davis’s Amended Motion for Summary Judgment [Doc. # 47] be granted
in part and denied in part. The Report and Recommendation recommended denying
summary judgment to Respondent on two of Petitioner Mejia’s claims: (1) that trial
counsel was ineffective for failure to call Petitioner’s brother, Marcus Mejia, as a
witness, and (2) that trial counsel was ineffective for failure to request jury
instructions on lesser-included offenses. On all other issues raised by Petitioner, the
Report and Recommendation recommended granting summary judgment in favor of

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Respondent.
Respondent Davis timely filed Objections [Doc. # 56] to the Report and
Recommendation. Petitioner did not file objections.
The Court has reviewed the Report and Recommendation, as well as
Respondent’s Objections, the parties’ submissions, all matters of record, and
applicable legal authorities. See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1).
Neither party has filed objections to the Recommendations that summary judgment
be granted to Respondent on four of Petitioner’s claims: (i) that Petitioner was denied
due process by the State’s alleged concealment of its promises not to prosecute
witnesses and its alleged threats against witnesses; (ii) that Petitioner’s trial counsel
rendered ineffective assistance of counsel for failure to examine the State’s witnesses
about promises of immunity from prosecution or threats against them; (iii) that
Petitioner was constructively denied counsel on direct appeal1; and (iv) that
Petitioner’s trial counsel rendered ineffective assistance at the punishment phase for
failure to investigate Petitioner’s juvenile criminal record.2 After careful review, the
1

Mejia withdrew this claim in his summary judgment response. See Doc. # 51, at 1617 n.5.

2

“It is reasonable to place upon the parties the duty to pinpoint those portions of the
magistrate’s report that the district court must specially consider.” Nettles v.
Wainwright, 677 F.2d 404, 410 (5th Cir. 1982), overruled on other grounds by
Douglass v. United States Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996). “Parties filing
objections must specifically identify those findings objected to. Frivolous, conclusive
(continued...)

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2

Court determines that Petitioner has not demonstrated a genuine issue of material fact
on these issues, and thus that the Report and Recommendation should be adopted as
to these four claims.3
As for the portions of the Report and Recommendation to which Respondent
specifically objected, the Court currently is conducting a de novo review. See FED.
R. CIV. P. 72(b); 28 U.S.C. § 636(b)(1); Funeral Consumers Alliance, Inc. v. Serv.
Corp. Int’l, 695 F.3d 330, 347 (5th Cir. 2012). Several claims remain pending before
this Court, in particular, whether Petitioner’s trial counsel was ineffective for failure
to call Marcus Mejia to the witness stand, for failing to disclose a direct conflict of
interest resulting from trial counsel’s simultaneous representation of Marcus Mejia in
a separate juvenile proceeding,4 and for failure to request jury instructions regarding
2

(...continued)
or general objections need not be considered by the district court.” Id. at 410 n.8;
accord United States v. Carrillo-Morales, 27 F.3d 1054, 1061 (5th Cir. 1994).

3

As noted in the Report and Recommendation, this Court denied Petitioner’s request
for discovery, holding that Petitioner had not made a sufficient showing under
statutory authority, case law, and Habeas Rule 6. See Order [Doc. # 38]. The Court
noted that the ruling did not preclude authorization of investigative funds, and stayed
the case for six months to permit appointed counsel to conduct an investigation.
Mejia subsequently was granted investigative funds. Nevertheless, Petitioner has
failed to present any additional evidence or argument in support of the four claims
above.

4

The Court is reviewing the statement in the Report and Recommendation, at 21, that
“it appears the allegations [regarding trial counsel’s conflict of interest] raise a new
and independent claim which is time-barred,” as well as Petitioner’s arguments that
the claim regarding the conflict of interest “relates back” to Petitioner’s earlier claim
(continued...)

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lesser-included offenses. The Court now notifies the parties that, on those three
issues, the Court deems the Petition [Doc. # 45] a summary judgment motion filed by
Petitioner. While the prior briefing on these claims is extensive, the parties are
permitted to submit supplemental briefing on these issues on or before June 7, 2017,
and may file responsive briefs on or before June 16, 2017.
It is therefore
ORDERED that the Magistrate Judge’s Report and Recommendation [Doc. #
54] is ADOPTED in part and Respondent’s Amended Motion for Summary
Judgment [Doc. # 47] is GRANTED in part. Summary judgment is granted to
Respondent on Petitioner’s claims that (i) Petitioner was denied due process by the
State’s alleged concealment of its promises not to prosecute witnesses and its alleged
threats against witnesses; (ii) Petitioner’s trial counsel rendered ineffective assistance
of counsel for failure to examine the State’s witnesses about promises of immunity
from prosecution or threats against them; (iii) Petitioner was constructively denied
counsel on direct appeal; and (iv) Petitioner’s trial counsel rendered ineffective
assistance at the punishment phase for failure to investigate Petitioner’s juvenile
criminal record. It is further

4

(...continued)
that trial counsel was ineffective for failure to call Marcus Mejia to the witness stand.
The Court declines to adopt the Report and Recommendation on this point, and the
parties may address these issues in their supplemental briefing.

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ORDERED that, regarding the remaining issues (ineffective assistance of
counsel for failure to call Marcus Mejia as a witness, for counsel’s failure to disclose
a direct conflict of interest, and for counsel’s failure to request jury instructions on
lesser-included offenses), the Court deems the Petition [Doc. # 45] a motion for
summary judgment upon which the Court may grant relief. The parties may submit
supplemental briefing limited to these issues on or before June 7, 2017, and may file
responses on or before June 16, 2017. It is further
ORDERED that the Court hereby WITHDRAWS the reference of this
proceeding to United States Magistrate Judge John Froeschner. This Court will
adjudicate all pending and future matters. Courtesy copies of all documents filed
hereafter must be provided promptly to the undersigned.
SIGNED at Houston, Texas, this 25th day of May, 2017.

NAN Y F. ATLAS
SENIOR UNI
STATES DISTRICT JUDGE

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