Santos v. Rick Thaler

Filing 13

REPORT AND RECOMMENDATIONS; RECOMMENDS that Petitioner's 1 application for writ of habeas corpus be denied. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
LOUIS SANTOS,
V.
RICK THALER, Director,
Texas Dept. of Criminal JusticeCorrectional Institutions Division

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A-11-CA-257-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1); Petitioner’s Memorandum in Support (Document 3); Respondent’s Answer
(Document 10); and Petitioner’s response thereto (Document 11). Petitioner, represented by counsel,
has paid the filing fee for his application. For the reasons set forth below, the undersigned finds that
Petitioner’s application for writ of habeas corpus should be denied.
STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Respondent, the Director has lawful and valid custody of Petitioner pursuant

to a judgment and sentence of the 147th Judicial District Court of Travis County, Texas, in Cause
No. D-1-DC-07-500551. Petitioner was charged with burglary of a habitation with intent to commit

theft enhanced by a prior conviction, to which he entered a plea of not guilty to the jury. On May 21,
2008, a jury found Petitioner guilty as charged, and finding the enhancement allegations to be true,
the trial court assessed punishment at twenty years incarceration.
Petitioner’s convictions were affirmed by the Third Court of Appeals of Texas on June 3,
2009. Santos v. State, No. 03-08-00500-CR, 2009 WL 1563571 (Tex. App.– Austin, June 3, 2009,
no pet.). Petitioner did not file a petition for discretionary review.
On June 3, 2010, Petitioner filed an application for state writ of habeas corpus requesting an
out-of-time PDR. Ex parte Santos, Appl. No. 74,544-01 at 26-37. On September 15, 2010, the
Court of Criminal Appeals denied relief without written order on the findings of the trial court. Id.
at cover. On September 24, 2010, Petitioner filed a “Suggestion that the Court Reconsider on its
Own Motion the Denial of Applicant’s Article 11.07 Application for Writ of Habeas Corpus.” On
October 11, 2010, the Court of Criminal Appeals indicated it would take no action. Id. at Supp.
Petitioner filed a state habeas application challenging his conviction on November 5, 2010.
Ex parte Santos, Appl. No. 74,544-02 at 17-148. The Court of Criminal Appeals denied relief
without written order on the findings of the trial court without a hearing on March 30, 2011. Id. at
cover. Petitioner filed his federal application for habeas corpus relief the same day.
B.

Factual Background
The factual background of this case is found in the Court of Appeals’ opinion and is repeated

below.
In June 2007, Merced and Guadalupe Ojeda hired a friend, Earle Molina, to
paint the exterior of their house in southeast Travis County. Molina hired appellant
to assist him. On the first day of the project, the Ojedas, who worked for the same
employer, returned home for lunch. While they were there, appellant asked
permission to use the bathroom. The Ojedas permitted him to use the bathroom next
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to the utility room. The next day, Mrs. Ojeda was not feeling well and did not go to
work. At about 8:30 a.m., as she lay in bed, she heard the sound of drawers being
opened. At first, she thought that her husband had come home. She got up and
walked down the hall to a front bedroom, where she found appellant rummaging
through a dresser drawer. Appellant told Mrs. Ojeda that he was looking for rags. She
told appellant that she had no rags and ordered him to leave the house. The Ojedas
reported this incident to the sheriff's department, and it was determined that appellant
had entered the house through a window in the kitchen, which was next to the utility
room and bathroom appellant had used the previous day. The Ojedas elected not to
press charges against appellant, although they did ask Molina to take him off the job.
Four months later, on October 5, 2007, Mrs. Ojeda returned home from work
at 5:30 p.m. to discover that someone had forced open the outside door to the utility
room, entered the house, and stolen a considerable amount of jewelry from a dresser
drawer in the master bedroom. At 2:20 p.m. that same day, three hours before the
burglary was discovered, appellant sold several pieces of the Ojedas’ stolen jewelry
at an Austin pawn shop.
Santos v. State, No. 03-08-00500-CR, 2009 WL 1563571, at *1 (Tex. App.– Austin, June 3, 2003,
no pet.).
C.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.

His trial counsel performed ineffectively by failing to:
a.

b.

object to the same extraneous act on the ground that the probative value of
the incident was outweighed by its potential prejudice to the jury; and

c.

3.

object to an extraneous act: that Mrs. Ojeda found Petitioner in her house
looking through her dresser drawers on a previous instance on the ground that
the incident was not relevant to the instant offense;

properly investigate the case and realize that the State would introduce
evidence that Petitioner had pawned items stolen from Ojeda’s house on the
day of the offense;

His appellate counsel performed ineffectively by failing to:
a.

correctly raise the issue of the improper admission of extraneous offense
evidence; and
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b.

4.

D.

inform Petitioner of the ramifications of not filing a petition for discretionary
review; and

Texas law does not adequately protect Petitioner’s due process rights by failing to
require appellate counsel to warn a client of the ramifications of not filing a PDR.

Exhaustion of State Court Remedies
Respondent does not contest that Petitioner has exhausted his state court remedies regarding

the claims brought in this application. A review of the state court records submitted by Respondent
shows that Petitioner has properly raised these claims in previous state court proceedings.
E.

Statute of Limitations
Respondent moves to dismiss Petitioner’s application as time-barred. Respondent argues

Petitioner’s “Suggestion that the Court Reconsider on its Own Motion the Denial of Applicant’s
Article 11.07 Application for Writ of Habeas Corpus” did not operate to toll the limitations period.
DISCUSSION AND ANALYSIS
A.

Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-

year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C.
§ 2244(d). That section provides, in relevant part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of–
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;

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(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
Petitioner’s conviction became final, at the latest, on July 3, 2009, at the conclusion of time
during which he could have filed a petition for discretionary review with the Texas Court of Criminal
Appeals, which according to TEX . R. APP . R. 68.2, is 30 days following the court of appeals’
judgment affirming his conviction. Gonzalez v. Thaler, 623 F.3d 222 (5th Cir. 2010) (holding a
conviction becomes final when the time for seeking further direct review in the state court expires).
At the time Petitioner filed his first state application for habeas corpus relief on June 13, 2010, only
thirty days remained of the one-year limitations period. The Texas Court of Criminal Appeals
denied Petitioner’s application on September 15, 2010.
On September 24, 2010, before the limitations period expired, Petitioner filed a “Suggestion
that the Court Reconsider on its Own Motion the Denial of Applicant’s Article 11.07 Application
for Writ of Habeas Corpus.” On October 11, 2010, the Court of Criminal Appeals indicated it would
take no action on the motion. Id. at Supp. The federal limitations period is tolled for “The time
during which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending[.]” § 2244(d)(2). Texas law provides that “A
motion for rehearing an order that denies habeas corpus relief . . . may not be filed.” TEX . R. APP .
P. 79.2(d) (West 2011). However, the Court of Criminal Appeals “has entertained motions for

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reconsideration, notwithstanding the language in . . . Rule 79.2(d).” Emerson v. Johnson, 243 F.3d
931, 934 (5th Cir. 2001). When a motion for rehearing is properly filed within the § 2244(d)
limitations period, that period is tolled from the date of the habeas denial, as if the motion for
rehearing is a further step in the state habeas process. Lookingbill v. Cockrell, 293 F.3d 256, 261
(5th Cir. 2002); Emerson, 243 F.3d at 935; see Melancon v. Kaylo, 259 F.3d 401, 406-07 (5th Cir.
2001) (the intervals between disposition of state habeas application and timely filing of an
application for review at the next level are not counted); Gordon v. Dretke, 107 Fed. App’x 404, 406
(5th Cir. 2004) (noting that a motion to reconsider denial of state habeas application was filed after
the expiration of the § 2244(d) limitations period, distinguishing case from Emerson and
Lookingbill). The limitations period is tolled “only as long as the Texas courts take to resolve the
motion or suggestion for reconsideration.” Emerson, 243 F.3d at 935.
Respondent contends Petitioner’s suggestion for reconsideration was never filed and the court
never entertained such motion. Respondent argues the motion should not toll the limitations period,
because the Texas Court of Criminal Appeals stamped the motion with the notation “NO ACTION
TAKEN.” Although the Court of Criminal Appeals indicated no action would be taken on
Petitioner’s motion, the motion was in fact received by the clerk of court and added to the court’s
docket. Accordingly, the limitations period was tolled by the motion until the court indicated no
action would be taken.
Petitioner filed his second state habeas application challenging his conviction on
November 5, 2010. At that time, only five days remained of the one-year limitations. The Court of
Criminal Appeals denied relief without written order on the findings of the trial court without a

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hearing on March 30, 2011. Petitioner filed his federal application that same day before the
limitations period had expired. Accordingly, Petitioner’s application is not time-barred.
B.

The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court recently had the opportunity to summarize the basic principles that have

grown out of the Court’s many cases interpreting the 1996 Antiterrorism and Effective Death Penalty
Act. See Harrington v. Richter, 131 S. Ct. 770, 783-85 (2011). The Court noted that the starting
point for any federal court in reviewing a state conviction is 28 U.S.C. § 2254, which states in part:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim(1)

resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). The Court noted that “[b]y its terms, § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Id.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following
all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due
a state court decision under § 2554(d) “does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had
previously concluded that “a state court need not cite nor even be aware of Supreme Court cases to
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obtain deference under § 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
When there is no explanation with a state court decision, the habeas petitioner’s burden is to show
there was “no reasonable basis for the state court to deny relief.” Id. And even when a state court
fails to state which of the elements in a multi-part claim it found insufficient, deference is still due
to that decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been
adjudicated.” Id.
As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three
circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision “involved an
unreasonable application of” such law; or (3) when the decision “was based on an unreasonable
determination of the facts” in light of the record before the state court. Id. (citing 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000)). The “contrary to” requirement “refers
to the holdings, as opposed to the dicta, of . . . [the Supreme Court’s] decisions as of the time of the
relevant state-court decision.” Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000).
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on
a question of law or if the state court decides a case differently than . . . [the Supreme
Court] has on a set of materially indistinguishable facts.
Id. at 740-41. Under the “unreasonable application” clause of § 2254(d)(1), a federal court may grant
the writ “if the state court identifies the correct governing legal principle from . . . [the Supreme
Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id.
The provisions of § 2254(d)(2), which allows the granting of federal habeas relief when the state
court made an “unreasonable determination of the facts,” are limited by the terms of the next section

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of the statute, § 2254(e). That sections states that a federal court must presume state court fact
determinations to be correct, though a petitioner can rebut that presumption by clear and convincing
evidence. See 28 U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give
deference to the state court’s fact findings. Id.
1.

Ineffective Assistance of Trial Counsel

In his first ground for relief Petitioner argues his trial counsel was ineffective by failing to
object to an extraneous act on the ground that the incident was not relevant to the instant offense or
that the probative value of the incident was outweighed by its potential to prejudice the jury.
Petitioner also contends his trial counsel was ineffective by failing to properly investigate the case
and realize the State would introduce evidence that Petitioner had pawned items stolen from the
victim’s house on the day of the offense.
Ineffective assistance of counsel claims are analyzed under the well-settled requirements set
forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984).
First, the defendant must show that counsel’s performance was deficient. This
requires showing that counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a
defendant can make both showings, it cannot be said that the conviction or death
sentence resulted from a breakdown in the adversary process that renders the result
unreliable.
Id. at 687, 104 S. Ct. at 2064.
For the first requirement, the proper measure of attorney performance is “simply
reasonableness under prevailing professional norms.” Id. at 688, 104 S. Ct. at 2065. In deciding
whether counsel’s performance was deficient, the Court applies a standard of objective
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reasonableness, keeping in mind that judicial scrutiny of counsel’s performance must be highly
deferential. Id. at 686-89, 104 S. Ct. at 2064-65. “[A] fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id. at 689, 104 S. Ct. at 2065. Indeed, the Supreme Court has established
that counsel should be “‘strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment,’” and cautioned against
an “‘intrusive post-trial inquiry into attorney performance’” and the “‘tempt[ation] for a defendant
to second-guess counsel’s assistance after conviction or adverse sentence.’” Cullen v. Pinholster,
– U.S. –, 131 S. Ct. 1388, 1403 (2011) (quoting Strickland, 466 U.S. at 688-90, 104 S. Ct. at 206566).
For the second requirement, the question is whether there is a reasonable probability that,
absent the alleged error, the result of the proceeding would have been different, a question that must
be considered in the context of the entire evidence. Strickland, 466 U.S. at 694-95, 104 S. Ct. at
2068-69. A reasonable probability is “‘a probability sufficient to undermine confidence in the
outcome,’” Pinholster, 131 S. Ct at 1403 (quoting Strickland, 466 U.S. at 694, 104 S. Ct. at 2068),
which requires a “‘substantial,’ not just ‘conceivable,’ likelihood of a different result,” id. (quoting
Harrington, 131 S. Ct. at 791).
Accordingly, in order to prevail on a claim of ineffective assistance of counsel, a habeas
petitioner must show that: (1) counsel’s representation fell below an objective standard of
reasonableness; and (2) there is a substantial likelihood that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. Id. at 1403; Strickland, 466 U.S. at 687, 104
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S. Ct. at 2064. Because a convicted defendant must satisfy both Strickland requirements to
demonstrate ineffective assistance, a failure to establish either deficient performance or prejudice
makes it unnecessary to consider the other requirement. Id. at 697, 104 S. Ct. at 2069; Black v.
Collins, 962 F.2d 394, 401 (5th Cir. 1992).
In addition to the “highly deferential” view taken of counsel’s performance under Strickland,
466 U.S. at 689, 104 S. Ct. at 2065, the Court is also limited in its examination of such claims by
the “‘deferential lens of § 2254(d).’” Pinholster, 131 S. Ct. at 1404 (quoting Knowles v. Mirzayance,
556 U.S. –, – n.2, 129 S. Ct. 1411, 1419 n.2 (2009)). In this way, the Court’s review of the state
habeas court’s determination of ineffective assistance claims is “‘doubly’” deferential. Harrington,
131 S. Ct. at 788 (quoting Knowles, 129 S. Ct. at 1420).
As discussed below, Petitioner’s ineffective-assistance claim fails to satisfy Strickland’s and
the AEDPA’s requirements.
a.

Extraneous Offense Evidence

Petitioner argues counsel’s performance was deficient for failing to adequately challenge the
admission of evidence that he was found in the victim’s home, without permission, on another date.
Specifically, Petitioner contends counsel should have challenged the evidence on both the grounds
that it was inadmissible extraneous offense evidence and that its probative value was outweighed by
its potential to prejudice his defense.
On direct appeal Petitioner challenged counsel’s failure to object to the extraneous offense
evidence. The appellate court noted it must indulge a strong presumption that counsel’s conduct fell
within the wide range of reasonable professional assistance. Santos v. State, No. 03-08-00500-CR,
2009 WL 1563571, at *3 (Tex. App. – Austin 2009). The court determined counsel could have
11

reasonably concluded that the previous burglary was relevant, and hence admissible, to prove
Petitioner’s knowledge of the Ojeadas’ house and his intent to steal their property, and in that way
to substantiate Petitioner’s identity as the October burglar. Id. The court further determined it was
reasonable for counsel to conclude that the evidence was more probative than unfairly prejudicial.
Id. Accordingly, the court concluded counsel could not be deemed ineffective for failing to object
to evidence that was, on balance, unobjectionable. Id.
Petitioner raised the same claim in his state application for habeas corpus relief. The Texas
Court of Criminal Appeals denied the claim without written order on the findings of the trial court.
Ex parte Santos, Appl No. 74,544-02 at cover. The state habeas court concluded evidence of the
prior burglary was probative to show Petitioner’s knowledge of the homes interior and intent to steal
items inside the home, which combined with proof of Petitioner’s pawning stolen items on the day
of the burglary, outweighed the prejudice of showing that he was a thief in general. Id. at 153.
Texas law allows evidence of extraneous offenses committed by the accused to be admitted
to show a common scheme or motive, or to show intent or identity, when either or both are at issue.
TEX . R. CRIM . EVID . 404(b); Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972); Hafti
v. State, 416 S.W.2d 824, 825 (Tex. Crim. App. 1967). Evidence may be admitted “on the widely
recognized principle that similar but disconnected acts may be shown to establish intent, design, or
system;” and the fourteenth amendment leaves a state court free to adopt such a rule of relevance.
Lisenba v. California, 314 U.S. 219, 227-228, 62 S. Ct. 280, 285-286 (1941).
In Petitioner’s case the extraneous offense evidence was relevant and probative to showing
knowledge, intent and identity. In addition, as explained by the state court, the probative value of
the of the evidence outweighed the prejudice of showing that Petitioner was a thief in general.
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Therefore, counsel was not deficient in failing to object to the evidence. Having reviewed the state
court record, this Court finds nothing unreasonable in the state court’s application of clearly
established federal law or in the state court’s determination of facts in light of the evidence.
Accordingly, Petitioner is not entitled to habeas corpus relief.
b.

Inadequate Investigation

Petitioner next argues counsel’s performance was deficient because he failed to research and
investigate the case and determine the State intended to introduce evidence that Petitioner had
pawned items stolen from the Ojedas on the day of the burglary and advise Petitioner as such. He
argues this fact should have compelled counsel to settle on a different trial strategy. Petitioner
contends he would have accepted a plea bargain had he known that evidence that a defendant
pawned items on the day of a burglary could be sufficient to uphold a conviction. The state court
records fail to indicate Petitioner or his counsel was surprised that the State intended to introduce
evidence regarding the pawning of stolen items. Additionally, Petitioner has not shown there was
another defense available or that a favorable plea offer was available.
As discussed, Strickland commands a strong presumption that counsel’s conduct falls within
the scope of reasonable professional representation.
Because of the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (quotation and citations omitted); see also Pinholster,
131 S. Ct. at 1404 (stating same). To render effective assistance, the Sixth Amendment requires
counsel to make a reasonable investigation of defendant’s case or to make a reasonable decision that
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a particular investigation is unnecessary. Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066.
Petitioner has not overcome the strong presumption that trial counsel rendered adequate assistance
and the challenged conduct was the product of reasoned trial strategy. Absent evidence in the record,
a court cannot consider a habeas petitioner’s mere allegations to raise a constitutional issue. See,
e.g., Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000); Ross v. Estelle, 694 F.2d 1008, 1011-12
(5th Cir. 1983) (citing Woodard v. Beto, 447 F.2d 103, 104 (5th Cir. 1971)).
Petitioner also fails to satisfy the second Strickland requirement, prejudice. See Strickland,
466 U.S. at 694-95, 104 S. Ct. at 2068. Petitioner fails to demonstrate a “‘substantial,’not just
‘conceivable,’ likelihood of a different result.” Pinholster, 131 S. Ct at 1403 (quoting Harrington,
131 S. Ct. at 791). Without a demonstration of either error or prejudice, Petitioner fails to show that
the state court’s decision was an unreasonable application of the clearly established federal law of
Strickland, or was contrary to that established law. Accordingly, 28 U.S.C. § 2254(d), as amended
by the AEDPA, bars habeas relief.
2.

Ineffective Assistance of Appellate Counsel

In his second ground for relief Petitioner argues he received ineffective assistance of
appellate counsel in that appellate counsel failed to correctly raise the issue of the improper
admission of extraneous offense evidence and to inform Petitioner of the ramifications of not filing
a petition for discretionary review.
Claims of ineffective assistance of appellate counsel are generally assessed under the same
two-part Strickland deficiency and prejudice standard as claims of ineffective assistance of trial
counsel. Williams v. Collins, 16 F.3d 626, 635 (5th Cir.), cert. denied, 512 U.S. 1289, 115 S. Ct.
42, (1994). With respect to Strickland’s deficiency prong, “[o]n appeal, effective assistance of
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counsel does not mean counsel who will raise every nonfrivolous ground of appeal available.”
Green v. Johnson, 160 F.3d 1029, 1043 (5th Cir. 1998), cert. denied, 525 U.S. 1174, 119 S. Ct. 1107
(1999); see also Ellis v. Lynaugh, 873 F.2d 830, 840 (5th Cir.) (“The Constitution does not require
appellate counsel to raise every nonfrivolous ground that might be pressed on appeal.”), cert. denied,
493 U.S. 970, 110 S. Ct. 419 (1989). Rather, “[a]ppellate counsel is obligated to only raise and brief
those issues that are believed to have the best chance of success.” Rose v. Johnson, 141 F. Supp.2d
661, 704-705 (S.D. Tex. 2001). “[O]nly when ignored issues are clearly stronger than those
presented, will the presumption of effective assistance of counsel be overcome.” Gray v. Greer, 800
F.2d 644, 646 (7th Cir. 1985) (cited with approval in Smith v. Robbins, 528 U.S. 259, 288, 120 S.
Ct. 746 (2000)). As for Strickland’s prejudice prong, “[p]rejudice results if the attorney’s deficient
performance would likely render either the defendant’s trial fundamentally unfair or the conviction
and sentence unreliable.” United States v. Dovalina, 262 F.3d 472, 474 (5th Cir. 2001).
a.

Extraneous Offense Evidence

In his second state application for habeas corpus relief Petitioner raised the issue that
appellate counsel was ineffective for failing to correctly raise the issue of the improper admission
of extraneous offense evidence. The Texas Court of Criminal Appeals denied relief. The trial court
noted Petitioner failed to allege any potentially meritorious grounds which counsel might have
raised. Ex parte Santos, Appl. No. 74,544-02 at 153.
As explained above, the extraneous offense evidence was admissible. Accordingly, appellate
counsel was not deficient in failing to argue a different admissibility standard. Moreover, Petitioner
failed to show prejudice, as trial counsel was not deficient. Having independently reviewed the

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entire state court record, this Court finds nothing unreasonable in the state court’s application of
clearly established federal law or in the state court’s determination of facts in light of the evidence.
b.

Consequences of Not Filing a PDR

Next, Petitioner argues counsel erred by failing to inform him of all the consequences of not
filing a petition for discretionary review. Petitioner admits appellate counsel sent him a letter
informing him of his right to file a petition for discretionary review. He argues, however, that
counsel should have informed him that by failing to file a petition, he was facing the “end of all
direct review.”
Petitioner presented this claim in his first state application for habeas corpus relief. The state
court determined there is no statutory or constitutional requirement that appellate counsel provide
more information than was provided in Petitioner’s case. Ex parte Santos, Appl. No. 74,544-01 at
40. As explained by Respondent, Petitioner has failed to identify any authorities holding that
appellate counsel had this duty to instruct his client or that the failure to make a more thorough
explanation of the legal process impaired his appeal by causing him to waive meritorious claims.
Petitioner has failed to show either that appellate counsel erred by not informing his client of all the
ramifications of not filing a petition for discretionary review or that he was in any manner harmed
by this purported failure.
Having independently reviewed the entire state court record, this Court finds nothing
unreasonable in the state court’s application of clearly established federal law or in the state court’s
determination of facts in light of the evidence. Accordingly, the Court is of the opinion that 28
U.S.C. § 2254, as amended by the AEDPA, bars habeas corpus relief on Petitioner’s claim that he
received ineffective assistance of appellate counsel.
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3.

Due Process

In his final ground for relief Petitioner argues Texas law does not adequately protect
Petitioner’s due process rights by failing to require appellate counsel to warn a client of the
ramifications of not filing a petition for discretionary review. In addition, he argues Petitioner was
effectively denied access to the prison law library and instead had to request law books be delivered
to him in administrative segregation. He contends his right to access the courts was impaired. He
suggests he would have been able to learn the importance of filing a petition for discretionary review
had he been allowed to go to the library.
Petitioner also presented this claim in his first state application for habeas corpus relief. The
state habeas court denied relief, indicating Petitioner failed to cite to any cases which have held a
right to unrestricted access to the prison law library exists. Ex parte Santos, Appl. No. 74,544-01
at 40. Having independently reviewed the entire state court record, this Court finds nothing
unreasonable in the state court’s application of clearly established federal law or in the state court’s
determination of facts in light of the evidence. Accordingly, Petitioner is not entitled to federal
habeas corpus relief.
RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be denied.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective

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December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court
rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the
Court shall not issue a certificate of appealability.
OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are

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being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 11th day of October, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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