Ates v. Thaler

Filing 11

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus, filed by Randy Ates. It is recommended that Petitioner's application be denied and his Motion for Relief from Judgment should be dismissed. Signed by Judge Andrew W. Austin. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RANDY ATES,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Dept. of
Criminal Justice-Correctional
Institutions Division,
Respondent.

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A-13-CA-446-SS

REPORT AND RECOMMENDATION
OF THE 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); Respondent’s Answer (Document 7); and Petitioner’s reply thereto
(Document 9).1 Petitioner, proceeding pro se, has paid the applicable 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.

1

Attached to Petitioner’s reply is a Motion for Relief from Judgment purportedly filed
pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. The subject of the motion is a state
court judgment. Rule 60(b) applies to federal court judgments, and the motion should therefore 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 judgments and sentences of the 427th Judicial District Court of Travis County, Texas, in cause
number D-1-DC-06-302099. Petitioner was charged by indictment with three counts of the offense
of aggravated sexual assault of a child (counts one, two, and three), three counts of indecency with
a child by contact (counts four, five, and six), and four counts of indecency with a child by exposure
(counts seven, eight, nine, and ten). On May 29, 2009, a jury found Petitioner guilty as charged of
three counts of aggravated sexual assault of a child and one count of indecency with a child by
contact. Thereafter, the trial court sentenced him to three terms of forty years’ imprisonment and
one term of twenty years’ imprisonment, respectively, with all four sentences to run concurrently.
On February 4, 2011, the Third Court of Appeals of Texas affirmed Petitioner’s convictions
and denied his motion for rehearing.2 Ates v. State, No. 03-09-00501-CR, 2011 WL 350476 (Tex.
App.– Austin 2011, pet. ref’d). On September 14, 2011, the Texas Court of Criminal Appeals
refused Petitioner’s petition for discretionary review. Ates v. State, PDR No. 0318-11.
Petitioner also challenged his convictions in a state application for writ of habeas corpus.
Ex parte Ates, Appl. No. 77,820-02. The Court of Criminal Appeals denied the application without
written order on August 15, 2012. Id. at cover. Petitioner filed a subsequent state application, which
the Court of Criminal Appeals dismissed as successive on April 17, 2013. Id, at -03.
2

The Third Court of Appeals of Texas initially affirmed Petitioner’s convictions on December
10, 2010. Ates v. State, No. 03-09-00501-CR, 2010 WL 5019043 (Tex. App.– Austin 2010).
However, on February 4, 2011, the appellate court subsequently issued a new opinion, again
affirming Petitioner’s convictions, to be substituted in place of its prior opinion, and also denied his
motion for rehearing.
2

B.

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

below.
A.A., the alleged victim in this case, testified that Ates sexually assaulted her many
times over a several-year period. The first assault, which the trial participants dubbed
the “bathroom” incident, allegedly occurred when A.A. was approximately six years
old. Ates was living in A.A.’s home at the time along with his girlfriend and the
mother of his children, Debbie Duran (A.A.’s aunt). A.A. testified that one day while
she and Ates were the only people at home, Ates came into the bathroom as A.A. was
finishing using it. Ates allegedly told A.A. to sit back down on the toilet. He then
allegedly took off her pants, took off his own pants, and proceeded to rub his penis
on her vagina until he ejaculated. Afterwards he allegedly told A.A. to take a bath or
shower. FN1
FN1. At trial, A.A. could not remember whether Ates told her to take
a bath or a shower. Ates later argued to the jury that this fact showed
A.A.’s story was inconsistent.
A second group of incidents, which the trial participants dubbed the “master
bedroom” incidents, occurred when A.A. was approximately eight years old. A.A.
was still living with Ates, Duran, and their children at the time, but in a different
house from the one in which the bathroom incident allegedly occurred. A.A. testified
that on occasions when Ates was the only adult at home with the children, he would
frequently assign them “chores.” A.A.’s “chore” was always to “clean” Ates’s
bedroom. While the other children did chores elsewhere in the house, Ates would
allegedly carry A.A., kicking and screaming, to his bedroom, where he would lay her
on the bed and undress her. He would then allegedly either perform oral sex on her
or remove his own clothes, lay on top of her, and rub his penis on her vagina until he
ejaculated. A.A. testified that such incidents occurred more than fifteen times. On
one occasion, A.A. tried to resist by picking up a bedside phone and hitting Ates in
the head with it. A.A. testified that Ates “punished” her by flipping her over and
penetrating her anus with his penis.FN2
FN2. Ates’s indictment and the jury charge both contained two
sexual-assault counts arising from bedroom incidents: one based on
oral sex and one based on anal penetration.
The third incident, which the trial participants dubbed the “van” incident, also
occurred when A.A. was approximately eight years old. A.A. testified that Ates
occasionally drove her and the other children to a neighborhood swimming pool.
3

Ates would let the other children exit his van to play in the pool but would make
A.A. stay in the van with him. A.A. testified that Ates would remove her clothes,
remove his own clothes, lie on top of her, and rub his penis on her vagina until he
ejaculated. She also testified that Ates would occasionally “barely” penetrate her
vagina with his penis. On the occasion that was dubbed the “van” incident in the trial
court, A.A. recalled that Ates used a strawberry-scented lubricant.
A.A. did not report Ates’s abuse until she was approximately fifteen years old.
Between the ages of 10 and 15, A.A. did not live with Ates; rather, she lived with her
mother and her mother’s boyfriend. Her mother’s boyfriend sexually assaulted A.A.
during that time, eventually resulting in her becoming pregnant. In the course of
explaining the pregnancy to her family and boyfriend, A.A. revealed that she had
been abused by Ates.
A.A.’s family reported her abuse to the police, who began investigating. Detective
Jissett Gaslin interviewed A.A. and then interviewed Ates. Eventually Detective
Gaslin obtained a warrant for Ates’s arrest. A grand jury indicted Ates for three
counts of aggravated sexual assault of a child, three counts of indecency with a child
by contact, and four counts of indecency with a child by exposure. Ates pleaded not
guilty and went to trial.
At trial, A.A. testified to the abuse she suffered at Ates’s hands. Ates’s son, Xavier,
also testified. Xavier had lived with Ates and A.A. during the period when Ates was
allegedly abusing A.A. Xavier testified that once, at age two, he witnessed Ates
touching A .A. while both were naked.FN3 The incident allegedly occurred in Ates’s
bedroom. Xavier testified that during the incident a pornographic videotape was
playing on a television in the room.
FN3. The State did not ultimately elect to use this incident as a basis
for seeking a conviction.
Xavier’s sister, Sabrina, who also lived with Ates and A.A. during the period when
Ates was allegedly abusing A.A., testified that she once heard A.A. scream “help”
and “stop it” while A.A. was alone in a room with Ates. Sabrina testified that at the
time she thought A.A. was screaming because she was being spanked.
Xavier and Sabrina’s mother, Debbie Duran, testified that on one occasion when she
was living with Ates, she entered a bedroom and saw Ates leaning over a bed in
which A.A. was lying under the covers. Ates had his hand under the covers, and
Duran testified that it “d[idn’t] look right.” Duran asked Ates what was going on, and
he said that he was trying to recover a “sippy cup” that A.A. was hiding under the
covers. Duran was suspicious and asked A.A. if Ates was telling the truth. A.A.

4

initially replied that he was, though she testified that she eventually told Duran he
was not. Duran, however, did not testify that A.A. eventually said Ates was lying.
Sally Martinez–Cortez was Ates’s girlfriend at the time Ates was arrested. She
testified that after the police interviewed Ates, he came to her house and “gutted” her
dishwasher so that he could hide in it if the police came to arrest him.
Police officer David Nordstrom testified that when he went with a group of officers
to arrest Ates at the house where Ates was staying, Ates climbed out the back
window and attempted to flee.
At the jury-charge conference, the parties discussed the State’s need to elect a single
instance of abuse as the basis for each count in the charge. The court denoted the
instances the State elected by inserting “bathroom,” “master bedroom,” and “van” in
parentheses under each of the counts in the charge. Ates objected to this method of
denoting the State’s elections, arguing that the “bathroom” and “master bedroom”
counts should specify the addresses of the houses in which they occurred FN4 and
the “van” count should specify that it occurred “in a parking lot at a public swimming
pool.” The court overruled this objection.
FN4. Recall that Ates and A.A. lived together in two different houses.
The jury charge ultimately contained seven counts. On the basis of the bathroom
incident, the charge contained one count of aggravated sexual assault, one count of
indecency with a child by contact, and one count of indecency with a child by
exposure. On the basis of the master bedroom incidents, the charge contained one
count of aggravated sexual assault involving oral sex, one count of aggravated sexual
assault involving anal penetration, and one count of indecency with a child by
contact. Finally, on the basis of the van incident, the charge contained one count of
indecency with a child by contact. The charge instructed the jury that if it found Ates
guilty on the assault counts arising from the bathroom and bedroom incidents, it
should not go on to consider the indecency counts arising from those incidents.
The jury found Ates guilty on all three bathroom- and bedroom-related assault
counts. Accordingly, it did not reach the bathroom- and bedroom-related indecency
counts. The jury also found Ates guilty on the van-related indecency count. Ates
elected for the court to assess punishment. The court imposed a forty-year sentence
for each of the assault counts and a twenty-year sentence for the indecency count.
Ates v. State, No. 03-09-00501-CR, 2011 WL 350476 at, *1-3 (Tex. App.– Austin 2011, pet. ref’d).

5

C.

Petitioner’s Grounds for Relief
Petitioner raises the following grounds for relief:
1.
2.

The trial court erred in denying his request for an election;

3.

The trial court erred in allowing an erroneous jury charge;

4.

He was denied his constitutional protection against double jeopardy; and

5.

D.

The State’s indictment was untimely; therefore, the resulting judgments are void;

The trial court’s judgments are void because they violate the Double Jeopardy
Clause.

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

the claims brought in this application with the exception of his claim that the indictment was
untimely. Respondent argues the claim challenging the indictment is procedurally defaulted.
DISCUSSION AND ANALYSIS
A.

The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court has summarized 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, – U.S. –, 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
6

(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).”
Harrington, 131 S. Ct. at 784.
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 our cases 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. at 785 (citing 28 U.S.C.
7

§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (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) (quotation and citation omitted).
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 (quotation and citation omitted). 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. at 741 (quotation and citation omitted). The provisions of
§ 2254(d)(2), which allow 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 of the statute,
§ 2254(e). That section 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.
B.

Indictment Challenge
In his first ground for relief, Petitioner contends the State’s indictment was untimely. He

concludes the trial court’s judgments are void.

Respondent contends Petitioner’s claim is

procedurally barred. He explains Petitioner raised this claim in a subsequent state application for
habeas corpus relief which was dismissed as successive.

8

A federal habeas corpus action provides an important, but limited, examination of state
criminal judgments. Because “state courts are the principal forum for asserting constitutional
challenges to state convictions,” concerns for comity, federalism, and finality define the contours of
federal habeas review. Richter, 562 U.S. at ––––, 131 S. Ct. at 787; see also Calderon v. Thompson,
523 U.S. 538, 555–56 (1998). Accordingly, procedural doctrines may limit what issues a federal
habeas court may examine.
The AEDPA requires exhaustion of federal claims in the highest state court before federal
habeas relief becomes available. See 28 U.S.C. § 2254(b)(1). Even when a prisoner exhausts state
remedies, how he has exhausted them determines the course of federal review. Federal practice
limits review to those claims that are presented in compliance with state procedural law. See Dretke
v. Haley, 541 U.S. 386, 392 (2004); Lambrix v. Singletary, 520 U.S. 518, 523 (1997); Coleman v.
Thompson, 501 U.S. 722, 729 (1991). The procedural-default doctrine, which functions as “[a]
corollary to the habeas statute’s exhaustion requirement,” Haley, 541 U.S. at 392–93, forecloses
federal habeas review on claims that “a state court declined to hear because the prisoner failed to
abide by a state procedural rule.” Martinez v. Ryan, ––– U.S. ––––, 132 S. Ct. 1309, 1316 (2012);
see also Lambrix, 520 U.S. at 523; Coleman, 501 U.S. at 729.
Petitioner raised his challenge to the timeliness of the indictment for the first time in his
successive state habeas application. The Court of Criminal Appeals dismissed the successive
application under its abuse-of-the-writ doctrine, codified in article 11.07, section 4 of the Texas Code
of Criminal Procedure. The Fifth Circuit has generally held that this doctrine is an adequate and
independent state procedural ground to bar federal review and has been strictly and regularly applied
since 1994. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995). However, a petitioner can still
9

obtain federal habeas review on a claim dismissed by the state court on the grounds of procedural
default if he can show cause and actual prejudice for his procedural default or that a failure to
address the merits of the federal claim would result in a miscarriage of justice. Moore v. Roberts,
83 F.3d 699, 702 (5th Cir. 1996), citing Coleman, 501 U.S. at 750, cert. denied, 519 U.S. 1093
(1997). In this case, Petitioner has failed to show cause and actual prejudice for his procedural
default and has made no showing that a failure to address the merits of the federal claim would result
in a miscarriage of justice. Therefore, Petitioner is barred from raising his challenge to the timeliness
of the indictment.
Alternatively, Petitioner’s claim has no merit. The Texas Court of Criminal Appeals has held
that “a statute extending a period of limitation applies to all offenses not barred at the time of the
passage of the act, so that a prosecution may be commenced at any time within the newly established
period, although the old period has expired.” Archer v. State, 577 S.W.2d 244, 244 (Tex . Crim.
App. 1979). In the instant case, the date of the offense was on or about January 1, 1996. At that
time, the applicable limitations period was ten years. In 1997, before the limitations period expired,
the legislature added Section 12.01(5), establishing the limitations period for sexual assault of a child
and aggravated sexual assault of a child as ten years from the eighteenth birthday of the victim of
the offense. See Act of May 24, 1997, 75th Leg., R.S., ch. 740, §§ 1, 4, 1997 Tex. Gen. Laws 2403
(current version at TEX. CODE CRIM. PROC. art 12.01(1)(B)). Petitioner’s indictment was handed
down on October 23, 2006, and at the time of trial the victim was 19. Therefore, the statute of
limitations as extended had not run, because the State had until the victim’s twenty-eighth birthday
to bring its case against Petitioner.

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C.

Election Claim
In his second and third grounds for relief Petitioner argues the trial court erred in allowing

the State to proceed on seven separate and distinct offenses by submitting those offenses to the jury
“on the same, single verdict form, which did not inform the jury on the constitutional necessity of
unanimously finding one specific incident proven beyond a reasonable doubt in order to reach a
conviction,” thereby violating the provision of the “Texas Constitution requiring a unanimous verdict
in felony criminal cases” and state rules of criminal procedure requiring “a separate jury form with
a correct unanimity instruction” for each count, if a single indictment might result in multiple
convictions. Further, Petitioner argues “this violation of the unanimity requirement constitutes the
violation of [his] fundamental right to due process of law” under the United States Constitution.
Insofar as petitioner complains the Texas appellate courts erroneously applied state-law
principles in rejecting his claims, his arguments do not furnish a basis for federal habeas relief.
Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or
procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67–68,
(1991) (holding complaints regarding the admission of evidence under California law did not present
grounds for federal habeas relief absent a showing that admission of the evidence in question
violated due process); Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (recognizing federal habeas relief
will not issue for errors of state law); Pulley v. Harris, 465 U.S. 37, 41 (1984) (holding a federal
court may not issue the writ on the basis of a perceived error of state law). In the course of reviewing
state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a
super-state appellate court. Estelle v. McGuire, 502 U.S. at 67–68; Lewis v. Jeffers, 497 U.S. at 780;
Pulley v. Harris, 465 U.S. at 41. When a federal district court reviews a state prisoner’s habeas
11

petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is “in custody in violation
of the Constitution or laws or treaties of the United States.”
Petitioner’s allegations that the trial court erred in ruling on his election request and his
objection to the resulting jury charge have already been considered and rejected on both direct appeal
and state habeas review. On appeal the state court overruled Petitioner’s point of error and explained
as follows:
Ates argues that the jury charge did not properly specify the alleged incidents of
abuse on which the State elected to seek conviction. At the jury-charge conference,
the parties discussed the State’s need to elect a specific instance of abuse as the basis
for each count in the charge. The court ultimately denoted the instances the State
elected by inserting “bathroom,” “master bedroom,” or “van” in parentheses under
each count in the jury charge. Ates objected to this method of denoting the State’s
elections, arguing that the “bathroom” and “master bedroom” counts should specify
the addresses of the houses in which they occurred and the “van” count should
specify that it occurred “in a parking lot at a public swimming pool.” The court
overruled this objection. Ates argues that doing so was error because the lack of
geographical specificity meant the jury might not limit its deliberation on each count
to a specific incident. See Phillips v. State, 193 S.W.3d 904, 910 (Tex. Crim. App.
2006) (one purpose of election is to ensure jurors unanimously agree one specific
incident occurred constituting charged offense).
We disagree. The jury charge clearly listed a specific location (“bedroom,” “master
bedroom,” or “van”) in bold font under each count in the jury charge. These locations
were not vague, confusing, or otherwise unspecific. We presume that the jury heeded
them and limited its deliberations accordingly. See Resendiz v. State, 112 S.W.3d
541, 546 (Tex. Crim. App. 2003) (appellate courts presume jury follows
instructions).
Ates also argues that the jury charge should not have simply listed a location under
each count, but rather should have included a location as an element of each charged
offense. He complains that the failure to include a location as an element of each
offense led to the possibility of a non-unanimous verdict. FN7 He argues, in other
words, that location needed to be included as an element of each offense to insure
jury unanimity. Location is not, however, a material element of the offenses at issue.
See TEX. PENAL CODE §§ 21.11, 22.021(a)(1)(B). Ates does not argue that the jury
charge left out any material elements of the charged offenses; rather, he argues that

12

the jury charge should have included additional elements in the form of locations and
addresses.
FN7. We note that because Ates first urged his election request at the
jury-charge stage, there was no issue concerning whether the method
of election gave him sufficient notice. See Phillips v. State, 193
S.W.3d 904, 910 (Tex. Crim. App. 2006) (one purpose of election is
to “give the defendant notice of the particular offense the State
intends to rely upon for prosecution and afford the defendant an
opportunity to defend”). That is to say, Ates’s election request came
too late to serve the purpose of ensuring that he had notice. See id. at
912 (to preserve right to notice, defendant must make election request
at close of State’s case-in-chief). Thus, jury unanimity is the only
election-related concern we address.
“Unanimity” simply means that “each and every juror agrees that the defendant
committed the same, single, specific criminal act .” Ngo v. State, 175 S.W.3d 738,
745 (Tex. Crim. App. 2005). The trial court chose to address Ates’s unanimity
concern by indicating the State’s election through a header under each count in the
charge. An “election” generally requires “ some action that excludes or limits the
jury’s consideration of an offense,” such as a limiting instruction. Ex parte
Goodbread, 967 S.W.2d 859, 861 n .2 (Tex. Crim. App. 1998) (emphasis added). The
court’s chosen method of indicating the State’s election, along with an instruction
that the jury had to reach a unanimous verdict to find Ates guilty on any individual
count, served to ensure that the jurors agreed on a single specific act upon which they
returned a verdict. We overrule Ates’s second issue.
Ates v. State, No. 03-09-00501-CR, 2011 WL 350476 at, *5 (Tex. App.– Austin 2011, pet. ref’d).
As explained by Respondent, the state court conclusively determined that Petitioner’s instant
allegations fail to even demonstrate any error under Texas law, much less prove that any alleged
error so infected Petitioner’s trial that his convictions violate federal due process. 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’s claim does not warrant federal habeas relief.

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D.

Double Jeopardy
In his fourth and fifth grounds for relief, Petitioner argues the judgments of conviction and

sentences in the instant case violate his constitutional protection against double jeopardy and are
void. According to Petitioner, his sentences constitute multiple punishments for the same offense
because he was separately convicted of “four counts of sexual abuse offenses occurring in the same,
alleged criminal episode.”
For purposes of federal habeas litigation, the double jeopardy bar protects against a second
prosecution after acquittal, against a second prosecution for the same offense after conviction, and
against multiple punishments for the same offense. Ohio v. Johnson, 467 U.S. 493, 498 (1984). The
test to be applied to determine whether there are multiple offenses or only one is whether each
provision requires proof of an additional fact which the other does not. Blockburger v. United
States, 284 U.S. 299, 304 (1932). With regards to aggravated sexual assault, Texas courts have held
each different act described in the sexual assault statute constitutes a separate offense, even if the
acts proscribed are committed in the same criminal occurrence, and may thus be punished separately
without violating the Double Jeopardy Clause. Gonzales v. State, 304 S.W.3d 838, 847–49 (Tex.
Crim. App. 2010); see Vick v. State, 991 S.W.2d 830, 833 (Tex. Crim. App.1999) (explaining one
transaction of aggravated sexual assault can result in the commission of separate statutory offenses).
In Petitioner’s case, he was convicted of three separate aggravated sexual assaults and
indecency with a child by contact. The first aggravated sexual assault was dubbed the “bathroom”
incident and occurred when the victim was six. In this incident Petitioner rubbed his penis on the
victim’s vagina until he ejaculated. The second and third aggravated sexual assaults were dubbed
the “master bedroom” incidents and occurred when the victim was eight. The master bedroom
14

incidents involved Petitioner performing oral sex on the victim and penetrating her anus with his
penis. The final offense for which Petitioner was convicted was dubbed the “van” incident and also
occurred when the victim was approximately eight. This offense involved Petitioner removing the
victim’s clothes and his clothes, lying on top of the victim, and rubbing his penis on her vagina until
he ejaculated. These convictions involved four separate offenses, each with distinct elements the
State had to and did prove. Consequently, the Blockburger test is satisfied, and Petitioner was not
subjected to double jeopardy.
Moreover, Petitioner raised this claim in his state application for habeas corpus relief. The
Texas Court of Criminal Appeals rejected the claim and denied the application without written order.
Ex parte Ates, Appl. No. 77,820-02. 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’s
claim does not warrant federal habeas relief.
RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be denied and his
Motion for Relief from Judgment (attached to his reply) should be dismissed.
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
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
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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 (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 (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
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).

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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 (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 21st day of April, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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