Perez v. Stephens

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 18 Report and Recommendations, Objections 21 are OVERRULED, Application forHabeas Corpus Relief 4 is DENIED, certificate of appealability is DENIED. Signed by Judge Sam Sparks. (ml)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

AMADO PEREZ JR.,

Petitioner,
Case No. A-14-CA-880-SS

-vs-

WILLIAM STEPHENS,
Respondent.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause,

specifically Petitioner Amado Perez Jr.'s Amended Application for Habeas Corpus Relief under 28
U.S.C.

§

2254 [#4], Respondent William Stephens's Response [#14] thereto, Petitioner's Reply

[#14] in support, the Report and Recommendation (R&R) of the United States Magistrate Judge
[#181, and Petitioner's Objections [#21]. Having reviewed the documents, the relevant law, and the

file as a whole, the Court now enters the following opinion and orders ACCEPTING the R&R and

DENYING Petitioner's Application.
All matters in this case were referred to United States Magistrate Judge Andrew Austin for
report and recommendation pursuant to 28 U.S.C.

§

636(b) and Rule

1

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 Magistrate Judges. Petitioner is entitled to de novo
review of the portions of the Magistrate Judge's report to which she filed specific objections. 28
U.S.C.

§

636(b)(1). All other review is for plain error.

Starns

v.

Andrews,

524 F.3d 612, 617 (5th

/

Cir. 2008). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the

Magistrate Judge's recommendation.

Background
A.

Procedural Background
Petitioner is currently incarcerated pursuant to aj udgment and sentence rendered by the 42 7th

Judicial District Court of Travis County, Texas, in cause number D- 1-DC-i 2-204354. Petitioner was

charged with burglary of a habitation, enhanced with one prior felony conviction.1 Petitioner pleaded

not guilty to the burglary charge but pleaded true to the enhancement. The jury found Perez guilty
as charged and sentenced him to forty years' imprisonment.

Petitioner's conviction was affirmed on December 30, 2013. See Perez v. State, No. 13-1300407-CR, 2013 WL 6924046, at *4 (Tex.

App.Corpus ChristiEdinburg Dec. 30, 2013, no pet.).

Petitioner did not seek discretionary review with the Texas Court of Criminal Appeals. He did,
however, file three state applications for habeas corpus relief Petitioner's first application was

dismissed because Petitioner's appeal was pending. Exparte Perez, WR-81,259-01, at cover (Tex.
Crim. App. May, 7, 2014). Petitioner's second application was denied without a written order.
Ex parte Perez, WR-81,259-02, at cover (Tex. Crim. App. Aug 6, 2014). Petitioner's third

application was dismissed without a wriften order. Exparte Perez, WR-81,259-03, at cover (Tex.
Crim. App. Oct. 29, 2014). The instant proceeding followed.

In his Objections, Petitioner disputes whether he acknowledged the sentence enhancement as true. See
Objections [#211 at 2. According to Petitioner, the enhancement is based on a wrongful previous felony conviction
currently under review in the Texas court of appeals. Id.

-2-

Factual Background

B.

The factual background of this case is found in the Court of Appeals2 opinion:

At trial, Officer Kyle Sargent of the Austin Police Department testified that on
August 12, 2012, he was on patrol in Southwest Austin when "a call came out as a
burglary urgent hotshot," which is "a way for dispatch to notify... [police officers]
that... [they] need to run lights and sirens, which is also a code 3." Officer Sargent
then testified in relevant part as follows:
I arrived on Edgeware and parked I believe it was in front of 1912, which is
just west of 1910. I parked on the north side of Edgeware. And as I exited
my patrol car I walked toward the front yard of 1910. I saw a white female

standing in front of 1912 who stated the people that lived in 1910 weren't
home. And I also noticed a tan older model Chevy Blazer in the driveway of
1910 Edgeware.
I walked along the curb and about right here I saw the front door. There is a

screen glass door in front of the main door that goes into the house. Both
doors appeared to be closed, as I was checking the area I saw the front door
open. As the front door opened I saw a Hispanic male just inside the
doorway. He was wearing a red shirt, kind of loose fitting. When he saw me,
he said, oh, shit, and shut the door and went back inside the house.
So when I saw somebody was inside the residence, I asked for more officers
to arrive on Edgeware to help me out. And then I also sent officers to Glen
Allen, which is the street north of Edgeware, in case whoever was in the

house went through the backyard.
A little bit oftime went by, I don't know, maybe a minute, and then I was still
in the front yard approximately 20 or 30 feet away from the front door. I
heard what sounded like a fence breaking in the backyard so I advised
dispatch and other officers arriving on scene that the suspects or whoever was
in the house were possibly going through the backyard.

Officer Sargent then testified that another officer detailed Perez and brought him to
1910 Edgeware Drive, where Officer Sargent was able to identify Perez as the person
he saw standing in the doorway. At trial, Officer Sargent also identified Perez in the
courtroom as the person he saw standing in the doorway. He testified that he was

This case was transferred to the Texas Court of Appeals ii Corpus ChristiEdinburg from the Third Court
of Appeals in Austin pursuant to a docket equalization order issued by the Texas Supreme Court. See TEx. Gov'T CODE
2

Arm.

§

73.001 (West 2005).

-3-

"[o]ne hundred percent certain" that Perez was the individual he saw standing in the
doorway."
Perez, 2013 WL 6924046, at
C.

*1_2.3

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

Petitioner's counsel was ineffective for:
a.

b.
c.
d.
e.
f.
g.

failing to consult with or advise Petitioner and failing to determine whether
he was guilty of the crime charged;
failing to object to photographic evidence introduced without witnesses
present;
failing to present evidence of clothes Petitioner was wearing;
failing to investigate the case properly;
representing Petitioner despite a conflict of interest;
failing to convey a plea offer from the State; and
failing to object to the trial court's decision not to direct a verdict in
Petitioner's favor.

2.

The evidence was insufficient to support a conviction, and exculpatory evidence
proves Petitioner's innocence.

3.

The Police improperly investigated the case.

4.

The State committed perjury.

Petitioner's rights were otherwise violated because of a miscarriage ofjustice.4

Petitioner objects to the factual background ofthe Court of Appeals as interpreted in the R&R, arguing he was
never on the burglarized property and was detained at a different location. The merits of Petitioner's objections,
however, are irrelevant. What actually occurred on the day of Petitioner's arrest is not at issue in this Application for
Habeas Corpus Relief. See analysis infra Part C.
' Grounds 1 (e)(g) and 5 were raised by Petitioner for the first time in his Reply. See Pet. 's Reply [#15] at 2-5.
While these ground would typically be waived, the Court will address them because Petitioner is proceeding pro se. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007).

D.

Exhaustion of State Court Remedies
Respondent argues Petitioner's second claim is unexhausted and procedurally barred because

he failed to raise the claim to the Court of Criminal Appeals in a petition for discretionary review.

Respondent does not challenge Petitioner's remaining claims on exhaustion grounds.

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, 562 U.S. 86, 131 S. Ct. 770, 783-85 (2011). The Court noted 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 "[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

-5-

all of the Courts of Appeals' decisions on this question, the Court concluded 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 it had previously

concluded "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.
§

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) (quotation

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 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 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 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.

Ineffective Assistance of Counsel

I.

Legal Standard
Ineffective assistance of counsel claims are analyzed under the well-settled standard set forth

in Strickland v. Washington, 466 U.S. 668 (1984):

First, the defendant must show that counsel's performance was deficient. This
requires showing that counsel made errors so serious that counsel was notfunctioning
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. In deciding whether counsel's performance was deficient, the Court applies a standard

of objective reasonableness, keeping in mind judicial scrutiny of counsel's performance must be
highly deferential. Id. at 686-689. "A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

-7-

counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."
Id. at 689. "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." Id. (citation omitted). Ultimately, the
focus of inquiry must be on the fundamental fairness of the proceedings whose result is being

challenged. Id. at 695-97. Accordingly, in order to prevail on a claim of ineffective assistance of
counsel, a convicted defendant must show (1) counsel's representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's

unprofessional errors, the result of the proceeding would have been different. Id. at 687.

II.

Application
In his first ground for relief, Petitioner argues his trial attorney's performance was ineffective

for: (1) failing to consult with or advise Petitioner and failing to determine whether he was guilty of

the crime charged; (2) failing to object to photographic evidence introduced without witnesses

present; (3) failing to present evidence of clothes Petitioner was wearing; (4) failing to investigate
the case properly; (5) representing Petitioner despite a conflict of interest; (6) failing to convey a plea

offer from the State; and (7) failing to object to the trial court's decision not to direct a verdict in

Petitioner's favor.
Because they are based on the same alleged omissions by Petitioner's trial attorney, the Court
will address Petitioner's first and fourth ineffective assistance of counsel claims together. In these

claims, Petitioner argues his trial counsel was neglectful by failing to consult with him, failing to
inquire about or prepare any potential defense, and failure to attempt to determine whether he was

guilty of the charged offense. Petitioner also claims his trial counsel failed to investigate his case
by not reviewing the prosecutor's file, not conducting an independent investigation of the case, not

interviewing the State's witnesses, and not reviewing the enhancement allegations.
As thoroughly described in the R&R, Petitioner has failed to specify what facts would have

been uncovered and how these facts would have been outcome-determinative had his trial attorney
(a) properly consulted with him or (b) conducted a more comprehensive investigation. These

omissions are fatal to his claims. See, e.g., Trottie

v.

Stephens, 720 F.3d 231, 243-48 (5th Cir.

2013). Moreover, the Fifth Circuit has made clear conclusory allegations of ineffective assistance

of counsel do not raise a constitutional issue in a federal habeas proceeding. Ross

v.

Estelle, 694

F.2d 1008, 1012 (5th Cir. 1983). Petitioner's failure to include any specific facts or evidence
concerning his trial attorney's alleged negligence means he does not raise constitutional issues before

this Court.

Next, Petitioner faults his attorney for failing to object to the delayed introduction of a

photograph of another man standing in front of a vehicle at the scene of the crime. According to
Petitioner, this photograph was admitted after three eyewitnesses had testified and left the courtroom,
meaning the eyewitnesses could not have made a positive identification without viewing and

examining all of the

evidence.5

However, Petitioner provides no reason why his attorney should have objected to the
photograph at an earlier time and, even if there was a basis for objection, how either its exclusion
or its admission during one of the eyewitness's testimony would have affected the outcome of the

In his objections, Petitioner clarifies that he does not claim counsel was ineffective for failing to object to the
admission of the evidence at all but rather that he was ineffective for failing to timely object to the admission of the
evidence after all three eyewitnesses had left the courtroom. See Objections [#211 at 3.

trial. To the extent Petitioner argues the eyewitnesses' testimony would have been different had they

seen the photograph, he fails to explain how his attorney could have introduced it at trial. Officer
Sargent identified Petitioner, not the man in the photograph, as the burglar and this was a sufficient

basis for the jury to convict him.

Petitioner also alleges his attorney was ineffective for failing to admit into evidence the
clothing Petitioner wore the night of his arrest: a red shirt and light gray pants. However, Petitioner
is unable to overcome the presumption his attorney's decision to exclude the evidence might be

considered sound trial strategy, particularly after all three eyewitnesses described the suspect as
wearing clothes similar to the very clothes Petitioner argues should have been admitted.

See

R&R

[#18] at 9; Strickland, 466 U.S. at 689 (providing trial strategy is presumed to be reasonable and not

a basis for ineffective assistance of counsel). As noted by the Magistrate Judge, it seems the

admission of Petitioner's clothes would actually strengthen the State's case considering each
eyewitness reported a man in a red shirt.
In his Objections, it appears Petitioner also faults his attorney for another reason, insisting

one of the eyewitness' description of the suspect in court was inconsistent with the description

Petitioner believes the eyewitness described in a police affidavit.

See

Objections [#2 1] at 4.

Petitioner seems to claim his attorney should have shown the court the eyewitness' description was
therefore "wrong or uncertain." Id. Petitioner's objection is merely an attempt to argue the facts as
he believes them to exist. Other than Petitioner's own recollection of a conversation he claims he

had with his attorney about a "police affidavit," Petitioner provides no evidence showing a prior

description was inconsistent with the eyewitness's testimony at trial. Moreover, the record shows

Petitioner's attorney made a significant effort to question the eyewitness's credibility, cross-10-

examining him extensively about the suspect's clothing and his own eyesight.

See St.

Ct. R. [#1 1-6]

at 16-22. Petitioner fails to raise any constitutional issue before the Court.

Next, Petitioner claims his attorney was predisposed against him because Petitioner had
previously filed a grievance against him. Because Petitioner is unable to provide anything more than
a conclusory allegation of an actual conflict, the Magistrate Judge properly concluded this claim
fails, and Petitioner does not object in this regard.

Petitioner's next ineffective assistance claim alleges his attorney failed to convey a plea offer
to him from the state. However, as explained by the Magistrate Judge, this claim is without any

factual basis considering Petitioner received, and rejected, the plea offer in open court.

Petitioner's final ineffective assistance claim alleges his attorney failed to object to the

court's refusal to direct a verdict of not guilty. However, Petitioner's claim fails because his attorney
never moved for a directed verdict.
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 28 U.S.C.
§

2254, as amended by the AEDPA, bars habeas corpus relief on Petitioner's claim he received

ineffective assistance of trial counsel.
C.

Insufficiency of the Evidence
Petitioner presented his second ground for reliefthe evidence was insufficient to support

his

convictionin his direct appeal and in his state application

for habeas relief. However,

sufficiency of the evidence claims may only be raised on direct appeal and may not be raised in a

-11-

state habeas proceeding. See, e.g., West

v.

Johnson, 92 F.3d 1385, 1389 n.18 (5th Cir. 1996).

Consequently, the Court looks to his direct appeal to determine whether his claim is exhausted.
To properly exhaust his sufficiency of the evidence claim on direct appeal, Petitioner is

required to present his claim to the Texas Court of Criminal Appeals for review. See Finley

v.

Johnson, 234 F.3d 215, 219 (5th Cir. 2001). Because Petitioner failed to file a petition for
discretionary review to the Texas Court of Criminal Appeals, Petitioner's claim is defaulted and
beyond this Court's review. See Satterwhite
D.

v.

Lynaugh, 886 F.2d 90, 92-93 (5th Cir. 1989).

Improper Police Investigation
The Magistrate Judge concluded Petitioner's next

claimthe police

failed to conduct a

thorough investigation of the burglaryis not cognizable under 28 U.S.C. § 2254. In his objections,
Petitioner only reiterates his original claim, arguing the investigating officers violated one of his
constitutional rights, and fails to address the Magistrate Judge's conclusion this claim belongs in a
civil action under 42 U.S.C.

§

1983.

Because this Court agrees with the Magistrate Judge,

Petitioner's improper police investigation claim is dismissed.
E.

Perjury by the State
Petitioner next claims the district attorney's brief to the Court of Appeals incorrectly stated

certain eyewitnesses' description of the suspect matched the clothes Petitioner was wearing the night
he was arrested and, for that reason, the State committed perjury.

Contrary to Petitioner's

allegations, however, the State's description was consistent with the witnesses' testimony at trial and
only inconsistent with Petitioner's own interpretation of the events. Because the district attorney's

brief did not include an incorrect statement of the facts, Petitioner's claim is without merit.

-12-

F.

Miscarriage of Justice
In alleging a miscarriage ofjustice, Petitioner makes several claims already addressed and

adds three more, all of which the Magistrate Judge correctly found to lack any factual support. First,

Petition claims he was denied his due process right to examine all of the State's evidence. However,

Petitioner's attorney testified to having open access to the State's file and there is no evidence the
State withheld anything material from Petitioner. See R&R [#18] at 15; Brady v. Maryland, 373
U.S. 83, 87(1963) (".

.

.

the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to punishment.

. .

Next, Petitioner alleges he was questioned without counsel present after his arrest and was
never given Miranda warnings. However, Petitioner provides nothing to substantiate his Miranda
claim. As explained by the Magistrate Judge, Petitioner does not explain how any information he

revealed without an attorney present, if any, was used against him in trial. See R&R [#191 at 15.
Finally, Petitioner claims he was denied a preliminary hearing to determine whether the

evidence was sufficient to proceed to trial. However, Petitioner fails to show or identify any
constitutional violation. As explained by the Magistrate Judge, Petitioner's arrest, indictment, and
conviction were supported by Officer Sargent's observations from the day of the burglary and the

State's evidence against him.

Conclusion
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. Consequently, the Court agrees with the Magistrate
Judge that Petitioner's request for habeas relief is unwarranted.
-13-

An appeal may not be taken to the court of appeals from a final order in a proceeding under
§

§

2254 "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C.
2253(c)(1)(A). Pursuant to Rule

effective December

1,

11

of the Federal Rules Governing Section 2254 Proceedings,

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 movant has made a substantial showing of

the denial of a constitutional right. 28 U.S.C.

§

2253(c)(2). The Supreme Court fuiiy 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 rejects a movant'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, thatjurists

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 denial of Perez's

§

2254 petition on

substantive or procedural grounds, nor find 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)). Thus, a certificate of appealability shall not issue.

-14-

Accordingly
IT IS ORDERED that Petitioner Amado Perez, Jr.'s Objections [#21] are

OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation of the United

States Magistrate Judge [#18] is ACCEPTED;
IT IS FURTHER ORDERED that Petitioner Amado Perez Jr.'s Application for

Habeas Corpus Relief [#4] is DENIED;
IT IS FINALLY ORDERED that a certificate of appealability is DENIED.

SIGNED this the

day of December 2015.

SAM SPARKS (I
UNITED STATES DISTRICT JUDGE

880 2254 ord mns.frm

15