Vizcarra v. Reagans

Filing 21

MEMORANDUM OPINION AND ORDER. IT IS ORDERED that Vizcarra's petition under 28 U.S.C. § 2254 for a writ of habeas corpus is DENIED, and his cause is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Vizcarra is DENIED a certificate of appealability. IT IS ALSO ORDERED that all pending motions are DENIED AS MOOT. Signed by Judge David Briones. (gp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
TOMAS VIZCARRA, TDCJ No. 779968,

Petitioner,

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2:i

;

t4

;

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v.

EP-1O-CV-159-DB

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KENNETH REAGANS, Warden,
Respondent.

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MEMORANDUM OPINION AND ORDER
The Fifth Circuit Court of Appeals remanded Petitioner Tomas Vizcarra's petition under
28 U.S.C.

§

conviction2

2254 for a writ of habeas corpus (ECF No.

1)1

challenging his 1997 murder

for further proceedings in light of the Supreme Court's decision in McQuiggin v.

Perkins, 133 5. Ct. 1924 (20l3). In his petition, Vizcarra asserted he was actually innocent, the
Texas Court of Criminal Appeals erred during his state habeas proceedings, and his trial counsel
provided constitutionally ineffective

assistance.4

Respondent Rick

Thaler5

answered by claiming

'"ECF No." in this context refers to the Electronic Case Filing number for documents
docketed in this case. Where a discrepancy exists between page numbers on filed documents and
page numbers assigned by the ECF system, the Court will use the latter page numbers.
2

Vizcarra

State v. Vizcarra, No 76368 (205th Dist. Ct., El Paso County, Tex. Feb. 20, 1997), aff'd,
v. State, No 08-97-00 103 (Tex. App.
El Paso Jun. 4, 1998, pet. ref d).

Vizcarra v. Reagans, No. 11-50672, 2015 WL 1933671 (5th Cir. Apr 29, 2015). See
also Vizcarra v. Thaler, 133 S. Ct. 2763 (2013).

Pet'r's Pet. 5-19, ECF No.

1,

Apr. 29. 2010.

Vizcarra, a prisoner at the Ramsey Unit operated by the Correctional Institutions
Division of the Texas Department of Criminal Justice, named Kenneth Reagans, the Senior
Warden at the Ramsey Unit, as Respondent. However, an application for writ of habeas corpus
"must name as respondent the state officer who has custody" over petitioner. 28 U.S.C. foil. §
2254 Rule 2(a). In his petition, Vizcarra challenged a state conviction which resulted in his
incarceration in the Correctional Institutions Division. Therefore, Rick Thaler, the Correctional
Institutions Division Director was the proper Respondent at the time Vizcarra filed his petition.
Accordingly, Thaler filed an answer in this case.

P:

L:

5

that the statute of limitations in 28 U.S.C.

§

2244(d) barred Vizcarra's petition. Alternatively,

Thaler argued that infirmities in the state habeas process were not cognizable in a federal habeas
and Vizcarra failed to demonstrate that the court of criminal Appeals denial of his

action,6

ineffective assistance of counsel claim was objectively unreasonable.7 After noting "that a claim

of actual innocence is neither an exception to the statute of limitations nor will it toll the
limitations period," the Court denied Vizcarra's petition as time barred.8 The Supreme Court
subsequently held in McQuiggin that "a credible showing of actual innocence may allow a
prisoner to pursue his constitutional claims.. . notwithstanding the existence of a procedural bar

to relief."9 Accordingly, the Supreme Court remanded the case for further proceedings.'°

BACKGROUND AND PROCEDURAL HISTORY
The evidence in the State's case file established that on evening of October 14, 1994,
Daniel Ocon picked up Tomas Vizcarra at his residence. The two consumed alcoholic beverages
as they cruised the streets of El Paso, Texas, in Ocon's Chevy Malibu. Upon arriving at the Ven

A Verme Lounge in downtown El Paso, the two separated. Ocon stayed at a table near the dance
floor while Vizcarra ordered a beer and sat near a pooi table. Ocon approached two women and
insisted that they dance with him. When they refused and Ocon would not leave them alone,
Juan Holguin confronted Ocon and attempted to prevent Ocon from further harassing the women.

6

Resp't's Answer 15, ECF No.

9. Oct. 14, 2010 (citing Henderson v. Cockrell, 333 F.3d

592, 606 (5th Cir. 2003)).
71d. at

18-27.

Vizcarra v. Thaler, EP-10-CV-159-DB, 2011 WL 2471285, at *3, *4 (W.D. Tex. Jun
20, 2011) (citing Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) ("Cousin's claims of
innocence do not preclude the dismissal of his petition as untimely.")).
8

9McQuiggin
'°

v.

Perkins, 133 S. Ct. at 1931.

Vizcarra v. Thaler, 133 S. Ct. 2763 (2013).
-2-

The confrontation rapidly deteriorated into physical contact. Several bar patrons intervened and

forcefully removed Ocon from the lounge. Moments later, a male with a handgun walked up to
Holguin and shot him in the head. Holguin later died of brain injuries as a result of a close-range

gunshot wound to the head.
Maria Velia Carzoli Moncayo ("Carzoli"), a barmaid who had worked at the lounge for
over six years, observed the incident as it developed. Within hours of the shooting, she provided

police officers with the following unsworn and unsigned statement describing the shooting:
ON OCT. 14, 1994 I WENT INTO WORK AT 7:00 P.M. IT WAS
BUSINESS AS USUAL FOR A FRIDAY NIGHT. THE PLACE WAS
ALMOST FULL OF PEOPLE. I WENT ABOUT MY DUTIES. AT
APPROX. 11:30 P.M. I NOTICED THAT A MEXICAN MALE WEARING
A MULTI COLORED WITH BLACK BEING THE MAIN COLOR
SWEATER, STONE WASHED JEANS WAS WANTING TO DANCE
WITH THE GIRL THAT WAS WITH THE GUY THAT GOT SHOT. THE
GUY WHO GOT SHOT KEPT TELLING THE GUY IN THE SWEATER
TO LEAVE THEM ALONE. I EVEN HEARD HIM AS TO PLEASE
LEAVE THEM ALONE THAT SHE WASN'T GOING TO DANCE WITH
HIM. THEY BOTH THEN GOT INTO A FIGHT, THE VICTIM WAS THE
ONE WHO THREW THE FIRST PUNCH. WHILE THEY WERE
FIGHTING SOME OF THE REGULARS SEPARATED THEM. THEY
GOT THE VICTIM AND TOOK HIM TO THE SIDE OF THE BAR. THE
OTHERS TOOK THE GUY IN THE SWEATER OUTSIDE. WHILE
THEY WERE TAKING HIM OUTSIDE THE OTHER MAN WHO WAS
WITH THE GUY WITH THE BLACK SWEATER CAME IN FROM
OUTSIDE. HE WAS WEARING DARK BLUE PANTS WITH A DARK
BLUE WINDBREAKER. HE WENT UP TO WHERE THE GUY THAT
GOT SHOT WAS STANDING. AS SOON AS HE APPROACHED HIM
HE POINTED A BLACK GUN AT HIS FACE AND SHOT HIM
WITHOUT EVEN SAYING ANYTHING. AS SOON AS HE SHOT HIM
HE WALKED FAST AND WENT OUTSIDE. I THEN TOLD THE GUYS
TO HOLD HIM. HE WENT OUT THE FRONT DOOR AND I WENT
OUT THE REAR DOOR. JUST BEFORE HE GOT TO THE CAR I
GRABBED HIM FROM THE JACKET AND TOLD HIM NOT TO
LEAVE. I THEN YELLED AT THE GUYS SO THAT THEY WOULD GO
TO WHERE I WAS AT. THE GUY WHO SHOT THE OTHER THEN
GOT INTO A BLUE MALIBU AND STARTED THE CAR. BY THIS
TIME THE GUYS GOT THERE. ONE OF THE GUYS PARKED HIS
-3-

CAR BEHIND THE MALIBU. THE GUY IN THE MALIBU THEN TRIED
TO PUSH THE CAR PARKED BEHIND HIM AWAY SO THAT HE
COULD LEAVE. I COULD EVEN SEE A LOT [SIC] OF SMOKE
COMING FROM THE TIRES OF THE MALIBU. THE GUYS THEN
OPEN THE DOOR AND I THEN TOLD THEM THAT HE WAS THE
ONE WHO HAD SHOT THE OTHER GUY. THE GUY IN THE MALIBU
THEN POINTED TO ME AND TOLD ME TO SHUT UP FOR ME NOT
TO SAY ANYTHING. HE THEN REACHED DOWN FOR THE GUN
AND THATS [SIC] WHEN EL CHANGO STARTED TO BEAT HIM UP,
AND THEY HELD HIM FOR THE POLICE. A SHORT MAN DRESSED
IN BLUE GOT THERE IN A TRUCK AND TOLD THEM THAT HE WAS
A POLICEMEN AND FOR NOBODY TO LEAVE. WE THEN WAITED
FOR THE POLICE TO ARRIVE. THEN THEN [SIC] BROUGHT US
HERE TO THIS OFFICE.

HAVE BEEN SHOW [SIC] 2 MEXICAN MALES AND I HAVE
POSITIVELY IDENTIFIED THEM AS BEING THE ONES WHO WERE
INVOLVED IN THE SHOOTING. THE GUY WHO AS WEARING THE
BLACK MULTI COLORED SWEATER AND THE STONEWASHED
JEANS WAS THE ONE WHO STARTED EVERYTHING AND THE ONE
WITH NO SHIRT AND DARK BLUE PANTS WAS THE ONE WHO I
SAW SHOOT THE OTHER GUY. I DON'T KNOW THE NAME OF THE
GUY WHO GOT SHOT BUT HE WAS A REGULAR CUSTOMER OF
THE BAR. THE ONE IN THE SWEATER ALSO IS A REGULAR
CUSTOMER BUT THE ONE WHO DID THE SHOOTING WAS THE
FIRST TIME THAT I SAW HIM AT THE BAR.11
I

Based on Carzoli's statement and other evidence, a state grand jury in El Paso returned an
indictment charging Vizearra with Holguin's murder. The indictment specifically alleged
Vizcarra caused Holguin's death by shooting him in the head with a firearm. Although police
officers arrested Ocon along with Vizcarra, a grand jury never indicted Ocon for Holguin's
murder. Vizcarra pleaded not guilty and proceeded to trial.

"Pet'r's Pet,
1-1, Apr. 29, 2010.

Ex. D-1 (Unsworn Statement of Martha Velia Carzoli Moncayo), ECF No.

According to Vizcarra's attorney, "the trial strategy was to attempt to convince the jury

that Daniel Ocon was the murderer.
Carzoli."2

.

The state had one identification witness, Martha

During Carzoli' s direct examination, she identified Vizcarra as the shooter:

Q
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Okay. And will you take at look at state's Exhibit Number Four,
which is a picture of Daniel Ocon. Is that Daniel Ocon?
Uh-huh. Yes.
And when was the first time that you saw him in the bar; not the day
of the shooting, but the first time you saw him came into the bar?
Well, he used to go frequently.
Okay. So, he would be considered a regular?
Well, not exactly a regular; but, yes.
He would go to the bar?
Yes.

(BY MR. LIGON:) Okay. Now, State's Exhibit Number Three -which is Tomas Vizcarra -- before October 14th, 1994, did you see
him in the bar?
No, ma'am. I had never seen him before. It was the first time that I
saw him.

Now, did you at any point see Tomas Vizcarra and Daniel Ocon get
into an argument with Juan Holguin, the person who was shot that
night?
Yes.
And which two got in an argument?
This one, Ocon, and the Cholo.
That would be Daniel Ocon and Juan Holguin got into an argument;
that's what you saw?
Yes.
And where was Tomas Vizcarra when this happened?
Standing there by a pole, just near, close to him.
Okay. Now, can you tell me what happened or. what did
JuanHolguin, the person that you call Cholo, do to Daniel Ocon.
He didn't do anything. The one with the sweater, or wearing a
sweater, was the one that wanted to invite Cholo' s girlfriend. But, he
didn't allow that.

Pet'r's Pet.

21 (Aff.

of Matthew DeKoatz), ECF No.
-5-

1, Apr. 29, 2010.

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Now, after Mr. Holguin got up and started talking to Mr. Ocon, what
happened then?
Well, they just wanted to fight;- but in there, no one allowed it to
happen.
Okay. And so, what happened to Daniel Ocon and Tomas Vizcarra
and after they tried to fight?
Nothing. They were kicked out of the bar and then the guy with the
tattoo --

Now, at any point, did Daniel Ocon or Tomas Vizcarra come back
into bar?
Only the one with the -- Number Three.
I'm showing you State's Exhibit Number Three. That's a picture of
Tomas Vizcarra. Is that the one?
Yes.
Did Daniel Ocon come back into the bar?
No. No stayed in the door.
Okay.
Or by the door.
Okay. Now, what did Tomas Vizcarra do when he came back into the
bar?
He just came in, and pulled out a gun and shot El Cholo. That was
all he did.
(BY MR. LIGON:) When Tomas Vizcarra came in through the front
door, where did he have the gun?
Immediately towards where the Cholo was.
Where did he have the gun?
He took it out. I don't know where from; a jacket or something that
he had on.
Now, did he already have the gun out when he came in the door or he
took it out when he was walking towards the door?
He took it out when he was on his way.
And did you see-- did he say anything to the Cholo, Mr. Juan
Holguin?
No. When he killed him? No.
Did Juan Holguin say anything to him?
No. How could he do that when he was on his back when he received
the shot?
Okay. Now, is the person who shot Juan Holguin in the courtroom

today?

A

Yes.
Can you point him out and describe what- he's wearing today
Q
A
Yes. A white shirt, a blue tie and black shoes.
MR. LIGON: Your Honor, may the record reflect thatthe witness has
identified Tomas Vizcarra as the shooter in this case.
THE. COURT: The record shall reflect.

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(BY MR. LIGON:). I'm showing you what has been marked as
State's Exhibit Number Three. Can you give a description to the jury
of what that person looks like.
He doesn't wear a T-shirt and he's tattooed and he's wearing black
pants, white socks and black shoes.
Does he have one tattoo or more than one tattoo?
He has a lot of them
Now, what did the people inside the bar do after Mr. Vizcarra tried to
run out the door?
We first screamed and then we tried to catch him, because he wanted
to leave.
Who tried to catch him?
Several clients that were there in the bar.
Do you remember how many of them?
The ones that were -- that went after him. It was about five, or four
or five.
And were you able to catch him inside the bar?
No.
Where'd he go?
When he was about to get into his car.
What about Daniel Ocon; where was he?
He was already in the car.
And did Daniel Ocon ever come back into the bar after he was thrown
out that night?
No.
Now, did -- when you all got outside, did the people in the bar beat
up Tomas Vizearra and Daniel Ocon?
No.
Did they -What they did is, they only tried to hold them, because they wanted
to leave.
Well, while in the process, did Daniel Ocon and Tomas Vizcarra get
scratched up or have marks on them?
Well, yeah because, they struggled and wrestled because they wanted
to leave and we didn't want them to leave.
-7-

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Did all of this happen before Juan Holguin got shot or after Juan
Holguin got shot?
No. No. It was after he killed the Cholo. Then, this is when all of us
held them so that they wouldn't leave.
Now, were you, yourself, outside trying to hold these people back; I
mean, trying to keep them from leaving?
Yes.
How many other people were out there?
Adrian, and Chino, and two other young boys that I don't know, and
another lady and me.
And did somebody park their car in front of the vehicle that Tomas
Vizcarra and Daniel Ocon were in?
Yes. Chino.

Q

Do you have a good view of Tomas Vizcarra when he shot Juan
Holguin?
Yes, ma'am.
How many shots did you hear inside that bar that night?
Only one.
How many shots did you hear outside the bar that night?
None.
Now, Tomas Vizcarra had a gun in his hand. Did he have the gun in
his hand the entire time?
Yes.
Did you ever see Daniel Ocon with a gun in his hand?

A

No.'3

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On cross examination, Carzoli added that Ocon had cashed checks at the lounge, but
explained her recollections of the events on the evening of October 14, 1994 were less than perfect
because a long time had passed since the shooting:

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Okay. Very well. And Mr. Ocon, what did you know him as?
Because he used to go there also.
Did you know him by his name or by his face?
By his face.
Very well. Who told you his name was Daniel Ocon?
Because we cashed checks for him about two or three times.

Id., Ex. J (Trial Tr., Testimony of Martha Velia Carzoli), Document 1-3, pp. 22-24,

26-29, Document 1-4, pp. 1-5.

And now two years have gone by, right?
Yes, ma'am..
You are remembering things a little bit differently than what you told
the police, right?
Well, I think yes; because, it's been a long time and I didn't
remember well.'4

Q

A
Q

A

On February 6, 1997, after hearing the evidence and arguments of counsel, the jury found

Vizcarra guilty of murder as alleged in the indictment. The following day, the jury assessed

Vizcarra's punishment at 99 years' imprisonment.'5 The Eighth Court of Appeals of Texas
affirmed the conviction on June 4, 1998,16 and the Texas Court of Criminal Appeals refused

Vizcarra' s petition for discretionary review on December 2, 1998.17
Vizcarra filed an application for state writ of habeas corpus challenging this conviction on
August 10, 2007. Appended to the application was an affidavit from Carzoli, dated November
11, 2006, in which she said she was no longer sure about her eyewitness

identification:18

Recently; the attorneys representing Mr. Vizcarra in a proceeding to
set aside the guilty verdict demonstrated to me that discrepancies and
inconsistencies existed in my original testimony. These attorneys also
pointed out to me the content of my original statement and testimony, which
reflects that I followed the shooter out to a Chevy Malibu, which he started
up and attempted to drive off in before I and other patrons of the lounge
pulled him out of the vehicle and held him for the police. This is true. They
also pointed out to me that one Daniel Ocon admitted to leaving the scene
right after the shooting, and to starting up the Chevy Malibu which the
shooter entered before being pulled out ofthe vehicle. If this is true, it would
appear that Mr. Ocon may have been the shooter and the person I followed

14

Id., Ex. J., Document 1-4, pp. 11, 16.

15

State

v.

Vizcarra, No 76368 (205th Dist. Ct., El Paso County, Tex. Feb. 20, 1997).

18

Vizcarra

v.

State, No 08-97-00 103 (Tex. App.El Paso Jun. 4, 1998).

Vizcarra

16

v.

State, PD-1303-98 (Tex. Crim. App. Dec. 2, 1998).

Pet'r's Pet. 7, n.7, ECF No.

1,

Apr. 29, 2010.

out of the Ven A Verme Lounge on the evening of the shooting which
resulted in the death of the other male individual in the Ven A Verme
Lounge.
Please understand that I am not saying that Mr. Ocon was the shooter.
I merely wish to state that I was not really sure of the identification I made on
this date. This is the truth. Knowing Ocon's admission to having tried to
drive off after the shooting, I am now concerned that I mistakenly identified
Mr. Vizcarra as the shooter. The Lounge, was poorly lit on the evening of the
shooting and with the many people inside the Lounge, it was an impossible
task to observe everything that occurred. At the time, I was mad and wanted
to help and I was angry about what had occurred in the Lounge. But now I
am not sure about my identification. Accordingly, I hereby recant and now
state that am not sure that the person responsible for the shooting in the Ven
A Verme Lounge was Tomas Vizcarra.'9
The Court of Criminal Appeals denied Vizcarra' s application without written order on

May 21, 2008. Vizcarra filed the instant
In his

§

§

2254 petition on April 29, 2010.

2254 petition, Vizcarra asserted the following grounds for relief:

The Court of Criminal Appeals erred during the state habeas proceeding,
when it denied Vizcarra's free-standing, actual innocence claim;
1.

2. Vizcarra was denied the effective assistance of counsel because trial

counsel:
(a) failed to develop the information contained in Martha Carzoli's
written statement regarding the events occurring after the shooting;

(b) failed to call Daniel Ocon as a witness to establish that Ocon
actually fired the gun that killed the decedent;

(c) failed to question Adrian Cellar Sanchez about his post-shooting

observations;
(d) failed to establish the locations of various items of clothing, by
means of a crime scene report;

19

Id., Ex. M (Aff. of Martha Carzoli), ECF No. 1-4, pp. 30-3 1.
-10-

(e) failed to call Benito Poundage, Jr., to testify regarding his written

statement;
(f) failed to question Jose Diaz Esparza about his written statement;

(g) failed to prove that Ocon owned the vehicle "used by the shooter"

to flee;
(h) failed to discuss the results of a gunshot residue test performed on
both Vizcarra and Ocon;
3. The state habeas procedures were erroneous because they failed to give due

consideration to the post-trial affidavit provided by Martha Carzoli; and

of Criminal Appeals failed to provide Vizcarra a fair and
adequate hearing on his Article 11.07 actual innocence claim by basing its
rulings on the inaccurate findings and conclusions of the State.2°
4. The Court

Respondent Rick Thaler maintained in his answer that the one-year limitations period in
28 U.S.C.

§

2244(d) barred Vizcarra's claims.21 In its memorandum opinion and order, the Court

noted the limitations period ran from the latest of four different events: (1) when "the judgment
became final," (2) when "the impediment to filing an application created by the State action in
violation of the Constitution and laws of the United States is removed, if the applicant was

prevented from filing by such State action," (3) when "the constitutional right asserted was
initially recognized by the Supreme Court.

. .

and made retroactively applicable to cases on

collateral review," or (4) when "the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence."22 After reviewing the record, the Court
determined that Vizcarra had filed his § 2254 petition eleven years after his conviction became

20

Pet'r's Pet. 5-19.

21

Resp't's Resp.

1,

ECF No. 9, Oct. 14, 2010.

Mem. Op. Order 4, ECF No. 10, June 20, 2011 (quoting 28 U.S.C.
2244(d)( 1 )(A)(C)).
22

-11-

§

final, the State had not impeded his timely filing of a § 2254 petition, and Vizcarra had not based

his claims on a right newly recognized by the Supreme Court. Moreover, it determined that

Carzoli's affidavit, the factual predicate for his claim, did not cure the untimeliness because
Carzoli signed it on November 11,

2006some twelve years after the shootingbut Vizcarra

delayed filing his state application nine months until August 10, 2007. Furthermore, although the
Court of Criminal denied his state writ application on May 21, 2008, Vizearra waited nearly two
years to file his

§

2254 petition on April 29, 2010. Accordingly the Court determined that

Vizcarra untimely filed his petition and denied him relief.
The Fifth Circuit denied Vizcarra a certificate of appealability,23 but the Supreme Court

remanded the case to the Fifth Circuit "for further consideration in light of McQuiggin
569 U.S.

,

v.

Perkins,

133 S.C. 1924, 185 LED.2d 1019 (20l3).24 The Fifth Circuit, in turn, remanded

the case to this Court "[a]s to his claims of ineffective assistance of counsel

.

. .

for further

proceedings in light of the Supreme Court's decision in Perkins."25 The Fifth Circuit denied

Vizcarra' s motion for a certificate of appealability as to his state-law challenges, however,
explaining "[tb the extent that [his] underlying claims challenge the procedural adequacy of state

post-conviction proceedings, he fails to raise a cognizable issue under § 2254 because
'infirmities in state habeas proceedings do not constitute grounds for federal habeas relief.'

Reagans, No. 11-50672 (5th Cir. Apr. 13, 2012).

23

Vizcarra

24

Vizcarra v. Thaler, 133 S.Ct. 2763 (2013).

25

Vizcarra v. Reagans, No. 11-50672, 2015 WL 1933671 (5th Cir. Apr 29, 2015).

26

Id. (quoting

v.

DuffSmith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992)).
-12-

"26

APPLICABLE LAW
A. Collateral Review under 28 U.S.C. § 2254

"[Clollateral review is different from direct review,"27 and the writ of habeas corpus is

"an extraordinary remedy"28 reserved for those petitioners whom "society has grievously
wronged."29
system."3°

It "is designed to guard against extreme malfunctions in the state criminal justice

It provides an important, but limited, examination of an inmate's conviction and

sentence.3' Accordingly, the federal habeas courts' role in reviewing state prisoner petitions is

exceedingly narrow. "Indeed, federal courts do not sit as courts of appeal and error for state
court

convictions."32

They must generally defer to state court decisions on the

merits33

and on

procedural grounds.34 They may not grant relief to correct errors of state constitutional, statutory,
or procedural law, unless a federal issue is also

present.35

27

Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).

28

Id.

29Id at 634.
30

(1979)).

Id. (citing Justice Stevens's concurrence in Jackson v. Virginia, 443 U.S. 307, 332 n.5

' See

Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 787 (2011) ("{S]tate courts are
the principal forum for asserting constitutional challenges to state convictions.").
32

Dillardv. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).
Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).

' Coleman v. Thompson, 501 U.S. 722, 729-30 (1991); Muniz
220 (5th Cir. 1998).
Estelle
(5th Cir. 1996).

v.

v.

Johnson, 132 F.3d 214,

McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404
-13-

A federal court can only grant relief if "the state court's adjudication of the merits was

'contrary to, or involved an unreasonable application of, clearly established Federal law,'

"36

or

"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."37 The focus of this well-developed
standard "is not whether a federal court believes the state court's determination was incorrect but

whether that determination was unreasonablea substantially higher threshold."38
Moreover, the federal court's focus is on the state court's ultimate legal conclusion, not

whether the state court considered and discussed every angle of the

evidence.39

Indeed, state

courts are presumed to know and follow the law."4° Factual findings, including credibility
choices, are entitled to the statutory presumption, so long as they are not unreasonable "in light of

the evidence presented in the State court proceeding."4' Further, factual determinations made by

a state court enjoy a presumption of correctness which the petitioner can rebut only by clear and
convincing evidence.42 The presumption of correctness applies not only to express findings of

36Berghuis v. Thompkins, 560 U.S. 370, 378 (2010) (quoting 28 U.S.C.
28 U.S.C.
38

§

Schriro

§

2254(d)(1)).

Landrigan, 550 U.S. 465, 473 (2007).

v.

2254(d)(2).

39Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc); see also

Catalan v.

Cockrell, 315 F.3d 491, 493 (5th Cir. 2002) ("we review only the state court's decision, not its
reasoning or written opinion").
4°

Woodfordv. Visciotti, 537 U.S. 19, 24 (2002).

'28 U.S.C.

§

2254 (d)(2).

4228 U.S.C. § 2254(e)(1); see Clarkv. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006)

(noting that a state court's determination under

§

2254(d)(2) is a question of fact).

-14-

fact, but also to "unarticulated findings which are necessary to the state court's conclusions of

mixed law and fact."43

Claims under

§

2254 are generally subject to a one-year statute of limitations.44 In

McQuiggin, the Supreme Court determined "actual innocence, if proved, serves as a gateway

through which a petitioner may pass.

. .

the.

. .

expiration of the statute of limitations."45 The

Supreme Court added, "[i]n other words, a credible showing of actual innocence may allow a

prisoner to pursue his constitutional claims (here, ineffective assistance of counsel) on the merits
notwithstanding the existence of a procedural bar to relief."46 However, "[a] petitioner does not

meet the threshold requirement unless he persuades the district court that, in light of the new
evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable
doubt."47

Moreover, "in making an assessment 'the timing of the [petition]' is a factor bearing

on the 'reliability of thEe] evidence' purporting to show actual innocence."48 Furthermore, in

Herrera, the Supreme Court stated that "[c]laims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal habeas relief absent an independent
constitutional violation occurring in the underlying state criminal proceeding."49 Similarly, in

Valdez
'

v.

Cockerel, 274 F.3d 941, 948 n.1 1 (5th Cir. 2001).

See 28 U.S.C.

§ 2244(d)(l) (2012) ("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.").

McQuiggin

v.

Perkins, 133 S.Ct. 1924, 1928 (2013).

46Jd at 1931.
471d. at 1928 (quoting Schiup v. Delo, 513 U.S. 298, 329 (1995)); see House v. Bell, 547
U.S. 518, 538 (2006) (emphasizing that the Schiup standard is "demanding" and seldom met).

48Id. (quoting Schiup, 513 U.S. at 332).

49Herrera

v.

Collins, 506 U.S. 390, 399 (1993).
-15-

Schlup, the Supreme Court noted that a petitioner's "claim of innocence does not by itself

provide a basis for relief."50 Following that reasoning, the Fifth Circuit has repeatedly and

unequivocally held that the Constitution does not endorse an independent actual-innocence
ground for

relief.5'

In sum, the federal writ serves as a "guard against extreme malfunctions in the state
criminal justice systems," not as a vehicle for error correction.52 "If this standard is difficult to

meet, that is because it was meant to
B.

be."53

Ineffective Assistance of Counsel

Generally, an ineffective-assistance-of-counsel claim presented in a

§

2254 petition is

analyzed under the test set forth by the Supreme Court in Strickland.54 Under Strickland's

two-pronged inquiry, "[tb establish ineffective assistance of counsel 'a defendant must show

both deficient performance by counsel and prejudice.'

This means that a petitioner must show

that counsel's performance was outside the broad range of what is considered reasonable
assistance and that this deficient performance led to an unfair and unreliable conviction and

°

Schlup, 513 U.S. at 315.

'

Kinsel v. Cain, 647 F.3d 265, 270 n.20 (5th Cir. 2011).

52

Harrington v. Richter, 562 U.S. 86, 131 S.C. 770, 786 (2011) (citation omitted)

(emphasis added).
Id.

Strickland
Premo

v.

v.

Washington, 466 U.S. 668 (1984).

Moore,562 U.S. 115, 121 (2011) (quoting Knowles v. Mirzayance, 556 U.S.

111, 122 (2009)).

-16-

If the petitioner fails to prove one prong, it is not necessary to analyze the other.57

sentence.56

"Surmounting Strickland's high bar is never an easy

task."58

When the state courts have already

adjudicated the merits of a Strickland claim, "[a] state court must be granted deference and
latitude that are not in operation when the case involves review under the Strickland standard
itself."59

In sum, federal statutes give wide latitude to the state adjudication of a Strickland claim

through a "doubly deferential judicial review."60

ANALYSIS

Actually Innocent

A.

Vizcarra complains "the Court of Criminal Appeals failed to give due consideration to the
post-trial affidavit provided by Martha Carzoli submitted with [his writ] application" which, he
suggests, establishes his actual innocence.6' He maintains "Carzoli recanted her eyewitness

testimony which identified Vizcarra as the person who shot and killed the

decedent."62

He adds

"Carzoli confessed that she was not sure of her original eyewitness identification."63
In owning up to this point, Carzoli related in this affidavit that she did not
realize when she gave her trial testimony that her eye-witness identification

56

United States

v.

Dovalina, 262 F.3d 472, 474-75 (5th Cir. 2001),

See Armsteadv. Scott, 37 F.3d 202, 210 (5th Cir.1994) ("A court need not address both
components of the inquiry if the defendant makes an insufficient showing on one");'Carter v.
Johnson, 131 F.3d 452, 463 (5th Cir. 1997) ("Failure to prove either deficient performance or
actual prejudice is fatal to an ineffective assistance claim.").
58

Padilla v. Kentucky, 559 U.S. 356, 371(2010).

59Harrington

v.

Richter, 562 U.S. 86, 131 S.Ct. 770, 785 (2011).

60Knowles, 556 U.S. at 123;see also Cullenv. Pinhoister, 131 S.C. 1388, 1410 (2011).
61

Pet'r's Pet. 15, ECF No.

62

Id. (emphasis added).

63

Id.

1,

Apr. 29, 2010.

-17-

of Vizcarra as the person who killed the decedent was inconsistent with the
post-shooting account of events she detailed in her original written statement
to the police. In particular, Carzoli indicated in her affidavit that she was
unaware at the time she testified that Daniel Ocon had confessed to the police
in a written statement to being the person who she chased out of the
Ven-A-Verme Lounge right after the shooting to a Chevy Malibu, that Ocon
had admitted to starting up his Chevy Malibu and to having attempted to flee
the crime scene before he was pulled him from the vehicle. Carzoli also
explained that she was up set about the shooting and indicated that she should
have been more careful about her eyewitness identification, given the poor
lighting conditions inside the lounge and the large crowd of people who had
congregated inside the lounge on the evening of the shooting.64
To establish actual innocence, petitioner must demonstrate that," 'in light of all the

evidence,'

""it is more likely than not that no reasonable juror would have convicted him."65 As

the Supreme Court has explained, to show the actual innocence necessary to overcome a
procedural default in the habeas context," 'actual innocence' means factual innocence, not mere
legal insufficiency.'66 Moreover, as the Supreme Court explained in Schlup:
To be credible, such a claim requires petitioner to support his allegations of
constitutional error with new reliable evidencewhether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical

evidencethat was not presented at trial.67
In support of his actual innocence claim, Vizcarra first provides copies of unsworn,
written witness statements made to the police after the incident. Carzoli did report in her

unsworn statement, which she gave to the police within hours of the shooting, that "[t]he guy

Id.

Bousley v. United States, 523 U.S. 614, 623 (1998) (quoting Schlup
298, 327-328 (1995)).
65

66

Id. at 623-24 (citing Sawyer v.

Whitley,

505 U.S. 333, 339 (1992)).

67Schlup, 513 U.S. at 324 (emphasis added).

-18-

v.

Delo, 513 U.S.

who shot the other then got into a blue Malibu and started the
guy who was wearing the black multi colored sweater [Ocon].

car."68

. .

However, she also said "the

was the one who started

everything and the one with no shirt and dark blue pants {Vizcarra] was the one who [she] saw
shoot the other guy."69 She then added "[t]he one in the sweater [was] a regular customer but the
one who did the shooting was the first time that I saw him at the

bar."7°

Presumably, Carzoli

could distinguish between a regular patron and a new customer at the time of the shooting.
Furthermore, Ocon maintained in his unswom statement that he saw Vizcarra shoot the victim:
Yo nomas vi que Tommy estiro Ia mano y tiro un plomaso a un vato. Vi que
Tommy tenia algo brilloso. . . . Tommy era el que tiro el plomaso con una
pistola que estaba brillosa.7'

The statements are not new and do not tend to reliably prove Vizcarra' s innocence. They
do not suggest that Vizcarra could not have been the shooter. In fact, the statements by Carzoli

and Ocon identify Vizcarra as the shooter.

Vizcarra then provides portions of the original trial testimony taken approximately
twenty-seven months afier the incident, and suggests the cited portions of the transcript do not
strongly establish Vizcarra's guilt. At trial Carzoli unequivocally identified Vizcarra as the
shooter:
Okay. Now, what did Tomas Vizcarra do when he came back into
the bar?

Q

68

Pet'r's Pet, Ex. D-1 (Unswom Statement of Martha Velia Carzoli Moncayo), ECF No.

1-1, Apr. 29, 2010.
69

Id.

70

Id.

Id., Ex. D-2 (Unsworn Statement of Daniel Montoya Ocon) (Translated into English,
Ocon said "I just saw Tommy [Vizcarra] stretch his hand and shot a guy. I saw that Tommy had
something shiny
Tommy is the one that shot with a gun that was shiny.").
71

.....

-19-

He just came in, and pulled out a gun and shot El Cholo. That was
all he did.72

A.

Vizcarra' s theory appears to be that when Carzoli' s unsworn statements are weighed against

Carzoli's inculpatory testimony, the jury might have had a reasonable doubt as to Vizcarra's
guilt. Because his arguments challenge the legal sufficiency of the evidence available at his trial,

and do not present "new reliable" evidence, they are not persuasive under Schlup.73
The only "new" evidence Vizcarra presents is an affidavit by Martha Carzoli taken twelve
years after the incident. Vizcarra maintains that Carzoli "recanted her eyewitness testimony of

Vizcarra as the person who shot and killed the decedent" in this

affidavit.74

Carzoli does not, as

Vizcarra suggests, recant her earlier testimony in her affidavit. She merely suggests she may
have erred in identifring Vizcarra as the shooter:

Daniel Ocon admitted to leaving the scene right after the shooting, and to
starting up the Chevy Malibu which the shooter entered before being pulled
out of the vehicle. If this is true, it would appear that Mr. Ocon may have
been the shooter and the person I followed out of the Ven A Verme Lounge
on the evening of the shooting which resulted in the death of the other male.75

Notably, Carzoli does not now claim that Ocon was the shooter. In fact in Ocon's unsworn
statement, he claims that he also saw Vizcarra shoot the victim. Stated differently, Carzoli' s

affidavit only shows that she is no longer certain regarding her identification of the shooter

twelve years after the incident. This affidavit is clearly not the new and trustworthy eyewitness
account envisioned in Schlup.76

72

Id., Ex. J (Trial Tr., Testimony of Martha Velia Carzoli), Document 1-3, pp. 22-24.

Schiup

v.

Delo, 513 U.S. 298, 324 (1995).

Pet'r's Pet. 15, ECF No.

1, Apr. 29, 2010.

Id., Ex. M (Aff. of Martha Carzoli), ECF No. 1-4, pp. 30-31 (emphasis added).
76

Schiup v. Delo, 513 U.S. 298, 324 (1995).
-20-

In sum, Vizcarra has presented no new, reliable evidence to establish that he could not
have committed the offense for which he was convicted. Stated differently, because a jury could
still believe Carzoli' s prior testimony that Vizcarra was the shooter, Vizcarra cannot demonstrate

that it is more likely than not that no reasonable juror would have convicted him in light of the
evidence actually presented at trial.

Furthermore, unlike federal law, Texas law recognizes an inmate's innocence as a ground
for

relief.77

When Vizcarra asserted his innocence in his state habeas application, the Court of

Criminal Appeals rejected his argument. Factual determinations made by a state court enjoy a
presumption of correctness which the petitioner can rebut only by clear and convincing
evidence.78

Vizearra has not provided clear and convincing evidence that the Court of Criminal

Appeals erred when it rejected his actual innocence claim.

Vizcarra has not made a "credible showing of actual innocence" which would allow him

"to pursue his constitutional claims.
relief."79

. .

notwithstanding the existence of a procedural bar to

His petition is time barred and he may not obtain

B.

§

2254 relief.

Ineffective Assistance of Counsel

Assuming for the sake of argument that Vizcarra' s claims are not procedurally barred, he
is still not entitled to § 2254 relief. The Fifth Circuit granted a certificate

to Vizcarra's ineffective assistance of counsel

claims.80

of appealability only as

Before the Court will grant Vizcarra

relief on these claims, he must demonstrate "the state court's adjudication of the merits was

Exparte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); State ex rel. Holmes v.
Court ofAppeals for the Third District, 885 S.W.2d 389 (Tex. Crim. App. 1994).
28 U.S.C. § 2254(e)(1); see Clarkv. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006)
(noting that a state court's determination under § 2254(d)(2) is a question of fact).

79McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013).
80

Vizcarra v. Reagans, No. 11-50672, 2015 WL 1933671 (5th Cir. Apr 29, 2015).
-21-

'contrary to, or involved an unreasonable application of, clearly established Federal law,'

81

or

"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."82 Furthermore, deference to a state court's

determination that finds no Strickland violation is particularly strong:
The question is not whether a federal court believes the state court's
determination under the Strickland standard was incorrect but whether that
determination was unreasonablea substantially higher threshold. And,
because the Strickland standard is a general standard, a state court has even
more latitude to reasonably determine that a defendant has not satisfied that
standard.83

Hence, the Court of Criminal Appeals rejection of Vizcarra's claims is entitled to very strong
deference, which Vizcarra fails to overcome. In his petition, Vizcarra does not argue that the

Court of Criminal Appeals misapplied clearly established federal law or made an unreasonable
determination based on the facts presented at trial. Moreover, he does not overcome the" 'strong

presumption' that counsel's representation was within the 'wide range' of reasonable
professional assistance."84 He simply reasserts the same claims that he made in his state
proceedings, and makes no effort to meet the statutory requirements for relief.85 As such, the
Court must deny his claims.86

81

82

Berghuis v. Thompkins, 560 U.S. 370, 378 (2010) (quoting 28 U.S.C.
28 U.S.C.

§

Knowles

84

Harrington v. Richter, 562 U.S. 86, 104 (2011) (citation omitted).

85

28 U.S.C.

86

§

2254(d)(1)).

2254(d)(2).

83

v.

§

Mirzayance, 556 U.S. 111, 123 (2009) (internal quotations omitted).

2254(d).

Williams v. Taylor, 529 U.S. 362, 412-13 (2000).

-22-

EVIDENTIARY HEARING
A court will hold an evidentiary hearing on a

§

2254 petition only when the petitioner

shows either (1) the claim relies on a new, retroactive rule of constitutional law that was

previously unavailable or (2) a factual basis that could not have been previously discovered by
the exercise of due diligence and the facts underlying the claim show by clear and convincing
evidence that, but for the constitutional error, no reasonable jury would have convicted the

petitioner. The record is adequate to dispose fully and fairly of Vizcarra' s claims. The Court
need inquire no further on collateral review and an evidentiary hearing is not necessary.

CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a habeas corpus proceeding "[u]nless a circuit

justice or judge issues a certificate of appealability."87 Further, appellate review of a habeas
petition is limited to the issues on which a certificate of appealability is

granted.88

In other

words, a certificate of appealability is granted or denied on an issue-by-issue basis, thereby

limiting appellate review solely to those issues on which a certificate of appealability is

28 U.S.C.

§

granted.89

2253(c)(1)(B) (2012).

See Lackey v. Johnson, 116 F.3d 149, 151(5th Cir. 1997) (holding that, in regard to the
denial of relief in habeas corpus actions, the scope of appellate review is limited to the issues on
which a certificate of appealability is granted).
88

See 28 U.S.C. § 2253(c)(3) (setting forth the narrow scope of appellate review in habeas
corpus matters); see also Lackey, 116 F.3d at 151 (holding that a certificate of appealability is
granted on an issue-by-issue basis, thereby limiting appellate review to those issues); but see
United States v. Kimler, 150 F.3d 429, 431 n.1 (5th Cir. 1998) ("We have decided, however, that
the monolithic nature of [Federal Rule of Appellate Procedure] Rule 22(b) in conjunction with
Congress's mandate for issue specificity on collateral review embodied in 28 U.S.C. § 2253(c)(3)
requires a more express request. In order to obtain appellate review of the issues the district
court refused to certify, the petitioner must first make the threshold substantial showing of the
denial of a constitutional right. See 28 U.S.C. 2253(c)(2). Only after clearing this hurdle may the
petitioner proceed to brief and we review the merits of the rejected issues.").
89

-23-

Although Vizcarra has not yet filed a notice of appeal, this Court nonetheless must address

whether he is entitled to a certificate of appealability.90
A certificate of appealability "may issue.

.

only if the applicant has made a substantial

showing of the denial of a constitutional right."9' In cases where a district court rejects a

petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims debatable
or wrong."92 To warrant a grant of the certificate as to claims that the district court rejects solely

on procedural grounds, the petitioner must show both 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."93

Here, Vizcarra is not entitled to a certificate of appealability because reasonable jurists

would not find debatable the Court's conclusions that his petition is procedurally barred.
Accordingly, the Court finds that it should deny Vizcarra a certificate of appealability.

CONCLUSION AND ORDERS
Upon reconsideration and in light of the Supreme Court's decision in McQuiggin v.

Perkins, 133 S. Ct. 1924 (2013), the Court concludes that it should deny Vizcarra's petition and
dismiss his civil cause as time barred. The Court further concludes that Vizcarra is not entitled
to a certificate of appealability. Accordingly, the Court enters the following orders:

90

See 28 U.S.C. foll. § 2255 Rule 11(a) ("The district court must issue or deny a
certificate of appealability when it enters a final order adverse to the applicant.").
28 U.S.C. § 2253(c)(2).
92

Slackv. McDaniel, 529 U.S. 473, 484 (2000); see also United States v. Jones, 287 F.3d
325, 329 (5th Cir. 2002) (applying Slack to a certificate of appealability determination in the
context of § 2255 proceedings).
Slack, 529 U.S. at 484.
-24-

IT IS ORDERED that Vizcarra's petition under 28 U.S.C. § 2254 for a writ of habeas
corpus (ECF No. 1) is DENIED, and his cause is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Vizcarra is DENIED a certificate of appealability.
IT IS ALSO ORDERED that all pending motions are DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this

/7

day of May 2015.

DAYID IRIONES
SENIOI( UNITED STATES DISTRICT JUDGE

-25-