Holguin v. Davis

Filing 9

MEMORANDUM OPINION AND ORDER. IT IS FURTHER ORDERED that Holguin is DENIED a certificate of appealability.. Signed by Judge Kathleen Cardone. (mn)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
ALFREDO HOLGUIN
TDCJ # 1809852,
Petitioner,
V.
LORIE DAVIS, Director, Texas
Department of Criminal Justice,
Institutions Division,
Respondent.

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EP-17-CV-159-KC

MEMORANDUM OPINION AND ORDER
Petitioner Alfredo Holguin challenges Respondent Lorie Davis’s custody over him based on his
conviction and life sentence for capital murder. Holguin seeks relief through a pro se petition for a writ
of habeas corpus under 28 U.S.C. ' 2254 (ECF No. 1).1 Holguin raises claims of ineffective assistance of
counsel; insufficiency of the evidence; error in the jury charge; and tainted identification evidence.2
Davis argues the Court should deny all claims raised by Holguin on the merits.3 After reviewing the
record and for the reasons discussed below, the Court finds Holguin has not established his entitlement to
federal habeas relief. The Court will accordingly deny Holguin’s petition. The Court will additionally
deny Holguin a certificate of appealability.4
BACKGROUND AND PROCEDURAL HISTORY

1

“ECF No.” 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

Pet’r’s Pet. at 6-7, ECF No. 1.

3

Resp’t’s Resp. at 1, ECF No. 7.

4

Also pending before the Court is Holguin’s “Motion to Supplement His Writ with
Evidence of Actual Innocence via DNA Report” (ECF No. 5). Attached to the motion is a Texas
Department of Public Safety DNA Laboratory Report, dated March 29, 2012 (ECF No. 5-1).
The lab report excludes Holguin as a primary contributor of the DNA taken from the victim’s
fingernail scrapings. Id.

Davis has custody of Holguin pursuant to a judgment and sentence imposed by the 243rd District
Court of El Paso County, Texas.5
State court records establish that on October 6, 2002, Jesus Salcido witnessed two men force
Mark Anthony Cedillo—at gunpoint—into the back seat of a brown sedan displaying Mexican license
plates.6 “A few minutes later, witnesses driving in the vicinity saw the sedan in a nearby parking lot and
two Hispanic men, one larger than the other, assault Cedillo, who crumpled to the ground bleeding.”7
Cedillo died at the scene as a result of two gunshot wounds.8 After talking to Salcido and the other
witnesses, law enforcement officers identified Alfredo Holguin and his cousin, Benito Holguin, as
suspects.9
Three days after Cedillo’s death, [Police Detective] Pantoja went to [Cedillo’s]
funeral and showed Salcido photo lineups containing Benito’s and Appellant’s
photographs. . . . Salcido identified Benito and Appellant from the lineups shown to him
that day. Approximately two weeks later, Salcido was shown eight photo lineups—each
containing six photographs—at the police station and asked if he recognized any of the
individuals in them. Two of the lineups contained Benito’s and Appellant’s photographs.
Again, Salcido identified Benito as the kidnapper and Appellant as the driver. Although
Salcido was confident in his identification of Benito, he was not as confident in his
identification of Appellant.10
An indictment charged Holguin with Cedillo’s murder by shooting him with a firearm.11 On
September 30, 2011—approximately nine years after Cedillo’s murder—Mexican authorities delivered
Holguin to an El Paso Police Department detective waiting for him at the Paso del Norte International

5

State v. Holguin, Cause No. 20120D01334 (243rd Dist. Ct. El Paso Cnty., Tex. Aug. 1,
2012); No. 08-12-00253-CR, 2014 WL 4536544 (Tex. App. Sept. 12, 2014, pet. ref’d), cert.
denied, 136 S. Ct. 543 (2015); Ex parte Holguin, WR-86,065-1 (Tex. Crim. App. Apr. 5, 2017).
6
Holguin, 2014 WL 4536544, at *1–2.
7

Id. at* 1.

8

Id.

9

Id. at * 1 n.1 (explaining Benito Holguin died prior to trial).

10

Id. at * 1.

11

Clerk’s R. at 10 (Indictment, Sept. 20, 2005), ECF No. 8-7.
2

Bridge.12 A superseding indictment subsequently charged Holguin with causing Cedillo’s death by
shooting him with a firearm during the course of a kidnapping.13
Prior to trial, Holguin’s counsel moved to suppress evidence of Salcido’s identification of
Holguin, arguing the photo line-up procedure was “impermissibly suggestive.”14 Holguin’s counsel
asserted Detective Pantoja guided Salcido to identify Holguin and the media’s publication of Holguin’s
photo tainted the identification.
During a hearing on the motion to suppress, Detective Pantoja testified he did not suggest to
Salcido which photographs to select:
Pantoja testified that Salcido was shown eight photo lineups, two of which contained
photographs of Benito and Appellant, respectively; that the photographs in the lineups
were obtained from DPS; and that each lineup depicted Hispanic males with similar
characteristics, including size and build, hair color, facial hair, and clothing. Pantoja
further testified he asked Salcido to look through the lineups to see if he recognized
anyone. According to Pantoja, he did not tell Salcido which photographs to select or that
the lineups contained photographs of the suspected perpetrators. Pantoja testified Salcido
selected photographs of Benito and Appellant from the lineups; identified them as the
kidnapper and driver, respectively; and circled, dated, and signed the two photographs.
On cross-examination, Pantoja acknowledged that photographs of Benito and Appellant
had been provided to the media sometime before Salcido identified them from the
lineups; however, Pantoja maintained that he did not know if Salcido had seen the
photographs distributed to the media and that he never spoke to Salcido about the matter
before showing him the lineups.15
Holguin’s counsel argued Salcido’s identification of Holguin was “unreliable.”16 The prosecutor
countered the defense had not met its burden of showing the identification procedures were unduly
suggestive.17 The trial court agreed that “there was no evidence elicited specifically regarding any

12

Appellee’s Br., Holguin v. State, No. 08-12-00253-CR, 2013 WL 6710825, at *7 (Tex.
App.─El Paso).
13

Clerk’s R. at 80 (Re-indictment, Mar. 8, 2012), ECF No. 8-7.

14

Id. at 105–06 (Mot. to Suppress Identification); Trial Tr., vol. 2 (Mot. Hearing, June
13, 2012, pp. 1–46), at 9–20, ECF No. 8-5.
15

Holguin, 2014 WL 4536544, at *1.

16

Resp’t’s Resp. at 5.

17

Holguin, 2014 WL 4536544, at *2.
3

possible taint from media exposure” and that “mere speculation” was insufficient to sustain Holguin’s
burden.18
At trial, Salcido conceded in front of the jury that he could not positively identify Holguin as a
participant in Cedillo’s murder:
Salcido testified about his out-of-court identification of Appellant and the circumstances
attending it. . . . The State sought the admission of the lineups into evidence, and the trial
court admitted them without objection. On cross-examination, Salcido admitted he could
not positively identify Appellant as the driver. The State did not ask any of its other
witnesses to identify Appellant. During closing arguments, defense counsel argued the
State had failed to prove beyond a reasonable doubt that Appellant was the driver.19
The jury listened to the testimony of other witnesses, including a witness who explained the police traced
the license plate number of the vehicle involved in the kidnapping to Holguin’s father in Chihuahua,
Mexico.20 The jury also examined Department of Homeland Security records, which revealed Holguin’s
vehicle had crossed the border from Mexico to El Paso on the day of the murder.21
Holguin’s counsel moved for a directed verdict at the close of the State’s case and re-urged the
motion at the close of evidence, arguing the State had failed to produce “even a scintilla of evidence” that
Holguin was one of the two individuals who kidnapped and killed Cedillo.22
“The jury charge authorized the jury to convict Appellant as a principal actor or as a party to the
offense under either Sections 7.02(a)(2)—aider and abettor—or 7.02(b)—coconspirator—of the Texas
Penal Code.”23 Holguin’s counsel objected to the inclusion of an instruction on Section 7.02(b). He
argued it raised a separate theory of liability not supported by the evidence. He further argued it

18

Id.

19

Id.

20

Appellant’s Br. at 11–12, Holguin v. State, No. 08-12-00253-CR, ECF No. 8-3.

21

Id. at 12–13, 16.

22

Id. at 17.

23

Holguin, 2014 WL 4536544, at *3; see also Clerk’s R. at 172 (Charge of the Jury),
ECF No. 8-7.
4

permitted the jury to convict Holguin of capital murder without having to find that he had “the specific
intent to kill.”24 The trial court overruled the objection.
The jury found Holguin guilty of capital murder. The trial court imposed the automatic sentence
of life imprisonment.25
Holguin’s counsel filed a motion for a new trial. He once again asserted the jury charge allowed
for a conviction on a charge of capital murder without proof of the specific intent to kill.26 The motion for
a new trial was denied by operation of law.27
Holguin timely appealed his conviction. Holguin asserted the trial court erred in denying the
motion to suppress, the identification evidence was insufficient to support his conviction, and the trial
court erred in overruling his counsel’s objection to the mens rea language in the jury charge.28
The State argued, among other things, that Holguin’s counsel waived his claim regarding the
identification evidence by affirmatively stating “No objection” to the introduction of this evidence at
trial.29 The State maintained:
As a general rule, when a pretrial motion to suppress evidence is overruled, the defendant
need not subsequently object to the admission of the same evidence at trial in order to
preserve error. See Dean v. State, 749 S. W.2d 80, 83 (Tex. Crim. App. 1988); Ochoa v.
State, No. 08-08-00228-CR, 2010 WL 2844906 at *2 (Tex. App.—El Paso 21 July 2010,
pet. ref’d) (not designated for publication); Kimmel v. State, No. 08-08-00028-CR, 2009
WL 4673791 at *1 (Tex. App.—El Paso 9 December 2009, no pet.) (not designated for
publication). It is well settled, however, that when a defendant affirmatively asserts
during trial that he has “no objection” to the admission of the complained-of evidence, he
waives any error in admission of the evidence despite the pretrial ruling. See Holmes v.
24

Holguin, 2014 WL 4536544, at *3;

25

Clerk’s R. at 177–78 (J. of Conviction by Jury), ECF No. 8-7.

26

Id. at 179–81 (Mot. for New Trial).

27

See Parks v. State, 02-15-00419-CR, 2017 WL 444378, at *3 (Tex. App.—Fort Worth
Feb. 2, 2017, pet. ref'd) (“Texas Rule of Appellate Procedure 21.8 ‘allocates seventy-five days
following the imposition of the sentence in open court for the trial court to rule on the motion
[for new trial]; if the motion is not timely ruled on within that period, the authority to grant the
motion expires, and the motion is deemed denied by operation of law.’”) (quoting State v.
Holloway, 360 S.W.3d 480, 485 (Tex. Crim. App. 2012)).
28
Appellant’s Br. at 18, Holguin v. State, No. 08-12-00253-CR, ECF No. 8-3.
29

Appellee’s Br., 2013 WL 6710825, at *9, *11–*38.
5

State, 248 S.W.3d 194, 196 (Tex. Crim. App. 2008) (defendant who affirmatively states,
“no objection,” when evidence is offered, waives his right to complain on appeal that the
evidence was illegally obtained); White v. State, No. 08-10-00020-CR, 2011 WL
3612213 at *2 (Tex. App.—El Paso 17 August 2011, no pet.) (not designated for
publication) (by stating he had “no objection” trial to admission of the photographic
lineups, appellant waived any error from trial court's denial of his motion to suppress);
Ochoa, 2010 WL 2844906 at *2 (any alleged error from trial court's denial of motion to
suppress photo-lineup identification was waived when appellant stated he had “no
objection” to admission of the photo lineups). As Holguin affirmatively stated “no
objection” to admission of the photo lineups during trial, this part of his first issue for
review should be overruled.30
The Eighth Court of Appeals affirmed Holguin’s conviction, and the Court of Criminal Appeals
refused Holguin’s pro se petition for discretionary review.31 The United States Supreme Court denied
Holguin’s petition for a writ of certiorari.32
Holguin sought a state writ of habeas corpus, arguing the photo line-up was unduly suggestive,
his trial counsel failed to present adequate evidence in support of the motion to suppress the photo line-up
identification, and trial counsel failed to preserve the issue of the impermissibly suggestive photo line-up
for appeal.33 The Court of Criminal Appeals denied the application without written order.34
In his federal habeas petition, Holguin alleges the State obtained his conviction through unduly
suggestive identification procedures; the State presented insufficient evidence to support his conviction;
an improper jury charge deprived him of due process; and he received ineffective assistance because his
trial counsel failed to call witnesses at the hearing on his motion to suppress the identification evidence.
APPLICABLE LAW

30

Id. at *21–*22.
Holguin, 2014 WL 4536544.
32
Holguin v. Texas, 136 S. Ct. 543 (2015).
33
Appl. for a Writ of Habeas Corpus under Code of Criminal Procedure Article 11.07 at
34–101, ECF No. 8-10.
31

34

Action Taken, April 5, 2017, ECF No. 8-8 (Ex parte Holguin, WR-86,065-1 (Tex.
Crim. App.)).
6

“[C]ollateral review is different from direct review,” and the writ of habeas corpus is “an
extraordinary remedy,” reserved for those petitioners whom “society has grievously wronged.”35 It “is
designed to guard against extreme malfunctions in the state criminal justice system.”36 It provides an
important, but limited, examination of an inmate’s conviction and sentence.37
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.”38
They must generally defer to state court decisions on the merits,39 and on procedural grounds.40 They
may not grant relief to correct errors of state constitutional, statutory, or procedural law, unless a federal
issue is also present.41
The Supreme Court summarized the basic principles in Harrington v. Richter, 562 U.S. 86
(2011). It explained § 2254(d) permits a federal habeas court to grant relief in only three circumstances:
(1) when the state court’s decision “was contrary to” federal law as clearly established by the holdings of
the Supreme Court; (2) when the state court’s 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.42

35

Brecht v. Abrahamson, 507 U.S. 619, 633–34 (1993).

36

Id. (citing Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens, J., concurring)).

37

See Harrington v. Richter, 562 U.S. 86, 103 (2011) (“[S]tate courts are the principal
forum for asserting constitutional challenges to state convictions.”).
38

Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).

39

Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).

40

Coleman v. Thompson, 501 U.S. 722, 729–30 (1991); Muniz v. Johnson, 132 F.3d 214,
220 (5th Cir. 1998).
41

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991); West v. Johnson, 92 F.3d 1385, 1404
(5th Cir. 1996).
42

Harrington, 562 U.S. at 100 (citing Williams v. Taylor, 529 U.S. 362, 412 (2000)).
7

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 on a set of materially indistinguishable facts.43
Under the “unreasonable application” clause of § 2254(d), 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.”44 The focus of this standard “is not
whether a federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher threshold.”45 Moreover, the federal court’s focus
is on the state court’s ultimate legal conclusion, not on whether the state court considered and discussed
every angle of the evidence.46 Indeed, state courts are presumed to “know and follow the law.”47
A reviewing federal habeas court presumes the state court’s factual findings are sound unless the
petitioner rebuts the “presumption of correctness by clear and convincing evidence.”48 This presumption
extends not only to express findings of fact, but also to “unarticulated findings which are necessary to the
state court’s conclusions of mixed law and fact.”49

43

Thaler v. Haynes, 559 U.S. 43, 47 (2010); Mitchell v. Esparza, 540 U.S. 12, 16 (2003).

44

Dowthitt v. Johnson, 230 F.3d 733, 741 (5th Cir. 2000) (quotation marks and citation

omitted).
45

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

46

Neal 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”).
47

Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

48

28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005); Maldonado v.
Thaler, 625 F.3d 229, 236 (5th Cir. 2010).
49

Register v. Thaler, 681 F.3d 623, 629 (5th Cir. 2012); Valdez v. Cockrell, 274 F.3d
941, 948 n.11 (5th Cir. 2001).
8

In sum, the federal writ serves as a “‘guard against extreme malfunctions in the state criminal
justice systems,’ not a substitute for ordinary error correction through appeal.”50 “If this standard is
difficult to meet, that is because it was meant to be.”51
ANALYSIS
A.

Identification procedure

Holguin maintains the photo lineup was impermissibly suggestive because Detective Pantojato
showed Holguin’s photograph to Salcido on two separate occasions: first at Cedillo’s funeral on October
9, 2002, and then again during a photo lineup at the police station on October 24, 2002.52 He claims
Detective Pantojato then gave “false statements” during the suppression hearing that he did not show
Salcido any photographs until the photo lineup at the police station on October 24, 2002.53 Holguin
further contends Salcido saw Holguin’s photo in the media before Detective Pantoja asked him to identify
Cedillo’s assailant in the photo line-up.54 Holguin argues the identification procedures violated his Sixth
and Fourteenth Amendment rights.55
Holguin raised this claim in his direct appeal:
Citing Cantu v. State, 738 S.W.2d 249 (Tex. Crim. App. 1987), Appellant argues the
photo lineup was impermissibly suggestive because his photograph was shown to Salcido
on two separate occasions, first at Cedillo’s funeral and then at the police station
approximately two weeks later. In Cantu, the court acknowledged that showing the
victim four photo lineups, three of which contained the appellant’s photograph, over a
four month span was suggestive. . . . Although Cantu may be helpful to Appellant, we
need not reach the merits of his complaint because he failed to preserve it for appellate
review.56

50

Harrington, 562 U.S. at 102–03 (quoting Jackson, 443 U.S. at 332 n.5).

51

Id. at 102.

52

Pet’r’s Pet. at 6, ECF No. 1.

53

Id.

54

Id.

55

Id.

56

Holguin, 2014 WL 4536544, at *3.
9

The Eighth Court of Appeals held—based on a state procedural rule—that Holguin failed to preserve his
claim for appellate review:
When a pretrial motion to suppress evidence is overruled, the defendant need not
subsequently object to the admission of the same evidence at trial in order to preserve
error, but if the defendant affirmatively states that he has “no objection” to the evidence,
he waives any error in its admission. Holmes v. State, 248 S.W.3d 194, 200 (Tex. Crim.
App. 2008). Here, the State sought the admission of the pretrial photo lineups at trial.
When the trial court asked if Appellant had any objections to their admission, defense
counsel responded, “No objection, Your Honor.” By affirmatively stating at trial that he
had no objections to the admission of the evidence in issue, Appellant waived and failed
to preserve his right to contest the admission of the evidence on appeal on the grounds
raised in his motion to suppress.57
Holguin raised this same claim in his state habeas proceedings, but the Court of Criminal Appeals denied
it without written order.58
Davis contends—because the state court rejected this claim on an independent state law basis—
federal review of this claim is procedurally defaulted.59
The doctrine of procedural default limits the scope of federal habeas review.60 The doctrine
requires a federal habeas court to refuse review of all claims the state courts found defaulted pursuant to
“an independent and adequate state procedural rule,” unless the petitioner can “demonstrate cause for the
default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental miscarriage of justice.”61
A state procedural ground is “independent” if the last reasoned state court opinion clearly and
expressly indicates that its decision is independent of federal law.62 A state procedural ground is
“adequate” when the procedural rule is “strictly and regularly followed” and applied consistently in the

57
58

Id.
Action Taken, April 5, 2017, ECF No. 8-8.

59

Resp’t’s Answer at 11, ECF No. 7.

60

Matchett v. Dretke , 380 F.3d 844, 848 (5th Cir. 2004).

61

Coleman, 501 U.S. at 750; Canales v. Stephens, 765 F.3d 551, 562 (5th Cir. 2014).

62

Reed v. Scott, 70 F.3d 844, 846 (5th Cir. 1991).
10

vast majority of similar cases.63 The petitioner bears the burden of demonstrating that the relevant rule
was not firmly established or regularly followed.64
To establish “cause” for a procedural default of a habeas claim, a petitioner must show some
external factor impeded his ability to comply with the state’s procedural rules, or that his counsel
rendered constitutionally ineffective assistance.65 “An error amounting to constitutionally ineffective
assistance is ‘imputed to the State,’” and is external to the defendant.66 “Attorney error that does not
violate the Constitution, however, is attributed to the prisoner under well-settled principles of agency
law.”67
To establish a fundamental miscarriage of justice, the petitioner must make a “persuasive
showing” that he is actually innocent—that is he did not commit the crime of conviction.68
The last reasoned opinion rejecting Holguin’s claim regarding the identification evidence—the
Eighth Court of Appeals’ opinion—explicitly and unambiguously relied on a state procedural rule in
denying relief.69 The Court of Criminal Appeals denied Holguin’s claim without written order.70 “A state
court’s unexplained denial of a habeas petition raising federal claims is not sufficient, for purposes of
federal review, to lift a procedural bar imposed on direct appeal.”71 “When faced with a silent or
ambiguous state habeas decision, the federal court should ‘look through’ to the last clear state decision on
63

Martin v. Maxey, 98 F.3d 844, 847 (5th Cir. 1996).

64

Hughes v. Johnson, 191 F.3d 607, 614 (5th Cir. 1999).

65

Coleman, 501 U.S. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986).

66

Davila v. Davis, 137 S. Ct. 2058, 2065 (2017).

67

Id. (internal quotations omitted).

68

Bagwell v. Dretke, 372 F.3d 748, 757 (5th Cir. 2004).

69

Holguin, 2014 WL 4536544, at *3.
Action Taken, April 5, 2017, ECF No. 8-8. See Ylst v. Nunnemaker, 501 U.S. 797, 803
(1991); Bledsue v. Johnson, 188 F.3d 250, 256 (5th Cir. 1999) (citing Ylst as basis for “look[ing]
through” the Texas Court of Criminal Appeals’ unreasoned decision to the decision of the
intermediate appellate court on direct appeal).
70

71

Ylst, 501 U.S. at 801.
11

the matter” to determine whether the decision is an adjudication on the merits or based on a procedural
rule.72 Although the Texas Court of Criminal Appeals’ denial of a claim generally signifies a decision on
the merits, “where, as here, the last reasoned opinion on the claim explicitly imposes a procedural default,
we will presume that a later decision rejecting the claim did not silently disregard that bar and consider
the merits.”73
In his petition, Holguin did not offer cause for his procedural default or allege prejudice. He did
not claim the relevant rule—a defendant waives his right to later contest the admission of evidence once
he affirmatively states at trial that he has “no objections”—was not firmly established or regularly
followed. He also did not reply to Davis’s answer, which raised the procedural default issue.
Furthermore, a review of the record does not establish cause for the default and actual prejudice
as a result of the alleged violation of federal law. It also does not demonstrate that the Court’s failure to
consider Holguin’s claims would result in a fundamental miscarriage of justice.
Suggestive identification procedures—which lead to the admission of evidence irreparably
misidentifying the defendant as the perpetrator of a crime—may violate a defendant’s right to due
process.74 However, a thorough review of the record in this case—including a review of the hearing
transcript on the motion to suppress—reveals that Detective Pantoja did not instruct Salcido to identify
Holguin as a perpetrator, and that the media did not distribute Holguin’s photograph before Salcido’s
initial, tentative identification of Holguin as a perpetrator.75 Thus, the identification process was not
impermissibly suggestive.

72

Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999).

73

Ylst, 501 U.S. at 803.

74

Neil v. Biggers, 409 U.S. 188, 198 (1972).

75

Trial Tr., vol. 2 (Motion Hearing, pp. 22–23, 26–29), at 14–16, ECF No. 8-5; Trial Tr.,
vol. 4 (Trial on the Merits, pp. 146, 159–163) at 145, 148–49, ECF No. 8-5.
12

Further, Salcido testified at trial he told Detective Pantoja that Holguin “strongly resemble[d]” the
driver, but he did not positively identify Holguin as the driver.76 Holguin’s trial counsel emphasized
Salcido’s inability to positively identify Holguin as a perpetrator to the jury.77 Thus, there was no
“irreparable misidentification” of Holguin as a perpetrator of the crime.
Because the identification process was not impermissibly suggestive and there was no irreparable
misidentification of Holguin, his right to due process was not violated. Accordingly, Holguin has not
established prejudice regarding his default of this claim.
Finally, Holguin has not shown his actual innocence. Although Holguin asserts his innocence by
means of a “Motion to Supplement His Writ With Evidence of Actual Innocence Via DNA Report,”78 the
DNA report does not establish Holguin’s factual innocence of the crime of conviction. The report merely
excludes Holguin as a contributor to the fingernail scrapings collected from Cedillo’s body.79
Because the state court decision rested upon state law grounds independent of federal law and
adequate to support the decision, and because Holguin has not shown cause or prejudice for the
procedural default of his claim or that he is actually innocent, a federal merits review of his claim is
barred.80
B.

Sufficiency of the Evidence

Holguin contends there was insufficient evidence to sustain his conviction. He claims “the
State’s case was premised almost entirely on impermissibly suggestive and unlawful evidence of

76

Trial Tr., vol. 4 (Trial on the Merits, pp. 37–38, 42, 149) at 118, 119, 146, ECF No. 8-

77

Trial Tr., vol. 5 (Trial on the Merits, pp. 69–72), at 158–59, ECF No. 8-6.

78

Pet’r’s Mot. to Supp., ECF No. 5.

79

Id., Ex. (Tex. Dep’t of Public Safety DNA Laboratory Report).

80

Coleman, 501 U.S. at 729.

5.

13

identification.”81 Holguin raised this issue in his direct appeal, and the appellate court found the evidence
sufficient to support his conviction.82
Jackson v. Virginia, 443 U.S. 307 (1979), states the controlling federal law with regard to an
insufficiency-of-the-evidence claim. “[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”83 When applying this standard, all credibility choices
and conflicts in the evidence are resolved in favor of the verdict.84 A federal habeas court “must defer to
the factual findings in the state court proceedings,” and “respect the ability of the fact-finder to evaluate
the credibility of the witnesses.”85
The state appellate court found the following evidence sufficient to support Holguin’s conviction:
Salcido identified Appellant as the driver in two separate photographic lineups, and the
lineup in which Appellant’s photograph was circled, signed, and dated was admitted into
evidence at trial without objection. Further, Appellant was connected with the crime
through other evidence. He admitted to Pantoja that he drove the sedan identified by the
witnesses into the United States approximately two hours before Cedillo’s murder.
Although Appellant claimed that he drove back into Mexico shortly thereafter and that
the sedan was stolen later that day, Pantoja testified he was unable to find any records
verifying Appellant’s claim, and records obtained from the Department of Homeland
Security established that the sedan crossed the border only once that day. And the
witnesses’ description of the driver matched Appellant’s physical stature and appearance.
. . . By finding Appellant guilty, the jury necessarily chose to believe Salcido’s testimony,
and in conducting our legal sufficiency review, we are prohibited from re-evaluating the
weight and credibility of Salcido’s testimony or substituting our judgment for that of the
jury.86
After viewing the evidence in the light most favorable to the prosecution, a rational trier of fact
could find the essential elements of the crime beyond a reasonable doubt. The appellate court’s decision

81

Pet’r’s Pet. at 6, ECF No. 1.

82

Holguin, 2014 WL 4536544, at *6.

83

Jackson, 443 U.S. at 319.

84

Id.; Ramirez v. Dretke, 398 F.3d 691, 695 (5th Cir. 2005).

85

Knox v. Butler, 884 F.2d 849, 851 (5th Cir. 1989).

86

Holguin, 2014 WL 4536544, at *6.
14

is not clearly contrary to or an unreasonable application of Jackson. Accordingly, habeas relief on this
claim must be denied.
C.

Jury charge

Holguin alleges the trial court abused its discretion by denying his objection to the jury charge,
which he argues allowed conviction of capital murder with a mens rea of less than intentional or
knowing.87 Holguin argues that capital murder requires a specific intent to kill, and that being charged as
a conspirator improperly relieved the State of its burden of showing that he had the specific intent to kill
the victim.88
Holguin raised this issue at trial, and in his appeal he alleged this error violated both state law and
his right to due process:89
In his third issue, Appellant contends the charge was erroneous . . . because it
impermissibly permitted the jury to convict him of capital murder as a coconspirator
under Section 7.02(b) of the Penal Code without requiring the State to prove that he had
the specific intent to kill Cedillo.”90
The Eighth Court of Appeals’ decision addresses only the state law issue.91 It concludes the State
needed only prove that Holguin had both the mens rea to engage in the conspiracy and the culpable
mental state to commit the actual felony:
Appellant’s first complaint concerns the inclusion of Section 7.02(b) in the jury charge.
Appellant does not dispute that the law of parties, including the theory of party
responsibility set forth in Section 7.02(b)11, applies to capital murder. See Johnson v.
State, 853 S.W.2d 527, 534 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 852 (1993)
(“This Court has continually held that the law of parties announced in §§ 7 .01 and 7.02
is applicable to capital murder cases.”); Gonzalez v. State, 296 S.W.3d 620, 629 (Tex.
App.—El Paso 2009, pet. ref’d) (“The law of parties, as set out in Texas Penal Code §
7.02(b), may be applied in a capital murder case.”); Frank v. State, 183 S.W.3d 63, 72
(Tex. App.—Fort Worth 2005, pet. ref’d) (“The law of parties applies to the offense of
capital murder. . . .”). He does, however, dispute the applicability of Section 7.02(b)
87

Pet’r’s Pet. at 7, ECF No. 1.

88

Id.

89

Appellant’s Br. at 40–46, Holguin v. State, No. 08-12-253-CR, ECF No. 8-3.

90

Holguin, 2014 WL 4536544, at *6.
Id. at *6–7.

91

15

here. Appellant asserts Section 7.02(b) applies “only in [capital murder] cases where a
showing was made of specific intent, or where evidence of a conspiracy was advanced
and the murder should have been anticipated.” We disagree.
Appellant contends that, although Section 7.02(b) does not itself require a finding of
intentional conduct, the State was nonetheless required to prove he possessed the specific
intent to kill Cedillo because capital murder is a “result of conduct” offense. He is
incorrect. Section 7.02(b) eliminates any necessity on the part of the State to prove
Appellant possessed the specific intent to kill Cedillo. Ruiz v. State, 579 S.W.2d 206,
209 (Tex. Crim. App. 1979); Gonzalez, 296 S.W.3d at 630. To convict a person of
capital murder as a coconspirator under Section 7.02(b), the State need only prove that
the person had both the mens rea to engage in the conspiracy and the culpable mental
state to commit the underlying, i.e., the intended, felony. Gonzalez, 296 S.W.3d at 630,
quotation marks and internal citations omitted. The State is not required to prove that the
person had the intent to commit the actual felony perpetrated by a co-conspirator because
the mental state for the underlying felony supplies the mens rea for the actual felony. Id.,
quotation marks and internal citations omitted.92
The Court of Criminal Appeals refused discretionary review of the appellate court’s decision.93
The state court’s denial of this claim was not clearly contrary to or an unreasonable application of federal
law.
Moreover, improper jury instructions in state criminal trials do not generally form a basis for
federal habeas relief.94 In examining habeas claims of improper jury instructions, the inquiry is not
whether there was prejudice to the petitioner, or whether state law was violated, but whether there was
prejudice of constitutional magnitude.95
The jury charge in this matter included the following instructions:
. . . a person is criminally responsible as a party to an offense if the offense is
committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both.
Each party to an offense may be charged with commission of the offense.
Each party to an offense may be charged and convicted without alleging that he
acted as a principal or accomplice.

92

Id.

93

Id. at *1.

94

Estelle v. McGuire, 502 U.S. 62, 71–72 (1991).

95

Sullivan v. Blackburn, 804 F.2d 885, 887 (5th Cir. 1986).
16

You are instructed that a person is criminally responsible for an offense
committed by the conduct of another if acting with intent to promote or assist the
commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the
other person to commit the offense.
You are further instructed that if a person in the attempt to carry out a conspiracy
to commit one felony, another felony is committed by one of the conspirators, all
conspirators are guilty of the felony actually committed, though having no intent to
commit it, if the offense was committed in furtherance of the unlawful purpose and was
one that should have been anticipated as a result of the carrying out of the conspiracy.
***
You are instructed that a person acts “intentionally”, or with intent, with respect
to the nature of his conduct or to a result of his conduct when it is his conscious objective
or desire to engage in the conduct or cause the result.
You are instructed that a person acts “knowingly”, or with knowledge, with
respect to the nature of his conduct or to the circumstances surrounding his conduct when
he is aware of the nature of his conduct or that the circumstances exist. A person acts
knowingly, or with knowledge, with respect to the result of his conduct when he is aware
that his conduct is reasonably certain to cause the result.
A person commits “capital murder” when he intentionally commits the murder
in the course of committing or attempting to commit kidnapping.96
Pursuant to these instructions, the State was required to prove that Benito Holguin, while
kidnaping or trying to kidnap Cedillo, intended to kill the victim, and that Alfredo Holguin intended to
promote or assist the kidnaping. In other words, the jury charge authorized the jury to convict Alfredo
Holguin as a principal actor or as a party to the offense under either Texas Penal Code § 7.02(a)(2)—aider
and abettor—or § 7.02(b)—co-conspirator. Accordingly, the jury was properly instructed that, to find
Holguin guilty, they had to find that he intentionally caused the death of Cedillo as a principal or by
aiding and abetting in committing a felony resulting in his death. This instruction was sufficient to ensure
the verdict’s reliability.97
Furthermore, the appellate court determined that—as a matter of state law—Holguin’s argument
regarding mens rea in the context of Texas “law of the parties” and capital murder was unsustainable. 98

96

Clerk’s R. at 170–71 (Charge of the Court, pp. 2–3), ECF No. 8-7 (emphasis in

original).
97

Livingston v. Johnson, 107 F.3d 297, 312 (5th Cir. 1997).

98

Holguin, 2014 WL 4536544, at *6–7.
17

Holguin cites no constitutional principle suggesting that that capital murder requires a specific
intent to kill. “[I]t is not an unreasonable application of clearly established Federal law for a state court to
decline to apply a specific legal rule that has not been squarely established by th[e] [Supreme] Court.”99
Accordingly, the state court’s denial of this claim was not contrary to or an unreasonable application of
federal law.100
D.

Ineffective assistance of trial counsel

Holguin alleges that, at the pretrial suppression hearing, his counsel should have called witnesses
or presented evidence.101 Holguin makes only the conclusory allegation that “Salcido would have
testified to the State[’]s tactics in the pretrial hearing which would have eliminated the State[’]s only
identification.”102 Holguin raised this claim in his state habeas proceeding,103 and the Court of Criminal
Appeals denied relief.
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 not functioning as the
“counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable. Unless a defendant can make both showings, it cannot be said
that the conviction or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable.104
99

Knowles v. Mirzayance, 556 U.S. 111, 112 (2009) (quoted in Sprouse v. Stephens, 748
F.3d 609, 616 (5th Cir. 2014)).
100

Chester v. Thaler, 666 F.3d 340, 345 (5th Cir. 2011) (“The first step in determining
whether a state court unreasonably applied clearly established federal law is to identify the
Supreme Court holding that the state court supposedly unreasonably applied.”).
101

Pet’r’s Pet. at 7, ECF No. 1.

102

Id.

103

Pet’r’s Appl. for a Writ of Habeas Corpus under Code of Criminal Procedure Article
11.07 p. 10, at 43, ECF No. 8-10.
104

Strickland, 466 U.S. at 687.
18

A habeas petitioner has the burden of proving both prongs of the Strickland test.105
When deciding whether counsel’s performance was deficient, the 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.”106 Federal habeas courts presume that counsel’s choice of trial
strategy is objectively reasonable unless clearly proven otherwise.107 Counsel’s strategic choices, made
after a thorough investigation of the law and facts relevant to plausible options, are virtually
unchallengeable.108 Counsel’s performance cannot be considered deficient or prejudicial if counsel fails
to raise a non-meritorious argument.109 “[M]ere conclusory allegations do not raise a constitutional issue
in a habeas proceeding.”110
Claims that trial counsel erred by not calling witnesses are not favored because the presentation
of testimonial evidence is a matter of strategy and because allegations of what a witness would have
testified are largely speculative.111 To establish that they were prejudiced by counsel’s failure to call a
witness, a habeas petitioner must demonstrate “not only that the testimony would have been favorable,
but also that the witness would have testified at [the proceeding].”112 “Ordinarily, a defendant’s failure to
105

Rogers v. Quarterman, 555 F.3d 483, 489 (5th Cir. 2009); Blanton v. Quarterman,
543 F.3d 230, 235 (5th Cir. 2008).
106

Strickland, 466 at 688–89.

107

Id. at 689.

108

Id. at 673; Pape v. Thaler, 645 F.3d 281, 289–90 (5th Cir. 2011).

109

Turner v. Quarterman, 481 F.3d 292, 298 (5th Cir. 2007); Parr v. Quarterman, 472
F.3d 245, 256 (5th Cir. 2006).
110

Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983).

111

Day v. Quarterman, 566 F.3d 527, 538 (5th Cir. 2009); Boyd v. Estelle, 661 F.2d 388,
390 (5th Cir. 1981).
112

Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002), quoting Alexander v. McCotter,
775 F.2d 595, 602 (5th Cir. 1985).
19

present some evidence from the uncalled witness regarding that witness’s potential testimony and
willingness to testify would be fatal to an ineffective assistance of counsel claim.”113
Moreover, a federal habeas court must review a state petitioner’s ineffective-assistance-ofcounsel claim “through the deferential lens of ' 2254(d),”114 and consider not only whether the state
court’s determination was incorrect, but also “whether that determination was unreasonable—a
substantially higher threshold.”115 Thus, in light of the deference accorded by ' 2254(d), “[t]he pivotal
question is whether the state court’s application of the Strickland standard was unreasonable.”116
The standards created by Strickland and ' 2254(d) are both highly deferential, and when
the two apply in tandem, review is doubly so. The Strickland standard is a general one,
so the range of reasonable applications is substantial. Federal habeas courts must guard
against the danger of equating unreasonableness under Strickland with unreasonableness
under ' 2254(d). When ' 2254(d) applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.117
Holguin has failed to demonstrate that Salcido was not only available to testify at his suppression
hearing, but also would have provided favorable testimony. His conclusory allegation concerning
Salcido’s testimony is not sufficient to meet his burden of proof on an ineffective-assistance-of-counsel
claim.118 Because Holguin has not met his burden of establishing that counsel’s performance was
deficient or that he was prejudiced by the alleged error, the state court’s adjudication of this claim was not
contrary to or an unreasonable application of Strickland.

113

Harrison v. Quarterman, 496 F.3d 419, 428 (5th Cir. 2007).

114

Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing Schriro v. Landrigan, 550
U.S. 465, 473 (2007)).
116
Harrington, 562 U.S. at 101.
117
Id. at 105.
118
Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000).
115

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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 judge issues a certificate of appealability.119 Pursuant to Rule 11 of the Federal Rules
Governing Section 2254 Cases, the district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing of the
denial of a constitutional right.120 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.”121
In this case, reasonable jurists could not debate the denial of Holguin’s § 2254 petition on
procedural grounds, or find that the issues presented are adequate to deserve encouragement to proceed.122
Furthermore, Holguin has not made a substantial showing of a constitutional right. Accordingly, the Court
shall not issue a certificate of appealability.
CONCLUSIONS AND ORDERS
The Court concludes Holguin procedurally defaulted his claim that the identification evidence
introduced at trial was predicated on an impermissibly identification procedure, and he has not asserted
cause for, or prejudice arising from, his procedural default of this claim. The Court further concludes the
state court’s determination that Holguin was not denied his right to due process—based on insufficiency
of the evidence or the jury charge—was not clearly contrary to or an unreasonable application of federal

119

28 U.S.C. § 2253(c)(1)(A).

120

Id. § 2253(c)(2).

121

Id.

122

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S. at 484).
21

law. The Court finally concludes the state court’s denial of Holguin’s ineffective-assistance-of-counsel
claim was not clearly contrary to or an unreasonable application of Strickland.
Accordingly, the Court enters the following orders:
IT IS ORDERED that Holguin’s petition for a writ of habeas corpus (ECF No. 1) is DENIED
and his civil case is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Holguin is DENIED a certificate of appealability.
IT IS ALSO ORDERED that all pending motions are DENIED as moot.
IT IS FINALLY ORDERED that the District Clerk shall CLOSE this case.
SO ORDERED.

SIGNED this 15th day of March, 2018.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

22