Alvarez v. Thaler

Filing 15

MEMORANDUM DECISION - re 3 Petition for Writ of Habeas Corpus filed by Roland Scott Alvarez is DENIED and this case is DISMISSED. Petitioner is DENIED a certificate of appealability. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
ROLAND SCOTT ALVAREZ,
Petitioner
v.
WILLIAM STEPHENS1,
Texas Department of Criminal Justice
Correctional Institutions Division Director,
Respondent

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Civil Action
No. SA-11-CA-333-XR

MEMORANDUM DECISION
Petitioner’s 28 U.S.C. § 2254 habeas corpus petition challenges his confinement pursuant
to a conviction and thirty-year sentence for aggravated robbery in cause number 2005CR5846 in the
175th District Court of Bexar County, Texas. The conviction was affirmed on appeal. Alvarez v.
State, No. 04-07-00268-CR (Tex. App. — San Antonio 2008), and the Texas Court of Criminal
Appeals refused Alvarez’s petition for discretionary review. Alvarez v. State, No. 524-08. The
Court of Criminal Appeals denied Alvarez’s state habeas corpus application. WR-73,591-01.
I. Statement of facts
On the evening of February 16, 2005, Stephanie McElroy was working at
Wisniewski Grocery and her friend, Maria Lopes, was keeping her company. Two
armed men, one masked and the other not, entered the store shouting. The masked
gunmen pulled McElroy to the floor, placed a gun to her head, retrieved money from
a nearby drawer, cocked the gun and kicked McElroy in the throat. The same gunman
instructed both women to remain on the ground as the two men fled the store.
After the robbery, Lopes provided the police officers with a description of the
assailants: (1) the masked perpetrator had a limp and (2) the unmasked perpetrator
was a Hispanic male wearing a puffy jacket and a cap. McElroy was not present when
Lopes described the assailants and McElroy did not provide a description to the
officers that evening. Four days later, however, McElroy provided a description of
1

William Stephens has replaced Rick Thaler as Director of the TDCJ Correctional Institutions
Division, and he is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).

the unmasked gunmen and, when presented with a photo array, could not identify any
assailant. The array did not contain a picture of Roland Alvarez.
Based on a Crime Stoppers’ tip, Ricardo Alvarez, Roland’s brother, was
identified as a possible suspect in the robbery. San Antonio Police Officer Jamie
Trevino prepared two photo arrays containing a photo of both Roland and Ricardo.
McElroy and Lopes examined the photo arrays independently and both women
identified Roland as the unmasked perpetrator. Neither witness was able to identify
Ricardo as the masked perpetrator.
During trial, defense counsel directed both witnesses’ attention to the large,
visible red scar on Roland’s throat. Neither recalled such a scar and had not described
such a mark to the officers. Lopes and McElroy testified that the unmasked
perpetrator was wearing a puffy jacket that could have impaired any view of his neck.
McElroy further explained that she had not seen the scar because she never saw his
neck.
Alvarez v. State, 2008 WL 723316 at *1, No. 04-07-00268-CR (Tex. App. — San Antonio 2008).
II. Petitioner’s grounds
Petitioner’s § 2254 motion raises the following grounds:
1.

Ineffective assistance of trial counsel because:
a.

counsel failed to request a hearing on his motion to suppress the pretrial
identification and failure to object to identification of Petitioner during trial;

b.

counsel commented during trial that Petitioner was the one the witnesses saw
commit the crime;

c.

counsel did not meet with Petitioner before trial to adequately prepare and did
not sufficiently communicate with Petitioner;

d.

counsel was not present for the entire sentencing hearing;

e.

counsel did not present available mitigating evidence at sentencing, because
family members were available to testify, but only one was called;

f.

counsel failed to object to the officer’s testimony that bolstered the
unimpeached witnesses’ credibility;

g.

counsel failed to object to improperly admitted 404(b) evidence during the
punishment hearing;

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h.
2.

counsel’s overall performance prejudiced Petitioner.

The pretrial and in-court identifications of Petitioner were obtained in violation of
Petitioner’s constitutional rights because:
a.

the photo lineup was suggestive;

b.

photo identification procedures violated suggested procedure;

c.

Petitioner was singled out by his white t-shirt;

d.

the selection of fillers could not match the description, because no prior
description was given;

e.

there was no blind administration of the photo lineup;

f.

Detective Trevino did not follow San Antonio Police procedures in obtaining
the identification;

g.

the suggestive out-of-court identification led to a substantial likelihood of
irreparable misidentification and the in-court identification was unreliable.

3.

The sentencing record was not transcribed or filed with the appellate court.

4.

Appellate counsel was ineffective for failing to review the entire record.
III. Standard of review

A petitioner may not obtain relief with respect to a claim adjudicated on the merits in state
court unless the adjudication (1) resulted in a decision that was contrary to or involved an
unreasonable application of clearly-established federal law, as announced by the Supreme Court, or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceedings.

§ 2254(d).

A decision is contrary to

clearly-established federal law 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. Williams v. Taylor, 529 U.S. 362, 412
(2000). To be unreasonable, the state decision must be more than merely incorrect or erroneous.
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See Lockyer v. Andrade, 123 S. Ct. 1166, 1174 (2003). Rather, the state court’s application of
clearly established law must be objectively unreasonable. Id. The petitioner bears the burden of
proving entitlement to habeas relief. Williams v. Taylor, 529 U.S. at 403; Orman v. Cain, 228 F.3d
616, 619 (5th Cir. 2000). Factual determinations of a state court are presumed to be correct and the
petitioner has the burden of rebutting this presumption by clear and convincing evidence.
§ 2254(e)(1). In a habeas proceeding, the harmless error standard of Brecht v. Abrahamson, 507
U.S. 619, 623 (1993), applies. Kittleson v. Dretke, 426 F.3d 306, 319 (5th Cir. 2005). The test is
whether constitutional error had a “substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. at 623.
IV. Ground II - identification
This Court first addresses the claims under the second ground concerning identification. In
the state habeas corpus application, Petitioner contended he was the only suspect in a photolineup
wearing a white t-shirt, which is what the perpetrator was wearing. Petitioner asserted the other
persons included in the photo lineup could not have matched the descriptions of the perpetrator,
because the witnesses did not give descriptions of the perpetrator until after they identified him in
the photo lineup. Petitioner claimed the two witnesses gave their statements in each other’s
presence. Petitioner argued there was no blind administration of the photo lineup, because the
detective knew who the suspect was before conducting the photo lineup and he told the witnesses
that he had a suspect. Petitioner asserted the photo lineup did not follow police procedures, because
there was no formal, complete record of the identification proceedings.
Petitioner argued that the in-court identifications by the witnesses were not based on an
independent origin. During trial, Lopes said she could see the perpetrator’s entire neck area, but in
her description to the police, she failed to mention seeing the large scar on Petitioner’s neck. When
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the scar was pointed out to Lopes at trial, she stated that the scar could have been covered by the
jacket that the perpetrator wore. McElroy testified that she saw the perpetrator for about 45 seconds.
Lopes testified she saw the unmasked gunman for five or six seconds. Petitioner asserted that the
witnesses should have been able to see the perpetrator’s neck and they would have noticed a scar on
the perpetrator’s neck if he had a scar. Petitioner argued that McElroy testified that she only knew
Petitioner was the perpetrator because she had picked him out of a lineup, citing volume 3, page 24
of the Reporter’s Record.2 Petitioner pointed out the witnesses did not identify Petitioner and give
descriptions to the police until about one month after the robbery.
The Due Process Clause protects against the admission of evidence derived from suggestive
identification procedures which result in a substantial likelihood of irreparable misidentification.
Neil v. Biggers, 409 U.S. 188 (1972); Simmons v. United States, 390 U.S. 377 (1968). The
admissibility of identification evidence is governed by a two-step analysis: first, a determination is
made of whether the identification procedure was impermissibly suggestive; second, a determination
is made of whether, under the totality of the circumstances, the suggestiveness led to a substantial
likelihood of irreparable misidentification. Herrera v. Collins, 904 F.2d 944 (5th Cir. 1990). When
a pretrial identification procedure is unduly suggestive, the in-court identification nonetheless will
be admissible if its origin is independent of the improper procedure. Doescher v. Estelle, 616 F.2d
205 (5th Cir. 1980).
On appeal, Petitioner contended the evidence was insufficient because the identifications

2

However, that is not what McElroy testified. When asked to describe the perpetrator, she
began to do so, and then she stated she picked him out of the lineup and he was sitting there, in the
courtroom. McElroy did not testify that she only knew Petitioner was the perpetrator because she
picked him in the lineup. Also, regarding the scar, McElroy testified that she did not see the
perpetrator’s neck (Reporter’s Record volume 3, p. 55). Lopes testified that the perpetrator was
wearing a jacket with a collar, and the scar could have been covered (Reporter’s Record volume 3, p.
93).
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were suspect. In finding the evidence sufficient, the Fourth Court of Appeals set out the following:
Although Roland argues that the witnesses’ failure to notice the scar at the
time of the incident makes their identifications inherently suspect, each witness
provided a reasonable explanation for their failure to see the scar at the time of the
robbery: a puffy coat and being more focused on the assailant’s face and the gun at
the time of the robbery. Lopes described Roland immediately after the robbery, and
during trial, as wearing a big puffy jacket with a collar. She testified she saw Roland
up close, at arms length, under bright lights and explained that the scar could have
been covered up by the jacket or the shadows, but in either case, she was not
specifically looking for a scar. McElroy gave a description of the perpetrator four
days after the robbery. She stated that the perpetrator was tall and slim, with defined
cheek bones and eyebrows and wearing a thick black jacket. McElroy also testified
that the lights were sufficient, and that she stared at Roland, who was right in front
of her, for at least forty-five seconds. Both Lopes and McElroy were extensively
cross-examined by defense counsel. Throughout the cross-examinations both women
remained consistent and certain that Roland was the unmasked perpetrator.
*

*

*

Roland also argues the identification was suspect because he was the only
individual in the array wearing a white T-shirt; the attire of the perpetrator. No
objection was made to the array, and Roland does not complain on appeal about the
process of the array. Rather, Roland’s complaint goes to the weight to be given to the
identification by the witnesses. Both witnesses testified Roland had a puffy jacket
over his t-shirt, and we do not believe the fact that Roland had a white t-shirt on in
the array diminishes the identification of Roland, particularly since he was also
identified during the trial.
Alvarez v. State, 2008 WL 723316 at *1, No. 04-07-00268-CR (Tex. App. — San Antonio 2008).
The Court of Criminal Appeals denied the habeas corpus application, thereby rejecting the
claims that the identifications of Petitioner were unconstitutional. Petitioner has not shown that the
rejection of these claims was contrary to or involved an unreasonable application of clearlyestablished federal law or that the rejection of these claims resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the state court
proceedings.

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V. Ground I - ineffective assistance of trial counsel
Petitioner asserts he received ineffective assistance of trial counsel. Petitioner’s claims are
conclusory, because he does not allege facts to support his claims of ineffective assistance. Koch
v. Puckett, 907 F.2d 524, 529 (5th Cir. 1990). Also, Petitioner’s claims of ineffective assistance of
trial counsel lack merit, based on his factual allegations in his state habeas corpus application.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court established a twoprong standard for ineffective assistance of counsel claims. First, petitioner must demonstrate that
his counsel’s performance was deficient and, second, that the deficient performance prejudiced the
defense. To show that the performance was deficient, petitioner must show that “counsel made
errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. The evaluation of counsel’s performance concerns whether counsel’s
assistance was reasonable under all the circumstances, with the assessment being made not in
hindsight, but by evaluating the conduct from counsel’s perspective at the time of the conduct. Id.
at 688-89.

Thus, the reviewing court is to be highly deferential in scrutinizing counsel’s

performance. Id.
A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective
at the time. Because of the difficulties inherent in making the evaluation, a court
must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action “might be
considered sound trial strategy.” There are countless ways to provide effective
assistance in any given case. Even the best criminal defense attorneys would not
defend a particular client in the same way.
Id. at 689. “[A] court deciding an actual ineffectiveness claim must judge the reasonableness of
counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s

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conduct.” Id. at 690. “Given the almost infinite variety of possible trial techniques and tactics
available to counsel, this Circuit will not second guess legitimate strategic choices.” Yohey v.
Collins, 985 F.2d 222, 228 (5th Cir. 1993). “A conscious and informed decision on trial tactics and
strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill
chosen that it permeates the entire trial with obvious unfairness.’” Green v. Johnson, 116 F.3d 1115,
1122 (5th Cir. 1997) (quoting Garland v. Magio, 717 F.2d 199, 206 (5th Cir. 1983) (on rehearing)).
Deficient performance will be found to be prejudicial only upon a showing that, but for
counsel’s errors, there is a reasonable probability that the final result would have been different and
that confidence in the reliability of the verdict is undermined. Lockhart v. Fretwell, 506 U.S. 364,
369 (1993); Armstead v. Scott, 37 F.3d 202, 206-07 (5th Cir. 1994). A defendant must show “actual
prejudice” as a result of his counsel’s deficient performance. Moody v. Johnson, 139 F.3d 477, 482
(5th Cir. 1998). The petitioner is required to show “that the attorney’s errors were so deficient as
to render the verdict fundamentally unfair or unreliable.” Carter v. Johnson, 131 F.3d 452, 463 (5th
Cir. 1997). A petitioner must affirmatively prove and not merely allege prejudice. Mangum v.
Hargett, 67 F.3d 80, 84 (5th Cir. 1995); Deville v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994).
A. Failure to request a hearing or object regarding identification
Petitioner contends counsel failed to request a hearing on the motion to suppress
identification and counsel failed to object to the identifications at trial. However, counsel did file
a motion for a hearing on the identification issue (Clerk’s Record pp. 43-48). Also, Petitioner has
not shown that the identifications were unconstitutional. Therefore, he has not shown counsel’s
performance was deficient for failing to object to the identifications and he has not shown he was
prejudiced by the failure to object.

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B. Comment that Petitioner was the person witnesses saw commit the crime
Petitioner asserts counsel commented during trial that Petitioner was the one who witnesses
saw commit the crime. Petitioner’s state habeas application cites to Reporter’s Record volume 3,
p. 41.
McElroy testified that the first gunman came in and there was yelling to get on the floor
(Reporter’s Record volume 3, p. 23). The second gunman entered, wearing a mask and yelling for
the money (Reporter’s Record volume 3, p. 24). The second gunman pulled her to the ground by her
hair. He dragged her to where the money was, and he had a gun to her head. McElroy identified
Petitioner as the first gunman (Reporter’s Record volume 3, p. 32). On cross-examination, defense
counsel asked McElroy if, prior to the robbery, her focus was on talking with her friend, and
McElroy said it was (Reporter’s Record volume 3, p. 37). Counsel asked McElroy if her focus was
on the gun when the incident began, but McElroy said her focus was on the person and the gun
(Reporter’s Record volume 3, p. 39). Counsel asked McElroy if she was stunned, and McElroy said
she was (Reporter’s Record volume 3, p. 40). McElroy said she was looking back and forth between
the gun and the person. McElroy said she was stunned (Reporter’s Record volume 3, p. 41).
Counsel asked McElroy if she looked at the second person, and McElroy said she did. Counsel
asked McElroy if the second person also had a gun, and McElroy said he had the gun to her head.
The following then occurred (Reporter’s Record volume 3, pp. 41-42):
Defense counsel:

So your attention to the person here in the courtroom this morning
was then focused – this afternoon – is in focus to this other person,
right?

Stephanie McElroy:

After the first guy came in, my attention went to the second guy
because he had me by my hair dragging me around.

Defense counsel:

So you basically lost your attention with the first person that was in
the store; is that right?
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Stephanie McElroy:

Not really that I lost it. I just didn’t have a choice to look over there
because the other guy had a gun to my head.

Defense counsel:

Well, my point is: You didn’t continue to look at the first person that
was in the store, did you?

Stephanie McElroy:

I couldn’t. The guy had my hair and a gun to my head.

Counsel did not concede that Petitioner was the person who committed the crime. McElroy had
already testified that Petitioner was the first gunman, and defense counsel was taking McElroy
through her version of the events to show McElroy’s focus during different stages of the robbery.
Defense counsel argued to the jury the issues of McElroy’s focus and identification (Reporter’s
Record volume 4, pp. 15-17, 20). Petitioner has not shown deficient performance or prejudice
regarding this sub-claim about counsel’s comment.
C. Failure to meet with Petitioner to adequately prepare
Petitioner contends counsel did not meet with him before trial to adequately prepare and
counsel did not sufficiently communicate with Petitioner. In an affidavit in state habeas corpus,
defense counsel Tony Jimenez, III, averred he met with Petitioner to discuss any available defenses
prior to trial (state habeas record at p. 182). The state habeas court found counsel was credible (state
habeas record at p. 196 - trial court findings and conclusions at p. 11). That determination is entitled
to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Self v. Collins, 973 F.2d 1198,
1214 (5th Cir. 1992). Petitioner has not shown deficient performance or prejudice regarding this
sub-claim about preparation.
D. Failure to be present for entire sentencing hearing
Petitioner contends counsel was not present for the entire sentencing hearing. Petitioner was
represented at trial by two attorneys – Tony Jimenez, III, and Catherine Valenzuela. The sentencing

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phase took place on two days – March 2, 2007, and March 23, 2007. Jimenez was present and
represented Petitioner on March 2, and Valenzuela was present and represented Petitioner on March
23. Regarding representation on the two days of the sentencing hearing, Petitioner has not shown
how counsel rendered deficient performance or how he was prejudiced.
E. Failure to present mitigating evidence at sentencing through family members
Petitioner asserts counsel did not present available mitigating evidence at sentencing. He
claims family members were available to testify, but only one was called. Petitioner’s state habeas
corpus application alleged that only Roland Alvarez, Sr., Petitioner’s father, was called as a
punishment witness.
Alvarez testified that Petitioner received a GED from St. Philip’s College, that his son was
in a robotics program and in a vocational education program (Reporter’s Record of sentencing
hearing of March 2, 2007, pp. 64-65 - included as part of the state habeas corpus record at pp. 31011). Alvarez testified that Petitioner’s problem was drug use (Reporter’s Record at p. 65, state
habeas record at p. 311). He said that other than this case, Petitioner is not a violent person and that
he had never before been in trouble for violence (Reporter’s Record at pp. 65-66, state habeas record
at pp. 311-12). Alvarez said that Petitioner’s criminal history was mainly for graffiti (Reporter’s
Record at p. 66, state habeas record at p. 312). Alvarez testified that Petitioner did wrong, but he
was not a violent person (Reporter’s Record at p. 67, state habeas record at p. 313). Alvarez said
Petitioner was a good man and he would not be a danger to the community, because there was no
pattern of violence or drug use (id.).
On cross-examination, Alvarez was asked about the fact that Petitioner was disciplined in
jail in 2005 for fighting with another inmate (Reporter’s Record at p. 67, state habeas record at p.
313). Alvarez said he did not know what happened because he was not there (id.). Alvarez testified
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that he knew things happen in jail and a person has to take care of themself (Reporter’s Record at
pp. 67-68, state habeas record at pp. 313-14). Alvarez was asked about the time Petitioner and seven
other inmates assaulted another inmate in 2006 (Reporter’s Record at p. 68, state habeas record at
p. 314). Alvarez said Petitioner told him he had nothing to do with it, but there was a group there
and they all got blamed (id.). Alvarez testified that Petitioner was in a tagging crew, not a gang
(Reporter’s Record at p. 69, state habeas record at p. 315). When asked what Petitioner told him
about the robbery, Alvarez testified that Petitioner had said he had “OD’d” or was doing drugs
(Reporter’s Record at pp. 69-70, state habeas record at pp. 315-16).
Attached to Petitioner’s state habeas corpus application are affidavits from family members
(state habeas corpus record at pp. 58-72). Rachel Alvarez, Petitioner’s mother, stated she told
counsel she wanted to testify at sentencing, but counsel said he did not want to put her on the stand
(state habeas corpus record at p. 58). Petitioner’s father stated counsel said Petitioner’s mother could
not testify, because “the state would tear her apart.” (state habeas corpus record at p. 55).
Petitioner’s mother stated Petitioner always worked hard and she listed his jobs (state habeas corpus
record at p. 58). She stated Petitioner was a Christian, he loved the Bible, he attended church, he
liked spending time with his younger siblings at home, and he was a talented artist (id.). She knew
drugs became a problem in Petitioner’s life, he made mistakes, but he always wanted to better
himself (id.). She knew Petitioner could do something great with his life and that he could become
a productive, loving member of the community (id.).
Gloria Muniz, Petitioner’s aunt, would have testified for Petitioner if counsel would have
contacted her (state habeas corpus record at p. 61). She said Petitioner was respectful; he had sent
a book to Washington D.C. to be published; he was a quiet child; and she never saw him while he
was on drugs or drinking (id.). She stated Petitioner may have made bad choices in the past, but if
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he were given a second chance he would make better choices (id.).
Guillermo Olivares, Petitioner’s grandfather, would have been available to testify if counsel
would have contacted him. Olivares said Petitioner was a nice grandson who used to live with
Olivares in California (state habeas corpus record at p. 63). Petitioner went to church and read the
Bible; he used to watch television with Olivares; he was a good basketball player; he used to help
with the lawn and trash; he liked learning new things; he liked for Olivares to read books to him; he
was good in school; and he liked to draw and sketch (id.). Petitioner was a good person who likes
to get along with everybody; he obeys; he is good-mannered; and he is reliable (id.). With the right
guidance, Petitioner would be respectable and a hard worker; he has potential to be a leader and to
become someone in society (id.).
Rose Gwilliam, Petitioner’s aunt, could have provided information, but counsel did not
request character witnesses (state habeas record at p. 66). Petitioner is courteous and respectable
(id.). He loved the Bible and loved going to church; he enjoyed sports; and he was not mean-spirited
(id.). As he got older, he became a follower (id.). Petitioner was excited to go to college, but due
to a family illness, Petitioner had to leave college (id.). Regarding this offense, it did not sound like
Petitioner, because Petitioner was never a violent person (id.).
Olga Johnson, Petitioner’s aunt, could have provided information, but counsel did not request
character witnesses (state habeas record at p. 69). Johnson described Petitioner’s neck scar and a
scar on his forehead (id.). Petitioner was a good student, and he is kind-hearted, full of compassion,
and always there to give a helping hand (id.). He was a good writer and expressed feeling and
empathy toward others (id.). Petitioner had to leave college due to family health issues (id.).
To support a claim of ineffective assistance of counsel due to uncalled witnesses, the
petitioner must prove that the witness was willing and able to testify, and the substance of the
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witness’ testimony. Alexander v. McCotter, 775 F.2 595 (5th Cir. 1985). “In order for the appellant
to demonstrate the requisite Strickland prejudice, the appellant must show not only that this
testimony would have been favorable, but also that the witness would have testified at trial.” See
Alexander v. McCotter, 775 F.2d at 602. Finally, “complaints of uncalled witnesses are not favored,
because the presentation of testimonial evidence is a matter of trial strategy and because allegations
of what a witness would have testified are largely speculative.” See Boyd v. Estelle, 661 F.2d 388,
390 (5th Cir. 1981).
Defense counsel Jimenez’s affidavit in state habeas corpus stated Petitioner never indicated
there was any mitigating evidence (state habeas record at p. 182). Counsel also stated he consulted
with Petitioner and family members on numerous occasions (id.). The state court determined that
counsel was not made aware of the availability of the family members’ potential testimony for
sentencing (trial court findings and conclusions at p. 22; state habeas record at p. 207). The state
court also concluded there was no showing that Petitioner would have received a lesser sentence had
the other family members testified (id.). The trial court took into consideration Petitioner’s young
age and ability to be rehabilitated, but the court also factored in Petitioner’s criminal history (id.).
In addition, Petitioner has not shown that counsel’s decision to present only Petitioner’s father as a
punishment witness was an unreasonable trial strategy. Had counsel called each of the other family
members to testify to essentially the same things, each would have been exposed to questions about
Petitioner’s actions in this offense, Petitioner’s other crimes, and other matters, such as jail incidents.
It would have been reasonable strategy not to have the cross-examination of Petitioner’s father
repeated for each witness. Petitioner has not shown the state court’s rejection of this sub-claim was
unreasonable.

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F. Failure to object to officer’s bolstering testimony
Petitioner contends counsel failed to object to the officer’s testimony that bolstered the
unimpeached witnesses’ credibility. In state habeas corpus, Petitioner asserted the officer who
conducted the photo lineup was allowed to testify that the witnesses identified Petitioner. The state
habeas court determined that in light of the eyewitnesses’ identification of Petitioner at trial and their
testimony that they identified Petitioner in the photo lineup, the fact that the police officer also
testified that the two witnesses identified Petitioner in the photo lineup did not show Petitioner was
prejudiced under the second prong of Strickland (trial court findings and conclusions at pp. 22-23;
state habeas record at pp. 207-08). Petitioner has not shown he was prejudiced and that the state
court unreasonably determined he was not prejudiced.
G. Failure to object to Rule 404(b) punishment evidence
Petitioner claims counsel failed to object to punishment evidence admitted improperly under
Tex. R. Evid. 404(b). The state habeas court concluded that the claim lacked merit because as a
matter of state law the evidence was admissible (trial court findings and conclusions at p. 23; state
habeas record at p. 208). Federal courts sitting in habeas do not review state courts’ application of
state evidence law. Jones v. Cain, 600 F.3d 527, 536 (5th 2010). Petitioner has not shown that the
state court’s rejection of this sub-claim was unreasonable.
H. Cumulative prejudicial error due to counsel’s overall performance
Petitioner maintains that counsel’s overall performance prejudiced him. Because Petitioner’s
claims of ineffective assistance of trial counsel lack merit, his claim of cumulative error also lacks
merit. United States v. Moye, 951 F.2d 59, 63 n.7 (5th Cir. 1992).
Petitioner has not shown that the state court’s rejection of his claims of ineffective assistance
of trial counsel was contrary to or involved an unreasonable application of clearly-established federal
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law or that the rejection of these claims resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court proceedings.
VI. Ground three - sentencing proceedings were not transcribed
Petitioner contends the sentencing proceedings were not transcribed on appeal.
Transcriptions of the sentencing hearings are included in the state habeas record at pp. 223-241, 245317. By denying habeas corpus relief, the state court rejected this claim. Petitioner does not allege
or show how his constitutional rights were violated by the fact the sentencing proceedings were not
transcribed on appeal, how he was harmed, and how the state court’s rejection of this claim was
contrary to or involved an unreasonable application of clearly-established federal law or that the
rejection of these claims resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the state court proceedings.
VII. Ground four - ineffective assistance of appellate counsel
Petitioner claims that because the sentencing proceedings were not transcribed on appeal,
Petitioner received ineffective assistance of appellate counsel because counsel failed to review the
entire record. To make out a claim of ineffective appellate counsel, a petitioner must meet the twoprong test of Strickland v. Washington. Smith v. Robbins, 528 U.S. 259, 285 (2000). To establish
deficient performance, a petitioner must show that counsel unreasonably failed to discover and raise
nonfrivolous issues.” Id. To establish prejudice, the petitioner “must show a reasonable probability
that, [but for counsel’s error], he would have prevailed on appeal.” Id. at 285-86 (citing Strickland,
466 U.S. at 694). To do this, he must show “that a particular nonfrivolous issue was clearly stronger
than issues that counsel did present.” Id. at 288.
The state court rejected this claim, and Petitioner does not identify any issue counsel could
have raised on appeal had the sentencing hearing been transcribed. Therefore, Petitioner has not
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shown deficient performance of counsel and prejudice, and he has not shown the state court’s
rejection of this claim was contrary to or involved an unreasonable application of clearly-established
federal law or that the rejection of these claims resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceedings.
VIII. Conclusion
Petitioner’s habeas corpus petition is DENIED, and this case is DISMISSED.

For the

reasons set out in this Memorandum Decision, Petitioner fails to make a substantial showing of the
denial of a federal right as required by 28 U.S.C. § 2253(c)(1)(A) and Fed. R. App. P. 22 for a
certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 483 (2000); see also Rules
Governing Section 2254 Cases in the United States District Courts Rule 11(a). Accordingly, Petitioner
is DENIED a certificate of appealability.
It is so ORDERED.
SIGNED this 23rd day of December, 2013.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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