Vallado v. Mossbarger

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 17 Motion to Appoint Counsel filed by Rudy Vallado, DENIED 12 Report and Recommendations, Motions terminated: Accordingly, this Court DISMISSES in part and DENIES in part Petitioner Vallados petition for a writ of habeas corpus. Signed by Judge Xavier Rodriguez. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
RUDY VALLADO,
Petitioner,
v.
WILLIAM STEPHENS,
Director, Texas Department
of Criminal JusticeCorrectional Institutions Division,
Respondent.

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Civil Action No. SA-13-CV-196-XR

ORDER
On this date, the Court considered Magistrate Judge John W. Primomo’s report and
recommendation (docket no. 12), in which he recommends that Petitioner Rudy Vallado’s
petition for a writ of habeas corpus under 28 U.S.C. § 2254 be dismissed in part and denied in
part. Petitioner objected thereto (docket no. 16) and moved the Court to appoint counsel (docket
no. 17).

After careful consideration, the Court ACCEPTS the Magistrate Judge’s

recommendation, DISMISSES Petitioner’s petition in part, and DENIES Petitioner’s petition in
part. The Court also DENIES Petitioner’s request for the appointment of counsel.
I. Background
Petitioner Rudy Vallado is currently serving a fifteen-year sentence in the custody of the
Texas Department of Criminal Justice-Correctional Institutions Division after a jury convicted
him of aggravated assault with a deadly weapon. State v. Vallado, No. 2008-CR-11728 (144th
Dist. Ct., Bexar County, Tex. Mar. 4, 2010). The jury convicted Vallado of stabbing Roy Cortez
in the midsection with a knife. Vallado directly appealed his conviction, and the Texas Fourth

Court of Appeals affirmed. See Vallado v. State, 350 S.W.3d 257, 259 (Tex. App.—San Antonio
2011, pet. ref’d). Thereafter, the Texas Court of Criminal Appeals refused Vallado’s petition for
discretionary review. See Vallado v. State, PDR No. 1152-11, 2011 WL 5319897 (Tex. Crim.
App. Nov. 2, 2011). After his direct appeals were denied, Vallado filed an application for a writ
of habeas corpus with the Texas Court of Criminal Appeals, which was also denied. See Ex.
Parte Vallado, Cause No. WR-78,586-02 (Tex. Crim. App. Dec. 12, 2012).
After his state court habeas petition was denied, Vallado filed a petition for habeas corpus
with this Court on March 8, 2013, the date his petition was placed in the prison mailing system.
In his petition, Vallado asserted four grounds for habeas relief. First, Vallado challenged the
sufficiency of the evidence to support his conviction. At trial, the State relied on hearsay
testimony from two police officers, who were allowed to testify that an individual, Caleb Ruiz,
subdued Vallado after he stabbed his victim, took Vallado’s knife away from him, and then gave
the knife to the officers. Vallado argued that the trial court should have excluded this testimony.
Second, Vallado complained that his trial counsel provided ineffective assistance (1) by failing to
subpoena Ruiz, (2) by failing to prepare for trial by not obtaining hospital records of Vallado’s
injuries, (3) by presenting Vallado with a plea bargain at their first meeting, which allegedly
compelled Vallado to rely on a theory of self-defense, rather than a plea of not guilty, (4) by
allegedly misrepresenting Vallado’s defenses, (5) by failing to object to the exclusion of
Vallado’s bloody clothes from the trial evidence, and (6) by failing to exploit evidence that the
victim was, in fact, the aggressor. Third, Vallado argued that the indictment was invalid because
the State relied on the statements of Ruiz without requiring that he appear in court. Finally,
Vallado argued that the State abused its discretion by excluding his bloody clothes from

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evidence.

Vallado’s petition was referred to Magistrate Judge John W. Primomo, who

recommended that it be dismissed in part and denied in part. On October 30, 2013, after the
Magistrate Judge issued his Report and Recommendation, Vallado moved for the Court to
appoint him counsel. Docket No. 17.
II. The Magistrate Judge’s Report and Recommendation
In his Report and Recommendation, the Magistrate Judge, first, found that Vallado had
not exhausted his state court remedies on two of his allegations for ineffective assistance of trial
counsel—namely, that trial counsel failed to request a subpoena of Ruiz and failed to prepare for
trial by not obtaining hospital records of Vallado’s injuries. Report and Recommendation
(“R&R”) at 8.
Next, the Magistrate Judge found that the evidence clearly supported Vallado’s
conviction.

The Magistrate Judge noted that the trial record contained testimony from an

eyewitness that Vallado stabbed his victim with a knife; testimony from the victim that he had
been cut by Vallado in several places; testimony from two San Antonio police officers that the
knife used by Vallado was a deadly weapon; and testimony from the victim and the victim’s
mother that he suffered a serious bodily injury. Id. at 10–12. The Magistrate Judge rejected the
assertion that had the hearsay from the officers been excluded, Vallado would have been found
not guilty. Id. The Magistrate Judge, therefore, found that the determination by the state courts
that the evidence was sufficient to support Vallado’s conviction, was not contrary to and did not
involve an unreasonable application of clearly-established federal law. Id. at 13.
The Magistrate Judge then rejected Vallado’s properly exhausted assertions that his trial
counsel provided ineffective assistance. First, the Magistrate Judge found that Vallado’s counsel

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was not deficient in presenting Vallado with a plea bargain, and, in fact, would have been remiss
if he had not. Id. at 15–16. The fact that the plea bargain was presented to Vallado at his first
meeting with counsel was found to be insignificant. Id. at 16. Second, the Magistrate Judge
found that the state habeas court reviewed counsel’s representation and found no
misrepresentation. Id. at 16–17. Since Vallado did not rebut the state court’s finding with clear
and convincing evidence, the Magistrate Judge rejected Vallado’s claim that counsel
misrepresented Vallado’s defense. Id. Third, the Magistrate Judge found that counsel did not err
in failing to object to the exclusion of Vallado’s bloody clothes from evidence. Since testimony
established that the clothes were covered only with the blood of the victim, the Magistrate Judge
found that Vallado could gain nothing by admission of the clothes into evidence; therefore,
Vallado’s counsel did not err in failing to object to their exclusion from evidence. Id. at 17–18.
Finally, the Magistrate Judge found that Vallado’s counsel had pursued all avenues to adduce
testimony that the victim was, in fact, the aggressor. Id. at 18. After rejecting all of Vallado’s
arguments for ineffective assistance of counsel, the Magistrate Judge recommended that the state
courts’ determination that Vallado was not denied the effective assistance of counsel, be left
undisturbed. Id. at 19. The Magistrate Judge found the state courts’ determination to be neither
contrary to, nor involve an unreasonable application of, clearly-established federal law. Id.
Next, the Magistrate Judge turned to Vallado’s claim that the indictment was invalid
because it relied on the statements of Ruiz, without requiring that he appear in court. The
Magistrate Judge noted that Vallado’s assertion did actually challenge the validity of the
indictment, but rather challenged the sufficiency of the evidence. Id. at 19. Nevertheless, the
Magistrate Judge rejected Vallado’s argument since the Texas Court of Criminal Appeals was

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squarely presented with Vallado’s challenge and rejected it. Id at 19–20. Because the highest
state appellate court was squarely presented with Vallado’s challenge, the Magistrate Judge
determined that federal habeas review was foreclosed.
Finally, the Magistrate Judge rejected Vallado’s challenge to the State’s exclusion of the
bloody clothes from evidence. The Magistrate Judge found that the clothes were not favorable
evidence for Vallado, that there was no indication that the clothes had actually been suppressed
by the State, and that no prejudice ensued to Vallado because the clothes were not admitted at
trial. Id. at 21. For these reasons, the Magistrate Judge found that Vallado had not proved a
Brady violation, and that the determination by the state courts that the State did not withhold
exculpatory evidence, is not contrary to and did not involve an unreasonable application of
clearly-established federal law. See Brady v. Maryland, 373 U.S. 83 (1963); R&R at 21.
III. Standard of Review and Applicable Law
Where, as here, the Magistrate Judge’s Report and Recommendation is objected to, the
Court reviews the Report and Recommendation de novo. 28 U.S.C. § 636(b)(1)(C). Such a
review means that the Court will examine the entire record and will make an independent
assessment of the law. Any portions of the Report and Recommendation not objected to will be
reviewed by the Court only for clear error. Id.; United States v. Wilson, 864 F.2d 1219, 1221
(5th Cir. 1989).
A petition for a writ of habeas corpus is reviewed under the standards set forth in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). Pub L. No. 104-132, 110 Stat. 1214
(1996). Pursuant to 28 U.S.C. § 2254(d), as amended by AEDPA, a petitioner may not obtain

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federal habeas corpus relief with respect to any claim that was adjudicated on the merits in state
court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
A state court’s decision is “contrary to . . . clearly established federal law” if it either “arrives at a
conclusion opposite to that reached by [the Supreme] Court on a question of law [or] . . .
confronts facts that are materially indistinguishable from a relevant Supreme Court precedent
and arrives at [the opposite result].” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court
decision is “an unreasonable application of clearly established federal law” if it either “identifies
the correct governing legal rule from [the Supreme] Court’s cases but unreasonably applies it to
the facts of the particular state prisoner’s case” or makes an unreasonable determination as to
whether or not to extend a legal principle from the Supreme Court’s precedent to a new context.
Id. at 407. A state court’s determination that a claim lacks merit precludes federal habeas relief
so long as “fairminded jurists could disagree” on the correctness of the state court’s decision.
Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

Section 2254(d) imposes a “highly

deferential standard for evaluating state-court rulings, which demands that state-court decisions
be given the benefit of the doubt.” Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
IV. Analysis
The Court construes Vallado’s filing (docket no. 16) as raising four objections: (1) the
Magistrate Judge incorrectly found the evidence sufficient to support Vallado’s conviction; (2)
the Magistrate Judge incorrectly determined that Vallado’s trial counsel was not ineffective when
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counsel presented Vallado with a plea bargain at their first meeting; (3) the Magistrate Judge
incorrectly determined that the indictment was not invalid; and (4) the Magistrate Judge
incorrectly determined that the State did not abuse its discretion by excluding the bloody clothes
from evidence.1
1. Sufficiency of the Evidence
In a § 2254 sufficiency of the evidence challenge to a state criminal conviction, “the
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.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the
original). A reviewing court, faced with a record that supports conflicting inferences, must
presume that “the trier of fact resolved any such conflicts in favor of the prosecution, and defer
to that resolution.” McDaniel v. Brown, 558 U.S. 120, 133 (2010). “The evidence need not
exclude every reasonable hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt, and the jury is free to choose among reasonable constructions of
the evidence.” United States v. Rains, 615 F.3d 589, 592 (5th Cir. 2010). On habeas review, “a
federal court may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court. The federal court

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Vallado makes a fifth objection to a statement in the Report and Recommendation that, “[o]n direct appeal,
Vallado asserted the evidence was legally insufficient to prove the knife used in the attack was a deadly weapon.”
R&R at 3; see Pet’r’s Objections at 2. Vallado objects to the Magistrate Judge’s attribution of the assertion to him,
rather than to his appellate counsel. Vallado does not explain why he believes the distinction is relevant; however,
to the extent that Vallado is claiming ineffective assistance of appellate counsel, Vallado’s claim is not properly
before the Court. Vallado has not raised this claim in his federal habeas petition or exhausted his claim in state
court. See Cupit v. Whitley, 28 F.3d 532, 535 n.5 (5th Cir. 1994), cert. denied, 513 U.S. 1163 (1995) (explaining that
a petitioner is not entitled to raise, at the district court stage, new evidence, arguments, and issues that were not
presented to the Magistrate Judge); Woodford v. Ngo, 548 U.S. 81, 82 (stating that federal habeas relief requires
proper state-court exhaustion).

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instead may do so only if the state court decision was ‘objectively unreasonable.’” Cavazos v.
Smith, 132 S. Ct. 2, 4 (2011).
Here, the trial court record contains testimony from an eyewitness that Vallado stabbed
his victim with a knife; testimony from the victim that he had been cut by Vallado in several
places; testimony from two San Antonio police officers that the knife used by Vallado was a
deadly weapon; and testimony from the victim and the victim’s mother that he suffered a serious
bodily injury. This evidence allows for the reasonable finding that Vallado attacked his victim
with a knife. See United States v. Young, 107 F. App’x 442, 443 (5th Cir. 2004) (explaining that
determinations of credibility of the witnesses are the exclusive province of the jury). The record
also includes hearsay testimony from the police officers regarding the statements of Ruiz, who
stated to the officers that he subdued Vallado and that the knife he presented to the officers was
the knife he took from Vallado. Vallado challenges the admission of the hearsay testimony as a
violation of his right to confront his accusers. See Crawford v. Washington, 541 U.S. 36, 54
(2004) (explaining the nature and scope of the Confrontation Clause of the Sixth Amendment);
Pet’r’s Objections at 2.

However, regardless of whether the testimony should have been

excluded, the testimony was not a crucial, highly significant factor in Vallado’s conviction
because the record supported conviction without the challenged testimony. See Wood v.
Quarterman, 503 F.3d 408, 414 (5th Cir. 2007) (stating that the erroneous admission of
prejudicial evidence will not justify habeas relief unless the admission was “a crucial, highly
significant factor in the defendant’s conviction”). Moreover, Vallado has not shown that the
testimony had a “substantial and injurious effect or influence in determining the jury’s []
verdict.” Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Thus, the Court agrees

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with the Magistrate Judge that the determination by the state courts that the evidence was
sufficient to support Vallado’s conviction is not contrary to and did not involve an unreasonable
application of clearly-established federal law.
2. Ineffective Assistance of Trial Counsel
Claims of ineffective assistance of counsel are reviewed under Strickland v. Washington,
466 U.S. 668 (1984). Strickland requires that for counsel to be deemed ineffective, (1) counsel’s
representation must have fallen “below an objective standard of reasonableness,” id. at 688, and
(2) that “but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” id. at 694. Additionally, counsel enjoys a “strong presumption” that his conduct was
reasonable. Id. at 689. When viewed through the lens of AEDPA, this requires a petitioner to
show that “the state court’s decision—that [petitioner] did not make the Strickland showing—
was contrary to, or an unreasonable application of, the standards, provided by the clearly
established federal law (Strickland), for succeeding on his IAC claim.” Schaetzle v. Cockrell,
343 F.3d 440, 444 (5th Cir. 2003).
Vallado argues in his objections that his trial counsel provided ineffective assistance by
presenting him with a plea bargain at their first meeting. Pet’r’s Objections at 2–3. Vallado
objects that counsel’s conduct indicted a lack of interest to represent him. Id. However, contrary
to Vallado’s assertion, “the negotiation of a plea bargain is a critical phase of the litigation for
purposes of the Sixth Amendment right to effective assistance of counsel.” Missouri v. Frye, 132
S. Ct. 1399, 1406 (2012). “As a general rule, defense counsel has the duty to communicate
formal prosecution offers to accept a plea on terms and conditions that may be favorable to the
accused.” Id. at 1402. It is insignificant that counsel presented Vallado with a plea bargain at

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their first meeting. Accordingly, the determination by the state courts that Vallado was not
denied the effective assistance of counsel, is not contrary to and did not involve an unreasonable
application of clearly-established federal law.
3. Invalidity of the Indictment
Vallado challenges the indictment, stating, “the state court failed to prove either of the
two elements alleged in the indictment when forensics’ testimony was read in state court that no
blood nor fingerprints were found on the knife, which the witness Caleb Ruiz stated that he took
from Vallado and gave to the officer.” Pet’r’s Objections at 3. Vallado’s challenge, however,
goes to the sufficiency of the evidence, which the Court considered above and determined was
sufficient on a § 2254 review. To the extent that Vallado’s objection challenges the indictment
directly, the challenge is foreclosed to federal habeas review, where, as here, the sufficiency of
the indictment was squarely presented to the highest state court on appeal, and the court held that
the trial court had jurisdiction over the case. See Wood v. Quarterman, 503 F.3d 408, 412 (5th
Cir. 2007); Habeas R. at 51 (the Texas Court of Criminal Appeals finding that Vallado was not
entitled to relief and citing to Rodriguez v. State, 899 S.W.2d 658, 664 (Tex. Crim. App. 1995),
which held that if a defendant fails to object to the form of the indictment, he has forfeited his
right to complain of such on appeal).
4. Prosecutorial Misconduct
Finally, Vallado objects to the State’s exclusion of Vallado’s bloody clothes from
evidence at trial. “[S]uppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83,

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87, (1963). “There are three components of a true Brady violation: The evidence at issue must
be favorable to the accused, either because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice
must have ensued.” Strickler v. Greene, 527 U.S. 263, 281–82 (1999).
Here, Vallado has not alleged suppression. In fact, Vallado’s counsel chose not to obtain
Vallado’s bloody clothes because he believed Vallado was not significantly injured and the only
blood on the clothes was that of the victim. Habeas R. at 42. Furthermore, the bloody clothes, if
admitted as evidence, would have provided additional evidence supporting the jury’s finding that
the victim was stabbed by Vallado. Accordingly Vallado has not established a Brady violation,
and the determination by the state courts that the State did not withhold exculpatory evidence is
not contrary to and did not involve an unreasonable application of clearly-established federal
law.
V. Request for Appointed of Counsel
After the Magistrate Judge issued his Report and Recommendation, Vallado requested
the appointment of counsel. Docket No. 17.
The Court has discretion to appoint counsel if doing so would advance the proper
administration of justice. Branch v. Cole, 686 F.2d 264 (5th Cir. 1982). This Court will appoint
counsel only when the case presents “exceptional circumstances.” Ulmer v. Chancellor, 691
F.2d 209, 212 (5th Cir. 1982). In making this determination, the Court will consider: (1) the type
and complexity of the case; (2) whether the applicant is capable of adequately presenting his
case; (3) whether the applicant is in a position to investigate the case; and (4) whether the
evidence will consist in large part of conflicting testimony so as to require skill in the

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presentation of evidence and in cross examination. Id. The Court should also consider whether
the appointment of counsel would be a service to plaintiff, and perhaps the Court and the
defendants as well, by sharpening the issues in the case, shaping the examination of witnesses,
and thus shortening the trial and assisting in a just determination. Id.
Considering these factors, the Court concludes that appointment of counsel is not
warranted. Vallado’s case is not unusually complex, and through his briefing, Vallado has
demonstrated a grasp of the facts and an ability to adequately present his arguments to this Court.
Furthermore, since this case is for habeas relief, investigation is relatively unimportant and trial
presentation is irrelevant.

Accordingly, Vallado has not demonstrated “exceptional

circumstances,” and the Court denies his motion for appointed counsel.
VI. Conclusion
For the foregoing reasons, the Court DENIES Petitioner’s request for appointed counsel
(docket no. 17).
Further, the Court finds that Petitioner’s objections to the Magistrate Judge’s Report and
Recommendation lack merit. Additionally, the Court’s review of the non-objected-to portions of
the Report and Recommendation reveals no clear error. Accordingly, this Court DISMISSES in
part and DENIES in part Petitioner Vallado’s petition for a writ of habeas corpus.
It is so ORDERED.
SIGNED this 13th day of January, 2014.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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