Cantu v. Stephens

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 19 Report and Recommendations. The case is DISMISSED and COA is DENIED. Signed by Judge David A. Ezra. (rf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

LARRY M. CANTU
TDCJ-CID No. 1750461,

)
)
)
Petitioner,
)
)
vs.
)
)
WILLIAM STEPHENS,
)
Director, Texas Department of
)
Criminal Justice, Correctional
)
Institutions Division,
)
)
Defendant.
)
________________________________ )

CV. NO. 5:13-CV-919-DAE

ORDER: (1) ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION; (2) DISMISSING § 2254 APPLICATION FOR WRIT
OF HABEAS CORPUS; (3) DENYING CERTIFICATE OF APPEALABILITY
Before the Court is an Objection to Magistrate Judge Mathy’s Report
and Recommendation filed by Petitioner Larry M. Cantu. (“Petitioner”). (Dkt.
# 23.)1 For the reasons that follow, the Court ADOPTS the Magistrate Judge’s
Report and Recommendation and thereby DISMISSES Petitioner’s § 2254
application for writ of habeas corpus. The Court also DENIES Petitioner a

1

Pursuant to Local Rule 7(h), the Court finds this matter suitable for disposition
without a hearing.
1

Certificate of Appealability.
BACKGROUND
On October 21, 2011, Petitioner pled guilty to aggravated robbery
with a deadly weapon with an enhancement for two prior felony convictions. The
state trial court accepted Petitioner’s guilty plea, found him guilty, and sentenced
him to ten years imprisonment in TDCJ-CID to run concurrently with his sentence
in cause number 2010-CR-11876. 2
Petitioner did not appeal his conviction. On May 5, 2012, he filed a
state application for writ of habeas corpus challenging his conviction and raising
essentially the same issues that are presented in the instant federal application for
habeas relief. The state court denied Petitioner’s habeas application. On
September 25, 2013, the Texas Court of Criminal Appeals upheld the state court’s
denial without a written order based on the findings of the lower court.
On October 7, 2013, Petitioner initiated this proceeding by filing a
petition for writ of habeas corpus and memorandum in support pursuant to 28
U.S.C. § 2254. (Dkt. # 1.) That same day, Petitioner also filed a motion for leave
to proceed in forma pauperis (“IFP”), a motion for appointment of counsel, and a
motion for evidentiary hearing. (Dkt. ## 2–4.) Pursuant to Rule 1(e) of the Local
2

Petitioner also filed a habeas application for his conviction in cause number
2010-CR-11876. This Court denied the habeas application on January 6, 2014 in
Case No. 5:13-cv-880.
2

Rules of the Assignment of Duties to the United States Magistrate Judges in the
Western District of Texas, the instant action was assigned to Magistrate Judge
Pamela Mathy for a report and recommendation. On October 10, 2013, the
Magistrate Judge directed service of the petition on Respondent William Stephens
(“Respondent”) and granted Petitioner’s motion to proceed IFP. (Dkt. # 5.) That
same day, she denied Petitioner’s motions for appointment of counsel and for
evidentiary hearing. (Text Orders dated October 10, 2013.)
On October 21, 2013, Petitioner filed motions for discovery and
polygraph testing, which the Magistrate Judge denied the next day in text orders.
(Dkt. ## 7–8; Text Orders dated October 22, 2013.)
On November 27, 2013, Respondent filed the state court papers
pertaining to Petitioner’s conviction. On December 9, 2013, Respondent filed his
Response. (Dkt. # 12.)
On December 2, 2013, Petitioner filed an Advisory to the Court,
asserting that he has been unable to locate Mr. Perkins, the private investigator
who worked on the 2010 robbery case, and that Mr. Perkins’s testimony would be
vital to proving that Mr. Greenwood, Petitioner’s counsel, defrauded the state court
and to proving that Mr. Perkins never investigated the robbery case. (Dkt. # 11 at
1–2.)
On December 19, 2013, Petitioner filed four motions to reconsider the
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Magistrate Judge’s rulings denying his request for hearing, discovery, appointment
of counsel, and polygraph testing, which the Magistrate Judge denied on the same
day. (Dkt. ## 13–16; Text Orders dated December 19, 2013.)
On January 2, 2014, Petitioner filed another Advisory to the Court.
(Dkt. # 18.) In the Advisory, Petitioner appeared to argue that the procedures the
state court provided to him were constitutionally deficient, namely: (1) the
prosecutor’s willingness to dismiss the instant aggravated robbery charge if
Petitioner accepted a harsher sentence in another pending charge, (2) the state
court’s disregard of Petitioner’s motion for evidentiary hearing despite the fact that
he had a witness who stated that she heard a different number of shots fired than
the reports of the victims and police officers’ claimed, and (3) the state court’s
denial of Petitioner’s request for DNA testing and appointment of counsel. (Id. at
1–3.)
On January 7, 2014, the Magistrate Judge issued her Report and
Recommendation, advising that this Court should dismiss Petitioner’s Petition for
Writ of Habeas Corpus and should deny him a Certificate of Appealability.
(“R&R,” Dkt. # 19.) Petitioner timely filed his Objections to the Magistrate
Judge’s Report and Recommendation that are currently before the Court. (“Obj.,”
Dkt. # 23.)

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STANDARDS OF REVIEW
I.

Review of a Magistrate Judge’s Report and Recommendation
Any party may contest the Magistrate Judge’s findings by filing

written objections within fourteen days of being served with a copy of the Report
and Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections must specifically
identify those findings or recommendations that the party wishes to have the
district court consider. Thomas v. Arn, 474 U.S. 140, 151 (1985). A district court
need not consider “[f]rivolous, conclusive, or general objections.” Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright,
677 F.2d 404, 410 n.8 (5th Cir. 1982), overruled on other grounds by Douglass v.
United States Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)).
The Court must conduct a de novo review of any of the Magistrate
Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.”). On the other hand, findings to which no specific objections
are made do not require de novo review; the Court need only determine whether
the Memorandum and Recommendation is clearly erroneous or contrary to law.
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).

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II.

Section 2254 Habeas Petition
Section 2254, as amended by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), provides federal courts with the authority to
issue habeas corpus relief for persons in state custody. See 28 U.S.C. § 2254. A
federal court may not grant such habeas relief unless, with certain exceptions, the
applicant has exhausted state remedies. Id. § 2254(b)–(c).
If an application includes a claim that has been “adjudicated on the
merits in State court proceedings,” see id. § 2254(d), an additional restriction on
granting habeas relief applies, see Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011) (holding that when a state court has adjudicated a claim, there is a “highly
deferential standard for evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the doubt”). Under § 2254(d), a
habeas application shall not be granted unless the adjudication of the claim:
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.

28 U.S.C. § 2254(d). The first prong of § 2254(d) applies to state court decisions
addressing both questions of law and mixed questions of law and fact. Williams v.

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Taylor, 529 U.S. 362, 407–09 (2000). The second prong applies to decisions based
solely on factual determinations. Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
For purposes of the first prong, a state-court decision is “contrary to”
established Supreme Court precedent if it reaches a legal conclusion opposite the
Supreme Court’s or concludes differently on an indistinguishable set of facts.
Williams, 529 U.S. at 405–06. Relief is available only if the state court applied
clearly established federal law unreasonably, not merely if the state court did so
erroneously or incorrectly. Id. at 411; see also Cullen, 131 S. Ct. at 1402 (holding
that a state prisoner can satisfy the “unreasonable application of clearly established
federal law” prong of § 2254(d)(1) only by showing that there was no reasonable
basis for the state court’s decision). AEDPA’s first prong erects a formidable
barrier to federal habeas relief for prisoners whose claims have been adjudicated in
state court, requiring “a state prisoner [to] show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error . . . beyond any possibility for fairminded disagreement.” Harrington v.
Richter, 131 S. Ct. 770, 786–87 (2011).
For purposes of the second prong, namely whether the state-court’s
decision was based on an unreasonable determination of the facts, a state-court
factual determination is not unreasonable merely because the federal habeas court
would have reached a different conclusion in the first instance. Burt v. Titlow, 134
7

S. Ct. 10, 15 (2013). Instead, a state court’s factual determinations “shall be
presumed to be correct.” 28 U.S.C. § 2254(e)(1).
DISCUSSION
In his Petition for Writ of Habeas Corpus, Petitioner raised six
grounds for relief:
1. Petitioner is actually innocent of aggravated robbery.
2. The DNA testing resulted in conflicted findings.
3. The State failed to ensure Petitioner received a timely initial
appearance before a Magistrate.
4. Petitioner’s attorney was prevented from assisting him when the
attorney was denied access to crime scene media material.
5. The State withheld or failed to disclose media tapes from crime
scene witnesses; and
6. The private investigator assigned to his case never investigated any
witnesses or visited the crime scene.
(Dkt. # 1 at 6–8.) Magistrate Judge Mathy recommended denying all of
Petitioner’s claims. (R&R at 13–20.) Petitioner now objects to the Magistrate
Judge’s findings. (Obj. at 1–10.) The Court will address each of Petitioner’s
objections as they pertain to his habeas claims.
I.

Issue One: Actual Innocence
In his Petition for Writ of Habeas Corpus, Petitioner first argued that

his guilty plea and conviction should be set aside because he “is innocent of
aggravated robbery.” (Dkt. # 1 at 6.) Petitioner argues that he was not stealing,
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but was only “pick[ing] up a car motor . . . to throw away as junk.” (Id.) He
further alleges that the hospital medical records indicating that he was “kicked,
pistol whipped, [and] shot at close range inside his truck were not reviewed by the
court.” (Id. at 6.)
In her Report and Recommendation, the Magistrate Judge found that
Petitioner waived this claim by pleading guilty to aggravated robbery. (R&R at
14.) She also found that Petitioner’s claim of actual innocence was inappropriate
on federal habeas review because it did not allege any constitutional error. (Id.)
In his Objection, Petitioner merely quotes the Magistrate Judge’s
recommendation without adding any additional discussion that would refute the
recommendation. (Obj. at 3.)5 Presumably, Petitioner quotes the Magistrate
Judge’s recommendation to “object” to it. While the Court discourages such a
practice because it contravenes Local Rule 4(b) for the Assignment of Duties to the
United States Magistrate Judges, which provides: “Such party shall file with the
clerk of court, and serve on the magistrate judge and all parties, written objections
5

Petitioner also takes issue with the Magistrate’s addition of the word “now” in her
Report and Recommendation, wherein she stated “Although petitioner now claims
his plea was not voluntary . . . .” (Obj. at 1–2.) He cites to his state court habeas
petition where he had previously raised the voluntariness of his plea. (Id. at 2.)
However, Petitioner minces the Magistrate Judge’s words. Her reference to “now”
did not imply that Petitioner did not properly allege such a claim during the earlier
proceedings. In fact, she specifically found that Petitioner properly exhausted his
state court remedies. (See R&R at 12–13.) Rather, her reference was only to
signal his current argument before the Court.
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which shall specifically identify the portions of the proposed findings,
recommendations or report to which objection is made and the basis for such
objections,” in the interest of thoroughness and because Petitioner is pro se, the
Court will independently examine whether Petitioner’s claim of actual innocence is
properly before the Court.
By voluntarily entering a plea of guilty, a defendant waives the right
to contest the factual merits of the charges. United States v. Smallwood, 920 F.2d
1231, 1240 (5th Cir. 1991). In other words, “[a] voluntary and unconditional
guilty plea waives all non-jurisdictional defects,” including claims of actual
innocence. United States v. Scruggs, 714 F.3d 258, 261–62 (5th Cir. 2013), cert.
denied 134 S. Ct. 336 (2013); Hargrove v. Stephens, CIV.A. H-13-2939, 2014 WL
346744, at *4 (S.D. Tex. Jan. 30, 2014) (citing United States v. Pickens, 201 F.
App’x 143, 145 (4th Cir. 2006)).
Because non-jurisdictional challenges to the constitutionality of a
conviction are waived, “only an attack on the voluntary and knowing nature of the
plea can be sustained.” McMann v. Richardson, 397 U.S. 759, 774 (1970); see
also James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“A federal court will uphold
a guilty plea challenged in a habeas corpus proceeding if the plea was knowing,
voluntary and intelligent.” (citing Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th
Cir. 1985))); see also United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000)
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(holding that once a criminal defendant enters a knowing, intelligent, and voluntary
guilty plea, all non-jurisdictional defects in the proceedings below are waived
except for claims of ineffective assistance of counsel relating to the voluntariness
of the plea).
“To enter a knowing and voluntary guilty plea, the defendant must
have a ‘full understanding of what the plea connotes and of its consequence.’”
United States v. Urrias-Marrufo, 744 F.3d 361, 366 (5th Cir. 2014) (quoting
Boykin v. Alabama, 395 U.S. 238, 244 (1969)). The defendant must also “have
notice of the nature of the charges” against him, he must understand the
consequences of her plea, and he must understand the nature of the constitutional
protections he is waiving. Id. (citing Matthew v. Johnson, 201 F.3d 353, 365 (5th
Cir. 2000)). For a guilty plea to be voluntary, the plea must “not be the product of
‘actual or threatened physical harm, or . . . mental coercion overbearing the will of
the defendant’ or of state-induced emotions so intense that the defendant was
rendered unable to weigh rationally his options with the help of counsel.” Id.
(quoting Matthew, 201 F.3d at 365).
The state-court record shows that Petitioner pleaded guilty to
aggravated robbery with a deadly weapon, executing waivers in which he stated he
understood the charges, was aware of the consequences of his plea, was voluntarily
pleading guilty, and waived his rights to have the jury decide guilt or innocence, to
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confront and cross-examine witnesses, and not to incriminate himself orally and in
writing. There is nothing to suggest that his plea was anything but knowing,
intelligent, and voluntary. As such, his guilty plea waives his allegation that he is
“actually innocent.”
Moreover, a state court’s determination that a plea of guilty was
knowing and voluntary is a finding of fact, entitled to a presumption of correctness
on federal habeas review. See Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir.
2004). Those requesting habeas relief may rebut this presumption with clear and
convincing evidence that the state court’s determination was “contrary to, or
involved an unreasonable application of, clearly established Federal law” or
“resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). Petitioner has not set forth any evidence—much less clear and
convincing evidence—to meet either standard.
Additionally, in the Fifth Circuit, “actual-innocence is not an
independently cognizable federal-habeas claim. Foster v. Quarterman, 466 F.3d
359, 367 (5th Cir. 2006) (citing Dowthitt v. Johnson, 230 F.3d 733, 741–42 (5th
Cir. 2000)). It cannot serve as a basis for habeas relief absent a showing of an
independent constitutional violation. Id. This rule “is grounded in the principle
that federal habeas courts sit to ensure that individuals are not imprisoned in
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violation of the Constitution—not to correct errors of fact.” Herrera v. Collins,
506 U.S. 390, 400 (1993). As such, Petitioner cannot state a claim for actual
innocence.
II.

Issues Two, Four, and Five: Conflicting DNA Results, Lack of Access and
Withholding Media Material
In claims two, four and five, Petitioner argued that “DNA results of

two different samples are at issue,” his defense counsel “was prevented from
assisting [him] when counsel was “prevented access to crime scene raw media
material,” and the “[p]rosecutor withheld or failed to disclose media tapes from
crime scene witnesses.” (Dkt. # 1 at 6–7.)
The Magistrate Judge’s Report and Recommendation explained that
[T]hese grounds appear to be challenges to the sufficiency of the
evidence of in support of his conviction, but when Cantu pleaded
guilty he effectively waived his right to challenge the sufficiency of
the evidence because he agreed the state could prove his guilt of the
offense beyond a reasonable doubt. Further, the Texas Court of
Criminal Appeals rejected these claims when it denied Cantu’s state
writ application without written order on the findings of the trial court.
Cantu has not demonstrated that the state court’s decision is contrary
to or involves an unreasonable of clearly established federal law or is
based on an unreasonable determination of the facts in light of the
evidence presented.
(R&R at 15–16.)
Petitioner first objects to the Magistrate Judge’s recommendation
concerning issue two, arguing that the Magistrate Judge’s characterization that
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Petitioner “never claimed DNA was withheld from attorney” was incorrect. (Obj.
at 3 (citing R&R at 15).) However, the Magistrate Judge never found that
Petitioner made such an argument. Rather, she stated that Petitioner “argue[d]
‘DNA results of two different samples are at issue.’” (R&R at 15.) Therefore,
Petitioner’s objection is without merit.
Petitioner also objects to the Magistrate Judge’s finding regarding
issue four: the crime scene raw media material. (Obj. at 4.) He asserts that “The
attorney claimed that he could not down[load] footage for my sister purchased a
tape. Media was called and witnesses were interviewed which contained
exculpatory testimony that petitioner was not guilty of the underlying charge.”
(Id.) However, Petitioner fails to address the Magistrate Judge’s finding that this
ground challenged the sufficiency of the evidence and was thus waived when
Petitioner pleaded guilty. (See R&R at 15 (citing Kelly v. Alabama, 636 F.2d
1082, 1083 (5th Cir. 1981)).) Furthermore, as the Magistrate Judge correctly
noted, the Texas Court of Criminal Appeals rejected this claim when it denied
Petitioner’s state writ application without written order on the findings of the trial
court and Petitioner has not established that this decision is contrary to or an
unreasonable application of clearly established federal law or is based on an
unreasonable determination of the facts in light of the evidence presented—his
burden on federal habeas review under AEDPA. Moreover, as explained above,
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Petitioner’s guilty plea waives this challenge on habeas review. See United States
v. Cothran, 302 F.3d 279, 286 (5th Cir. 2002) (holding that a guilty plea “waives
claims of governmental misconduct during the investigation” (citing United States
v. Owens, 996 F.2d 59, 60 (5th Cir. 1993))).
Petitioner does not object to the Magistrate Judge’s finding regarding
issue five: whether the prosecutor allegedly withheld or failed to disclose media
tapes from crime scene witnesses. But even if he did, his objection would be
without merit because of his guilty plea. See id.
III.

Issue Three: Initial Appearance
In his initial petition for a writ of habeas corpus, Petitioner asserted

that he did not receive a timely initial appearance before a magistrate judge. (Dkt.
# 1 at 4, 7.) He had raised the issue in his state habeas petition, but the court
rejected it based, in part, on an affidavit from Cantu’s attorney, wherein he testified
that because Cantu had been shot, he was immediately transported to the hospital
and did not receive an in-person initial appearance; his attorney told “Cantu that if
he wanted he could be re-magistrated by the judge of the Court, which Cantu
declined,” a matter they “discussed numerous times.” The court found the
attorney’s affidavit to be credible and truthful.
The Magistrate Judge found that Petitioner did not demonstrate that
this issue is one for which federal habeas corpus relief may be granted. (R&R at
15

16.) She found that Petitioner waived this right by declining to be re-magistrated.
Additionally, she also held that Petitioner failed to demonstrate that the state
habeas court’s decision was contrary to or was an unreasonable application of
clearly established federal law or is based on an unreasonable determination of the
facts in light of the evidence presented. (Id.)
Petitioner objects to the Magistrate Judge’s reasoning by questioning
“how [he] can disprove the attorney’s affidavit if [an] evidentiary hearing,
discovery, [and] more importantly a polygraph ha[ve] been denied twice by this
[C]ourt and once in state court?” (Obj. at 4.) He states that the claim was rejected
in part based on the affidavit from his attorney. (Id.) He avers that “the denial was
unreasonable to prove . . . innocence and the counsel did not investigate the case or
the private investigator.” (Id.)
First and foremost, as explained above, Petitioner’s guilty plea waived
his initial-appearance claim because it is a non-jurisdictional challenge. See
Scruggs, 714 F.3d at 261–62. Because such a claim was waived, it is irrelevant
that Petitioner did not receive discovery or was not able to conduct a polygraph test
on his former counsel.
Second, Petitioner is not entitled to discovery in habeas proceedings
as a matter of right. See Bracy v. Gramley, 520 U.S. 899, 904 (1997) (“A habeas
petitioner, unlike the usual civil litigant in federal court, is not entitled to discovery
16

as a matter of ordinary course.”). Rather, Rule 6(a) of the Rules Governing § 2255
Cases permits discovery “for good cause.” Rule 6 of the Rules Governing 28
U.S.C. § 2255; see also Bracy, 520 U.S. at 904 (discussing Rule 6 of the Rules
Governing 28 U.S.C. § 2254). A petitioner demonstrates “good cause” under Rule
6(a) “where specific allegations before the court show reason to believe that the
petitioner may, if the facts are fully developed, be able to demonstrate that he is . . .
entitled to relief.” Bracy, 520 U.S. at 908–09 (internal quotation marks omitted).
Here, because Petitioner’s initial-appearance claim was waived by his guilty plea,
he cannot show good cause for discovery on that claim.
Moreover, Petitioner misunderstands the Court’s standard of review.
Even if this Court were to permit discovery and polygraph testing of Petitioner’s
trial counsel and Petitioner uncovered evidence to support his theory that he did
not receive a timely initial appearance, “[t]hat a federal habeas court would reach a
different conclusion is not enough, standing alone, to merit relief under AEDPA’s
high standard.” Trottie v. Stephens, 720 F.3d 231, 240 (5th Cir. 2013) cert. denied,
134 S. Ct. 1540 (2014). The AEDPA imposes a “highly deferential standard for
evaluating state-court rulings” in federal habeas review. Lindh, 521 U.S. at 334.
In fact, AEDPA provides that the state court’s findings of fact “shall be presumed
to be correct,” and the burden is on the petitioner to rebut “the presumption of
correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1) (emphasis
17

added). Because the facts on record before the state court showed that Petitioner
affirmatively waived his right to initial appearance before a Magistrate, the state
denial of habeas corpus relief in light of this evidence was not unreasonable.
IV.

Issue Six: Private Investigator
In his initial petition, Petitioner claimed that court-appointed private

investigator, Rick Perkins, never investigated any witnesses to the crime and did
not visit the crime scene. (Dkt. # 1 at 7-3.) Petitioner asserts that “no witnesses
from [the] crime scene, medical [personnel], or police officers were ever
investigated,” arguing that
the state court’s analysis led to an unreasonable decision, which was
[an] unreasonable application of Strickland and . . . egregiously at
odds with the standards of due process . . . because it was an
unreasonable determination of facts in light of the evidence presented
in [the] state court proceeding; and in part state court failed to rule on
vital information and or (facts) is actually an unreasonable
determination of facts violating federal constitutional rights.
(Id.)
The Texas Court of Appeals denied his petition without written order
on the findings of the trial court, which had credited an affidavit of Petitioner’s
trial counsel. That affidavit stated that
An investigator (Rick Perkins) was appointed to assist counsel with
the investigation of this case and to attempt to find witnesses to the
incident. The investigator and I both reviewed the discovery and
witness statements available through the prosecutor’s office as well as
media reports (KENS, WOAI and KSAT). Perkins investigated the
scene and attempted to locate witnesses to the offense. The only
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witness to the incident did not see the actual incident [that is, the
entire incident], except after the shooting and Cantu had run his truck
into a pole at the front of the property immediately prior to the arrival
of the police.
In the Report and Recommendation, the Magistrate Judge found that
Petitioner “has not demonstrated that the Texas Court of Criminal Appeals’
rejection of his claim is contrary to or involves an unreasonable application of
clearly established federal law or is based on an unreasonable determination of the
facts in light of the evidence.” (R&R at 17.)
Petitioner now argues that there was no evidence in the record to
substantiate the findings from the attorney’s affidavit. Petitioner argues that an
evidentiary hearing and polygraph testing should have been used to disprove the
affidavit. Petitioner avers that the denial of an evidentiary hearing and polygraph
testing was unreasonable in light of facts presented.
Once again, Petitioner’s guilty plea waives this claim because it is a
non-jurisdictional challenge. See Scruggs, 714 F.3d at 261–62. Moreover,
Petitioner does not show that the state habeas court’s decision was an unreasonable
application of clearly established federal law or an unreasonable determination of
facts in light of the evidence, which he must do in order to merit federal habeas
relief under AEDPA.
V.

Certificate of Appealability
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A Certificate of Appealability may only be issued if a petitioner “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). A petitioner is required to show that reasonable jurists could debate
whether the issues could have been resolved differently or are “adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983), superseded on other
grounds by 28 U.S.C. § 2253(c)(2)); see also Matamoros v. Stephens, 539 F.
App’x 487, 490 (5th Cir. 2013) (“A petitioner satisfies this standard if “reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” (quoting Slack, 529 U.S. at 484)).
Here, Petitioner has made no such showing. Reasonable jurists could
not debate whether these issues could have been resolved differently. Further, the
issues raised are not “adequate to deserve encouragement to proceed further.”
Slack, 529 U.S. at 483. Accordingly, the Court DENIES Petitioner a Certificate of
Appealability.
CONCLUSION
The Court ADOPTS the Magistrate Judge’s Report and
Recommendation (Dkt. # 19) thereby DISMISSING Petitioner’s § 2254 petition
for habeas corpus (Dkt. # 1). The Court also DENIES Petitioner a Certificate of
Appealability.
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IT IS SO ORDERED.
DATED: San Antonio, Texas, August 28, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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