Pardo v. Davis, et al.

Filing 16

MEMORANDUM OPINION AND ORDER, IT IS HEREBY ORDERED that Federal habeas corpus relief is DENIED and Petitioner Oscar David Pardos Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE;No Certificate of Appealability shall issue in this case; and All other remaining motions, if any, are DENIED, and this case is now CLOSED. Signed by Judge Xavier Rodriguez. (wg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
OSCAR DAVID PARDO,
TDCJ No. 1875636,
Petitioner,
v.
LORIE DAVIS, Director, Texas Dep’t of
Criminal Justice-Correctional
Institutions Division,
Respondent.

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CIVIL NO. SA-17-CA-00626-XR

MEMORANDUM OPINION AND ORDER
Oscar David Pardo, an inmate in the custody of the Texas Department of Criminal
Justice–Correctional Institutions Division (“TDCJ-CID”), filed an application for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for injury to a child,
aged 14 years or younger. As required by Rule 4 of the Rules Governing Section 2254 Cases, the
Court conducted a preliminary review of the petition. Having considered the habeas application
(ECF No. 1), Respondent’s Answer (ECF No. 13), the record (ECF No. 14), and applicable law,
the Court finds the petition should be DENIED.
I.

Procedural Background

Petitioner was charged by indictment with the felony offense of causing serious bodily
injury to a child, aged 14 years or younger. Seeking to enhance his punishment, the State alleged
Petitioner’s prior conviction for aggravated assault with a deadly weapon. A jury found
Petitioner guilty as alleged in the indictment, and after Petitioner entered a plea of “not true” to
the enhancement paragraph, the trial court found the enhancement paragraph to be true and
entered a finding of family violence. On July 19, 2013, Petitioner was sentenced to a term of 40
years’ imprisonment.

Petitioner appealed and the Fourth Court of Appeals for Texas affirmed his conviction.
Pardo v. State, No. 04–13–00530–CR, 2014 WL 7183365 (Tex. App.—San Antonio Dec. 17,
2014). Pardo then filed a petition for discretionary review (“PDR”) with the Texas Court of
Criminal Appeals (“TCCA”), which was refused. Pardo v. State, No. PD-0139-15 (Tex. Crim.
App. 2015). Petitioner also filed two state applications for writ of habeas corpus, challenging his
conviction; the TCCA dismissed the first because the direct appeal was still pending, and denied
the second without a written order. (ECF No. 14-26). Pardo then filed a motion seeking to have
the TCCA reconsider his state habeas application. After this motion was denied, Petitioner filed
the instant federal petition.
II.

Factual Background

The Fourth Court of Appeals summarized the facts presented at trial as follows:
Pardo and his girlfriend lived with Pardo’s parents. The girlfriend had two
children from a previous relationship – [a] five-year-old boy and a five-month-old
boy. On one occasion, while the girlfriend was at school, Pardo’s parents and the
five-year-old left the house, leaving Pardo with the infant, O.M. When his
parent[s] returned, they discovered O.M. was injured. O.M. was taken to the
emergency room where he was diagnosed with a subdural hematoma, requiring
surgery and a two-month hospital stay. Pardo testified the infant was injured
while he was bathing him. According to Pardo, when the child was splashed with
water, he jumped back and struck his head.
The Texas Department of Family and Protective Services (“the Department”)
became involved, removing O.M. from the home. Under the reunification plan
established by the Department, O.M.’s mother was required to keep the children
away from Pardo. Pardo was ultimately charged with injury to a child.
During the voir dire proceedings, venire member number 8 admitted he was
biased against the State, and venire member number 17 admitted he could not sit
in judgment of another. Pardo’s attorney had an opportunity to question each
venire member about their admissions. The State challenged each venire member
for cause. Pardo objected to the State’s challenges and requested an opportunity to
rehabilitate the challenged members. The trial court overruled Pardo’s objection
and dismissed both venire members. Pardo’s attorney then asked for additional
peremptory strikes, which the trial court denied.

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At trial, the State called six witness[es]. One of the witnesses was a caseworker
for the Department who was involved with O.M. and his mother. The caseworker
testified that because Pardo was suspected of abusing O.M., the child’s mother
“was not allowed to let the children have access to Mr. Pardo.” The caseworker
also testified the mother’s parental rights to O.M. were ultimately terminated
because of physical abuse.
After the caseworker provided some testimony without objection, Pardo’s
attorney asked to approach the bench to discuss the caseworker’s testimony.
During an in camera hearing, the parties and the trial court discussed the
boundaries of the questions the State intended to pose to the Department
caseworker. Pardo objected to the proposed testimony on grounds of relevancy
and lack of probative value. The record establishes the trial court understood the
objection to be a Rule 403 objection and conducted a balancing test, weighing the
probative value of the testimony against the potential prejudicial impact. The trial
court concluded the probative value of the evidence outweighed any potential
prejudicial effect and permitted the State’s questioning to continue over Pardo’s
objection.
(ECF No. 14-18).
III. Standard of Review
A. Review of State Court Adjudications
Pardo’s federal petition is governed by the heightened standard of review provided by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C.A. § 2254. Under §
2254(d), a petitioner may not obtain federal habeas corpus relief on any claim that was
adjudicated on the merits in state court proceedings, unless the adjudication of that claim either:
(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 based on an unreasonable determination of the facts in light of the evidence
presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005). This
intentionally difficult standard stops just short of imposing a complete bar on federal court
relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86,
102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).
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A federal habeas court’s inquiry into unreasonableness should always be objective rather
than subjective, with a focus on whether the state court’s application of clearly established
federal law was “objectively unreasonable” and not whether it was incorrect or erroneous.
McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21
(2003). Even a strong case for relief does not mean the state court’s contrary conclusion was
unreasonable, regardless of whether the federal habeas court would have reached a different
conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show the state court’s
decision was objectively unreasonable, a “substantially higher threshold.” Schriro v. Landrigan,
550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). As long as
“fairminded jurists could disagree” on the correctness of the state court’s decision, a state court’s
determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101
(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, to obtain federal
habeas relief on a claim previously adjudicated on the merits in state court, Pardo must show the
state court’s ruling “was so lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103;
see also Bobby v. Dixon, 565 U.S. 23, 24 (2011).
B. Review of Sixth Amendment Claims
The Court reviews Sixth Amendment claims concerning allegations of ineffective
assistance of trial counsel under the familiar two-prong test established in Strickland v.
Washington, 466 U.S. 668 (1984). Under Strickland, in order to establish a violation of the Sixth
Amendment right to counsel, a petitioner must demonstrate (1) counsel’s performance was
deficient and (2) this deficiency prejudiced petitioner’s defense. Id. at 687-88, 690. According to

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the Supreme Court, “[s]urmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. 356, 371 (2010).
In determining whether counsel performed deficiently, courts “must be highly
deferential” to counsel’s conduct, and a petitioner must show counsel’s performance fell beyond
the bounds of prevailing objective professional standards. Strickland, 466 U.S. at 687-89.
Counsel is “strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Burt v. Titlow, 134 S. Ct. 10, 17
(2013) (quoting Strickland, 466 U.S. at 690). “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.” Cotton v. Cockrell, 343
F.3d 746, 752-53 (5th Cir. 2003). As the Supreme Court explained, “[j]ust as there is no
expectation that competent counsel will be a flawless strategist or tactician, an attorney may not
be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what
appear to be remote possibilities.” Richter, 562 U.S. at 110. For this reason, every effort must be
made to eliminate the “distorting effects of hindsight.” Strickland, 466 U.S. at 689; Yarborough
v. Gentry, 540 U.S. 1, 6 (2003) (“The Sixth Amendment guarantees reasonable competence, not
perfect advocacy judged with the benefit of hindsight.”) (citations omitted). Accordingly, there is
a strong presumption an alleged deficiency “falls within the wide range of reasonable
professional assistance.” Feldman v. Thaler, 695 F.3d 372, 378 (5th Cir. 2012) (quoting
Strickland, 466 U.S. at 689).
To demonstrate prejudice, a petitioner “must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been

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different. A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694.
IV.

Analysis

Petitioner contends his trial counsel, now deceased, “was so sick at trial he was not in
command of the facts of the case” which deprived Petitioner of his Sixth Amendment right to
counsel. In particular, Petitioner alleges the cumulative effect of the following errors and
omissions rendered trial counsel’s representation ineffective: failure to conduct any pretrial
interviews; failure to interview and call the child’s mother as a witness; failure to object to the
relevancy of the Grand Jury foreman’s testimony; “goading” Petitioner into testifying; failure to
request a jury instruction on a lesser included offense; failure to request a “not guilty” instruction
based on “no evidence”; and failure to object to the Jury Charge which, Petitioner contends,
shifted the burden of proof. (ECF No. 1).
1. Failure to Conduct Pretrial Interviews, Call a Witness and Object to Testimony
Petitioner initially maintains trial counsel was ineffective in failing to seek out and
interview witnesses. Petitioner complains that trial counsel commenced his cross-examination of
each witness with the following question: “You and I have never met or talked before, have we?”
Petitioner believes this “reflected poorly on counsel’s pretrial preparation.” Nevertheless,
“counsel has a duty to make a reasonable investigation of defendant’s case or to make a
reasonable decision that a particular investigation is unnecessary.” Ransom v. Johnson, 126 F.3d
716, 723 (5th Cir. 1997) (citing Strickland, 466 U.S. at 691) (emphasis added). Further, a
petitioner alleging an investigation is deficient must show what the investigation would have
uncovered and how the petitioner’s defense would have benefited from this information. Nelson
v. Hargett, 989 F.2d 847, 850 (5th Cir. 1993); Lockhart v. McCotter, 782 F.2d 1275, 1282 (5th

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Cir. 1986). Here, the only two witnesses Petitioner identifies specifically are Mr. Hays, the
Grand Jury foreman, and the child’s mother, Anna Bracamontes. To the extent he fails to
specifically identify other witnesses, Petitioner cannot show trial counsel was deficient in not
conducting pretrial interviews since there is no indication of what the investigation of these
unidentified witnesses would have disclosed or how Petitioner’s defense would have benefited.
Nelson, 989 F.2d at 850; Lockhart, 782 F.2d at 1282.
With respect to Mr. Hays, who was called as a witness, Petitioner maintains that had his
trial counsel interviewed him prior to trial, he would have known the State intended to use Mr.
Hays’ testimony to bolster its case with hearsay testimony. Petitioner argues counsel should have
objected to the relevancy of Mr. Hays’ testimony and sought its exclusion, maintaining that were
it not for Mr. Hays’ bolstering testimony, the jury would have returned a verdict of not guilty.
However, it appears trial counsel made the decision that further investigation of Mr. Hays was
unnecessary. In fact, the trial record reflects that counsel understood the foreman was there to
testify regarding manner and means. (ECF 14-12 at 63).
In 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.” Strickland, 466 U.S. at 688-89.
Federal habeas courts presume counsel’s choice of trial strategy is objectively reasonable unless
clearly proven otherwise. Id. at 689. Counsel’s strategic choices, made after a thorough
investigation of the law and facts relevant to plausible options, are virtually unchallengeable. Id.
at 673; Pape v. Thaler, 645 F.3d 281, 289-90 (5th Cir. 2011).

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Here, Petitioner has not overcome the presumption that trial counsel’s decision not to
interview Mr. Hays fell within the wide range of reasonable professional assistance. Petitioner
also fails to show that but for trial counsel’s failure to interview and/or object to Mr. Hays’
testimony, the results of the trial would have been different. Although Petitioner maintains the
jury would not have convicted him were it not for Mr. Hays’ “bolstering testimony,” there was
ample evidence the jury could have relied on in reaching its verdict. Berghuis v. Thompkins, 560
U.S. 370, 390 (2010) (noting the weight of the evidence of guilt in finding alleged deficient
performance of counsel not prejudicial); Pondexter v. Quarterman, 537 F.3d 511, 525 (5th Cir.
2008) (same).
Petitioner’s mother testified when she and her husband left the house, the child was fine
but upon their return, the child had to be taken immediately to the ER. (ECF No. 14-12 at 30-34).
(Id.). No reason was ever provided for the child’s injuries until the day of trial when Petitioner
took the stand. He testified he was giving the baby a bath when water sprayed the baby’s face,
causing the baby to jump back and “hit himself” on the bathtub. (ECF No. 14-14 at 12).
However, Dr. Riojos, the ER doctor in charge at Christus Santa Rosa where the child was first
taken for treatment, testified the child’s injuries were so severe the child required immediate
neurosurgical treatment and had to be airlifted to University Hospital. (No. 14-13 at 96-99). Dr.
Riojas also testified the child’s injuries were not the kind of injuries he sees when children slip
and fall, are dropped, or fall off beds. (Id. at 100-01). Additionally, Dr. Lukefher, the Medical
Director of the Center for Miracles, testified in detail regarding the child’s injuries. 1 (Id. at 5684). He stated that based on his examination of the child and the physical evidence – i.e. the
bleeding of the eyes, the swelling of the brain, the midline shift of the brain, and the bilateral
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The Center for Miracles is a clinic that examines children as outpatients but also sees children at either University
Hospital or Santa Rosa when called by the treating physicians to examine a child believed to have been abused or
neglected.

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retinal hemorrhaging-- he believed the child’s injuries were not the result of accidental trauma
but indicative of extreme forces being exerted on the child, equivalent to a car wreck involving
speeds of 60 miles per hour. (Id. at 81-84, 91-2). Based on the foregoing, Petitioner has not
shown there is a reasonable probability that, but for counsel’s failure to interview and/or object
to Mr. Hays’ testimony, the result of the proceeding would have been different. Strickland, 466
U.S. at 694.
With respect to the child’s mother, Petitioner contends that had trial counsel interviewed
her prior to trial, he would have learned she initially assumed responsibility for the injury only to
later recant. Petitioner argues her testimony would have assisted his defense. However, counsel
could reasonably have made a strategic decision in this regard, a decision entitled to deference by
the Court. Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002) (providing petitioner must “bring
forth” evidence, such as affidavits, from uncalled witnesses, to support an ineffective-assistance
claim); Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (providing ineffective
assistance claims “based upon uncalled witnesses [are] not favored because the presentation of
witness testimony is essentially strategy and thus within the trial counsel’s domain, and . . .
speculations as to what these witnesses would have testified [to] is too uncertain”). A petitioner
shoulders a heavy burden to overcome a presumption that his counsel’s conduct was strategically
motivated and to refute the premise that “an attorney’s actions are strongly presumed to have
fallen within the wide range of reasonable professional assistance.” Messer v. Kemp, 760 F.2d
1080, 1090 (11th Cir. 1985).
Although Petitioner maintains the child’s mother stated she was responsible for the
child’s injuries, he presents no evidence to support this claim. Further, when asked this very
question, Detective Manual Perez testified the child’s mother never claimed she was responsible.

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(ECF 14-13 at 17-18). Petitioner also fails to show the child’s mother was available to testify and
would have done so, what exactly she would have testified to, and that her testimony would, in
fact, have been favorable to his defense. Accordingly, Petitioner fails to meet his burden of
showing he was denied effective assistance of counsel. Strickland, 466 U.S. at 687-88, 690.
2. “Goading” Petitioner into Testifying
Petitioner next contends that although it was agreed prior to trial he would not testify
because of a prior aggravated assault conviction with a deadly weapon, trial counsel “goaded”
him into testifying against his wishes. Petitioner does not state how he was “goaded”; however,
elsewhere in his petition, Pardo states he testified “against his better judgment.” This suggests
Petitioner made the decision to testify and was not compelled to do so. Moreover, Petitioner
argues that because he testified the child hit its head while he was being bathed, Petitioner was
entitled to an instruction on a lesser included offense. Thus, although he maintains trial counsel
was deficient in “goading” him to testify, rather than show prejudice by counsel’s alleged
conduct, Petitioner argues that because of his testimony, he was entitled to a jury instruction.
This hardly sounds prejudicial. In any event, Petitioner does not show how he was prejudiced by
counsel’s alleged conduct in “goading” him to take the stand. Accordingly, his claim of
ineffective assistance of counsel fails. Id., at 687.
3. Failing to request Instructions and Object to Jury Charge
As previously noted, in his federal habeas petition, Pardo maintains trial counsel was
ineffective in failing to request an instruction on a lesser included offense because of his
testimony that the child hit its head when accidentally splashed with water. Petitioner further
contends trial counsel was deficient in failing to request an instruction of “not guilty” at the close
of the State’s evidence because there was no evidence or testimony from any source that

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conclusively proved Petitioner caused any injury whatsoever to the child. However, in his state
habeas action, Pardo alleged the trial court’s charge to the jury impermissibly shifted the burden
of proof and there was “no evidence” he caused the child’s injuries as alleged in the indictment.
He did not allege, as he does now, that trial counsel was ineffective in failing to request an
instruction on a lesser included offense or to request a directed verdict once the State rested.
Exhaustion requires a petitioner “to present the state courts with the same claim he urges
upon the federal courts.” Picard v. Connor, 404 U.S. 270, 276 (1971). Claims are not exhausted
“if a petitioner presents new legal theories or entirely new factual claims in his petition to the
federal court.” Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001); Riley v. Cockrell, 339 F.3d
308, 318 (5th Cir. 2003) (“The federal claim must be the ‘substantial equivalent’ of the claim
brought before the State court.”). If a petitioner did not provide the state courts with a fair
opportunity to apply controlling legal principles to the facts bearing upon his constitutional
claim, the Court may conclude that the claim is procedurally barred from consideration on the
merits in a federal habeas action. Henry v. Cockrell, 327 F.3d 429, 432 (5th Cir. 2003).
While the Court believes these claims have not been exhausted and are procedurally
barred, Respondent does not contend Petitioner failed to exhaust these claims. In any event,
Section 2254(b)(2) authorizes the avoidance of a procedural default or procedural bar analysis in
favor of a rejection on the merits. See Nobles v. Johnson, 127 F.3d 409, 423-24 (5th Cir. 1997)
(denying relief on the merits of a procedurally defaulted habeas claim). It is well settled that
“counsel is not required to make futile motions or objections.” Koch v. Puckett, 907 F.2d 524,
527 (5th Cir. 1990). The Fifth Circuit explained that “failure to raise meritless objections is not
ineffective lawyering; it is the very opposite.” Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994)
(failure to object to the admission of extraneous offenses at penalty phase of capital murder trial

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is not ineffective lawyering since unadjudicated extraneous offenses are generally admissible at
this stage); Green v. Johnson, 160 F.3d 1029, 1037 (5th Cir. 1998) (failure to make frivolous
objection does not cause counsel’s performance to fall below an objective level of
reasonableness); Sones v. Hargett, 61 F.3d 410, 415 n.5 (5th Cir. 1995) (failure to pursue a
frivolous point cannot be deficient).
For reasons previously stated, there was ample evidence to support the jury’s verdict that
Petitioner was guilty of intentionally injuring the child. Additionally, the severity of the child’s
injuries were such that both doctors testified the injuries were not accidental and could not have
been caused by a simple fall. As such, trial counsel was not deficient in failing to request either a
directed verdict of not guilty or a jury instruction on a lesser included offense, both of which
would have, in all likelihood, been denied. 2 Koch, 907 F.2d at 527. Further, rather than showing
“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different,” Petitioner simply discounts the evidence supporting the
jury’s verdict. Consequently, Petitioner fails to meet his burden with respect to both prongs
required by Strickland, 466 U.S. at 687-88, 690.
Petitioner also maintains that trial counsel was deficient in failing to object to the Jury
Charge which Petitioner claims shifted the burden of proof to the defense on a major element of
the offense concerning intent and knowledge. In this case, the jury was charged as follows:
A person acts intentionally, or with intent, with respect to a result of his conduct
when it is his conscious objective or desire to cause the result.
A person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause the
result.
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Moreover, trial counsel’s strategy in seeking an acquittal of the offense of intentionally and knowingly causing
injury to a child rather than seeking an instruction on the lesser included offense of recklessly causing injury to a
child, arguably was a tactical decision that 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. Cotton, 343 F.3d at 752-53.

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Citing Sandstrom v. Montana, 442 U.S. 510 (1979), Petitioner contends this instruction is
unconstitutional because, as in Sandstrom, this instruction “presume[s] that Petitioner Pardo
intended his conduct.” However, in Sandstrom, the jury was instructed that “[t]he law presumes
that a person intends the ordinary consequences of his voluntary acts.” Id. at 513. In the present
case, the instruction did not include presumptive language and, in fact, tracked the language of
Texas Penal Code Ann. § 6.03.
Moreover, Petitioner raised this, as well as his other claims (with the exception of the two
claims noted above) in his application for state writ of habeas corpus, which the TCCA denied.
The TCCA’s implicit and explicit factual findings and credibility determinations are entitled to a
presumption of correctness, which may be overcome only by clear and convincing evidence. 28
U.S.C. § 2254(e)(1); Marshall v. Lonberger, 459 U.S. 422, 433 (1983); Neal v. Puckett, 239 F.3d
683, 696 (5th Cir. 2001). Petitioner has failed to demonstrate that the TCCA’s decision was an
unreasonable application of clearly established federal law or an unreasonable application of the
facts in light of the evidence presented. Accordingly, Petitioner’s claims that he was denied
effective assistance by his trial counsel lacks merit and are, therefore, DENIED.
V.

Certificate of Appealability

The Court must now determine whether to issue a certificate of appealability (COA). See
Rule 11(a) of the Rules Governing § 2254 Proceedings; Miller–El v. Cockrell, 537 U.S. 322,
335-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only if a petitioner makes “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). If a district
court rejects 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.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This requires a petitioner to

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show “that reasonable jurists could debate whether the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Miller–El, 537 U.S. at 336 (citation omitted).
A district court may deny a COA sua sponte without requiring further briefing or
argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set forth
above, the Court concludes that reasonable jurists would not debate the conclusion that Pardo
was not entitled to federal habeas relief. As such, a COA will not issue.
VI.

Conclusion and Order

Petitioner has failed to establish that the state court’s rejection of the aforementioned
claims on the merits during his state habeas corpus proceedings was either (1) contrary to, or
involved an unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, or (2) based on an unreasonable determination of the facts
in light of the evidence presented in the petitioner’s state trial, appellate, and habeas corpus
proceedings. As a result, Oscar David Pardo’s federal habeas corpus petition does not warrant
federal habeas corpus relief.
Accordingly, based on the foregoing reasons, IT IS HEREBY ORDERED that:
1. Federal habeas corpus relief is DENIED and Petitioner Oscar David Pardo’s Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITH
PREJUDICE;
2. No Certificate of Appealability shall issue in this case; and
3. All other remaining motions, if any, are DENIED, and this case is now CLOSED.
It is so ORDERED.

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SIGNED this 19th day of April, 2018.

________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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