Jaramillo v. Davis

Filing 18

MEMORANDUM OPINION AND ORDER. No Certificate of Appealability shall issue. Signed by Judge Xavier Rodriguez. (aej)

FILED

UNITED SThfES DISTRICT COURT
WESTERN *ISTRICT OF TEXAS
SAN ATtONIO DIVISION

2Ot

CLERK U.S. DISTRICT COURT
WESTERN DISTRICLOF TEXAS

g

LUIS RAY JARAMILLO, JR.,
TDCJ No. 01966673,

JAN o 2

CLE

§

§

Petitioner,

§

§
V.

CIVIL NO. SA-18-CA-00579-XR

§
§

LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,

§
§

§
§

Respondent.

§

MEMORANDV$I OPINION AND ORDER
Before the Court are Petitioner LuislJaramillo's pro se Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C.

§

2254 (ECF No.

)4

Petitioner's Memorandum in Support of Petition for

Writ of Habeas Corpus (ECF No. 7), Resdndent's Answer (ECF No. 14), and Petitioner's Reply
IECF No. 16). Having reviewed the recdr

concludes Petitioner is not entitled to

and pleadings submitted by both parties, the Court

reli4 under the standards prescribed by the Antiterrorism

and Effective Death Penalty Act of 1996 ("AEDPA").

See

28 U.S.C.

§

2254(d). Petitioner is also

denied a certificate of appealability.
L 3ack2round

On August 13, 2012, pursuant to apIea agreement, Petitioner pleaded nob contendere to a
charge of violation of sex offender registr4ion requirements in the 290th Judicial Court of Bexar

County, Texas. (ECF No. 15-25 at 5).1 Petit4oner was required to register as a sex offender because

'The Failure to Comply Report states:
After receiving reports that the offeti4er was not residing at his registered residence, I
contacted the offender via phone wh dmitted such. He also agreed to report his change
of address frOm 4402 Walnut Woods :tt 6607 Spring Garden. When the offender failed to
report the change of his address, I met *ith his aunt, who resides 4402 Walnut Woods, and

in 2001 he pleaded guilty to aggravated sexual assault of a child and was sentenced to a term of

5)2 In return for Petitioner's
five years' imprisonment. (ECF No. 15-22 t 83; ECF No. 15-5 1 at 2,
nob

contendere plea, the State agreed to dismiss charges of theft of services, criminal trespass,

injury to a child, and injury to the elderly. (ECF No. 15-22 at 81).
In accordance with the plea agreerlient, on September 25, 2012, at the conclusion of a

hearing, Petitioner was sentenced to a terim of 10 years' imprisonment for violating sex offender
registration requirements; the term of imiptisonment was probated for seven years dating from
September 25, 2012. (ECF No. 15-6; ECF

o. 15-51 at 8). The terms

of probation included sex

offender treatment and registration as a se, offender. (ECF No. 15-22 at 106-07, 125-28). At the
sentencing hearing, with regard to the terntsl of probation, Petitioner's counsel stated: "I would ask
the Court that based on my dealings with M. Jaramillo that he probably needs some counseling in
the anger department to help him put some things in life a little bit better perspective than perhaps

he is able to do right now." (ECF No. 15-6 t 7). The trial court stated:

I'm going to assess punishment t 10 years, as you bargained for, with a $1,500
fine, however I'm going to suspen4 the imposition of the sentence. And let's do
this. Let's put you on seven years øf probation. . . . So you are going to have to
comply with sex offender registratoIi requirements. You're to have no contact with
[N.M.] as part of the agreement that you've made." (ECF No. 15-6 at 9). The court
further stated: "I am going to [Jreqi4re you to go to anger management and you are
. .

to be supervised by the sex

offendr unit. When we do anger management,

. . .

I

want him to do something significait."
obtained a written and audio/video st*tment in which she reports that the offender had not
resided with her in months. Because o the offender's failure to comply, I applied for an
arrest warrant on which the offender was booked.
(ECF No. 15-22 at 87).
The victim was a 13-year-old female,"A.N.," who was not related to Petitioner. (ECF No. 15-51
at 2). At the time of the offense Petitioner was just shy of his 21st birthday. (ECF No. 15-51 at 2, 5).
Petitioner first registered as a sex offender on 3tly 11, 2005, upon his release from prison on June 30, 2005.
(ECFNo. 15-51 at 2).
2

2

(ECF No. 15-6 at 11-12). Petitioner was or1ered not to have "harmful or injurious contact" with
his daughter. (ECF No. 15-6 at 10-11, EC1 No. 15-22 at 106). The court warned Petitioner "I'm

very serious that this is a zero tolerance probation." (ECF No. 15-6 at 12).
Petitioner appealed and was appointd counsel. Jaramillo v. State, No. 04-12-00650CR,
2013 WL 1320517, at *1 (Tex.

App.San ntonio 2013, no pet.). Counsel filed an Anders brief

and informed Petitioner he had a right to reiew the record and file a pro se brief. Id. Petitioner did

not file a pro se brief in his appeal. Id. The ppe1late court concluded the appeal was frivolous and
without merit and affirmed the judgment

4the trial court on April 3, 2013.

Id. Petitioner did not

seek discretionary review.
A Violation Report dated April 2, O14, alleged Petitioner failed to report to ordered sex

offender treatment, had personal contact ivith his daughter, and violated his "Zero Tolerance

Probation." (ECF No. 15-22 at 129). His Cømmunity Supervision Officer alleged:

Defendant Jaramillo failed to repert for his first group session at Professional
Associates for Counseling and Eva'uation (PACE) - his designated Sex Offender
Treatment Provider - on 3/31/2014, as directed by his counselor []. When this
officer inquired into his absence, dfendant Jaramillo replied that he didn't go to
treatment because he was with his K 1 4-yo) daughter. When this officer informed
defendant he was in violation of his jhild Safety Zones, he expressed no contrition,
but instead asked when this officer twas going to give him an opportunity to speak
to the judge about his conditions.

Defendant Jaramillo has only been n probation a couple of weeks but has already
made an indelible impression on everyone with whom he comes in contact. He
refuses to take responsibility for his actions and continues to assert, even to
Treatment, that he's the victim in this case and is "under duress".
(ECF No. 15-22 at 129). In April of 2014, jhe conditions of Petitioner's probation were amended

to include a term of 22 days in jail. (ECF No. 15-22 at 129, 13 1-33).

3

A Violation Report prepared May

,

2014, alleged Petitioner violated his probation by

driving a vehicle without a valid license 'on a regular basis," possessing a sexually-oriented
device, and possessing an unmonitored conputer which he had previously been told to remove

from his residence, all in violation of his "Zro Tolerance Probation." (ECF No. 15-22 at 149-50).
In August of 2014, Petitioner was adjudiated as incompetent to stand trial and was ordered

committed to the Department of HealthcarelServices for examination and treatment. (ECF No. 1522 at 155).

On October 9, 2014, Petitioner was djudicated as mentally competent to stand trial on the

alleged probation violations. (ECF No.

1

542 at 159). He was released on bond pending a hearing

on the probation violations and the coult ordered he be supervised by Bexar County Pretrial
Services. (ECF No. 15-22 at 157). On Novmber 7, 2014, the State filed an Amended Motion to

Revoke Community Supervision, asserting: Petitioner "repeatedly used profanity and disrespectful

language" when communicating to his Supervision Officer, "in violation of Condition No. 5;" that
Petitioner operated a motor vehicle withouUa valid driver's license, "in violation of Condition No.
13;" that Petitioner possessed a "sexually oiented device.

. .

in violation of Condition No. 25G;"

and that Petitioner "was found in possession4 of an unmonitored computer, in violation of Condition
No. 25 1(A)." (ECF No. 15-22 at 160-61). 1he Amended Motion to Revoke also alleged Petitioner

failed to report in person to his Supervisiox Officer on three occasions, in violation of Condition
No. 5, and that he failed to provide proof cf residence or a change of address within 48 hours of

his release from the San Antonio State HoS$ital, in violation of Condition No. 9. (ECF No. 15-22).

4

Petitioner pleaded true to the a1legtions that he violated the conditions of his probation.
(ECF No. 15-51 at 10). His probation was revoked and he was sentenced to a term of ten years'

incarceration on November 13, 2014. ECF No. 15-51 at 10). Petitioner appealed and was
appointed counsel, who filed an Anders brif and further informed Petitioner of his right to review
the record and file his own brief. Jaramilk
*1 (Tex.

App.San Antonio 2015, pet. ref

v.

State, No. 04-14-00902-CR, 2015 WL 5247045, at

ki).

Petitioner obtained a copy of the record and filed a

pro se brief on appeal. Id. He asserted th 2012 sentencing court had not ordered sex offender
supervision and Zero Tolerance Probatioi and, accordingly, he could not be found guilty of
violating those terms of probation. (ECF 4o. 15-15 at 6). He further alleged he should not be
treated as a "high risk" sex offender, and 3sserted the 2014 sentencing judge had "amended the

plea-bargain and conditions-of-probation.
(ECF No. 15-15 at 6, 8). Petitioner

.

out of spite for having appealed the case once.

furtbr alleged that, after posting bond with regard

.

to the

Motion to Revoke, he was not informed th4it he needed to report to a probation supervisor. (ECF
No. 15-15 at 10). The appeal was deemed fivo1ous and the appellate court affirmed the judgment

and sentence. Id. The Texas Court of Crim$a1 Appeals denied discretionary review. Id.

Petitioner sought a state writ of habas corpus. In his state habeas action Petitioner alleged
he was denied the effective assistance of tri.l and appellate counsel and that the trial court violated

his right to due process of law. (ECF No.

filed affidavits in the state habeas action.

1-49 at

10-20). Petitioner's trial and appellate counsel

(CF No. 15-51

at 24-28, 45-46). The habeas trial court,

which was the convicting court, made findiigs of fact and recommended the writ be denied. (ECF
No. 15-49 at 1; ECF No. 15-51 at 53-66). lFhe Texas Court of Criminal Appeals denied the writ

without written order on the findings of thetria1 court. (ECF No. 15-45 (Writ No. 56,888)).

In his federal habeas petition, Petiti4ner asserts:
1.

His trial counsel failed to continu to assert his incompetence and failed to object to the

State's amended motion to revoke his prob4tion.
2. His appellate counsel failed to fileja "second perfected appeal, failed to assert meritorious

claims on appeal and submitted inadequate briefs on appeal.
3. The trial court violated his du

process rights by changing the terms of his plea

agreement and conditions of probation, in1josing conditions of probation that were not reasonably
related to his conviction, and failing to

ve him adequate notice that he had to report to his

probation supervisor weekly pending his revocation hearing.
Respondent asserts any claims rearding Petitioner's sentence and the terms of his
probation, imposed in 2012, are time-barked. Respondent also contends Petitioner's claims of
ineffective assistance of counsel are witho4t merit.

II.

Stidard of Review

A. Review of State Court Adjudications

Petitioner's habeas petition is goveled by the heightened standard of review provided by
the AEDPA, codified at 28 U.S.C.

§

2254. Under section 2254(d), a petitioner may not obtain

federal habeas corpus relief on any clai4i that was adjudicated on the merits in state court

proceedings, unless the adjudication of thai claim "resulted in a decision that was contrary to, or

involved an unreasonable application of, 1early established Federal law, as determined by the
Supreme Court of the United States," or resulted in a decision based on an unreasonable

determination of the facts in light of the eidence presented in the stat'e court proceeding. Brown
v.

Payton, 544 U.S. 133, 141 (2005). Tlis 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.. 86, 102 (2011).

A federal habeas court's inquiry

ino unreasonableness should always be objective rather

than subjective, with a focus on whether th4 state court's application of clearly established federal
law was "objectively unreasonable" and n4t whether it was incorrect or erroneous. McDaniel
Brown, 558 U.S. 120, 132-33 (2010); Wiggins

v.

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 cOirt would have reached a different conclusion. Richter,
562 U.S. at 102. Instead, a petitioner n4ist show the state court's decision was objectively

unreasonable, a "substantially higher thresiold." Schriro

v.

Landrigan, 550 U.S. 465, 473 (2007);

Lockyer v. Andrade, 538 U.S. 63, 75-76 (ó03). As long as "fainninded jurists could disagree" on
the correctness of the state court's decisio, the state court's determination that a claim lacks merit

precludes federal habeas relief. Richter, 56 U.S. at 101.
B. Review of Ineffective Assistance of Counsel Claims

Sixth Amendment claims alleging iieffective assistance of counsel are reviewed under the

familiar two-prong test established in Stri*and v. Washington, 466 U.S. 668 (1984). To establish
a violation of the Sixth Amendment righ to counsel a petitioner must demonstrate counsel's
performance was deficient and the deficieny prejudiced his defense. Id. at 687-88, 690. According
to the Supreme Court, "[s]urmounting Sfrckland's high bar is never an easy task." Padilla

v.

Kentucky, 559 U.S. 356, 371 (2010).

In determining whether counsel pa ormed deficiently, courts "must be highly deferential"

to counsel's conduct, and to establish defcient performance a petitioner must show counsel's

7

performance fell beyond the bounds of prevai1ing professional standards. Strickland, 466 U.S. at
687-89. Counsel is "strongly presumed. o have rendered adequate assistance and made all

significant decisions in the exercise of reacnable professional judgment." Burt v. Titlow, 571 U.S.
12, 22 (2013) (quoting Strickland, 466 USL at 690). "A conscious and informed decision on trial

tactics and strategy cannot be the basis for onstitutionally 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) (interia1 quotations omitted). Accordingly, there is a strong

presumption that an alleged deficiency

"$lls within the wide range of reasonable professional

assistance." Feldman v. Thaler, 695 F.3d $72, 378 (5th Cir. 2012) (quoting Strickland, 466 U.S.
at689).
To demonstrate prejudice, a

petiti+er "must show that there is a reasonable probability

that, but for counsel's unprofessional errors the result of the proceeding would have been different.
A reasonable probability is a probability ufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694. "The like1ibod of a different result must be substantial, not just
conceivable." Richter, 562 U.S. at 112, because this showing of prejudice must be "rather
appreciable," a mere allegation of prejuice or the possibility of a different outcome is not

sufficient to satisfy the prejudice prong of rickland. Armsteadv. Scott, 37 F.3d 202, 206 (5th Cir.
1994); see also Cranev. Johnson, 178 F.3 309, 312 (5th Cir. 1999).

A habeas petitioner has the burden

f proving both prongs of the Strickland test. Rogers v.

Quarterman, 555 F.3d 483, 489 (5th Cir. 009); Blanton

v.

Cir. 2008). An ineffective assistance of cotnse1 claim fails

deficient performance or prejudice and,

Quarterman, 543 F.3d 230, 235 (5th

if the petitioner cannot establish either

ording1y, the Court need not evaluate both prongs of

8

the test if the petitioner makes an insuff1ient showing as to either performance or prejudice.

Strickland, 466 U.S. at 697; Blanton, 543 F3d at 235-36. Finally, ineffective assistance of counsel
claims are considered mixed questions of 1w and fact and are analyzed under the "unreasonable

application" standard of 28 U.S.C.

§

22544d)(1). See Gregory v. Thaler, 601 F.3d 347, 351(5th

Cir. 2010).

A. Ineffective Assistance of Trial C
1.

Petitioner's competence

Petitioner asserts his trial counsel jvas ineffective because counsel failed to continue to
assert his incompetence in the revocation
habeas action. Counsel filed an affidavit ib
I consulted with Mr. Jaramillio (sI

for competency to stand trial and I
would be credited toward his sel
examination which resulted in a
trial. On August 25, 2014, Mr. Ja
the state hospital for treatment.
September 25, 2014, the hospital
not put forth his best effort in achi
classes; had an "oppositional"
competency examination. Esseni
conclusion that Mr. Jaramillio w
triggered a restoration hearing for
with Mr. Jaramillio and explained
to it which would result in a heaii
Jaramillio instructed me to not [] a
I

Petitioner raised this action in the state
matter addressing this claim:
before filing a motion to have him examined
nted out that the time he spent at the hospital
rice. He agreed to my filing the motion for
rmination that he was incompetent to stand
iillio was sent from the Bexar County Jail to
a letter to Judge Andrew Carruthers dated
perintendent advised that Mr. Jaramillio had
ing competence; was often late to restoration
tude; would not cooperate with a formal
ly, he agreed with the treatment team's
competent if he CHOSE to be. This report
r. Jaramillio. Before this hearing, I consulted
t we could fight the state's position or agree
on the motion to revoke his probation. Mr.
ose the competency restoration.

Since Mr. Jaramillio advise4 me that he did not want to oppose the motion,
I did not object to it. I did not raie any mental health issues at the revocation
hearing for the same reason. . . .
(ECF No. 15-51 at 77-78).

In recommending the writ be denie, the state habeas trial court found the affidavit of trial

counsel truthful and credible. (ECF No. 15-5 1 at 64). The court concluded that counsel's
performance "did not fall below an objectiv standard of reasonableness" and that Petitioner failed

have been different but for the errors made by

to show "the result of the proceeding

determinations, including its credibility findings,

counsel." (Id.). The state habeas court's

they lack fair support in the record. Demosthenes

are entitled to a presumption of correctness
v.

[]

Baa!, 495 U.S. 731, 735 (1990);

v.

presumption is especially strong when, as

Thaler, 714 F.3d 897, 903 (5th Cir. 2013). The

ii this matter, the

are one and the same. Clark v. Johnson,

state habeas court and the trial court

F.3d 760, 764 (5th Cir. 2000). Furthermore, the
in light of the defendant's own statements and

reasonableness of counsel's actions is
actions. Strickland, 466 U.S. at 691.
ar

fairly supported by the record. The record indicates

Petitioner was competent at the time of the

on the motion to revoke; he discussed in open

The habeas trial court's findings

court the circumstances of the allegations

communicated with the judge in an articulate and

rational manner. (ECF No. 15-24 at 13-17). The habeas trial court also found, as a matter of fact,

that Petitioner himself directed counsel nc$ to challenge the medical report concluding he was
competent. (ECF No. 15-51 at 24). Accor4ingly, Petitioner has not shown deficient performance

with regard to counsel's alleged failure to hal1enge his competency. Therefore, the state court's
denial of this claim was not an unreasonab1 application of Strickland.

10

2. Amended motion to revoke

Petitioner alleges trial counsel wa ineffective because counsel failed to object to the

State's amended motion to revoke his prøation. Petitioner raised this claim in his state habeas
action. Counsel filed an affidavit in that rntter, stating:

On November 13, 2014, bfore the revocation hearing began, the state
offered to modify the 10 year sente ce to 6 years. I relayed and recommended this
offer to Mr. Jaramillio. (sic) I ad'ii ed him of the court's discretion since he had
already been convicted, that he w taking a risk of a harsher result since this was
not his first motion to revoke. Neve heless, he rejected the offer and required us to
proceed to [a] hearing. The amend ent made to the motion to revoke presented to
me at the revocation hearing sini y updated the outstanding violations alleged
against him. Since Mr. Jaramilliø did not want to object to the restoration of
competence it appeared to me that: e wanted to move forward with the hearing as
well. Delaying the hearing by ob ecting to the timeliness of the filing of the
amended motion would only result in his spending more time in jail as the state
would simply either drop the hearin and refile the motion or move forward with a
hearing on the unamended motion th an unlikely change in the outcome as the
state need only prove that one v lation was true by a preponderance of the
evidence. For these reasons, I did n t object to the amended motion.
(ECF No. 15-5 1 at 78-79). The state habea court determined counsel was not ineffective and the
Court of Criminal Appeals denied relief onthis claim.

Counsel stated a reasoned strate

presumption that his counsel's conduct

for his actions and Petitioner has not overcome the

ws strategically motivated nor

refuted the presumption

that counsel's actions fell within the w1e range of reasonable professional assistance. See

Harrington, 562 U.S. at 105. See Richter, $62 U.S. at 105 ("The Strickland standard is a general
one, so the range of reasonable applicati$s is substantial."); Knowles

v.

Mirzayance, 556 U.S.

111, 123 (2009) (holding that Strickland i$

general standard and, accordingly, "a state court has

even more latitude to reasonably determine

a defendant has not satisfied that standard."). "On

habeas review, if there is any reasonable $gument that counsel satisfied Strickland's deferential

11

standard, the state court's denial must be

theld." Rhoades v.

Davis, 852 F.3d 422, 432 (5th Cir.

2017) (internal quotations omitted).

Furthermore, Petitioner makes no sowing that any objection to the amended motion to
revoke probation would have produced a 4fferent outcome. Absent a showing that the outcome

of the proceeding would have been differethad counsel raised a particular argument the petitioner
fails to demonstrate actual prejudice. Pa

v.

Quarterman, 472 F.3d 245, 256 (5th Cir. 2006).

Accordingly, the state court's rejection 4 this claim was not an unreasonable application of
Strickland.
B. Ineffective Assistance of Appellate C
1.

Failure to file a "second perfeC

Petitioner argues he received ineff

appeal"
assistance of appellate counsel because appellate
He raised this claim in his state habeas action,

counsel failed to file a "second perfected
and his appellate counsel filed an affidavit

that matter, stating:

In the first appeal (No. 0 12-00650CR), Mr. Jaramillo tried to appeal his
conviction where the trial court fo wed the plea bargain agreement. I filed a No-Error
Brief and informed Mr. Jaramillo his right to file his own pro se brief. The Judgment
of the trial court was affirmed. M Jaramillo insisted that he had a right to appeal the
denial of a written pre-trial moti to suppress; however, the Clerk's record did not
support this unsubstantiated claim Mr. Jaramillo.

In the second appeal (No. 44-14-O09O2-CR), Mr. Jaramillo tried to appeal the
revocation of his community supersion which was based on his pleas of true to violating
the conditions of his community servision. I filed a No-Error Brief and informed Mr.
pro se brief. The Judgment of the trial court was
Jaramillo of his right to file his
affirmed.

on

(ECF No. 15-5 1 at 68). The habeas trial

recommended the writ be denied and the Court of

Criminal Appeals denied relief on this

12

of appellate counsel, a petitioner must show

To succeed on a claim of ineffecti

that his counsel's performance was
(2000); Dorsey

v.

Stephens, 720 F.3d 3

and prejudicial. Smith

v.

Robbins, 528 U.S. 259, 285

319 (5th Cir. 2013). The right to counsel on appeal

"does not include the right to bring a fri

appeal and, concomitantly, does not include the

right to counsel for bringing a frivolous

Smith, 528 U.S. at 278. "[C]ounsel's failure to

raise an issue on appeal will be

below an objective standard of
Cir. 2004) (internal quotations omitted)

controlling precedent [must] be

deficient performance only when that decision fall[s]
United States v. Reinhart, 357 F.3d 521, 525 (5th

"[s]olid, meritorious arguments based on directly
and brought to the court's attention." Id. (internal

quotations omitted).
With regard to Petitioner's

resulting from his guilty plea, appellate counsel's

Anders brief states:

After review of the entire record, undersigned counsel believes that the
appeal in this case contains no meit according to settled principles of law and the
decisions of the Texas Court of A,eals. See Anders v. California, 386 U.S. 738,
744 (1967); Gainous v. State, 432 $W. 2d 137 (Tex. Crim. App. 1969).

Undersigned counsel can
Although the Trial Court's Certifi
the Appellant has right to appeal n
and ruled on before trial and not
clerk's record (in this court and in
Appellant preserved his limited rj
trial motions were signed and ent
49) makes no reference to the deni
Although Appellant's pro se Noti
the trial court heard and denie
September 12, 2012 (C.R. pgs. 42
in the trial court), nor the trial coui
nor the event display log of the
unsubstantial claim.

nd in the record no arguable points of error.
tion of Defendant's Right to Appeal states that
tters which were raised by written motion filed
rithdrawn or waived (C.R. p. 35), neither the
trial court) or the reporter's record reveal that
it to appeal. No trial orders denying any pred. The trial court's docket entry sheet (C.R. p.
of any of Appellant's written pre-trial motions.
of Appeal From Negotiated Plea claims that
Appellant's written motion to suppress on
4), neither the clerk's record (in this court and
s docket entry sheet, nor the reporter's records,
3exar County District Clerk corroborate this

13

(ECF No. 15-2 at 7-8).

With regard to the revocation of 1i probation after a hearing, appellate counsel's Anders

brief states:
After a review of the entirj record, undersigned counsel believes that the
appeal in this case contains no met according to settled principles of law and the
decisions of the Texas Court of Aea1s. See Anders v. California, 386 U.S. 738,
744 (1967); Gainous v. State, 432 .W. 2d 137 (Tex. Crim. App. 1969).

Undersigned counsel can
Appellant pled "true" at the rev
Community supervision can be i
defendant violated a condition of
334 (Tex. Crim. App. 1972). The
Appellant violated three conditior

in the record no arguable points of error.
hearing (R.R. Vol. 11-13-14, pgs. 4-6).
ked only when there is a showing that the
probation. Butler v. State, 486 S.W. 2d 331,
t reporter's record reveals a showing that the
his probation.
I

Lon

(ECF No. 15-14 at 6).

only if it falls below an objective standard of

Appellate counsel's performance i
reasonableness. Strickland, 466 U.S. at

-88. An appellate attorney need not even raise every

nonfrivolous ground available on appeal,

less meritless claims. Amador v. Quarterman, 458

F.3d 397, 410 (5th Cir. 2006). Counsel's

is only prejudicial if, but for the appellate

attorney's unreasonable failure to raise an

the defendant would have prevailed on his appeal.

Smith

v.

Robbins, 528 U.S. 259, 285

deficient for failing to raise what his
Amador, 458 F.3d at 410. Because

exercised reasonable professional

Accordingly, Petitioner's appellate counsel was not
revealed were meritless grounds of error. See
fails to overcome the presumption that counsel
in concluding there were no non-frivolous issues to

raise on appeal and he is unable to

prejudice because he presents no issue which was

likely to succeed on appeal, the state

's denial of this claim was not an unreasonable

application of Strickland.

14

2. Failure to raise claims for reIi

on appeal

Petitioner argues appellate counse1vas ineffective because counsel failed to assert a claim

of insufficient evidence or any of the otl

claims Petitioner raises in this matter in his appeal.

Petitioner further asserts appellate counse1 ¶submitted inadequate briefs" in his appeal. This claim
was raised and rejected in Petitioner's stathabeas action.
To succeed on a claim of ineffectiv assistance of appellate counsel, a petitioner must show

that his counsel's performance was defici*t and prejudicial. Smith, 528 U.S. at 285; Dorsey, 720
F.3d at 319. To demonstrate prejudice the j,etitioner must establish a reasonable probability that,

but for his counsel's unreasonable failure o assert a particular claim on appeal, he would have

prevailed in the appeal. Smith, 528 U.S.

286; Moreno

v.

Dretke, 450 F.3d 158, 168 (5th Cir.

2006). Appellate counsel "need not adva*e every argument, regardless of merit, urged by the

appellant." Evitts v. Lucey, 469 U.S. 387,

4 (1985).

Petitioner fails to show that he was kenied effective assistance of appellate counsel because
he does not identify a non-frivolous issuelJiat could have been raised on appeal and upon which
he would have prevailed. Bald assertions ai insufficient to support a claim for habeas relief Miller
v.

Johnson, 200 F.3d 274, 282 (5th Cir. 2ç$J0); Green

1998). Furthermore, to the extent

. .

.

v.

counsel erred by failing to assert

pea1, the Texas Court

of Criminal Appeals has noted

direct-appe1 litigation of ineffective assistance of counsel has too

many likely pitfalls to be an adequate
trial attorney." Griffith

Johnson, 160 F.3d 1029, 1042 (5th Cir.

Petitior asserts appellate

ineffective assistance of trial counsel on
that, "[a]s a general rule,

v.

pr$dural vehicle for challenging the

State, 507 S.W.$ 720, 728 (Tex. Crim. App. 2016).

15

ineffectiveness of a

s performance was in some manner deficient,

Even if it is assumed that appellate

any prejudice. With regard to the revocation of his

Petitioner has failed to demonstrate he
parole, after appellate counsel filed his

brief, Petitioner filed a pro se appellate brief

asserting the very arguments he contends

counsel should have raised. The Fourth Court

of Appeals found the claims frivolous

denied relief. Consequently, Petitioner cannot

demonstrate that but for his attorney's

to raise these issues on appeal he would have

at 285

Petitioner has demonstrated neither deficient

prevailed.

See Smith, 528 U.S.

's denial of this claim was not an unreasonable

performance nor prejudice, the state
application of Strickland.
C. Due Process Claims
1.

agreement

"Changing" the terms of the

to terms and conditions of probation, i.e., "highly

Petitioner asserts that he was
restrictive sex offender probation," which

contrary to the terms and conditions of probation

"orally pronounced in the courtroom

25, 2012." (ECF No.

claim in his pro se appellate brief and

inlis

1

at 7). Petitioner raised this

state habeas action. The Fourth Court of Appeals

The state habeas court concluded:

found his appeal "frivolous" and denied

An Applicant may seek relief froi an order or judgment of conviction ordering
11.072. Tex. Crim. Proc. Code Ann., Art.
community supervision under
11.072, § 1 (West 2017). Challeng to conditions of community supervision must
be made under this section. Id. § )(2). Therefore, because Applicant filed his
application under Art. 11.07, hi third and fourth grounds of relief are not
cognizable.

M

16

Appeals denied Petitioner's application for a state

(ECF No. 15-5 1 at 65). The Court of

writ of habeas

corpus.3

Respondent correctly argues this

asserting a violation of Petitioner's right to due

process in his 2012 criminal proceedings,

ibarred by the AEDPA's statute of limitations. Section
of limitations for state inmates seeking federal

2244 of the AEDPA establishes a
habeas corpus relief, providing:

(d)(l) A 1-year period of ii itation shall apply to an application fo a writ
of habeas corpus by a person in cu ody pursuant to the judgment of a State court.
The limitation period shall run fro the latest of
(A) the date on which the ju ment became final by the conclusion of
direct review or the expiratiofl
(B) the date on which the imil
State action in violation of the
removed, if the applicant was
(C) the date on which the
recognized by the Supreme C
by the Supreme Court and I
collateral review; or
(D) the date on which the fact
could have been discovered tb
(2) The time during
conviction or other collateral
is pending shall not be cc
subsection.
28 U.S.C.

§

f the time for seeking such review;
iiment to filing an application created by
onstitution or laws of the United States is
evented from filing by such State action;
nstitutional right asserted was initially
rt, if the right has been newly recognized
ide retroactively applicable to cases on
predicate of the claim or claims presented
ugh the exercise of due diligence.

a properly filed application for State postwith respect to the pertinent judgment or claim
e*M
toward any period of limitation under this
i0

2244.

Petitioner's conviction for failing

as a sex offender and his sentence of 10 years'

incarceration probated to seven years of

service, and the terms and conditions of his

The habeas trial court apparently
raised in a proceeding pursuant to article 11
by denying relief rather than dismiss his ci
denying relief on the merits rather than firn

uded the claim was procedurally defective because it was
ther than article 11.072. (ECF No. 15-51 at 65). However,
the Texas Court of Criminal Appeals signified that it was
etitioner's claim procedurally defaulted.
17

supeiised release, became final on May 3 :013, thirty days after the appellate court affirmed his
conviction and sentence, i.e. when the tint for seeking review by the Court of Criminal Appeals
expired. See Tharpe

v.

Thaler, 628 F.3d

7l, 724 (5th Cir. 2010) (holding the AEDPA's one-year
may challenge the basis of an order of deferred

statute of limitations, within which the

for filing an appeal from that order and not when

adjudication, begins to run when the time

following a probation violation); Butler v. Cain, 533

the defendant is later convicted and

becomes final when the time for seeking further

F.3d 314, 317 (5th Cir. 2008) ("the
direct review in the state court expires");

v.

Dretke, 429 F.3d 521, 530 (5th Cir. 2005)

from the last date to appeal said order); Tex. C. Crim.

(the finality of a probation order is

A's statute of limitations with regard to his federal

Proc. art. 44.45(b)(2). Accordingly, the

and sentence expired one year later, on May

habeas petition on issues arising from this
3, 2014.

application for habeas corpus relief until June 7, 2018,

Petitioner did not execute his
more than four years after the limitations

the limitations period because it was filed December

writ of habeas corpus did not operate to
14, 2017, after the limitations period had

had expired. Petitioner's state application for a

a:

expired. See Scott v. Johnson, 227 F.3d 260, 263

(5th Cir. 2000) (state application for habea

relief filed after limitations period expired does

not toll the limitations period). The recor4

not reflect that any unconstitutional state action

impeded Petitioner from filing for federal]

corpus relief prior to the end of the limitations

period. Furthermore, Petitioner has not

that he did not know the factual predicate of his

claims earlier. Finally, the claims do not

a constitutional right recognized by the Supreme

Court within the last year and made retroa44ive to cases on collateral review.

18

The statute of limitations is, in son

cases, subject to equitable tolling. Hollandv. Florida,

560 U.s. 631, 645 (2010). A federal hab44s petitioner is entitled to equitable tolling only if he

diligently pursued his rights and some extrrdinary circumstance prevented timely filing. Mat his
v.

Thaler, 616 F.3d 461, 474 (5th Cir.

201) (citing Holland, 560 U.S.

has explained that equitable tolling "appli

at 649). The Fifth Circuit

principally where the plaintiff is actively misled by

the defendant about the cause of action or i prevented in some extraordinary way from asserting

his rights," and that "excusable neglect"

des not support equitable tolling.

Coleman v. Johnson,

184 F.3d 398, 402 (5th Cir. 1999).

of Appeals

peifled equitable tolling only in cases involving

"exceptional circumstances." Fisher v. Jo

174 F.3d 710, 713 (5th Cir. 1999); Cantu-Tzin v.

Johnson, 162 F.3d 295, 297 (5th Cir.

The Fifth Circuit has consistently found no

The Fifth Circuit Court

exceptional circumstances even in cases

petitioners faced non-routine logistical hurdles in

submitting timely habeas applications

174 F.3d at 715; Cantu-Tzin, 162 F.3d at 297. And,

when deciding whether to equitably toll th statute of limitations, the diligence of the petitioner is

of foremost concern, as "equitable tolling lou1d only be applied if the applicant diligently pursues
§

2254 relief." Melancon

v.

Kaylo, 259 F.3d 401, 408 (5th Cir. 2001); see also Hardy

Quarterman, 577 F.3d 596, 598 (5th Cir.

v.

"[E]quity is not intended for those who sleep on

their rights." Fisher, 174 F.3d at 715.
Petitioner alleges no facts

any equitable basis exists for excusing his failure to
Therefore, relief on this claim is barred by the

timely file his federal habeas corpus

AEDPA' s statute of limitations.

19

2. Imposition of conditions of

Petitioner asserts the trial court vio1ed his constitutional rights by imposing conditions of

probation that were not reasonably related

his conviction. He argue the imposed "sex offender

conditions of probation" were not relatedo the crime of conviction, i.e., a "failure to register
charge." (ECF No.

1

at 7). Petitioner rai

Court of Appeals found the appeal fri

claim in his pro se appellate brief and the Fourth
and without merit. He also raised this claim in his

this claim arises from the terms of probation

state habeas action, and relief was denied.

imposed in 2012, this claim is barred

previously set forth with regard to Petiti

AEDPA's statute of limitations for the reasons

's second claim for relief

3. Notice

of law was violated because he was not given

Petitioner argues his right to due
adequate notice that he was to report

pending his revocation hearing. (ECF No.

1

at 10).

Petitioner raised this claim in his pro se

brief, and the Fourth Court of Appeals found the

appeal frivolous and denied relief. Peti

raised this claim in his state habeas action, asserting

"he was not given 'legal notice of the o

to report weekly for the dates of the 13th, 20th,

and 26th of October 2014 after he was

from jail a second time on the 'M.T.R.-Bond."

(ECF No. 15-51 at 56). The habeas trial

concluded: "Applicant pled true to violation of

condition no. 5, which alleged that

'

As with his other due process clai
procedurally defective. (ECF No. 15-51 at 6
the Texas Court of Criminal Appeals signif
Petitioner's claim procedurally defaulted.

failed to report to his supervision officer, at the

the habeas trial court apparently concluded the claim was
1-1owever, by denying relief, rather than dismiss his claims,
that it was denying relief on the merits rather than finding
20

hearing on his motion to revoke

supervision. ." (ECF No. 15-51 at 62). The Court of
.

Criminal Appeals denied relief on this
the following colloquy occurred:

At the hearing on the motion to

THE STATE: "In Bexar County,
and there fail to report to the supei
October 13th, 2014 in violation of
THE COURT: Is that true or not tr
THE DEFENDANT: It's true, Yol
THE COURT: Telling me alone th
that you violated the terms and ca
on that plea alone, I could if I war
sentence you to ten excuse me
that's ten. Did you know that?
THE DEFENDANT: Yes, Your H
THE COURT: Do you still wish t
THE DEFENDANT: Yes, Your H
THE COURT: Go ahead.
THE STATE: "In Bexar County
County, Texas, the Defendant, Lu
the supervision officer in person
violation of condition number five.
THE COURT: Is that true or not tt
THE DEFENDANT: I'm sorry?
THE COURT: Yes, ma'am.
THE COURT: True or not true? T1
THE DEFENDANT: I did go to c
THE DEFENSE: Just tell her that
THE DEFENDANT: Okay. It's tr
THE COURT: Okay. Are you sun
THE DEFENDANT: Yes, Your F
THE COURT: All right. Go ahea
THE STATE: "Violation of conc
Defendant, Luis Jaramillo, did thei
in person weekly for the week c
number five."
THE COURT: True or not true, si
THE DEFENDANT: True, Your]

exas, the Defendant, Luis Jaramillo, did then
ision officer in person weekly for the week of
)ndition number five."
, sir?
Honor.
it's true is enough for me to find that it's true
litions of your community supervision. Based
d to revoke your community supervision and
s, ten years in the prison. That's the underlying

me that it's true.

violation of condition number five, in Bexar
Jaramillo, did then and there fail to report to
ekly for the week of October 20th, 2014, in
sir?

is on October 20th of 2014.
it, Your Honor, but not weekly.
S

true.

want to tell me that it's true?
ion number five in Bexar County, Texas, the
md there fail to report to the supervision officer

October 27th, 2014 in violation of condition

21

Petitioner admitted he knew he was to report

(ECF No. 15-24 at 4-6) Furthermore, at th

but that he did not arrive at the time set for his

and be told the court he attempted to
appointment and a scene ensued. (ECF No

and and

So, he shows up at 8:30
wait. And, so, part of the

the fai
in effect, r
he became angry. He,
supervisor. There was none avails
could leave and come back at 1:00
come back at 1:00 o'clock that da:
business about him not being cont
told prior to
THE COURT: I he's got to do s
THE STATE: And, so, I give a
recommendation in this case becai

5-24 at 8). The State summarized these events:
s told that he can come back at 1:00 or he can
jar scenario with this Defendant arose where

a scene. He demanded to to speak to a
He was told that he could either wait or he
lock. He left. He didn't come and he didn't
Lnd that's one of the dates alleged. Now, this
d after about weekly reporting. Well, he was
le

they tell him to do, period.
of considerations to the probation office's
they're the ones that have to work with him.

(ECF No. 15-24 at 12).

that he violated the conditions of his probation by

Petitioner pleaded guilty to the
failing to timely report to his probation

that he could not be properly convicted

By pleading guilty Petitioner waived any claim

violating the terms of his probation because he

bond
purportedly did not have adequate notice c4 the requirement that he report weekly while on
pending his revocation hearing.

Kelley

636 F.2d 1082, 1083 (5th Cir. 1981) (holding

v.

a defendant who pleads guilty waives the

evidence, because the guilty plea itself
711 F.2d 677, 682 (5th Cir. 1983)

to challenge the sufficiency and reliability of the
as evidence against the defendant); Smith v.

Estelle,

sufficiency-of-the-evidence challenges are waived by
he knew of the reporting requirement, and he

a valid guilty plea). Because Petitioner

pleaded guilty to the charge of failing to reort as ordered, this claim must be denied on the merits.

22

Iv.
The Court next determines whethi o issue a certificate of appealability (COA). See Rule
11(a) of the Rules Governing

(2003) (citing 28 U.S.C.

§

§

2254 Pm edings; MillerEl v. Cockrell, 537 U.S. 322, 33 5-36
A may issue only if a petitioner makes "a substantial

2253(c)(l)). A

showing of the denial of a constitutional ii

t." 28 U.S.C.

§

2253(c)(2). If a district court rejects a

rits, the petitioner must demonstrate "that reasonable

petitioner's constitutional claims on the
jurists would find the district court's asseS

ent of the constitutional claims debatable or wrong."

McDaniel, 529 U.S. 473, 484 (20

). This requires a petitioner to show "that reasonable

Slack

v.

jurists could debate whether the petition

S

ould have been resolved in a different manner or that

encouragement to proceed further." MillerEl, 537

the issues presented were 'adequate to des

U.S. at 336 (citation omitted).
sponte without requiring further briefing or argument.

A district court may deny a COA s
See Alexander

v.

Johnson, 211 F.3d 895,

$

8 (5th Cir. 2000). For the reasons set forth above, the

Court concludes reasonable jurists wou1 not debate the conclusion that Mr. Jaramillo is not

entitled to federal habeas relief. As such,

will not issue.

VI.

's ineffective assistance of counsel claims was not an

The state court's denial of Petiti

federal law and Petitioner's due process claims are

unreasonable application of clearly est

barred by the applicable statute of limi
Accordingly, based on the fore

)1I

reasons,

23

IT IS HEREBY ORDERED
1.

and petitioner Luis Jaramillo' s Petition for Writ

Federal habeas corpus relief is

of Habeas Corpus pursuant to 28 U.S.C.
2. No Certificate

§

of Appealability

3. Motions pending,

petition (ECF No.

1)

is DENIED;

issue in this case; and
and this case is now CLOSED.

if any, are D

It is so ORDERED.

SIGNED this

day

2O),

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

24