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Urtado v. Stephens

United States District Court, Fifth Circuit

December 13, 2013

JOSEPH URTADO,
v.
WILLIAM STEPHENS, [1] Director, Texas Dept. of Criminal Justice-Correctional Institutions Division

THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ANDREW W. AUSTIN, Magistrate Judge.

The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective December 1, 2002.

Before the Court is Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1). Petitioner, proceeding pro se, has paid the applicable filing fee for this case. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed.

I. STATEMENT OF THE CASE

A. Petitioner's Criminal History

According to Petitioner, the Director has custody of him pursuant to a judgment and sentence of the 403rd Judicial District Court of Travis County, Texas. Petitioner was convicted of three counts of aggravated assault with a deadly weapon and was sentenced to two terms of imprisonment for 55 years and one term of imprisonment for 15 years. Petitioner's sentences were ordered to run concurrently. Petitioner's convictions were affirmed on February 16, 2011. Urtado v. State , 333 S.W.3d 418 (Tex. App.-Austin 2011, pet. ref'd.). Petitioner's petition for discretionary review was refused on September 14, 2011. Petitioner also challenged his convictions in two state applications for habeas corpus relief. Petitioner indicates he filed his first application on September 5, 2012. The Texas Court of Criminal Appeals denied the application on November 21, 2012. Ex parte Urtado, Appl. No. 78, 532-01. Petitioner indicates he filed his second application on November 20, 2012. The Texas Court of Criminal Appeals denied the second application on March 20, 2013. Ex parte Urtado, Appl. No. 78, 532-02.

B. Petitioner's Grounds for Relief Petitioner raises the following grounds for relief:

1. Trial counsel failed to disclose evidence to Petitioner that was material, namely a knife;
2. Trial counsel failed to introduce witnesses on behalf of Petitioner;
3. Trial counsel denied Petitioner the right to testify at trial;
4. Trial counsel failed to object to a re-indictment that was untimely and multiplicitous;
5. Trial counsel failed to object or move for a mistrial when the prosecutors commented on ...

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