United States District Court, E.D. Texas, Sherman Division
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RICHARD A. SCHELL, UNITED STATES DISTRICT JUDGE
Ernest Lucky Perez, a prisoner confined at the Hughes Unit of
the Texas Department of Criminal Justice, Correctional
Institutions Division, brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Court referred this matter to the Honorable Kimberly C.
Priest Johnson, United States Magistrate Judge, for
consideration pursuant to applicable laws and orders of this
Court. The magistrate judge has submitted a report
recommending denial of the petition.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record, pleadings, and all available evidence. The
petitioner filed objections to the Report and Recommendation.
Court has conducted a de novo review of the
objections in relation to the pleadings and the applicable
law. See Fed. R. Civ. P. 72(b). After careful
consideration, the Court concludes the objections are without
the petitioner contends there is no basis in Texas law for
the state court to have concluded that the testimony of
Esther Echavery, Brittany Rhinebarger, Natalie Kreitels, Paul
Oliveira, and Elizabeth Oliveira was admissible. Therefore,
the petitioner contends the magistrate judge should not have
relied on the trial court's findings that the testimony
was admissible. The petitioner asserts that the testimony of
Detective Chris Burns was clearly inadmissible. Regardless of
whether the testimony was admissible under state law, the
petitioner has not demonstrated that he was prejudiced by the
testimony. The state court found that the evidence would have
resulted in a conviction absent the allegedly objectionable
testimony. Because the state court's findings are not an
unreasonable application of Strickland, the
petitioner has not met his burden of showing he is entitled
to relief on these grounds.
petitioner contends that the testimony of Detective Chris
Burns and Dr. Arnold Mech that bolstered the victim's
credibility was inadmissible. The state court agreed that
some of the testimony of Detective Burns was inadmissible.
However, the state court concluded that counsel's failure
to object furthered his strategy of using the testimony to
undermine the credibility of other witnesses. The state court
also found that counsel's failure to object to the
testimony did not change the outcome of the trial. The state
court's findings of fact were a reasonable determination
of the facts in light of the evidence presented in the state
court. Further, the state court's adjudication was not
contrary to, and did not involve an unreasonable application
of, clearly established federal law.
petitioner argues that counsel should have objected to the
expert testimony of Jennifer Edwards regarding sex offenders.
Although the petitioner acknowledges this type of testimony
is generally admissible, he contends the magistrate judge
erroneously accepted the state court's findings that
specific statements made by Ms. Edwards were admissible. The
petitioner also contends counsel failed to adequately
cross-examine Ms. Edwards, and that she testified falsely.
During the state habeas proceedings, the trial court held an
evidentiary hearing and made extensive findings of fact and
conclusions of law with respect to these issues. The trial
court found that the testimony of Ms. Edwards was not false.
In addition, the trial court found that the complained-of
statements were admissible under state law, a finding that is
not reviewable in a federal habeas proceeding. The trial
court found that trial counsel's cross-examination of Ms.
Edwards was not deficient. Finally, the trial court concluded
that the petitioner was not prejudiced by the testimony or
cross-examination of the expert witness. The petitioner did
not rebut the state court's findings of fact by clear and
convincing evidence, and the state court's findings were
not an unreasonable application of Strickland.
petitioner contends trial counsel should have called an
expert to testify at trial to refute the state's expert.
As an example of the kind of expert testimony the petitioner
alleges his trial counsel should have presented, the
petitioner called Al Merchant to testify at the evidentiary
hearing in state court. After reviewing the record and making
extensive findings of fact, the trial court found that the
testimony of an expert like Al Merchant would not have
benefitted the petitioner. The petitioner did not rebut the
state court's factual determinations by clear and
convincing evidence, and he did not show that the state
court's adjudication was contrary to, or involved an
unreasonable application of, clearly established federal law.
case, the petitioner is not entitled to the issuance of a
certificate of appealability. An appeal from a judgment
denying federal habeas corpus relief may not proceed unless a
judge issues a certificate of appealability. See 28
U.S.C. § 2253; Fed. R. App. P. 22(b). The standard for
granting a certificate of appealability, like that for
granting a certificate of probable cause to appeal under
prior law, requires the petitioner to make a substantial
showing of the denial of a federal constitutional right.
See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000);
Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir.
2004); see also Barefoot v. Estelle, 463 U.S. 880,
893 (1982). In making that substantial showing, the
petitioner need not establish that he should prevail on the
merits. Rather, he must demonstrate that the issues are
subject to debate among jurists of reason, that a court could
resolve the issues in a different manner, or that the
questions presented are worthy of encouragement to proceed
further. See Slack, 529 U.S. at 483-84; Avila v.
Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the
petition was denied on procedural grounds, the petitioner
must show that jurists of reason would find it debatable: (1)
whether the petition raises a valid claim of the denial of a
constitutional right, and (2) whether the district court was
correct in its procedural ruling. Slack, 529 U.S. at
484; Elizalde, 362 F.3d at 328. Any doubt regarding
whether to grant a certificate of appealability is resolved
in favor of the petitioner, and the severity of the penalty
may be considered in making this determination. See
Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
petitioner has not shown that any of the issues raised by his
claims are subject to debate among jurists of reason. The
factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to
his position. In addition, the questions presented are not
worthy of encouragement to proceed further. The petitioner
has failed to make a sufficient showing to merit the issuance
of a certificate of appealability.
the petitioner's objections are OVERRULED. The findings
of fact and conclusions of law of the magistrate judge are
correct, and the report of the magistrate judge is ADOPTED. A
final judgment will be entered in this case in accordance
with the ...