United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
LANE UNITED STATES MAGISTRATE JUDGE.
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
is represented by counsel and has paid the full filing fee
for this case. Before the Court are Petitioner's
Application for Writ of Habeas Corpus under 28 U.S.C. §
2254 and memorandum in support of the application (Document
1), and Respondent's Answer (Document 9). For the reasons
set forth below, the undersigned finds that Petitioner's
Application for Writ of Habeas Corpus should be denied.
OF THE CASE
Petitioner's Criminal History
has custody of Petitioner pursuant to four separate, but
related, judgments of the 428th District Court of Hays
County, Texas. Each of four separate grand jury indictments
returned June 6, 2012, charged Petitioner with one count of
aggravated sexual assault of a person under 6-years of age.
Document 11, Exh. 20 at 4; Document 12, Exh. 2 at 4 &
Exh. 4 at 4 & Exh. 6 at 4. Petitioner was represented by
retained counsel at his trial. Document 11, Exh. 3 at 2 n.2.
Petitioner was found guilty by a jury on four counts of
aggravated sexual assault of a child younger than 6-years of
age, and a judge sentenced him to concurrent terms of 70
years imprisonment on each conviction. Document 11, Exh. 20
at 9; Document 12, Exh. 2 at 9 & Exh. 4 at 10 & Exh.
6 at 9.
appealed his convictions and sentences, asserting he was
denied the effective assistance of trial counsel. All four of
Petitioner's convictions were affirmed by the Texas Third
Court of Appeals. Cisneros v. State, No.
03-13-00206-CR, 2015 WL 1215625 (Tex. App.-Austin 2015, pet.
ref'd). Petitioner sought a rehearing, which was denied.
Document 11, Exh. 4 at 1. A petition for discretionary review
was refused without written order by the Texas Court of
Criminal Appeals on July 29, 2015. Document 10, Exh. 19 at 1.
January 12, 2016, Petitioner, through counsel, filed an
application for a state writ of habeas corpus. Document 11,
Exh. 20 at 30-37. In his state habeas corpus application
Petitioner asserted he was denied his right to the effective
assistance of trial counsel. Id. Petitioner's
lead trial counsel filed an affidavit in Petitioner's
state habeas action, explaining his trial strategy.
Id., Exh. 20 at 58-63. The state trial court issued
an order denying the application on February 9, 2016.
Id., Exh. 20 at 66. On March 1, 2016, Petitioner,
through counsel, filed a motion in the Texas Court of
Criminal Appeals captioned as a “Motion to Permit
Applicant to Present His Application to Another District
Court Or, Alternatively, For Remand For Further Proceedings
On Applicant's Unresolved Claims.” Id.,
Exh. 18 at 1-4. The motion states:
On February 17, 2016, counsel received notice from the
district clerk that the trial court had denied a hearing on
the writ application and order[ed] the clerk to transmit its
order and the record to this Court. The trial court's
order reflects that it was filed in the district clerk's
office at 4:27 p.m. on February 9, 2016. The order purported
to prohibit the issuance of the writ and deny the claims. On
February 17, 2016, counsel sent a proposed order withdrawing
the trial court's order. The trial court set the matter
for a hearing, which was held on February 25, 2016.
Ultimately, the trial court decided it lacked jurisdiction to
withdraw its order, but alluded generally to the desirability
of a hearing.
Id., Exh. 9 at 2.
noted by Petitioner,
The trial court did not conduct a hearing [prior to denying
relief] or make any findings of fact or conclusions of law.
The trial court entered no recommendation concerning the
application. The trial court purported to deny issuance of
the writ and deny the merits of the writ application as well.
After the record was forwarded to the Texas Court of Criminal
Appeals, that Court denied relief “without written
order” on May 4, 2016.
Document 1 at 3. See also Document 11, Exh. 19
(Texas Court of Criminal Appeals' order denying the
application for a writ of habeas corpus).
March 6, 2012, Petitioner's step-grandchild
(“A.D.”) reported to her grandmother that
Petitioner had sexually assaulted her. Document 10, Exh. 3 at
116; Exh. 4 at 74, 77-78, 103. The day after this
“outcry” occurred, the grandmother relayed the
information to A.D.'s mother. Id., Exh. 4 at
Texas Court of Appeals summarized the facts as follows:
The jury heard evidence that appellant perpetrated various
sexual acts against A.D. on multiple occasions, including
performing oral sex on her (“putting his tongue on her
private part” or “licking her hoo ha”),
penetrating her sexual organ with his finger (“touching
inside her private part with his finger”), penetrating
her sexual organ with his penis (“putting his private
part in her private part” or “putting his hoo ha
in her hoo ha”), and penetrating her anus with his
finger (“putting his finger in her bottom” or
“putting his finger in her tail”).
Cisneros, 2015 WL 1215625 at *4 n.1.
police report was filed on May 7, 2012. Document 10, Ex. 3 at
89; Exh. 4 at 149, and the child was taken to a sexual
assault nurse examiner. Id., Exh. 4 at 154. The
sexual assault exam showed no evidence of trauma to the
victim. Id., Exh. 4 at 50. The sexual assault nurse
examiner testified that it was not uncommon that no trauma
would be seen even if penetration had occurred. Id.,
Exh. 4 at 28. Petitioner voluntarily gave a DNA sample to the
police, id., Exh. 3 at 133, and Petitioner's DNA
was not found on A.D.'s body or clothing. Id.,
Exh. 4 at 26. The sexual assault nurse examiner testified
that A.D. had “[w]iped, showered, urinated, defecated,
had food or drink, brushed teeth or used mouthwash, and
changed clothes” prior to the collection of potential
DNA samples from A.D. Id.
forensic interview of A.D. was conducted at The Roxanne's
House on March 8, 2012. Id., Exh. 3 at 91, 94-98. On
March 14, 2012, Petitioner was interviewed by Detective
Eugene Carranza, in the presence of his attorney.
Id., Exh. 3 at 105-10. On April 20, 2012, after
interviewing the victim's grandmother, Gloria, Detective
Carranza sought a warrant to arrest Petitioner, which warrant
was issued the same day. Id., Exh. 3 at 118-21,
123-24. On April 26, 2012, Petitioner reported to the Hays
County Sheriff's Office. Id., Exh. 3 at.124-25.
victim testified at trial, as did her parents, her
grandmother, her counselor, the sexual assault forensic
examiner, the director of The Roxanne's House, a police
detective, and Detective Carranza.
grandmother, Gloria, testified that A.D. told her prior to
May 6, 2012, that Petitioner had abused her, and Gloria
further testified she did not report this information to
anyone. Document 10, Exh. 4 at 129-30. Gloria also testified
that she had seen Petitioner and A.D. together in a bathtub,
and that on several occasions she witnessed A.D. sitting on
Petitioner's lap under a blanket with Petitioner's
hands also under the blanket. Id., Exh. 4 at 121,
129, 134-36. At Petitioner's trial the victim at first
could not remember or denied that Petitioner had abused her,
but after a brief recess during which she spoke to her
counselor, she then testified that Petitioner had touched her
and penetrated her. Id., Exh. 5 at 48-49, 56-58,
59-60, 61-62, 65-67. Petitioner also testified, denying the
allegations against him and noting that, at the time the
accusations arose, he and Gloria had been discussing a
divorce. Id., Exh. 5 at 113-64.
allows that, other than the victim's “statements
and testimony, there was no objective, direct evidence
supporting the charges for which Petitioner was
charged.” Document 9 at 6.
Petitioner's federal habeas claims
argues that he is entitled to federal habeas relief because
he was denied his right to the effective assistance of
counsel. In his petition, Petitioner asserts his trial
counsel erred because:
1. he made no objection to the State's objectionable
2. he helped establish the investigating detective's
opinion of Petitioner's guilt;
3. he helped to establish the accuser was truthful;
4. he did not object to the state's witnesses'
opinion that the accuser was truthful;
5. he did not object to inadmissible hearsay;
6. he welcomed evidence of prejudicial extraneous bad acts;
7. he did not object to inadmissible victim impact evidence.
Document 1 at 6.
memorandum in support of his habeas petition, Petitioner
argues his trial counsel was ineffective because counsel:
1. introduced the issue of the investigating detective's
opinion of the defendant's guilt and his opinion
regarding the truthfulness of the child, and he also
introduced the opinion of the child advocacy director that
the child was truthful;
2. he failed to object to the evidence from the child's
parents that the child was truthful;
3. he introduced evidence of two extraneous bad acts
committed by Petitioner;
4. he did not object to the prosecution's introduction of
testimony that Petitioner smoked marijuana;
5. he did not object to the introduction of victim impact
evidence during the guilt/innocence phase of the trial.
The Antiterrorism and Effective Death Penalty Act of
Supreme Court summarized the basic principles established by
the Court's many cases interpreting the 1996
Antiterrorism and Effective Death Penalty Act in
Harrington v. Richter, 562 U.S. 86, 97-100 (2011).
The Supreme Court noted that the starting point for any
federal court reviewing a state conviction is 28 U.S.C.
§ 2254, which states:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings 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;
(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 Supreme Court stated that
“[b]y its terms § 2254(d) bars relitigation of any
claim ‘adjudicated on the merits' in state court,
subject only to the exceptions in §§ 2254(d)(1) and
(d)(2).” Harrington, 562 U.S. at 98.
2254(d) permits the granting of federal habeas relief in only
three circumstances: (1) when the state court's decision
“was contrary to” federal law as clearly
established by the holdings of the Supreme Court; (2) when
the state court's decision involved an
“unreasonable application” of such law; or (3)
when the decision “was based on an unreasonable
determination of the facts” in light of the record
before the state court. Id. at 100, citing
28 U.S.C. § 2254(d), and Williams v. Taylor,
529 U.S. 362, 412 (2000). The “contrary to”
requirement refers to the holdings, as opposed to the dicta,
of the Supreme Court's decisions at the time of the
relevant state court decision. Carey v. Musladin,
549 U.S. 70, 74 (2006); Dowthitt v. Johnson, 230
F.3d 733, 740 (5th Cir. 2000). Under the “contrary
to” clause, a federal habeas court may grant the writ
if the state court arrives at a conclusion opposite to that
reached by the Supreme Court on a question of law or if the
state court decides a case differently than the Supreme Court
on a set of materially indistinguishable facts. Thaler v.
Haynes, 559 U.S. 43, 47 (2010); Mitchell v.
Esparza, 540 U.S. 12');">540 U.S. 12, 10 (2003).
the unreasonable application clause of § 2254(d)(1), a
federal court may grant the writ “if the state court
identifies the correct governing legal principle from . . .
[the Supreme Court's] decisions but unreasonably applies
that principle to the facts of the prisoner's
case.” Dowthitt, 230 F.3d at 741 (quotation
and citation omitted). A state court's determination that
a claim lacks merit precludes federal habeas relief so long
as “fairminded jurists could disagree” on the
correctness of the state court's decision. Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004).
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short
of imposing a complete bar on federal-court relitigation of
claims already rejected in state proceedings. . It
preserves authority to issue the writ in cases where there is
no possibility fairminded jurists could disagree that the
state court's decision conflicts with this Court's
precedents. It goes no further. Section 2254(d) reflects the
view that habeas corpus is a “guard against extreme
malfunctions in the state criminal justice systems, ”
not a substitute for ordinary ...