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Cisneros v. Davis

United States District Court, W.D. Texas, Austin Division

May 11, 2017

RODOLFO MORALES CISNEROS
v.
LORIE DAVIS

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE UNITED STATES 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.

         Petitioner 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.

         STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         Respondent 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.

         Petitioner 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.

         On 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.

         As 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).

         B. Factual Background

         On 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 148.

         The 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.

         A 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.

         A 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.

         The 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.

         A.D.'s 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.

         Respondent 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.

         C. Petitioner's federal habeas claims

         Petitioner 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 opening statement;
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; and
7. he did not object to inadmissible victim impact evidence.

Document 1 at 6.

         In his 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.

         ANALYSIS

         A. The Antiterrorism and Effective Death Penalty Act of 1996

         The 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; or
(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.

         Section 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).

         Under 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 ...

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