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Marquez v. Davis

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

June 13, 2017




         Petitioner is pro se in this matter 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 his memorandum in support of his application (Docket Entry “DE” 1), Respondent's Answer (DE 7), and Petitioner's Reply (DE 11). For the reasons set forth below, Petitioner's Application for Writ of Habeas Corpus is denied.


         Respondent has custody of Petitioner pursuant to a conviction entered by the 22nd District Court of Hays County, Texas. Petitioner was found guilty of three counts of aggravated sexual assault of a child, and sentenced to concurrent terms of fifty years' imprisonment. Petitioner asserts he is entitled to federal habeas relief because he was denied his right to the effective assistance of counsel.


         A. Factual Background

         The following facts are taken from the Texas Court of Appeals' decision denying Petitioner's appeal:

Appellant's stepdaughter, “Anna, ” told her mother in 2008 that appellant had put his fingers in her vagina two years earlier. Anna testified at trial that he assaulted her seven or eight times on different days. Anna's mother, “Mary” testified that she called appellant to confront him and that he responded by saying “he knew eventually that I was going to find out and that everything she said he did, he did and not to worry about the police or anybody else because he was going to kill himself for what he had done.” Mary testified that appellant then drove out to a lake and attempted to kill himself by slitting his throat. His medical records include reports that he told doctors that he had touched his stepdaughter inappropriately and that he was remorseful.
At trial, appellant denied committing the offenses. He admitted to having been suicidal but attributed that to his belief that his marriage was ending. He also described an incident on a camping trip when Anna asked if he would massage her feet, which was something he had done before. He said that, as he was massaging her feet, he noticed that she put her hand on her private parts over her clothes. He testified that he stopped the massage immediately and told her to go to bed. Thereafter, he said, he did not feel comfortable around Anna. He felt awkward and did not trust her. He testified that, when Mary called him two weeks later, Anna's accusations made him want to die. He did not recall telling hospital personnel that he had touched his stepdaughter inappropriately, but said he might have simply agreed that he committed the offenses because he was confused and medicated because of what he described as false accusations and his failing marriage. He also indicated that Mary had threatened that the only way to save their marriage was to seek counseling for the alleged sex offenses.
Appellant testified that he continued to live with Mary and her daughters periodically after the allegations were made. He said that he filed for divorce in 2010, and only then did Mary obtain a protective order against him. He testified that the divorce proceedings were contentious and that Mary told him that she would leave him penniless and that he would have a hard time explaining why he checked himself into the hospital.

Marquez v. State, No. 03-13-00386-CR, 2014 WL 4414820, at *1-*2 (Tex. App.-Austin 2014, pet. ref'd).

         B. Petitioner's Criminal Proceedings

         A grand jury indictment returned October 3, 2012, charged Petitioner with three counts of aggravated sexual abuse of a child younger than 14 years of age, alleging these assaults occurred in October, November, and December of 2006. (DE 6-24 at 4).[1] Prior to trial, Petitioner's counsel filed a motion to suppress and a motion in limine with regard to evidence of Petitioner's suicide attempt upon learning of the outcry, and his ensuing in-patient psychiatric treatment at a VA hospital. (DE 6-8 at 6-9, 12-78; DE 6-15 at 18-19). Petitioner's counsel argued Petitioner's VA hospital records were comprised of hearsay and raised issues regarding Petitioner's right to confront witnesses against him. (DE 6-8 at 6-7, 12-78).[2] Defense counsel also objected to the form of the business record affidavit authenticating the medical records, which objection was overruled. (DE 6-8 at 74-77). The trial court ultimately concluded that the records were admissible as authenticated, but that defense counsel could raise other objections to the admission of discreet portions of the records, (DE 6-8 at 74-76, 77), and ruled that portions of the medical records were inadmissible. (DE 6-8 at 31, 36, 40, 41, 42, 44, 46).

         Defense counsel also moved to exclude testimony by Mr. Steege, a clinical social worker, based on attorney-client privilege. (DE 6-8 at 55-56, 68). Mr. Steege had interviewed Petitioner twice, once as a private client and once at the behest of Petitioner's counsel. (DE 6-8 at 68-69). The trial court ruled that Mr. Steege's testimony regarding the first meeting was admissible, and excluded his testimony as to the second meeting, finding this testimony barred by the doctrine of attorney-client privilege. (DE 6-8 at 70, 72).

         Petitioner was represented by retained counsel at his trial, (DE 6-5 at 11), and testified during the guilt phase of his trial. (DE 6-10 at 67-123). After deliberating for less than an hour, (DE 6-10 at 166; DE 6-11 at 7-8; DE 6-24 at 11), the jury found Petitioner guilty on all three counts alleged in the indictment. (DE 6-24 at 11-13). The jury was instructed to assess punishment at not less than 5 years, or more than 99 years or life imprisonment. (DE 6-24 at 14). The jury assessed punishment at a term of 50 years' imprisonment and a fine of $10, 000 on each count of conviction, (DE 6-24 at 17-22), and the trial court ordered that the terms of confinement be served concurrently. (DE 6-24 at 24-31).

         Petitioner, through counsel, moved for a new trial. (DE 6-24 at 32-33). Petitioner alleged the trial court had improperly admitted evidence and erroneously denied Petitioner's request for a continuance to review evidence, and that the verdict was contrary to the law and the evidence. (DE 6-24 at 32-33). Because no order denying the motion appears in the record, it is presumed the motion was denied by application of law.

         Petitioner, through appointed counsel, (DE 6-15 at 76), appealed his conviction and sentence, asserting that the trial court erred by allowing the State to bolster the victim's credibility through her mother's testimony before the victim's credibility was attacked. Marquez v. State, No. 03-13-00386-CR, 2014 WL 4414820, at *1-*2 (Tex. App.-Austin 2014, pet. ref'd). The Texas Court of Appeals denied relief and the Texas Court of Criminal Appeals denied a petition for discretionary review. Id.

         Petitioner filed an application for state habeas relief, asserting he was denied his right to the effective assistance of trial and appellate counsel. (DE 6-24 at 45-90). Petitioner's appellate counsel filed an affidavit in his state habeas action, refuting Petitioner's claims that counsel's performance was deficient. (DE 6-24 at 113-19). The state trial court issued an order denying the state writ on March 3, 2016. (DE 6-24 at 120). The Texas Court of Criminal Appeals denied relief without written order. (DE 6-23).

         C.Petitioner's Federal Habeas Claims

         Petitioner raises seven claims that his trial and appellate counsels' performance was unconstitutionally deficient. (DE 1 & 1-1). Petitioner asks this Court to vacate his convictions and enter a judgment of acquittal. (DE 1).

         Respondent allows that the petition is timely and that Petitioner properly exhausted his federal habeas claims in the state courts. (DE 7 at 4).


         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 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).

         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 legitimacy of the state court's decision. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). To be entitled to relief, the petitioner “‘must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'” Bobby v. Dixon, 565 U.S. 23, 24 (2011), quoting Harrington, 562 U.S. at 103.

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 error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment).

Harrington, 562 U.S. at 102-03 (some internal citations omitted). The Supreme Court, “time and again, has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.” Grim v. Fisher, 816 F.3d 296, 304 (5th Cir.) (internal quotations omitted), cert. denied, 137 S.Ct. 211 (2016).

         Ineffective assistance of counsel claims present mixed questions of law and fact. Williams, 529 U.S. at 419. Section 2254(e)(1) requires a federal court to presume state court factual determinations to be correct, although a petitioner can rebut the presumption by clear and convincing evidence. Miller-El v. Dretke, 545 U.S. 231, 240 (2005). This presumption extends not only to express findings of fact, but also to implicit findings of fact by the state court. Register v. Thaler, 681 F.3d 623, 629 (5th Cir. 2012). The Supreme Court has “explicitly left open the question whether § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2).” Wood v. Allen, 558 U.S. 290, 300 (2010). However, the Fifth Circuit Court of Appeals has held that, while section 2254(e)(1)'s clear and convincing standard governs a state court's resolution of “particular factual issues, ” the unreasonable determination standard of section 2254(d)(2) governs “the state court's decision as a whole.” Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011). See also Hoffman v. Cain, 752 F.3d 430, 441-42 (5th Cir. 2014) (“it is possible that, while the state court erred with respect to one factual finding under § 2254(e)(1), its determination of facts resulting in its decision in the case was reasonable under § 2254(d)(2).” (internal quotations omitted)), cert. denied, 135 S.Ct. 1160 (2015).

         This standard of review applies to Petitioner's federal habeas claims notwithstanding the fact that the Texas Court of Criminal Appeals' decision denying relief in Petitioner's state habeas action was unexplained. Although the state court did not make explicit findings, that does not mean the court “merely arrived at a legal conclusion” unworthy of the presumption of correctness. Cantu v. Collins, 967 F.2d 1006, 1015 (5th Cir. 1992), citing Marshall v. Lonberger, 459 U.S. 422, 433-34 (1983). If a state court summarily denies a petitioner's claims, the Court's authority under AEDPA is still limited to determining the reasonableness of the ultimate decision. Charles v. Thaler, 629 F.3d 494, 498-99 (5th Cir. 2011); Catalan v. Cockrell, 315 F.3d 491, 493 (5th Cir. 2002). When state habeas relief is denied without an opinion, the Court must assume that the state court applied the proper “clearly established Federal law, ” and then determine whether the state court decision was “contrary to” or “an objectively unreasonable application of” that law. Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).

         B. The Strickland Standard Governing Ineffective ...

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