United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
LEE YEAKEL, UNITED STATES DISTRICT 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 (Document 1) and Brief in Support of Petition for a Writ
of Habeas Corpus (Document 2), Respondent's Answer with
Brief in Support (Document 7), and Petitioner's Reply
(Document 8). For the reasons set forth below, the
undersigned recommends that Petitioner's Application for
Writ of Habeas Corpus be denied.
OF THE CASE
has custody of Petitioner pursuant to a judgment and sentence
imposed by the 167th District Court of Travis County, Texas.
A jury found Petitioner guilty of capital murder and the
trial court imposed the statutory sentence of life
imprisonment without parole. Petitioner contends he is
entitled to federal habeas relief because he was denied his
right to the effective assistance of trial counsel.
Texas Court of Appeals did not specify a statement of facts
in its decision denying Petitioner's appeal.
Gutierrez v State, 2013 WL 4822923 (Tex. App.-Austin
2013, pet. ref'd). The following facts are quoted from
the State's brief in Petitioner's state habeas
On May 31, 2010, Sergeant Scott Crowe received a call of
shots fired at 3:17 a.m. at a business known as the Pink
Monkey. (RR VII: 39). He arrived at the scene within 7
minutes of the call and found two victims on the ground. (RR
VII: 40). One victim, Arturo Rodriguez, was located south of
the business building, and another victim, Jose Hernandez,
was just to the right of the front door of the business
laying on the curbside. (RR VII: 40) ..... Jose appeared to
already be deceased. (RR VII: 43-44).
Crowe observed a shell casing and a projectile on the ground
next to this second victim. (RR VII: 44-45). To the right of
the entrance to the Pink Monkey, Crowe found shell casings
for a .380 caliber gun and 9 millimeter. (RR VII: 50). He
also found pieces of belt, belt buckle, and piece of leather
attached to the buckle. (RR VII: 50; SX6). Crowe found
another shell casing for a 9 millimeter in some pea gravel
near the victim south of the building. (RR VII: 51; SX8).
Witnesses reported to Crowe that the suspect had left the
scene in a vehicle. (RR VII: 51; SX8). . . . Crowe also
learned that the night manager for the club, Ryan Dorer, had
fired a gun at some point during the evening, but Crowe did
not locate that weapon. (RR VII: 67). Based on the number of
casings at the scene, Crowe determined that the .380 was
fired four times and the 9 millimeter was fired at least four
times. (RR VII: 71-72).
Dorer testified that after the club closed that night, a
security guard informed him that there was an altercation in
the parking lot. (RR VII: 85). In the parking lot, Dorer
encountered two groups of people, about 4 or 5 in each group,
bickering and calling each other names. . . .
Raul Hernandez, the brother of the two victims killed in this
shooting, testified that the fight began between two girls
arguing over a cell phone. (RR VIII: 102). One of the girls
accused the victim named Jose of stealing the cell phone,
which angered him. (RR VIII: 102). The other victim, Arturo,
had actually picked up the phone off the ground. As Arturo
was handing it over, one of the men with applicant snatched
the phone from Arturo's hand. (RR VIII: 102-103). A fight
broke out between the two groups. (RR VII: 104).
. . .The argument escalated into a fist fight between about 8
people; one person, who had driven the get-away car, took off
his “big cowboy belt” and swung it at and hit
Jose. (RR VII: 87-88). In Dorer's words, Jose was
“getting his butt kicked.” (RR VII: 88).
. . . Dorer went to the back of the property where a female
employee gave him what he thought was a “starter
pistol” and told him to shoot it to break up the fight.
(RR VII: 88-89). Dorer twice fired two shots into the air,
but the fighting continued. (RR VII: 89-90). Dorer gave the
gun back to the female employee and began screaming that the
cops were coming; the fighting stopped, and everyone
“started going their own way.” (RR VII: 90).
Dorer started walking toward the front door of the club and
toward Jose when he heard someone say “he has got a
gun.” (RR VII: 90-91). Dorer looked and saw applicant
(Dorer identified applicant in the courtroom) walking toward
him and Jose with a big silver gun in his hand. (RR VII: 91).
Dorer testified that applicant was coming out of a truck with
the “big gun” in his hand. (RR VII: 91).
Applicant's friends stood in front of him and tried to
stop him. (RR VII: 91-92). But, applicant pushed through his
friends, walked up to Jose and shot him. (RR VII: 92).
Dorer described the events immediately before applicant shot
Jose. Jose had his back turned as applicant approached. (RR
VII: 92). Jose turned around, saw the gun in applicant's
hand, and then tried to turn again but applicant shot him.
(RR VII: 92) Dorer was only 10 feet away. (RR VII: 92). Dorer
never saw a weapon in Jose's hands. (RR VII: 93).
The surveillance video from the Pink Monkey showing the
incident was admitted into evidence and played for the jury.
(RR VII: 95-96; SX13A). While watching the video, Dorer
explained that everybody ran for their cars after applicant
shot Jose. (RR VII: 100). Applicant ran back to the truck,
but the person with him that night did not want applicant to
get back into the truck. (RR VII: 101). Applicant then walked
from the truck with the gun in his hand and shot Arturo,
Jose's brother. (RR VII: 101-102). Applicant shot Arturo
a second time as Arturo was running away. (RR VII: 102).
Dorer never saw a weapon in either Jose's or Arturo's
hands. (RR VII: 104). Jose did not pose any threat to
applicant when he shot him; in fact, Jose was walking away.
(RR VII: 104). And, Arturo did not pose any threat of
physical harm to applicant when he shot Arturo. (RR VII:
104). Arturo was sitting in a car and then running away when
applicant twice shot him. (RR VII: 104). Dorer never aimed
his small pistol at applicant, and he never saw anyone
threaten applicant with any kind of weapon. (RR VII:
103-104). Dorer testified that applicant could have left the
scene before shooting the brothers, but he didn't. (RR
VII: 102-103). Asked to describe applicant's demeanor
during the incident, Dorer stated that applicant “was
totally calm. Like it was nothing. It was really
scary.” (RR VII: 104-105).
Nichole Teaney arrived at the Pink Monkey about 2:30 a.m. to
pick up her sister who was a waitress at the club. (RR VII:
163). She was talking to some men in the parking lot when she
saw two females fighting. (RR VII: 164). Teaney got out of
the car to record with her phone the females fighting, but
then some guys started fighting with fists and belts. (RR
VII; 166-167). The club manager fired into the air to stop
the fighting. (RR VII: 168). Teaney recalled applicant going
to his truck, getting his gun, and shooting Jose who was not
armed. (RR VII: 169-171). She also saw applicant shoot
Arturo, who was also unarmed, and then calmly walk away. (RR
VII: 171, 172-173) (Teaney testified that Arturo was still
wearing his belt when he was shot, so he was not one of the
men fighting with a belt.) (RR VII: 200).
Sergeant Craig Smith of the Travis County Sheriff's
Office was the lead detective in this case. (RR VII: 228).
Smith explained for the jury how investigations into a case
proceeded. (RR VII: 233). He explained that murder cases
start out as “deceased person” cases while each
lead is pursued, witnesses are investigated, and evidence is
collected. (RR VII: 233-234). The investigation includes
following any information or [indications] of self-defense.
(RR VII: 234). Smith interviewed applicant in his office
after applicant was pulled from the truck that fled the
scene. (RR VII: 231-232). Applicant had on a ripped shirt but
no significant injuries to his face or person. (RR VII:
232-233). The evidence collected in this case did not appear
to be self-defense. (RR VII: 234).
. . . The night of this capital murder, [Pedro] Solis arrived
at the club about 11 p.m. or midnight. (RR VII: 264). Solis
observed Jose in an altercation with applicant. (RR VII:
266-267). There were about 8 people involved in the fight,
four on four. Jose, Arturo, and two friends were on the same
side of the fight. (RR VII: 267). Solis testified that
Jose's and Arturo's friends started the fight with
applicant's friends, but applicant and his friends
“absolutely decimated” them. (RR VII: 268). Solis
tried to break up the fight, and he pulled two of
applicant's friends off Jose. (RR VII: 268). Jose then
swung at Solis, but Solis took him down and began to walk
away. (RR VII: 268).
At this point, the fighting was over, but Solis saw applicant
take a gun from the backseat of the truck. (RR VII: 268-270).
In fact, Jose  was walking back toward the club. (RR VII:
270). As applicant walked by Solis, applicant's gun
accidentally discharged, and a ricochet fragment hit Solis in
the leg. (RR VII: 270). Applicant acknowledged “my bad,
” and Solis was shocked by applicant's nonchalance
with just having struck him with a round. (RR VII: 270, 272).
Then applicant fired two shots at Jose who had his back to
applicant and was walking away. (RR VII: 272-273). Applicant
walked back toward his truck but he took a shot at Arturo as
Arturo went to get his car. (RR VII: 273). . .
Solis testified that applicant then trotted back to this
truck and drove away “like he just ordered a
pizza.” (RR VII: 274). He described it as “the
most cool, calm, collected situation [he had] ever
seen.” (RR VII: 274). Solis stated that he had friends
in the military with 18 years' experience doing special
operations and special forces who were not as calm as
applicant after shooting someone. (RR VII: 274). Solis
cautioned that he was not testifying that applicant's
shootings were premeditated, but, in his opinion, it
wasn't applicant's “first rodeo.” (RR
Solis never saw Jose or Arturo with a weapon. (RR VII: 275).
Neither Jose nor Arturo posed any physical threat to
applicant at the time of the shooting. (RR VII: 275). In
fact, Arturo was by the building, running away from the
situation when applicant shot him. (RR VII: 275; RR VIII:
Deputy John Lopez with the Travis County Sheriff's Office
responded to the shots fired call at the Pink Monkey. (RR
VIII: 141). While in route, Lopez received a description of
the suspect vehicle, a white F-250 pickup. (RR VIII: 142).
Lopez noticed a vehicle matching that descriptions and
pursued it. (RR VIII: 144). As Lopez began to pursue the
vehicle, it changed direction and began to increase its
speed. (RR VIII: 144). Lopez noticed the vehicle lost control
and swerve[d] on the road, a flash came out of the
driver's side, and it smelled like a gun had been fired.
(RR VIII: 145). Lopez thought someone had fired at him. (RR
The suspect vehicle eventually stopped, and Lopez ordered the
occupants to stick their hands out the windows. (RR VIII:
148). The driver and passenger both put their hands out
initially, but the passenger's hands kept going in and
out [of] the window. (RR VIII: 148). Once back up arrived,
Lopez was able to take the occupants of the vehicle into
custody. (RR VIII: 150). . . . The passenger was identified
as applicant. (RR VIII: 153). A black triangular gun case (SX
25) fell out of the vehicle as applicant exited it. (RR VIII:
151-152). Lopez was struck with how calm applicant appeared.
(RR VIII: 169).
Lopez then walked to the area where he had smelled the odor
of a fired weapon. (RR VIII: 154). Lopez found a shiny pistol
on the roadway. (RR VIII: 154). Lopez described the pistol as
a 9 mm Beretta . . .
The medical examiner testified as to the manner and cause of
death of both victims. Jose suffered three gunshot wounds to
his head, upper right arm, and his back. (RR VIII: 245). The
gunshot wound to his head was just below his right eye and
apparently travelled into his mouth. (RR VIII: 245, 247). The
gunshot wound to his upper arm went through his arm and
reentered his body on the right side of his back. (RR VIII:
247-248). The bullet travelled through Jose's right lung,
his aorta, left lung, and then exited the left side of his
chest. (RR VIII: 248). This gunshot severely damaged the
aorta and caused significant internal bleeding. (RR VIII:
247-248). . . . The medical examiner determined that the
cause of Jose's death was multiple gunshot wounds and the
manner of his death was a homicide. (RR VIII: 262-263).
Arturo came to the medical examiner from the hospital where
multiple life-saving procedures had been attempted. (RR VIII:
263). Arturo suffered one gunshot wound to his left thigh.
(RR VIII: 264). The gunshot travelled back to front, angling
[from] left to right. (RR VIII: 267). The gunshot entered
from the back of the thigh and severed both his femoral
artery and left femoral vein. (RR VIII: 264). . . . He died
of a gunshot wound to his thigh, and the manner of death was
homicide. (RR VIII: 269).
Document 6, Exh. 17 at 10-21.
Petitioner's state court proceedings
jury indictment returned August 11, 2010, charged Petitioner
with capital murder, alleging that he killed two people
during the same criminal transaction. Id., Exh. 11
at 5. Petitioner was represented by retained counsel in his
criminal proceedings. Document 5, Exh. 14 at 13. The State
noticed that it would not seek the death penalty.
Id., Exh. 6 at 6. The State offered Petitioner a
plea bargain of 60 years' imprisonment, which he
the witnesses testified that two or three shots were fired by
Mr. Dorer before Petitioner retrieved his gun from the truck.
Id., Exh. 11 at 56. Two witnesses related to the
victims testified that, just before the shooting of the two
men, “[w]e were going to try to leave at the end
because the cops were going to get there.”
Id., Exh. 11 at 57, 107. These witnesses testified
that, other than Mr. Dorer and Petitioner, no one was armed.
Id., Exh. 11 at 57, 105. The two witnesses who were
related to the victims testified that, just before he was
shot, “ [Jose] was about to square up again, like he
put his hands up, and I guess he seen the gun, and . . .that
is when he got shot.” Id., Exh. 11 at 58, 108
(Petitioner came toward them “but we couldn't see
the gun yet, so then he shot to the ground and then that is
when my brother is like he was like getting ready to fight
him again, but then when he saw he shot the ground, my
brother like turned around, and that is when he like he aimed
at him and he shot him.”). The victims' brother
testified, in response to the question: “And what was
Jose doing when the defendant raised the gun to shoot him,
” that “He was getting ready to put his hands up
to fight.” Id., Exh. 11 at 108. In response to
the question: “And once Jose saw the gun or once both
of you saw the gun, what did you do, ” this witness
answered “We were trying to run.” Id.
brother, and a female friend who witnessed the fight
preceding the shooting, testified at his trial. Id.,
Exh. 12 at 146-213. Petitioner's brother testified that
they were attacked outside the bar by several men.
Id., Exh. 12 at 80. The brother testified that,
after a lull in the fight, Petitioner assessed his
Q. So you testified that when he grabbed your face, that it
Q. He said what?
A. They got you.
Q. And what did he do after that? I don't want to know
what he said after that. What did he do after that?
A. He takes the gun and he cocks it twice, two full bullets
fall into the ground, and then he shoots one into the floor.
Q. Was anybody facing him? Was he - was anybody yelling at
him or telling him anything as he was doing that, screaming
or anything going on?
A. Yes. The other guys were - they were pretty close, maybe
like 10 feet, and they were still like - they had their hands
up and they were yelling cuss words like bitch, you ain't
going to do shit. It was just a whole bunch of people.
Q. Did your brother appear calm at that time?
Q. And were you calm?
A. No, sir.
Q. Was Iris calm?
A. I don't think so.
Q. And so what happens next?
A. So that is when she comes and she tries to pull them. They
are still yelling at him and like they keep on getting
closer. That is when he takes a step and he shoots the first
A. Well, it was really fast, but I saw who he was shooting
Q. Okay. Was that person that he shot one of the persons that
was involved in the fight?
A. Yes, sir, it was the main guy that started everything.
Q. Did somebody flick a cigarette in his face?
A. Yes, sir.
Q. Do you know who it was that flicked the cigarette in his
Q. Who was the one that flicked the cigarette in his face?
A. It was some guy wearing a black shirt.
Q. Do you know if it was the same guy that got shot first or
A. No, sir.
Id., Exh. 12 at 187-88, 190. Petitioner's
brother reiterated that Petitioner had first fired a
“warning shot into the ground.” Id.,
Exh. 12 at 193. The defense also called two female cousins of
Petitioner, who testified that Petitioner was not the
instigator of the melee and that they left the scene before
the victims were shot. Id., Exh. 12 at 67, 147. The
defense also called a forensic expert to testify regarding
the trajectory of the bullet which killed the second victim.
Id., Exh. 12 at 218-63.
presenting its case and after some testimony had been
introduced by the defense, the State:
essentially [conceded] the first aggressor issue in the sense
that we don't want to present any evidence on it and we
are not going to argue against it. We are not going to claim
that either of the . . . victims was not the ...