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Martinez v. Director, TDCJ-CID

United States District Court, E.D. Texas, Sherman Division

September 1, 2017

JOHNNY RAY MARTINEZ
v.
DIRECTOR, TDCJ-CID

          ORDER OF DISMISSAL

          AMOS L. MAZZANT & 0 UNITED STATES DISTRICT JUDGE

         Petitioner Johnny Ray Martinez, a prisoner confined in the Texas prison system, proceeding pro se, filed the above-styled and numbered petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The cause of action was referred to United States Magistrate Judge Christine A. Nowak, who issued a Report and Recommendation concluding that the petition should be denied and that a certificate of appealability should not be issued. Petitioner has filed objections.

         Petitioner is challenging a conviction for sexual assault of a child. Petitioner contends his counsel was ineffective because he: (1) failed to seek out and interview potential witnesses; (2) failed to call character witnesses during the punishment phase; (3) failed to adequately advise him as to whether he should testify; (4) failed to prepare him to testify; (5) failed to request or receive notice of the prosecution's intention to introduce evidence of extraneous offenses or bad acts; (6) failed to object to testimony from the victim and (7) elicited testimony from petitioner that he had been in jail for two years prior to trial.

         Pursuant to 28 U.S.C. § 2254(d), a federal court may not grant relief on a claim adjudicated in state court proceedings unless the adjudication: (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 or (2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in state court. The Magistrate Judge analyzed each of petitioner's grounds for review and concluded that based on upon the applicable legal standard, they were without merit.

         First Ground for Review

         Petitioner was accused of having sexual relations with the victim in Denton County when she was less than 17 years of age. The victim and petitioner conceived a son when she was 16 years of age. As described by the intermediate appellate court, petitioner's defense at trial was based solely upon venue:

At trial, Appellant admitted he had sex with J.C. when he was forty-three years old and she was sixteen, but he insisted that sexual relations occurred only in Dallas County. He denied having intercourse with J.C. before she was sixteen. Around the time of Halloween 2005, their sexual liaisons were always at J.C. father's apartment [in Dallas County] or at a hotel in Dallas County, but never at [petitioner's home in Denton County].

Martinez v. State, 2013 WL 241816 at *2 (Tex.App.-El Paso 2008).

         In his first ground for review, petitioner asserted his trial strategy was always to prove the victim lied about a sexual relationship occurring in Denton County and that she had motive to lie because officials in Dallas County refused to pursue an indictment against him. Petitioner states he provided counsel with the names of three individuals would could have disproved much of what the victim told the police in her initial sworn statement and shown she had a motion to lie.

         To establish counsel provided ineffective assistance, a habeas petitioner must demonstrate: (1) counsel's performance fell below an objective standard of reasonableness and (2) counsel's performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish counsel's performance prejudiced the defense, a petitioner must demonstrate there is a reasonable probability the result of the proceeding would have been different if counsel had performed properly. Day v. Quarterman, 566 F.3d 527, 536 (2009).

         The Magistrate Judge concluded petitioner failed to demonstrate he suffered prejudice because counsel failed to interview the persons identified and call them to testify at trial. The Magistrate Judge observed that as petitioner admitted he had sex with the victim when she was 16 years of age, the only factual issue the jury was required to decide was whether they had sex in Denton County, which, under Texas law, the prosecution was only required to prove by a preponderance of the evidence. The Magistrate Judge found that while the testimony petitioner states would have been provided by the three individuals he identified could have called into question certain aspect of the victim's testimony and explained why she might have had a motive to testify falsely against petitioner, the testimony would not have contradicted her testimony that she and petitioner had sex in Denton County when she was 16 years old. As a result, the Magistrate Judge concluded there was not a reasonable probability petitioner would have been acquitted if the three individuals identified by petitioner had testified.

         In his objections, petitioner states his only defense was even though he conceded having sex with the victim when she was 16 years old, this did not occur in Denton County. He states it was counsel's job to show they did not have sex in Denton County, as asserted by the victim. He states the best way to do this was to demonstrate the victim's story was not consistent and that she was motivated to lie so that petitioner would not get custody of their children. Petitioner asserts his proposed witnesses could have explained why the victim had a motive to provide false testimony and shown that the victim's story was not consistent.

         The Magistrate Judge correctly points out that as petitioner admitted having sexual relations with the victim several times when she was 16 years old, the only issue for the jury to decide was whether the sexual relations occurred in Denton County or Dallas County. Moreover, Article 13.17 of the Texas Code of Criminal Procedure only required the prosecution to prove venue by a preponderance of the evidence rather than beyond a reasonable doubt.

         With this in mind, it cannot be concluded the determination by the state courts that petitioner did not suffer prejudice as a result of counsel's failure to seek out, interview and call witnesses was contrary to, or an unreasonable application of, clearly established federal law. As the Magistrate Judge points out, the victim provided clear testimony that she and petitioner had sex in Denton County several times when she was 16 years old. Petitioner provided conflicting testimony. Petitioner's proposed witnesses may have called certain aspects of the victim's testimony into question and demonstrated she had a motive to provide false testimony. As described by petitioner, however, their testimony would have had no relevance to the issue of where the victim and petitioner engaged in sexual relations. In light of the victim's clear testimony regarding venue and the reduced evidentiary burden applicable to this issue, there is not a reasonable probability petitioner would have been acquitted if his proposed witnesses had testified.

         Second Ground for Review

         No witnesses were called to testify on petitioner's behalf during the punishment phase of the proceedings. Petitioner states counsel told him he was not going to call character witnesses to testify in order to avoid opening the door to testimony regarding a charge of Engaging in Organized Criminal Activity. This charge was based on petitioner's activities while incarcerated in the Denton County Jail.[1] Counsel and the prosecutor agreed that this charge would not be brought up during the trial. Petitioner states their agreement did not extend to the punishment phase and that the prosecution presented evidence regarding the charge during the punishment phase. Petitioner states counsel should have requested a list of character witnesses, interviewed them, and called them to testify on his behalf.

         The Magistrate Judge concluded petitioner failed to demonstrate he suffered prejudice because witnesses were not called to testify on his behalf during the punishment phase. The Magistrate Judge acknowledged petitioner received the maximum sentence that could be imposed for his offense. However, she stated that in light of the testimony the jury heard concerning petitioner's offense and his prior felony convictions, there was not a reasonable probability petitioner would have received a significantly less harsh sentence if witnesses had testified on petitioner's behalf during the punishment phase.

         In his objections, petitioner states his prior convictions were not for sexual offenses and that they were committed more than 25 years prior to his trial. He states he had built a successful business and had clients, ...


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