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Romero v. Davis

United States District Court, S.D. Texas, Houston Division

September 14, 2017

FRELIN ARMANDO ROMERO, TDCJ #01920910, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.



         Frelin Armando Romero has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody ("Petition") (Docket Entry No. 1), seeking relief under 28 U.S.C. § 2254 from an aggravated robbery conviction in Montgomery County, Texas. The respondent has filed a Motion for Summary Judgment with Brief in Support ("Respondent's MSJ") (Docket Entry No. 14), along with a copy of the state court records (Docket Entry No. 15). Romero has not filed a response and his time to do so has expired. After considering the pleadings, the state court record, and the applicable law, the court will grant Respondent's MSJ and will dismiss this action for the reasons explained below.

         I. Background

         A Montgomery County grand jury returned a two-count indictment against Romero in cause number 12-10-10751-CR, charging him with aggravated robbery with a deadly weapon, a firearm.[1] The state subsequently enhanced the indictment for purposes of punishment with allegations that Romero had two prior felony convictions in federal court for illegal reentry into the United States following deportation.[2]

         At a jury trial in the 435th District Court for Montgomery County the state presented evidence that Romero and two other individuals robbed a jewelry store in Conroe that was owned by Mitchell Wilkins ("Mr. Wilkins").[3] Romero pointed a gun in Mr. Wilkins' face during the robbery and a struggle ensued.[4]Romero fired his weapon twice, missing Mr. Wilkins both times.[5]Romero then struck Mr. Wilkins multiple times in the face with the firearm, causing Mr. Wilkins to bleed profusely, [6] while Romero's associates held a gun on Mr. Wilkins' elderly mother, Shirley Wilkins, who was working at the jewelry store that day.[7] After dropping his gun during the struggle with Mr. Wilkins, Romero fled the jewelry store and was later found hiding in a nearby field.[8]Mr. Wilkins identified Romero in a photographic line-up and in open court as the man who injured him while robbing his jewelry store at gunpoint.[9] Romero's fingerprints were recovered from the firearm that he left behind at the scene.[10] DNA evidence confirmed that Mr. Wilkins' blood was on the clothing that Romero was wearing when he was arrested.[11] After hearing all of the evidence, the jury found Romero guilty as charged in both counts of the indictment.[12]

         During the punishment phase the state presented additional DNA evidence linking Romero to another aggravated robbery of a pawn shop, [13] which was captured on video surveillance.[14] After finding that the enhancement allegations were true, the jury sentenced Romero to 6 0 years' imprisonment on each count of the indictment, [15]which the trial court imposed to run concurrently.[16]

         On direct appeal Romero challenged the admissibility of the photographic line-up that was used to obtain his pretrial identification.[17] An intermediate court of appeals rejected this claim in an unpublished opinion, noting that Romero failed to properly preserve error with respect to that issue. Romero v. State, Nos. 09-14-00073-CR, 09-14-00074-CR, 2015 WL 184414, at *1 (Tex. App. - Beaumont Jan. 14, 2015, no pet.).

         Romero now seeks a federal writ of habeas corpus to challenge his aggravated robbery conviction under 28 U.S.C. § 2254. He raises the following claims for relief: (1) the trial court violated his right to due process during voir dire by excusing prospective juror #42 without a legitimate reason; (2) he was denied effective assistance of counsel at his trial; and (3) he was denied effective assistance of counsel on appeal.[18] These claims were raised previously on collateral review[19] where they were rejected by the Texas Court of Criminal Appeals on findings made by the state habeas corpus court.[20] The respondent moves for summary judgment, arguing that Romero is not entitled to relief because his claims are either procedurally barred or without merit under the governing federal habeas corpus standard of review.

         II. Standard of Review

         To the extent that the petitioner's claims were adjudicated on the merits in state court, his claims are subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254(d). Under the AEDPA a federal habeas corpus court may not grant relief unless the state court's adjudication "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 [.]" 28 U.S.C. § 2254(d)(1). Likewise, a court may not grant relief on a claim that presents a question of fact unless the petitioner shows that the state court's denial of relief "was based on an unreasonable determination of the facts in light of the evidence presented in the [s]tate court proceeding." 28 U.S.C. § 2254(d)(2).

         For purposes of review under § 2254(d)(1), "'[a] state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts.'" Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015) (citations omitted); see also Williams v. Taylor, 120 S.Ct. 1495, 1519-20 (2002) . To constitute an "unreasonable application of" clearly established federal law, a state court's holding "must be objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White v. Woodall, 134 S.Ct. 1697, 1702 (2014)). "To satisfy this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011)).

         The AEDPA "imposes a 'highly deferential standard for evaluating state-court rulings, ' . . . [which] 'demands that state-court decisions be given the benefit of the doubt.'" Renico v. Lett, 130 S.Ct. 1855, 1862 (2010) (citations omitted) . This standard is intentionally "difficult to meet" because it was meant to bar relitigation of claims already rejected in state proceedings and to preserve federal habeas review as "a 'guard against extreme malfunctions in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786 (quoting Jackson v. Virginia, 99 S.Ct. 2781, 2796, n.5 (1979) (Stevens, J., concurring)); see also White, 134 S.Ct. at 1702.

         A state court's factual determinations are also entitled to great deference on federal habeas corpus review. Findings of fact are "presumed to be correct" unless the petitioner rebuts those findings with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). This presumption of correctness extends not only to express factual findings, but also to the state court's implicit findings. See Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir. 2006) (citing Summers v. Dretke, 431 F.3d 861, 876 (5th Cir. 2005); Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004)). A federal habeas corpus court "may not characterize these state-court factual determinations as unreasonable 'merely because [it] would have reached a different conclusion in the first instance.'" Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015) (quoting Wood v. Allen, 130 S.Ct. 841, 849 (2010)). "Instead, § 2254(d)(2) requires that [a federal court] accord the state trial court substantial deference." Id.

         III. Discussion

         A. Error by the Trial Court During Voir Dire

         In his first ground for relief Romero contends that the trial court erred during voir dire by excusing prospective juror #42 for "employment reasons, " which is not a legitimate basis to excuse someone from jury duty.[21] Romero contends, therefore, that he was denied due process and a fair trial by a jury of his peers.[22]

         The state habeas corpus court rejected Romero's claim for procedural reasons because it was "based on the record" and could have been raised on direct appeal, but was not.[23] In doing so, the state habeas corpus court relied on Ex parte Richardson, which emphasizes the well-established rule that "'the Great Writ [of habeas corpus] should not be used' to litigate matters 'which should have been raised on appeal[.]'" 201 S.W.3d 712, 713-14 (Tex. Crim. App. 2006) (quoting Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004)).

         The respondent argues that Romero's due process claim is precluded by the doctrine of procedural default because the state habeas corpus court based its decision on a state procedural rule that is adequate to bar federal habeas corpus review.[24] See Scheanette v. Ouarterman, 482 F.3d 815, 827 (5th Cir. 2007) (recognizing that the Texas rule requiring a petitioner to present any claims based on the trial record on direct appeal, before raising them in a state habeas petition, "is an 'adequate state ground capable of barring federal habeas review'") (quoting Busby v. Dretke, 359 F.3d 708, 719 (5th Cir. 2004)); see also Moses v. Davis, 673 F.App'x 364, 367 (5th Cir. 2016) (per curiam) (same). Romero has not filed a response to Respondent's MSJ, and he has not attempted to dispute that this claim is procedurally barred.[25]Because the pleadings do not otherwise show that an exception applies, [26] the court concludes that Romero's claim concerning prospective juror #42 is barred from federal review.

         The respondent also argues, in the alternative, that Romero's claim lacks merit because it is factually incorrect and unsupported by the record.[27] The record reflects that defense counsel initially agreed with the state to excuse prospective juror #42, a division president for a home builder, because he was scheduled to fly to California for work.[28] After defense counsel withdrew consent to excuse the juror, prospective juror #42 was removed from the panel by the state with a peremptory strike.[29] Thus, prospective juror #42 was not excused by the trial court for reasons related to his employment, as Romero claims. Under these circumstances Romero has not shown that the trial court violated his right to due process during jury selection, and he is not entitled to relief on this issue.

         B. Ineffective Assistance of Counsel

         Romero claims that his trial attorney was constitutionally ineffective for several reasons, which the court has consolidated for analysis, because she failed to do the following: (1) properly object and preserve error when the trial court "sua sponte" excused prospective juror #42 for employment reasons; (2) request funds to hire independent experts on DNA evidence, fingerprint analysis, and ballistics to testify on his behalf; (3) conduct a thorough investigation of the case by visiting the scene of his arrest; (4) utilize a certified translator to discuss the case and prepare a defense; and (5) file a proper motion to request community supervision as an option at sentencing.[30] After considering a detailed affidavit from Romero's trial attorney, Heather Hall, the state habeas corpus court rejected all of Romero's ineffective- assistance claims, concluding that he "failed to show that his trial counsel's representation was constitutionally deficient."[31]

         As the state habeas corpus court correctly noted, claims for ineffective assistance of counsel are governed by the standard found in Strickland v. Washington, 104 S.Ct. 2052 (1984) . To prevail under the Strickland standard a defendant must demonstrate (1) that his counsel's performance was deficient and (2) that the deficient performance prejudiced the defense. Id. at 2064. "Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable." Id.

         "To satisfy the deficient performance prong, *the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Hoffman v. Cain, 752 F.3d 430, 440 (5th Cir. 2014) (quoting Strickland, 104 S.Ct. at 2064), cert. denied, 135 S.Ct. 1160 (2015). This is a "highly deferential" inquiry; "[t]here is 'a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Id. (quoting Strickland, 104 S.Ct. at 2065).

         To satisfy the prejudice prong "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A habeas petitioner must "affirmatively prove prejudice." Id. at 693. A petitioner cannot satisfy the second prong of Strickland with mere speculation and conjecture. See Bradford v. Whitley, 953 F.2d 1008, 1012 (5th Cir. 1992) . Conclusory allegations are insufficient to demonstrate either deficient performance or actual prejudice. See Day v. Ouarterman, 566 F.3d 527, 540-41 (5th Cir. 2009); see also Lincecum v. Collins, 958 F.2d 1271, 1279-80 (5th Cir. 1992) (stating that an ineffectiveness claim based on speculation or conclusional rhetoric will not warrant relief).

         Because the petitioner's ineffective-assistance claims were rejected by the state court, the issue is not whether this court "'believes the state court's determination' under the Strickland standard 'was incorrect but whether that determination was unreasonable - a substantially higher threshold.'" Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009) (quotation omitted). In addition, "because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Id. When applied in tandem with the highly deferential standard found in 28 U.S.C. § 2254(d), review of ineffective-assistance claims is "doubly deferential" on habeas corpus review. Id. at 1413; see also Richter, 131 S.Ct. at 788 (emphasizing that the standards created by Strickland and § 2254(d) are both "highly deferential, " and "'doubly' so" when applied in tandem) (citations and quotations omitted); Beatty v. Stephens, 759 F.3d 455, 463 (5th Cir. 2014) (same). None of Romero's allegations merit relief under this deferential standard.

         1. Failure to Object

         Romero contends that his defense counsel was deficient for failing to properly object and preserve error when the trial court "sua sponte" excused prospective juror #42 for "employment reasons."[32] The state habeas corpus court found that defense counsel did, in fact, object to the discretionary dismissal of prospective juror #42, who was ultimately struck pursuant to a peremptory challenge by the state.[33]

         This claim fails because Romero's underlying contention that the trial court erred by excusing prospective juror #42 lacks merit. Romero does not demonstrate that the trial court erred in any way or that his defense counsel had, but failed to make, a valid objection. Under these circumstances Romero has not shown that his defense counsel was deficient or that the state habeas corpus court's decision was unreasonable. See Clark v. Collins. 19 F.3d 959, 966 (5th Cir. 1994) ("Failure to raise meritless objections is not ineffective lawyering; it is the very opposite."). Therefore, Romero is not entitled to relief on this claim.

         2. Failure to Hire Experts

         Romero contends that his defense counsel was deficient for failing to request funds to hire independent experts on DNA evidence, fingerprint analysis, and ballistics to testify on his behalf at trial.[34] In response to these allegations Romero's defense counsel explained in her affidavit to the state habeas corpus court that she did not request additional DNA testing or funds to hire experts in these areas for strategic reasons.[35]Rather than pursue additional testing or retain independent experts, defense counsel elected to counter the state's DNA and fingerprint experts through cross-examination.[36] She specifically decided to pursue this strategy and not request additional DNA testing or hire a DNA expert because, after consulting with several experts, she learned that the test results obtained by the state were weak and that the evidence had been cross-contaminated.[37] She did not hire a ballistics expert because Romero used his firearm to strike, not shoot, the victim, making ballistics evidence irrelevant.[38] Defense counsel also did not want to put more focus on the firearm and its "potential effects."[39] The state habeas corpus court concluded that Hall's strategic decisions were "reasonable" and that Romero failed to show that "no competent attorney would have made the same choices."[40]

         Romero does not demonstrate that his counsel's failure to hire expert witnesses or present expert testimony at trial was deficient. "Claims of uncalled witnesses are disfavored, especially if the claim is unsupported by evidence indicating the witnesses's willingness to testify and the substance of the proposed testimony." Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010) (citing Harrison v. Ouarterman, 496 F.3d 419, 428 (5th Cir. 2007)) . A petitioner who alleges ineffective assistance of counsel based on the failure to call either a "lay or expert witness" must "name the witness, demonstrate that the witness was available to testify and would have done so, set out the content of the witness's proposed testimony, and show that the testimony would have been favorable to a particular defense." Day, 566 F.3d at 538 (citations omitted). Absent a showing that a particular witness would have offered testimony favorable to the defense, the petitioner's claim is speculative and conclusory, and does not demonstrate either deficient performance or resulting prejudice on his trial counsel's part. See Sayre v. Anderson, 238 F.3d 631, 636 (5th Cir. 2001) .

         Romero does not identify any particular witness that his defense counsel could have called or allege facts showing how their testimony would have helped his defense. Romero's conclusory allegations do not overcome the strong presumption that his defense counsel's chosen trial strategy was reasonable and do not establish deficient performance. See Strickland, 104 S.Ct. at 2065. Absent a showing of deficient performance and actual prejudice as the result of his defense counsel's strategic decisions, Romero fails to show that he was denied effective assistance of counsel or that the state court's decision to reject this claim was unreasonable. Accordingly, Romero is not entitled to relief on this claim.

         3. Failure to Conduct an Adequate Investigation

         Romero contends that his defense counsel was deficient for failing to conduct a thorough investigation of the case by visiting the scene of his arrest.[41] As a result, Romero claims that his defense counsel mischaracterized the area where he was taken into custody by police.[42] In response to this allegation, defense counsel explained that she personally visited the scene multiple times before the trial and knew the area well because it was near her office, the courthouse, and businesses that she frequented.[43]Crediting defense counsel's explanation, the state habeas corpus court found that defense counsel visited the crime scene multiple ...

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