United States District Court, W.D. Texas, Austin Division
THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE 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
States Magistrate Judges.
the Court are Petitioner's Application for Habeas Corpus
Relief under 28 U.S.C. § 2254 (Document 1);
Respondent's Answer (Document 9); and Petitioner's
response thereto (Document 11). Petitioner, proceeding pro
se, has been granted leave to proceed in forma pauperis. For
the reasons set forth below, the undersigned finds that
Petitioner's application for writ of habeas corpus should
OF THE CASE
Petitioner's Criminal History
to Respondent, the Director has lawful and valid custody of
Petitioner pursuant to several judgments and sentences out of
the 427th District Court of Travis County, Texas in cause
number D-1-DC-13-301688. Petitioner was indicted for six
counts of aggravated sexual assault of a child, three counts
of indecency with a child by exposure, and three counts of
indecency with a child by contact. He pleaded not guilty to
each offense and on August 22, 2014, a jury found him guilty
of two counts of aggravated sexual assault of a child and six
counts of indecency with a child. After the jury found him
guilty, the State waived three counts of the indecency with a
child by contact. The jury assessed punishment at 50
years' imprisonment for each aggravated sexual assault
offense, and 20 years for each indecency with a child by
contact offense. The trial court ordered the sentences to run
15, 2015, the Third Court of Appeals affirmed
Petitioner's conviction in an unpublished opinion.
Radilla-Esquivel v. State, No. 03-14-00544-CR, 2016
WL 4978565 (Tex. App. - Austin 2016, pet. ref'd). On
January 11, 2017, the Court of Criminal Appeals refused his
petition for discretionary review. Radilla-Esquivel v.
State, PDR No. 1165-16. The Supreme Court denied
Petitioner's petition for writ of certiorari on June 26,
2017. Radilla-Esquivel v. Texas, No. 16-9105, 137
S.Ct. 2310 (2017). Petitioner did not file a state
application for habeas corpus relief.
factual background of this case is found in the Court of
Appeals opinion and is repeated below:
The evidence shows that appellant lived with A.G. and her
family at an apartment in Austin for about two years in 2006
and 2007. A.G.'s father testified that his sister had
been married to appellant's brother and that he became
“good friends” with appellant and let him rent a
room in the apartment. He testified that he trusted appellant
at the time and sometimes asked him to babysit A.G. and her
siblings. A.G. was approximately six and seven years old
during that time frame.
In May 2013, A.G. made an outcry of sexual abuse to her
father's girlfriend. She stated that appellant “put
it in her” when he lived with her and her family
several years earlier. Based on A.G.'s outcry, her
father's girlfriend called the police, and A.G. was
interviewed by a detective and a forensic interviewer and
examined by a doctor. A.G. told the forensic interviewer that
appellant penetrated her sexual organ and anus on more than
one occasion. The detective interrogated appellant, who
ultimately made certain admissions about physical contact he
had with A.G. when he lived with her and her family.
Appellant was tried by a jury and convicted of two counts of
aggravated sexual assault of a child and six counts of
indecency with a child. After the State waived the three
counts of indecency with a child by exposure, the jury
assessed punishment on the remaining convictions.
Radilla-Esquivel v. State, No. 03-14-00544-CR, 2016
WL 4978565, at *1 (Tex. App. - Austin 2016, pet. ref'd).
Petitioner's Grounds for Relief
argues he was denied his Sixth Amendment right to counsel
when the trial court sustained the prosecutor's
objections to defense counsel's closing argument.
Respondent does not contest that Petitioner has exhausted his
state court remedies regarding the claims brought in this
application. A review of the state court records submitted by
Respondent shows that Petitioner raised this claim in his
direct appeal proceedings.
The Antiterrorism and Effective Death Penalty Act of
Supreme Court has summarized the basic principles that have
grown out of the Court's many cases interpreting the 1996
Antiterrorism and Effective Death Penalty Act. See
Harrington v. Richter, 562 U.S. 86, 97-100
(2011). The Court noted that the starting point for any
federal court in reviewing a state conviction is 28 U.S.C.
§ 2254, which states in part:
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;
(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 noted 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.
the issues Harrington resolved was “whether
§ 2254(d) applies when a state court's order is
unaccompanied by an opinion explaining the reasons relief has
been denied.” Id. Following all of the Courts
of Appeals' decisions on this question,
Harrington concluded that the deference due a state
court decision under § 2554(d) “does not require
that there be an opinion from the state court explaining the
state court's reasoning.” Id. (citations
omitted). The Court noted that it had previously concluded
that “a state court need not cite nor even be aware of
our cases under § 2254(d).” Id. (citing
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)).
When there is no explanation with a state court decision, the
habeas petitioner's burden is to show there was “no
reasonable basis for the state court to deny relief.”
Id. Even when a state court ...