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Sierra v. Davis

United States District Court, W.D. Texas, San Antonio Division

December 27, 2017

FILIBERTO SIERRA, III, TDJC No. 1924410, Petitioner,,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          FRED BIERY, UNITED STATES DISTRICT JUDGE

         Filiberto Sierra, III, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ-CID”), has filed an application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his convictions for aggravated sexual assault and assault on a family member. As required by Rule 4 of the Rules Governing Section 2254 Cases, the Court conducted a preliminary review of the petition. Having considered the habeas application (Docket Entry “DE” 1), Respondent's Answer (DE 9), the record (DE 10), and applicable law, the Court finds the petition should be DENIED.

         I. Procedural Background

         Filiberto Sierra, III was charged by indictment with aggravated sexual assault and assault of a family member, with an enhancement paragraph alleging a prior conviction for deadly conduct with a firearm. A jury found Mr. Sierra guilty, and after he pleaded “true” to the enhancement paragraph, the jury sentenced him to fifteen years' imprisonment for aggravated sexual assault and five years' imprisonment for assault of a family member.

         Mr. Sierra appealed and the Fourth Court of Appeals affirmed the judgment of the trial court. Sierra v. State, No. 04-14-00279-CR, 2015 WL 3771711, *4 (Tex. App.-San Antonio 2015, pet. ref'd). Mr. Sierra then filed a petition for discretionary review (PDR) with the Texas Court of Criminal Appeals (“TCCA”), which was refused. Sierra v. State, No. PD-0811-15 (Tex. Crim. App. 2015). On November 15, 2016, Mr. Sierra filed an application for a state writ of habeas corpus, which was denied without written order based on the findings of the trial court. (DE 10-19). Mr. Sierra then filed the instant federal petition.

         In this section 2254 action, petitioner Sierra alleges: (1) he was denied the effective assistance of trial counsel because his attorney told the jury during opening statements he was not prepared; (2) the prosecution committed error by commenting on Mr. Sierra's failure to testify; (3) the trial court committed error by excluding evidence; and (4) he is actually innocent. (DE 1). Respondent contends petitioner's first two claims lack merit and his last two claims are procedurally barred. (DE 9 at 4).

         II. Factual Background

         The factual background was summarized as follows by the Fourth Court of Appeals:

At the time of the alleged assault, A.S. was Sierra's wife, but they were no longer living together. On June 30, 2011, A.S. notified San Antonio police officers of an assault by Sierra. A.S. reported that the previous evening, June 29, 2011, Sierra forced his way into her home, verbally and physically assaulted her, threatened her with a knife, and then engaged in non-consensual intercourse with her several times throughout the night. A.S. was able to escape the residence after the siren from a smoke detector alerted and she ran next door to the neighbor's house. Sierra was charged with aggravated sexual assault and felony assault bodily injury.

Sierra, 2015 WL 3771711, at *1 (footnote omitted).

         III. Standard of Review

         A. Review of State Court Adjudications

         Mr. Sierra's federal petition is governed by the heightened standard of review provided by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. § 2254. Under § 2254(d), a petitioner may not obtain federal habeas corpus relief on any claim that was adjudicated on the merits in state court proceedings, unless the adjudication of that claim either: (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 based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Brown v. Payton, 544 U.S. 133, 141 (2005). This intentionally difficult standard stops just short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Harrington v. Richter, 562 U.S. 86, 102 (2011) (citing Felker v. Turpin, 518 U.S. 651, 664 (1996)).

         A federal habeas court's inquiry into unreasonableness should always be objective rather than subjective, with a focus on whether the state court's application of clearly established federal law was “objectively unreasonable” and not whether it was incorrect or erroneous. McDaniel v. Brown, 558 U.S. 120, 132-33 (2010); Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). Even a strong case for relief does not mean the state court's contrary conclusion was unreasonable, regardless of whether the federal habeas court would have reached a different conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show the state court's decision was objectively unreasonable, a “substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003). As long as “fairminded jurists could disagree” on the correctness of the state court's decision, a state court's determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In other words, to obtain federal habeas relief on a claim previously ...


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