United States District Court, W.D. Texas, San Antonio Division
FILIBERTO SIERRA, III, TDJC No. 1924410, Petitioner,,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
BIERY, UNITED STATES DISTRICT JUDGE
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
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.
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.
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).
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
Sierra, 2015 WL 3771711, at *1 (footnote omitted).
Standard of Review
Review of State Court Adjudications
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)).
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