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Villanueva v. Davis

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

January 16, 2018

ROBERT VILLANUEVA, TDCJ # 1662449, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.


          George C. Hanks Jr. United States District Judge

         Petitioner Robert Villanueva filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (Dkt. 1) (“Petition”) claiming that he is actually innocent of the murder for which he was convicted. Villanueva is confined in the Texas Department of Criminal Justice-Correctional Institutions Division (“TDCJ”). Respondent filed a Motion for Summary Judgment (Dkt. 10) arguing that the Petition is time-barred, along with the relevant state court records (Dkt. 11, 12, & 13). Villanueva responded to the Motion (Dkt. 15 & 16) and also has filed numerous requests to supplement his Petition (Dkt. 3, 14, 17, 18 & 19). After reviewing all of the parties' filings, the record, and the applicable law, the Court concludes that Respondent's motion should be granted and that the Petition should be dismissed as time-barred.

         I. BACKGROUND

         In 2010, the State tried Petitioner Robert Villanueva for murder in connection with the October 5, 2007, death of Albert Lacy. He was tried before Judge Wayne Mallia in the 405th District Court for Galveston County, Texas, Case No. 08-CR-3051. Winston E. Cochran, Jr. represented Villanueva at trial. Villanueva was tried alone but the prosecution argued that he had acted with multiple people, including Marcus Shuff.[1] Villanueva's jury was instructed on the law of parties, which provides as follows:

A person is criminally responsible for an offense committed by the conduct of another if . . . acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

Tex. Penal Code § 7.02(a)(2).

         Before trial, on October 7, 2008, Villanueva had made a video confession. Cochran moved to suppress the confession but the court denied the motion, determining that Villanueva “freely, knowingly and voluntarily waived his constitutional rights and gave a voluntary statement” to law enforcement. See Clerk's Record (Dkt. 11-4) at pp. 168-69.[2] The jury found Villanueva guilty of murder, and sentenced him on September 10, 2010, to fifty years confinement in TDCJ. The court entered judgment and sentence (Dkt. 11-1).

         Villanueva filed an appeal to the Court of Appeals for the 14th District of Texas in Houston, Cause No. 14-10-01004-CR. Thomas Allan Martin represented him on direct appeal. The Court of Appeals affirmed his conviction on January 24, 2012. Villanueva v. State, No. 14-10-01004-CR, 2012 WL 195524 (Tex. App.-Hou. [14th Dist.] 2012, no pet.).

         On January 26, 2014, proceeding pro se, Villanueva filed a state habeas writ claiming that Cochran rendered ineffective assistance as his trial counsel. See State Court Record, WR-81, 669-01 (Dkt. 13-1 through Dkt. 13-9). Cochran filed an affidavit in response to the claim. On June 26, 2014, Judge Michelle Slaughter of the 405th District Court entered Findings of Fact and Conclusions of Law recommending denial of habeas relief. Id. (Dkt. 13-9) at pp. 70-71. The Texas Court of Criminal Appeals denied the application without written order on July 30, 2014 (Dkt. 13-5).

         On December 17, 2015, Villanueva filed a “Request for Leave to File his Petition for Writ of Mandamus, ” complaining that Judge Slaughter had not ruled on a motion for DNA testing he had filed on November 12, 2015. See State Court Record, WR-81, 669-02 (Dkt. 13-10 & 13-11). Judge Slaughter appointed attorney Mark Stevens to make a recommendation regarding DNA testing. On January 13, 2016, the Texas Court of Criminal Appeals denied his request for leave to file the petition (Dkt. 13-10).

         On August 9, 2016, Villanueva filed a second state habeas petition asserting that newly discovered evidence justified relief. See State Court Record, WR-81, 669-03 (Dkt. 13-12 through Dkt. 13-17). To overcome the bar on subsequent writs, [3] Villanueva claimed that several pieces of evidence were newly discovered, including a 2009 video confession from Shuff. He also relied on a 2015 letter purportedly from attorney Holly Cooper-Roell concerning unfairness at Villaneuva's trial. See Appendix B to Petition (“Cooper-Roell Letter”).[4] Finally, Villanueva claimed to have new DNA evidence from the hair recovered from Lacy's hand because, on July 2, 2016, the Galveston district attorney sent him a letter stating that the DNA mixture from his case had potential limitations. See Appendix E to Petition (“2016 DA Letter”).[5] Previously, no DNA profile had been obtained from the hair recovered from Lacy's hand, as evidenced by a 2011 letter from the Department of Public Safety (“DPS”). See Appendix D to Petition (“2011 DPS Letter”). On September 20, 2016, Judge Slaughter signed Findings of Fact and Conclusions of Law recommending denial of relief because Villanueva had not met the standards to bring a subsequent writ. See State Court Record, WR-81, 669-03 (Dkt. 13-9) at pp. 128-29. On October 12, 2016, the Court of Criminal Appeals dismissed his writ without written order (Dkt. 13-12).

         On August 26, 2016, while Villanueva's second habeas petition was pending, Stevens reported to Judge Slaughter, stating, “I cannot argu[e] that Chapter 64 authorizes an order of DNA testing” in Villanueva's case. Appendix C to Petition (“Stevens Letter”) (referring to Tex. Code Crim. Proc. art. 64.03 (requirements for forensic DNA testing)). Stevens explained:

Mr. Villanueva was found guilty under a charge which included an instruction under the law of the parties. Even if the hairs or other materials were found to be those of another individual, e.g., the person who wielded the bat or other instrument that caused the death, it would not exculpate Mr. Villanueva for complicity under the charge given to the jury.


         On April 7, 2017, Villanueva filed his pro se Petition in this Court. His Petition claims that he is actually innocent based on new evidence not presented at his trial, including Shuff's 2009 confession, DNA evidence, and the Cooper-Roell Letter. He also refers to a glass crack pipe, which he claims was favorable evidence but was withheld, and a red-handled hammer, which he identifies as “false” evidence. His post-Petition filings in this Court additionally claim violations of his constitutional rights to confront witnesses, effective assistance of counsel, and due process


         Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Curtis v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). In ordinary civil cases, a district court considering a motion for summary judgment is required to construe the facts of the case in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (“evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor”). “As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000).

         III. ANALYSIS

         A. One Year Statute of Limitations

         Respondent argues that Villanueva's Petition is not timely. Section 2244(d) of the AEDPA provides for a one-year limitations period:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The ...

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