United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
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
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. 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).
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. 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).
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.).
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
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).
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,  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”). 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”). 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
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.
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
SUMMARY JUDGMENT STANDARD
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).
One Year Statute of Limitations
argues that Villanueva's Petition is not timely. Section
2244(d) of the AEDPA provides for a one-year limitations
(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