United States District Court, S.D. Texas, Brownsville Division
TAGLE, SENIOR UNITED STATES DISTRICT JUDGE.
Court has before it Petitioner's petition for a writ of
habeas corpus (Dkt. No. 1), the Report and Recommendation
(“R&R”) of the Magistrate Judge to whom this
case was referred pursuant to 28 U.S.C. § 636(b) (Dkt.
No. 68), and the objections to the R&R filed by
Petitioner (Dkt. No. 95) and Respondent (Dkt. No. 94). The
Court has conducted an independent review of the record, the
applicable law, and the parties' objections.
reasons below, the Court ADOPTS IN PART and
DECLINES TO ADOPT IN PART the Magistrate
Judge's proposed findings and recommendations (Dkt. No.
68), DISMISSES WITH PREJUDICE Coronado's
Petition (Dkt. No. 1), and DENIES Coronado a
certificate of appealability.
described in the Magistrate Judge's R&R, Petitioner
Raul Coronado, Jr. (“Coronado”) was convicted in
Texas state court of one count of Continuous Sexual Assault
of a Young Child, three counts of Aggravated Sexual Assault,
and three counts of Indecency with a Child. Dkt. No. 68 at 5.
Coronado pursued a direct appeal, arguing that the trial
court erred in denying his motion to suppress the fruit of a
search and in denying his motion for a DNA expert.
Id. The appellate court affirmed the judgment, and
the Texas Court of Criminal Appeals denied discretionary
review. Id. Coronado then filed a state habeas
petition, alleging more than a dozen grounds for relief.
Id. at 6. His petition was dismissed, and he later
filed his instant federal habeas petition. Id.
an independent review of the record and applicable law, the
Court adopts the Magistrate Judge's proposed findings and
recommendations except as to its analysis of Claims 3 and 9.
The Court rejects the R&R as to those claims for the
reasons described below.
Claim 3, Coronado argues that two Sixth-Amendment errors
during his criminal trial warrant a new trial. First, he
argues that the trial court erroneously denied his request to
represent himself during a pretrial conference. See
Dkt. No. 45 at 15. Second, he argues that the trial court
erroneously granted the same request during trial without
warning him of the dangers of self-representation. See
Id. at 17.
did not raise either claim on direct appeal. These claims are
therefore procedurally defaulted unless Coronado can show
cause and prejudice for his failure to raise the claims on
direct appeal. See Martinez v. Ryan, 132 S.Ct. 1309,
1316 (2012). Coronado argues that ineffective assistance of
his appellate counsel exempts him from procedural default in
Claim 3. The Magistrate Judge recommends that the Court find
that Coronado has not shown prejudice and dismiss Claim 3 on
that ground. Dkt. No. 68 at 10. Coronado objects, and argues
that the Magistrate Judge misinterpreted caselaw. Dkt. No. 95
fails on Claim 3 for a more straightforward reason: his
ineffective-assistance-of-appellate-counsel argument is
procedurally defaulted. “[A]n
ineffective-assistance-of-counsel claim asserted as cause for
the procedural default of another claim can itself be
procedurally defaulted” unless “the prisoner can
satisfy the cause-and-prejudice standard with respect to
that claim.” Edwards v. Carpenter,
529 U.S. 446, 453 (2000). In other words, the claim of
ineffective assistance of counsel on direct appeal is an
independent constitutional violation, which must itself be
exhausted using state collateral review procedures.
Hatten v. Quarterman, 570 F.3d 595, 605 (5th Cir.
2009). Therefore, Coronado must either have brought his
ineffective-assistance-of-appellate-counsel argument in his
state habeas proceedings or show cause and prejudice for his
failure to do so. He has done neither. Therefore, his Claim 3
is subject to procedural default and must be dismissed.
Claim 9, Coronado argues that his convictions for
“Aggravated Sexual Assault of a Child” and
“Indecency with a Child” violate the
Double-Jeopardy Clause of the Fifth Amendment. Dkt. No. 1 at
12-13. The Magistrate Judge recommends that Coronado's
convictions do not constitute double jeopardy because
“Aggravated Sexual Assault of a Child, ” as
compared to “Indecency with a Child, ” requires
an additional element of an aggravating factor. Dkt. No. 68
at 30. However, the Magistrate Judge does not consider
whether “Indecency with a Child” contains an
element not included in “Aggravated Sexual Assault of a
Child.” See Blockburger v. United States, 284
U.S. 299, 304 (1932) (“[T]he test to be applied to
determine whether there are two offenses or only one, is
whether each provision requires proof of a fact
which the other does not.”) (emphasis added). The Court
nevertheless finds that double jeopardy does not apply to
state habeas court determined that double jeopardy did not
apply because, although the sexual assaults and indecencies
occurred on the same dates, each assault-indecency pair
included two “separate, distinct acts” which
could be charged separately. Dkt. No. 17-19 at 8. This
analysis is consistent with caselaw. See Vick v.
State, 991 S.W.2d 830, 833 (Tex. Crim. App. 1999)
(finding that “the Legislature intended to
punish” each offense separately); Missouri v.
Hunter, 459 U.S. 359 (1983) (finding that
Blockburger does not apply if “a legislature
specifically authorizes cumulative punishment under two
statutes”). The state habeas court's conclusion
therefore did ...