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Vazquez v. Davis

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

April 3, 2018

ALBERTO PEDRO VAZQUEZ, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM AND OPINION

          Lee H Rosenthal Chief United States District Judge

         The petitioner, Alberto Pedro Vazquez, seeks habeas corpus relief under 28 U.S.C. § 2254. He challenges his Texas state-court convictions for two injury-to-a-child offenses, for which he was sentenced to life and 10-year prison terms. Vazquez alleges that he was denied the effective assistance of trial counsel because, during the punishment phase, counsel did not seek the recusal of Judge Hamilton based on previously expressed bias; and before Vazquez pleaded guilty, counsel failed to properly advise Vazquez on the Texas outcry statute and failed to advise him that he could seek to recuse Judge Hamilton due to bias. The respondent has moved for summary judgment on the grounds that Vazquez waived the claims he asserts or that they are without merit. Each claim is considered below.

         I. Background

         Vazquez was charged in the 359th District Court of Montgomery County, Texas, in cause numbers 13-11-12819-CR and 13-11-12599-CR, for two separate injury-to-a-child offenses.[1] One was a first-degree felony offense on November 21, 2013, and alleges serious bodily injury to a child 14 years or younger.[2] The second was a third-degree felony offense on November 19, 2013, and alleges bodily injury to a different child, also 14 years or younger.[3] Vazquez pleaded guilty to both charges, was found guilty, and sentenced to life imprisonment for the first-degree offense and a 10-year prison term for the third-degree offense.[4] The Ninth Court of Appeals of Texas granted Vazquez's motion to voluntarily dismiss his appeal. Vazquez v. State, 2015 WL 4312207 (Tex. App.--Beaumont, July 15, 2015, no pet.). Vazquez then filed two state habeas applications, each separately challenging his convictions.[5] Trial counsel submitted an affidavit, which the habeas trial court found to be credible. The Texas Court of Criminal Appeals denied both applications, without written order, adopting the trial court's findings.[6] Vazquez then filed this federal petition.

         II. The Legal Standards

         A. The AEDPA Standard of Review

         Section 2254(d) imposes a deferential standard that allows a federal court to grant a § 2254 application if the state-court decision was contrary to, or unreasonably applied, clearly established federal law as determined by the Supreme Court, or if the state-court decision was based on an unreasonable determination of facts in light of the record. Harrington v. Richter, 562 U.S. 86, 100-01 (2011) (citing (Terry) Williams v. Taylor, 529 U.S. 362, 412 (2002)). A state-court decision is contrary to established federal law if the state court applies a rule that contradicts Supreme Court precedent, or if the state court confronts facts that are “materially indistinguishable” from relevant Supreme Court precedent, but reaches an opposite result. (Terry) Williams, 529 U.S. at 405-06. A state court unreasonably applies Supreme Court precedent if it correctly identifies the governing precedent but unreasonably applies it to the facts of the case. Id. at 407-09. The focus is on the state court's ultimate legal conclusion. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc) (“It seems clear to us that a federal habeas court is authorized by Section 2254(d) to review only a state court's ‘decision, ' and not the written opinion explaining that decision.”).

         “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree'” on the correctness of the decision. Harrington, 562 U.S. at 87 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The federal habeas court is limited to the record that was before the state court. 28 U.S.C. § 2254(d)(2); Cullen v. Pinholster, 563 U.S. 170, 181 (2011). No. evidentiary hearing is required if the court can rule on the basis of the record.

         B. The Summary Judgment Standard

         A party moving for summary judgment must inform and identify the pleadings and record evidence that demonstrate the absence of issues of material fact that entitle the movant to judgment as a matter of law. Howell Hydrocarbons, Inc. v. Adams, 897 F.2d 183, 191 (5th Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party makes the required showing, the burden shifts to the nonmoving party to show summary judgment is not appropriate. Fields v. City of South Houston, 922 F.2d 1183, 1187 (5th Cir. 1991). In a federal habeas proceeding, the rule applies to the extent that it does not conflict with the rules governing habeas review. Section 2254(e)(1), which mandates that a state court's fact findings are presumed correct, “overrides the ordinary rule that, in summary judgment proceeding, all disputed facts must be construed in the light most favorable to the nonmoving part. Unless . . . [the petitioner] can ‘rebut [ ] the presumption of correctness by clear and convincing evidence' as to the state court findings of fact, they must be accepted as correct.” Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).

         III. The Issue of Waiver (Claim 2)

         Vazquez asserts that trial counsel was ineffective when he failed to properly advise Vazquez on the Texas outcry statute and failed to advise him that he could move to recuse the judge. Vazquez asserts that had he been correctly advised, he would have insisted on going to trial.

         A federal court will uphold a guilty plea challenged in a habeas corpus proceeding if the plea was knowing, voluntary, and intelligent. James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995); United States v. Hernandez, 234 F.3d 252, 255 n.3 (5th Cir. 2000). A guilty plea is not voluntary if induced by threats, misrepresentations, unfulfilled promises, or improper promises. Id. A guilty plea is not knowing unless the defendant understood the consequences of his plea. When “a defendant understands the nature of the charges against him and the consequences of his plea, yet voluntarily chooses to plead guilty, the plea must be upheld on federal review.” Diaz v. Martin, 718 F.2d 1372, 1376-77 (5th Cir. 1983).

         The record clearly shows that Vazquez was properly admonished as to the punishment range for both his first-degree and third-degree injury to a child convictions in his written admonishments.[7]The trial court also orally admonished Vazquez on the punishment ranges for each offense.[8] Vazquez signed a written waiver stating that he understood the consequences of his plea, that he was mentally competent, that his plea was knowingly, freely, and voluntarily entered, and that “[n]o one has threatened, coerced, forced, persuaded, or promised me anything in exchange for my plea.”[9] He affirmatively stated in open court that he signed the admonishments and waivers freely and voluntarily, and that no one had forced him to plead guilty.[10]

         The record also directly contradicts Vazquez's assertion that he would not have pleaded guilty if counsel had advised him about outcry statements and his ability to seek the judge's recusal. Trial counsel submitted an affidavit to the state habeas court, stating as follows:

Applicant made the decision to plead guilty. Due to the severity of the injuries that [A.G.] and [E.G.] sustained, applicant did not want to face a jury of his peers. Defense counsel believed that, if applicant pled guilty and expressed remorse, there was a possibility that Judge Hamilton might defer a finding of guilty and place applicant on community supervision . . . . Applicant did enter pleas of guilty knowingly and voluntarily. Applicant knew that he had a right to require that the State prove his guilt. Applicant knew he was guilty of the offenses of injury to a child and that the evidence of his guilt was overwhelming. Applicant knew very well that Judge Hamilton could find him guilty and could sentence ...

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