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Gonzalez v. Davis

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

April 20, 2018

ERIC CHRISTOPHER GONZALEZ, Petitioner,
v.
LORIE DAVIS, Respondent.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          Ronald G. Morgan United States Magistrate Judge

         On September 6, 2017, Petitioner Eric Christopher Gonzalez filed a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Dkt. No. 1.

         On January 4, 2018, Respondent Lorie Davis filed a motion for summary judgment. Dkt. No. 14. Davis asserts that Gonzalez's claims are untimely filed and unexhausted. On February 9, 2018, Gonzalez filed a response. Dkt. No. 17.

         On February 9, 2018, Gonzalez also filed a motion to abate the case to permit him to file his claims in state court to fully exhaust them. Dkt. No. 18. On March 2, 2018, Davis filed a response in opposition. Dkt. No. 19. On March 6, 2018, Gonzalez filed a reply. Dkt. No. 20.

         After reviewing the record and the relevant case law, the Court recommends that Respondent's motion for summary judgment be granted. Gonzalez's claims are untimely filed and unexhausted. Gonzalez's motion to abate should be denied because he has not shown good cause and his claims are procedurally barred in the state courts.

         I. Background

         A. Factual Background

         On direct appeal, the 13th Court of Appeals of Texas made a number of specific factual findings. Gonzalez v. State, 510 S.W.3d 10 (Tex. App. 2014). As provided by law, the court sets forth and adopts those findings.[1] Thus, all of the facts, unless otherwise indicated, are quoted from the state Court of Appeals decision, changing only the formatting.

         The Harlingen Police Department (HPD) learned from an anonymous phone call that a light-skinned male driving a light blue pickup truck was buying packing materials several times a week at a storage center. The caller believed that the frequency of the purchases indicated that the buyer could be shipping narcotics. HPD Officer Jose Garcia ran a check on the license plate number supplied by the caller and found an address in Rio Hondo, Texas, associated with the vehicle. Officer Garcia and several colleagues first drove to the storage center in an unmarked car, but after finding the center closed, they began the drive to the Rio Hondo address. While stopped at a traffic light, the officers noticed a light blue pickup truck also waiting at the light in the lane going the opposite direction. The police verified that the license plate number matched the one provided by the informant, turned around, and followed the vehicle to an apartment building in San Benito, Texas. Less than ten minutes later, appellant exited the apartment building and entered the truck accompanied by a woman later identified as his wife. Officer Garcia testified that appellant appeared to be hiding something under his shirt as he exited. The police followed the truck onto the freeway and allegedly observed the truck change three lanes without signaling, before exiting onto the frontage road, and traveling over to the right lane without signaling.

         At that point, Officer Garcia contacted the HPD gang unit to make a traffic stop of the truck. An officer of the gang unit in a marked police car activated the lights on his car and attempted to pull appellant's truck over. Officer Garcia testified that the truck “slows a little bit like it's going to pull over and ... it just pulls over a little bit, and then it takes off at a high rate of speed.” A vehicle chase ensued in which two marked police cars as well as the unmarked car pursued appellant, with the marked cars in the lead. During the chase, the police observed the truck drive past two stop signs without stopping. The chase ended when the truck struck an oncoming car at the intersection of Ed Carey Road and the Frontage Road and resulted in the death of the passenger in the vehicle, Marie de La Luz.

         The police arrested appellant and his wife and performed a search of the truck. Officer Tim Flores's search disclosed a .22 caliber pistol and two baggies of marijuana in a compartment hidden in the truck's center console. A separate group of police went to the apartment of Francina Flores, a friend of appellant's wife, who lived in the same building that police earlier observed appellant and his wife exit. Flores signed a consent-to-search form, and the police discovered “packaging for a large shipping scale, plastic bags, gloves, cellophane wrap, [and] marijuana” in her apartment. The police also found “Mr. Gonzalez's wife's I.D. in one of the bags with some marijuana.” The State indicted appellant with felony murder in the death of the passenger of the vehicle he struck with the predicate offense of evading arrest (Count I), aggravated assault in the injuries sustained by the driver of the vehicle he struck (Count II), a separate charge of evading arrest that contained the same conduct as the predicate offense alleged in Count I (Count III), two counts of possession of a controlled substance (Counts IV and V), and possession of a firearm by a felon (Count VI). See Tex. Penal Code Ann. §§ 19.02(b)(3), 22.02(a), 38.04(a); Tex. Health & Safety Code Ann. § 481.112; Tex. Penal Code Ann. § 46.04(a) (West, Westlaw through 2013 3d C.S.). On appellant's motion, the trial court struck Count V and severed Count VI into a separate proceeding that . . . [was not before the Appellate Court]. Appellant plead not guilty to Counts I-IV, and a jury returned a verdict of guilty on all four counts. The trial court assessed punishment at fifty years' imprisonment on Count I, twenty years' imprisonment on Count II with an affirmative deadly weapon finding, twenty years' imprisonment on Count III, and two years' imprisonment on Count IV. The trial court ordered the sentences to run concurrently.

         Appellant filed a timely motion for new trial alleging that he received ineffective assistance of counsel and cited seven different instances where he alleged that his counsel failed to provide reasonable professional assistance.[2] The trial court set the motion for a hearing on August 26, 2013. On August 9, appellant filed a motion requesting to be personally present at the hearing. Shortly after the State filed a response, the trial court rescinded its order setting a hearing on the motion for new trial and denied both motions.[3]

         B. Direct Appeal

         On direct appeal, Gonzalez - via appointed counsel - raised thirteen issues: (1) the trial court erred by not holding an evidentiary hearing on his motion for a new trial; (2) trial court erred by denying Gonzalez's motion to be physically present at the post-trial evidentiary hearing; (3) the trial court erred in denying his motion to suppress; (4) his convictions for felony murder and evading arrest violated the Double Jeopardy clause; (5) the jury instructions regarding Francina Flores's consent to search his apartment were erroneous; (6) the jury instructions regarding the legality of the search of his vehicle were erroneous; (7)-(12) the trial court erred in admitting certain pieces of evidence; and, (13) counsel was ineffective during the guilt-innocence phase of his trial. Gonzalez v. State, 510 S.W.3d 10 (Tex. App. 2014).

         On August 14, 2014, the 13th Court of Appeals issued an opinion, affirming Gonzalez's conviction. Id. The appellate court specifically rejected each and every claim for relief. Id.

         On September 19, 2014, Gonzalez - via counsel - timely filed a petition for discretionary review with the Texas Court of Criminal Appeals. Dkt. No. 9-4, p. 2548.[4] In his petition, Gonzalez raised three arguments, claiming that the court of appeals opinion wrongly held: (1) that he was not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel; (2) that he lacked standing to obtain a jury instruction concerning Francina Flores's consent to search the apartment; and (3) that the erroneous admission of marijuana from the apartment was harmless error. Id, p. 2550.

         On January 28, 2015, the Court of Criminal Appeals refused the petition for discretionary review. Dkt. No. 9-4, p. 2606. On March 4, 2015, Gonzalez's motion for rehearing was denied. Id.

         C. State Habeas Proceedings

         On October 5, 2015, Gonzalez - proceeding pro se - filed a state habeas petition in the 107th District Court in Cameron County. Dkt. No. 9-6, p. 2633. On December 9, 2015, the Texas Court of Criminal Appeals dismissed that petition, because it did not comply with Tex.R.App.P. 73.1. Dkt. No. 9-11, p. 3185. The dismissal indicated that the Court of Criminal Appeals rejected the petition on procedural grounds, rather than a merits-based review of the record. Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997) (en banc) (indicating that a “denial” signifies adjudication on the merits, while “dismissal” reflects a claim declined on grounds other than upon the merits).

         On January 15, 2016, Gonzalez - proceeding pro se - filed a second habeas petition in state court. Dkt. No. 9-14, p. 3193. In that petition, Gonzalez raised five issues for review: (1) the jury charge did not include an instruction on mistakes of fact; (2) counsel was deficient for failing to request such an instruction; (3) trial counsel was ineffective for failing to hire experts about police pursuit policies, seek jury instructions on lesser-included offenses, failure to call eyewitnesses and failing to seek testimonial immunity for Gonzalez's wife; (4) prosecution failed to turn over unidentified exculpatory evidence; (5) ineffective assistance of appellate counsel for failing to raise the arguments that Gonzalez raised in the state habeas petition. Id.

         On January 11, 2017, the Texas Court of Criminal Appeals denied Gonzalez's petition without a written order. Dkt. No. 9-17, p. 3489. The denial signified that the Appeals Court had considered the merits of Gonzalez's petition and found that relief was not warranted. Ex parte Torres, 943 S.W.2d at 472.

         D. Procedural History

         On September 6, 2017, Gonzalez - via retained counsel - filed a habeas petition, pursuant to 28 U.S.C. § 2254, in this Court. Dkt. No. 1.

         In that petition, Gonzalez raised three claims: (1) trial counsel was ineffective for failing to present evidence that he suffers from the effects of a frontal lobe injury, chronic depression and bipolar disorder; (2) trial counsel was ineffective for failing to timely designate an expert witness to testify about Gonzalez's frontal lobe injury, chronic depression and bipolar disorder; (3) appellate counsel was ineffective for not raising the failure to timely designate the expert witness as part of the direct appeal. Dkt. No. 1.

         On January 1, 2018, the respondent filed a motion for summary judgment. Dkt. No. 14. The respondent argues that Gonzalez's petition is untimely filed and cannot be saved by equitable tolling. Furthermore, the respondent argues that the issues raised in the instant petition have not been previously presented to the state courts, making them unexhausted. Id.

         On February 9, 2018, Gonzalez filed a response to the motion for summary judgment, arguing that the Texas Court of Criminal Appeals “should not have dismissed” his first state habeas petition simply because his attached memorandum exceeded 50 pages. Dkt. No. 17.[5]

         Gonzalez further argues that he is entitled to equitable tolling for the period that his first petition was pending, because the dismissal based on the length of the memorandum was an extraordinary circumstance that prevented his timely filing. Gonzalez also argues that all of his claims are exhausted because they are “similar enough” to the claims raised in the second state habeas petition. Id.

         On February 9, 2018, Gonzalez filed an opposed motion to abate this case to permit him to file a third state habeas petition, raising the issues that were raised in the instant petition. Dkt. No. 18.

         On March 2, 2018, the respondent filed a response, opposing the motion to abate. Dkt. No. 19. The respondent argues that any stay would be futile because a third state habeas petition would be procedurally barred under Texas's “abuse of the writ” doctrine. Id.

         On March 6, 2018, Gonzalez filed a reply in support of his motion to abate. Dkt. No. 20.

         II. Applicable Law

         A. Summary Judgment

         Summary judgment pursuant to Rule 56(c) is appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact, ” since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” ...

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