United States District Court, S.D. Texas, Brownsville Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
G. Morgan United States Magistrate Judge
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.
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.
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.
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.
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. Thus, all of the facts, unless otherwise
indicated, are quoted from the state Court of Appeals
decision, changing only the formatting.
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.
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.
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
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. 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.
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).
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.
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. 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,
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
State Habeas Proceedings
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).
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.
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.
September 6, 2017, Gonzalez - via retained counsel - filed a
habeas petition, pursuant to 28 U.S.C. § 2254,
in this Court. Dkt. No. 1.
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.
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
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.
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.
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.
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.
March 6, 2018, Gonzalez filed a reply in support of his
motion to abate. Dkt. No. 20.
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”