United States District Court, W.D. Texas, San Antonio Division
MEMORANDUM OPINION AND ORDER
ORLANDO L. GARCIA CHIEF UNITED STATES DISTRICT JUDGE
Johnson, an inmate in the custody of the Texas Department of
Criminal Justice-Correctional Institution's Division, has
filed a counseled application for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging his conviction
on one count of murder. (ECF No. 1). As required by Rule 4 of
the Rules Governing Section 2254 Cases, the Court conducted a
preliminary review of the petition. Having considered the
habeas petition (ECF No. 1), Respondent's Answer (ECF No.
7), Petitioner's Reply (ECF No. 10), the record (ECF No.
8), and applicable law, the Court finds the petition should
be DENIED. Petitioner is also denied a
certificate of appealability.
jury indictment returned July 21, 2010, charged Petitioner
with murder, alleging the use of a deadly weapon. (ECF No.
8-6 at 12). Petitioner testified at his trial in the 186th
District Court of Bexar County, Texas. The Fourth Court of
Appeals summarized his testimony as follows:
During the guilt-innocence phase of trial, appellant
testified on his own behalf. He said he and Randi Flores both
worked for University Health System. Appellant said he and
Randi were friends and that he had feelings for her. When he
was told she was dating someone else, he was "bothered,
" but not upset. In the evening of May 13, 2010,
appellant drove to an apartment complex to see Randi. While
in the parking lot of the complex, he asked Randi if she was
"with Andy [Vela] now, " she replied "yes, "
and appellant said "okay" and then drove away.
At some point in the evening, appellant drove to another
apartment in search of some of his belongings. ... A few
hours later, he returned to the apartments where he had
earlier spoken to Randi to meet with Randi's mother who
said she had some of his belongings.
While waiting in his car for Randi's mother, he saw a
truck and two cars full of people and he thought to himself,
"Something like this is not good Becareful."
Appellant said Josue [the victim] walked up to
appellant's car and asked "What the, 'blank,
' are you doing? What the F are you doing back
here?" Appellant said Josue had his hands in his pockets
as he was walking, as if he were holding his pants up under
his shirt. Appellant said he asked Josue if he had his
"stuff, " to which Josue replied "Yeah, I got
something for you, " and Josue pulled out a gun.
Appellant said he then reached for his gun and started
firing, and then he drove away. Appellant could not remember
how many times he fired, and he said he was terrified.
Appellant was arrested at approximately 3:00 a.m. the next
morning. On cross-examination, appellant said he knew Josue
and that Josue was a "good guy, " but "if he
wouldn't have did what he did, then I would never have
done that." Appellant said he shot Josue because Josue
pointed a gun at him and he felt justified in shooting Josue
because he believed his own life was in danger.
Johnson v. State, No. 04-11-00461-CR, 2013 WL
345006, at *2 (Tex. App.-San Antonio 2013, pet. ref d).
witnesses testified that Randi was visiting with friends in
the parking lot of the apartment complex when Petitioner
drove into the parking lot around 10:30 p.m. These
individuals knew the victim, Randi, and Petitioner, and
testified under subpoena as State's
witnesses. (ECF No. 8-11 at 44, 71, 109). These
witnesses testified they observed Josue walk towards them in
the parking lot as Petitioner drove into the parking lot.
They all testified that, as Petitioner stopped his vehicle
near them, Josue walked toward the driver's side of the
vehicle and asked Petitioner "What are you doing?"
or "Do you need something?" or "Can I help
you?" (ECF No. 8-11 at 55, 79, 120). They testified that
immediately afterward they heard at least four gunshots, and
witnessed Petitioner speed away in his vehicle. The State
subpoenaed the testimony of Andy Vela and Valerie Ingorvaia,
who testified they were with the victim in Ms.
Ingorvaia's apartment just prior to the shooting. (ECF
No. 8-11 at 132, 143-44, 183-84). Although they did not
witness the shooting, Mr. Vela and Ms. Ingorvaia heard the
shots and rushed to where Josue was lying in the parking lot.
(ECF No. 8-11 at 144, 184). These two witnesses testified
Josue named Petitioner as the person who shot him, and then
died. (ECF No. 8-11 at 147-48, 187). On cross-examination
defense counsel highlighted inconsistencies in the
State's witnesses' statements, and elicited testimony
from the medical examiner that at least one of the gunshots
would have immediately rendered Josue unconscious and unable
to speak. (ECF No. 8-12 at 72-73).
jury was instructed on murder and self-defense. (ECF No. 8-6
at 144-55). The jury found Petitioner guilty of murder, and
the trial court imposed a sentence of life imprisonment. (ECF
No. 8-6 at 156, 169). Petitioner was appointed appellate
counsel, who did not file a motion for a new trial. (ECF No.
7 at 3). See also Johnson, 2013 WL 345006 at *5 n.l.
appealed, asserting he was entitled to a new sentencing
hearing because the trial court was not an impartial
adjudicator. (ECF No. 8-1). The Fourth Court of Appeals
affirmed the trial court's judgment. Johnson,
2013 WL 345006, at *5.
through counsel, sought a state writ of habeas corpus,
asserting he was denied his right to a public trial because
the public was excluded from the courtroom during voir dire
and because he was denied his right to the effective
assistance of trial and appellate counsel. (ECF No. 8-19 at
10, 12-14). Petitioner asserted trial counsel was ineffective
for failing to object to the "exclusion of the public
during jury selection and by failing to interview and call as
a witness at trial Jasmine Salinas who could have
contradicted Andy Vela's testimony that Josue did not arm
himself prior to confronting Alex." (ECF No. 8-19 at
39). He alleged appellate counsel's performance was
deficient because counsel failed to file a motion for a new
trial regarding the improper exclusion of the public during
jury selection. (ECF No. 8-19 at 40). The state habeas trial
court made findings of fact and conclusions of law, and
recommended the writ be denied. (ECF No. 8-19 at 184-90). The
Court of Criminal Appeals denied the writ on the findings of
the trial court. (ECF No. 8-17).
federal habeas action Petitioner asserts he was denied his
right to a public trial. (ECF No. 1 at 7; ECF No. 6 at
12-26). He further alleges he was denied the effective
assistance of trial and appellate counsel. (ECF No. 6 at
26-39). He also contends "[t]he state habeas court's
finding that the courtroom was not closed to the public
during jury selection is an unreasonable determination of the
facts, " and that "[t]he state habeas court's
finding that the defense adequately investigated this case
and that several witnesses, who stated they were available to
testify at trial and were not interviewed by the defense,
were not available at the time of trial is an unreasonable
determination of the facts." (ECF No. 6 at 42).
Respondent allows the petition is timely and not successive,
and that Petitioner exhausted his federal habeas claims in
the state courts. (ECF No. 7 at 5).
Standard of Review
Review of State Court Adjudications
habeas petition is governed by the heightened standard of
review provided by the Antiterrorism and Effective Death
Penalty Act ("AEDPA"), codified at 28 U.S.C. §
2254. Under § 2254(d), a petitioner may not obtain
federal habeas corpus relief on any claim that was
adjudicated on the merits in state court proceedings, unless
the adjudication of that claim either "resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States, "
or resulted in a decision based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding. Brown v. Payton, 544
U.S. 133, 141 (2005). A state court's findings of fact
are presumed to be correct unless the petitioner can rebut
the findings of fact through clear and convincing evidence.
28 U.S.C. § 2254(e)(1); Valdez v. Cockrell, 274
F.3d 941, 949 (5th Cir. 2001). This intentionally difficult
standard stops just short of imposing a complete bar on
federal court relitigation of claims already rejected in
state proceedings. Harrington v. Richter, 562 U.S.
86, 102 (2011).
federal habeas court's inquiry into unreasonableness
should always be objective rather than subjective, with a
focus on whether the state court's application of clearly
established federal law was "objectively unreasonable,
" and not whether it was incorrect or erroneous.
McDaniel v. Brown, 558 U.S. 120, 132-33 (2010);
Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). As
long as "fairminded jurists could disagree" on the
correctness of the state court's decision, the state
court's determination that a claim lacks merit precludes
federal habeas relief. Richter, 562 U.S. at 101
(citing Yarborough v. Alvarado, 541 U.S. 652, 664
Review of Sixth Amendment Claims
Court reviews Sixth Amendment claims concerning the alleged
ineffective assistance of counsel under the two-prong test
established in Strickland v. Washington, 466 U.S.
668 (1984). To succeed on a Strickland claim, a
petitioner must demonstrate counsel's performance was
deficient and this deficiency prejudiced his defense.
Id. at 687-88, 690. The Supreme Court has held that
"[s]urmounting Strickland's high bar is
never an easy task." Padilla v. Kentucky, 559
U.S. 356, 371 (2010).
determining whether counsel performed deficiently, courts
"must be highly deferential" to counsel's
conduct, and a petitioner must show that counsel's
performance fell beyond the bounds of prevailing objective
professional standards. Strickland, 466 U.S. at
687-89. Counsel is "strongly presumed to have rendered
adequate assistance and made all significant decisions in the
exercise of reasonable professional judgment." Burt
v. Titlow, 134 S.Ct. 10, 17 (2013) (quoting
Strickland, 466 U.S. at 690). Accordingly, there is
a strong presumption that an alleged deficiency "falls
within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689). To
demonstrate prejudice, a petitioner "must show that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome." Id. at 694.
Strickland claim fails if the petitioner cannot
establish either deficient performance or prejudice
and, accordingly, the Court need not evaluate both prongs of
the test if the petitioner makes an insufficient showing as
to either performance or prejudice. Id. at 697;
Blanton v. Quarterman, 543 F.3d 230, 235-36 (5th
Cir. 2008). A habeas petitioner has the burden of proving
both prongs of the Strickland test. Rogers v.
Quarterman, 555 F.3d 483, 489 (5th Cir. 2009);
Blanton, 543 F.3d at 235.
contends the trial court, Judge Herr, denied him a public
trial. (ECF No. 6 at 12). He alleges members of the public
were present prior to voir dire, but were "forced by the
bailiffs to leave the courtroom before the venire panel
entered the courtroom." (ECF No. 12 at 12, 25).
Petitioner raised this claim in his state habeas action, and
the Court of Criminal Appeals denied the claim on the
findings of the habeas trial court, Judge Moore.
affidavit in the state habeas action, a Ms. Johnson stated
she was present in the courtroom on the first day of trial,
and that the bailiff required her and "all of the
members of the public (approximately five other people) to
leave the [courtroom] before the venire panel entered the
[courtroom]." (ECF No. 8-19 at 124). Judge Herr, her
court reporter, and Petitioner's trial counsel all filed
affidavits in the state habeas action. Petitioner's trial
The usual practice in the 186th District Court at that time
was for the bailiff to ask members of the public to leave the
courtroom during jury selection because of limited space. I
knew in advance that this was going to happen so I had
already informed Alex Johnson and his family. No one objected
or said they wanted to [be] in the courtroom during jury
selection. If any member of Alex Johnson's family or
friends had wanted to remain in the courtroom during jury