United States District Court, S.D. Texas, Galveston Division
MEMORANDUM AND ORDER
C. HANK R. UNITED STATES DISTRICT JUDGE.
inmate Nelson Romero seeks a federal writ of habeas corpus
under 28 U.S.C. § 2254 challenging his Texas state court
conviction for possessing a deadly weapon in a penal
institution. (Docket Entry No. 3). Respondent Lorie Davis has
filed a motion for summary judgment, arguing that
Romero's claims are without merit and that he is not
entitled to relief. (Docket Entry No. 20). Romero has
responded. (Docket Entry Nos. 44, 47, 48). After reviewing
the record, the pleadings, and the applicable law, with
special consideration given to the Anti-Terrorism and
Effective Death Penalty Act's (“AEDPA”)
deferential standard of review, the Court will grant
Respondent's motion for summary judgment and deny
Romero's petition. The Court will not certify any issue
for appellate review.
Court sets forth the reasons for its adjudication below.
was imprisoned in the Darrington Unit of the Texas Department
of Criminal Justice on May 28, 2006, when a riot broke out.
As a result of Romero's actions during a fight, the State
of Texas charged him with the felony offense of possessing a
deadly weapon in a penal institution. Clerk's Record at
2. The indictment specified that Romero possessed “a
metal rod sharpened to a point.” Clerk's Record at
indictment included two enhancement paragraphs based on
Romero's prior convictions for aggravated assault and
aggravated robbery. Clerk's Record at 2.
State tried Romero under cause number 58710 in the 23rd
Judicial District Court of Brazoria County, Texas. The trial
testimony showed as follows:
Inmate Ricky Zackery testified that [Romero] “tried to
take my life” and “tried to kill me” with
the shank by stabbing him below the chest and in the shoulder
during the prison fight. Zackery testified that he lost
consciousness after the fight and was transported to the
hospital in an ambulance. Zackery testified that he stayed in
the hospital approximately two days, and he was given pain
medication for seven days after the incident.
Inmate Adrian Richmond testified at trial that he saw
[Romero] stab Zackery and at least one other inmate with a
shank during the prison fight. Richmond testified that
Zackery was “covered in blood” after [Romero]
stabbed Zackery two times, and that “blood was
everywhere.” Inmate Fred Primes also testified that he
saw [Romero] holding a shank during the fight. Primes
testified that although he did not see [Romero] stab anyone,
other inmates did. Richmond and Investigator Rebecca
Dougherty testified that weapons similar to the shank
[Romero] used in the prison fight were “capable of
causing death or serious bodily injury.”
Richmond admitted that his trial testimony differed from one
of his initial statements to police, in that (1) he testified
at trial that [Romero] held two shanks during the fight, but
stated at an earlier point that [Romero] held one shank; and
(2) one of his initial statements identified a different
inmate as the individual who stabbed Zackery. Richmond
testified that “when the shanks came out . . . I mean
it happened fast.”
Romero v. State, 331 S.W.3d 82, 84 (Tex. App.
-Houston [14th Dist.], 2010). The jury found Romero guilty
and assessed his punishment at thirty years confinement.
Clerk's Record at 60, 79.
appointed counsel, Romero filed an appeal arguing that the
evidence was factually and legally insufficient to sustain
his conviction for using a deadly weapon. The Fourteenth
Court of Appeals of Texas affirmed his conviction in a
published opinion. Romero v. State, 331 S.W.3d 82
(Tex. App. -Houston [14th Dist.] Dec. 2, 2010, pet.
ref'd). The Texas Court of Criminal Appeals refused
Romero's out-of-time petition for discretionary review
(“PDR”). Ex parte Romero, 2011 WL
5220479 (Tex. Crim. App. Nov. 2, 2011); Romero v.
State, PDR. No. 1756-11.
did not seek state habeas relief from his conviction or
March 31, 2013, Romero filed a federal petition for a writ of
habeas corpus and a memorandum brief in support. (Docket
Entry Nos. 3, 4). Romero's petition again challenges the
factual and legal sufficiency of the evidence supporting his
conviction. Respondent has moved for summary ...