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Romero v. Stephens

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

April 26, 2018

NELSON ROMERO, Petitioner,
v.
WILLIAM STEPHENS, Respondent.

          MEMORANDUM AND ORDER

          GEORGE C. HANK R. UNITED STATES DISTRICT JUDGE.

         State 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.

         The Court sets forth the reasons for its adjudication below.

         BACKGROUND

         Romero 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 2.

         The indictment included two enhancement paragraphs based on Romero's prior convictions for aggravated assault and aggravated robbery. Clerk's Record at 2.

         The 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.

         Through 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.[1]

         Romero did not seek state habeas relief from his conviction or sentence.

         On 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 ...


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