United States District Court, N.D. Texas, Dallas Division
JULIAN P. GUTIERREZ, III TDCJ No. 2063107, Petitioner,
LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
L. HORAN UNITED STATES MAGISTRATE JUDGE
Julian P. Gutierrez, III, a Texas inmate, filed a pro
se application for writ of habeas corpus under 28 U.S.C.
§ 2254. See Dkt. No. 2. This resulting action
has been referred to the undersigned United States magistrate
judge for pretrial management under 28 U.S.C. § 636(b)
and a standing order of reference from Senior United States
District Judge A. Joe Fish. The State filed a response
opposing relief. See Dkt. No. 17. Gutierrez filed a
reply. See Dkt. No. 18. For the reasons explained
below, the Court should deny Gutierrez's federal habeas
jury found Gutierrez guilty of robbery, he “pleaded
true to one enhancement paragraph” and “the trial
court assessed punishment at twenty years'
imprisonment.” Gutierrez III v. State, No.
05-16-00755-CR, (Tex. App. - Dallas May 31, 2017, pet.
ref'd.); Dkt. No. 16-3. The Dallas Court of Appeals
affirmed Gutierrez's conviction as modified. Id.
(“We modify the judgment to show the punishment was
assessed by the trial court .... Accordingly, we modify the
sections of the judgment entitled ‘plea to 1st
enhancement paragraph' and ‘findings on 1st
enhancement paragraph' to show ‘True,' and
modify the section entitled ‘degree of offense' to
show ‘2nd degree felony.'”). The Texas Court
of Criminal Appeals (“CCA”) refused
Gutierrez's petition for discretionary review. See
Gutierrez v. State, No. PD-0611-17 (Tex. Crim. App.
filed an initial state application for writ of habeas corpus,
Dkt. No. 16-17 at 23-41, which the CCA dismissed because his
conviction was not yet final. Dkt. No.16-16. He filed a
second state application claiming that his trial and
appellate attorneys were constitutionally ineffective on
numerous issues. Dkt. No. 16-19 at 25-44. On April 25, 2018,
the CCA denied Gutierrez's application without written
order on the findings of the trial court. See Ex parte
Gutierrez, WR-87, 466-02 (Tex. Crim. App. April 25,
2018); Dkt. No. 16-18.
timely-filed federal habeas application, Gutierrez raises the
grounds for relief he raised in his second state application.
Dkt. No. 2 at 6-9.
Standards and Analysis
raises seven claims of ineffective assistance of trial
counsel and one claim of ineffective assistance of appellate
counsel. See Id.
state court has already rejected a claim on the merits, a
federal court may grant habeas relief on that claim only if
the state court adjudication:
(1) 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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
court adjudication on direct appeal is due the same deference
under Section 2254(d) as an adjudication in a state
post-conviction proceeding. See, e.g., Dowthitt
v. Johnson, 230 F.3d 733, 756-57 (5th Cir. 2000) (a
finding made by the CCA on direct appeal was an “issue
... adjudicated on the merits in state proceedings, ”
to be “examine[d] ... with the deference demanded by
[the Antiterrorism and Effective Death Penalty Act of 1996
(the “AEDPA”)]” under “28 U.S.C.
court decision is “contrary” to clearly
established federal law if “it relies on legal rules
that directly conflict with prior holdings of the Supreme
Court or if it reaches a different conclusion than the
Supreme Court on materially indistinguishable facts.”
Busby v. Dretke, 359 F.3d 708, 713 (5th Cir. 2004);
see also Lopez v. Smith, 574 U.S.___, 135 S.Ct. 1, 2
(2014) (per curiam) (“We have emphasized, time and time
again, that the AEDPA prohibits the federal courts of appeals
from relying on their own precedent to conclude that a
particular constitutional principle is ‘clearly
established.'” (citation omitted)).
decision constitutes an “unreasonable
application” of clearly established federal law if
“the state court identifies the correct governing legal
principle from [the Supreme] Court's decisions but
unreasonably applies that principle to the facts of the
prisoner's case.” Williams v. Taylor, 529
U.S. 362, 413 (2000); see also Pierre v. Vannoy, 891
F.3d 224, 227 (5th Cir. 2018) (a petitioner's lack of
“Supreme Court precedent to support” a ground for
habeas relief “ends [his] case” as to that
purposes of § 2254(d)(1), an unreasonable application of
federal law is different from an incorrect application of
federal law.... A state court's determination that a
claim lacks merit precludes federal habeas relief so long as
fairminded jurists could disagree on the correctness of the
state court's decision.” Harrington v.
Richter, 562 U.S. 86, 101 (2011) (citations and internal
quotation marks omitted). “Under § 2254(d), a
habeas court must determine what arguments or theories
supported or ... could have supported, the state court's
decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or
theories are inconsistent with the holding in a prior
decision of [the Supreme] Court.” Id. at 102
(internal quotation marks omitted); see Evans v.
Davis, 875 F.3d 210, 216 (5th Cir. 2017) (recognizing
that Section 2254(d) tasks courts “with considering not
only the arguments and theories the state habeas court
actually relied upon to reach its ultimate decision but also
all the arguments and theories it could have relied
upon” (citation omitted)).
Supreme Court has further explained that “[e]valuating
whether a rule application was unreasonable requires
considering the rule's specificity. The more general the
rule, the more leeway courts have in reaching outcomes in
case-by-case determinations.” Richter, 562
U.S. at 101 (internal quotation marks omitted). And
“even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.”
Id. at 102. The Supreme Court has explained that,
“[i]f this standard is difficult to meet, that is
because it was meant to be, ” where, “[a]s
amended by AEDPA, § 2254(d) stops short of imposing a
complete bar on federal court relitigation of claims already
rejected in state proceedings, ” but “[i]t
preserves authority to issue the writ in cases where there is
no possibility fairminded jurists could disagree that the
state court's decision conflicts with this Court's
precedents, ” and “[i]t goes no further.”
Id. Thus, “[a]s a condition for obtaining
habeas corpus from a federal court, a state prisoner must
show that the state court's ruling on the claim being
presented in federal court was so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Id. at 103; accord Burt ...