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Zamora v. Davis

United States District Court, W.D. Texas, Austin Division

June 5, 2019

REYNALDO YBARRA ZAMORA, TDCJ No. 1989227, Petitioner,
v.
LORIE DAVIS, Respondent.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates.

         Petitioner, Reynaldo Zamora, is pro se in this matter and was granted leave to proceed in forma pauperis. Before the Court are Petitioner's Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 (ECF No. 1), Respondent's Answer (ECF No. 8), and Petitioner's Reply (ECF No. 12). For the reasons set forth below, the undersigned recommends that Petitioner's Application for Writ of Habeas Corpus be denied.

         STATEMENT OF THE CASE

         According to Respondent, the Director has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 22nd Judicial District Court of Hays County, Texas. A jury found Petitioner guilty of aggravated kidnapping, and the trial court assessed punishment at a term of sixty years confinement.

         A. Background

         The First Court of Appeals summarized the testimony presented at Petitioner's trial as follows:

In 1986, the complainant and a friend, both then girls under the age of ten, were walking down a street in Hays County, Texas. A white Corvette pulled up beside them, and the driver asked whether they knew the location of a mutual friend, Vera. The driver identified himself as “Ray Zamora” and claimed to be Vera's uncle. He asked the girls to help him find Vera, and they agreed. After driving around the town, he dropped the complainant's friend off at the same location where he had found them.
The complainant also attempted to leave the car, but Zamora pulled her by her hair and forced her to remain as he sped away. With one hand, Zamora grasped the complainant's chest under her shirt. With the other hand over her clothes, he touched and squeezed her vagina. Zamora then dropped the complainant off at her bus stop, and he threatened that if she told anyone anything about the incident he would “come back for” her. The complainant nonetheless informed the police.
Zamora was arrested. The complainant and her friend were able to identify his white Corvette as the same one that their kidnapper drove. While the girls initially had difficulty identifying a suspect, they each selected Zamora's photograph from a photo lineup.
Zamora posted bond and was released from jail. He later testified that shortly thereafter he was involved in a car accident and was in a coma for 52 days, which caused him to forget his arrest. Zamora failed to appear in court, and a new warrant was issued for his arrest.
Twenty-seven years later, in 2013, Zamora was arrested on the outstanding warrant in Hays County. He filed a motion to dismiss the 1986 kidnapping charges against him due to violation of his right to a speedy trial. Zamora claimed that he had been arrested several times between 1986 and 2013, including arrests in Maverick County, Travis County, and the Commonwealth of Kentucky. He argued that at no point during these arrests, some of which resulted in convictions and imprisonment in state custody, was he made aware of the ongoing charges against him in Hays County, nor was any attempt made to bring him to trial there.
During his arrest in Maverick County in 1992, Zamora was found with multiple sets of identification cards, some of which were in the name of “Enrique Mata Jimenez.” Zamora appeared on the Maverick County charges as Enrique Mata Jimenez, and he applied for counsel as an indigent under the same name. Zamora claimed that “Jimenez” was the name of his Mexican brother, and he gave an alternate spelling of his name (“Jimmenz”) when testifying in this case. At some point later, Zamora left custody without being paroled; an escape warrant from Maverick County identified his name as “Enrique Mata-Jimenez” but listed in the comments “Reynaldo Ybarra-Zamora.” Zamora claimed that he did not escape custody in Maverick County, but instead he was brought to the border as an illegal immigrant and told to return to Mexico.
In his motion to dismiss the kidnapping charges, Zamora noted a few specific incidents when he was in custody, and he contended that Hays County was negligent in bringing him to trial. First, in 2000, Zamora was incarcerated in Kentucky, due in part to the fugitive warrant from Hays County, which failed to extradite him. Second, Zamora was incarcerated on other charges in Maverick County in 2002, under the same name and date of birth as listed in the Hays County warrant. He was paroled in 2005. Third, in 2007, he was arrested in Austin. His parole on the Maverick County conviction was revoked in 2008, only for him to be paroled again in 2010.
Zamora alleged that his kidnapping defense would be prejudiced by the lack of a speedy trial because he would not be able to secure alibi evidence from two witnesses who had passed away. He specifically claimed that at the time he was alleged to have committed the kidnapping, he was working in Colorado with “Colonel Sanders” and “Dr. Darryl Havert.” Zamora testified that both of these witnesses passed away in 2007. He argued that because he and his brother, Enrique Mata Jimenez, looked alike, that Jimenez probably had committed the kidnapping while using his identity. He also claimed that no one knew where his brother was, and he was incapable of finding him. Zamora provided no other proof of these assertions beyond his testimony.
At the hearing on the motion to dismiss, the State presented evidence that Zamora had a history of using different aliases and dates of birth when in custody. In addition to his appearance as “Enrique Mata Jimenez, ” he would alternate between spelling his name as “Raynaldo” and “Reynaldo, ” switch his middle and last names, and give his date of birth as being in either 1954 or 1958.
The State stipulated that a number of items of evidence relating to the case were missing. These included items purchased from a gas station while Zamora was with the two girls, hair samples and fingerprints from the girls, the original fingerprint card taken from Zamora during the 1986 arrest, photos of the Corvette, hair samples taken from the Corvette, and the girls' original recorded statements. The State also conceded that the hair samples taken from the Corvette did not match the girls' samples, and thus was exculpatory evidence.
The trial court denied the motion to dismiss, and wrote on the docket sheet that the delay was attributable to Zamora's “own actions, lack of previous request for speedy trial” and that there was a “lack of prejudice” to him under the circumstances.
After Zamora's initial motion to dismiss but before voir dire, the State admitted that the Department of Criminal Justice Parole Division had sent a request to Hays County in 2010, asking about the status of the kidnapping cases. However, Hays County was unable to locate the file on the kidnapping charges, and at that time it was able to locate only the indictment, motion for continuance, and capias warrants. The State conceded that it was unable to replicate the file until 2013. Zamora asked the court to reconsider the motion for to dismiss, but the trial court once again denied the motion.
A jury convicted Zamora of aggravated kidnapping.[1] The court assessed punishment at 60 years' imprisonment. Zamora moved for a new trial, claiming that the trial court erred by denying his motion to dismiss for lack of a speedy trial. The motion was overruled by operation of law, and Zamora appealed.

Zamora v. State, No. 01-15-00367-CR, 2016 WL 3221150, at *1-2 (Tex. App.- Houston [1st Dist.]

         2016, pet. ref'd). On appeal Petitioner asserted his right to a speedy trial was violated. Id. The appellate court denied the claim on the merits, and the Court of Criminal Appeals denied a petition for discretionary review. (ECF No. 9-9). The United States Supreme Court denied Petitioner's petition for writ of certiorari on May 30, 2017. Zamora v. Texas, 137 S.Ct. 2196 (2017).

         Petitioner sought a state writ of habeas corpus, alleging he was denied the effective assistance of counsel (failed to investigate missing evidence regarding identity); counsel failed to investigate the State's “missing evidence” and move for a directed verdict on the basis of a Brady claim; the appellate court erred in denying his speedy trial claim; and he is actually innocent because the State lost exculpatory evidence. (ECF No. 9-32 at 50-54; ECF No. 9-33 at 1-8). The habeas trial court, which was also the convicting court, ...


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