United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE
a state inmate proceeding pro se, filed this section
2254 habeas petition challenging his conviction and
sixty-year sentence for murder. Respondent filed a motion for
summary judgment (Docket Entry No. 16) on April 22, 2019, and
served a copy of the motion on petitioner at his address of
record that same date. Despite expiration of a reasonable
period of time of sixty days, petitioner has failed to
respond to the motion for summary judgment and the motion is
on consideration of the pleadings, the motion, the record,
and the applicable law, the Court GRANTS the
motion for summary judgment and DISMISSES
this case for the reasons shown below.
BACKGROUND AND CLAIMS
found petitioner guilty of murder in Harris County, Texas,
and assessed punishment at sixty years' incarceration on
Jure 21, 2013. The conviction was affirmed on appeal.
Ware v. State, No. 01-13-00545-CR, 2014 WL 4952432
(Tex. App.-Houston [1st Dist.] Oct. 2, 2014, pet. ref d). The
Texas Court of Criminal Appeals refused petitioner's
petition for discretionary review ("PDR") on
January 14, 2015, and denied his application for state habeas
relief on September 19, 2018. Petitioner filed the instant
federal habeas petition on or about September 21, 2018.
raises the following grounds for federal habeas relief:
Trial counsel provided ineffective assistance.
Appellate counsel rendered ineffective assistance in:
a. failing to challenge the sufficiency of the evidence;
b. failing to notify him timely that his PDR was refused;
c. failing to challenge in the PDR the denial of his motion
to suppress; and
d. raising only one, frivolous claim on appeal.
trial court erred in:
a. denying his motion to suppress;
b. denying his motion for mistrial; and
c. overruling his objections to the admission of
unauthenticated crime scene photos.
State committed prosecutorial misconduct by suggesting to the
jury that his co-defendant had not received a deal in
exchange for his testimony.
argues that these claims are without merit and should be
intermediate state court of appeals set forth the following
statement of facts in its opinion affirming petitioner's
Peggy Ariza and her son, Edward Hernandez, were involved with
the sale of marijuana out of Ariza's home. Appellant,
along with three other men, went to Ariza's home with the
intent of robbing her and Hernandez. Once at the home,
Appellant shot and killed Ariza The jury found Appellant
guilty of felony murder.
When the punishment phase of the trial began, the State did
not make an opening statement. It re-offered all of:he
evidence that it had offered in the guilt-innocence phase and
called seven witnesses to testify.
After the State rested, Appellant requested to make an
opening statement before presenting his punishment evidence.
The trial court denied Appellant's request to make an
opening statement. Appellant presented two witnesses during
the punishment phase: himself and his mother.
The testimony of Appellant's mother, Cheryl, indicated
that Appellant had been a well-behaved child and a good
student while growing up. Cheryl's testimony also
indicated that Appellant was raised in a stable home with a
supportive family. She testified that Appellant had ...