United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller Senior United States District Judge
Petitioner, a state inmate proceeding pro se, filed
this section 2254 habeas lawsuit challenging his conviction
for aggravated sexual assault of a child. Respondent filed a
motion for summary judgment. (Docket Entry No. 17). The Court
served petitioner a copy of the motion at his address on
record on February 19, 2019. Despite expiration of a
reasonable period of time in excess of eighty-five days,
petitioner failed to file a response to the motion, and the
motion is uncontested.
considered the motion, the pleadings, the record, and the
applicable law, the Court GRANTS the motion for summary
judgment and DISMISSES this lawsuit for the reasons explained
Petitioner was convicted of aggravated sexual assault of a
child in 2007 and sentenced to life imprisonment. The
conviction was affirmed on appeal in 2009, Rangel v.
State, No. 10-07-00247-CR, 2009 WL 540780 (Tex.
App.-Waco 2009, pet. ref'd), and the Texas Court of
Criminal Appeals refused discretionary review on June 3,
2009. Petitioner's petition for writ of certiorari was
denied by the United States Supreme Court on October 13,
2009. Rangel v. Texas, 558 U.S. 952 (2009).
application for state habeas relief, filed with the state
trial court in September 2010, was denied by the Texas Court
of Criminal Appeals on June 13, 2018. Petitioner filed the
instant federal habeas petition no earlier than June 25,
2018. Despite the passage of eleven years between
petitioner's conviction and his instant petition, this
federal petition appears timely filed.
raises the following grounds for federal habeas relief:
(1) His confrontation rights were violated because a DNA
analyst testified and read directly from a lab report
prepared by a different DNA analyst.
(2) Trial counsel was ineffective in failing to
(a) investigate and object to evidence of a diaper and trash;
(b) object to irrelevant physical evidence of
petitioner's shirt and pants; and
(c) object to the prosecutor's improper closing
(3) The State failed to disclose or give proper notice of its
blood splatter expert witness.
argues that petitioner's claims should be summarily
dismissed as they are without merit.
intermediate state court of appeals set forth the following
statements of fact in its opinion affirming petitioner's
Inez, the grandmother of 13-month-old E.A., [the female
complainant], and the person paying the apartment's rent,
found her in the early afternoon on a bed naked, unconscious,
and bleeding vaginally. Rangel, who stayed overnight in the
apartment a couple of nights a week with E.A.'s mother,
was asleep on the bedroom floor with his belt buckle undone
after being out all night with E.A.'s mother, whom Inez
had taken to work early that morning. Inez relayed that
information to her employer, who relayed it to the police
just before they entered the apartment and found Rangel still
* * * *
[Inez] woke Rangel up and asked him what he had done. Rangel
told [Inez] that he had not done anything and he
“passed out” asleep.
[Inez] stated that she picked the victim up and drove to St.
Joseph Hospital for medical treatment. When she arrived at
the scene she told the medical staff there what had happened
and one of the nurses in the emergency room called 911.
Detective Loup learned from medical personnel that the victim
had trauma and bleeding to her vagina, her left leg was
broken, she had a fractured skull, and bruising to her face,
foot, and hand. The victim was treated and later taken to
Scott White Hospital in Temple Texas by Life-Flight.
* * * *
The jury heard that Inez found E.A. on the bed, bleeding and
unconscious, with Rangel asleep on the floor with his belt
unbuckled, zipper down, and the front of his pants wet. Blood
on Rangel's pants belonged to E.A., and DNA on a diaper
suspiciously discovered the next day in the same bedroom
belonged to both E.A. and Rangel. E.A. suffered severe
injuries, including multiple bruises and abrasions, multiple
skull fractures, a fractured femur, and a vaginal laceration.
In his post-arrest statement to Detective Loup, Rangel
admitted to drinking beer and ingesting cocaine the night
Rangel, at *2-5.
Applicable Legal Standards
petition is governed by the applicable provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). 28 U .S.C. § 2254. Under the AEDPA, federal
habeas relief cannot be granted on legal issues adjudicated
on the merits in state court unless the state adjudication
was contrary to clearly established federal law as determined
by the Supreme Court, or involved an unreasonable application
of clearly established federal law as determined by the
Supreme Court. Harrington v. Richter, 562 U.S. 86,
98-99 (2011); Williams v. Taylor, 529 U.S. 362,
404-05 (2000); 28 U.S.C. §§ 2254(d)(1), (2). A
state court decision is contrary to federal precedent if it
applies a rule that contradicts the governing law set forth
by the Supreme Court, or if it confronts a set of facts that
are materially indistinguishable from such a decision and
arrives at a result different from the Supreme Court's
precedent. Early v. Packer, 537 U.S. 3, 7-8 (2002).
court unreasonably applies Supreme Court precedent if it
unreasonably applies the correct legal rule to the facts of a
particular case, or unreasonably extends a legal principle
from Supreme Court precedent to a new context where it should
not apply, or unreasonably refuses to extend that principle
to a new context where it should apply. Williams,
529 U.S. at 409. In deciding whether a state court's
application was unreasonable, this Court considers whether
the application was objectively unreasonable. Id. at
411. “It bears repeating that even a strong case for