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Sanchez v. Davis

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

September 12, 2019

ABEL JAIMES SANCHEZ, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          REPORT & RECOMMENDATION

          Juan F. Alanis United States Magistrate Judge.

         Petitioner, Mr. Abel Jaimes Sanchez, a state prisoner proceeding pro se, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 2.) This case was referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b). On August 8, 2019, Respondent filed a Motion for Summary Judgment in response to Petitioner's writ. (Dkt. No. 8.) After a careful review of the record and relevant law, and for reasons set forth below, the undersigned recommends that Respondent's Motion for Summary Judgment (Dkt. No. 8) be GRANTED and that Petitioner's § 2254 petition (Dkt. No. 2) be DENIED. It is further recommended that Petitioner's § 2254 petition (Dkt. No. 2) be DISMISSED. Finally, Petitioner's § 2254 case should be closed.

         It is further recommended that the District Court DECLINE to issue a certificate of appealability in this matter.

         BACKGROUND

         I. Procedural History

         On July 30, 2014, a grand jury in Hidalgo, Texas charged Petitioner by indictment of intentionally or knowingly causing the death of an individual. (Dkt. No. 9-10 at 19.)[1] On September 8, 2015, Petitioner pleaded guilty to murder pursuant to a plea agreement in the 389th Judicial District Court of Hidalgo County, Texas. (Dkt. No. 2 at 2-3; Dkt. No. 9-12 at 80-82.) Petitioner was sentenced to 45 years of imprisonment. (Dkt. No. 9-12 at 80-82.) Petitioner did not file a direct appeal. (Dkt. No. 1 at 3.)

         On April 25, 2016, Petitioner filed a state application for writ of habeas corpus.[2] (Dkt. No. 9-14 at 31-49.) In his state application, Petitioner claimed that (1) defense counsel coerced Petitioner to plead guilty and was generally ineffective in preparing for trial; (2) his due process rights were violated when witnesses were coerced not to testify and help prove Petitioner's innocence; (3) his due process rights were violated when evidence of his innocence was destroyed; and (4) his due process rights were violated when he was charged with murder instead of manslaughter. (Id. at 36-43.) On October 5, 2016, the Court of Criminal Appeals ordered the trial court to gather additional facts concerning Petitioner's ineffective assistance of counsel claim. (Dkt. No. 9-16 at 1-3.) The 389th Judicial District Court ordered defense counsel to respond to Petitioner's claim of ineffective assistance of counsel on January 24, 2017. (Dkt. No. 9-7 at 7.) On February 8, 2017, Petitioner's trial counsel submitted an affidavit responding to Petitioner's claims. (Dkt. No. 9-7 at 15-16.) On March 23, 2017, trial counsel filed a supplemental affidavit in response to Petitioner's claims. (Dkt. No. 9-9 at 18-24.) On March 24, 2017, the trial court entered an order with additional findings of fact and conclusions of law. (Dkt. No. 9-9 at 32-36.) On March 29, 2017, Petitioner's application was denied without written order. (Dkt. No. 9-1.) Petitioner filed a motion for rehearing on May 5, 2017, which was subsequently denied on May 10, 2017. (Dkt. No. 9-4 at 1.)

         On August 28, 2017, Petitioner filed an original petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the Southern District of Texas, McAllen Division. A Report and Recommendation was filed on July 15, 2018, recommending that Petitioner's initial § 2254 petition be denied and dismissed with prejudice. Sanchez v. Davis, 2018 WL 4691588, at *1 (S.D. Tex. July 15, 2018).

         Within the Report and Recommendation, Petitioner's claims were construed as follows:

(1) trial counsel was ineffective for failing to investigate a second ballistics report;
(2) Petitioner's plea was not knowing, voluntary, or intelligent;
(3) trial counsel was ineffective for failing to hire an expert witness to refute the state's pathology report;
(4) trial counsel was ineffective for failing to interview a key witness; and (5) the trial court denied his request for new counsel.

Id. at *2. The Report and Recommendation was adopted on September 28, 2018, Sanchez v. Davis, 2018 WL 4680600 (S.D. Tex. Sept. 28, 2018). Petitioner appealed and the Fifth Circuit dismissed the appeal for untimely filing a notice of appeal. Sanchez v. Davis, 2018 WL 8367912 (5th Cir. Dec. 20, 2018).

         Petitioner filed the instant § 2254 petition on May 21, 2019. (Dkt. No. 2 at 9.)

         II. Summary of the Pleadings

         Petitioner raises four claims pertaining to his murder conviction out of the 389th Judicial District Court, Hidalgo County, Texas. Petitioner claims the following:

(1) the court refused to recognize his rights as a citizen of Mexico;
(2) counsel was ineffective for failing to retain an expert to refute ...

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