United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. BENNETT, UNITED STATES DISTRICT JUDGE
Russi, a Texas state inmate, has filed a petition for a writ
of habeas corpus under 28 U.S.C. § 2254, to challenge
his 2014 state-court convictions for aggravated robbery and
aggravated assault. The respondent, Lorie Davis, has answered
with a motion for summary judgment, arguing that Russi is not
entitled to the relief he seeks. Russi has filed a response,
objecting to the respondent's arguments and requesting an
on careful consideration of the pleadings, the motions, the
record, and the applicable law, this Court finds that there
are no genuine factual disputes material to deciding the
claims and that the respondent is entitled to summary
judgment as a matter of law. The reasons are explained below.
Procedural Background and Claims
is in custody of the Texas Department of Criminal Justice -
Correctional Institutions Division (TDCJ) as the result of
state-court felony convictions for aggravated robbery with a
deadly weapon and aggravated assault with a deadly weapon in
Harris County Cause Numbers 1307885 and 1307886. On May 7,
2014, following a jury trial, the jury sentenced Russi to a
60-year prison term for the aggravated robbery offense and a
20-year prison term for the aggravated assault offense, to
run concurrently. Russi filed a motion for new trial, which
the court denied after a hearing.
Fourteenth Court of Appeals of Texas affirmed Russi's
convictions on direct appeal. Russi v. State, Nos.
14-14-00397-CR, 14-14-00398-CR, 2016 WL 1444040 (Tex.
App.-Houston [14th Dist.] April 12, 2016). The Texas Court of
Criminal Appeals refused discretionary review. Russi v.
State, Nos. PD-0527-16, PD-0528-16. (Tex. Crim. App.
Oct. 19, 2016).
filed applications for a state writ of habeas corpus under
Article 11.07 of the Texas Code of Criminal Procedure,
challenging his convictions. On June 6, 2018, the Court of
Criminal Appeals denied the applications without a written
order. Ex parte Russi, Application Nos. 88, 442-01
federal habeas petition, executed on March 4, 2018, Russi
raises the following grounds for federal habeas relief:
1. The trial court erred in denying Russi's motion for
new trial when trial counsel failed to call a readily
available alibi witness.
2. Trial counsel rendered ineffective assistance because he
failed to object to impermissible judicial comment on the
weight of the evidence during jury deliberations.
3. Appellate counsel rendered ineffective assistance because
he failed to request a rehearing on the ground that the
appellate court applied the wrong standard of
claim and argument is analyzed against the record and the
applicable legal standards.
statement of facts is taken from the Texas Court of Appeals
opinion affirming Russi's convictions.
According to the State's evidence, around 5:30 a.m. on
May 25, 2011, appellant approached Zoila Quintanilla's
vehicle as she was pulling into her driveway. Appellant had a
gun and pulled Zoila out of the vehicle. She began screaming
for help, and her brother, husband, and son came out of the
house. Zoila's husband, Pedro German, pulled appellant
out of the vehicle, and appellant fled on foot. German got
into the driver's seat, Isaias Quintanilla, Zoila's
brother, got into the passenger seat, and Sergio Zacarias,
Zoila's son, got into the backseat. They followed
appellant and spotted him hiding in some brush near their
home. As they drove up, appellant came out of the brush,
grabbed onto the vehicle, and fired multiple shots, striking
Isaias once in the forehead.
Then, appellant crossed the street, and German again followed
him. While Zacarias ran home to call the police, German
attempted to stop appellant, but he ran away. After the
police arrived at the scene and Isaias was taken away in an
ambulance, a forensic sketch artist met with Zoila, German,
and Zacarias separately. The police then canvassed the
neighborhood with the resulting sketch, receiving tips that
led them to the apartment complex where appellant resided.
Once the police had identified appellant as a suspect, they
placed his photo into a photo lineup. When presented with the
photo lineup separately on the day after the incident, Zoila
and German each positively identified appellant, and Zacarias
tentatively identified appellant.
Isaias survived his wound but suffered severe, and likely
permanent, injuries. At trial, Zoila, Zacarias, and German
described the event, again identifying appellant. Appellant
called Carlesha Rossi, appellant's sister, as his sole
witness. Rossi testified that at the time of the charged
offenses, appellant was at Rossi's apartment.
A jury convicted appellant of both aggravated robbery and
aggravated assault. The jury assessed punishment at sixty
years' confinement for aggravated robbery, twenty
years' confinement for aggravated assault, and a $10, 000
Appellant filed a motion for new trial arguing, among other
things, that he received ineffective assistance of counsel.
The trial court held a hearing and denied appellant's
motion for new trial.
Russi, 2016 WL 1444040, at *1.
The 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 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.
"It bears repeating that even a strong case for relief
does not mean the state court's contrary conclusion was
unreasonable." Richter, 562 U.S. at 102. As
stated by the Supreme Court in Richter,
If this standard is difficult to meet, that is because it was
meant to be. As amended by AEDPA, § 2254(d) stops short
of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings. It 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. It goes no farther. Section 2254(d) reflects the
view that habeas corpus is a "guard against extreme
malfunctions in the state criminal justice systems," not
a substitute for ordinary error correction through appeal.
Id. at 102-03 (emphasis added; internal citations
affords deference to a state court's resolution of
factual issues. Under 28 U.S.C. § 2254(d)(2), a decision
adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual
grounds unless it is objectively unreasonable in light of the
evidence presented in the state court proceeding.
Miller-El v. Cockrell,537 U.S. 322, 343 (2003). A
federal habeas court must presume the underlying factual
determination of the state court to be correct, unless the
petitioner rebuts the presumption of correctness by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1);
seealso Miller-El, 537 U.S. at 330-31.