United States District Court, W.D. Texas, El Paso Division
PATRICIO ALEJANDRO CASTANEDA, TDCJ No. 1978092, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
MEMORANDUM OPINION AND ORDER
MONTALVO, UNITED STATES DISTRICT JUDGE.
Alejandro Castaneda petitions the Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Pet'r's
Pet., ECF No. 1-1. Castaneda challenges Respondent Lorie
Davis's custody over him based on his conviction for
assault on a public servant in El Paso, Texas. For the
reasons discussed below, the Court will, on its own motion,
dismiss Castaneda's petition. The Court will additionally
deny him a certificate of appeal ability.
AND PROCEDURAL HISTORY
jury indicted Castaneda for assault on a public servant, in
violation of Texas Penal Code §§ 22.01(a)(1) and
(b)(1). Castaneda v. Davis, EP-18-CV-181-FM,
Clerk's R. (Cause Number 20100D04935, 41st Judicial
District Court, El Paso County, Texas), p. 7 (Indictment),
ECF No. 31-11. With the indictment, the State filed notice it
would seek an enhanced punishment based on Castaneda's
prior convictions for importing marijuana, in violation of 21
U.S.C. § 952, in United States v. Castaneda,
EP-97-CR-825-H-1 (W.D. Tex. Mar. 16, 1998), and misprision of
a felony, in violation of 18 U.S.C. § 4, in United
States v. Castaneda, EP-03-CR-317-KC-2 (W.D. Tex. Mar.
1, 2010). Id. pp. 28-29, 134-35, 142-43-(Notice of
Enhancement and Habituation), ECF No. 31-11. Castaneda
pleaded not guilty, waived his right to a jury, and appeared
before the trial court for trial.
Castaneda's bench trial, the State called two witnesses:
the victim, Officer Miguel Garza, and the victim's
supervisor, Corporal Frank Hernandez. Garza testified he
worked as a corrections officer at the El Paso County Jail
Annex on October 3, 2010. See Castaneda v. State,
08-14-00192-CR, 2016 WL 4447576, at *1-*2 (Tex. App.-El Paso
Aug. 24, 2016, pet. ref d). He decided to write up Castaneda
for crossing a yellow line and banging on a guard station
window because he wanted a wrist band for commissary
privileges. Garza also claimed Castaneda threatened him by
saying "[w]hen I see you out there, I'm going to f-k
you up." Garza said he attempted to handcuff Castaneda,
but Castaneda resisted. Garza reported Castaneda turned
around and hit him on his upper right side with his left
forearm. Garza added he subsequently gained control of
Castaneda with Hernandez's help and placed Castaneda in a
cell for violent prisoners. Hernandez testified he saw Garza
scuffle with Castaneda. Hernandez specifically recalled
observing Garza's body move upward, as if he had been
hit, during the interaction.
was found guilty as charged on June 25, 2014. Castaneda
v. Davis, EP-18-CV-181-FM, Clerk's R., p. 171 (J. of
Conviction by Court-Waiver of Trial), ECF No. 31-11.
Castaneda pleaded true to the two enhancements during the
sentencing phase of his trial. Castaneda was sentenced to
twenty-five years in the custody of the Texas Department of
appeal, Castaneda complained (1) the evidence was legally
insufficient to support his conviction, and (2) he was denied
the effective assistance of counsel at the guilt/innocence
phase of his bench trial. Castaneda maintained his trial
counsel failed to advocate for him at trial; present a
justification defense; argue for a lesser-included offense;
or adequately present a closing argument. The Eighth Court of
Appeals in El Paso overruled Castaneda's objections and
affirmed his conviction and sentence on August 24, 2016.
Castaneda, 2016 WL 4447576, at *2-8.
raised three issues in his state application for a writ of
habeas corpus. Castaneda v. Davis, EP-18-CV-181-FM,
WR-87, 643-01, (Appl. for Writ of Habeas Corpus, Oct. 17,
2017), ECF No. 31 -20. First, he claimed the judgment was
void because the notice of enhancement and habituation
mischaracterized his prior federal conviction for misprision
of a felony as a felony. Id. at 1. Second, he
maintained the trial court could not, under Texas law, use
his prior federal convictions to enhance his state sentence.
Id., at p. 3. Finally, he asserted his counsel
provided ineffective assistance by failing to investigate his
criminal history and file appropriate motions based on the
illegal sentencing enhancements. Id., at p. 5. The
Texas Court of Criminal Appeals denied his application
without a written order on January 3, 2018. Id., p.
1 (Action Taken, Jan. 3, 2018), ECF No. 31-16.
raised five grounds for relief in a prior § 2254
petition attacking the same conviction filed on May 21, 2018.
Id., Pet'r's Pet., pp. 6-7, ECF No. 3.
First, he claimed the judgment was void because the notice of
enhancement and habituation mischaracterized his prior
federal conviction for misprision of a felony as a felony.
Second, he maintained his counsel provided ineffective
assistance by failing to investigate his criminal history and
file appropriate motions based on the illegal sentencing
enhancements. Third, he asserted his counsel provided
ineffective assistance by not challenging the legal
sufficiency of the evidence. Fourth, he argued he was
ineligible to receive the twenty-five-year sentence because
the State mischaracterized his prior misdemeanor conviction
for misprision of a felony. Finally, he insisted the
indictment was flawed because it mischaracterized his prior
conviction for misprision of a felony as a felony, and
because his prior conviction for importation of marijuana
could not be used for an enhancement of his state sentence.
Court denied Castaneda's first two claims on the merits
on July 24, 2019. Id., Mem. Op. & Order, pp.
6-10, ECF No. 34. The Court dismissed his remaining claims
because he failed to exhaust them in state court.
Id. at pp. 10-11.
new § 2254 petition received on December 6, 2019
Castaneda asserts seven claims. Pet'r's Pet., pp.
6-8, ECF No. 1-1. First, he avers his right to counsel was
effectively denied in his initial-review-collateral
proceeding. Second, he asserts his counsel provided
ineffective assistance when he failed to argue for a lesser
sentence. Third, he contends he was subjected to double
jeopardy because-due to the sentence enhancements-he was
effectively punished twice for his federal offenses. Fourth,
he maintains he was subjected to cruel and unusual punishment
due to the excessive length of his sentence. Fifth, he
contends the State violated his due process rights by
sentencing him to twenty-five years in prison. Sixth, he
asserts his counsel provided ineffective assistance when he
failed to challenge the two witnesses for the prosecution at
his trial. Finally, he claims his trial counsel was
ineffective by failing to fight the State's error in
mischaracterizing misprision of a felony as a felony for
enhancement purposes. He asks the Court to reverse his
enacted the Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (April 24,
1996), in part to make it "significantly harder for
prisoners filing second or successive federal habeas
applications under 28 U.S.C. § 2254 to obtain hearings
on the merits of their claims." Graham v.
Johnson, 168 F.3d 762, 772 (5th Cir. 1999). The AEDPA
requires dismissal of a second or successive petition filed
by a state prisoner under § 2254 unless "the claim
relies on a new rule of constitutional law ... or ... the
factual predicate ... could not have been discovered
previously through the exercise of due diligence." 28
U.S.C. § 2244(b)(2). More importantly, the AEDPA bars a
district court from considering a second or successive
petition unless the petitioner first moves "in the
appropriate court of appeals for an order authorizing the
district court to consider the application."
Id. § 2244(b)(3)(A); see also United States
v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (explaining
§ 2244(b)(3)(A) acts as a jurisdictional bar to a
district court asserting jurisdiction over any successive
habeas petition until a court of appeals grants the
petitioner permission to file one); Hooker v.
Sivley, 187 F.3d 680, 681-82 (5th Cir. 1999)
("[T]he district court lacked jurisdiction to construe
Hooker's petition as a § 2255 motion because he had
not received prior authorization from us to file a successive
§ 2255 motion.").
Congress did not define the phrase 'second or
successive,' ... the phrase does not simply 'refe[r]
to all section 2254 applications filed second or successively
in time.'" Magwood v. Patterson, 561 U.S.
320, 332 (2010). The Supreme Court permits a petitioner to
pursue another petition without prior authorization from a
court of appeals in three situations. First, a petitioner may
proceed when he raises a claim which was not ripe at the time
of his first application. Panetti v. Quarterman, 551
U.S. 930, 947 (2007). Second, a petitioner may proceed when
he raises a claim which was dismissed from his first
application as premature but is now ripe. Stewart v.
Martinez- Villareal,523 ...