Baldera v. Davis
| Decision Date | 30 March 2021 |
| Docket Number | CIVIL ACTION NO. 6:19-cv-00043 |
| Parties | JOHNNY BALDERA, JR., Petitioner, v. LORIE DAVIS, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
Pending before the Court is the Memorandum and Recommendation ("M&R") signed by Magistrate Judge Jason B. Libby on August 18, 2020. (Dkt. No. 26). In the M&R, Magistrate Judge Libby recommended granting Respondent Lorie Davis's ("Davis") Motion for Summary Judgment and dismissing as meritless Petitioner Johnny Baldera, Jr.'s ("Baldera") Petition for Writ of Habeas Corpus ("Petition") pursuant to 28 U.S.C. § 2254. (Id. at 1, 16).
Baldera was provided proper notice and the opportunity to object to the proposed findings and recommendations. See 28 U.S.C. § 636(b)(1); General Order No. 2002-13, art. IV. He filed timely objections. (Dkt. No. 30). As a result, the Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) (C).
The Court has conducted de novo review of the M&R, the objections, the record, and the applicable law. After careful review, the M&R is ACCEPTED as this Court's Memorandum and Order. The Motion for Summary Judgment is GRANTED. Accordingly, the Court DISMISSES Baldera's Petition.
Baldera was indicted for continuous sexual abuse of a child, which the Texas Penal Code classifies as a first-degree felony. (Dkt. No. 16-5 at 2). At trial, three witnesses testified against Baldera: (1) J.V., a minor who testified Baldera touched her private parts while her mother was away at work; (2) D.A., another minor who testified Baldera did the same to her while her mother was also away working; and (3) Kevin Charles Johnson ("Johnson"), an inmate at the Calhoun County Jail who testified Baldera asked him to lie and testify for his defense. (Id. at 2-3). On May 3, 2017, a jury convicted Baldera of a lesser-included offense of indecency with a child by contact. (Id. at 3.)
Baldera appealed, alleging error in the jury charge because the trial court allegedly failed to instruct the jury that Baldera could not be convicted solely on Johnson's testimony.1 (Id. at 5). The Thirteenth Court of Appeals affirmed his conviction and sentence on August 23, 2018. (Id. at 2). Baldera's petition for discretionary review ("PDR") was subsequently denied by the Texas Court of Criminal Appeals ("TCCA"). (Dkt. No. 16-8); see Baldera v. State, No. 13-17-00338-CR, 2018 WL 4016776, (Tex. App. - Corpus Christi-Edinburg, Aug. 23, 2018, pet. ref'd) ("Discretionary Review Refused January 30, 2019"). On February 21, 2019, Baldera applied to the TCCA for a writ of habeas corpus, claiming (1) the trial court lacked jurisdiction; (2) actual innocence; (3) prosecutorial misconduct due to the prosecution's use of perjured testimony and inadmissible evidence; (4) ineffective assistance of counsel; and (5) abuse of discretion by the trialcourt. (Dkt. No. 16-29 at 9-19). The TCCA denied the application without written order on May 8, 2019 with a single judge signing the order. (Dkt. No. 16-22).
On May 21, 2019, Baldera filed the instant Petition in which he restates the claims from his unsuccessful state writ. (Dkt. No. 1 at 7-11; Dkt. No. 1-1). Davis filed a Motion for Summary Judgment with Brief in Support on October 18, 2019. (Dkt. No. 15). In return, Baldera filed a Response on November 18, 2019. (Dkt. No. 21). The action was reassigned to this Court on July 6, 2020, (Dkt. No. 23), and was referred to Magistrate Judge Libby on July 23, 2020, (Dkt. No. 24). On August 18, 2020, Magistrate Judge Libby recommended denying Baldera's Petition. (Dkt. No. 26). Baldera timely filed his objections on September 16, 2020.2 (Dkt. No. 30).
When a party objects to part of a magistrate judge's recommendation, a district court must conduct a de novo review. 28 U.S.C. § 636(b)(1)(C). A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge," and "may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id. Relevant here, "[a] document filed pro se is to be liberally construed," and "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007) (internal quotation omitted).
Summary judgment is appropriate when there is "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "A material fact is one that might affect the outcome of the suit under governing law," and "a fact issue is genuineif the evidence is such that a reasonable jury could return a verdict for the non-moving party." Renwick v. PNK Lake Charles, L.L.C., 901 F.3d 605, 611 (5th Cir. 2018) (quotations omitted). The moving party "always bears the initial responsibility of informing the district court of the basis for its motion," and identifying the record evidence "which it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2253, 91 L.Ed.2d 265 (1986). "If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant's response." United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam)).
If the movant meets this burden, the nonmovant must then come forward with specific facts showing there is a genuine issue for trial. FED. R. CIV. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The nonmovant must "go beyond the pleadings and by [the nonmovant's] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Nola Spice Designs, LLC v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015) (quoting EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014)). "The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party's claim." Johnson v. Deep E. Texas Reg'l Narcotics Trafficking Task Force, 379 F.3d 293, 301 (5th Cir. 2004). "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The nonmovant's burden "will not be satisfied by 'some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.'" Boudreaux v. Swift Transp. Co.,402 F.3d 536, 540 (5th Cir. 2005) (quoting Little, 37 F.3d at 1075). Hearsay evidence and unsworn documents that cannot be presented in a form that would be admissible in evidence at trial do not qualify as competent opposing evidence. FED. R. CIV. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). For evidence to be admitted, the materials "need only be capable of being 'presented in a form that would be admissible in evidence.'" LSR Consulting, LLC v. Wells Fargo Bank, N.A., 835 F.3d 530, 534 (5th Cir. 2016) (emphasis in original) (quoting FED. R. CIV. P. 56(c)(2)).
In reviewing a motion for summary judgment, the district court must view the evidence in a light most favorable to the nonmovant. Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). This rule means that factual controversies are to be resolved in the nonmovant's favor, "but only when . . . both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075. The Court is not obligated to search the record on the nonmovant's behalf for evidence which may raise a fact issue. Topalian v. Ehrman, 954 F.2d 1125, 1137 n.30 (5th Cir. 1992).
If a state prisoner has presented his federal constitutional claims to the state courts in a procedurally proper manner and the state courts have adjudicated their merits, the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides for a deferential federal review. "[T]ime and again," the Supreme Court "has instructed that AEDPA, by setting forth necessary predicates before state-court judgments may be set aside, 'erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court.'" White v. Wheeler, 577 U.S. 73, 76-77, 136 S.Ct. 456, 460, 193 L.Ed.2d 384 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 19, 134 S.Ct. 10, 16, 187 L.Ed.2d 348 (2013)). Under AEDPA's rigorous standard of review, a petitioner may secure federal habeas relief only after showing that the state court's rejection ofhis claim was either (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
Petitioners arguing legal error in state court decisions must comply with Section 2254(d)(1)'s "contrary to" and "unreasonable application" clauses. See Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 1850, 152 L.Ed.2d 914 (2002). "A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts." Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010) (...
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