Cantu v. Lumpkin
| Decision Date | 06 July 2021 |
| Docket Number | Civil Action 7:20-CV-0167 |
| Parties | CARLOS GUADALUPE CANTU, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
J. SCOTT HACKER United States Magistrate Judge
Petitioner CARLOS GUADALUPE CANTU, a state prisoner proceeding pro se initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. No. 1). Petitioner is serving sentences of life imprisonment and 99 years' imprisonment following respective convictions by jury of capital murder and attempted capital murder in the 389th District Court of Hidalgo County, Texas. These convictions were affirmed on direct appeal to the Thirteenth Court of Appeals of Texas (the "Appeals Court") and on state collateral review by the Texas Court of Criminal Appeals (the "TCCA"). Now, seeking federal habeas review Petitioner raises several claims for relief from the convictions, including claims of governmental misconduct prosecutorial misconduct, double jeopardy, an unconstitutional identification procedure, unconstitutional pre-trial delay, multiple claims of ineffective assistance of counsel at trial and on appeal, and insufficient evidence to support the conviction. (Id. at 7-16).
Respondent has since made an appearance and filed a Motion for Summary Judgment (the "Summary Judgment Motion") (Dkt. No. 8) together with an electronic copy of the state court record (Dkt. No. 9).[1] Respondent seeks the dismissal of the Petition on the grounds that Petitioner's claims are either not cognizable on federal habeas review or are otherwise without merit. (Dkt. No. 8 at 11-43). Petitioner has submitted a response in opposition. (Dkt. No. 10).
This case was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1). After review of the record and relevant law, the undersigned respectfully RECOMMENDS that the Summary Judgment Motion (Dkt. No. 8) be GRANTED, that the Petition (Dkt. No. 1) be DENIED, and that this civil action be DISMISSED. The undersigned also RECOMMENDS that a Certificate of Appealability be DENIED.
Between the late hours of January 24, 2002 and the early hours of January 25, 2002, several men broke into the home of Juan and Soledad Viacobo in Donna, Texas (the "Viacobo Residence"). Cantu v. State, 2006 WL 3953398, at *l (Tex. App.-Corpus Christi Dec. 21, 2006, pet. ref d) (mem. op.). At the time, five of the Viacobos' eight children resided with them, including their sons Carlos and Julio. Id. Upon breaking into the Viacobo Residence, the intruders began firing their weapons and claiming to be the police. Id. The incident resulted in several of the Viacobos, including Julio, being injured either by gunshot wounds or by physical assault, and with the death of Carlos. Id. at *l, 5-6. Ruben Villarreal ("Villarreal"), one of the intruders, also received a gunshot wound. Id. at * 1.
One of the lead investigators of the incident was Officer Pablo Silva ("Officer Silva"), who was then-employed as a deputy sheriff and criminal investigator with the Hidalgo County Sheriffs Department. (Dkt. No. 9-23 at 14-15). On the morning after the incident, Officer Silva went to a hospital in-Mission, Texas, where Villarreal was being treated for his gunshot, and took Villarreal's written statement. (Id. at 17-18; Dkt. No. 9-27 at 53-54). In the written statement, Villarreal provided the names of the other intruders, including that of'"El Pio' (Carlos)." (Dkt. No. 9-31 at 294). Officer Silva then went to McAllen Medical Center, where he took statements from the Viacobo family. (Dkt. No. 9-23 at 17-18, 21). Based on this investigation, along with further investigations carried out by other officials, Petitioner was identified as a suspect. (Id. at 19).
On January 30, 2002, an arrest warrant for capital murder was issued for Petitioner. (Dkt. No. 9-19 at 31-32).
Around three weeks after the incident, Officer Silva met with Jaime Viacobo, one of the Viacobo children, and his wife, Mariana Martinez ("Martinez") (Dkt. No. 9-26 at 33), both of whom lived in a travel trailer next to the Viacobo Residence and witnessed the break-in (id. at 3 8). Jaime and Martinez each identified Petitioner as one of the intruders. (Id. at 35).
On September 5, 2003, Petitioner was arrested on the arrest warrant for capital murder during a traffic stop. (Dkt. No. 9-27 at 42).
On October 29, 2003, Petitioner was charged by indictment with one count of capital murder and one count of attempted capital murder. (Dkt. No. 9-19 at 8-9). His trial began on July 13, 2004. (Dkt. No. 9-20 at 318). The State called the following pertinent witnesses: Villarreal; Jaime Viacobo; Martinez; Officer Silva; an Investigator Ricardo Arredondo ("Investigator Arredondo"), who conducted Petitioner's arrest; and two forensic analysts with the Texas Department of Public Safety Crime Laboratory (the "TDPS Crime Laboratory"). Generally, through cross-examination, the defense tried to raise a reasonable doubt as to Petitioner's identity as one of the intruders at the Viacobo Residence.
Villarreal testified that on January 24, 2002 he and Petitioner were invited to travel with several individuals in a pickup truck to Donna. (Dkt. No. 9-27 at 45). He further testified that he did not initially know the purpose of the trip. (Id.). Villarreal, Petitioner, and the others eventually arrived at the Viacobo Residence where they were met by two other individuals. (Id.). Villarreal stated that he was armed and that each of the other men, excepting Petitioner, was also armed. (Id.). Villarreal testified that he entered the Viacobo Residence and was subsequently shot with his own weapon. (Id. at 46). He eventually made it back to the truck but did not know how he did so. (Id.). Defense counsel cross-examined Villarreal concerning the written statement he gave to Officer Silva. (Id. at 53). Through the written statement, Villarreal indicated that he knew the purpose of the trip was to commit a robbery and that he was shot while "getting off' the truck, not while he was inside the Viacobo Residence. (See Id. at 53-54).
Jaime Viacobo testified that he was awoken on the morning of the incident by Martinez, who told him that several men had pulled up to the Viacobo Residence in a pickup truck. (Dkt. No. 9-26 at 39). Jaime stated that he saw a man, later identified as Villarreal, carrying a rifle. (Id.). Arming himself with two knives from his kitchen, Jaime then entered the Viacobo Residence. (Id.). Once inside, he saw a man with a light complexion who was wearing a blue-and-white flannel jacket and holding a gun. (Id. at 40). Jaime identified the man as Petitioner. (Id.). According to Jaime, "he was able to see [Petitioner] even though it was dark in the house because his mom had three candles lit on the stove and the light from two light poles outside shed light inside the house." Cantu, 2006 WL 3953398, at *5. Jaime testified that "he recognized [Petitioner] because he saw his face and because of [Petitioner's] jacket and light skin color." Id.
Martinez testified to observing the intruders standing outside of the pickup truck before entering the Viacobo Residence. (Dkt. No. 9-27 at 28). According to Martinez, she was able to see Petitioner's face with light coming from a nearby lamp pole. Cantu, 2006 WL 3953398, at *5. Martinez testified that three of the men, including Petitioner, waited at the pickup truck for a few moments before Petitioner ran to a nearby carport and the two other men ran toward the Viacobo Residence's patio. (Dkt. No. 9-27 at 27-28). Martinez stated that she saw Petitioner a second time when he exited the Viacobo Residence holding a rifle. (Id. at 40).
Officer Silva testified about his initial investigation (Dkt. No. 9-23 at 17), as well as a pretrial identification procedure with Jaime Viacobo and Martinez, Cantu, 2006 WL 3953398, at *6. Officer Silva separately showed Jaime and Martinez a photo array. (Dkt. No. 9-26 at 33). The array consisted of several photographs of different Hispanic males of similar size-and-build and with similar facial hair and hair color, including one photo of Petitioner. (Id. at 35). Officer Silva obtained Petitioner's photo through a database administered by the FBI's Violent Crimes Task Force. (Dkt. No. 9-23 at 19). According to Officer Silva, both Jaime and Martinez identified Petitioner in the array. (Dkt. No. 9-26 at 35). Officer Silva testified that he believed Jaime and Martinez were informed that warrants were issued for some suspects in the case prior to identifying Petitioner. (Id. at 35-36). Jaime and Martinez each testified, however, that no one suggested to them that Petitioner's photo was of one of the suspects. (Id. at 44; Dkt. No. 9-27 at 34). Both also testified that they were confident in their identification. (Dkt. No. 9-26 at 45; Dkt. No. 9-27 at 34).
Investigator Arredondo testified that he arrested Petitioner pursuant to the arrest warrant for capital murder during a traffic stop on September 5, 2003. (Dkt. No. 9-27 at 42). Petitioner initially identified himself to Investigator Arredondo as "Juan Martin Lopez" but eventually admitted that he was known socially as "El Pio," a nickname associated with Petitioner. (Id. at 42-43). Investigator Arredondo was familiar with Petitioner's nickname and his appearance because he was involved in the investigation and had seen photographs of Petitioner. (Id. at 43).
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