Cordova v. Johnson, CIV. SA-95-CA-1014-EP.

Citation993 F.Supp. 473
Decision Date04 February 1998
Docket NumberNo. CIV. SA-95-CA-1014-EP.,CIV. SA-95-CA-1014-EP.
PartiesGeorge CORDOVA, SID No. 0213157, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
CourtUnited States District Courts. 5th Circuit. Western District of Texas

Steven N. Harkiewicz, San Antonio, TX, for George Cordova petitioner.

John Jacks, Office of the Attorney General, Asst. U.S. Attorney, Austin, TX, for Gary Johnson, Dan Morales, Atty. General, respondents.

MEMORANDUM OPINION AND ORDER

PRADO, District Judge.

Petitioner George Cordova filed this action pursuant to Title 28 U.S.C. Section 2254 seeking federal habeas corpus review of his state conviction for capital murder and sentence of death. As grounds for relief, petitioner argues in his first amended petition that his trial counsel rendered ineffective assistance at both the guilt-innocence and punishment phases of petitioner's state capital murder trial, the state trial court erred in its jury instructions at both phases of trial, petitioner's death sentence violates the law of proportionality, the prosecution withheld exculpatory evidence, the evidence was legally insufficient to support the jury's verdict on the first special sentencing issue, and the cumulative effect of the foregoing alleged errors warrants federal habeas corpus relief. Because petitioner filed his federal habeas corpus petition prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA"],1 this Court has been required to conduct a de novo review of each of petitioner's claims for relief herein.2 For the reasons set forth at length hereinafter, this Court finds no merit to any of the petitioner's claims for relief and, therefore, denies petitioner's federal habeas corpus petition, and vacates the stay of execution issued in this cause on October 23, 1995.

I. Statement of the Case
A. Factual Background

During the early morning hours of August 4, 1979, petitioner George Cordova, Manuel Villanueva, and two other persons fatally assaulted and stabbed Jose M. "Joey" Hernandez, dragged Cynthia West from Hernandez's vehicle, sexually assaulted her, robbed both West and the body of Hernandez of jewelry and other items, and fled the scene with Hernandez's vehicle, which was later found abandoned.3 A Bexar County grand jury indicted petitioner in 1980 on a charge of capital murder, to wit, having fatally stabbed Hernandez while committing and attempting to commit a robbery of Hernandez.4 Petitioner was tried in 1982, and a Bexar County jury convicted and sentenced petitioner to death. Petitioner appealed but the Texas Court of Criminal Appeals affirmed petitioner's 1982 conviction and sentence on September 25, 1985.5 The United States Supreme Court denied petitioner's petition for writ of certiorari on May 5, 1986.6 After petitioner unsuccessfully sought state habeas corpus relief, he filed a federal habeas petition which this Court denied. Petitioner appealed this Court's denial of his federal habeas corpus petition and the Fifth Circuit reversed petitioner's 1982 conviction on February 17, 1988.7 The United States Supreme Court denied the State's certiorari petition on June 13, 1988.8

On February 1, 1989, a Bexar County grand jury re-indicted petitioner in cause no. 89-CR-557 on a single Count of capital murder which contained three separate paragraphs alleging that the petitioner had murdered Jose M. Hernandez while in the course of committing and attempting to commit the predicate offenses of (1) robbing Hernandez, (2) robbing Cynthia West, and (3) engaging in the aggravated sexual assault of West.9 On June 6, 1989, the jury returned a verdict of guilty in petitioner's second capital murder trial.10 On June 9, 1989, the same jury answered the two Texas special sentencing issues affirmatively and the state trial court imposed a sentence of death by lethal injection.11 Petitioner appealed but, in an unpublished opinion issued April 27, 1994, the Texas Court of Criminal Appeals affirmed petitioner's 1989 conviction and death sentence.12 The United States Supreme Court denied certiorari on November 28, 1994.13

On November 29, 1994, petitioner filed his original state habeas corpus application, asserting some eight claims for relief.14 On February 15, 1995, petitioner filed his first amended state habeas corpus application in which he asserted the same grounds for relief he had urged originally, and added two new claims of error regarding the state trial court's guilt-innocence phase jury instructions.15 On July 3, 1995, petitioner filed his second amended state habeas corpus application and asserted therein three additional claims for a total of thirteen claims for relief.16 The state trial court held an evidentiary hearing on petitioner's state habeas claims on July 11 and 20, 1995, during which that court heard testimony from several members of petitioner's family regarding petitioner's deprived and abused childhood, heard extensive testimony from both of petitioner's trial counsel regarding their investigations into the case against petitioner and their strategic decision-making before and during petitioner's 1989 trial, and heard testimony from Dr. John C. Sparks and received extensive documentary evidence regarding the mental and intellectual capacity of Manuel Villanueva.17 In an Order issued August 22, 1995, the state trial court concluded that there was no merit to any of the claims contained in petitioner's second amended state habeas corpus application and recommended that state habeas relief be denied.18 On October 18, 1995, the Texas Court of Criminal Appeals denied petitioner's state habeas corpus application without written order.19

B. Procedural History

On October 23, 1995, petitioner filed his original petition for federal habeas corpus relief in this Court, together with separate motions requesting appointment of counsel, a stay of his then-impending execution, and leave to file an amended petition for federal habeas relief.20 In an Order issued that same date, this Court granted petitioner's motion for stay of execution, appointed counsel to represent petitioner herein, and granted petitioner leave to file an amended federal habeas corpus petition.21 On February 20, 1996, petitioner filed his first amended federal habeas corpus petition and asserted therein thirteen claims for relief similar but not identical to those he had included in his second amended state habeas corpus application discussed above.22 On April 19, 1996, respondent filed his answer and motion for summary judgment in which he argued, among other things, that (1) nothing in the federal Constitution mandated that petitioner's jury be given the opportunity to consider the life sentence received by Manuel Villanueva as a mitigating factor which warranted a life sentence for petitioner, (2) the jury instructions at the punishment phase of petitioner's 1989 trial did not foreclose the jury from giving adequate consideration to petitioner's legitimate mitigating evidence, (3) several of petitioner's complaints of alleged errors in the jury instructions raised new rules of law foreclosed by the non-retroactivity doctrine of Teague, (4) there was more than ample evidence introduced during the petitioner's 1989 trial to support the jury's verdict at the punishment phase of that trial, and (5) petitioner's trial counsel did not render ineffective assistance.23

Subsequently, both parties filed supplemental pleadings and briefs addressing the applicability to this cause of the Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA"].24

II. Inapplicability of the AEDPA

On April 24, 1996, the President signed into law the AEDPA,25 which radically altered the standard of review by this Court in federal habeas corpus proceedings filed by state prisoners pursuant to Title 28 U.S.C. Section 2254.26 In the months thereafter, the Fifth Circuit held that the new standard of review provisions of the AEDPA governed federal court review of all federal habeas corpus petitions filed by state prisoners, including those petitions pending as of the effective date of that enactment.27 However, in Lindh v. Murphy,28 the Supreme Court held that the AEDPA does not apply to federal habeas corpus petitions filed prior to the effective date of that enactment. Thus the Fifth Circuit's opinions holding the AEDPA applicable to federal habeas petitions filed prior to April 24, 1996 are no longer controlling authority for this Court. Because petitioner's first amended habeas corpus petition in this cause was filed on February 20, 1996, prior to the effective date of the AEDPA, this Court must apply the pre-AEDPA standard of review to petitioner's federal habeas claims herein.29

III. State Law Claims

A state prisoner seeking federal court review of his conviction pursuant to Title 28 U.S.C. Section 2254 must assert a violation of a federal constitutional right.30 Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented.31 In the course of reviewing state criminal convictions in federal habeas corpus proceedings, a federal court does not sit as a super-state appellate court.32 The question before a federal habeas corpus court is not whether the state court correctly applied its own interpretation of state law; rather, the question is whether the petitioner's federal constitutional rights were violated.33

When a federal district court reviews a state prisoner's habeas petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is "in custody in violation of the Constitution or laws or treaties of the United States." The court does not review a judgment, but the lawfulness of the petitioner's custody simpliciter.34

Thus,...

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