Correas v. Davis

• Decision Date: 23 May 2016
• Docket Number: No. 3:14-cv-4311-K-BN,3:14-cv-4311-K-BN
• Parties: SALVADOR CORREAS (TDCJ No. 1481981), Petitioner, v. LORIE DAVIS, Director Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

SALVADOR CORREAS (TDCJ No. 1481981), Petitioner, v. LORIE DAVIS,Director Texas Department of Criminal Justice, Correctional Institutions Division,¹ Respondent.

No. 3:14-cv-4311-K-BN

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

May 23, 2016

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

Petitioner Salvador Correas, a Texas inmate proceeding pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained below, the application should be denied.

Applicable Background

In 2008, following a jury trial, Correas was convicted of one count of burglary and two counts of attempted aggravated sexual assault, and he was sentenced to concurrent terms of 30-, 60-, and 50-years' confinement. See State v. Correas, Nos. F-06-68809-Q, F-06-68795-Q, & F-06-68865-Q (204th Dist. Ct., Dallas Cnty., Tex. Jan. 9, 2008). His convictions and sentences were affirmed on direct appeal. See Correas v.State, Nos. 05-08-00100-CR, 05-08-00101-CR, & 05-08-00102-CR, 2009 WL 1493004 (Tex. App. - Dallas May 29, 2009). And the Texas Court of Criminal Appeals ("CCA") denied his petition for discretionary review. See Correas v. State, PD 895-09 (Tex. Crim. App. Sept. 30, 2009).

The CCA also denied Correas's first three state habeas applications (one for each conviction) without written orders on the findings of the trial court made without a live hearing. See Ex parte Correas, WR-80,012-01, -02, & -03 (Tex. Crim. App. Aug. 21, 2013) [Dkt. Nos. 13-12, 13-13, & 13-14].

Correas later filed three new state habeas application, which the CCA also denied without written orders. See Ex parte Correas, WR-80,012-04, -05, & -06 (Tex. Crim. App. Oct. 8, 2014) [Dkt. Nos. 13-15, 13-16, 13-17, 13-18, 13-19, & 13-20]. Those three denials, the factual predicates of which are based on a December 30, 2012 article in the Dallas Morning News concerning the drug use of a victim/witness at Correas's trial, are the state court adjudications now before this Court. And, therefore, the timeliness of Correas's Section 2254 application is based on - and Respondent concedes that the current application is timely under - 28 U.S.C. § 2244(d)(1)(D). See Dkt. No. 14.

The facts underlying Correas's convictions are summarized in the Dallas Court of Appeals's decision, which refers to the then-minors by the pseudonyms assigned to them at trial:

Melanie Akers, twelve years old at the time of trial, testified that, on the day of the offense, a man she identified as appellant knocked on the door of her apartment. Melanie and Melissa were sitting on the couch andwatching cartoons, and their mother had gone to give some food to a neighbor. About three minutes after their mother left, Melanie heard the knock on the door. Melanie thought it was her mother at the door, and she opened the door. Melanie's mother always knocked on the door when she returned, and Melanie did not let other people into the apartment. Appellant put his hand in the doorway, and Melanie and Melissa tried but failed to close the door, so they went into the bedroom. Melanie looked back and saw appellant locking the door behind him. When Melanie got in the bedroom, appellant came in and pulled her pajama pants and her underwear down. Melanie was telling appellant "No," but appellant said he would kill Melanie if she screamed. Melanie started screaming, and Mariela woke up and asked appellant what he was doing. Melanie further testified appellant said he "wanted to kiss [her] down there."

Mariela Akers, sixteen years old at the time of trial, testified her mother's name is Margarita, and she has twin sisters, Melanie and Melissa, who were twelve years old. Mariela testified she lived in a one-bedroom apartment with her sisters and her mother, who cleaned houses and sold food and sodas from her apartment. On a Sunday in June or July of 2006, Mariela woke up because she heard her sister screaming. Mariela could not see very clearly because she wore glasses, but she saw a man holding Melanie, who was not wearing pants or underwear. Mariela started yelling and asking who the man was and what he wanted. Mariela reached for a phone beside the bed, but the man came over to her, slapped her hand, and told her, "If you get the phone, I'm gonna kill you." Mariela asked the man what he wanted, and he pointed at Melanie and said, "All I want to do to her is kiss her down there in her pussy." Mariela was "yelling and screaming," and the man told everyone to shut up or he was going to kill them.

The bedroom door was half open, and Mariela tried to crawl over to it so she could push Melanie out "so she could run out and get the phone or, like, go, just run out, look for my mom." The man grabbed Mariela by her hair and pulled her back and started hitting her with his fists. Melanie came from behind the man to help Mariela, and the man started hitting Melanie. Both Mariela and Melanie were screaming, and the man was telling them to shut up or he would kill them. The man went toward the bed and sat on the floor. Mariela went to the window to try to open it and scream for help. As she was going toward the window she crossed the bed and the man told her to pull down her pants. The man tried to pull down Mariela's pants, and she was holding on to her pajama pants, kicking at him, and screaming and telling him to leave her alone. The man grabbedMariela and hit her again. After he hit her, the man got on his knees, took his wallet out, looked through it, and placed it on the floor.

Mariela "just started screaming" and the man again threatened that he would kill her if she did not shut up. Melanie's pants were on the floor, and the man wrapped them around Mariela's face and kept telling her to shut up or he was going to kill her. Mariela managed to get the pants off her face and throw them away when she heard her mother knocking on the door and calling Mariela's name. The man "started panicking" and telling Mariela and Melanie to shut up. He asked Mariela, "where do I get out?" and Mariela told him he could jump out the window or walk out the front door. Mariela's mother and her uncle came in the bedroom door and hit the man and held him down. Mariela ran out of the room and called 911. Mariela's mother and uncle were able to hold the man down until police arrived. Mariela's mother, Margarita, testified appellant was the man she found in her apartment and held until police came.

Correas, 2009 WL 1493004, at *1-*2.

Legal Standards and Analysis

In the state habeas applications filed after the Dallas Morning News story, Correas asserted that he was actually innocent because (1) one of the complainants (Mariela) was alleged to be addicted to drugs at the time of the offense, (2) the same complaint allegedly gave false testimony by not divulging her alleged drug addiction, (3) the State failed to disclose that she allegedly suffered from a drug addiction, and (4) the State suborned perjury by portraying the complainant "as an innocent and honest young school girl." Dkt. No. 13-16, state habeas trial court findings of fact and conclusions of law, at 58.

The state court found that the first two grounds could have been raised in Correas's first round of state habeas applications, because he first became aware of the underlying facts on December 30, 2012, while those applications were pending, and,therefore, the court found that those grounds should be denied for abuse of the writ. See id. at 58-59 (citing TEX. CODE CRIM. PROC. art. 11.07 § 4(a)). But the state court found that the third and fourth grounds - concerning "the State's knowledge of this information and its failure to disclose it" - "could not have been presented in the original applications," and the court reviewed those grounds on their merits. Id. at 59.

The third and fourth grounds adjudicated in state court parallel the third and fourth grounds raised in Correas's current Section 2254 application. See Dkt. No. 3 at 7-8. And the undersigned will address those below, after taking up the first two (procedurally-barred) grounds and Correas's actual innocence assertions.

I. Actual Innocence

To the extent that through any ground in the federal habeas petition Correas asserts a stand-alone claim of actual innocence, such a claim is itself not an independent ground for federal habeas corpus relief and therefore should be denied. See McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (citing Herrera v. Collins, 506 U.S. 390, 404-05 (1993)); Reed v. Stephens, 739 F.3d 753, 766 (5th Cir. 2014) (collecting cases); see also Schlup v. Delo, 513 U.S. 298, 314 (1995) (distinguishing "procedural" claims of innocence, which are based on a separate, underlying claim that a defendant was denied "the panoply of protections afforded to criminal defendants by the Constitution").

II. Procedurally Defaulted Claims

A. Ineffective Assistance of Counsel [Ground 1]

Correas first asserts that his trial counsel was constitutionally ineffective because any investigation counsel performed did not reveal the drug addiction issue discussed in the Dallas Morning News article. See, e.g., Dkt. No. 3 at 6. Although Correas raised an ineffective-assistance-of-counsel ("IAC") claim in his first round of state habeas applications, see, e.g., Dkt. No. 13-16 at 57-58, the state-court adjudications of those petitions are not now before this Court. And, because Correas failed to include an IAC claim in his second round of state habeas applications - the adjudications of which are before this Court for review - Correas has failed to exhaust this IAC claim.

This Court may not, moreover, consider the current IAC claim, focused on counsel's failure to uncover the information revealed in the Dallas Morning News article, exhausted because a previous IAC claim focused on unrelated allegations was exhausted. See Dkt. No. 13-16 at 35-37 (counsel's affidavit addressing these IAC allegations: "(1) Why did you chose not to make an opening...