Flores v. Johnson
| Decision Date | 31 March 1997 |
| Docket Number | Civil No. SA-96-CA-455. |
| Citation | 957 F.Supp. 893 |
| Parties | Pedro Jesus FLORES, Petitioner, v. Gary JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. |
| Court | U.S. District Court — Western District of Texas |
Pedro J. Flores, Tennessee Colony, TX, pro se.
Jeremy T. Hartman, Texas Attorney General's Office, Habeas Corpus Division, Austin, TX, for Gary Johnson and Dan Morales.
Petitioner Pedro Jesus Flores has filed this federal habeas corpus proceeding pursuant to Title 28 U.S.C. Section 2254 challenging his April, 1994 Guadalupe County conviction for burglary of a habitation and his enhanced sentence. For the reasons set forth below, petitioner's requests for federal habeas corpus relief will be denied.
On December 3, 1993, petitioner Pedro Jesus Flores was indicted on a charge of burglary of a habitation.1 Petitioner's jury trial commenced on April 18, 1994, and on April 19, 1994, after only fifteen minutes of deliberation, petitioner's jury returned a verdict of guilty. The petitioner then entered a plea of "True" to the enhancement paragraph of the indictment against him, and after a brief punishment phase, petitioner's jury imposed a 75-year term of imprisonment. Petitioner filed a direct appeal, but in an unpublished opinion issued December 21, 1994, the Texas Fourth Court of Appeals affirmed petitioner's conviction and sentence.2 Petitioner filed no petition for discretionary review of that decision with the Texas Court of Criminal Appeals.
However, on May 22, 1995, petitioner filed a state habeas corpus application in which he argued that (1) his trial counsel had rendered ineffective assistance by failing to (a) file any pretrial motions, (b) request an examining trial, (c) file a motion to quash the indictment against petitioner, (d) file a motion requesting unspecified discovery, (e) move for an instructed verdict at the conclusion of the State's case, (f) move to suppress unspecified evidence on unspecified grounds, (g) adequately investigate the case against petitioner, (h) take the depositions of prosecution witnesses, (i) spend adequate time preparing for trial, (j) seek out and obtain the testimony of unidentified potential defense witnesses, (k) explain the applicable law and facts to petitioner, (1) make unspecified objections to the testimony of unidentified prosecution witnesses, and (m) object to the failure of the state trial court to instruct the jury at the guilt-innocence phase of petitioner's trial regarding the defense of mistake of fact; (2) his appellate counsel rendered ineffective assistance by (a) raising only a single point of error on direct appeal and (b) failing to file a petition for discretionary review with the Texas Court of Criminal Appeals, and (3) the evidence was legally insufficient to support the jury's verdict of guilty. On August 23, 1995, the Texas Court of Criminal Appeals remanded petitioner's state habeas corpus application to the trial court for an evidentiary hearing. In an Order issued December 15, 1995, the state trial court (1) made factual findings that petitioner's trial counsel had reviewed offense reports and witness statements concerning the offense, discussed the facts and possible defenses with petitioner, and been advised by petitioner of no credible witnesses, and (2) concluded that petitioner's trial counsel had not rendered ineffective assistance.3 On February 7, 1996, the Texas Court of Criminal Appeals denied petitioner's state habeas corpus application without written order based on the findings of the trial court.4
On June 6, 1996, petitioner filed his federal habeas corpus petition in this Court challenging his April, 1994 Guadalupe County conviction for burglary of a habitation and asserting as grounds for relief some, but not all, of the claims he had included in his state habeas corpus application outlined above and presenting some new claims for relief.5 More specifically, petitioner argued that (1) his trial counsel had rendered ineffective assistance by failing to (a) adequately prepare for trial, (b) interview unidentified defense and prosecution witnesses, (c) conduct unspecified pretrial investigation, (d) file any pretrial motions, (e) discover that petitioner was being tried as a party rather than as a principal, (f) object to the jury charge, (g) request a jury instruction on a "mistake of fact" defense, and (h) explain to petitioner how the facts of his case related to the applicable law; (2) his appellate counsel had rendered ineffective assistance by (a) presenting only one point of error on direct appeal, (b) providing only limited briefing on that point, and (c) failing to file a petition for discretionary review, and (3) there was insufficient evidence to support petitioner's conviction.6
On September 6, 1996, respondent filed his motion for summary judgment and argued therein that (1) petitioner's assertions of ineffective assistance by his trial counsel were unsupported by any specific factual allegations establishing that petitioner had been prejudiced by any deficiency in said counsel's performance, (2) petitioner had no constitutionally-protected right to the assistance of counsel for the purpose of pursuing discretionary review of his state criminal conviction, and (3) there was overwhelming evidence of the petitioner's complicity in the burglary, including eyewitness testimony that the petitioner had dropped off and picked up the two burglars after the burglary.7
On September 26, 1996, petitioner filed a pleading responding to respondent's motion for summary judgment in which petitioner argued for the first time that (1) his in-court identification by the eyewitness who testified she had seen petitioner driving the get-away car from the burglary had been tainted by the same witness's presentation by police at the scene where petitioner's vehicle had been stopped some twenty minutes after the burglary, (2) petitioner had been deprived of due process in connection with the state trial court's "paper hearing" during petitioner's state habeas corpus proceeding, (3) petitioner's trial counsel failed to request an examining trial, (4) because of inadequate trial preparation, petitioner's trial counsel had failed to discover the exculpatory testimony of petitioner's accomplice "Joe Ortega a/k/a Joe Manuel Castillo," and (5) petitioner's trial counsel should have requested a jury instruction on the "mistake of fact" defense based upon petitioner's assertion that the jewelry identified by the complainant as having been taken from her home was, in fact, play jewelry belonging to petitioner's daughter.8 Petitioner attached to this pleading the affidavit of one "Joe M. Castillo" in which Mr. Castillo swore that: (1) he had borrowed the petitioner's vehicle on the date of the burglary, (2) he had committed the burglary in question, (3) after the burglary, he went and picked up the petitioner, who was a passenger in the car which he was driving at the time the police apprehended them, (4) the petitioner knew nothing about the burglary, and (5) none of the property recovered from the vehicle following his arrest was taken during the burglary.9
On April 24, 1996, the President signed into law the Antiterrorism and Effective Death Penalty Act of 1996 ["AEDPA"],10 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 2254.11 The Fifth Circuit has held that the new standard of review provisions of the AEDPA govern 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.12 Under the AEDPA's new standard of review, this Court cannot grant petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.13 With these principles in mind, this Court must now turn to the issues raised by the pleadings in this cause.
A fundamental prerequisite to federal habeas corpus relief under Title 28 U.S.C. Section 2254 is the exhaustion of all claims in state court under Section 2254 prior to requesting federal collateral relief.14 A state prisoner must exhaust all available state court remedies before he can obtain federal habeas corpus relief unless circumstances exist which render the state corrective process ineffective to protect the prisoner's rights.15 In order to exhaust, a petitioner must "fairly present" all of his claims to the state court.16 The presentation of claims for the first time on discretionary review to the state's highest court does not constitute "fair presentation" for exhaustion purposes.17 Full exhaustion of all claims presented is required before federal habeas corpus relief is available.18
A Texas inmate seeking federal habeas relief who, in directly appealing his state criminal conviction, has by-passed the Texas Court of Criminal Appeals will not be deemed to have exhausted his state remedies until he has raised his claims before the state's highest court through collateral review provided by...
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