Herrera v. Stephens

• Decision Date: 18 July 2014
• Docket Number: CIVIL ACTION NO. H-13-2432
• Parties: EDGAR HERRERA, TDCJ # 1698675, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

EDGAR HERRERA, TDCJ # 1698675, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department

of Criminal Justice - Correctional Institutions Division, Respondent.

CIVIL ACTION NO. H-13-2432

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

SIGNED: July 18, 2014

MEMORANDUM AND ORDER

The petitioner, Edgar Herrera (TDCJ # 1698675), has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 to challenge a state court conviction. The respondent has answered with a motion for summary judgment, arguing that the petition must be denied [Doc. # 13]. Herrera has filed a reply [Doc. # 21]. After considering all of the pleadings, the state court records, and the applicable law, the Court grants the respondent's motion, denies the petition, and dismisses this case for reasons that follow.

I. BACKGROUND AND CLAIMS

On August 25, 2010, Herrera was charged by indictment with committing aggravated sexual assault of a child under fourteen, a first degree felony [Doc. # 10-5, p. 72]. On November 9, 2010, Herrera appeared with retained counsel, Dean Gregory,and entered a plea of guilty to the charge of aggravated sexual assault without an agreed recommendation regarding punishment [Doc. # 10-5, p. 25]. Herrera signed a waiver of constitutional rights and judicial confession in which he admitted that he had committed the offense for which he was charged [Doc. # 10-4, pp. 41-2]. He also signed a plea admonishment stating that he had been advised of and understood his rights. Id. at 43-46. That same day, Herrera signed a separate admonishment regarding requirements for sex offenders. Id. at 47-48. The trial court accepted the plea and found that there was sufficient evidence of guilt, but waived the finding and ordered a pre-sentence investigation ("PSI") report [Doc. # 10-5, p. 70].

A pre-sentence investigation was conducted and submitted to the trial court [Doc. # 10-5, pp. 24-56]. After accepting the report and finding Herrera guilty as charged, the state district court sentenced Herrera to life in prison. Doc. # 10-5, p. 73; State v. Herrera, No. 1266477 (351st Dist. Ct., Harris County, Tex., Feb. 8, 2011). No direct appeal was filed. However, Herrera filed a motion for new trial on February 16, 2011, and the trial court denied it on March 17, 2011 [Doc. # 10-5, p. 1].

On November 10, 2011, Herrera, filed a state application for a writ of habeas corpus challenging the conviction pursuant to Article 11.07 of the Texas Code of Criminal Procedure [Doc. # 10-4, p. 8]. The following grounds for relief were presented:

1. Herrera's guilty plea was involuntary due to ineffective assistance of counsel (Gregory) because:

a. Gregory failed to file a pretrial motion to suppress statements given by Herrera to law enforcement officers [Doc. # 10-4, p. 13-14];

b. Gregory failed to interview the victim (Id. at 15-16);

c. Gregory unreasonably advised Herrera to permit the trial judge to impose the punishment rather than going to a jury (Id. at 16-17); and

d. Gregory represented to Herrera that the trial court would sentence him to five years probation (Id. at 18); and

2. Herrera's due process rights were violated because evidence proving his innocence was not presented at trial (Id. at 19).

On December 2, 2011, the trial court ordered Gregory to file a response to the allegations made in Herrera's state habeas application regarding the alleged denial of effective assistance of counsel [Doc. # 10-4, pp. 50-52]. Gregory filed his affidavit in response to the habeas application on December 27, 2011. Id. at 56-57. On February 13, 2012, the state district court appointed attorney Randall J. Ayers to represent Herrera as habeas counsel under Chapter 11 of the Texas Code of Criminal Procedure [Doc. # 10-4, p. 74]. A post-conviction writ hearing was held on March 21, 2013, with Herrera and his daughter, the victim of the sexual assault, in attendance [Doc. # 10-2, pp. 3-10]. After the hearing, the trial court entered its findings of factand conclusions of law [Doc. # 10-4, pp. 82-88]. The court determined that Herrera failed to show that he was denied effective assistance of counsel. Id. at 87. The court also found that Herrera's plea was knowing and voluntary and that there was no newly discovered evidence of Herrera's innocence with which any reasonable juror would have found him guilty. Id. The Texas Court of Criminal Appeals denied the application without a written order based on the trial court's findings. Id. at 2; Ex parte Herrera, No. 78,967-01 (Tex. Crim. App. May 15, 2013).

Herrera now seeks a federal writ of habeas corpus to challenge his state court conviction for aggravated sexual assault of a child. He asserts the following claims in his petition:

1. Herrera's guilty plea was involuntary and unknowing due to his counsel's ineffectiveness by:

a. Failing to file a motion to suppress any statements to law enforcement officers and Child Protective Services ("CPS") officials;

b. Failing to interview the alleged victim;

c. Failing to have Herrera evaluated by a mental health expert; and

2. Herrera is actually innocent of the offense [Doc. # 1, p. 6].

The respondent has filed a motion for summary judgment [Doc. # 13] arguing that one of Herrera's claims (Claim 1.c) is procedurally barred. The respondentfurther contends that there is no merit to the claims that are not barred and that Herrera's petition must be denied. Herrera disagrees. The parties' contentions are discussed further below.

II. STANDARD OF REVIEW

Motions for summary judgment are typically governed by Rule 56 of the Federal Rules of Civil Procedure. However, this habeas corpus proceeding is governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 335-36(1997); see also Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002); see also Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). To the extent that the petitioner's claims were "adjudicated on the merits" in state court, the AEDPA standard found at 28 U.S.C. § 2254(d) applies.¹

Claims presenting pure questions of law and mixed questions of law and fact are governed by 28 U.S.C. § 2254(d)(1), which precludes habeas relief unless a petitioner demonstrates that the state court's decision to deny a claim "was contraryto, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1); McGowen v. Thaler, 675 F.3d 482, 489 (5th Cir. 2012). 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 based on materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 404-08 (2000). A state court unreasonably applies clearly established precedent if it identifies the correct governing legal principle but unreasonably applies that principle to the facts of the case. See Brown v. Payton, 544 U.S. 133, 141 (2005). Under this standard, an unreasonable application is more than merely incorrect or erroneous; rather, the state court's application of clearly established law must be "objectively unreasonable." Williams, 529 U.S. at 409.

The Supreme Court has clarified that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, — U.S. —, 131 S. Ct. 1388, 1398 (2011). Additional limitations on federal review apply. A state court's findings of fact "are 'presumed to be correct' unless the habeas petitioner rebuts the presumption through 'clear and convincing evidence.'" Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (quoting 28 U.S.C. § 2254(e)(1)). This presumption extends not only to express findings of fact,but to the implicit findings of the state court as well. See Garcia v. Quarterman, 454 F.3d 441, 444 (5th Cir. 2006) (citations omitted). Where pure questions of fact are concerned, a petitioner is not entitled to relief unless he demonstrates that the state court's decision 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)(2); see also Buntion v. Quarterman, 524 F.3d 664, 670 (5th Cir. 2008).

As this deferential standard reflects, the AEDPA has "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state court convictions are given effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 693 (2002) (quotation omitted). In that respect, the AEDPA standard "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state court proceedings." Harrington v. Richter, — U.S. —, 131 S. Ct. 770, 786 (2011). The Supreme Court has underscored the extent of this deferential standard:

[28 U.S.C. § 2254(d)] preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining [a writ of] habeas corpus from a federal court, a state prisoner must showthat the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Richter, 131 S. Ct. at 786-87. This deferential AEDPA standard of review applies even...