Leal v. Stephens

• Decision Date: 21 August 2015
• Docket Number: 2:12-CV-136
• Citation: Leal v. Stephens, 2:12-CV-136 (N.D. Tex. Aug 21, 2015)
• Parties: LARRY MICHAEL LEAL, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

LARRY MICHAEL LEAL, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

2:12-CV-136

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS AMARILLO DIVISION

August 21, 2015

REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Petitioner LARRY MICHAEL LEAL filed a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his conviction out of the 251st Judicial District Court of Randall County, Texas, for aggravated assault with a deadly weapon in Cause No. 20034-C. For the reasons set out hereafter, the United States Magistrate Judge is of the opinion petitioner's application for federal habeas corpus relief should be DENIED.

I.FACTUAL AND PROCEDURAL BACKGROUND

A. Procedural background

Petitioner was charged with aggravated assault with a deadly weapon. Petitioner pleaded not guilty, and the case was tried before a jury. The jury found petitioner guilty. Punishment was enhanced with two prior felony convictions, and the jury assessed a life sentence. State Habeas Corpus Record (WR-77,206-01) p. 193. The judgment was affirmed on appeal. Leal v.State, No. 07-09-00049-CR, 2010 WL 3633740 (Tex. App. - Amarillo September 20, 2010, pet. ref'd). The Texas Court of Criminal Appeals refused the petition for discretionary review. Leal v. State, No. PD-1401-10 (Tex. Crim. App. February 9, 2011). Petitioner filed a state habeas corpus application on January 11, 2012, having shown to have signed the application on December 22, 2011. The state habeas corpus application was denied without written order on March 7, 2012. Ex parte Leal, No. WR-77,206-01 (Tex. Crim. App. March 7, 2012).

Petitioner then filed this federal Petition for a Writ of Habeas Corpus with a memorandum in support on June 14, 2012, stating he placed them in the prison mail system on June 7, 2012. Documents 3 and 4. Also before the Court are respondent's answer and petitioner's reply. Documents 15 and 19.

B. Evidence at trial

Ruben Coronado, an Amarillo police officer, testified at trial as follows. Reporter's Record Vol. 3, pp. 16-89. Coronado was at home on June 26, 2008. Shortly after 10 p.m. he heard tires screeching as a car stopped on the street. Coronado looked outside and saw defendant and a woman arguing. Two small children were in the car. Petitioner and the woman exited the car, and were standing in Coronado's driveway. Petitioner was yelling at the woman and put his hands around the woman's neck and began choking her. Coronado retrieved his police firearm and went outside. By this time petitioner was straddling the woman, and Coronado told him to get off of the woman. Petitioner, who was intoxicated, walked to the street and as he did, Coronado had the two children go into Coronado's house. Petitioner kicked and punched his own car. He picked up a large stone from Coronado's garden, returned to his car, and began hitting the car with the rock. He was smashing the car, including the hood, headlights, andwindshield, with the rock. Petitioner looked at and made eye contact with Coronado. Petitioner then walked toward Coronado. Petitioner raised the rock above his head, maintaining eye contact with Coronado. The rock was about 10-12 inches in diameter and weighed about 20 pounds. Coronado drew his police firearm and pointed it at petitioner. Coronado yelled at petitioner to stop and drop the rock. Coronado said he was with the Amarillo Police Department. Coronado again told petitioner to drop the rock or Coronado would shoot petitioner. Petitioner did not comply. With the rock still raised, petitioner took a few more steps onto Coronado's property and walked directly toward Coronado in an aggressive manner. Coronado believed petitioner intended to hurt him. Coronado felt threatened and testified that the rock could have caused death or serious bodily injury. Coronado testified petitioner came within 15-20 feet of him. If petitioner had taken two more steps toward him, Coronado said he would have shot petitioner. Petitioner then turned, went to the car, and hit the car again with the rock. As he was hitting the car again, petitioner said, "APD, I am going to f___ you up. You're APD. I am going to send my homies to f___ up your home and family." Petitioner said he was in a gang. Coronado perceived these statements as a threat. Petitioner went into an alley. He returned and threw a beer bottle at the car. Petitioner yelled, "APD I am going to f___ you up." Petitioner went into the alley again.

Corporal Kenneth Donais of the Amarillo Police Department testified as follows. Reporter's Record Vol. 3, pp. 159-72. Corporal Donais responded to a call about the disturbance. He encountered petitioner in an alley. Petitioner's breath had a strong odor of alcohol. Petitioner said people were throwing bottles at him. After returning to the Coronado house with petitioner, Cpl. Donais consulted with other officers at the scene and arrestedpetitioner. Petitioner, who was in Donais's police car, tried to kick out a car window. Officers tried to get petitioner to stop, but petitioner resisted. An officer used pepper spray on petitioner, which calmed petitioner down.

Officer Cory Henderson of the Amarillo Police Department testified. Reporter's Record Vol. 3, pp. 173-89. He responded to the call to Coronado's house. After Cpl. Donais drove up with petitioner, Henderson used pepper spray to stop petitioner from trying to kick out the car window and to prevent petitioner from kicking him. Petitioner had a strong odor of alcohol. Henderson also testified that if someone took the rock, lifted it above their head, and approached him, he would consider that to be threatening. He also testified that the rock, so used, would be capable of causing death or serious bodily injury. Henderson answered a hypothetical question and testified that if someone approached Henderson with the rock above that person's own head, Henderson would draw a weapon and tell the person to stop and drop the rock, but if that person continued toward him, Henderson would believe that person intended to strike him. Henderson would be alarmed even if that person were twenty feet away.

Francis Coronado, Officer Coronado's wife, testified and corroborated Officer Coronado's version of the events. Reporter's Record Vol. 3, pp. 190-202. Petitioner had the rock above his head, and he looked toward the door where Ms. Coronado was standing with the woman petitioner had assaulted. Then petitioner looked at Officer Coronado. Petitioner moved toward Officer Coronado who identified himself as a police officer and ordered petitioner to drop the rock. Petitioner did not drop it. Instead, he walked forward. Petitioner stopped. Ms. Coronado did not remember exactly what petitioner said, but to the best of her recollection he said, "You're APD. You f___ed up. I know where you live now. My homies and I are comingafter you and your family and your house. Your house is going to get f___ed up." Petitioner was about twelve feet from Officer Coronado when he made these threats. Ms. Coronado later measured the distance. Petitioner returned to the car and beat the car with the rock. Ms. Coronado tried to calm the woman and her two children, one of whom was four years old and the other was eighteen months old.

II.PETITIONER'S ALLEGATIONS

Petitioner appears to contend respondent is holding him in violation of the Constitution and laws of the United States for the following reasons:

1. Petitioner received ineffective assistance of trial counsel, because counsel failed to request jury instructions on the lesser included offenses of deadly conduct and misdemeanor assault;

2. Petitioner received ineffective assistance of trial counsel, because counsel failed to objection to the prosecutor's discriminatory use of peremptory strikes on all the Hispanic verniremembers;

3. Petitioner received ineffective assistance of trial counsel, because counsel failed to secure the presence of an eyewitness at trial;

4. Petitioner received ineffective assistance of trial counsel, because counsel failed to pursue a meaningful plea bargain;

5. The trial court abused its discretion and denied petitioner the effective assistance of counsel when the court denied petitioner's motion for appointment of substitute counsel;

6. There was no evidence to show that petitioner had the intent to cause imminent bodily injury to the complainant;

7. Petitioner received ineffective assistance of appellate counsel, because appellate counsel failed to challenge the sufficiency of the evidence.

III.STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act, a petitioner may not obtain habeas corpus relief in federal court with respect to any claim adjudicated on the merits in the state court proceedings unless the adjudication of the claim resulted in a decision contrary to or involved an unreasonable application of clearly established federal constitutional law or resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d).

The Texas Court of Criminal Appeals heard and adjudicated on the merits the claims petitioner presents in his federal habeas corpus petition when it denied petitioner's application for state habeas relief without a written order. Ex parte Hester, Nos. WR-75,335-05 & WR-75,335-06; see Harrington v. Richter, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011); Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). Petitioner's burden before this Court is significantly heightened in that petitioner cannot prevail even if he shows the state court's determination was incorrect. Petitioner must also show the state court unreasonably applied federal law or made an unreasonable determination of the facts. Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002).

Petitioner has failed to meet this burden....