Morales v. Lumpkin

• Decision Date: 31 March 2022
• Docket Number: Civil Action 7:21-CV-0020
• Parties: JUAN ALBERTO MARTINEZ MORALES, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

JUAN ALBERTO MARTINEZ MORALES, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. 7:21-CV-0020

United States District Court, S.D. Texas, McAllen Division

March 31, 2022

REPORT AND RECOMMENDATION

Petitioner JUAN ALBERTO MARTINEZ MORALES, a state prisoner proceeding pro se, initiated this action by filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition"). (Dkt. No. 1). Petitioner is serving life imprisonment following convictions by jury of two counts of injury to a child in the 93rd District Court of Hidalgo County, Texas. Now, seeking federal habeas review, Petitioner raises several claims for relief from the convictions including claims of no evidence, ineffective assistance of counsel, and actual innocence.^[1] (See Dkt. No. 1 at 6-7; see also Dkt. No. 1-1 at 15-21).

Respondent has since made an appearance and filed a Motion for Summary Judgment (the "Summary Judgment Motion") (Dkt. No 10) together with an electronic copy of the state court record (Dkt. No. II).^[2] Respondent seeks the dismissal of the Petition on the grounds that Petitioner's claims are either procedurally barred, non-cognizable on federal habeas review, or otherwise without merit. (Dkt. No. 10 at 11-29). Petitioner has filed a response. (Dkt. No. 13).

This case was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1). After review of the record and relevant law, the undersigned respectfully RECOMMENDS that the Summary Judgment Motion (Dkt. No. 10) be GRANTED, that the Petition (Dkt. No. 1) be DENIED, and that this civil action be DISMISSED. The Magistrate Judge also RECOMMENDS that a Certificate of Appealability be DENIED.

I. BACKGROUND

A. Offense Conduct and Investigation

By way of background, Petitioner was convicted of beating and seriously injuring his three-month old twin daughters, A.M. and R.M.^[3] Morales Martinez v. State, 2019 WL 2532432, at *1 (Tex. App.-Corpus Christi-Edinburg June 20, 2019, pet. ref d) (mem. op).

On September 25, 2015, Anna Delia Mendez, an investigator with the Hidalgo County Sheriffs Office (the "Sheriffs Office"), was called to the Edinburg Children's Hospital to investigate a report of injury to a child. Id. at *1. Arriving at the hospital, Investigator Mendez observed that A.M., who was three-months old at the time, had bruising on her head and chest and a swollen right arm. Id. Investigator Mendez also observed bruising to RM.'s body. Id. A.M. was eventually determined to have approximately thirty bone fractures in different stages of healing, while R.M. was determined to have approximately sixteen fractures in the same stages of healing. Id. A.M.'s injuries were deemed consistent with "non-accidental trauma." See id.

Investigators suspected the infants' parents, Petitioner and his common law wife, Azucena Rodriguez ("Rodriguez"), of causing the injuries. (See Dkt. No. 11-20 at 74). Petitioner was asked by Albercio Velazquez, another investigator with the Sheriffs Office, to provide a statement. (Dkt. No. 11-2 at 107). Petitioner did not admit at such time to hitting the girls. (See id.).

The next day, September 26th, Rodriguez was interviewed by Manuel Salinas, Jr., a third investigator with the Sheriffs Office, and gave, in relevant part, the following written statement:

I suspect that [Petitioner] had something to do with [A.M.j's injuries because he was very abusive towards me when I was pregnant with our children .... [Petitioner] would accuse me of sleeping with a gringo, because the twins had a white complexion [unlike Petitioner] .... The last time that we had a fight was close to one week ago .... [Petitioner] threw me against the wall and knocked me to the floor several times and he also slapped me in the face once ....

Sometimes it sounded as if someone were slapping [someone] and it was [Petitioner] slapping the twins. I would ask [Petitioner] why he would hit the twins and he would tell [me] that he hit them because they cried a lot....

On Thursday, September 24, 2015, 1 was cooking dinner at 10:00 p.m. I heard the twins crying very loudly and I went to see. I saw that [R.M.] was on the upper part of [A.M.]'s arm and [A.M.]'s arm was twisted. I grabbed [A.M.] and I fed her a bottle and put her in her bed. .At 12:00 a.m. I got up to feed [the twin girls] again and I realized that [A.M.]'s arm was limp. I told [Petitioner] that we had to take [A.M.] to the hospital but he didn't want to take her because he was tired. My father and I wrapped up [A.M.]'s arm with a gauze and placed her back in her bed. I woke up at 7:00 a.m. and [Petitioner] made breakfast. I got the kids ready to take them to the hospital.... We went to a Western Union that is located on Canton Road and Expressway 281. Then we went to the Edinburg Children's Hospital... . [Petitioner] dropped us off and went back home.

I think [A.M.] has her fractures because our son [B.M.] throws heavy toys into [A.M.]'s and [R.M.]'s crib but I also think that [Petitioner] caused some of the injuries, because I saw him beat the twins several times.

(See Id. at 100-01).

After law enforcement officials determined that he lacked legal status to be present in the United States (see Dkt. No. 11-20 at 197-198), Petitioner was detained and taken to a U.S. Border

Patrol station in McAllen, Texas (see Dkt. No. 11 -14 at 7-8). On September 27th, Jonathan Flores, a fourth investigator with the Sheriffs Office, interrogated Petitioner at the Border Patrol station. (Dkt. No. 11-19 at 82-84). Petitioner gave the following written statement:

My name is Juan Alberto Martinez and I want to say that on Thursday, September 24, 2015[, ] I got home from work at 5:30. I got home angry. My wife asked me why I was angry and I got angrier and we started arguing. I went to bathe and saw that my two daughters were in their crib in the bathroom. When I went into the bathroom I closed the door. I saw that one of the girls was on top of the other one. I took her by the arm and pulled her hard to one side. The baby began to cry. I want to say that the baby whose arm I pulled was [A.M.]. I went in to bathe and a few hours later my wife told me that [A.M.J's arm was hurt. I told my wife that we would take her to the hospital in the morning. I also want to add that in the past I have slapped [A.M.] and [R.M.] because they cry a lot. I want to say that a few days before I grabbed [A.M.] by the feet and picked her up. [A.M.] was hanging upside down by her feet. [A.M.] started crying when I did that. I want to say that I have also pulled [R.M.]'s arm in the past. I want to say that my wife [Rodriguez] is incapable of hurting our girls because she loves them very much.

(Dkt. No. 11-2 at 104).

B. Arrest and Appointment of Counsel

Based on this statement, and after further investigation carried out by officials, Petitioner was arrested on December 1, 2016. (SeeDkt.No. Il-2atl0). Soon after, Petitioner was appointed Mr. Teodulo L. Lopez, Jr. as defense counsel, who would represent Petitioner through trial and sentencing. (See Id. at 7; see also Dkt. No. 11-3 at 69). Upon Mr. Lopez's motion, the trial court appointed Ms. Lucia Regalado to serve as co-counsel. (Dkt. No. 11-3 at 13, 15-16).

C. Filing of Charges

On January 24, 2017, Petitioner was charged by indictment with two counts of intentionally or knowingly causing serious bodily injury to a child in violation of Texas Penal Code § 22.04(a)(1). (Dkt. No. 11-2 at 8-9).

Rodriguez was charged with related counts of injury to a child by omission under the same statute. (Dkt. No. 11-11 at 4-5). She eventually pleaded guilty and, on or about July 21, 2017, was sentenced to a twenty-year term of imprisonment. (Id.).

D. Motion to Suppress

Before trial, Mr. Lopez filed a motion to suppress Petitioner's statement to Investigator Flores. (Dkt. No. 11-2 at 63-65). Mr. Lopez argued that the statement was involuntary and that Petitioner had not been admonished of his rights prior to making it. (Id. at 63-64). At a suppression hearing of August 29, 2017, the trial court took Investigator Flores' testimony.^[4] (See Dkt. No. 11-14). The trial court orally denied Petitioner's motion to suppress, holding that "there were [no] improprieties in [Investigator Flores'] obtaining [of Petitioner's] confession." (Id. at 36-37).

E. The Trial and Witness Testimony

Petitioner's trial began on September 26, 2017. (Dkt. No. 11-2 at 13). The State, during its case-in-chief, called several witnesses, including: Investigator Mendez; Steve Moyar, a fifth investigator with the Sheriffs Office; Robert Vela, a special investigator with the Texas Department of Family and Protective Services; Investigator Flores; and Dr. Raquel Vargas-Whale, a physician with Driscoll Children's Hospital. The defense called Petitioner as its only witness. The State then called Rodriguez as a rebuttal witness.

1. Investigator Mendez

Investigator Mendez testified regarding the initial investigations that occurred at the Edinburg Children's Hospital. (Dkt. No. 11-19 at 41-80). After arriving at the hospital, Investigator Mendez personally observed the infants and spoke, separately, with Petitioner and Rodriguez. (Id. at 46-48). On cross-examination, Investigator Mendez stated that when she and Rodriquez spoke, Rodriquez would habitually send text messages to someone prior to answering Investigator Mendez's questions. (Id. at 64). This behavior continued until Investigator Mendez asked Rodriquez to put away her cellphone. (Id. at 65). Investigator Mendez admitted to having no knowledge of the person with whom Rodriquez was communicating. (Id. at 64-65).

2. Investigator Moyar

Investigator Moyar...