Moreno v. Dretke
| Decision Date | 17 March 2005 |
| Docket Number | No. CIV.SA-00-CA-1058-XR.,CIV.SA-00-CA-1058-XR. |
| Citation | 362 F.Supp.2d 773 |
| Parties | Jose Angel MORENO, TDCJ No. 000859, Petitioner, v. Douglas DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Western District of Texas |
J. Scott Sullivan, Attorney at Law, San Antonio, TX, for Petitioner.
Tina J. Dettmer, Office of the Attorney General, Austin, TX, for Respondent.
Petitioner Jose Angel Moreno filed this federal habeas corpus action pursuant to 28 U.S.C. section 2254 challenging his 1987 Bexar County conviction for capital murder and sentence of death. For the reasons set forth herein, petitioner is entitled to neither habeas corpus relief nor a certificate of appealability from this Court.
Shortly after his arrest on February 7, 1986, petitioner Jose Angel Moreno gave law enforcement officers a written statement in which he confessed to having kidnaped, fatally shot, and buried John Manuel Cruz in a shallow grave.1
On April 2, 1986, a Bexar County grand jury indicted petitioner in cause no. 86-CR-1042 on a charge of capital murder, to wit, petitioner's murder of Cruz in the course of committing and attempting to commit Cruz's kidnaping.2
Petitioner's trial counsel filed three motions seeking to suppress petitioner's confession as well as the murder weapon, which was recovered from beneath the mattress in petitioner's bedroom during a search of petitioner's residence on February 7, 1986.3 Beginning July 14, 1986, the state trial court held a three-day hearing on petitioner's motions to suppress, during which it heard extensive testimony from the law enforcement officers who investigated Cruz's kidnaping and murder, as well as the magistrate who issued the search/arrest warrant in question.4 On August 5, 1986, the state trial court heard oral argument on petitioner's motions to suppress.5 Finally, on August 28, 1986, the state trial court denied all three motions to suppress.6
The guilt-innocence phase of petitioner's capital murder trial began on November 17, 1986. In addition to petitioner's confession and testimony concerning the circumstances surrounding the discovery of Cruz's body, petitioner's jury heard extensive testimony corroborating petitioner's confession, including (1) the medical examiner's findings that Cruz sustained three relatively close range gunshot wounds to the back of the head, two of which penetrated the skull and either of which would have proved fatal,7 (2) the findings of a ballistics expert that the bullet recovered from Cruz's body during autopsy had been fired from the handgun found under petitioner's mattress during a search of petitioner's residence,8 (3) testimony from Cruz's neighbors and others that they observed large rocks positioned across their street on several evenings immediately prior to Cruz's abduction,9 (4) testimony from Cruz's neighbors that they received a telephone call during the early morning hours of January 22, 1986 from someone claiming to have Cruz and asking for the telephone number of Cruz's parents,10 and (5) testimony from several different persons, including petitioner's aunt, identifying petitioner as the person whose voice could be heard on a police tape-recording of a ransom demand telephone call placed to Cruz's parents on January 22, 1986.11
Following an extended continuance caused by the illness of a juror and a stroke suffered by the trial judge's spouse, petitioner's trial resumed on January 5, 1987. The jury rendered its verdict on January 7, 1987, finding petitioner guilty of capital murder.
The following day, the punishment phase of petitioner's trial began. During that phase of trial, the jury heard extensive testimony detailing (1) the discovery of numerous weapons in petitioner's cell or on petitioner's person during his pretrial detention,12 (2) numerous instances of violent conduct by petitioner during his pretrial detention and trial,13 (3) numerous instances of petitioner unlocking his handcuffs or those of other inmates,14 (4) an escape attempt petitioner made less than two months after his arrest,15 (5) multiple instances in which petitioner jammed the door to his cell, preventing the door from closing and locking properly,16 (6) threats petitioner made to guards and an acquaintance during his pretrial detention,17 (7) an incident in which petitioner faked a suicide attempt,18 and (8) an incident during trial in which petitioner successfully posed as an another inmate and obtained access to a less-secure portion of the jail.19 The jury also heard testimony from petitioner's family and friends to the effect that they believed petitioner was not a violent person and could be rehabilitated.20
On January 13, 1987, the jury returned its verdict at the punishment phase of trial, finding that (1) petitioner had deliberately caused Cruz's death and (2) there was a probability that petitioner would commit criminal acts of violence that would constitute a continuing threat to society.
On February 19, 1987, the state trial court held an evidentiary hearing on petitioner's motion for new trial and denied it.21
Petitioner appealed his conviction and sentence. In an opinion issued April 7, 1993, the Texas Court of Criminal Appeals affirmed both. Moreno v. State, 858 S.W.2d 453 (Tex.Crim.App.1993). On November 8, 1993, the United States Supreme Court denied petitioner's petition for writ of certiorari. Moreno v. Texas, 510 U.S. 966, 114 S.Ct. 445, 126 L.Ed.2d 378 (1993).
Petitioner filed a federal habeas corpus action in this Court collaterally attacking his capital murder conviction and sentence of death. That action was docketed as cause no. SA-94-CA-31-HG. In an Order issued December 1, 1994, this Court, per the late Judge H.F. Garcia, granted petitioner's motion for leave to dismiss that proceeding without prejudice so that petitioner could return to the state courts and exhaust available state habeas corpus remedies.
On January 12, 1996, petitioner filed his first application for state habeas corpus relief.22 On April 14, 1997, the state trial court held an evidentiary hearing.23 On May 24, 2000, the state habeas trial court issued its findings of fact, conclusions of law, and recommendation that petitioner's state habeas application be denied.24 In an unpublished Order issued September 13, 2000, the Texas Court of Criminal Appeals denied petitioner state habeas corpus relief.25
On September 25, 2000, petitioner filed a motion for appointment of counsel in this Court. In an Order issued September 28, 2000, this Court appointed counsel for petitioner and set deadlines for the filing of petitioner's federal habeas corpus petition. Petitioner filed his initial petition for federal habeas corpus relief on June 29, 2001.26 Respondent filed an answer and motion for summary judgment on November 29, 2001. Petitioner responded thereto on March 8, 2002.
On September 30, 2002, this Court granted petitioner's motion to hold this cause in abeyance pending petitioner's return to state court to exhaust state remedies on petitioner's claim that he is mentally retarded and, pursuant to the Supreme Court's opinion in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), exempt from the death penalty.
In an unpublished per curiam Order issued September 10, 2003, the Texas Court of Criminal Appeals dismissed petitioner's Atkins claim based on state writ-abuse principles, yet also specifically held that petitioner had failed to make a prima facie showing sufficient to support an Atkins claim.27
Following the dismissal of petitioner's second state habeas corpus application, petitioner returned to this Court and sought leave to amend his pleadings. This Court granted petitioner's request and, on September 10, 2003, petitioner filed his first amended federal habeas corpus petition.28
Petitioner filed his second amended federal habeas corpus petition on May 14, 2004, arguing therein that (1) petitioner's execution is barred by the Supreme Court's holding in Atkins because petitioner is mentally retarded, (2) his appellate counsel rendered ineffective assistance by failing to (a) ensure that the search/arrest warrant affidavit was included in the state appellate record, (b) investigate and present evidence in the course of petitioner's motion for new trial regarding the jury's improper discussion of parole eligibility during its deliberations, (c) raise points of error regarding the erroneous definitions of the culpable mental states included in the guilt-innocence phase jury instructions, (3) the state trial court erred in failing to grant petitioner's motions to suppress, (4) prosecution witness Celestino Pardo committed perjury during petitioner's trial, and (5) the state trial court constructively denied petitioner effective assistance of counsel when it failed to appoint a new investigator for petitioner's defense team mid-trial.29
On August 31, 2004, respondent filed his answer and motion for summary judgment.30 On January 14, 2005, petitioner filed his response thereto.31 On February 7, 2005, petitioner filed an amended reply to respondent's motion for summary judgment.32
Because petitioner filed his federal habeas corpus action after the effective date of the AEDPA, this Court's review of petitioner's claims for federal habeas corpus...
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