Nunez v. Lumpkin, Civil Action 1:21-cv-131

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtIgnacio Torteya, III United States Magistrate Judge
PartiesNEFTALI NUNEZ, Petitioner v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent
Docket NumberCivil Action 1:21-cv-131
Decision Date23 August 2022

NEFTALI NUNEZ, Petitioner
v.

BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent

Civil Action No. 1:21-cv-131

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

August 23, 2022


MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Ignacio Torteya, III United States Magistrate Judge

The Court is in receipt of Neftali Nunez's 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (hereinafter, Nunez's “Petition”), and his “Memorandum of Law in Support of Habeas Corpus Application” (hereinafter, “Memorandum in Support”). Dkt. Nos. 1 and 11. Respondent Bobby Lumpkin has filed a Motion for Summary Judgment with Brief in Support (hereinafter, Lumpkin's “Motion” or “Motion for Summary Judgment”). Dkt. No. 16. For the reasons provided below, it is recommended that the Court: (1) GRANT Lumpkin's Motion; (2) DIRECT the Clerk of Court to close this case; and (3) DECLINE to issue a certificate of appealability.

I. Jurisdiction

The Court has jurisdiction over the subject matter and the parties pursuant to 28 U.S.C. § 2241 and § 2254, which provide that jurisdiction is proper where the inmate is confined, or where his state conviction was obtained. See 28 U.S.C. § 124(b)(5); Wadsworth v. Johnson, 235 F.3d 959, 961-62 (5th Cir. 2000).

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II. Procedural History and Background

On November 17, 2017, in the 357th Judicial District Court of Cameron County, Texas, a jury convicted Nunez of “aggravated sexual assault of a child” and “indecency with a child by sexual contact.” Dkt. No. 14-35 at 5-6 (containing the judgment in The State of Texas v. Neftaly Nunez, a/k/a Neftali Nunez Gonzalez a/k/a Neftali Nunez, Case No. 2017-DCR-01275-E). The jury additionally found that Nunez should serve a sixty-year term of imprisonment for the aggravated sexual assault of a child conviction (hereinafter, the “count 1” or “sexual assault” conviction), and a concurrent twenty-year term of imprisonment for the indecency with a child by sexual contact conviction (hereinafter, the “count 2” or “indecency” conviction. Id. The 357th Judicial District Court (hereinafter, the “trial court”) entered its Judgment of Conviction on that same 17th day of November, 2017. The Thirteenth Court of Appeals affirmed Nunez's judgment of conviction on April 25, 2019. Dkt. No. 14-13 at 34; Nunez v. State, No. 13-17-00671-CR, 2019 WL 1831715, at *16 (Tex. App. Apr. 25, 2019, pet. ref'd) (mem. op., not designated). The Texas Court of Criminal Appeals (hereinafter, the “TCCA”) refused Nunez's petition for discretionary review on August 21, 2019. Dkt. No. 14-23 at 1; Dkt. No. 1 at 3.

In affirming his conviction, the Thirteenth Court of Appeals summarized the background facts of Nunez's case as follows:

S.L., the child complainant in count one, testified that Nunez is a friend of her mom's friend, SC According to S.L., SC and Nunez spent a lot of time with S.L.'s family, including on the date of the alleged incident January 9, 2013. S.L. asserted that Nunez was asked to get soda for a party and that she and Nunez left together to acquire soda. S.L. claims that Nunez took her to a remote area and sexually assaulted her before returning to the party. S.L. also admitted that she did not like Nunez because she witnessed him grabbing S.C.'s throat and pushing her
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A.G., the child complainant in count two, is the daughter of S.C. According to A.G., Nunez touched her breast and “private part” two times when she was about seven or eight years old and lived in an apartment. She testified that Nunez additionally touched her breast and “private part,” both over and under the clothes, twice while she was at her grandmother's house. She further testified that Nunez touched her breast and penetrated her “private part” with his finger three times while living in a trailer.
Sonja Edelman, a forensic nursing expert for the State, testified regarding female physiology, sexual assault, and her experience conducting interviews of sexual assault complainants. Detective Sam Lucio, a police detective for the City of Brownsville, the lead investigator in the case, testified about his investigations in this case. After the State rested, Nunez's wife, Joanna Nunez, testified that she married Nunez in 2010. According to her, she “ended the marriage because he cheated on me with [S.C.], the victim's mother.” Joanna claimed that S.C. has had contact with Nunez in the last year.
Nunez took the stand and denied touching either of the child complainants. He asserted that the grandmother's house was so small, he never would have been alone with the children long enough to have to commit the alleged offenses.

Dkt. No. 14-13 at 2-3; Nunez v. State, No. 13-17-00671-CR, 2019 WL 1831715, at *1 (footnotes omitted, formatting altered).[1]

Nunez filed an application for a state writ of habeas corpus on or about June 29, 2020. Dkt. No. 14-35 at 24.[2] On May 25, 2021, the state habeas court, which was also

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Nunez's trial court, found that Nunez's habeas application lacked merit in its “Findings of Fact, Conclusions of Law, and Order” (hereinafter, “Habeas Order”). Dkt. No. 14-34 at 14-19. The TCCA then denied his application without a written order on July 28, 2021. Dkt. No. 14-24 at 1 (denying Nunez's application “without written order on findings of trial court without hearing and on the court's independent review of the record”).

Nunez filed his instant Petition on August 24, 2021. Dkt. No. 1.[3] He subsequently filed his Memorandum in Support on September 8, 2021. Dkt. No. 11 at 21. Nunez's Petition and Memorandum in Support list numerous grounds for relief including claims of trial court error, ineffective assistance of counsel, and prosecutorial misconduct. Dkt. No. 1 at 6-7; Dkt. No. 11 at 1-20. Lumpkin filed his Motion for Summary Judgment on November 2, 2021. Dkt. No. 16. His Motion asserts that all of Nunez's claims should be denied because they lack merit, and that a certificate of appealability should not issue. Id. at 1, 24. Nunez filed a “Response” to Lumpkin's Motion for Summary Judgment on or about December 8, 2021. Dkt. No. 20. Lumpkin has not filed a reply.

III. Nunez's Claims

As noted above, Nunez's Petition and Memorandum in Support assert claims of trial court error, ineffective assistance of counsel, and prosecutorial misconduct. Dkt. No. 1 at 6-7; Dkt. No. 11 at 1-20. More specifically, he presents the following claims in the following categories:

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A. Prosecutorial Misconduct Claims. The prosecution improperly:

(1) told the jury that S.L. was so traumatized by his alleged abuse that she had Post-Traumatic Stress Disorder (“PTSD”) and was suicidal, even though there was no evidence in the record to support these claims;
(2) vouched for the veracity of the complainants multiple times;
(3) told the jury, without foundation, that he was a pedophile, a predator, a liar, and “not like the rest of us[;]”
(4) asked the jury to “send a message” to Cameron County and the State of Texas that pedophiles are not tolerated;
(5) told the jury that he had not shown remorse. Dkt. No. 1 at 6; Dkt. No. 11 at 2, 13, 15-16.

B. Confrontation Clause Violation Claim. The trial court violated his Confrontation Clause rights. The trial court did this when it allowed Officer Sam Lucio to testify about what S.L's mother told him, about what a “Tropical Texas” representative told her.[4] Officer Lucio's testimony contained third-party hearsay because S.L's mother did not testify, nor did the Tropical Texas representative. Dkt. No. 1 at 7; Dkt. No. 11 at 2-4, 6-7, 16-19.

C. Biased Juror Claim. The trial court improperly allowed a biased juror to serve on the jury. During jury selection, venire member 56 stated that A.G. had been one of her students and that she knew some of the witnesses as well. When asked if her knowledge of these individuals would impair her ability to be fair and impartial, this venire member said that she could not be 100 percent certain that she could be fair, though she would try her best. Venire member 56 was never rehabilitated and ultimately became juror number 12. Dkt. No. 1 at 7; Dkt. No. 11 at 7-8, 19-20.

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D. Ineffective Assistance of Counsel Claims. His trial counsel provided ineffective assistance by:

(1) failing to object to the above-referenced instances of prosecutorial misconduct;
(2) failing to object when his Confrontation Clause rights were violated;
(3) failing to strike a biased juror;
(4) failing to seek a new jury pool when a venire member made comments during voir dire that biased the whole pool against him;
(5) introducing inadmissible extraneous offense evidence against him;
(6) failing to present any mitigating evidence at the punishment phase of the trial;
(7) failing to require the trial court to make an outcry witness designation. Dkt. No. 1 at 6; Dkt. No. 11 at 2, 4-20.

IV. Governing Law

A. 28 U.S.C. § 2254.

The applicable provisions of the Antiterrorism and Effective Death Penalty Act (“AEDPA”)[5] govern petitions brought under 28 U.S.C. § 2254. See Lindh v. Murphy, 521 U.S. 320, 335-336 (1997). Pursuant to the AEDPA, a federal court may not grant habeas relief based upon a claim that was adjudicated on the merits by a state court unless the petitioner demonstrates that the state court's decision: (1) “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) “was based on an

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unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); See also Harrington v. Richter, 562 U.S. 86, 97- 98 (2011) (same). “This standard is difficult to meet but ‘stops short of imposing a complete bar on federal court relitigation of claims already...

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