Nunez v. Lumpkin
Decision Date | 23 August 2022 |
Docket Number | Civil Action 1:21-cv-131 |
Parties | NEFTALI NUNEZ, Petitioner v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent |
Court | U.S. District Court — Southern District of Texas |
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
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.
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).
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 ( ). 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) ( ). 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:
Dkt. No. 14-13 at 2-3; Nunez v. State, No. 13-17-00671-CR, 2019 WL 1831715, at *1 ( ).[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 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 ( ).
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.
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:
A. Prosecutorial Misconduct Claims. The prosecution improperly:
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. D. Ineffective Assistance of Counsel Claims. His trial counsel provided ineffective assistance by:
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 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...
To continue reading
Request your trial