Ochoa v. Davis

• Decision Date: 21 September 2016
• Docket Number: Civ. Action No. 3:09-CV-2277-K
• Parties: ABEL REVILL OCHOA, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

ABEL REVILL OCHOA, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice Correctional Institutions Division, Respondent.

Civ. Action No. 3:09-CV-2277-K

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

September 21, 2016

(Death Penalty Case)

MEMORANDUM OPINION AND ORDER DENYING RELIEF

Petitioner Abel Revill Ochoa, sentenced to death for capital murder, petitions the Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that his conviction and sentence are unconstitutional. For the reasons set out below, the Court DENIES the petition.

I. PROCEDURAL BACKGROUND

In 2003, Ochoa was convicted and sentenced to death for the capital murder of his wife and seven-year-old daughter during a shooting spree in which he killed five family members and seriously injured another. State v. Ochoa, No. F02-53582-M (194th Jud. Dist. Ct., Dallas Cnty., Tex. Apr. 23, 2003). The Texas Court of Criminal Appeals ("CCA") unanimously affirmed the conviction and death sentence. Ochoa v. State, No. AP-74,663 (Tex. Crim. App. Jan. 26, 2005). Ochoa's appointed counsel filed an initial post-conviction application for a writ of habeas corpus in the state trial court on February 11, 2005, and Ochoa filed a pro se a "Supplementation to the Initial Writ to be Filed for Post-Conviction Relief" on February 21, 2005. Ex parte Ochoa, No. W02-53582-M(A) (194th Jud. Dist. Ct., Dallas Cnty., Tex.). The trial court on habeas review made findings of fact and conclusions of law on May 7, 2009, recommending that relief be denied in W02-53582-M(A). The CCA expressly adopted those findings and conclusions in its order denying relief. Ex parte Ochoa, No. WR-67,495-02, 2009 WL 2525740 (Tex. Crim. App. Aug. 19, 2009). Ochoa also filed a pro se application to supplement his writ of habeas corpus in cause number W02-53582-M(B) on March 19, 2007, which was construed as a subsequent habeas application. Ex parte Ochoa, No. W02-53582-M(B) (194th Jud. Dist. Ct., Dallas Cnty., Tex. Apr. 9, 2007). The CCA found that the claims presented in the subsequent writ application failed to meet the dictates of Article 11.071, § 5 of the Texas Code of Criminal Procedure, and dismissed his subsequent application as an abuse of the writ. Ex parte Ochoa, No. WR-67,495-01, 2009 WL 2525740 (Tex. Crim. App. Aug. 19, 2009).

Ochoa then filed his original petition for a writ of habeas corpus in this Court on August 19, 2010 (Doc. No. 8). On December 18, 2012, Ochoa filed a motion to stay these proceedings pending the United States Supreme Court's decision in Trevino v. Thaler, which was granted. (Motion, Doc. No. 33; Order, Doc. No. 38.) Following the decision in Trevino, this Court reopened these proceedings and ordered supplemental briefing on the impact of Trevino on this case. (Order, doc. 40.)

II. FACTUAL BACKGROUND

The state court described the facts of the offense as follows:

1. The Court finds that the thirty-year-old Ochoa shot several family members after smoking crack cocaine on Sunday, August 4, 2002. (RR38: 112). The record reflects that, twenty minutes after smoking a ten-dollar rock of crack, Ochoa entered his living room and systematically shot his wife Cecilia, their nine-month-old daughter (Anahi), Cecilia's father (Bartolo), and Cecilia's sisters (Alma and Jackie). (RR33: 32-36). Ochoa reloaded his .9 mm Ruger and chased his 7-year-old daughter, Crystal, into the kitchen where he shot her four times. (State's Exhibit 2A; RR-Examining Trial: 14). Of the six victims, only Alma survived. (RR33: 40-41).

2. The record reflects that, minutes after the shooting, the police stopped Ochoa while driving his wife's Toyota 4Runner. (RR33: 97-98). Ochoa told the arresting officer that the gun he used was at his house on the table, that he could not handle the stress anymore, and that he had gotten tired of his life. (RR33: 105-06). In a search conducted after arrest, the police found a crack pipe, steel wool, and an empty clear baggie on Ochoa's person. (RR33: 109-110). Ochoa gave the police a detailed written statement recounting his actions in the shootings. (RR34: 35-46; State's Exhibit 2A).

(State Habeas Record ("SHR") at 349.) These findings are entitled to deference. See 28 U.S.C. § 2254(e)(1).

III. CLAIMS

Ochoa presents twenty-one claims for relief in ten groups, arguing:

Effective Assistance of Counsel at Punishment

1. His trial counsel was ineffective in failing to investigate and to present significant mitigation evidence in the punishment phase of his trial;

Jury Selection

2. His trial counsel was ineffective in failing to conduct an adequate voir dire of his capital murder trial;

3. His trial counsel were rendered ineffective during the voir dire of his capital murder trial by the trial court's rulings;

4. He was denied the right to be tried by a fair and impartial jury by the lack of an adequate voir dire;

5. His appellate counsel was ineffective in failing to raise the voir dire issues in his direct appeal;

Confrontation Clause

6. His right to confront and cross-examine witnesses as guaranteed by the Confrontation Clause of the Sixth Amendment was violated when the trial court allowed testimonial evidence before the jury;

7. His trial counsel was ineffective in failing to object to the State's use of testimonial statements on the basis that it violated the Confrontation Clause;

Full and Fair Defense

8. His right to present a fair defense under the Sixth and Fourteenth Amendments was violated by the trial court's exclusion of important rebuttal evidence;

9. His trial counsel was ineffective in failing to properly object to the exclusion of important rebuttal evidence at the punishment stage of his trial;

State's Expert Evidence

10. He was deprived of his right to due process by the State's presentation of unreliable psychiatric rebuttal testimony by Dr. Richard Coons;11. His appellate counsel was ineffective in failing to present the trial court's erroneous admission of Dr. Coons' testimony on direct appeal;

Shacking at Trial

12. His right to due process was violated when he was shackled during the punishment phase of his capital murder trial;

13. His trial counsel was ineffective in failing to object to the trial court's decision to place Ochoa in shackles;

Sufficiency of Evidence of Future Dangerousness

14. The evidence is legally insufficient to support the jury's answer to the first special issue finding that Mr. Ochoa would constitute a continuing threat to society;

Destruction of Evidence

15. He was deprived of rights to due process and to a fair trial when the State destroyed material and exculpatory evidence;

16. His trial counsel was ineffective in failing to preserve evidence in the State's possession or make a timely objection or motion to preserve it;

17. His appellate counsel was ineffective in failing to raise the State's unconstitutional destruction of evidence on direct appeal;

Mitigation Special Issue

18. He was denied due process and the right to be free from arbitrary and capricious punishment by the absence of a burden of proof for the mitigation special issue;

19. He was denied due process and the right to be free from arbitrary and capricious punishment by the absence of a definition of mitigating evidence in the court's charge to the jury;20. His trial and appellate counsel were ineffective in failing object at trial and present on direct appeal the complaints raised in his eighteenth and nineteenth claims;

Fair Cross Section

21. His Sixth Amendment rights were violated by the empaneling of a jury that was not selected from a fair cross section of the community.

See Pet. at 51-153. Ochoa also requests an evidentiary hearing (Pet. at 129-41, 163). Respondent asserts that Ochoa's first, second, third, fourth, fifth, eighth, ninth, tenth, eleventh, twelfth, thirteenth and twentieth claims are unexhausted and procedurally barred and in the alternative that they lack merit (Ans. at 22-59, 75-97, 122-23), that Ochoa's sixth, fifteenth, eighteenth, nineteenth and twenty-first claims were denied by the state court as procedurally barred and in the alternative that they lack merit (Ans. at 59-70, 100-108, 113-21, 124-34), and that the state court properly adjudicated the merits of Ochoa's seventh, fourteenth, sixteenth and seventeenth claims (Ans. at 70-75, 97-99, 108-13). (The Court applies Ochoa's numbering of claims, which differs from that of Respondent, who combined Ochoa's second and third claim.)

IV. STANDARD OF REVIEW

Federal habeas review of these claims is governed by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). This statute sets forth the preliminary requirements that must be satisfied before reaching the merits of a claim made in a federal habeas proceeding.

A. Exhaustion

Under this statute, a federal court may not grant habeas relief on any claim that the state prisoner has not first exhausted in the state courts. See 28 U.S.C. § 2254(b)(1)(A); Harrington v. Richter, 562 U.S. 86, 131 S. Ct. 770, 787 (2011). However, the federal court may deny relief on the merits notwithstanding any failure to exhaust. See 28 U.S.C. § 2254(b)(2); Miller v. Dretke, 431 F.3d 241, 245 (5th Cir. 2005).

B. State-Court Procedural Determinations

If the state court denies the claim on state procedural grounds, a federal court will not reach the merits of those claims if it determines that the state-law grounds are independent of the federal claim and adequate to bar federal review. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992); Coleman v. Thompson, 501 U.S. 722, 729 (1991). If the state procedural determination is based on state grounds that were inadequate to bar federal habeas review, or if the habeas petitioner shows that an exception to the bar applies, the federal court must normally resolve the claim without the deference to the adjudication that 28 U.S.C. § 2254(d) otherwise requires. See Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir. 2000) ("Review is de novo when...