Perez v. Davis

• Decision Date: 23 September 2016
• Docket Number: CIVIL NO. 2:15-CV-423
• Parties: ROBERTO PEREZ, Petitioner, v. LORIE DAVIS, Respondent.
• Court: U.S. District Court — Southern District of Texas

ROBERTO PEREZ, Petitioner, v. LORIE DAVIS, Respondent.

CIVIL NO. 2:15-CV-423

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

September 23, 2016

MEMORANDUM AND ORDER

In this habeas corpus proceeding under 28 U.S.C. § 2254, Petitioner Roberto Perez ("Perez") challenges his 25-year and 14-year concurrent sentences imposed after he pleaded guilty to possessing at least one, but not more than four, grams of cocaine, and less than one gram of heroin. See Indictment, D.E. 8-7 at 5-6; Judgment, ibid. at 66-67; Tex. Health & Safety Code Ann. § 481.115(a-(c) (Vernon 2009) (making possession of less than one gram of heroin a state jail felony and possession of 1-4 grams of cocaine a third-degree felony). Perez's habeas claims center on a hearing held November 30, 2012, on his motion to suppress and the state trial court's denial of that motion at the hearing's conclusion. See Tr. Hr'g held Nov. 30, 2012, D.E. 8-6 at 1-52. The Court has before it Respondent's motion for summary judgment, D.E. 11; Perez's response, D.E. 14; the Memorandum and Recommendations ("M&R") of the magistrate judge to whom this case was referred, D.E. 15, recommending that the Court grant the motion for summary judgment; and Perez's objections to the M&R, D.E. 18. After conducting a de novo review of the record, the parties' submissions, and the applicable law, the Court adopts the M&R in part, and dismisses all of Perez's claims.

I. Background

In addition to pleading guilty to the possession charges referenced above, Perez also pleaded to an enhancement paragraph, D.E. 8-7 at 5, alleging that he was convicted of burglary of a habitation in 2000 and aggravated assault of a public servant in 2004. He therefore received the minimum punishment for a third felony conviction mandated by Tex. Pen. Code § 12.42(d) (Vernon Supp. 2011).

Perez's trial counsel, Gabriel Salais ("Salais"), filed a pretrial motion to suppress, alleging that Perez was arrested without probable cause on March 22, 2012. D.E. 8-7 at 16-17. At the suppression hearing, the state trial court heard testimony from Robstown, Texas, police officer Ernest Martinez ("Martinez") and Perez's father, Diociano Perez, Jr.. See Hr'g Tr., D.E. 8-6 at 1-42. The state trial court also admitted into evidence, and viewed, a recording made March 22, 2012, by a camera mounted on the dashboard of Martinez's vehicle ("Martinez video"). See id. at 12: 11. That video has been made part of the record in this proceeding, and this Court has reviewed it together with the transcript of Perez's suppression hearing. See D.E. 19 at 1 (ordering Respondent to file video); 22 (acknowledging filing of video).

Texas's Thirteenth Court of Appeals summarized Martinez's testimony this way:

[O]n the afternoon of March 22, 2012, he observed "a vehicle parked on the wrong side of the road and what appeared to be a hand-to-hand transaction." Officer Martinez noted that this apparent transaction took place in an area of Robstown where police had "been dealing with a lot of narcotics." It appeared to the officer that two individuals standing outside the vehicle "were passing back and forth an item." Officer Martinez testified that, as soon as the two individuals saw that a police officer was present, they "tried to leave that area" and attempted to get back into the parked vehicle. Officer Martinez asked the men to stop. Officer Martinez stated that he recognized Perez as one of the individuals as a result of Perez's "prior experiences through the Robstown Police Department." The other individual was identified as Ricky Guzman.

Officer Martinez testified that both Perez and Guzman were "acting totally different and extremely nervous" and that Perez "had his eyes wide open." The officer stated: "The way [Perez] looks at me and the way he immediately starts acting, I—that's not something normal that a normal citizen would have done."

According to Officer Martinez, as soon as Perez saw him, Perez "tried to wave down another vehicle. And it was a city vehicle, so I don't know why he was trying to wave them down." Because the officer did not feel safe, he conducted a pat-down. At that point, Perez informed Officer Martinez that he had a syringe in one of his pockets. Officer Martinez placed Perez under arrest for possession of drug paraphernalia. He then asked Perez to stay in place while he questioned Guzman. Police officer John Garcia arrived to assist and observed what appeared to be drugs "right next to [Perez's] feet."

The video shows Perez walking away from an unidentified male and towards Guzman's car as Officer Martinez approaches in his patrol unit. Guzman's car is parked in front of a residence on the left side of a residential street. Perez is about to open the passenger-side front door of Guzman's car when Officer Martinez pulls up and stops behind Guzman's car. At that point, Perez closes the car door and looks quizzically at the patrol unit. A white pickup truck then passes by, and Perez attempts to get the attention of the truck's driver by waving. Officer Martinez gets out of his unit, directs Perez to stand at the rear of Guzman's car, and proceeds to question Guzman, who is sitting in the driver's seat. When Perez is standing near the rear of Guzman's vehicle, he appears to attempt to kick at something on the ground. Later, Officer Garcia arrives and picks up a small baggie containing a white substance from the area where Perez was standing.

On cross-examination, Officer Martinez conceded that, although his police report described Perez emerging from Guzman's car before the "hand-to-hand transaction" took place, the video recording did not show that. Officer Martinez explained that the patrol unit's video camera "is not going to capture exactly what I could see from the window." Officer Martinez further conceded that there is "[n]othing illegal" about conducting a "hand-to-hand transaction"; rather, "it's just suspicious, when that whole area is known for drug activity and there is a car parked on the side [of the road]." He agreed with defense counsel that the "hand-to-hand transaction" he observed might have been a handshake. He further conceded that Perez's father works for the City of Robstown, although he did not remember seeing Perez's father driving the "city vehicle" that Perez tried to "wave down." Officer Martinez agreed with defense counsel that Perez never made any "furtive movements."

Perez v. State, No. 13-13-00017-CR, 2013 WL 6175328, at *1-2 (Tex. App.-Corpus Christi Nov. 21, 2013) (mem. op., not designated for publication)(quoting transcript). The foregoing quote reasonably characterizes the Martinez video.¹

Additionally, the first 22 seconds of the Martinez video depict a view of the street as Martinez drives. He makes a right turn, approaches another intersection, and begins turning left at 00:20. Three seconds later, the vehicle parked on the left side of the street, Perez, and another individual wearing what appears to be a black shirt, Fabian Amaya ("Amaya"), come into view as Martinez completes the turn. When they first appear in the Martinez video at 00:23, Perez and Amaya are standing near the driver's side of the parked vehicle, and the video shows a movement that could reasonably be found to be a hand-to-hand exchange.

The state trial court denied Perez's motion to suppress. D.E. 8-6 at 50:19-51:24.

When I first saw the video, and I guess I've seen the same video now about six times, my - I could not see what the officer was testifying to. However, when you consider that the video or camera is in the middle of the car and the car is turning, that camera is facing this way, there is no question he could be observing activity or movement here before the camera comes around the car and is situated straight on that street. There is no question, and I have read many cases, that it's the totalitariness of the situation that the officer is allowed to rely on. If we look at here what we see him is leaving the illegally parked vehicle. The officer has the right to investigate with regards to the illegally parked vehicle, but when he sees is an illegally parked vehicle, he sees an individual leaving that vehicle, coming across meeting something, he sees something, a hand-to-hand transaction, that allows for a suspicion to develop. He goes back to the car, he is dealing with, now, nervousness, bug eyes, and then the sweating. He pats him down and he admits to a dangerous drug, that's when he takes him into custody. I believe based upon the - what I understand to be the totality of the situation or reasonable suspicion, it's not like we could isolate one individual fact, the officer has to rely on everything that he's seen and it's happening, boom, boom, boom. And so I am going to deny your motion to suppress. I do not findit to have - him to have been illegally detained. As a result I don't have to get to the issue of what he dropped, as to whether or not it can be considered.

Id.

Perez appealed, and Texas's Thirteenth Court of Appeals affirmed. Perez v. State, No. 13-13-00017-CR, 2013 WL 6175328 (Tex. App.-Corpus Christi Nov. 21, 2013) (mem. op.). Through counsel, Perez argued on appeal that Martinez lacked reasonable suspicion to conduct an investigative stop. The state appellate court held that the evidence viewed in the light most favorable to the trial court supported the conclusion that Martinez had reasonable suspicion for the investigative stop. Id. at *3-5. The Court of Appeals distinguished three cases cited by Perez, stating that "Martinez testified as to additional 'articulable facts' that would support reasonable suspicion in this case." Id. at *4. Specifically, "Martinez testified that Perez emerged from a vehicle that was parked on the wrong side of the road. The officer could have logically inferred from this fact alone that Perez and [the driver] were involved in criminal activity; i.e., violating traffic laws by driving on the wrong side of the...