Rodriguez v. Lumpkin
| Decision Date | 18 May 2022 |
| Docket Number | Civil Action 7:21-CV-285 |
| Parties | DAVID RODRIGUEZ, TDCJ #02104651, Petitioner, v. BOBBY LUMPKIN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
REPORT & RECOMMENDATION
Petitioner David Rodriguez, a state prisoner proceeding pro se, initiated this action in July 2021 by filing a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) This case was referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636(b). On January 18, 2022, Respondent filed a Motion for Summary Judgment with Brief in Support. (Dkt. No. 10.) On March 25, 2022, Petitioner filed Petitioner's Response to Respondent's Motion for Summary Judgment ("Petitioner's Response"). (Dkt. No. 14.) On March 25, 2022, Petitioner also filed a Motion for Appointment of Counsel (Dkt. No. 15) and Motion for Evidentiary Hearing (Dkt. No. 16).
Petitioner seeks review of being found guilty by a jury in Hidalgo County, Texas, of aggravated sexual assault of a child in November 2016, and his subsequent mandatory sentence to life imprisonment based on his repeat sexual offender status. See Dkt. No. 1; Rodriguez v. State, No. 13-16-00653-CR, 2018 WL 2252885, at *1 (Tex. App.-Corpus Christi May 17, 2018, pet. ref d). Petitioner seeks habeas review at this stage based on various claims of ineffective assistance of counsel, including a Confrontation Clause claim, failure to object to certain evidence presented at Petitioner's trial, failure to investigate matters involved in Petitioner's case, and generally for the cumulative effect of counsel's errors. (Dkt. No. 1 at 6-7,11-16.)
Respondent argues that Petitioner's claims are time-barred from habeas review (Dkt. No. 10); Petitioner claims they are not and seeks federal habeas review (Dkt. No. 14).
After carefully reviewing the filings, record, and relevant law and for the reasons set forth below, Petitioner's claims are time-barred from review. Therefore, the undersigned recommends Respondent's Motion for Summary Judgment (Dkt No. 10) be GRANTED, Petitioner's Motions for Appointment of Counsel (Dkt. No. 15) and for Evidentiary Hearing (Dkt. No. 16) be DENIED as moot, Petitioner's § 2254 petition (Dkt. No. 1) be DISMISSED, and this cause of action be closed.
Finally, it is recommended that the District Court DECLINE to issue a Certificate of Appealability in this matter.
The Court has jurisdiction over habeas cases pursuant to 28 U.S.C. § 1331. A habeas petition may be filed in either the district where a petitioner is in custody or in the district where a petitioner was convicted. 28 U.S.C. § 2241(d); Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir. 2000); see also Granger v. Lumpkin, No. CV 4:21-1408,2021 WL 1723480, at *1 (S.D. Tex. Apr. 30, 2021). As noted, Petitioner was convicted in the state district court out of Hidalgo County, Texas; therefore, this petition is filed within the appropriate court. 28 U.S.C. § 124(b)(7).
On November 10, 2016, after a tbxee-day jury trial in the 139th District Court, Hidalgo County, Texas, Petitioner was found guilty of aggravated sexual assault of a child. (Dkt. No. 11-16, Nov. 10, 2016 Trial Tr. at 113:19-21.) Petitioner had initially been charged in a two-count indictment with (1) aggravated sexual assault of a child younger than 14 years of age on or about July 20, 2015, by intentionally and knowingly causing the penetration of the victim's anus by the Defendant's sexual organ, and (2) continuous sexual abuse of a child, when the Petitioner was 17 years of age or older and the victim was younger than 14 years of age, on two or more occasions, during a period that was 30 days or more in duration, from on or about April 21, 2015 to July 21, 2015, in Cause No. CR-4997-15-C. See Dkt. No. 11-70 at 20-21; see also Tex. Penal Code §§ 22.021,21.02 (West 2017). The j ury acquitted Petitioner as to each of the charged allegations but convicted Petitioner as to the lesser-included offense of Count Two-aggravated sexual assault of achild.[1] (Dkt.No. 11-16, Nov. 10,2016 Trial Tr. at 113:19-21,116:1-3.) Regarding each count, the State provided notice within the indictment that, prior to said allegations, Petitioner had been convicted of an offense under Texas Penal Code § 22.011, sexual assault of a child on September 18, 2008, in the 139th District Court, Hidalgo County, Texas. (Dkt. No. 11-70 at 20-21.) With said notification, and upon conviction of either count the sentence was automatic life in prison. See Dkt. No. 17 at 5-8; Tex. Penal Code § 12.42(c)(2). The same applied to a conviction for the lesser-included offense of aggravated sexual assault of a child. Tex. Penal Code § 12.42(c)(2). On November 21, 2016, Petitioner was sentenced to automatic life in prison as mandated by statute. (Dkt. No. 11-17, Nov. 21, 2016 Sentencing Tr. at 7:23-24).
As for the previous conviction, on September 18, 2008, Petitioner had pled guilty to one count of sexual assault of a child in Cause No. CR-2567-08-C and by plea agreement was placed on seven years of deferred adjudication. (Dkt No. 11-29 at 39-43 (" of Deferred Adjudication & Community Supervision"); see also Dkt. No. 11-36 at 6-14.) The pending motion for adjudication of guilt[2] in Cause No. CR-2567-08-C was carried forward pending the trial in the new matter even though Petitioner's counsel indicated Petitioner would plead true to the allegations in the petition. Id. at 9. On November 21, 2016, Petitioner's deferred adjudication was revoked, and he was sentenced to 10 years in state prison to run concurrent with the life sentence. (Dkt. No. 11-17, Nov. 21, 2016 Sentencing Tr. at 1-10.)
In summary, the evidence presented at trial established that the victim, Petitioner's niece, provided an outcry statement to another family member that her uncle, Petitioner, had been inappropriately touching her in her private area several times while the victim resided in the same residence as her mother, her brother, her grandfather, and Petitioner. (Dkt. No. 11-15, Nov. 9, 2016 Trial Tr. at 94-114.) At the time of the outcry and allegations, the victim was seven years old, and Petitioner was over 17 years old. (Dkt. Nos. 11-15, Nov. 9, 2016 Trial Tr. at 29:16-17; 11-16, Nov. 10, 2016 Trial Tr. at 21:18-20.) Besides the initial outcry to a family member, the victim had set forth the same allegations against Petitioner when interviewed by a S.A.N.E. nurse and the victim testified to such abuse at trial. (Dkt. Nos. 11-18 at 36 (State's Exhibit 20); 11-15, Nov. 9, 2016 Trial Tr. at 95-101.) Further, during the trial, the S.A.N.E. nurse testified that the victim's brother, who is a year older than the victim, stated to the nurse that his sister (the victim) told the brother about the touching and the brother was going to inform their dad, but the victim would not let him. (Dkt. No. 11-15, Nov. 9, 2016 Trial Tr. at 76:4-8.) Evidence was also presented that law enforcement found references to two videos on a cell phone connected to Petitioner with titles referencing an adult having sex with a child and child pornography. (Dkt. No. 11-14, Nov. 8, 2016 Trial Tr. at 154:15-25.) After hearing testimony from the victim, the S.A.N.E. nurse, the victim's counselor, law enforcement, family members, and witnesses for Petitioner, the jury returned a verdict to the noted lesser-included offense. (Dkt. No. 11-16, Nov. 10, 2016 Trial Tr. at 113:19-21.)
Petitioner subsequently appealed the conviction and sentence in each matter. On November 28, 2017, after appellate counsel filed an Anders brief, Petitioner filed objections to said brief with the Thirteenth Court of Appeals. See Appellant's Objections to App. Couns. Anders Brief, Rodriguez, 2017 WL 6268763, at *l-3. On May 17, 2018, the trial court's judgment was affirmed. See Dkt. Nos. 11-1, 11-2, 11-56, 11-57; Rodriguez, 2018 WL 2252885, at*l.
On June 18,2018, Petitioner filed a motion requesting an extension of time to file a petition for discretionary review (PDR). (Dkt. No. 11-62.) On June 20, 2018, the Court of Criminal Appeals granted said extension and provided Petitioner until August 21, 2018 to file his petition. (Dkt. Nos. 11-26,11-58). On August 24,2018, the Clerk of the Texas Court of Criminal Appeals (TCCA) received the petition. (Dkt. Nos. 11-27, 11-59, 11-63.) On November 7, 2018, the Petitioner's PDR was refused. (Dkt. Nos. 11-28, 11-60.) On February 5, 2019, 90 days after Petitioner's PDR was refused, his conviction became final. See 28 U.S.C. § 2244(d)(1)(A); see also Sup. Ct. R. 13(1).
On January 26, 2020, Petitioner filed an application for state writ of habeas corpus with a supporting memorandum.[3] (Dkt. No. 11-70 at 61, 102.) On February 25, 2020, the State filed a response. Id. at 138-64. On March 3, 2020, the district court judge for the 139th District Court, Hidalgo County, Texas, ordered Petitioner's prior counsel, Alfonso Ricardo Flores and Rogelio Solis ("Trial Counsel"), to develop the facts regarding the state habeas petition claims designated as Petitioner's Grounds Ten, Eleven, Twelve, and Thirteen,[4] each relating to allegations of Trial Counsel's ineffective assistance (the "Affidavit Order"). Id. at 166-68. On March 23, 2020 Petitioner filed a request for a "live evidentiary hearing" with the district court clerk. Id. at 181. On March 30, 2020, Rogelio Solis filed an affidavit in compliance with the Affidavit Order. Id. at 175-79. On November 6, 2020, the State filed a supplemental response to Petitioner's state writ. Id. at 187-214. On ...
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