Rodriguez v. Quarterman, Civil Action No. B-05-226.
| Decision Date | 09 October 2007 |
| Docket Number | Civil Action No. B-05-226. |
| Parties | Marco Antonio RODRIGUEZ, Petitioner, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
Mauro Ramirez, Jr., Vinson & Elkins, L.L.P., Houston, TX, for Petitioner.
Elizabeth A. Goettert, S. Michael Bozarth, Attorney Generals Off., Austin, TX, James L. Turner, Houston, TX, for Respondent.
Pending before this Court are Respondent's Motion for Summary Judgment (Docket No. 20), filed January 17, 2007, Respondent's Motion to Supplement Its Motion for Summary Judgment (Docket No. 25), Med November 3, 2006, and Petitioner's Second Motion for Extension of Time (Docket No. 32), filed June 4, 2007.
The Court, after considering the motions and pleadings filed in this case, hereby GRANTS Petitioner's Second Motion for Enlargement of Time (Docket. No. 32). In doing so, the Court will deem Petitioner's Objections to the Report and Recommendations of the Magistrate Judge and Respondent's Objections (Docket No. 33) as timely filed. This Court also GRANTS Respondent's Motion to Supplement Its Motion for Summary Judgment (Docket No. 25).
Having considered de novo the magistrate judge's report and recommendation and the issues raised by Respondent and Petitioner's objections, the Court hereby ADOPTS the Magistrate Judge's report and recommendation (Docket No. 26), except his conclusion on the issue of whether an interpreter was present during voir dire, as discussed below.
I. PETITIONER FAILED TO SHOW HE LACKED AN INTERPRETER BY CLEAR AND. CONVINCING EVIDENCE
Federal habeas relief is available only if the state-court decision is factually unreasonable. Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir.2000). When reviewing a state prisoner's federal habeas petition, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). This presumption is particularly strong where the trial judge and the state habeas judge are the same. Miller-El v. Johnson, 261 F.3d 445, 449 (5th Cir.2001). This deference applies not only to express findings of fact, but also to the implicit findings of the State court. Garcia v. Quarterman, 454 F.3d 441, 444-45 (5th Cir. 2006). Petitioner has the "burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Petitioner's state habeas application claimed, among other grounds, that the trial court committed reversible error when it failed to provide an interpreter during the entire proceedings. (See Petition for Writ of Habeas Corpus (Docket No. 3)). The Texas Court of Criminal Appeals denied Petitioner's application for habeas relief, including this ground, without written order. . Judge Garza served as both the trial court judge and the state habeas judge. (Id.)
Initially, this Court notes that the record is replete with references that without a doubt support a conclusion that Petitioner had an interpreter for the entire trial with the possible exception of voir dire or a portion thereof. Respondent argues the state habeas court made an implicit finding that Petitioner was not denied an interpreter throughout voir dire. (See Respondent's Motion); (Respondent's Objections to the Report and Recommendation of the United States Magistrate Judge) (Docket No. 30) (hereinafter "Respondent's Objections"). This Court agrees that the trial transcript and evidentiary hearing from the state habeas proceedings support an implicit finding that the state habeas court found Petitioner had an interpreter for all but the initial part of voir dire. Therefore, Petitioner has the burden of rebutting this presumption by clear and convincing evidence. See Miller-El 261 F.3d at 449.
While Petitioner's habeas petition claims he did not have an interpreter throughout the entire proceedings, his argument appears to focus on whether an interpreter was provided during voir dire and while a motion was argued on the first day of trial. (See Petitioner's Memorandum in Support of Application for Writ of Habeas Corpus (Docket No. 4)); (Petitioner's Objections to Report and Recommendations of the Magistrate Judge and Respondent's Objections (Docket No. 33)).
On October 4, 1999, the trial court began voir dire proceedings by introducing parties and their counsel. State of Texas v. Marco Antonio Rodriguez, Trial Tr. Vol. 2, p. 4, Oct. 4, 1999. One of Petitioner's counsel informed the trial court that Petitioner did not speak English and that he would need an interpreter. Id. The trial court responded it would "get an interpreter before we proceed." Id. at p. 5.
The trial court finished its introduction of the parties and attorneys, then proceeded to read the indictment to the jury and admonish the jury as to the burden of proof, the presumption of innocence, the punishment range, and the Petitioner's right to choose not to testify, the Petitioner's right to a jury trial. Trial Tr. Vol. 2, pp. 5-16. Petitioner's counsel then asked for an interpreter for the second time. Id. at p. 16. The trial court ordered, "Get me an interpreter." Id. The trial transcript then indicates there was a meeting at the bench, off the record. Id. It is unclear how long this meeting lasted. See Id.
The trial court then continued with voir dire. Trial Tr. Vol. 2, p. 16. The transcript does not indicate the arrival of an interpreter, however, Petitioner's counsel did not object to the continuing of volt dire, nor did he object that an interpreter was not present throughout the remainder of voir dire. See id. at pp. 16-79. At the conclusion of voir dire, the jury was excused. Trial Tr. Vol. 2., p. 79. Once the jury, was excused, the trial court stated, "We will get an interpreter for [Petitioner] in the morning." Id.
Petitioner argues the two objections to the lack of an interpreter, the failure of the record to indicate an interpreter ever arrived, and the statement by the judge at the end of voir dire prove by clear and convincing evidence that trial court never provided him an interpreter throughout all of voir dire. (See Petitioner's Objections).
Petitioner's appellate counsel had an opportunity to question his trial attorneys on the interpreter issue during an evidentiary hearing part of his state habeas corpus application. See, e.g., State of Texas v. Marco Antonio Rodriguez, Evidentiary Hearing Tr. Vol. 2, pp. 9, 24, Nov. 13, 2003. Both of Petitioner's trial counsel, Mr. Torteya and Mr. Cantu, were questioned. Id.
Petitioner's appellate counsel asked Mr. Torteya, "Do you recall [Petitioner] not having an interpreter for a day or so of the trial." Evidentiary Hearing Tr. Vol. 2, p. 9. Mr. Torteya responded, "I do not recall that." Id. Petitioner's appellate counsel asked Mr. Cantu, Id. at p. 24. Mr. Cantu responded, Id.
During the evidentiary hearing, Petitioner also testified, stating that "... everything that was said the first day — although I heard it — I didn't understand it." Evidentiary Hearing Tr. Vol. 2., p. 58. Petitioner testified that this situation existed during the entire, first day of trial and the beginning of the next day. Id. Only Petitioner's testimony clearly supports his contention that he lacked an interpreter during trial. The vast majority of the evidence is to the contrary. There are multiple references throughout the trial that an interpreter was present and was being used. The testimony of the trial counsel creates the possibility that another individual, possibly a guard, interpreted for Petitioner after the meeting at the bench during voir dire.1 See Trial Tr. Vol. 2, p. 16.
From the record, it appears that Petitioner lacked an interpreter on two occasions — once at the beginning of the voir dire proceedings and once at the commencement of third day of trial. See, e.g., Trial Tr. Vol. 2, p. 5; id. at p. 16; Trial Tr. Vol. 5, p. 3. Both times Petitioner's trial counsel quickly and diligently pursued an interpreter for his client. See id. The court reporter noted the summoning and presence of the interpreter during the third day of trial. Trial Tr. Vol. 5, p. 3.
It is unclear from the record why Petitioner's counsel would have all of a sudden ceased his objection to, the lack of an interpreter during voir dire. See Trial Tr. Vol. 2, p. 16. The only other time he ceased his objections was when an interpreter had been provided for his client. Trial Tr. Vol. 5, p. 3. This evidence does not clearly point toward the lack of an interpreter for the remainder of voir dire.
Respondent admits that the court reporter did not maintain a consistent method of recording whether Petitioner had an interpreter during trial. Compare Trial Tr. Vol. 2 (); Trial Tr. Vol. 3 (); Trial Tr. Vol. 4 (index and transcript); Trial Tr. Vol. 5 (transcript only); Trial Tr. Vol. 6 (transcript only). R...
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