Roldan v. Dir., Tdcj-Cid

• Decision Date: 21 April 2022
• Docket Number: Civil Action 6:21cv096
• Parties: VERONICA ROLDAN v. DIRECTOR, TDCJ-CID
• Court: U.S. District Court — Eastern District of Texas

VERONICA ROLDAN v. DIRECTOR, TDCJ-CID

Civil Action No. 6:21cv096

United States District Court, E.D. Texas, Tyler Division

April 21, 2022

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

JOHN D. LOVE, UNITED STATES MAGISTRATE JUDGE.

Petitioner Veronica Roldan, an inmate of the Texas Department of Criminal Justice proceeding through counsel, filed a petition for a writ of habeas corpus and paid the filing fee. The petition was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law and recommendations for the disposition of the case.

Procedural History

Petitioner challenges her 2018 conviction in Panola County, Texas, for aggravated assault. She was indicted on May 27, 2009, for “knowingly or recklessly caus[ing] serious bodily injury” to the victim, Michelle Adams, on or about April 26, 2009. (Dkt. #15-1 at 7.) Petitioner waived formal arraignment and pleaded not guilty on June 23, 2009. (Id. at 16.) In an “Announcement of Not Ready” filed by counsel on December 17, 2009 Petitioner observed that the case was set for jury selection to begin on January 25, 2010, and advised the court that she was not ready for trial. (Id. at 27.) In a letter submitted by facsimile more than a year later, on April 15 2011, counsel announced that the defense was ready for trial. (Id. at 28.)

On January 14, 2018, after a lengthy unexplained gap in the record, the prosecutor mailed counsel the state's witness list. (Dkt. #15-1 at 30-31.) A notice from the presiding judge dated February 6, 2018, advised Petitioner of several upcoming dates in the criminal proceedings, beginning with a docket call set for February 27, 2018, and concluding with a jury trial to begin on June 11, 2018. (Id. at 29.) When Petitioner did not appear for the February 27 docket call, a warrant was issued for her arrest. (Id. at 32.) On March 23, 2018, Petitioner moved, through new counsel, for release on bail on the basis that she was “innocent of the charges against her and [was] entitled to a bond.” (Id. at 35.) She was released on bond on March 26, 2018. (Id. at 45-46.) She again formally waived arraignment, pleaded not guilty, and agreed to set the case for trial. (Id. at 43.) A new scheduling order set the case for a first pretrial conference on April 16, 2018, and for jury trial on June 11, 2018. (Id. at 44.) That order was later modified to set the first pretrial conference for July 12, 2018, and a jury trial in September and/or October 2018. (Id. at 55.)

On September 13, 2018, not long before trial was expected to begin, Petitioner, through counsel, filed a motion to dismiss the charges against her based on a violation of her right to speedy trial under the United States and Texas constitutions. (Dkt. #15-1 at 58-59.) She observed that the case had been pending for more than nine years since indictment and asserted that there was “no justification for the nine year delay in the trial of this cause.” (Id. at 58.) She also asserted that the delay had prevented her from being able to locate and interview witnesses and from preparing a defense, through no fault of her own. (Id. at 59.) In a subsequent memorandum in support of her motion, Petitioner suggested that some witnesses who were available were now hampered by criminal records or faded memories, though she implicitly acknowledged that none of her attorneys had asserted a right to speedy trial on her behalf until that month. (Id. at 78-85.) She also “concede[d] that there may not have been deliberate attempts at delay [by the state] but anticipate[d] the State to cite negligence or court crowding as the reason” for the lengthy delay. (Id. at 82.) Her summary of the relevant procedural history of the case was:

This case was set for a docket on April 30, 2009 and again on April 15, 2011. Then the next docket noted in the file of the District Clerk was February 27, 2018. From a review of the Clerk's file it appears that this case went for almost seven (7) years without even being on a docket, apparently due to a decision of the District Attorney of Panola County.

(Id. at 82.) The trial court denied the motion without written explanation on September 20, 2018. (Id. at 94.)

The prosecutor sent counsel a lengthy amended witness list, including addresses and some phone numbers, on September 14, 2018. (Dkt. #15-1 at 61-62.) Four days later, Petitioner sought subpoenas for several of those witnesses. (Id. at 65-66.) The prosecutor shared yet another amended witness list on September 19, 2018 (id. at 75-77), and Petitioner sought more subpoenas on September 24, 2018. (Id. at 95-96.) A jury was selected that same day. (Id. at 109.)

The jury found Petitioner guilty of aggravated assault on September 26, 2018. (Dkt. #15-1 at 122-30, 132.) On November 1, 2018, the trial court sentenced Petitioner to nine years in the Texas Department of Criminal Justice. (Id. at 164.) On November 2, 2018, Petitioner filed both a motion for new trial and a notice of appeal. (Id. at 151-55.) The trial court ordered Petitioner released on a $25,000 bond pending appeal. (Id. at 156.) It presumably denied the motion for new trial, although the Court has found no written order to that effect in the record.

The Texas Court of Appeals for the Sixth Appellate District of Texas affirmed Petitioner's conviction and sentence on August 29, 2019, ruling against Petitioner on the single claim she raised- that the charge against her should have been dismissed based on the alleged speedy trial violation. (Dkt. #15-14.) It also denied her motion for rehearing on September 17, 2019. (See Dkt. #15-18 at 8.) Petitioner sought discretionary review from the Texas Court of Criminal Appeals (Dkt. # 15-18), which was denied on January 15, 2020. (See Dkt. #15-24 at 3.) Her request for reconsideration and en banc rehearing was denied on March 25, 2020. (See Dkt. #5 at 3.)

Petitioner sought state habeas relief on May 5, 2020 (Dkt. #15-27 at 8-44), which the Texas Court of Criminal Appeals denied without written order on July 29, 2020. (Dkt. #15-25.) Nevertheless, the trial court proceeded to designate issues for factual development and to consider briefing and set a hearing on Petitioner's habeas petition. (Dkt. #15-26 at 17.) According to Petitioner, on the date set for the hearing-December 16, 2020-the trial court observed that it lacked jurisdiction to act on the petition because the Texas Court of Criminal Appeals had already denied it. (Dkt. #16 at 4.) On January 14, 2021, the trial court found Petitioner had failed to demonstrate a right to relief and entered written Findings of Fact and Conclusions of Law recommending denial of habeas relief. (Id. at 47-58.)

Petitioner filed her federal petition on March 8, 2021, and Respondent does not dispute its timeliness. (Dkt. #14 at 5-6.)

Facts

Respondent's summary of the facts adduced at trial, lifted from the prosecution's summary in state habeas proceedings, is as follows:

Roldan took the stand in her own defense at trial, admitting that she beat Michelle Adams with her fists until her hands were wet with Adams' blood. Roldan and her then boyfriend John Sholar had attended a party on the evening of April 25, 2009, at the home of one of Sholar's friends. According to Roldan, Michelle Adams and another girl, Brendon Conway, had been goading her, making insulting remarks and calling her a “stupid ass Mexican.” Roldan got into shoving matches with the two girls, then left with Sholar.

Roldan and Sholar returned to the party about an hour and a half later. Conway met Roldan at Sholar's car and apologized for the earlier confrontation. But Roldan claimed that Adams continued to provoke her. Roldan testified that Adams, who was intoxicated, was swinging her arms wide; she had a beer can in her hands, and when she swung her arms around, she spilled beer all over Roldan. Roldan admitted that Adams never took a swing at her. But Roldan punched Adams, and Adams hit the ground. According to her own testimony, Roldan got on top of Adams and hit her repeatedly in the face with her fists until her hands were wet with what she later realized was Adams' blood.

Roldan testified that Adams was hitting her back when she was on top of her on the ground. But other witnesses testified that Adams hit the ground unconscious after the first punch and that Roldan was on top of her, beating her about the head and face with her fists. Sholar testified that he had to pull Roldan off Adams by her hair.

Michelle Adams testified “it felt like my face exploded. It felt like I could feel this bone right here crush, and I felt my face crush, and I thought I was dead, and I passed back out.” The next thing she knew, Conway was carrying her to the truck to take her to the hospital. Adams suffered multiple broken bones, including a crushed sinus cavity, crushed orbital socket, and broken jaw, as well as frontal lobe brain trauma. She had to have two surgeries to reconstruct the orbital socket and sinus cavity; she will need a third surgery, and possibly more, to repair the nasal cavity. Adams was hospitalized for about a week after the assault; she was initially in a wheelchair then used a walker for the next five or six months.

(Dkt. #14 at 5-6 (citations omitted).)

Petitioner adds that trial testimony established that “Brendon ‘B.J.' Conway had earlier that evening physically attacked Roldan and wrestled her to the ground and choked Roldan because Roldan pushed Adams away from her after Michelle Adams had pulled Roldan's hair.” (Dkt. #16 at 4.)

Claims for Relief

The petition raises fifteen grounds for relief:

1. Petitioner's Sixth Amendment right to a speedy trial was violated. (Dkt. #5 at 11.)

2. Petitioner's Fourteenth Amendment right to due process was violated in...