Rosales v. Cockrell

• Decision Date: 25 September 2001
• Docket Number: No. Civ.A. 5:00-CV-216-C.,Civ.A. 5:00-CV-216-C.
• Citation: Rosales v. Cockrell, 220 F.Supp.2d 593 (N.D. Tex. 2001)
• Parties: Michael ROSALES, Petitioner, v. Janie COCKRELL<SMALL><SUP>1</SUP></SMALL>, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

Page 593

220 F.Supp.2d 593

Michael ROSALES, Petitioner, v. Janie COCKRELL¹, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. Civ.A. 5:00-CV-216-C.

United States District Court, N.D. Texas, Lubbock Division.

September 25, 2001.

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Philip Alan Wischkaemper, Attorney at Law, Snuggs & Wischkaemper, Lubbock, TX, Gary A. Taylor, Attorney at Law, Law Office of Gary Taylor, Austin, TX, for Michael Rosales.

Tommy Skaggs, Attorney at Law, Attorney General of Texas, Habeas Corpus Division, Austin, TX, Philip A. Lionberger, Attorney at Law, Attorney General of Texas, Solicitor General Division, Austin, TX, for Gary Johnson, Director TDCJ-ID.

S. Michael Bozarth, Attorney at Law, Attorney General of Texas, Law Enforcement Defense Div., Austin, TX, for Janie Cockrell, Director TDCJ-ID.

ORDER

CUMMINGS, District Judge.

Came on for hearing the above-styled and -numbered cause. Both parties appeared and announced ready. Having considered the testimony and arguments, as well as the pleadings, the state court records, and the relevant law, the Court enters the following Order, which constitutes the Court's findings of fact and conclusions of law.

I. BACKGROUND

A. Procedural Background

Petitioner Michael F. Rosales ("Rosales"), Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), identification no. 999274, is incarcerated pursuant to a judgment and sentence from the 364th Judicial District Court of Lubbock County, Texas, in cause no. 97-425,078. Rosales was indicted for the offense of capital murder in that cause on July 2, 1997. See Tex. Penal Code § 19.03(a)(2) (stating that a person commits the offense of capital murder if he commits murder as defined in § 19.02(b)(1) and he intentionally commits murder in the course of committing or attempting to commit, inter alia, burglary or robbery). Rosales pleaded not guilty and his jury trial commenced on April 6, 1998. The jury subsequently found Rosales guilty of capital murder, answered the punishment special issues affirmatively, and on May 20, 1998, the state trial court sentenced Rosales to death. Tex.Code Crim.P. art. 37.071 § 2 (Vernon's Supp.2001). Rosales was represented at trial by court-appointed attorneys Jesse Mendez and David Hazlewood.

Attorney David Duncan was appointed to represent Rosales on appeal and he filed a direct appeal which raised six points of error. See Clark v. Johnson, 227 F.3d 273, 283 (5th Cir.2000) (finding that a defendant sentenced to death in Texas appeals directly to the Court of Criminal Appeals). The Court of Criminal Appeals, however, affirmed the conviction and sentence of death in a published opinion issued on October 13, 1999. Rosales v. State, 4 S.W.3d 228 (Tex.Crim.App.1999).

The United States Supreme Court denied Rosales's petition for writ of certiorari on November 27, 2000.

On September 16, 1999, Rosales filed an application for a writ of habeas corpus in the state trial court and raised the following eleven grounds for review:

(a) ineffective assistance of counsel because his trial counsel failed to investigate and present mitigating evidence during the punishment phase of trial;

(b) ineffective assistance of counsel because his trial counsel failed to investigate and present evidence during the guilt-innocence phase trial that "questioned his guilt of capital murder" (c) ineffective assistance of counsel because trial counsel failed to investigate, obtain, and use evidence to impeach the State's witnesses and evidence during the guilt-innocence phase of trial;

(d) ineffective assistance of counsel because trial counsel failed to present live at trial two expert witnesses, originally retained by the State as consultants, who previously opined in written reports to the District Attorney that Rosales was not likely to be a continuing threat to society;

(e) ineffective assistance of counsel because the attorney handling his direct appeal failed to raise a point of error in the Court of Criminal Appeals challenging the sufficiency of the evidence on the jury's finding of future dangerousness;

(f) ineffective assistance of counsel because his attorney on direct appeal failed to raise a point of error in the Court of Criminal Appeals challenging the trial court's overruling of trial counsel's objection to testimony elicited by the prosecution on whether Rosales's expert on future dangerousness had interviewed Rosales;

(g) his Fifth Amendment right against self-incrimination when the trial court overruled his trial counsel's objection to testimony elicited by the prosecution on whether Rosales's expert on future dangerousness had interviewed Rosales;

(h) his Sixth Amendment right to confront the witness, Dr. Gary Mears, the State's expert on future dangerousness, because the trial court barred Rosales's trial counsel from impeaching Dr. Mears with excerpts from an incomplete and uncertified transcript from a previous trial in which Dr. Mears testified;

(i) ineffective assistance of counsel because his appellate attorney failed to argue that Rosales's constitutional rights under the Confrontation Clause were violated by the trial court's improper limitation on impeachment of Dr. Mears by means of the incomplete and uncertified trial transcript from a different proceeding;

(j) ineffective assistance of counsel because trial counsel failed to preserve the issue for appeal on whether the trial court erroneously prohibited trial counsel from impeaching Dr. Mears by means of the incomplete and uncertified trial transcript from a different proceeding; and

(k) his rights under the Due Process and Equal Protection clauses because of alleged errors in the Court's Charge on Punishment.

On February 28, 2000, the Honorable Bradley S. Underwood, the same judge who presided over Rosales's capital murder trial, determined that there were "no controverted, previously unresolved factual issues material to the legality of [Rosales's] confinement"; adopted the State's proposed findings of fact and conclusions of law; and recommended to the Court of Criminal Appeals that the application for habeas relief be denied.

On April 12, 2000, the Texas Court of Criminal Appeals adopted the trial court's findings and conclusions and denied Rosales's habeas application in an unpublished per curiam opinion.

Rosales filed the instant petition for writ of habeas corpus in this Court on November 29, 2000, and raised the same eleven grounds for review that he raised in his state habeas application. Respondent filed an answer to the petition, along with a motion for summary judgment and brief in support thereof, on January 30, 2001. Rosales's state court records were filed with this Court on July 27, 2000.

This Court conducted a hearing on February 27, 2001, regarding Rosales's federal habeas claims. Petitioner Michael Rosales was present and represented by attorneys Gary Taylor and Philip Wischkaemper; Respondent was represented by an Assistant Attorney General for the State of Texas. The only witness called to testify was Jesse Mendez, one of Rosales's trial attorneys, and he was examined and cross-examined. Both parties presented arguments in support of their respective positions.

B. The Offense

In the spring-summer of 1997, twenty-three-year-old Michael Rosales was staying with various friends and relatives in Lubbock, Texas. Rosales was originally from Lamar, Colorado, but had been to Lubbock a number of times, often staying with friends or relatives for several months at a time. Moreover, Rosales was on probation in Lubbock County for the felony offense of possession of a controlled substance in cause no. 95-420,425 in the 72nd Judicial District Court of Lubbock County, Texas. Although Rosales had previously violated the terms and conditions of his probation and was on intensive supervision on June 4, 1997, he had removed his electronic monitor and was avoiding his probation officer at that time.

Prior to June 4, 1997, Rosales had been convicted of the class A misdemeanor theft of property of the value of $200 or more but less than $750 in cause no. 91-483,570 in the County Court at Law # 1 of Lubbock County, Texas, and the class A misdemeanor burglary of a vehicle in cause no. 95-445,860 in the County Court at Law # 1 of Lubbock County, Texas.

Testimony at trial showed that sometime on Tuesday, June 3, 1997, Rosales went to the apartment of Angela Ammons ("Ammons") in the Four Seasons Apartments in Lubbock, Texas, and offered to share some beer with Ammons and Rosales's friend, Alfreda Latrice Bunton ("Bunton"). Rosales used the telephone several times while he was at the apartment and asked to borrow $10.00. When Bunton told Rosales that she did not have the $10.00, Rosales left the apartment. He returned several times during the night to make additional telephone calls.

At about 4:00 a.m., Rosales returned to Ammons's apartment and asked to use the telephone. Ammons let Rosales in the apartment, but Bunton was on the telephone with her boyfriend and would not let Rosales make a call. Rosales again left the apartment.

At about 5:00 a.m., Rosales knocked on Ammons's apartment door and repeated his request to use the telephone. Bunton went to the door, but suspecting that Rosales might be high on cocaine because of his agitated movements and red eyes, she refused to let him in the apartment. Rosales left and neither Ammons nor Bunton saw him again until later in the day on June 4, 1997.

Rudy Perez ("Perez"), who had known Rosales for approximately nine (9) years and occasionally allowed Rosales to stay in his apartment, lived in apartment no. 18 at the Four Seasons Apartments with his wife, children, and a niece. On June 4, 1997, Perez received a telephone call from Rosales at about 2:00 a.m. Rosales asked Perez if he could borrow $20.00, but...