Sanchez v. Davis

• Decision Date: 14 September 2016
• Docket Number: CIVIL ACTION NO. 7:15-CV-045
• Parties: QUIRINO MACHIN SANCHEZ, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

QUIRINO MACHIN SANCHEZ,
v.
LORIE DAVIS,¹ Director, Texas Department of Criminal Justice,
Correctional Institutions Division, Respondent.

CIVIL ACTION NO. 7:15-CV-045

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS MCALLEN DIVISION

September 14, 2016

REPORT AND RECOMMENDATION

Petitioner Quirino Machen Sanchez, represented by retained counsel, initiated this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry No. 1.) In 2010, a Texas jury convicted Petitioner for possessing marijuana in an amount greater than 2,000 pounds. The trial judge sentenced Petitioner to ten years' imprisonment. After unsuccessfully availing himself of state appellate and post-conviction review, Petitioner now seeks federal habeas corpus relief.

Petitioner claims that his appellate counsel rendered ineffective assistance by failing to raise various issues on direct appeal. He also asserts claims based on the court reporter's failure to transcribe some bench conferences during trial and on alleged prosecutorial misconduct during closing argument. Respondent has filed a motion for summary judgment contending that Petitioner's claims lack merit. (Docket Entry No. 9.)

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After carefully considering the parties' pleadings and the state court record in light of the applicable law, including the deferential standard of review mandated by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the undersigned concludes that Petitioner has not shown a basis for federal habeas corpus relief. Petitioner has failed to show that the state habeas court unreasonably applied the Strickland standard denying his claims that his appellate counsel rendered ineffective assistance of counsel on appeal. Similarly, Petitioner has not shown that the state court unreasonably applied clearly established federal law in denying his other claims. Accordingly, for the reasons explained further below, the undersigned recommends that the District Court grant Respondent's motion for summary judgment and deny habeas relief. It is further recommended that the Court not issue a certificate of appealability.

I. BACKGROUND

A. State Court Proceedings

On August 18, 2009, a confidential informant advised an FBI agent that a tractor-trailer may have been loaded with narcotics at a warehouse in Hidalgo County, Texas.² The informant gave the agent detailed information identifying the tractor-trailer, including (among other things) the Florida license plate numbers for both the truck and the trailer. The informant indicated that the tractor-trailer was no longer at the warehouse and that it was last seen near a particular hotel. The FBI agent passed the information on to Texas Department of Public Safety narcotics agents.

DPS narcotics agents began looking for the tractor-trailer and soon found it at the hotel. They conducted surveillance as the tractor-trailer left the hotel and entered a highway headed north. The narcotics agents requested assistance from DPS highway patrol officers. Trooper

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Enrique Cantu stopped the tractor-trailer on the highway after observing that its mud flaps were "sailing" too far off the ground, which he believed to be a traffic violation.

Julio Luis Narango Iglesias was driving the tractor-trailer and his co-driver, Petitioner Quirino Machin Sanchez, was in the passenger seat. Both Petitioner and Iglesias were licensed commercial truck drivers. They had driven from Florida to Texas ostensibly to pick up a load of Del Monte fruit cups. The trailer was equipped with a refrigeration unit. Petitioner and Iglesias were to transport the fruit cups to Montville, Pennsylvania. Iglesias, the owner of the tractor-trailer, kept log books for their activities.

DPS officers spoke with Iglesias and Petitioner separately. The men provided inconsistent information about their trip and otherwise acted suspiciously. For example, Petitioner claimed that he did not know his co-driver's surname, though they had worked together for some time. Iglesias consented to allow DPS officers to search the tractor-trailer. Officers entering the trailer detected the odor of marijuana. They discovered approximately 2,400 pounds of marijuana bundled and concealed within the pallets of fruit cups.

A Hidalgo County grand jury indicted Petitioner on one count of possession of marijuana in an amount of more than 2000 pounds. See TEX. HEALTH & SAFETY CODE ANN. § 481.121 (West 2010). Petitioner stood trial in the 430th Judicial District Court for Hidalgo County, Texas in cause number CR-1624-10-J. Sergio Valdez and Nereida Lopez ("trial counsel") represented Petitioner in the trial court proceedings. Before trial, trial counsel filed motions to suppress Petitioner's post-arrest statements and the evidence seized pursuant to the police search. Trial counsel also strenuously sought disclosure of the confidential informant's identity.

At trial, the State's evidence included the testimony of Oscar Perez, a warehouse supervisor for Loop Cold Storage, located in McAllen, Texas. Loop Cold Storage is a

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warehouse facility in the business of storing fruits, vegetables, and foods for Del Monte and other customers. Perez described the procedure for loading a tractor-trailer at their warehouse. He also explained safety and security measures taken at Loop Cold Storage, including the placement of security cameras throughout the facility. No one has ever alleged that drugs were loaded into a truck at Loop Cold Storage, and the security cameras would have recorded anyone attempting to do so.

Perez was on duty at Loop Cold Storage on Monday, August 17, 2009, when the tractor-trailer driven by Petitioner and Iglesias was loaded with pallets containing cases of fruit cups. After loading the trailer with 30 pallets, the trailer doors were closed and a seal was placed on the doors to insure the integrity of the load. Based on Perez's testimony, the jury could reasonably have concluded that the marijuana found in the tractor-trailer the next day (Tuesday, August 18, 2009) was not loaded at Loop Cold Storage.

The State also presented the testimony of Steven Whitham, who had about 30 years' experience as a commercial truck driver. Whitham described several ways in which individuals engaged in illegal activity could bypass a seal on trailer doors in order to open the doors without breaking the seal.

Whitham also explained the requirement for commercial truck drivers to maintain an accurate log book. The log books for Petitioner and Iglesias showed that they left Miami, Florida, on August 15, 2009, bound for Corpus Christi, Texas. Along the way, they took turns driving and resting in the tractor's sleeper berth. They did not go to Corpus Christi, but instead arrived in Edinburg, Texas, on Sunday evening, August 16, 2009. The logs show that both Petitioner and Iglesias then spent over 12 hours in the sleeper compartment, presumably resting. Petitioner was in the sleeper until noon on Monday, August 17, and then he drove the truck from

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Edinburg to McAllen to pick up their load. His log book indicated that this trip took three hours. According to the log books, both Petitioner and Iglesias were then in the sleeper of the tractor from Monday night until 8:00 a.m. on Tuesday, August 18, 2009. Beginning after 8:00 a.m. on Tuesday, the logs indicate that Petitioner was "on duty, not driving." Iglesias was also "on duty, not driving" starting at 8:00 a.m., with a log notation indicating that he had fixed a transmission problem.

According to his log book, Petitioner was in the sleeper compartment for about 16 hours after they obtained the load of fruit from Loop Cold Storage. Whitham stated that this load required that the refrigeration unit on the trailer remain running and that running the unit for 16 hours was expensive (in terms of fuel consumption). Whitham's testimony also illustrated why drug traffickers need to be careful about the drivers they use for their loads of narcotics. As an example, he described an incident in which a driver delivered what he thought was a legitimate load to its intended destination (a Wal-Mart distribution center), only to discover when the doors were opened that someone had added drugs to the load. Needless to say, law enforcement was contacted and the drugs were seized.

After Petitioner and Iglesias were stopped by DPS Troopers at around 1:00 p.m. on Tuesday, August 18, 2009, they were questioned about their activities leading up to the traffic stop. Although the log books indicated that both Petitioner and Iglesias were in the sleeper compartment the previous night, Petitioner claimed that they had slept in a hotel that night because they were tired.³ Petitioner said nothing about any repairs to the tractor-trailer that morning.

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The jury heard testimony from law enforcement officers with training and experience in narcotics trafficking. This evidence showed that the 2,472 pounds of marijuana found in the tractor-trailer was worth about a million dollars and that its value would have increased as it was transported to cities farther north in the United States. The officers explained the methods used by drug traffickers to transport drugs using tractor trailers, which often involve a number of different individuals performing various roles (such as packaging, loading, driving, etc.).

Although Petitioner's trial counsel vigorously cross-examined the State's witnesses, Petitioner elected to present no evidence. During closing argument, the prosecutor argued that the circumstantial evidence showed that Petitioner knew that drugs were in the trailer. Petitioner's counsel argued that the State had shown nothing more than that Petitioner was present in the tractor-trailer where the marihuana was found and that "mere presence" did not make him guilty. Counsel criticized the State's lack of investigation on several key points, emphasizing that there was no evidence to show where the marijuana was...