Tamez v. Director, Tdcj-Cid

• Decision Date: 28 April 2008
• Docket Number: Civil Action No. 6:07cv362.
• Citation: 550 F.Supp.2d 639
• Parties: Raul Garza TAMEZ v. DIRECTOR, TDCJ-CID.
• Court: U.S. District Court — Eastern District of Texas

550 F.Supp.2d 639

Raul Garza TAMEZ v. DIRECTOR, TDCJ-CID.

Civil Action No. 6:07cv362.

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

April 28, 2008.

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Raul Garza Tamez, Abilene, TX, pro se.

Carole Susanne Callaghan, Texas Attorney General, Austin, TX, for Respondent.

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT

MICHAEL H. SCHNEIDER, District Judge.

The Petitioner Raul Garza Tamez, proceeding pro se, filed this application for the writ of habeas corpus under 28 U.S.C. § 2254 complaining of the legality of his conviction. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.

Tamez complained of a conviction for murder which he received in the 3rd Judicial District of Anderson County, Texas, for which he received a sentence of life imprisonment. The facts of the case involved a murder within TDCJ-CID, in which the, evidence showed that Tamez was placed in the cell of an inmate named William Cathey, with whom he had a dispute; when the door to the cell was opened for Cathey, Tamez rushed out and assaulted him with a fan motor wrapped in a sock, causing injuries resulting in Cathey's death.

In his petition, Tamez asserted that he received ineffective assistance of counsel, the trial court allowed him to be tried in leg irons and shackles in front of the jury, and a coerced confession was used against him.

The Magistrate Judge ordered the Respondent to answer the petition, and Tamez did not file a response to the answer. The Magistrate Judge also received copies of the state court records. After review of the pleadings and records, the Magistrate Judge issued a Report on April 4, 2008, recommending that the petition be dismissed. Tamez filed objections to the Report on April 22, 2008.

In his objections, Tamez says first that his attorney, Barbara Law, had a conflict of interest because she worked for State Counsel for Offenders, a division of TDCJ. He says that this conflict was demonstrated by the fact that Law did not bring up the fact that Tamez had been placed in an empty cold cell, without clothing, blankets, or a mattress, with nothing to shelter himself from the cold, which conditions resulted in the coerced confession.

However, as noted by the Magistrate Judge, nothing in the record supports Tamez's bald assertion concerning the cell conditions in which he was allegedly placed. Tamez says that Sgt. Kennedy testified that she took his clothes away, but later in her testimony, she stated that she did not recall whether she had given Tamez clothes in exchange. The record is simply silent as to Tamez's assertion that he was placed naked into a cold cell, or that any such conditions caused his confession to be involuntary.

The Fifth Circuit has held that "[a]bsent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition (in state and federal court), unsupported and unsubstantiated by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011-12 and n. 2 (5th Cir. 1983); see Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.1990). Tamez's bald assertions concerning the cell conditions, which he says taint the voluntariness of his confession, are unsupported and unsubstantiated by anything in the record, and thus lack probative evidentiary value.

Although Tamez says that Law had a "conflict of interest," he has not pointed to any facts which show that Law either had or demonstrated any loyalty to the Texas Department of Criminal Justice rather than to him. Similar arguments — for example, that public defenders have a conflict of interest because they are paid by the State — have been rejected by the courts. See, e.g., Pasillas-Martinez v. U.S., No. EP-05-0152-DB, 2005 WL 1397012 (W.D.Tex., June 2, 2005) (unpublished) (available on WESTLAW at 2005 WL 1397012) (rejecting claim of conflict of interest because public defender paid by United States just like the U.S. Attorney is), citing Mickens v. Taylor, 535 U.S. 162, 165-66, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Mickens held that until the defendant shows that counsel "actively represented conflicting interests," he has not established a constitutional predicate for his claim of ineffective assistance. Here, Tamez has not shown that Law actively represented conflicting interests, and so his claim on this point is without merit.

Second, Tamez discusses the issue of his alleged shackling before the jury. After reviewing the record, the Magistrate Judge ascertained that there was some indication that Tamez had been in leg shackles, but that the record strongly implied that these shackles had not been visible to the jury. Immediately before Tamez testified, Law stated that Tamez had been in shackles and that he had been at the end of the counsel table; the judge stated that Tamez would be placed in the witness box before the jury came in (in other words, the jury would not see him walk to the witness box in leg shackles) and that his hands would be left unshackled. The Magistrate Judge observed that if the shackles had been visible to the jury during the trial, there would have been no reason for concern regarding having him walk to the witness box.

In addition, the Magistrate Judge said, the jury was aware that Tamez was a prisoner in TDCJ, and that he had previous convictions for possession of a deadly weapon in a penal institution and burglary of a habitation. The Magistrate Judge stated that even if the jurors did see his shackles, they were unlikely to be surprised or prejudiced by this fact, but rather would reasonably have assumed that the shackles were due to Tamez's preexisting status as an inmate. The Magistrate Judge thus concluded that any error which may have arisen from the fact that Tamez was shackled did not contribute to the finding of guilt or assessment of a life sentence.

In his objections, Tamez says that the jury had a direct view of his shackles during the entire proceeding, but points to nothing in the record which confirms this bald assertion. He says that he has a witness affidavit from an inmate witness saying that Tamez's shackles were visible from the witness stand, and he says that the witness box is "next to" the jury box, and again speculates that Law was "prohibited from advocating against TDCJ security personnel." Tamez does not refer to the precautions taken by the trial judge to prevent the jury from seeing the shackles by placing him in the witness box outside of the presence of the jury.

Instead, he says that the Report "tries to lighten the burden" by pointing out that he was a prisoner, and says that this argument must fail because he is presumed innocent until proven guilty. While he undoubtedly enjoyed the presumption of innocence during trial, the Report stated that the jury knew that Tamez was already a prisoner in TDCJ and would thus reasonably conclude that the shackles were due to that pre-existing state and did not pertain to whether or not he was guilty of the present charge; in other words, even assuming that the jurors did see the shackles, they could still presume him innocent of the murder charge, knowing that he was shackled because he was already a prisoner. The Magistrate Judge properly concluded that the evidence showed beyond a reasonable doubt that even if the jury saw leg shackles on Tamez, this did not contribute to the finding of guilt or the assessment of a life sentence. Tamez's claim on this point is without merit.

Third, Tamez complains of an alleged failure to investigate the mitigating evidence which he presented, including evidence of an abusive childhood and a mental disorder. He cites cases in which he says that the failure to raise evidence of an abusive childhood was held to be error and says' that he told Law about his own background, but that she said that it was "not mitigating." He says that his uncle visited Law several times and she never asked about Tamez's childhood, family background, or "embarrassing secret." He explained that he told Law that he was sexually abused as a child by his uncle, that he was physically abused by his parents, and that he had twice tried to commit suicide.

Tamez argues that had counsel presented this evidence, the jury would have perceived that Tamez had an "immediate necessity" to defend himself against Cathey, whom he says had a "known propensity for violence" and had threatened to rape and kill him. He complains that the Report said that there is no "unspoken policy" of letting inmates fend for themselves, citing a case called January v. State, 811 S.W.2d 631 (Tex.App.-Tyler 1991); however, the decision in January rejected the use of the necessity defense to the charge of possession of a deadly weapon in a penal institution, saying that to allow inmates to possess deadly weapons under any circumstances would seriously undermine the security of the penal institution.

As the Magistrate Judge observed, there is no evidence in the record to support Tamez's bald assertion that he was the victim of childhood physical or sexual abuse. In the absence of any such evidence, Tamez's bald assertion alone, unsupported and unsubstantiated by any other evidence, lacks probative evidentiary value. His claim on this point is without merit.

Third, Tamez refers to the issue of gang affiliation. He says that his confession referred to the "Mexican Mafia," and that it should have been redacted or a jury instruction given. As the Magistrate Judge observed, however, the confession said that Cathey had been falsely saying that Tamez was a member of the Mexican Mafia, which was done to cause problems between Tamez and the...