Valles v. Lynaugh

• Decision Date: 08 January 1988
• Docket Number: No. 87-1395,87-1395
• Citation: 835 F.2d 126
• Parties: Jesse Avila VALLES, Petitioner-Appellant, v. James A. LYNAUGH, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 126

835 F.2d 126

Jesse Avila VALLES, Petitioner-Appellant, v.James A. LYNAUGH, Director, Texas Department of CorrectionsRespondent-Appellee.

No. 87-1395

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Jan. 8, 1988.

Jesse Avila Valles, pro se.

Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, JOHNSON, and HIGGINBOTHAM, Circuit Judges.

POLITZ, Circuit Judge:

Jesse Avila Valles appeals the rejection of his 28 U.S.C. Sec. 2254petition for relief from his conviction for first degree murder.Finding no merit in any contention raised on appeal, we affirm.

Background

Luis Barragan, the unarmed aggressor in a barroom brawl, was fatally wounded by a knife wielded by Valles.Valles was convicted by a jury and sentenced to 45 years imprisonment.His conviction was affirmed on appeal and collateral relief was denied.His federal habeas petition was referred to a magistrate who reviewed the state record, affidavits filed by Valles, and pleadings by the state, and recommended entry of a summary judgment rejecting his habeas application.The district court adopted the magistrate's recommendation and Valles appeals, contending that: (1) the transcript of his state trial was fraudulent, thus denying him a fair appeal; (2)the prosecutor used perjured testimony; (3)the trial court erred in charging the jury; (4) the evidence was insufficient to sustain the conviction; and (5)he was denied effective assistance of counsel.

Analysis

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.Fed.R.Civ.P. 56(c);Bordelon v. Block, 810 F.2d 468(5th Cir.1986).In an appeal of a summary judgment, we resolve any factual uncertainty and draw all reasonable inferences in the light most favorable to the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986);Honore v. Douglas, 833 F.2d 565(5th Cir.1987).Doing so we find no genuine issue of material fact foreclosing summary judgment.Professional Managers, Inc. v. Fawer, Brian, Hardy & Zatzkis, 799 F.2d 218(5th Cir.1986).

1.The trial transcript.

Valles contends that the trial transcript fraudulently records the testimony, offering affidavits of his sister and aunt suggesting that certain statements in the record were not made at trial.The statement of facts was authenticated by the official court reporter, certified by the district clerk, and approved by the state's attorney and Valles's counsel.The variances suggested in the two affidavits, which are verbatim except that the aunt refers to Valles as her nephew and the sister refers to him as her brother, do not establish a disputed material fact which would foreclose the use of the summary judgment procedure.Professional Managers, Inc.

2.Perjured testimony.

Valles maintains that discrepancies in certain testimony alone establishes that the prosecutor knowingly used perjured testimony.Valles misperceives the burden placed on one who would secure habeas relief on this ground.Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104(1972).The party challenging must prove knowing use of perjured testimony.Valles's pleadings and proof do not acquit that burden.

3.Jury instruction.

Valles next complains that the trial court erred by failing to instruct the jury on voluntary manslaughter, self-defense and defense of a third person.

In a non-capital murder case, the failure to give an instruction on a lesser included offense does not raise a federal constitutional issue.Alexander v. McCotter, 775 F.2d 595(5th Cir.1985).Under Texas law, self-defense and defense of another may be offered as a defense to murder if the defendant reasonably believes that fatal force is necessary.Texas Penal Code Ann. Secs. 9.31-9.33(Vernon 1974).In its unpublished affirming opinion the Texas Court of Appeal concluded that the evidence was insufficient to support instructions on self-defense or defense of a third person.Valles v. Texas, slipop. 08-81- 00058-CR (June 23, 1982).We defer to the state court in its interpretation of its law, and must accept same, for "[i]t is not our function as a federal appellate court in a habeas proceeding to review a state's interpretation of its own law,"Moreno v. Estelle, 717 F.2d 171, 179(5th Cir.1983), unless that interpretation violates the Constitution.We perceive no such breach of the Constitution here.

4.Insufficient evidence.

A challenge to the sufficiency of the evidence in an application for a writ of habeas corpus must fail if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."Alexander v. McCotter, 775 F.2d at 597(quotingJackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560(1979))(emphasis in original).The elements of murder under the Texas Penal Code Section 19.02(a)(1) are that the defendant: (1) intentionally or knowingly (2) caused (3) the death of an individual.

Trial testimony established that Valles had stated that he would become involved if a fight broke out with Barragan, that Valles did join that fight, and that Valles, the...