Vela v. Lumpkin

• Decision Date: 20 April 2021
• Docket Number: Civil Action No. 4:20-CV-204-O
• Parties: FRANCISCO DOMINGO VELA, Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

FRANCISCO DOMINGO VELA, Petitioner, v. BOBBY LUMPKIN, Director,¹ Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

Civil Action No. 4:20-CV-204-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION

April 20, 2021

OPINION AND ORDER

Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by Petitioner, Francisco Domingo Vela, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice, against Bobby Lumpkin, director of that division, Respondent. After considering the pleadings and relief sought by Petitioner, the Court has concluded that the petition should be denied.

I. BACKGROUND

In September 2015 Petitioner was indicted in Tarrant County, Texas, Case No. 1423218D, on one count of attempted kidnapping, a state jail felony, of T.S. SHR² 4, ECF No. 12-11; TEX. PENAL CODE ANN. §§ 20.03, 15.01(d) (West, Westlaw through 2019 Leg. Sess.). The indictment also included a habitual-offender notice, which was later amended to a second-degree-felony notice, alleging two prior felony convictions—a 1993 conviction for burglary of a habitation and a 1991conviction for retaliation. SHR 4, ECF No. 12-11; TEX. PENAL CODE ANN. § 12.425(b) (West, Westlaw through 2019 Leg. Sess.). Petitioner's jury trial commenced on August 23, 2016, and on August 25, 2016, the jury found Petitioner guilty of the offense and true to the sentence-enhancement allegation and assessed his punishment at 20 years' confinement. SHR 6, ECF No. 12-11. Petitioner's conviction was affirmed on appeal and the Texas Court of Criminal Appeals refused his petition for discretionary review. Electronic R., ECF No. 11-10. Petitioner also filed a state habeas-corpus application challenging his conviction and sentence, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court. SHR 12-36, ECF No. 12-11; Action Taken, ECF No. 12-8. This federal petition for habeas-corpus relief followed.

II. ISSUES

Petitioner raises the following grounds for relief, verbatim (all spelling, grammatical, and/or punctuation errors are in the original):

(1) Petitioner was deprived of his 6th and 14th Amendment Constitutional rights when he wasn't given the opportunity to plea to the current charged offense;

(2) Petitioner was deprived of his 6th and 14th Constitutional Amandments because the jury charge failed to authorize a conviction when the law describing the offense was not applied to the facts of the case;

(3) Petitioner was deprived of his constitutional rights when the jury charge erroneously allowed a conviction on less than an unanimous verdict. (6th & 14th Amendments);

(4) Petitioner is actually innocent of the predicate offense required for sentencing as a career offender for a second degree felony. (6th & 14th Amendments);

(5) Petitioner's constitutional rights were denied when the Petitioner was punished as a habitual offender after it had been abandoned by the State, and failed to provide the Petitioner notice. (6th & 14th Amendment);

(6) Petitioner was denied his constitutional rights when the trial court failed toinstruct the jury on the lesser-included offense of unlawful restraint. (6th & 14th Amendment);

(7) Petitioner was deprived his constitutional rights because the evidence was factually and legally impossible to support a conviction upon testimony that was incredible as a matter of law, and there was no evidence direct or circumstantial of what the intentions of the Petitioner were. (6th & 14th Amendment);

(8) Petitioner was deprived of his constitutional rights when the court charged the jury, in the jury charge, to allow a conviction of the lesser-included offense within the greater offense. (6th & 14th Amendment);

(9) Petitioner was deprived his constitutional rights because the Petitioner was not provided adequate and sufficient notice of the offense charged. (6th & 14th Amendment);

(10) Petitioner was deprived of his constitutional rights to effective assistance of counsel at the appellate level: direct appeal. (6th & 14th Amendment);

(11) Petitioner was deprived of his constitutional rights to effective assistance of counsel at trial. (6th & 14th Amendment);

(12) Petitioner was denied his constitutional rights when the State failed to conduct a proper investigation upon evidence that exculpated the Petitioner from the offense charged. (6th & 14th Amendment); and

(13) The evidence is insufficient to support a finding that the Petitioner committed the offense of Attempted Kidnapping.

Pet. 6-11, ECF No. 1.³

III. RULE 5 STATEMENT

Respondent does not believe that the petition is untimely or subject to the successive-petition bar or that the claims raised are unexhausted. Resp't's Ans. 9, ECF No. 14.

IV. STANDARD OF REVIEW

A § 2254 habeas petition is governed by the heightened standard of review provided for inthe Anti-Terrorism and Effective Death Penalty Act. 28 U.S.C. § 2254. Under the Act, a writ of habeas corpus should be granted only if a state court arrives at a decision that is contrary to or an unreasonable application of clearly established federal law as established by the Supreme Court or that is based on an unreasonable determination of the facts in light of the record before the state court. 28 U.S.C. § 2254(d)(1)-(2); Harrington v. Richter, 562 U.S. 86, 100 (2011). This standard is difficult to meet and "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings." Richter, 562 U.S. at 102.

The statute further requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); Williams v. Taylor, 529 U.S. 362, 399 (2000). Additionally, when the Texas Court of Criminal Appeals, the state's highest criminal court, denies relief without written order, typically it is an adjudication on the merits, which is likewise entitled to this presumption. Richter, 562 U.S. at 100; Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). In such a situation, a federal court "should 'look through' the unexplained decision to the last reasoned state-court decision providing" particular reasons, both legal and factual, "presume that the unexplained decision adopted the same reasoning," and give appropriate deference to that decision. Wilson v. Sellers, --- U.S. ---, 138 S. Ct. 1188, 1191-92 (2018).

V. DISCUSSION

A. Lack of a Plea

Under ground one, Petitioner claims that he was "deprived of his 6th and 14th Amendment Constitutional rights when he wasn't given the opportunity to plea to the current charged offense." Pet. 6, ECF No. 1. He states the following supporting facts (all spelling, grammatical, and/or punctuation errors are in the original):

The Petitioner was indicted on September 21, 2015, by a Tarrant County Grand Jury in cause number 1423218 for the alleged offense of kidnapping as a habitual offender. However, Petitioner was charged, to the jury, with Attempted Kidnapping on indictment 1423218D, after an altering of the indictment. State read the kidnapping indictment for which the Petitioner plead not guilty, but charged the jury with Attempted Kidnapping which the Petitioner never made a plea to that specific charge.

Id.

The state habeas court entered the following factual findings regarding the issue, which were adopted by the Texas Court of Criminal Appeals in denying the claim:

4. The State, when reading the indictment, stated it was under "1423218."

5. The State read the Indictment, No. 1423218D.

6. [Petitioner] entered his plea of not guilty to the Indictment, No. 1423218D.

7. [Petitioner]'s claim that number "1423218" and "1423218D" are different indictments is without merit.

8. [Petitioner] properly entered his plea of not guilty in cause number 1423218D.

SHR 145, ECF No. 12-11 (record citations omitted).

Based on its findings, the state court concluded that Petitioner properly entered a plea to the indictment. Id. at 153. Petitioner presents no clear and convincing evidence or persuasive argument to rebut the state court's factual findings; thus, deferring to those findings, the state court's decision is not contrary to or involve an unreasonable application of federal law as determined by theSupreme Court nor is it based on an unreasonable determination of the facts in light of the record before the state court.

The indictment alleged that Petitioner did

then and there intentionally, with the specific intent to commit the offense of kidnapping, of [T.S.], do an act, to-wit: by following [T.S.] with an automobile, or by yelling at [T.S.] to get inside said automobile, or by grabbing at [T.S.] with his hand in an attempt to pull her into said automobile, in an attempt to abduct [T.S.] by restraining [T.S.] without consent by moving [T.S.] from one place to another or by confining [T.S.] with the intent to prevent the liberation of [T.S.], or to secret or hold [T.S.] in a place [T.S.] was not likely to be found, which amounted to more than mere preparation that tended but failed to effect the commission of the offense intended.

Clerk's R. 6, ECF No. 11-11.

Under Texas law, [a] person commits an offense if he intentionally or knowingly abducts another person." TEX. PENAL CODE ANN. §§ 20.03(a), 15.01(d). "'Restrain' means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person." Id. § 20.01(1). The term "abduct" means to restrain a person with intent to prevent his liberation by secreting or holding him in a place...