MEMORANDUM AND OPINION
The petitioner, Jorge A. Zamora, seeks habeas corpus relief under 28 U.S.C. § 2254, challenging a 2009 state felony conviction for unlawfully possessing a weapon. The respondent filed a motion for summary judgment, (Docket Entry No. 15), with a copy of the state court record. (Docket Entries Nos. 9-10). Zamora filed a response. (Docket Entry No. 16). Based on careful consideration of the pleadings, the motion and response, the record, and the applicable law, the court grants the respondent's motion and, by separate order, enters final judgment. The reasons are set out below.
A jury found Zamora guilty of unlawfully possessing a weapon. (Cause Number 1161324). Zamora pleaded true to the enhancement paragraphs alleging a prior conviction for possession of a prohibited weapon (Cause Number 736527) and a prior conviction for sexual assault of a child (Cause Number 967363). In November 2009, the jury sentenced Zamora to serve a 35-year prison term. The First Court of Appeals of Texas affirmed the conviction and sentence in April 2011. Zamora v. State, No. 01-09-01049-CR, 2011 WL 1434692, at *1 (Tex. App. -- Houston [1st Dist.]2011, pet. ref'd) (not designated for publication). The Texas Court of Criminal Appeals refused Zamora's petition for discretionary review in September 2011. Zamora filed an application for state habeas corpus relief in June 2012, which the Texas Court of Criminal Appeals denied without written order, on findings of the trial court, without a hearing, in October 2013. (Docket Entry No. 10-15, State Habeas Packet, p. 2).
In January 2014, this court received Zamora's federal petition. Zamora alleges that his conviction is void because both his appellate and trial lawyers provided ineffective assistance. Zamora alleged that his appellate counsel, J. Sidney Crowley.
rendered ineffective assistance by failing to "bring error on appeal of a[n] extraneous offense that was preserved in trial when a prior Texas Department of Criminal Justice conviction was presented in trial and trial lawyer objected."
Zamora also alleged that his trial counsel, Brian D. Coyne:
rendered ineffective assistance by:
(A) failing to object at the earliest opportunity to the State's introduction of the marijuana seized during the arrest;
(B) failing to object to the perjured testimony of the State's witness, Officer Anderson;
(C) failing to object to perjured testimony where Officer Anderson said he was the one to find the weapon; and
(D) failing to object to the admissibility of the illegal search.
(Docket Entry No. 1, Petition for Writ of Habeas Corpus, pp. 6-7).
Each ground for relief is examined under the applicable legal standards.
The indictment charged Zamora as follows:
IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:
The duly organized Grand Jury of Harris County, Texas, presents in the District Court of Harris County, Texas, that in Harris County, Texas, JORGE ZAMORA, hereafter styled the Defendant, heretofore on or about APRIL 6, 2008, did then and there unlawfully, intentionally and knowingly possess a firearm at a location other than the premises at which the Defendant lived, after being convicted of the felony offense of UNAUTHORIZED USE OF A MOTOR VEHICLE in the District Court of the 47TH Judicial District, POTTER County, Texas, in Cause Number 43,886-A, on SEPTEMBER 19, 2001.
Before the commission of the offense alleged above, (hereafter styled the primary offense), on NOVEMBER 30, 1998, in Cause No. 736527, in the 176TH DISTRICT COURT of HARRIS County, Texas, the Defendant was convicted of the felony of POSSESSION OF A PROHIBITED WEAPON.
Before the commission of the primary offense, and after the conviction in Cause No. 736527 was final, the Defendant committed the felony of SEXUAL ASSAULT OF A CHILD and was finally convicted of that offense on APRIL 12, 2004, in Cause No. 967363, in the 176TH DISTRICT COURT of HARRIS County, Texas.
(Docket Entry No. 10-28, p. 9).
The state introduced State's Exhibit 1, which was entitled "Stipulation of Evidence." It said:
To The Honorable Judge Of Said Court: The above named defendant in the above styled cause waives the right to appearance, confrontation, and cross-examination of the witnesses against the defendant. The defendant consents to the following written Stipulation of Evidence regarding the above styled cause: The defendant hereby stipulates that: I am the same Jorge Zamora who was convicted of the felony offense of unauthorized use of a motor vehicle in the District Court of the 47th Judicial District in Potter County, Texas, in Cause No. 43886-A on September 19, 2001.
(Docket Entry No. 9-9, p. 11).
The First Court of Appeals summarized the testimony at trial, as follows:
On April 6, 2008, Pasadena Police Department Officer J. Anderson was on his routine night-shift patrol on the Beltway 8 frontage road, a common area for alcohol-related traffic stops and accidents, when he noticed a car in front of him swerving between the lanes. He observed the car continue to swerve between the lanes for approximately a quarter of a mile before the driver turned off of the frontage road without using a turn signal. Officer Anderson pulled the car over, and both vehicles stopped in a parking lot. As he walked to the car, Officer Anderson noticed three people sitting inside, so he asked the driver to step out of the car "for [Anderson's] safety." Although Officer Anderson did not detect the smell of alcohol on the driver's breath, he did smell "the distinct odor of burnt marijuana on [the driver's] person." Officer Anderson testified that when he smells marijuana on a vehicle's occupant, that smell "[g]ives [him] a pretty good clue that there's something going on inside that vehicle that either the driver or the participants are taking part in."
Officer Anderson called for additional units to assist with the other two occupants of the car, who included appellant. Once the additional officers arrived, Officer Anderson asked the passengers to step out of the car and sit on the ground next to it. He testified that, in this situation, he usually separates the occupants of the vehicle to determine the source of the marijuana odor and to "make sure there is nothing on them that's going to hurt [the officers.]" As he was securing another occupant of the car, he heard Officer J. Ramirez, who was conducting appellant's pat down search, say "gun." Officer Anderson walked over to assist Ramirez in appellant's pat down. During the search, Officer Anderson felt a bulge in appellant's right front pocket, and the officers removed a loaded revolver. Officer Anderson testified on two separate occasions during the trial that he continued the pat down search after finding the weapon, and, although he did not discover any more weapons, he did discover a small baggie of marijuana in appellant's left front pocket. Defense counsel did not object to this testimony.
During the direct examination of Officer Anderson, the prosecutor stated her intention to introduce the marijuana found in appellant's pocket into evidence. Defense counsel objected on relevancy groundsand argued that the marijuana was not material to any issue in the case and would only "inflame and prejudice the jury" against appellant. The trial court overruled the objection and admitted the marijuana during the direct examination of Sebastian Frommhold, a forensic chemist with the Pasadena Police Department.
Officer Ramirez testified that, during her regular patrol, she received a call to assist Officer Anderson in a traffic stop. When she arrived, all of the occupants were sitting on the ground outside of the car. Officer Ramirez testified that, because of safety reasons, she pats down everyone before placing them in the back of her patrol car. She further testified that, as she was patting appellant down, she felt a bulge in his right front pocket, and, after she squeezed the item in his pocket, she believed that it "had the consistencies of a gun." She called out that appellant had a gun, and Officer Anderson came over to assist with the pat down. Officer Ramirez testified that she removed the weapon from appellant's pocket and immediately handed it to Officer Anderson. Defense counsel did not move to suppress the weapon found in appellant's pocket.
At trial, appellant stipulated that he had been previously convicted of the felony offense of unauthorized use of a motor vehicle in 2001. After the jury found appellant guilty of the present offense, appellant pleaded true to the allegations in two enhancement paragraphs, and the jury assessed punishment at thirty-five years' confinement. Appellant did not move for a new trial.
Zamora v. State, No. 01-09-01049-CR, 2011 WL 1434692, at *1-2 (Tex. App. -- Houston [1st Dist.] 2011, pet. ref'd) (not designated for publication).
III. The Applicable Legal Standards Zamora's petition for a writ of habeas corpus is reviewed under the federal habeas statutes as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002).
The AEDPA provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding
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