KENNETH M. HOYT, District Judge.
This case is before the Court on Petitioner Michael Franklin Matos' Petition for Writ of Habeas Corpus and Respondent William Stephens' Motion for Summary Judgment. Having carefully considered the Petition, the Motion, and the arguments and authorities submitted by the parties, the Court is of the opinion that Respondents' Motion should be GRANTED, and Matos' Petition for Writ of Habeas Corpus should be DENIED.
The state intermediate court of appeals summarized the relevant facts of this case:
Matos v. State, No. 01-06-01005-CR, at 1-5, 2008 WL 659832 at *1-*5 (Tex.App.-Houston [1 Dist.] 2008). Matos was convicted in the 262nd District Court of Harris County, Texas of first degree murder and was sentenced to 45 years imprisonment.
The 1st Court of Appeals affirmed the conviction and sentence. Matos v. State, No. 01-06-01005-CR (Tex.App.-Houston [1 Dist.],2008). The Texas Court of Criminal Appeals ("TCCA") refused Matos' petition for discretionary review. Matos v. State, PDR 0167-11 (Tex. Crim. App. Mar. 9, 2011).
Matos filed an application for a state writ of habeas corpus. The TCCA denied relief. Ex Parte Matos, No. WR-74,797-02 (Tex. Crim. App., Nov. 14, 2012). He filed this federal petition on February 6, 2013.
This federal petition for habeas relief is governed by the applicable provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 335-36 (1997). Under the AEDPA federal habeas relief based upon claims that were adjudicated on the merits by the state courts cannot be granted unless the state court's decision (1) "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) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999). For questions of law or mixed questions of law and fact adjudicated on the merits in state court, this court may grant relief under 28 U.S.C. § 2254(d)(1) only if the state court decision "was contrary to, or involved an unreasonable application of, clearly established [Supreme Court precedent]." See Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). Under the "contrary to" clause, this court may afford habeas relief only if "`the state court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] on a question of law or if the state court decides a case differently than . . . [the Supreme Court] has on a set of materially indistinguishable facts.'" Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000), cert. denied, 532 U.S. 915 (2001) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)).
The "unreasonable application" standard permits federal habeas relief only if a state court decision "identifies the correct governing legal rule from [the Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 406. "In applying this standard, we must decide (1) what was the decision of the state courts with regard to the questions before us and (2) whether there is any established federal law, as explicated by the Supreme Court, with which the state court decision conflicts." Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir. 1999). A federal court's "focus on the `unreasonable application' test under Section 2254(d) should be on the ultimate legal conclusion that the state court reached and not on whether the state court considered and discussed every angle of the evidence." Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001), aff'd, 286 F.3d 230 (5th Cir. 2002) (en banc), cert. denied sub nom. Neal v. Epps, 537 U.S. 1104 (2003). The sole inquiry for a federal court under the `unreasonable application' prong becomes "whether the state court's determination is `at least minimally consistent with the facts and circumstances of the case.'" Id. (quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997)); see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001) ("Even though we cannot reverse a decision merely because we would reach a different outcome, we must reverse when we conclude that the state court decision applies the correct legal rule to a given set of facts in a manner that is so patently incorrect as to be `unreasonable.'").
The AEDPA precludes federal habeas relief on factual issues unless the state court's adjudication of the merits was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2); Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). The state court's factual determinations are presumed correct unless rebutted by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir. 1997), cert. denied, 522 U.S. 1119 (1998).
"As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.), cert. denied, 531 U.S. 831 (2000). In ordinary civil cases a district court considering a motion for summary judgment is required to construe the facts in the case in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). Where, however, a state prisoner's factual allegations have been resolved against him by express or implicit findings of the state courts, and the prisoner fails to demonstrate by clear and convincing evidence that the presumption of correctness established by 28 U.S.C. § 2254(e)(1) should not apply, it is inappropriate for the facts of a case to be resolved in the petitioner's favor. See Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Sumner v. Mata, 449 U.S. 539, 547 (1981). In reviewing factual determinations of the Texas state courts, this court is bound by such findings unless an exception to 28 U.S.C. § 2254 is shown.
Matos' petition raises seven claims for relief, including subclaims. These are addressed in turn.
In his first claim for relief, Matos contends that he was denied due process when the State was permitted to present, without prior notice, evidence that Matos threatened to kill Jason Henderson. Respondent argues that this claim is procedurally defaulted.
The procedural default doctrine may bar federal review of a claim. "When a state court declines to hear a prisoner's federal claims because the prisoner failed to fulfill a state procedural requirement, federal habeas is generally barred if the state procedural rule is independent and adequate to support the judgment." Sayre v. Anderson, 238 F.3d 631, 634 (5
Respondent concedes that Matos raised this claim on direct appeal. He bases his procedural default argument on the fact that the state habeas court, finding that the claim was raised and rejected on appeal, stated: "Issues that have been raised and rejected on direct appeal may not be reconsidered on a post-conviction writ." SH at 170 (Conclusion of Law # 18).
This is simply a statement that the claim was not properly before the habeas court, it does not state that Matos failed to fulfill a state procedural requirement. He fulfilled that requirement by raising this claim in the proper forum-on direct appeal. His having properly fulfilled the state procedural requirement on direct appeal made his attempt to raise it a second time improper. The claim was thus not cognizable on state habeas corpus review, but it is not procedurally defaulted for purposes of federal review.
Jason Henderson testified at trial. Henderson was Cunningham's friend who participated in the plan to steal Matos' money as revenge for Matos flirting with Cunningham's girlfriend. Henderson testified over a defense objection that, after the murder, Matos called Henderson and "said he killed my boy and I was next." 5 Tr. at 97.
In reviewing evidentiary rulings of a state court, a federal habeas court "do[es] not sit as a super state supreme court to review error under state law." Skillern v. Estelle, 720 F.2d 839, 852 (5th Cir. 1983), cert. denied, 469 U.S. 873 (1984). A federal court may grant habeas relief "only when the trial judge's error is so extreme that it constitutes a denial of fundamental fairness under the Due Process clause." Bailey v. Procunier, 744 F.2d 1166, 1168 (5
In rejecting this claim on direct appeal, the Texas Court of Appeals found that no advance notice was required under Texas law because the phone call arose out of the same incident as the murder and provided important context, and evidence concerning Matos' motive.
Matos, 2008 WL 659832 at *9.
The evidence that Matos killed the victim is overwhelming. Indeed, Matos does not dispute that he killed the victim, he only disputes the finding that it was murder rather than self defense or manslaughter. In this context, Henderson's testimony is clearly relevant, the Texas courts determined that it was admissible as a matter of Texas law, and Matos makes no showing that the evidentiary ruling allowing the testimony without advance notice constitutes a denial of fundamental fairness.
Matos cites the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004) in support of his argument. Crawford, however, involved the admission of an out of court statement by a witness who did not testify at trial, not by the defendant. The Court held that testimonial statements by such witnesses violated the confrontation clause of the Sixth Amendment unless the prosecution could prove that the declarant was unavailable to testify at trial and was previously subject to cross examination by the defendant. See Crawford, 541 U.S. at 54. Matos' claim involves his own statement as related by a witness who testified at trial and was subject to cross examination. It does not raise a confrontation clause issue. Matos is not entitled to relief on this claim.
Matos next contends that the evidence was insufficient to support his conviction for murder. Petitioner's argument is, essentially, that he presented evidence that he acted in self defense and that evidence undermined the State's theory.
In addressing a sufficiency of the evidence claim, "the relevant question is whether, 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." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). The sufficiency of evidence is a mixed question of law and fact. See Gomez v. Acevedo, 106 F.3d 192, 198 (7
In rejecting this claim on direct appeal, the Court of Appeals stated:
Matos, 2008 WL 659832 at *6 (internal citation omitted).
Clearly, there was evidence, as related by the Court of Appeals, to support the jury's finding that Matos was guilty of murder. Matos' argument comes down to a claim that the jury should have believed his claim of self defense. The jury, however, is well within its bounds to make credibility determinations. "It is well-settled that credibility determinations are the sole province of the jury." United States v. Cathey, 259 F.3d 365, 368 (5
In his first and fifth claims for relief, Matos contends that he received ineffective assistance of counsel. To prevail on a claim for ineffective assistance of counsel, Petitioner
Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail on the first prong of the Strickland test, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. Reasonableness is measured against prevailing professional norms, and must be viewed under the totality of the circumstances. Id. at 688. Review of counsel's performance is deferential. Id. at 689.
Because the Texas state courts have already decided these claims against Matos, he faces a very high burden in this federal habeas corpus proceeding.
Premo v. Moore, U.S, 131, S. Ct. 733, 740 (2011).
In his third claim for relief, Matos contends that counsel failed to conduct an adequate pretrial investigation. Matos contends that such an investigation would have led counsel to two witnesses, Richard Perez and George Anthony Furr, who could have provided helpful testimony.
"To establish that an attorney was ineffective for failure to investigate, a petitioner must allege with specificity what the investigation would have revealed and how it would have changed the outcome of the trial." Miller v. Dretke, 420 F.3d 356, 361 (5th Cir. 2005). Perez submitted an affidavit is which he stated that he called the residence Matos shared with Cunningham on several occasions in December 2005 and January 2006, and that Cunningham expressed anger and hostility toward Matos, stating that he wanted to make Matos "look like a `screen door.'" Petition, Exhibit A at 1. He also states that he attempted to call trial counsel several times, but was unable to reach him and that counsel did not return his calls. Id. at 2. He further states, however, that he was unable to testify because he was working two jobs at the time. Id.
Furr identifies himself as Matos' brother. Petition, Exh. B at 1. He attests that he called the residence and that Cunningham made threatening remarks toward Matos. Id. Furr does not state that he made any attempt to contact counsel or was otherwise available to testify.
The Fifth Circuit has held that "complaints based upon uncalled witnesses [are] not favored because the presentation of witness testimony is essentially strategy and thus within the trial counsel's domain, and . . . speculations as to what these witnesses would have testified is too uncertain." Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985) (citing United States v. Cockrell, 720 F.2d 1423, 1427 (5th Cir. 1983), cert. denied, 467 U.S. 1251 (1984)). "In order for the appellant to demonstrate the requisite Strickland prejudice, the appellant must show not only that this testimony would have been favorable, but also that the witness would have testified at trial." Id.
Under circumstances more compelling than those presented here, the Fifth Circuit declined to find ineffective assistance of counsel. In Foster v. Johnson, 293 F.3d 766 (5th Cir. 2002), the petitioner submitted affidavits from several family members stating that they were not contacted by counsel; that they would have been available to testify at the punishment phase of the petitioner's capital murder trial; and that they could testify as to areas no other witness addressed, the petitioner's drinking problem and his father's drinking problem during the petitioner's youth. Id. at 783. No such evidence was presented at trial. The Mississippi Supreme Court concluded that these additional witnesses would not have altered the outcome of the trial, because other mitigating evidence was present. The Fifth Circuit held that the petitioner was not entitled to relief on the basis of ineffective assistance of counsel. Id. at 783-84.
In this case, Petitioner does not contend, and the record does not show, that counsel failed to call specific witnesses to testify, as to subjects that other witnesses did not address. Other evidence established that the relationship between Matos and Cunningham was tense because Matos had a crush on Cunningham's girlfriend.
On a claim of ineffective assistance of counsel, review of counsel's performance must be highly deferential. Strickland, 466 U.S. at 689. The decision of which witnesses to call at trial is especially entitled to deference under Strickland "because the presentation of witness testimony is essentially strategy and thus within the trial counsel's domain." Alexander v. McCotter, 775 F.2d 595, 602 (5
Neither Perez nor Furr states that he was available to testify at Matos' trial. Indeed, Perez affirmatively states that he could not testify because he was working two jobs at the time. Moreover, Matos never asserts that he told counsel that Perez or Furr might have helpful evidence.
The state habeas court found that counsel conducted an adequate pretrial investigation by reviewing the state's file, visiting Matos in jail on numerous occasions, speaking with Matos' family, visiting the crime scene, interviewing personnel from the Harris County Medical Examiner's office, and hiring an investigator and a pathology expert. SH at 165-66 (Finding of Fact # 3). The court further found that Matos did not inform counsel that Perez or Furr existed and might be helpful witnesses. Id. at 166 (Finding of Fact # 4). The court concluded that counsel's performance did not fall below an objective standard of reasonableness, or that any allegedly deficient performance prejudiced Matos. Id. at 167-68 (Conclusions of Law # 1-5). The state habeas court's findings are well supported by the record, and its conclusions are not an unreasonable application of the Strickland standard to the facts of this case. Accordingly, the state habeas court's conclusion that counsel did not render ineffective assistance by failing to investigate is entitled to deference under the AEDPA.
Before trial, counsel filed a motion in limine to bar testimony that the transaction in which Henderson and Cunningham stole Matos' money was a sale of marijuana. The trial court granted the motion. During trial, counsel changed his mind and allowed testimony that the transaction involved the sale of marijuana. Matos now argues that this was ineffective.
In connection with the state habeas corpus proceeding, counsel submitted an affidavit in which he states:
SH at 162. The state habeas court found this explanation credible, finding "that counsel chose to violate his own motion in limine and admit that [Matos] was involved in a marijuana transaction based on trial strategy." SH at 166 (Finding # 5). The court further found that Matos failed to prove the strategy was unreasonable. Id. at 169 (Conclusion # 12).
Counsel's decision to violate his own motion was reasonable trial strategy. He reasonably feared that if the jury was not informed that the transaction involved marijuana, jurors might infer it involved something more prejudicial to Matos' case. That decision was a reasonable attempt to make his case as strong as possible. Matos thus fails to demonstrate that counsel was deficient in allowing this evidence, and his claim of ineffective assistance of counsel fails.
In his next ineffective assistance claim, Matos argues that counsel failed to present a strong enough case for his defensive theory of self defense. He points to an affidavit by his wife, Amy Ayala, in which Ayala asserts that Cunningham threatened Matos because Matos made a pass at Cunningham's wife. She further asserts that Matos, shortly after killing Cunningham, stated that Cunningham tried to kill him, that Matos intended to turn himself in after moving his family to Florida, and that Matos never threatened Jason Henderson.
Counsel's affidavit states that he interviewed Ayala and intended to call her as a witness during the penalty phase of the trial. He asserts, however, that she made several statements in the interview that flatly contradict her affidavit. She told counsel that Matos fled Texas to avoid arrest and not, as she states in her affidavit, out of concern for the safety of his family. She stated that she had no recollection of Matos having a conversation with Henderson and could not refute Henderson's claim that Matos threatened him. Counsel concluded that Matos' flight from Houston and the threatening and arrogant tone of his post-killing conversation with Henderson were the strongest pieces of evidence against him. Based on this, he made a strategic decision not to call Ayala as a witness during the guilt-innocence phase because her testimony "would have undoubtedly shed an even more intensive negative light on [Matos'] flight without refuting the fact that Ms. Ayala could have left for Florida without [Matos] and [Matos] could and should have immediately reported his altercation with [Cunningham] to the police." SH at 162.
As discussed above, counsel's "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . .." Strickland, 466 U.S. at 690. Counsel offers a thoughtful strategic explanation for his decision not to call Ayala. The state habeas court found counsel's affidavit credible, and Ayala's affidavit not credible. SH at 165-66. Because counsel had a valid strategic reason for his decision not to call Ayala, his decision not to call her does not constitute ineffective assistance of counsel.
In his final claim of ineffective assistance of counsel, Matos argues that counsel was ineffective by failing to request a jury instruction on the lesser included offense of manslaughter. Counsel attests that he did not request a charge on manslaughter
SH at 163.
The evidence showed that Matos stabbed Cunningham 18 times, shot him in the face with a cross bow, and pushed him down a flight of stairs. In light of this rather powerful evidence of intent, it cannot be said that counsel's judgment that the evidence did not support a finding of recklessness amounted to deficient performance.
In his fourth claim for relief, Matos contends that he is actually innocent of the crime. "Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding." Herrera v. Collins, 506 U.S. 390, 400 (1993). This is so because "federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact." Id.
Matos cites Schlup v. Delo, 513 U.S. 298 (1995). That case, however, holds that a showing of actual innocence can allow a petitioner to avoid a procedural bar to a claim, not that actual innocence is cognizable as a freestanding claim for relief. Respondent argued that one of Matos' claims is procedurally barred, but this opinion rejects that argument and denies all of Matos' claims on the merits. Schlup thus provides no support for Matos' position. Under Herrera, Matos is not entitled to relief on this claim.
For the foregoing reasons, Matos fails to raise a viable claim for habeas relief. His petition must be dismissed with prejudice for the reasons stated in this opinion.
Matos has not requested a certificate of appealability ("COA"), but this Court may determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) ("It is perfectly lawful for district court's [sic] to deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely states that an appeal may not be taken without a certificate of appealability having been issued.") A petitioner may obtain a COA either from the district court or an appellate court, but an appellate court will not consider a petitioner's request for a COA until the district court has denied such a request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) ("[T]he district court should continue to review COA requests before the court of appeals does."). "A plain reading of the AEDPA compels the conclusion that COAs are granted on an issue-by-issue basis, thereby limiting appellate review to those issues alone." Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). A petitioner "makes a substantial showing when he demonstrates that his application involves issues that are debatable among jurists of reason, that another court could resolve the issues differently, or that the issues are suitable enough to deserve encouragement to proceed further." Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S. 966 (2000). The Supreme Court has stated that:
Slack v. McDaniel, 529 U.S. 473, 484 (2000). However, "the determination of whether a COA should issue must be made by viewing the petitioner's arguments through the lens of the deferential scheme laid out in 28 U.S.C. § 2254(d)." Barrientes v. Johnson, 221 F.3d 741, 772 (5th Cir. 2000), cert. dismissed, 531 U.S. 1134 (2001).
This Court has carefully considered Matos' claims. The Court finds that the claims are foreclosed by clear, binding precedent. This Court concludes that under such precedents, Matos has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court concludes that Matos is not entitled to a certificate of appealability on his claims.
For the foregoing reasons, it is ORDERED as follows:
The Clerk shall notify all parties and provide them with a true copy of this Memorandum and Order.