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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SAMUEL ORELLANA, 1008987, §

Petitioner, §

§ No. 3:04-CV-2114-G

v. § ECF

§

DOUGLAS DRETKE, DIRECTOR, TDCJ-CID,§

Respondent. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Procedural Background

Petitioner challenges his conviction for aggravated sexual assault of a child under the age

of fourteen, enhanced by a prior felony conviction. State v. Orellana, No. F-0070643-SK (4th

Crim. Dist. Ct., Dallas County, Tex., Oct. 11, 2000). A jury found him guilty and assessed

punishment at life in prison. Id. His conviction was affirmed on appeal. Orellana v. State, No.

05-00-01679-CR (Tex. App. – Dallas 2001, pet. ref’d). On October 30, 2002, the Court of

Criminal Appeals refused Petitioner’s petition for discretionary review. Orellana v. State, PDR

No. 580-02.

Petitioner filed a state application for writ of habeas corpus. Ex parte Orellana,

Application No. 21,213-05 (Tex. Crim. App. Sept. 29, 2003). On July 28, 2004, the Court of

Criminal Appeals denied the application without written order on the findings of the trial court. 

 

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On August 4, 2004, Petitioner filed this federal petition. He argues: (1) the trial judge

failed to adequately inform Petitioner of the dangers and disadvantages of self-representation; (2)

the evidence is insufficient to support the conviction; (3) he received ineffective assistance of

counsel; (4) the state knowingly presented perjured testimony and withheld evidence; (5) the

indictment and jury charge incorrectly alleged a culpable mental state; (6) the trial court abused

its discretion by making inappropriate comments during voir dire; (7) the trial court abused its

discretion by not allowing Petitioner adequate time to prepare for the punishment phase of the

trial; (8) the court reporter failed to record all proceedings, particularly conferences at the bench;

and (9) the trial court lacked jurisdiction. 

On February 11, 2005, Respondent filed his answer. On February 17, 2005, Petitioner

filed his traverse. The Court finds the petition should be denied.

II. Factual Background

When the victim, A.G., was nine years old, he met Petitioner at church. (Trial Tr.

Vol. 3 at 99-100). A.G. began spending time with Petitioner and began to spend the

night at Petitioner’s house. (Trial Tr. Vol. 4 at 63). Petitioner bought A.G. gifts and

gave him money. (Trial Tr. Vol. 3 at 71, 102-05). 

When A.G. was at Petitioner’s house, Petitioner showed A.G. pornographic

movies and magazines. (Id. at 105-08). A.G. testified that on numerous occasions while

at Petitioner’s house, Petitioner put his penis on A.G.’s “behind.” (Id. at 109-112). A.G.

also testified that Petitioner put A.G.’s penis in his mouth and masturbated. (Id.)

In February, 2000, police took A.G. into protective custody. (Id. at 27). A.G.

was interviewed and taken to Child Protective Services (CPS). (Id. at 62). When CPS

called A.G.’s father to take him home, A.G. was afraid and ashamed. (Id. at 74, 85). 

A.G. initially did not want to talk about what happened, but he began to tell his father

about the sexual conduct. (Id. at 75-79, 84). A month later, Petitioner drove by the

house while A.G. was outside, waved, then circled the block. (Id. at 75). A.G. was upset

and his father called the police. (Id.) Dallas police officer Sandra Escobar came to the

house and spoke with the father and A.G. (Id. at 168-69). A.G. told her that Petitioner

had sexually assaulted him. (Id. at 171).

 

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III. Discussion

1. Standard of Review

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the

AEDPA), 28 U.S.C. § 2254 provide:

(d) An application for 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 a State court proceeding.

See 28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the

writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the

United States Supreme Court on a question of law or if the state court decides a case differently

from the United States Supreme Court on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal

court may grant a writ of habeas corpus if the state court identifies the correct governing legal

principle from the United states Supreme Court’s decisions, but unreasonably applies that

principle to the facts of the prisoner’s case. Id.

This amendment applies to all federal habeas corpus petitions which are adjudicated on

the merits in state court after April 24, 1996. See Lindh, 521 U.S. at 336. The petition in this

case is subject to review under the AEDPA.

 

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2. Procedural Bar

When Petitioner filed his petition, he also filed a separate memorandum entitled

“Memorandum and Motion to Dismiss for Lack of Subject Matter Jurisdiction.” The

memorandum argues that the state court did not have jurisdiction over his case. Petitioner,

however, failed to raise this claim in his state habeas application or in his petition for

discretionary review. The Court finds this claim is procedurally barred.

Federal courts may not review a state court decision that rests on an adequate and

independent state procedural default, unless the habeas petitioner shows cause for the default and

“prejudice attributable thereto” or demonstrates that the failure to consider the federal claim will

result in a “fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255, 262 (1989). 

When the last state court to review a claim clearly and expressly states that its judgment rests on

a procedural bar, the procedural default doctrine generally bars federal review. Id.

In this case, Petitioner’s claim is procedurally barred for failure to present the claim to

the Texas Court of Criminal Appeals either in a petition for discretionary review or a state writ. 

When a claim has not been reviewed by the state’s highest court, this Court may find such claim

procedurally barred. See Coleman v. Thompson, 501 U.S. 722 n.1 (1991). The general rule that

a state court must explicitly apply a procedural bar to preclude federal review does not apply

when a petitioner has not presented his claims to the highest court of the state and the state court

to which he would be required to present his claims would now find the claims procedurally

barred. Id. 

Petitioner has not presented his claim to the Texas Court of Criminal Appeals. If this

Court required him to do so, the claim would be subject to dismissal under the Texas abuse-of-

 

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the-writ doctrine. TEX. CODE CRIM. PRO. Ann. art. 11.07, § 4. That doctrine “prohibits a second

[state] habeas petition, absent a showing of cause, if the applicant urges grounds therein that

could have been, but were not, raised in his first habeas petition.” Nobles v. Johnson, 127 F.3d

409, 423 (5th Cir. 1997) (footnote omitted). “[A]rticle 11.07 § 4 is an adequate and independent

state procedural ground to bar federal habeas review and . . . has been strictly and regularly

applied since 1994.” Smith v. Johnson, 216 F.3d 521, 523 (5th Cir. 2000). When such a state

procedural ground exists, “federal courts ordinarily will not review questions of federal 

law . . . .” Id. (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991)). 

To overcome the procedural bar established by the abuse-of-the-writ doctrine, a

petitioner must demonstrate: (1) cause for the procedural default and actual prejudice as a result

of the alleged violation of federal law; or (2) that failure to consider the claims will result in a

“fundamental miscarriage of justice.” Pitts v. Anderson, 122 F.3d 275, 279 (5th Cir. 1997) (citing

Coleman, 501 U.S. at 750). Petitioner has not shown sufficient cause for his failure to present

this claim to the Texas Court of Criminal Appeals.

Petitioner has also failed to demonstrate the need to prevent a miscarriage of justice. 

This exception is “confined to cases of actual innocence, ‘where the petitioner shows, as a

factual matter, that he did not commit the crime of conviction.’” Fairman v. Anderson, 188 F.3d

635, 644 (5th Cir. 1999) (quoting Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995)). To establish

the required probability that he was actually innocent, a petitioner must support his allegations

with new, reliable evidence that was not presented at trial and must show it was more likely than

not that no reasonable juror would have convicted him in light of the new evidence. Id. (citing

Schlup, 513 U.S. at 327). Petitioner has presented no new, reliable evidence showing that it was

 

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more likely than not that no reasonable juror would have convicted him. Petitioner has not

overcome the state procedural bar. Accordingly, the procedural default doctrine bars federal

habeas relief on this claim.

3. Trial Error

Petitioner argues the trial court failed to adequately warn him of the dangers of selfrepresentation. The Sixth and Fourteenth Amendments guarantee that a defendant brought to

trial in any state or federal court must be afforded the right to assistance of counsel. Faretta v.

California, 422 U.S. 806, 807-08 (1975). A defendant, however, may waive his right to counsel

and proceed with self-representation. Id. at 818-820. The decision to waive the right to counsel

must be made knowingly, intelligently, and voluntarily. Id. at 834-836. The decision to waive

counsel and proceed pro se is made knowingly and intelligently if it is made with a full

understanding of the right to counsel, as well as the dangers and disadvantages of selfrepresentation. Id. 

In this case, the trial judge fully informed Petitioner of the dangers and disadvantages of

self-representation. The record reflects as follows:

THE COURT: Mr. Orellana, what I’m trying to find out now is that Mr. Whittier

has indicated to me that you do not want him to represent you. 

That you want to represent yourself.

MR. WHITTIER: Judge, I do have a clearer understanding of what he’s asking since

I mentioned that to the Court.

THE COURT: Okay.

MR. WHITTIER: Mr. Orellana wants the opportunity to handle his own defense with

counsel available in an advisory capacity.

THE COURT: Is that what you want?

 

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MR. ORELLANA: That would be kosher, yes.

MR. WHITTIER: The questioning, the voir dire, the arguments, he wants to handle

that himself with me available for tips and advice.

THE COURT: If he’s here in an advisory capacity, then he’s not here as your

lawyer. He’s just here to give you advice if you want it or maybe

to tell you things that maybe you should or should not do.

But either he’s going to handle the case or he’s not. And if he’s

not going to handle the case and you want to represent yourself

and just have him here as an advisor, I need to know that. Is that

what you want to do?

MR. ORELLANA: Yes.

THE COURT: Okay. With that in mind, the law says that I need to give you a

written document that you need to sign that outlines your right to

counsel, and that you are waiving that right or giving that right up.

And it reads as follows: “I have been advised on the 9th day of

October in the year 2000 by the judge of Criminal District Court

No. 4 of my right of representation by counsel in the trial of the

charge pending against me. I have been further advised that if

I’m unable to afford counsel one will be appointed for me free of

charge.”

Of course that has already occurred.

“Understanding my right to have counsel appointed for me free of

charge, if I’m not financially able to employ counsel, I wish to

waive that right and request the court to proceed with my case

without an attorney being appointed for me. I hereby waive my

right to counsel.”

Okay. Let me tell you some other things, Mr. Orellana. If you

agree and want to waive your right to representation by counsel,

you will be putting yourself in an extreme disadvantage in the trial

of this case.

First of all, sir, we have Rules of Evidence that need to be

followed, and Rules of Criminal Procedure need to be followed. 

And I will not make any exceptions because you have decided to

represent yourself.

 

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There are objections that may need to be made throughout your

trial. And if you do not make the proper objection throughout the

course of the trial, if you make any objections, then I will have – I

won’t have a proper basis to either sustain or overrule objections.

If you do that and make the wrong objection, then even if your

case is appealed, it is very unlikely that the Court of Appeals or the

Court of Criminal Appeals will not take those points into

consideration if you made the wrong objection. Do you

understand that?

MR. ORELLANA: I understand.

THE COURT: There’s also the opportunity perhaps in cases that a lesser included

offense may be brought up by the evidence. I don’t know that that

will be true in this case but it’s possible.

If you do not recognize it and do not request it, it may be that the

opportunity to have the jury consider a lesser included offense will

also be waived by you, if you don’t make the proper request or

objections to the instructions. Do you understand that?

MR. ORELLANA: I understand.

THE COURT: Okay. Also, it’s my understanding, in fact, that there is a second

enhancement paragraph alleging a conviction for an aggravated

assault case of a child under 14.

If you are convicted of this offense for which you are charged and

the jury finds a second paragraph to be true, it’s an automatic life

sentence in the penitentiary.

If you do not make any proper objections to the introduction of

that or whether or not it should even be introduced into evidence,

if it is appropriately certified to, what have you, you waive your

objections to that or they very likely will not be considered by the

Court of Appeals or the Court of Criminal Appeals on that issue. 

Do you understand that?

MR. ORELLANA: I understand.

THE COURT: I really think and I want to tell you that in my opinion it is a

mistake for you to proceed representing yourself. Do you

understand that?

 

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MR. ORELLANA: I understand.

THE COURT: Also, I’m going to call the jury in – the panel in, and you will be

given an opportunity to address the jury. Okay. If you don’t

address the jury on matters that are relevant to this phase of the

case, that is, make proper presentation to the – to allow you to use

your peremptory challenges correctly, if the state objects, I’ll have

to sustain that objection. And you may be at a disadvantage there

also. Do you understand that?

MR. ORELLANA: I understand.

THE COURT: Same thing if you represent yourself and the case gets to final

arguments. If you argue things that are either outside the record or

improper and inappropriate before the jury and the state objects to

it, I’ll have to sustain that objection. Do you understand that?

MR. ORELLANA: I understand.

THE COURT: Likewise, they’ll get up and have an opportunity to speak to the

jury. You may not recognize an appropriate and proper objection

there or in final arguments in this case should this case get that far. 

And, if you don’t make the proper objections, all those issues may

very well be deemed to be waived if your case is appealed. Do

you understand that?

MR. ORELLANA: I understand.

THE COURT: Understanding that, sir, do you still desire to represent yourself in

this case or would you like to proceed with Mr. Whittier as your

attorney?

MR. ORELLANA: I would have to represent myself.

(Trial Tr. Vol 2, at 13-16).

The record reflects that Petitioner was fully admonished regarding the dangers of selfrepresentation. The record also shows that Petitioner knowingly and voluntarily waived his right

to counsel. Petitioner’s claim should be denied.

 

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1

Respondent correctly notes that factual insufficiency of the evidence does not provide an

independent basis for federal habeas relief. “Factual insufficiency” is a creation of Texas law

whereby the reviewing court scrutinizes the factfinder’s weighing of the evidence. Clewis v.

State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). The relevant inquiry in a federal habeas

proceeding, however, is whether “[a] rational trier of fact could have found proof of guilt beyond

a reasonable doubt.” Schrader v. Whitley, 904 F.2d 282, 284 (5th Cir. 1990), (quoting Jackson v.

Virginia, 443 U.S. 307, 324 (1979)). This standard of review controls even if state law would

impose a more demanding standard of proof. Schrader, 904 F.2d at 284; see also Brown v.

Collins, 937 F.2d 175, 181 (5th Cir. 1991).

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4. Insufficiency of the Evidence

Petitioner argues the evidence was legally and factually insufficient to support his

conviction.1

 Federal habeas review of an insufficiency of the evidence claim is extremely

limited. A federal court may not disturb a conviction in a state criminal proceeding unless no

rational trier of fact could have found the elements of the offense beyond a reasonable doubt. 

Jackson v. Virginia, 443 U.S. 307, 319 (1979); Gibson v. Collins, 947 F.2d 780, 781 (5th Cir.

1991). The evidence must be viewed in the light most favorable to the verdict. Jackson, 443

U.S. 319; Gibson, 947 F.2d at 781. This standard of review applies in both direct and

circumstantial evidence cases. Schrader v. Whitley, 904 F.2d 282, 287 (5th Cir. 1990).

Under Texas law, a person commits aggravated sexual assault of a child under the age of

fourteen: 

(1) if the person:

. . . . 

(B) intentionally or knowingly:

(I) causes the penetration of the anus or sexual organ of a child by any

means;

(ii) causes the penetration of the mouth of a child by the sexual organ

of the actor;

(iii) causes the sexual organ of a child to contact or penetrate the

mouth, anus, or sexual organ of another person, including the

actor;

 

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(iv) causes the anus of a child to contact the mouth, anus, or sexual

organ of another person, including the actor; or

(v) causes the mouth of a child to contact the anus or sexual organ of

another person, including the actor; and

(2) if:

. . . .

(B) the victim is younger than 14 years of age.

TEX. PENAL CODE § 22.021 (West 2000).

Petitioner argues the evidence was insufficient to show that he intentionally and

knowingly caused the sexual organ of the victim to contact Petitioner’s mouth without the

victim’s consent. Although the statute does not require that the state prove the contact was

without the victim’s consent, the indictment in this case alleged that the contact was without

consent.

A.G. testified that he was nine years old at the time of trial. (Trial Tr. Vol. 3 at 99-100). 

He also testified as follows: 

PROSECUTOR: Now, has Samuel Orellana, the defendant – has he ever done bad things to

you?

VICTIM: Mostly at night.

PROSECUTOR: Would you tell the jury what kind of things that he has done to you?

VICTIM: Sometimes he would put his private in my behind and put my private in

his mouth and start shaking his private.

PROSECUTOR: Now, when he tried to put his private in your behind, what did that feel

like? Did that cause you to feel any certain way?

VICTIM: Mostly kind of dirty.

PROSECUTOR: Did that cause any kind of pain?

 

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VICTIM: No.

PROSECUTOR: How often did Samuel Orellana try to put his private in your bottom?

VICTIM: Until mostly he got tired.

PROSECUTOR: Okay. But what I mean is, how often did this happen? How many times,

if you know?

VICTIM: Mostly – mostly every time I would go to his house, sir.

(Trial Tr. Vol. 3 at 109 -110).

Further, Petitioner argued on direct appeal that the state failed to prove lack of consent. 

The state court determined that any variance between the statute and the indictment was not

material. Orellana v. State, No. 05-00-01679-CR, Slip Op. at 2. Additionally, the Texas Penal

Code states that consent is not effective if it is “given by a person who by reason of youth,

mental disease or intoxication is known by the actor to be unable to make reasonable decisions.” 

TEX. PENAL CODE § 1.07(19)(C).

Viewing this evidence in the light most favorable to the verdict, the Court finds that the

evidence was sufficient to prove beyond a reasonable doubt that Petitioner committed aggravated

sexual assault of a child under the age of fourteen. This ground for relief should be denied.

5. Ineffective Assistance of Counsel

Petitioner claims he received ineffective assistance of counsel because his counsel failed

to suppress evidence obtained through an illegal warrant and unlawful search. 

To sustain a claim of ineffective assistance of counsel, Petitioner must show that: (1)

counsel’s performance was deficient; and (2) the deficient performance prejudiced the defense so

gravely as to deprive Petitioner of a fair trial. Strickland v. Washington, 466 U.S. 668, 687

(1984). In Strickland, the Court stated that “[j]udicial scrutiny of counsel’s performance must be

 

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highly deferential” and “every effort [must] be made to eliminate the distorting effects of

hindsight.” Strickland, 466 U.S. at 689. Courts, therefore, must “indulge a strong presumption

that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

Even if counsel is proven deficient, a petitioner must prove prejudice. To prove such

prejudice, Petitioner must show “a reasonable probability that the result of the proceedings

would have been different but for counsel’s unprofessional errors.” Crane v. Johnson, 178 F.3d

309, 312 (5th Cir. 1999) (citing Strickland, 466 U.S. at 694). “[T]he mere possibility of a

different outcome is not sufficient to prevail on the prejudice prong.” Id. “Rather, the defendant

must demonstrate that the prejudice rendered sentencing ‘fundamentally unfair or unreliable.’”

Id. (quoting Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)).

In this case, Petitioner’s counsel filed pretrial motions on September 19, 2000. Included

in these motions was a “Motion to Suppress Evidence Obtained by Unlawful Stop, Search and

Seizure.” (Court Record at 61, 80-83). On the first day of trial, the court informed Petitioner

that he would need to request a hearing on the motion when the issue arose during trial. (Trial

Tr. Vol. 2 at 23). Petitioner represented himself during trial. Petitioner has failed to show that

his counsel was constitutionally ineffective. His claim should be denied. 

6. Conclusory Allegations

Petitioner makes several conclusory allegations. First, Petitioner argues the “Prosecutor

has deliberately suppressed evidence favorable to the accused, and have (sic) allowed false

evidence to go uncorrected.” (Pet. at 8). Petitioner does not explain his allegations. He cites

only to Volume 3 of the trial transcripts, pages 106-116. This section of the trial testimony

involves the direct-examination of the victim. Petitioner does not state what evidence was

 

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allegedly suppressed or what false evidence was uncorrected. 

Petitioner further states “[t]he trial (sic) abused its discretion by making inappropriate

comments during voir dire.” (Pet. at 8). He does not identify which comments were

inappropriate or why the comments were inappropriate. 

Petitioner argues the trial judge abused his discretion by not allowing Petitioner adequate

time to prepare for the punishment phase of the trial. Petitioner does not identify how any

additional time would have benefitted his case. 

Petitioner also argues the court reporter did not record all court proceedings, particularly

bench conferences. Petitioner has failed to show that he objected at trial to the failure to record

any bench conferences. He also failed to show that any rulings were made during these

conferences and/or that he was prejudiced by the failure to record any bench conferences. He

has further failed to show that any other court proceedings were not recorded. 

Petitioner’s claims are conclusory and should be denied. See Ross v. Estelle, 694 F.2d

1008, 1012 (5th Cir. 1983) (emphasizing that mere conclusory allegations do not raise

constitutional issues in habeas proceedings).

7. Improper Mental State

Petitioner states the indictment and jury charge “incorrectly alleged culpable mental

state.” (Pet. at 8). Petitioner does not explain this claim. The indictment and jury charge allege

that Petitioner “intentionally and knowingly” caused the sexual organ of the victim to contact

Petitioner’s mouth. As discussed above, Texas Penal Code § 22.021(B)(iii) defines aggravated

sexual assault as “intentionally or knowingly . . . caus[ing]the sexual organ of a child to contact

or penetrate the mouth . . . of another person, including the actor.” Petitioner’s claim is without

 

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merit and should be denied.

8. Summary

Petitioner is lawfully restrained because he has failed to prove that he has been denied a

constitutionally protected interest. Accordingly, the state courts’ determination to deny relief is

not contrary to or does not involve an unreasonable application of clearly established federal law

and is not based on an unreasonable determination of the facts in light of the evidence presented

in the state court proceedings.

RECOMMENDATION

This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254 be DENIED.

Signed this 26thday of May, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally,

the failure to file written objections to proposed findings and recommendations within ten (10)

days after being served with a copy shall bar the aggrieved party from appealing the factual

findings and legal conclusions of the Magistrate Judge that are accepted by the District Court,

except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1417 (5th Cir. 1996) (en banc).

 

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