HAB54\R&R\ROMERO-88:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

MARCO ANTONIO ROMERO, §

§

Petitioner, §

§

v. § 2:04-CV-0088

§

NATHANIEL QUARTERMAN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DENY PETITION FOR 

A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Petitioner MARCO ANTONIO ROMERO has filed with this Court a Petition for a Writ of

Habeas Corpus by a Person in State Custody challenging his state conviction for the offense of

sexual assault. For the reasons set forth below, it is the opinion of the undersigned United States

Magistrate Judge that petitioner’s federal application for habeas corpus relief should be DENIED.

I.

PROCEDURAL HISTORY

On August 17, 2000, in Cause No. CR-00H-108, petitioner was indicted in the 222nd Judicial

District Court of Deaf Smith County, Texas, for the offense of sexual assault, a second degree

felony. See Tex. Penal Code § 22.011(a)(1)(A), (f) (Vernon 2000). The indictment alleged a 1981

burglary of a habitation felony conviction for purposes of enhancing the offense to a first degree

felony. See Tex. Penal Code § 12.42(b) (Vernon 2000). On January 16, 2003, petitioner, pursuant

 

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See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner’s federal habeas corpus petition is deemed filed when

he delivers the petition to prison officials for mailing to the district court).

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to a plea agreement, pled guilty to the offense of sexual assault and true to the enhancement

paragraph. Pursuant to a plea agreement, the trial court assessed petitioner’s punishment at

confinement in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID) for ten

(10) years. Petitioner did not directly appeal his conviction and sentence to the appropriate state

appellate court.

Petitioner sought review of his conviction by way of a state application for habeas corpus

relief. On October 1, 2003, the Texas Court of Criminal Appeals dismissed such petition for failure

to comply with state appellate rules. In re Romero, No. 57,138-01. On October 28, 2003, petitioner

filed a second state writ with the state trial court. On March 24, 2004, the Texas Court of Criminal

Appeals denied petitioner’s state habeas application without written order. Ex parte Romero, No.

57,138-02.

On April 9, 2004, petitioner filed the instant application for federal habeas relief with this

Court.1

 On July 16, 2004, respondent filed his answer opposing federal habeas corpus relief.

II.

PETITIONER'S ALLEGATIONS

Petitioner appears to contend he is being held in violation of the Constitution and laws of the

United States for the following reasons:

1. Petitioner was denied effective assistance of counsel because trial counsel

allowed petitioner to plead guilty to a 10-year sentence, the maximum

sentence for the 3rd degree felony with which petitioner was charged;

 

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2. There was factually insufficient evidence to support petitioner’s conviction of

sexual assault because the facts did not demonstrate the absence of the

victim’s lack of consent and there was only one witness against petitioner;

and 

3. Petitioner’s right against self-incrimination was violated.

III.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under a

state court judgment shall not be granted with respect to any claim that was adjudicated on the

merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established federal

law 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. 28 U.S.C. § 2254(d). A decision is contrary to

clearly established federal law 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

than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529

U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied,

532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly

established precedent if it correctly identifies the applicable rule but applies it objectively

unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286

F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003). 

Section 2254(e)(1) provides that a determination of a factual issue made by a state court

shall be presumed to be correct. The applicant has the burden of rebutting this presumption of

correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of

 

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Criminal Appeals denies relief in a state habeas corpus application without written order, it is an

adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469,

472 (Tex.Crim.App. 1997).

IV.

MERITS

A. Ineffective Assistance of Counsel

By his first ground, petitioner appears to argue counsel was ineffective for failing to secure a

more favorable plea bargain for petitioner. Specifically, petitioner appears to argue counsel was

deficient in negotiating, in exchange for petitioner’s guilty plea, a 10-year sentence. Petitioner

alleges the maximum sentence for the 3rd degree felony with which he was charged was only ten

(10) years.

In his state habeas application, with regard to this ground, petitioner alleged only, “Deniel

[sic] of effective assistance of counsel. Marco Romero challenges conviction.” Petitioner did not

identify or allege any specific instances of ineffectiveness. Petitioner’s state habeas claim was

nothing more than a conclusory allegation which failed to apprise the state court of the facts on

which his claim was based. Petitioner now, in this federal habeas application, adds entirely new

factual allegations of ineffectiveness. The state courts were not given an opportunity to properly

investigate these complaints of ineffective assistance of counsel. 

The exhaustion doctrine set forth in 28 U.S.C. § 2254 requires that the state courts be given

the initial opportunity to address and, if necessary, correct alleged deprivations of federal

constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059

(1989). If a claim is not presented to the State’s highest court for consideration, then such a claim is

 

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The abuse of the writ rule can be an adequate and independent state ground foreclosing federal habeas review. Lowe v.

Scott, 48 F.3d 873, 875 (5th Cir. 1995). Such a procedural rule that acts as a bar, however, must be “firmly established and regularly

followed.” Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The Fifth Circuit Court of Appeals has

determined that the Texas abuse of the writ doctrine has been strictly and regularly applied since 1994. Fuller v. Johnson, 158 F.3d

903, 905 (5th Cir. 1998); Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir. 1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142

L.Ed.2d 339 (1998). 

HAB54\R&R\ROMERO-88:2 5

not exhausted. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Petitioner has not

sufficiently exhausted his available state court remedies with regard to his first ground one alleging

ineffective assistance of counsel.

Further, petitioner would be precluded, by the Texas abuse of the writ doctrine, see Tex.

Code Crim. Proc. Ann. art. 11.07 § 4 , from raising this specific factual allegation of ineffective

assistance in a future state habeas application. See Tex. Code Crim. Proc. Art. 11.07 § 4. If a

petitioner "fails to exhaust available state remedies and 'the court to which the petitioner would be

required to present his claims in order to meet the exhaustion requirement would find the claims

procedurally barred'," then the claim is procedurally defaulted.2

 Jones v. Jones, 163 F.3d 285, 296

(5th Cir. 1998) (quoting Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523

U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998) (quoting Coleman v. Thompson, 501 U.S. 722,

735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In other words, when federal habeas claims

"are 'technically' exhausted because, and only because, [petitioner] allowed his state law remedies

to lapse without presenting his claims to the state courts ... [,] there is no substantial difference

between nonexhaustion and procedural default." Id. (quoting Magouirk v. Phillips, 144 F.3d 348,

358 (5th Cir.1998)). Here, because petitioner failed to exhaust his specific factual claim of

ineffective assistance of counsel, said claim is procedurally defaulted.

There is, however, a “cause and prejudice” exception to the bar for failure to exhaust. 

“When the ground upon which the petitioner relies for habeas relief was not exhausted in state court

 

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and state procedural rules would bar subsequent presentation of the argument,” this Court will not

consider petitioner’s unexhausted claim absent ‘cause’ and ‘prejudice.’” Beazley v. Johnson, 2001

WL 118393, *15 (5th Cir. 2001) (quoting Little v. Johnson, 162 F.3d 855, 859 (5th Cir. 1998), cert.

denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999)). Federal habeas relief will not be

granted on a procedurally defaulted claim unless the petitioner can demonstrate both good cause for

the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate

that failure to consider the claim will result in a fundamental miscarriage of justice. Id. (citing

Moawad v. Anderson, 143 F.3d 942, 947 (5th Cir.) , cert. denied, 525 U.S. 952, 119 S.Ct. 383, 142

L.Ed.2d 316 (1998) (pre-AEDPA); Nobles, 127 F.3d at 423 n. 33 (post-AEDPA); Williams v. Cain,

125 F.3d 269, 276 (5th Cir.1997), cert. denied, 525 U.S. 859, 119 S.Ct. 144, 142 L.Ed.2d 116

(1998) (post-AEDPA); cf. United States v. Flores, 135 F.3d 1000, 1006 n. 23 (5th Cir.1998), cert.

denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999) (post-AEDPA, section 2255)).

Petitioner has not argued, much less demonstrated, just cause for his failure to raise the

factual basis for his ineffective assistance of counsel claim in his state court proceeding. The

undersigned finds no factors constituting just cause for petitioner’s failure to raise his factual

allegation before the state’s highest court. The factual support for this claim was readily apparent at

the time petitioner’s state habeas application was filed and petitioner could have included such in

his state action. Because petitioner has failed to show sufficient cause for his state procedural

default, a “prejudice” analysis is not necessary. Further, the failure to consider the claim will not

result in a fundamental miscarriage of justice. Petitioner’s ineffective assistance of counsel claim

has been procedurally defaulted as a result of petitioner’s failure to exhaust at the state court level,

it is not cognizable in federal habeas proceedings, and should be dismissed. 

 

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Petitioner states, “Upon Romero’s second appearance to court, Judge H. Bryan Poff, Jr. said 3rd degree felony, two to ten

years.” The state court records provided to this Court provide no transcript of any preliminary appearances. 

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Further, petitioner’s claim of ineffective assistance of counsel should also be dismissed 

because it was waived by his guilty plea. 

A valid guilty plea waives all non-jurisdictional defects, including an ineffective

assistance of counsel claim, unless the ineffective assistance claim affects the

voluntary nature of the plea. Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). If a

defendant enters a guilty plea on the advice of counsel, whether the plea was

voluntary and knowing turns on whether the advice rendered was within the range of

competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52,

56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). To prove ineffective assistance of

counsel, the defendant must prove that his counsel's performance was both deficient

and prejudicial to him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

80 L.Ed.2d 674 (1984). In the context of a guilty plea, the defendant must show that,

but for his counsel's errors, he would not have pleaded guilty and would have

insisted upon going to trial. Hill, 474 U.S. at 57-58; Joseph v. Butler, 838 F.2d 786,

791 (5th Cir. 1988).

Gilbert v. Anderson, 116 F.3d 1476 (5th Cir. 1997). Here, petitioner solemnly admitted in open

court that he was in fact guilty of the offense with which he was charged. Consequently, petitioner

may not now raise independent claims relating to the deprivation of constitutional rights that

occurred prior to the entry of his guilty plea, to wit: ineffective assistance of counsel in securing the

plea agreement. Petitioner has not attacked the voluntary and intelligent character of his guilty plea

by showing the advice he received from counsel was not adequate, nor has petitioner alleged or

shown his guilty plea was not voluntarily or knowingly entered. Petitioner’s claim of ineffective

assistance of counsel should, alternatively, be dismissed as having been waived.

Even if this Court were to consider the merits of petitioner’s claim, petitioner has not

demonstrated ineffective assistance of counsel. Petitioner was charged with a 1st degree felony

rather than a 3rd degree felony as petitioner contends.3

 Consequently, the possible range of

punishment for the charged offense was 5-99 years, rather than the 2-10 years petitioner contends

 

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Under Texas law, a claim of insufficiency of the evidence is not cognizable in a post-conviction application for a writ of

habeas corpus. Ex parte McLain, 869 S.W.2d 349, 350 (Tex.Crim.App.1994), citing Ex parte McWilliams, 634 S.W.2d 815

(Tex.Crim.App.1982); Ex parte Easter, 615 S.W.2d 719, 721 (Tex.Crim.App.1981).

HAB54\R&R\ROMERO-88:2 8

was his punishment exposure. Petitioner has not shown counsel was deficient in securing a 10-year

sentence recommendation as part of the plea agreement, considering the possibility of a much

greater sentence if petitioner proceeded to trial. If petitioner’s first ground is not dismissed as

unexhausted, it should, alternatively, be denied on the merits. 

B. Factual Sufficiency of the Evidence

Petitioner argues the evidence was factually insufficient to support his conviction for sexual

assault because the victim assisted in the sex act, did not resist the sex act, “was not compelled to go

against her will,” and “had removed all of her clothing.” Petitioner claims not only was there

insufficient factual evidence to show the victim’s lack of consent, but also argues there “must be

more than a single witness” to support a conviction. Petitioner raised this allegation on state habeas

review and such claim was denied without written order.4 

Petitioner waived this non-jurisdictional claim by the entry of his guilty plea and, thus, this

claim should be dismissed. See Kelley v. Alabama, 636 F.2d 1082, 1084 (5th Cir. 1981). Further,

factual insufficiency of the evidence claims are not cognizable on federal habeas corpus review. In

challenges to state convictions under 28 U.S.C. § 2254, only the legal sufficiency standard set out in

Jackson v. Virginia, 443 U .S. 307, 318-19 (1979), need be satisfied. Petitioner's factual sufficiency

of the evidence claim does not raise a claim that is cognizable on federal habeas corpus review and

should be dismissed. 

 

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C. Violation of Right Against Self-Incrimination

Petitioner appears to argue his right against self-incrimination was violated because he was

interrogated and photographed concerning the sexual assault charge when he had gone to the police

only to report the victim’s associates had attempted to murder him. Petitioner also appears to argue

his right against self-incrimination was violated because he was injured from the attempted murder

and the police instructed his doctor not to give him any pain medication.

This non-jurisdictional claim was waived by petitioner’s guilty plea. See Brown v. Butler,

811 F.2d 938, 940 (5th Cir. 1987). Consequently, petitioner’s third ground should be dismissed. 

Even if this Court were to consider petitioner’s claim, the allegations are conclusory and without

merit.

D. Conclusion

By his application, petitioner appears to primarily assert he is innocent of the sexual assault

offense of which he was convicted. Petitioner, however, admitted his guilt of the charged offense

when he entered a guilty plea. Solemn declarations in open court carry a strong presumption of

verity. United States v. Adam, 296 F.3d 327 (5th Cir. 2002). The record does not indicate petitioner

pled guilty while maintaining his innocence. Nor does the record reflect any of petitioner’s denials

of responsibility took place until after he had entered into a plea agreement with the State and after

the state trial court had accepted his plea. The judgment reflects the state trial court proceeded to

hear evidence from the State and petitioner and, having heard argument of counsel, found there was

sufficient evidence to support petitioner’s guilty plea. Petitioner’s guilty plea thus had a factual

basis for his conviction of the charge set forth in the indictment.

 

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V.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States

District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by

petitioner MARCO ANTONIO ROMERO be DENIED.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 1st day of December 2006.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or electronic means,

three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). Therefore, any objections

must be filed on or before the fourteenth (14th) day after this recommendation is filed as

indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of

Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States

District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

 

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and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the

unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the

Magistrate Judge in this report and accepted by the district court. See Douglass v. United Services

Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th

Cir. 1988).

 

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