IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSE LUPIAN BAUTISTA, #1081345, )

Petitioner, )

)

v. ) 3:05-CV-2441-P

) ECF

NATHANIEL QUARTERMAN, Director, )

Texas Department of Criminal Justice, ) 

Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in

implementation thereof, the subject cause has been referred to the United States Magistrate

Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type Case: This is a pro se petition for habeas corpus relief filed by a state inmate

pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is presently incarcerated within the Texas Department of Criminal

Justice -- Correctional Institutions Division (TDCJ-CID). Respondent is the TDCJ-CID

Director. The Court issued process in this case.

Statement of the Case: Following his plea of not guilty, a jury convicted Petitioner for

the offenses of possession with intent to deliver in the 282nd District Court of Dallas County,

Texas, in cause number F01-02410-LS. On January 22, 2002, the trial court assessed

punishment at fifteen years imprisonment. 

 

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1 Petitioner’s last ground, that trial counsel was ineffective for failing to file a

notice of appeal, is now moot. Petitioner’s pro se notice of appeal was heard by the trial court

and granted upon reconsideration. 

2

On July 7, 2003, Petitioner sought state habeas corpus relief. The petition was held in

abeyance to permit Petitioner to proceed on direct appeal. Ex parte Lupian, WR-61,094-01, at 2.

On March 9, 2004, the Fifth District Court of Appeals affirmed his conviction and sentence. 

Bautista v. State, No. 05-03-01293-CR (Tex. App. -- Dallas, Mar. 9, 2004, no pet.). Thereafter,

the trial court entered findings, conclusions and recommendation on the state habeas application. 

The Texas Court of Criminal Appeals then denied the application without written order based on

the findings of the trial court without hearing. Ex parte Lupian, WR-61,094-01, at cover, and at

29.

In his federal habeas petition, filed on December 12, 2005, Petitioner alleges ineffective

assistance of trial counsel and insufficiency of the evidence. With respect to counsel’s

ineffectiveness, Plaintiff asserts that counsel failed to do the following: 

A. communicate,

B. investigate,

C. prepare

D. file pre-trial motions,

E. file a Brady motion,

F. interview any witnesses,

G. put on any evidence,

H. conduct pre-trial discovery,

I. investigate possible defenses,

J. subject the prosecution’s case to meaningful adversarial testing,

K consult with the defendant (more than briefly),

L. contact the co-defendant Jesus Vasquez,

M. investigate the co-defendant Jesus Vasquez,

N. interview co-defendant Jesus Vasquez,

O. subpoena the co-defendant Jesus Vasquez,

P. introduce a statement given by the co-defendant Jesus Vasquez,

Q. file a notice of appeal or discuss the options of appeal.1

 

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In response to this Court’s order to show cause, Respondent filed an answer along with

the state court record. He alleges that some of the ineffective assistance of counsel claims and

the sufficiency of the evidence claim are unexhausted and procedurally barred, and that the

remaining claims are meritless. Petitioner filed a reply objecting to the above arguments. 

Findings and Conclusions: The Court addresses first the exhaustion and procedural

default issues, and second any remaining claims on the merits. 

A. Exhaustion and Procedural Default of Ineffective Assistance of Counsel Claims 

Grounds A, C, E, F, G, I, J, K, L, M, N, O, P

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), which provides in pertinent part that a state prisoner must exhaust all available state

court remedies before a federal court will consider the merits of his claims. 28 U.S.C. § 2254(b)

and (c) (West 2006); Rhines v. Weber, 544 U.S. 269, 274 (2005). The exhaustion requirement is

designed to "protect the state court's role in the enforcement of federal law and prevent the

disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. 509, 518 (1982); see also

Rhines, 544 U.S. at 274. Exhaustion of state court remedies “is satisfied when the substance of

the federal habeas claim has been fairly presented to the highest state court." Morris v. Dretke,

379 F.3d 199, 204 (5th Cir. 2004) (quoting Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir.

1999)). A Texas prisoner may satisfy that requirement by presenting both the factual and legal

substance of his/her claims to the Texas Court of Criminal Appeals in a petition for discretionary

review or in a state application for a writ of habeas corpus pursuant to Tex. Code Crim. Proc.

art. 11.07. Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998); Bautista v. McCotter, 793

F.2d 109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 430-32 (5th Cir. 1985). 

The exhaustion requirement is not met if the petitioner presents new legal theories or

 

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factual claims in his federal habeas petition. Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct.

276, 277-78, 74 L.Ed.2d 3 (1982); Riley v. Cockrell, 339 F.3d 308, 318 (5th Cir. 2003) (“It is not

enough that the facts applicable to the federal claims were all before the State court, or that the

petitioner made a similar state-law based claim. The federal claim must be the ‘substantial

equivalent’ of the claim brought before the State court.”), cert. denied, 543 U.S. 1056 (2005);

Wilder v. Cockrell, 274 F.3d 255, 259 (5th Cir. 2001) (“where petitioner advances in federal

court an argument based on a legal theory distinct from that relied upon in the state court, he

fails to satisfy the exhaustion requirement”). 

Respondent correctly points out that Petitioner did not adequately exhaust his ineffective

assistance of counsel claims raised in grounds A, C, E, F, G, I, J, K, L, M, N, O, P (italicized

above). After reviewing the state court record, it is clear that Petitioner did not fairly present any

of the above grounds in his art. 11.07 writ. The state writ only stated that counsel “failed to

conduct a thorough investigation into the case” and locate “a person [who] was arrested with the

applicant,” and failed to file any pre-trial motions and discovery. Ex parte Lupian, at 6 and 11. 

Petitioner asserts that his “points of ineffective assistance arise out of the same conduct” --

namely that “trial counsel did absolutely nothing to prepare for trial” -- and, thus, they are

subsumed within the general claims pled in the art. 11.07 application (Pet’s Response at 2). 

This contention is meritless. The ineffective assistance claims pled in the federal petition are not

the “substantial equivalent” of the claims presented to the state court. Petitioner specifically

advances new legal theories of ineffective assistance of counsel that were not in pled in state

court. Therefore grounds A, C, E, F, G, I, J, K, L, M, N, O, P remain unexhausted.

The failure to properly present these claims to the highest court in Texas constitutes a

 

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procedural default that could bar this Court from considering such claims on federal habeas

review. See In re Bagwell, 401 F.3d 312, 315 (5th Cir. 2005); Busby v. Dretke, 359 F.3d 708,

724 (5th Cir. 2004). Were this Court to require petitioner to present these claims to the Court of

Criminal Appeals, they would be subject to dismissal under the Texas abuse-of-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.

Consequently, unless Petitioner can overcome the procedural bar, the unexhausted claims may

not be considered.

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

petitioner must demonstrate cause and prejudice or a fundamental miscarriage of justice. Id. at

524. Petitioner has shown no cause for failing to raise the claims to the Court of Criminal

Appeals. Petitioner could have presented the claims to the Court of Criminal Appeals through

his pro se state application for writ of habeas corpus, but failed to do so. Nor has he shown

himself to be actually innocent of the offense of possession with intent to deliver a controlled

substance, and therefore cannot show that a fundamental miscarriage of justice will result from a

failure to consider his claims.

For the foregoing reasons, petitioner has not overcome the state procedural bar.

 

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2 Petitioner’s assertion that he raised a “no evidence” claim as opposed to an

insufficiency of the evidence claim (Pet’s Response at 7-8) is wholly meritless. The evidence

presented at trial affirmatively linked Petitioner to the contraband found in the car and at the

construction site and, therefore, that he “acting alone or as a party,” knowingly possessed it with

intent to deliver it. Bautista v. State, No. 05-03-01293-CR, slip op. at 8.

6

Accordingly, the procedural default doctrine bars federal habeas relief on the following grounds

of ineffective assistance of counsel: A, C, E, F, G, I, J, K, L, M, N, O, P. 

B. Procedural Bar of Sufficiency of Evidence Claim

Respondent correctly notes that Petitioner did not fairly present his sufficiency of the

evidence claim to the Court of Criminal Appeals in a procedurally correct manner. He did not

file a petition for discretionary, and the trial court specifically found that “sufficiency of the

evidence claims are not cognizable in an Application for Writ of Habeas Corpus.” Ex parte

Bautista, at 29 (citing Ex parte McClain, 869 S.W.2d 349, 351 (1994)); see also West v.

Johnson, 92 F.3d 1385, 1398, n. 18 (5th Cir. 1996). Since the Court of Criminal Appeals denied

the state writ on the findings of the trial court without hearing, it adopted that procedural reason

for not considering this claim. Thus, Petitioner has procedurally defaulted his legal-sufficiencyof-the-evidence claim and, as noted above, cannot overcome the procedural bar. Therefore, the

Court will not review this claim.2

C. Merits Review of Non-defaulted Ineffective Assistance of Counsel Claims

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. §

2254(d), precludes habeas corpus relief unless the state court’s adjudication on the merits:

(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.

 

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3 While Petitioner did not identify Jesus Vasquez in his state writ, the trial court

assumed he was referring to Vasquez. Since Vasquez and Petitioner were not tried together, the

term “co-defendant” is improper. 

7

28 U.S.C. § 2254(d).

When a convicted defendant seeks habeas corpus relief on the ground of ineffective

assistance of trial counsel, he must show (1) that counsel's representation fell below an objective

standard of reasonableness, and (2) that there is a reasonable probability that but for counsel’s

unprofessional errors, the result of the proceeding would have been different. Strickland v.

Washington, 466 U.S. 668 (1984). See also Williams v. Taylor, 529 U.S. 362, 390-91, 120 S. Ct.

1495, 1512-16 (2000); Ward v. Dretke, 420 F.3d 479, 487 (5th Cir. 2005), cert. denied, 126

S.Ct. 1621 (2006). In evaluating a counsel's performance, a court must indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance. Titsworth v. Dretke, 401 F.3d 301, 310 (5th Cir. 2005) cert. denied, 126 S. Ct. 1022

(2006) (citing Strickland, 466 U.S. at 689). In determining prejudice, a reasonable probability is

a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. 

Both prongs of the Strickland test must be met to demonstrate ineffective assistance. Id. at 697. 

Petitioner alleges that counsel failed to investigate, file pre-trial motions, and conduct

pre-trial discovery. He further alleges that counsel failed to investigate his “co-defendant,” Jesus

Vasquez, who was arrested with Petitioner.3

 

Allegations of a counsel's failure to investigate must include with specificity what the

investigation would have revealed and how it would have altered the outcome of a defendant's

case. Lockett v. Anderson, 230 F.3d 695, 713 (5th Cir. 2000). 

Here Petitioner contends in general that counsel did absolutely nothing to prepare for

 

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trial. He fails to provide any details whatsoever as to what kind of investigation counsel could

have done, and what evidence such an investigation would have revealed. As a result, his

allegations are wholly conclusory. Ross v. Estelle, 694 F.2d 1008, 1012 (5th Cir. 1983). Even

assuming counsel’s conduct fell below an objective standard of reasonableness, Petitioner cannot

show prejudice -- namely that any pre-trial investigation would have altered the outcome of his

trial. 

Petitioner next asserts that counsel should have investigated Jesus Vasquez. The duty to

investigate includes the duty to locate exculpatory witnesses. Gray v. Lucas, 677 F.2d 1086,

1093 n. 5 (5th Cir. 1982); United States ex rel. Hampton v. Leibach, 347 F.3d 219, 236 (7th Cir.

2003). Complaints of uncalled witnesses, however, are not favored on collateral review because

allegations of what the witnesses would have testified to are largely speculative. Evans v.

Cockrell, 285 F.3d 370, 377 (5th Cir. 2002). “‘[T]o demonstrate the requisite Strickland

prejudice, [a habeas petitioner] must show not only that [the] testimony would have been

favorable, but also that the witness[es] would have testified . . . .’” Id. (quoting Alexander v.

McCotter, 775 F.2d 595, 602 (5th Cir. 1985)).

Apart from his own self-serving statements, Petitioner has presented no evidence in this

habeas action that Vasquez would have been willing to testify, and of what Vasquez could or

would have testified if he had been called at trial. Petitioner asserts that he had a statement from

Vasquez, that “the drugs belonged to him and that Petitioner knew nothing of the drugs,” and

that he handed this statement to counsel before trial. (See Pet’s Memorandum in Support at 7). 

This allegation, in and of itself, is insufficient to meet Petitioner’s heavy burden under

Strickland. Nor can Petitioner rebut the presumption that counsel’s failure to call Vasquez at

 

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trial was part of reasoned trial strategy. Wilkerson v. Collins, 950 F.2d 1054, 1065 (5th Cir.

1992). The court of appeals concluded that the evidence presented at trial affirmatively linked

Petitioner to the contraband found in the car and at the construction site and, therefore, that he

“acting alone or as a party,” knowingly possessed it with intent to deliver it. Bautista v. State,

No. 05-03-01293-CR, slip op. at 8. In light of the above evidence, Vasquez’s testimony -- that

the drugs belonged to him and that Petitioner knew nothing about them -- would not have

materially affected the outcome of the trial. 

Petitioner has failed to show that the state court's decision rejecting his claims of

ineffective assistance of counsel were contrary to or an unreasonable application of clearly

established federal law. See Miller v. Dretke, 420 F.3d 356, 360 (5th Cir. 2005) (ineffective

assistance claims involve mixed questions of law and fact and, as such, are reviewed under the

unreasonable application prong of § 2254(d)). Therefore, grounds B, D, H, and M should

therefore be denied. 

D. Request for an Evidentiary Hearing

Petitioner requests an evidentiary hearing. (See Pet’s Memorandum in Support at 5). 

However, the AEDPA limits the circumstances in which a habeas corpus petitioner may obtain

an evidentiary hearing in federal court, imposing a significant burden on petitioners who fail to

diligently develop the factual bases for their claims in state court. See Williams v. Taylor, 529

U.S. 420, 433-34 (2000) (prisoners who are at fault for the deficiency in the state court record

must satisfy a heightened standard to obtain an evidentiary hearing); 28 U.S.C. § 2254(e)(2). 

“Federal courts sitting in habeas are not an alternative forum for trying facts and issues which a

prisoner made insufficient effort to pursue in state proceedings.” Williams, 529 U.S. at 437. 

 

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Under the AEDPA, if a petitioner failed to develop the factual basis of a claim in state court, he

is entitled to a federal evidentiary hearing only if (1) the claim relies on either (a) a new rule of

constitutional law, made retroactive on collateral review by the Supreme Court, that was

previously unavailable or (b) a factual predicate that could not have been previously discovered

through the exercise of due diligence and (2) the facts underlying the claim are sufficient to

establish by clear and convincing evidence that, but for the constitutional error, no reasonable

fact-finder would have found the petitioner guilty of the underlying offense. Foster v. Johnson,

293 F.3d 766, 775 n. 9 (5th Cir. 2002); 28 U.S.C. § 2254(e)(2).

Petitioner was afforded a full and fair opportunity to develop and litigate his claims for

relief during his state habeas corpus proceeding. Petitioner has presented this Court with no new

evidence or factual theories supporting any of his claims that were unavailable to him, despite

the exercise of due diligence, during his state habeas corpus proceeding. Likewise, Petitioner

does not identify any new legal theories supporting his claims for relief herein that were

unavailable at the time he filed and litigated his state habeas corpus claims. Petitioner does not

offer any rational explanation for his failure to fully develop any and all evidence supporting his

claims during his state habeas evidentiary hearing. Nor does he identify any additional evidence

which he was unable to develop and present to the state habeas court despite the exercise of due

diligence on his part. Under such circumstances, Petitioner is not entitled to a federal

evidentiary hearing to further develop the facts supporting his claims.

 

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RECOMMENDATION:

For the foregoing reasons it is recommended that the District Court DENY the petition

for writ of habeas corpus.

A copy of this recommendation will be transmitted to Petitioner and counsel for

Respondent.

Signed this 19th day of December, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996)(en banc) a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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