IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

ANTHONY VARGAS GONZALEZ, §

Petitioner, §

§

v. § CIVIL ACTION NO. 4:05-CV-0284-Y

§

DOUGLAS DRETKE, DIRECTOR, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The findings, conclusions, and recommendation of the United States

Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254. 

B. PARTIES

Petitioner Anthony Vargas Gonzalez, TDCJ-ID #1159279, is in custody of the Texas

Department of Criminal Justice, Correctional Institutions Division, in Pampa, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institutions Division.

C. FACTUAL AND PROCEDURAL HISTORY

In November 2002, Gonzales was charged by indictment in Tarrant County, Texas, with

 

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aggravated assault with a deadly weapon. (State Habeas R. at 25.) At trial, the victim, Melissa Carr,

testified that she and Gonzalez had an on-again-off-again relationship and had two children together.

(3Reporter’s R. at 11-12.) On the evening of August 27, 2002, she spoke with Gonzalez on the

telephone and told him they did not need him in their lives anymore and to stay away from the

children. (Id. at 14.) Shortly thereafter, Gonzalez arrived at Carr’s residence, forced the barrel of

a revolver into her mouth, held her by the neck, pushed her up against a wall, and threatened her.

(Id. at 17-19.) At one point, he removed the barrel from Carr’s mouth to show her the bullets in the

cylinder and then forced the barrel back into her mouth. (Id. at 19-21.) After making more threats,

he left. (Id. at 21.) The state produced photographs of Carr’s injuries. Gonzalez did not testify.

Based on the evidence, the jury found Gonzales guilty of the charged offense, and the trial

court assessed his punishment at twenty-five years’ confinement. (State Habeas R. at 26-27.)

Gonzales appealed his conviction, but the Second Court of Appeals affirmed the trial court’s

judgment on April 15, 2004. Gonzales v. Texas, No. 2-03-106-CR (Tex. App.–Fort Worth Apr. 15,

2004) (not designated for publication). He did not file a petition for discretionary review. (Petition

at 3.) He did, however, file a state application for writ of habeas corpus in the Texas Court of

Criminal Appeals, which was denied without written order on August 25, 2004. Ex parte Gonzales,

No. 59,339-01, at cover. Gonzalez filed this federal petition for writ of habeas corpus on April 26,

2005. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition

deemed filed when papers delivered to prison authorities for mailing). 

D. ISSUES 

Gonzales raises the following four grounds for relief:

(1) His conviction was obtained by the use of evidence gained from an

unconstitutional search and seizure; 

 

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(2) His conviction was obtained by the use of perjured testimony of Carr;

(3) His conviction was obtained by prosecutorial misconduct and improper

jury argument; and

(4) His conviction was obtained by the trial court’s abuse of discretion in

denying his motion for mistrial following the state’s improper jury argument.

(Petition at 7-8 & Brief in Support) 

E. RULE 5 STATEMENT

Although Dretke does not address the issue, it appears that Gonzales has failed to exhaust

his state court remedies regarding grounds 1, 2, a portion of ground 3, and ground 4 and that the

claims are procedurally barred. 28 U.S.C. § 2254(b)-(c); Graham v. Johnson, 94 F.3d 958, 970 (5th

Cir. 1996) (district court may notice sua sponte lack of exhaustion). Applicants seeking habeas

corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal

collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The

exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly

presented to the highest court of the state. O’Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999);

Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). This requires that the

highest state court be given a fair opportunity to pass on the claim, which in turn requires that the

applicant present his claims before the state courts in a procedurally proper manner according to the

rules of the state courts. Depuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988). 

For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the

state. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Thus, a Texas prisoner may

satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims

to the Texas Court of Criminal Appeals in either a petition for discretionary review or a state habeas

corpus proceeding pursuant to article 11.07 of the Texas Code of Criminal Procedure in felony

 

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cases. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon 2005).

Gonzales did not file a petition for discretionary review, thus for purposes of exhaustion it

was necessary that he raise his claims in his state habeas application. A review of the habeas record,

however, reflects that he raised only his claim of improper jury argument raised under ground 3.

Gonzalez concedes that he raises the remaining claims for the first time in this federal petition.

(Petition at 8.). Because the state court was deprived a fair opportunity to consider the merits of

these claims, the claims are unexhausted for purposes of federal habeas review. See Martinez v.

Johnson, 255 F.3d 229, 238 (5th Cir. 2001); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir.

1998). Assuming the unexhausted claims could have been raised on collateral review, under the

Texas abuse-of-the-writ doctrine, Gonzales cannot now return to the state courts for purposes of

exhausting the unexhausted claims. The Texas abuse-of-the-writ doctrine prohibits a successive

state habeas petition, absent a showing of cause, if the applicant urges grounds that could have been,

but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n.1 (Tex.

Crim. App. 1994). This doctrine is an adequate state procedural bar for purposes of federal habeas

review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997); Nobles v. Johnson, 127 F.3d 409, 423

(5th Cir. 1997). 

Under these circumstances, federal habeas corpus relief is unavailable unless the petitioner

can show either (1) cause for the default and actual prejudice, or (2) that the federal court’s failure

to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually

innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501

U.S. 722, 750 (1991); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). The only reason given by

Gonzales for his failure to exhaust the claims in state court is that he “did not have the leisure of

 

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having the record at the time” he filed his state habeas application. (Petition at 8.) Assuming

Gonzalez’s assertion to be true, this fact, alone, is insufficient to excuse his default of the claims.

Difficulty obtaining records and lack of money to pay for copies are common problems among

inmates who are trying to pursue post-conviction habeas relief. See, e.g., Felder v. Johnson, 204

F.3d 168- 171-72 (5th Cir. 2000); Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). Gonzalez

provides no evidence of his efforts to obtain a copy of the state court records from his appellate

counsel or the state courts before filing his state habeas application. Furthermore, Gonzalez was

aware or should have been aware of the factual predicate of one or more of the unexhausted claims

to have pursued the claims in his state habeas application with or without a copy of the state court

records. Accordingly, grounds 1, 2, 3, except to the extent he raises a claim of improper jury

argument, and 4 are unexhausted and procedurally barred from federal habeas review.

F. DISCUSSION 

1. Legal Standard for Granting Habeas Corpus Relief

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

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

on the merits in state court proceedings unless 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 Supreme Court of the United States 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

 

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v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).

A state court decision will be an unreasonable application of clearly established federal law if it

correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams,

529 U.S. at 407-08.

The Act further requires that federal courts give great deference to a state court’s factual

findings. Hill, 210 F.3d at 485. 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 the

presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). When the

Texas Court of 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).

2. Jury Argument

Gonzalez claims the prosecutor engaged in improper jury argument by commenting on his

failure to testify during closing argument of the guilt/innocence phase. (Petition at 7; Pet’r Brief in

Support at 10-14.) The Fifth Amendment prohibits comment on a defendant’s silence. Griffin v.

California, 380 U.S. 609, 615 (1965). Prosecutors are thus prohibited from commenting directly

or indirectly on a defendant’s failure to testify in a criminal case. United States v. Montoya-Ortiz,

7 F.3d 1171, 1178 (5th Cir. 1993). A prosecutor’s remarks constitute impermissible comment on a

defendant’s right not to testify if the prosecutor’s manifest intent was to comment on the defendant’s

silence or if the character of the remark was such that the jury would naturally and necessarily

construe it as a comment on the defendant’s silence. United States v. Johnston, 127 F.3d 380, 396

(5th Cir. 1997). The prosecutor’s intent is not manifestly impermissible if there is some other,

 

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equally plausible explanation for the remark. Jackson v. Johnson, 194 F.3d 641, 652 (5th Cir. 1999).

The question then becomes not whether the jury might or probably would view the challenged

remark in this manner, but whether it necessarily would have done so. Id. Challenged comments

are evaluated in the context of the trial within which they are made. United States v. Robinson, 485

U.S. 25, 33 (1988); Cotton v. Cockrell, 343 F.3d 746, 751 (2003), cert. denied, 540 U.S. 1186

(2004).

Gonzalez complains of the following argument:

Now, the theory of the defense is that she lied about it. She made the whole

thing up. Her and Javier were in cahoots together. I would like for you to expect in

his argument to explain these bruises on her neck and this lip. If you are going to

make up my ex-boyfriend, the father of my children is a crazy guy attacking me, do

you really bust your lip that bad? Do you bust it in such a way that you have the

presence of your mind creating this fantasy that the sight on a gun coincidentally

makes the split lip mark?

Do you remember, Oh, but if I’m going to say he stuck a gun in my throat,

we’d better scratch the back of my throat, too? If you’re going to do all those

injuries, why in the heck are you going to choke yourself, too?

Make him explain that. If that’s the theory, make him explain why you don’t

just say, Oh, he slapped me. Oh, he’s got a gun, he’s threatening me, why you don’t

just do that.

And after he explains that, if he can, make him explain why an officer can

say, I would like to speak to Anthony. This is Anthony. (3Rep. R. at 71-72.)

Gonzalez argues, as he did in state court, that the prosecutor’s “make him explain” argument

constituted an improper remark on his failure to testify. After reviewing the prosecutor’s comments

in context, the state appellate court held that “the State’s remark was made in response to

[Gonzalez’s] counsel’s argument and was not phrased such that the jury would necessarily and

naturally have taken the remark as a comment on [Gonzalez’s] failure to testify.” The Texas Court

of Criminal Appeals also considered and rejected this claim in Gonzalez’s state habeas proceeding.

Under Texas law, responding to opposing counsel’s argument is a permissible area of jury argument.

 

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See Canales v. Texas, 98 S.W.3d 690, 695 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003).

The state courts’ determination appears correct, and Gonzalez provides no adequate reason to

question the state court’s conclusion on this issue. 

II. RECOMMENDATION

Gonzalez’s petition for writ of habeas corpus should be denied.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until November 25, 2005. The United States District Judge need only make

a de novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 25, 2005,

 

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to serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED November 4, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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