IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EPIGMENIO VEGA, JR. §

§

Petitioner, §

§

VS. § 

§ NO. 3-05-CV-1943-G 

DOUGLAS DRETKE, Director § 

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Epigmenio Vega, Jr., appearing pro se, has filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.

I.

Petitioner was charged by indictment with first-degree murder, enhanced by a prior

conviction for unauthorized use of a motor vehicle, to which he pled not guilty. A jury convicted

petitioner of the lesser-included offense of manslaughter, found the enhancement paragraph true,

and sentenced him to 38 years confinement. His conviction and sentence were affirmed on direct

appeal. Vega v. State, No. 08-01-00034-CR, 2003 WL 21357544 (Tex. App.--El Paso, Jun. 12,

2003, pet. ref'd). Petitioner also filed an application for state post-conviction relief. The application

was denied without written order. Ex parte Vega, No. 61,561-01 (Tex. Crim. App. Jul. 13, 2005).

Petitioner then filed this action in federal court.

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 1 of 12 PageID 227
II.

In two grounds for relief, petitioner contends that: (1) he received ineffective assistance of

counsel; and (2) the evidence was factually insufficient to support his conviction.

A.

The standard of review in federal habeas cases is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"). See Pub.L. 104-132, 110 Stat. 1214 (1996).

Where, as here, a state court has already rejected the claims raised by petitioner, a federal court may

grant habeas relief only if the state court adjudication:

(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. 

28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "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] Court has on a set of materially

indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 1523, 146 L.Ed.2d

389 (2000). An unreasonable application of clearly established federal law is one in which "the state

court identifies the correct governing legal principle from [the] Court's decisions but unreasonably

applies that principle to the facts of the prisoner's case." Id., 120 S.Ct. at 1523; see also Pondexter

v. Dretke, 346 F.3d 142, 145-46 (5th Cir. 2003), cert. denied, 124 S.Ct. 2160 (2004). Stated

differently, "a federal court may grant relief when a state court has misapplied a 'governing legal

principle' to 'a set of facts different from those of the case in which the principle was announced.'"

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 2 of 12 PageID 228
1

 In his answer, respondent argues that two of these claims are barred from federal review because the state

habeas court found that "[i]ssues raised and rejected on direct appeal are procedurally barred." (See Resp. Ans. at 9-10;

St. Hab. Tr. at 160). Respondent either misstates or misunderstands the procedural bar doctrine. A federal court may

not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley,

505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Here, the state court of appeals rejected two of

petitioner's ineffective assistance of counsel claims because he failed to "rebut[ ] the strong presumption that trial

counsel's conduct falls within the wider range of reasonable professional assistance." Vega, 2003 WL 21357544 at *3,

citing Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999). This language suggests that the state court rejected

petitioner's claims because he failed to meet his burden of proof, not on procedural grounds. Such a determination does

not bar federal habeas review.

Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003), quoting

Lockyer v. Andrade, 538 U.S. 63, 76, 123 S.Ct. 1166, 1175, 155 L.Ed.2d 144 (2003). 

With respect to mixed questions of fact and law, a federal habeas court must give deference

to state court findings unless they are "based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding." Chambers v. Johnson, 218 F.3d 360, 363

(5th Cir.), cert. denied, 121 S.Ct. 508 (2000). The resolution of factual issues by the state court is

presumptively correct and will not be disturbed unless the petitioner rebuts the presumption by clear

and convincing evidence. See 28 U.S.C. § 2254(e)(1).

B.

Petitioner alleges that the performance of his trial counsel was constitutionally deficient in

numerous respects. In particular, petitioner complains that his attorney: (1) never filed a motion

requiring the state to provide notice of its intent to use evidence of a prior conviction; (2) failed to

request a jury instruction limiting the consideration of such evidence; (3) did not object when the

prosecutor presented evidence of the prior conviction; (4) failed to challenge a prospective juror who

could not consider imposing the statutory minimum punishment; (5) elicited damaging testimony

from two witnesses on cross-examination; (6) failed to prepare petitioner for his testimony; and (7)

did not object to the prosecutor's improper closing argument.1

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 3 of 12 PageID 229
1.

The Sixth Amendment to the United States Constitution guarantees a defendant reasonably

effective assistance of counsel at all critical stages of a criminal proceeding. See Cuyler v. Sullivan,

446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). To prevail on an ineffective

assistance of counsel claim, a habeas petitioner must satisfy the two-prong test established in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the petitioner

must demonstrate that the performance of his attorney fell below an objective standard of

reasonableness. Id., 104 S.Ct. at 2064. The Fifth Circuit has described that standard as "requiring

that counsel research relevant facts and law, or make an informed decision that certain avenues will

not be fruitful." United States v. Herrera, 412 F.3d 577, 580 (5th Cir. 2005), quoting United States

v. Conley, 349 F.3d 837, 841 (5th Cir. 2003). "A conscious and informed decision on trial tactics

and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so

ill chosen that it permeates the entire trial with obvious unfairness." Green v. Johnson, 116 F.3d

1115, 1122 (5th Cir. 1997). Second, the petitioner must prove that he was prejudiced by his

attorney's substandard performance. Strickland, 104 S.Ct. at 2067. Prejudice results when "there

is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different." Id. at 2068; see also Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct.

838, 844, 122 L.Ed.2d 180 (1993) (habeas petitioner must show that trial result was unreliable or

proceeding fundamentally unfair due to deficient performance of counsel). 

2.

The first three instances of ineffective assistance of counsel cited by petitioner are either

conclusively negated by the record or patently frivolous. Prior to trial, defense counsel filed a

motion requiring the state to provide reasonable notice of its intent "to introduce in its case in chief

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 4 of 12 PageID 230
2

 Tex. R. Evid. 609(f), which is cited by petitioner in his brief, provides:

Evidence of a conviction is not admissible if after timely written request by the

adverse party specifying the witness or witnesses, the proponent fails to give to the

adverse party sufficient advance written notice of intent to use such evidence to

provide the adverse party with a fair opportunity to contest the use of such

evidence.

TEX. R. EVID. 609(f).

any evidence of other alleged or purported crimes, wrongs or acts of the Defendant[.]" (St. App. Tr.

at 23).2 In a sworn affidavit filed with the state habeas court, Noel Portnoy, counsel for petitioner,

testified that the prosecutor provided notice of his intent to present enhancement evidence, and

Portnoy examined that evidence before trial. (St. Hab. Tr. at 157, ¶ 7). Moreover, the indictment

itself was sufficient notice of the state's intent to use petitioner's prior conviction for unauthorized

use of a motor vehicle for enhancement purposes. See Brooks v. State, 957 S.W.2d 30, 33-34 (Tex.

Crim. App. 1997) (noting that it is "permissible and perhaps preferable" to provide notice of prior

convictions used as enhancements by alleging such convictions in the indictment). Because defense

counsel requested and received notice of the state's intent to introduce evidence of a prior conviction,

his performance was not deficient in that regard.

Nor was counsel ineffective for failing to request a limiting instruction. Although the record

is silent as to whether counsel asked for an instruction limiting the jury's consideration of prior

convictions or offenses, the charge given by the court contains such an instruction:

You are instructed in this case that certain evidence was admitted

before you in regard to the defendant having committed other

offenses other than the one for which he is now on trial. You are

instructed that such evidence cannot be considered against the

defendant as any evidence of his guilt in this cause.

(St. App. Tr. at 63) (emphasis added). These claims are without merit and should be summarily

rejected.

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 5 of 12 PageID 231
3

 At least nine other members of the venire panel expressed some reservations about imposing a five-year

sentence. (See SF-III at 43-57). Of those venire members, none were struck by the state and only one was struck by the

defense. (See St. App. Tr. at 92-93). It is not clear from the record which, if any, of the other venire members served

on the jury.

3.

Petitioner also criticizes his lawyer for failing to challenge a prospective juror who said she

could not impose the statutory minimum punishment in this case. During voir dire, the prosecutor

informed the venire panel that the range of punishment for murder was not less than five years nor

more than 99 years or life in prison. (SF-III at 43). Counsel then asked the panel if they could keep

an open mind and assess a proper punishment based on the facts. Several members indicated they

might have a problem with a five-year sentence in a murder case. (See id. at 44-47, 50-57). Among

those was a woman named Reagler. When asked if it would be impossible for her to consider a fiveyear sentence regardless of the evidence, Reagler replied, "I couldn't--". (Id at 55). Defense

counsel did not strike Reagler and she was one of 12 jurors selected to hear the case.3

In an affidavit filed with the state habeas court, counsel explained that he did not strike

Reagler, who is African-American, because "minorities on juries . . . tend to exercise independent

judgment in the sense that they do not 'rubberstamp' the opinions of the persons representing the

state." (St. Hab. Tr. at 156). While the court questions the accuracy and propriety of such racial

stereotypes, petitioner has not shown that the explanation offered by his attorney is so lacking that

it amounts to ineffective assistance of counsel. See Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir.

1989), cert. denied, 110 S.Ct. 1311 (1990) (observing that the selection of a jury "is inevitably a call

upon experience and intuition" requiring defense counsel to "draw upon his own insights and

empathetic abilities"). This ground for relief should be overruled. 

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 6 of 12 PageID 232
4.

Next, petitioner contends that his attorney was ineffective for eliciting damaging testimony

from two witnesses on cross-examination. At trial, Mary Buchanan, the mother of petitioner's

children, testified that petitioner and Jose Cruz Ayala, the murder victim, attended a party at her

home and drank until the early hours of the morning. (SF-IV at 20-21). The next day, Buchanan

learned that Ayala had been stabbed and killed. (Id. at 24). On cross-examination, defense counsel

asked Buchanan:

Q. [BY DEFENSE COUNSEL]: Prior--prior to December 12th or

December 11th had--had Mr. Vega ever caused you trouble in your

home? Had he ever caused any fights?

A. Yes, at one time my daughter--

Q. When--

A. --was--my daughter was--he wasn't her boyfriend. They were

friends. They had gone out. And [petitioner] came home that night

and seen my daughter there sitting down with somebody by--they

called--his name is James. They call him Jimbo, and [petitioner] beat

him up in my house.

Q. And when was this?

A. That was, I would say, about a year and a half ago. Maybe

two years.

Q. Did he use any weapons?

A. I didn't see any.

Q. Had there been fights between [petitioner] and Jose Ayala

before December 11th?

A. Fights? I can remember arguments and disagreements, but I--

I don't remember any fights.

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 7 of 12 PageID 233
(Id. at 29-30). Dan Lusty, a Dallas police officer, also testified at trial. Lusty said that petitioner

gave a voluntary statement following his arrest for the murder of Jose Ayala. That statement, in

which petitioner admitted to accidentally stabbing Ayala following a shoving match, was admitted

into evidence and read to the jury. (Id. at 104-09; St. Exh. 29). In response to questions from

defense counsel, Lusty testified that petitioner was cooperative with the police, did not ask for a

lawyer, and voluntarily gave the statement. (See SF-IV at 110-11). On re-direct, Lusty said that

petitioner was not cooperative at first and initially refused to provide any information about the

location of the victim. (Id. at 112-14).

Petitioner now complains that the cross-examination of Buchanan and Lusty was poor trial

strategy and prejudicial to his case. The court disagrees. Petitioner never denied stabbing Ayala.

As a result, counsel focused his efforts on trying to convince the jury that petitioner acted in selfdefense. Part of this strategy was to show that petitioner had no malice or history of violent behavior

toward Ayala. In asking Buchanan whether petitioner had ever caused trouble in her home, counsel

was obviously unaware of the altercation between petitioner and his daughter's boyfriend.

Nevertheless, counsel was able to establish that the altercation occurred nearly two years before the

instant offense and that no weapons were used. Buchanan further acknowledged that there were no

fights between petitioner and Ayala before the stabbing, only "arguments and disagreements." By

distinguishing the facts surrounding petitioner's violent behavior toward his daughter's boyfriend

from the stabbing of Ayala, counsel effectively minimized any prejudice caused by his crossexamination of Buchanan.

The same is true for counsel's cross-examination of Lusty. Petitioner's written confession

was already in evidence and the voluntariness of that confession was never at issue. Therefore, it

is difficult to envision how petitioner was harmed by testimony that he was cooperative. Nor was

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 8 of 12 PageID 234
4

 In his written confession, petitioner stated that he pulled out a knife to protect himself after Ayala became

angry and charged him. While the knife was pointed at Ayala, petitioner felt it "stick him in the front of his body." (St.

Exh. 29). However, the medical evidence shows that Ayala died from two deep stab wounds, both of which went

through a rib and into his lung. According to the medical examiner, the force required to cause those injuries would be

greater than a wound to the skin and the muscle. (See SF-IV at 120-22).

defense counsel ineffective for "opening the door" to evidence that petitioner initially provided the

police with false information. As counsel explained to the state habeas court:

[I]t was determined prior to trial, with Mr. Vega's agreement, that he

almost certainly would testify, thereby opening up . . . any

inconsistent statements he may have made to the police, which Mr.

Vega understood. One of the purposes of his testimony was, in part,

to explain the inconsistencies between his written statement to the

police and the wounds received by the deceased according to the

autopsy.

(St. Hab. Tr. at 157).4 Petitioner fails to allege, much less prove, that he was unaware of the

consequences of testifying at trial. Consequently, petitioner cannot show that counsel was

ineffective in his cross-examination of Lusty.

5.

Petitioner further alleges that he was not adequately prepared for questions about his criminal

record. By testifying at trial, the state was permitted to impeach petitioner with evidence of prior

felony convictions or crimes of moral turpitude. See TEX. R. EVID. 609(a). According to defense

counsel, this was well-known to petitioner before he took the witness stand. (See St. Hab. Tr. at

157). The state habeas court considered this claim and found that the statements made by counsel

in his affidavit "are worthy of belief." (Id. at 160). Petitioner has failed to rebut that credibility

determination by clear and convincing evidence. See Pemberton v. Collins, 991 F.2d 1218, 1225

(5th Cir.), cert. denied, 114 S.Ct. 637 (1993), citing Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct.

1303, 1307, 71 L.Ed.2d 480 (1982) (habeas statute obliges federal judges to respect credibility

determinations made by the trier of fact).

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 9 of 12 PageID 235
6.

In a related claim, petitioner criticizes his attorney for failing to object when the prosecutor

argued:

What do you know about this individual here [pointing to petitioner]?

You judge his credibility. Well, you know he's a convicted felon back

in 1994, unauthorized use of a motor vehicle. He's been in the

penitentiary systems here in Texas. You know that.

* * * *

If they--if they wanted to prove that you, if they want to put Mr.

Ayala on trial, which is what they're trying to do, they could have

done that I think. But the source of that information is from the

defendant and the defendant only. And when you talk about the

defendant, you go back to what [the other prosecutor] said and you

use your common sense, you have a convicted felon. You have a

self-admitted repeated liar. And now he's asking you to believe him

under oath.

(SF-V at 10, 31) (emphasis added). Under Texas law, a prosecutor may summarize the evidence

presented at trial and ask the jury make reasonable deductions from the evidence. See Cobble v.

State, 871 S.W.2d 192, 204 (Tex. Crim. App. 1993), cert. denied, 115 S.Ct. 101 (1994). That is

precisely what occurred here. As previously discussed, the state was permitted to impeach

petitioner's testimony with evidence of his prior felony conviction for unauthorized use of a motor

vehicle. Counsel had no basis for objecting when the prosecutor asked the jury to judge petitioner's

credibility in light of his prior conviction. This ground for relief is without merit and should be

overruled.

C.

Petitioner also contends that the evidence was factually insufficient to support his conviction

for manslaughter and the implicit rejection of his self-defense claim. Under Texas law, intermediate

appellate courts have the authority to review fact questions in criminal cases. Clewis v. State, 922

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 10 of 12 PageID 236
S.W.2d 126, 129 (Tex. Crim. App. 1996). This "factual sufficiency" review of the evidence is

broader than a "legal sufficiency" challenge under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

61 L.Ed.2d 560 (1979). Instead of viewing the evidence in the light most favorable to the

prosecution and determining whether "any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt," a factual sufficiency inquiry views all the

evidence to determine whether the verdict "is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust." Pruitt v. Cockrell, No. 3-00-CV-1713-H, 2001 WL

1115339 at *13 (N.D. Tex. Sept. 14, 2001), quoting Clewis, 922 S.W.2d at 129, and Stone v. State,

823 S.W.2d 375, 381 (Tex. App. -- Austin 1992, pet. ref'd, untimely filed). The power of state

appellate courts to review the factual sufficiency of the evidence derives from Texas statutory and

constitutional authority. Id., 2001 WL 1115339 at *14, citing Clewis, 922 S.W.2d at 129-30, and

Bigby v. State, 892 S.W.2d 864, 874-75 (Tex. Crim. App. 1994), cert. denied, 115 S.Ct. 2617 (1995).

There is no corresponding right of review under the United States Constitution. Id. Consequently,

a claim based on factually insufficient evidence does not implicate a federal constitutional right and

is not cognizable under 28 U.S.C. § 2254. See id. 

Here, petitioner claims that the evidence was factually insufficient to support his conviction.

He does not challenge the legal sufficiency of the evidence under Jackson. Nor was such a claim

made on direct appeal. Therefore, petitioner is not entitled to federal habeas relief on this ground.

RECOMMENDATION

Petitioner's application for writ of habeas corpus should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 11 of 12 PageID 237
written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: January 30, 2006. 

 

 

 Case 3:05-cv-01943-G Document 9 Filed 01/30/06 Page 12 of 12 PageID 238