Perez v. Johnson ( 1997 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-20135
Summary Calendar
JUAN GARCIA PEREZ,
Petitioner-Appellant,
versus
GARY L. JOHNSON, Director,
Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Southern District of Texas
(CA H-95-3524)
October 14, 1997
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Juan Garcia Perez petitions for panel rehearing and rehearing
en banc. We affirmed the denial of Perez’s petition for habeas
relief under 28 U.S.C. § 2254. Treating the Suggestion for
Rehearing En Banc as a Petition for Panel Rehearing, the Petition
for Panel Rehearing is DENIED. No member of the panel nor Judge in
regular active service of the Court having requested that the Court
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
be polled on rehearing en banc (FRAP and Local Rule 35), the
Suggestion for Rehearing En Banc is DENIED.
Perez contends that there are sufficient issues of material
fact as to his trial counsel’s ineffectiveness to defeat the
state’s motion for summary judgment. He argues that evidence
developed in a 1993 evidentiary hearing before a different judge
and in a different proceeding presents a fact issue. Because, in
his response to the state’s summary judgment motion, Perez made no
effort to direct the district court’s attention to this purported
evidence, we will not permit him to rely on the record on appeal.
Accordingly, we deny his petition for rehearing.
In his pro se petition for habeas relief, Perez alleged, among
other things, that his trial counsel was ineffective in failing to
inform him that the crime with which he was charged qualified as a
felony, thereby subjecting him to possible sentence enhancement
under Texas’s habitual offender provisions. As a result, Perez
claims he rejected a plea offer that included a shorter prison
sentence than that eventually handed to him by the trial court.
The state moved for summary judgment, arguing that Perez’s
allegations were merely conclusory and thus did not warrant relief.
In his response to the motion for summary judgment, Perez made no
mention of the plea agreement or the record of the 1993 hearing,
stating only that “[p]etitioner has alleged facts which are
supported by official court records entitling him to relief.”
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Perez’s response to the state’s summary judgment motion was
inadequate. We recognize that Perez is a pro se litigant;
accordingly, we are under the duty to construe his pleadings
liberally. See, e.g., McCrae v. Hankins, 720 F.2d 863, 865 (5th
Cir. 1983) (stating that appellate court has duty to read
plaintiff’s pro se response to motion for summary judgment
liberally). Nevertheless, Perez’s pro se status does not relieve
him of the procedural obligations imposed on all other litigants.
See Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981). In
response to a summary judgment motion, a litigant, whether pro se
or represented, has the duty to present to the district court the
evidence that creates a genuine issue of material fact. See
Murrell v. Bennett, 615 F.2d 306, 309 (5th Cir. 1980). Perez’s
vague reference to “official court records” did no such thing.
We acknowledge that the record of the 1993 evidentiary hearing
was before the district court, as the court relied upon the state’s
citations to the hearing in granting summary judgment. But we do
not require courts to scour the record for factual issues that
might support a pro se litigant’s position; it is that litigant’s
obligation to direct the court’s attention to the relevant
evidence. See United States v. Wilkes, 20 F.3d 651, 653 (5th Cir.
1994) (pro se appellant must identify in his brief the specific
portions of the record that contain the facts or issues that
warrant appellate relief). Here, Perez’s only support for his
ineffectiveness claim was his own conclusory allegations; he made
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no effort to present any other specific evidence to the district
court.
We DENY the petition for rehearing.
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