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Pete Sanchez v. Rick Thaler, Director , 366 F. App'x 494 ( 2010 )


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  •      Case: 07-10812     Document: 00511027545          Page: 1    Date Filed: 02/12/2010
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    February 12, 2010
    No. 07-10812                    Charles R. Fulbruge III
    Clerk
    PETE S SANCHEZ, JR,
    Petitioner–Appellant
    v.
    RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
    JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
    Respondent–Appellee
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:06-CV-1547
    Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
    PER CURIAM:*
    Petitioner–Appellant Pete S. Sanchez, Jr., convicted of sexual assault and
    robbery in Texas state court and sentenced to forty-five years’ imprisonment,
    appeals the district court’s denial of his 28 U.S.C. § 2254 petition for habeas
    corpus as both time-barred and unmeritorious. Following the district court’s
    denial of Sanchez’s motion for a Certificate of Appealability (“COA”), we granted
    a COA on two issues: (1) whether Sanchez’s filing of a post-conviction motion for
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 07-10812    Document: 00511027545           Page: 2     Date Filed: 02/12/2010
    No. 07-10812
    DNA testing under Texas Code of Criminal Procedure article 64.01 tolled the
    limitations period and rendered his petition timely under 28 U.S.C. § 2244(d)(1),
    and (2) whether Sanchez’s trial counsel rendered ineffective assistance by failing
    to seek a continuance to obtain further DNA testing. For the following reasons,
    we affirm the district court’s denial of Sanchez’s petition.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    Because of the winding path of this appeal, we detail the evidence leading
    to Sanchez’s conviction and the post-conviction timeline of events.
    A.      Factual Background
    At approximately 4:00 a.m. on June 1, 1996, Margarita Sanchez
    (“Margarita”)1 and her boyfriend, Geraldo Veloz were sitting in Veloz’s pickup
    truck outside Margarita’s apartment when four men attacked them. According
    to Veloz and Margarita, two of the attackers held Veloz down against the truck’s
    floorboard while two others undressed and raped Margarita. The attackers also
    stole Veloz’s wallet, keys, stereo, and speakers. Veloz testified that he never saw
    anyone have sex with Margarita and that he could not identify Sanchez as one
    of his and Margarita’s attackers. Margarita testified that Sanchez and another
    man raped her.        She could not remember if either of the men ejaculated.
    Margarita was the only person to identify Sanchez at any point during the trial.
    To corroborate Margarita’s assertion that she had been raped, the State
    called Dr. Carolyn Miller, who conducted a rape examination on Margarita after
    the attack. Margarita told Dr. Miller that she had sex with Veloz approximately
    twenty-four     hours     prior   to    the       attack.        Nonetheless,    the   rape
    examination—which included a vaginal swab and vaginal smear—revealed
    lacerations consistent with someone having sex against her will.
    1
    To avoid confusion, we refer to Margarita Sanchez, who is unrelated to Petitioner-
    Appellant Pete S. Sanchez, Jr., by first name.
    2
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    The State also called Joani Whitmore, a DNA expert.             On direct
    examination, Whitmore testified that there was “definitely more than one” male
    donor who “left a [seminal] discharge within” Margarita. She further testified
    that she had been given a sample of Sanchez’s blood, but could not say whether
    he was one of the men who had sex with Margarita.
    Sanchez’s trial counsel indicated that he had not seen Whitmore’s report
    and initially requested a continuance. In response, the trial judge adjourned the
    trial for lunch and informed Sanchez’s counsel that if he needed additional time,
    the court would take up the matter after the recess. During the approximately
    two-and-one-half hour recess, Sanchez’s counsel spoke with Whitmore,
    “discussed [with Sanchez] the options of what could be done or not done,” and,
    with Sanchez’s blessing, elected to proceed with the trial.
    Whitmore then testified that she could neither identify nor exclude
    Sanchez as a seminal donor based on the tests performed. She explained that
    if only one person had sexual intercourse with Margarita, then one type of DNA
    testing may have excluded Sanchez. She further agreed with Sanchez’s counsel
    that if she had been given a blood sample from the person who had consensual
    sex with Margarita, then she could have “possibly . . . exclude[d] Pete Sanchez
    depending on what the results of that c[a]me up.” Questioning revealed that
    Whitmore had twice requested a sample, but did not receive one. Sanchez’s
    lawyer did not request a continuance to procure any further DNA testing.
    The jury found Sanchez guilty of sexual assault and robbery, and the court
    sentenced him to forty-five years’ imprisonment. The court denied Sanchez’s
    motion for a new trial.
    B.      Procedural History
    The Texas intermediate appellate court affirmed Sanchez’s conviction, see
    Sanchez v. State, Nos. 11-97-00145-CR, 11-97-00146-CR, 
    1999 WL 33743896
    (Tex. App.—Eastland, Feb. 18, 1999, pet. denied) and, on September 29, 1999,
    3
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    No. 07-10812
    the Texas Court of Criminal Appeals (“TCCA”) refused his petition for
    discretionary review.
    On June 8, 2000, Sanchez filed a petition for habeas corpus with the state
    court, claiming ineffective assistance of counsel.       The TCCA denied the
    application without written order on October 17, 2001. On December 21, 2001,
    Sanchez filed a state court post-conviction motion for DNA testing. See T EX.
    C ODE C RIM. P ROC. art. 64.01. The trial court ordered testing, but ultimately
    found the results inconclusive and therefore not favorable to Sanchez. Sanchez
    v. State, No. 05-05-00400-CR, 
    2006 WL 620254
    , at *1 (Tex. App.—Dallas, Mar.
    14, 2006, pet. denied). The intermediate appellate court affirmed the trial
    court’s denial of relief. 
    Id. at *4.
    The TCCA refused discretionary review of this
    decision on July 26, 2006.
    On August 25, 2006, Sanchez filed his § 2254 petition for habeas corpus,
    claiming that his counsel was ineffective for failing to seek a continuance to
    obtain further DNA testing, which ultimately revealed that he had not
    contributed any biological material to the vaginal swab taken from Margarita
    during her rape examination. In response, the State argued that Sanchez’s
    petition was time-barred. The district court agreed with the State, adopting a
    magistrate’s recommendation to deny Sanchez’s petition both as time-barred and
    for failure to demonstrate a reasonable probability that he was prejudiced by his
    trial counsel’s decision not to request a continuance to obtain further DNA
    testing. Sanchez timely appealed, and we granted a COA on the two issues
    currently before us.
    II. JURISDICTION AND STANDARD OF REVIEW
    We have jurisdiction under 28 U.S.C. § 2253(a) and (c)(1)(A) because the
    district court issued a final order denying Sanchez habeas relief and we granted
    COA. See Richardson v. Quarterman, 
    537 F.3d 466
    , 472 (5th Cir. 2008).
    4
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    Because Sanchez filed his habeas petition after April 24, 1996, the
    Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
    104-132, 110 Stat. 1214, governs our review. AEDPA mandates that federal
    courts give great deference, subject to limited exceptions, to the state courts’
    resolution of a petitioner’s claims. See Foster v. Quarterman, 
    466 F.3d 359
    , 365
    (5th Cir. 2006). This “deference is mandated both for questions of law and for
    mixed questions of law and fact.” 
    Id. Under AEDPA,
    we may not grant habeas relief to a defendant in state
    custody unless the state court’s adjudication of the claim:
    (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); Riddle v. Cockrell, 
    288 F.3d 713
    , 716 (5th Cir. 2002).
    “Under § 2254(d)(1), 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] on a question of law’ or ‘confronts facts that are materially
    indistinguishable from a relevant Supreme Court precedent and arrives at a
    result opposite to [that precedent].’” Reed v. Quarterman, 
    555 F.3d 364
    , 367 (5th
    Cir. 2009) (quoting Williams v. Taylor, 
    529 U.S. 362
    , 405 (2000)) (alterations in
    original). “A decision involves an unreasonable application of Supreme Court
    precedent if it ‘unreasonably extends a legal principle from [Supreme Court
    precedent] to a new context where it should not apply or unreasonably refuses
    to extend that principle to a new context where it should apply.’” 
    Id. at 367–68
    (quoting 
    Williams, 529 U.S. at 407
    ) (alterations in original).      We afford a
    presumption of correctness to the state court’s factual findings unless Sanchez
    meets his “‘burden of rebutting [that] presumption . . . by clear and convincing
    5
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    evidence.’” 
    Foster, 466 F.3d at 365
    (quoting 28 U.S.C. § 2254(e)(1)) (alteration
    and omission in original).
    “On habeas review, we review the district court’s findings of fact for clear
    error and its legal conclusions de novo.” Mallard v. Cain, 
    515 F.3d 379
    , 381 (5th
    Cir. 2008).
    III. ANALYSIS
    A.      Timeliness
    Sanchez first argues that the district court erred in determining that he
    untimely filed his § 2254 petition. “AEDPA establishes a one-year statute of
    limitations for seeking federal habeas corpus relief from a state-court judgment.”
    Johnson v. Quarterman, 
    483 F.3d 278
    , 285 (5th Cir. 2007); see 28 U.S.C.
    § 2244(d). Generally, this period runs from “the date on which the judgment
    became final by the conclusion of direct review or the expiration of the time for
    seeking such review.”        28 U.S.C. § 2244(d)(1)(A).      However, we toll the
    limitations period during the pendency of a “properly filed application for State
    post-conviction or other collateral review.” 
    Id. § 2244(d)(2).
            On appeal, Sanchez contends that under our recent decision in Hutson v.
    Quarterman, 
    508 F.3d 236
    (5th Cir. 2007) (per curiam), issued after the district
    court denied his petition, his post-conviction motion for DNA testing tolled the
    limitations period so as to render his petition timely. In Hutson, we held that
    “a motion to test DNA evidence under Texas Code of Criminal Procedure article
    64 constitutes ‘other collateral review’ and thus tolls AEDPA’s one-year
    limitations period under 28 U.S.C. § 2244(d)(1).” 
    Id. at 240.
    The State concedes
    that under Hutson, Sanchez timely filed his petition.
    Because Sanchez did not seek a writ of certiorari from the United States
    Supreme Court, his conviction became final—and the limitations period began
    to run—on December 28, 1999, the expiration of the ninety-day period in which
    to file a petition for certiorari. See 28 U.S.C. § 2244(d)(1)(A); Roberts v. Cockrell,
    6
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    319 F.3d 690
    , 694 (5th Cir. 2003).       One hundred sixty-three days elapsed
    between this date and June 8, 2000, when Sanchez filed his state habeas
    petition. The limitations period tolled at that time and resumed upon the
    TCCA’s denial of Sanchez’s petition on October 17, 2001. Sixty-five days later,
    on December 21, 2001, Sanchez returned to the state trial court and filed a
    motion for post-conviction DNA testing, which again tolled the limitations
    period. The trial court denied this motion and the TCCA refused Sanchez’s
    petition for review of the trial court’s denial of relief on the basis of the DNA
    tests on July 26, 2006, and Sanchez filed his § 2254 petition thirty days later on
    August 25, 2006. Therefore, Sanchez used approximately 258 days of his one-
    year federal limitations period. He thus timely filed his federal habeas petition.
    B.      Merits
    Sanchez also appeals the district court’s denial of his habeas petition on
    the merits, contending that the district court erred by concluding that Sanchez
    suffered no prejudice when his trial counsel decided not to seek a continuance
    to obtain further DNA testing of the evidence from Margarita’s rape examination
    after receiving Whitmore’s report. Specifically, Sanchez argues that, given the
    evidence produced at trial, had the jury known that the results of the post-
    conviction DNA testing excluded Sanchez as a possible contributor of biological
    material found in Margarita, there is a reasonable probability that the jury
    would have returned a “not guilty” verdict.
    As discussed below, the post-conviction DNA evidence was not properly
    before the district court. However, the district court was correct in its ultimate
    finding that the state court denial of Sanchez’s habeas petition was not
    unreasonable.
    7
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    1.    The District Court’s Review of Sanchez’s Post-Conviction DNA
    Evidence
    After the TCCA denied Sanchez’s state habeas petition, but before he filed
    his federal habeas claim, Sanchez filed for and received the results of a post-
    conviction DNA test. As the TCCA explained, the DNA testing “established that
    the DNA profile from the sperm fraction of the vaginal swab was consistent with
    Veloz’s DNA profile,” “the epithelial cell fraction was also consistent with a
    mixture from [Margarita] and Veloz,” and “[t]herefore, [Sanchez] did not
    contribute any biological material to the vaginal swab taken during
    [Margarita]’s rape examination.” Sanchez, 
    2006 WL 620254
    , at *3. The state
    court, however, concluded that Sanchez was not entitled to relief based on these
    results because Margarita testified that she could not recall if either Sanchez or
    the other alleged rapist ejaculated. 
    Id. In his
    original state habeas petition, Sanchez claimed ineffective
    assistance of counsel. Sanchez renewed this claim in his federal habeas claim,
    grounding his claim, in part, on the post-conviction evidence and adding a claim
    of actual innocence. The State challenged the actual innocence claim as an
    unexhausted under 28 U.S.C. § 2254(b) and (c). The State also challenged the
    post-conviction evidence under § 2254(d) and (e) for Sanchez’s failure to present
    the DNA evidence to the state court in support of his ineffective assistance of
    counsel claim.
    The district court denied Sanchez’s petition as untimely, but alternatively
    reached the merits of Sanchez’s arguments and found that Sanchez could not
    adequately demonstrate prejudice under Strickland v. Washington, 
    466 U.S. 668
    (1984). The district court appeared to incorporate the post-conviction DNA
    evidence into its merits determination.
    We have wrestled with the deference due to state court determinations
    under § 2254(d)(2). See Guidry v. Dretke, 
    397 F.3d 306
    (5th Cir. 2005), reh’g and
    8
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    reh’g en banc denied by 
    429 F.3d 154
    (5th Cir. 2005). The procedural history and
    facts of Guidry are distinguishable from the instant case, but the overarching
    concern is similar: under what circumstances and through what procedure may
    a federal district court consider evidence that falls within the strictures of
    §§ 2254(d) and (e)? The original Guidry panel found that the facts of Guidry
    precluded an application of § 2254(d)(2) because the State failed to challenge the
    petitioner’s claim on those grounds and the district court did not abuse its
    discretion when it held an evidentiary hearing. See 
    Guidry, 397 F.3d at 321
    –22,
    24. The dissent from the denial of rehearing en banc focused on the requirement
    in § 2254(d)(2) that evidence must be presented to the state court before it may
    be considered by the district court in later proceedings. 
    Guidry, 429 F.3d at 163
    (Jones, J., dissenting).
    We do not revisit the issue left open by Guidry; namely, whether
    § 2254(d)(2) is jurisdictional and thus cannot be waived.          Here, the State
    challenged the evidence Sanchez presented from the post-conviction DNA testing
    and the district court did not exercise its discretion to order an evidentiary
    hearing. To the extent that the district court considered the post-conviction
    evidence, it did not commit reversible error. However, we agree with the district
    court that post-conviction evidence or no, the state court was not unreasonable
    when it found that Sanchez is unable to meet the Strickland standard for
    ineffective assistance.
    2.     Ineffective Assistance of Counsel Claim
    “The Sixth Amendment guarantees defendants the ‘right to effective
    assistance of counsel at every critical stage of the proceedings against them.’”
    United States v. Fields, 
    565 F.3d 290
    , 293–94 (5th Cir. 2009) (quoting Burdine
    v. Johnson, 
    262 F.3d 336
    , 344 (5th Cir. 2001)). “This right ‘is denied when a
    defense    attorney’s    performance   falls   below   an   objective   standard     of
    reasonableness and thereby prejudices the defense.’” 
    Id. at 294
    (quoting
    9
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    No. 07-10812
    Yarborough v. Gentry, 
    540 U.S. 1
    , 5 (2003)). We evaluate claims of ineffective
    assistance of counsel under the two-prong test established in Strickland. Wright
    v. Quarterman, 
    470 F.3d 581
    , 589 (5th Cir. 2006).
    To prevail on an ineffective assistance of counsel claim under Strickland,
    a petitioner must show that his “counsel’s performance was deficient” and that
    “the deficient performance prejudiced the defense.” 
    Strickland, 466 U.S. at 687
    .
    Failure to establish either prong defeats the claim. See 
    id. To demonstrate
    that
    his counsel was deficient, Sanchez “must show that counsel’s representation fell
    below an objective standard of reasonableness” and must overcome “a strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance; that is, the defendant must overcome the presumption
    that, under the circumstances, the challenged action might be considered sound
    trial strategy.” 
    Id. at 688–89
    (internal quotation marks omitted). To establish
    prejudice, a petitioner “must show that there is a reasonable probability that,
    but for counsel’s unprofessional errors, the result of the proceeding would have
    been different.” 
    Strickland, 466 U.S. at 694
    . “A reasonable probability is a
    probability sufficient to undermine confidence in the outcome.” 
    Id. Here, the
    district court determined that Sanchez failed to show prejudice
    resulting from his trial counsel’s decision not to seek a continuance and thus to
    forego further DNA testing. Accordingly, the district court affirmed the state
    court’s denial of habeas relief. The district court noted that Margarita identified
    Sanchez as her rapist and could not remember if either of her attackers
    ejaculated and thus it was irrelevant whether Sanchez’s DNA was found in
    Margarita.
    Sanchez’s sexual assault conviction ultimately rests on Margarita’s
    identification. The defense repeatedly attacked Margarita’s credibility at trial
    and the jury heard that she was on probation for a felony offense at the time of
    the alleged assault and spent the night prior to testifying in jail. Moreover,
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    defense counsel identified numerous instances in which she contradicted herself
    about key details regarding her assault.     The jury heard both Margarita’s
    testimony and the challenges to her credibility and was within its bounds to
    credit Margarita’s testimony identifying Sanchez.
    We cannot say that the state court was unreasonable when it denied
    Sanchez’s claim. Because Margarita testified that she could not recall if her
    attackers ejaculated, the results of further DNA evidence would not necessarily
    have been conclusive, and Sanchez cannot therefore demonstrate prejudice for
    his counsel’s failure to request a continuance.
    IV. CONCLUSION
    For the reasons stated, we affirm the district court’s denial of Sanchez’s
    petition for habeas corpus.
    AFFIRM.
    11