Opinion
2:97-CV-0435
February 20, 2001
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner JORGE PALACIOS has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging his conviction for the felony offense of criminal mischief out of the 22nd Judicial District Court of Deaf Smith County, Texas. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that the Petition for Writ of Habeas Corpus be DENIED.
I. PROCEDURAL HISTORY
On September 23, 1994, in Cause No. CR-94I-122 styled The State of Texas v. Jorge Palacios, petitioner was charged by indictment with committing the felony offense of criminal mischief over $750 but less than $20,000, on or about April 24, 1994. On March 17, 1995, the indictment was amended to include two (2) felony enhancement paragraphs. On October 11, 1995, a jury found petitioner guilty of the primary offense charged in the indictment. The trial court then assessed petitioner's punishment at a term of seventeen (17) years confinement in the Texas Department of Criminal Justice, Institutional Division and on October 12, 1995, judgment was entered in accordance therewith.
Petitioner filed a direct appeal of his conviction with the Court of Appeals for the Seventh District of Texas, who affirmed the conviction on October 22, 1996. Palacios v. State, No. 07-95-0359-CR, slip op. (Tx.Ct.App. 7th Dist. 1996, pet. ref'd). On February 5, 1997, the Texas Court of Criminal Appeals refused petitioner's petition for discretionary review. Palacios v. State, PDR No. 1663-96 (Tex.Crim.App. 1997).
On July 24, 1997, petitioner filed an application for a state writ of habeas corpus challenging his conviction setting out four (4) points of error including a defective jury charge, ineffective assistance of counsel at trial and on appeal, and insufficiency of the evidence. On October 1, 1997, the Texas Court of Criminal Appeals denied the application without a written order. Ex parte Palacios, No. 35, 393-01 at cover.
On November 20, 1997, petitioner filed with this Court the instant federal application for habeas corpus relief.
II.
PETITIONER'S ALLEGATIONS
In his federal application for habeas relief, petitioner appears to assert he is being illegally confined in violation of the Constitution and laws of the United States of America for the following reasons:
1. The charge submitted to the jury at trial was fundamentally defective;
2. Petitioner was denied effective assistance of trial counsel because counsel failed to:
a) adequately prepare for trial;
b) obtain discovery specifically, the estimate of repairs for the charged property damage;
c) suppress the affidavit of Eugene Gerringer, an investigator
d) challenge the legality of petitioner's arrest;
e) file a motion to dismiss the indictment after the complaint and information were found to be invalid;
f) object to the improper reading of the indictment;
3. The evidence was insufficient to convict petitioner;
4. Petitioner was denied effective assistance of appellate counsel because counsel failed to:
a) object to the defective jury charge;
b) file and perfect a motion for new trial based upon newly discovered information;
c) contest the sufficiency of the evidence;
III. EXHAUSTION OF STATE COURT REMEDIES
Petitioner filed his federal application after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Consequently, the new provisions of the AEDPA apply to this case. As relevant here, the AEDPA provides:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056 (1989).
To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional claim presented to the state courts be supported by the same factual allegations and legal theories upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a petitioner's confinement.
Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review.
In the instant case, petitioner stated, "It is presented by the Petitioner that each claim in issue was presented to the State Court by way of a State Habeas Corpus Petition." (Fed. Writ Pet., Memorandum of Law, pg.6). However, respondent disagrees and avers that the claim of ineffective assistance of appellate counsel, specifically failure to challenge insufficiency of the evidence, has not been presented to the highest state court. Respondent requests dismissal of the entire petition because it contains both exhausted and unexhausted claims or alternatively, respondent requests dismissal of the one claim as procedurally barred.
The undersigned Magistrate Judge has reviewed petitioner's state court records and it appears petitioner has presented, to the highest court of the State of Texas, the substance of all claims he now presents to this federal court except one. Petitioner has not presented to the state courts, the claim regarding appellate counsel's failure to challenge the sufficiency of the evidence. However, petitioner would be procedurally barred from presenting the issue to the Texas Court of Criminal Appeals unless he could show adequate cause or actual innocence. Tex. Code Crim. P. Art. 11.07(4) (Vernon Supp. 1996). If procedurally barred in state court, petitioner would also be barred at the federal habeas level. Nobles v. Johnson, 127 F.3d 409, 422 (5th Cir. 1997).
Therefore, it is the opinion of the Magistrate Judge that while petitioner has not exhausted one of his issues in state court, this cause should not be dismissed for failure to exhaust, but instead, be decided on the merits, except as to the contested issue which the undersigned finds to be procedurally barred.
IV. STANDARD OF REVIEW
As stated supra, this case was filed November 20, 1997, subsequent to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the standards of review set forth in the AEDPA apply to this case. Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 2063, 138 L.Ed.2d 481 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). Consequently, petitioner may not obtain relief in this Court with respect to any claim adjudicated on the merits in the state court proceedings unless the 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). Further, all factual determinations made by a state court shall be presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Here, the state courts heard and adjudicated, on the merits, nine (9) of the ten (10) claims that are before this Court, either on direct appeal or collateral review. More specifically, on October 1, 1997, the Texas Court of Criminals Appeals denied petitioner's application for state habeas relief without written order. Ex parte Palacios, No. 35, 393-01 at cover. The ruling of the Texas Court of Criminal Appeals constitutes an adjudication of petitioner's claims on the merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
V. MERITS OF PETITIONER'S ALLEGATIONS
Federal habeas corpus will not lie unless an error was so gross or a trial so fundamentally unfair that the petitioner's constitutional rights were violated. In determining whether an error was so extreme or a trial so fundamentally unfair, this Court must review the putative error at issue, looking at the totality of the circumstances surrounding the error for a violation of the petitioner's constitutional rights.A. Jury Charge
Petitioner appears to allege that the trial jury charge was fundamentally defective. Specifically, petitioner argues that the names Felix Gonzales and Jesus Gonzales, which were listed in the indictment with his own name as parties to the crime, were not listed in the jury charge. Petitioner contends, "that by omitting elements that the defendant [petitioner] acting as a party with, Felix Gonzales and Jesus Gonzales in the entirety of the instructions . . . did relieve the court of its' (sic) burden of proof." Fed. Writ Pet., Memorandum of Law, pg.2. Petitioner appears to assert that the other parties to the crime should have been listed in the jury charge at his trial and that the omission thereof, constituted the exclusion of a required element. Petitioner's argument is without merit. The Texas Penal Code § 28.03 states the law of parties as:
(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both.
(b) Each party to an offense may be charged with commission of the offense.
The Court instructed the jury accordingly when it stated,
Now, if you find from the evidence beyond a reasonable doubt that on or about the 24th day of April, 1994, in Deaf Smith County, Texas, the defendant JORGE PALACIOS, did then and there either acting alone or with another as a party by aiding another to commit the offense, intentionally or knowingly damage tangible property, to-wit: Chevrolet pick-up truck, by beating or kicking the windows, without the effective consent of VICTOR MARTINEZ, JR., the owner of said property, and did thereby cause pecuniary loss of $750 or more but less than $20,000 to said owner, then you will find the defendant guilty as charged.
Transcript (Tr.), January 31, 1996, pg. 30 (emphasis added). An "acting alone or with another as a party" instruction to the jury is appropriate if supported by the evidence. Reyes v. State, 741 S.W.2d 414, 425 (Tex.Crim.App. 1987) (en banc).
In Watson v. State, 693 S.W.2d 938, 941 (Tex.Cr.App. 1985), it was held,
Although the evidence was insufficient to raise the possibility of appellant's 'acting alone', appellant was not harmed by the presence of that language in the charge. The jury was clearly instructed that before they could return a guilty verdict, they had to find beyond a reasonable doubt that the appellant burglarized the premises while either acting alone or as a party. The evidence presented at trial clearly showed appellant's guilt as a party. A review of the State's jury argument shows that the State was proceeding solely on the theory that appellant was guilty as a party. After carefully reviewing the record, it is inconceivable to us how the jury could have been misled by the court's charge.
Likewise in the case at bar, the prosecution argued vehemently that PALACIOS was a party to the offense reflected in closing argument when it was stated,
[B]ut that's not what Jorge Palacios is on trial for, he is on trial for this right here exactly what Reverend McKibben saw, four guys beating up the pickup with a bat and pipe and doing that damage to the pickup, and I submit to you there is no reasonable doubt that Jorge Palacios was one of those four men . . .
Statement of Facts (S.F.), March 21, 1996, Volume III, pg.205. Clearly, the jury charge accurately presented prosecution's theory of petitioner's involvement as a party in committing criminal mischief. The law of parties does not require the prosecution to prove, in a case against one defendant, the identities of the others involved.
In Dorsey v. State, 940 S.W.2d 169, 173 (Tex.App.-Dallas 1996, pet. ref'd) the court reviewed a jury charge for a defendant whose accomplices were unidentified. The charge was almost identical to the one in the case at bar and the court's analysis relied on the application paragraph which stated:
Now if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . acting individually or as a party to the offense, if any, did knowingly or intentionally break into or enter a vehicle . . .
The charge in Dorsey, defined the law of parties as follows:
All persons are parties to an offense who are guilty of acting together in the commission of the offense. A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or both. A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
The court in Dorsey, went on to conclude:
The application paragraph clearly required the jury to find beyond a reasonable doubt that the offense was committed by the defendant acting individually or as a party. The definition of "party" clearly required that the offense be committed by a person for whose conduct the defendant is criminally responsible. Because the charge did instruct the jurors that before Dorsey could be convicted as a party they would have to conclude beyond a reasonable doubt that some other person actually committed the burglary, . . . We hold that the charge permitted the jury to find Dorsey guilty as a party.
In the case at bar, the court instructed the jury with a similar application paragraph and an instruction on the law of parties. The prosecution argued throughout that petitioner was one of four (4) men who committed the offense. There was no error and, petitioner's argument is without merit.
B. Effectiveness of Trial Counsel
The proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland standard, a petitioner must show defense counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment to the United States Constitution.
A petitioner must also show counsel's deficient performance prejudiced the defense. To establish prejudice, petitioner must show counsel's errors were so serious as to deprive petitioner of a fair trial. Specifically, petitioner must show "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different or that the errors were so serious as to deprive the petitioner of a fair trial with a reliable result." Id. at 694.
In order to amount to ineffective assistance of counsel, counsel's performance must have fallen below an objective standard of reasonableness as determined by the norms of the profession. Counsel's performance is reviewed from counsel's perspective at the time of trial, not from hindsight. Id at 689. A reviewing court's scrutiny of trial counsel's performance is highly deferential, with a strong presumption that counsel's performance falls within the wide range of reasonable professional assistance. Id.
The burden of proof in a habeas corpus proceeding attacking the effectiveness of trial counsel is upon the petitioner, who must demonstrate that ineffectiveness by a preponderance of the evidence. Jernigan v. Collins, 980 F.2d 292, 296 (5th Cir. 1992), cert. denied, 508 U.S. 978, 113 S.Ct. 2977, 125 L.Ed.2d 675 (1993).
The Fifth Circuit has held that claims of ineffective assistance, which are mixed questions of law and fact, are to be reviewed under 28 U.S.C. § 2254(d)(1). Moore, 101 F.3d at 1076; Tucker v. Johnson, 115 F.3d 276, 279 (5th Cir. 1997). Moreover, a federal habeas court may not grant habeas corpus relief unless, "the court decision rests on an unreasonable application of. . . clearly established Federal law, as determined by the Supreme Court, 28 U.S.C. § 2254(d)(1), i.e. when the state decision correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Walbey v. Johnson, 110 F. Supp.2d 549, 554 (S.D.Tex. 2000) citing Williams v. Taylor, 529 U.S. 420, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (internal quotations and citations omitted).
1. Ground One Failure to Adequately Prepare for Trial
Petitioner claims he was denied effective assistance of counsel because his trial counsel failed to adequately prepare for trial. It is unclear what petitioner bases this allegation upon or how petitioner contends he was prejudiced. Petitioner does not mention how the attorney failed to prepare for trial, petitioner simply makes this sweeping, conclusory allegation, asserting no specifics.
Trial counsel is presumed competent and in the Fifth Circuit, petitioner must show how counsel's actions failed to meet the objective standards of the profession and that the failure actually prejudiced the defense. Strickland 466 U.S. at 690, 104 S.Ct. at 2066. PALACIOS has alleged nothing to show how counsel's performance was deficient. He has simply made conclusory allegations that counsel was ineffective for failing to adequately prepare for trial. Moreover, petitioner has made no effort to demonstrate prejudice. For these reasons, petitioner's claim must fail.
2. Ground Two Failure to Request Discovery
Petitioner maintains he was denied effective assistance of counsel because trial counsel failed to request discovery, specifically the estimate of the cost of repairs used to support the complaint. On October 5, 1995, trial counsel filed "Defendant's Pre-Trial Motion Number One for Disclosure of Exculpatory Evidence." Tr., January 31, 1996, pg. 19. In said motion, counsel requested:
3. The results reports and opinions from examinations, tests, and experiments on physical items and evidence.
4. . . .
5. Any memoranda, documents, or statements used by the prosecution during the investigation of this case.
Moreover, State's Exhibit Number 6 is a "physical damage quotation #2025 by RAUL MARISCAL on 10-11-95." S.F., March 21, 1996, Volume III, pg.228. Said estimate of damages places the property damage at $998.29, within the range charged. Trial counsel clearly requested such a document as it falls within the description of things requested supra. Moreover, nothing in the record indicates that petitioner was not provided with this document. Additionally, even if trial counsel failed to request an estimate of repairs, petitioner has not shown how such failure prejudiced him, since the amount of damage was proven at trial, and was over the $750 threshold. S.F., March 21, 1996, Volume III, pg.121. For these reasons, petitioner's claim is without merit.
This exhibit was not objected to by trial counsel leading this court to believe it was produced as requested before trial.
3. Grounds 3, 4, and 5 Failure to Suppress Affidavit, Challenge Arrest and Move to Dismiss Indictment
Petitioner claims that trial counsel failed to move to suppress the affidavit of Eugene Gerringer, state's investigator, failed to challenge the legality of petitioner's arrest and failed to move for dismissal of the indictment. Petitioner seems to focus these allegations on his (petitioner's) belief that no documentation existed as to the amount of property damage prior to the indictment and arrest. In essence, petitioner argues that if there was not enough evidence to convict him on the day of his arrest, the complaint, indictment and arrest were invalid and counsel was in error for failing to challenge this.
Federal habeas corpus relief may only be obtained when an error was so gross or a trial so fundamentally unfair that the petitioner's constitutional rights were violated. In effect, there must have been an egregious error and resulting prejudice. Even assuming arguendo in the case at bar, that the state did not obtain specific valuation of the property damage prior to trial, petitioner's argument is without merit because the state proved the damage amount at trial. Petitioner has not shown how counsel was ineffective and more importantly, petitioner has not put forth any argument to demonstrate that he was prejudiced. For these reasons, petitioner's grounds 3, 4 and 5 of ineffective assistance of counsel fail.
4. Ground 6 Failure to Object to the Reading of the Indictment
The prosecutor read the indictment in open court at the beginning of petitioner's trial. S.F., March 21, 1996, Volume III, pg. 3. Although two additional individuals, Felix Gonzales and Jesus Gonzales were listed in the original indictment with petitioner as parties to the crime, the three defendants were not tried together. The state did not include the other defendant's names when it read the indictment at petitioner's trial. Therefore, argues petitioner, the indictment was defective, did not invoke the court's jurisdiction, and trial counsel was ineffective for not objecting. PALACIOS must prove counsel erred to a degree that prejudiced the outcome of the trial. This he has not done.
The undersigned has examined state procedural rules and like respondent, has found no rule requiring the reading of an indictment to include defendants not on trial. It is well established that an indictment must simply state the essential elements of the offense. United States v. Johnson, 575 F.2d 1347, 1356 (5th Cir. 1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). In United States v. Fischetti, 450 F.2d 34, 39 (5th Cir. 1971), cert. denied, 405 U.S. 1016, 92 S.Ct. 1290, 31 L.Ed.2d 478 (1972), the court explained the importance of the indictment,
An indictment is required to set forth the elements of the offense sought to be charged . . . in order to sufficiently apprise the defendant of the charge he must be prepared to meet and to prevent him from being charged with the same crime in the future. If, therefore, an amendment goes to an essential element of the crime, it is a substantial change and cannot be made except by resubmission to the grand jury . . .
Here the indictment was sufficient because it charged in the words of the statute that petitioner PALACIOS, acting alone or with others, had engaged in criminal mischief. The prosecution produced evidence at trial which was directed toward proving the elements of that crime, as defined in section 28.03(a)-(c) of the Texas Penal Code. In particular, the evidence showed there were four Hispanic males involved in the incident, including petitioner. There was no variance between the indictment and the proof at trial. United States v. Johnson, 575 F.2d at 1356. As stated supra in paragraph V(A), the omission of the names of Jesus and Felix Gonzales did not delete an element of the crime charged. There was no amendment to the indictment as read at trial, counsel was not ineffective for failing to object and petitioner has shown no prejudice. For these reasons ground 6 must fail.
C. Sufficiency of the Evidence
Petitioner appears to contend the evidence adduced at trial was insufficient to prove that he alone caused damage of at least $750. Petitioner's argument is without merit because the state
was not required to prove that PALACIOS acted alone in causing $750 in damage. Moreover, this issue was fully considered and rejected on direct appeal. The intermediate Court of Appeals found there to be sufficient evidence. Their holding and the Texas Court of Criminal Appeals denial of the state habeas writ on this ground have not been shown to be contrary to, or to involve an unreasonable application of clearly established federal law. Nor were these decisions based upon an unreasonable determination of the facts in light of the evidence presented during the state court proceedings. Since petitioner has not made the showing required by the AEDPA with respect to the state court decisions on this issue, petitioner is not entitled to federal habeas corpus relief.
Further, as previously set forth herein, petitioner was tried as a party to the offense of criminal mischief. The state was obligated to prove that damage occurred, the amount of damage and that petitioner acted alone or as a party. The prosecution's case was based on the latter theory, that petitioner was a party to the offense. The state presented six (6) witnesses, four (4) of whom witnessed and testified about the incident, the police officer who arrived on the scene and the mechanic who estimated the damage. Officer Lassiter testified he was told four guys kicked and beat the pickup and he testified about the apparent damage. S.F., March 21, 1996, Volume III, pg.16. Victor Martinez, the pickup's owner, identified four (4) men, including petitioner, as the ones who exited a vehicle with bats and pipes after which he heard glass breaking. S.F., March 21, 1996, Volume III, pg.35-36. Vickie Rincon testified she witnessed petitioner cause damage to the truck. S.F., March 21, 1996, Volume III, pg.57. Julie Rincon and Cathy Rincon testified they saw petitioner damage the truck as well. S.F., March 21, 1996, Volume III, pg.72, 97. Lastly, the state introduced the affidavit of Reverend McKibben as States's Exhibit Number 1 which placed four (4) Hispanic boys at the scene who beat the pickup. S.F., March 21, 1996, Volume III, pg.223.
Clearly the evidence was sufficient to convict petitioner as a party and his arguments therefore are without merit.
D. Effectiveness of Appellate Counsel
As stated supra in paragraph 2, the proper standard for judging a petitioner's contention that he is entitled to relief on the ground that his trial counsel rendered ineffective assistance is enunciated in Strickland. Simply stated, petitioner must show counsel acted ineffectively and that such action prejudiced the defense.
1. Ground One Defective Jury Charge
PALACIOS argues appellate counsel should have presented on appeal, that the jury charge was defective. As discussed in paragraph V(A) supra, the jury charge was an accurate recitation of the law of parties. Petitioner's sweeping allegation of defectiveness offers nothing specific. Because petitioner has failed to show how counsel was ineffective and furthermore how he was prejudiced, this ground must fail.
2. Ground Two Failure to File and Perfect Motion for New Trial
Petitioner contends appellate counsel, "failed to execute a Motion For New Trial, where it was found on newly discovered information, that the accused did not commit the crime." (Pg. 4, petitioner's Memorandum of Law). Specifically, petitioner refers to the affidavits of two (2) witnesses who testified that damage had already occurred to the windows of the pickup at issue. Appellate counsel filed a Motion for New Trial on November 13, 1995 wherein he stated, "A new trial should be granted. New evidence favorable to the accused has been discovered since trial." Tr., January 31, 1996, pg. 46. Presumably, the "new evidence" referred in part to the affidavit of Mario Alonzo executed six days before the Motion for New Trial.
In her affidavit executed January 29, 1996, Patricia Lopez claimed two (2) windows were broken prior to the April 24, 1994 incident. In his affidavit executed November 7, 1995, Mario Alonzo stated the rear window was damaged in the collision that occurred immediately prior to the incident of criminal mischief.
The decision to grant a new trial is one of discretion for a trial court. To prevail on such a motion, the court must find:
1) the evidence was discovered following the trial;
2) due diligence must have existed in its discovery;
3) the evidence is not merely cumulative or impeaching;
4) the evidence must be material; and
5) the evidence must be such that a new trial would probably produce a new result.United States v. Miliet, 804 F.2d 853, 859 (5th Cir. 1986). Petitioner avers the statements of two (2) witnesses prove he was innocent of the crime criminal mischief. However, as respondent notes, the defense could have produced these witnesses at trial but did not, and petitioner has not shown why he failed to do so. Additionally, Ramiro Davilos was called as a witness for the defense and testified that the windows were broken out of the pickup at issue the week before the offense alleged. S.F., March 21, 1996, Volume III, pg.153. The testimony presented regarding the two (2) new witnesses is merely cumulative of Mr. Davilos's testimony and petitioner has failed to show there would have been a different result at trial had the two (2) additional witnesses testified. Petitioner's claim must fail.
3. Ground Three Failure to Contest the Sufficiency of the Evidence
As stated in paragraph III, it is the opinion of the undersigned Magistrate Judge that petitioner is procedurally barred from presenting this claim as a habeas issue because he has not shown adequate cause or actual innocence. Even if petitioner could present it, for the reasons stated supra in paragraph V(C), the claim is without merit.
VI. RECOMMENDATION
Based upon the foregoing, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus filed by petitioner JORGE PALACIOS.
VII.
INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner utilizing the inmate correspondence card, and to counsel for respondent by agreed upon means.
Any party who wishes to make objections to this Report and Recommendation must make such objections within fourteen (14) days after the filing thereof. 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; F.R.Civ.P. 5(b), 6(e). Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Any objecting party shall file written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.