Opinion
WR-41,274-05
01-25-2017
EX PARTE ANTHONY SHAWN MEDINA
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 726088 IN THE 228TH JUDICIAL DISTRICT COURT HARRIS COUNTY NEWELL, J., filed a concurring opinion in which KELLER, P.J., YEARY, and WALKER, JJ., joined. OPINION
Anthony Shawn Medina has filed a fifth post-conviction application for a writ of habeas corpus, as well as a motion to reconsider a previously filed application. He comes to this Court again seeking relief based on alleged Brady/Giglio/Napue violations and claims of trial counsel's ineffective assistance. Additionally, he asserts a claim of actual innocence for the first time. The merits of Medina's Brady/Giglio/Napue and ineffective assistance claims-which underlie his actual innocence claim-have been completely and thoroughly reviewed and rejected. Medina is not entitled to re-litigate claims that have already been resolved on the merits. I agree with this Court's dismissal of Medina's post-conviction application pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071 § 5, and the Court's decision to refuse reconsideration of Medina's prior subsequent writ application.
The Capital Murder
The evidence in this case establishes that shortly after midnight on January 1, 1996, a blue Oldsmobile, full of La Raza 13 ("LRZ") gang members, slowed down in front of the Rodriguez home. The front seat passenger held an SKS assault rifle out of the window and opened fire into a crowd of children and teenagers standing in the well-lit front yard of the home. The young people, mostly family, were attending a New Year's Eve celebration.
Gunfire struck several cars, the home, and three people. Rocio Pedrosa, 18, was shot in the abdomen. She survived. The capital murder victims-an eight-year-old boy and his thirteen-year-old sister-were nearest to the gunfire. The boy sustained two fatal wounds; one pierced his head while the other pierced his arm and traveled into his chest. His sister sustained a non-fatal wound, which pierced her right breast, and a fatal wound, which pierced her left shoulder and traveled into her neck.
The Rodriguez home had been targeted by the LRZ gang because Veronica Rodriguez, the victims' cousin, was the girlfriend of Marco "Blue" Martinez, an H-town Crip. Marco, who wasn't welcome inside the Rodriguez home, was not there: he had picked Veronica up earlier in the evening, and dropped her off after the shootings. The drive-by was retaliation for the H-town Crips' murder of a LRZ gang member at the Meyer Park Cinema a year earlier.
There was evidence that Applicant (age 21), D.H. (age 16), James Moore (age 22), J.V. (age 14), V.P. (age 13), and S.P. (age 16)-all members or associates of the LRZ street gang-were in the Oldsmobile during the drive-by. Moore was the driver; it was his car. J.V., V.P., and S.P. were alleged to be in the backseat. Also possibly in the car were LRZ's Alex "Slim" Perez (age 18) and R.J. (age 15). D.H. claimed to have been in the back seat while Medina sat in the front passenger seat and fired the SKS assault rifle during the drive-by. And that was the State's theory at trial. The defense theory was that D.H. was the shooter and that Medina was not even in the car.
Although Medina denied being in the Oldsmobile at the time of the shooting, he acknowledged riding around in it with everyone, being with the LRZ's who brandished guns at Hector Argueta's party on Ingomar Way (once at 11:00 p.m., and once around 2:00 a.m.), and going to an LRZ party at the home of Candelario "Candyman" Guerrero. Medina's statement was that, after the parties, he saw Moore and D.H. leave with the SKS assault rifle in Moore's car, and he did not know about the shooting until the next day. The defense in closing focused on the fact that D.H.'s palm prints were found on the plastic wrapping in which the SKS assault rifle (along with another rifle, two magazines and some cartridges) had been buried after the crime. But the jury convicted Medina of capital murder based on his role as the shooter and sentenced him to death.
The Direct Appeal
We upheld the conviction on direct appeal. Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999). Addressing a complaint that no accomplice witness instructions had been given, we found error on the lack of instruction for D.H. but no harm because of the non-accomplice evidence linking Medina to the offense. J.V. and R.J., who we determined were not accomplices, both connected Medina to the offense. J.V. testified that he saw Medina take the SKS assault rifle out of the trunk of the car and bring the gun with him into the front seat. Medina then shot six or seven times out the window as the car drove by the Rodriguez home. R.J. testified that, on the night of the murders, Medina admitted to being the shooter. She also testified that she saw Medina with the SKS assault rifle that night-a weapon that Medina, after he was arrested, instructed her to get rid of.
Medina connected himself to the crime through his written words. After the offense, Medina wrote a letter to Luisa Escobar. In that letter Medina wrote that he had "really fucked [himself] this time," and he begged Escobar not to let anyone tell his son, Matthew, how rotten he had been. Near the end of the letter Medina wrote, "Matthew, well, son, your pops made a real big screw up this time." Medina further wrote: "Just remember to always think before you do something. I never did. You see, I thought I had to always be the baddest around and I screwed myself trying in doing this."
Medina wrote a second letter to Escobar stating: "I was a bad boy out there, but don't let no one know. Okay? That's my big secret. . . . I always had to be the star of the show. I don't know why. But I built Ridgemont, me, Creeper, and I built a reputation every cop and hoodlum knew about. Everyone knew, everyone knew that when it came to the streets I was king. They knew if they tried me, I'd put them hoes to rest."
Previous Post Conviction Proceedings
Medina's -01 habeas application was dismissed as untimely in April 1999 (before the enactment of Article 11.071, Section 4A). Ex parte Medina, WR-41,274-01 (Tex. Crim. App. April 28, 1999) (not designated for publication). We later granted Medina new counsel pursuant to Article 11.071 § 4A. New counsel timely filed an application, the -02, with the trial court on November 21, 2001. While that application was still pending, Medina filed -03 and-04 applications. The -03 application, containing a single claim that Medina's death sentence was unconstitutional under Ring v. Arizona, was dismissed as an abuse of the writ in 2005. Ex parte Medina, No. WR-41,274-03, 2005 WL 3119179 (Tex. Crim. App. Nov. 23, 2005) (not designated for publication). Medina's -02 application-raising the following allegations-was received in this Court on June 17, 2009.
• The State withheld material evidence in violation of Brady v. Maryland and knowingly allowed false testimony to be presented to the jury in violation of Giglio v. United States and Napue v. Illinois.
• Trial counsel failed to meet minimal standards of representation, resulting in an unjust conviction; Medina was denied the effective assistance of counsel at the punishment phase of his trial; Medina's counsel on direct appeal rendered ineffective assistance.
• The trial court's charge at punishment was erroneous.
• The cumulative effect of the ineffective assistance of counsel and the State's Brady violations undermined all confidence in the verdict at Medina's trial.
• One of the jurors who sat in judgment of Medina lied about her criminal past so that she could serve.
• The process by which Harris County selects its grand juries produces an unconstitutional under-representation of Hispanics, in violation of the Sixth and Fourteenth Amendments.
• The trial court denied Medina due process when it rejected his request that Robert Baldwin, the State's firearms examiner, conduct testing which would have exculpated Medina.
• Medina's right to a fair trial under the Sixth Amendment, the Eighth Amendment and the Due Process Clause of the Fourteenth Amendment was violated by the hostile atmosphere in the courtroom.
• In denying the jury's request for an instruction on voluntary intoxication as a mitigator, the trial court denied Medina's right to individualized sentencing under Lockett v. Ohio.
• The State's refusal to grant "use" immunity to two potential defense witnesses violated Medina's constitutional rights and his rights under international law.
• Medina's Fifth and Sixth Amendment rights to be present at all phases of the proceedings were violated when voir dire of potential jurors was conducted outside his presence.
• Medina's due process rights were violated when jury selection proceeded without him.
• Medina's sentence was enhanced by a finding that was not presented to the grand jury or alleged in the indictment, in violation of Apprendi v. New Jersey.
• Medina's prolonged stay on death row violates his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution.
The trial court did not hold an evidentiary hearing. The trial court adopted the State's proposed findings of fact and conclusions of law recommending that the relief sought be denied.
This Court reviewed the record with respect to the allegations made by Medina, and adopted the trial court's findings and conclusions. Based upon the trial court's findings and conclusions and our own review, we denied the relief sought. See Ex parte Medina, Nos. WR-41,274-02 & -04, 2009 WL 2960466 (Tex. Crim. App. Sept. 16, 2009) (not designated for publication). In that same order, the -04 application, containing the single claim that "the judgments of conviction and sentence of death in Medina's case are void because the judicial officer who presided at his trial was without authority to preside over the trial," was dismissed as an abuse of the writ. Id.
Medina filed a federal habeas petition in October 2009. In 2015, the federal district court granted Medina's motion to stay the federal proceeding and allow Medina to return to State court to exhaust claims he had not previously raised in State court. See Medina v. Stephens, No. 4:09-CV-03223 (S.D. Tex. Aug. 24, 2015).
The -05 Application
Medina filed the instant -05 application in the trial court on December 16, 2015. The trial court forwarded it to this Court in accordance with Article 11.071, Section 5. Medina raises three issues: 1) State (Police and Prosecutor) Misconduct, 2) Ineffective Assistance of Counsel at the Guilt-Innocence Stage of Trial, and 3) Actual Innocence. Texas Code of Criminal Procedure Article 11.071, Section 5, provides:
(a) If a subsequent application for a writ of habeas corpus is filed after filing an initial application, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in a timely initial application or in a previously considered application filed under this article or Article 11.07 because the factual or legal basis for
the claim was unavailable on the date the applicant filed the previous application;
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt; or
(3) by clear and convincing evidence, but for a violation of the United States Constitution no rational juror would have answered in the state's favor one or more of the special issues that were submitted to the jury in the applicant's trial under Article 37.071, 37.0711, or 37.072.
* * *
I find that none of the grounds raised meets Section 5.
(d) For purposes of Subsection (a)(1), a legal basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the legal basis was not recognized by or could not have been reasonably formulated from a final decision of the United States Supreme Court, a court of appeals of the United States, or a court of appellate jurisdiction of this state on or before that date.
(e) For purposes of Subsection (a)(1), a factual basis of a claim is unavailable on or before a date described by Subsection (a)(1) if the factual basis was not ascertainable through the exercise of reasonable diligence on or before that date.
Ground 1: State/Prosecutor Misconduct
Does not meet Section 5
Medina asserts that a "pervasive pattern of police and prosecutorial misconduct" violated his right to due process. Specifically, the State presented false testimony, failed to disclose that critical State's witnesses testified pursuant to "deals" to avoid prosecution, and "fostered materially false impressions." Medina argues that this allegation overcomes Section 5 because the factual and legal bases for it were previously unavailable, and moreover, but for these constitutional violations, no rational juror would have found Medina guilty beyond a reasonable doubt.
Medina asserts that the due process claim he presented in his initial application-that the prosecution presented false testimony and withheld favorable evidence-is now "augmented with significant new evidence of misconduct." Also, Medina asserts that Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009), and Ex parte Chavez, 371 S.W.3d 200 (Tex. Crim. App. 2012) provide a previously unavailable legal basis for relief, in that Chabot first recognized the availability of relief based on the State's presentation of false evidence even when that presentation was not "knowing." Medina further asserts that, but for the due process violations, no rational juror would have found him guilty. He argues that his case was "incredibly close" and "boiled down to the credibility of witnesses on both sides."
The instant application contains some new factual allegations, but Medina raised most of his current factual allegations in his -02 application. In that application, he claimed that the State failed to (1) disclose information on or the criminal records of Leon Guy (a bystander to the drive-by, who said the shooter had a white or Mexican hand), Maurice Argueta (an eyewitness to Medina's display of a handgun, and an SKS much like the murder weapon, during the LRZ's visits to the Ingomar Way party), D.H. (the shooter according to Medina), and James Moore (the admitted driver during the drive-by); (2) disclose that D.H. was a suspect, that D.H. fled from police, and that D.H. was offered leniency in exchange for his statement; (3) disclose evidence of an "alternate suspect" based on the information that Veronica Rodriguez had been dating a "possible gang member," and she told her father, Evaristo Rodriguez, that a member of the LRZ gang had "just got out of jail" and was "going to kill one of her family members"; and, (4) disclose that J.V. had been charged with capital murder, but this charge was dropped after he gave a statement implicating Medina.
Medina claimed also that the State presented the false impression testimony of (1) Maurice Argueta, who, on the stand, was certain in his identification of Medina (without relating that Argueta had previously "expressed doubts" to law enforcement); and (2) Evaristo Rodriguez, who told the jury about a July 1995 drive-by shooting at his house (without relating that the firearms examiner found that the bullet fragments from the earlier drive-by were fired from a different type of gun).
The State provided (1) affidavits from prosecutors averring to the fact that they maintained open files (which included sub-files containing criminal histories); (2) exhibits from the open files; and (3) an affidavit from trial counsel stating that he reviewed all the files and sub-files. The trial court found those affidavits credible, and pointed to the information available in the open files. The trial court also referenced the offense report mentioning Argueta's tentative identification, and the offense report supplement containing the ballistics information from the July 1995 drive-by.
After comparing the two applications, the only factual allegations supporting the Brady/Giglio/Napue claim that were not raised in the -02 application are:
• Adela Moya, Candelario "Candyman" Guerrero's girlfriend, was threatened with prosecution as the driver of the car when she was questioned by police;
• R.J. testified pursuant to an undisclosed promise of leniency; she was also informed that she "had to testify for the State or go to jail herself."
The only new evidence that Medina has included in support of the -05 application are two affidavits. One is from Sarah Jack, a UT law student who spoke with both R.J. and Shelley Amato (who was D.H.'s girlfriend at the time of the drive-by), in March 2011. The other is from Serine Consolino. Consolino does not identify herself as a law student or affirm that she is over 18 years of age, but for purposes of this opinion, I will assume that she is. She spoke with V.P., J.V., and J.V.'s mother, in March 2011. The record contains no new evidence concerning Adela Moya.
R.J., as mentioned above, testified at trial that, on the night of the murders, Medina admitted to being the drive-by shooter. She also testified that she saw Medina with the SKS assault rifle that night. R.J. testified that Medina, from jail, instructed her to get rid of some guns-which she and D.H. did, on January 6, 1996 by burying them at S.P.'s house. According to Affiant Jack, R.J. has now stated, contrary to her trial testimony, that she was not present when the weapons were buried and that her trial testimony was false and was based on information the prosecutor gave her.
Jack states that R.J. told her about scare tactics the police used on her and other witnesses to get them to cooperate, including that she knew they had physically hit V.P. while questioning her. R.J. told Jack that the police had already decided on the story and just wanted her to confirm it, insisting that she had sat in Alex Perez's lap in the car during the offense even after she informed them that she was not there. Jack does not say that R.J. told her about any promise of leniency or threat of prosecution. According to habeas counsel, R.J. telephoned him on April 3, 2012, and revealed that "she had to testify for the State or go to jail herself."
Jack also states that Shelley Amato told her that Holmes showed up at her house on the morning of January 1, 1996, covered in mud, and he kept changing his story about what had happened that night. He never told her that he had "seen the shooting." The remaining information in Jack's affidavit repeats information that is in previously-provided records.
Affiant Consolino states that V.P. told her that the police "were extremely coercive and threatening." She told them that she was not in the car, but they insisted that she was. "They threatened to charge her with capital murder [if] she did not cooperate." V.P. stated that she "didn't know what [she] was signing" when she signed her January 1996 statement, in which she had stated that Medina was the shooter.
Consolino also states that J.V. told her that the "cops did a 'good cop/bad cop thing.'" They already had a version of the story in mind and just wanted him to confirm it. They told him that they knew the shooter was Medina and that they wanted him to say so. J.V. told Consolino that he signed the statement "because he was scared." J.V.'s mother stated that, while they were interrogating J.V., police told her that her son did not need a lawyer because he was "just a witness." She also stated that J.V.'s twin brother told her that the police had kicked J.V. during questioning. The remaining information in Consolino's affidavit repeats information that is in other, previously-provided records.
Even assuming that Medina's new evidence supports his new factual allegations, and that the new factual allegations support his claim that his conviction was the result of a pervasive pattern of police and prosecutorial misconduct that violated his right to due process, Medina has not shown that this evidence or the new factual allegations were previously unavailable. Defense attorneys were aware of these witnesses' young ages, and had access to their statements to police and their criminal histories, at the time of trial. Through the exercise of reasonable diligence, trial counsel and previous habeas counsel could have developed evidence in support of an argument that these witnesses' statements were false and involuntary due to their young ages and coercive police conduct.
Further, Medina has not shown that he has a previously-unavailable legal basis for his current claim. Ex parte Chabot provides a path for relief from a conviction based on false evidence even when the State does not know the evidence is false. Applicant does not allege that the State "unknowingly" presented false evidence, rather, Applicant alleges that the State (and its agents, the police), knowingly presented false evidence and deliberately manipulated witnesses' statements and testimony. Finally, Medina has not shown, by a preponderance of the evidence, that but for a violation of the United States Constitution, no rational juror could have found him guilty beyond a reasonable doubt.
To the extent that Medina complains that he has not been afforded full discovery, he has not set forth a due process violation. See DA's Office v. Osborne, 557 U.S. 52, 69 (2009) (stating that a convicted person's "right to due process is not parallel to a trial right, but rather must be analyzed in light of the fact that he has already been found guilty at a fair trial," and "Brady is the wrong framework" for analyzing a criminal defendant's liberty interest in obtaining exculpatory evidence in the post-conviction context); cf. Ex parte Blue, 230 S.W.3d 151, 166-67 (Tex. Crim. App. 2007) ("Article 11.071 does not provide for the appointment of counsel, or for investigative or expert funding, for the preparation of subsequent writ applications, as it does for preparation of an initial writ application.").
Further, Medina simply assumes that every statement made by every witness must have been documented somewhere in the State's file; he does not allow for the possibility that some verbal exchanges were not written down, or that, for instance, a brief notation in a police officer's notes concerning a phoned-in "tip" that mentioned "two black suspects" might be the extent of the documentation for that tip. He also wrongly assumes that he is entitled to full access to materials that might or might not be favorable, such as grand jury testimony and the identity of confidential informants. See, e.g., Ex parte Napper, 322 S.W.3d 202, 230 (Tex. Crim. App. 2010) (noting distinction between "material, exculpatory" evidence under Brady and "potentially useful" evidence).
Notwithstanding recent state statutory changes concerning the State's recording and disclosure obligations, e.g., Article 39.14, Medina has not established that he has a federal due process right in post-conviction proceedings to have the State create documents retrospectively or to fully disclose all the information that is arguably in its possession.
Ground 2: Ineffective Assistance of Counsel
Does not meet Section 5
Medina forthrightly admits that his guilt-phase ineffective assistance of counsel claim was adjudicated in the -02 writ. He includes it in this writ to make sure the federal courts consider the issue "exhausted." The guilt-phase IAC claims raised in the -02 include the alleged failures to
• seek disclosure of the identities of the Crimestoppers callers
• timely challenge the Harris County grand jury system effectively conduct voir dire
• make an opening statement
• challenge inadmissible, irrelevant and misleading evidence of extraneous offenses
• object to pervasive gang references
• impeach State witnesses with readily available impeachment material
• adequately investigate and introduce into evidence information that would have demonstrated his innocence
• secure independent testing on the State's firearms evidence
Medina does not distinguish the factual allegations and evidence that were raised and presented in the -02 application from the factual allegations and evidence that are raised and presented for the first time in this -05 application. After comparing the applications, it is clear that Medina has repackaged the same claim of ineffective assistance that this Court has already rejected. The only new supporting evidence is Jack's affidavit describing Amato's statement that, on the morning after the offense, D.H. showed up at her house covered in mud, he kept changing his story, and he never told her he saw the shooting. This is added evidence of the prejudice resulting from the lack of "an adequate investigation;" an adequate investigation, according to Medina, would have produced testimony from D.H.'s girlfriend that D.H. "kept changing his story about what happened on the night of the crime."
Medina argues that these allegations meet Section 5(a)(2)'s "innocence gateway." Additionally, he argues that this Court should revisit Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002), and that the allegation is not subsequent under the rationale of Martinez and Trevino, which held that ineffective assistance of previous state habeas counsel may constitute "cause and prejudice" sufficient to overcome a procedural bar against federal habeas review of unexhausted claims of ineffective assistance of trial counsel. See Trevino v. Thaler, 133 S.Ct. 1911 (2013); Martinez v. Ryan, 566 U.S. 1 (2012). Medina acknowledges that this Court has dismissed subsequent applications that attempt to overcome the Section 5 bar by alleging ineffective assistance of previous habeas counsel. See, e.g., Ex parte Buck, 418 S.W.3d 98 (Tex. Crim. App. 2013). However, he asserts, "five sitting CCA judges have pointed out [that] developments in federal procedure and subsequent actions by the Texas Legislature provide a strong basis for this Court to reconsider its second holding in Graves, and find that incompetent performance of state habeas counsel excuses an applicant's failure to timely raise an IAC claim." (citing Ex parte Alvarez, 468 S.W.3d 543 (Tex. Crim. App. 2015) (Yeary, Johnson, and Newell, JJ., concurring); Ex parte Buck, 418 S.W.3d at 109 (Alcala and Johnson, JJ., dissenting); Ex parte McCarthy, WR-50,360-04, 2013 WL 3283148 (Tex. Crim. App. June 24, 2013) (not designated for publication) (Meyers, J., concurring; Alcala and Johnson, JJ., dissenting)). He points to the legislative history of Article 11.071 and the history of the creation of the Office of Capital Writs, which post-dated Graves, as evidence that the legislature intends for habeas applicants in death penalty cases to have competent and consistent representation of counsel during initial habeas proceedings. He also points to federalism concerns.
Assuming that Medina's arguments concerning the advisability of revisiting Ex parte Graves in light of Martinez and Trevino are persuasive, Medina cannot show that they apply in this case. Previous habeas counsel actually raised ineffective assistance of trial counsel, including the specific factual allegations repeated here, and supported it with most of the evidence that Medina now presents in the instant application. Medina's ineffective assistance claims were denied after thorough consideration of his initial writ because the claims lacked merit.
Finally, Medina states that we should reconsider our disposition of the ineffective assistance claim in his -02 application. However, we exercise our authority to reconsider our initial disposition of a capital writ only "under the most extraordinary of circumstances." Ex parte Moreno, 245 S.W.3d 419, 427 (Tex. Crim. App. 2008). Medina has not shown extraordinary circumstances in this case.
Ground 3 - Actual Innocence
Does Not Meet Section 5
Medina asserts that both Texas and federal constitutional law prohibit the conviction and punishment of innocent people. He maintains that the evidence used to convict and sentence him was obtained in an unconstitutional manner and that the post-conviction evidence he has uncovered makes a persuasive case that he is "factually and legally innocent." Therefore, his execution would violate the Eighth and Fourteenth Amendments. Herrera v. Collins, 506 U.S. 390, 417, 419, 431 (1993).
In this allegation, Medina appears to combine Allegations One and Two in order to rely on Section 5(a)(2). However, Medina is making the same case that he made in his -02 application, asserting that, but for Brady/Giglio/Napue violations and trial counsel's ineffective assistance, he would have effectively impeached the State's witnesses who identified him as the shooter and persuaded the jury that D.H. was just as likely to be the shooter. We have already rejected this claim. Medina has still not shown by a preponderance of the evidence that but for constitutional violations, no rational juror would have found him guilty.
For the foregoing reasons, I agree with the Court's order (1) dismissing Medina's current writ application under Article 11.071, § 5, and (2) denying his motion to reconsider his prior writ application. FILED: January 25, 2017 DO NOT PUBLISH