no. 17-7641 i supreme court of the united states
TRANSCRIPT
No. 17-7641
IN THE
Supreme Court of the United States
___________________________
OBEL CRUZ-GARCIA,
Petitioner,
v.
STATE OF TEXAS,
Respondent.
___________________________
On Petition for Writ of Certiorari to the
Texas Court of Criminal Appeals
___________________________
RESPONDENT’S BRIEF IN OPPOSITION
___________________________
KEN PAXTON ERICH DRYDEN
Attorney General of Texas Assistant Attorney General
Criminal Appeals Division
JEFFREY C. MATEER Counsel of Record
First Assistant Attorney General
P.O. Box 12548, Capitol Station
ADRIENNE McFARLAND Austin, Texas 78711-2548
Deputy Attorney General (512) 936-1400
For Criminal Justice [email protected]
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
Attorneys for Respondent
i
QUESTION PRESENTED
Petitioner Obel Cruz-Garcia was convicted and sentenced to death for
the kidnapping and murder of six-year-old Angelo Garcia. For that trial and
in accordance with the Sixth Amendment, he was afforded trial counsel and
tried by a jury of his peers. His appeal was automatic, and he was again
provided counsel, as per state law, and the Texas Court of Criminal Appeals
(CCA) affirmed both the conviction and sentence.
During the pendency of his direct appeal, Cruz-Garcia sought state
habeas corpus relief with the assistance of the Office of Capital and Forensic
Writs, a state public defender statutorily mandated to represent Texas death
row inmates in the postconviction process. He filed an application raising
fourteen claims, supported by thirty-six exhibits, including twenty-five
affidavits. He also sought to recuse and mandamus the trial judge, who
presided over his habeas proceeding. Both efforts failed. The State filed an
answer, together with a motion to order trial counsel to provide affidavits.
Ultimately, the State submitted proposed findings of fact and conclusions of
law recommending the denial of habeas relief, and the trial court adopted the
State’s proposed findings. Throughout these proceedings, which lasted well
over a year, Cruz-Garcia complained the state court did not follow proper
procedures––particularly with regard to designating factual issues and the
mode of presenting evidence––based on his interpretation of the statute. And
he received several in-court hearings addressing these matters. During these
hearings, the court rejected Cruz-Garcia’s procedural arguments but advised
him that he could submit any additional evidence to support his claims and
that all evidence would be considered. Cruz-Garcia never did so and, in fact,
never submitted proposed findings to the trial court. Eventually, the CCA
denied relief based on the trial court’s findings and conclusions and on its own
review of the record.
The Constitution does not provide any right to postconviction
proceedings, and this Court has explicitly held that a state’s procedures may
not be upset unless they are “fundamentally inadequate.”
This procedural history gives rise to a single question:
On this record, did the state habeas court violate Cruz-Garcia’s
due process rights to notice and an opportunity to be heard?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ................................................................................ i
TABLE OF AUTHORITIES ............................................................................iii
STATEMENT OF CASE ................................................................................... 1
I. Facts of the Crime ........................................................................ 1
II. Direct Appeal and Postconviction Proceedings ................. 12
REASONS FOR DENYING CERTIORARI REVIEW ............................... 13
I. Cruz-Garcia Has No Due Process Right to State Collateral
Review, and, Even Where the State Provides Such, the
Constitution Does Not Mandate the Proceedings Take Any
Particular Form. ........................................................................ 13
II. In Any Event, Cruz-Garcia Has Not Established that the
State Habeas Proceedings Were Fundamentally
Inadequate to Protect His Substantive Rights ................... 16
A. The state habeas proceedings ....................................... 16
B. The proceedings in this case were
more than adequate. ...................................................... 23
CONCLUSION ................................................................................................. 30
iii
TABLE OF AUTHORITIES
Cases
Armstead v. Scott, 37 F.3d 202 (5th Cir. 1994) ................................................ 25
Beazley v. Johnson, 242 F.3d 248 (5th Cir. 2001) ............................................ 14
Blue v. Thaler, 665 F.3d 647 (5th Cir. 2011) .................................................... 26
Brady v. Maryland, 373 U.S. 83 (1963) ……………………………………………17
Clark v. Johnson, 202 F.3d 760 (5th Cir. 2000) ......................................... 25, 28
Dist. Attorney’s Office for Third Judicial Dist. v. Osborne,
557 U.S. 52 (2009) .................................................................................... 15, 30
Estelle v. McGuire, 502 U.S. 62 (1991) ............................................................. 14
Evitts v. Lucy, 469 U.S. 387 (1985) ............................................................. 15, 25
Ex parte Empey, 757 S.W.2d 771 (Tex. Crim. App. 1988) ………………… 27, 28
Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998) ………………………..28
Ford v. Wainwright, 477 U.S 399 (1986) .............................................. 15, 23, 25
Goldberg v. Kelly, 397 U.S. 254 (1970) ....................................................... 25, 29
Henderson v. Cockrell, 333 F.3d 592 (5th Cir. 2003) ....................................... 14
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) ………………………………………25
Morrow v. Dretke, 367 F.3d 309 (5th Cir. 2004) ............................................... 25
Murray v. Girratano, 492 U.S. 1 (1989) ............................................................ 14
Panetti v. Quarterman, 551 U.S. 930 (2007) .............................................. 15, 25
Pennsylvania v. Finley, 481 U.S. 551 (1989) .................................................... 14
Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007) ....................................... 26
State v. Guerrero, 400 S.W.3d 576 (Tex. Crim. App. 2013) ……………………..28
iv
Strong v. Johnson, 495 F.3d 134 (4th Cir. 2007) ............................................. 26
Tanberg v. Sholtis, 401 F.3d 1151 (10th Cir. 2005) ......................................... 26
Tercero v. Stephens, 738 F.3d 141 (5th Cir. 2013) ........................................... 26
Townsend v. Sain, 372 U.S. 292 (1963) ...................................................... 23, 25
Valdez v. Cockrell, 274 F.3d 941 (5th Cir. 2001) .............................................. 25
Wheat v. Johnson, 238 F.3d 357 (5th Cir. 2001) .............................................. 14
Statutes and Rules
Texas Code of Criminal Procedure Article 11.071 ............................... 24, 28, 29
Sup. Ct. R. 10 ………………………………………………………………………… 13
1
BRIEF IN OPPPOSITION
Petitioner Obel Cruz-Garcia was found guilty of and sentenced to death
for the kidnapping and murder of six-year-old Angelo Garcia, the son of Diana
Garcia whom Cruz-Garcia and an accomplice sexually assaulted. His
conviction and sentence were affirmed on direct appeal, and his state
application for writ of habeas corpus was denied. Garcia now argues that the
state habeas court’s denial violated the principle of fundamental fairness
embodied in the Due Process Clause. However, claims challenging state
habeas procedures are not reviewable because these proceedings are not
constitutionally required. Regardless, based on the record of the habeas
proceedings, Cruz-Garcia was not deprived of due process.
STATEMENT OF THE CASE
I. Facts of the Crime
The CCA summarized the facts of the crime as follows:
On September 30, 1992, two masked intruders broke into an
apartment shared by Arturo Rodriguez, Diana Garcia, and Diana
Garcia’s six-year-old son, Angelo Garcia, Jr. Diana was awakened
by a loud sound coming from her living room. Her husband,
Arturo, walked toward the sound but was quickly met by a large
male wearing a mask and pointing a gun at him. Both Diana and
Arturo testified that this man spoke to them, but neither could
understand him because he spoke in an unknown accent.
Additionally, they both described the man as “black” or dark-
complexioned. When the initial responding officer made his report
about this case, he described Diana’s and Arturo’s assailants as
“black” but testified at trial that he meant “black Hispanics.”
2
The masked man instructed Diana to turn face down on her bed
and then began beating Arturo. After Diana complied with the
instruction to lie face down, a second man entered the room
holding a gun, and one of the intruders tied up Diana. Arturo was
tied up with the cord from his alarm clock, a rag was put in his
mouth, and he was beaten on his head with a gun while he knelt
by his bed. At this point, Angelo, who had been sleeping on a pallet
by the bed, began crying out for Diana.
The second intruder then started touching Diana on her buttocks,
turned her over so that she was lying on her back, and put a
blanket over her face. The second intruder removed Diana’s
panties and sexually assaulted her. Diana testified that the
assailant ejaculated during the sexual assault. Arturo testified
that he saw an unknown male sexually assaulting his wife before
the other assailant placed a pillowcase over his head. All the
while, Angelo was present in the room and crying.
Once the sexual assault ended, the two men ransacked the
bedroom and then left. Arturo testified that his passport and a
bracelet were missing after the incident. After the men left, Diana
got up and untied Arturo’s hands. Diana and Arturo then noticed
that Angelo was missing and walked into their living room to look
for him. Upon entering their living room, they saw the first, tall,
masked intruder returning to the apartment. When Diana and
Arturo saw this man, they turned and walked back into their
bedroom, and the masked man turned and left the apartment.
After both intruders left, Diana and Arturo left their apartment
and began looking for Angelo. They called out his name at their
own apartment complex and across the street but received no
response. At some point, Diana’s neighbor called 911. Houston
Police Department (“HPD”) responded to a 911 call claiming that
a child had been kidnapped from Diana and Arturo’s apartment.
Upon arriving, officers found Arturo injured and Diana distraught.
An inspection of the apartment revealed the bedroom to be in
disarray, with drawers pulled out of dressers and items of clothing
strewn about. Officers found a cigar in the living room, although
at trial both Diana and Arturo testified that neither one of them
smoked.
3
Police officers interviewed Diana and Arturo on-scene and asked
them whether they sold drugs. Both were untruthful. Diana was
transported to a hospital for a sexual assault examination. A
Sexual Assault Nurse Examiner (SANE), Gloria Kologinczok,
testified that she performed a sexual assault examination on
Diana Garcia during the early morning hours of October 1 and
produced a sexual assault kit containing evidence from Diana.
On October 1, 1992, police interviewed Diana at the police station,
and she came clean about her and Arturo’s drug dealing. She also
told police that [Cruz-Garcia] was her drug supplier until recently,
when she and Arturo had told [Cruz-Garcia] that they no longer
wanted to sell drugs for him. Officer U.P. Hernandez interviewed
both Diana and Arturo. Arturo testified that, when he spoke to
police, he never lied about his drug dealing, but Officer Hernandez
testified to the contrary.
During their investigation, officers also met with or interviewed
Leonardo German (friend of Diana and Arturo), Rogelio Rendon,
Carmelo Martinez Santana (also known as “Rudy;” friend of [Cruz-
Garcia]), and Angelita Rodriguez ([Cruz-Garcia’s] wife).
At trial, Diana and Arturo both testified about their relationship
with [Cruz-Garcia]. Arturo and Diana sold cocaine for [Cruz-
Garcia] for several years when all three lived in Houston. They
also associated socially with [Cruz-Garcia] and his wife, Angelita,
on several occasions. Arturo testified that he considered his
relationship with [Cruz-Garcia] to be a friendly one, and Diana
testified that Angelita was her friend. A few months prior to
Angelo’s kidnapping, Arturo and Diana told [Cruz-Garcia] they no
longer wanted to sell drugs for him, and Arturo testified that this
upset [Cruz-Garcia].
Angelita also testified about her relationship with [Cruz-Garcia].
Her cousin, Rudy, was good friends with [Cruz-Garcia], and the
three of them moved to Houston from Puerto Rico around the same
time in 1989. Angelita and [Cruz-Garcia] shared an apartment in
Humble, a suburb of Houston. Angelita testified that [Cruz-
Garcia] smoked both cigarettes and cigars and that he owned a
gold Oldsmobile and a blue Thunderbird. Angelita met Diana and
4
Arturo through [Cruz-Garcia] because of [Cruz-Garcia’s] drug
dealing.
Angelita learned of Angelo’s disappearance on the news on the
afternoon of October 1. Upon hearing of his disappearance, she
immediately approached [Cruz-Garcia] in their apartment and
told him that Angelo had gone missing. Angelita told [Cruz-
Garcia] she wanted to go see Diana and Arturo, but he refused to
go with her. Angelita testified that [Cruz-Garcia] seemed calm and
“normal” upon hearing the news that Angelo had disappeared,
despite the fact that Diana and Arturo were their friends and their
child had gone missing. [Cruz-Garcia] then told Angelita that he
was leaving Houston for Puerto Rico immediately and began to
pack his bags.
Angelita testified that, due to his sudden departure from Houston,
[Cruz-Garcia] missed a scheduled court date. He had never missed
one prior to that. After [Cruz-Garcia] left for Puerto Rico, Angelita
could not afford to continue paying rent in their Humble
apartment, so she moved to a hotel in Pasadena. Some time later,
Angelita went to the Dominican Republic, where [Cruz-Garcia]
was then living, to ask him for a divorce. [Cruz-Garcia] refused.
Angelita then asked him about Angelo, and [Cruz-Garcia]
confessed to her that he had killed him.
Rudy, Angelita’s cousin, testified that he met [Cruz-Garcia] when
they were both living in Puerto Rico, prior to their initial move to
Houston. Both are originally from the Dominican Republic. Rudy
and [Cruz-Garcia] moved to Houston to sell drugs in the late 1980s,
and Angelita followed them shortly thereafter. Rudy and [Cruz-
Garcia] worked together selling drugs until Rudy’s drug addiction
became too severe for him to continue dealing. At that point,
[Cruz-Garcia] took over the operation. Rudy testified that [Cruz-
Garcia] was a violent, angry, and controlling person. Once when
[Cruz-Garcia] thought Rudy was stealing drug customers from
him, he assaulted Rudy and threatened to kill him.
Rudy testified that [Cruz-Garcia] owned three cars: a blue
Chevrolet, a blue Thunderbird, and a gold Oldsmobile. [Cruz-
Garcia] routinely lent the Oldsmobile to Bienviendo Melo (also
known as “Charlie”). On September 30, [Cruz-Garcia] drove his
5
blue Chevrolet to Diana and Arturo’s apartment to collect his
drugs and money. Rudy and Rogelio Aviles (also known as
“Roger”) went with him. Rudy described Roger as tall, strongly
built, and dark-complexioned. [Cruz-Garcia] parked his car
behind Diana and Arturo’s apartment complex and instructed
Rudy to sit in the passenger seat while he and Roger went inside.
[Cruz-Garcia] took a .45 caliber pistol with him, Roger carried a
knife, and both [Cruz-Garcia] and Roger wore black stocking
masks.
Approximately thirty minutes after [Cruz-Garcia] and Roger left
the car, [Cruz-Garcia] came back with a child in his arms. Rudy
recognized the child as Angelo Garcia, Jr. When Rudy asked why
[Cruz-Garcia] was carrying Angelo, [Cruz-Garcia] responded, “He
saw me.”
Rudy tried to persuade [Cruz-Garcia] to retrieve Diana to care for
Angelo. [Cruz-Garcia] left the car for the apartment again, leaving
Angelo with Rudy, but returned with Roger instead of Diana.
When [Cruz-Garcia] returned, he told Rudy to sit in the back seat
with Angelo. [Cruz-Garcia] maintained a grip on his gun while he
drove Rudy, Angelo, and Roger to Baytown. [Cruz-Garcia] stopped
the car not far into Baytown, and all three men exited the car.
Rudy testified that by this time he was very scared and had grown
convinced [Cruz-Garcia] was going to kill Angelo.
[Cruz-Garcia] told Roger, “You already know what you have to do.”
Rudy testified that he walked away from the two other men and
then became ill, defecating nearby. As Rudy was walking away,
he heard Angelo scream. Rudy returned to the car where he saw
Angelo with blood on his chest. [Cruz-Garcia] ordered Rudy and
Roger to put Angelo’s body in the backseat, and they complied.
[Cruz-Garcia] drove them to another location in Baytown near a
waterway and ordered Rudy and Roger to put Angelo’s body in the
water. The two men once again complied. Rudy and Roger piled
rocks on top of Angelo’s body to make it sink. Rudy testified that
[Cruz-Garcia] had his gun with him the entire time. The three
men then left Baytown and drove to Pasadena. On their way there,
several of their tires blew out.
6
They managed to make it to a hotel where [Cruz-Garcia] made
Rudy and Roger swear they would never tell what had happened
to Angelo. At the hotel, the men attempted to make other
transportation arrangements by calling Charlie. [Cruz-Garcia],
Rudy, and Roger eventually went to Charlie’s apartment in a taxi,
where they retrieved [Cruz-Garcia’s] car. There, Rudy saw Charlie
and his girlfriend, Linda.
Linda also testified about [Cruz-Garcia’s] phone call to Charlie. In
the early morning hours of October 1, 1992, Linda and Charlie
were staying together at Linda’s mother’s house when they
received several phone calls from [Cruz-Garcia]. Linda and
Charlie were both familiar with [Cruz-Garcia] because Charlie
sold drugs for [Cruz-Garcia]. Linda described [Cruz-Garcia] as
controlling.
When Charlie finally answered the phone around 2:00 a.m., [Cruz-
Garcia] asked Charlie to pick him up. Charlie declined.
Approximately thirty minutes later, [Cruz-Garcia] and Rudy
appeared at Charlie’s house to borrow a car. Linda testified that,
while Rudy appeared nervous, [Cruz-Garcia] did not. After
October 1, 1992, Linda never saw [Cruz-Garcia] again. Prior to
that date, [Cruz-Garcia] visited Linda and Charlie’s residence
several times a week.
Later in the day on October 1, Rudy and [Cruz-Garcia] took [Cruz-
Garcia’s] blue Chevrolet to Rendon’s Garage to have the tires
changed. At this time, [Cruz-Garcia] told Rudy that [Cruz-Garcia]
was leaving Houston. Rudy helped [Cruz-Garcia] wash Angelo’s
blood and vomit from the interior of the car. [Cruz-Garcia] then
sold the car and used the money to buy a plane ticket to Puerto
Rico. Rudy drove [Cruz-Garcia] to the airport the following day,
October 2, 1992, and he did not see [Cruz-Garcia] again until they
both returned to Houston for [Cruz-Garcia’s] capital murder trial.
Agent William Ebersole testified that he interviewed Rudy while
Rudy was in a federal prison in Pennsylvania. Agent Ebersole
obtained a statement from Rudy about what happened the night
of September 30, 1992, and about [Cruz-Garcia’s] involvement in
Angelo’s murder.
7
On cross-examination of both Rudy and Agent Ebersole, defense
counsel highlighted inconsistencies between Rudy’s trial
testimony and the statement he gave to Agent Ebersole while
imprisoned. Rudy omitted from his story to Agent Ebersole any
reference to him defecating while Angelo was being killed. Rudy
told Agent Ebersole that he was familiar with the Baytown area
because he had sold drugs there prior to September 30, 1992, but
Rudy denied this at trial. Rudy told Agent Ebersole that Roger
took Angelo to the rear of the driver’s side of the car and that is
where he killed him while [Cruz-Garcia] stood near the front of the
car, but this did not exactly comport with Rudy’s trial testimony.
While Rudy testified at trial that [Cruz-Garcia] threatened him
and ordered him not to tell anyone what the three of them did to
Angelo, Agent Ebersole’s notes reflected that the three merely
made a pact to keep their secret. Additionally, Rudy’s recollection
of how long [Cruz-Garcia] and Roger were in Diana and Arturo’s
apartment and how many tires blew out on their car once they left
Baytown was inconsistent with the recollection given to Agent
Ebersole.
During their investigation into Angelo’s kidnapping, local police
officials learned that Diana and Arturo had rented an apartment
in Humble for [Cruz-Garcia] and his wife. When HPD officers
went to that apartment to look for [Cruz-Garcia] on October 5,
1992, they found it vacated. Additionally, officers learned that,
prior to it being vacated, the apartment had been occupied by two
“black Hispanic males” and one light-skinned Hispanic female.
One of the men who had occupied the Humble apartment had been
seen wearing a shirt from Rendon’s Garage with the name Luis on
it. Upon learning this, officers went to Rendon’s Garage where
they met with Juanita Rendon, the wife of the owner, Rogelio
Rendon. Rogelio was initially unavailable to speak with officers.
Officer Hernandez returned to the garage and observed Rogelio
driving up in a blue Thunderbird. Rogelio was accompanied by a
man who identified himself as Candido Lebron. While Officer
Hernandez was speaking with Rogelio, Angelita and Rudy came to
the garage to claim the blue Thunderbird.
8
The next day, on October 6, HPD received a tip that a Hispanic
male was seen at the Humble apartment. HPD officers returned
to the apartment, knocked on the door, and were met by an
individual who again identified himself as Candido Lebron. They
later learned his true name was Rogelio Aviles (also known as
“Roger,” the third adult male with [Cruz-Garcia] and Rudy on the
night of September 30, 1992). HPD officers continued to look for
[Cruz-Garcia] in Houston and surrounding cities but were unable
to locate him.
FBI Agent Eric Johnson testified that he became involved in the
current case in 1992 because it involved the kidnapping of a child
under the age of twelve. The FBI worked in conjunction with local
authorities in an attempt to locate Angelo. [Cruz-Garcia] was a
suspect early on in the FBI’s investigation. During his
investigation, Agent Johnson learned that on October 8, 1992,
[Cruz-Garcia] was set to appear in a Harris County district court
on an unrelated felony drug case.
Agent Johnson testified from court documents that reflected that
[Cruz-Garcia] was scheduled to appear in court on October 8, 1992,
that [Cruz-Garcia] failed to appear in court on that date, and that
his bond was subsequently forfeited for this failure to appear.
On the afternoon of November 4, 1992, a fisherman walking the
banks of Goose Creek in Baytown discovered Angelo’s body.
Because of a cold front that had blown through the area, eight to
ten feet of beach that was normally submerged was exposed; this
is where Angelo’s body was found. Baytown Police Corporal Randy
Rhodes was dispatched to the waterway.
Upon arriving, he observed the skeletal remains of a small child
on the sandy part of the beach. The skeleton was mostly intact,
but the skull had disconnected from the torso, and some rib bones
and vertebrae had been disturbed. From the same area, officers
also recovered a pair of shorts with a Batman logo and a t-shirt.
Diana testified that Angelo had been wearing Batman pajamas on
the night he was kidnapped.
An autopsy was performed on Angelo’s remains in 1992 by Dr.
Vladimir Parungao. Dr. Parungao was no longer employed by the
9
Harris County Institute of Forensic Sciences at the time of trial, so
Harris County Deputy Chief Medical Examiner, Dr. Dwayne Wolf,
testified at trial. After reviewing photographs and Angelo’s
autopsy report, Dr. Wolf testified that Angelo’s manner of death
was homicide and that his body appeared in a state that was
consistent with it having been submerged for several weeks. The
fact that Angelo was abducted, that his body was found in an
advanced state of decomposition, and that his body was found
many miles from his home all contributed to Dr. Wolf’s opinion
that Angelo was murdered.
Dr. Wolf also examined the clothing found near Angelo’s body and
testified that any blood that may have been on the clothing would
have washed away after the clothing was submerged in water. On
cross-examination, Dr. Wolf confirmed that he did not find any
injuries to any of Angelo’s bones and that he could not rule out
drowning as a cause of death.
DNA evidence was also presented at trial. Sergeant Eric Mehl
worked in the cold case division of HPD in 2007 when this case was
reopened. As part of his investigation, Sergeant Mehl submitted
several pieces of evidence to a private forensics lab called Orchid
Cellmark for DNA testing. Sergeant Mehl sent the cigar that was
collected from the crime scene, Diana’s sexual assault kit, and a
cutting from the pair of panties Diana was wearing the night of
her sexual assault. The cutting from Diana’s panties was a cutting
from the crotch area. From that cutting, Orchid Cellmark cut
away a small piece on which they performed their testing. Orchid
Cellmark developed an unidentified male DNA profile from these
pieces of evidence.
Matt Quartaro, a supervisor of forensics at Orchid Cellmark,
testified about the DNA testing his lab performed after it received
evidence from Sergeant Mehl. After testing the cigar, Orchid
Cellmark was able to generate a full DNA profile of an unknown
male. This profile was compared to the profiles of Diana and
Arturo, but it did not match either of them.
Orchid Cellmark also tested vaginal swabs from the sexual assault
kit. The vaginal swabs contained a mixture of epithelial cells and
sperm cells. The epithelial cells belonged to Diana, and the sperm
10
cells belonged to more than one male individual. Arturo could not
be excluded as a contributor to the sperm-cell fraction from the
vaginal swab. Additionally, the unknown male whose DNA was
found on the cigar could not be excluded as a contributor to the
sperm-cell fraction from the vaginal swab.
When Orchid Cellmark tested the portion of the panties they had
received, they once again found Diana’s epithelial cells and a
sperm-cell fraction with more than one contributor. The unknown
male from the cigar DNA sample could not be excluded as a major
contributor to the sperm sample in the panties. Additionally,
Arturo could not be excluded as a contributor to that sperm
sample.
Later, in December 2007, Orchid Cellmark received DNA samples
from Roger, Charlie, Leonardo German, and Rudy to compare to
the DNA profiles they had obtained from the cigar, sexual assault
kit, and panties. Roger, Charlie, and Leonardo were all excluded
as contributors to any of the DNA evidence found on the cigar,
sexual assault kit, and panties.
The first sample received from Rudy was not sufficient to compare
to the DNA profiles Orchid Cellmark had obtained. In June of
2011, Orchid Cellmark received a second DNA sample from Rudy
and at that time was able to exclude him as a contributor to any of
the DNA on the evidence that Orchid Cellmark tested.
In early 2008, Sergeant Mehl learned that [Cruz-Garcia] was in
Puerto Rico. Sergeant Mehl, working in conjunction with the FBI
in Puerto Rico, obtained a DNA sample from [Cruz-Garcia] on May
23, 2008. He then sent that DNA sample to Orchid Cellmark. On
May 28, 2008, Orchid Cellmark received a sample of [Cruz-
Garcia’s] DNA. The sample arrived in a sealed envelope with
[Cruz-Garcia’s] name written on it.
[Cruz-Garcia’s] DNA matched the profile that had been obtained
from the cigar found in Diana and Arturo’s apartment in
September of 1992. Additionally, [Cruz-Garcia’s] DNA could not
be excluded as a contributor to the unknown male profile found on
the vaginal swabs from Diana’s sexual assault kit. Lastly, [Cruz-
Garcia’s] DNA matched the unknown male profile that was the
11
major contributor to the DNA in the sperm-cell fraction from
Diana's panties.
Quartaro also discussed the quality-control procedures in place at
Orchid Cellmark to prevent contamination of the evidence they
receive and the profiles they obtain. Quartaro acknowledged that
Orchid Cellmark cannot implement or monitor quality-control
procedures at other labs. But on redirect, Quartaro testified that
none of the evidence that he received appeared to be contaminated.
All the evidence appeared to be in good condition; it was packaged
separately to prevent cross[-]contamination, and all containers
were sealed. Quartaro also testified that it would be impossible to
contaminate a sample in such a way that [Cruz-Garcia’s] DNA
would appear on that sample unless the contaminator had some of
[Cruz-Garcia’s] DNA.
Moreover, Quartaro testified that cross-contamination between
the cigar and the sexual assault kit or panties was not possible
because [Cruz-Garcia’s] epithelial cells were found on the cigar,
while [Cruz-Garcia’s] sperm cells were found on the swabs from
the sexual assault kit and the panties. Additionally, no epithelial
cells belonging to [Cruz-Garcia] were found in the samples from
the sexual assault kit or panties.
The Houston Police Department Crime Lab was also involved in
DNA analysis in the instant case. Courtney Head, an analyst from
the crime lab, testified that in February 2010 she received a known
DNA sample from [Cruz-Garcia]. This sample was collected
separately from the sample collected and sent to Orchid Cellmark
in 2008. From this sample, Head performed her own DNA
extraction to create a DNA profile. She then compared that profile
to the profiles obtained by Orchid Cellmark from the cigar, the
sexual assault kit, and the panties.
[Cruz-Garcia] could not be excluded as a contributor to the male
DNA profile found on the cigar and the vaginal swabs from the
sexual assault kit. Additionally, [Cruz-Garcia] could not be
excluded as the major contributor to a male DNA profile in the
sperm-cell fraction obtained from Diana’s panties. Head testified
that, to a reasonable degree of scientific certainty, [Cruz-Garcia]
was the source of the DNA profile on the cigar and the panties.
12
Pursuant to his cold case investigation, Sergeant Mehl interviewed
Diana, Arturo, Linda Hernandez, and Angelita Rodriguez. A
Spanish-speaking officer interviewed Rudy. Sergeant Mehl
attempted to locate Charlie for an interview but was unable to find
him. At the conclusion of his investigation, Sergeant Mehl filed
charges against [Cruz-Garcia]. [Cruz-Garcia] was later tried and
convicted of capital murder and sentenced to death.
Cruz-Garcia v. State, No. AP–77,025, 2015 WL 6528727, *1–*7 (Tex. Crim.
App.) (footnotes omitted), cert. denied, 136 S. Ct. 1518 (2015).
II. Direct Appeal and Postconviction Proceedings
Having been indicted on charges of capital murder, Cruz-Garcia was
convicted and sentenced to death for the murder of Angelo Garcia while in the
course of committing and attempting to commit kidnapping. 5 SHCR 1203–
04.1 Cruz-Garcia’s conviction and sentence were upheld on direct appeal, and
this Court denied certiorari review. Cruz-Garcia v. State, 2015 WL 6528727.
During the pendency of his direct appeal, Cruz-Garcia filed an
application for state writ of habeas corpus. 1 SHCR 2–193. After considering
the application, the exhibits, the answer filed by the State, and the affidavits
of trial counsel, the trial court issued findings of fact and conclusions of law
recommending that relief be denied. 5 SHCR 1035–85. Based on its own
review of the record, the CCA adopted the court’s findings and conclusions and
1 “SHCR” refers to the state habeas clerk’s record, preceded by volume number
and followed by page number(s). “SHRR” refer to the state habeas reporter’s record–
–the transcribed court proceedings occurring during state habeas review––preceded
by volume number and followed by page number(s).
13
denied relief. Ex parte Cruz-Garcia, WR–85,051–02, 2017 WL 4947132 (Tex.
Crim. App. Nov. 1, 2017)2; Petition, Appendix A.
REASONS FOR DENYING CERTIORARI REVIEW
The question Cruz-Garcia presents for review is unworthy of the Court’s
attention. Supreme Court Rule 10 provides that review on writ of certiorari is
not a matter of right, but of jurisdictional discretion, and will be granted only
for “compelling reasons.” Cruz-Garcia advances no such special or important
reason in this case, and none exists. Cruz-Garcia’s claims were thoroughly
adjudicated by the state court in compliance with statutory requirements, and
the CCA properly denied relief. Cruz-Garcia presents no compelling reason to
reconsider that decision.
I. Cruz-Garcia Has No Due Process Right to State Collateral
Review, and, Even Where the State Provides Such, the
Constitution Does Not Mandate the Proceedings Take Any
Particular Form.
Cruz-Garcia argues that the state court’s failure to follow mandatory
statutory procedures for adjudicating habeas corpus claims violated his right
to due process. See generally, Petition. But there is no right to such
proceedings in the first instance. As Justice O’Connor has stated:
2 Cruz-Garcia filed a petition for writ of mandamus, WR–85,051-01, but the CCA
denied him leave to file the petition. Id. n.1. Cruz-Garcia also filed a second state
habeas application, WR–85,501-03, which the CCA dismissed for abuse of the writ.
Id. at *2.
14
A post-conviction proceeding is not part of the criminal process
itself, but is instead a civil action designed to overturn a
presumptively valid criminal judgment. Nothing in the
Constitution requires the States to provide such proceedings . . .
nor does it seem [] that that Constitution requires the States to
follow any particular federal role model in these proceedings.
Murray v. Girratano, 492 U.S. 1, 13 (1989) (O’Connor, J., concurring); see also
Pennsylvania v. Finley, 481 U.S. 551, 557 (1989) (states have no obligation to
provide collateral review of convictions). “State collateral proceedings are not
constitutionally required as an adjunct to the state criminal proceedings and
serve a different and more limited purpose than either the trial or appeal.”
Giarratano, 492 U.S. at 10. Indeed, this Court has explained that “[t]he
additional safeguards imposed by the Eighth Amendment at the trial stage of
a capital case are . . . sufficient to assure the reliability of the process by which
the death penalty is imposed.” Id.
But more importantly, where a State allows for postconviction
proceedings, “the Federal Constitution [does not] dictate[] the exact form such
assistance must assume.” Finley, 481 U.S. at 555, 557, 559; cf. Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991) (“federal habeas corpus relief does not lie
for errors of state law”) (internal quotation marks and citation omitted);
Henderson v. Cockrell, 333 F.3d 592, 606 (5th Cir. 2003) (infirmities in state
habeas proceedings do not state a claim for federal habeas relief); Beazley v.
Johnson, 242 F.3d 248, 271 (5th Cir. 2001); Wheat v. Johnson, 238 F.3d 357,
15
361 (5th Cir. 2001). Indeed, as the Court has explained, “Federal courts may
upset a State’s postconviction procedures only if they are fundamentally
inadequate to vindicate the substantive rights provided.” Dist. Attorney’s
Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 69 (2009).
In support of his claim that he was not provided adequate due process
protections, Cruz-Garcia cites to cases such as Evitts v. Lucy,3 Ford v.
Wainwright,4 and Panetti v. Quarterman, 551 U.S. 930 (2007). But Evitts
pertained to effective assistance of counsel on direct appeal, and Ford and
Panetti involved competency to be executed. Those cases are quite different
from the instant because the rights addressed in them are firmly grounded in
the Constitution, and any measures taken by the States to allow vindication of
them will necessarily implicate due process. State habeas review is a separate
matter altogether and one that does not invoke the same concerns. For these
reasons, Cruz-Garcia is not entitled to certiorari review.
3 469 U.S. 387 (1985).
4 477 U.S. 399 (1986).
16
II. In Any Event, Cruz-Garcia Has Not Established that the State
Habeas Proceedings Were Fundamentally Inadequate to Protect
His Substantive Rights.
Cruz-Garcia argues that his due process rights were violated for the
these reasons:
The conflicted habeas court proceeded to deny Mr. Cruz-Garcia
procedural due process in the following ways: 1) it failed [to]
provide notice of the factual issues in dispute, 2) it deprived Mr.
Cruz-Garcia of any opportunity to present evidence in support of
the allegations he raised, 3) it deprived him of a neutral fact-finder
who was not also a material fact witness, and 4) it denied him the
ability to confront adverse evidence. The habeas court failed to
designate issues of controverted, material facts to be resolved, in
violation of the Texas habeas statute. The habeas court instead
converted a prior order for trial counsel to file affidavits into an
order designating issues with no notice to Mr. Cruz-Garcia and
without giving him the opportunity to respond with evidence of his
own or confront adverse witnesses. The habeas court then resolved
Mr. Cruz-Garcia’s claims by relying on her personal recollection
and the proffered trial counsel affidavits attached to the State’s
proposed FFCL, which Mr. Cruz-Garcia did not get to confront.
Compounding these due process errors, the habeas court refused
to recuse itself—and Texas courts steadfastly condoned this
refusal—from the adjudication of this case, including the claim
that the judge’s ex parte communication with a juror was
improper, and, in fact, proceeded to recommend that relief be
denied based on the court’s own “personal recollection” of its
alleged impropriety.
Petition at 19; see also id. at 27–35.
A. The state habeas proceedings
Cruz-Garcia filed his state habeas application––raising fourteen
claims––on August 28, 2015. 1 SHCR 2–192. It was supported by thirty-six
exhibits including twenty-five affidavits––four from experts/attorneys and
17
twenty-one from lay-witnesses. 2 SHCR 201–3 SHCR 545. On June 10, 2015,
a hearing was held in the trial court at which Cruz-Garcia’s state habeas
counsel addressed a motion for Brady5 material “that might have been
contained in work product that was withheld from that review of the D.A.’s
file.” 1 SHRR 3–4. The State responded that it believed it had turned over all
its evidence but would not object to anything else Cruz-Garcia considered to be
Brady material. 1 SHRR 4–5. The trial court stated that it would turn over to
Cruz-Garcia additional evidence––and described that evidence––although it
believed the evidence had already been provided to him. 1 SHRR 5–12.
On January 21, 2016, Cruz-Garcia filed a motion to recuse the trial judge
from presiding over his state habeas proceedings claiming that the judge had
an ex parte communication with a juror. 3 SHCR 565–82. The trial judge
submitted an order declining to recuse herself voluntarily. 3 SHCR 614. Cruz-
Garcia then filed a motion for reconsideration of the motion for recusal.
3 SHCR 616–30. The administrative judge denied the motion stating that the
trial judge “conducted the conference with the juror on the approval of both
parties and had the conferences held on record.” 3 SHCR 653.
Soon after, the State filed its answer. 3 SHCR 654–746. On May 2, 2016,
Cruz-Garcia filed a subsequent application for writ of habeas corpus supported
5 Brady v. Maryland, 373 U.S. 83 (1963).
18
by six exhibits. 4 SHCR 762–806. He then filed a motion for leave to file a
petition for writ of mandamus and a petition for writ of mandamus. 4 SHCR
811–47. Cruz-Garcia was denied leave to file the petition and a motion to stay
pending outcome of the petition on July 27, 2016. Ex parte Cruz-Garcia, No.
WR–85,501-01 at Cover.
Cruz-Garcia then filed a motion for an order designating factual issues.
4 SHCR 869–931. On August 8, 2016, the State filed a proposed order for the
filing of affidavits for Cruz-Garcia’s trial counsel to address numerous claims
of ineffective assistance of counsel. 4 SHCR 932–34. On that same date, the
trial court held a hearing on the State’s proposed order. 2 SHRR 3–21. The
State requested, per standard procedure, for the court to order trial counsel to
submit affidavits addressing Cruz-Garcia’s ineffective-assistance-of-counsel
claims. 2 SHRR 4. Cruz-Garcia’s counsel asked the court to deny the State’s
motion and first enter an order designating factual issues, because “the issues
to be resolved go beyond the State’s proposed order.” 2 SHRR 5–7. However,
the court granted the State’s order for the filing of affidavits. 2 SHCR 7. After
additional objection by Cruz-Garcia, there was discussion on the record about
how the designated issues would be resolved. The State contended that Cruz-
Garcia was asking for a hearing on the issues; Cruz-Garcia responded as
follows:
19
Well, just to be clear, Your Honor, the statute allows broad
discretion for the Court in terms of what a hearing means. It may
not be live testimony, but there does need to be a hearing for there
to receipt of any evidence in the case. So, even if trial counsel were
to submit affidavits, those would not be in evidence without a
formal hearing for admission of the affidavits as evidence.
2 SHRR 13. The State contested Cruz-Garcia’s interpretation of the law
regarding receipt of evidence. 2 SHRR 14–15. The trial court then stated that
it would not hold a hearing on the proposed order designating issues, but asked
the State if it was “okay with what [Cruz-Garcia] presented designating the
issues?” 2 SHRR 15. The State responded that it was not, and then Cruz-
Garcia replied that attorney affidavits would not adequately address all the
issues presented in his application. 2 SHRR 15–16. The trial court asserted
that Cruz-Garcia could submit additional affidavits if he wanted, which the
court would consider, and Cruz-Garcia’s counsel indicated she would do that.
2 SHRR 16. Ultimately, the trial court held that it would order trial counsel
to submit affidavits, and then if Cruz-Garcia believed other factual issues were
not addressed, the parties could discuss that later. 2 SHRR 18–19. The court
held that it would not sign Cruz-Garcia’s proposed order designating issues
because the order requested an evidentiary hearing. 2 SHRR 19.
Trial counsel then submitted their affidavits. 4 SHCR 942–48; 5 SHCR
951–54. The lead investigator also filed an affidavit. 5 SHCR 957–59. The
State then filed a motion requesting the trial court set a date for the filing of
20
proposed findings of fact, which the trial court granted. 5 SHCR 962–64. Cruz-
Garcia objected to this motion and then filed a motion to reconsider “Improper
Order for Parties to File Proposed Findings of Fact,” arguing that the trial
court acted improperly in setting a date for the filing of proposed findings.
5 SHCR 967–90. The matter was addressed at a hearing on December 22,
2016. 3 SHRR. Cruz-Garcia contended that the court was circumventing state
procedure by not first designating factual issues and not reconvening to
consider factual issues not addressed by trial counsel’s affidavits. 3 SHRR 3–
5. Cruz-Garcia also argued that it was premature to submit proposed findings
and conclusions. 3 SHRR 5. The State disagreed, and the trial court said that
the order it previously signed designated controverted factual issues. 3 SHRR
8. Cruz-Garcia replied that there had been no designation of claims other than
those pertaining to ineffective assistance of trial counsel. 3 SHRR 8. The trial
court then denied Cruz-Garcia’s motions. 3 SHRR 9. The court also said that
the State had submitted its proposed findings, the court would determine
whether it agreed with the findings or draft its own, and Cruz-Garcia would
have until December 27th to submit his own findings or anything else for the
court to consider. 3 SHRR 9. Cruz-Garcia’s counsel replied that the court’s
order was “an [in]ordinate short amount of time to be permitted to draft
proposed findings,” and she also cited scheduling conflicts. 3 SHRR 9. The
trial court responded that Cruz-Garcia’s counsel had engaged in delay tactics
21
by not allowing trial counsel to see their files to draft their affidavits. 3 SHRR
9–10. The court stated:
But the fact is that you’ve had plenty of time to prepare your
proposed findings of fact. I understand the State has a lot of things
to do, too, and they have prepared them. And your schedule does
not set what the Court’s schedule is. So, I understand that you
may have other cases. We all have other cases we have to do, but
you are going to need to - - you’ve had these affidavits since the
end of November. And I asked that you come in earlier for us to
resolve some of these other issues before, and it was outside of your
scheduling and you couldn’t make it. So, we set today’s date for
coming to be heard. And I received something last night via my
phone that was filed at 4:30 last night for me to consider. I did
read through that, because I work when I need to make a decision
on something. And that’s what you will need to do if you want me
to consider it for next week. You don’t have to. You don’t have to
file anything if you don’t want to.
I am going to make my findings of fact and they will be based on
my recollection and the record. So, it’s not encumbered on you that
you have to file anything. They are my findings. So, it may be that
I don’t adopt anything you put in. But you’ve had plenty of time to
do so and you’ve had plenty of time to formulate them.
3 SHRR 10–11. Cruz-Garcia’s counsel responded that she was not engaging in
delay tactics; rather, the court was “skipping steps” by not revisiting the order
designating issues and not giving Cruz-Garcia the opportunity to present
additional evidence. 3 SHRR 11–12. The court replied:
Okay. Well, you don’t have to file something and wait for a ruling
before you go to the next step. I told you -- I related that this was
-- I wanted anybody that wanted to file proposed findings to file
them at this time. And you could have had something prepared if
you wanted to. But you didn’t want to, so I don’t have anything in
the file. So, as I have told you, again if you want to submit
22
something for me to consider, then please do so by Tuesday, the
27th. All right?
3 SHRR 12. Cruz-Garcia’s counsel responded: “Okay.” 3 SHRR 12.
Cruz-Garcia then filed a renewed objection to the order, a motion to
present evidence in support of his claims, and an objection to the State’s
evidence, namely the affidavits by trial counsel and the investigator. 5 SHCR
1012–34. The State submitted proposed findings and conclusions, which the
trial court adopted. 5 SHCR 1035–85. Cruz-Garcia then filed a “Motion to
Reconsider Order Adopting the State’s Proposed Findings Wholesale and
Transmitting Same to CCA.” 5 SHCR 1106–22. In this motion, Cruz-Garcia
leveled the same complaints raised previously about designating proposed
factual issues––which the court did when it signed the State’s proposed order–
–and not being permitted to present additional evidence, even though Cruz-
Garcia submitted a slew of exhibits and affidavits with his application.
5 SHCR 1112–14. Cruz-Garcia also generally contested the trial court’s
findings. 5 SHCR 1114–18. On February 1, 2017, the trial court held oral
argument on the matter, presided over by a different judge. 4 SHRR
(argument on motion to reconsider). During this argument, Cruz-Garcia’s
counsel conceded that (1) Cruz-Garcia was not entitled to present any further
evidence after the writ application was filed; (2) that the court had “various
options of means by which it can receive evidence to resolve controverted fact
23
issues”; and (3) a live evidentiary hearing is not required under Texas law.
4 SHRR 17–18. The court ruled that it lacked jurisdiction to consider the
matter because the case had already been transferred to the CCA; thus, Cruz-
Garcia’s remedy would be to file objections with the CCA. 4 SHRR 21.
Cruz-Garcia filed objections to the trial court’s findings and a request for
a remand with the CCA on May 5, 2017. Ex parte Cruz-Garcia, No. WR–
85,051-02 at Objections. On November 1, 2017, the CCA adopted the trial
courts findings and, based on those findings and its own review, denied habeas
relief. The CCA also dismissed Cruz-Garcia’s subsequent application for abuse
of the writ. Petition, Appendix A.
B. The proceedings in this case were more than adequate.
As Cruz-Garcia mentions repeatedly in his petition, the “[f]undamental
requisite of due process of law is the opportunity to be heard.” Ford, 477 U.S
at 413 (internal quotation marks and citation omitted); see also Townsend v.
Sain, 372 U.S. 292, 312 (1963) (availability of habeas corpus “presupposes the
opportunity to be heard, to argue and present evidence”). This record
establishes––in no uncertain terms––Cruz-Garcia had just that. Represented
by the Office of Capital and Forensic Writs, a state public defender statutorily
mandated to provide Texas death row inmates with full-service postconviction
representation, he filed a state habeas application raising fourteen claims
supported by thirty-six exhibits. Cruz-Garcia filed the application on August
24
28, 2015, more than two years after the CCA appointed him counsel, and this
time span included a motion for a ninety-day extension of time to file the
application, which the trial court granted. SHCR 2, 550–51, 557. Clearly, he
had sufficient time to investigate and present any evidence with his
application. He had three in-court hearings to address various procedural
matters and one oral argument pertaining to his objections. The State filed an
answer and submitted affidavits from trial counsel. Cruz-Garcia objected
because he thought state procedures were not being followed to the letter, but
he ultimately conceded that he was not entitled to present additional evidence
after he filed his application, that the state court had discretionary means by
which to receive evidence, and that he was not automatically entitled to a live
evidentiary hearing. Moreover, the state court noted that Cruz-Garcia himself
was partly responsible for any deficiencies because of dilatory tactics.
Despite these facts, Cruz-Garcia continues to argue that his state court
proceedings were inadequate, and the court should have allowed even more.
Cruz-Garcia asserts that the state habeas court’s failure to adhere to Texas
Code of Criminal Procedure, Article 11.071, Section 9, deprived him of due
process. But he fails to provide any precedent specifically holding that these
purported deviations render an applicant’s state habeas proceeding
constitutionally and fundamentally inadequate under the Fourteenth
Amendment. Instead, Cruz-Garcia extrapolates his due process argument
25
from this Court’s holdings in Townsend, Goldberg v. Kelly,6 Ford, Evitts, and
Panetti, petition at 21–31, none of which pertain to the adequacies of state
habeas proceedings. As set out above, the record very clearly establishes that
Cruz-Garcia had both the opportunity to be heard and to present/develop
evidence. That was the purpose of his habeas application and accompanying
exhibits. Beyond that, he was not entitled to anything else, as he essentially
conceded. And in four in-court hearings, the court considered his various
arguments pertaining to procedures.
It is well-established that an opportunity to be heard in state court does
not imply a live evidentiary hearing. Townsend, 372 U.S. at 319 n.9
(discussing federal evidentiary hearings pre-AEDPA), overruled in part,
Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) (superseded by AEDPA). Indeed,
the Fifth Circuit has “repeatedly found that a paper hearing is sufficient to
afford a petitioner a full and fair hearing on the factual issues underlying
petitioner’s claims.” Clark v. Johnson, 202 F.3d 760, 755 (5th Cir. 2000); see
also Morrow v. Dretke, 367 F.3d 309, 315 (5th Cir. 2004) (citing Valdez v.
Cockrell, 274 F.3d 941, 950–51 (5th Cir. 2001)); Armstead v. Scott, 37 F.3d 202,
208 (5th Cir. 1994) (finding that a hearing by affidavit was adequate to allow
presumption of correctness to attach to the state court’s factual findings).
6 397 U.S. 254 (1970).
26
Other circuits agree. See Strong v. Johnson, 495 F.3d 134, 139 (4th Cir. 2007)
(“[C]redibility determinations may sometimes be made on the written record
without live testimony. Specifically, there is no prohibition against a court
making credibility determinations based on competing affidavits in certain
circumstances.”); Tanberg v. Sholtis, 401 F.3d 1151, 1161 (10th Cir. 2005) (a
trial court’s “determination of credibility of affidavits [will not be disturbed on
appeal] unless that determination is without support in the record, deviated
from the appropriate legal standard, or followed a plainly erroneous reading of
the record”).
Moreover, “‘states retain discretion to set gateways to full consideration
and to define the manner in which habeas petitioners may develop their
claims.’” Tercero v. Stephens, 738 F.3d 141, 148 (5th Cir. 2013) (quoting Blue
v. Thaler, 665 F.3d 647, 657 (5th Cir. 2011)). And “petitioners are guaranteed
only the ‘opportunity to be heard.’” Id. (quoting Rivera v. Quarterman, 505
F.3d 349, 358 (5th Cir. 2007)). Thus, a “state court’s decision is only deprived
‘of deference normally due’ where the state court has failed to provide
‘[petitioner] with the opportunity to develop his claims[.]’” Id. (quoting Rivera,
505 F.3d at 358. Because Cruz-Garcia had this opportunity, he fails to
demonstrate a constitutional violation.
Regarding Cruz-Garcia’s individual complaints about the state court’s
failure to abide by Texas law, they too lack merit because he is incorrect and
27
misconstrues the statute. For instance, Cruz-Garcia complains repeatedly
that the state court failed to designate factual issues and provide him notice of
those issues. This is not true. At the hearing on August 8, 2016, the trial court
signed the State’s proposed order designating issues and ordered trial counsel
to submit affidavits. 2 SHRR 7 (“Okay. Well, I am going to grant the State’s
proposed order. I am going to sign that for filing affidavits.”), 18 (“I’m just
going with the order that I’ve seen.”), 19–20 (“And if you [Cruz-Garcia] want to
submit further affidavits based on what you feel is not covered, you may do
that. Or if you need an order for me to sign or order someone to provide an
affidavit to you, I will do that. But at this time, I don’t feel that there is
anything further that I need to do on designating issues before the Court.”).
What Cruz-Garcia is truly contesting is the trial court’s refusal to designate
issues other than ineffective assistance of counsel as controverted and
previously unresolved. But the court was not obligated to do so.
Moreover, Cruz-Garcia is under the misapprehension that the affidavits
and other evidence he submitted with his habeas application are not actually
“evidence” under the statute and that the statute required an in-court hearing
for submission of evidence. Petition at 27–31. He relies on state law holding
that “sworn allegations are not alone sufficient proof.” Id. at 30 (citing Ex parte
Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988)). But Empey referred to
sworn allegations by the applicant, not affidavits from fact witnesses. 757
28
S.W.2d at 775; see also Ex parte Evans, 964 S.W.2d 643, 648 (Tex. Crim. App.
1998) (“The only item in the record regarding these claims are Applicant’s
sworn allegations. Even sworn allegations are not alone sufficient proof.”)
(citing Empey). Affidavits submitted with a habeas application are most
certainly “evidence” as contemplated by the law. See State v. Guerrero, 400
S.W.3d 576, 583 (Tex. Crim. App. 2013) (in a habeas proceeding, “reviewing
courts will defer to a trial judge’s factual findings that are supported by the
record even when no witnesses testify and all of
the evidence is submitted through affidavits, depositions, or interrogatories.”)
(emphasis added).
And although a hearing is a requirement under the law, the statute does
not dictate the form of the hearing. See Tex. Code Crim. Proc. art. 11.071,
Section 9(a) & (b). Here, for example, the trial court stated: “I generally do any
type of hearing by affidavits when it is presented to me in this manner.”
2 SHRR 16. This type of hearing has been upheld by the Fifth Circuit as
satisfying the demands of the AEDPA. Clark, 202 F.3d at 766 (“[W]e have
repeatedly found that a paper hearing is sufficient to afford a petitioner a full
and fair hearing on the factual issues underlying the petitioner’s claims,
especially where, as here, the trial court and the state habeas court were one
in the same.”). Cruz-Garcia is under the impression that a subsequent hearing
for the submission of evidence was required under state law, when in fact the
29
statute says nothing of the kind. Importantly, “due process does not require a
particular order of proof or mode of offering evidence.” Kelly, 397 U.S. at 269.
As for Cruz-Garcia’s claim that he was denied a neutral fact-finder
because the trial judge interacted with a juror and, consequently, was a fact
witness, that issue was properly disposed by the state court. As shown, the
judge’s interaction was approved by both the State and defense and was on the
record. Cruz-Garcia’s allegation of bias is simply conclusory.
Finally, Cruz-Garcia complains that the habeas court “relied upon her
own recollections” and that he was “denied the opportunity to challenge [] the
personal recollections or the affidavits.” Petition at 32. However, Article
11.071, Section 9(a) explicitly permits trial judges to resolve controverted,
previously unresolved facts “by affidavits, depositions, interrogatories, and
hearings, as well as using personal recollection.” And the statute does not
require that a habeas applicant be permitted to rebut affidavits––i.e., the
affidavits from trial counsel––or a judge’s personal recollection. In this case,
it appears that Cruz-Garcia’s counsel was waiting for a particular hearing or
order from the court to do so when in fact (1) the judge was not required to set
another hearing and (2) the judge specifically informed Cruz-Garcia to submit
any additional evidence and it would be considered. Cruz-Garcia’s failure to
comply rests with him, not the court. In short, the proceeding in this case was
30
the very antithesis of a procedure that is “fundamentally inadequate to
vindicate the substantive rights provided.” Osborne, 557 U.S. at 69.
CONCLUSION
For all these reasons, the Court should deny Cruz-Garcia certiorari
review.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
ADRIENNE MCFARLAND
Deputy Attorney General
for Criminal Justice
EDWARD L. MARSHALL
Chief, Criminal Appeals Division
_/s/ Erich Dryden_______________
*ERICH DRYDEN
Assistant Attorney General
Criminal Appeals Division
Texas Bar No. 24008786
Counsel of Record
P.O. Box 12548, Capitol Station
Austin, Texas 78711
Tel: (512) 936-1600
Fax: (512) 320-8132
e-mail address:
ATTORNEYS FOR RESPONDENT