# Villarreal v. Davis

> District Court, S.D. Texas · March 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10673238

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** March 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10673238

## How later opinions describe it (automated extraction)

- stating being “merely wrong” or in “clear error” will not suffice federal relief under AEDPA
- holding that there is a rebuttable presumption that the federal claim was adjudicated on the merits when the state court addresses some claims, but not others, in its opinion

## Opinion text

UNITED STATES DISTRICT COURT March 30, 2020
SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
HOUSTON DIVISION

JOSE MANUEL VILLARREAL, §
TDCJ # 01976024, §
§
Petitioner, §
§
VS. § CIVIL ACTION NO. 4:19-0650
§
LORIE DAVIS, §
§
Respondent. §

MEMORANDUM OPINION AND ORDER
State inmate Jose Manuel Villarreal, who proceeds pro se, is incarcerated in the
Texas Department of Criminal Justice–Correctional Institutions Division (“TDCJ”).
Villarreal filed a petition for a federal writ of habeas corpus seeking relief from a state
conviction (Dkt. 1). Respondent Lorie Davis filed a motion for summary judgment (Dkt.
6) and a copy of the state court records (Dkt. 7), and Villarreal has responded (Dkt. 12).
Villarreal’s claims are ripe for decision. Having now considered the petition, briefing, all
matters of record, and the applicable legal authorities, the Court determines that the
petition should be denied for the reasons that follow.
I. BACKGROUND
A. Procedural Background

Villarreal pleaded guilty to aggravated robbery in the 9th District Court for
Montgomery County, Hon. Kelly W. Case presiding, Case No. 13-06-065569-CR. After
he pleaded true to two enhancements, the court sentenced him to life imprisonment (Dkt.
7-3, at 415-16).1
On February 3, 2016, the appellate court affirmed Villarreal’s conviction.
Villarreal v. State, No. 09-14-00503-CR, 2016 WL 416670 (Tex. App.–Beaumont, Feb.

3, 2016, pet. ref’d); Dkt. 7-17. The Texas Court of Criminal Appeals refused his petition
for discretionary review on July 27, 2016 (Dkt. 7-1). Villarreal did not petition the
United States Supreme Court for a writ of certiorari.
On July 15, 2017, Villarreal executed a state habeas application (Dkt. 7-31, at 7-
25) (WR-88,029-01). The trial court entered findings of fact and conclusions of law

recommending denial of habeas relief (Dkt. 7-39, at 51-56). On April 11, 2018, the
Texas Court of Criminal Appeals denied the application without written order (Dkt. 7-
25). Villarreal claims that he did not receive notification of the denial until January 24,
2019 (Dkt. 1, at 4, 9).
On February 20, 2019, Villarreal executed his petition for a writ of habeas corpus

in these federal proceedings (Dkt. 1).
B. Factual Background
Villarreal was represented at trial by Jose Mata, with Brian Burns serving as co-
counsel. Before trial, counsel filed a motion to suppress evidence obtained as a result of
a traffic stop, which the court denied after a hearing (Dkt. 7-7, at 90-92). The appellate

court summarized the facts as follows:

1 Throughout this memorandum opinion, the Court’s citations to specific pages in the
record refer to the pagination of docket entries on the Court’s electronic case-filing (“ECF”)
system.
At the suppression hearing, Houston police officer Carlos Cantu testified
that on the day of the offense, he was patrolling an area known for burglary
of vehicles. Cantu saw a darkly tinted Dodge Charger drive into the Twin
Peaks parking lot, circle the lot while passing by empty parking spaces, and
never attempt to either park or conduct business. He testified that this type
of behavior is consistent with that of burglary suspects. Cantu followed the
Charger as it left Twin Peaks and entered a Fuddrucker’s parking lot, where
the driver of the Charger engaged in the same behavior as in the Twin
Peaks lot. The Charger left Fuddrucker’s and parked at a nearby
Whataburger. Three men got out of the Charger and went inside
Whataburger. Cantu decided that the men must have been looking for a
place to eat, so he left Whataburger and returned to Twin Peaks.

Shortly thereafter, Cantu saw the Charger return to Twin Peaks and park.
A GMC Yukon subsequently pulled into the lot, circled around, and parked
near the Charger. The Charger’s driver approached the Yukon to speak
with the Yukon’s driver and then returned to the Charger. A few minutes
later, Cantu saw a Mercedes enter the parking lot and park near the
Charger. Cantu testified that he later learned that Villarreal was driving the
Mercedes. The three men from the Charger, the driver of the Yukon, and
Villarreal looked inside the trunk of the Mercedes and then entered the
Mercedes. Cantu testified that he believed the men were involved in a drug
transaction. When the men exited the Mercedes and returned to their
respective vehicles, all three cars left Twin Peaks and Cantu followed the
Mercedes.

Cantu saw Villarreal fail to signal when changing lanes. Because Cantu was
in an unmarked unit, he contacted an officer in a marked patrol vehicle to
conduct a traffic stop. Officer Keith Mountain testified that he responded to
Cantu’s call and when he approached the Mercedes, Mountain saw
Villarreal turn without signaling. Mountain initiated a traffic stop for failure
to signal. When Mountain ran Villarreal’s driver’s license, he discovered
open warrants for traffic violations. Mountain placed Villarreal in
handcuffs and advised Villarreal that he was being detained for an open
warrant. He did not give any Miranda warnings.

When Cantu arrived at the scene, he asked Villarreal if the Mercedes
contained anything illegal, and Villarreal admitted that the Mercedes
contained a small amount of cocaine and showed Cantu where the cocaine
was located. Cantu testified that Villarreal was nervous, sweating, and
breathing heavily. Cantu subsequently opened the trunk and observed a
bag of diamonds. When Cantu asked Villarreal about the diamonds,
Villarreal said, “Just take me to the station, and I’ll tell you everything.” At
no time did Cantu read Villarreal Miranda warnings, nor did he see anyone
else give the warnings. According to Mountain, the Mercedes had to be
towed, so an inventory was required per police department policy.

Montgomery County Detective Chad May testified that he was
investigating the aggravated robbery of a jewelry store when the Houston
Police Department contacted him about Villarreal. He learned that
Villarreal was in possession of items stolen from the jewelry store and
wanted to speak with May. After May gave Villarreal Miranda warnings,
Villarreal waived his rights and agreed to speak with May. Villarreal
discussed the details of the jewelry store robbery with May. Villarreal told
May that on the day of the traffic stop, he met with the four men from the
Yukon and the Charger to show them that he had not sold the jewelry. At
the conclusion of the hearing, the trial court denied Villarreal’s motion to
suppress.

Villarreal, 2016 WL 416670, at *1–2.
After the trial court denied his motion to suppress, Villarreal pleaded guilty. At
the plea proceeding, the court found Villarreal competent (Dkt. 7-7 at 94). The court
advised Villarreal that the range of punishment on his offense, aggravated robbery, was
from “5 to 99 years and/or life in prison,” and Villarreal stated that he understood (id. at
94). The court then admonished Villarreal that his plea would waive his right to a jury
trial:
THE COURT: You have the right to a jury trial. In fact, I think
earlier this week we had lined up a jury and ready to
go to trial. But the decision was made after, I guess,
counsel for the defense discussed with the prosecution
how to proceed, to solely hear the motion to suppress.
But you have the right to jury trial. I want to make
sure you understand by initialing off to the side,
signing the back of this admonitions form that you are
waiving your right to a jury trial. Do you understand
that? Basically, you’re telling me you do not want to
have a jury trial?

[VILLARREAL]: Yes, Your Honor.
THE COURT: I know you’re not waiving your right to appeal.

[VILLARREAL]: So I have the right to appeal the suppression hearing?

THE COURT: Yes. Yes. You do have the right to appeal the
suppression hearing and whatever punishment I reach
after I hear all the evidence.

(Id. at 94-95). The court then clarified that, based on the two enhancements, the
minimum punishment was 25 years in prison, and that the parties had no agreement as to
the sentence:
THE COURT: Okay. So based on those enhancement[s], the
punishment range, the minimum goes up to 25. The
maximum stays the same. No agreement. You
understand everything up to this point, Mr. Villarreal?

[VILLARREAL]: Yes, Your Honor. The only thing I’m not clear on—
and I’m in no way expressing any complaint against
my attorneys. I think they did a good job for me today
and the last couple days in the suppression hearing. So
I’m not trying to complain against them. But what I
am not clear on is if I have the right or how certain of
the enhancement paragraphs.

(Id. at 96-97). Villarreal then questioned whether his two “non-aggravated” federal drug
offenses were sufficient for enhancement:
[VILLARREAL]: I’ve been sentenced twice to federal commitment. I
have questions regarding the drug offenses, non-
aggravated, nothing to do with any violence. I don’t
know if automatically I get enhanced or not. Maybe
that is the case. I’m just stating Your Honor I do not
wish to go back on the agreement.

(Id. at 98). The court then asked Villarreal, “So your question is: Are those sufficient to
enhance you under Texas state law; is that what I’m understanding?” and Villarreal
answered, “Yes, Your Honor” (id. at 99-100). Villarreal reiterated, “Your Honor, this—
it’s not a question. I do not wish to go back on the agreement. I just want to have it on
record that I don’t know because they are not aggravated offenses” (id. at 100). The

court then explained that Villarreal’s prior offenses were sufficient for enhancement:
THE COURT: They don’t have to be aggravated. All they have to be
is a felony offense in the state of Texas. If the federal
offense is—can be compared to or found to be
similar—I guess is the best way to say it—to a state
felony offense, those will be considered enhanceable
offenses. That’s the way the case law reads.
Aggravating factors, 3G, none of that stuff matters as
far as enhancement.

MR. MATA: That comes into play for punishment purposes, but not
enhancement.

THE COURT: Yeah, it absolutely doesn’t come in guilt/innocence.
You’re absolutely, correct. All right. So have we
answered your questions?

[VILLARREAL]: Yes, Your Honor.

(Id.). The court then took his plea:
THE COURT: . . . To the charge of aggravated robbery, first-degree
felony, how do you plea? Are you guilty or not guilty?

[VILLARREAL]: I plead guilty.

THE COURT: Subject to and without waiving your appeal and with
regard to the issues in the motion to suppress that your
defense attorneys raised, are you pleading guilty
because you are, in fact, guilty and for no other
reason? Nobody is forcing you, holding a gun to your
head, forcing you to do this, correct?

[VILLARREAL]: Nobody is forcing me to plead guilty.

(Id. at 101). Villarreal pleaded true to both enhancements (id. at 102). The court found
him guilty of aggravated robbery. At the punishment phase, the court sentenced him to
life in prison.
On direct appeal, Villarreal challenged the trial court’s denial of his motion to

suppress. He argued that he had been under arrest when Houston police officers
questioned him, and therefore the cocaine, diamonds, and his interview with Detective
May all should have been excluded as the product of an illegally obtained statement.
The court rejected his arguments, holding that the evidence was not required to be
suppressed because, “[a]lthough Villarreal gave unwarned statements to the Houston

officers, the record does not indicate that Villarreal made such statements in response to
coercion.” Villarreal, 2016 WL 416670, at *2. The court further held that “Detective
May’s subsequent administration of Miranda warnings to Villarreal removed the
conditions that precluded admission of Villarreal’s previous statement.” Id. The court
overruled all of Villarreal’s issues and affirmed the judgment against him.

In state habeas proceedings, Villarreal raised claims that his trial counsel was
ineffective and failed to consult adequately with him before trial; that his guilty plea was
not knowing and voluntary; that the trial court’s rulings denying dismissal of his attorney
and his motion to suppress, as well as the court’s failure to rule on his right to self-
representation, violated his constitutional rights; that the cumulative errors at trial

violated his constitutional rights and rendered his guilty plea involuntary; and that his
appellate counsel was constitutionally ineffective (Dkt. 7-31, at 7-25).
Villarreal provided an affidavit in state habeas proceedings stating that he had
conflicts with Mata, his trial counsel, and that Mata was not sufficiently available to him:
During the 17 months before my trial date of October 6, 2014, the attorney-
client relationship between Mr. Mata and I became conflictive and
unproductive. The biggest problem was Mr. [Mata’s] lack of
communication with me. Despite my many attempts, both by letter and
phone, to have Mr. Mata give me information about my case, I was
unsuccessful. Mr. Mata did not answer 1 of my many letters and would not
return the calls my mother and sister made on my behalf.

(Dkt. 7-38, at 66) (emphasis original). He also maintained that Mata had visited him only
three times before trial, for a total of approximately one hour:
In the 17 months that Mr. Mata was appointed to represent me, he came to
see me 3 times at the county jail. His first visit in late July–early August,
lasted less than 10 minutes and was limited to him introducing himself and
telling me that the State had a “slam dunk” case again[st] me. Mr.
[Mata’s] second visit, months later, lasted about 15 minutes and was
limited to me answering Mr. [Mata’s] questions as to why another
attorn[e]y had [come] to visit me in the county jail and answering his
questions about if I belonged to any prison gang (I [don’t]). On neither of
these 2 visits did Mr. Mata have the case file with him nor was he prepared
and willing to answer any of my many questions.

Mr. [Mata’s] 3rd and final visit came in late September of 2014 and lasted
about 30 no more than 40 minutes. On this visit Mr. Mata had Brian C.
Burns with him. The purpose of this visit was to go over the events of the
day of my arrest. I used this opportunity to stress to Mr. Mata that my
vehicle had been searched without a warrant and that the Miranda rights
had not been given to me by the arresting officers prior to me being
questioned. No other subject was discussed during this visit.

A1l together the 3 visits, scattered throughout a period of 17 months, total
about 1 hour. When compared to the great amount of effort the State put
into my prosecution, as evidenced by the States discovery file that
consist[ed] of 43 discs, plus 602 pages of documents and over 25 witnesses,
1 hour of pretrial consultation, simply can not be considered to have been
enough time to inform me of all the relevant facts and circumstances about
my case.

(Id. at 66-67) (emphasis original). Villarreal averred that he had “diligently” brought the
pretrial preparation issue to the attention of Mata and the trial court, citing to his exhibits
attached to his state application (id. at 67). Finally, Villarreal maintained that Mata had
not informed him sufficiently of the State’s punishment-phase evidence before Villarreal
entered his guilty plea:

Because of the lack of meaningful pretrial consultation, I was never
informed by Mr. Mata of the 14 witnesses and 5 extraneous offenses that
the State used again[st] me during the sentencing phase. Had I been warned
about the 14 witnesses and 5 extraneous offenses to be used again[st] me,
before I plead[ed] guilty, I would have never agreed to plead guilty.

(Id. at 67).2
The state habeas court directed Mata and Burns to file affidavits responding to
Villarreal’s claims. Mata’s affidavit stated that, before trial began, Villarreal had agreed
that he would plead guilty if the court denied the motion to suppress:
To the best of my recollection, the district attorney on the case conveyed an
offer of fifty years incarceration with a plea of true to the deadly weapon.
Applicant rightfully rejected the plea bargain offer. Co-counsel and I
commenced preparing for a jury trial. On the eve of a jury trial, Mr.
Villarreal expressed a willingness to have a motion to suppress the traffic
stop, search of his vehicle, and his statements. The agreement was that if
the motion to suppress was not granted, Mr. Villarreal was to plea[d] guilty
to the indictment and have Judge Kelly Case [assess] punishment.

(Dkt. 7-39, at 1). Counsel averred that he then attempted to suppress Villarreal’s
statements, as well as the cocaine and the diamonds:
During the motion to suppress hearing, we argued that Mr. Villarreal was
under arrest and not free to leave once he was arrested for traffic warrants
and handcuffed by the Houston Police Department officers after the traffic
stop. Therefore, Mr. Villarreal’s unwarned statements about the cocaine

2 Villarreal also presented the state habeas court with an affidavit from his sister stating
that Villarreal did not have a good relationship with Mata at the time of trial, that he tried to
remove Mata from the case, that Mata would not return her calls, and that Villarreal was “forced
to plead guilty because the Judge would not give him a different attorney” (id. at 64).
and diamonds were not legally obtained and therefore should have been
suppressed. Further, we argued that the unwarned admissions about the
cocaine and diamonds tainted the subsequent warned admissions to the
cocaine and diamonds.

(Id. at 2, ¶ 4). As stated above, the trial court denied the motion to suppress after a
hearing.
Mata also averred that, before the plea proceeding, he had discussed the
punishment-phase evidence with Villarreal:
I did inform Mr. Villarreal of the type of evidence that I anticipated the
State would seek to admit during the punishment phase. The State gave the
Defense numerous disclosures concerning alleged extraneous offenses.
These disclosures included alleged offense dates, incident reports, witness
names, and complainant names. I informed Mr. Villarreal that I anticipated
that the State would attempt to introduce testimony from as many witnesses
that the State could possibly get to appear at the sentencing hearing. I
informed Mr. Villarreal that either co-counsel or I would have the
opportunity to cross-examine all witnesses that the State produced. Co-
counsel and I informed Mr. Villarreal that we would attempt to discredit
any State’s witness based on any issues uncovered from our review of the
incident reports and from Mr. Villarreal’s recollection of any such
incidents.

Co-counsel and I went over all the alleged extraneous offenses for which
the State anticipated introducing evidence at sentencing. There were
numerous extraneous offenses of aggravated robberies, firearms offenses,
drug offenses, an aggravated kidnapping, an unauthorized use of motor
vehicle, and an intoxicated assault that Mr. Villarreal was on bond for when
the charged offense occurred. We allowed Mr. Villarreal the opportunity to
refute and discuss each and every listed extraneous offense disclosed by the
State. We did not recommend that Mr. Villarreal testify at the sentencing
due to the fact that he would have had to admit under oath to committing
many of the extraneous offenses.

(Id. at 1-2, ¶¶ 1-2). Mata stated that he had advised Villarreal that the punishment-phase
evidence would lead to a severe punishment, up to a life sentence, if the motion to
suppress were denied:
The pre-trial discussions and consultations with Mr. Villarreal and I
consisted of how to best address the multitude of extraneous offenses listed
in the numerous discovery responses filed with the District Clerk by the
State. There were over fourteen extraneous offenses listed including nine
aggravated robberies. Mr. Villarreal was already considered a habitual
[felon] due to a 2004 federal intent to distribute cocaine conviction and a
2006 federal conviction for intent to import marijuana. Essentially, co-
counsel and I discussed with Mr. Villarreal that if Judge Case did not
sustain the motion to suppress the punishment would be severe. By severe,
we relayed to Mr. Villarreal that we anticipated that the sentence would be
towards the higher end of the possible punishment range or possibly a
“Life” sentence in prison.

(Id. at 2, ¶ 3). Counsel recalled that Villarreal was aware that his punishment would be
severe:
Mr. Villarreal acknowledged that his punishment would likely be severe.
In fact, Mr. Villarreal acknowledged this fact with the police interrogators .
. . . In the recorded police interrogations, Mr. Villarreal acknowledged the
severity of the charge and his criminal history and he made an effort to
cooperate with the authorities to mitigate his situation. He also attempted
to have the authorities disregard or not consider his sister’s involvement in
the aggravated robbery conspiracy.

(Id.).3
The state habeas court entered findings of fact and conclusions of law
recommending denial of relief (Dkt. 7-39, at 51-56). Regarding Villarreal’s claims that
his counsel was constitutionally ineffective, the court found that the affidavits filed by
Mata and Burns were “credible” and that both attorneys were “well qualified to represent
defendants in felony criminal cases” (id. at 52, ¶¶ 6-7). The court also found that Mata

3 Co-counsel Burns filed an affidavit nearly identical to Mata’s (Dkt. 7-38, at 54-56).
Burns’ affidavit additionally cited to Villarreal’s statements on the record during the plea
proceeding that he was not complaining about his attorneys. See Dkt. 7-7, at 96-97 (transcript of
plea proceedings).
had adequately consulted with Villarreal by meeting with him “on multiple occasions
before trial” to explain the State’s evidence, “including numerous extraneous offenses”;
by giving Villarreal “the opportunity to explain or refute each of those extraneous

offenses”; by discussing with Villarreal “the general strategy for the suppression and
sentencing hearings” and providing “straightforward” counsel about “the likely lengthy
sentence that would result from [Villarreal’s] significant criminal history”; and, by
“engag[ing] in meaningful discussions with [Villarreal] in preparation for trial” (id. at 52,
¶¶ 8-11). The court noted that Villarreal had “indicated on the record at trial that he . . .

was satisfied with the quality of his trial representation” (id. at 53, ¶ 14). It also
determined that Villarreal had not shown prejudice:
The applicant has not suggested how counsel’s alleged deficiencies had any
effect on the outcome of the case.

The applicant has not explained what counsel should have done differently
in hearings, how further communication with counsel would have
benefitted the applicant’s case, or why a purportedly deteriorated attorney-
client relationship was problematic in this case.

(id. at 52, ¶¶ 12-13). The habeas court concluded that Villarreal had failed to show that
he had been denied effective assistance of counsel under Strickland v. Washington, 466
U.S. 668 (1984) (id. at 54, ¶ 2).
The habeas court also rejected Villarreal’s claim that it had failed to rule on his
requests for self-representation, which were filed before the suppression hearing and
guilty plea, finding that he had not clearly asserted the right:
The record does not show that the trial court was ever aware that the
applicant filed a request to exercise his right to self-representation.
The applicant was represented by counsel at the time he filed his letter
seeking self-representation.

The applicant never brought his request to represent himself to the trial
court’s attention.

The trial court never ruled on the applicant’s request to exercise his right of
self-representation.

The applicant did not clearly, unequivocally, and timely assert his right to
self-representation.

After filing a letter seeking to exercise his right to self-representation, the
applicant continued to accept the representation offered by Mata and Bums.

The applicant proceeded to trial and participated in suppression and
sentencing hearings with the assistance of counsel and without raising an
issue to the trial court regarding the applicant’s request for self-
representation.

The applicant voluntarily accepted representation, and therefore waived his
right to self-representation.

(Id. at 53-54, ¶¶ 21-28). The court therefore concluded that he had waived his right to
self-representation (id. at 55, ¶ 4). It further stated, “The trial court need not have
considered the applicant’s pro se motion to proceed pro se because the applicant was then
represented by counsel and was not entitled to hybrid representation” (id. ¶ 5 (citing
Texas authority)).
Additionally, the court concluded that Villarreal’s challenge to its denial of his
motion to suppress was not cognizable on habeas review because it had been rejected on
direct appeal (id. ¶ 6).
After the habeas court recommended that all habeas relief sought by Villarreal be
denied, the Texas Court of Criminal Appeals denied Villarreal’s application for habeas
relief without written order. Villarreal then filed his petition in this Court for federal
habeas relief.
II. LEGAL STANDARDS

A. Pro Se Pleadings
Federal courts do not hold pro se habeas petitions “to the same stringent and
rigorous standards as . . . pleadings filed by lawyers.” Hernandez v. Thaler, 630 F.3d
420, 426 (5th Cir. 2011) (internal quotation marks and citation omitted). “The filings of a
federal habeas petitioner who is proceeding pro se are entitled to the benefit of liberal

construction.” Id.
B. The Anti-Terrorism and Effective Death Penalty Act
This federal petition for habeas corpus relief is governed by the applicable
provisions of the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). See
Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S. 320,

335-36 (1997). Under the AEDPA, federal habeas relief based upon claims that were
adjudicated on the merits by the state courts cannot be granted unless the state court’s
decision (1) “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)
“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); Early v. Packer, 537 U.S.
3, 7-8 (2002); Cobb v. Thaler, 682 F.3d 364, 372-73 (5th Cir. 2012).
Federal courts look to the “last reasoned opinion” as the state court’s “decision.”
Salts v. Epps, 676 F.3d 468, 479 (5th Cir. 2012); see Wilson v. Sellers, 138 S. Ct. 1188,
1192 (2018). “Where a state court’s decision is unaccompanied by an explanation,” and
the lower courts did not issue a reasoned opinion, “the habeas petitioner’s burden still
must be met by showing there was no reasonable basis for the state court to deny relief.”

Harrington v. Richter, 526 U.S. 86, 98 (2011); see Johnson v. Williams, 568 U.S. 289,
293 (2013) (holding that there is a rebuttable presumption that the federal claim was
adjudicated on the merits when the state court addresses some claims, but not others, in
its opinion).
Review under the AEDPA is “highly deferential” to the state court’s decision.

Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). To merit relief under
AEDPA, a petitioner may not merely show legal error in the state court’s “decision.”
White v. Woodall, 572 U.S. 415, 419 (2014) (stating being “merely wrong” or in “clear
error” will not suffice federal relief under AEDPA). AEDPA review exists only to
“guard against extreme malfunctions in the state criminal justice systems.” Woods v.

Donald, 135 S. Ct. 1372, 1376 (2015) (internal citation and quotation marks omitted).
“[F]ocus[ing] on what a state court knew and did,” Cullen v. Pinholster, 563 U.S. 170,
182 (2011), AEDPA requires inmates to “‘show that the state court’s ruling on the claim
being presented in federal court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any possibility for fairminded

disagreement.’” Woodall, 572 U.S. at 419-20 (quoting Richter, 562 U.S. at 103). “If this
standard is difficult to meet, that is because it was meant to be.” Richter, 562 U.S. at 102.
For questions of law or mixed questions of law and fact adjudicated on the merits
in state court, this Court may grant habeas relief under 28 U.S.C. § 2254(d)(1) only if the
state court decision “was contrary to, or involved an unreasonable application of, clearly
established” Supreme Court precedent. See Kittelson v. Dretke, 426 F.3d 306, 318 (5th
Cir. 2005). Under the “contrary to” clause, this Court may afford habeas relief if the state

court “reaches a legal conclusion in direct conflict with a prior decision of the Supreme
Court or if it reaches a different conclusion than the Supreme Court on materially
indistinguishable facts.” Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)
(internal quotation marks and citations omitted). To constitute an “unreasonable
application” of clearly established federal law, the state court’s determination “must be

objectively unreasonable, not merely wrong; even clear error will not suffice.” Woods,
135 S. Ct. at 1376 (internal citation and quotation marks omitted).
On factual issues, the AEDPA precludes federal habeas relief unless the state
court’s adjudication of the merits was based on an “unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.” See 28 U.S.C.

§ 2254(d)(2); Martinez v. Caldwell, 644 F.3d 238, 241-42 (5th Cir. 2011).
C. Summary Judgment Standard in Habeas Corpus Proceedings
In ordinary civil cases, a district court considering a motion for summary
judgment is required to construe the facts of the case in the light most favorable to the
non-moving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). “As a

general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary
judgment, applies with equal force in the context of habeas corpus cases.” Clark v.
Johnson, 202 F.3d 760, 764 (5th Cir. 2000). However, AEDPA modifies summary
judgment principles in the habeas context, and Rule 56 “applies only to the extent that it
does not conflict with the habeas rules.” Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.
2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004); see
Torres v. Thaler, 395 F. App’x 101, 106 n.17 (5th Cir. 2010). “Therefore, § 2254(e)(1)—

which mandates that findings of fact made by a state court are presumed to be correct—
overrides the ordinary summary judgment rule that all disputed facts must be construed in
the light most favorable to the nonmoving party.” Smith, 311 F.3d at 668.
III. ANALYSIS
Villarreal’s federal petition raises four claims: that he was unconstitutionally

denied a ruling on his request for self-representation (Claim 2); that his guilty plea was
“unintelligently made” because his counsel failed to consult with him before trial and
failed to respond to his repeated requests for information (Claim 3); that the trial court
violated his constitutional rights when it denied his motion to suppress (Claim 4); and
that his guilty plea was involuntary because his counsel failed to raise the issue of a

warrantless vehicle search at his suppression hearing (Claim 5). See Dkt. 1. Although
Villarreal initially brought seven claims for relief, his summary judgment response
abandons three of the claims. See Dkt. 12, at 8 (abandoning Claims 1, 6, and 7).
Respondent argues that all of Villarreal’s claims are time-barred. Alternatively,
Respondent argues that his habeas claims lack merit.

A. Statute of Limitations

Respondent argues that all of Villarreal’s claims are time-barred under 28 U.S.C.
§ 2244(d)(1), which provides a one-year statute of limitations for federal habeas actions.
Villarreal concedes that his petition is late under the statute, but argues that he is entitled
to equitable tolling of the limitations period (Dkt. 12, at 3-8). He presents his sworn
declaration, dated February 3, 2019, which avers that his limitations period should be
tolled because he did not receive timely notification from the Texas Court of Appeals of

its denial on April 11, 2018:
On March 28, 2018, I was notified by the Montgomery County District
Clerk that my objections had been [received] and filed with the Trial Court.
I was also notified by the District Clerk that a supplement[ed] record,
including my objections, was being sent to the Court of Criminal Appeals
of Texas[.] [T]his was the last notification I [received] regarding my 11.07
[state habeas application].

From March 28, 2018 to January 2019, I received no notification from
either the Trial Court or the Court of Criminal Appeals concerning my
11.07 Application. On January 9, 2019 I sent the Clerk of the Court of
Criminal Appeals of Texas a letter requesting an update on the status of my
11.07 Application. On January 24, 2019, I received the [Clerk’s] response.
[T]o my [surprise], I learned that my 11.07 Application had been denied
back in April 11th of 2018!!

With this Affidavit, I solemnly swear that I did not [receive] any
notifi[cation] whatsoever . . . until the January 24th, 2019 . . . response. . .
Had I been notified back in April of 2018, I would have promptly filed my
2254 petition for a Writ of Habeas Corpus in early May of 2018.

(Dkt. 1-1, at 25-26).
Equitable tolling is available in rare and exceptional circumstances. Mathis v.
Thaler, 616 F.3d 461, 475 (5th Cir. 2010). It requires a showing that a petitioner has
been pursuing his rights diligently and that “some extraordinary circumstance” prevented
the timely filing of his habeas petition. See Holland v. Florida, 560 U.S. 631, 645
(2010); Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005).
Respondent acknowledges that the mail logs from Villarreal’s TDCJ unit in April-
June 2018 do not demonstrate that Villarreal signed for any received mail during the
period (Dkt. 6, at 9). However, Respondent opposes equitable tolling in this case,
arguing that Villarreal has not shown extraordinary circumstances or sufficient diligence.
The Court need not decide the equitable tolling issue. For the reasons stated

below, none of Villarreal’s claims warrant habeas relief.
B. Voluntary Guilty Plea
Villarreal claims that his guilty plea was involuntary, “unintelligently made,” and
the result of his trial counsel’s ineffective representation.4
A plea that is not “voluntarily and intelligently made has been obtained in

violation of due process and is void.” Matthew v. Johnson, 201 F.3d 353, 364 (5th Cir.
2000). See Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005); Hill v. Lockhart, 474 U.S. 52,
56 (1985). For a plea to be valid, the defendant must have notice of the charges against
him, must understand the constitutional protections waived, and must have access to the
advice of competent counsel. United States v. Shepherd, 880 F.3d 734, 740-41 (5th Cir.

2018); see Matthew, 201 F.3d at 365. When the defendant makes statements “that his
plea was knowing and voluntary and that he understood the rights he was waiving,” the
defendant’s statements “create a presumption that in fact the plea is valid.” United

4 See Dkt. 1, at 7 (in Claim 3, Villarreal claims that his trial counsel was constitutionally
ineffective in violation of his Sixth and Fourteenth Amendment rights because counsel failed to
“conduct any pretrial consultation” and failed to respond to his “repeated request[s] for
information,” thus rendering his guilty plea “unintelligently made”); id. at 12 (in Claim 5,
Villarreal claims that his counsel was constitutionally ineffective in violation of his Sixth and
Fourteenth Amendment rights when counsel failed to “raise the issue of the unwarranted search
of [his] vehicle” during the suppression hearing, thus rendering his guilty plea “involuntary”).
See also id. at 12 (in Claim 6, which Villarreal has now abandoned, he claimed that the
cumulative effect of multiple violations of his constitutional rights rendered his guilty plea
involuntary).
States v. Washington, 480 F.3d 309, 316 (5th Cir. 2007). On habeas review, a guilty plea
will be upheld “when it is entered knowingly, voluntarily, and intelligently—that is,
when the defendant understands the charge and its consequence.” Trotter v. Vannoy, 695

F. App’x 738, 741 (5th Cir. 2017) (citing, inter alia, Montoya v. Johnson, 226 F.3d 399,
405 (5th Cir. 2000)). “[A] plea’s validity may not be collaterally attacked merely
because the defendant made what turned out, in retrospect, to be a poor deal.”
Bradshaw, 545 U.S. at 186. Rather, a petitioner must show “either that he made the
unfavorable plea on the constitutionally defective advice of counsel or that he could not

have understood the terms of the bargain he and [the State] agreed to.” Id. (internal
citation omitted).
When an ineffective-assistance claim focuses on a plea process, courts analyze
“whether counsel’s advice was within the range of competence demanded of attorneys in
criminal cases.” Hill, 474 U.S. at 56 (internal citation and quotation marks omitted); see

Shepherd, 880 F.3d at 741. As with other claims of ineffective assistance of counsel, the
petitioner must show not only that his counsel’s performance was deficient, but also that
he was prejudiced by counsel’s performance. Id. (citing Strickland v. Washington, 466
U.S. 668, 687 (1984)). For the prejudice requirement, a petitioner must show “a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Shepherd, 880 F.3d at 743 (internal citation and
quotation marks omitted). In many guilty plea cases, the prejudice inquiry focuses on
whether counsel’s alleged errors “likely would have changed the outcome” of the
proceeding. Matthew, 201 F.3d at 363 n.14 (quoting Hill, 474 U.S. at 59).
Villarreal claims that his counsel failed to consult with him adequately before trial,
failed to respond to his repeated requests for information, and failed to raise the issue of
the vehicle search at his suppression hearing (Dkt. 1, at 7, 12). He claims that these

alleged defects rendered his plea “involuntary” and “unintelligently made” (id.).
The trial court admonished Villarreal regarding the consequences of his plea, and
Villarreal took the opportunity to ask the court questions about the enhancements (Dkt. 7-
7, at 96-101). The court informed him that, based on the two enhancements, the
punishment range was 25 years to life, and that the parties had no agreement as to the

sentence (id. at 94, 96). Villarreal stated that he understood and asked questions about
the sufficiency of the enhancements, which the court answered (id. at 96-100). Villarreal
stated during the proceeding that he was not complaining about his attorneys, that his
counsel had done a “good job” at the suppression hearing, and that he did not wish to “go
back on” the agreement with the State.5 He then pleaded guilty, stating, “Nobody is

forcing me to plead guilty” (id. at 101). The state habeas court, relying in part on trial
counsels’ affidavits, determined that Mata had adequately consulted with Villarreal
before trial, had engaged in meaningful discussions with his client, and had discussed the
strategy for the suppression proceeding and sentencing hearings (Dkt. 7-39, at 52, ¶¶ 8-
11).

5 Id. at 96-97 (“I’m in no way expressing any complaint against my attorneys. I think they
did a good job for me today and the last couple days in the suppression hearing. So I’m not
trying to complain against them. But what I am not clear on is if I have the right or how certain
of the enhancement paragraphs.”); id. at 98 (“I’m just stating Your Honor I do not wish to go
back on the agreement.”); id. at 100 (“I do not wish to go back on the agreement. I just want to
have it on record that I don’t know because they are not aggravated offenses.”).
In these proceedings, Villarreal apparently claims that his plea was not voluntary
because he did not understand the amount of evidence the State would present at the
punishment phase. He states that he “was never made aware by counsel” that the State

planned to present a total of 14 witnesses against him at the punishment phase, and that
the State could present five extraneous offenses (Dkt. 12, at 13-14). He claims that, if he
had known, he would not have pleaded guilty:
The most important factor that Petitioner took into consideration before
pleading guilty was the opportunity to receive some l[e]niency from the
Court for accepting responsibility. Had Petitioner been made aware that
after pleading guilty the State was going to present an extensive amount of
damaging evidence again[st] him, Petitioner would have been able to
understand that he gained nothing by pleading guilty. After all, what
possible leniency could Petitioner have reasonably expected to receive, had
he known the State was going to present so much evidence to paint the
worst possible picture of him to the Sentencing Court?

(Id. at 14). However, at the plea proceedings, the trial court explicitly stated that the
maximum sentence he could receive was life, and Villarreal stated that he understood
(Dkt. 7-7, at 94, 96). Moreover, the state habeas court determined that Mata had
discussed the strategy with his client “for the suppression and sentencing hearings” and
was “straightforward with [him] about the likely lengthy sentence that would result from
[his] significant criminal history” (Dkt. 7-39, at 52, ¶ 10). See id. at 2, ¶ 3 (trial
counsel’s affidavit, which the state court found credible, stated that counsel discussed
with his client that the State’s discovery responses listed over 14 extraneous offenses,
including nine aggravated robberies, and that his punishment would be severe if the
motion to suppress were denied, up to and including possible life imprisonment).
Villarreal’s assertion in these proceedings that his plea was not voluntary is
insufficient to overcome his declarations in the trial court, which are entitled to deference
and a presumption of regularity. See 28 U.S.C. § 2254; United States v. Kelly, 915 F.3d

344, 349 n.4 (5th Cir. 2019) (“Solemn declarations in open court carry a strong
presumption of verity” (internal citation and quotation marks omitted)); Washington, 480
F.3d at 316 (defendant’s statements that his plea was knowing and voluntary “create a
presumption that in fact the plea is valid”) (internal citation and quotation marks
omitted); Carter v. Collins, 918 F.2d 1198, 1202 n.4 (5th Cir. 1990) (trial court

admonishments entitled to presumption of correctness). In the face of strong record
evidence that his guilty pleas were voluntary, Villarreal has not met his burden to
demonstrate that habeas relief is warranted under § 2254(d).
Villarreal also claims that his counsel was constitutionally ineffective when he
failed to adequately consult with him and answer his inquiries. For a Strickland claim in

the context of the plea process, the Courts considers whether counsel’s advice was
“within the range of competence demanded of attorneys in criminal cases” and whether
the petitioner was prejudiced by counsel’s performance. Hill, 474 U.S. at 57; Shepherd,
880 F.3d at 741. During the plea proceedings, Villarreal represented that he understood
the counts he faced and the range of sentencing options, that he was not complaining

about his attorneys, and that he was pleading guilty because he was guilty (Dkt. 7-7, at
96-101). The state habeas court rejected Villarreal’s claim that his counsel was
constitutionally ineffective, determining that Villarreal had “not suggested how counsel’s
alleged deficiencies had any effect on the outcome of the case” and that Villarreal had
failed to show that he had been denied effective assistance of counsel under Strickland
(Dkt. 7-39, at 52, ¶ 12; id. at 54, ¶ 2). In these proceedings, Villarreal alleges no specific
facts to show that his counsel’s alleged deficiencies affected the outcome of his plea

proceeding or sentencing. See Matthew, 201 F.3d at 363 n. 14. To the extent he bases
his claim on the fact that he received a life sentence, habeas relief is not available to
attack a guilty plea that “turned out, in retrospect, to be a poor deal.” See Bradshaw, 545
U.S. at 186. Moreover, to merit habeas relief, Villarreal must show not merely that the
state court’s application of Strickland was incorrect, but that it was unreasonable. See

Richter, 562 U.S. at 105 (the combined standards of Strickland and § 2254(d) are
“doubly” deferential). Given Villarreal’s declarations in open court, trial counsel’s
affidavits, and the state habeas court’s determinations, Villarreal fails to demonstrate that
the state court’s determination was unreasonable under § 2254(d). His claim that his
counsel was constitutionally ineffective therefore will be dismissed.

C. Claims Preceding Guilty Plea
Villarreal brings claims for habeas relief based on the trial court’s failure to rule
on his request for self-representation and its denial of his motion to dismiss.6 However,

6 See Dkt. 1, at 6 (in Claim 2, Villarreal claims that the trial court violated his
constitutional rights when it failed to rule on his request for self-representation); id. at 7 (in
Claim 4, Villarreal claims that the trial court violated his constitutional rights when it denied his
motion to suppress). See Dkt. 12, at 9-12 (Claim 2); Dkt. 12, at 19-24 (Claim 4). Villarreal also
originally brought a claim about the trial court’s denial of his motion to dismiss Mata from the
case (Dkt. 1, at 6), but abandoned the claim in his summary judgment response (Dkt. 12, at 8).
the requests and motions forming the basis of his claims all preceded his plea.7 Because
Villarreal has not demonstrated that his guilty plea was involuntary, all of his claims
regarding proceedings before his plea are waived:

[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense with
which he is charged, he may not thereafter raise independent claims relating
to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea. He may only attack the voluntary and intelligent character
of the guilty plea . . .

Tollett v. Henderson, 411 U.S. 258, 267 (1973). See United States v. Samaniego, 532 F.
App’x 531, 534 (5th Cir. 2013) (“When a defendant enters a voluntary guilty plea, all
nonjurisdictional defects in the proceedings are waived, including ineffective assistance
of counsel, ‘except insofar as the ineffectiveness is alleged to have rendered the guilty
plea involuntary,’” quoting United States v. Glinsey, 209 F.3d 386, 392 (5th Cir. 2000));
Smith v. Estelle, 711 F.2d 677, 682 (5th Cir. 1983). Villarreal therefore has not shown
that he is entitled to federal habeas relief on these claims, and they will be dismissed.
D. Ineffective Assistance of Appellate Counsel
Villarreal’s petition initially brought a claim for ineffective assistance by his
appellate counsel, alleging that his counsel should have raised an issue on appeal about

7 Villarreal’s exhibits to his federal petition include multiple letters from Villarreal to
Mata, the investigator, and the judge in 2013-2014, several of which complain about Mata’s
failure to communicate with him (Dkt 1-1). The exhibits also include pro se motions filed by
Villarreal seeking to dismiss Mata, for hybrid representation, or to suppress evidence (id.).
These documents were also submitted to the state habeas court. See Dkt. 7-31, at 30 (exhibit
list). All of the documents directed to Mata, or complaining about Mata, are dated between
September 29, 2013, and August 12, 2014—at least eight weeks before Villarreal’s suppression
hearing and guilty plea on October 7-8, 2014 (Dkt. 7-6, Dkt. 7-7).
the trial court’s decision to deny Villarreal an opportunity for allocution at the
punishment phase (Dkt. 1, at 12). The state habeas court denied relief on this claim,
determining that Villarreal had “waived his right to complain about a lack of allocution”

(Dkt. 7-39, at 55, ¶8 (citing Texas authority)). It based its conclusion on findings that
Villarreal “did not object to the trial court’s failure to allow the applicant to oppose the
pronouncement of his sentence” and had “not identified what reason, if any, should have
prevented the pronouncement of his sentence” (id. at 54, ¶¶ 31-32). Respondent argues
that Villarreal’s claim in these proceedings lacks merit because it does not involve an

error of constitutional magnitude that can be raised on habeas review, among other
reasons (Dkt. 6, at 25-26)
Villarreal has abandoned his claim, and offers no argument opposing summary
judgment. See Dkt. 12, at 8 (abandoning claim). He fails to show that he is entitled to
relief under Strickland or that the state court’s determination was unreasonable. See

Richter, 562 U.S. at 105 (the combined standards of Strickland and § 2254(d) are
“doubly” deferential). His claim therefore will be dismissed.
IV. CERTIFICATE OF APPEALABILITY

Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of
appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when entering a final order that
is adverse to the petitioner.
A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “‘that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under
the controlling standard, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Miller-El, 537 U.S. at 336 (internal citation and quotation marks
omitted). Where denial of relief is based on procedural grounds, the petitioner must show
not only that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” but also that they “would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.

A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the record and the applicable law, the Court concludes
that reasonable jurists would not find its assessment of the claims debatable or wrong.
Because the petitioner does not allege facts showing that his claims could be resolved in a

different manner, a certificate of appealability will not issue in this case.
V. CONCLUSION
For the reasons stated above the Court ORDERS that:
1. Respondent’s motion for summary judgment (Dkt. 6) is GRANTED. The
petition for a writ of habeas corpus (Dkt. 1) is DISMISSED.
2. A certificate of appealability is DENIED.
The Clerk will provide a copy of this order to the parties.
SIGNED this day 30th day of March, 2020.
— 0
George C. Hanks Jr.
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10673238. Public record. Not legal advice.