Reyna v. Feazell

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSE RAUL RENYA, §

#02441776, §

Petitioner, §

§

v. § No. 3:23-cv-00213-N (BT)

§

DIRECTOR, TDCJ-CID, §

Respondent. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Jose Raul Reyna, a Texas prisoner proceeding pro se, filed a petition for a

writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 3. For the reasons below,

the Court should DENY Reyna’s habeas application.

Background

On December 8, 2015, Reyna pleaded guilty to unlawful possession of a

firearm by a felon pursuant to a plea agreement in which he agreed to deferred

adjudication requiring him to spend three years under community supervision. See

State v. Reyna, F-1518250-J (Crim. Dist. Ct. #3, Dallas County, Texas, Dec. 8,

2015). Reyna did not appeal the deferred adjudication order.

The State later moved to revoke Reyna’s community supervision, alleging

that Reyna committed two new offenses: (1) driving while intoxicated (DWI), and

(2) unlawful possession of a firearm. See ECF No. 24-1 at 56, 61. On March 27,

2020, after a contested hearing, the trial court determined the allegations to be

true and sentenced Reyna to 10 years’ imprisonment. State v. Reyna, F-1518250-

J (Crim. Dist. Ct. #3, Dallas County, Texas, Mar. 27, 2020).

Reyna appealed the judgment adjudicating guilt. Reyna v. State, 2021 WL

4932735 (Tex. App.—Dallas, Oct. 22, 2021). On October 22, 2021, the appellate

court affirmed the judgment. See id. Reyna filed a state habeas application. See

ECF No. 20-9. But the Texas Court of Criminal Appeals (CCA) denied his

application “without written order” on December 21, 2022. Ex parte Reyna, WR-

91,840-02, (Tex. Crim. App. May 21, 2022).

Reyna then filed an initial federal habeas petition on January 27, 2023, and,

in compliance with a Court order, filed an amended petition on March 28, 2023.

ECF No. 8.1 He makes the following claims:

1. He was denied effective assistance of counsel because his attorney

failed to object to the breach of the plea agreement;

2. He was denied effective assistance of appellate counsel because his

attorney failed to appeal his range of punishment;

3. The trial court erred by (a) refusing to appoint a new attorney for

Reyna after he fired and stopped paying his original counsel,

forcing him to proceed pro se or with his counsel acting in a pro

bono capacity; (b) denying Reyna the right to present evidence;

and (c) making an improper comment showing bias; and

4. Insufficient evidence supported the revocation of his community

supervision.

1 The amended petition is the operative pleading. See King v. Dogan, 31 F.3d 344,

346 (5th Cir. 1994). To the extent that Reyna raises new claims or legal arguments

in his reply brief, they are not addressed. Under the orders of the court and the

rules governing habeas actions, a petitioner cannot raise new claims in reply to the

respondent’s answer. See, e.g., Overstreet v. Davis, 2019 WL 1746294, at *3, n. 2

(N.D. Tex. Apr. 18, 2019).

ECF No. 8 at 6-7.

The State filed a response, arguing that any challenges to the deferred

adjudication order are untimely and any challenges to the judgment adjudicating

guilt are meritless. ECF No. 20. Reyna filed a reply. ECF No. 22.

Legal Standards

A. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

establishes a one-year statute of limitations for federal habeas proceedings. See

Pub. L. 104-132, 110 Stat. 1214 (1996). Under the statute, the limitations period

runs from the latest of:

(A) the date on which the judgment became final by the conclusion

of direct review or the expiration of the time for seeking direct

review;

(B) the date on which the impediment to filing an application

created by State action in violation of the Constitution or laws

of the United States is removed, if the applicant was prevented

from filing by such State action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly

recognized by the Supreme Court and made retroactively

applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of

due diligence.

28 U.S.C. § 2244(d)(1).

The time during which a properly filed application for state post-conviction

or other collateral review with respect to the pertinent judgment or claim is

pending does not count toward any period of limitation. Id. at § 2244(d)(d). But

state habeas applications filed after the expiration of the limitation period do not

toll the limitation period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).

B. Relitigation Bar

As to any timely claims that the CCA denied on the merits, Reyna must

overcome AEDPA’s relitigation bar to obtain federal relief. See, e.g., Neal v.

Vannoy, 78 F. 4th 775, 782 (5th Cir. 2023) (citations omitted). Under 28 U.S.C. §

2254(d):

(d) An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a state court shall not

be granted with respect to any claim that was adjudicated on

the merits in State court proceedings unless the adjudication of

the claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d).

“This intentionally difficult standard stops just short of imposing a complete

bar on federal court relitigation of claims already rejected in the state court

proceeding.” Isidro Ramos, III v. Dir., TDCJ-CID, 2024 WL 3614675, at *3 (W.D.

Tex. July 31, 2024) (citing Harrington v. Richter, 562 U.S. 86, 102 (2011)) (citing,

in turn, Felker v. Turpin, 518 U.S. 651, 664 (1996)).

Under the “contrary to” clause, a federal habeas court may grant the writ of

habeas corpus if the state court arrives at a conclusion opposite to that reached by

the United States Supreme Court on a question of law or if the state court decides

a case differently from the United States Supreme Court on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under

the “unreasonable application” clause, a federal court may grant a writ of habeas

corpus if the state court identifies the correct governing legal principle from the

United States Supreme Court’s decisions, but unreasonably applies that principle

to the facts of the prisoner’s case. Id.

A determination of a factual issue by a state court is presumed to be correct,

and that presumption may be overcome only by clear and convincing evidence. 28

U.S.C. § 2254(e)(1). The presumption of correctness applies to both express and

implied factual findings. Young v. Dretke, 356 F.3d 616, 629 (5th Cir. 2004).

Absent express factual findings, a federal court may imply factual findings

consistent with the state court’s disposition. Marshall v. Lonberger, 459 U.S. 422,

433 (1983).

At bottom, as long as “fairminded jurists could disagree” on the correctness

of the state court’s decision, a state court determination that a claim lacks merit

precludes federal habeas relief. Richter, 562 U.S. at 101 (citing Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). “In other words, to obtain federal habeas

relief on a claim previously adjudicated on the merits in state court, petitioner must

show that the state court’s ruling was ‘so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.’” Ramos, III, 2024 WL 3614675, at *3 (citing

Richter, 562 U.S. at 103; Bobby v. Dixon, 565 U.S. 23, 24 (2011)).

And “even if a petitioner can shoehorn his claim into one of the relitigation

bar’s exceptions, he ‘still must show, on de novo review, that he is in custody in

violation of the Constitution or laws or treaties of the United States.’” Senn v.

Lumpkin, No. 23-10661, 2024 WL 4100322, at *4 (5th Cir. Sept. 6, 2024) (citing

Langley v. Prince, 926 F.3d 145, 156 (5th Cir. 2019) (en banc)) (quoting, in turn,

Salts v. Epps, 676 F.3d 468, 480 (5th Cir. 2012); 28 U.S.C. § 2254(a)) (quotation

omitted). Part of that analysis entails asking whether the petitioner has shown that

any constitutional error had a “substantial and injurious effect or influence” on the

verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also Brown v.

Davenport, 596 U.S. 118, 134 (2022) (“Today, then, a federal court must deny relief

to a state habeas petitioner who fails to satisfy this Court’s equitable precedents or

AEDPA. But to grant relief, a court must find that the petitioner has cleared both

[Brecht and the AEDPA].”) (emphasis in original).

Analysis

1. Reyna’s ineffective assistance of counsel (IAC) claims are time-barred or

meritless.

Reyna claims that his trial counsel was ineffective for not objecting to the

breach of his plea agreement and that his appellate counsel was ineffective for not

raising the “correct issue that was reviewable.” ECF No. 8 at 6.

To succeed on an IAC claim, a petitioner must show “counsel’s

representation fell below an objective standard of reasonableness,” with

reasonableness judged under professional norms prevailing at the time counsel

rendered assistance. Strickland v. Washington, 466 U.S. 668, 688 (1984). The

standard requires the reviewing court to give great deference to counsel’s

performance, strongly presuming counsel exercised reasonable professional

judgment. Id. at 689. The right to counsel does not require errorless counsel;

instead, a criminal defendant is only entitled to reasonably effective assistance.

Murray v. Maggio, 736 F.2d 279, 281-82 (5th Cir. 1984); Boyd v. Estelle, 661 F.2d

388, 389 (5th Cir. 1981).

Additionally, a petitioner “must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Strickland, 466 U.S. at 694. The petitioner

must “affirmatively prove,” not just allege, prejudice. Id. at 693. If he fails to prove

prejudice, the court need not address counsel’s performance. Id. at 697.

And, on federal habeas review, the Court’s analysis of IAC claims is even

more deferential. When the state court has adjudicated the claim on the merits, a

federal court must review a petitioner’s claims under the “doubly deferential”

standards of both Strickland and § 2254(d). See Woods v. Etherton, 578 U.S. 113

(2016) (citing Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). “The pivotal question

is whether the state court’s application of the Strickland standard was

unreasonable. This is different from asking whether defense counsel’s

performance fell below Strickland’s standard.” Richter, 562 U.S. at 101. Federal

courts consider IAC claims mixed questions of law and fact; and so must analyze

them under the “unreasonable application” standard of 28 U.S.C. § 2254(d)(@).

Gregory v. Thaler, 601 F.3d 347, 351 (5th Cir. 2010).

A. Failure to Object to Breach of Plea Agreement in 2015

Reyna signed a plea agreement in 2015. ECF No. 20-13. He pleaded guilty to

unlawful possession of a firearm by a felon. Id.; see also ECF No. 20-5 at 2. The

offense of conviction is a violation of Texas Penal Code § 46.04(a), which is a third

degree felony that carries a punishment of 2-10 years imprisonment. Tex. Penal

Code § 46.04(e) (“An offense under Subsection (a) is a felony of the third degree.”);

Tex. Penal Code § 12.34 (“An individual adjudged guilty of a felony of the third

degree shall be punished by imprisonment in the Texas Department of Criminal

Justice for any term of not more than 10 years or less than 2 years.”). Reyna’s order

of deferred adjudication correctly reflected that the offense of conviction was a

third degree felony:

UNLAWFUL POSSESSION OF A FIREARM BY A FELON

Charging Instrument: Statute for Offense: 8 | ©...

INDICTMENT _ 46.04 Penal Code

Date of Offense:

V20U5

Degree of Offense: Plea to Offense: Findings on Deadly Weapon:

_3RD DEGREE FELONY GUILTY N/A

Terms of Plea Bargain:

3 YEARS DEFERRED PROBATION; $1,500 FINE

ECF No. 20-5 at 2.

But Reyna contends that he agreed to plead guilty to a state jail felony with

a punishment range of only 6 months to 2 years. In support of his argument, he

points to an apparent ambiguity in the plea agreement: in the section that sets forth

the punishment range, there is an “X” next to state jail felony, but there is also

another mark beside “3"¢ degree felony.”

COURT’S ADMONITIONS TO DEFENDANT

You are charged with the offense of: Lh Peve Fata bu Fela _ .

The punishment range for the offense charged is: °

[_] 1 Degree Felony, 5-99 years or Life and an optional fine not to exceed $10,000.00

[_]2"! Degree Felony, 2-20 years confinement and an optional fine not to exceed $10,000.00

ce 3" Degree Felony, 2-10 years confinement and an optional fine not to exceed $10,000.00

Dxfstate Jail Felony, 180 days — 2 years State Jail and an optional fine not to exceed $10,000.00

Dh

ECF No. 20-13 at 2.

The Court agrees with the State that, to the extent Reyna is claiming that his

attorney should have objected to the breach of the plea agreement in 2015 when

the order of deferred adjudication was entered, the claim is untimely.

In most cases—including Reyna’s—the limitations period begins to run when

the judgment becomes final after direct appeal or the time for seeking such review

has expired. 28 U.S.C. § 2244(d)(1)(A). A Texas order of deferred adjudication is a

final judgment for purposes of § 2244(d). Caldwell v. Dretke, 429 F.3d 521, 528-

29 (5th Cir. 2005). A notice of appeal must be filed within 30 days after the date

the sentence is imposed. TEX. R. APP. PROC. 26.2(a)(1).

Here, Reyna did not directly appeal the 2015 order of deferred adjudication,

so it became final for purposes of § 2244(d) on January 7, 2016—30 days after it

was entered. That means that any federal application challenging the deferred

adjudication order had to be filed by January 9, 2017.2 But Reyna did not file a

federal habeas petition until early 2023, so any challenge to the 2015 order of

deferred adjudication is untimely.3

Reyna claims that he is entitled to equitable tolling. AEDPA’s one-year

limitation period is subject to equitable tolling in “rare and exceptional cases.”

Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also Fisher v. Johnson, 174

F.3d 710, 713 (5th Cir.1999) (asserting that courts must “examine each case on its

facts to determine whether it presents sufficiently 'rare and exceptional

circumstances' to justify equitable tolling”) (quoting Davis, 158 F.3d at 811). The

Fifth Circuit has held that “[e]quitable tolling applies principally where the plaintiff

is actively misled by the defendant about the cause of action or is prevented in some

extraordinary way from asserting his rights.” Coleman v. Johnson, 184 F.3d 398,

402 (5th Cir.1999), abrogated on other grounds by Causey v. Cain, 450 F.3d 601,

605-06 (5th Cir. 2006). Additionally, “‘[e]quity is not intended for those who sleep

on their rights.’” Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999) (citation

omitted). Rather, “‘[e]quitable tolling is appropriate where, despite all due

2 January 7, 2017 was a Saturday.

3 Reyna did file a state habeas application in July 2022, but this did not toll the

federal limitations period because it was filed after the limitations period expired.

See Scott, 227 F.3d at 263.

diligence, a plaintiff is unable to discover essential information bearing on the

existence of his claim.’” Id. at 715 n. 14 (quoting Pacheco v. Rice, 966 F.2d 904, 906-

07 (5th Cir. 1992)). A petitioner bears the burden of proof to show he is entitled to

equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000).

Reyna argues that he is entitled to equitable tolling because his attorney and

the attorney for the State “actively misled” him into believing he was pleading

guilty to a state jail felony. ECF No. 22 at 1. He notes that the State agreed to drop

an enhancement for a prior aggravated robbery conviction, and he believed when

he pleaded guilty that this would result in the diminishment of his conviction from

a third-degree felony to a state jail felony. ECF No. 22 at 2. He notes the ambiguous

markings on the plea agreement itself, which he allegedly relied on in believing

that he pleaded guilty to a state jail felony, as well as the fact that the judge at the

plea hearing said that he would abide by the plea agreement. ECF No. 22 at 2.

But even accepting all of that as true, any belief Reyna had that he pleaded

guilty to a state jail felony dissipated—or should have dissipated—when the court

accepted his plea and issued its order of deferred adjudication on December 8,

2015. The order of deferred adjudication states that the offense of conviction is a

third-degree felony. ECF No. 20-5 at 2. And the judge admonished Reyna at the

plea hearing that the range of punishment for the offense was between two and ten

years imprisonment. ECF No. 24-19 at 101 (THE COURT: “In this case you were

charged by indictment with the felony offense of unlawful possession of a firearm

by a felon. The range of punishment, sir, for this offense is anywhere from two

years to ten years in the Texas Department of Criminal Justice and up to a $10,000

15 fine. . . . Do you understand, sir, exactly what you're being charged with in this

case and the range of punishment? THE DEFENDANT: Yes, sir.”). Thus, with

reasonable diligence, Reyna could have discovered the basis for his breach-of-plea-

agreement claim by early December 2015—over seven years before he filed this

action—when it was clear he pleaded guilty to a third-degree felony.

In sum, because Reyna has not shown that he acted with the requisite

diligence throughout the period that he seeks to toll, he is not entitled to equitable

tolling on an IAC claim that his attorney failed to object to the breach of the plea

agreement in 2015, and this claim—and any other claim attacking the 2015 order

of deferred adjudication—is untimely. See Smith v. Vannoy, 848 F. App’x 624,

628-29 (5th Cir. 2021) (refusing to apply equitable tolling where the petitioner

failed to show that he “acted with reasonable diligence throughout the period he

seeks to toll”) (citing Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).

B. Failure to Object to Alleged Breach of Plea Agreement in 2020

To the extent Reyna is claiming that his attorney was ineffective for not

objecting to an alleged breach of the plea agreement in 2020 during the revocation

proceedings, the claim is meritless.

First, there is no absolute right to counsel during probation revocation

hearings. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). The need for counsel at a

probation revocation proceeding is made on a case-by-case basis. Id. Counsel is

constitutionally required only if the probationer makes a colorable claim (1) that

he did not commit the alleged violations or (2) that there are justifying or

mitigating circumstances which make revocation inappropriate and these

circumstances are difficult or complex to develop or present. Id.

Reyna does not argue that there are justifying or mitigating circumstances

making revocation inappropriate. He does argue that he did not commit the alleged

violation leading to the revocation of his community supervision, but, as explained

later, that claim is meritless, or, at the least, the CCA could have found that it was.

Thus, the CCA could have reasonably concluded that Reyna was not entitled to

counsel at his revocation proceeding. And a “viable ineffective assistance of counsel

claim exists for Section 2254(d) purposes only if the Supreme Court has clearly

established that the Sixth Amendment gives rise to the assistance of counsel in

connection with the proceeding at issue.” Harrison v. Osuji, 2023 WL 8088071, at

*3 (E.D. Cal. Nov. 21, 2023) (citing Coleman v. Thompson, 501 U.S. 722, 752

(1991)).

Second, Reyna fails to show ineffectiveness even assuming he had a

constitutional right to counsel during the revocation proceedings. Reyna does not

show that any objection to the supposed breach of the plea agreement would have

had merit. To the contrary, when Reyna himself tried to make such an objection

during the revocation proceedings, the trial court rejected it, finding that, no

matter what Reyna thought the plea agreement said, he pleaded guilty to a third-

degree felony, which carries a statutory punishment of two to ten years

imprisonment. ECF No. 20-15 at 1. Reyna’s trial counsel could have reasonably

decided that it would have been futile to object to the alleged breach of the plea

agreement, and counsel need not make futile objections. See, e.g., Koch v. Puckett,

907 F.2d 524, 527 (5th Cir. 1990) (citing Murray v. Maggio, 736 F.2d 279, 283

(5th Cir. 1984) (per curiam)).

At bottom, the CCA did not unreasonably apply clearly established Supreme

Court precedent in rejecting Reyna’s claim that his trial counsel was ineffective for

not objecting to an alleged breach of the plea agreement during the revocation

proceedings, and Reyna is not entitled to relief on this claim.

C. Failure of Appellate Counsel to Appeal Range of Punishment

Reyna claims that his appellate counsel should have objected to the range of

punishment, which he contends was greater than the charge to which he pleaded

guilty. ECF No. 8 at 6.

But Reyna’s appellate counsel did make this argument, and the appellate

court found that it lacked jurisdiction over it because Reyna “did not file an appeal

challenging the range of punishment of the pled-to offense at the time community

supervision was imposed. Rather, he waited until March 17, 2020, and filed a pro

se ‘motion to withdraw guilty plea,’” and “by that time, it was too late to raise the

issue.” Reyna, 2021 WL 4932735, at *3 (citing Webb v. State, No. 05-15-00478-

CR, 2015 WL 7720469, at *1 (Tex. App.—Dallas Nov. 30, 2015, no pet.) (mem. op.,

not designated for publication) (“A defendant placed on deferred adjudication

community supervision may raise issues relating to the original plea proceeding

only in appeals taken when deferred adjudication community supervision is first

imposed.”) (citing, in turn, Manuel v. State, 994 S.W.2d 658, 661-62 (Tex. Crim.

App. 1999)). The CCA therefore did not unreasonably apply Strickland in rejecting

this claim, and Reyna is not entitled to relief on it.

2. The CCA reasonably rejected Reyna’s trial court error claims.

Reyna contends that the trial court erred during the revocation proceedings

by (1) refusing to appoint a new attorney for Reyna after he fired and stopped

paying his original counsel, forcing him to proceed pro se or with his counsel acting

in a pro bono capacity; (2) denying him the right to present evidence; and (3)

making improper comments indicating bias. ECF No. 8 at 7.

“It is well-settled in the Fifth Circuit that a federal court “[does] not sit as a

super state supreme court to review error under state law.’” Reedy v. Lumpkin,

2024 WL 3447530, at *9 (W.D. Tex. July 16, 2024) (citing Bridge v. Lynaugh, 838

F.2d 770, 772 (5th Cir. 1988)). A trial court error only justifies federal habeas relief

if it was “so extreme that it constitutes a denial of fundamental fairness under the

Due Process Clause.” Bridge, 838 F.2d at 772. To obtain federal habeas relief,

Reyna must show that the trial court’s alleged error had a “substantial and

injurious effect or influence in determining the jury’s verdict.” Fry v. Pliler, 551

U.S. 112, 121-22 (2007) (citing Brecht, 507 U.S. at 637).

A. Refusal to appoint a different attorney

Reyna claims that the trial court erred in making him proceed either pro se

or with his attorney acting in a pro bono capacity after he fired his attorney and

refused to continue paying him.

The record belies this claim. The trial court was not presented with whether

Reyna could get a new attorney because Reyna withdrew his motion to dismiss

counsel. See ECF No. 24-6 at 9.

Even if the trial court forced Reyna to proceed either pro se or with his initial

attorney, this would not have violated clearly established Supreme Court precedent

because, as explained, Reyna fails to show that he was entitled to counsel in the

revocation proceedings, or, at the least, the CCA could have reasonably come to

that conclusion. Reyna fails to show that the CCA acted unreasonably in denying

this claim, and he is not entitled to relief on it.

B. Video Dash Cam Evidence

Reyna claims that the trial court erred by refusing to allow him to play the

entirety of video dash cam evidence of the arrests that led to the revocation

proceedings. The trial court allowed Reyna to present some of the video during his

case in chief but appears to have stopped the video before its conclusion. See ECF

No. 24-6 at 113 (THE COURT: “I’ve seen enough. We need to proceed.”). Reyna

claims that the dash cam footage would have revealed inconsistent statements of

the officers that could have been used for impeachment and would have shown

that his eyes were not “bloodshot” or “heavy” as the officer testified. He also

contends that the video of the unlawful possession by a felon arrest would have

shown that his license plate was not obscured—the reason the officer gave for

stopping him in the first place.

Reyna fails to show an error of a constitutional magnitude under the

Supreme Court’s harmless error standard. See Brecht, 507 U.S. at 637. His

allegations about what the videos would have shown are conclusory and

insufficient to prove that the video evidence would have led to a different outcome.

This is especially true here because the State only needed to prove that Reyna

violated a term of his community supervision by a preponderance of the evidence.

See Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). As shown below,

there was ample evidence to support the finding that Reyna violated the terms of

his community supervision, and Reyna fails to show that the video dash cam

evidence would have changed that, or, at the least, the CCA could have reasonably

come to that conclusion in denying this claim.

C. Improper Comment Showing Bias

Reyna claims that the trial judge was biased because she did not allow him

to play the full video dash cam footage, stating that she had “seen enough” and “we

need to proceed.” ECF No. 8 at 7.

“Stated succinctly, the cornerstone of the American judicial system is the

right to a fair and impartial process.” Bigby v. Dretke, 402 F.3d 551, 558 (5th Cir.

2005) (citing Bracy v. Gramley, 520 U.S. 899 (1997)). “Therefore, any judicial

officer incapable of presiding in such a manner violates the due process rights of

the party who suffers the resulting effects of that judicial officer’s bias.” Wilbanks

v. Dir. TDCJ-CID, 2022 WL 18946236, at *12 (E.D. Tex. Nov. 17, 2022), rec.

accepted 2023 WL 2387207 (E.D. Tex. Mar. 6, 2023) (citation omitted). Claims of

judicial bias are difficult to prove on federal habeas review because the Supreme

Court has determined “that what degree or kind of interest is sufficient to

disqualify a judge from sitting cannot be defined with precision.” Buntion v.

Quarterman, 524 F.3d 664, 672 (5th Cir. 2008) (citation omitted) (quoting Aetna

Life Ins. v. Lavoie, 475 U.S. 813, 822 (1986)) (internal quotation omitted). The Due

Process Clause sets “a constitutional floor, not a uniform standard.” Bracy, 520

U.S. at 904 (citation omitted).

Here, the only evidence of bias that Reyna relies upon is an adverse judicial

ruling or attempt at courtroom administration. But “judicial rulings alone almost

never constitute a valid basis for a bias or partiality motion.” Liteky v. United

States, 510 U.S. 540, 555 (1994). Judicial opinions will only support an actual bias

claim if they reveal favoritism or antagonism such that fair judgment is impossible.

Id. Further, “[a] judge’s ordinary efforts at courtroom administration—even a stern

and short-tempered judge’s ordinary efforts at courtroom administration—remain

immune [from establishing a bias].” Id. at 55. Accordingly, the trial judge’s

decision not to watch the entirety of the video footage did not reveal favoritism or

antagonism—only a desire to proceed expeditiously.

The CCA reasonably rejected this claim, and Reyna is not entitled to relief

on it.

3. There was sufficient evidence to revoke Reyna’s community supervision.

In his final claim, Reyna complains that the trial court abused its discretion

because there was insufficient evidence to revoke his community supervision. ECF

No. 8 at 7.

Although a probation revocation proceeding must comport with the

requirements of due process, it is not a criminal proceeding. Minnesota v. Murphy,

465 U.S. 420, 435 n.7 (1984) (citing Gagnon, 411 U.S. at 782); Bradley v. State,

564 S.W.2d 727, 729 (Tex. Crim. App. 1978). To warrant revocation, the State need

only establish by a preponderance of the evidence that a defendant violated the

terms of his probation. See Cobb, 851 S.W.2d at 873 . The revocation of probation

complies with the Fourteenth Amendment Due Process Clause if it is not “totally

devoid” of evidentiary support. Douglas v. Buder, 412 U.S. 430, 432 (1973) (per

curiam).

Here, the State’s motion to revoke and proceed with adjudication of guilt

was predicated on allegations that Reyna committed two new crimes: DWI and

unlawful possession of a firearm.

As to the DWI allegation, the arresting officer testified that he observed

Reyna driving more than 100 miles per hour at 4 a.m. ECF No. 24-6 at 32. Reyna

at first refused to roll down his window. Reyna was mumbling, he smelled of

alcohol, and his eyes were bloodshot and heavy. ECF No. 24-6 at 33-34. The officer

testified that he performed a horizontal gaze nystagmus test, and, in his twenty

years of experience, Reyna’s behavior and symptoms were consistent with

impairment and a “loss of normal use of mental and physical functions.” ECF No.

24-6 at 36-43.

The officer’s testimony is “some evidence” in support of the finding that

Reyna committed DWI while on deferred-adjudication community supervision.

See Tex. Penal Code § 49.04(a) (“A person commits an offense if the person is

intoxicated while operating a motor vehicle in a public place.”). At the least, the

CCA could have reasonably reached that conclusion, precluding federal habeas

relief on this claim.

As to the new unlawful possession of a firearm allegation, the arresting

officer testified that he pulled Reyna over in Leon County for driving with an

obscured license plate. ECF No. 24-6 at 59. He smelled raw marijuana, and Reyna

admitted possessing a smoked marijuana joint. ECF No. 24-6 at 62. The officer

received confirmation from dispatch that Reyna was a gang member, and Reyna

confirmed that he had a criminal history. ECF No. 24-6 at 65-67. Reyna became

nervous when the officer asked whether there were weapons in the vehicle. ECF

No. 24-6 at 72. The officer then searched the car, found a marijuana joint, and

noticed spent shell casings in the windshield cowling outside the vehicle. ECF No.

24-6 at 74-75. The officer noticed that the glove compartment was locked, but the

officer pried it open and discovered a 9mm pistol with bullets matching the caliber,

color, and brand of the casings in the windshield cowling. ECF No. 24-6 at 77. The

State presented photographs taken by the officer of the casings found in the

windshield and the pistol. ECF No. 24-6 at 77-83; ECF No. 24-7 at 17-22.

Again, the officer’s testimony constitutes at least “some evidence” that

Reyna committed unlawful possession of a firearm while on deferred-adjudication

community supervision—or at the least, the CCA could have reasonably reached

that conclusion—and Reyna is not entitled to habeas relief on this claim. See TEX.

PENAL CODE § 46.04(a) (“(a) A person who has been convicted of a felony commits

an offense if he possesses a firearm: (1) after conviction and before the fifth

anniversary of the person’s release from confinement following conviction of the

felony or the person’s release from supervision under community supervision,

parole, or mandatory supervision, whichever date is later[.]”).

Reyna responds that both arrests were tainted by Fourth Amendment

violations. See ECF No. 22 at 8-9. But the Supreme Court has never held that the

exclusionary rule applies in probation revocation proceedings. And the Fifth

Circuit has held that the rule does not apply in such proceedings absent police

harassment. See United States v. Montez, 952 F.2d 854, 857 (5th Cir. 1992); see

also United States v. Brown, 488 F.2d 94, 95 (5th Cir. 1973). So, any Fourth

Amendment violations would not have led to the exclusion of evidence against

Reyna, or, at the least, the CCA could have reasonably reached that conclusion in

rejecting this claim.

The CCA reasonably rejected Reyna’s insufficiency-of-evidence claim, and

he is not entitled to federal habeas relief on it.

Recommendation

The Court should deny Jose Raul Reyna’s federal habeas application.

Dated: October 24, 2024.

REBECCA eo

UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of this report and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of this report and

recommendation must file specific written objections within 14 days after being

served with a copy. See 28 U.S.C. § 636(b)(4); FED. R. Civ. P. 72(b). To be specific,

an objection must identify the specific finding or recommendation to which

objection is made, state the basis for the objection, and specify the place in the

magistrate judge’s report and recommendation where the disputed determination

is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written

objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district

court, except upon grounds of plain error. See Douglass v. United Services

Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

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