Petition for Writ of Certiorari — John Uranga, III, Petitioner v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division
Supreme Court briefNov 20, 2018
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No.
IN
THE
SUPREME COURT OF THE UNITED STATES
October Term, 2018
JOHN URANGA, III,
Petitioner
-vs -
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent
PETITION FOR WRIT OF CERTIORARI
TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
A PENDICES
JOHN URANGA, III, pro se
Robertson Unit, TDCJ No. 1500003
12071 FM 3522
Abilene, Texas 79601-8799
Petitioner
TABLE OF CONTENTS
DOCUMENT
APPENDIX
Opinion on Rehearing of the United States Court of Appeals
for the Fifth Circuit, Filed June 18, 2018.....................................A
Original Opinion of the United States Court of Appeals
for the Fifth Circuit, Filed January 12, 2018................................B
Order Denying Appellant's Petition For Rehearing And
Rehearing En Banc, Filed August 23, 2018.....................................0
United States District Court for the Northern District of Texas,
Order Accepting the Report and Recommendation of the Magistrate Judge........D
United States District Court for the Northern District of Texas,
JUDGMENT of the United States District Judge Dehyitig Habeas Belief ........... E
United States District Court for the Northern District of Texas,
Report and Recommendation Of the United States Magistrate Judge..............F
Order of the Court of Criminal Appeals of Texas, Filed June 22, 2011,
Denying Petitioner's Application for a Writ of Habeas Corpus.................G
Opinion of the Court of Criminal Appeals of Texas, Filed Nov. 17, 2010,
On Discretionary Review of Petitioner's Direct Appeal....................... Hi
Concurring Opinion of Judge MEYERS of the Court of Criminal Appeals of
Texas On Discretionary Review of Petitioner's Direct Appeal.................H2
Dissenting Opinion of Judges PRICE and HOLCOMB of the Court of criminal
Appeals of Texas On Discretionary Review of Petitioner's Direct Appeal
H3
Opinion of the Sixth Court of Appeals of Texas, Filed February 21, 2008,
On Petitioner's Direct Appeal of the Trail Court's Judgment..................J
Proofof Service.............................................................K
-1-
U
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-10290
FILED
June 18, 2018
Lyle W. Cayce
Clerk
JOHN URANGA, III,
Petitioner-Appellant,
V:
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
ON PETITION FOR REHEARING
Before DAVIS, HAYNES, and COSTA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Treating the Respondent's Petition for Rehearing En Banc as a Petition
for Panel Rehearing, it is GRANTED. The prior opinion, Uranga v. Davis, 879
F.3d 646 (5th Cir. 2018), is withdrawn, and the following opinion is
substituted:
John Uranga, III, Texas prisoner # 1500003, appeals the district court's
denial of his 28 U.S.C. § 2254 application for a writ of habeas corpus. Uranga
was convicted by a jury of possession of methamphetamine in an amount
No. 15-10290
greater than one gram but less than four grams.' During the punishment
phase of trial, the jury determined that Uranga was a habitual felony offender
and sentenced him to life imprisonment. 2 A judge of this court granted Uranga
a certificate of appealability ("COA") on the following issues: (1) whether the
postjudgment motion Uranga filed after the district court's denial of his § 2254
application was not an unauthorized successive § 2254 application; (2) whether
the postjudgment motion was timely filed for purposes of tolling the time
period for filing a notice of appeal; and (3) whether Uranga is entitled to § 2254
relief on his claim of implied juror bias during the punishment phase of his
trial.
Under our COA grant, we have jurisdiction to address whether Uranga's
postjudgment motion was an unauthorized successive § 2254 application and
will do so here, as it affects our appellate jurisdiction. Specifically, if Uranga's
postjudgment motion was a timely filed motion to alter or amend thejudgment
under Federal Rule of Civil Procedure 59(e), then the deadline for filing a
notice of appeal would be tolled until the entry of the order disposing of that
motion.4 However, a purported Rule 59(e) motion that is, in fact, a second or
successive .§ 2254 application is subject to the restrictions of the Antiterrorism
and Effective Death Penalty Act ("AEDPA") and would not toll the time for
filing a notice of appeal.5
In Gonzalez v. Crosby, the Supreme Court instructed that a
postjudgment motion should be treated as a successive § 2254 application if
the motion adds a new ground for relief or attacks the district court's previous
1 Uranga v. State, 330
S.W.3d 301, 302 Tex. Crim. App. 2010).
Jd at 303.
See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
"See FED. R. APP. P. 4(a)(4)(A)(iv).
See Williams v. Thaler, 602 F.3d 291, 303- 04 (5th Cir. .2010).
2
2
No. 15-10290
resolution of a claim on
Conversely, we should not treat a
postjudgment motion as a successive § 2254 application when the motion
"asserts that a previous ruling which precluded a merits determination was in
error—for example, a denial for such reasons as failure to exhaust, procedural
default, or statute-of-limitations bar"7 or when the motion "attacks.
.
.
some
defect in the integrity of the federal habeas proceedings.118
In his postjudgment motion, which Uranga purported to file pursuant to
Rule 59(e), Uranga sought reconsideration of the denial of his prejudgment
motion for leave to amend his § 2254 application. He also contended that the
district court denied his § 2254 application prematurely by failing to first
explicitly consider and rule on his motion for leave to amend. Thus, Uranga
did not seek to add a new ground for relief, nor did he attack the district court's
previous resolution of a claim on the merits. Rather, he asserted that a
previous ruling (the denial of his motion for leave to amend) which precluded
a merits determination was in error. Moreover, his argument that the district
court denied his § 2254 application prematurely was, in effect, an attack on an
alleged defect in the integrity of the § 2254 proceeding. Consequently, under
Gonzalez, Uranga's purported Rule 59(e) motion was not an unauthorized
successive § 2254 application and, if timely filed (the second issue upon which
COA was granted), would toll the deadline for filing a notice of appeal until the
entry of the order disposing of the motion.9
6 545 U.S. 524, 532 (2005). Although Gonzalez involved a postjudgment motion under
Rule 60(b), we have held Gonzalez applicable to postjudgment motions under Rule 59(e). See
Williams, 602 F.3d at 303.
Gonzalez, 545 U.S. at 532 n.4.
8 Id. at 532 (footnote omitted).
See FED. B. APP. P. 4(a)(4)A(iv).
'
3
'p
No. 15-10290
A motion to alter or amend a judgment under Rule 59(e) must be filed
within 28 days of the entry of the judgment. '° The district court's judgment
denying Uranga's § 2254 application was entered on March 11, 2014; therefore,
the deadline for filing a Rule 59(e) motion was April 8, 2014. The district court,
however, did not receive Uranga's motion until April 17, 2014. Uranga asserts
that his motion nevertheless was filed timely under the prison mailbox rule.
In Houston v. Lack, the Supreme Court held that a pro se prisoner's
notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) is deemed
filed as of the date the notice is delivered to prison officials for mailing." We
have extended the prison mailbox rule to other submissions of pro se inmates,
including Rule 59(e) motions. 12 Houston's holding was eventually codified in
Federal Rule of Appellate Procedure 4(c) and Rule 3(d) of the Rules Governing
§ 2254 cases.
Uranga contends that his Rule 59(e) motion was timely filed because it
was delivered to prison officials for mailing on April 7, 2014, as stated in the
motion's certificate of service. However, Uranga himself did not deliver the
motion to prison officials. Another inmate named Gordon Ray Simmonds, who
was assisting Uranga with his § 2254 application, delivered the motion to
prison officials for mailing. Simmonds also signed Uranga's name to the
Rule 59(e) motion. Although the prison mailroom logs reflected that the
mailroom did not receive the motion until April 14, 2014, Uranga submitted
the declaration of Simmonds who explained the reasons for the delay.
The district court did not reject Simmonds' explanation for the delay in
the mailroom's receipt of the Rule 59(e) motion. Instead, the district court
'0 FED. R. CIV. P. 59(e).
11 487 U.S. 266, 275 (1988).
12 See Brown v. Taylor, 829 F. 3d 365, 368 (5th Cir. 2016); cf. FED. R. APP. P. 25(a)(2)(C)
(adopting prison mailbox rule for inmate filings in federal appellate courts).
4
No. 15-10290
reasoned that the motion would have been timely had Uranga himself signed
and delivered the motion to prison officials for mailing on or before April 8,
2014. The district court determined that because Simmonds was a non-party
and not a licensed attorney, he lacked authority under Federal Rule of Civil
Procedure 11(a)13 to sign the motion on Uranga's behalf. The district court
further determined that the prison mailbox rule does not apply when a
prisoner gives his motion to another prisoner to deliver to prison officials for
mailing. We disagree.
First, in determining that Simmonds lacked authority to sign Uranga's
motion, the district court failed to note the specific rules applicable to § 2254
proceedings allowing someone other than the prisoner or a licensed attorney to
sign a habeas petition under certain circumstances. Rule 2(c)(5) of the Rules
Governing § 2254 cases provides that the habeas petition must "be signed
under penalty of perjury by the petitioner or by a person authorized to sign it
for the petitioner under 28 U.S.C. § 2242." That statute, in turn, provides that
"[a]n application for a writ of habeas corpus shall be in writing signed and
verified by the person for whose relief it is intended or by someone acting in his
be half." 4
We have noted that the authority under § 2242 of a so-called "next
friend" to apply for a writ of habeas corpus on behalf of another may be
established when the habeas application explains "(1) why the detained person
did not sign and verify the petition and (2) the relationship and interest of the
13 Federal Rule of Civil Procedure 11(a) provides that "[e]very pleading, written
motion, and other paper must be signed by at least one attorney of record in the attorney's
name or by a party personally if the party is unrepresented."
14 28 U.S.C. § 2242 (emphasis added). Although this matter does not involve the initial
§ 2254 application, we believe this statute may be applied to any filing made on behalf of a
prisoner in a § 2254 proceeding, including a postjudgment motion under Rule 59(e).
5
-
No. 15-10290
would be 'next friend."5 In this matter, Uranga submitted Simmonds'
declaration to the district court in which Simmonds gave a detailed account of
why it was necessary for him to sign Uranga's Rule 59(e) motion and his
relationship with Uranga. Specifically, Simmonds explained that he and
Uranga were unable to meet due to a lockdown situation at the prison so in
light of the impending deadline for filing a Rule 59(e) motion, Simmonds signed
Uranga's name to the Rule 59(e) motion. We find that these facts constitute
an adequate explanation of the necessity for resorting to the "next friend"
device and that Simmonds had authority under § 2242 to sign Uranga's
Rule 59(e) motion. 16
Second, in determining whether the prison mailbox rule applies, the
relevant question for our consideration is whether the declaration of
transmission to prison officials contemplated by the rules and our precedents
requires the inmate himself to be the one to transmit the document to the
prison officials responsible for the internal inmate mailing system. The
Supreme Court has focused on the date the prison officials received the
document.17 We find no requirement of personal delivery by the prisoner
himself and note that at least one other circuit evaluated the date based upon
when the document was handed to the appropriate prison officials regardless
of who did the handling.18 We reaffirm that the operative date of the prison
mailbox rule remains the date the pleading is delivered to prison authorities.
15 Weber v. Garza, 570
F.2d 511, 513-14 (5th. Cir. 1978).
16 See Warren v. Cardwell, 621 F.2d 319, 321 nJ (9th Cir. 1980) (determining that
resort to "next friend" device was appropriate when petitioner "could not sign and verify the
petition because prison was 'locked down" and circumstances were "urgent").
"i' Houston, 487 U.S. at 275.
18 See Hernandez v. Spearman, 764 F.3d 1071, 1074 (9th
Cir. 2014). The respondent
argues that Rule 3(d) of the Rules Governing § 2254 cases restricts application of the prison
mailbox rule to filings made personally by the inmate-petitioner. Rule 3(d) provides: "A paper
filed by an inmate in an institution is timely if deposited in the institution's internal mailing
system on or before the last day of filing. If an institution has a system designed for legal
6
No. 15-10290
Therefore, Uranga's Rule 59(6) motion, which Simmonds delivered on
Uranga's behalf to prison officials for mailing on April 7, 2014, was timely filed
and tolled the deadline for filing a notice of appeal until the entry of the order
disposing of the motion. 19 There is no dispute that Uranga's notice of appeal
was filed timely from the entry of the order denying his motion.
The last issue upon which COA was granted involves Uranga's claim
that he was denied an impartial jury during the punishment phase of trial
because one of the jurors was impliedly biased against him.20 During the
punishment phase, the State introduced evidence of Uranga's two prior felony
convictions and several unadjudicated offenses.2 ' Evidence revealed that
Uranga had driven his car onto someone's lawn to elude police. This
extraneous offense was captured by the video camera in the police vehicle that
was chasing Uranga. 22 After the videotape was played to the jury, one of the
jurors realizedl that it was his lawn that had been damaged by Uranga's car
during the chase and "reported his surprising discovery to the trial court.1123
mail, the inmate must use that system to receive the benefit of this rule." The respondent
submits that because the first sentence of the rule states "an inmate," but the second sentence
states "the inmate," then the prison mailbox rule applies only when the petitioner himself
delivers his pleading to prison authorities. We are not persuaded. Moreover, we note that
Federal Rule of Appellate Procedure 4(c), which also codified Houston's holding, uses "an
inmate" throughout the rule.
19 See FED. R. APP. P. 4(a)(4)(A)(iv).
20 Uranga also argues that the juror in question was biased against him during the
entire trial, and not just during the punishment phase. He asserts that the juror was actually
his neighbor, held animosity against him, and had made reports to the police alleging that
Uranga was selling drugs out of his house. However, this issue is beyond the scope of our
COA grant. By asserting this claim in his opening brief, Uranga, in essence, is seeking a
rehearing of this Court's ruling on his motion for a COA. A petition for rehearing must be
filed within 14 days of this Court's ruling, and Uranga's opening brief was filed more than
five months later. See FED. R. APP. P. 40(a)(1). Therefore, we do not consider this claim.
21 Uranga, 330 S.W.3d at 302.
22 Id. The videotape of the car chase "suggest[ed] that Uranga [had] committed the
crimes of evading arrest and criminal mischief' under Texas law. See Uranga v. State, 247
SW.3d 375, 377 (Tex. App.—Texarkana 2008) (citations omitted).
23 Uranga, 247 S.W.3d at 377.
7
No. 15-10290
The trial court conducted a hearing, questioning the juror outside the presence
of the remaining jurors regarding the incident.24 The juror indicated that he
had not known who damaged his lawn until he saw the video, but that this
information would not influence him in any way.25
Uranga then moved for a mistrial, arguing that because the juror's
property was damaged by his actions, "it would have to affect [the juror] in
[determining] punishment."26 The trial court denied Uranga's request for a
mistrial.27 On appeal, Uranga argued that the. Texas Court of Criminal
Appeals had adopted the "implied bias" doctrine in limited circumstances and
that such bias should be imputed to the juror in his case.28 The Texas Court
of Criminal Appeals, however, held that "[n]either the federal nor the state
constitution has been held to require an 'implied bias' doctrine." 29 Instead, the
court "held that the remedy for allegations of juror partiality is hearing in
which the defendant has the opportunity to prove actual bias.1130 The court
further held that the hearing conducted by the trial court on the issue of actual
bias in this case was appropriate and adequate and that "[t]here was no
requirement of a mistrial on a theory that bias must be implied to the juror.113 '
The court consequently affirmed Uranga's conviction and sentence. 32
Under 28 U.S.C. § 2254(d)(1), habeas relief may not be granted on a
claim that was adjudicated on the merits by a state court "unless the
adjudication of the claim
.
.
.
resulted in a decision that was contrary to, or
Uranga, 330 S.W.3d at 302.
Id. at 302-03.
26 Id. at 303.
27 Id.
28 Id.
at 306.
29 Id. at 304.
30 Id.
at 306 (quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)) (internal quotation
24
25
marks omitted).
31 Id .,
32 Id.
at 307.
8
/
No. 15-10290
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." In this case, the "last
reasoned state court decision"33 determined that neither the federal nor state
constitution provides for a claim of implied juror bias. Thus, the state court
adjudicated Uranga's implied bias claim on the merits in that it determined
the claim was not cognizable in the first instance. Consequently, we must defer
to the state court's decision under § 2254(d)(1), unless its decision "was
contrary to.
.
.
clearly established Federal law, as determined by the Supreme
Court."
The respondent argues that the doctrine of implied juror bias is not
clearly established federal law and that this Court would have to create, in
violation of Teague v. Lane,34 a new constitutional rule in order to grant relief
in this case. Uranga asserts that this circuit has adopted the rule that implied
juror bias is a clearly established constitutional principle based on our decision
in Brooks v. Dretke.35 The respondent counters, however, that Brooks was
bound by our earlier opinion in Andrews v. Collins, 36 which recognized that the
Supreme Court has never embraced the implied bias doctrine.
Both sides presented persuasive arguments and cite language from our
cases that can be read to support each side of the argument. Other circuits are
split on the question. The Fourth and Ninth Circuits have found that the
doctrine is clearly established law, and the Sixth Circuit takes a position it is
not clearly established.
33 See Wilson v. Sellers, 138 S.Ct 1188, 1194
(2018) (holding "that federal habeas law
employs a 'look through' presumption" in determining "the reasons for the [state] higher
court's decision" denying habeas relief).
34 489 U.S. 288 (1989)..
35 444 F.3d 328, 329.33 (5th Cir. 2006) (on denial of petition for rehearing en banc).
36 21 F.3d 612 (5th Cir. 1994).
.9
No. 15-10290
In this case, however, it is unnecessary for us to delve into this question
based upon the peculiar facts in this record. The facts on which Uranga relies
in this case to establish that he suffered presumed bias are outside the extreme
genre of cases Justice O'Connor pointed to in her concurring opinion in Smith
v. Phillips37 that would be sufficient to trigger application of the implied bias
doctrine. In her concurrence, Justice O'Connor explored the cases where a
hearing may be inadequate for uncovering a juror's bias:
While each case must turn on its own facts, there are some extreme
situations that would justify a finding of implied bias. Some
examples might include a revelation that the juror is an actual
employee of the prosecuting agency, that the juror is a close
relative of one of the participants in the trial or the criminal
transaction, or that the juror was a witness or somehow involved
in the criminal transaction. 38
In Brooks, the juror in question was arrested during the trial because he
brought a weapon into the courthouse-with him. 39 The prosecuting authority,
arguing for a conviction in the case being tried, had the prosecutorial discretion
to pursue the juror on the weapons offense. 40 The juror's natural concern about
whether the prosecutor would exercise his discretion to pursue charges against
him was enough for the panel to conclude that it amounted to presumed bias
that could not be corrected by the court's questions and instructions.4'
This situation, where the juror/homeowner learned that the defendant
had committed a misdemeanor by driving across his yard and causing damage
that could be repaired for less than $500, does not fall in the same genre of
cases given by Justice O'Connor in her concurrence or the juror's concern in
37 455 U.S. 209, 222 (1982).
38
Id.
39 418 F.3d 430, 430-31 (5th Cir. 2005).
40
41
See id. at 435.
See id.
10
No. 15-10290
Brooks that he would be charged with a weapons offense. Although Uranga
did cause some damage to the juror's lawn during the car chase, the damage
was minimal. As described by the juror, "[t]he ground was moved up a little
bit."42 Moreover, the juror testified that he did not intend to pursue any
charges and that he could fix the damage himself. 43 This incident does not rise
to the level of the extreme situations wherein courts have previously imputed
juror bias. 44
Based on the foregoing, the judgment of the district court denying
Uranga's 28 U.S.C. § 2254 application is AFFIRMED.
Uranga, 330 S.W.3d at 302.
Id.
44 See Soils v. Cockrell, 342 F.3d 392, 399 n.42 (5th Cir. 2003) (listing cases where
implied juror bias doctrine was applied and comparing to cases where the doctrine was
refused).
11
42
43
A .,
No. 15-10290
HAYNES, Circuit Judge, dissenting:
I respectfully dissent from the determination to grant a panel rehearing
and affirm, rather than reverse, the district court. I agree with the majority
opinion up until the issue of the implicit juror bias; at that point, I diverge.
Certainly the issue of implicit bias has caused some disagreement among
the circuits. But I conclude that we are bound by Brooks v. Dretke, 418 F.3d
430 (5th Cir. 2005) which does not conflict with Andrews v. Collins, 21 F.3d
612 (5th Cir. 1994) for the reasons stated in Morales v. Thaler, 714 F.3d 295,
304 n.7 (5th Cir. 2013). While Andrews does initially contain conflicting
language regarding whether the Supreme Court has ever explicitly adopted
the doctrine of implied juror bias, the decision (like the majority opinion here)
ultimately focused on Justice O'Connor's concurring opinion in Smith v.
Phillips, 455 U.S. 209, 222 (1982), describing the "extreme situations that
would justify a finding of implied bias." 21 F.3d at 620. Given the lack of
actual conflict, we are bound by Brooks.
Turning to the facts of this case, the majority opinion concludes that
Uranga's situation is not sufficiently "extreme" to warrant relief. I
respectfully disagree. The jury in this case was tasked with determining a
sentence for Uranga. As part of the sentencing phase of the trial, the
prosecution introduced the videotape in question of a car chase that rips
through the juror's lawn. In closing argument, the prosecution describes
Uranga's criminal history and specifically mentions the car chase immediately
before stating: "I'm asking that you, with this history, give him a life sentence."
The jury did so.
The state court never addressed this issue factually, having erroneously concluded
that the law did not permit an implicit bias analysis.
12
1
OW
.'
No. 15-10290
Our original opinion correctly determined that this situation was.
sufficiently extreme to warrant relief holding:
The videotape offered by the State during the punishment
phase of Uranga's trial clearly showed that Uranga had damaged
the juror's lawn during the car chase. Although the resulting
property damage may have been minimal, the damage nonetheless
was personal to the juror, as it affected the premises of his home.
Moreover, the juror was unaware of how the damage had been
caused and learned, for the first time, upon viewing the videotape
during the punishment phase of trial that Uranga was the
perpetrator of the damage. We believe that these particular facts
"inherently create [d] in [the] juror a substantial emotional
involvement, adversely affecting [his] impartiality" toward
Uranga.2 We conclude that this case presents one of those
"extreme situations" in which we are justified in finding a violation
of the Sixth Amendment based on implied juror bias.
Consequently, although Uranga's conviction for possession Iof
methamphetamine must stand, his sentence of life imprisonment
cannot, at this point.
Uranga v. Davis, 879 F.3d 646, 653 (5th Cir. 2018). The juror in this very case
was a victim of this very defendant in a crime deemed relevant by the
prosecution to sentencing this defendant to life. Pretty extreme, it seems to
me. I would deny the petition for panel rehearing and stand with the original
opinion. Because the majority opinion determines otherwise, I respectfully
dissent.
See Solis v. Cockrell, 342 F.3d 392, 399 (5th Cir. 2003) (internal quotation marks and
footnote omitted).
3.
This is the opinion vacated by the majority opinion here..
2
13
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-10290
FLED
January 12, 2018
Lyle W. Cayce
Clerk
JOHN URANGA, III,
Petitioner-Appellant,
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, HAYNES, and COSTA, Circuit Judges.
EUGENE DAVIS, Circuit Judge:
John Uranga, III, Texas prisoner # 1500003, appeals the district court's
denial of his 28 U.S.C. § 2254 application for a writ of habeas corpus. Uranga
was convicted by a jury of possession of methamphetamine in an amount
greater than one gram but less than four grams.' During the punishment
phase of trial, the jury determined that Uranga was a habitual felony offender
and sentenced him to life imprisonment.2 A judge of this court granted Uranga
a certificate of appealability ("COA") on the following issues: (1) whether the
postjudgment motion Uranga filed after the district court's denial of his § 2254
1 Uranga v. State,
2 Id. at
303.
330 S.W.3d 301, 302 (Tex. Crim. App. 2010).
9~
No. 15-10290
application was not an unauthorized successive § 2254 application; (2) whether
the postjudgment motion was timely filed for purposes of tolling the time
period for filing a notice of appeal; and (3) whether Uranga is entitled to § 2254
relief on his claim of implied juror bias during the punishment phase of his
trial.
Under our COA grant, we have jurisdiction to address whether Uranga's
postjudgment motion was an unauthorized successive § 2254 application and
will do so here, as it affects our appellate jurisdiction. 3 Specifically, if Uranga's
postjudgment motion was a timely filed motion to alter or amend the judgment
under Federal Rule of Civil Procedure 59(e), then the deadline for filing a
notice of appeal would be tolled until the entry of the order disposing of that
motion.4 However, a purported Rule 59(e) motion that is, in fact, a second or
successive § 2254 application is subject to the restrictions of the Antiterrorism
and Effective Death Penalty Act ("AEDPA") and would not toll the time for
filing a notice of appeal.5
In Gonzalez v. Crosby, the Supreme Court instructed that a
postjudgment motion should be treated as a successive § 2254 application if
the motion adds a new ground for relief or attacks the district court's previous
resolution of a claim on the merits.6 Conversely, we should not treat a
postjudgment motion as a successive § 2254 application when the motion
asserts that a previous ruling which precluded a merits determination was in
error—for example, a denial for such reasons as failure to exhaust, procedural
See United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
See FED. R. APP. P. 4(a)(4)(A)(iv).
See Williams v. Thaler, 602 F.3d 291, 303-04 (5th Cir. 2010).
6 545 U.S. 524, 532 (2005). Although
Gonzalez involved a postjudgment motion under
Rule 60(b), we have held Gonzalez applicable to postjudgment motions under Rule 59(e). See
Williams, 602 F.3d at 303.
2
No. 15-10290
default, or statute-of-limitations bar" or when the motion "attacks. . . some
defect in the integrity of the federal habeas proceedings."8
In his postjudgment motion, which Uranga purported to file pursuant to
Rule 59(e), Uranga sought reconsideration of the denial of his prejudgment
motion for leave to amend his § 2254 application. He also contended that the
district court denied his § 2254 application prematurely by failing to first
explicitly consider and rule on his motion for leave to amend. Thus, Uranga
did not seek to add a new ground for relief, nor did he attack the district court's
previous resolution of a claim on the merits. Rather, he asserted that a
previous ruling (the denial of his motion for leave to amend) which precluded
a merits determination was in error. Moreover, his argument that the district
court denied his § 2254 application prematurely was, in effect, an attack on an
alleged defect in the integrity of the § 2254 proceeding. Consequently, under
Gonzalez, Uranga's purported Rule 59(e) motion was not an unauthorized
successive § 2254 application and, if timely filed (the second issue upon which
COA was granted), would toll the deadline for filing a notice of appeal until the
entry of the order disposing of the motion.9
A motion to alter or amend a judgment under Rule 59(e) must be filed
within 28 days of the entry of the judgment.'° The district court's judgment
denying Uranga's § 2254 application was entered on March 11, 2014; therefore,
the deadline for filing a Rule 59(e) motion was April 8, 2014. The district court,
however, did not receive Uranga's motion until April 17, 2014. Uranga asserts
that his motion nevertheless was filed timely under the prison mailbox rule.
' Gonzalez, 545 U.S. at 532 n.4.
8 Id. at 532 (footnote omitted).
See FED. R. APP. P. 4(a)(4)(A)(iv).
10 FED. R. CIV. P. 59(e).
3/
No. 15-10290
In Houston v. Lack, the Supreme Court held that a pro se prisoner's
notice of appeal under Federal Rule of Appellate Procedure 4(a)(1) is deemed
filed as of the date the notice is delivered to prison officials for mailing." We
have extended the prison mailbox rule to other submissions of pro se inmates,
including Rule 59(e) motions.12 Houston's holding was eventually codified in
Federal Rule of Appellate Procedure 4(c) and Rule 3(d) of the Rules Governing
2254 cases.
Uranga contends that his Rule 59(e) motion was timely filed because it
was delivered to prison officials for mailing on April 7, 2014, as stated in the
motion's certificate of service. However, Uranga himself did not deliver the
motion to prison officials. Another inmate named Gordon Ray Simmonds, who
was assisting Uranga with his § 2254 application, delivered the motion to
prison officials for mailing. Simmonds also signed Uranga's name to the
Rule 59(e) motion. Although the prison mailroom logs reflected that the
mailroom did not receive the motion until April 14, 2014, Uranga submitted
the declaration of Simmonds who explained the reasons for the delay.
The district court did not reject Simmonds' explanation for the delay in
the mailroom's receipt of the Rule 59(e) motion. Instead, the district court
reasoned that the motion would have been timely had Uranga himself signed
and delivered the motion to prison officials for mailing on or before April 8,
2014. The district court determined that because Simmonds was a non-party
and not a licensed attorney, he lacked authority under Federal Rule of Civil
Procedure 11(a)13 to sign the motion on Uranga's behalf. The district court
11
487 U.S. 266, 275 (1988).
See Brown v. Taylor, 829 F.3d 365, 368 (5th Cir. 2016); cf. FED. R. APP. P. 25(a)(2)(C)
(adopting prison mailbox rule for inmate filings in federal appellate courts).
12
Federal Rule of Civil Procedure 11(a) provides that "[e]very pleading, written
motion, and other paper must be signed by at least one attorney of record in the attorney's
name or by a party personally if the party is unrepresented."
13
-
4
No. 15-10290
further determined that the prison mailbox rule does not apply when a
prisoner gives his motion to another prisoner to deliver to prison officials for
mailing. We disagree.
First, in determining that Simmonds lacked authority to sign Uranga's
motion, the district court failed to note the specific rules applicable to § 2254
proceedings allowing someone other than the prisoner or a licensed attorney to
sign a habeas petition under certain circumstances. Rule 2(c)(5) of the Rules
Governing § 2254 cases provides that the habeas petition must "be signed
under penalty of perjury by the petitioner or by a person authorized to sign it
for the petitioner under 28 U.S.C. § 2242." That statute, in turn, provides that
"[a]n application for a writ of habeas corpus shall be in writing signed and
verified by the person for whose relief it is intended or by someone acting in his
be half." 14
We have noted that the authority under § 2242 of a so-called "next
friend" to apply for a writ of habeas corpus on behalf of another may be
established when the habeas application explains "(1) why the detained person
did not sign and verify the petition and (2) the relationship and interest of the
would be 'next friend."5 In this matter, Uranga submitted Simmonds'
declaration to the district court in which Simmonds gave a detailed account of
why it was necessary for him to sign Uranga's Rule 59(e) motion and his
relationship with Uranga. Specifically, Simmonds explained that he and
Uranga were unable to meet due to a lockdown situation at the prison so in
light of the impending deadline for filing a Rule 59(e) motion, Simmonds signed
Uranga's name to the Rule 59(e) motion. We find that these facts constitute
28 U.S.C. § 2242 (emphasis added). Although this matter does not involve the initial
§ 2254 application, we believe this statute may be applied to any filing made on behalf of a
prisoner in a § 2254 proceeding, including a postjudgment motion under Rule 59(e).
15 Weber v. Garza,
570 F.2d 511, 513-14 (5th Cir. 1978).
5
14
No. 15-10290
an adequate explanation of the necessity for resorting to the "next friend"
device and that Simmonds had authority under § 2242 to sign Uranga's
Rule 59(e) motion.16
Second, in determining whether the prison mailbox rule applies, the
relevant question for our consideration is whether the declaration of
transmission to prison officials contemplated by the rules and our precedents
requires the inmate himself to be the one to transmit the document to the
prison officials responsible for the internal inmate mailing system. The
Supreme Court has focused on the date the prison officials received the
document.17 We find no requirement of personal delivery by the prisoner
himself and note that at least one other circuit evaluated the date based upon
when the document was handed to the appropriate prison officials regardless
of who did the handling.18 We reaffirm that the operative date of the prison
mailbox rule remains the date the pleading is delivered to prison authorities.
Therefore, Uranga's Rule 59(e) motion, which Simmonds delivered on
Uranga's behalf to prison officials for mailing on April 7, 2014, was timely filed
and tolled the deadline for filing a notice of appeal until the entry of the order
See Warren v. Cardwell, 621 F.2d 319, 321 n.l (9th Cir. 1980) (determining that
resort to "next friend" device was appropriate when petitioner "could not sign and verify the
petition because prison was 'locked down" and circumstances were "urgent").
17 Houston, 487 U.S. at 275.
18 See Hernandez v. Spearman, 764
F.3d 1071, 1074 (9th Cir. 2014). The respondent
argues that Rule 3(d) of the Rules Governing § 2254 cases restricts application of the prison
mailbox rule to filings made personally by the inmate-petitioner. Rule 3(d) provides: "A paper
filed by an inmate in an institution is timely if deposited in the institution's internal mailing
system on or before the last day of filing. If an institution has a system designed for legal
mail, the inmate must use that system to receive the benefit of this rule.". The respondent
submits that because the first sentence of the rule states "an inmate," but the second sentence
states "the inmate," then the prison mailbox rule applies only when the petitioner himself
delivers his pleading to prison authorities. We are not persuaded. Moreover, we note that
Federal Rule of Appellate Procedure 4(c), which also codified Houston's holding, uses "an
inmate" throughout the rule.
16
It
No. 15-10290
disposing of the motion.19 There is no dispute that Uranga's notice of appeal
was filed timely from the entry of the order denying his motion.
The last issue upon which COA was granted involves Uranga's claim
that he was denied an impartial jury during the punishment phase of trial
because one of the jurors was impliedly biased against him.20 During the
punishment phase, the State introduced evidence of Uranga's two prior felony
convictions and several unadjudicated offenses.2' Evidence revealed that
Uranga had driven his car onto someone's lawn to elude police. This
extraneous offense was captured by the video camera in the police vehicle that
was chasing Uranga. 22 After the videotape was played to the jury, one of the
jurors realized that it was his lawn that had been damaged by Uranga's car
during the chase and "reported his surprising discovery to the trial court.1123
The trial court conducted a hearing, questioning the juror outside the presence
of the remaining jurors regarding the incident.24 The juror indicated that he
had not known who damaged his lawn until he saw the video, but that this
information would not influence him in any way.25
19
See FED. R. APP. P. 4(a)(4)(A)(iv).
20 Uranga also argues that the juror in question was biased against him during the
entire trial, and not just during the punishment phase. He asserts that the juror was actually
his neighbor, held animosity against him, and had made reports to the police alleging that
Uranga was selling drugs out of his house. However, this issue is beyond the scope of our
COA grant. By asserting this claim in his opening brief, Uranga, in essence, is seeking a
rehearing of this Court's ruling on his motion for a COA. A petition for rehearing must be
filed within 14 days of this Court's ruling, and Uranga's opening brief was filed more than
five months later. See FED. R. APP. P. 40(a)(1). Therefore, we do not consider this claim.
21 Uranga, 330 S.W.3d at 302.
22
Id. The videotape of the car chase "suggest[ed] that Uranga [had] committed the
crimes of evading arrest and criminal mischief' under Texas law. See Uranga V. State, 247
S.W.3d 375, 377 (Tex. App.—Texarkana 2008) (citations omitted).
23 Uranga, 247 S.W.3d at 377.
24 Uranga, 330 S.W.3d at 302.
25 Id. at 302-03.
7
p
No. 15-10290
Uranga then moved for a mistrial, arguing that because the juror's
property was damaged by his actions, "it would have to affect [the juror] in
[determining] punishment.1126 The trial court denied Uranga's request for a
mistrial.27 On appeal, Uranga argued that the Texas Court of Criminal
Appeals had adopted the "implied bias" doctrine in limited circumstances and
that such bias should be imputed to the juror in his case.28 The Texas Court of
Criminal Appeals, however, held that "[n]either the federal nor the state
constitution has been held to require an 'implied bias' doctrine.1129 Instead, the
court "held that the remedy for allegations of juror partiality is a hearing in
which the defendant has the opportunity to prove actual bias."30 The court
further held that the hearing conducted by the trial court on the issue of actual
bias in this case was appropriate and adequate and that "[t]here was no
requirement of a mistrial on a theory that bias must be implied to the juror.113 '
The court consequently affirmed Uranga's conviction and sentence.32
Under 28 U.S.C. § 2254(d)(1), habeas relief may not be granted on a
claim that was adjudicated on the merits by a state court "unless the
adjudication of the claim
.
.
.
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." (However, when a
state court fails to adjudicate a claim on the merits, this deferential standard
of review is inapplicable, and "the federal courts must instead conduct a
26 Id. at 303.
27
Id.
28 Id. at 306.
29 Id. at 304.
30 Id. at 306 (quoting Smith v. Phillips, 455 U.S. 209, 215 (1982)) (internal quotation
marks omitted).
' Id.
32 Id. at 307.
U.]
-4
'-,-
No. 15-10290
plenary review."33 In this case, the state court never adjudicated Uranga's
"implied bias" claim on the merits because the state court determined that
neither the federal nor state constitution provided for such a claim.34
Therefore, no deference is owed to the state court's judgment, and our review
is plenary.35
The respondent argues that the doctrine of implied juror bias is not
clearly established federal law and that this Court would have to create, in
violation of Teague v. Lane,36 a new constitutional rule in order to grant relief
in this case.. In Brooks v. Dretke, however, we rejected these same arguments,
and we find it controlling.37
The Sixth Amendment guarantees in all criminal prosecutions that the
accused receive a trial by an impartial jury.38 Although the Sixth Amendment
does not prescribe any specific tests, "[t]he bias of a prospective juror may be
actual or implied; that is, it may be bias in fact or bias conclusively presumed
as [a] matter of law.1139 "The determination of implied bias is an objective legal
judgment made as a matter of law and is not controlled by sincere and credible
33 Gonzales v. Thaler, 643
F.3d 425, 429 (5th Cir. 2011) (footnote omitted).
34 See Uranga, 330 S.W.3d at 308 (Price, J., dissenting) ("Without fanfare, the Court
today announces that there is no such thing as the Sixth Amendment doctrine of implied
bias.").
-35 The magistrate judge and district court determined that the state court's judgment
was entitled to deference under the AEDPA because the state court had made an "implied
legal conclusion" that the information discovered by the juror was not sufficient to produce
implied bias. As described above, however, the state court made no such conclusion, implied
or otherwise. Consequently, we conclude that the district court erredin extending any
deference to the state court's judgment with respect to Uranga's implied bias claim.
36 489 U.S. 288 (1989).
37 444 F.3d 328, 329-33 (5th Cir. 2006) (on denial of petition for rehearing en bane).
Contrary to Appellee's contentions, Brooks does not conflict with our decision in Andrews v.
Collins, 21 F.3d 612 (5th Cir. 1994). In Andrews, after noting the Supreme Court
jurisprudence relating to the doctrine of implied juror bias, we went on to analyze the
defendant's claim of implied juror bias, but "refused to impute bias to [the] juror" based on
the specific facts presented in that case. 21 F.3d at 620-21.
38 See Solis v. Cockrell, 342 F.3d 392, 395 (5th Cir. 2003).
39 Id. (internal quotation marks and footnote omitted).
9
p
No. 15-10290
assurances by the juror that he can be fair.1140 However, it is only in "extreme
situations" that implied juror bias may be found.4' "Some examples might
include a revelation that the juror is an actual employee of the prosecuting
agency, that the juror is a close relative of one of the participants in the trial
or the criminal transaction, or that the juror was a witness or somehow
involved in the criminal trans action."42 Bias should not be inferred "unless the
facts underlying the alleged bias are such that they would inherently create in
a juror a substantial emotional involvement, adversely affecting
impartiality." 43
Uranga contends that his case falls within one of the "extreme
situations" that implied juror bias may be found. Specifically, Uranga asserts
that the juror was a "victim" of the damage he caused during a car chase with
the police, which the jury was allowed to consider during the punishment
phase. We agree.
Under Texas law, the State is allowed, during the punishment phase of
a criminal trial, to offer any evidence the trial court deems relevant to
sentencing, including evidence of unadj udicated, extraneous offenses
committed by the defendant.44 The videotape offered by the State during the
punishment phase of Uranga's trial clearly showed that Uranga had damaged
the juror's lawn during the car chase. Although the resulting property damage
may have been minimal, the damage nonetheless was personal to the juror, as
it affected the premises of his home. Moreover, the juror was unaware of how
the damage had been caused and learned, for the first time, upon viewing the
videotape during the punishment phase of trial that Uranga was the
F.3d 430, 434 (5th Cir. 2005) (footnote omitted).
at 620 (internal quotation marks and citations omitted).
42 Id. (internal quotation marks and citations omitted).
43 Soils, 342 F.3d at 399 (internal quotation marks and footnote omitted).
''
See TEX. CODE CRIM. PROC. ART. 37.07, § 3(a)(1).
10
40 Brooks v. Dretke, 418
41 Andrews, 21 F.3d
.4'
1
No. 15-10290
perpetrator of the damage. We believe that these particular facts "inherently
create[d] in [the] juror a substantial emotional involvement, adversely
affecting [his] impartiality" toward Uranga.45 We conclude that this case
presents one of those "extreme situations" in which we are justified in finding
a violation of the Sixth Amendment based on implied juror bias. Consequently,
although Uranga's conviction for possession of methamphetarnine must stand,
his sentence of life imprisonment cannot, at this point.
Based on the foregoing, we REVERSE the judgment of the district court
denying Uranga's § 2254 application and REMAND this case to the district
court. We further direct that a writ of habeas corpus be issued, unless within
90 days, or such additional reasonable time as shall be allowed by the district
court on application to it by the State within that time, Uranga is resentenced
in accordance with Texas law in effect at the time of his crime.
REVERSED and REMANDED with instructions.
45 See Solis, 342 F.3d at 399 (internal quotation marks and footnote omitted).
11
Case: 15-10290
Document: 00514612884 Page: 1 Date Filed: 08/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10290
JOHN URANGA, III,
Petitioner Appellant
-
V.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent Appellee
-
Appeal from the United States District Court
for the Northern District of.Texas
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion June 18, 2018, 5 Cir.,
,
F.3d
Before DAVIS, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and no member of this panel nor
judge in regular active service on the court having requested that the
court be polled on Rehearing En Banc, (FED R. APP. P. and 5T11 CIR. R.
35) the Petition for Rehearing En Bane is also DENIED.
( )
The Petition for Rehearing is DENIED and the court having been
polled at the request of one of the members of the court and a majority
of the judges who are in regular active service and not disqualified not
APPENDIX C
Case: 15-10290
Document: 00514612884 Page: 2 Date Filed: 08/23/2018
having voted in favor, (FED R. App. P. and 5TH CIR. R. 35) the Petition
for Rehearing En Banc is also DENIED.
( )
A member of the court in active service having requested a poll on the
reconsideration of this cause en bane, and a majority of the judges in
active service and not disqualified not having voted in favor, Rehearing
En Bane is DENIED.
ENTERED FOR THE COURT:
UNITED §TATES CIRCUIT JUDGE
*Judge Ho did not participate in the consideration of the rehearing en bane.
mo
0
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
JOHN 1JRANGA, HI,
Petitioner,
V.
Civil No. TI 1 -CV-088-0KA
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Eorrectonai institutions Division,
Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
After making an independent review of the pleadings, files, and records in this case, of the
Report and Recommendation of the United States Magistrate Judge, and of Petitioner's objection
s
thereto, lam of the opinion that the findings of fact, conclusions of law, and reasons for dismissal
set forth in the Report and Recommendation of the Magistrate Judge are correct and they are hereby
adopted and incorporated by reference as the Findings of the Court.
Accordingly, the petition for writ of habeas corpus is DENIED.
30 ORI)iRi3D trs 11th day of March, 2014.
Gonno
UNITED STATES DISTRICT JUDGE
APPENDIX D
4
N
U
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
JOHN LJRANGA, 111,
Petitioner,
V.
Civil No. 7:11-C V-088-0-KA
WILLIAM STEPHENS, Director,
Texas Department of Criminal Justice,
Correctona1 Institutions Division,
Respondent.
)
Ti JDflMFNT
This action came on for consideration by the Court, and the issues having been
duly
considered and a decision duly rendered,
IT IS ORDERED, ADJUDGED AND DECREED that the petition for writ of habeas corpus
is DENIED.
SIGNED this 11th day of March, 2014.
UNITED STATES DISTRICT JUDGE
APPENDIX E
Case 7:11-cv-00088-0 Docum
ent
38 Filed 02/18/14 Page 1 of 25
PagelD 154
IN THE UNITED STATES DISTR
ICT COURT
FOR THE NORTHERN DiSTRICT
OF TEXAS
WICHITA FALLS DIVISION
JOHN URANGA. III
Petitioner
§
§
§
§
V
CIVIL ACTION NO: 7:11-C V-088-OKA
§
§
§
DIRECTOR TDCJ-CID
Respondent
Report and Recommendation
Petitioner Uranga seeks habeas corp
us relief in this Court pursuant to
Under the authority of 28 U.S.C.
28 U.S.C. §2254.
§ 636(b) and Rules 8(b) and JO of the Rules Governi
2254 Proceedings for the United
referred to the undersigned United
ng Section
States District Courts. on Decemb
er 10,
2013, this case was
States Magistrate Judge by Order of
Ref
erence (Docket No.34)
for hearing, if necessary, and propos
ed findings of fact and recommend
recommend that the District Court
deny
ation for disposition. I
Petitioner's Application for Writ of
Habeas
Corpus for the
following reasons:
Custody Status
The Petitioner. John Uranga 111
, is currently in custody of the Tex
Corrections serving a sentence of life
of the 78' District Court of Wichita
as Department of
imprisonment' pursuant to a 2008 judg
ment and sentence out
County, Texas. Uranga was charged
with possession of a
The state court records submitted here
in by the state of Texas on Septem
ber 6,
2011, contain the following materia
ls which shall herein be referenced
as follows: "CR" refers to
the state court clerk's record of the
trial papers; RR refers to the state
court reporter's
transcript of trial court proceedings
; "DAR" refers to the record on the
dire
ct appeal; and
"SHCR" refers to the state court cler
k's record of the state habeas corpus
proceeding records.
APPENDIX F
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 2 of 25 PagelD 155
controlled substance, namely methamphetamine in amount of one gram or more but less than four
grams, enhanced to life imprisonment with two prior felony convictions. Uranga entered a plea of
not guilty to a jury. On November 29, 2006, the jury found Uranga guilty as charged and, on
November 30, 2006 assessed punishment at life imprisonment.
Punishment Events
The same twelve person jury that served at the guilt/innocence stage also served and heard
the evidence at the punishment stage. During the punishment stage, for sentence enhancement
purposes, the State introduced evidence of Uranga's two prior felony convictions and a host of
unadjudicated offenses, including one involving a car chase incident. This incident took place in
September of 2006 when Uranga drove his car onto someone's property to elude the police during
the car chase. This incident was captured in by a video camera in the police vehicle that was chasing
Uranga. When the State offered the video recording into evidence and played it for the jury, one of
the jurors discovered that it was his lawn that had been damaged by the Uranga's careening car.
Outside the presence of the otherjury members, the court questioned thejuror regarding the incident
with regard to any potential bias that may have affected the juror as a result of the incident.
Following the colloque between the trial judge and thejuror, Uranga's trial counsel verbally moved
for a mistrial but the trial judge overruled the mistrial motion. It was this ruling that formed the
foundation of Uranga's direct appeal, the discretionary review, his state habeas corpus proceeding,
and this cause now before this court.
Post-Trial Procedural Status
On direct appeal Uranga's conviction was affirmed by the Sixth Court of Appeals of Texas
in early 2008 with written opinion. Uranga v. Slate 247 S.W.3d 375 (Tex. App.—Texarkana 2008,
,
2
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 3 of 25 PagelD 156
pet. granted). Thereafter, the Texas Court of Criminal Appeals granted Uranga's petition for
discretionary review. Uranga v. State, PSR No. 0385-08 (Tex. CIM. App. August 20, 2008). On
November 17,2010. the Court of Criminal Appeals affirmed thejudgments of the appellate and trial
courts with written opinion. Uranga v. Stale 330 S.W.3d 301 (Tex. CIM. App. 2010). On April
,
25, 2011. Uranga filed an application for state writ of habeas corpus challenging this conviction.
SHCR-0 I at p. 2. On June 22, 2011, the Court of Criminal Appeals denied relief with written order.
SHCR- Olat pp. 1-2. Then on July 8, 2011. Uranga filed his federal habeas corpus petition herein
(Docket No. 1).
Factual Backround of Offense
The Sixth Court of Appeals accurately summarized the factual background for the initial
prosecution in its opinion as follows:
"Kimberly Pinner was working for the Sears department store in Wichita
Falls August 19, 2005, when she detained two men (one of whom was Uranga) for
suspected shoplifting. When Pinner searched through Uranga's Dillard's shopping
bag (in which Pinner found several items believed to have been stolen from Sears),
she found a satchel. Pinner then unzipped this satchel and saw what appeared to be
drugs inside. Pinner closed the satchel, put it down in a location away from Uranga's
reach, and continued questioning the suspects regarding the thefts. Meanwhile,
Uranga kept repeatedly reaching toward his ankle in an attempt to retrieve something
hidden inside his sock. These furtive movements made Pinner suspicious, and she
repeatedly asked Uranga to remain still until police arrived. But Uranga did not heed
Pinner's request; instead, he eventually regained possession of the satchel, which he
opened to retrieve the drugs, and attempted to swallow those drugs. Sears employees
were ultimately able to pull the drugs out of Uranga's mouth and regain control of
the situation until police arrived."
Petitioner's Alleged Claims for Relief
By his petition Uranga makes four claims:
Uranga V. State, supra. at p. 380.
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 4 of 25 Page ID 157
implied Bias -That he was deprived of a fair trial by jury since one juror learned during
the sentencing proceedings that his lawn had been run over by Uranga during a car chase event
making that juror "implied iy biased;"
Failure to investigate-That he received ineffective assistance of trial counsel due to
counsel's failure during pretrial to investigate to learn of, locate and view the video tape of the car
chase- thereby causing him not to directly voir dire thej uror which would have disclosed the juror's
"actual bias" and would have lead to him being stricken from the jury panel for cause.
Brady Viola/ion -That the prosecutor committed a Brady violation by failing to produce
a video tape from the store which purportedly would show Uranga's lack of possession of the drugs;
and,
Actual Innocence -That Uranga was "actually innocent."
State's Responses to the Claims
The State acknowledges that with respect to Uranga's claims (as paraphrased above) Uranga
has exhausted his state remedies and that pursuit of such claims in this Court are not barred by
limitations. The State's answers Uranga's claims follow.
As to the Implied Bias claim, the state asserts: (I) That the Court of Criminal Appeals
(CCA) made express and implied fact and credibility findings which are entitled to deference. The
CCA found Uranga had not proved juror's actual bias; (2) That the trial court properly conducted
a hearing as to any actual bias of the juror and impliedly found that the juror was not biased; and,
(3) That the doctrine of Implied Bias, if it has application at all in the State of Texas, applies only
to "exceptional" or "extreme" cases, of which this case is not one.
As to the Failure to investigate claim, the state asserts: (I) That Uranga made no showing
11
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 5 of 25 Page ID 158
that had his counsel investigated and found the tape he could have tied the event (Uranga's car
running over the juror's lawn) to the individual juror whose bias is alleged so as to have effectively
excluded such juror from the jury; (2) That this conclusory allegation was decided adversely to
Uranga by the Court of Appeals (CA) and such finding is entitled to due deference; and, (3) That,
besides, even if the juror had been barred from the punishment stage proceedings, Uranga cannot
show any prejudice since he cannot show that the sentence would have been any different.
As to the Brady claim, the state asserts: (1) That there was no evidence withheld; (2) That
there were no surveillence tapes of the Sears store where offense events took place to show Uranga's
lack of possession; (3) That Uranga's allegations of existence of such tapes or of prosecutor's
possession. are conclusory only; and, finally, (4) that the CCA denial was not unreasonable.
As to Uranga's Actual Innocence claim, the state asserts that it is merely a disguised
insufficiency of evidence claim that is precluded by the CCA's decision that is entitled to due
deference. Besides, says the state, this claim is procedurally defaulted, unexhausted and barred since
it was not raised on direct appeal and cannot now be raised in a habeas corpus proceeding.
Implied Bias Issue Discussion
After Uranga was convicted by the jury for possession of methamphetamine, and during the
course of the State's evidence presentation during the punishment phase, a videotape of the car chase
was shown to the jury. One of the jurors, Mr. Richardson, recognized as his own the yard Uranga
drove through. For the first time,juror Richardson learned that Uranga was the previously unknown
person who had driven through his yard in the middle of the night. Thus, juror Richardson was a
victim of one of Uranga's unadjudicated extraneous offenses. Richardson reported the situation to
the court after lunch and the trial judge conducted a hearing outside ofthejury's presence to inquire
61
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14
Page 6 of 25 Page ID 159
into the issue. The colloque between the trial judge and juror Richardson went as follows:
COURT: Okay. Come right over here next to the court reporter, if you would please, sir.
You're Kenneth Richardson and you're number 12 on the jury panel, correct?
JUROR: Yes, sir.
COURT: I have told the lawyers what you told me this morning, but on the record I want to
be sure my understanding is correct. Yesterday when you watched the video, during the punishment
phase, of the car and it went up into somebody's yard and then came back out, my understanding
is that you discovered that was your yard?
JUROR: Right, yes.
COURT: And, of course, you had no way of knowing, I don't suppose that that was going
to be a part of this case or that it involved this Defendant?
JUROR: No, I didn't.
COURT: So the first time you learned anything about it was when you saw his car pulling
up in that yard and pulling back Out on that video, right?
JUROR: Right.
COURT: Let me ask you: Have you told anybody else about it?
JUROR: No. Just you.
COURT: Is there anything about that would affect your decision in this case or that would
cause you to lean one way or the other?
JUROR: No, sir.
COURT: Was there anything torn up in your yard that might have made you mad that
somebody did— somebody did something to your yard?
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14
Page 7 of 25 PagelD 160
JUROR: The ground was moved up a little bit, but I can replace that. I'm not pressing no
charges or anything like that.
COURT: Did you see the car come in there, or just saw it
--
JUROR: No. I just saw it on the tape.
COURT: But as far as your yard, did you know anything had happened when it happened,
or did you just see it out there later?
JUROR: In the morning, when I was going to work, I saw it.
COURT: So as far as seeing anything that happened about what car came in there or a
policeman chasing somebody, you didn't see anything like that?
JUROR: No. No, sir.
COURT: You had no knowledge about anything happening until the next morning when you
go out and see car tracks in your yard?
JUROR: Right.
COURT: And you're telling me that the fact that car involves this Defendant, allegedly, and
was the one that was on that video in your yard, that would not influence you one way or the other?
JUROR: No, sir.
COURT: You will not hold that against the Defendant in any way?
JUROR: No. No.
COURT: All right. One thing I'm going to say to you is: Do not let it influence you in any
way.
JUROR: No, I won't.
COURT: N umber two: Do not share that experience with any of the otherj ury members until
7
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 8 of 25 PagelD 161
after we get through.3
Following this colloque, the trial judge afforded defense counsel an opportunity to further
examine the juror. That opportunity was declined. Thereafter, the trial judge denied defense
counsel's oral motion for mistrial.4
State Court Findings and Conclusions
In addressing Uranga's implied bias claim on his direct appeal, the Sixth Court of Appeals
discussed the then current status of the "implied bias" doctrine under both Texas constitutional,
statutory and case law and federal case law. That court concluded that "Given that neither the Texas
Court of Criminal Appeals nor the United States Supreme Court has adopted the implied bias
doctrine when it is discovered in the middle of a punishment trial that a juror is a victim of the
defendants extraneous (misdemeanor-level) conduct, we shall not follow Uranga's suggestion that
such a doctrine must be applied in this case." Proceeding from this legal conclusion, the court
further determined that the record did not support a finding of "actual bias" by the juror since the
trial judge's implied conclusion (which was entitled to deference, absent any evidence to the
contrary in the record) that the juror could remain unbiased was supported in the record. The CA
observed that the trial judge was "in the best position to weigh the believability of the juror's
repeated promises ... that in deciding Uranga's punishment, he would not take into account his status
as a victim of Uranga's extraneous criminal mischief."5 The CA further found that legally and
factually sufficient evidence supported the jury's verdict.'
RR, Reporter's Transcript of Proceedings, Volume 7, "Discussion with juror," pp.
5-7.
Id. pp.8-9.
Uranga v. State. 247 S.W.3d at 379.
6
Id. at381.
8
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 9 of 25 PagelD 162
Addressing this same issue on discretionary review7 almost threejurisprudential years later,
the Court of Criminal Appeals again discussed the then current status of the United States Supreme
Court's acceptance of the "implied bias" doctrine raised by Judge O'Connor's concurring opinion
in Smith v. Phillips. 455 U.S. 209 (1982) at 221 and articulated its own declination to adopt the
doctrine for the State of Texas. Then, applying its own interpretation of the Supreme Court's
decision in Smith v. Phillips. the CCA concluded that the trial court's holding of a hearing on the
issue of the juror's actual bias was appropriate and adequate" precluding application of "implied
bias doctrine" to mandate a mistrial. This decision by a majority of the CCA judges drew a scathing
dissent from Justices Price and Holcomb saying, "Without fanfare, the Court today announces that
there is no such thing as the Sixth Amendment doctrine of implied bias. The whole thing is
apparently a figment of Justice O'Connor's imagination. I am here to attest that the implied bias
doctrine does exist. I know it does; I have seen it."... "Notwithstanding the durability of the Sixth
Amendment doctrine of implied bias, the Court today rejects it almost effortlessly, citing only the
majority opinion in Smith v. Phillips for support.".." This Court's reliance on that majority opinion
today to disown the Sixth Amendment doctrine of implied bias is, in my view, a grievous
mistake... .... "The Sixth Amendment implied bias doctrine is alive and well and ought to be applied
on the facts of this case."8
This conflict between the majority decision and the dissent frames the need for the following
analysis and discussion of this issue in the context of the restrictions upon this Court's authority to
review state court decisions.
/
Uranga v. State, 330 S.W.3d 301 (2010).
Id. at 308.
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 10 of 25 PagelD 163
Standard for Review
The AEDPA provides in relevant part that: (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. Interpreting Congress'
express language in this section of AEDPA, many courts have adopted explanations of what these
two standards mean in the factual contexts of the cases under consideration by those courts.
Under the 'contrary to" clause, a federal court may grant the writ Of habeas corpus if the
state court either arrives at a conclusion opposite to that reached by the United States Supreme Court
on a question of law or decides a case differently from the United States Supreme Court on a set of
materially indistinguishable facts. Williams v. Thy/or, 529 U.S. 362, 412-13 (2000); Chambers v.
Johnson 218 F.3d 360, 363 (5th Cir. 2000). Under the' unreasonable application" clause, a federal
,
court may grant a writ of habeas corpus if the state court either unreasonably applies the correct
legal rule to the facts of a particular case or unreasonably extends a legal principle from Supreme
Court precedent to a new context where it should not apply or unreasonably refuses to extend that
principle to a new context where it should apply. Williams, 529 U.S. at 407; see also. Valdez v.
Cockrell
,
274 F.3d 941 (5th Cir. 2001). A state court unreasonably applies clearly established
federal law if it identifies the correct governing principal but unreasonably applies that principal to
the facts of the case. Brown v. Pay/on 544 U.S. 133, 141 (2005). The question is not whether a
,
federal court believes the state court's determination was incorrect but whether that determination
10
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 11 of 25 PagelD 164
was unreasonable- a substantially higher threshold. Schriro v. Landrigan.550 U.S. 465,473 (2007).
The standard for determining whether a state court's application was unreasonable is an objective
one, and applies to all federal habeas corpus petitions which, like the instant case, were filed after
April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy,
521 U.S. 320, 326 (1997).
Furthermore, in reviewing the determinations by the state courts, the Supreme Court further
instructed the federal courts to be sure the determinations were made "on the merits" giving due
deference" to the state court's findings. In the context of habeas corpus, "adjudicated on the merits"
is a term of art referring to a state court's disposition of a case on substantive rather than procedural
grounds. Green v. Johnson 116 F.3d III 5, 1121 (5th Cir. 1997). Upon a finding of state court
,
compliance with the "contrary to" clause of 28 U.S.C. § 2254(d)(1), federal courts give deference
to the state court's findings unless such findings violate the "unreasonable application" clause of 28
U.S.C. § 2254(d)(2). Chambers, supra. at 363. The "unreasonable application" clause concerns only
questions of fact. Hill v. Johnson 210 F.3d 48185 (5th Cir. 2000). The resolution of factual issues
,
by the state court is afforded a presumption of correctness and will not be disturbed unless the
habeas petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. 2254(e)(l);
§
Sumner v. Mata. 449 U.S. 539, 550 (1981). Absent such evidence, the presumption of correctness
is applied provided that the state court's findings are evidenced in writing, issued after a hearing on
the merits, and are fairly supported by the record. 28 U.S.C. § 2254(d) ; e.g., Burden v. Zant ,498
U.S. 433, 436-37 (1991); Williams v. Scott
,
35 F.3d 159. 161 (5th Cir. 1994). Furthermore, as
discussed above, AEDPA put into place a deferential scheme, under which the federal court must
defer to a state court adjudication on the merits. 28 U.S.C. § 2254(d). In the prefatory paragraph to
(d)(l) and (d)(2), the statute provides that an application for a writ of habeas corpus "shall not be
II
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 12 of 25 PagelD 165
granted with respect to any claim that was adjudicated on the merits in State court proceedings."
The word "shall" is mandatory in meaning. In re Armstrong ,206 F.3d 465,470 (5th Cir. 2000); Ci
of Dallas, Tex. v. FCC. 165 F.3d 341,358 (5th Cir. 1999). Thus. the court lacks discretion as to the
operation of this section. Lopez v. Davis, 531 U.S. 230, 240-41, 121 S. Ct. 714, 722, 148 L. Ed. 2d
635 (2001); Escondido Mu!. Water Co. v. La Jolla Band of Mission Indians 466 U.S. 765, 772-77,
104 S. Ct. 2105, 2110-2113, 80 L. Ed. 2d 753 (1984). The use of "any" makes clear that this section
applies to all cases adjudicated on their merits in state court. The term "adjudication on the merits,"
like its predecessor "resolution on the merits," refers solely to whether the state court reached a
conclusion as to the substantive matter of a claim, as opposed to disposing of the matter for
procedural reasons. Neal v. Puckett 239 F.3d 683, 686-87 (5th Cir. 2001); Mercadel v. Cain, 179
.
F.3d 271,274 (5th Cir. 1999). It does not speak to the quality of the process. See Green v. Johnson,
supra at 1121 (rejecting pre-AEDPA contention that "the resolution on the merits prerequisite is a
proxy for the quality of the legal process resolving a dispute"); Murphy v. Johnson, 205 F.3d 809,
813 (5th Cir. 2000) (applying Green to 'adjudication on the merits")
Discussion
Status of Implied Bias Standard
As noted above, the CCA decision was rendered on July 8. 2011. By that time, the CCA had
itself already noted that the implied bias doctrine had been accepted by at least live of the circuits,
including the Fifth Circuit, without qualification. State v. Morales, 253 S.W.3d 686, 696 (Tex. CIM.
App. 2008).9 As heatedly pointed out in their vehement dissent, Judges Price and Holcomb opined
that the majority had wrongly interpreted the then status of acceptance of the implied bias doctrine
by the Supreme Court of the United States and by the Circuits.
"The Second, Fifth, Seventh. Ninth, and Tenth Circuits..." at note 33
12
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 13 of 25 PagelD 166
As to the acceptance of the doctrine, the Dissent was correct. The doctrine had been firmly
accepted by the Supreme Court as well as by the majority of the Circuits. To the extent that the
majority opined otherwise, it was wrong. Indeed in Brooks v. Dretke, 444 F. 3d 328 (2006),
summarized by Judge Price in his dissent the Fifth Circuit, after discussing the very cases Supreme
Court analyzed by the CCA in its decision, had already opined that the doctrine of implied bias is
'clearly established Federal law as determined by the Supreme Court."°(emphasis supplied).
Many Fifth Circuit cases both before and after the CCA decision have confirmed the viability
and acceptance of the "implied bias doctrine" as the law of the land in both state and federal criminal
jury trial prosecutions. Freeman v. Thaler, 491 Fed. Appx. 506 (5ti Cir. 2012) (Unpublished)("We
will find implicit bias as a matter of law only in extreme situations when "no reasonable person
could not be affected in his actions as a juror and in which the Constitution refuses to accept any
assurances to the contrary"); Wiley v. Grimmer, 476 Fed. Appx. 292 (5th Cir. 2012) ("Because there
is no evidence of express bias here, Wiley must show specific facts demonstrating such a close
connection between Townsend and the circumstances at hand that bias is implied as a matter of law.
United States v. Scott. 854 F.2d 697, 699 (5th Cir. 1988). Juror bias is imputed only in extraordinary
circumstances. Andrews v. Collins, 21 F.3d 612, 620 (5th Cir. 1994), and no such circumstances
were presented in this case. See Scott, 854 F.2d at 699-700; United Stales v. Buckhalter, 986 F.2d
875, 879 (5th Cir. 1993); Brooks v. Dretke. 444 F.3d 328, 332 (5th Cir. 2006);" Hatten v.
Quarterman. 570 F.3d 595 (51h Cir. 2009), cert. denied 559 U.S. 906 (2010) (There is also a narrow
class of relationships described by Justice O'Connor's concurrence in Smith v. Phillips, and
recognized by this court on several occasions, for which a juror can be presumed biased.)
Similarly, the District Courts in the Fifth Circuit have likewise found the "implied bias
10
At p. 332.
13
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 14 of 25 PagelD 167
doctrine" to be firmly entrenched in their districts. Bernuchauz v. Cain, 2013 U.S. Dist. LEXIS
117083 (ED Ia. 2013)(recognizing the 'Implied bias doctrine has been adopted in the 5th Circuit,
citing Brooks v. Dreike, but found that the facts did not fall implicate the doctrine); Garcia v.
Thaler, 2009 U.S. Dist. LEXIS 116390 (WD Tex. 2009): "The Fifth Circuit recognizes three
categories of disqualifying jury bias ... Implied bias arises in a narrow category of cases in which a
juror can be presumed biased. (citing Hatten v. Quarterman). See Especially Magistrate Judge
Karen L Haynes' Report and Recommendation in Ingram v. Goodwin, 2013 U.S. Dist. LEXIS
157215 (ED La 2013), adopted by district court 2013 U.S. Dist. LEXIS 157215 (W.D. La., Sept.17,
2013) in which Magistrate Judge Haynes reviewed the entire field of cases on implied bias in the
5'Circuit as they related to the Supreme Court decisions. Magistrate Judge Haynes also found that
"the Louisiana Supreme Court's conclusion to the contrary constitutes an objectively unreasonable
application of the doctrine of implied bias."
To the extent the CCA's decision was a determination that the "implied bias doctrine" was
neither viable nor accepted, it was wrong. Nonetheless, Supreme Court and Fifth Circuit
jurisprudence instructs us that
"....
it is the state court's "ultimate decision
"
that is to be tested for
unreasonableness, and not every jot of its reasoning. Neal v. Puckett, 286 F.3d 230, 246 (5th Cir.
2002) (en banc); Sante/lan v. Cockrell. 271 F.3d 190, 193 (5th Cir. 2001); see also Catalan v
Cockrell, 315 F.3d 491, 493 (5th Cir. 2002) (". . we review only the state court's decision, not its
.
reasoning or written opinion.
. .
."). Indeed, state courts are presumed to know and follow the law,"
Woodford V. Visciotti, 537 U.S. 19 (2002) at 24. And, even where the state court fails to cite to
applicable Supreme Court precedent or is unaware of such precedent, AEDPA' s deferential standard
of review nevertheless applies "so long as neither the reasoning nor the result of the state-court
decision contradicts [Supreme Court precedent]." Early v. Packer, 537 U.S. 3, 8(2002); Harringlon
v. Richter. 131 S. Ct. 770 (2011) at 786."
14
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 15 of 25 PagelD 168
Thus, a fair reading of the majority decision by the CCA is that it founded its decision, not
upon the lack of viability or acceptance of the doctrine, but upon a departure from or narrowing of
the application of the doctrine due to the critical facts distinguishing the case before them from those
cases in the state and in the federal courts preceding their decision, to-wit; that the information
tending to raise an inference of bias in the juror was communicated during the sentencing phase,
rather than the guilt-innocence phase of the trial and, further, that the potential for bias was curable
and was cured by hearing and determination by the trial court. These critical facts led the CCA to
announce its departure or narrowing from the "implied bias doctrine," saying:
"In this case, the trial court held a hearing during the trial on the issue of actual bias.
We hold, in accordance with the Supreme Court's reasoning in Smith v. Phillips, that
such a procedure was appropriate and adequate. There was no requirement of a
mistrial on a theory that bias must be implied to the juror." p. 306.
Thus, the CCA was relying upon the context in which the potentially biasing information
was communicated to the juror and upon the opportunity for and the effect of a cure. For the CCA,
given that the defendant had already been found guilty of the offense before the information came
to the attention ofthejuror, the possibility ofjuror bias as to guilt of the defendant was diminished.
And the CCA determined that in the light of the colloque between thejudge and thejuror, actual bias
ofthejuror by was negated as well. Therefore, CCA concluded that the court could not "imply" that
the juror was biased to the extent that the trial court should have granted a mistrial.
Application of the Standard
As observed by Justice O'Connor,juror bias may manifest itself in many contexts during the
guilt/innocence phase or during the punishment phase of a trial, such as: lying on voir dire, being
a victim of a similar crime, applying for law enforcement job, taking a bribe. Since the Supreme
Court's decision in Smith v. Phillips, state and federal courts have been required to explore and
15
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 16 of 25 PagelD 169
determine the context, scope and effect of the "implied bias doctrine" articulated by
Justice
O'Connor in her concurring opinion Because of the many contexts in which juror bias may
arise,
it is just such a required exploration that the Supreme Court itself recognized in Yarborough i'.
Alvarado, 541 U.S. 652 (2004) wherein the Court opined, "We begin by determining the relevant
clearly established law. For purposes of 28 U.S.C.
§ 2254(d)(1), clearly established law as
determined by this Court "refers to the holdings, as opposed to the dicta, of this Court's decisions
as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362,412, 120
S.Ct.
1495, 146 L.Ed.2d 389 (2000). We look for "the governing legal principle or principles set
forth by
the Supreme Court at the time the state court renders its decision." Locker v. Andrae, 538
U.S. 63,
71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).h1
The Court further explored the scope of the "unreasonable application" saying: "The
meaning of "unreasonable" can depend in part on the specificity of the relevant legal rule.
If a rule
is specific, the range of reasonable judgment may be narrow. Applications of the rule may be
plainly
correct or incorrect. Other rules are more general, and their meaning must emerge in applicatio
n over
time. The more general the rule, the more leeway courts have in reaching outcomes in case
by case
determinations."
One issue the CCA majority relied upon in avoiding the application of the implied bias
doctrine was that the bias-causing or bias-initiating information came to juror Richardson during
the
punishment phase of the trial. Becausejuror bias may arise or manifest itself even in the punishme
nt
phase of a trial, the mere fact that it is discovered during the punishment phase does not
preclude
the application of the implied bias doctrine. Rather, the issue becomes whether that bias potential
is curable or must be presumed or imputed to the juror even after a curative hearing. It was
II
Atp.661.
just this
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 17 of 25 PagelD 170
situation that was addressed by Justice O'Connor in Smith v. Phillips where she stated, "Because
there may be circumstances in which a postconviction hearing will not be adequate to remedy a
charge of juror bias, it is important for the Court to retain the doctrine of implied bias to preserve
Sixth Amendment rights." 2 This issue of the opportunity and effect of cure (or rehabilitation) is the
same principal and results in the same determination the trial court must make-during voir dire
examination when a juror discloses some connection to or information about the offense, the
witnesses, parties, law enforcement, etc. Certainly, as recognized by Justice O'Connor, there are
some circumstances in the context of a criminal trial both as to guilt/innocence or punishment phases
that the bias-generating circumstance or knowledge is so potentially strong that it precludes curing
or rehabilitation. For instance, consider the circumstance that a female rape victim is empaneled on
the juror for a rape trial. No matter how unlikely it is that such a juror would "escape" discovery
during voir dire, it would still be unlikely that a trial judge would allow such a juror to remain on
thejury during the punishment phase notwithstanding thej uror' s assurances of impartiality. It would
be as unlikely that a court, in the appeal context, would not have difficulty with a trial court's
determination that the potential bias could be cured by hearing and juror assurance. It is just such
exceptional" or "extraordinary" situations that "state-court proceedings resulting in a finding of "no
bias" are by definition inadequate to uncover bias that the law conclusively presumes.' 3
Exceptional or Deference
Addressing those circumstances where juror bias potential is great, the Fifth Circuit has
opined, "We will find implicit bias as a matter of law only in extreme Situations when "no
reasonable person could not be affected in his actions as a juror and in which the Constitution
refuses to accept any assurances to the contrary." Brooks, 444 F.3d at 33 1; see also So/is v. Cockrell.
2
O'Connor concurrence in Smith v. Phillips, at p. 223.
13
Id. p. 222.
17
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14
Page 18 of 25 PagelD 171
342 F.3d 392, 396 (5th Cir. 2003). We will "not readily presume that a juror is biased solely on the
basis that he or she has been exposed to prejudicial information about the defendant outside the
courtroom. Willie v. Maggio, 737 F.2d 1372, 1379 (5th Cir. 1984).14
On the other hand, the same Fifth Circuit opined, "A state court's determination that a claim
lacks merit precludes federal habeas relief so long as 'fair-minded jurists could disagree" on the
correctness of that decision. And the more general the rule being considered, "the more leeway
courts have in reaching outcomes in case-by-case determinations."
Findings on Implied Bias Claim
I find that the Texas Court of Criminal Appeals reached a wrong legal conclusion when it
misconstrued the status of acceptance and application of the"implied bias doctrine" applicable to
state as well as federal prosecutions. Nonetheless, the court's legal conclusion that the potential for
bias of a juror could and should be explored by a factual hearing at the trial court level as to the
source, cause and effect of a bias-generating condition or event was a correct application of the
Supreme Court's holdings in the Rammer and Smith cases and their progeny. I find that the Court's
implied legal conclusion, that the information discovered by juror Richardson was not so biasproducing as to renderjuror Richardson "impliedly biased" thereby precluding rehabilitation or cure.
was supported by the record. I further find that the trial court's implied fact finding that juror
Richardson lacked "actual bias" was supported by the trial court record. I conclude that the Texas
Court of Criminal Appeals reached the right result albeit for the wrong reason.
Accordingly giving due deference to the express and implied findings of the state trial and
appellate courts' findings and legal conclusions. I conclude that Uranga has not shown that the state
courts' decisions on the merits of his implied bias claim meet either of the criteria under AEDPA
14
Freeman v. Thaler, supra. p. 507.
18
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 19 of 25 PagelD 172
warranting
relief. They did not (I) result 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) result in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding. Accordingly I recommend
to the District Court that Petitioner's implied bias claim be denied.
Ineffective Assistance of Counsel Claim
Ineffectiveness of Counsel Review Standard
The Sixth Amendment of the United States Constitution guarantees a criminal defendant
'reasonably effective assistance" of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984).
When a convicted defendant seeks relief on the ground of ineffective assistance of counsel, he
must show that (1) counsel's representation fell below an objective standard of reasonableness,
and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of
the trial would have been different. Strickland. at 687-91 & 694. "A reasonable probability is a
probability sufficient to undermine confidence in the outcome." Strickland at 694. "It is well settled
that effective assistance is not equivalent to errorless counsel or counsel judged ineffective by
hindsight. Rather, inquiry must be made into the totality of the circumstances surrounding counsel's
performance to determine whether reasonably effective representation was provided." Tiering v.
Estelle. 692 F.2d 3, 7 (5ffi Cir. 1982). A court reviewing an ineffectiveness claim must indulge a strong
presumption that counsel's conduct fell within the wide range of reasonable professional competence
or that, under the circumstances. the challenged action might be considered sound trial strategy. A
court reviewing an ineffectiveness claim need not consider the two inquires under Strickland in any
particular order since a failure to establish either requirement necessarily defeats the claim. Strickland,
at 697; Smith v. Paced, 907 F.2d 581, 584 (5h1 Cir. 1990).
'The proper measure of attorney performance remains simply reasonableness under prevailing
Ire'
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14
Page 20 of 25 PagelD 173
professional norms." Strickland, at 688. "Judicial scrutiny of counsel's performance must be
deferential," and "a court must indulge a strong presumption that counsel's conduct
highly
falls within the
wide range of reasonable professional assistance." Id. at 689 "[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable. Id.
"
at 690;
Knowles v. Mirzayance, 556 U. S. 111, 124 (2009). When the court's review is governe
d by
AEDPA—as is the case here—the review of the state court's resolution of the
ineffect
assistance-of-counsel claim is "doubly deferential", since the question is "whether the
ive-
state court's
application of the Strickland standard was unreasonable." Harrington v. Richter, 13 1 S. Ct.
770, 785,
178 L. Ed. 2d 624 (2011). Importantly, "[t]his is different from asking whether defense
counsel's
performance fell below Stricklands standard," because the "state court must be granted a
deference
and latitude that are not in operation when the case involves review under the Stricklan
d standard
itself." Id. Consequently, "even a strong case for relief does not mean the state court's
conclusion was unreasonable." Id. at 786. Rather, in order to obtain habeas re1ief, "a
contrary
state prisoner
must 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." Id. at 786-87.
Uranga asserts his trial attorney was ineffective because he failed to "adequately investiga
te
videotape of the evading arrest prior to voir dire."15 Additionally, Uranga claims
that
due to
counsel's failure "adequately investigate" the videotape, counsel failed to "pro-po
und (sic)
appropriate question regarding the extraneous offense during the voir dire" and
"forfeited the right to thereafter impute bias to the juror." Finally, Uranga contend
thus, Uranga
s that counsel
15
Docket No. l at 7.
16
Id.
20
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 21 of 25 PagelD 174
was ineffective because he allowed the jury to separate without Uranga's consent. 17
Uranga presented these claims in his application for state writ of habeas corpus, which was
denied with written order, wherein the court observed, "Applicant contends that the State failed to
disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), that his rights under the
Sixth and Fourteenth Amendments were violated, and that trial counsel rendered ineffective
assistance."(emphasis added). Then the court stated, "Based on our independent review of the
record, we conclude that Applicant's claims related to his possession of controlled substance
conviction are without merit and are denied."" This was clearly an adjudication on the merits.
Singleton v. Johnson, 178 F. 3d 381, 384 (5th Cir. 1999); Exparte Torres, 943 S.W.2d 469, 472
(Tex. Crini. App. 1997) (holding a "denial" signifies an adjudication on the merits while a
"dismissal" means the claim was declined on grounds other than its merits). Therefore, Uranga must
demonstrate this decision was either an unreasonable application of clearly established federal law
or an unreasonable application of the facts in light of the evidence presented. 28 U.S.C.
§ 2254(d).
Strickland requires a defendant to establish deficient performance and prejudice. Uranga can
establish neither. Uranga has not shown "that counsel's representation fell below an objective standard
of reasonableness" Strickland. at 687-688. Uranga makes no allegation or showing that a pre-trial
viewing of the video tape of the car chase incident would have disclosed to Uranga's trial counsel
that any prospective juror on the panel, much less that juror Richardson, was the owner of the lawn
where Uranga's car traveled during the car chase. According to juror Richardson's own testimony
during his colloque with the court, Richardson confirmed that he was not there when the car
careened through his yard but discovered the tracks the next morning.' 9 Without some sort of notice
17
Id. at 5.
8
SHCR-0 I (EventiD: 244755 1) at cover. 6, 11-14, 2626-29.
19
RR. Reporter's Transcript of Proceedings, "discussion with juror,"
pp. 5-7.
21
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 22 of 25 PagelD
(visual or otherwise) of a connection between the lawn shown in the video and ajuror,
175
Uranga's trial
counsel would have no reason to voir dire any member of the panel as to a potential connecti
on of
the juror's lawn with Uranga or to challenge Richardson on his ownership of the impacte
d lawn.
Therefore, there was no occasion or causation for Uranga's trial counsel to make a strategic
or
other
reasoned choice to investigate or view the video tape. Adequate effectiveness of
counsel
, not
perfection, is the standard. Uranga's trial counsel did not fail by either measure. Every
effort
be made to eliminate the "distorting effects of hindsight." Strickland, 466 U.S. at 689.
court's express finding, that Uranga's claims of ineffectiveness of his trial counsel
must
The state
were without
merit, is entitled to due deference and was indeed correct. Accordingly, I recomm
end that the
District Court deny Uranga's claims regarding his trial counsel's performance.
Brady Violation Claim
In Brady v. Maryland. 373 U.S. 83, 87(1963), the Supreme Court held that the suppress
ion
by the prosecution of evidence favorable to an accused after a request violates due
process where
the evidence is material either to guilt or punishment, irrespective of the good faith
or bad faith of
the prosecution. Impeachment material is evidence "favorable to the accused," and
as such comes
under the Brady rule. Giglio v. United States, 405 U.S. 150, 154 (1972). To
establish a Brady
violation. Uranga must prove the following: (I) the prosecutor suppressed or withheld
which was favorable; and (3) material to the defense. Moore v. Illinois, 408
evidence; (2)
U.S. 786, 794-95
(1972); Ogle v. Estelle, 641 F.2d 11227 1124 (5th Cir. 1981).
Uranga alleges that the State violated Brady because "the State failed to bring
pictures, films videotapes of this incident ."20 But he wholly fails to identify
any particular item or
category of items he claims were withheld. Presumably. Uranga is referring to security
20
Docket No.], p. 17 "Error Three."
22
any and all
tapes from
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14 Page 23 of 25 PagelD 176
the Sears store where the theft took place. During the trial there was a discussion of the potential
location of security videos from security cameras at the Sears building where the incident occurred,
but the transcript of that examination does not demonstrate the video's ever existed or were ever in
possession of the prosecution.2 ' Uranga fails to demonstrate that any pictures, films, or videotapes
of the theft existed. Uranga has not shown that the determination by the Texas Court of Criminal
Appeals to deny his claim on its merit was legally or factually unreasonable. Because Uranga has
not met his burden, I recommend that the District Court deny this claim.
Actual Innocence Claim
To leap over the Kuhln7ann22 hurdle Uranga claims his "actual innocence" of the drug
possession charge. In support of his claim of "actual innocence" of the offense of possession of a
controlled substance. Uranga claims (I) that the State "did not allege that the weight contained
adulterants or dilutants and did not offer sufficient proof that the controlled substance sized and
tested weighed at least on gram or more but less than four grams' and (2) the law enforcement
witnesses did not tie Uranga to the "Dillard's bag" that contained the drugs, so there was no
evidence that Uranga had possession of them. This is merely a "sufficiency of the evidence"
challenge masquerading as a claim of actual innocence.
On Uranga's direct appeal, the Texas Sixth Court of Appeals directly addressed Uranga's
sufficiency of the evidence challenge as to the evidence of his possession of the drugs. The court
expressly found that "Because ... (2) legally and factually sufficient evidence supports the jury's
21
RR, Reporter's Transcript of Proceedings, Vol. 4. pp. 40-48.
22
Kuhlrnann v. Wilson, 477 U.S. 436 (1986) wherein the court stated "In the light of
the historic purpose of habeas corpus and the interests implicated by successive
petitions for federal habeas relief from a state conviction, we conclude that the
"ends of justice" require federal courts to entertain such petitions only where the
prisoner supplements his constitutional c/a/in with a colorable showing of factual
innocence. "(emphasis added).
23
Case 7:11-cv-00088-0 Document 38 Filed 02/18/14
Page 24 of 25 PagelD 177
verdict, we affirm the trial court's judgment."23 That finding is entitled to deference. That finding
is not an unreasonable determination of the facts. That finding is correct. Furthermore, the factual
sufficiency of the evidence cannot be considered on state habeas corpus review 24 and is procedurally
barred from consideration here. Accordingly, I recommend that the District Court deny Urangas
claim of actual innocense.
No Necessity for Hearing
Petitioner requests an evidentiary hearing25 for purposes of further developing the record in
support of his claims. 28 U.S.C. § 2254(e)(2). However, the Supreme court case Cullen v.
Pinholster, 131 S. Ct. 1388, 2011 U.S. LEXIS 2616, 179 L. Ed. 2d 557 (2011) made clear that
federal habeas review under the deferential 28 U.S.C. § 2254(d)(1) standard applicable to claims
adjudicated on the merits in state-court proceedings is limited to the record before the state court.
Uranga is not entitled to an evidentiary hearing.
Recommendati
Based upon the foregoing, I recommend that the District Court deny all relief on Uranga's
petition.
Standard Instruction to Litigants
A copy of this report containing findings and recommendations shall be served on all parties
in the manner provided by law. Any party who objects to any part of this order, report, findings and
recommendations must file specific written objections within 14 days after being served with a copy.
See 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72(b). In order 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
23
Uranga v. State, supra. at p. 16-17.
24
Exparte Grimsby, 137 S. W. 2d 673, 674 (Tex. CI M. Ap. 2004); West v. Johnson,
92 F.3d 1385, 1398, n. 18 (5th Cir. 1996).
25
Application, Docket No. 1, p. 20.
24
Case 7:11-cv-00088-0 Document 38 Piled 02/18/14
Page 25 of 25 PagelD 178
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 Assn, 79 F.3d 1415, 1417 (5th Cir. 1996).
It is so ORDERED, this 18t1 day of February, 2014.
Robert K. Roach
UNITED STATES MAGISTRATE JUDGE
25
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.