Petition for Writ of Certiorari — Trujillo v. Quarterman (No. 07-1244)
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Supreme eas) U.S.
FILE
4 3 O 071 244 MAR 2 7 9008
: OFFICE OF THE CLERK
Sn The
Supreme Court of the Anited States
&
MICHAEL MARTINEZ TRUJILLO,
Petitioner,
NATHANIEL QUARTERMAN,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Fifth Circuit
PETITION FOR WRIT OF CERTIORARI
MICHAEL C. GROSS,
Counsel of Record
106 South St. Mary’s Street,
Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920 Fax
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED FOR REVIEW
Whether the Court of Appeals failed to follow Miller-
El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154
L.Ed.2d 931 (2003) and similar cases from the Sixth,
Seventh, Tenth, and Eleventh Circuit Courts of
Appeals in denying a certificate of appealability on a
claim of ineffective assistance of counsel regarding a
failure to request a jury instruction on duress when
evidence of duress was the sole defense presented at
trial?
il
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW............. i
I OF COPE IIIIS oo. cn cc cnccececeseccssenssees ii
ME OF AUITIIORITIOS |. ..........-.--c.cececcccoseccesess iii
NE ooo csc secisessvaccessesscedecosecaes 1
| NERS es oar eee Somer st 2
CONSTITUTIONAL AND STATUTORY PROVI-
SIONS INVOLVED............-.-.- iin Oiteg aies nee ee 2
STATEMENT OF THE CASE,.........ssesssssssseedeeseeee 2
REASONS FOR GRANTING THE PETITION..... 6
The United States Court of Appeals has de-
cided an important question of federal law in a
way that conflicts with relevant decisions of
TT ns 6
I. The standard for ineffective assistance of
i a a 6
II. The standard for granting a certificate of
STAI CIID win siviccs ca sicceesnccecscreaviactosys 8
Iii. A COA should have been granted for the
failure to request a jury instruction on du-
TE easasccanniihniccapuincetecscncietetcincsacsves tenure 11
IV. The Fifth Circuit decided this case con-
trary to Miller-El and the Sixth, Seventh,
Tenth, and Eleventh Circuit Courts of Ap-
tide ocscicidiac ructisanaknicbabaédovgehiovieassautamessiians 17
ill
TABLE OF CONTENTS — Continued
Page
APPENDIX
Opinion of the Court of Appeals, dated January
Re andes ewens la
Memorandum and Recommendation and Order
of the Magistrate Judge, dated November 7,
PARI eivsccsiiswacss sak Seeu kala KUiies eave wade nnsinduanawededievsinvs 1b
Order of the District Court, dated January 12, .
tf SSSR Ny ctor nf ELSE IR EES PONE RIN MRIS OF AEP lc
Order of the District Court, dated April 16,
ee og lucua ld
Constitutional Provisions and Statutes .................... le
PURO EG GE PROM hs TIE oi ov oscins cs cc'snsceecccpsnconcscencccceess 1f
1V
TABLE OF AUTHCRITIES
Page
CASES
STATE CASES
Alford v. State, 806 S.W.2d 581 (Tex. App. —
BEE TE BGG Fass casio Loss tidswncedccccciviviniasveaniens 11
Bernal v. State, 647 S.W.2d 699 (Tex. App. —
Ban ANtoniG IGSZ, TO DOC) cc. -eecccccccceccsssssseseorsess 11
Booth v. State, 679 S.W.2d 498 (Tex. Crim. App.
1984)... ee eeesesceeesseenseneesssnsesensesnssesevsseaeeesecseosoenes 11
FEDERAL CASES
Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct.
SSGG, TT UT Dek TOG CAS a sisia cess ccnccincecceccisesces 10
Baxter v. Thomas, 45 F.3d 1501 (11th Cir. 1995) ........ 7
Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006).......... 22
Jones v. McDonough, 2007 U.S. App. LEXIS
1488 (11th Cir., January 24, 2007) (unpub-
OS 2 SEE EOS SOE EE RUDI Hak Oe, RON HRN PERT 18
Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555,
RD ce ee OE ainsi cas can iden tccckcowacasevecas 7,8
Lindsey v. King, 769 F.2d 1034 (5th Cir. 1985)........ 7,8
Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct.
SG 128 Es eA BD (CIGGS) 5 csncccscecsasceasocsuevssceenes 7
Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 154 L.Ed.2d 931 (2003)........... 9, 10, 17, 21, 26
Perry v. McCaughtry, 308 F.3d 682 (7th Cir.
IE inline socket casas aucthelekexctiasvbaas dataset 20, 21
Vv
TABLE OF AUTHORITIES ~ Continued
| Page
Richardson v. United States, 526 U.S. 813, 119
S.Ct. 1707, 143 L.Ed.2d 985 (1999)......................2. 19
Slack v. McDaniel, 529 U.S. 473, 120 S.Ct.
3596, 146 1.0.26 542 (2000) ......................00...... 9, 26
Sonnier v. Johnson, 161 F.3d 941 (5th Cir. 1998)....... 10
Strickland v: Washington, 466 U.S. 668, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984).............. 6, 7, 8, 17
Thompson v. Konteh, 2006 U.S. App. LEXIS
6252 (6th Cir., March 14, 2006) (partial pub-
is ipecetieans psksbasadanstesgsess 18, 19
United States v. Demeree, 2004 U.S. App.
LEXIS 18508 (10th Cir., September 1, aoa
a SNS RSS ec en 19
Westley v. Johnson, 83 F.3d 714 (5th Cir. 1996) .......... 8
Whitehead v. Johnson, 157 F.3d 384 (5th Cir.
oo coca wntenisdsnpernvenesevcoes 10
STATUTES AND RULES
si ccscnetevnevensunvepccseeusbnnetvesesessessee 2
I ara thindsniccwncsieensoseecsentvoqvevessucssossconses 3
ili a nada vnevewsvensxsorsevvassvehoonsenvesense 2,3
icin seiscewerrecasecswewccnsseesesmess 2,3,9
I itectiicksvnnnsaereisaasnsavenoenvssesvssseessesasens 2,3
SE I I, DD ooo snes ncn nescsocasnncenensenctevenseses 3
Tex. Pen. Code Ann. § 8.05 .............0......... ‘cilbcahciciieiapachiae 11
vi
TABLE OF AUTHORITIES — Continued
1
Michael Martinez Trujillo respectfully petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Fifth Circuit
in this case.
S
OPINIONS BELOW
The opinion of the Court of Appeals (App., infra,
la) denying the request for a certificate of appealabil-
ity is not published. Trujillo v. Quarterman, No. 07-
50172 (5th Cir., January 16, 2008). The memorandum
and recommendation of the magistrate judge at the
district court level (App., infra, 1b) recommending
denial of the Petitioner’s Petition for Writ of Habeas
Corpus is not published. Trujillo v. Quarterman, No.
SA-06-CA-577-OG (W.D. Tex., November 7, 2006).
The order of the district court (App., infra, 1c) accept-
ing the recommendation of the magistrate judge is
not published. Trujillo v. Quarterman, No. SA-06-CA-
- 577-OG (W.D. Tex.,.January 11, 2007). The district
court order denying a certificate of appealability
(App., infra, 1d) is not published. Trujillo v. Quarter-
man, No. SA-06-CA-577-OG (W.D. Tex., April 14,
2007).
2
JURISDICTION
The Court of Appeals entered its judgment on
January 16, 2008. There was no motion for rehearing
filed in this case. The jurisdiction of this court is
invoked pursuant to 28 U.S.C. § 1254(1).
5
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The constitutional provisions and statutes in-
volved in this case are the Sixth and Fourteenth
Amendments of the Constitution of the United States;
and 28 U.S.C. §§ 2241, 2253, and 2254. The pertinent
text of these constitutional provisions and statutes
are set out at Appendix E.
.%
Vv
STATEMENT OF THE CASE
The Petitioner was charged in the 187th Judicial
District Court of Bexar County, Texas with capital
murder allegedly occurring on December 27, 2001. (T
— 819-320). The Petitioner entered a plea of not
guilty before the jury on May 13, 2003. (R - v.7 — 1,
6). The jury found the Petitioner guilty on May 21,
" The clerk’s record from the trial will be referred to as “T
and page number.” The court reporter’s record from the trial will
be referred to as “R and volume and page number.” The court
reporter’s record from the state writ hearing will be referred to
as “WHC and volume and page number.”
3
2003 which resulted in an automatic life sentence. (R
— v.13 - 1, 93).
The Fourth Court of Appeals, District of Texas, in
an unpublished memorandum opinion, affirmed the
judgment of the trial court. Trujillo v. State, No. 04-
03-00467-CR (Tex. App. — San Antonio, July 14, 2004,
no pet.). Neither a petition for discreticnary review
nor a petition for writ of certiorari was iuled. A state
application for writ of habeas corpus was filed on
August 5, 2005 and was denied by the Texas Court of
Criminal Appeals on June 28, 2006. |
A petition for writ of habeas corpus was filed on
July 3, 2006 in the United States District Court for
the Western District of Texas and was denied without
a hearing on January 11, 2007. Notice of appeal was
timely filed on January 26, 2007. The federal district
court denied a certificate of appealability on April 14,
2007. The Petitioner filed with United States Court of
Appeals for the Fifth Circuit seeking a certificate of
appealability as to ineffective assistance of counsel.
This request was denied on January 16, 2008.
In this habeas case brought by a person in state
custody, the district court had federal jurisdiction
pursuant to 28 U.S.C. §§ 2241 and 2254. The Court of
Appeals had federal jurisdiction of the appeal from
the final order and judgment of the United States
District Court for the Western District of Texas
pursuant to 28 U.S.C. §§ 1291, 2253, 2254, and Rule
22(b) of the Federal Rules of Appellate Procedure.
4
In opening statement, trial defense counsel
stated that Danny Gonzales, a Mexican Mafia mem-
ber, shot the two complainants in the head with a .25
caliber handgun and that Adam Gomez, also a Mexi-
can Mafia member, then shot the two complainants
with a 9mm handgun. (R — v.12 -— 10, 13). Counsel
stated that Michael Trujillo, Steve Salgado, and
Fernando Gonzales helped Danny Gonzales and
Adam Gomez dispose of the bodies. Jd. at 11. Counsel
stated that Michael, Steve, and Fernando were afraid
of Danny and Adam and that is why they helped
dispose of the bodies. Id. Counsel stated that Michael
was afraid for his lire and that is why Michael helped
dispose of the bodies and cover up the incident. Jd.
Counsel stated that Michael did not report the inci-
dent to the police because Michael was afraid that he
would be shot and killed if he reported the incident.
Id. Counsel stated that the evidence established “a
pattern of intimidation and fear that was placed into
Michael... ” Jd.
Michael’s wife, Lori Trujillo, testified that after
the incident, Michael was in fear for his life. (R — v.12
— 52). Fernando Gonzales testified that he met Danny
Gonzales in November 2001 after Danny Gonzales
was released from prison. Jd. at 70. Fernando testi-
fied that, after the shooting, Danny Gonzales told
Fernando to bring Michael back to the garage where
the shooting had occurred or else Danny Gonzales
and Adam Gomez would kill Michael and his family.
Id. at 99. When Fernando returned with Michael,
Adam Gomez pointed his gun at Fernando, Steve, and
5
Michael and told Fernando to take the keys to Valle’s
car and drive the car to the garage. Jd. at 99-100.
Danny Gonzales then told them to put the bodies into
the car and Michael, Fernando, and Steve loaded the
bodies. Jd. at 101-102. While Danny Gonzales and
Adam Gomez still had their guns, they told Fernando
to drive one car and Michael to drive the other car. Jd.
at 103-104. They disposed of the bodies while Steve
Salgado was told to remain at the garage and clean it.
Id. at 107. Danny Gonzales and Adam Gomez then
told Michael to drive them and Fernando to the home
of the girlfriend of Danny Gonzales. Jd. at 107-108. At
the home, Danny Gonzales told Fernando and Mi-
chael that if they ever told anyone what happened, he
would kill their families and them. /d. at 109. The
next day, Danny Gonzales ordered Fernando and
Michael to clean the garage. (R — v.12 — 112-113).
The trial defense counsel never requested a jury
instruction for the defense of duress. The instructions
read to the jury by the trial judge did not contain an
instruction for the defense of duress. (R — v.13 — 25-
35). During deliberations, the jury sent a note to the
trial judge inquiring if the jury could consider-a lesser
included offense. Jd. at 91. This was clearly not a
strong case against Michael.
In the affidavit of the state direct appeal appel-
late counsel (App., infra, 1f), counsel stated that he
read the reporter’s record and “was immediately
struck by the omission of an instruction in the court's
charge on the defense of duress.” Jd. It was clear
to appellate counsel, after reading the record, that
6
Michael became involved in this incident only be-
cause he was in imminent fear for his life or of immi-
nent serious bodily injury from Danny Gonzales. Id.
Appellate counsel confronted trial defense counsel
about the lack of a duress instruction, and trial
defense counsel seemed to be upset with himself for
not requesting the duress instruction. Jd. Appellate
counsel is of the opinion that Michael received inef-
fective assistance of counsel given this failure to
request a duress instruction. Jd. Appellate counsel is
of the opinion that this failure seriously prejudiced
the defense and resulted in a loss of confidence in the
outcome of the trial. Id. “The failure of {counsel] to
prosecute the duress defense was devastating error
and caused me to have serious doubts about the
validity of the verdict.” Jd.
4
REASONS FOR GRANTING THE PETITION
The United States Court of Appeals has decided
an important question of federal law in a way that
conflicts with relevant decisions of this Court.
I. The standard for ineffective assistance of
counsel.
Effective assistance of counsel is a right guaran-
teed by the Sixth Amendment of the United States
Constitution, applied to the States through the Four-
teenth Amendment of the United States Constitution.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
7
2052, 80 L.Ed.2d 674 (1984). Under this test, one
must show that counsel’s performance was deficient
and that the deficient performance prejudiced the
defense. Id. Prejudice means there is a reasonable
probability that but for counsel’s acts or omissions,
the outcome of the proceeding would have been
different, and a reasonable probability is a probability
sufficient to undermine confidence in the outcome. Id.
An ineffective assistance of counsel claim is a mixed
question of law and fact subject to plenary review
under the Strickland test. Baxter v. Thomas, 45 F.3d
1501, 1512 (11th Cir. 1995). Suppressed impeachment
evidence may have consequences for the case far
beyond discrediting the witness’ testimony. Lindsey v.
King, 769 F.2d 1034, 1042 (5th Cir. 1985). Prejudice
analysis should not focus on determination of out-
come but on whether error ensures that the result of
the proceeding was fundamentally unfair or unreli-
able. Lockhart v. Fretwell, 506 U.S. 364, 371, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993). This ineffective-
ness standard was met in the case at bar and the
decision of the Court of Appeals is contrary to estab-
lished law.
This Court has conducted a materiality standard
for a Brady claim which is the same showing required
to demonstrate the above prejudice from counsel’s
deficient performance. Kyles v. Whitley, 514 U.S. 419,
115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Materiality
does not require a defendant to demonstrate by a
preponderance of the evidence that the absence of the
error would have ultimately resulted in an acquittal
8
or a life sentence. Jd. at 1565-1566. The test is
whether the error undermines confidence in the jury’s
sentence of death or conviction for capital murder. Id.
at 1566. This is not a sufficiency of the evidence test —
that is, the defendant is not required to demonstrate
‘that after discounting the inculpatory evidence in
light of the undisclosed evidence, there would have
been insufficient evidence remaining to convict or
return a sentence of death. Id. The reviewing court
should view the favorable evidence and determine if
it reasonably puts the whole case in such a different
light so as to undermine confidence in the verdict. Id.;
see Lindsey v. King, 769 F.2d 1034, 1042 (Sth Cir.
1985) (suppressed impeachment evidence may have
consequences for the case far beyond discrediting the
witness’ testimony). Materiality must be assessed in
terms of the suppressed evidence considered as a
whole, not item by item. Kyles v. Whitley, supra, 115
S.Ct. at 1567. Prejudice under Strickland should be
considered in the same manner. See also Westley v.
Johnson, 83 F.3d 714, 719 (5th Cir. 1996) (prejudice
analysis should not focus on determination of out-
come but on whether error ensures that the result of
the proceeding was fundamentally unfair or unreli-
able); Lockhart v. Fretwell, 506 U.S. 364, 371, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993).
II. The standard for granting a certificate of
appealability (COA).
“(W]hen a habeas applicant seeks permission to
initiate appellate review of the dismissal of his petition,
9
the court of appeals should limit its examination to a
threshold inquiry into the underlying merit of his
claims.” Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct.
1029, 1034, 154 L.Ed.2d 931 (2003), citing Slack v.
McDaniel, 529 U.S. 473, 481, 120 S.Ct. 1595, 146
L.Ed.2d 542 (2000). Pursuant to 28 U.S.C. § 2253(c)(2),
“a prisoner seeking a COA need only demonstrate ‘a
substantial showing of the denial of a constitutional
right.’” Miller-El v. Cockrell, supra, 123 8.Ct. at 1034.
(Emphasis added). “A petitioner satisfies this stan-
dard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude
the issues presented are adequate to deserve encour-
agement to proceed further.” /d., citing Slack v.
McDaniel, supra, 529 U.S. at 484.
In determining whether to issue a COA, an
appellate court must conduct an overview of the
claims in the habeas petition and a general assess-
ment of the claims’ merits. Miller-Ei v. Cockreil,
supra, 123 S.Ct. at 1039. An appellate court will “look
to the District Court’s application of AEDPA to peti-
tioner’s constitutional claims and ask whether that
resolution was debatable amongst jurists of reason.”
Id. The Petitioner is not required to establish the
appeal will succeed. Id. (Emphasis added). “Accord-
ingly, a court of appeals should not decline the appli-
cation for a COA merely because it believes the
applicant will not demonstrate an entitlement to
relief.” Id. “It is consistent with § 2253 that a COA
10
will issue in some instances where there is no cer-
tainty of ultimate relief.” Jd.
“A prisoner seeking a COA must prove ‘some-
thing more than the absence of frivolity’ or the exis-
tence of mere ‘good faith’ on his or her part.” Miller-El
v. Cockrell, supra, 123 §.Ct. at 1040, citing Barefoot v.
Estelle, 463 U.S. 880, 893, 103 S.Ct. 3383, 77 L.Ed.2d
1090 (1983). For the issuance of a COA, it is not
required that the Petitioner prove that some jurists
would grant the habeas petition. Miller-El v. Cockrell,
supra, 123 S.Ct. at 1040. “Indeed, a claim can be
debatable even though every jurist of reason might
agree, after the COA has been granted and the case
has received full consideration, that petitioner will
not prevail.” Jd. The Petitioner in the case at bar has
made a claim that is debatable among jurists of
reason regarding trial defense counsel’s failure to
request a jury instruction on duress.
In applying the COA requirement, a reviewing
court resolves “any doubt about entitlement to a COA
in favor of granting it.” Sonnier v. Johnson, 161 F.3d
941, 944 (5th Cir. 1998). (Emphasis added). “Should
we have any doubt about issuing a COA... we shall
grant it.” Whitehead v. Johnson, 157 F.3d 384, 386
(5th Cir. 1998). For the reasons set forth below, this
case meets the Barefoot standard, and the Petitioner
was entitled to the issuance of a COA.
11
Ili. A COA should have been granted for the
failure to request a jury instruction on
duress.
Section 8.05 of the Texas Penal Code states that,
“It is an affirmative defense to prosecution that the
actor engaged in the proscribed conduct because he
was compelled to do so by threat of imminent death
or serious bodily injury to himself or another.” Com-
pulsion exists only if the force or threat of force would
render a person of reasonable firmness incapable of
resisting the pressure. Id. The claim of duress must
have an objective, reasonable basis. Bernal v. State,
647 S.W.2d 699, 706 (Tex. App. — San Antonio 1982,
no pet.) (defendant’s fear that co-defendant might get
violent if defendant did not “take his turn” in rape
held not sufficient to raise defense of duress). (Em-
phasis added). It is not enough to think violence
might occur where no actual threats have been made.
The threats must have been made to the extent that
an actor had a reasonable fear for his life or the life of
his family. Alford v. State, 806 S.W.2d 581, 584 (Tex.
App. — Dallas 1991). A defendant is entitled to an
affirmative defensive instruction on every issue raised
by the evidence, regardless of whether it is strong,
feeble, unimpeached, or contradicted, and even if the
trial court ‘s of the opinion the testimony is not
entitled to belief. Booth v. State, 679 S.W.2d 498 (Tex.
Crim. App. 1984). (Emphasis added).
A jury instruction regarding duress is required in
a case such as the case at bar where a defendant and
his family had been threatened by gang members, the
12
defendant owed a complainant money for drugs, the
complainant owed the gang money for selling the
drugs, the defendant invited the complainant and
gang members to his home, gang members shot and
killed the complainants at the home of the defendant,
the defendant did not seem surprised when the
complainants were shot by the gang members, and
the defendant was in fear for his life after the shoot-
ings and was forced by the gang members to help
dispose of the bodies of the complainants.
In th: case at bar, the position put forth by trial
defense counsel and the developed evidence made
clear that the Petitioner, Michael, was afraid of
Danny Gonzales and had good reason to be afraid. In
opening statement, trial defense counsel stated that
Danny Gonzales, a Mexican Mafia member, shot the
two complainants in the head with a 2Z5 caliber
handgun and that Adam Gomez, also a Mexican
Mafia member, then shot the two complainants with
a 9mm handgun. (R — v.12 — 10, 13). Counsel stated
that Michael Trujillo, Steve Salgado, and Fernando
Gonzales helped Danny Gonzales and Adam Gomez
dispose of the bodies. Jd. at 11. Counsel stated that
Michael, Steve, and Fernando were afraid of Danny
and Adam and that is why they helped dispose of the
bodies. Id. Counsel stated that Michael was afraid for
his life and that is why Michael helped dispose of the
bodies and cover up the incident. Jd. Counsel stated
that Michael did not report the incident to the police
because Michael was afraid that he would be shot and
killed if he reported the incident. Jd. Counsel stated
13
that the evidence established “a pattern of intimida-
tion and fear that was placed into Michael ... ” Id.
The groundwork for a duress instruction was prof-
fered by trial defense counsel at the beginning of
trial, and counsel admitted Michael’s involvement
while offering the jury an explanation for Michael’s
fear of Danny Gonzales and Adam Gomez.
Trial testimony indicated that Michael owed a
complainant money for drugs. (R — v.7 — 30-35).
Michael brought one of the shooters, Adam, to Mi-
chael’s house. (R — v.9 — 138-149). After Michael had
the complainants come to his house, they were shot to
death by Adam in the presence of Michael and Steve
Salgado and others. Jd. at 138-256. Testimony indt-
cated that Michael acted nervous and scared but
turned on the radio and shut off the lights. Jd. Steve
Salgado testified at trial that Michael told Salgado
that Michael was sorry that Salgado saw the murders,
that Salgado was in the wrong place during the
murders, and that Michael and his family had
been threatened. (R —- v.9 — 178). Salgado testified
that Michael did not seem surprised when Adam
produced a gun and shot the complainants. Id. at 235-
237. This fear and evidence of threats against Mi-
chael and his family indicate they were made prior
to any criminal activity on the date of offense. This
testimonial evidence alone is sufficient to place
duress in issue in this case deserving of a proper jury
instruction on the defense of duress.
Michael’s wife, Lori Trujillo, testified that after
the incident, Michael continued to be in fear for his
14
life. (R — v.12 — 52). Fernando Gonzales testified that
he met Danny Gonzales in November 2001 after
Danny Gonzales was released from prison. Jd. at 70.
Fernando testified that, after the shooting, Danny
Gonzales told Fernando to bring Michael back to the
garage where the shooting had occurred or else Danny
Gonzales and Adam Gomez would kill Michael and
his family. Id. at 99. When Fernando returned with
Michael, Adam Gomez pointed his gun at Fernando,
Steve, and Michael and told Fernando to take the
keys to Valle’s car and drive the car to the garage. Id.
at 99-100. This testimony is further evidence of
continuing actions on Michael’s part while under
duress. Danny Gonzales then told them to put the
bodies into the car and Michael, Fernando, and Steve
loaded the bodies. Jd. at 101-102.
While Danny Gonzales and Adam Gomez still
had their guns, they told Fernando to drive one car
and Michael to drive the other car. Jd. at 103-104.
They disposed of the bodies while Steve Salgado was
told to remain at the garage and clean it. Jd. at 107.
Danny Gonzales and Adam Gomez then told Michael
to drive them and Fernando to the home of the girl-
friend of Danny Gonzales. Id. at 107-108. At the
home, Danny Gonzales told Fernando and Michael
that if they ever told anyone what happened, he would
kill their families and them. Id. at 109. The next day,
Danny Gonzales ordered Fernando and Michael to
clean the garage. (R — v.12 — 112-113). The testimony
provides clear evidence that Michael was acting
15
under duress throughout any participation in crimi-
nal activity.
Under these facts, trial defense counsel should
have requested a jury instruction on duress. There
was no strategic reason not to request a duress in-
struction. The complete failure to do so is deficient
performance, since sufficient evidence of duress was
before the court and the jury. The instructions read to
the jury by the trial judge did not contain an instruc-
tion for the defense of duress. (R — v.13 — 25-35).
During deliberations, the jury sent a note to the trial
judge inquiring if the jury could consider a lesser
included offense. Jd. at 91. This note is indicative of
how weak the case was against Michael.
In his affidavit (App., infra, 1f), appellate counsel
noted the absence of the duress instruction given the
evidence at trial. Appellate counsel read the re-
porter’s record and “was immediately struck by the
omission of an instruction in the court’s charge on the
defense of duress.” Jd. It was clear to appellate coun-
sel, after reading the record, that Michael became
involved in this incident only because he was in
imminent fear for his life or of imminent serious
bodily injury from Danny Gonzales. Id. Appellate
counsel confronted trial defense counsel about the
lack of a duress instruction, and trial defense counsel
seemed to be upset with himself for not requesting the
duress instruction. Id. Appellate counsel is of the
opinion that Michael received ineffective assistance of
counsel given this failure to request a duress instruc-
tion. Id. Appellate counsel is of the opinion that this
16
failure seriously prejudiced the defense and results in
a loss of confidence in the outcome of the trial. Zd.
“The failure of [counsel] to prosecute the duress
defense was devastating error and caused me to have
serious doubts about the validity of the verdict.” Id.
A jury instruction regarding duress was required
in this case where Michael and his family had been
threatened by gang members, Michael owed a com-
plainant money for drugs, the complainant owed the
gang money for selling the drugs, Michael invited the
complainant and gang members to his home, gang
members shot and killed the complainants at Mi-
chael’s home, Michael did not seem surprised when
the complainants were shot by the gang members,
and Michael was in fear for his life after the shoot-
ings and was forced by the gang members to help
dispose of the bodies of the complainants.
Trial defense counsel failed to consider or request
a jury instruction regarding duress and this failure
was deficient performance. The failure to request a
duress instruction in this case seriously prejudiced
the defense and resulted in a loss of confidence in the
outcome of the trial especially since the jury sent out
a note inquiring if it could consider a lesser included
offense rather than capital murder. The jury was
looking for some way out of convicting Michael for
capital murder. But for this deficient performance,
the result of the proceeding would have been differ-
ent, because the jurors would have received a legal
instruction that placed Michael’s action in context
and the jurors were seeking to find him guilty of a
17
lesser included offense as indicated by the note sent
by them. The Petitioner has demonstrated ineffective
assistance of counsel.
IV. The Fifth Circuit decided this case contrary
to Miller-El and the Sixth, Seventh, Tenth,
and Eleventh Circuit Courts of Appeals.
The threshold question here is the debatability of
this underlying constitutional claim, not the resolu-
tion of that debate. See Miller-El v. Cockrell, supra,
123 S.Ct. at 1042. The district court’s denial of this
ineffective assistance of counsel claim is “debatable
amongst jurists of reason.” A certificate of appealabil-
ity regarding this claim should have issued. The Fifth
Circuit Court of Appeals failed to follow Miller-Ei in
its failure to give adequate consideration to the
ineffective assistance of counsel issue.
The January 16, 2008 order of the Court of Ap-
peals denying Michael’s appeal (App., infra, 1a), was
eleven lines long. Only five lines dealt with the inef-
fective assistance of counsel issue. Jd. at 1-2. There is
a complete omission of any reference to Strickland or
the standard for ineffective assistance of counsel. Id.
The Fifth Circuit acknowledged that Michael argued
that trial defense counsel was ineffective for failing to
request a duress jury instruction. Jd. at 1. The order
then makes the declaration that there has been no
showing that jurists of reason would find it debatable
whether the lower district court was correct in its
ruling and then summarily denies a certificate of
18
appealability. Jd. at 2. No analysis is presented in the
order. Other circuits have granted certificates of
appealability in cases where ineffective assistance of
counsel was raised in regards to jury instruction
issues.
In Jones v. McDonough, it was argued that
counsel’s failure to rely on a Florida case (which held
that a jury instruction on consciousness of guilt based
on evidence of flight was an impermissible judicial
comment on the weight of the evidence) while object-
ing to a jury instruction was ineffective assistance of
counsel under Strickland. Jones v. McDonough, 2007
U.S. App. LEXIS 1488 (11th Cir., January 24, 2007)
(unpublished). The district court granted a certificate
of appealability as to whether trial counsel’s perform-
ance was deficient for failing to make this objection to
the jury instruction. In the case at bar, the Petitioner,
Michael, requested that the Court of Appeals grant
him a certificate of appealability regarding whether
counsel was ineffective in failing to request a duress
instruction when that was the defense at trial. Abso-
lutely no reason was given by the Court of Appeals
regarding why a COA should not be granted or
why Michael’s case was different from Jones uv.
McDonough.
In Thompson v. Konteh, the federal district court
denied the Petitioner’s writ of habeas corpus for his
conviction in an aggravated murder case and denied
a certificate of appealability. Thompson v. Konteh,
2006 U.S. App. LEXIS 6252 (6th Cir., March 14,
2006) (partial publication). Thompson then sought a
19
certificate of appealability from the Sixth Circuit
Court of Appeals, which was granted on the issue of
whether Thompson was denied effective assistance of
counsel for failing to object to an erroneous jury
instruction. Jd. At trial, no objections were made by
defense counsel to the submitted instructions. Jd. The
court examined the instructions for proper applica-
tion of the law regarding Thompson’s arguments that
he was convicted without proof of the requisite culpa-
ble mental state and that the instructions did not
require a unanimous decision on behalf of the jury. Jd.
In the case at bar, the Petitioner, Michael, requested
that the Court of Appeals grant him a certificate of
appealability regarding whether counsel was ineffec-
tive in failing to request a duress instruction when
that was the defense at trial. Absolutely no reason
was given by the Court of Appeals regarding why a
COA should not be granted or why Michael’s case was
different from Thompson v. Konteh.
In United States v. Demeree, the Petitioner’s appli-
cation for a certificate of appealability was denied by
the district court. The Tenth Circuit Court of Appeals,
however, granted her a certificate of appealability on
the sole issue of whether the lack of a jury instruction
requiring unanimous jury consent violated Richard-
son v.-United States, 526 U.S. 813, 119 S.Ct. 1707,
143 L.Ed.2d 985 (1999), and whether counsel’s failure
to request such an instruction constituted ineffective
assistance of counsel. United States v. Demeree, 2004
U.S. App. LEXIS 18508 (10th Cir., September 1,
2004) (unpublished). The court found that Demeree’s
20
evened wee im frat ineffantine far: failing,ta ranjiestan
instruction requiring jury unanimity as to the predi-
cate violations undergirding her conviction, since the
instructions given at trial did meet the requirements
of Richardson. Id. Richardson had not yet been
decided at the time of the Petitioner’s trial, but a
claim of ineffective assistance of counsel was made by
her because another circuit had recognized the impor-
tance of such an instruction to correctly establish a
continuing criminal enterprise conviction. Jd. In the
case at bar, the Petitioner, Michael, requested that
the Court of Appeals grant him a certificate of ap-
pealability regarding whether counsel was ineffective
in failing to request a duress instruction when that
was the defense at trial. Absclutely no reason was
given by the Court of Appeals regarding why a COA
should not be granted or why Michael’s case was
different from United States v. Demeree.
In Perry v. McCaughtry, the Petitioner was
sentenced to life in prison for his role as a party to a
murder. Perry v. McCaughitry, 308 F.3d 682 (7th Cir.
2002). Perry exhausted his appeals in the state
system and filed a writ of habeas corpus alleging
ineffective assistance of counsel. Jd. His petition was
denied and he appealed after the district court
granted him a certificate of appealability on the issue
that his counsel was ineffective for failing to ensure
that the jury instruction on “party to a crime” liability
included a reference to the lesser included offense of
felony murder. Jd. Perry’s claim was that the jury had
no basis to find him a party to any other offense and
were limited by the submitted instructions to first
21
_ degree murder, which acted to his detriment. In the
case at bar, the Petitioner, Michael, requested that
the Court of Appeals grant him a certificate of ap-
pealability regarding whether counsel was ineffective
in failing to request a duress instruction when that
was the defense at trial. Absolutely no reason was
given by the Court of Appeals regarding why a COA
should not be granted or why Michael’s case was
different from Perry v. McCaughtry.
The Petitioner’s ineffective assistance of counsel
claim for a failure of trial defense counsel to request a
duress instruction satisfies the Miller-El standard.
See Miller-El, supra, 537 U.S. 322. “Indeed, a claim
can be debatable even though every jurist of reason
might agree, after the COA has been granted and the
case has received full consideration, that petitioner
will not prevail.” Jd.
In the above-cited cases, certificates were
granted, and all the Petitioners were permitted to
appeal their jury instruction issue in the ineffective
assistance of counsel context. Michael Trujillo should
have received the same opportunity, particularly in a
case where the evidence for duress was evident from
the record. The Petitioner in the case at bar has made
a claim that is debatable among jurists of reason
regarding trial defense counsel’s failure to request a
jury instruction on duress and the Court of Appeals
was incorrect to label the claim not subject to debate.
It is worth noting that a certificate of appealabil-
ity involving the investigation into a possible duress
22
issue in an ineffective assistance of counsel context
was granted in another circuit and was later deter-
mined to have merit. Dando v. Yukins, 461 F.3d 791
(6th Cir. 2006). In Dando, the Petitioner was involved
in a crime spree with her boyfriend and pled no
contest to several robbery counts on advice of ap-
pointed trial counsel and later sought to vacate her
pleas. Id. She filed a habeas petition challenging the
state court’s denial of her request for a mental health
expert and an ineffective assistance of counsel claim
for counsel’s failure to pursue a duress defense. Id.
Dando submitted evidence through appointed appel-
late counsel of a history of sexual and physical abuse
and claimed abuse from the male co-defendant Id.
The ineffective assistance of counsel claim was that
no investigation was done regarding duress as a
potential defense to her criminal liability given her
history as a “battered woman.” Jd. The court ulti-
mately found trial counsel’s failure to investigate and
pursue duress as a defense to be ineffective assis-
tance of counsel. The court noted:
The fact that Dando received a relatively le-
nient sentence in exchange for her no contest
plea does not render the failure to investi-
gate Battered Women’s Syndrome and duress
a sound professional judgment. The state
court praised the decision by trial counsel to
raise Dando’s abuse in obtaining a shorter
sentence. However, had counsel investigated
the potential defenses and pursued them at
trial, Dando would have had a chance to be
acquitted altogether, or convicted of only
23
some of the counts charged and acquitted of
others (perhaps if the jury found the duress
to be more immediate during particular por-
tions of the crime spree).
Id. at 800 (Emphasis added).
This same rationale and conclusion apply to the
case at bar. The failure to pursue duress in a special
requested jury instruction when there was evidence
of duress to support such an instruction greatly
prejudiced Michael. Appellate counsel in his affidavit
(App., infra, 1f) deemed this error “devastating” to
Michael’s defense at trial. The jury had no instruction
on which to rely so as to support their inclination to
hold Michael to a much lesser degree of culpability
given the evidence they received. They certainly had
no instructions to guide them as to duress.
Had trial defense counsel requested a duress jury
instruction given the evidence before the jury, there
stood a chance that Michael would have been acquit-
ted for his role in the charged offense. During delib-
erations, the jury sent a note to the trial judge
inquiring if the jury could consider a lesser included
offense (R — v.13 — 91). This note is indicative of both
their inclination to seek out on their own some means
to shield Michael from conviction of the charged
offense and of how weak the case was against Mi-
chael. The purpose behind the defense of duress is to
demonstrate that one’s actions are the result of
coercion and not voluntary conduct with criminal
mens rea. In the instant case, testimony was heard
24
that Michael acted nervous and scared and that
Michael and his family had been threatened. (R — v.9
— 138-256). Fernando testified that, after the shoot-
ing, Danny Gonzales told Fernando to bring Michael
back to the garage where the shooting had occurred or
else Danny Gonzales and Adam Gomez would kill
Michael and his family. Id. at 99. When Fernando
returned with Michael, Adam Gomez pointed his gun
at Fernando, Steve, and Michael and told Fernando
to take the keys to Valle’s car and drive the car to the
garage. Id. at 99-100. Prior to and after the crime,
Michael and his family were being threatened, and
this fact was not lost on the jurors given the note they
sent to the judge during their deliberations. There is
room for jurists of reason to debate this duress jury
instruction issue.
The Court of Appeals, unlike the Sixth, Seventh,
Tenth, and Eleventh Circuit Courts’of Appeals, failed
to give adequate consideration to the ineffective
assistance of counsel issue. The court appeared to
rely on the order from the district court (App., infra,
lc), that in turn, relied on the magistrate judge’s
memorandum and recommendation (App., infra, 1b),
which was adopted by the district court. This memo-
randum, however, focuses only on evidence of duress
after the murders and fails to address any evidence of
duress that was shown to have occurred prior to the
murders. This limited view of the trial evidence is
incomplete and cannot be used to support a rationale
of effective performance, let alone a decision not to
25
grant a COA, given the complete record and the
evidence presented.
The court noted in its order (App., infra, 1b) that
“the.chosen strategy was in direct contradiction to the
defense of duress, which required Trujillo to admit
that he commutted the offense but did so involuntar-
ily.” Id. at 7. The interpretation of the record was that |
since a party instruction was included in the charge,
the strategy must have been to show that the Peti-
tioner was not involved in the crime at all. Jd. This
strategy, however, was never discussed. Appellate
counsel’s affidavit (App., infra, 1f) shows that trial
defense counsel never once considered duress given
his reaction after the omission was brought to his
attention. No discussion on duress was possible
because trial defense counsel never thought of a
duress instruction in the first place.
The magistrate’s memorandum (App., infra, 1b)
goes on to interpret the Petitioner’s claim of failure to
request a duress instruction as now offering an
alternate defense. This too is incorrect since the
Petitioner’s position is that a jury instruction on
duress should have been requested under the evidence
presented, because the jury was not firmly convinced
of the Petitioner’s guilt. (R — v.13 — 91). The jury could
have considered a duress instruction without argu-
ment from either side on the matter, since the jury
had begun considering lesser included instructions on
their own. It is not an alternate defense, but rather
was a defense that was offered to the jury throughout
26
trial, but was never instructed on, to the detriment of
the Petitioner.
Sufficient evidence of duress was presented at
trial. Trial defense counsel was deficient in his per-
formance for failing to request a duress instruction.
But for this deficient performance, the outcome of this
case as to the Petitioner may have been different. The
Petitioner’s constitutional right to effective assistance
of trial counsel was violated. A prisoner seeking a
certificate of appealability need only demonstrate “a
substantial showing of the denial of a constitutional
right.” Miller-El v. Cockrell, supra, 123 §.Ct. at 1034.
“A petitioner satisfies this standard by demonstrating
that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are ade-
quate to deserve encouragement to proceed further.”
Id., citing Slack v. McDaniel, supra, 529 U.S. at 484.
The Petitioner has satisfied this standard. A certifi-
cate of appealability regarding this claim should have
issued.
27
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MICHAEL C. GROSS
Counsel of Record
106 South St. Mary’s Street,
Suite 260
San Antonio, Texas 78205
(210) 354-1919
(210) 354-1920 Fax
la
APPENDIX A
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT |
No. 07-50172
USDC No. 5:06-CV-577
MICHAEL MARTINEZ TRUJILLO
Petitioner-Appellant
Vv.
NATHANIEL QUARTERMAN, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Western District of Texas
(Filed Jan. 16, 2008)
ORDER:
Michael Martinez Trujillo, Texas prisoner
# XXXXXXX, moves this court for a certificate of
appealability (COA) from the denial of his 28 U.S.C.
§ 2254 petition in which he challenged his capital
murder conviction. Trujillo does not address the
district court’s determination that his claim of grand
2a
jury discrimination was procedurally barred and that
his jury misconduct claim was without merit. There- -
fore, Trujillo has abandoned these claims. See Hughes
v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999).
Trujillo argues that counsel was ineffective for .
failing to request a duress jury instruction. Trujillo
has not shown that jurists of reason would find it
debatable whether the district court was correct in its .
ruling. See Slack v. McDaniel, 529 U.S. 473, 484
(2000). Accordingly, Trujillo’s motion for a COA is
DENIED. :
Priscilla R. Owen
PRISCILLA R. OWEN
UNITED STATES
CIRCUIT JUDGE
1b
APPENDIX B
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL MARTINEZ
TRUJILLO,
Petitioner, |
Vv.
NATHANIEL QUARTERMAN,
Director, Texas Department
of Criminal Justice,
Correctional Inst. Division,
Respondent.
CIVIL NO.
SA-06-CA-0577-OG
%* &¢ & & He eRe He SF HE HE SE
MEMORANDUM AND RECOMMENDATION
(Filed Nov. 7, 2006)
Michael Martinez Trujillo, an inmate in the
custody of the Texas Department of Criminal Justice-
Correctional Institutions Division (“TDCJ-CID”), has
filed an application for a writ of habeas corpus,
pursuant to 28 U.S.C. Section 2254, challenging his
state court conviction for capital murder. Petitioner
alleges that (1) he received ineffective assistance of
counsel at trial, (2) the grand jury was not composed
of a fair cross section of the community, and (3) the |
jury engaged in misconduct. Respondent has filed an
answer (docket no. 10), to which answer petitioner
has not responded. Having considered the pleadings,
the state court records, and the applicable law, the
2b
Court is of the opinion this habeas petition should be
denied.
Background
Trujillo was found guilty of capital murder by a
jury in the 187th Judicial District Court of Bexar
County, Texas, cause no, 2002-CR-3469B. On May 21,
2003, he was sentenced to a term of life imprisonment
in the TDCJ-CID. His conviction was affirmed by the
Texas Fourth Court of Appeals on July 14, 2004.
Trujillo did not file a petition for discretionary review
with the Texas Court of Criminal Appeals. On August
5, 2005, petitioner filed a state habeas application
under Article 11.07 of the Teas Code of Criminal
Procedure. The Texas Court of Criminal Appeals
denied the application on June 28, 2006. This federal
habeas application was filed July 3, 2006.
Standard of Review
Under the Anti-Terrorism and Effective Death
Penalty Act of 1996 (““AEDPA”), a state prisoner may
not obtain relief with respect to a claim adjudicated
on the merits in state court unless the adjudication
(1) resulted in a decision that was contrary to or
involved an unreasonable application of clearly-
establisned federal law, as announced by the Su-
preme Court, 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
proceedings. Title 28 U.S.C. Section 2254(d). A
3b
decision is contrary to clearly-established federal law
if the state court arrives at a conclusion opposite to
that reached by the Supreme Court on a question of
law or if the state court decides a case differently
than the Supreme Court on a set of materially indis-
tinguishable facts. Williams v. Taylor, 529 U.S. 362,
405-06 (2000). It is not enough that the state court
applied clearly-established federal law incorrectly. Id.
at 411. A state-court decision involves an unreason-
able application of clearly established precedent if the
state court applies Supreme Court precedents to the
facts in an objectively unreasonable manner. Brown
v. Payton, 544 U.S. 133, 141 (2005).
Analysis
, 1. Ineffective Assistance of Counsel
To obtain habeas relief on a claim of ineffective
assistance of counsel, the petitioner must demon-
strate that his counsel was deficient and that the
deficiency prejudiced his defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984). In order to
establish that his counsel’s performance was constitu-
tionally deficient, a convicted defendant carries the
burden of proof and must overcome a strong pre-
sumption that the conduct of his trial counsel falls
within a wide range of reasonable professional assis-
tance. Id. at 689-91. An error by counsel, even if
professionally unreasonable, must be prejudicial to
the defense in order to constitute ineffective assis-
tance under the Constitution. Jd. at 692. The mere
4b
possibility of a different outcome is not sufficient to
prove prejudice. Johnson v. Cockrell, 301 F.3d 234,
239 (5th Cir. 2002). The petitioner must prove that
counsel’s deficient performance rendered the result of
the trial unreliable or the proceeding fundamentally
unfair. Lockhart v. Fretwell, 506 U.S. 364, 372
(1993).
Trujillo asserts that the evidence establishes that
Danny Gonzales and Adam Gomez shot and killed
Jose Manjarrez and Steve Valle on December 27,
2001, and that he, Steve Salgado and Fernando
Gonzales were forced by Danny and Adam to help
dispose of the bodies under fear of death to them-
selves and their families. Reporter’s Record, Vol.
XII, p. 11. Trujillo’s wife testified at trial that Trujillo
was in fear for the lives of his family. Id., 52. Fer-
nando testified that Danny and Adam killed Manjar-
rez and Valle in Trujillo’s garage. Id., pp. 94-98.
While pointing a gun at Steve and Fernando, Danny
ordered Fernando to find Trujillo, who had gone into
his house, or else they would kill Trujillo’s family. Id..,
p. 99.
Fernando and Steve were directed to load the
bodies in Manjarrez’s Lexus. Reporter’s Record,
Vol. XII, pp. 100-03. Trujillo assisted. Id., p. 102.
Three vehicles departed the scene of the murder —
Danny and Adam in the front vehicle, with Fernando
behind them in the Lexus with the bodies, followed by
Trujillo in his own vehicle. Id., pp. 104-05. They drove
to the General Hudnell area where Danny directed
Fernando to park the car. Id., pp. 105-06. Fernando
5b
got into Trujillo’s vehicle, and all of the men went
back to Trujillo’s house. Id., pp. 106-07. They picked
up Steve, who stayed behind to clean the garage, and
then drove to the house of Danny’s girlfriend. Id., p.
107. Danny told Fernando and Trujillo that if they
ever told anyone, they would kill them and their
families. Id., p. 109. The next day, Fernando and
Trujillo were told to clean the blood from the garage.
Id., p. 13.
In this Section 2254 habeas application, Trujillo
asserts that, in opening arguments, his trial attorney
advised the jury that Trujillo was forced to dispose of
the bodies. Trujillo complains that, despite the evi-
dence of coercion, his trial attorney did not request a
jury instruction on the defense of duress. This issue
was raised and addressed in Trujillo’s state habeas
application. The state habeas court entered an Order
noting that Trujillo’s trial attorney, H. Todd McCray,
testified by affidavit that he discussed trial strategy
with Trujillo on numerous occasions, and that they
determined that the best strategy was to convince the
jury that Trujillo did not participate in the events
leading up to the shooting or the acts constituting
essential elements of the offense. State Habeas
Record, pp. 173-77. They also intended to show that
Trujillo’s acts after the murders were involuntary. The
state habeas court found that the chosen strategy was
in direct contradiction to the defense of duress, which
required Trujillo to admit that he committed the
offense but did so involuntarily. The Court referred
to the affidavit of Alex Scharff, Trujilio’s appellate
6b
attorney, who believed that the duress defense in-
struction should have been requested. The - staie
habeas court concluded that defense counsel’s deci-
sion was a matter of trial strategy and did not consti-
tute ineffective assistance. The Texas Court of
Criminal Appeals denied Trujillo’s habeas petition
without a written order based upon the findings of
the trial court.
In evaluating a claim of ineffective assistance,
judicial scrutiny of counsel’s performance must be
highly deferential Strickland v. Washington, 466
U.S. at 689. Courts must indulge a strong presump-
tion that counsel’s conduct falls within the wide range
of reasonable professional assistance. Id. Especially
relevant here is the mandate that strategic choices
made after thorough investigation of law and facts
relevant to plausible options are virtually unchal-
lengeable. Id. at 690; Ransom v. Johnson, 126 F.3d
716, 721 (5th Cir. 1997) (tactical and strategic deci-
sions of counsel, based on informed and reasoned
practical judgment, will not be second-guessed).
Clearly, the decision of McCray to pursue the defense
that Trujillo did not participate in the events leading
up to the shooting or the acts constituting essential
elements of the offense, is a matter of trial strategy.
Also, it is undisputed that this decision was made
with Trujillo’s assent. The reasonableness of counsel’s
actions may be determined or substantially influ-
enced by the defendant’s own statements or actions.
Id., at 691. Trujillo has not satisfied his heavy burden
7b
of overcoming the presumption that McCray’s actions
were reasonable.
The state habeas court correctly found that the
chosen strategy was in direct contradiction to the
defense of duress, which required Trujillo to admit
that he committed the offense but did so involuntar-
ily. As respondent notes, the State sought to prove
that Trujillo was involved in # scheme or plan to
murder Manjarrez and Valle even though he did not
shoot the victims himself. Evidence of his actions.
after the murder in disposing of the bodies was
offered to permit the jury to infer Trujillo’s prior
involvement. The jury in this case was instructed
concerning the elements of murder under Texas law.
Clerk’s Record, Vol. 2, pp. 288-99. Based upon the
facts presented at trial, the jury was also charged on
the law of parties. Id. Under Section 7.02(a)(2) of the
Texas Penal Code, Trujitlo could be found guilty as a
party to the murders only if he acted with the intent
to promote or assist in the commission of the offenses.
The jury was asked to determine whether Adam
Gomez and others murdered Steven Valle and
whether Trujillo, acting with the intent to promote or
assist in the commission of the murder, did solicit,
encourage, direct, aid, or attempt to aid Gomez.
McCray and Trujillo chose to require the State to
prov: this allegation beyond a reasonable doubt. In
support of that defense, McCray obtained an instruc-
tion to the jury that mere presence at the scene of a
crime is insufficient to make a person a party to the
offense.
8b
The alternative defense, now suggested by
Trujillo, was that he did act with the intent to pro-
mote or assist in the commission of the murder of
Valie by soliciting, encouraging, directing, aiding, or
attempting to aid Gomez but that he did so under
duress. To be entitled to the defense of duress, under
Section 8.05(a) of the Texas Penal Code, Trujillo must
admit he engaged in the proscribed conduct, but did
so under threat of death or serious injury to himself
or another. Not only is that position contrary to the
defense presented at trial, Trujillo cites no evidence
establishing that he was coerced into aiding in Valle’s
murder. The evidence cited above indicates that
threats by Danny and Adam against Trujillo and his
family were made efter the commission of the mur-
ders. These facts are consistent with the chosen
defense stritegy.
In making its decision, the state habeas court
chose to credit the testimony of McCray concerning
his strategic choice over the affidavit of Scharff that
the duress instruction should have been requested.
Such credibility determinations by the state habeas
court must be afforded deference. Coleman v. Quar-
terman, 456 F.3d 537, 541 (5th Cir. 2006). Also, as
noted above, the state habeas court concluded that
McCray’s decision was a matter of trial strategy. A
determination of a factual issue by a State court shall
be presumed to be correct and can only be rebutted by
clear and convincing evidence. Title 28 U.S.C. Sec-
tion 2254(e)(1). Trujillo has not satisfied that stan-
dard. The determination by the state habeas courts
9b
that Trujillo was not denied the effective assistance
of counsel, is not contrary to and did not involve
an unreasonable application of clearly-established
federal law.
2. Fair Cross Section
Next, Trujillo alleges that the grand jury that
returned the indictment against him was not com-
posed of a fair cross section of the community. He
states that of the 14 persons on the grand jury that
indicted him in May 2002, only 5 had Hispanic sur-
names. The list of prospective jurors from which these
14 were chosen is unavailable. Trujillo states that, as
of 2003, Hispanics comprised 54.3% of the population
of Bexar County, Texas. On average, 34% of the grand
jurors chosen from 1990 to 2002 had Hispanic sur-
names. Trujillo claims that this disparity demon-
strates that his grand jury was not chosen from a fair
cross section of the community.
As respondent points out, this claim has been
procedurally defaulted. The state habeas courts found
that Trujillo had the opportunity but failed to chal-
lenge the grand jury array in a motion to quash the
indictment prior to trial, as required by Texas law. If
a state judgment rests on a state law ground that is
both independent of the merits of the federal claim
and an adequate basis for the court’s decision, federal
review of an issue of federal law is foreclosed. Harris
v. Reed, 489 U.S. 255, 260 (1989). Procedural! default
bars consideration of a federal claim on either direct
10b
or habeas review if the last state court rendering a
judgment in tae case clearly and expressly states that
its judgment rests on a state procedural bar. Id. at —
263; Cvieman v. Thompson, 501 U.S. 722, 729-30
(1991). A federal court reviewing a state prisoner’s
habeas claim must respect a state court’s determina-
tion that the claim is procedurally barred under state
law. Williams v. Cain, 125 F.3d 269, 275 (5th Cir.
1997). :
The fact that the Texas Court of Criminal Ap-
peals did not explain the reasons for its decision does
not preclude application of the procedural bar. If the
last reasoned opinion invokes a procedurai bar, then
it is presumed that subsequent, unexplained deci-
sions rested upon the same basis. Yist v. Nuwane-
maker, 501 U.S. 797, 803 (1991). Thus, in Texas,
when the trial court renders a finding of procedural
default on an issue raised in a state habeas petivion
and the Texas Court of Criminal Appeals denies the
petition based upon the findings of the trial court, the
procedural bar applies. Corwin v. Johnson, 150 F.3d
467, 473 (5th Cir. 1998).
A claim that the method of selecting jurors sys-
tematically underrepresented Hispanics can be
procedurally defaulted. Soria v. Johnson, 207 F.3d
232, 249 (5th Cir. 2000); Cervantes Salazar v.
Dretke, 393 F.Supp.2d 451, 472-73 (W.D.Tex. 2005).
Article 19.27 of the Texas Code of Criminal Procedure
provides that, generally, the exclusive means for
challenging the array of jurors in a grand jury is to
present the challenge before the grand jury has been
11b
impaneled. However, if challenge at this early date is
impossible, as when the offense occurs after the
grand jury is impaneled, the array can be attacked in
a motion to quash the indictment before trial com-
mences. Muniz v. State, 672 S.W.2d 804, 807
(Tex.Crim.App. 1984). In Salazar, as here, the state
trial. court concluded petitioner had procedurally
defaulted his complaint regarding the composition of
his grand jury by failing to present that claim in a
pretrial motion to quash the indictment. 393
F.Supp.2d at 471-72. The Salazar Court also found
that this rule has been a firmly-established principle
of Texas law since 1979. Id. Thus, Salazar was proce-
durally barred from challenging the composition of
the grand jury in a federal habeas proceeding. Id.
Trujillo’s failure to challenge the composition of the
grand jury in accordance with Texas law, and the
state habeas courts’ determination that such failure
caused the grand jury composition claim to be de-
faulted, preclude review of that claim in this Section
2254 proceeding. Trujillo can overcome this proce-
dural bar if he can demonstrate cause for his default
and actual prejudice as a result of the alleged viola-
tion of federal law, or show that failt:re to consider his
claims would result in a fundamental miscarriage of
justice. Coleman v. Thompson, 501 U.S. 722, 750
(1991). However, he has made no attempt to do so.
3. Jury Misconduct
In his final claim, Trujillo asserts that venireman
George Edward Carter, Jr. misrepresented on his
12b
juror information card that he had never been ac-
cused in a criminal case. In fact, Carter was convicted
in 1986 in Bexar County Court-At-Law of driving
while intoxicated. During voir dire, Carter expressed
an inclination not to grant probation in a murder
case. Defense counsel’s challenge for cause on that
basis was denied by the trial court. Carter was a
member of the jury that convicted Trujillo of capital
murder.
To obtain a new trial on the basis of misinforma-
tion provided by a prospective juror, a party must
first demonstrate that a juror failed to answer hon-
estly a material question on voir dire, and then
further show that a correct response would have
provided a valid basis for a challenge for cause,
McDonough Power Equipment, Inc. v. Green-
wood, 464 U.S. 548, 556 (1984). The defendant must
demonstrate that the juror was actually biased or
fundamentally incompetent. United States uv.
Bishop, 264 F.3d 535, 554 (5th Cir. 2001). This
standard is also applied in federal habeas cases.
Montoya v. Scott, 55 F.3d 405, 418-19 (5th Cir.
1995). The state habeas court denied this claim,
finding that Carter’s false response did not hide
prejudice or bias against Trujillo.
Trujilio has not satisfied either McDonough
factor. Whether Carter had a prior conviction for
misdemeanor driving while intoxicated was not a
material fact in this case. Also, Trujillo has not dem-
onstrated that, had this information been known,
Carter would have been subject to a challenge for
13b
cause. Under Section 62.102 of the Texas Government
Code, as it existed at the time of Trujillo’s trial, only
conviction for a felony disqualified an individual from
serving as a juror. Cf. Jackson v. State of Alabama
State Tenure Com’n, 405 F.3d 1276, 1288 (11th Cir.
2005) (a question about prior felony convictions is
material to jury service and an honest answer would
provide a basis to challenge the juror for cause). See
United States v. Ross, 263 F.3d 844, 847 (8th Cir.
2001) (a juror’s previous brushes with the law is more
likely to create a bias in favor of defendants in gen-
eral). Most importantly, his prior conviction revealed
no bias or prejudice against Trujillo. The determina-
tion by the state habeas courts that Trujillo was not
entitled to reversal and a new trial based upon
Carter’s failure to disclose his prior conviction for
driving while intoxicated, is not contrary to and did
not involve an unreasonable application of clearly-
established federal law.
Recommendation
It is, therefore, the recommendation of the Mag-
istrate Judge that Trujillo's Section 2254 habeas
application be DENIED.
Instructions for Service and Notice
of Right to Appeal/Object
The United States District Clerk shall serve a
copy of this United States Magistrate Judge’s Memo-
randum and Recommendation on all parties by either
14b
(1) electronic transmittal to all parties represented by
attorneys registered as a “Filing User” with the Clerk
of Court, or (2) by mailing a copy to those not regis-
tered by certified mail, return receipt requested.
Pursuant to Title 28 U.S.C. Section 636(b)\(1) and
Rule 72(b), Fed.R.Civ.P., any party who desires to
object to this report must serve and file written
objections to the Memorandum and Recommendation
within 10 days after being served with a copy unless
this time period is modified by the district court. A
party filing objections must specifically identify those
findings, conclusions, or recommendations to which
objections are being made and the basis for such
objections; the district court need not consider frivo-
lous, conclusive or general objections. Such party
shall File the objections with the Clerk of Court
and serve the objections on all other parties and
the Magistrate Judge. A party’s failure to file
written objections to the proposed findings, conclu-
sions, and recommendations contained in this report
shall bar the party from a de novo determination by
the district court. See Thomas v. Arn, 474 U.S. 140,
150 (1985). Additionally, any failure to file written
objections to the proposed findings, conclusions, and
recommendation contained in this Memorandum and
Recommendation within 10 days after being served
with a copy shall bar the aggrieved party, except upon
grounds of plain error, from attacking on appeal the
unobjected — to proposed factual findings and legal
conclusions accepted by the district court. Douglass
v. United Services Automobile Association, 79
F.3d 1415, 1428-29 (5th Cir. 1996).
15b
It is so ORDERED.
SIGNED November 7, 2006.
/s/ John W. Primomo
JOHN W. PRIMOMO
UNITED STATES
MAGISTRATE JUDGE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL MARTINEZ
TRUJILLO,
Petitioner,
Vv
NATHANIEL QUARTERMAN,
Director, Texas Department
of Criminal Justice,
Correctional Inst. Division,
Respondent.
CIVIL NO.
SA-06-CA-0577-OG
*
*
*
*
*
*
*
#
*
*
ok
ORDER
(Filed Nov. 7, 2006)
All matters for which this cause was referred to
the Magistrate Judge having been considered and
acted upon;
16b
It is ORDERED that the above-entitled and
numbered cause be, and it hereby is, RETURNED to
the District Court for all purposes.
It is so ORDERED.
SIGNED November 7, 2006.
/s/ John W. Primomo
JOHN W. PRIMOMO
UNITED STATES
MAGISTRATE JUDGE
lc
APPENDIX C
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MICHAEL MARTINEZ
TRUJILLO,
Petitioner,
Vv.
)
)
)
)
) Civil Action No.
NATHANIEL QUARTERMAN, SA-06-CA-0577-OG
)
)
)
)
Director, Texas Department
of Criminal Justice,
Correctional Inst. Division,
Respondent.
ORDER
(Filed Jan. 12, 2007)
Pending before the Court is the Memorandum
and Recommendation of U.S. Magistrate Judge John
W. Primomo (Dkt. #11) and Petitioner’s objections
thereto (Dkt. #13). The Court has reviewed the
objections relating to ineffective assistance of counsel,
conducted an independent review of those portions of
the record relating to such objections, and has re-
viewed the applicable law. See 28 U.S.C. § 636(b)(1);
FepD. R. Crv. P. 72(b). The Court concludes that Peti-
tioner’s objections lack merit and are OVERRULED.
The Magistrate-Judge’s recommendation is
ACCEPTED, and the habeas petition is DENIED for
2c
the reasons stated in the recommendation. This case
may be closed upon entry of judgment.
SIGNED and ENTERED on the 11 day of Janu-
ary, 2007.
/s/ Orlando L. Garcia
ORLANDO L. GARCIA
UNITED STATES
DISTRICT JUDGE
1d
APPENDIX D
UNITED STATES DISTRICT COURT
WESTERN DISTRICT of TEXAS
SAN ANTONIO DIVISION
MICHAEL MARTINEZ
TRUJILLO,
Petitioner,
= 3 Civil Action No.
NATHANIEL QUARTERMAN, § sA-6.CA-577-OG
Texas Department of Criminal §
Justice Correctional
Institutions Division Director, ;
Respondent. §
ORDER
(Filed Apr. 16, 2007)
Petitioner Michael Martinez Trujillo’s Notice of
Appeal construed as a motion for certificate of ap-
pealability (Docket Entry # 16) to appeal the dis-
missal of his 28 U.S.C. $2254 Habeas Corpus
Petition is DENIED for the reasons stated in the
Magistrate Judge’s Report and Recommendation
(Docket Entry # 11) adopted by this Court (Docket
Entry # 14). Petitioner’s Petition and appeal fail to
make “a substantial showing of the denial of a federal
right” as required by Fed. R. App. P. 22 for a certifi-
cate of appealability. See Slack v. McDaniel, 529 U.S.
473, 483, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000).
2d
DATED: April 14, 2007
/s/ Orlando L. Garcia
ORLANDO L. GARCIA
UNITED STATES
DISTRICT JUDGE
le
APPENDIX E
SIXTH AMENDMENT
In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be con-
fronted with the witnesses egainst him; to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Ccunsel for his
defense.
FOURTEENTH AMENDMENT
... No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens
of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
28 U.S.C. § 2241. Power to grant writ
(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective jurisdic-
tions. The order of a circuit judge shall be entered in
the records of the district court of the district wherein
the restraint complained of is had.
Ze
(b) The Supreme Court, any justice thereof, and any
circuit judge may decline to entertain an application
for a writ of habeas curpus and may transfer the
application for hearing and determination to the
district court having jurisdiction to entertain it.
(c) The writ of habeas corpus shall not extend to a
prisoner unless —
(1) He is in custody under or by color of the au-
thority of the United States or is committed for
trial before some court thereof; or
(2) He is in custody for an act done or omitted
in pursuance of an Act of Congress, or an order,
process, judgment or decree of a court or judge of
the United States; or
(3) He is in custody in violation of the Constitu-
tion or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and
domiciled therein is in custody for an act done or
omitted under any alleged right, title, authority,
privilege, protection, or exemption claimed under
the commission, order or sanction of any foreign
state, or under color thereof, the validity and ef-
fect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to tes-
tify or for trial.
(d, Where an application for a writ of habeas corpus
is made by a person in custody under the judgment
and sentence of a State court of a State which con-
tains two or more Federal judicial districts, the
application may be filed in the district court for the
3e
district wherein such person is in custody or in the
district court for the district within which the State
court was held which convicted and sentenced him
and each of such district courts shall have concurrent
jurisdiction to entertain the application. The district
court for the district wherein such an application is
filed in the exercise of its discretion and in further-
ance of justice may transfer the application to the
other district court for hearing and determination.
28 U.S.C. § 2253. Appeal
(a) In a habeas corpus proceeding or a proceeding
under section 2255 before a district judge, the final
order shall be subject to review, on appeal, by the
court of appeals for the circuit in which the proceed-
ing is held.
(b) There shall be no right of appeal from a final
order in a proceeding to test the validity of a warrant
to remove to another district or place for commitment
or trial a person charged with a criminal offense
against the United States, or to test the validity of
such person’s detention pending removal proceedings.
(cX1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be
taken to the court of appeals from —
(A) the final order in a habeas corpus proceed-
ing in which the detention complained of arises
out of process issued by a State court; or
Ae
(B) the final order in a proceeding under section
2255.
(2) A certificate of appealability may issue under
paragraph (1) only if the applicant has made a sub-
stantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph
(1) shall indicate which specific issue or issues satisfy
the showing required by paragraph (2).
28 U.S.C. § 2254. State custody; remedies in Federal
courts
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an applica-
tion for a writ of habeas corpus in behalf of a person
in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of
the Constitution or laws or treaties of the United
States.
(b)(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judg-
ment of a State court shall not be granted unless it
appears that —
(A) the applicant has exhausted the remedies
available in the courts of the State; or
(B)) there is an absence of available State cor-
rective process; or
5e
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may
be denied on the merits, notwithstanding the failure
of the applicant to exhaust the remedies available in
the courts of the State.
(3) A State shall not be deemed to have waived the
exhaustion requirement or be estopped from reliance
upon the requirement unless the State, through
counsel, expressly waives the requirement. 7
(c) An applicant shall not be deemed to have ex-
hausted the remedies available in the courts of the
State, within the meaning of this section, if he has
the right under the law of the State to raise, by any
available procedure, the question presented.
(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judg-
ment of a State court shall not be granted with re-
spect 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 pro-
ceeding.
6e
(e)1) In a proceeding instituted by an application
for a writ of habeas corpus by a person in custody
pursuant. to the judgment of a State court, a determi-
nation of a factual issue made by a State court shall
be presumed to be correct. The applicant shall have
the burden of rebutting the presumption of correct-
ness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual
basis of a claim in State court proceedings, the court
shall not hold an evidentiary hearing on the claim
unless the applicant shows that — ;
(A) the claim relies on —
(1) a new rule of constitutional law, made
retroactive to cases on collateral review by
the Supreme Court, that was previously un-
available; or
(ii) a factual predicate that could not have
been previously discovered through the exer-
cise of due diligence; and
(B) the facts underlying the claim would be suf-
ficient to establish by clear and convincing evi-
dence that but for constitutional error, no
reasonable factfinder would have found the ap-
plicant guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the
evidence adduced in such State court proceeding to
support the State court’s determination of a factual
issue made therein, the applicant, if able, shall pro-
duce that part of the record pertinent to a determina-
tion of the sufficiency of the evidence to support such
Te
determination. If the applicant, because of indigency
or other reason is unable to produce such part of the
record, then the State shall produce such part of the
record and the Federal court shall direct the State to
do so by order directed to an appropriate State offi-
cial. If the State cannot provide such pertinent part of
the record, then the court shall determine under the
existing facts and circumstances what weight shall be
given to the State court’s factual determination.
(g) A copy. of the official records of the State court,
duly certified by the clerk of such court to be a true
and correct copy of a finding, judicial opinion, or other
reliable written indicia showing such a factual de-
termination by the State court shall be admissible in
the Federal court proceeding.
(h) Except as provided in section 408 of the Con-
trolled Substance Acts [21 USCS § 848], in all pro-
ceedings brought under this section, and any
subsequent proceedings on review, the court may
appoint counsel for an applicant who is or becomes
financially unable to afford counsel, except as pro-
vided by a rule promulgated by the Supreme Court
pursuant to statutory authority. Appointment of
counsel under this section shall be governed by
section 3006A of title 18.
(i) The ineffectiveness or incompetence of counsel
during Federal or State collateral post-conviction
proceedings shall not be a ground for relief in a
proceeding arising under section 2254.
1f
APPENDIX F
STATE OF TEXAS
COUNTY OF BEXAR
My name is Alex Scharff. I am over 18 years of
age and fully competent to make this affidavit. I am
an attorney in good standing licensed to practice law
in the State of Texas and have been since November
of 1991. I am fully competent as I have personal
knowledge of the facts contained herein.
I along with attorney Alan Brown represented
Michael Trujillo on the direct appeal of Trujillo's
conviction for capital murder in which he received an
automatic life sentence. I combed the court reporter’s
record several times. I was immediately struck by the
omission of an instruction in the court’s charge on the
defense of duress. It was clear from reading the
record and talking to some witnesses that Trujillo
only became involved in the incident because he was
in imminent fear of his life or of imminent serious
bodily injury from Danny Gonzales. There was
enough evidence adduced at trial to establish a du-
ress defense. However, the trial attorney, Todd
McCray did not object to the charge and did not
request such a defensive charge.
After I had read the record but before I had
written the brief, I talked to Todd McCray one day
while we were both in Judge Mary Roman’s court-
room. McCray asked me how the appeal was going on
Trujillo’s case and if I thought he had made any
mistakes. I told McCray that I thought that the jury
2f
should have been instructed on the defense of duress.
McCray paused and then agreed with me and seemed
to curse himself for not raising the defense.
Based upon my reading of the statement of facts
and talking to trial counsel, I am of the opinion that
Trujillo did not receive the effective assistance of
counsel at his trial. The failure of McCray to prose-
cute the duress defense was devastating error and
caused me to have serious doubts about the validity
of the verdict. His performance and errors was defi-
cient and caused me to lose confidence in the outcome
of the trial. Trujillo’s defense was seriously prejudiced
by McCray’s ineffectiveness.
I swear and affirm that everything contained in
this affidavit is true and correct.
/s/ Alex J. Scharff
ALEX J. SCHARFF
Subscribed and sworn before me on this 28th day of
[June] 2005.
/s/ Cynthia A. Ybarra
NOTARY PUBLIC
CYNTHIA ANN YBARRA
[SEAL} My Commission Expires
December 3, 2007
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.