Lizcano v. Lumpkin

695 F.Supp.3d 815

Juan LIZCANO, Petitioner, v. Bobby LUMPKIN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

No. 3:16-CV-1008-B-BN

United States District Court, N.D. Texas, Dallas Division

Signed September 28, 2023

Debra Janece McComas, Jason Neal Jordan, Stephanie Noelle Sivinski, Haynes and Boone LLP, Dallas, TX, Jason D. Hawkins-FPD, Federal Public Defender, Dallas, TX, Office of the Federal Community Defender, Shawn Nolan, Federal Community Defender for the Eastern District of PA, Philadelphia, PA, for Petitioner.

Katherine Davis Abell, W. Erich Dryden, Office of the Attorney General of Texas, Austin, TX, for Respondent.

MEMORANDUM OPINION AND ORDER

JANE J. BOYLE, UNITED STATES DISTRICT JUDGE.

Petitioner Juan Lizcano filed this federal habeas corpus action pursuant to 28 U.S.C. Section 2254 challenging his state court conviction for capital murder. For the reasons set forth below, all relief requested in Lizcano's second amended federal habeas corpus petition is denied and Lizcano is denied a Certificate of Appealability on all of his claims for relief.

I. BACKGROUND

A. The Offense

A detailed account of Lizcano's capital offense appears in the Texas Court of Criminal Appeals' opinion affirming Lizcano's conviction on direct appeal. Lizcano v. State, AP-75,879, 2010 WL 1817772 (Tex. Crim. App. May 5, 2010).

For purposes of this cause, it is sufficient to explain that on November 13, 2005, Juan Lizcano fatally shot Dallas police officer Brian Jackson. That fact is unassailable. Just weeks before the fatal shooting, while he was being booked by a different officer on a charge of driving while intoxicated, Lizcano angrily announced to a roomful of police officers and other witnesses that the next time he encountered a police officer he would kill that officer. The Dallas police did not take Lizcano's threat seriously, did not press charges for making a terroristic threat, and did not alert federal immigration authorities to Lizcano's status as an undocumented Mexican citizen. As explained below, Lizcano later made good on his threat.

The events of the night in question are also not seriously in dispute. Lizcano went to the home of one of his girlfriends, Marta Cruz, and demanded to know why Cruz had not answered his phone calls that evening.

When he became dissatisfied with Cruz's answer, Lizcano threatened Cruz and fired a shot into the ceiling of her bedroom before he fled the scene. Cruz called police, who arrived shortly thereafter. Police left the scene after taking Cruz's statement and being assured by her that she planned to go stay with a friend. Minutes after police left Cruz's residence, however, Lizcano called Cruz, who informed Lizcano that she had called the police. Lizcano responded that he was watching her residence and could see that the police had left. Cruz hung up on Lizcano, called the police again, and hid inside a closet in her home.

When police arrived at Cruz's residence the second time, they observed Lizcano's vehicle parked in front of Cruz's home with Lizcano's acquaintance Jose Fernandez (a/k/a Yayo) asleep inside. The police conducted a search for Lizcano in the area near Cruz's home. At one point during that search Lizcano fired multiple shots at a group of uniformed officers searching an alleyway. None of the officers were hit or returned fire. Very shortly thereafter as officer Jackson walked around a home not far from where Lizcano had attempted to ambush other officers, Lizcano fired multiple shots at officer Jackson, one of which struck the uniformed officer in the right arm and then the right armpit. Lizcano's bullet traversed officer Jackson's right lung, heart, aorta, and left lung before lodging in his back muscles. The shot proved fatal. Evidence at the crime scene suggested officer Jackson managed to get off a few rounds with his rifle as he fell at the spot where he had been fatally wounded. Lizcano was uninjured by officer Jackson's return fire. He was arrested at the scene. His empty handgun was recovered only a few feet from where he was hiding.

B. Trial Court Proceedings¹

1. Indictment

On December 5, 2005, a Dallas County grand jury indicted Lizcano on a charge of capital murder for fatally shooting officer Jackson while in the lawful discharge of his official duties when Lizcano knew officer Jackson was a peace officer. Clerk's Record of pleadings, motions, and other documents filed in Dallas County cause no. F-0559563 (henceforth "C.R."), at 2-3, 6-7.

2. The Prosecution's Guilt/Innocence Phase Evidence

The guilt-innocence phase of Lizcano's capital murder trial commenced on October 1, 2007. Marta Cruz testified about her encounter with Lizcano the night of officer Jackson's murder as well as Lizcano's subsequent telephone call to her. Testimony of Marta Cruz, 42 R.R. Trial 165-218; 43 R.R. Trial 7-19. The Dallas police officer who responded to a disturbance call at Cruz's residence testified she was at the station when Cruz's second call came in about forty minutes after the first call. Testimony of Lori Rangel, 43 R.R. Trial 36-58. The officers who responded to the second call from Cruz testified about their search for Lizcano, his attempt to ambush officers searching a nearby alleyway, and their arrest of Lizcano. Testimony of David Hodges, 43 R.R. Trial 59-86; Testimony of David Owen Gilmore, 43 R.R. Trial 86-111; Testimony of Brad Ellis, 43 R.R. Trial 119-55; Testimony of Richard Rivas, 43 R.R. Trial 156-226; Testimony of Francis Scott Crump, 44 R.R. Trial 6-58; Testimony of Raymond Michael McClain, 44 R.R. Trial 59-114; Testimony of Walter Clifton, 44 R.R. Trial 115-35; Testimony of Victoria Stonaker, 44 R.R. Trial 136-44. A Dallas paramedic testified officer Jackson had no pulse and was not breathing when he arrived at the scene. Testimony of Jamie Escobedo, 44 R.R. Trial 146-53.

A resident of the neighborhood who witnessed officer Jackson being fatally shot testified he recognized officer Jackson as a law enforcement officer as he walked toward the scene, he was directly across the street when he saw three flashes and heard three shots fired by someone kneeling, he saw the officer fall back, and he heard a second volley of three shots as the officer fell. Testimony of Sergio Nava, 44 R.R. Trial 156-93.

Lizcano's hands tested positive for gunshot residue following his arrest. Testimony of David Walker Spence, 45 R.R. Trial 50-70. A firearms and toolmark examiner testified the bullet removed from officer Jackson's body during autopsy was fired by the revolver found at the crime scene. Testimony of Heather Thomas, 45 R.R. Trial 74-88. The medical examiner testified officer Jackson died from a single gunshot wound which entered his upper right arm, traversed the biceps, and re-entered officer Jackson's body on the right side of his chest; the bullet went through the right lung, through the right side of the heart, then the aorta, through the pulmonary trunk, into the left ventricular cavity, through the left lung, and embedded in the left back; while officer Jackson was likely not rendered unconscious immediately from his wounds, he very likely died within seconds of being shot; and there was too much damage for any amount of medical care to have saved officer Jackson. Testimony of Dr. Jeffrey Barnard, 45 R.R. Trial 88-115.

Lizcano's acquaintance Jose Fernandez testified that he and Lizcano went out drinking on the night in question; Lizcano had no difficulty driving them; Lizcano drove then to Cruz's residence after stopping at Lizcano's apartment; Lizcano threatened to kill Cruz if he discovered she had been out with another man; Lizcano returned to his pickup truck and informed Fernandez that he had fired a shot inside Cruz's residence; Cruz called Fernandez, told him that Lizcano had fired his weapon, reported that she had notified police, and asked Fernandez to take Lizcano home; Fernandez handed his phone to Lizcano, who informed Cruz that he did not care that she had called police; and Lizcano then drove back to Cruz's residence. Testimony of Jose Fernandez, 44 R.R. Trial 203-39.

3. The Defense's Guilt/Innocence Phase Evidence

Lizcano's trial counsel called the residents of the home where officer Jackson was shot, who testified they heard gunfire and witnessed a hectic scene outside the home on the night in question; they heard a thump against the side of his house shortly thereafter; and the next morning they found a stain on the side of his house. Testimony of Edward Vega, 46 R.R. Trial 5-28; Testimony of Jesus Vega, 46 R.R. Trial 29-36. A chemist testified the stain he collected from the side of the house appeared to be blood. Testimony of Byron Max Courtney, 47 R.R. Trial 28-68. A DNA expert testified blood found on the stain from the side of the house matched Lizcano's blood. Testimony of Jodi Hrabel, 47 R.R. Trial 70-76.

4. Guilt/Innocence Phase Verdict

On October 9, 2007, the jury returned its verdict at the guilt-innocence phase of trial and unanimously found Lizcano guilty of capital murder as charged in the indictment. 48 R.R. Trial 84-86; CR 260.

5. Prosecution's Punishment Phase Evidence

The punishment phase of Lizcano's capital murder trial commenced later on October 9, 2007. Several Dallas police officers testified about the shots Lizcano fired on them while they searched an alleyway not far from Cruz's residence and the location where Lizcano later shot officer Jackson. Testimony of Richard Rivas, 48 R.R. Trial 87-93; Testimony of Francis Scott Crump, 48 R.R. Trial 93-97; Testimony of Raymond McClain, 48 R.R. Trial 98-103.

Several Dallas police officers testified about an incident on or about September 16, 2005 in which Lizcano was stopped for driving erratically, Lizcano could not produce a driver's license or proof of insurance, Lizcano could not follow instructions and failed a field sobriety test, and was arrested for driving while intoxicated. Testimony of Eric Morales, 48 R.R....