Saldaño v. Director

VICTOR HUGO SALDAÑO, #999203 Petitioner, v. DIRECTOR, TDCJ-CID, Respondent.

CIVIL ACTION NO. 4:08-cv-193

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

July 18, 2016

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Petitioner Victor Hugo Saldaño ("Saldaño"), an inmate confined in the Texas prison system, filed the above-styled and numbered petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Saldaño is challenging his capital murder conviction and death sentence imposed by the 199th Judicial District Court of Collin County, Texas, in Cause Number 199-80049-96, in a case styled The State of Texas vs. Victor Hugo Saldano, aka Victor Rodriguez. For reasons set forth below, the Court finds that the petition is not well-taken and that it will be denied.

I. PROCEDURAL HISTORY OF THE CASE

Saldaño is in custody for murdering Paul King on November 20, 1995. He was sentenced to death on July 15, 1996. The Texas Court of Criminal Appeals affirmed the conviction and sentence. Saldaño v. State, No. AP-72,556 (Tex. Crim. App. Sept. 15, 1999). The United States Supreme Court remanded the case to the Texas Court of Criminal Appeals for further consideration in light of a confession of error by the Solicitor General of Texas. Saldaño v. Texas, 530 U.S. 1212 (2000). On remand, the Texas Court of Criminal Appeals once again affirmed the conviction. Saldaño v. State, 70 S.W.3d 873 (Tex. Crim. App. 2002). In federal habeas corpus proceedings before this Court, the Director confessed error during the punishment phase of the trial and joined in Saldaño's request for relief; thus, the petition was granted. Saldaño v. Cockrell, 267 F.Supp. 2d 635 (E.D. Tex. 2003). The Fifth Circuit dismissed the Collin County District Attorney's attempt to appeal the judgment granting habeas relief. Saldaño v. Roach, 363 F.3d 545, 556 (5th Cir. 2004). The Supreme Court denied certiorari. Roach v. Saldaño, 543 U.S. 820 (2004).

A punishment retrial was conducted in November 2004. Based on the jury's answers to the special issues set forth in Texas Code of Criminal Procedure Article 37.071, the trial court sentenced Saldaño to death on November 18, 2004. The Texas Court of Criminal Appeals affirmed the conviction. Saldaño v. State, 232 S.W.3d 77 (Tex. Crim. App. 2007). The Supreme Court denied certiorari. Saldaño v. Texas, 552 U.S. 1232 (2008).

Saldaño has filed two post-conviction applications for a writ of habeas corpus in state court. The initial post-conviction application was filed on February 15, 2007. An evidentiary hearing was conducted on March 28, 2008. The state trial court issued 511 findings of fact and conclusions on law on April 21, 2008. The Texas Court of Criminal Appeals issued a written opinion adopting all but six of the findings and denied relief. Ex parte Saldaño, No. WR-41,313-04, 2008 WL 4727540 (Tex. Crim. App. Oct. 29, 2008). While the first application was pending, Saldaño filed another application, which was dismissed as an abuse of the writ. Ex parte Saldaño, No. WR-41,313-03, 2008 WL 152732 (Tex. Crim. App. Jan. 16, 2008).

Saldaño began the present proceedings on June 2, 2008. He filed a petition for a writ of habeas corpus (Dkt #21) on October 26, 2009. The Director filed an answer (Dkt #31) on July 9, 2010. Saldaño filed a reply (Dkt #37) on November 10, 2010. An amended reply (Dkt #39) was filed on November 17, 2010. Additional pleadings were filed with respect Saldaño's cumulative error claim (Dkt ## 46-50, 53 and 56). The case was transferred to the undersigned on May 17, 2016.

II. FACTUAL BACKGROUND OF THE CASE

On November 20, 1995, Paul King drove his car to a Sack 'n Save grocery store in Plano, Texas. While walking to the entrance of the store, he was intercepted by Saldaño and co-defendant Jorge Chavez. Saldaño and Chavez forced King into his car, and they drove to a secluded country road. Saldaño shot King five times, took his watch and wallet, and left his body by the roadside. The kidnappers drove King's car for a short time before abandoning it. Saldaño was arrested within a few hours of the killing. The basic facts of the offense are not in dispute. See Petition at 8.

III. GROUNDS FOR RELIEF

Saldaño presents the following grounds for relief:

1. By failing to guarantee that a Lagrone¹ examination by the State on Saldaño's mental decline would not be used by the State to prove future dangerousness, the trial court erroneously barred Saldaño's expert from testifying to support his motion to dismiss;

2. By failing to guarantee that a Lagrone examination by the State on Saldaño's mental decline would not be used to prove future dangerousness, the trial court erroneously permitted the State to introduce evidence of misconduct by a "psychologically decompensated" Saldaño while on death row;

3. The state courts' application of Lagrone, which prevented the presentation of significant mitigating evidence, violated the Lockett² doctrine;

4. Saldaño was denied effective assistance of counsel by trial counsel's failure to present critical mitigating evidence to the jury;

5. Saldaño was denied effective assistance of counsel by trial counsel's failure to preserve appellate issues relating to the application of the Lagrone decision;

6. Saldaño was denied effective assistance of counsel by trial counsel's failure to request a competency hearing;7. Saldaño's punishment retrial denied him due process because it was conducted while he was incompetent;

8. As applied to Saldaño, the legislative failure to address the time at which a defendant is to be examined for future dangerousness and the circumstances under which his potential for future dangerousness must be viewed, makes the future dangerousness requirement unconstitutionally vague;

9. Under evolving standards of decency, Saldaño's death penalty trial and future execution would violate the 8th and 14th Amendments to the United States Constitution because of his mental illness;

10. Saldaño's due process rights were violated by the trial court allowing the State to present evidence which the defense did not have a meaningful opportunity to rebut;

11. The trial court's failure to allow evidence of the co-defendant's life sentence as mitigating evidence violated Saldaño's constitutional rights;

12. The Texas death penalty statute is unconstitutional because it allows a jury unbridled discretion to determine who should live or die;

13. The Texas death penalty statute, which instructs the jury that ten of them must agree in order to answer special issue no. 1 with a "no" answer, is unconstitutional because it fails to inform jurors that the effect of the jury's failure to reach a unanimous verdict on any issue at the punishment phase would result in a life sentence;

14. The State's failure to provide meaningful appellate review of the sufficiency of the evidence to support the jury's verdict concerning mitigating evidence violates Saldaño's constitutional rights; and

15. The cumulative effect of these constitutional violations denied Saldaño due process of law, even if no separate infraction by itself rose to that magnitude.

IV. STANDARD OF REVIEW

The role of federal courts in reviewing habeas corpus petitions by prisoners in state custody is exceedingly narrow. A person seeking federal habeas corpus review must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993). Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92F.3d 1385, 1404 (5th Cir. 1996), cert. denied, 520 U.S. 1242 (1997). In the course of reviewing state proceedings, a federal court does "not sit as a super state supreme court to review error under state law." Wood v. Quarterman, 503 F.3d 408, 414 (5th Cir. 2007) (citations omitted), cert. denied, 552 U.S. 1314 (2008); Porter v. Estelle, 709 F.2d 944, 957 (5th Cir. 1983), cert. denied, 466 U.S. 984 (1984).

The petition was filed in 2009, thus review is governed by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA, a petitioner who is in custody "pursuant to the judgment of a State court" is not entitled to federal habeas corpus relief 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 proceedings.

28 U.S.C. § 2254(d). "By its terms § 2254 bars relitigation of any claim 'adjudicated on the merits' in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2)." Harrington v. Richter, 562 U.S. 86, 98 (2011). AEDPA imposes a "highly deferential standard for evaluating state-court rulings, and demands that state-court decisions be given the benefit of the doubt." Renico v. Lett, 559 U.S. 766, 773 (2010) (citation and internal quotation marks omitted). With respect to the first provision, a "state court decision is 'contrary to' clearly established federal law if (1) the state court 'applies a rule that contradicts the governing law' announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts." Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006) (en banc) (quoting Mitchell v. Esparza, 540U.S. 12, 15-16 (2003)), cert. denied, 551 U.S. 1141 (2007). "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011). As such, "evidence later...