     Case: 07-10812     Document: 00511027545          Page: 1    Date Filed: 02/12/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 12, 2010

                                       No. 07-10812                    Charles R. Fulbruge III
                                                                               Clerk

PETE S SANCHEZ, JR,

                                                   Petitioner–Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent–Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:06-CV-1547


Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
        Petitioner–Appellant Pete S. Sanchez, Jr., convicted of sexual assault and
robbery in Texas state court and sentenced to forty-five years’ imprisonment,
appeals the district court’s denial of his 28 U.S.C. § 2254 petition for habeas
corpus as both time-barred and unmeritorious. Following the district court’s
denial of Sanchez’s motion for a Certificate of Appealability (“COA”), we granted
a COA on two issues: (1) whether Sanchez’s filing of a post-conviction motion for


        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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DNA testing under Texas Code of Criminal Procedure article 64.01 tolled the
limitations period and rendered his petition timely under 28 U.S.C. § 2244(d)(1),
and (2) whether Sanchez’s trial counsel rendered ineffective assistance by failing
to seek a continuance to obtain further DNA testing. For the following reasons,
we affirm the district court’s denial of Sanchez’s petition.
             I. FACTUAL AND PROCEDURAL BACKGROUND
        Because of the winding path of this appeal, we detail the evidence leading
to Sanchez’s conviction and the post-conviction timeline of events.
A.      Factual Background
        At approximately 4:00 a.m. on June 1, 1996, Margarita Sanchez
(“Margarita”)1 and her boyfriend, Geraldo Veloz were sitting in Veloz’s pickup
truck outside Margarita’s apartment when four men attacked them. According
to Veloz and Margarita, two of the attackers held Veloz down against the truck’s
floorboard while two others undressed and raped Margarita. The attackers also
stole Veloz’s wallet, keys, stereo, and speakers. Veloz testified that he never saw
anyone have sex with Margarita and that he could not identify Sanchez as one
of his and Margarita’s attackers. Margarita testified that Sanchez and another
man raped her.        She could not remember if either of the men ejaculated.
Margarita was the only person to identify Sanchez at any point during the trial.
        To corroborate Margarita’s assertion that she had been raped, the State
called Dr. Carolyn Miller, who conducted a rape examination on Margarita after
the attack. Margarita told Dr. Miller that she had sex with Veloz approximately
twenty-four     hours     prior   to    the       attack.        Nonetheless,    the   rape
examination—which included a vaginal swab and vaginal smear—revealed
lacerations consistent with someone having sex against her will.



        1
        To avoid confusion, we refer to Margarita Sanchez, who is unrelated to Petitioner-
Appellant Pete S. Sanchez, Jr., by first name.

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        The State also called Joani Whitmore, a DNA expert.             On direct
examination, Whitmore testified that there was “definitely more than one” male
donor who “left a [seminal] discharge within” Margarita. She further testified
that she had been given a sample of Sanchez’s blood, but could not say whether
he was one of the men who had sex with Margarita.
        Sanchez’s trial counsel indicated that he had not seen Whitmore’s report
and initially requested a continuance. In response, the trial judge adjourned the
trial for lunch and informed Sanchez’s counsel that if he needed additional time,
the court would take up the matter after the recess. During the approximately
two-and-one-half hour recess, Sanchez’s counsel spoke with Whitmore,
“discussed [with Sanchez] the options of what could be done or not done,” and,
with Sanchez’s blessing, elected to proceed with the trial.
        Whitmore then testified that she could neither identify nor exclude
Sanchez as a seminal donor based on the tests performed. She explained that
if only one person had sexual intercourse with Margarita, then one type of DNA
testing may have excluded Sanchez. She further agreed with Sanchez’s counsel
that if she had been given a blood sample from the person who had consensual
sex with Margarita, then she could have “possibly . . . exclude[d] Pete Sanchez
depending on what the results of that c[a]me up.” Questioning revealed that
Whitmore had twice requested a sample, but did not receive one. Sanchez’s
lawyer did not request a continuance to procure any further DNA testing.
        The jury found Sanchez guilty of sexual assault and robbery, and the court
sentenced him to forty-five years’ imprisonment. The court denied Sanchez’s
motion for a new trial.
B.      Procedural History
        The Texas intermediate appellate court affirmed Sanchez’s conviction, see
Sanchez v. State, Nos. 11-97-00145-CR, 11-97-00146-CR, 1999 WL 33743896
(Tex. App.—Eastland, Feb. 18, 1999, pet. denied) and, on September 29, 1999,

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the Texas Court of Criminal Appeals (“TCCA”) refused his petition for
discretionary review.
      On June 8, 2000, Sanchez filed a petition for habeas corpus with the state
court, claiming ineffective assistance of counsel.       The TCCA denied the
application without written order on October 17, 2001. On December 21, 2001,
Sanchez filed a state court post-conviction motion for DNA testing. See T EX.
C ODE C RIM. P ROC. art. 64.01. The trial court ordered testing, but ultimately
found the results inconclusive and therefore not favorable to Sanchez. Sanchez
v. State, No. 05-05-00400-CR, 2006 WL 620254, at *1 (Tex. App.—Dallas, Mar.
14, 2006, pet. denied). The intermediate appellate court affirmed the trial
court’s denial of relief. Id. at *4. The TCCA refused discretionary review of this
decision on July 26, 2006.
      On August 25, 2006, Sanchez filed his § 2254 petition for habeas corpus,
claiming that his counsel was ineffective for failing to seek a continuance to
obtain further DNA testing, which ultimately revealed that he had not
contributed any biological material to the vaginal swab taken from Margarita
during her rape examination. In response, the State argued that Sanchez’s
petition was time-barred. The district court agreed with the State, adopting a
magistrate’s recommendation to deny Sanchez’s petition both as time-barred and
for failure to demonstrate a reasonable probability that he was prejudiced by his
trial counsel’s decision not to request a continuance to obtain further DNA
testing. Sanchez timely appealed, and we granted a COA on the two issues
currently before us.
           II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction under 28 U.S.C. § 2253(a) and (c)(1)(A) because the
district court issued a final order denying Sanchez habeas relief and we granted
COA. See Richardson v. Quarterman, 537 F.3d 466, 472 (5th Cir. 2008).



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      Because Sanchez filed his habeas petition after April 24, 1996, the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214, governs our review. AEDPA mandates that federal
courts give great deference, subject to limited exceptions, to the state courts’
resolution of a petitioner’s claims. See Foster v. Quarterman, 466 F.3d 359, 365
(5th Cir. 2006). This “deference is mandated both for questions of law and for
mixed questions of law and fact.” Id.
      Under AEDPA, we may not grant habeas relief to a defendant in state
custody unless the state court’s adjudication of the claim:
      (1) resulted in a decision that was contrary to, or involved an
      unreasonable application of, clearly established Federal law, as
      determined by the Supreme Court of the United States; or
      (2) resulted in a decision that was based on an unreasonable
      determination of the facts in light of the evidence presented in the
      State court proceeding.
28 U.S.C. § 2254(d); Riddle v. Cockrell, 288 F.3d 713, 716 (5th Cir. 2002).
“Under § 2254(d)(1), a 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 ‘confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent and arrives at a
result opposite to [that precedent].’” Reed v. Quarterman, 555 F.3d 364, 367 (5th
Cir. 2009) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)) (alterations in
original). “A decision involves an unreasonable application of Supreme Court
precedent if it ‘unreasonably extends a legal principle from [Supreme Court
precedent] to a new context where it should not apply or unreasonably refuses
to extend that principle to a new context where it should apply.’” Id. at 367–68
(quoting Williams, 529 U.S. at 407) (alterations in original).      We afford a
presumption of correctness to the state court’s factual findings unless Sanchez
meets his “‘burden of rebutting [that] presumption . . . by clear and convincing


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evidence.’” Foster, 466 F.3d at 365 (quoting 28 U.S.C. § 2254(e)(1)) (alteration
and omission in original).
        “On habeas review, we review the district court’s findings of fact for clear
error and its legal conclusions de novo.” Mallard v. Cain, 515 F.3d 379, 381 (5th
Cir. 2008).
                                  III. ANALYSIS
A.      Timeliness
        Sanchez first argues that the district court erred in determining that he
untimely filed his § 2254 petition. “AEDPA establishes a one-year statute of
limitations for seeking federal habeas corpus relief from a state-court judgment.”
Johnson v. Quarterman, 483 F.3d 278, 285 (5th Cir. 2007); see 28 U.S.C.
§ 2244(d). Generally, this period runs from “the date on which the judgment
became final by the conclusion of direct review or the expiration of the time for
seeking such review.”        28 U.S.C. § 2244(d)(1)(A).      However, we toll the
limitations period during the pendency of a “properly filed application for State
post-conviction or other collateral review.” Id. § 2244(d)(2).
        On appeal, Sanchez contends that under our recent decision in Hutson v.
Quarterman, 508 F.3d 236 (5th Cir. 2007) (per curiam), issued after the district
court denied his petition, his post-conviction motion for DNA testing tolled the
limitations period so as to render his petition timely. In Hutson, we held that
“a motion to test DNA evidence under Texas Code of Criminal Procedure article
64 constitutes ‘other collateral review’ and thus tolls AEDPA’s one-year
limitations period under 28 U.S.C. § 2244(d)(1).” Id. at 240. The State concedes
that under Hutson, Sanchez timely filed his petition.
        Because Sanchez did not seek a writ of certiorari from the United States
Supreme Court, his conviction became final—and the limitations period began
to run—on December 28, 1999, the expiration of the ninety-day period in which
to file a petition for certiorari. See 28 U.S.C. § 2244(d)(1)(A); Roberts v. Cockrell,

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319 F.3d 690, 694 (5th Cir. 2003).       One hundred sixty-three days elapsed
between this date and June 8, 2000, when Sanchez filed his state habeas
petition. The limitations period tolled at that time and resumed upon the
TCCA’s denial of Sanchez’s petition on October 17, 2001. Sixty-five days later,
on December 21, 2001, Sanchez returned to the state trial court and filed a
motion for post-conviction DNA testing, which again tolled the limitations
period. The trial court denied this motion and the TCCA refused Sanchez’s
petition for review of the trial court’s denial of relief on the basis of the DNA
tests on July 26, 2006, and Sanchez filed his § 2254 petition thirty days later on
August 25, 2006. Therefore, Sanchez used approximately 258 days of his one-
year federal limitations period. He thus timely filed his federal habeas petition.
B.      Merits
        Sanchez also appeals the district court’s denial of his habeas petition on
the merits, contending that the district court erred by concluding that Sanchez
suffered no prejudice when his trial counsel decided not to seek a continuance
to obtain further DNA testing of the evidence from Margarita’s rape examination
after receiving Whitmore’s report. Specifically, Sanchez argues that, given the
evidence produced at trial, had the jury known that the results of the post-
conviction DNA testing excluded Sanchez as a possible contributor of biological
material found in Margarita, there is a reasonable probability that the jury
would have returned a “not guilty” verdict.
        As discussed below, the post-conviction DNA evidence was not properly
before the district court. However, the district court was correct in its ultimate
finding that the state court denial of Sanchez’s habeas petition was not
unreasonable.




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      1.    The District Court’s Review of Sanchez’s Post-Conviction DNA
            Evidence
      After the TCCA denied Sanchez’s state habeas petition, but before he filed
his federal habeas claim, Sanchez filed for and received the results of a post-
conviction DNA test. As the TCCA explained, the DNA testing “established that
the DNA profile from the sperm fraction of the vaginal swab was consistent with
Veloz’s DNA profile,” “the epithelial cell fraction was also consistent with a
mixture from [Margarita] and Veloz,” and “[t]herefore, [Sanchez] did not
contribute any biological material to the vaginal swab taken during
[Margarita]’s rape examination.” Sanchez, 2006 WL 620254, at *3. The state
court, however, concluded that Sanchez was not entitled to relief based on these
results because Margarita testified that she could not recall if either Sanchez or
the other alleged rapist ejaculated. Id.
      In his original state habeas petition, Sanchez claimed ineffective
assistance of counsel. Sanchez renewed this claim in his federal habeas claim,
grounding his claim, in part, on the post-conviction evidence and adding a claim
of actual innocence. The State challenged the actual innocence claim as an
unexhausted under 28 U.S.C. § 2254(b) and (c). The State also challenged the
post-conviction evidence under § 2254(d) and (e) for Sanchez’s failure to present
the DNA evidence to the state court in support of his ineffective assistance of
counsel claim.
      The district court denied Sanchez’s petition as untimely, but alternatively
reached the merits of Sanchez’s arguments and found that Sanchez could not
adequately demonstrate prejudice under Strickland v. Washington, 466 U.S. 668
(1984). The district court appeared to incorporate the post-conviction DNA
evidence into its merits determination.
      We have wrestled with the deference due to state court determinations
under § 2254(d)(2). See Guidry v. Dretke, 397 F.3d 306 (5th Cir. 2005), reh’g and


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reh’g en banc denied by 429 F.3d 154 (5th Cir. 2005). The procedural history and
facts of Guidry are distinguishable from the instant case, but the overarching
concern is similar: under what circumstances and through what procedure may
a federal district court consider evidence that falls within the strictures of
§§ 2254(d) and (e)? The original Guidry panel found that the facts of Guidry
precluded an application of § 2254(d)(2) because the State failed to challenge the
petitioner’s claim on those grounds and the district court did not abuse its
discretion when it held an evidentiary hearing. See Guidry, 397 F.3d at 321–22,
24. The dissent from the denial of rehearing en banc focused on the requirement
in § 2254(d)(2) that evidence must be presented to the state court before it may
be considered by the district court in later proceedings. Guidry, 429 F.3d at 163
(Jones, J., dissenting).
      We do not revisit the issue left open by Guidry; namely, whether
§ 2254(d)(2) is jurisdictional and thus cannot be waived.          Here, the State
challenged the evidence Sanchez presented from the post-conviction DNA testing
and the district court did not exercise its discretion to order an evidentiary
hearing. To the extent that the district court considered the post-conviction
evidence, it did not commit reversible error. However, we agree with the district
court that post-conviction evidence or no, the state court was not unreasonable
when it found that Sanchez is unable to meet the Strickland standard for
ineffective assistance.
      2.     Ineffective Assistance of Counsel Claim
      “The Sixth Amendment guarantees defendants the ‘right to effective
assistance of counsel at every critical stage of the proceedings against them.’”
United States v. Fields, 565 F.3d 290, 293–94 (5th Cir. 2009) (quoting Burdine
v. Johnson, 262 F.3d 336, 344 (5th Cir. 2001)). “This right ‘is denied when a
defense    attorney’s    performance   falls   below   an   objective   standard     of
reasonableness and thereby prejudices the defense.’” Id. at 294 (quoting

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Yarborough v. Gentry, 540 U.S. 1, 5 (2003)). We evaluate claims of ineffective
assistance of counsel under the two-prong test established in Strickland. Wright
v. Quarterman, 470 F.3d 581, 589 (5th Cir. 2006).
      To prevail on an ineffective assistance of counsel claim under Strickland,
a petitioner must show that his “counsel’s performance was deficient” and that
“the deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
Failure to establish either prong defeats the claim. See id. To demonstrate that
his counsel was deficient, Sanchez “must show that counsel’s representation fell
below an objective standard of reasonableness” and must overcome “a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action might be considered sound
trial strategy.” Id. at 688–89 (internal quotation marks omitted). To establish
prejudice, a petitioner “must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id.
      Here, the district court determined that Sanchez failed to show prejudice
resulting from his trial counsel’s decision not to seek a continuance and thus to
forego further DNA testing. Accordingly, the district court affirmed the state
court’s denial of habeas relief. The district court noted that Margarita identified
Sanchez as her rapist and could not remember if either of her attackers
ejaculated and thus it was irrelevant whether Sanchez’s DNA was found in
Margarita.
      Sanchez’s sexual assault conviction ultimately rests on Margarita’s
identification. The defense repeatedly attacked Margarita’s credibility at trial
and the jury heard that she was on probation for a felony offense at the time of
the alleged assault and spent the night prior to testifying in jail. Moreover,

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defense counsel identified numerous instances in which she contradicted herself
about key details regarding her assault.     The jury heard both Margarita’s
testimony and the challenges to her credibility and was within its bounds to
credit Margarita’s testimony identifying Sanchez.
      We cannot say that the state court was unreasonable when it denied
Sanchez’s claim. Because Margarita testified that she could not recall if her
attackers ejaculated, the results of further DNA evidence would not necessarily
have been conclusive, and Sanchez cannot therefore demonstrate prejudice for
his counsel’s failure to request a continuance.
                              IV. CONCLUSION
      For the reasons stated, we affirm the district court’s denial of Sanchez’s
petition for habeas corpus.
      AFFIRM.




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