2021-06-30 1
2:18-CV-215-Z-BR
06-30-2021
/cop
ALBERT LEE GONZALES, Petitioner, v. DIRECTOR, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE.
Before the Court is the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by Petitioner, Albert Lee Gonzales (“Gonzales”). For the following reasons, Gonzales's habeas application should be DISMISSED.
I. PROCEDURAL HISTORY
On May 22, 1990, Gonzales was indicted under No. 6986-C in the 47th District Court of Randall County, Texas, for capital murder for intentionally causing the death of Hilton Raymond Merriman, Sr., while in the course of attempting to commit and committing the burglary of the decedent's habitation.
After a severance was granted, Gonzales and two other defendants, Douglas Nathan Palmer (“Palmer”), and Johnny Lee Rey (“Rey”) were tried sequentially. Gonzales was found guilty by a jury and sentenced to life imprisonment. He did not appeal.
The “ECF ” reference is to the number of the document on the Court's docket in this civil action.
The page reference is to the page identification number (“PageID”) assigned by the Court's electronic filing system.
In December 1998, Gonzales wrote to the district judge and others seeking a recommendation for the commutation of his sentence. He admitted in that correspondence that he had acted with several others in causing Merriman's death.
On June 14, 2013, Gonzales filed his first state application for writ of habeas corpus. The application was denied without written order.
The record reflects that the lab report containing the statement in question was not introduced into evidence as an exhibit at Gonzales's trial. The exhibits consisted primarily of photographs, especially of the crime scene, and clothing and shoes taken from defendants including Gonzales.
Joseph Errera, a special agent with the Federal Bureau of Investigation in the DNA Analysis Unit of the FBI Laboratory, testified at trial. He did testify that hair samples were submitted and tested and that none of Gonzales's hair was found at Merriman's house. Only one hair, consistent with having originated from Palmer, was identified, although Errera made clear that “hair comparisons do not constitute a basis for absolute personal identification.”
Approximately two pages out of the thirty-six pages of Errera's testimony concerned hair. The bulk of his testimony concerned blood samples. Specifically, he testified that blood consistent with Merriman's was found inside Gonzales's sandals. Further, three of four DNA tests on items taken from the defendants matched that of Merriman. Thus, Gonzales's contention that he would not have been convicted without the expert testimony concerning hair sample analysis, and that “no other evidence . . . stood out to the jury more than hair sample analysis testimony by the expert witness, ” is belied by the record. There is simply no reason to believe that the testimony regarding hair comparisons had any impact whatsoever on the jurors. Gonzales has not shown by clear and convincing evidence that but for the testimony he would not have been convicted. Pursuant to the Fifth's Circuit's instructions in authorizing the successive application, the undersigned finds that Gonzales has failed to satisfy the requirements for filing the application.