IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50802
Summary Calendar
CESAR QUINTANILLA,
Petitioner-Appellant,
versus
GARY JOHNSON,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-96-CV-490
September 10, 1998
Before GARWOOD, DeMOSS and PARKER, Circuit Judges.*
PER CURIAM:
Cesar Quintanilla appeals the denial of his petition for a
writ of habeas corpus. He was convicted of aggravated sexual
assault by a jury and received the maximum sentence of ninety-nine
years of imprisonment. Quintanilla alleges that he was denied
effective assistance of counsel during the punishment stage of his
Texas trial. In particular, he alleges ineffective assistance
*
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opinion should not be published and is not precedent except under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.
based on his counsel’s failure to obtain a jury charge allowing him
to be sentenced to probation, failure to call any character
witnesses on his behalf, and failure to provide an effective
closing argument. Quintanilla also challenges the denial of his
requests for an evidentiary hearing on these claims and contends
that if such a hearing is foreclosed by the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), the Act is
unconstitutional.
We have reviewed the record and the briefs of the parties and
affirm substantially for the reasons given by the district court.
See Quintanilla v. Johnson, A-96-CV-490 (W.D. Tex. Aug. 21, 1997).
Quintanilla has failed to meet his burden of establishing
ineffective assistance of counsel——particularly the “prejudice”
prong thereof——even under the more lenient pre-AEDPA standards. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); Nobles v.
Johnson, 127 F.3d 409, 416 (5th Cir. 1997), cert. denied, 1998 WL
86177 (U.S. May 26, 1998) (No. 97-8016). The failure to hold an
evidentiary hearing on his claims was not a violation of due
process because there was no factual dispute. Even accepting
Quintanilla’s factual claims as true, he is not entitled to habeas
corpus relief. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir.
1995).
Quintanilla argues in his brief that “this offense . . .
reflected a long time relationship between petitioner and the
complainant . . . the conduct underlying this ‘aggravated sexual
assault,’ was not based upon a charge of violent forcible ‘rape,’
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but rather, upon the theory that the complainant was underage at
the time of the sexual contact, thus subjecting Petitioner to
liability for this offense.” This is wholly false. The
indictment, jury instructions, and trial were solely on the basis
of forcible rape by placing the victim in fear that serious bodily
harm would be imminently inflicted. The victim was twenty-one
years old at the time of the offense, and it was never alleged
that she was “underage.” We agree with the Texas appellate court
that “the evidence is sufficient to support the finding that
appellant compelled the complainant to submit to an act of sexual
intercourse by means of force, threats, and violence” and “that
appellant’s acts and words placed the victim in fear of serious
bodily injury or death, and that this fear was reasonable in light
of appellant’s conduct.” While Quintanilla testified at trial that
he had had wholly consensual sexual intercourse with the victim on
numerous occasions commencing about six months before the date of
the alleged offense, and that he never at any time used force or
threats on her and that she was the sexual aggressor, the victim
denied ever having any sexual intercourse with Quintanilla——or
anyone else——except on the occasion that he forcibly raped her. She
did testify that on several occasions some six to eight years
previously when she was thirteen and fifteen——and he was twenty-five
or twenty-seven——he had attempted to fondle her breasts and private
parts, all against her will and despite her attempts to push him
away. The jury also heard the testimony of, among others,
Quintanilla’s wife——the victim’s older sister——who was a prosecution
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witness, and Quintanilla’s nephew, a defense witness. The
conflicts in the evidence were obviously resolved by the jury
against Quintanilla, a resolution amply supported by the record.
The brief, general, and conclusory unsworn letters from
friends of Quintanilla, filed with the state habeas, which
Quintanilla points to as showing what “character” evidence could
and should have been presented at sentencing, are wholly
unavailing. These offer no specifics and only conclusory
statements such as “he is a good person, very respectful, and a
good friend”; “he is a good person”; “he is a very responsible
person”; and “he, always, proved me to be a honorable, kind and
responsible man.” There is no reasonable probability that the
omission of such evidence at the punishment hearing had any
materially adverse effect on the sentencing verdict. So also as to
the complaints respecting the omission to charge on probation as a
possible penalty and the brevity of the punishment argument.
It is not necessary to reach Quintanilla’s constitutional
challenge to the AEDPA, because his sentence may be upheld even
under the pre-AEDPA standards. See Maher v. Gagne, 448 U.S. 122,
133 (1980) (recognizing the judicial policy of avoiding the
unnecessary resolution of constitutional issues).
AFFIRMED
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