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Escobedo v. Lund

United States District Court, Eighth Circuit

June 3, 2013

GUILLERMO ESCOBEDO, Petitioner,
v.
MARK LUND, Respondent.

MEMORANDUM OPINION AND ORDER REGARDING OBJECTIONS TO MAGISTRATE JUDGE’S RECOMMENDED DISPOSITION OF STATE PRISONER’S HABEAS PETITION

MARK W. BENNETT U.S. DISTRICT COURT JUDGE NORTHERN DISTRICT OF IOWA

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................... 5

A. Factual Background ............................................................... 5

B. Procedural Background ........................................................... 6

1. State proceedings ...........................................................6

a. Conviction and direct appeal ..................................... 6

b. Post-conviction relief proceedings ............................ 10

i. The district court’s decision ........................... 10

ii. The appellate court’s decision ......................... 13

2. Federal Proceedings ..................................................... 16

a. Escobedo’s § 2254 Petitions .................................... 16

b. The Report And Recommendation ............................ 17

c. Objections to the recommended disposition ................. 20

II. LEGAL ANALYSIS ...................................................................... 21

A. Review Of A Report And Recommendation .................................. 21

1. The applicable standards ................................................ 21

2. De novo review ............................................................ 22

3. “Clear error” review ..................................................... 23

B. Federal Habeas Relief ........................................................... 24

1. “Exhausted” and “adjudicated” claims .............................. 26

a. The “exhaustion” and “adjudication” requirements ...................................................... 26

b. Limitations on relief on “exhausted” claims ............... 28

2. The § 2254(d)(1) standards ............................................. 29

a. The “contrary to” clause ....................................... 31

b. The “unreasonable application” clause ..................... 31

c. The effect of § 2254(d)(1) deficiencies in the state court decision .............................................. 33

3. The § 2254(d)(2) standard .............................................. 34

4. De novo review of issues not reached by the state court ........................................................................ 35

C. “Clearly Established Federal Law” For “Ineffective Assistance” Claims ............................................................... 35

1. The Strickland standard ................................................. 36

2. Strickland’s “deficient performance” prong ........................ 37

3. Strickland’s “prejudice” prong ........................................ 40

D. Escobedo’s Objections To The “Deficient Performance” Analysis ............................................................................. 40

1. The state court’s rationale .............................................. 41

2. Escobedo’s first objection: unreasonable factual determinations ............................................................ 41

3. Escobedo’s second objection: mistaking a legal determination for a factual finding ................................... 46

4. Escobedo’s third objection: unreasonable application of Strickland ................................................ 48

a. Escobedo’s argument ............................................ 48

b. Application of the “deficient performance” standards ........................................................... 49

E. Escobedo’s Objection To The “Prejudice” Analysis ....................... 61

1. The state court’s rationale .............................................. 62

2. Escobedo’s argument .................................................... 63

3. Analysis .................................................................... 63

a. Context-specific determination of “prejudice” ............. 64

b. Failure to apply the principle in a new context ............ 67

c. De novo consideration .......................................... 68

F. Appropriate Relief ................................................................ 70

III. CONCLUSION ............................................................................ 70

In this action for federal habeas relief pursuant to 28 U.S.C. § 2254, a state prisoner, petitioner Guillermo Escobedo, challenges his state conviction in 1995 for first-degree murder in the stabbing death of another young man at a party. As the United States Supreme Court explained more than four decades ago, “There is no higher duty of a court, under our constitutional system, than the careful processing and adjudication of petitions for writs of habeas corpus, for it is in such proceedings that a person in custody charges that error, neglect, or evil purpose has resulted in his unlawful confinement and that he is deprived of his freedom contrary to law.”[1] Indeed, the “Great Writ” is the only common-law writ explicitly protected by the United States Constitution.[2] At the same time, “the writ of habeas corpus has historically been regarded as an extraordinary remedy, ”[3] and I have treated it that way in my own habeas cases involving either state or federal prisoners in almost 19 years as a United States district court judge.[4] In 178 cases by federal prisoners seeking habeas relief pursuant to § 2255, I have granted relief in only 5.[5] In cases by state prisoners seeking habeas relief pursuant to § 2254, I have been even more restrained: In 297 such cases, I have so far granted habeas relief in only 3.[6]

Here, Escobedo contends that his trial counsel provided ineffective assistance by failing to demand an “automatic” mistrial when the trial judge removed a juror after deliberations had started and, instead, acquiescing in replacement of the juror with an alternate. A magistrate judge recommended that Escobedo’s § 2254 petition be denied, because Escobedo had failed to demonstrate that the state appellate court unreasonably denied his claim for post-conviction relief based on ineffective assistance of counsel. In his objections to the magistrate judge’s recommendation, Escobedo challenges the magistrate judge’s failure to find that the state appellate court reached unreasonable conclusions as to both the “deficient performance” and the “prejudice” prongs of his constitutional claim. These objections have triggered my de novo review of parts of the report and recommendation.

I. INTRODUCTION

A. Factual Background

Absent rebuttal by clear and convincing evidence, I must presume that any factual determinations made by a state court in a state prisoner’s criminal and post-conviction relief cases were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009) (a federal court must deem factual findings by the state court to be presumptively correct, subject to disturbance only if proven to be incorrect by clear and convincing evidence). Furthermore, to determine whether or not any challenged factual findings are unreasonable, I must know what those factual findings were. Therefore, I begin with some of the findings of fact by the Iowa Court of Appeals concerning the circumstances leading to petitioner Guillermo Escobedo’s conviction.

On Escobedo’s direct appeal of his conviction, the Iowa Court of Appeals summarized the facts leading to his conviction, as follows:

The State presented evidence Escobedo and co-defendant Cesar Herrarte stabbed two young men with meat-packing knives after a fight broke out at a party on January 14, 1995. The party took place at a house in Hawarden, Iowa, and was attended by a number of young people. One of the teenage stabbing victims died a short time later. His wounds were so deep and severe that numerous vital organs and arteries in the chest and stomach area were cut or severed and some of his abdominal contents were expelled from his body.

State v. Escobedo, 573 N.W.2d 271, 274-75 (Iowa Ct. App. Sept. 24, 1997).

B. Procedural Background

1. State proceedings

a. Conviction and direct appeal

Escobedo (and co-defendant Herrarte) were tried before a jury in the Iowa District Court for Sioux County. As the Iowa Court of Appeals explained in its decision on Escobedo’s direct appeal of his conviction, Escobedo’s first concern was his ability to get a fair trial in Sioux County:

Escobedo moved for a change of venue from Sioux County based on the small, rural nature of the jurisdiction, extensive media coverage, general public knowledge of the incident, his nationality and immigration status, and the lapse of time between the incident and the trial.

Escobedo, 573 N.W.2d at 275. The court explained in a footnote,

The population of Sioux County in 1990 was 29, 903. The county is served by several newspapers, including the Sioux City Journal which reaches an average of 4152 of the 10, 300 households in Sioux County each day. The incident was covered extensively in all area news sources, especially in the local newspaper in Hawarden. The coverage included editorials and numerous letters to the editor. Escobedo was from Mexico and employed at a lamb kill plant in Hawarden. One letter was critical of “all the trouble that has happened in our community since Iowa Lamb Co. hired ... illegal aliens.” The population of Hawarden in 1990 was 2439.

Escobedo, 573 N.W.2d at 275 n.1. The trial court denied Escobedo’s motion for change of venue. Id. at 275.

The Iowa Court of Appeals then recounted the circumstances leading to replacement of one of the trial jurors with an alternate after deliberations had begun, as follows:

The case proceeded to trial with jury selection commencing September 6, 1995. The jury was impaneled on September 8. Three alternate jurors were selected. Prospective jurors were examined by the court as well as the attorneys.
The evidence in the case was presented to the jury over the course of the following two weeks. The trial court then gave its instructions to the jury and closing arguments were presented by the attorneys. The alternate jurors were subsequently excused but told by the trial judge not to discuss the case until a verdict had been returned. The jury then retired to begin its deliberations shortly after 3 p.m. on September 21. They deliberated into the evening and were excused around 10 p.m. with instructions to return at 9 a.m. the next morning to resume their deliberations.
The next morning, the county attorney informed the trial judge he recently received information from a person who reported hearing a juror make racial remarks about Escobedo at a bar a few nights earlier. The trial judge conducted an inquiry into the report, which included testimony from the juror and the informant, and dismissed the juror from the case. He then told Escobedo’s lawyer he “intended to use” the dismissed first alternate juror, and Escobedo’s lawyer responded “yes.” The alternate juror was summoned and replaced the dismissed juror. Deliberations resumed after the trial judge instructed the jury to begin their deliberations anew. The jury returned its verdict later in the day [September 22, 1995].

Escobedo, 573 N.W.2d at 275. Specifically, on the jury’s verdict, “Escobedo was convicted of first-degree murder, willful injury, and assault.” Id. at 274.

On direct appeal, Escobedo challenged the district court’s denial of his motion for change of venue, based on unfavorable publicity indicating racial prejudice in the community and the demonstrated ineffectiveness of voir dire to eliminate such racial prejudice, in light of the incident requiring replacement of the trial juror. Id. at 276. The Iowa Court of Appeals rejected those arguments:

We fail to find presumed prejudice from our review of the record. Most of the media reports were factual in nature and restricted to the first two months following the incident. There were some letters printed in the newspaper critical of the impact of the illegal immigrant population in the community, but other letters and editorials were conciliatory and spoke favorably about immigrants in the community. Community and law enforcement leaders repeatedly emphasized in the news reports the incident was not racially motivated. Moreover, extensive voir dire was conducted in this case with most jurors responding the pretrial publicity would not adversely affect their ability to be fair and impartial. See [State v.] Wagner, 410 N.W.2d [207, ] 211 [(Iowa 1987)] (voir dire can be trusted to expose prejudices based on pretrial publicity).
Escobedo argues this case illustrates the impropriety of relying upon voir dire examination to expose prejudice in publicized cases because jurors can be dishonest in their responses to the questions, and prejudice should be presumed when a biased juror actually becomes part of the jury. We disagree. The incident involving the dismissed juror does not give rise to a presumption of prejudice on the part of the jury. The presumption of prejudice pertains to pervasive pretrial publicity. Claims that the jury that did serve was not impartial must be grounded on evidence appearing of record. State v. Neuendorf, 509 N.W.2d 743, 747 (Iowa 1993). There was no evidence the dismissed juror in this case had any effect on the verdict or that the jury was [not] impartial. We do not find the district court abused its discretion in denying the motion for change of venue.

Escobedo, 573 N.W.2d at 276.

On direct appeal, Escobedo also asserted that the trial court should not have replaced a juror during deliberations and, instead, should have granted him an “automatic” mistrial. The Iowa Court of Appeals agreed:

Our rules of criminal procedure permit the selection of alternate jurors to sit at trial and replace any regular juror who becomes unable to serve, or becomes disqualified, before the jury retires to deliberate on the verdict. Iowa R.Crim. P. 17(15). There are a variety of circumstances that can arise during the course of a trial which require jurors to discontinue their service, and the availability of alternate jurors to replace dismissed jurors helps to avoid the time, expense, anxiety, and inconvenience associated with a mistrial. Although some jurisdictions recognize the replacement of regular jurors during deliberations, we do not. Our rules only permit the replacement of a regular juror prior to the commencement of the deliberations and require alternate jurors to be discharged after the deliberations begin. Id.
We agree with Escobedo the district court was not authorized to replace a juror during deliberations. We also agree Escobedo would have been entitled to a mistrial after the trial court dismissed the juror during the deliberations.

Escobedo, 573 N.W.2d at 276 (footnotes omitted; emphasis added) (also noting, in a footnote, that “[t]he Federal Rules of Criminal Procedure . . . do not permit the replacement of a juror during deliberations, ” either, citing Fed. R. Crim. P. 24(c)). The court also explained, in a footnote,

In Iowa, a jury of twelve is required in all cases involving serious criminal charges, and unanimity is required to reach a verdict. See Iowa R.Crim. P. 17, 21. Consequently, the failure to meet these requirements would support a mistrial. See State v. White, 209 N.W.2d 15, 17 (Iowa 1973). A defendant, of course, may waive the requirements and be tried by a jury of less than twelve. State v. Browman, 191 Iowa 608, 182 N.W. 823, 833-34 (1921); see State v. Henderson, 287 N.W.2d 583, 585 (Iowa 1980).

Escobedo, 573 N.W.2d at 276 n.2. Notwithstanding that the trial court erred in replacing a juror during deliberations and that Escobedo would have been entitled to a mistrial after the trial court dismissed the juror, the Iowa Court of Appeals granted Escobedo no relief from his conviction, because he “did not request the trial court to declare a mistrial, but instead acquiesced in the replacement of the dismissed juror with a previously dismissed alternative juror, ” and because the Iowa Supreme Court does not recognize “the plain error standard of review.” Id. at 276-77.

The Iowa Supreme Court denied further review of Escobedo’s direct appeal.

b. Post-conviction relief proceedings

i. The district court’s decision

In 1998, Escobedo and Herrarte filed applications for post-conviction relief, in the Iowa District Court for Sioux County, alleging ineffective assistance of trial and appellate counsel and newly discovered material evidence that would have changed the outcome of the trial. Respondent’s Appendix of Relevant State Court Decisions (docket no. 41-1), Ruling Re: Application For Post Conviction Relief (Post-Conviction Relief Ruling), 2. However, in 2002, the post-conviction relief court granted the state’s motion for summary judgment and dismissed all but one claim. The post-conviction relief court described that remaining claim, as follows:

Applicants claim that trial counsel were ineffective when they agreed to replace a juror with an alternate juror after deliberations had begun, rather than requesting a mistrial. Applicants claim appellate counsel were ineffective because they did not raise this issue on appeal. It is this issue regarding appellate counsel’s effectiveness that is the sole remaining claim of Applicants’ Applications for Post Conviction Relief.

Post-Conviction Relief Ruling at 2. However, the Iowa District Court reasoned that “[a]ppellate counsel could not have successfully raised this issue unless trial counsel were, in fact, ineffective, ” so that, “to reach the issue of appellate counsel’s effectiveness, we must first examine trial counsel’s conduct.” Id.

Magistrate Judge Leonard T. Strand summarized the pertinent evidence in the state post-conviction relief proceedings in his Report And Recommendation (docket no. 44), 5-6, and I agree with his summary. Escobedo testified that he knew about the juror substitution because his lawyer discussed it with him and he was present while the attorneys and the trial judge discussed it. Post-Conviction Relief Trial Transcript 7-8 (State Court Documents 4(d), App. 414-15). He stated that his lawyer did not ask him whether he would agree with replacing a juror or if he instead wanted to request a mistrial. Id. at 9-10 (State Court Documents 4(d), App. 416-17). Escobedo testified that he did not ask his attorney any questions about the situation. Id. at 15 (State Court Documents 4(d), App. 422). Escobedo’s trial counsel testified that he evaluated the situation and did not believe a mistrial was the best option. Id. at 58 (State Court Documents 4(d), App. 464). More specifically, he stated:

I felt we had gotten as much as we could get from the State’s witnesses during the course of trial to establish our defense. And then with how the events went during final argument, I didn’t think those matters would recreate themselves if there was a second trial.

Id. at 58-59 (State Court Documents 4(d), App. 464-65). Escobedo’s trial counsel stated that he thought that substituting the juror so that the deliberations could go forward was the best option:

The reason for that was you have eliminated the potential bias from [the dismissed juror] from the jury, as best you were able, and gave the jury a chance to go back and start over with deliberations, as I believe [the trial judge] directed them to do, and you still had the impact of what happened during the State’s final arguments waging [sic: weighing?] in the defendant’s favor, in my estimation.

Id. at 60-61 (State Court Documents 4(d), App. 466-67).[7] Escobedo’s trial counsel further testified that he discussed the issue and the options—including a mistrial—with Escobedo, but ultimately believed that the decision as to whether to seek a mistrial was a tactical decision to be made by him and Herrarte’s counsel. Id. at 64, 67 (State Court Documents 4(d), App. 470, 473).

The Iowa District Court rejected Escobedo’s application for post-conviction relief in its Post-Conviction Relief Ruling, filed on October 20, 2003. The Iowa District Court found that Escobedo’s counsel was highly experienced and that, even if his strategy or tactics backfired, that did not mean that he was incompetent. Post-Conviction Relief Ruling at 3-4. It also found that, after Escobedo’s and Herrarte’s attorneys considered and discussed with each other their options of continuing with deliberations with an alternate juror or asking for a mistrial, they both believed that continuing with deliberations would benefit their clients. Id. at 4. The Iowa District Court also found that, while Escobedo did not remember his trial counsel discussing the issue with him, his trial counsel’s testimony that he did discuss the issue with Escobedo was more credible. Id. at 4-5. Therefore, the Iowa District Court found “that the decision not to request a mistrial was a matter of trial strategy and [Escobedo] [was] not required to waive that right on the record.” Id. at 4.

The Iowa District Court also concluded that Escobedo could not show prejudice:

Here, [Escobedo and Herrarte] would have a difficult time proving the requisite prejudice. The evidence presented against them was strong. Trial counsel believed that they obtained as much helpful information as they could from the State’s witnesses. Further, it was unlikely that [the prosecutor] would make the same mistakes upon retrial. [The trial judge’s] anger at [the prosecutor] and his actions towards the [prosecutor] and admonitions to the jury likely would not have been reproduced in a subsequent trial. Moreover, [Escobedo and Herrarte] still received what they expected from the proceedings: a verdict from 12 jurors of their choosing.

Post-Conviction Relief Ruling at 5. Consequently, the Iowa District Court concluded that Escobedo and Herrarte could not “meet the burden of proof to show that they were prejudiced by trial ...


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