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Escobedo v. Lund

United States District Court, Eighth Circuit

June 3, 2013

MARK LUND, Respondent.


MARK W. BENNETT, District Judge.

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.


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 him to reject an offer to plead guilty to second-degree murder), aff'd, 259 F.3d 700 (8th Cir. 2001); Spencer v. Ault, 941 F.Supp. 832 (N.D. Iowa 1996) (granting habeas relief pursuant to § 2254 to a state prisoner convicted of drug and weapons charges on a claim that he was denied his Sixth Amendment right to self-representation). 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 counsel's decision to substitute the juror." Id.

ii. The appellate court's decision

On November 17, 2003, Escobedo filed a notice of appeal of the denial of post-conviction relief. On December 8, 2004, the Iowa Court of Appeals issued its opinion on that appeal. That opinion, in the part pertinent here, was as follows:

On appeal, Escobedo and Herrarte maintain the postconviction court erred when it determined trial counsel made a strategic decision to forego requesting a mistrial. They further contend that because a mistrial would have been granted had one been requested and because there is a reasonable likelihood they would have been convicted of a lesser offense on retrial, they have established the requisite prejudice element.
The test to be applied in judging counsel's actions is whether counsel's performance was within the range of normal competency. Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). A presumption exists that counsel is competent. Sims v. State, 295 N.W.2d 420, 423 (Iowa 1980). "Improvident trial strategy, miscalculated tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective counsel." Parsons v. Brewer, 202 N.W.2d 49, 54 (Iowa 1972).
At the postconviction hearing, Herrarte's counsel... testified that after the allegations regarding the juror came to light he was aware he had the option to either request a mistrial or continue with deliberations. He testified that, for various reasons, his view was that rather than seeking a mistrial, the jury should be allowed to continue deliberating: first, the trial court judge had strongly admonished the jury to disregard inappropriate statements by the prosecutor on another matter; second, due to certain actions by the prosecutor, [Herrarte's trial counsel] felt the State's credibility had been severely damaged; third, he felt generally the jury was favorably inclined to believe Herrarte and Escobedo had acted in self-defense. He characterized his choice to forego a mistrial motion as "strategic, " and he noted that he had discussed the decision with both his client and co-counsel.
[Escobedo's trial counsel concurred with Herrarte's trial counsel's] assessment that the trial had gone well for their clients and he agreed with [Herrarte's trial counsel's] position that they had discussed, in the presence of their clients, the options of mistrial or having the jury continue with deliberations. He testified that he was disinclined to seek a mistrial because he "felt [they] had gotten as much as [they] could get from the State's witnesses during the course of the trial to establish our defense." He further noted that he "didn't think these matters would recreate themselves if there was a second trial."
Upon our de novo review, we concur in the postconviction court's conclusion that trial counsel's choices were reasonable strategic and tactical decisions. The fact that the decision may have, with hindsight, not achieved their desired result is irrelevant. Because the decision to not seek a mistrial was based on the professional judgment of two experienced criminal trial attorneys, Escobedo and Herrarte cannot establish that their counsel breached an essential duty.
Regardless, we further conclude neither Escobedo nor Herrarte can establish prejudice. The evidence against them was strong, including the testimony of various eye witnesses. There is no reasonable likelihood the result of a second trial would have been any different. We reject the contention that Escobedo and Herrarte need only show there was a reasonable probability the mistrial would have been granted, and not that there was a reasonable probability the ultimate verdict would have been different. In Ledezma, our supreme court reasoned that under Strickland, "different result" requires a reasonable probability that a different verdict would have been reached or that the factfinder would have possessed a reasonable doubt. Ledezma [v. State ], 626 N.W.2d [134, ] 134 [(Iowa 2001)].

Escobedo, 695 N.W.2d 333, 2004 WL 2804848 at *2 (footnote omitted). In a footnote, the Iowa Court of Appeals observed, "While Escobedo and Herrarte assert that there was no opportunity for counsel to consult with them before they acquiesced' to the seating of the alternate juror, the record does not indicate whether there was a pause in the proceedings or what may have previously transpired off the record." Id. at n.1.

On March 17, 2005, the Iowa Supreme Court denied further review of the decision of the Iowa Court of Appeals on Escobedo's appeal of the denial of his application for post-conviction relief.

2. Federal Proceedings

a. Escobedo's § 2254 Petitions

On April 26, 2005, Escobedo filed a pro se petition for habeas corpus relief in federal court under 28 U.S.C. § 2254. When counsel was appointed to represent Escobedo, counsel discovered that Escobedo's petition contained unexhausted claims. Therefore, on October 26, 2005, Judge Linda R. Reade, now Chief Judge Reade, dismissed the action without prejudice. See Escobedo v. Burger, No. 05-4039-LRR (N.D. Iowa) (docket no. 15). Escobedo's second state post-conviction relief application, which attempted to exhaust his unexhausted claims, was denied by the Iowa District Court and on appeal to the Iowa Court of Appeals. The Iowa Supreme Court denied further review.

On January 10, 2010, with the assistance of counsel, Escobedo initiated the present action for federal habeas corpus relief by filing Escobedo's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (docket no. 1). On February 1, 2011, with the assistance of counsel, Escobedo filed his Amended Habeas Petition (Amended § 2254 Petition) (docket no. 14), asserting four grounds for federal habeas relief. The respondent filed an Answer (docket no. 17) on March 1, 2011, asserting that three of Escobedo's grounds for relief were not exhausted, or were not cognizable as federal claims, or both.

On January 31, 2012, Escobedo filed his Merits Brief (docket no. 35), in which he conceded that his second, third, and fourth grounds for relief were not properly preserved in state court, but contended that his first ground for relief was properly before the federal court. That ground for relief was a claim of ineffective assistance of trial counsel based on "fail[ure] to seek a mistrial after the [trial] court improperly substituted a juror, " Merits Brief at 2, and Escobedo briefed that ground on the merits. On February 2, 2012, without resistance from the respondent and with leave of court, Escobedo filed his Amended And Substituted Merits Brief (docket no. 38), in which he asserted that he did not materially change the brief or add any new issues, but did more fully utilize some portions of the trial transcript. The respondent filed his Merits Brief (docket no. 41) on March 27, 2012. Escobedo did not file a reply brief, and Magistrate Judge Strand, to whom the matter was referred, did not hold a hearing or hear oral arguments on Escobedo's Amended § 2254 Petition.

b. The Report And Recommendation

On September 6, 2012, Magistrate Judge Strand filed his Report And Recommendation On Petition For Writ Of Habeas Corpus Pursuant To 28 U.S.C. § 2254 (docket no. 44). After surveying the record, the applicable standards for relief pursuant to § 2254, and the standards applicable to a constitutional claim of ineffective assistance of counsel, Judge Strand analyzed the determinations of the Iowa Court of Appeals on the two prongs of Escobedo's constitutional claim.

As to the "deficient performance" prong of Escobedo's ineffective assistance claim, Judge Strand concluded, as follows:

The Iowa Court of Appeals did not unreasonably apply Strickland in concluding that Escobedo's attorney made a reasonable strategic decision to proceed with an alternate juror and forego a mistrial motion. The court's findings concerning [Escobedo's and Herrarte's trial counsels'] testimony refute Escobedo's arguments that his attorney did not know a mistrial was an option or that it was inconsistent for his attorney to forego a mistrial motion when he had moved for one the day before. Even if the attorneys did not know they were entitled to an automatic mistrial, as Escobedo argues, the testimony clearly establishes that they evaluated a mistrial as an option and made a strategic decision not to pursue it. A determination of factual issues made by a State court shall be presumed to be correct by the federal courts and is binding in a section 2254 action if fairly supported by the record, unless rebutted by clear and convincing evidence of error. 28 U.S.C. § 2254(e)(1); Summer v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981). Escobedo has not rebutted the presumption.
The Iowa Court of Appeals also reasonably applied Strickland in recognizing that counsel is given "wide latitude" in making tactical decisions which are "virtually unchallengeable". Strickland, 466 U.S. at 689-90. Elaborating on this deferential standard, the Strickland court stated:
[A] court must indulge 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 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)). In applying Strickland, the Iowa Court of Appeals reasonably concluded that the choice to continue deliberations with a substituted juror rather than request a mistrial was within the wide range of reasonable professional assistance.

Report And Recommendation at 13-14.

Turning to the "prejudice" prong of Escobedo's constitutional claim, Judge Strand first rejected Escobedo's argument that the Iowa Court of Appeals unreasonably failed to extend Supreme Court precedent by considering whether the "result of the proceeding" would have been different in terms of whether or not a mistrial would have occurred, based on an analogy to Supreme Court cases involving failure to file a timely appeal or bad advice concerning whether to plead guilty or go to trial, rather than simply considering whether he nevertheless would have been convicted. Id. at 15-16. Judge Strand explained,

An attorney's failure to request a mistrial is different than an attorney's failure to file an appeal without the defendant's consent or the failure to advise the defendant about pleading guilty. The decision to appeal or plead guilty belongs to the defendant. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (identifying the fundamental decisions that are under the ultimate authority of the defendant as the decision "to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal."). The decision whether to move for a mistrial is generally considered a strategic decision that is left to counsel. United States v. Washington, 198 F.3d 721, 723 (8th Cir. 1999); see also United States v. Chapman, 593 F.3d 365, 367-69 (4th Cir. 2010) (holding that counsel was not ineffective for ignoring client's direction to accept the district court's offer of a mistrial). It was not unreasonable for the Iowa Court of Appeals to refuse to extend the prejudice standards from Hill and Flores-Ortega to the context of failing to move for a mistrial.

Report And Recommendation at 16. Judge Strand also rejected Escobedo's reliance on United States v. Ramsey, 323 F.Supp.2d 27 (D.D.C. 2004), in which the court held that the certainty that a mistrial would have been granted, if requested, was sufficient to demonstrate prejudice, because that district court decision was not "clearly established" Supreme Court law. Id. at 16-17.

Further, Judge Strand concluded,

The court finds the Iowa Court of Appeals was reasonable in holding that prejudice required a showing of a reasonable probability that a different verdict would have been reached in a second trial, but for counsel's alleged error. As the State pointed out, there is no "clearly established" Supreme Court precedent on the standard of prejudice from counsel's failure to move for a mistrial that was warranted under state procedural rules. While Ramsey is persuasive, it can be distinguished in many ways-most important of which is the standard of review. The District Court in that case reviewed Ramsey's section 2255 petition directly under Strickland. The standard of review before this court is whether the Iowa Court of Appeals decision is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). This additional level of deference means that the decision must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement" for this court to find that it was unreasonable. Harrington, 131 S.Ct. at 786-87. Because there is no clearly established federal law for the prejudice standard regarding an attorney's failure to request a mistrial under these circumstances, the Iowa Court of Appeals did not unreasonably apply Strickland or unreasonably fail to extend federal law in requiring Escobedo to demonstrate a reasonable probability that a different verdict would have been reached in a second trial.
The Iowa Court of Appeals also reasonably concluded that Escobedo was not prejudiced under this standard as a result of the alleged error by his counsel. The court reasoned that the evidence against Escobedo was strong and included testimony from various eyewitnesses. It reasonably decided that even if Escobedo had established deficient performance by his counsel in failing to move for a mistrial, he was not prejudiced as a result of that deficiency.

Report And Recommendation 17-18.

For these reasons, Judge Strand recommended that Escobedo's Amended § 2254 Petition be denied.

c. Objections to the recommended disposition

After extensions of time to do so, Escobedo filed his Objections To Report And Recommendation (docket no. 53) on October 22, 2012. Escobedo asserts the following four objections to the Report And Recommendation: (1) he "objects to Judge Strand's finding that the [Iowa] Court of Appeals reasonably concluded that [his] [trial] attorney made a strategic and tactical decision to forego a mistrial after consulting with his client"; (2) he contends that "Judge Strand erred in finding that the strategic decision' not to object to [failure to grant] an automatic mistrial was a finding of fact' subject to deference under 28 U.S.C. § 2254(e)(1)"; (3) he contends that, "assuming defense counsel was aware that he had an automatic mistrial in hand, Judge Strand erred in finding that the Iowa Court of ...

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