United States District Court, N.D. Iowa, Western Division
MEMORANDUM OPINION AND ORDER REGARDING MAGISTRATE'S REPORT AND RECOMMENDATION ON PETITION FOR WRIT OF HEABEAS CORPUS
MARK W. BENNETT, District Judge.
Petitioner Esteban Velazquez-Ramirez's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody is before me pursuant to a Report and Recommendation of United States Magistrate Judge Leonard T. Strand recommending that the petition be denied. Both parties filed objections to the Report and Recommendation. I now consider whether to accept, reject, or modify Judge Strand's Report and Recommendation in light of the objections.
I. INTRODUCTION AND BACKGROUND
A. Factual Background
Absent rebuttal by clear and convincing evidence, I must presume that any 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). The Iowa Court of Appeals summarized the facts underlying Velazquez-Ramirez's conviction, as follows:
Velazquez-Ramirez had a two-year relationship with a woman named Dora. That relationship ended, and Dora began dating another man. On the day of her death, Velazquez-Ramirez came to the Denison home of Dora's relatives and attempted to talk to Dora. He was told to leave her alone.
Velazquez-Ramirez left town and drove to his hometown in Nebraska to retrieve a gun he had purchased a month earlier. He returned to Denison the same day, parked at Dora's workplace, and waited for Dora to finish her evening shift.
After midnight, Dora and a friend came out of the plant and headed to their cars. As her friend got into his car and began driving out of the parking lot, he saw Dora arguing with someone. He asked her if she needed help. She said she did. He drove to her car, got out, and overheard Velazquez-Ramirez tell Dora he wanted to get back together with her. She said no and asked her friend to call the police.
Just then, Dora's new boyfriend was seen driving through the parking lot. He was haled over and was asked to make the telephone call to police. As he started to do so, Velazquez-Ramirez pulled a gun from his clothing and shot Dora. Dora fell to the ground, and Velazquez-Ramirez took off running.
Immediately after the shooting, Velazquez-Ramirez drove to the police station, walked in, and said, "I shot a girl." The gun used to kill Dora was found in his car. At trial, Velazquez-Ramirez admitted he shot Dora.
Velazquez-Ramirez v. State, 817 N.W.2d 31, at *1-2 (Iowa Ct. App. Apr. 25, 2012) (unpublished table decision).
Velazquez-Ramirez made a pre-trial motion to have a questionnaire sent to the jury panel. The Iowa District Court granted his request. In its post-conviction relief ruling, the Iowa District Court provided the following summary of that questionnaire and its results:
Seventy-five panelists filled out the questionnaire. The relevant questions on the first page of the supplemental questionnaire (Trial Ex. 1) were:
1. Do you associate with any persons who are recent immigrants into the United States?
2. Do you have any opinion about persons who immigrate illegally into the United States? If so, what is that opinion?
3. Which of the following best describes your opinion [please circle]:
A. I think that there should be more severe punishments against those persons who enter into and remain in the United States illegally.
B. I think that the punishment against those persons who enter into and remain in the United States illegally is about right.
C. I think that person [sic] who enter into and remain in the United States illegally should not be punished as severely as they are now.
D. I think that person [sic] who enter into and remain in the United States illegally should not be punished.
E. My opinion depends on the individual circumstances of the situation, regardless of country of origin.
F. My opinion depends largely on the country of origin.
G. None of the above. My opinion is as follows:
4. Would your answer to the previous question be different if you considered persons from different countries? For example, would it make any difference in your answer if the immigrant was from Mexico, Guatemala, Italy, or Iran? Please explain:
As to question no. 1, 15 said yes; 58 said no; 2 didn't answer.
As to question no. 2, 60 answered yes and/or wrote their opinion. Common statements were: deport them; punish them; should not be allowed to work; taking jobs from citizens; immigration should be done legally; learn/speak English.
As to question no. 3, 48 answered "A"; 10 answered "B"; 10 answered "E"; 8 answered "G".
As to question no. 4, 65 said no; 9 didn't answer and one had concerns with people from Iran.
Velazquez-Ramirez v. State , Crawford Co. No. LACV035590, Ruling on Post-conviction Relief at 29-30 (Iowa Dist. Ct. Oct. 20, 2010); Respondent's Appendix Doc. No. 22-1 at 36-37.
B. Procedural Background
1. State proceedings
Velazsquez-Ramirez is an inmate at Anamosa State Penitentiary, Anamosa, Iowa. He was convicted following a jury trial of murder in the first degree on March 19, 2004. Velazquez-Ramirez appealed, arguing that he was denied effective assistance of counsel by his counsel's failure to "make an appropriately specific motion for judgment of acquittal to challenge the sufficiency of the evidence to establish malice aforethought...." State v. Valazquez-Ramirez, 697 N.W.2d 127, 2005 WL 724172, at *1 (Iowa Ct. App. Mar. 31, 2005) (unpublished table decision). The Iowa Court of Appeals affirmed Velazquez-Ramirez's conviction, finding that his counsel had raised the issue of the sufficiency of the evidence to establish malice aforethought no less than four times and the district court had ruled on the issue on several occasions. Id. Therefore, the court of appeals concluded that Velazquez-Ramirez's counsel's conduct did not constitute deficient performance or result in prejudice. Id.
The Iowa Supreme Court granted review solely to discuss the issue of sufficiency of the evidence to sustain a finding of malice. State v. Valazquez-Ramirez, 707 N.W.2d 588, 2005 WL 3556252, at *1 (Iowa Dec. 30, 2005) (per curiam) (unpublished table decision). The Iowa Supreme Court concluded that "the evidence was sufficient beyond a reasonable doubt to sustain the finding of the jury that [Velazquez-Ramirez] acted with malice." Id. Thus, the Iowa Supreme Court affirmed the decision of the Iowa Court of Appeals and judgment of the district court. Id. at *2.
Velazquez-Ramirez then brought a state action for post-conviction relief ("PCR") in which he made the following claims: (1) Ineffective assistance of counsel for his failure to secure a second attorney to represent Velazquez; (2) Ineffective assistance of counsel for his failure to obtain a psychological exam of Velazquez; (3) That the failure to apply the ruling in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), retroactively to his case violated his equal protection rights; (4) Ineffective assistance of counsel for presenting a juror questionnaire to potential jurors and failure to file motion in limine to exclude reference to Velazquez-Ramirez's citizenship status; (5) Ineffective assistance of counsel for failing to file a motion for change of venue; (6) Ineffective assistance of counsel for failing to demand compliance with Article 36 of the Vienna Convention on Consular Relations ("the Vienna Convention"); (7) Ineffective assistance of counsel for failing to file a motion to suppress Velazquez-Ramirez's statements to police based upon either the officers' failure to comply with the Vienna Convention or because he did not knowingly, intelligently, and voluntarily waive his Miranda rights. See Valazquez-Ramirez v. State , LACV035590, at 2-3 (Iowa Dist. Ct. Oct. 19, 2010). Following a trial, the Iowa District Court denied Velazquez-Ramirez's PCR claims. Id. at 44. Specifically, the court found that issues four and five concerned strategic decisions made by defense counsel based on his knowledge and experience, which did not constitute ineffective assistance of counsel. Id. at 33. The court explained:
The jury questionnaire did not prove that the jurors could not impartially judge the merits of the case as the questionnaire did not address that question. The mere fact that a juror has an opinion about the illegal immigration issue does not demonstrate the way the juror feels about the merits of the case in question. Mr. Williams did not have any basis for requesting a change in venue as he did not have proof the jurors would not be able to impartially judge the issues.
Id. at 35.
On Velazquez-Ramirez's sixth allegation of ineffective assistance of counsel, for failing to demand compliance with the Vienna Convention, the court found that Velazquez-Ramirez was notified of his right to contact the Mexican Consulate and chose not to do so. The court further noted that Iowa courts have not ruled on whether the Vienna Convention creates an individual, enforceable right, but even if such a right exists, Velazquez-Ramirez would have to prove actual prejudice because the right is not fundamental. The court found that even if defense counsel had not notified Velazquez-Ramirez of his right to contract the Mexican Consulate, Velazquez-Ramirez had failed to demonstrate that he was prejudiced as a result. Id. at 38-39. The Iowa Court of Appeals affirmed that denial. Velazquez-Ramirez v. State, 817 N.W.2d 31, 2012 WL 1438981, at *2 (Iowa Ct. App. Apr. 25, 2012) (unpublished table decision). The Iowa Supreme Court denied further review.
2. Federal proceedings
On July 2, 2012, Velazquez-Ramirez filed a pro se petition under 28 U.S.C. § 2254. In his petition, Velazquez-Ramirez challenges his conviction on the following grounds: (1) Ineffective assistance of counsel for failing to properly investigate prejudice in the jury pool; (2) Ineffective assistance of counsel for failing to request a change in venue; (3) Ineffective assistance of counsel for failing to raise the issue of compliance with Article 36 of the Vienna Convention; (4) Ineffective assistance of counsel for failure to make an appropriately specific motion for judgment of acquittal to challenge the sufficiency of the evidence to establish malice aforethought; and (5) Ineffective assistance of ...