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Velez v. Clarinda Correctional Facility

United States Court of Appeals, Eighth Circuit

June 29, 2015

Valentin Velez, Petitioner - Appellant
v.
Clarinda Correctional Facility, Respondent - Appellee

Submitted: February 11, 2015.

Page 832

Appeal from United States District Court for the Southern District of Iowa - Des Moines.

For Valentin Velez, Petitioner - Appellant: Angela L. Campbell, Attorney, Dickey & Campbell, Des Moines, IA.

For Clarinda Correctional Facility, Respondent - Appellee: Benjamin Milton Parrott, Assistant Attorney General, Attorney General's Office, Des Moines, IA.

Before BYE, BEAM, and BENTON, Circuit Judges.

OPINION

Page 833

BEAM, Circuit Judge.

Valentin Velez appeals the district court's denial of his 28 U.S.C. § 2254 petition for habeas corpus relief. The issue certified for appeal is whether the Iowa state courts unreasonably applied United States Supreme Court precedent when they determined that Velez's conviction and sentences did not run afoul of the Double Jeopardy Clause of the United States Constitution. We affirm the denial of habeas corpus relief.

I. BACKGROUND

Seeking to collect on a drug debt or retaliate against the victim for failing to pay the debt, on July 5, 2010, Velez attacked the victim in a prolonged beating with a metal pole causing numerous broken bones and other serious injuries. Velez pleaded guilty to two counts of " willful injury causing serious injury" pursuant to Iowa Code § 708.4(1). The plea agreement provided that the state would recommend consecutive sentences for the counts, which were both based upon the July 5, 2010, incident, and accordingly, after accepting Velez's guilty plea, the state trial court sentenced Velez to consecutive ten-year sentences.

On direct appeal, Velez asserted there was an inadequate factual basis for his guilty plea, that counsel was ineffective, and that the sentence violated the Double Jeopardy Clause of the United States Constitution. The Iowa Court of Appeals reversed, finding that the trial court erred in accepting the plea, because the plea colloquy only established a factual basis for the proposition that Velez had caused multiple serious injuries, not that there were at least two discrete incidents or assaults. Accordingly, the Court of Appeals found that Velez's conviction violated double jeopardy because " [t]o allow separate counts for separate blows delivered during an assault would lead to an impermissible multiplicity of charges." State v. Velez, 814 N.W.2d 622, 2012 WL 652298, at *4 (Iowa Ct. App. 2012). Upon further review, the Iowa Supreme Court reversed. The court found that in viewing the record as a whole, which it construed to include the charging documents and minutes of testimony in addition to the plea transcript, there was a sufficient factual basis to support a finding of two separate assaults, rather than just one. The court so found because the minutes of testimony of Welsh, the person who accompanied Velez during the attack, indicated that the assault stopped twice--once for Velez to pat the victim down looking for money, and another time when the victim dropped a lighter which the parties thought was a gun. Because of these two " breaks in the action," the Iowa Supreme Court found there was a factual basis for two separate completed acts, rather than one continuous act, that caused two separate serious injuries. State v. Velez, 829 N.W.2d 572, 583-84

Page 834

(Iowa 2013). Accordingly, because the Iowa legislature considered these acts separate units of prosecution, there was no violation of the Fifth Amendment's ...


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