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Brandes v. Ludwick

United States District Court, N.D. Iowa, Eastern Division

August 3, 2015

RICK ANTHONY BRANDES, Petitioner,
v.
NICK LUDWICK, Respondent.

ORDER

LINDA R. READE, Chief District Judge.

I. INTRODUCTION

The matter before the court is Rick Anthony Brandes's ("the petitioner") "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus" ("petition") (docket no. 1).

II. PROCEDURAL BACKGROUND

A. Conviction

On March 29, 2006, after a bench trial, the Iowa District Court for Chickasaw County ("Iowa District Court"), Case No. FECR006327, found the petitioner guilty of kidnapping in the first degree with intent to commit sexual abuse in violation of Iowa Code sections 710.1 and 710.2. Appendix ("App'x"), Judgment and Sentence (docket no. 14-3) at 289. The petitioner was sentenced to life in prison without the possibility of parole. Id.

B. Direct Appeal

On April 3, 2006, the petitioner appealed his conviction on three grounds: (1) there was insufficient evidence to support conviction due to incapacity to form specific intent to sexually abuse the victim; (2) trial counsel[1] were ineffective because they did not file a timely notice of diminished capacity defense; and (3) the Iowa District Court erred in refusing to admit evidence pertaining to a sperm fragment found during the victim's vaginal exam and in refusing to allow counsel to question the victim about her sexual history. See App'x, Petitioner's Direct Appeal Brief (docket no. 14-4) at 25.

On December 28, 2007, the Iowa Court of Appeals affirmed the petitioner's conviction. State v. Brandes, 745 N.W.2d 95 (Table), 2007 WL 4553478 (Iowa Ct. App. Dec. 28, 2007), App'x, Direct Appeal Opinion (docket no. 14-6). The Iowa Court of Appeals held that the evidence was sufficient to establish the petitioner had the ability to form the requisite specific intent to sexually abuse the victim. App'x, Direct Appeal Opinion (docket no. 14-6) at 8. Furthermore, the Iowa Court of Appeals found that trial counsel's untimely notice of his intent to rely on the defense of diminished capacity did not prejudice the petitioner because the Iowa District Court allowed the petitioner to present that defense anyway. Id. at 10-11. Finally, the Iowa Court of Appeals held that the Iowa District Court did not err in refusing to admit evidence pertaining to the sperm fragment recovered during the victim's vaginal exam because it was irrelevant to the petitioner's defense, especially considering that neither the petitioner nor his co-defendant[2] claimed vaginal intercourse occurred, and it was insufficiently probative to overcome Iowa's bar on introducing evidence of past sexual behavior of a sexual assault victim. Id. at 12-13. Moreover, it concluded that the Iowa District Court's refusal to permit questioning of the victim about her sexual history did not breach the petitioner's constitutional rights because irrelevant evidence is never constitutionally required. Id. at 13. The petitioner applied for further review before the Iowa Supreme Court, asserting only: (1) insufficient evidence that he could form specific intent to commit sexual abuse and (2) improper exclusion of the evidence pertaining to the sperm fragment found during the victim's vaginal exam.[3] See App'x, Application for Further Review (docket no. 14-7) at 15-25. On February 19, 2008, the Iowa Supreme Court denied the petitioner's application for further review. App'x, Order Denying Further Review (docket no. 14-8). Procedendo issued on February 22, 2008 (docket no. 14-9).

C. State Post-Conviction Relief Proceedings

On April 28, 2008, the petitioner sought post-conviction relief in the Iowa District Court. He asserted trial counsel were ineffective in three respects: (1) trial counsel failed to request a competency evaluation; (2) trial counsel failed to request a change of venue; and (3) trial counsel failed to call the petitioner's neighbor and the co-defendant's girlfriend as witnesses. See Brandes v. State, 825 N.W.2d 327 (Table), 2012 WL 5598523 (Iowa Ct. App. Nov. 15, 2012), App'x, Post-Conviction Relief ("PCR") Appeal Opinion (docket no. 14-12) at 2. The Iowa District Court denied post-conviction relief. See App'x, PCR Appeal Opinion (docket no. 14-2) at 2. The petitioner appealed, asserting that trial counsel was ineffective for failing to request a competency hearing and for failing to call the two witnesses. Id. The petitioner did not appeal his change of venue claim. Id at 8.[4] In his appeal, the petitioner also claimed that post-conviction counsel was ineffective for failing to call the same two witnesses that trial counsel had failed to call. Id.

On November 15, 2012, the Iowa Court of Appeals affirmed the denial of post-conviction relief. See App'x, PCR Appeal Opinion (docket no. 14-12). The Iowa Court of Appeals found that trial counsel were not ineffective for failing to request a competency evaluation because the petitioner's psychiatrist had assured trial counsel that the petitioner was competent so long as he was taking his medication and trial counsel confirmed with jailers that the petitioner was taking his medication. Id. at 5. Moreover, the Iowa Court of Appeals held that because the petitioner was able to assist trial counsel during trial, he could not show that trial counsel's failure to request an evaluation resulted in any prejudice. Id. at 6. The Iowa Court of Appeals also rejected the petitioner's claim regarding trial counsel's failure to call two witnesses. Id. at 7. It found that the witnesses' testimony would have been either irrelevant to the petitioner's defense of diminished capacity or cumulative because other witnesses, including the petitioner himself, testified to the same facts. Id. at 7-8. As a result, the Iowa Court of Appeals concluded that declining to call the two witnesses was merely a tactical decision by the petitioner's trial counsel and post-conviction counsel. Id. at 8-9. The petitioner applied for further review, asserting only that trial counsel failed to request a competency evaluation. See App'x, Application for Further Review (docket no. 14-13) at 17. On January 9, 2013, the Iowa Supreme Court denied further review (docket no. 14-14). Procedendo issued on January 15, 2013 (docket no. 14-15).

D. Federal Habeas Corpus Action

On October 23, 2013, the petitioner filed the petition, [5] asserting three grounds: (1) ineffective assistance of trial counsel for failing to request a competency evaluation, (2) ineffective assistance of trial counsel for failing to call two witnesses and (3) ineffective assistance of post-conviction counsel for failing to call the same two witnesses. Petition (docket no. 1) at 5-6. On February 20, 2014, Nick Ludwick ("the respondent"), Warden of the Iowa State Penitentiary in Fort Madison, Iowa, filed an answer in which he argues that all of the petitioner's grounds are unexhausted, barred, procedurally defaulted and/or without merit. See Answer (docket no. 13).

On October 19, 2014, the petitioner filed a brief ("petitioner's brief") in which he asserts the three grounds raised in the petition as well as additional ineffective assistance of trial counsel grounds: (1) failure to request a change of venue; (2) failure to insist on a jury trial instead of a bench trial; (3) failure to request a competency hearing prior to trial; (4) failure to investigate the facts, including those that relate to the victim's mental health history and competency, the interactions that the defendant had with the co-defendant's girlfriend and the neighbor who lived next door; (5) failure to allow him to interact with the Iowa District Court; (6) failure to adequately explain to the Iowa District Court his version of what occurred; (7) failure to challenge the State's evidence; (8) failure to call witnesses, including the co-defendant, others who had knowledge of events, the private investigator, the co-defendant's girlfriend, three men whom the petitioner asserts had sexual intercourse with the victim the day after the kidnapping, an individual from the crime lab, the victim's doctors, a psychiatric expert and the victim's husband; (9) failure to establish that his DNA was not on the victim and his DNA would have been in the apartment because it was where he lived; (10) failure to properly question the victim on cross-examination, challenge the victim's inconsistent stories, ask about her medications and use of illegal substances and question her about hallucinating; (11) failure to introduce evidence of the co-defendant's drug history and criminal history; (12) failure to ask the co-defendant's mother whether she used illegal substances, took medications and had mental health issues; (13) failure to introduce evidence that relates to his arrest and the victim's knife; (14) failure to object to the medical examiner's generalized findings and to properly question him on cross-examination; (15) failure to properly cross-examine the man who was in the bar; (16) failure to protect the petitioner from testifying on his own behalf; (17) failure to properly question the petitioner and to object to various aspects of the State's cross-examination, including but not limited to the State's questions regarding his mental condition; and (18) failure to adequately explain his mental health issues. See Petitioner's Brief (docket no. 26). On October 31, 2014, the respondent filed a merits brief ("respondent's brief") in which he argues that each of the petitioner's grounds is defaulted, untimely and/or without merit. See Respondent's Brief (docket no. 30).

On November 17 and November 25, 2014, the petitioner filed replies in which he reiterates the arguments made in the petitioner's brief and asserts that (1) the respondent's brief misstates the record and (2) trial counsel failed to properly explain different plea options to him. See Replies (docket nos. 32, 34).

On April 30, June 9 and June 15, 2015, the petitioner filed notices in which he asserts additional grounds for relief: (1) miscarriage of justice because his sentence is more severe than the sentence given to the co-defendant, who reached a plea agreement with prosecutors; (2) a Sixth Amendment violation because he was not present during the victim's deposition; (3) ineffective assistance of trial counsel for failing to call three witnesses; (4) ineffective assistance of trial counsel for failing to fully cross-examine several witnesses; (5) prosecutorial misconduct because the State knowingly lied about the facts of the petitioner's case; (6) ineffective assistance of trial counsel for failing to argue double jeopardy; (7) the charge of kidnapping in the first degree was improper; (8) ineffective assistance of trial counsel for failing to show there was insufficient evidence to support conviction due to incapacity to form specific intent to sexually abuse the victim; (9) ineffective assistance of trial counsel for failing to call the co-defendant and ask him why he pleaded guilty; and (10) the conviction for kidnapping in the first degree cannot stand. See Notices (docket nos. 35, 36, 38, 39). The respondent filed a response (docket no. 40) on June 17, 2015, and the petitioner filed a reply (docket no. 41) on July 1, 2015.

III. FACTUAL BACKGROUND

The relevant facts[6] were summarized by the Iowa Court of Appeals:

On May 26, 2005, the victim was working as a bartender at McShanney's Bar in New Hampton. [The petitioner] and [co-defendant] Travis Alve were at the bar, drinking and playing pool. They repeatedly invited the victim to an after-hours party at [the petitioner's] apartment. She initially refused, but eventually agreed to go with them. She testified that she accepted the invitation because she had recently moved to New Hampton and wanted to meet people. Her husband was in jail at the time.
After the victim closed the bar at 2:00 a.m., [the petitioner] and Alve stayed while she locked up. The three walked the block to [the petitioner's] apartment. When they arrived, [the petitioner] locked the front door, and then offered the victim a beer, which she declined. The three sat at the kitchen table and smoked cigarettes. When nobody else showed up after about ten minutes, the victim began to feel uncomfortable and told the men she needed to go home to let her dog out. [The petitioner] told the victim he had something for her, took her to the nearby bedroom, and gave her a Seroquel, a prescription medication used to treat bipolar disorder. The victim did not take the pill, but kept it and later hid it in her sock. When she tried walking toward the door of the bedroom, Alve grabbed her from behind. She was unable to remove Alve's hands from her waist. She pulled out a knife. [The petitioner] told Alve about the knife. When the victim started to scream, Alve started to strangle her and told her they would slit her throat if she screamed. She stopped screaming. While [the petitioner] was trying to get the knife from the victim's hand, his hand was cut. During the struggle, Alve got his forearm around the victim's throat and leaned her back into the bed so her feet did not touch the floor. She lost consciousness. When she came to, she was face-down on the floor, her nose was bleeding, and she was lying in a pool of blood. [The petitioner] and Alve were standing over her, telling her they were going to teach her a lesson for pulling a knife on them. [The petitioner] was holding her knife and told her they were going to use the knife on her.
Alve began removing most of the victim's clothing. Alve then repeatedly anally raped her. She testified that, while Alve was raping her, [the petitioner] was in the living room much of the time, but would come into the bedroom "every so often." [The petitioner] would ask her if she wanted him to touch her, and she replied no, she just wanted to go home. [The petitioner] also held the knife to her throat and told her he was going to slit her throat and watch her bleed and laugh at her. At some point during the night, [the petitioner] used the knife to cut off her shirt. On two occasions, [the petitioner] held a knife to her throat and forced her to perform oral sex on him. [The petitioner] also performed oral sex on her several times. [The petitioner] and Alve held the victim in [the petitioner's] apartment for over four hours. Two or three times the men allowed her to get dressed and told her they were going to let her leave, but then prevented her from leaving. [The petitioner] kept her from leaving by dragging her around by her hair, arms, and legs. The victim testified that [the petitioner] and Alve continually threatened to kill her and told her that, if she went to law enforcement authorities, "they would have the Sons of Silence and the Hells Angels come after [her] and they would do worse." She also testified that [the petitioner] told her it wouldn't matter if she went to the authorities because "everyone knows that he's crazy and that he would get away with it" and that he would come in the bar and make sure she did not tell anyone.
Alve eventually fell asleep on the couch. The victim testified that [the petitioner] kept saying he was going to keep her hostage, but Alve said she could go. [The petitioner] told her to wake Alve up to see if she could go. She did and initially Alve said something about killing her. [The petitioner] then came toward her with a knife. She ducked in a corner and started screaming. Alve then woke up and told [the petitioner] that the victim needed to leave before she woke up Alve's mother and girlfriend, who were in an upstairs apartment with his two-week-old son. The men told the victim she had five minutes to leave, or she would not be leaving at all. She left and walked to her home.
At home, the victim threw her shirt in the garbage and her other clothes in the laundry and took a shower. Later that day, she visited her mother and husband, who told her to go to the police. Later that afternoon, she went to the sheriff's office in New Hampton and reported the incident. New Hampton Police Officer Jeff Jackson interviewed the victim and sent her to the hospital for an examination.
The doctor who examined the victim found tenderness in her neck area, hemorrhages in her posterior left scalp, where her hair had been forcibly removed, tearing and swollenness around her nose, and a contusion on her shoulder, consistent with a rug burn. The doctor also noted tenderness and several tears around her rectal area, consistent with non-consensual sex. He noted multiple hemorrhages in both eyes, consistent with the increased pressure in the blood vessels that occurs when a person has been strangled or the neck has been forcibly constricted.
That evening, Officer Jackson obtained a warrant to search [the petitioner's] apartment. Jackson executed the warrant shortly after midnight. He discovered bloodstains on the bedroom floor and several bloody towels. Testing confirmed it was the victim's blood on the carpet and towels. While Jackson was drafting the application for the search warrant, the police received a report of a man at Josie's bar threatening patrons with a knife. Officer Jeremy Copp responded to the call. The man with a knife was reportedly walking south from the bar. Copp eventually found the man and turned his spotlight on him. He recognized the man as [the petitioner]. Copp got out of his squad car, drew his weapon, and told [the petitioner] to keep his hands up and get on the ground. [The petitioner] did not comply, but continued to walk away. Eventually, Copp tackled [petitioner]. [The victim's] knife was found in the grass approximately twenty feet from where Copp first spotted [the petitioner]. After his arrest, Jackson observed and photographed an injury to [the petitioner's] left hand.

App'x, Direct Appeal Opinion (docket no. 14-6) at 2-5.

IV. STANDARDS OF REVIEW

A. Requirements under 28 U.S.C. § ...


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