United States District Court, N.D. Iowa, Western Division
ORDER ON OBJECTIONS TO THE MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
LEONARD T. STRAND, CHIEF UNITED STATES DISTRICT JUDGE
matter is before me on a Report and Recommendation (Doc. No.
49) in which the Honorable C.J. Williams, Chief United States
Magistrate Judge, recommends that petitioner Santos
Rosales-Martinez' petition (Doc. No. 1) for relief
pursuant to 28 U.S.C. § 2254 be denied with prejudice.
Both parties have filed objections (Doc. Nos. 53, 54).
STANDARD OF REVIEW
district judge must review a magistrate judge's R&R
under the following standards:
Within fourteen days after being served with a copy, any
party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court. A
judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P.
72(b). Thus, when a party objects to any portion of an
R&R, the district judge must undertake a de novo review
of that portion.
portions of an R&R to which no objections have been made
must be reviewed under at least a “clearly
erroneous” standard. See, e.g., Grinder v.
Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (noting that
when no objections are filed “[the district court
judge] would only have to review the findings of the
magistrate judge for clear error”). As the Supreme
Court has explained, “[a] finding is ‘clearly
erroneous' when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer
City, 470 U.S. 564, 573-74 (1985) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
However, a district judge may elect to review an R&R
under a more-exacting standard even if no objections are
Any party that desires plenary consideration by the Article
III judge of any issue need only ask. Moreover, while the
statute does not require the judge to review an issue de novo
if no objections are filed, it does not preclude further
review by the district judge, sua sponte or at the
request of a party, under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 150 (1985).
Procedural History and Facts
Williams set out the procedural history and relevant facts in
his R&R. See Doc. No. 49 at 2-11. The parties do
not challenge Judge Williams' factual findings.
Accordingly, I will repeat that information only to the
extent necessary to address the relevant issues.
is an inmate at the Iowa State Penitentiary. In 2002, an Iowa
state court jury found him guilty of sexually abusing the
young daughter of his (then) girlfriend/wife. Rosales-Martinez
appealed his conviction to the Iowa Court of Appeals, which
affirmed. State v. Rosales-Martinez, 666 N.W.2d 621
(Table), 2003 WL 21229134 (Iowa Ct. App. 2003). On April 27,
2004, he filed a pro se application for
postconviction relief (PCR). On December 10, 2010, the PCR
court denied relief on all grounds. The Iowa Court of Appeals
subsequently affirmed that denial. Specifically, the Iowa
Court of Appeals held that Rosales-Martinez's trial
counsel was not ineffective for failing to challenge alleged
prosecutorial misconduct or for stipulating to protective
order regarding the testimony of the victim. See
Rosales-Martinez v. State, 810 N.W.2d 26 (Table), 2011
WL 6740152 (Iowa Ct. App. 2011).
Iowa Supreme Court denied further review on February 14,
2012, and procedendo issued on February 21, 2012.
Rosales-Martinez then filed a second PCR petition on August
23, 2012, which was denied on January 14, 2013.
Rosales-Martinez mailed his 28 U.S.C. § 2254 Petition on
May 10, 2013, and it was filed on May 13, 2013. See
Docket No. 1. The respondent filed motions to dismiss (Doc.
Nos. 12, 25), arguing that Rosales-Martinez's claims were
procedurally and time barred. The Honorable Donald E.
O'Brien, Senior Judge, denied the motions to dismiss,
stating that an evidentiary hearing should be conducted on
the issue of whether the statute of limitations had been
equitably tolled. Doc. No. 30. Judge O'Brien ordered that
the merits of the case be briefed contemporaneously with the
tolling issue. Id., at 16. In his merits brief, the
respondent waived the statute of limitation issue, stating:
Respondent reasserts that this petition is barred by the
statute of limitations. Yet, in light of the court's
earlier order rejecting Respondent's motion to dismiss
and ordering briefing on the merits, judicial economy would
be best served by denying the petition on the merits and
foregoing a hearing.
Doc. No. 42 at 38. Accordingly, Judge Williams addressed the
merits of the parties' arguments, decided that an
evidentiary hearing was not warranted and recommended
dismissal of the petition.
Williams set out the correct standards regarding Section 2254
habeas relief. In short, “[t]he writ of habeas corpus
stands as a safeguard against imprisonment of those held in
violation of the law.” Harrington v. Richter,
562 U.S. 86, 91 (2011). “As amended by [the
Antiterrorism and Effective Death Penalty Act of 1996] AEDPA,
28 U.S.C. § 2254 sets several limits on the power of a
federal court to grant an application for a writ of habeas
corpus on behalf of a state prisoner.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). 28 U.S.C. §
2254(a) provides that a federal court shall entertain an
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court only on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States. A
federal court's review of a state court decision under
§ 2254 is deferential. Lomholt v. Iowa, 327
F.3d 748, 751 (8th Cir. 2003). A state court decision on the
merits should not be overturned unless it:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)-(2). Considering the merits of
habeas claims, the Eighth Circuit has stated that:
The “contrary to” clause and “unreasonable
application” clause of § 2254(d)(1) have
“independent meaning.” See Williams v.
Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d
389 (2000). The “contrary to” clause
“suggests that the state court's decision must be
substantially different from the relevant precedent of [the
Supreme] Court.” Id. (listing
“diametrically different, ” “opposite in
character or nature, ” or “mutually
opposed” as definitions of “contrary”). An
“unreasonable application” of Supreme Court
precedent occurs when a state court correctly identifies the
governing legal standard but either unreasonably applies it
to the facts of the particular case or unreasonably extends
or refuses to extend the legal standard to a new context.
See id. at 407, 120 S.Ct. 1495. In determining
whether the state court unreasonably applied Supreme Court
precedent, our inquiry is an objective one. See id.
at 409-10, 120 S.Ct. 1495
Munt v. Grandlienard, 829 F.3d 610, 614 (8th Cir.
2016), cert. denied, 137 S.Ct. 821 (2017).
U.S.C. § 2254(b)(1)(A) prohibits a grant of habeas
relief on behalf of a person in state custody unless that
person has “exhausted the remedies available in the
courts of the State.”
“The exhaustion requirement of § 2254(b) ensures
that the state courts have the opportunity fully to consider
federal-law challenges to a state custodial judgment before
the lower federal courts may entertain a collateral attack
upon that judgment.” Duncan v. Walker, 533
U.S. 167, 178-79, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The
requirement prevents a federal court from granting a habeas
petition based on a constitutional violation that could be
redressed adequately by pursuing an avenue of state relief
“still open to the habeas applicant at the time he
files his application in federal court.” Humphrey
v. Cady, 405 U.S. 504, 516, 92 S.Ct. 1048, 31 L.Ed.2d
394 (1972) (citing Fay v. Noia, 372 U.S. 391, 435,
83 S.Ct. 822, 9 L.Ed.2d 837 (1963)).
Grass v. Reitz, 643 F.3d 579, 584 (8th Cir. 2011).
Under Iowa's system, a petitioner must first file a PCR
petition in the Iowa District Court. If his challenge is
denied he must:
appeal to the supreme court. Iowa R.App. P. 6.1(1) (2007);
see Effler, 769 N.W.2d at 883. The supreme court may
then choose to transfer any case (except a case in which
state law grants that court exclusive jurisdiction) to the
court of appeals. Iowa Code §§ 602.4102(2),
5103(3); Iowa R.App. P. 6.401(1) (2007); see Effler,
769 N.W.2d at 883. “Once a transfer has been made, the
supreme court no longer has jurisdiction of the matter,
unless a party seeks further review of the court of appeals
decision.” Effler, 769 N.W.2d at 883; see Iowa
Code § 602.4102(2). The supreme court regains
jurisdiction only if it grants an application for further
review. Effler, 769 N.W.2d at 883; Iowa Code §
602.4102(2), (4); see Iowa R.App. P. 6.402 (2007). Nothing in
Iowa law indicates that an application for further review in
the supreme court is an extraordinary measure outside of the
state's established appellate review process. Cf.
Akins v. Kenney, 410 F.3d 451, 454 (8th Cir. 2005)
(analyzing Nebraska's appellate review process); Dixon,
263 F.3d at 779 (analyzing Missouri's appellate review
process). Therefore, an Iowa prisoner whose appeal is
deflected to the Iowa Court of Appeals must file an
application for further review in the Supreme Court of Iowa
to exhaust his claims properly in the state courts.
Welch v. Lund, 616 F.3d 756, 758-59 (8th Cir. 2010).
habeas appeals raise claims of ineffective assistance of
counsel under the well-known Strickland standard.
For a petitioner to succeed in an ineffective assistance of
counsel claim, the federal court must find that a state
court's application of [Strickland v.
Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)] was unreasonable in order to grant habeas
relief. Harrington v. Richter, 562 U.S. 86, 101
(2011). This is a highly deferential inquiry because
“[a] state court must be granted a deference and
latitude that are not in operation when the case involves
review under the Strickland standard itself.”
Id. “Federal habeas courts must guard against
the danger of equating unreasonableness under
Strickland with unreasonableness under §
2254(d). When § 2254(d) applies, the question is not
whether counsel's actions were reasonable. The question
is whether there is any reasonable argument that counsel
satisfied Strickland's deferential
standard.” Id. at 105. Therefore, “even
a strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id. at
102 (citing Lockyer v. Andrade, 538 U.S. 63 (2003)).
“A state court's determination that a claim lacks
merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Id. at 101 (quoting Yarborough v. Alvarado,
541 U.S. 652 (2004)).
petitioner bears the burden of showing that the state
court's ruling was “so lacking in justification
that there was an error well understood and comprehended in
existing law beyond any possibility for fair minded
disagreement.” Richter, 562 U.S. at 103.
“Section 2254(d) reflects the view that habeas corpus
is a ‘guard against extreme malfunctions in the state
criminal justice systems, ' not a substitute for ordinary
error correction through appeal.” Id.
(quoting Jackson v. Virginia, 443 U.S. 307, 332, n.
5 (1979) (Stevens, J., concurring in judgment)).
Judge Williams' Recommendations
alleges four grounds for relief: (1) a violation of his Sixth
Amendment right to confrontation when the court allowed the
child victim to testify by closed-circuit television; (2)
prosecutorial misconduct; (3) ineffective assistance of
counsel; and (4) actual innocence. Judge Williams addressed
the first alleged ground for relief, Judge Williams wrote:
The question before this court, on habeas review, is whether
the State court's decision allowing the child victim to
testify by closed-circuit television was contrary to this
Supreme Court precedent or was based on an unreasonable
determination of the facts in light of the evidence. The
State court's decision was neither contrary to Supreme
Court precedent, nor was it based on an unreasonable
determination of the facts. As related above, the court heard
testimony from a social worker and the child victim's
foster mother that the victim was afraid of petitioner, that
she was scared “spitless” on one occasion when
she was in his presence, that she was in terror of
petitioner, and that that fear would impair her ability to
testify even in the context of a deposition where he could
view her through a oneway mirror. The court reasonably relied
on this record to determine the victim would have the same
fear of petitioner when she testified at trial. Nothing in
the record suggests that the victim's fear arose from the
prospect of testifying in the courtroom, or in front of a
jury, or in response to being questioned by lawyers. Rather,
the record aptly supports the conclusion that her real and
significant fear was of petitioner personally, regardless of
the setting in which she would encounter him. . . I conclude
that the court did not violate petitioner's right to
confront his accuser because there was an adequate showing
that the victim would be traumatized by testifying with
petitioner present and that it would have adversely affected
Doc. No. 49 at 16, 17. Judge Williams then considered whether
if there had been error in letting the child testify
via closed-circuit television, the error was harmless. He
Petitioner is not entitled to relief if the “guilty
verdict actually rendered in this trial was surely
unattributable to the error.” Sullivan v.
Louisiana, 508 U.S. 275, 279 (1993). . . The
parties' briefs are of no help to the court in making
this determination. Petitioner boldly claims that, absent the
victim's testimony, the remaining evidence was
“‘scant' at best.” Doc. 39, at 12.
Respondent equally boldly proclaims that “[e]ven
without considering the victim's testimony, sufficient
evidence existed in the record to support the verdict . . .
.” Doc. 42, at 22. Neither party, though, cited the
record or summarized the remaining evidence to support these
assertions. . . Removing the victim's testimony from
consideration, therefore, I conclude the State's
remaining evidence was not scant, and a reasonable jury could
have concluded it was sufficient to establish the elements of
the offense. The remaining evidence was not, however,
overwhelming. The only evidence of sexual abuse was the
hearsay evidence provided by the social worker. If the court
erred in permitting the victim to testify by closed-circuit
television, then it was not harmless error because the court
concludes that the guilty verdict rendered in this case was
surely unattributable to the error.
Doc. No. 49 at 17-18, 19.
Williams then considered Rosales-Martinez' claim of
prosecutorial misconduct. Rosales-Martinez alleged that the
prosecutor elicited opinion testimony from Susan Gavin, a
social worker, and that this testimony violated a pretrial
evidentiary order regarding physical evidence. First noting
that there is a question of whether Rosales-Martinez even
raised the issue in his petition, Judge Williams stated:
a liberal reading of the Second Amended Petition could
support petitioner's argument that he pled a claim of
ineffective assistance of counsel in relation to the
allegation of prosecutorial misconduct.
The problem for petitioner, however, is that petitioner never
raised an allegation of ineffective assistance of counsel in
relation to this claim of prosecutorial misconduct in State
court. On direct appeal, petitioner alleged the trial court
erred in failing to grant his motion for a mistrial based on
the alleged misconduct. Rosales-Martinez, 2003 WL
21229134, at *1. He did not allege his attorney was
ineffective in some way in relation to this claim. In
post-conviction litigation, petitioner alleged his counsel
was ineffective for failing to object to alleged
prosecutorial misconduct, but only in relation to the
elicitation of testimony by Officer Cole, the
prosecutor's questioning of the victim's foster
mother, the impeachment of petitioner with prior inconsistent
statements, and the questioning of petitioner in relation to
being present throughout trial. Rosales-Martinez,
2011 WL 6740152, at *7-9. Indeed, even in the briefing before
this court, petitioner does not explain how his attorney was
allegedly ineffective in relation to this particular claim of
prosecutorial misconduct. Accordingly, I find petitioner has
procedurally defaulted any claim that his attorney was
ineffective in relation to alleged prosecutorial misconduct
arising from the questioning of the social worker.
Doc. No. 49 at 21-22. Judge Williams then made an alternative
finding that even if the claim was not procedurally
defaulted, and was considered on its merits, it still failed
because, among other things, any error was harmless:
the district court struck the question and that answer and
instructed the jury to disregard it. App. 281. Jurors are
presumed to follow limiting instructions. United States
v. Gardner, 396 F.3d 987, 993 (8th Cir. 2005) (holding
that courts presume that juries will follow limiting
instructions). See also Richardson v. Marsh, 481
U.S. 200, 211 (1987) (“The rule that juries are
presumed to follow their instructions is a pragmatic one,
rooted less in the absolute certitude that the presumption is
true than in the belief that it represents a reasonable
practical accommodation of the interests of the state and the
defendant in the criminal justice process.”).
Doc. No. 49 at 24-25.
Ineffective Assistance of Counsel
Williams then considered Rosales-Martinez' next claim of
ineffective assistance of counsel:
Petitioner argues that his trial counsel was ineffective when
he failed to object to testimony from Officer Cole relating
petitioner's invocation of his rights to counsel and to
remain silent. Doc. 39, at 16-17. Petitioner also objects to
the prosecutor's cross examination of him where the
prosecutor pointed out that petitioner had the benefit of
hearing other witnesses testify. Doc. 39, at 17-18.
Petitioner argues that “either individually or
considered cumulatively, ” these instances of
ineffective assistance of counsel warrant relief. Doc. 39, at
16. . .
With regard to Officer Cole's testimony, petitioner cites
Doyle v. Ohio, 426 U.S. 610 (1976), for the
proposition that the prosecutor's examination violated
his Sixth Amendment rights. Doc. 39, at 18. I agree that the
prosecutor's questions were improper, but that is not the
question for this court to decide. Rather, on habeas review,
this court's task is to determine if the State
court's decision that trial counsel was not ineffective
was contrary to, or involved an unreasonable application of,
federal law. . . Petitioner has not explained how the State
court's decision was contrary to, or an unreasonable
application of, this standard. The State court's factual
finding that trial counsel did not object to the testimony as
a matter of trial strategy is not an unreasonable conclusion
based on the attorney's testimony, so will not be
disturbed by this court on habeas review. I find that the
State court's conclusion that trial counsel was not
unconstitutionally ineffective was not an erroneous decision
under the Strickland standard.
Doc. No. 49 at 25-26, 26-27. Similarly, Judge Williams found
that Rosales-Martinez had failed to show ineffective
assistance in either (a) his counsel's failure to object
to questions posed to Rosales-Martinez on cross-examination
or (b) alleged cumulative errors.
Judge Williams considered Rosales-Martinez' claim of
actual innocence. Judge Williams noted the uncertain case law
regarding an actual innocence claim and further noted that
Rosales-Martinez presented an ...