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Rosales-Martinez v. Ludwick

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

March 29, 2017

NICK LUDWICK, Respondent.



         This 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).


         A 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.

         Any 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 filed:

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).

         II. THE R&R

         A. Procedural History and Facts

         Judge 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.

         Rosales-Martinez 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.[1] 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).

         The 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.

         B. Applicable Standards

         Judge 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).

         28 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).

         Many 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)).

         The 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)).

         C. Judge Williams' Recommendations

         Rosales-Martinez 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 each issue.

         1. Closed-Circuit TV

         Regarding 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 her testimony.

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 wrote:

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.

         2. Prosecutorial Misconduct

         Judge 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.

         3. Ineffective Assistance of Counsel

         Judge 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.

         4. Actual Innocence

         Finally, 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 ...

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