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Moore v. Wachtendorf

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

September 23, 2019

COREY DARNELL MOORE, Petitioner,
v.
PATTI WACHTENDORF, Respondent.

          MEMORANDUM, ORDER AND OPINION

          LINDA R. READE JUDGE UNITED STATES DISTRICT COURT

         I. INTRODUCTION

         Before the court is Corey Moore’s 28 U.S.C. § 2254 petition (docket no. 1), motion to stay (docket no. 10), and motion for an extension of time (docket no. 18). The case is fully submitted, and oral argument is not necessary. See Rules Governing § 2254 Cases, Rule 8(a).

         II. STATE COURT PROCEEDINGS AND PROCEDURAL HISTORY

         The Iowa Court of Appeals set out the facts underlying petitioner’s conviction:

In 2010, Belinda Robinson became acquainted with Alonzo Henderson through Facebook. Henderson owned a restaurant in Waterloo and invited Robinson to move into his trailer in Cedar Falls and work in his restaurant. Robinson did so, but Henderson became physically abusive and did not pay Robinson for her work in the restaurant.
Due to their acquaintance, Robinson was aware Henderson was a drug dealer and that he was soon to receive a large quantity of marijuana and some quantity of cocaine. At trial, Robinson testified the plan was to rob Henderson of the drugs and “for [Henderson] to get roughed up and if need be then to use duct tape if they had to, but just basically to rough him up.” Robinson included in the plan Jacque Dukes, Crystal Cooper, and Lamario Stokes. Moore is a friend of Dukes and joined in the scheme not long before its commission. Robinson was not aware Moore was intending to participate until the day of the robbery.
On January 26, 2011, the marijuana delivery was made to Henderson's residence. Henderson brought in two men to help with the drugs, William McNealy and Ryan Harper. Shortly after the delivery, Robinson drove Harper's car to buy cigarettes and plastic bags, and later met up with Dukes, Stokes, Cooper, and Moore at a nearby motel. While there, they decided to lure McNealy and Harper away from the trailer by telling them Robinson had run out of gas in the Hy–Vee parking lot. The group left Harper's car in the Hy–Vee parking lot and drove back to the trailer in Dukes's car. Robinson made the call, then the group watched as Harper and McNealy left the trailer.
Once Harper and McNealy were gone, Moore, Dukes, and Stokes went into Henderson's trailer. Robinson and Cooper waited in the car. All three men were dressed in black and wore covers over their faces. Henderson testified he was in the kitchen when three people dressed in black kicked in the door to his trailer, though he could not discern their race or gender. Two of the intruders were holding guns and pointing them at Henderson. Henderson further testified the marijuana was clearly visible on the kitchen counter.
Henderson then walked into his bedroom. One of the intruders followed him, and after Henderson turned around, hit him in the head with the gun. The two began to wrestle, and a second intruder came into the room and pointed the second gun at Henderson while the first person backed out of the bedroom. The first intruder stumbled, and Henderson attempted to knock the gun out of his hand. The second intruder then opened fire, shooting Henderson once in the arm-after which the bullet penetrated the abdomen-and once in the leg. All three intruders then left the trailer with the drugs. Henderson went into the living room and looked outside but could not see in which direction the intruders went.
Stokes also testified at trial, stating Henderson was on the couch when he, Dukes, and Moore entered through the unlocked front door. Stokes testified he could see the marijuana on the kitchen island and that Moore was the one who shot Henderson. He further testified the entire group left with the marijuana.
Robinson testified that as the group was driving back to Cedar Rapids, she, Dukes, and Cooper were speaking to each other and texting on their phones.
Cooper testified Moore told the group Henderson was “talkin' a lot of crap” so Moore shot Henderson in the leg and arm, and Dukes claimed he hit Henderson in the head with his gun. However, during the struggle, Dukes dropped the gun.
The group drove to the apartment of Moore's girlfriend, Bridget Johnson, where they divided up the marijuana. Johnson testified Moore told her he had robbed someone in the Cedar Rapids area and that during the robbery there was a struggle and he shot someone in the leg.
The police were called to Henderson's home the same day. Two spent casings were found at the scene. While the gun that fired the bullets was not recovered, police found a pistol in a bedroom, though it had a bent magazine that would not allow it to fire. Marijuana residue was found throughout the trailer, and there was a trail of marijuana leading out the door.
On September 13, 2011, the State filed a trial information charging Moore with robbery in the first degree, burglary in the first degree, willful injury causing serious injury while in the immediate possession and control of a dangerous weapon, and possession of marijuana with intent to deliver and/or conspiracy to possess marijuana with intent to deliver while in the immediate possession or control of a firearm. Trial began October 9, 2012. Robinson, Cooper, and Stokes testified as part of their plea agreements. On October 12, the jury returned guilty verdicts to the robbery, willful injury, and possession of marijuana counts, and an acquittal on the burglary count. Moore was sentenced on November 21, 2012, to twenty-five years on the robbery count, and five years on the possession and willful injury counts.

State v. Moore, 2014 WL 69593 at *1-3 (Iowa Ct. App. 2014) (unpublished). Moore filed a timely appeal, which was denied by the Iowa Court of Appeals, as was an application for further review by the Iowa Supreme Court. Id. Procedendo issued on March 12, 2014. State v. Moore, 01071 FECR 178332 (Black Hawk County 2014). Moore filed a timely post-conviction relief action on June 5, 2014, which was denied by the district court, the Iowa Court of Appeals and the Iowa Supreme Court on an application for further review. Moore v. State, 01071 PCCV 124955 (Black Hawk County 2017); Moore v. State, 2017 WL 2461427 (Iowa Ct. App. 2017) (unpublished).[1]Procedendo issued on November 22, 2017. Id. Moore filed this petition three months later, on February 12, 2018. (docket no. 2). On August 3, 2018, the court directed respondent to file an answer. (docket no. 5). On October 3, 2018, respondent filed an answer (docket no. 7) and the court issued a briefing schedule (docket no. 9). On December 12, 2018, petitioner filed a motion to stay (docket no. 10). December 14, 2018, respondent filed a resistance to the motion to stay (docket no. 12). On December 31, 2018, petitioner filed his merits brief (docket no. 13). On February 4, 2019, respondent filed its merits brief (docket no. 17). On March 15, 2019, petitioner filed a motion requesting additional time to file a reply brief (docket no. 18).

         III. STANDARDS

         A. 28 U.S.C. § 2254 Standards

         28 U.S.C. § 2254 states that, “[t]he Supreme Court, a Justice thereof, a circuit judge, or a district 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.” “The 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, 131 S.Ct. 770, 780, 178 L.Ed.2d 624 (2011). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prescribes the standards for this court to review a state prisoner’s petition for habeas corpus relief. A federal court will not grant a petition for writ of habeas corpus “unless it appears that (1) the applicant has exhausted the remedies available in the courts of the State [the exhaustion doctrine], (2) there is an absence of available State corrective process; or (3) circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(A)-(B). See also Baldwin v. Reese, 541 U.S. 27, 29 (2004) (holding that under the AEDPA, a petitioner must exhaust available state remedies). “Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in the state court. In other words, a state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion doctrine “is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts.” Beorckel, 526 U.S. at 845.

         In Iowa, a prisoner must seek review through the “ordinary and established appellate review process” which includes an application for further review in the Iowa Supreme Court. Welch v. Lund, 616 F.3d 756, 758-59 (8th Cir. 2010) (internal citation omitted) (holding that an Iowa prisoner failed to exhaust his claims in the State court when prisoner’s appeal of the state district court’s decision to the Iowa Supreme Court was “deflected to the Iowa Court of Appeals” and the prisoner failed to file for further review in the Iowa Supreme Court).

         Even when a prisoner’s claim has been fully adjudicated in state court, a federal court still may not grant habeas relief unless the state court adjudication:

(1) Resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme court; or
(2) Resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). “A state court’s determination that a claim lacks merit precludes federal habeas relief so long as fair-minded jurists could disagree on the correctness of the state court’s decision.” Woods v. Etherton, 136 S.Ct. 1149, 1151 (2016) (per curium) (quotations and citations omitted). See also Nash v. Russell, 807 F.3d 892, 896 (8th Cir. 2015) (holding that under the AEDPA, a federal court can grant habeas relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.”) (quotation and citation omitted).

         B. Strickland Standard

         To demonstrate that his counsel was ineffective, petitioner must show “both deficient performance by counsel and prejudice.” Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Under the Strickland standard, “[j]udicial scrutiny of counsel's performance must be highly deferential.” Strickland, 466 U.S. at 689. “A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Id. Thus, “[a] convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 690. For this court on habeas review, furthermore, petitioner must show that the State court's holding that petitioner failed to show his trial counsel was constitutionally ineffective was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States. See, e.g., Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (noting that on habeas review, federal courts take a “highly deferential” review a claim of ineffective assistance of counsel); Knowles v. Mizayance, 556 U.S. 111, 112 (2009) (holding that in the context of a § 2254 ineffective assistance of counsel claim, the question is not whether a federal court believes the state court's determination under Strickland was correct, but whether that determination was unreasonable, a substantially higher threshold). To establish the “prejudice” prong, the petitioner must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “Merely showing a conceivable effect is not enough; a reasonable probability is one sufficient to undermine confidence in the outcome.” Paulson v. Newton Corr. Facility, 773 F.3d 901, 904 (8th Cir. 2014) (citation omitted).

         IV. ...


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