Fuentes v. Superintendent

Filing 21

OPINION AND ORDER: The court DENIES the habeas corpus petition, DENIES a certificate of appealability pursuant to Section 2254 Habeas Corpus Rule 11, DENIES leave to appeal in forma pauperis and DIRECTS the clerk to enter judgment in favor of the Respondent and against the Petitioner. Signed by Judge Philip P Simon on 4/9/18. (Copy mailed to Fuentes). (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROBERT FUENTES,
Petitioner,
v.

SUPERINTENDENT,
Respondent.

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Cause No. 3:16-cv-893 PPS

OPINION AND ORDER
Robert Fuentes seeks habeas corpus relief from his state court conviction for
murder and unlawful possession of a firearm. Following a jury trial, the Lake Superior
Court sentenced Fuentes to fifty-eight years imprisonment on the murder charge and
five years consecutive to that on the charge of unlawful possession of a firearm.
Factual Background
In deciding this habeas petition, I must presume the facts set forth by the state
courts are correct unless they are rebutted with clear and convincing evidence. 28 U.S.C.
§ 2254(e)(1). Here’s how the Court of Appeals of Indiana summarized the evidence
presented at trial:
Shortly before 8:45 p.m. on November 1, 2008, Latanza McFerrin drove
her fiancé Ronald Grayson, who stood 5'11" tall and weighed 233
pounds, to a Clark gas station in Lake County. Once there, Grayson
went inside so that he could buy a pack of cigarettes. Back outside,
Grayson was conversing with his friend Thomas Meadows as the duo
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stood in front of Grayson’s vehicle. About this time, Fuentes, who
stood 5'4" tall and weighed approximately 140 pounds, arrived in a
burgundy Impala.
Inside the gas station, Fuentes collided with Meadows and exchanged
words and a handshake with him. According to Fuentes, he
approached the counter to pay for gasoline when Grayson said
something to him that he perceived to be unfriendly. Fuentes testified
that he felt Meadows and Grayson were attempting to “instigate”
something, he felt threatened, he thought it would be best just to leave,
and he left the gas station without paying for his gasoline. Fuentes
testified that, based on what Grayson said to him, he felt that he “was
gonna get f* * * * * up or I had to get out of there someway [sic],
somehow.”
Fuentes walked to the parking lot, followed by Grayson, who “came
directly at him reaching behind his back—behind his shirt, rather.” At
8:45:10 p.m., surveillance video shows Fuentes attempting to punch
Grayson, a blow that did not land. Grayson backed up and then moved
toward Fuentes, who had by this time drawn his illegally-possessed
handgun. At 8:45:11 p.m., Fuentes shot Grayson in the left arm. Within
two seconds, Grayson went to his knees in the parking lot and raised
his arms and hands in front of him. Despite Grayson's now defenseless
position, Fuentes shot him again, this time in the chest, killing him.
Fuentes v. State, 941 N.E.2d 568 (Ind. Ct. App. 2011); ECF 7-6 at 2-3.
Fuentes argues that he is entitled to habeas corpus relief because the trial court
prevented him from presenting a complete defense by issuing an improper jury
instruction on self defense. He also alleges ineffective assistance of trial counsel because
trial counsel failed to adequately review the video recording of the confrontation and
failed to tender a jury instruction on a lesser included offense. He further alleges that
ineffective assistance of appellate counsel because appellate counsel failed to adequately
review the video recording and failed to submit the video recording to the Court of

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Appeals. Fuentes has presented these claims to the Indiana Supreme Court and the
Court of Appeals of Indiana. ECF 7-3 at 16-27; ECF 7-10; ECF 7-14; ECF 7-18. As such,
Fuentes has properly exhausted his State court remedies, and I will consider his claims
on the merits. See 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir.
2004).
Discussion
Federal habeas review serves as an important error-correction tool to help ensure
the proper functioning of the criminal justice system. But the available relief is very
limited. “Federal habeas review . . . exists as a guard against extreme malfunctions in
the state criminal justice systems, not a substitute for ordinary error correction through
appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quotations and citation omitted).
Habeas relief can only be granted in one of two ways: if it is shown that the adjudication
of the claim by the state court 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 if the state court decision 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).
This is a demanding standard that has been described by the Supreme Court as
follows: “[This] standard is intentionally difficult to meet. We have explained that
clearly established Federal law for purposes of §2254(d)(1) includes only the holdings ...
of this Court’s decisions. And an unreasonable application of those holdings must be

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objectively unreasonable, not merely wrong; even clear error will not suffice.” Woods,
135 S. Ct. at 1376 (quotation marks and citations omitted). To succeed on a habeas claim
the petitioner must show 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 fairminded disagreement.” Id.
Criminal defendants are entitled to a fair trial but not a perfect one. Rose v. Clark,
478 U.S. 570, 579 (1986). To warrant relief, a state court’s decision must be more than
incorrect or erroneous; it must be objectively unreasonable. Wiggins v. Smith, 539 U.S.
510, 520 (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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quotation marks
omitted).
With these standards in mind I will turn to the various claims for relief asserted
by Mr. Fuentes.
Self-Defense Jury Instruction
Fuentes argues that the State court made an objectively unreasonable decision by
finding that the erroneous self-defense jury instruction constituted harmless error,
which violated his right to the opportunity to present a complete defense. The
argument focuses on the instruction’s language that states that force is not justified by
self-defense for a person involved in the commission of a crime.

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At trial, the prosecution attempted to prove charges of murder and possession of
a firearm without a license. Direct Appeal App. 94. Fuentes testified that he had a gun
but did not have a license. Trial Tr. 280-82. Here’s what the self-defense instruction said:
It is an issue whether the defendant acted in self-defense.
A person may use reasonably force against another person to protected himself
from what he reasonably believes to be the imminent use of unlawful force.
A person is justified in using deadly force and does not have a duty to retreat
only if he reasonably believes that deadly force is necessary to prevent serious bodily
injury to himself or a third person or to prevent the commission of a felony. No person
in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the
person or a third person by reasonable means necessary.
However, a person may not use force if he is committing a crime or is escaping after the
commission of a crime; he provokes a fight with another person, with intent to cause
bodily injury to that person; or he has entered into a fight with another person or
started the fight, unless he withdraws from the fight and communicates to the other
person his intent to withdraw and the other person nevertheless continues or threatens
to continue the fight.
The State has the burden of disproving the defense of self-defense beyond a
reasonable doubt. Before you may find the defendant guilty of the crime charged, you
must find beyond a reasonable doubt that the defendant was not acting in self-defense.
Direct Appeal App. 110.
Fuentes takes issue with the italicized language in the instruction quoted above.
Under Indiana law, for a commission of a crime to bar self-defense as an affirmative
defense, “there must be an immediate causal connection between the crime and the
confrontation.” Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). Fuentes’ argument is that
the omission of the “causal connection” language from the jury instruction together
with his admission regarding the unlawful possession charge effectively deprived him

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of any opportunity at obtaining a favorable verdict. It is true that the self-defense
theory was the only defense theory presented at trial. On direct appeal, the appellate
court agreed that the “causal connection” language should have been included in the
self-defense jury instruction. ECF 7-6 at 5-8. But the appellate court nonetheless denied
relief finding that the omission constituted harmless error under Indiana law. Id.
Fuentes argues that the erroneous jury instruction deprived him of his
constitutional right to a meaningful opportunity to present a complete defense.
“Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in
the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the
Constitution guarantees criminal defendants‘a meaningful opportunity to present a
complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324 (2006). “But the cases in
which [the Supreme Court of the United States has] invoked this principle dealt with
the exclusion of evidence, or the testimony of defense witnesses.” Gilmore v. Taylor, 508
U.S. 333, 343 (1993). “None of them involved restrictions imposed on a defendant’s
ability to present an affirmative defense.” Id. Because the constitutional right to present
a complete defense has not been extended to affirmative defenses, Fuentes’ claim that
the self-defense instruction violated his right to present a complete defense is without
merit.
Though Fuentes attempts to cast this claim as a constitutional claim, what he is
really saying is that the self-defense instruction was defective under Indiana law. But
“the fact that the instruction was allegedly incorrect under state law is not a basis for

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habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71–72 (1991). For such claims, “[t]he only
question for [federal courts] is whether the ailing instruction by itself so infected the
entire trial that the resulting conviction violates due process.” Id. “[T]he instruction may
not be judged in artificial isolation, but must be considered in the context of the
instructions as a whole and the trial record.” Id.
The primary concern with the erroneous self-defense instruction is that it may
have caused the jury to believe that they could not find that Fuentes acted in selfdefense if they also found that Fuentes unlawfully possessed a gun. However, a review
of the trial record belies this assertion. On my reading of the trial transcript it seems
highly unlikely that the jury interpreted the self-defense instruction in this manner.
First, during closing arguments, the prosecution did not even bother to argue that the
unlawful possession of the firearm foreclosed the self-defense theory. Trial Tr. 311-19,
332-35. Rather, the prosecution argued that Fuentes did not act reasonably; that the
unlawful possession of the firearm caused the victim’s death; and that the recording
was critical to the jury’s decision on the self defense issue. Id. Similarly, defense counsel
argued that the recording supported his self defense claim and urged the jury to review
the recording.1 Id. at 319-32. The jury heeded that advice; during deliberations, the jury
twice asked the trial court to watch the video. Id. at 340-44. In other words, the lawyers

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During closing arguments, trial counsel also implied that the jury could not
convict Fuentes of unlawful possession of a firearm if they believed he acted in selfdefense. Trial Tr. 328-39.

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for both sides focused on whether Fuentes’ actions were reasonable, and it seems likely
that the jury did as well. What seems entirely unlikely is that the jury convicted
Fuentes based on a theory that was never argued by either party during the trial. Based
on the foregoing, I find that the erroneous self-defense instruction did not infect the trial
such that the resulting conviction violated due process. Therefore, Fuentes’ claim
regarding the erroneous self-defense instruction is not a basis for habeas relief.
Video Recording
Fuentes alleges that the State court made an unreasonable determination by
denying his claim that trial counsel was ineffective because trial counsel failed to
adequately review the video recording of the confrontation. On appeal, Fuentes argued
that he suffered prejudice because the surveillance video shows that the first shot to the
victim’s chest was fatal, which would have rebutted the prosecution’s argument that
Fuentes killed the victim as the victim was in a defenseless position. He also argues that
trial counsel’s failure to adequately review the video prejudiced his claim regarding the
self-defense instruction on direct appeal.
To prevail on an ineffective assistance of counsel claim, a petitioner must show
that counsel’s performance was deficient and that the deficient performance prejudiced
him. Strickland v. Washington, 466 U.S. 668 (1984). There is “a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id. at 689. The test for

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prejudice is whether there was a reasonable probability that “but for counsel's
unprofessional errors, the result of the proceeding would have been different.” Id. at
694. A reasonable probability is a probability “sufficient to undermine confidence in the
outcome.” Id. at 693. In assessing prejudice under Strickland “[t]he likelihood of a
different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S.
86, 112 (2011).
A review of the video makes clear that Fuentes shot the victim twice in two
seconds. Trial Tr. 314-15; State’s Ex. 10.2 The recording shows that, by the time the
second shot was fired, the victim had fallen to his knees with his hands in the air. Id. Dr.
Young Kim, who performed the autopsy, testified that the victim was shot in the arm,
and that this shot would not have been fatal on its own. Trial Tr. at 175, 178. Kim also
testified that the victim was shot in the chest, and the bullet ended up lodged in his
back. Id. at 178. This was the fatal shot. Id. The fact that the first shot was the one that
went through the victim’s arm was corroborated by the fact that Dr. Kim testified about
the trajectory of the gunshot. Id. at 181-82. Specifically, Dr. Kim testified that the non
fatal shot through the arm was on an upward trajectory. Fuentes is 5'4" while his victim
was 5'11". Id. at 178, 269. This suggests that they were both standing when the shot was
fired. Id. at 178. By contrast, Dr. Kim testified that the lethal shot through the chest was

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The respondent has submitted a copy of the recording, which I have reviewed.

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on a downward trajectory, which is consistent with the victim having been on his knees
(having been fallen by the first shot) when the second shot was fired. Id. at 181.
During closing arguments, the prosecution argued that Fuentes fired the fatal
shot as the victim assumed a defenseless position but also recognized the short duration
of the confrontation by referencing the recording’s time stamps. Id. at 315-18. Defense
counsel also emphasized the short duration of the confrontation and challenged the
prosecution’s characterization of the order of the shots for lack of evidentiary support.
Id. at 328-32.
On direct appeal, Fuentes presented his argument regarding the self defense
instruction, which I discussed previously. The appellate court found that the instruction
was erroneous but that it constituted harmless error, reasoning:
Any instructional error that occurred here was harmless, as we
conclude that the jury could not have properly found that Fuentes acted in
self-defense when he shot [the victim] a second time. After the first shot,
[the victim] went to his knees and put his arms and hands up in a
defenseless position. Any threat [the victim] had posed to Fuentes had
been neutralized, and Fuentes’ right to self-defense therefore ceased.
Instead of seeking to disengage at that point, Fuentes stood his ground,
kept his weapon trained on [the victim], hesitated a moment, and shot
him again. Under the facts of this case, Fuentes’ second shot at [the victim]
fatally undercuts his claim of self-defense. Any error the trial court
committed in instructing the jury was therefore harmless.
ECF 7-6 at 8.
At the evidentiary hearing at the post-conviction relief stage, trial counsel
acknowledged that he saw a dust cloud on the video recording that he had not
previously noticed and that the dust cloud suggested that the prosecution’s

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characterization of the order of the shots was erroneous. PCR Tr. 66-67. He further
testified that he did not believe that the order of the shots was significant with respect
to Fuentes’ defense. Id. at 32-33. He testified that he instead focused on proving that
both shots were fired in self defense and that the jury could have convicted Fuentes
regardless of whether the fatal shot happened first or second. Id. at 43, 47-49.
On appeal at the post-conviction relief stage, the Court of Appeals of Indiana
found that trial counsel did not perform deficiently because he challenged the
prosecution’s characterization on the order of shots and because the decision not to
place more emphasis on the order of shots was a strategic decision. ECF 7-13 at 8-10.
The appellate court found no prejudice, reasoning that the jury watched the recording
multiple times. Id.
After reviewing the record, I cannot conclude that the State courts’ decision
regarding trial counsel’s failure to adequately review the recording was objectively
unreasonable. At bottom, Fuentes argues that the fact that the fatal shot came second
was dispositive to his self defense claim. However, at trial, neither party argued or
implied that one shot was justified and the other shot was not. Rather, the recording,
which the jury reviewed several times, demonstrated the rapid succession of the shots,
which suggested that either both shots were in self-defense; or neither shot was in
self-defense. The direct appeal decision also does not rely on the fact that the fatal shot
came second; instead it relies on the undisputed fact that Fuentes shot a second time as
the victim was in defenseless position. Because the fact that the fatal shot came second

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was likely immaterial to the decisions of the jury and the appellate court, I cannot
conclude that the State courts’ decision regarding trial counsel’s deficient performance
or prejudice was objectively unreasonable. Therefore, Fuentes’ claim regarding trial
counsel’s failure to adequately review the recording is not a basis for habeas relief.
Fuentes similarly argues that the State court made an unreasonable
determination by denying his claim that appellate counsel was ineffective because
appellate counsel failed to review the video recording of the confrontation and failed to
submit the recording to the appellate court on direct appeal. The Strickland analysis also
applies to ineffective assistance of appellate counsel claims. Smith v. Robbins, 528 U.S.
259, 285 (2000).
On appeal at the post-conviction relief stage, the Court of Appeals found that
appellate counsel reviewed the video recording based on appellate counsel’s testimony
at an evidentiary hearing. ECF 7-13 at 11-12. The appellate court also found no
prejudice, reasoning that the direct appeal decision did not rely on the fact that the fatal
shot came second. Id. Because I agree with the appellate court’s prejudice analysis, I
cannot conclude that the court made an unreasonable determination by denying the
ineffective assistance of appellate counsel claim. Therefore, Fuentes’ claim regarding
appellate counsel is not a basis for habeas relief.

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Lesser-Included Offense Instruction
Fuentes argues that the State court made an unreasonable determination by
denying his claim that defense counsel was ineffective by failing to tender a jury
instruction for a lesser-included offense. He argues that this decision in combination
with the erroneous self defense instruction left the jury with no other choice but to find
him guilty. At the evidentiary hearing at the post-conviction relief stage, counsel
testified that he considered lesser-included offenses, including voluntary manslaughter
and reckless homicide, throughout the trial stage and discussed them with Fuentes
before trial and at trial. PCR Tr. 60-62. But Fuentes made it clear to him that he wanted
to go for broke saying, “I want all or nothing.” Id. On appeal, the Court of Appeals
rejected this claim on the basis that Fuentes had not sufficiently developed his argument
regarding the appropriate lesser included offense. ECF 7-13 at 10. In all events, the Lake
Superior Court credited trial counsel’s testimony and found that the failure to tender an
instruction for a lesser included offense was not ineffective assistance of counsel. PCR
Appeal App. 116.
After reviewing the record, I cannot conclude that the State courts’ decision
regarding the instruction for a lesser-included offense was objectively unreasonable.
The Lake Superior Court’s findings were supported by trial counsel’s testimony that he
advised Fuentes regarding lesser included offenses several times and that Fuentes
rejected them. Additionally, for the reasons I discussed previously, the implication that
the jury interpreted the self defense instruction as narrowly as Fuentes suggests is not

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supported by the trial record. Therefore, Fuentes’ claim that trial counsel failed to
tender a jury instruction for a lesser included offense is not a basis for habeas relief.
Certificate of Appealability
Pursuant to Section 2254 Habeas Corpus Rule 11, I must grant or deny a
certificate of appealability. To obtain a certificate of appealability under 28 U.S.C. §
2253(c), the petitioner must make a substantial showing of the denial of a constitutional
right by establishing “that reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). For the reasons explained in this opinion for denying
habeas corpus relief, there is no basis for encouraging Fuentes to proceed further. For
the same reasons, he may not appeal in forma pauperis because an appeal could not be
taken in good faith.
Accordingly, the court DENIES the habeas corpus petition; DENIES a certificate
of appealability pursuant to Section 2254 Habeas Corpus Rule 11; DENIES leave to
appeal in forma pauperis; and DIRECTS the clerk to enter judgment in favor of the
Respondent and against the Petitioner.
SO ORDERED on April 9, 2018.
/s/ Philip P. Simon
Judge
United States District Court

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