Hoskins v. Fayram

Filing 18

ORDER: 2 Petition for Writ of Habeas Corpus denied. The Clerk of Court is directed to enter judgment in favor of Respondent John Fayram and against Petitioner Walter Hoskins. Additionally, a certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 10/7/2014. (NEF and order mailed to Petitioner) (pac)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION

WALTER HOSKINS,
Petitioner,

No. 13-CV-35-LRR

vs.
ORDER

JOHN FAYRAM,
Respondent.
____________________
TABLE OF CONTENTS
I.

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

PROCEDURAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A.
B.
C.
D.

Pre-Trial, Post-Trial and Sentencing. . . . . . . . . . . . . . . . . . . . . . .
Direct Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Postconviction Relief Action.. . . . . . . . . . . . . . . . . . . . . . . .
Federal Habeas Corpus Action. . . . . . . . . . . . . . . . . . . . . . . . . . .

2
3
4
4

III.

FACTUAL BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

IV.

STANDARDS OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A.
B.

V.

28 U.S.C. § 2254(d).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Exhaustion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A.

B.

Ineffective Assistance of Counsel. . . . . . . . . . . . . . . . . . . . . . . .
1.
Applicable law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Trial counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Unlawful initial entry of the residence. . . . . . . . . . . .
b.
Unlawful initial entry onto curtilage. . . . . . . . . . . . .
3.
Appellate counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
a.
Jury instructions. . . . . . . . . . . . . . . . . . . . . . . . . .
b.
Sufficiency of evidence. . . . . . . . . . . . . . . . . . . . . .
Due Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11
11
13
13
16
17
17
19
20

VI.

CERTIFICATE OF APPEALABILITY.. . . . . . . . . . . . . . . . . . . . . . . . 23

VII.

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
I. INTRODUCTION
The matter before the court is Petitioner Walter Hoskins’s “Petition Under 28

U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody” (“Petition”)
(docket no. 2).
II. PROCEDURAL BACKGROUND
A. Pre-Trial, Post-Trial and Sentencing
On July 17, 2006, in the Iowa District Court for Black Hawk County (“Iowa
District Court”), Petitioner was charged with the following: (1) possession of a controlled
substance (more than 50 grams of cocaine base) with the intent to deliver, second offense,
in violation of Iowa Code sections 124.401(1)(a) and 124.411 (“Count 1”); (2) failure to
affix a drug tax stamp to cocaine base, in violation of Iowa Code section 453B.12 (“Count
2”); and (3) possession of a controlled substance (marijuana) with intent to deliver, second
offense, in violation of Iowa Code sections 124.401(1)(d) and 124.411 (“Count 3”). Trial
Information, Trial Appendix (“Trial App’x”) (docket no. 12-11) at 9-10. On March 14,
2007, Count 1 was amended to include a charge of conspiracy to possess a controlled
substance with intent to deliver as an alternative to proving a violation of Iowa Code
section 124.401(1)(a). Amended Trial Information, Trial App’x at 359.
On March 2, 2007, a jury found Petitioner guilty of Count 1, Count 2 and the
lesser-included offense of Count 3, possession of a controlled substance (marijuana).
Verdict Forms, Trial App’x at 353-56.
On March 16, 2007, Petitioner filed a combined Motion for New Trial, Motion in
Arrest of Judgment and Motion for Judgment Notwithstanding the Verdict. Motion for
New Trial, Trial App’x at 361-62. On April 2, 2007, the Iowa District Court denied the
motions and sentenced Petitioner. Relevant Portions of Sentencing Transcript, Trial App’x

2

at 370. On Count 1, the Iowa District Court sentenced Petitioner to an indeterminate term
of imprisonment not to exceed 100 years with a one-third mandatory minimum and
imposed a suspended $10,000 fine and 32 percent surcharge. Id. at 380. On Count 2, the
Iowa District Court sentenced Petitioner to a term of imprisonment not to exceed five years
and imposed a suspended $750 fine and 32 percent surcharge. Id. at 380-81. On Count
3, the court sentenced Petitioner to a period of 180 days in the Black Hawk County jail and
imposed a $250 fine and 32 percent surcharge. Id. at 381. The Iowa District Court also
suspended Petitioner’s driving privileges for 180 days on each of the three counts. Finally,
the Iowa District Court imposed a $125 Law Enforcement Assessment and a $10 Drug
Abuse Resistance Education (“DARE”) Assessment. Id.
B. Direct Appeal
On April 10, 2007, Petitioner filed a Notice of Appeal from the judgment and
sentence with the Iowa Supreme Court. Notice of Appeal, Trial App’x at 391. Petitioner
“assert[ed] several challenges to the admission of evidence arising from a search and
subsequent seizure of controlled substances.” State v. Hoskins (Hoskins I), No. 07-0677,
752 N.W.2d 36 (Table), 2008 WL 1887314, at *1 (Iowa Ct. App. April 30, 2008).
Specifically, Petitioner raised the following issues: (1) the Iowa District Court’s denial of
his motion to suppress; (2) ineffective assistance of counsel; (3) the Iowa District Court’s
denial of his motion in limine; and (4) imposition of the DARE surcharge. Id. at *2-*7.
On April 30, 2008, the Iowa Court of Appeals affirmed Petitioner’s convictions and
vacated Petitioner’s sentences in part and affirmed in part. Id. at *7. The Iowa Court of
Appeals affirmed the Iowa District Court’s ruling on the motion to suppress. With respect
to the claim of ineffective assistance of counsel, the Iowa Court of Appeals found that
Petitioner was not prejudiced by any alleged failure of trial counsel to assert certain
grounds for the motion to suppress. Id. at *4-*6. With respect to the denial of the motion
in limine, the Iowa Court of Appeals concluded that “any alleged error was harmless

3

beyond a reasonable doubt.” Id. at *7. Finally, the Iowa Court of Appeals vacated the
DARE surcharge. Id.
On May 14, 2008, Petitioner filed an Application for Further Review (docket no.
12-13), which the Iowa Supreme Court denied on June 24, 2008 (docket no. 12-14).
C. State Postconviction Relief Action
On September 24, 2008, Petitioner filed a pro se Petition for Postconviction Relief,
alleging four grounds based on ineffective assistance of trial counsel and five grounds
based on ineffective assistance of appellate counsel. Petition for Postconviction Relief,
Postconviction Relief Appendix (“PCR App’x”) (docket no. 12-21) at 23 . On December
22, 2008, Petitioner filed a Pro Se Brief in support of his Petition for Postconviction
Relief. Id. at 32. On May 11, 2010, postconviction relief counsel moved to amend the
Petition for Postconviction Relief. Supplemental Application for Postconviction Relief,
PCR App’x at 35.
On May 14, 2010, the Iowa District Court dismissed the Petition for Postconviction
Relief. May 14, 2010 Order, PCR App’x at 43. On May 21, 2010, Petitioner filed with
the Iowa Supreme Court a Notice of Appeal from the May 14, 2010 Order. Notice of
Appeal, PCR App’x at 44. On February 15, 2012, the Iowa Court of Appeals affirmed
the Iowa District Court’s ruling denying the Petition for Postconviction Relief. Hoskins
v. State (Hoskins II), No. 10-0902, 812 N.W.2d 726 (Table), 2012 WL 470230 (Iowa Ct.
App. Feb. 15, 2012). On March 6, 2012, Petitioner applied for further review with the
Iowa Supreme Court. Appellant’s Request for Further Review (docket no. 12-23). On
April 10, 2012, the Iowa Supreme Court denied Petitioner’s application. Order Denying
Further Review (docket no. 12-24). On April 11, 2012, procedendo issued. Procedendo
(docket no. 12-25).
D. Federal Habeas Corpus Action
On April 5, 2013, Petitioner filed the Petition, which alleged four grounds for
relief: (1) trial counsel failed to argue in suppression proceedings that the search warrant
4

was not independent of the unlawful initial entry of the residence; (2) trial counsel failed
to argue in suppression proceedings that the search warrant was not independent of the
unlawful initial search of the curtilage of the residence; (3) he was denied the right to a fair
trial because the Iowa District Court based its rulings on improperly seized evidence; and
(4) appellate counsel failed to argue that there was insufficient evidence on which to base
a conviction. A fifth ground is set forth in an attachment to the Petition, which alleges
appellate counsel failed to argue that the jury verdict was rendered in the absence of proper
jury instructions. See Petition at 18. Petitioner also attached a Brief in Support of the
Petition (docket no. 2-1).
On September 23, 2013, Respondent filed an Answer (docket no. 10), arguing that
Petitioner’s claims of ineffective assistance of counsel and denial of fair trial do not entitle
Petitioner to relief and that several of his claims were not properly exhausted under 28
U.S.C. § 2254(b)(1).
On December 18, 2013, Petitioner filed a Pro Se Brief (“Petitioner’s Brief”) (docket
no. 13). On February 20, 2014, Respondent filed Respondent’s Brief (docket no. 15). On
March 18, 2014, Petitioner filed a Reply (docket no. 16). The matter is fully submitted
and ready for decision.
III. FACTUAL BACKGROUND
The Iowa Court of Appeals provided the following factual account on direct appeal:
On the evening of July 4, 2006, Waterloo police officers
noticed Walter Hoskins IV and his cousin, Daytron Wise, in
front of their grandmother’s house shooting off fireworks.
Officers Matt McGeough and Steve Bose went to the home due
to this illegal activity and because there were outstanding
arrest warrants for both men. Hoskins and Wise were
arrested. A search incident to arrest revealed Hoskins had
$174 in cash, Wise had $210, and both men had cell phones on
them. As they were being placed in the back of a patrol car,
Hoskins yelled at the officers not to go in the house because
his grandmother, Alberta Hoskins, was sleeping.
5

The officers knocked on the door, and then knocked on
windows in an effort to alert whomever was inside that they
were taking Hoskins and Wise to the police station, but no one
responded. The officers then went around the outside of the
house attempting to rouse someone when officer Bose saw
baggies stuffed inside a detached drain pipe. He pulled out the
baggies and saw several of them had corners that were
missing. There was no mud or debris on the baggies. The
corners of baggies are often used as packaging for illegal
drugs.
The officers gathered up the fireworks in the yard and on the
porch as evidence for a fireworks violation charge. From the
porch, officer McGeough smelled the distinct and strong odor
of marijuana. The door of the house was open, but the screen
door was closed. Through the screen door officer McGeough
saw a box of fireworks just inside the door. He opened the
door to collect the fireworks, and saw two baggies of
marijuana and a baggie of crack cocaine in a planter beside the
door. The officers seized the illegal drugs.
While the officers were present, Alberta returned home.
Hoskins told her not to let anyone inside the home, and she
refused the officers’ request to search the home. The officers
had activated a recorder in the patrol car, and one of the men
said, “they haven’t found it yet.” Hoskins had previous felony
convictions for drug-dealing in 2004. In April and May of
2006, officer McGeough had received information of drug
dealing by Hoskins in Waterloo.
Sergeant Mark Meyer of the Tri-County Drug Task Force
prepared an application for a search warrant of the house. A
judge signed the search warrant. A search was conducted on
July 5, 2006, which revealed large quantities of crack cocaine
and marijuana, scales, cell phones, and baggies with torn
corners.
Hoskins I, 2008 WL 1887314, at *1 (footnote omitted).

6

IV. STANDARDS OF REVIEW
A. 28 U.S.C. § 2254(d)
The United States Code provides the standard for habeas corpus review:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless the
adjudication of the claim–
(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). Thus, “[s]ection 2254(d) distinguishes between two types of
erroneous decisionsSthose of law and those of fact.” Weaver v. Bowersox, 241 F.3d 1024,
1029 (8th Cir. 2001).
Regarding an erroneous decision of law, a state court decision can be “contrary to”
Supreme Court precedent if: (1) “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law” or (2) “the state court confronts
facts that are materially indistinguishable from a relevant Supreme Court precedent and
arrives at a result opposite to [that precedent].” Williams v. Taylor, 529 U.S. 362, 405
(2000); see also Ryan v. Clarke, 387 F.3d 785, 790 (8th Cir. 2004) (stating that “only
limited and deferential review of underlying state court decisions” is available in habeas
corpus cases (quoting Jones v. Luebbers, 359 F.3d 1005, 1011 (8th Cir. 2004)) (internal
quotation marks omitted)). Further, the statutory phrase “clearly established Federal law,
as determined by the Supreme Court of the United States” “refers to the holdings, as
opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant
state-court decision.” Williams, 529 U.S. at 412.
7

An “unreasonable application” of Supreme Court precedent can arise in one of two
ways:
First, a state-court decision involves an unreasonable
application of [the Supreme] Court’s precedent if the state
court identifies the correct governing legal rule from [the
Supreme] Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case. Second, a state-court
decision also involves an unreasonable application of [the
Supreme] Court’s precedent if the state court either
unreasonably extends a legal principle from our precedent to
a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it
should apply.
Id. at 407. Thus, where a state court “correctly identifies the governing legal rule but
applies it unreasonably to the facts of a particular prisoner’s case,” that decision “certainly
would qualify as a decision ‘involv[ing] an unreasonable application of . . . clearly
established Federal law.’” Id. at 407-08 (alteration in original); see also Rompilla v.
Beard, 545 U.S. 374, 380 (2005) (discussing the “unreasonable application” clause of
Williams). Additionally,
[u]nder [28 U.S.C.] § 2254(d)(1)’s “unreasonable application”
clause, . . . a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather,
that application must also be unreasonable.
Williams, 529 U.S. at 411. The Eighth Circuit Court of Appeals provided the following
standard for an unreasonable application of law: “[t]he federal habeas court should not
grant the petition unless the state court decision, evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be justified under existing Supreme Court
precedent.” Richardson v. Bowersox, 188 F.3d 973, 978 (8th Cir. 1999) (alteration in
original) (quoting Long v. Humphrey, 184 F.3d 758, 760 (8th Cir. 1999)) (internal
quotation marks omitted).
8

Applying these standards to the present case, the court must determine whether: (1)
the Iowa courts reached a decision contrary to that reached by the Supreme Court on a
question of law; or (2) correctly identified the applicable principles of federal law but
unreasonably applied that law to the facts of Petitioner’s claims. See, e.g., Rousan v.
Roper, 436 F.3d 951, 956 (8th Cir. 2006) (discussing the applicable standard); Newman
v. Hopkins, 247 F.3d 848, 850-52 (8th Cir. 2006) (same); Weaver, 241 F.3d at 1029-30
(same); Closs v. Weber, 238 F.3d 1018, 1020 (8th Cir. 2001) (same); Copeland v.
Washington, 232 F.3d 969, 973 (8th Cir. 2000) (same).
Under 28 U.S.C. § 2254(d)(2), federal habeas corpus relief “may be granted on a
claim adjudicated in state court if the state court proceeding ‘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.’” Beck v. Bowersox, 257 F.3d 900, 901 (8th Cir. 2001)
(quoting 28 U.S.C. § 2254(d)(2)). “Claims of factual error are subjected to the standard
enunciated in [28 U.S.C.] § 2254(d)(2); [28 U.S.C. §] 2254(e)(1) then establishes a
presumption of correctness in favor of state court findings of fact.” Weaver, 241 F.3d at
1030. Accordingly, the court’s review presumes that the Iowa courts found the facts
correctly unless Petitioner rebuts the presumption with clear and convincing evidence. See
28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court, a determination
of a factual issue made by a State court shall be presumed to be correct. The applicant
shall have the burden of rebutting the presumption of correctness by clear and convincing
evidence.”); see also Weaver, 241 F.3d at 1030 (“[O]n habeas review, we accord state
trial courts broad latitude in determining questions of fact by virtue of the statutory
presumption in favor of state court fact-findings.”).

“It bears repeating that even

erroneous fact-finding by the [state] courts will not justify granting a writ if those courts
erred ‘reasonably.’” Weaver, 241 F.3d at 1030.

9

B. Exhaustion
28 U.S.C. § 2254(b)(1) provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted unless it appears that–
(A)

the applicant has exhausted the remedies available in the
courts of the State; or

(B)

(i) there is an absence of available State corrective
process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.

28 U.S.C. § 2254(b)(1). “To fulfill this requirement properly, ‘state prisoners must give
the state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State’s established appellate review process’ before presenting those
issues in an application for habeas relief in federal court.’” Welch v. Lund, 616 F.3d 756,
758 (8th Cir. 2010) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). “[A]
state prisoner must seek the discretionary review of the state supreme court when that
review is part of the ordinary and established appellate review process in that state.”
Dixon v. Dormire, 263 F.3d 774, 777 (8th Cir. 2001); see also O’Sullivan, 526 U.S. at
844-45. “A [state prisoner’s] failure to exhaust remedies properly in accordance with state
procedure results in procedural default of the prisoner’s claims.” Welch, 616 F.3d at 758;
see also O’Sullivan, 526 U.S. at 848. “In such instances, the state prisoner ‘forfeits his
right to present his federal claim through a federal habeas corpus petition, unless he can
meet strict cause and prejudice or actual innocence standards.’” Greer v. Minnesota, 493
F.3d 952, 957 (8th Cir. 2007) (quoting Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir.
2004)).
To satisfy the fair presentment component of the exhaustion requirement, a
petitioner must “refer[] to a specific federal constitutional right, a particular constitutional
10

provision, a federal constitutional case, or a state case raising a pertinent federal
constitutional issue.” Middleton v. Roper, 455 F.3d 838, 855 (8th Cir. 2006) (quoting
Abdullah v. Groose, 75 F.3d 408, 411-12 (8th Cir. 1996)) (internal quotation marks
omitted). A claim is not fairly presented to the state courts unless the same factual grounds
and legal theories asserted in the applicant’s federal habeas corpus application have been
properly raised in his or her state court proceedings. Palmer v. Clarke, 408 F.3d 423, 430
(8th Cir. 2005). If a petitioner has not fully presented his or her federal claims in state
court, the claims are barred in federal court and must be dismissed, unless the applicant
can show: (1) both good cause for his failure to present the claims in state court and
prejudice as a result of the alleged constitutional violation; or (2) “that failure to consider
the claims will result in a fundamental miscarriage of justice.” Abdullah, 75 F.3d at 411
(quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)) (internal quotation marks
omitted).
V. DISCUSSION
A. Ineffective Assistance of Counsel
Petitioner claims that trial and appellate counsel violated his constitutional right to
effective assistance of counsel. He argues that the Iowa courts unreasonably applied the
applicable standard when they held that his trial and appellate counsel were not ineffective.
1.

Applicable law

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defen[s]e.” U.S. Const.
amend. VI. A criminal defendant also has the right to the effective assistance of counsel
on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985); Douglas v. California, 372
U.S. 353, 357-58 (1963).
An ineffective assistance of counsel claim has two components:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so
11

serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). While Strickland requires a showing
of both deficient performance and prejudice, “there is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Id. at 697. “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should
be followed.” Id.; see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)
(“[A court] need not address the reasonableness of the attorney’s behavior if the
[defendant] cannot prove prejudice.”).
To establish unreasonably deficient performance, a “defendant must show that
counsel’s representation fell below an objective standard of reasonableness.” Strickland,
466 U.S. at 688. There is a strong presumption of competence and reasonable professional
judgment. Id. at 689; see also Sanders v. Trickey, 875 F.2d 205, 207-08 (8th Cir. 1989)
(stating that courts must afford counsel broad latitude to make strategic and tactical choices
regarding the appropriate action to take or refrain from taking). A defendant “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.” Strickland, 466 U.S. at 690.
To establish prejudice, “[i]t is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the proceeding.” Id. at 693. Rather, a
“defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

12

“A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. In other words, “the question is whether there is a reasonable probability
that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”
Id. at 695. In answering that question, the court “must consider the totality of the
evidence before the judge or jury.” Id.
In the context of reviewing petitions under 28 U.S.C. § 2254, the Supreme Court
set forth a “doubly” deferential standard. Harrington v. Richter, 131 S. Ct. 770, 788
(2011).

“Federal habeas courts must guard against the danger of equating

unreasonableness under Strickland with unreasonableness under [28 U.S.C.] § 2254(d).”
Id. at 788. Accordingly, the issue the court must decide “is not whether counsel’s actions
were reasonable,” but rather “whether there is any reasonable argument that counsel
satisfied Strickland’s deferential standard.” Id.
2.

Trial counsel

Petitioner argues that trial counsel’s performance was deficient and that it is
reasonably probable that the result of the proceedings would have been different if trial
counsel had argued in the suppression hearing that: (1) the search warrant was not
independent of the officers’ unlawful initial entry of the residence; and (2) the search
warrant was not independent of the officers’ unlawful initial entry onto the curtilage of the
residence.
a.

Unlawful initial entry of the residence

Petitioner argues that the officers’ decision to seek a search warrant was prompted
by the discovery of illegal drugs during the unlawful initial entry of the residence and that
the evidence obtained during the unlawful entry affected the magistrate’s decision to issue
the search warrant. Petitioner’s Brief at 14. With respect to his claim of ineffective
assistance of counsel, Petitioner argues that if trial counsel had properly raised specific
arguments related to the officers’ testimony, then all evidence seized pursuant to the search
warrant would have been suppressed under Murray v. United States, 487 U.S. 533 (1988).
13

Petitioner’s Brief at 15. Respondent argues that Petitioner’s claim is barred by Stone v.
Powell, 428 U.S. 465 (1976), and that even if the claim is cognizable, the Iowa courts
were not unreasonable in rejecting Petitioner’s claim. Respondent’s Brief at 10-15.
“[W]here the State has provided an opportunity for full and fair litigation of a
Fourth Amendment claim, the Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial.”

Stone, 428 U.S. at 482. However, the

restrictions of Stone v. Powell do not extend to ineffective assistance claims based on the
handling of Fourth Amendment issues. See Kimmelman v. Morrison, 477 U.S. 365, 378
(1986).
Petitioner’s claim derives from trial counsel’s alleged failure to raise specific
arguments under Murray and the independent source doctrine during the suppression
hearing. The Supreme Court explained the independent source doctrine with the following
example:
Our cases have used the concept of “independent source” in a
more general and a more specific sense. The more general
sense identifies all evidence acquired in a fashion untainted by
the illegal evidence-gathering activity. Thus, where an
unlawful entry has given investigators knowledge of facts x
and y, but fact z has been learned by other means, fact z can be
said to be admissible because derived from an “independent
source.”
Murray, 487 U.S. at 537-38. The Supreme Court further explained that a search pursuant
to a warrant was not an independent source “if the agents’ decision to seek the warrant was
prompted by what they had seen during the initial entry, or if information obtained during
that entry was presented to the Magistrate and affected his [or her] decision to issue the
warrant.” Id. at 542 (footnote omitted).
The Iowa District Court suppressed the evidence seized during the officers’
unlawful initial entry into the residence. However, the Iowa District Court declined to
14

suppress the evidence seized pursuant to the search warrant obtained after the unlawful
initial entry because it determined that the remaining untainted evidence within the
application for the warrant provided the probable cause necessary to issue the warrant.
On direct appeal, the Iowa Court of Appeals found that the Iowa District Court
properly denied Petitioner’s motion to suppress the evidence seized pursuant to the search
warrant. The Iowa Court of Appeals properly applied Murray and asked “whether the
untainted information, considered by itself, establishes probable cause for a search
warrant.” Hoskins I, 2008 WL 1887314, at *3. The Iowa Court of Appeals found that
the untainted evidence in the warrant, including Petitioner’s history of drug dealing, his
possession of a substantial amount of cash and the large quantity of plastic baggies with
the corners cut off, demonstrated that the warrant was supported by probable cause. Id.
The Iowa Court of Appeals then asked “whether the officers’ ‘decision to seek the warrant
was prompted by what they had seen during the initial entry.’” Id. (quoting Murray, 487
U.S. at 542).

The Iowa Court of Appeals found that Sergeant Meyer’s testimony

supported a finding that the officers would have requested a search warrant even if they
had not initially entered the residence unlawfully. Id.
The Iowa Court of Appeals properly considered the untainted information in the
warrant and the officers’ testimony to determine that there was probable cause to obtain
a warrant and that the officers would have requested a warrant even if they had not first
unlawfully entered the residence. The court finds that it was reasonable for the Iowa Court
of Appeals to conclude that the warrant was supported by probable cause and that the
evidence seized during the unlawful initial entry did not prompt the decision to seek a
warrant. Therefore, Petitioner was not prejudiced by any failure of trial counsel to argue
that the officers’ decision to seek a warrant was motivated by what they found in the illegal
search or that the warrant was not supported by probable cause due to the tainted
information. Since any argument under Murray was without merit, trial counsel did not
perform deficiently by failing to make such arguments. Accordingly, the Petition shall be
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denied in so far as it alleges ineffective assistance of trial counsel for failing to argue in
suppression proceedings that the search warrant was not independent of the unlawful initial
entry of the residence.
b.

Unlawful initial entry onto curtilage

Second, Petitioner claims that trial counsel was ineffective for failing to argue that
the search warrant was not independent of the officers’ unlawful initial entry onto the
curtilage of the residence and that probable cause did not exist without the evidence
improperly seized from the curtilage. See Petitioner’s Brief at 16. Petitioner argues that
the officers improperly searched the curtilage because Petitioner had already been placed
under arrest and secured in the back of the patrol car; thus, the officers had no reason to
walk around the outside of the home. Brief in Support of the Petition at 6. Respondent
argues that the court should accept the Iowa Court of Appeals’s finding that the officers’
presence in the side yard did not constitute an illegal search of the curtilage. Respondent’s
Brief at 22.
On direct appeal, the Iowa Court of Appeals determined that the officers did not
violate the Fourth Amendment because the officers had a legitimate reason for their
presence on the curtilage that was unconnected with a search against the Petitioner.
Hoskins I, 2008 WL 1887314, at *6. The Iowa Court of Appeals found that it was
reasonable for the officers to attempt to contact someone within the residence by walking
to the side yard. Id. The Iowa Court of Appeals then determined that even if trial counsel
had raised the illegal search of the curtilage issue at the suppression hearing, the Iowa
District Court would have found that the evidence seized from the curtilage, the clear
plastic baggies, was properly considered in the decision to grant the search warrant. Id.
Because Petitioner failed to demonstrate that the police officers violated the Fourth
Amendment, the Iowa Court of Appeals determined that Petitioner “cannot meet the
prejudice prong of Strickland.” Id.

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The court finds that it was reasonable for the Iowa Court of Appeals to conclude
that the officers’ entry onto the curtilage of the residence was not unlawful and, therefore,
Petitioner’s ineffective assistance claim with respect to this issue must fail. The Iowa
Court of Appeals properly considered “the totality of the evidence before the judge or
jury” in determining that trial counsel was not ineffective in failing to argue that the
officers were illegally on the curtilage and that the evidence obtained from their being on
the curtilage should be suppressed. Strickland, 466 U.S. at 695. Because the officers
were trying to contact someone within the residence to let them know that Petitioner and
Wise were under arrest, it was appropriate for the Iowa Court of Appeals to find that the
officers had a legitimate reason to be on the curtilage. Accordingly, Petitioner’s claim that
trial counsel’s performance was deficient for failing to argue that the police officers’
entrance onto the curtilage was unlawful and that evidence seized on the curtilage should
have been suppressed is without merit. Any such argument would have failed, and,
accordingly, Petitioner was not prejudiced by the alleged failure to make the argument.
Accordingly, the Petition shall be denied in so far as it alleges ineffective assistance of trial
counsel for failing to argue that the search warrant was not independent of the officers’
unlawful initial entry onto the curtilage.
3.

Appellate counsel

Petitioner argues that appellate counsel was ineffective for failing to argue that the
Iowa District Court erroneously instructed the jury and that the evidence was insufficient
to support his conviction.
a.

Jury instructions

Petitioner claims that appellate counsel was ineffective for failing to argue that the
jury was erroneously instructed on constructive possession and conspiracy. Petitioner’s
Brief at 22. Respondent claims that appellate counsel had “no duty to object to the
instructions as they were a correct statement of the law.” Respondent’s Brief at 29. With
respect to the conspiracy instruction, Respondent argues that even if Petitioner can
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demonstrate that the instruction was flawed, Petitioner cannot demonstrate prejudice
because conspiracy and constructive possession merge under Iowa law.
On appeal from the Iowa District Court’s denial of Petitioner’s Petition for
Postconviction Relief, the Iowa Court of Appeals concluded that there was no merit to the
claim of ineffective assistance of appellate counsel for failing to challenge the jury
instructions on constructive possession and conspiracy. Hoskins II, 2012 WL 470230, at
*7. With respect to the constructive possession instruction, the Iowa Court of Appeals
found no error in the trial court’s decision to include the instruction or in the content of
the instruction. Id. With respect to the conspiracy instruction, the Iowa Court of Appeals
found that Petitioner was not prejudiced by any deficient performance because his
convictions under constructive possession and conspiracy merged. Id.
The court finds that it was reasonable for the Iowa Court of Appeals to conclude
that appellate counsel did not perform deficiently by failing to object to the jury
instructions on constructive possession and conspiracy. With respect to the constructive
possession instruction, the Iowa Court of Appeals found that the instruction was a correct
statement of the law. Because the constructive possession instruction is a matter of state
law, this court cannot find that the content of the instruction was improper. See Ford v.
Norris, 364 F.3d 916, 919 (8th Cir. 2004). And, because the constructive possession and
conspiracy convictions merged under state law, see State v. Waterbury, 307 N.W.2d 45,
52 (Iowa 1981) (stating that Iowa Code section 706.4 should be interpreted as “creating
a merger of the conspiracy and the substantive offense where the defendant has been found
guilty of both offenses”), the Iowa Court of Appeals reasonably concluded that Petitioner
was not prejudiced by any deficient performance of appellate counsel for failing to argue
that the conspiracy instruction was incorrect. Therefore, Petitioner has failed to show that
he is entitled to relief for his ineffective assistance of counsel claim with respect to
appellate counsel’s failure to argue that the jury instructions were incorrect. Accordingly,

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the court shall deny the Petition in so far as it alleges appellate counsel was ineffective for
failing to argue that the jury instructions were incorrect.
b.

Sufficiency of evidence

Petitioner claims that appellate counsel was ineffective for failing to argue that there
was insufficient evidence to convict on conspiracy and constructive possession.
Respondent argues that Petitioner has not exhausted his ineffective assistance of appellate
counsel claim with respect to this argument and that even if Petitioner has exhausted his
claim, his appellate counsel had no duty to raise an insufficiency of the evidence argument
on direct appeal.
On appeal from the Iowa District Court’s denial of Petitioner’s Petition for
Postconviction Relief, the Iowa Court of Appeals found that “the evidence was sufficient
to support a verdict under theories of conspiracy and constructive possession.”
Respondent’s Brief at 27. The Iowa Court of Appeals indicated that all of the evidence
seized during the commission of the search warrant, including “large amounts of crack
cocaine, large quantities of clear plastic bags, a razor, a gun holster, ammunition, a bulletproof vest, numerous cell phones, plastic gloves, two safes, three scales, mail and
documents belonging to [Petitioner] and Wise,” supported the convictions of conspiracy
and constructive possession. Hoskins II, 2012 WL 470230, at *6.
The court finds that the decision of the Iowa Court of Appeals did not “involve[]
an unreasonable application of[] clearly established Federal law.” 28 U.S.C. § 2254(d).
Furthermore, the Iowa Court of Appeals’s decision “was not based on an unreasonable
determination of the facts,” as it was reasonable to conclude that the evidence supported
a conspiracy and constructive possession conviction, and, therefore, appellate counsel’s
failure to make these arguments on appeal did not constitute deficient performance. Id.
The Iowa Court of Appeals properly considered “the totality of the evidence before the
judge or jury” in determining that appellate counsel did not provide ineffective assistance.
Strickland, 466 U.S. at 690, 695 (noting that “strategic choices made after thorough
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investigation of law and facts relevant to plausible options are virtually unchallengeable”).
Furthermore, Petitioner was not prejudiced by appellate counsel’s failure to raise an
insufficiency of the evidence argument because such argument was without merit.
Accordingly, the court shall deny the Petition in so far as it alleges that appellate counsel
was ineffective for failing to argue that there was insufficient evidence to support the
conviction.
B. Due Process
Petitioner also argues that his constitutional right to a fair trial was violated because
the trial court permitted the prosecution to use illegally obtained evidence as a basis for his
conviction. Respondent argues that Petitioner failed to raise this claim during state court
proceedings and, therefore, the issue has not been exhausted as required by 28 U.S.C.
§ 2254(b).
Petitioner claims that the Iowa District Court should have excluded Petitioner’s
statements related to the police officers finding “it” (referring to drugs located within the
house) because the statement was made in relation to suppressed evidence (the drugs
discovered in the plant). The Iowa District Court determined that this reference was
permissible and the Iowa Court of Appeals stated that even if “the testimony should have
been excluded,” “the admission . . . [was] harmless beyond a reasonable doubt.” Hoskins
I, 2008 WL 1887314, at *7. A Fourth Amendment claim that has been fully and fairly
litigated is not an appropriate issue for a federal court in a habeas proceeding. See Stone,
428 U.S. at 482 (“[W]here the State has provided an opportunity for full and fair litigation
of a Fourth Amendment claim, the Constitution does not require that a state prisoner be
granted federal habeas corpus relief on the ground that evidence obtained in an
unconstitutional search or seizure was introduced at his trial.”); Ryder v. Morris, 752 F.2d
327, 329-30 (8th Cir. 1985) (applying Stone to preclude review of a Fourth Amendment
claim). With regard to whether the admission of this evidence violated Petitioner’s

20

constitutional right to due process, however, Stone is inapplicable. Nevertheless, the
argument fails on procedural grounds.
Petitioner’s challenge of the use of evidence as a violation of his due process right
to a fair trial, rather than as a Fourth Amendment claim, is not a claim for which the state
courts had a “full opportunity” to resolve the issue. Welch, 616 F.3d at 758. The Eighth
Circuit has stated that “a petitioner must ‘refer to a specific federal constitutional right, a
particular constitutional provision, a federal constitutional case, or a state case raising a
pertinent federal constitutional issue in a claim before the state courts.’” Myre v. Iowa,
53 F.3d 199, 200 (8th Cir. 1995) (quoting Kelly v. Trickey, 844 F.2d 557, 558 (8th Cir.
1988)) (internal quotation marks omitted). In seeking habeas relief, “‘state prisoners must
give the state courts one full opportunity to resolve any constitutional issues by invoking
one complete round of the State’s established appellate review process’ before presenting
those issues in . . . federal court.” Welch, 616 F.3d at 758 (quoting O’Sullivan, 526 U.S.
at 845). Federal due process was not mentioned during trial, on direct appeal to the Iowa
Court of Appeals or before the Iowa District Court or the Iowa Court of Appeals in
postconviction relief proceedings. The first mention of federal due process arises in
Petitioner’s Application for Further Review to the Iowa Supreme Court. Application for
Further Review at 3, 13, 16, 18. And, an issue may not be raised for the first time in such
application. Consequently, Petitioner has failed to exhaust the state court remedies for his
due process claim.
The failure to exhaust a claim in state court sometimes implicates the independent
and adequate state ground doctrine. See Gray v. Netherland, 518 U.S. 152, 161 (1996);
Coleman, 501 U.S. at 732. Specifically, the Supreme Court explained:
28 U.S.C. § 2254(b) bars the granting of habeas corpus relief
“unless it appears that the applicant has exhausted the remedies
available in the courts of the State.” Because “[t]his
requirement . . . refers only to remedies still available at the
time of the federal petition,” Engle v. Isaac, 456 U.S. 107,
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125, n. 28, 102 S.Ct. 1558, 1570, n. 28, 71 L.Ed.2d 783
(1982), it is satisfied “if it is clear that [the habeas petitioner’s]
claims are now procedurally barred under [state] law,” Castille
v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 1060, 103
L.Ed.2d 380 (1989). However, the procedural bar that gives
rise to exhaustion provides an independent and adequate statelaw ground for the conviction and sentence, and thus prevents
federal habeas corpus review of the defaulted claim, unless the
petitioner can demonstrate cause and prejudice for the default.
Gray, 518 U.S. at 161-62 (alterations in original). Apart from showing good cause for his
or her failure to present the claims in state court and actual prejudice as a result of the
alleged constitutional violation, a petitioner may have a procedurally defaulted claim
reviewed if he or she can demonstrate that failure to review the claim would result in a
fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Reagan v. Norris, 279
F.3d 651, 656 (8th Cir. 2002); Hatcher v. Hopkins, 256 F.3d 761, 763 (8th Cir. 2001);
Keithley v. Hopkins, 43 F.3d 1216 (8th Cir. 1995); Maynard v. Lockhart, 981 F.2d 981,
984 (8th Cir. 1992); Buckley v. Lockhart, 892 F.2d 715, 718 (8th Cir. 1989).
In light of the court’s conclusion that Petitioner failed to properly exhaust his
remedies in the Iowa courts, it is necessary to consider whether Iowa law prevents
Petitioner from raising his claim in state court. See Wemark v. Iowa, 322 F.3d 1018, 1022
(8th Cir. 2003).
Iowa law requires post-conviction applicants to raise all
available grounds for relief in their original, supplemental, or
amended applications. Iowa Code § 822.8 (1994). “Any
ground . . . not raised . . . may not be the basis for a
subsequent application” unless the court finds “sufficient
reason” to justify the omission. Id.
Wemark, 322 F.3d at 1022 (alterations in original). In addition, a three-year statute of
limitations applies to individuals who seek to file a petition for postconviction relief. Id.
at 1022 n.3 (citing Iowa Code section 822.3). The three-year statute of limitations in the
instant case began on the date procedendo issued. See Iowa Code section 822.3 (“All
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other applications must be filed within three years . . . from the date the writ of
procedendo is issued.”). Given that procedendo issued on July 7, 2008, Petitioner’s
instant claim is procedurally defaulted. Further, the court is unable to review the
procedurally defaulted claim because Petitioner: (1) failed to demonstrate good cause for
his failure to present it in state court and actual prejudice as a result of the alleged
constitutional violation; and (2) failed to demonstrate that the failure to review it would
result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750. Petitioner
has not demonstrated cause and prejudice for failing to raise his due process claim at the
trial level; he argues only that his claims were exhausted at the state court level and,
therefore, are not procedurally defaulted. Because Petitioner did not exhaust his claim and
Petitioner’s claim is procedurally defaulted, the court shall deny the Petition in so far as
it alleges his constitutional right to a fair trial was violated due to the Iowa District Court’s
use of illegally obtained evidence.
VI. CERTIFICATE OF APPEALABILITY
The final order in a habeas proceeding before a district court judge “shall be subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held.” 28 U.S.C. § 2253(a). “Unless a circuit . . . judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals.”

28 U.S.C.

§ 2253(c)(1). The Eighth Circuit has ruled that a district court is empowered to issue
certificates of appealability. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997)
(analyzing the impact of the AEDPA on both 28 U.S.C. § 2253(c) and Federal Rule of
Appellate Procedure 22(b)). A certificate of appealability may issue only when a petitioner
makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Tiedeman, 122 F.3d
at 522. A substantial showing exists where the petitioner demonstrates that the “issues are
debatable among reasonable jurists, a court could resolve the issues differently, or the
issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997);
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see also Miller-El, 537 U.S. at 536 (articulating the standard); Garrett v. United States,
211 F.3d 1075, 1077 (8th Cir. 2000).
Courts can reject constitutional claims on procedural grounds or on the merits of
the claim itself. Where claims are rejected on the merits, a prisoner has to show that
“reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Miller-El, 537 U.S. at 338 (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). For claims that are rejected on procedural grounds, the prisoner must
demonstrate, at a minimum, “that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
After thoroughly reviewing the record in this case, the court finds that Petitioner
has failed to make the required “substantial showing” for each of the claims he raised in
his Petition. Because no reasonable jurist would find the resolution of this case debatable,
an appeal is unwarranted. Therefore, the court shall deny Petitioner’s request for a
certificate of appealability. If Petitioner desires further review of his 28 U.S.C. § 2254
Petition, he may request issuance of a certificate of appealability from a circuit judge of
the Eighth Circuit Court of Appeals. See Tiedeman, 122 F.3d at 522.
VII. CONCLUSION
The court finds that Petitioner is not entitled to relief under 28 U.S.C. § 2254. The
Iowa courts’ adjudication of Petitioner’s claims of ineffective assistance of trial and
appellate counsel did not “result[] in a decision that was contrary to, or involve[] an
unreasonable application of, clearly established [f]ederal law” and did not “result[] in a
decision that was based on an unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d). Furthermore, Petitioner did not adequately
present his due process claim to the state courts and it is now procedurally defaulted. In
light of the foregoing, Petitioner Walter Hoskins’s “Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody” (docket no. 2) is DENIED. The

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Clerk of Court is DIRECTED to enter judgment in favor of Respondent John Fayram and
against Petitioner Walter Hoskins. Additionally, a certificate of appealability is DENIED.
IT IS SO ORDERED.
DATED this 7th day of October, 2014.

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