Robinson v. Ludwick

Filing 49

ORDER denying 1 Petition for Writ of Habeas Corpus filed by Michael Ray Robinson. The Clerk of Court is directed to enter judgment in favor of Respondent Nick Ludwick and against Petitioner Michael Ray Robinson. Additionally, a certificate of appealability is denied. (See order text) Signed by Chief Judge Linda R Reade on 4/16/15. (ksy)(copy w/NEF to Petitioner)

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

MICHAEL RAY ROBINSON,
Petitioner,

No. 13-CV-99-LRR

vs.

ORDER

NICK LUDWICK,
Respondent.
____________________
TABLE OF CONTENTS
I.

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

II.

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

Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Direct Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
State Post-Conviction Relief Proceedings . . . . . . . . . . . . . . . . . . .
Federal Habeas Corpus Action . . . . . . . . . . . . . . . . . . . . . . . . . .

2
3
4
6

III.

FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

IV.

STANDARDS OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A.
B.

V.

28 U.S.C. § 2254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Exhaustion and Procedural Default . . . . . . . . . . . . . . . . . . . . . . 12

DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A.

Ineffective Assistance of Counsel . . . . . . . . . . . . . . . . . . . . . . .
1.
Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Counsel’s effectiveness for failing to object to the lack of
African-Americans in the jury pool . . . . . . . . . . . . . . . . . .
3.
Counsel’s effectiveness for failing to propose a jury instruction
for second-degree sexual abuse as a lesser-included offense of
first-degree kidnapping . . . . . . . . . . . . . . . . . . . . . . . . .

15
15
17
19

B.

C.

D.
E.

Right to a Jury Composed of a Fair Cross Section of the
Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Applicable law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.
Jury Instruction No. 18 . . . . . . . . . . . . . . . . . . . . . . . . .
2.
Fair decision maker . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3.
Lesser-included offenses . . . . . . . . . . . . . . . . . . . . . . . . .
Right to a Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Cruel and Unusual Punishment . . . . . . . . . . . . . . . . . . . . . . . .

21
22
22
23
24
25
27
28
29

VI.

CERTIFICATE OF APPEALABILITY . . . . . . . . . . . . . . . . . . . . . . . . 30

VII.

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
I. INTRODUCTION
The matter before the court is Michael Ray Robinson’s (“Petitioner”) “Petition

Under 28 U.S.C. § 2254 for Writ of Habeas Corpus” (“Petition”) (docket no. 1).
II. PROCEDURAL BACKGROUND
A. Conviction
On May 21, 1992, in the Iowa District Court for Linn County (“Iowa District
Court”), Case No. CRF12712/FECR912712, a jury found Petitioner guilty of first-degree
kidnapping (count I), in violation of Iowa Code sections 710.1 and 710.2, and seconddegree robbery (counts II and III), in violation of Iowa Code sections 711.1 and 711.3.
Appendix (“App’x”), Complaint (docket no. 19-4) at 4-6; App’x, Sentencing Transcript
(docket no. 19-4) at 88. On the same day, Petitioner was sentenced to life imprisonment
on count I and ten years of imprisonment on counts II and III. App’x, Sentencing
Transcript (docket no. 19-4) at 88. The Iowa District Court ordered the sentences to run
concurrently. Id.

2

B. Direct Appeal
Petitioner appealed his conviction to the Iowa Court of Appeals on several grounds.
First, Petitioner asserted that “there was insufficient evidence in the record as a whole for
a rational jury to convict him of first-degree kidnapping,” specifically that “there [was]
insufficient evidence of the confinement and removal elements” of the crime and that there
was “insufficient evidence he sexually abused” and robbed the victim. App’x, State v.
Robinson (“Robinson I”) (docket no. 19-5) at 4-6. Second, Petitioner claimed that trial
counsel was ineffective “because they did not object to the court’s failure to include an
instruction on second-degree sexual abuse as a lesser-included offense of first-degree
kidnapping,” and “because they did not object to the systematic exclusion of black persons
from the jury pool.” Id. at 7.
On October 5, 1993, the Iowa Court of Appeals rejected Petitioner’s sufficiency of
the evidence and ineffective assistance of counsel arguments. Regarding the sufficiency
of the evidence claim, the Iowa Court of Appeals held that the “removal and confinement”
element was satisfied because, “[b]y removing the victim from the alley and confining her
in the house, [Petitioner] significantly lessened his risk of detection.”

Id. at 5.

Additionally, the Iowa Court of Appeals held that “the removal and confinement increased
the risk of harm to the victim.” Id. at 6. Regarding the sexual abuse and robbery
elements, the Iowa Court of Appeals held that “there was substantial evidence to show
[Petitioner] sexually abused the victim” and that there was “substantial evidence
[Petitioner] intended to commit a theft.” Id. at 6-7. The Iowa Court of Appeals further
held that no Sixth Amendment violation occurred when trial counsel failed to request an
instruction on second-degree sexual abuse as a lesser-included offense because no facts in
the record supported that charge “and the jury could not rationally have convicted
[Petitioner] of second-degree sexual abuse.”

Id. at 8. However, the Iowa Court of

Appeals declined to review Petitioner’s argument that black persons were “systematically
3

excluded” from the jury pool, citing the need “for a more complete record to be
developed,” and reserved that claim for post-conviction proceedings. Id. at 9.1
C. State Post-Conviction Relief Proceedings
Petitioner filed an application for post-conviction relief in the Iowa District Court,
asserting eight grounds for relief. App’x, Application for Post-Conviction Relief (docket
no. 19-17) at 16-20. Those grounds are as follows: (1) ineffective assistance of trial
counsel for failing to propose a jury instruction on second-degree sexual abuse as a lesserincluded offense of first-degree kidnapping; (2) ineffective assistance of trial counsel for
failing to object to Jury Instruction No. 18; (3) ineffective assistance of trial counsel for
failing to fingerprint test a drug spoon found near the crime scene; (4) ineffective
assistance of trial counsel for failing to adequately cross-examine witnesses at trial; (5)
ineffective assistance of trial counsel for failing to exclude from trial a statement from the
victim’s friend that the victim was “going to be killed”; (6) ineffective assistance of trial
counsel for failing to fully investigate hairs found on Petitioner and the victim; (7)
ineffective assistance of trial counsel for failing to object to the jury pool’s racial
composition; and (8) the jury pool did not include a fair cross section of the community
in violation of the Sixth Amendment, specifically that black persons were “systematically
excluded.” Id. at 16-19. The Iowa District Court denied Petitioner’s claims in their
entirety. See App’x, Robinson Post-Conviction Ruling I (docket no. 19-17) at 24-26.
Petitioner appealed, arguing only that post-conviction counsel was ineffective for failing

1

It is unclear from the record whether Petitioner sought further review from the
Iowa Supreme Court. Because no argument is made otherwise, the court assumes that
Petitioner sought further review or that no issue arises 28 U.S.C. § 2254(b)(1)(A) because
Petitioner was convicted in 1992. See Respondent’s Brief (docket no. 45) at 6-7
(discussing Petitioner’s case on direct review).
4

to present evidence regarding the “systematic exclusion” claim at the post-conviction relief
hearing. App’x, Appellant’s Brief (docket no. 19-7) at 7-10.
On February 9, 2000, the Iowa Court of Appeals agreed with Petitioner and
reversed the Iowa District Court’s decision, remanding for the purpose of holding an
evidentiary hearing regarding the “systematic exclusion” claim.

Robinson v. State

(“Robinson II”), No. 98-1805, 2000 WL 145043 (Iowa Ct. App. Feb. 9, 2000); App’x,
Appellate Opinion II (docket no. 19-10) at 2. The State applied for further review,
opposing the order to remand, but the Iowa Supreme Court denied further review. App’x,
Application for Further Review (docket no. 19-11); App’x, Order Denying Further Review
(docket no. 19-12); see also App’x, May 30, 2000 Procedendo (docket no. 19-13).
Petitioner did not seek further review of any issues. On remand, the Iowa District Court
found that “no material issue of fact exists which would preclude dismissal” and dismissed
Petitioner’s application for post-conviction relief. App’x, Robinson Post-Conviction
Ruling II (docket no. 19-14) at 1. Petitioner appealed that dismissal, and the Iowa Court
of Appeals again reversed and remanded for the purpose of holding an evidentiary hearing
on the “systematic exclusion” claim. Robinson v. State (“Robinson III”), No. 03-1058,
2004 WL 2386828, at *2 (Iowa Ct. App. Oct. 27, 2004); App’x, Appellate Opinion III
(docket no. 19-21) at 2. After holding an evidentiary hearing, the Iowa District Court
denied the “systematic exclusion” claim on June 14, 2010. App’x, Robinson PostConviction Ruling III (docket no. 19-24) at 23-25. Petitioner appealed, this time alleging
that: (1) a violation of his right to counsel occurred when trial counsel failed to object to
the jury pool’s racial composition and (2) there was insufficient evidence at trial to support
the removal and confinement element of first-degree kidnapping. App’x, Appellant’s Brief
(docket no. 19-22) at 12-15.
On July 10, 2013, the Iowa Court of Appeals affirmed.

Robinson v. State

(“Robinson IV”), No. 10-1337, 2013 WL 3458077, at *3 (Iowa Ct. App. July 10, 2013)
5

(unpublished table decision); App’x, Appellate Opinion IV (docket no. 19-25) at 3. The
Iowa Court of Appeals held that Petitioner’s ineffective assistance claim failed because
Petitioner demonstrated neither a substantial underrepresentation of black persons in the
jury pool nor a “systematic exclusion” of black persons from juries. Id. at *1-2. The
Iowa Court of Appeals further held that Petitioner’s insufficiency of the evidence claim
was procedurally defaulted because it was not addressed during the evidentiary hearing.
Robinson IV, 2013 WL 3458077, at *1 n.1; App’x, Appellate Opinion IV (docket no. 1925) at 1 n.1. Petitioner applied for further review, asserting the following arguments: (1)
ineffective assistance of trial counsel for failing to object to Jury Instruction No. 18; (2)
ineffective assistance of trial counsel for failing to object to complicated jury instructions;
(3) the Iowa District Court failed to clearly and adequately instruct the jury;2 and (4)
ineffective assistance of trial counsel for failing to object to the jury pool’s racial
composition. App’x, Application for Further Review (docket no. 19-26) at 2-7. On
September 4, 2013, the Iowa Supreme Court denied further review. App’x, Order
Denying Further Review (docket no. 19-27); see also App’x, September 6, 2013
Procedendo (docket no. 19-28).
D. Federal Habeas Corpus Action
On September 30, 2013, Petitioner filed the Petition, alleging five grounds for
relief: (1) ineffective assistance of trial counsel for failing to object to the jury pool’s racial
composition; (2) ineffective assistance of trial counsel for failing to propose a jury
instruction on second-degree sexual abuse as a lesser-included offense of first-degree
kidnapping; (3) the Iowa District Court “[failed] to adequately define removal” in the jury
instructions; (4) the Iowa District Court “[failed] to include lesser offenses”; and (5) the
2

Petitioner’s second and third assertion in his application for further review were
presented as the same claim. See App’x, Application for Further Review (docket no. 1926) at 5. However, the court interprets these as separate grounds for relief.
6

Iowa District Court systematically excluded African-Americans from the jury pool.
Petition (docket no. 1) at 5-8. On February 6, 2014, Nick Ludwick (“Respondent”) filed
an Answer. Answer (docket no. 12). In the Answer, Respondent admits that the first
ground is exhausted, but Respondent did not waive the exhaustion requirement with respect
to the other grounds. Answer (docket no. 12) ¶ 2(e). Additionally, Respondent argues
“that the decisions of the Iowa courts were neither contrary to, nor an unreasonable
application of, clearly established Supreme Court precedent.” Id. ¶ 2(e)(I).
On June 26, 2014, Petitioner filed a brief, in which he addressed the following
issues: (1) Jury Instruction No. 18 violated the Due Process Clause because it conflated
the legal and colloquial meanings of “removal,” it “prejudicially modified” the uniform
jury instruction for removal and it gave undue prominence to certain evidence;3 (2) the trial
judge was not a “fair decision maker” and, consequently, Petitioner was deprived of due
process; (3) the jurors were “compelled to believe they would only be allowed to issue a
guilty verdict” in violation of the Seventh Amendment; and (4) he “suffered cruel and
unusual punishment” in violation of the Eighth Amendment when he “was sent to prison
by the illegally obtained guilty verdict.” Petitioner’s Brief (docket no. 35) at 1-8. On
September 29, 2014, Respondent filed a brief. Respondent’s Brief (docket no. 45). On
November 10, 2014, Petitioner filed a reply. Petitioner’s Reply (docket no. 47). 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:
Lynette Wischmeier and Amy Hofer became friends
when they were both working at K-Mart in Iowa City and

3

Petitioner also claims that Jury Instruction No. 18 “invade[d] the province of the
[j]ury.” Petitioner’s Brief (docket no. 35) at 4. The court reads this as an extension of
Petitioner’s Seventh Amendment argument. See infra Part V.D.
7

attending Kirkwood Community College in Cedar Rapids. The
two women lived in Iowa City. On September 27, 1991, they
left Iowa City at about 8 p.m. to go to some bars in Cedar
Rapids which they had heard about from classmates. They
traveled in Amy’s Toyota Celica.
After some period of time, Lynette and Amy came to
the East Side Maidrite in Cedar Rapids. While there, they
were approached by [Petitioner]. [Petitioner] had a short
conversation with them. The women left shortly and went to
another bar.
Sometime after 1 a.m. on September 28, 1991, they
returned to the Maidrite. [Petitioner] again engaged them in
conversation. The bar started to close sometime between 1:30
and 2 a.m., and patrons were asked to leave. [Petitioner]
asked the women for a ride home, claiming he did not have
enough money for a cab.
Although neither woman
remembered agreeing to give [Petitioner] a ride, he got into
the back seat of the car. Lynette drove the car, and Amy was
in the front passenger seat.
[Petitioner] directed Lynette to stop in an alley in the
500 block of Sixth Street Southeast. He had a sudden
personality change. [Petitioner] grabbed both of the women by
their hair and began yelling. He then waived [sic] his arms
about wildly. He struck Amy in the face. Lynette testified
[Petitioner] asked for their money. Amy testified Lynette
asked if he wanted their money and [Petitioner] said, “yeah,
give me your money.” He then took their money.
[Petitioner] struck Lynette quite hard and pulled her out
of the car. He twisted Lynette’s arm behind her back and told
Amy to drive away, which she did. [Petitioner] took Lynette
to a nearby deserted house, which he said he was living in.
There he removed Lynette’s clothing and his own before he
forced her to have sexual intercourse. When the sex act was
over Lynette asked if she could leave, but [Petitioner] would
not let her leave, stating he intended to have sexual intercourse
again. He did allow her to put on some of her clothing.

8

In the meantime, Amy drove to a nearby HandiMart and
telephoned the police. Amy took police officers Troy
Nogelmeier and Scott Syverson back to the alley where
[Petitioner] had taken Lynette from the car. However, the
officers were unable to determine the whereabouts of Lynette
and [Petitioner] at that time.
Police officers Victor Mills and John Gales began
searching vacant houses in the area. Eventually, at 3:57 a.m.,
they came to the house where [Petitioner] was keeping
Lynette. They observed [Petitioner] and Lynette laying on a
mattress on the floor, and [Petitioner] had his left arm over
her. Lynette’s breasts were exposed, and [Petitioner]’s pants
were down around his knees, exposing his genital area. When
the officers entered the room, Lynette ran to them and stated
[Petitioner] had raped her. [Petitioner] was then arrested.
App’x, Robinson I (docket no. 19-5) at 2-4.
IV. STANDARDS OF REVIEW
A. 28 U.S.C. § 2254
Where a claim is properly before the court, 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.

9

28 U.S.C. § 2254(d). Thus, “[s]ection 2254(d) distinguishes between two types of
erroneous decisions—those 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). 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 (internal
quotation marks omitted).
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 (alterations in original); see also Rompilla v.
10

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).
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 [s]tate 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

11

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.
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) the Iowa courts reached an unreasonable determination of the facts
in light of the evidence in the record. See, e.g., Rousan v. Roper, 436 F.3d 951, 956 (8th
Cir. 2006) (discussing the applicable standard); Closs v. Roper, 238 F.3d 1018, 1020 (8th
Cir. 2001) (same); Newman v. Hopkins, 247 F.3d 848, 850-52 (8th Cir. 2001) (same);
Weaver, 241 F.3d at 1029-30; Copeland v. Washington, 232 F.3d 969, 973 (8th Cir.
2000).
B. Exhaustion and Procedural Default
A petitioner must exhaust all available state court remedies before obtaining federal
habeas corpus review. 28 U.S.C. § 2254(b)(1)(A). To fulfill the exhaustion requirement,
a petitioner must provide the highest state court with a full and fair opportunity to consider
all of the claims before presenting them to a federal court. See, e.g., Vasquez v. Hillery,
474 U.S. 254, 257 (1986); see also 28 U.S.C. § 2254(c). This requires a petitioner to
invoke “one complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In Iowa, a “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, 759 (8th Cir. 2010).

12

The fair presentment component of the exhaustion requirement compels a petitioner
to “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.”
Ashker v. Leapley, 5 F.3d 1178, 1179 (8th Cir. 1993) (quoting Kelly v. Trickey, 844 F.2d
557, 558 (8th Cir. 1988)) (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 petitioner’s federal habeas corpus petition have been properly raised in the petitioner’s
state court proceedings. See Keithley v. Hopkins, 43 F.3d 1216, 1217 (8th Cir.1995);
Flieger v. Delo, 16 F.3d 878, 884-85 (8th Cir. 1994).
Additionally, failure to exhaust a claim in state court may implicate the independent
and adequate state ground doctrine. See Gray v. Netherland, 518 U.S. 152, 161 (1996);
Coleman v. Thompson, 501 U.S. 722, 732 (1991). 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,
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 state-law
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
13

reviewed if he or she can “demonstrate that failure to consider the claim[] will 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, 43 F.3d at 1218; Maynard v. Lockhart, 981 F.2d 981, 985 (8th Cir. 1992);
Buckley v. Lockhart, 892 F.2d 715, 718 (8th Cir. 1989).
V. DISCUSSION
Petitioner asserts eight grounds for habeas corpus relief under 28 U.S.C. § 2254.
Those grounds are: (1) ineffective assistance of trial counsel for failing to object to the jury
pool’s racial composition; (2) ineffective assistance of trial counsel for failing to propose
jury instructions on the lesser-included offense of second-degree sexual abuse; (3)“[t]he
[Iowa District Court] failed to adequately include African-Americans [as a result of relying
on] a biased and faulty jury pool source list”; (4) Jury Instruction No. 18, regarding the
“removal and confinement” element of first-degree kidnapping, was so poorly constructed
as to deprive Petitioner of due process of law; (5) Petitioner “did not have a fair decision
maker on the bench conducting [his] trial which violated [his] 5th Amendment rights”; (6)
the Iowa District Court’s refusal to include jury instructions for lesser-included offenses
violated Petitioner’s due process rights; (7) the jurors were “compelled to believe they
would only be allowed to issue a guilty verdict” in violation of the Seventh Amendment;
and (8) Petitioner “suffered cruel and unusual punishment” in violation of the Eighth
Amendment when he “was sent to prison by the illegally obtained guilty verdict.”4
Petition (docket no. 1) at 5-8; Petitioner’s Brief (docket no. 35) at 1-8.
Ground one, alleging ineffective assistance of trial counsel for failing to object to
the racial composition of the jury pool, ground two, alleging ineffective assistance of trial
4

Petitioner initially asserted grounds one, two, three, four and six in the Petition.
Petition (docket no. 1) at 5-8. Petitioner asserted three additional grounds, that is, grounds
five, seven and eight, in Petitioner’s brief. Petitioner’s Brief (docket no. 35) at 1-8.
14

counsel for failing to propose an instruction on second-degree sexual abuse as a lesserincluded offense of first-degree kidnapping, and ground three, alleging systematic
exclusion of African-Americans from the jury pool, are exhausted. The remaining grounds
are unexhausted and, therefore, are not properly before the court. However, the court
deems it appropriate to address each ground on the merits pursuant to 28 U.S.C.
§ 2254(b)(2), which provides that “[a]n application for a writ of habeas corpus may be
denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the state.” 28 U.S.C. § 2254(b)(2).
A. Ineffective Assistance of Counsel
Petitioner raises two grounds implicating his right to the effective assistance of
counsel. Ground one alleges ineffective assistance of trial counsel for failing to object to
the lack of African-Americans in the jury pool. Ground two alleges ineffective assistance
of trial counsel for failing to propose second-degree sexual abuse as a lesser-included
offense of first-degree kidnapping.
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, 395-96 (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
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

15

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)
(noting that courts presume that “counsel’s actions constitute[] reasonable trial strategy”).
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.
“A reasonable probability is a probability sufficient to undermine confidence in the

16

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, 562 U.S. 86, 105 (2011).
“Federal habeas courts must guard against the danger of equating unreasonableness under
Strickland with unreasonableness under [28 U.S.C.] § 2254(d).” Id. 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.

Counsel’s effectiveness for failing to object to the lack of AfricanAmericans in the jury pool

In ground one, Petitioner argues that trial counsel provided ineffective assistance
when they failed to object to the racial composition of the jury pool. Petition (docket no.
1) at 5-6. Respondent argues that the jury pool’s racial composition was “fair and
reasonable,” and also that Petitioner did not make a “showing of systematic exclusion by
the [Iowa District Court].” Respondent’s Brief (docket no. 45) at 15. Petitioner first
raised this ground on direct appeal to the Iowa Court of Appeals. App’x, Robinson I
(docket no. 19-5) at 9. Additionally, Petitioner pursued this ground in his application for
post-conviction relief and in each appeal following the denial of that application. See
App’x, Application for Post-Conviction Relief (docket no. 19-17) at 18-19; Robinson II,
No. 98-1805, 2000 WL 145043, at *1; App’x, Appellate Opinion II (docket no. 19-10) at
1; Robinson III, No. 03-1058, 2004 WL 2386828 at *1-2; App’x, Appellate Opinion III
(docket no. 19-21) at 1-2; Robinson IV, 2013 WL 3458077, at *1-2; App’x, Appellate
Opinion IV (docket no. 19-25) at 2-3; App’x, Application for Further Review (docket no.
17

19-26) at 7. Finally, Petitioner raises this ground in the Petition. Petition (docket no. 1)
at 5-6. Therefore, ground one is exhausted and properly before the court.
To prevail on ground one, Petitioner must demonstrate that trial counsel’s failure
to object to the racial composition of the jury pool constituted deficient performance and
that trial counsel’s deficiency prejudiced the trial’s outcome. The Iowa Court of Appeals
concluded that Petitioner’s trial counsel was not deficient because the circumstances could
not support a “systematic exclusion” claim. Robinson IV, 2013 WL 3458077, at *1-2;
App’x, Appellate Opinion IV (docket no. 19-25) at 2-3. The Iowa Court of Appeals
analyzed Petitioner’s claim under the Duren test,5 which requires Petitioner to
demonstrate:
(1) that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1979); see also State v. Jones, 490 N.W.2d 787,
792 (Iowa 1992). The Iowa Court of Appeals held that, because Petitioner failed to
demonstrate the second and third prongs—that African-Americans were substantially
underepresented and that the Iowa District Court systematically excluded AfricanAmericans from the jury pool, Petitioner’s trial counsel was not deficient for failing to
object to the jury pool’s racial composition. Robinson IV, 2013 WL 3458077, at *2;
App’x, Appellate Opinion IV (docket no. 19-25) at 2-3.
The court finds that the Iowa Court of Appeals reasonably concluded that
Petitioner’s trial counsel was not deficient for failing to object to the “absolute [racial]

5

The Iowa Court of Appeals’ direct citation was to State v. Jones, 490 N.W.2d 787
(Iowa 1992), which adopted the Duren test. Id. at 792.
18

disparity” of two percent.6 Id.; see, e.g., Floyd v. Garrison, 996 F.2d 947, 949-50 (8th
Cir. 1993) (holding that an absolute disparity of 3.465% “does not constitute evidence of
a fair-cross-section violation”). Because the jury pool’s absolute racial disparity of two
percent does not implicate constitutional concerns, trial counsel was not deficient for
failing to object to its composition.

Furthermore, even if Petitioner demonstrated

substantial racial underrepresentation, he presented no evidence supporting a “systematic
exclusion” of African-Americans from the jury-selection process. See Duren, 439 U.S.
at 364. Petitioner’s sole claim on this issue—that the Linn County Clerk of Court used
only two of the three jury pool source lists required by Iowa law—was refuted by postconviction counsel’s investigation. Robinson IV, 2013 WL 3458077, at *2; App’x,
Appellate Opinion IV (docket no. 19-25) at 3. Therefore, the Iowa Court of Appeals
reasonably held that trial counsel did not provide ineffective assistance. Accordingly, the
Petition shall be denied with respect to ground one.
3.

Counsel’s effectiveness for failing to propose a jury instruction for
second-degree sexual abuse as a lesser-included offense of first-degree
kidnapping

In ground two, Petitioner alleges that trial counsel provided ineffective assistance
when they failed to propose a jury instruction for second-degree sexual abuse as a lesserincluded offense of first-degree kidnapping. Petition (docket no. 1) at 5. Petitioner raised
this ground on direct appeal to the Iowa Court of Appeals. App’x, Robinson I (docket no.
19-5) at 8. Because Respondent does not argue otherwise, the court assumes that no issue

6

The Iowa Court of Appeals refers to a two percent disparity, which references the
percentage of allegedly excluded African-Americans from the jury pool. Robinson IV,
2013 WL 3458077, at *2; App’x, Appellate Opinion IV (docket no. 19-25) at 2. Even if
a three percent figure, denoting the absolute disparity of all underrepresented races is
utilized, that total disparity still does not implicate constitutional concerns.
19

arises under 28 U.S.C. § 2254(b)(1)(A).7 See Respondent’s Brief (docket no. 45) at 19-20.
In any event, the court deems it appropriate to address the merits of ground two pursuant
to 28 U.S.C. § 2254(b)(2).
Respondent argues that Petitioner was not prejudiced by trial counsel’s failure to
request an instruction on second-degree sexual abuse because “[a] jury receiving a seconddegree-sexual-abuse instruction could not have convicted Petitioner of that crime” and that
Petitioner’s trial counsel was not deficient because the facts did not support an instruction
on second-degree sexual abuse. Respondent’s Brief (docket no. 45) at 20. On direct
appeal, the Iowa Court of Appeals held that Petitioner “was not prejudiced by trial
counsel’s failure to request an instruction on second-degree sexual abuse.” App’x,
Robinson I (docket no. 19-5) at 8. Specifically, after explaining the elements of seconddegree sexual abuse in Iowa, the Iowa Court of Appeals held that “the jury could not
rationally have convicted” Petitioner of that crime. Id. Further, in post-conviction relief
proceedings, the Iowa District Court reiterated that “no prejudice resulted to [Petitioner]
for failure to submit second-degree sexual abuse to the jury.” App’x, Robinson PostConviction Ruling I (docket no. 19-17) at 24.
The court finds that the Iowa Court of Appeals reasonably held that Petitioner was
not prejudiced by trial counsel’s failure to request an instruction on second-degree sexual
abuse. See App’x, Robinson I (docket no. 19-5) at 8. Petitioner has not rebutted the facts
in the record with clear and convincing evidence, and, therefore, the court must presume
that the Iowa Court of Appeals’ findings of fact are correct. 28 U.S.C. § 2254(e)(1); see
Bainter v. Trickey, 932 F.2d 713, 715 (8th Cir. 1991) (“[A] state court’s specific factual
findings made in the course of deciding an ineffective assistance of counsel claim are
7

As discussed supra Part II.B, it is unclear whether Petitioner sought further review
from the Iowa Supreme Court after the Iowa Court of Appeals resolved Petitioner’s direct
appeal.
20

presumed correct.” (alteration in original)). The Iowa Court of Appeals held that the facts
in the record were legally insufficient to support a charge of second-degree sexual abuse.
App’x, Robinson I (docket no. 19-5) at 8. Therefore, Petitioner suffered no prejudice
from trial counsel’s failure to propose that instruction. See Harrington, 562 U.S. at 111
(explaining that, when examining whether a defendant is prejudiced, “Strickland asks
whether it is ‘reasonably likely’ the result would have been different”). The court will not
review the Iowa Court of Appeals’ determination that the evidence could not sustain a
conviction for second-degree sexual assault. See Estelle v. McGuire, 502 U.S. 62, 67-68
(1991) (holding that “it is not the province of a federal habeas court to reexamine statecourt determinations on state-law questions”). For all these reasons, the Iowa Court of
Appeals reasonably held that Petitioner was not prejudiced by his trial counsel’s
performance. Accordingly, the Petition shall be denied with respect to ground two.
B. Right to a Jury Composed of a Fair Cross Section of the Community
In ground three, Petitioner argues that the Linn County Clerk of Court’s jury pool
source list systematically excluded minority members of the community in violation of the
Sixth Amendment’s fair-cross-section requirement. Petition (docket no. 1) at 5, 8.8
Respondent argues that Petitioner neither established a substantial underrepresentation of
African-Americans in the jury pool nor demonstrated a “systematic exclusion” of AfricanAmericans from the jury pool. See Respondent’s Brief (docket no. 45) at 14-15. Because
Petitioner exhausted ground one—ineffective assistance of trial counsel for failing to object
to the jury pool’s racial composition, the Iowa courts had a full and fair opportunity to

8

Petitioner raises his fair-cross-section claim both as a stand-alone ground and in
the ineffective assistance of counsel context. Petition (docket no. 1) at 5, 8. Respondent
addresses only the latter. Respondent’s Brief (docket no. 45) at 14-15.
21

consider the fair-cross-section claim.9 See Ashker, 5 F.3d at 1179 (holding that a habeas
claim is exhausted where the petitioner “refer[s] to a specific federal constitutional right,
a particular constitutional provision, a federal constitutional case, or a state case raising
a pertinent federal constitutional issue” (quoting Kelly, 844 F.2d at 558 (internal quotation
marks omitted))). Therefore, ground three is exhausted and properly before the court.
1.

Applicable law

The Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed.” U.S. Const. amend. VI. The
Supreme Court “has unambiguously declared that the American concept of the jury trial
contemplates a jury drawn from a fair cross section of the community.” Taylor v.
Louisiana, 419 U.S. 522, 527 (1975). The test for whether a jury’s racial composition
implicates constitutional concerns is the Duren test, which requires Petitioner to
demonstrate:
(1) that the group alleged to be excluded is a “distinctive”
group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and
reasonable in relation to the number of such persons in the
community; and (3) that this underrepresentation is due to
systematic exclusion of the group in the jury-selection process.
Duren, 439 U.S. at 364.
2.

Application

The court finds that the Iowa Court of Appeals reasonably concluded that an
“absolute disparity” of two percent was “well under the percentages cited as non
9

To establish ineffective assistance of counsel, Petitioner necessarily must
demonstrate a fair-cross-section violation. If no fair-cross-section violation occurred, trial
counsel was not deficient in failing to object to the jury pool’s racial composition. See
Duren, 439 U.S. at 364; Strickland, 466 U.S. at 687.
22

problematic.” Robinson IV, 2013 WL 3458077, at *2; App’x, Appellate Opinion IV
(docket no. 19-25) at 2; see, e.g., Floyd, 996 F.2d at 949-50 (holding that an absolute
disparity of 3.465% “does not constitute evidence of a fair-cross-section violation”) (citing
United States v. Clifford, 640 F.2d 150, 155 (8th Cir. 1981) (holding that a 7.2% disparity
“does not represent substantial underrepresentation”)). In Petitioner’s case, even though
the jury pool was 100% white, the disparity of allegedly excluded African-Americans was
just two percent. Robinson IV, 2013 WL 3458077, at *2; App’x, Appellate Opinion IV
(docket no. 19-25) at 2. Therefore, the Iowa Court of Appeals’ decision was reasonable.
See Floyd, 996 F.2d at 949-50.
Furthermore, the Iowa Court of Appeals reasonably found that African-Americans
were not “systematically excluded” from the jury pool. Petitioner’s sole allegation in
support of this element, that the Linn County Clerk of Court “only used two source lists”
rather than the requisite three, was refuted by one of Petitioner’s own post-conviction
attorneys. Robinson IV, 2013 WL 3458077, at *2; App’x, Appellate Opinion IV (docket
no. 19-25) at 3. Based on the record, the Iowa courts reasonably determined that the jury
pool represented a fair cross section of the community. 28 U.S.C. § 2254(d)(2); Beck,
257 F.3d at 901. Accordingly, the Petition shall be denied with respect to ground three.
C. Due Process
Petitioner asserts three grounds that relate to his Fifth Amendment right to due
process. First, in ground four, he contends that the Iowa District Court’s definition of
“removal” in Jury Instruction No. 18 was unconstitutionally flawed. Petition (docket no.
1) at 6. Second, in ground five, he claims that the trial judge was unconstitutionally
biased. Petitioner’s Brief (docket no. 35) at 7-8. Finally, in ground six, Petitioner argues
that the Iowa District Court’s failure to instruct the jury on lesser-included offenses
deprived him of due process. Petition (docket no. 1) at 6.

23

1.

Jury Instruction No. 18

In ground four, Petitioner asserts that the Iowa District Court’s definition of
“removal” in Jury Instruction No. 18 deprived him of due process because it conflated the
colloquial and legal meanings of the word “removal.” See Petitioner’s Brief (docket no.
35) at 1. Respondent does not address ground four on the merits, arguing instead that this
ground is unexhausted and procedurally defaulted. See Respondent’s Brief (docket no. 45)
at 21-23. Petitioner did not properly raise ground four in the Iowa courts. Therefore, it
is not properly before the court. 28 U.S.C. § 2254(b)(1)(A). Nonetheless, the court
deems it appropriate to address ground four on the merits pursuant to 28 U.S.C.
§ 2254(b)(2).
“[T]he fact that [an] instruction was allegedly incorrect under state law is not a basis
for habeas relief.” Estelle, 502 U.S. at 71-72. The allegedly deficient instruction “must
be considered in the context of the instructions as a whole and the trial record.” Id. at 72
(citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). “The only question . . . is ‘whether
the ailing instruction by itself so infected the entire trial that the resulting conviction
violates due process.’” Id. at 72 (quoting Cupp, 414 U.S. at 147); cf. Cool v. United
States, 409 U.S. 100, 104 (1972) (holding a jury instruction constitutionally infirm where
it essentially “require[d] the defendant to establish his innocence beyond a reasonable
doubt”).

In this case, the challenged instruction concerning the “removal and

confinement” element read: “On or about the 28th day of September, 1991, [Petitioner]
confined Lynette Lynn Wischmeier or removed Lynette Lynn Wischmeier from her
automobile to a vacant house.” App’x, Application for Post-Conviction Relief (docket no.
19-17) at 16.
The court finds that Jury Instruction No. 18 did not “by itself so infect[] the entire
trial that the resulting conviction violates due process.” Estelle, 502 U.S. at 72. Petitioner
essentially argues that the instruction forced the jury to convict him because it instructed
24

that “[Petitioner] taking [the victim] [f]rom the car to the house was a removal” for the
purposes of first-degree kidnapping, thereby taking that issue from the jury.10 Petitioner’s
Brief (docket no. 35) at 4. On direct appeal, the Iowa Court of Appeals held that the State
introduced enough evidence at trial to support the “removal or confinement” element
beyond a reasonable doubt. App’x, Robinson I (docket no. 19-5) at 5-6. The court will
not review the Iowa courts’ determinations of Iowa law. See Estelle, 502 U.S. at 67-68
(holding “that it is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions”). Further, the court presumes the unrebutted record
developed in the Iowa courts is correct. See 28 U.S.C. § 2254(e)(1). Considering the
instruction in the context of the entire trial record and the Iowa Court of Appeals’
determination that the evidence was sufficient to support the conviction, the court finds that
the instruction did not “so infect[] the entire trial that the resulting conviction violate[d]
due process.” Estelle, 502 U.S. at 72. Accordingly, the Petition shall be denied with
respect to ground four.
2.

Fair decision maker

In ground five, Petitioner contends that he “did not have a fair decision maker on
the bench conducting [his] trial which violated [his] 5th Amendment rights.” Petitioner’s
Brief (docket no. 35) at 7. Respondent does not address ground five on the merits, arguing
instead that this ground is unexhausted and procedurally defaulted. See Respondent’s Brief
(docket no. 45) at 21-23. Petitioner did not properly raise ground five in the Iowa courts.
Therefore, it is not properly before the court. 28 U.S.C. § 2254(b)(1)(A). However, the
court deems it appropriate to address ground five on the merits pursuant to 28 U.S.C.
§ 2254(b)(2).
10

Petitioner’s ground seven argues that he was denied a true jury trial for the same
reason. Petitioner’s Brief (docket no. 35) at 7. For discussion of that separate ground,
see infra Part V.D.
25

Petitioner argues:
It is clearly the Judge’s/decision maker’s responsibility
to prevent anything being submitted or argued at trial that
clearly could result in mistrial.
No matter who or what is responsible for compelling
jurors to believe they have no choice but to convict (when the
court records clearly state that two thirds of the jury did not
believe [Petitioner was] guilty) the decision maker is
responsible for allowing [Petitioner’s] 5th Amendment right to
have a fair and qualified decision maker. What my attorney did
or failed to do has no bearing on the fact that I did not have a
fair decision maker.
No fair decision maker, actually qualified [so as to]
allow [him or her] to be considered [to have] the ability to be
fair, would have allowed anything at my trial that could have
been used or argued as supporting a possibility to create a[n]
opportunity for mistrial let alone something so clear as not
allowing jury members the knowledge and right to find
someone not guilty.
Petitioner’s Brief (docket no. 35) at 8. In sum, Petitioner claims that he was deprived of
due process because the trial judge was biased against him.
“[T]he floor established by the Due Process Clause clearly requires a ‘fair trial in
a fair tribunal’ before a judge with no actual bias against the defendant or interest in the
outcome of his particular case.” Bracy v. Gramley, 520 U.S. 899, 904-05 (1997) (internal
citation omitted) (quoting Withrow v. Larkin, 421 U.S. 35, 46 (1975)); see also Caperton
v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 884-85 (2009) (holding that the Due Process
Clause requires recusal when “there is a serious risk of actual bias”). In Aetna Life
Insurance Co. v. Lavoie, the Supreme Court held that the trial judge’s years of difficulty
with insurance companies was “insufficient to establish any constitutional violation.”
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986). The Supreme Court stated that

26

“only in the most extreme of cases [of alleged judicial bias or prejudice] would
disqualification . . . be constitutionally required.” Id. at 821.
Petitioner’s contention that he did not have a fair decision maker is not supported
by the record. Petitioner has not asked for an evidentiary hearing or attempted to
introduce any new facts not previously discoverable. See 28 U.S.C. § 2254(e)(2).
Without any support in the record, this ground is meritless. Accordingly, the Petition shall
be denied with respect to ground five.
3.

Lesser-included offenses

In ground six, Petitioner argues that the Iowa District Court erred by “[f]ail[ing] to
include lesser offenses.” Petition (docket no. 1) at 6. Respondent does not address ground
six on the merits, arguing instead that this ground is unexhausted and procedurally
defaulted. See Respondent’s Brief (docket no. 45) at 21-23. Petitioner argued on direct
appeal and in his application for post-conviction relief that his trial counsel was ineffective
for not proposing a jury instruction on the lesser-included offense of second-degree sexual
abuse. App’x, Robinson I (docket no. 19-5) at 8; App’x, Application for Post-Conviction
Relief (docket no. 19-17) at 16. However, the court interprets ground six as arguing that
preventing the jury from considering all lesser-included offenses to first-degree kidnapping
violates the Fifth Amendment guarantee of due process. See Petition (docket no. 1) at 6.
Though Petitioner raised a somewhat similar claim on direct appeal and in his application
for post-conviction relief, he did not give the Iowa courts a “full and fair opportunity” to
consider this due process argument. Therefore, ground six is not properly before the
court. 28 U.S.C. § 2254(b)(1)(A).

Nevertheless, the court deems it appropriate to

address ground six on the merits pursuant to 28 U.S.C. § 2254(b)(2).
It appears that Petitioner is challenging on due process grounds the Iowa District
Court’s omission of an instruction on lesser-included offenses to first-degree kidnapping.
In essence, Petitioner appears to assert that the trial’s outcome was unconstitutional
27

because the jury was never given the chance to convict him of a lesser-included offense.11
But, the omission of a lesser-included offense instruction was reasonable because there is
no constitutional right to a lesser-included offense instruction in a noncapital case. Carney
v. Fabian, 487 F.3d 1094, 1097 (8th Cir. 2007) (“[T]he Supreme Court has never held
that there is a constitutional requirement that lesser-included offense instructions be given
in noncapital cases.”). Therefore, it cannot be said that the omission of an instruction for
lesser-included offenses “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d). Accordingly, the Petition shall be denied with respect to ground six.
D. Right to a Jury Trial
In ground seven, Petitioner asserts that he was denied a proper jury trial because
“all jury members were compelled to believe they would only be allowed to issue a guilty
verdict.” Petitioner’s Brief (docket no. 35) at 7. Respondent does not address ground
seven on the merits, arguing instead that this ground is unexhausted and procedurally
defaulted. See Respondent’s Brief (docket no. 45) at 21-23. Petitioner did not properly
raise ground seven in the Iowa courts. Therefore, it is not properly before the court. 28
U.S.C. § 2254(b)(1)(A). However, the court deems it appropriate to address ground seven
on the merits pursuant to 28 U.S.C. § 2254(b)(2).

11

The court’s analysis assumes that the evidence at trial was sufficient to support
one of first-degree kidnapping’s lesser-included offenses. However, the Iowa Court of
Appeals held in direct appellate proceedings and the Iowa District Court held in postconviction proceedings that the evidence could not, as a matter of law, support a
conviction for the lesser-included offense of second-degree sexual abuse, which Petitioner
claims trial counsel should have requested. See supra Part V.A.3; App’x, Robinson I
(docket no. 19-5) at 8; App’x, Application for Post-Conviction Relief (docket no. 19-17)
at 16; App’x, Robinson Post-Conviction Ruling I (docket no. 19-17) at 24-25.
28

Petitioner focuses on a newspaper article reporting on his kidnapping conviction.
In that article, two unnamed jurors were interviewed and the newspaper reported that
“[t]wo jurors who asked not to be identified said a third of the jury did not agree that the
case was a kidnapping. But they said they had no choice but to convict [Petitioner] of
kidnapping because of the court’s instructions regarding the law.” Petitioner’s Brief
(docket no. 35) at 11 (displaying a photocopy of the article). This article, Petitioner
claims, reveals that the jurors were compelled “to believe they ha[d] no choice but to
convict.” Id. at 8.
The court finds that the Petitioner has not met the burden of rebutting the state court
record “by clear and convincing evidence that but for constitutional error, no reasonable
factfinder would have found [Petitioner] guilty.” 28 U.S.C. § 2254(e)(2)(B). The court
cannot say that Petitioner’s version of events, alleging that the jury was “compelled” to
vote guilty, is more probable than the state’s version, which alleges that the jurors’
colloquial understanding of kidnapping did not match the legal definition as provided in
the jury instructions. See Petitioner’s Brief (docket no. 35) at 7-8, 10-11; Respondent’s
Brief (docket no. 45) at 18-19. Petitioner certainly has not proved his version by “clear
and convincing evidence.” See 28 U.S.C. § 2254(e)(2)(B); Smulls v. Roper, 535 F.3d
853, 861 (8th Cir. 2008) (“[U]nless the petitioner can rebut the findings of fact through
clear and convincing evidence, those findings of fact are presumed to be correct.” (quoting
Valdez v. Cockrell, 274 F.3d 941, 949 (5th Cir. 2001) (internal quotation marks
omitted))). Nothing currently in the record supports Petitioner’s allegation of juror
compulsion. Accordingly, the Petition shall be denied with respect to ground seven.
E. Cruel and Unusual Punishment
Finally, in ground eight, Petitioner argues that his Eighth Amendment rights were
violated “[w]hen [he] was sent to prison by the illegally obtained guilty verdict.”
Petitioner’s Brief (docket no. 35) at 7. Respondent does not address ground eight on the
29

merits, arguing instead that this ground is unexhausted and procedurally defaulted. See
Respondent’s Brief (docket no. 45) at 21-23. Petitioner did not properly raise ground eight
in the Iowa courts.

Therefore, it is not properly before the court.

28 U.S.C.

§ 2254(b)(1)(A). However, the court deems it appropriate to reach ground eight on the
merits pursuant to 28 U.S.C. § 2254(b)(2).
Petitioner alleges that his Eighth Amendment rights were violated because he was
improperly convicted. “The Cruel and Unusual Punishments Clause was designed to
protect those convicted of crimes . . . , and consequently the Clause applies only after the
State has complied with the constitutional guarantees traditionally associated with criminal
prosecutions.” Whitley v. Albers, 475 U.S. 312, 318 (1986) (quoting Ingraham v. Wright,
430 U.S. 651, 664, 671 n.40 (1977)) (internal quotation marks omitted).

“After

incarceration, only the unnecessary and wanton infliction of pain . . . constitutes cruel and
unusual punishment forbidden by the Eighth Amendment.” Id. at 319 (quoting Ingraham,
430 U.S. at 670) (internal quotation marks omitted). Petitioner’s assertions do not
implicate this concern.

Rather, it appears Petitioner challenges “the constitutional

guarantees traditionally associated with criminal prosecutions” in his statement that he
“was sent to prison by the illegally obtained guilty verdict.” Id. at 318 (quoting Ingraham,
430 U.S. at 671 n.40); see also Petitioner’s Brief (docket no. 35) at 7. Thus, Petitioner
does not present a cognizable Eighth Amendment claim. Accordingly, the Petition shall
be denied with respect to ground eight.
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
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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);
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 grounds that he
raised. 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.

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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 neither “resulted in a decision that was
contrary to, [n]or involved an unreasonable application of, clearly established [f]ederal
law.” 28 U.S.C. § 2254(d)(1). And, no adjudication “resulted 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)(2). In light of the foregoing, Petitioner Michael Ray Robinson’s
“Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State
Custody” (docket no. 1) is DENIED. The Clerk of Court is DIRECTED to enter
judgment in favor of Respondent Nick Ludwick and against Petitioner Michael Ray
Robinson. Additionally, a certificate of appealability is DENIED.
IT IS SO ORDERED.
DATED this 16th day of April, 2015.

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