Vasquez Arroyo (ID 83932) v. Pryor et al

Filing 18

MEMORANDUM AND ORDER ENTERED: The consolidated petition for habeas corpus is denied. Petitioner's motions for orders 11 , 12 , 13 , 14 & 15 are denied. Signed by U.S. Senior District Judge Sam A. Crow on 09/05/17. Mailed to pro se party Martin Vasquez Arroyo by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MARTIN VASQUEZ ARROYO,
Petitioner,
v.

CASE NO. 15-3234-SAC

REX PRYOR,
Respondent.

MEMORANDUM AND ORDER
This matter is a consolidated action arising from three habeas
corpus petitions filed under 28 U.S.C. § 2254 by the petitioner.
By its order entered on September 29, 2016, the Court dismissed
petitioner’s claims of actual innocence and directed him to file an
amended petition that contained only claims that had been exhausted
by presentation to the highest state court (Doc. #8). The matter is
now before the Court on the amended petition (Doc. #9), two supplements
to the petition (Docs. #10 and #16), and five motions for court orders
(Docs. #11, #12, #13, #14, and #15).
Background
Petitioner was convicted of three counts of first-degree murder,
one count of aggravated robbery, one count of felony theft, and two
counts of misdemeanor theft. State v. Vasquez, 194 P.3d 563 (Kan.
2008).
He sought relief both by a direct appeal, id., and in an action
filed under K.S.A. 60-1507. Vasquez v. State, 331 P.3d 833 (Table),
2014 WL 4080025 (Aug. 15, 2014), rev. denied, July 21, 2015.
The case against petitioner was circumstantial but compelling.
The Kansas Supreme Court summarized the case as follows:

On December 12, 1998, the bodies of Vasquez’ wife Robin;
Robin’s father, Howard Franks; and Tom Dinkel were
discovered in Robin’s home in Kinsley, Kansas. Each victim
had been incapacitated by blows or gunshots, then executed
by means of a final gunshot. Investigators recovered 9 mm
bullet casings at the scene, and 9 mm bullets were recovered
from the bodies. ‘Robin I Love You’ was written on a wall
at the scene. Although Dinkel’s truck had been parked in
the driveway in front of Robin’s house the night before,
it was no longer there the morning the bodies were found.
Mike Sebes, who had employed Vasquez, discovered that his
9 mm Firestar handgun was gone when he looked for it on
December 14.
Dinkel’s truck was found in Juarez, Mexico, in late December
1998. Dinkel’s wallet was discovered along Highway 183
south of Kinsley in February 1999. Sebes’ 9 mm Firestar was
found in El Paso, Texas, in late December 2002.
[…]
Vasquez was arrested in Mexico on September 3, 2003; gave
statements to police; and made his first appearance before
the district court on October 19, 2004.
[…]
At trial, the State’s evidence covered the following
additional information:
Vasquez and Robin were married in 1996, and their union
swiftly deteriorated. Vasquez drank to excess; by mid-1998,
Robin was seeking a divorce.
Vasquez worked for Mike and Ron Sebes in their Kinsley
farming operation during the summer of 1998. In
mid-October, Vasquez left Kansas for several months to
harvest crops on his own land in Mexico. While in Mexico,
Vasquez contacted Robin, who told him she did not want him
to return.
Vasquez nevertheless returned to Kinsley in the first
of December 1998. Robin had moved his belongings to the
of Vasquez’ sister, Maria, who lived across the street
Robin; and Vasquez stayed at Maria’s after his return
Mexico.

week
home
from
from

Robin had begun seeing Dinkel, and Vasquez became aware of
this fact. According to Vasquez’ friend, Nathan Bartley,
Vasquez was upset by his wife’s relationship with Dinkel
and ‘wanted to kick Dinkel’s ass.’
Around December 5, 1998, Vasquez attempted to borrow a gun
from Bartley for the stated purpose of going hunting,
although Bartley had never know Vasquez to hunt. Vasquez
asked Bartley to take him to the store for ammunition. When
Bartley was unable to do so, Vasquez went to the store with
his sister and purchased 9 mm bullets.
On December 11, 1998, Robin told Police Officer Curtis
William Starks that Vasquez was back in Kinsley. When Starks
asked Robin if she was frightened, she said that she was
not afraid of Vasquez unless he had been drinking. She said
there had been a shotgun in her house, which she had taken
to Dinkel. Dinkel had locked the shotgun in a safe in his
shop so that it was not in her house while Vasquez was in
town. Robin also told Starks that she had sought a
restraining order against Vasquez and would file a petition
for a protection from abuse (PFA) order on the following
Monday.
Later in the afternoon on December 11, Starks was called
to Dinkel’s shop, where Dinkel and Robin gave him a
handwritten letter from defendant that had been left on the
doorstep. The letter said that Vasquez did not want to ‘beat
anyone’ and that he wished Dinkel would stay away so that
Vasquez and Robin could work out their problems. Dinkel and
Robin also gave Starks the shotgun and a Smith & Wesson .357
handgun. Robin told Starks that Vazquez had brought the
handgun into their home several months earlier and would
not tell her where he had gotten it. The shotgun belonged
to Ron Sebes, who had also kept a Smith and Wesson .357 in
his pickup truck until September 1998, when he reported it
stolen.
Still later the same afternoon, Starks spoke to Vasquez.
Starks told Vasquez that the police had the shotgun, and
that Vasquez was not permitted to possess a firearm because
of an earlier domestic battery case and because of his
immigration status. Starks told Vasquez that the police
were going to get the Immigration and Naturalization
Service (INS) ‘involved.’ He also told Vasquez that Robin
had a restraining order against him; that she was filing
for divorce; that she was happy with Dinkel; and that
Vasquez needed to leave her alone.

Late the evening of December 11, Vasquez told his sister
that he needed to ‘talk to Robin.’ He gave his sister a hug,
which he did not normally do, and walked from her house to
Robin’s. He did not come back that night, and the bodies
of Robin, Franks, and Dinkel were found the next morning.
[…]
Mike Sebes, who had reported that his 9 mm Firestar was
missing when he look for it after learning of the murders,
testified that, in the first few days of December, Vasquez
had called him looking for work. After completing a day-long
job, Vasquez borrowed Mike’s truck. At the time, Vasquez
was aware that Mike kept the gun behind the seat in the
truck.
Police recovered a box of 9 mm ammunition from Vasquez’
sister’s house; eight rounds were missing from it.
Over a defense objection, the State also introduced
evidence that on July 17 or 18, 1998, the police had
responded to a hang-up 911 call from the Vasquez home.
According to responding officers Stark and Tammy Gross,
Robin told them that Vasquez, who had been drinking, shoved
her, threw her around, and bit her hard…. The police
arrested Vasquez for domestic battery and disorderly
conduct….
Several of Robin’s close friends testified to remarks Robin
had made about her turbulent relationship with Vasquez.
Defendant made a continuing hearsay objection to this
testimony.
[A co-worker] testified about a letter from Vasquez that
Robin had shown her. In the letter, Vasquez stated that he
did not want Robin to divorce him and that life would not
be worth living if he was not married to her. [The witness]
also testified that, at work on December 11, 1998, Robin
received a phone call from Vasquez, who wanted her to meet
him. Robin suggested a public meeting place. [The witness]
testified that, although she did not hear Vasquez’ side of
the conversation, she heard Robin tell him, “This isn’t
Mexico, and you cannot get a gun and shoot people.” After
the call, Robin repeated to [the witness] what she had told
Vasquez.
Robin’s friend and [another] former co-worker [] testified
that she talked to Robin on December 11, 1998, and Robin
mentioned that defendant was back in town. [The witness]
asked Robin if Vasquez knew about Dinkel. Robin said yes

and said that Vasquez had said he “‘was going to shoot
[Dinkel] in the head.’”
State v. Vasquez, 194 P.3d 563, 568-572 (Kan. 2008).
Discussion
The amended and supplemental petitions assert claims of actual
innocence and advance several theories concerning who else could have
committed the crimes of which petitioner was convicted.
Petitioner did not present that specific claim to the state
courts, but he sought relief in the state courts on the grounds that
he received ineffective assistance from his trial defense counsel due
to his failure to investigate certain evidence and from his
post-conviction counsel for failure to adequately challenge defense
counsel’s performance.
Petitioner asserted for the first time at a Van Cleave hearing1
that his trial defense counsel failed to introduce evidence related
to unidentified fingerprints from the crime scene and Dinkel’s truck,
and to unidentified shoe prints at the crime scene. He testified that
he discovered the documents related to this evidence in his case file.
At the post-conviction hearing, the prosecutor testified that
to the best of his knowledge, all fingerprint evidence was tested and
turned over to petitioner’s defense counsel. The trial court, however,
recalled that a few days before trial was to begin, defense counsel
advised the court that a private investigator hired by the defense
had not completed all assigned work. Counsel advised petitioner of
that failure, but after discussion, they agreed that some of the tasks
were not of significance and others could be performed by counsel.

1

See State v. Van Cleave, 716 P.2d 580 (Kan. 1986)(where appellate counsel in a
criminal matter seeks to present a claim of ineffective assistance of counsel and
the issue has not been presented to the trial court, the defendant may request remand
of the case to the trial court for a determination of the claim).

The court recalled that under direct questioning, petitioner chose
to proceed to trial despite the state of the investigator’s work.
Vasquez, 331 P.3d 833(Table), 2014 WL 4080025 *6.
The trial court found that defense counsel had advised petitioner
of the status of the pretrial investigation, that petitioner’s claims
were speculative, that there was no showing that counsel had failed
to develop facts upon which a trial strategy could be based, and that
petitioner had failed to show that any errors by counsel had prejudiced
the defense case or undermined the fairness of the proceedings. Id.
The Kansas Court of Appeals affirmed the denial of relief.
Likewise, the Kansas courts determined that petitioner’s
post-conviction counsel provided effective assistance.
Post-conviction counsel argued that defense counsel was deficient due
to the inadequate investigation but did not call counsel to testify
because petitioner had elected to proceed to trial rather than seek
a continuance to allow the completion of work assigned to the
investigator. The Kansas Court of Appeals found that neither the
performance of petitioner’s defense counsel nor that of his
post-conviction counsel had resulted in the loss of any meritorious
claim or had resulted in prejudice.
Petitioner now claims the murders were actually committed by Mark
Frame, the Edwards County Attorney who assisted in his prosecution;
and Curtis Starks, a Kinsley police officer. He also claims that
Rodolfo Aranda and Marcos Salgado2 should be investigated. However,

2

Information submitted by the petitioner includes a report that states that Michael
Sebes’ Fire Star 9mm handgun was found in El Paso, Texas in 2002 after two
individuals, Aranda and Salgado, were captured there following a robbery. The
National Crime Information Center (NCIC) later identified the gun as the murder
weapon in the killings of Robin Vasquez, Thomas Dinkel, and Howard Franks. However,
at the time it was recovered in Texas, the gun was considered a “street gun” which
could not be linked to an owner. See Doc. #11, pp. 5-6 and 13.

petitioner must support his claims of actual innocence “with new
reliable evidence – whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence -that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324
(1995).
“[A]ctual innocence, if proved, serves as a gateway through which
a petitioner may pass whether the impediment is a procedural bar …
or … expiration of the statute of limitations.” McQuiggin v. Perkins,
___ U.S. ___, 133 S.Ct. 1924, 1928 (2013). Such new evidence “must
be sufficient to show that it is more likely than not that no reasonable
juror would have convicted the petitioner in the light of the new
evidence.” Frost v. Pryor, 749 F.3d 1212, 1231-32 (10th Cir.
2014)(internal citations and quotation marks omitted).
Finally, “[c]laims of actual innocence based on newly discovered
evidence have never been held to state a ground for federal habeas
relief absent an independent constitutional violation occurring in
the underlying state criminal proceeding.” Herrera v. Collins, 506
U.S. 390, 400 (1993); accord Isbil v. Workman, 62 Fed.Appx. 863, 864-65
(10th Cir. 2003)(stating claim of actual innocence without allegation
of independent constitutional violation in criminal case did not state
a claim for habeas corpus relief under Herrera).
The Court has studied the record and concludes petitioner’s
claims of actual innocence do not entitle him to relief. Petitioner’s
claims are speculative and fail to establish any ground on which a
reasonable jury could find him innocent. The circumstantial evidence
presented at trial showed that petitioner had the motive to commit
the crimes, had spoken of his desire to injure Dinkel, had sought a
firearm, had purchased ammunition, and had left his sister’s home on

the night of the murders saying that he needed to talk to Robin. After
the murders, Dinkel’s truck was found in Mexico, the murder weapon
was found in El Paso, Texas, and Dinkel’s wallet was found in a ditch
on the highway outside Kinsley. Petitioner was extradited from Mexico.
Petitioner’s bare claims that another person or persons committed the
crimes are entirely unsupported, and the amended petition does not
identify a constitutional violation that might support relief.
IT IS, THEREFORE, BY THE COURT ORDERED the consolidated petition
for habeas corpus is denied.
IT IS FURTHER ORDERED petitioner’s motions for order (Docs. #11,
#12, #13, #14, and #15) are denied.
IT IS SO ORDERED.
DATED:

This 5th day of September, 2017, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge