Ramirez-Flores v. Houston

Filing 16

MEMORANDUM AND ORDER - Petitioner's Petition for Writ of Habeas Corpus 1 is dismissed with prejudice. A separate judgment will be entered in accordance with this Memorandum and Order. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed to pro se party)(JAE)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA JO S E ESTEFAN RAMIREZFLORES, Petitioner, v. R O B E R T HOUSTON, Respondent. ) ) ) ) ) ) ) ) ) ) 4 :0 8 C V 3 2 2 9

M EM OR A N D U M AND ORDER

T h is matter is before the court on Petitioner Jose Ramirez-Flores' ("RamirezF lo res") Petition for Writ of Habeas Corpus ("Petition"). (Filing No. 1.) Respondent filed an Answer (filing no. 8), State Court Records (filing no. 9), and Brief on the m erits of the Petition (filing no. 12). Ramirez-Flores filed a Brief on the merits of the P etitio n . (Filing No. 15.) This matter is therefore fully submitted. I. BACKGROUND T h e pertinent factual background is set forth in State v. Ramirez-Flores, No. A0 6 -1 2 5 0 , 2008 WL 2231118 (Neb. Ct. App. May 20, 2008),1 and the court summarizes th e facts relevant to this matter here. On June 27, 2002, the State of Nebraska ("State") ch arg ed Ramirez-Flores with first degree sexual assault and first degree assault.2 Id . at *1. On July 15, 2003, a jury found Ramirez-Flores guilty of first degree sexual assau lt and third degree assault. Id. He was sentenced to 25 to 30 years' imprisonment

Respondent filed a copy of this unpublished opinion with the State Court Records in this matter. (Filing No. 9-2, Attach. 1.) Ramirez-Flores was also charged with obstructing a peace officer. The charge was later dismissed by the State and is not at issue in this case. (Filing No. 9-13, Attach. 12, at CM/ECF pp. 64-65.)
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o n the former conviction and one year's imprisonment on the latter, with credit for 523 d ays served.3 (Filing No. 9 -1 6 , Attach. 15, at CM/ECF p. 5.) Through counsel, Ramirez-Flores filed an unverified motion for post-conviction relief. Ramirez-Flores, 2008 WL 2231118 at *1. Ramirez-Flores then filed an am en d ed motion that was verified, but refused to sign it. Id. The court elected to p ro ceed on a verified motion for postconviction relief previously filed on October 12, 2 0 0 4 , in his criminal case (the "Post Conviction Motion"). Id. The Post Conviction M o tio n alleged the following violations of Ramirez-Flores' right to effective assistance o f counsel: (1) counsel failed to adequately communicate to him a plea offer, thus d en yin g him the benefit of that offer; (2) counsel was ineffective in failin g to object to a jury instruction on voluntary intoxication; and (3) c o u n s el elicited highly prejudicial testimony from the victim which p r o v id e d direct evidence of the charged crime of first degree sexual a s s a u lt. Id . An evidentiary hearing was held on the Post Conviction Motion on June 6, 2006, an d both Ramirez-Flores and his trial counsel testified. (Filing No. 9-8, Attach. 7, at C M /E C F pp. 19-46.) On September 15, 2006, the district court overruled RamirezF lo res' Post Conviction Motion. Id. In a detailed memorandum opinion, the Nebraska C o u rt of Appeals affirmed the district court's denial of post-conviction relief, and the N eb rask a Supreme Court denied Ramirez-Flores' petition for further review on S ep tem b er 24, 2008. (Filing No. 9-2, Attach. 1; Filing No. 9-3, Attach. 2, at CM/ECF p . 2.)

The Nebraska Court of Appeals reported Ramirez-Flores was sentenced to 2535 years' imprisonment for the first degree sexual assault charge (see Ramirez-Flores, 2008 WL 2231118 at *1); however, according to the State Court Records, RamirezFlores' received only 25 to 30 years' imprisonment for the conviction. (Filing No. 9-16, Attach. 15, at CM/ECF p. 5.)
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O n November 17, 2008, Ramirez-Flores filed his Petition in this court. (Filing N o . 1.) Condensed and summarized, Ramirez-Flores claims his conviction was o b ta in e d in violation of his Sixth Amendment right to counsel. In particular, RamirezF lo res claims that his trial counsel was ineffective because he cross-examined the "v ictim -w itn ess until she testified that she had been sexually penetrated," and p resen ted a defense "totally incongruent" with Petitioner's chosen defense. (Filing No. 7 at CM/ECF p. 1.) W h e r e necessary, further facts are provided below. With that in mind, the court tu rn s to the merits of Ramirez-Flores' claims. II. ANALYSIS A. S ta n d a r d of Review W h en a state court has adjudicated a habeas petitioner's claim on the merits, th ere is a very limited and extremely deferential standard of review both as to the facts a n d the law. See 28 U.S.C. § 2254(d). With regard to the deference owed to factual fin d in g s of a state court's decision, a federal court is bound by those findings unless th e state court made a "decision that was based on an unreasonable determination of th e facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Additionally, a federal court must presume that a factual determination m ad e by the state court is correct, unless the petitioner "rebut[s] the presumption of c o r re ctn e s s by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Further, section 2254(d)(1) states that a federal court may not grant a writ of h a b e a s corpus unless the state court's decision "was contrary to, or involved an u n reaso n ab le application of, clearly established Federal law, as determined by the S u p r em e Court of the United States." 28 U.S.C. § 2254(d)(1). As explained by the S u p rem e Court in Williams v. Taylor, 529 U.S. 362 (2000), a state court acts contrary
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to clearly established federal law if it applies a legal rule that contradicts the Supreme C o u r t's prior holdings or if it reaches a different result from one of that Court's cases d esp ite confronting indistinguishable facts. Id. at 399. Further, "it is not enough for [ th e court] to conclude that, in [its] independent judgment, [it] would have applied f ed e r al law differently from the state court; the state court's application must have been o b je ctiv e ly unreasonable." Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006). This h ig h degree of deference only applies where a claim has been adjudicated on the merits b y the state court. See Brown v. Luebbers, 371 F.3d 458, 460-61 (8th Cir. 2004) ("[A ]s the language of the statute makes clear, there is a condition precedent that must b e satisfied before we can apply the deferential AEDPA standard to [the petitioner's] claim . The claim must have been `adjudicated on the merits' in state court."). B. R a m irez-F lo res' Claim R a m i r e z - F lo r e s argues only one claim, that his trial counsel was ineffective. (F ilin g No. 7 at CM/ECF p. 1.) A claim of ineffective assistance of counsel is r ev ie w e d under the two-pronged standard of Strickland v. Washington, 466 U.S. 668, 6 9 4 (1984). 1. T h e Strickland Standard

S trickla n d requires that the petitioner demonstrate both that his counsel's p erfo rm an ce was deficient, and that such deficient performance prejudiced the p etitio n er's defense. Id. at 687; see also Bryson v. United States, 268 F.3d 560 (8th C ir. 2001); Williamson v. Jones, 936 F.2d 1000, 1004 (8th Cir. 1991). T h e first prong of the Strickland test requires the petitioner to demonstrate that h is attorney failed to provide reasonably effective assistance. Strickland, 466 U.S. at 6 8 7 -8 8 . In conducting such a review the courts "indulge a strong presumption that co u n sel's conduct falls within the wide range of reasonable professional assistance." Id . at 689. The second prong requires the petitioner to demonstrate "a reasonable

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p ro b ab ility that but for counsel's unprofessional errors, the result of the proceeding w o u ld have been different." Id. at 694; see also Hubbeling v. United States, 288 F.3d 3 6 3 , 365 (8th Cir. 2002). A court need not address the reasonableness of the attorney's s k ills and diligence if the movant cannot prove prejudice under the second prong of th is test. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (quoting Cheek v. U n ite d States, 858 F.2d 1330, 1336 (8th Cir. 1988)). Further, as set forth in S trickla n d , counsel's "strategic choices made after thorough investigation are virtually u n ch allen g eab le" in a later habeas corpus action. 466 U.S. at 689. Additionally, the Supreme Court has very recently emphasized that the d eferen ce due the state courts applies with vigor to decisions involving ineffective assistan ce of counsel claims. Knowles v. Mirzayance, 129 S. Ct. 1411, 1418-20 (2009) ( r e v e r s in g the Ninth Circuit Court of Appeals and holding that the decision of the C a lif o r n ia Court of Appeals, that the defendant was not deprived of effective assistance o f counsel when his attorney recommended withdrawing his insanity defense during seco n d phase of trial, was not contrary to or an unreasonable application of clearly estab lish ed federal law; also concluding, among other things, that there was no reaso n ab le probability that, but for counsel's alleged unprofessional error, the result o f the proceeding would have been different). In Knowles, the Justices stressed that under the Strickland standard, the state c o u r ts have a great deal of "latitude" and that "leeway" presents a "substantially higher th resh o ld " for a federal habeas petitioner to overcome. Thus: T h e question "is not whether a federal court believes the state court's d e te rm in a tio n " under the Strickland standard "was incorrect but whether th at determination was unreasonable-a substantially higher threshold." S ch riro , supra, at 473, 127 S. Ct. 1933. And, because the Strickland stan d ard is a general standard, a state court has even more latitude to r ea so n a b ly determine that a defendant has not satisfied that standard. See Y a rb o ro u g h v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 9 3 8 (2004) ("[E]valuating whether a rule application was unreasonable req u ires considering the rule's specificity. The more general the rule, the
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m o re leeway courts have in reaching outcomes in case-by-case d e t e r m in a tio n s " ) . Id . at 1420. 2. R a m irez-F lo res' Claim

R a m ir ez -F lo r e s claims that his trial counsel, Arthur C. Toogood ("Toogood"), w as ineffective because Toogood cross-examined the "victim-witness until she testified that she had been sexually penetrated," and presented a defense "totally in co n g ru en t" with Ramirez-Flores' chosen defense. (Filing No. 7 at CM/ECF p. 1.) R a m ir ez -F lo r e s' arguments were addressed by the Adams County, Nebraska District C o u rt in its order regarding Ramirez-Flores' Post Conviction Motion, and by the N eb ra sk a Court of Appeals in its memorandum opinion affirming the district court's d en ial of post-conviction relief. (Filing No. 9-7, Attach. 6, at CM/ECF pp. 13-20; R a m ir ez -F lo r e s, 2008 WL 2231118 at *1-8.) T h e Adams County District Court held an evidentiary hearing on the Post C o n v ictio n Motion. At that hearing, the Adams County District Court heard the testim o n y of Ramirez-Flores and Toogood, and found that: [The] claims of ineffective assistance of counsel are strategic or tactical ju d g m e n ts that counsel made during the trial. . . . A trial court has an o b lig a tio n to give an instruction it feels is warranted by the evidence even if not requested by counsel. Ramirez-Flores had testified to consuming 1 4 beers the night of the sexual assault. Toogood made the decision not to object to the [intoxication jury] instruction because he felt the record in the case supported the giving of the instruction. As also related above, T o o g o o d felt that he needed to cross-examine the victim in this case b ecau se of what he felt was damaging testimony that already existed in th e record. There was substantial evidence adduced by the state at that p o in t that a sexual assault had been committed by Ramirez-Flores. Both o f these decisions clearly involve trial strategy and the case law in this state is well-settled that it is not the job of this Court or appellate courts
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to second-guess reasonable strategic decisions made by counsel during tr ia l. ( F ilin g No. 9-7, Attach. 6, at CM/ECF p. 18.) The Adams County District Court w e ig h e d all of the evidence and determined that, "[e]ven if the Court second-guessed trial counsel's decision to cross-examine the victim as he did, the Court would c o n c lu d e that no prejudice resulted to the defendant because there was substantial other e v id e n c e in the record supporting [Ramirez-Flores'] conviction for First Degree Sexual A s sa u lt." (Id. at CM/ECF p. 19.) T h e claims relating to Toogood's effectiveness were also rejected by the N eb ra sk a Court of Appeals in its memorandum opinion affirming the district court's d en ial of post-conviction relief. In addressing Ramirez-Flores' argument that Toogood cro ss-ex am in ed the victim until she testified that she had been sexually penetrated, the co u rt found that: S in ce previously admitted evidence had provided a basis for the jury to co n clu d e that penetration had occurred, Ramirez-Flores cannot establish th at, had trial counsel not engaged in the alleged prejudicial crossex am in atio n of the victim, there was a reasonable probability the result o f the proceeding would have been different. R a m ir ez -F lo r e s, 2008 WL 2231118 at *5. With regard to Ramirez-Flores' claim that T o o g o o d presented a defense totally incongruent with Ramirez-Flores' chosen defense, th e court found Toogood "formulated a trial strategy which he felt was most ad v an tag eo u s" based on the information provided to him by Ramirez-Flores. Id. at *8. A d d itio n a lly , the court stated it affords "counsel due deference to formulate trial strateg y and tactics" and "will not second-guess reasonable strategic decisions by c o u n s el." Id. Respondent argues that the foregoing findings of fact and conclusions of law are en titled to deference under the statutory standard of review that applies to factual and leg al conclusions reached by the state courts. (Filing No. 12 at CM/ECF p. 17.)
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In d eed , as set forth above, the court must grant substantial deference to the Nebraska state court decisions. The court has carefully reviewed the record in this matter and f in d s that the Nebraska state court decisions on Ramirez-Flores' ineffective assistance o f counsel claim is not "based on an unreasonable determination of the facts in light o f the evidence presented in the State court proceedings." 28 U.S.C. § 2254(d)(2). R am irez- F lo r e s has not submitted any evidence, let alone clear and convincing e v id e n c e , that the Adams County District Court or the Nebraska Court of Appeals was in co rrect in any of its factual determinations. 28 U.S.C. § 2254(e)(1). The grant of a w rit of habeas corpus is not warranted here because the Nebraska state courts correctly ap p lied Strickland and other Supreme Court holdings. In light of these findings, R am irez-F lo res' claim is dismissed. IT IS THEREFORE ORDERED that: 1. P etitio n er's Petition for Writ of Habeas Corpus (filing no. 1) is dismissed

w ith prejudice. 2. A separate judgment will be entered in accordance with this

M e m o r a n d u m and Order. Ju ly 24, 2009. B Y THE COURT:

s/ Joseph F. Bataillon Chief United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web sites. The court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to some other site does not affect the opinion of the court.
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