Romero-Hernandez v. Mercado-Quinonez et al

Filing 57

OPINION AND ORDER re 24 Motion to Dismiss for Failure to State a Claim; and re 52 Report and Recommendation. The Court modifies in part and rejects in part the magistrate judge's R & R, (Docket No. 52). The Court GRANTS respondents' m otion to dismiss, (Docket No. 24). Romero's exhausted claim of ineffective assistance of counsel based on the failure to put an alleged exculpatory witness on the stand is DISMISSED WITH PREJUDICE. Romero's remaining unexhausted claims, i ncluding the ineffective assistance of counsel claim based on the alleged "unfulfilled promise to the jury," are DISMISSED WITHOUT PREJUDICE. Judgment shall be entered accordingly. Signed by Judge Francisco A. Besosa on 03/13/2015. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JUAN ROMERO-HERNANDEZ,
Petitioner,
v.

CIVIL NO. 13-1724 (FAB)

NELSON MERCADO-QUIÑONEZ, et al.,
Respondents.

OPINION AND ORDER
BESOSA, District Judge.
Before the Court is Juan Romero Hernandez’s (“Romero’s”)
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(Docket No. 2.)

Nelson Mercado-Quiñonez, Jose Negron-Fernandez,

and Luis Sanchez-Betances (“respondents”) moved to dismiss the
petition, arguing that Romero failed to exhaust the available state
court remedies on some claims and that Romero’s petition otherwise
fails to state a claim upon which relief can be granted.
No. 24.)

(Docket

Romero opposed the motion to dismiss, (Docket No. 33),

and voluntarily dismissed his unexhausted claims, leaving only his
“ineffective assistance of counsel claim, for failure to put an
exculpatory witness on the witness stand,” (Docket No. 51 at pp. 12).
The matter was referred to Magistrate Judge Camille VelezRive, (Docket Nos. 6-7), who issued a Report and Recommendation (“R
& R”) recommending that respondents’ motion to dismiss be granted
as to the exhausted ineffective assistance of counsel claim,

Civil No. 13-1724 (FAB)
(Docket No. 52).

2

Petitioner Romero objects to the R & R, arguing

that his ineffective assistance of counsel claim based on his trial
counsel’s failure to put an exculpatory witness on the stand in
light of counsel’s promise to do so in opening statements should
survive dismissal.

(Docket No. 53.)

As discussed below, the Court modifies in part and rejects in
part the magistrate judge’s R & R, (Docket No. 52).

After

conducting a slightly different legal analysis, the Court agrees
with the magistrate judge’s recommendation to grant the motion to
dismiss as to Romero’s exhausted ineffective assistance of counsel
claim based on the failure to put an alleged exculpatory witness on
the witness stand.

The Court concludes that Romero’s ineffective

assistance of counsel claim based on an unfulfilled promise to the
jury, however, was not exhausted in state court.
Accordingly, respondents’ motion to dismiss, (Docket No. 24),
is GRANTED.
PREJUDICE,

Petitioner Romero’s exhausted claim is DISMISSED WITH
and

his

unexhausted

claims

are

DISMISSED

WITHOUT

PREJUDICE.
I.

BACKGROUND

On April 26, 2006, the Puerto Rico Court of First Instance,
Utuado Division (“Utuado trial court”), sentenced Romero to 153
years in prison after a jury found him guilty of first degree
murder, burglary, conspiracy, motor vehicle theft, and violations
of firearm statutes.

(Docket No. 2-1 at pp. 1-2.)

The Puerto Rico

Civil No. 13-1724 (FAB)

3

Court of Appeals affirmed Romero’s convictions and sentences, and
the

Puerto

certiorari.

Rico

Supreme

Court

denied

Romero’s

petition

for

Id. at p. 2.

On April 21, 2009, Romero moved for a new trial pursuant to
Puerto Rico Criminal Procedure Rule 192.1 (“Rule 192.1”), P.R. Laws
Ann. Tit. 34, App. II, R. 192.1.1
Romero

alleged

theories,

ineffective

primarily

(Docket No. 2-1 at p. 2.)

assistance

arguing

that

his

of

counsel

trial

on

counsel,

several
Miguel

Rodriguez-Cartagena (“Rodriguez”), neglected to call an exculpatory
witness, Victor Quiñones-Ruiz (“Quiñones”), to testify at trial.
(Docket No. 49 at pp. 6-9.)

Romero attached a sworn statement by

Quiñones to his Rule 192.1 motion in which Quiñones states that he
pled guilty to the crimes for which Romero was convicted and that
he knew that Romero was innocent.
1 at pp. 3-4.)

(Docket Nos. 28-3 at pp. 2-3; 2-

The Utuado trial court limited its Rule 192.1

inquiry to deciding whether attorney Rodriguez’s decision to not
call Quiñones to testify at trial violated Romero’s right to
effective assistance of counsel.

(Docket No. 28-3 at pp. 8-9.)

The Utuado trial court held a three-day evidentiary hearing
for Romero’s Rule 192.1 motion.

1

(Docket No. 28-3 at p. 3.)

At the

In Puerto Rico, a petitioner seeking relief pursuant to 28 U.S.C.
§ 2254 “must complete at least one full round of post-conviction
relief by pursuing the remedy provided by Rule 192.1 all the way to
the
Puerto
Rico
Supreme
Court.”
Martinez-Gonzalez
v.
Rodriguez-Madera, Civ. No. 13-1005 (SEC), 2013 WL 625312, at *2
(D.P.R. Feb. 20, 2013) (internal citations omitted).

Civil No. 13-1724 (FAB)

4

hearing, Romero testified that he was innocent of the crimes for
which he was convicted and that Quiñones would have testified to
that at trial had attorney Rodriguez called him to the stand.

Id.

at p. 4. Attorney Rodriguez also testified at the hearing, stating
that he had interviewed Quiñones before trial, for three hours, and
determined that Quiñones’ testimony would not have been favorable
to Romero.

Id. at p. 6.

Specifically, Rodriguez testified that

Quiñones told him that Romero took part in the crime by handing
Quiñones the piece of wood with which Quiñones committed the
murder.

Id. at pp. 6-7; Docket No. 40-2 at p. 119.

Rodriguez

indicated that he told Romero this information, but that Romero
still insisted on Quiñones being called to testify, so Rodriguez
announced Quiñones as a witness.

(Docket No. 40-2 at pp. 127-28.)

On the day of trial, Quiñones wavered in testifying and did not
wish to take the stand, according to Rodriguez.
at p. 7.)

(Docket No. 28-3

Rodriguez declined to call Quiñones and instead placed

him at the disposal of the prosecution so that, if the prosecution
chose to call him, Rodriguez could cross-examine him.
No. 40-2 at p. 174.)
Quiñones.

Id.

(Docket

The prosecution, however, did not call

The Utuado trial court determined that it was not

necessary to hear Quiñones during the Rule 192.1 evidentiary
hearing because the testimony of attorney Rodriguez and Romero was
sufficient.

Id. at p. 8.

Civil No. 13-1724 (FAB)

5

The Utuado trial court ultimately credited the testimony of
attorney Rodriguez over Romero’s testimony.
pp. 24-25.)

(Docket No. 28-3 at

It also examined the record and noted that at Romero’s

trial, in open court and in the presence of Romero, counsel for
Romero’s co-defendant waived the presentation of Quiñones as a
witness, informing the court that Quiñones’ testimony “was not
directed to establish[ing] that [Romero and his co-defendant] were
not at the scene.”

Id.

The Utuado trial court accordingly found

that Quiñones’ testimony at trial would not have constituted
exculpatory evidence.
Utuado

trial

court

Id.

Accordingly, on December 3, 2010, the

determined

that

Romero

did

not

receive

ineffective assistance of counsel and denied his Rule 192.1 motion
for a new trial on that ground.

Id.

The Puerto Rico Court of

Appeals affirmed on May 17, 2012, issuing a thorough and wellreasoned opinion.

(Docket No. 28-3.)

The Puerto Rico Supreme

Court denied Romero’s request for certiorari on October 19, 2012.
(Docket No. 2-1 at p. 3.)
Romero filed his petition for a writ of habeas corpus on
September 25, 2013.

(Docket No. 2.)

He filed two supplements to

his petition: the first pro se and the second through Courtappointed

counsel.

(Docket

Nos.

2-1

&

16.)

In

his

first

supplement, petitioner Romero raises ineffective assistance of
counsel, due process, and equal protection claims, enumerating
several grounds for each claim.

(Docket No. 2-1 at pp. 3-5.)

One

Civil No. 13-1724 (FAB)

6

of the enumerated grounds for the ineffective assistance of counsel
claim

is

attorney

Rodriguez’s

failure

to

call

“essential defense witness,” to testify at trial.

Quiñones,

an

Id.

In his second supplement, Romero adds another ground for his
ineffective assistance of counsel claim.

(Docket No. 16.)

Romero

quotes the minutes from his trial on April 6, 2006, which summarize
attorney Rodriguez’s opening statements to the jury, delivered
after the prosecution rested:
Atty. Rodriguez informs that although the defendant
[Romero] does not have to present evidence, testimonial
evidence will be presented to prove that Ruben Alicea is
a liar and he does it in order to avoid going to jail.
That [Alicea] is a convict. That [Alicea] wants [Romero]
to rot away in jail when [Romero] is in fact innocent.
Id. at p. 4; Docket No. 40-1.

Romero explains that Quiñones’

testimony would have fulfilled his attorney’s promise to the jury
because Quiñones would have testified that Ruben Alicea, the
government witness who denied involvement and inculpated Romero,
participated in the crime and that Romero did not.
at p. 5.)

(Docket No. 16

According to Romero’s allegations, however, attorney

Rodriguez never presented the testimonial evidence promised to the
jury.

Id. at p. 2.

On September 30, 2013, the Court referred the matter to
Magistrate Judge Velez-Rive pursuant to 28 U.S.C. § 636(b)(1)(B)
and Federal Rule of Civil Procedure 72(b).

(Docket Nos. 6-7.)

Respondents then moved to dismiss the petition, arguing that
Romero failed to exhaust the available state court remedies on some

Civil No. 13-1724 (FAB)

7

claims and that his petition otherwise failed to state a claim upon
which relief can be granted. (Docket No. 24.) Because respondents
specifically raised the issue of exhaustion, the magistrate judge
examined Romero’s Rule 192.1 motion and determined that his current
habeas corpus petition contains both exhausted and unexhausted
claims.

(Docket No. 50.)

In accordance with the “best practice”

articulated by the First Circuit Court of Appeals, see DeLong v.
Dickhaut, 715 F.3d 382, 387 (1st Cir. 2013), the magistrate judge
gave Romero an opportunity to dismiss his unexhausted claims,
(Docket

No.

50).

Petitioner

Romero

complied,

moving

to

“voluntarily dismiss the unexhausted claims, which are all but the
ineffective assistance of counsel claim, for failure to put an
exculpatory witness on the witness stand.”

(Docket No. 51 at

pp. 1-2.)
The

magistrate

judge

issued

an

R

&

R

respondent’s motion to dismiss be granted.

recommending

that

(Docket No. 52.)

Petitioner Romero timely objected to the R & R pursuant to 28
U.S.C. § 636(b)(1). (Docket No. 53.) Romero’s objections focus on
attorney Rodriguez’s alleged error of promising the jury testimony
that he knew or should have known would not be produced.

Id.

Romero is entitled to a de novo determination of the portion of the
R & R to which he specifically objects.

See 28 U.S.C. § 636(b)(1).

In conducting its review, the Court is free to “accept, reject, or

Civil No. 13-1724 (FAB)

8

modify, in whole or in part, the findings or recommendations made
by the magistrate judge.”
II.

Id.
AEDPA STANDARD

As amended by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), 28 U.S.C. § 2254 sets several limits on a
federal court’s power to grant a state prisoner’s petition for a
writ of habeas corpus.

Section 2254(a) permits a federal court to

entertain petitions only if it is alleged that the state prisoner
“is in custody in violation of the Constitution or laws or treaties
of the United States.”

28 U.S.C. § 2254(a).

Section 2254(b)(1)

provides that a federal court may not grant a petition for habeas
corpus unless the petitioner has exhausted remedies available in
state court.

Id. § 2254(b)(1).

Pursuant to section 2254(d), if the petition includes a claim
that was denied on the merits in state court, the federal court may
not grant the petition with respect to that claim unless the state
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.

Id. § 2254(d).

This standard is “difficult to meet,” and the

petitioner “must show that the state court’s ruling on the claim

Civil No. 13-1724 (FAB)

9

being presented in federal court was so lacking in justification
that there

was

an

error well

understood and

comprehended

in

existing law beyond any possibility for fairminded disagreement.”
Harrington

v.

Richter,

562

U.S.

86,

102-03

(2011).

Section

2254(e)(1) further requires the federal court to presume the
correctness of the state court’s factual findings unless the
petitioner rebuts this “presumption of correctness” with “clear and
convincing evidence.”

28 U.S.C. § 2254(e)(1).

Section 2254’s “highly deferential standard for evaluating
state-court rulings” ensures that “[f]ederal courts sitting in
habeas are not an alternative forum for trying facts and issues
which a prisoner made insufficient effort to pursue in state
proceedings.”

Cullen v. Pinholster, 131 S. Ct. 1388, 1398, 1401

(2011) (internal quotation marks and citations omitted).
III.

ANALYSIS

Petitioner Romero seeks a writ of habeas corpus, claiming that
he received ineffective assistance of counsel in violation of the
Sixth Amendment when attorney Rodriguez (1) failed to call Quiñones
to testify as an exculpatory witness, and (2) promised the jury
testimonial evidence that he knew or should have know would not be
delivered.

(Docket Nos. 2-1 at pp. 3-4; 16 at p. 2.)

addresses each of these grounds in turn.

The Court

Civil No. 13-1724 (FAB)
A.

10

Failure to Call Quiñones to Testify
An ineffective assistance of counsel claim is governed by the

principles set forth in Strickland v. Washington, 466 U.S. 668
(1984).

Pursuant to Strickland, a defendant alleging ineffective

assistance of counsel must establish two elements:
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 errors were so serious as
to deprive the defendant of a fair trial, a trial whose
result is reliable.
466 U.S. at 687.

As to the first element, a defendant must show

that her counsel’s representation “fell below an objective standard
of

reasonableness,”

and

“[j]udicial

scrutiny

performance must be highly deferential.”

of

counsel’s

Id. at 688-89.

Because Romero’s ineffective assistance of counsel claim for
the failure

to

call

Quiñones

to

testify

was

adjudicated

and

rejected on the merits in state court, (Docket No. 28-3), the Court
must analyze the claim pursuant to the two prongs of 28 U.S.C.
§ 2254(d).
unless:

Accordingly, the Court may not grant Romero’s petition

(1) the Utuado trial court made an unreasonable factual

determination in light of the evidence before it, or (2) the Utuado
trial

court’s

unreasonable.

application

of

the

Strickland

See 28 U.S.C. § 2254(d)(1)-(2).

standard

was

Civil No. 13-1724 (FAB)

11

The Utuado trial court heard testimony from attorney Rodriguez
and Romero, among others, during a three-day evidentiary hearing on
Romero’s Rule 192.1 motion.

It also received a sworn declaration

from Quiñones and reviewed the trial record.
credited

attorney

Rodriguez’s

testimony of Romero.

testimony

The court ultimately
and

discredited

(Docket No. 28-3 at pp. 24-25.)

the

Thus, the

Utuado trial court spoke clearly, and the Puerto Rico Court of
Appeals “resoundingly endorsed its credibility assessment.”

See

id. at pp. 24-25, 28-29; Sanna v. Dipaolo, 265 F.3d 1, 10 (1st Cir.
2001).
Pursuant to 28 U.S.C. § 2254(e)(1), the Court must presume
that the Utuado trial court’s factual finding is correct unless
petitioner Romero provides “clear and convincing evidence” to the
contrary. The only evidence Romero marshals to meet this burden is
an unsworn declaration under penalty of perjury by Quiñones dated
February 10, 2014.

(Docket No. 16-1.)

In it, Quiñones states that

he has “always been available . . . to testify as a witness that
[Romero] had nothing to do with the murder[] and was not present at
the murder.”
statement

by

Id. at p. 2.
Quiñones

But the Utuado trial court had a sworn

and

discredited

Rodriguez’s testimony more credible.

it,

finding

attorney

“Under these circumstances,

it would be wholly inappropriate for a federal court to repastinate
soil already thoroughly plowed and delve into the veracity of the
witnesses on habeas review.”

See Sanna, 265 F.3d at 10.

Thus,

Civil No. 13-1724 (FAB)

12

because the Utuado trial court based its factual finding that
Quiñones’ testimony would not have been exculpatory on a plausible
credibility determination, petitioner Romero’s claim does not meet
section 2254(d)(2)’s standard for federal habeas corpus relief.
Analyzing

Romero’s

claim

through

the

lens

of

section

2254(d)(1), the “pivotal question is whether the state court’s
application of the Strickland standard was unreasonable,” which “is
different from asking whether defense counsel’s performance fell
below Strickland’s standard.”

Harrington, 562 U.S. at 101; accord

Yeboah-Sefah v. Ficco, 556 F.3d 53, 70 (1st Cir. 2009).

Thus, a

“doubly deferential judicial review . . . applies to a Strickland
claim evaluated under the § 2254(d)(1) standard.”

Knowles v.

Mirzayance, 556 U.S. 111, 123 (2009). Accepting as true the Utuado
trial court’s factual finding that Quiñones’ trial testimony would
not have been exculpatory, as 28 U.S.C. § 2254(e)(1) requires,
there is simply no basis for the allegation that attorney Rodriguez
deficiently performed by failing to call Quiñones:

his testimony

would not have helped, and could have potentially harmed, Romero’s
defense.

Thus, the Utuado trial court did not unreasonably apply

the Strickland standard when it concluded that Rodriguez’s failure
to call Quiñones did not amount to ineffective assistance of
counsel.
Romero’s ineffective assistance of counsel claim based on the
failure to call Quiñones to testify thus fails both prongs of 28

Civil No. 13-1724 (FAB)
U.S.C. 2254(d).

13

The Court accordingly GRANTS respondents’ motion

to dismiss this claim.
B.

Unfulfilled Promise to the Jury
Romero’s second supplement to his petition and his objections

to the R & R focus on his claim that attorney Rodriguez provided
ineffective assistance when he promised the jury “testimonial
evidence” that would prove that a government witness wrongly
inculpated Romero in order to cover-up his own involvement because
Rodriguez knew or should have known that such evidence would not be
presented.

(Docket Nos. 16 at p. 4; 53 at p. 10.)

In some cases,

a defense counsel’s unfulfilled promise to a jury that she will
produce a witness at trial constitutes ineffective assistance.
See, e.g., Anderson v. Butler, 858 F.2d 16, 17, 19 (1st Cir. 1988)
(finding ineffective assistance when counsel told jury in opening
that he would call a psychiatrist and a psychologist to testify as
to the defendant’s state of mind and then rested his case the next
day without calling any doctors); Harris v. Reed, 894 F.2d 871,
873, 879 (7th Cir. 1990) (finding ineffective assistance when
counsel assured the jury that it would hear evidence supporting the
defendant’s account of the shooting and then failed to call any
witnesses).

The Court does not reach the merits of this claim,

however, because petitioner Romero failed to properly exhaust the
claim in state court.

Civil No. 13-1724 (FAB)

14

Pursuant to 28 U.S.C. § 2254(b)(1)(A), a habeas petitioner
must “exhaust[] the remedies available in the courts of the State”
before

seeking

relief

in

federal

court.

This

exhaustion

requirement “is born of the principle ‘that as a matter of comity,
federal courts should not consider a claim in a habeas corpus
petition until after the state courts have had an opportunity to
act.’”
2011)

Coningford v. Rhode Island, 640 F.3d 478, 482 (1st Cir.
(quoting

Rose

v.

Lundy,

455

U.S.

509,

515

(1982)).

Accordingly,
a habeas petitioner bears a heavy burden to show that he
fairly and recognizably presented to the state courts the
factual and legal bases of this federal claim. . . . To
carry this burden, the petitioner must demonstrate that
he tendered each claim in such a way as to make it
probable that a reasonable jurist would have been alerted
to the existence of the federal question.
Adelson v. DiPaola, 131 F.3d 259, 262 (1st Cir. 1997) (internal
quotation marks and citations omitted).

Put another way, “‘the

legal theory [articulated] in the state and federal courts must be
the same.’”

Clements v. Maloney, 485 F.3d 158, 162 (1st Cir. 2007)

(alteration in original) (quoting Gagne v. Fair, 835 F.2d 6, 7 (1st
Cir. 1987)).
The Court has reviewed Romero’s Rule 192.1 motion presented to
the Utuado trial court.2

2

See Docket No. 49.

In the motion, Romero

Rule 192.1 requires a petitioner to include in her motion “[a]ll
the grounds which [she] may have to seek the remedy provided in the
rule.”
P.R. Laws Ann. Tit. 34, App. II, R. 192.1(a) (emphasis
added).

Civil No. 13-1724 (FAB)

15

identifies the Sixth Amendment as the constitutional basis for his
ineffective assistance of counsel claim.

Id. at pp. 3-4.

He then

lists several factual and legal grounds for this claim, none of
which

include

the

alleged

unfulfilled

Rodriguez’s opening statement.

promise

Id. at pp. 5-8.

in

attorney

Thus, Romero did

not fairly present to the state court this factual basis for his
claim.

See Adelson, 131 F.3d at 262.

Romero now attempts to

advance a legal theory in federal habeas court that he did not
articulate to the state court.

See Clements, 485 F.3d at 162.

To

consider the merits of this claim when the state court did not have
an opportunity to act on it would disrespect the principle of
comity. See Williams v. Taylor, 529 U.S. 420, 437 (2000) (“Federal
courts sitting in habeas are not an alternative forum for trying
facts and issues which a prisoner made insufficient effort to
pursue in state proceedings.”).
Appeals

has

acknowledged,

As the First Circuit Court of

habeas

counsel

“often

confront

an

inhospitable legal landscape, and the problem is complicated by the
intricacies of the exhaustion requirement.
however, apply that requirement impartially.”
at 264.

[The Court] must,
Adelson, 131 F.3d

The Court thus GRANTS respondents’ motion to dismiss

Romero’s claim based on attorney Rodriguez’s alleged unfulfilled
promise to the jury for want of exhaustion.

Civil No. 13-1724 (FAB)

16
IV.

CONCLUSION

After making an independent examination of the record in the
case, including petitioner Romero’s objections, the Court modifies
in part and rejects in part the magistrate judge’s R & R, (Docket
No. 52).

The Court GRANTS respondents’ motion to dismiss, (Docket

No. 24).

Romero’s exhausted claim of ineffective assistance of

counsel based on the failure to put an alleged exculpatory witness
on the stand is DISMISSED WITH PREJUDICE.

Romero’s remaining

unexhausted claims, including the ineffective assistance of counsel
claim based on the alleged “unfulfilled promise to the jury,” are
DISMISSED WITHOUT PREJUDICE.
Judgment shall be entered accordingly.
IT IS SO ORDERED.
San Juan, Puerto Rico, March 13, 2015.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE