Lopez v. GRAMS

Filing 40

ORDER adopting 34 REPORT AND RECOMMENDATION. 1 PETITION for Writ of Habeas Corpus is denied. No certificate of appealability will issue. Signed by Chief Judge Barbara B. Crabb on 12/16/09. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN --------------------------------------------R U G E LIO LOPEZ, ORDER Petitioner, 0 8 - cv -4 0 8 - b b c1 v. G R E G O R Y GRAMS, Warden, C O L U M B IA CORRECTIONAL INSTITUTION,2 R espo nd ent. --------------------------------------------After Magistrate Judge Stephen L. Crocker filed a report, recommending that the co urt deny petitioner's Rugelio Lopez's petition for a writ of habeas corpus under 28 U.S.C. § 2254, petitioner filed two documents. The first is entitled Certificate of Appealability, dkt. # 36 ; the second is entitled Memorandum in Support to Preserve the Petitioner Rights to

Originally, this case was assigned randomly to United States Magistrate Judge S tephen L. Crocker. Petitioner never consented to having the magistrate judge preside over th e case, so it has reverted me for decision. The magistrate judge's report and recommendation showed respondent Gregory G rams as warden of the Fox Lake Correctional Institution. He is actually the warden at the Co lum bia Correctional Institution, where petitioner is incarcerated, so I have changed the caption accordingly.
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Appeals the Petitioner Case to the United States Court of Appeals, dkt. #37. It appears that petition er does not understand that he has a right to challenge the magistrate judge's recom m enda tion or that he must do so if he wants to take an appeal to the court of appeals. 2 8 U.S.C. § 636. B ecause it appears that petitioner is trying to raise an objection in his Memorandum, I will construe the filing as a general objection to the magistrate judge's finding that p etitio n er's attorney provided petitioner effective representation at trial. This does not m ean, however, that the objection includes petitioner's new allegation of ineffectiveness, w hich is that his counsel did not go back to look for witnesses in the bar at which petitioner had been drinking before he and his alleged victim and a third man left in petitioner's car. Petition er never made this allegation in his original petition. There, he contended that his cou n se l was ineffective because he failed to call two witnesses at trial to testify to the fact th at a key witness against petitioner was able to speak English and because counsel did not stipulate to the admissibility of blood alcohol concentration reports. In addition, I do not construe the Memorandum as including an objection to the m agistrate judge's finding that the state courts did not make a mistake when they concluded th at statements petitioner made to the police on the night he was arrested were admissible in evidence. Miranda v. Arizona, 384 U.S. 436 (1966). Petitioner makes no reference to this finding in his Memorandum. I conclude from this omission that he has abandoned the

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c h a l le n g e . Petitioner's conviction of first-degree intentional homicide by use of a dangerous w eapo n grew out of an incident in which Ubaldo Morales was killed by a car belonging to petitioner. The prosecutor proved to a jury that petitioner had deliberately driven his car into a man after quarreling with him. The incident occurred about 2:30 a.m. Petitioner, victim Morales and Juan Medina had been drinking in a Kenosha bar for three and one-half ho urs. They drove off in petitioner's car with Medina and Morales criticizing petitioner's d rivin g. At some point, the discussion grew so heated that both petitioner and Morales got o ut of the car. Petitioner returned, drove his car into Morales, then turned the car around and ran him over. P etitio n er and Medina drove off, but petitioner lost control of the car, drove into a ditch and wrecked the car. Medina was able to get out of the car and walked to a nearby ho use, where he asked to use the telephone. The homeowners reported that he used "rough English," but that they could make out what he was trying to say, which was that there had been an accident and that help was needed. At trial, petitioner's attorney did not call the homeowners as witnesses to testify that M ed in a was able to communicate in English and he moved to exclude evidence of petitioner's blood alcohol level. Petitioner's defense at trial was that he had not been the driver of the car.

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D I S C U S S IO N As the magistrate judge explained in his report and recommendation, petitioner has failed to show that he qualifies for a writ of habeas corpus. Doing so is not an easy task. A p erso n who thinks the state courts denied him a constitutional right, such as the right to effective counsel, must show, first, not just that his trial counsel could have done a better job for him, but that the representation fell below the minimal level of competence and that it caused him prejudice. Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). If he succeeds in making this showing (and few petitioners do), he must prove that the state court w as objectively unreasonable when it refused to find that his counsel was constitutionally ineffective. In other words, he must show that the state court decisions were more than just w ron g. In the report and recommendation, the magistrate judge explained throughly and persuasively why the state courts did not err in any respect in finding counsel con stitution ally effective and also why they applied Strickland reasonably. Nothing in petition er's sparse Memorandum supports petitioner's objection to the magistrate judge's repo rt. Because petitioner has not shown that the magistrate judge was wrong when he fo un d that petitioner was denied the effective assistance of counsel at his trial, his petition fo r a writ of habeas corpus relief must be denied. With the denial of the motion, it is

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necessary to decide whether defendant is entitled to a certificate of appealability, as he r e q u e s ts . A certificate of appealability shall issue "only if the applicant has made a substantial show ing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). In order to make th is showing, a defendant must "sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. M cD an iel, 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893, n.4 (19 83 )). Although Rule 11 allows the court to direct the parties to submit arguments on the qu estion of issuing a certificate of appealability, it is unnecessary to do so in this instance. It is evident that no reasonable jurist would believe that defendant's motion has any merit.

OR DER IT IS ORDERED that the magistrate judge's report and recommendation is AD O PT ED and that petitioner Rogelio Lopez's petition for a writ of habeas corpus is

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D EN IED . No certificate of appealability will issue. E n tered this 16t h day of December, 2009. B Y THE COURT: /s/ _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ B AR B AR A B. CRABB D istrict Judge

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