Brandes v. Ludwick

• Decision Date: 03 August 2015
• Docket Number: No. 13-CV-2072-LRR,13-CV-2072-LRR
• Parties: RICK ANTHONY BRANDES, Petitioner, v. NICK LUDWICK, Respondent.
• Court: U.S. District Court — Northern District of Iowa

RICK ANTHONY BRANDES, Petitioner, v. NICK LUDWICK, Respondent.

No. 13-CV-2072-LRR

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF IOWA EASTERN DIVISION

August 3, 2015

ORDER

TABLE OF CONTENTS

I. INTRODUCTION ....................................... 2

II. PROCEDURAL BACKGROUND ............................. 2

A. Conviction ........................................ 2

B. Direct Appeal ...................................... 2

C. State Post-Conviction Relief Proceedings .................... 4

D. Federal Habeas Corpus Action ........................... 5

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

IV. STANDARDS OF REVIEW ................................ 11

A. Requirements under 28 U.S.C. § 2254(d) ................... 11

B. Exhaustion and Procedural Default ...................... 14

V. DISCUSSION ......................................... 15

A. Grounds Litigated in the Iowa Courts ..................... 16

1. Ineffective assistance of counsel .................... 16

a. Applicable law ............................ 16

b. Failure to pursue a competency evaluation ......... 18

c. Failure to call two witnesses ................... 20

i. Trial counsel ........................ 20

ii. Post-conviction counsel ................. 22

2. Insufficient evidence of specific intent ................ 22

3. Improper exclusion of evidence ..................... 23

B. Grounds Not Litigated in the Iowa Courts .................. 24

1. Applicable law ................................ 24

2. Additional claims .............................. 25

VI. CERTIFICATE OF APPEALABILITY ......................... 27

VII. CONCLUSION ........................................ 29

I. INTRODUCTION

The matter before the court is Rick Anthony Brandes's ("the petitioner") "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus" ("petition") (docket no. 1).

II. PROCEDURAL BACKGROUND

A. Conviction

On March 29, 2006, after a bench trial, the Iowa District Court for Chickasaw County ("Iowa District Court"), Case No. FECR006327, found the petitioner guilty of kidnapping in the first degree with intent to commit sexual abuse in violation of Iowa Code sections 710.1 and 710.2. Appendix ("App'x"), Judgment and Sentence (docket no. 14-3) at 289. The petitioner was sentenced to life in prison without the possibility of parole. Id.

B. Direct Appeal

On April 3, 2006, the petitioner appealed his conviction on three grounds: (1) there was insufficient evidence to support conviction due to incapacity to form specific intent to sexually abuse the victim; (2) trial counsel¹ were ineffective because they did not file a timely notice of diminished capacity defense; and (3) the Iowa District Court erred in refusing to admit evidence pertaining to a sperm fragment found during the victim's vaginal exam and in refusing to allow counsel to question the victim about her sexual history. See App'x, Petitioner's Direct Appeal Brief (docket no. 14-4) at 25.

On December 28, 2007, the Iowa Court of Appeals affirmed the petitioner's conviction. State v. Brandes, 745 N.W.2d 95 (Table), 2007 WL 4553478 (Iowa Ct. App.Dec. 28, 2007), App'x, Direct Appeal Opinion (docket no. 14-6). The Iowa Court of Appeals held that the evidence was sufficient to establish the petitioner had the ability to form the requisite specific intent to sexually abuse the victim. App'x, Direct Appeal Opinion (docket no. 14-6) at 8. Furthermore, the Iowa Court of Appeals found that trial counsel's untimely notice of his intent to rely on the defense of diminished capacity did not prejudice the petitioner because the Iowa District Court allowed the petitioner to present that defense anyway. Id. at 10-11. Finally, the Iowa Court of Appeals held that the Iowa District Court did not err in refusing to admit evidence pertaining to the sperm fragment recovered during the victim's vaginal exam because it was irrelevant to the petitioner's defense, especially considering that neither the petitioner nor his co-defendant² claimed vaginal intercourse occurred, and it was insufficiently probative to overcome Iowa's bar on introducing evidence of past sexual behavior of a sexual assault victim. Id. at 12-13. Moreover, it concluded that the Iowa District Court's refusal to permit questioning of the victim about her sexual history did not breach the petitioner's constitutional rights because irrelevant evidence is never constitutionally required. Id. at 13. The petitioner applied for further review before the Iowa Supreme Court, asserting only: (1) insufficient evidence that he could form specific intent to commit sexual abuse and (2) improper exclusion of the evidence pertaining to the sperm fragment found during the victim's vaginal exam.³ See App'x, Application for Further Review (docket no. 14-7) at 15-25. On February 19, 2008, the Iowa Supreme Court denied the petitioner's application for further review. App'x, Order Denying Further Review (docket no. 14-8). Procedendo issued on February 22, 2008 (docket no. 14-9).

C. State Post-Conviction Relief Proceedings

On April 28, 2008, the petitioner sought post-conviction relief in the Iowa District Court. He asserted trial counsel were ineffective in three respects: (1) trial counsel failed to request a competency evaluation; (2) trial counsel failed to request a change of venue; and (3) trial counsel failed to call the petitioner's neighbor and the co-defendant's girlfriend as witnesses. See Brandes v. State, 825 N.W.2d 327 (Table), 2012 WL 5598523 (Iowa Ct. App. Nov. 15, 2012), App'x, Post-Conviction Relief ("PCR") Appeal Opinion (docket no. 14-12) at 2. The Iowa District Court denied post-conviction relief. See App'x, PCR Appeal Opinion (docket no. 14-2) at 2. The petitioner appealed, asserting that trial counsel was ineffective for failing to request a competency hearing and for failing to call the two witnesses. Id. The petitioner did not appeal his change of venue claim. Id at 8. ⁴ In his appeal, the petitioner also claimed that post-conviction counsel was ineffective for failing to call the same two witnesses that trial counsel had failed to call. Id.

On November 15, 2012, the Iowa Court of Appeals affirmed the denial of post-conviction relief. See App'x, PCR Appeal Opinion (docket no. 14-12). The Iowa Court of Appeals found that trial counsel were not ineffective for failing to request a competency evaluation because the petitioner's psychiatrist had assured trial counsel that the petitioner was competent so long as he was taking his medication and trial counsel confirmed with jailers that the petitioner was taking his medication. Id. at 5. Moreover, the Iowa Court of Appeals held that because the petitioner was able to assist trial counsel during trial, hecould not show that trial counsel's failure to request an evaluation resulted in any prejudice. Id. at 6. The Iowa Court of Appeals also rejected the petitioner's claim regarding trial counsel's failure to call two witnesses. Id. at 7. It found that the witnesses' testimony would have been either irrelevant to the petitioner's defense of diminished capacity or cumulative because other witnesses, including the petitioner himself, testified to the same facts. Id. at 7-8. As a result, the Iowa Court of Appeals concluded that declining to call the two witnesses was merely a tactical decision by the petitioner's trial counsel and post-conviction counsel. Id. at 8-9. The petitioner applied for further review, asserting only that trial counsel failed to request a competency evaluation. See App'x, Application for Further Review (docket no. 14-13) at 17. On January 9, 2013, the Iowa Supreme Court denied further review (docket no. 14-14). Procedendo issued on January 15, 2013 (docket no. 14-15).

D. Federal Habeas Corpus Action

On October 23, 2013, the petitioner filed the petition,⁵ asserting three grounds: (1) ineffective assistance of trial counsel for failing to request a competency evaluation, (2) ineffective assistance of trial counsel for failing to call two witnesses and (3) ineffective assistance of post-conviction counsel for failing to call the same two witnesses. Petition (docket no. 1) at 5-6. On February 20, 2014, Nick Ludwick ("the respondent"), Warden of the Iowa State Penitentiary in Fort Madison, Iowa, filed an answer in which he argues that all of the petitioner's grounds are unexhausted, barred, procedurally defaulted and/or without merit. See Answer (docket no. 13).

On October 19, 2014, the petitioner filed a brief ("petitioner's brief") in which he asserts the three grounds raised in the petition as well as additional ineffective assistanceof trial counsel grounds: (1) failure to request a change of venue; (2) failure to insist on a jury trial instead of a bench trial; (3) failure to request a competency hearing prior to trial; (4) failure to investigate the facts, including those that relate to the victim's mental health history and competency, the interactions that the defendant had with the co-defendant's girlfriend and the neighbor who lived next door; (5) failure to allow him to interact with the Iowa District Court; (6) failure to adequately explain to the Iowa District Court his version of what occurred; (7) failure to challenge the State's evidence; (8) failure to call witnesses, including the co-defendant, others who had knowledge of events, the private investigator, the co-defendant's girlfriend, three men whom the petitioner asserts had sexual intercourse with the victim the day after the kidnapping, an individual from the crime lab, the victim's doctors, a psychiatric expert and the victim's husband; (9) failure to establish that his DNA was not on the victim and his DNA would have been in the apartment because it was where he lived; (10) failure to properly question the victim on cross-examination, challenge the victim's inconsistent stories, ask about her medications and use of illegal substances and question her about hallucinating; (11) failure to introduce evidence of the co-defendant's drug history and...