Escobedo v. Lund

• Decision Date: 17 September 2014
• Docket Number: No. 13–2399.,13–2399.
• Citation: 760 F.3d 863
• Parties: Guillermo ESCOBEDO, Petitioner–Appellee v. Mark LUND, Respondent–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

760 F.3d 863

Guillermo ESCOBEDO, Petitioner–Appellee

v.Mark LUND, Respondent–Appellant.

No. 13–2399.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2014.

Filed: July 28, 2014.

Rehearing and Rehearing En Banc Denied Sept. 17, 2014.

Benjamin Milton Parrott, AAG, argued, Des Moines, IA, for Respondent–Appellant.

Rockne Ole Cole, argued, Iowa City, IA, for Petitioner–Appellee.

Before LOKEN and MURPHY, Circuit Judges, and LIMBAUGH,¹ District Judge.

LIMBAUGH, District Judge.

Guillermo Escobedo was convicted by a jury in Iowa of first-degree murder, willful injury, and assault causing bodily injury. He was sentenced to life in prison for the first-degree murder. The Iowa Court of Appeals affirmed the conviction and sentence on direct appeal, State v. Escobedo, 573 N.W.2d 271 (Iowa Ct.App.1997), and subsequently affirmed the denial of his motion for post-conviction relief, Escobedo v. State, 2004 WL 2804848 (Iowa Ct.App.2004). Escobedo petitioned for a writ of habeas corpus in the district court under 28 U.S.C. § 2254 based on a claim of ineffective assistance of counsel. The district court granted relief on the ground that counsel should have requested a mistrial after the trial court improperly substituted an alternate juror for a juror who had been dismissed for misconduct after deliberations had begun. The state appeals, arguing that Escobedo established neither constitutionally deficient performance nor prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). After careful review of the record, we reverse the grant of habeas relief.

I. Factual and Procedural Background

On January 14, 1995, Escobedo and co-defendant Cesar Herrarte hosted a party at their residence that was attended by a number of young people. Two young men, Justin Younie and Kevin Kaskie, along with some of their friends, were invited to the party by another man who resided with Escobedo and Herrarte. When they arrived at the party, several young women, as well as Escobedo and Herrarte were present. Wrestling matches and drinking contests ensued.

Later in the evening a confrontation occurred between Kaskie and another party guest, and the two were arguing and shoving each other. Younie placed himself between other guests and the two involved in the confrontation to prevent escalation or interference. One witness testified that Younie appeared “[t]o be stopping it from becoming a fight, having them two jump in and start a big fight there.” During the shoving match, Escobedo and Herrarte went into the kitchen and armed themselves with meat-packing knives, then charged the party guests and stabbed Younie in the back and abdomen.

The guests fled the house with Escobedo and Herrarte in pursuit. A few of Younie's friends managed to make it into Younie's vehicle, but Younie himself was unable to climb inside. Escobedo and Herrarte soon reached Younie's vehicle. Escobedo pounded on the window of the vehicle shattering it and began slashing the interior with the knife. One of Younie's friends started the engine and pulled away from the attack, and they attempted to pull Younie into the vehicle but were unsuccessful. Kaskie, who also had been stabbed during the melee, made his way to another car, and was driven to the hospital.

Younie died a short time after the brutal attack. His wounds were so deep and severe that numerous vital organs and arteries in the chest and stomach area were cut or severed and some of his abdominal contents were expelled from his body. After the murder, Escobedo told a police officer he attacked the victims with a knife “[b]ecause they provoked me. They got us fed up. They said ‘F––– you,’ and that's when I went and got the knife.”

A. The Trial

The events surrounding the end of Escobedo's and Herrarte's trial form the basis of Escobedo's petition. Escobedo was represented by attorney Steven Pals and Herrarte was represented by Gregory Jones, Chief Public Defender for Woodbury County. Pals and Jones made several objections during and after the prosecutor's closing argument. They objected to the prosecutor's use of “Hispanics” and “white guys” to refer to the defendants and witnesses. They also objected to the prosecutor's inference that the defendants were using drugs the night of the crime and the comment that the defendants' rights had been “scrupulously defended.” They objected to the prosecutor saying “you need to be awfully drunk not to have a clue about what happened” in explaining the instruction about the defense of intoxication. Finally, they objected to an overhead transparency the prosecutor had mistakenly shown the jury which read: “Innocent people don't lie.” Although the objection was sustained, counsel for Escobedo and Herrarte moved for a mistrial arguing prosecutorial and prejudicial misconduct. The trial judge denied the motion for a mistrial, but when the jury returned from recess he gave the following instruction:

In the State's argument I have previously mentioned certain matters that you must disregard. The prosecutor, in the Court's opinion, went over the line. And the Court is trying to make sure that those matters that he brought up are not used as a basis of your decision.

The recess lasted a little longer than it would have except the Court needed to take up additional matters that were brought in-brought up in the prosecutor's argument which the Court considers went over the line and has nothing to do with this case.

First he referred to the defendants as Hispanics and to the other people as white guys. During the voir dire of the jury I read an instruction with regard to the ethnicity of the defendants and ... that matter has no place in this trial. Those comments have no place either and should be disregarded.

Also there was a reference towards drugs. You have heard the evidence, and you can determine what evidence there is as to drugs. You are not to be swayed with regard to your verdicts by comments made by the prosecutor in that vein.

In addition, the prosecutor made the comment that the defendants' attorneys, the defendants were scrupulously defended by their attorneys. The word scrupulously has no place in this trial. You are to disregard any effect of that.

In addition, the prosecutor made the comment if you need to be awfully—“You need to be awfully drunk not to know what—not to have a clue about what happened.” There is nothing in the evidence that supports such a comment, and the comment is to be disregarded.And you are not to consider it in your determination in this case.

Finally, at one point the prosecutor left a comment on the projector and it flashed briefly. I don't know whether you saw it or not.

Did you see it? It referred to innocent people. I take it you saw it. You saw it back there. And you saw it.

That comment and it is—since—some of you saw it, I'll tell you what it was so—because this is the most upsetting thing of all is that the comment is “Innocent people don't lie.” That comment is improper. You are to completely disregard it. And you are to give no effect to it whatsoever. It's a saying. It has no basis in fact. And it is not part of the evidence, so do not give it any consideration.

Now, you can understand by the tone of my voice that I'm upset that these things occurred. I told you I want a fair trial. I think the prosecutor went over the line. And I tell you that in order that you can disregard those comments and give them no weight whatsoever.

The jury began its deliberations about 3:00 p.m. on day six of the trial. The jury deliberated into the evening and was excused about 10:00 p.m. with instructions to return at 9:00 a.m. the next morning to resume deliberations.

That morning, the county attorney informed the trial judge he recently received information from a person who reported hearing a juror make racial remarks about Escobedo at a bar a few nights earlier. The trial judge conducted an in camera inquiry into the report, which included testimony from the juror and the informant. In chambers the judge said, “Perhaps we should dismiss the juror” and Mr. Jones responded, “I will have no problem with that.” Court reconvened with the jury and the trial judge dismissed the juror. The judge stated, “I intend to use an alternate Paula Jacobsma.” Mr. Pals responded “yes” and Mr. Jones said “mm-hmm.” The alternate juror was summoned and replaced the dismissed juror. Deliberations resumed after the trial judge instructed the jury to begin their deliberations anew. The jury returned its verdict later in the day finding Escobedo guilty of first-degree murder, willful injury, and assault.

B. The State Post-conviction Proceedings

Escobedo petitioned for state post-conviction relief asserting ineffective assistance of trial counsel for not seeking a mistrial when a juror was replaced with an alternate juror after the start of deliberations. Escobedo argued that he was prejudiced by this error because a mistrial would have been granted had one been requested.

During the proceedings on his first post-conviction petition, Escobedo testified that he knew about the juror substitution because his lawyer discussed it with him and he was present while the attorneys and judge discussed it. He stated his lawyer did not ask him whether he would agree with replacing a juror or if he instead wanted to request a mistrial. Escobedo testified that he did not ask his attorney any questions about the situation.

Jones testified that he realized that his client, Herrarte, had two options—to move for a mistrial or to continue deliberations. He elaborated:

My view was that we should continue with this jury and allow the jury to deliberate. That was my view, because I felt that it had been emphasized very strongly to the jury that racial conversations were not to be taken into account. I felt the State, because of [the prosecutor's] actions and the judge's reaction to them, lacked credibility with the jury. I felt that...