Escobedo v. Lund

• Decision Date: 06 September 2012
• Docket Number: No. C10-4111-MWB,C10-4111-MWB
• Parties: GUILLERMO ESCOBEDO, Petitioner, v. MARK LUND, Respondent.
• Court: U.S. District Court — Northern District of Iowa

GUILLERMO ESCOBEDO, Petitioner,

v.MARK LUND, Respondent.

No. C10-4111-MWB

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

Dated: September 6, 2012

REPORT AND RECOMMENDATION

ON PETITION FOR WRIT OF

HABEAS CORPUS PURSUANT TO

28 U.S.C. § 2254

I. FACTUAL AND PROCEDURAL BACKGROUND

Guillermo Escobedo was charged in Sioux County, Iowa, District Court with first-degree murder, willful injury, and aggravated assault. After a jury trial where he was tried jointly with co-defendant Cesar Herrarte, Escobedo was convicted on all charges and sentenced to life without parole on September 22, 1995. He appealed to the Iowa Court of Appeals, which upheld his conviction. The Iowa Supreme Court denied further review.

Escobedo then filed an application for post-conviction relief ("PCR"), which was denied. Escobedo appealed, and the Iowa Court of Appeals denied relief. The Iowa Supreme Court denied further review.

On April 26, 2005, Escobedo filed a pro se petition for habeas corpus in federal court under 28 U.S.C. § 2254. Rockne Cole was appointed to represent Escobedo and discovered his petition contained unexhausted claims. On October 26, 2005, the Honorable Judge Linda R. Reade dismissed the action without prejudice. See Escobedo v. Burger, No. 05-4039-LRR; Doc. No. 15.

Escobedo's second state post-conviction application was denied initially and on appeal on March 18, 2010. The Iowa Supreme Court denied further review.

On November 10, 2010, Escobedo filed a habeas corpus petition in this court under 28 U.S.C. § 2254. Doc. No. 1. Escobedo's motion to appoint counsel was granted and Rockne Cole continued to represent Escobedo. Doc. No. 9. An amended petition was filed on February 1, 2011. Doc. No. 14. On January 31, 2012, Escobedo filed a brief on the merits. Doc. No. 35. An amended and substituted brief was filed on February 2, 2012. Doc. No. 38. The respondent ("the State") filed a response on March 27, 2012. Doc. No. 41. The matter is now fully submitted.

The factual background for Escobedo's trial was summarized by the Iowa Court of Appeals in its opinion on Escobedo's direct appeal:

Escobedo and co-defendant Cesar Herrarte stabbed two young men with meat-packing knives after a fight broke out at a party on January 14, 1995. The party took place at a house in Hawarden, Iowa, and was attended by a number of young people. One of the teenage stabbing victims died a short time later. 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.

State v. Escobedo, 573 N.W.2d 271, 274-75 (Iowa Ct. App. 1997).

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. Trial Tr. 81 (Sept. 21, 1995). 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." Id. at 81-82. 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. Id. at 83. Finally, they objected to an overheadtransparency the prosecutor had mistakenly shown the jury which read: "Innocent people don't lie." Id. Counsel for Escobedo and Herrarte moved for a mistrial arguing prosecutorial and prejudicial misconduct. Id. at 85. The trial judge denied the motion for a mistrial, but when the jury returned from recess he gave the following instructions:

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 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. 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.

Id. at 103-06.

After six days of evidence and argument, the jury began deliberating around 3:00 p.m. on September 21, 1995. The jury deliberated into the evening and was excused around 10:00 p.m. with instructions to return at 9:00 a.m. the next morning to resume deliberations. Escobedo, 573 N.W.2d at 275.

The next 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. Id. Trial Tr. 3-12 (Sept. 22, 1995). In chambers the judge said, "Perhaps we should dismiss the juror" and Mr. Jones responded, "I will have no problem with that." Id. at 12. Court reconvened with the jury and the trial judge dismissed the juror. Id. at 13. The judge stated, "I intend to use an alternate Paula Jacobsma." Id. at 14. Mr. Pals responded "yes" and Mr. Jones said "mm-hmm." Id. 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. Escobedo, 573 N.W.2d at 275.

During the proceedings on Escobedo's 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. PCR Tr. 7-8. 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. Id. at 9-10. Escobedo testified that he did not ask his attorney any questions about the situation. Id. at 15.

Jones testified that he realized that his client, Herrarte, had two options—a mistrial or continue deliberations. Id. at 38. 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 because of those things we had the best opportunity to have a jury that would be favorably inclined to believe that our clients acted in self-defense.

. . . .

I believed that the decision about whether or not to ask for a mistrial was a tactical decision and was mine alone after consulting with my client. I did talk with Mr. Herrarte about the possibility of a mistrial and discussed with him the fact that I thought the jury would be fair, and at that time I did make the agreement with [the trial judge] that we would replace the juror.

Id. at 38-39.

Pals testified that he evaluated the situation and did not believe a mistrial was the best option. Id. at 58. He stated:

I felt we had gotten as much as we could get from the State's witnesses during the course of trial to establish our defense. And then with how the events went during final argument, I didn't think those matters would recreate themselves if there was a second trial.

Id. at 58-59. Pals stated he thought substituting the juror so that the deliberations could go forward was the best option. He explained:

The reason for that was you have eliminated the potential bias from [the dismissed juror] from the jury, as best you were able, and gave the jury a chance to go back and start over with deliberations, as I

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