Lucero v. Kerby, 95-2263

Decision Date08 January 1998
Docket NumberNo. 95-2263,95-2263
Citation133 F.3d 1299
PartiesRaymond LUCERO, Petitioner-Appellant, v. Dareld L. KERBY, Attorney General of the State of New Mexico, Respondents-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, NM, for Petitioner-Appellant.

Patricia A. Gandert, Assistant Attorney General (Tom Udall, Attorney General, with her on the brief), Attorney General's Office for the State of New Mexico, Santa Fe, NM, for Respondents-Appellees.

Before LUCERO, LOGAN, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Petitioner Raymond Lucero appeals the district court's dismissal of his federal habeas corpus petition, brought pursuant to 28 U.S.C. § 2254, following his convictions and sentencing in state court for aggravated burglary and criminal sexual penetration charges. On appeal from the dismissal of his habeas petition, petitioner asserts (1) the state trial court violated his Sixth Amendment right to trial by an impartial jury when it denied his motion to dismiss the jury venire or conduct individual, sequestered voir dire after it was learned that one of the jury venire was the brother of one of the victims of the charged offenses; (2) he was denied his Sixth Amendment right to compulsory process for obtaining witnesses when the trial court denied his motion for a continuance to secure a witness essential to his misidentification defense; (3) he was denied his constitutional right to a full and fair hearing on the issue of the voluntariness of his inculpatory statements, and the trial court's admission of his statements violated his Fifth Amendment rights; (4) the evidence introduced at trial was insufficient to support his convictions; (5) the trial court violated his due process right to a fair trial when it permitted the joinder of two separate criminal informations alleging dissimilar facts surrounding the charged offenses; (6) his consecutive sentences for the criminal sexual penetration and aggravated burglary convictions violated his right against double jeopardy; and (7) he was denied his Sixth Amendment right to effective assistance of counsel due to his trial attorney's deficient performance. This court has jurisdiction pursuant to 28 U.S.C. § 2253. In reviewing the denial of petitioner's habeas corpus petition, we review the district court's conclusions of law de novo. See Matthews v. Price, 83 F.3d 328, 331 (10th Cir.1996). We reverse the district court's ruling on petitioner's double jeopardy claim as to one of petitioner's convictions, but affirm on the remaining issues. 1

FACTS

In 1986, petitioner was charged with four counts of aggravated burglary, three counts of second-degree criminal sexual penetration (CSP II), one count of attempted CSP II, and one count of third-degree criminal sexual penetration (CSP III). The charges arose from four rapes and one attempted rape that occurred in Clovis, New Mexico, between December 1985 and July 1986.

At trial, each of the rape and attempted rape victims testified. Karen Schneider testified that on December 15, 1985, at about 7:15 p.m., she was removing clothes from the clothesline when she was grabbed from behind. The attacker placed his arm around her waist and his hand over her mouth. When she screamed, he told her several times, "Shut up, shut up. Shut up, bitch, or I'll kill you." He instructed her to open the door, then pushed her inside and told her to turn off the lights. He continued to push her into the bedroom and onto the bed, and then told her, "Now I'm going to rape you."

Schneider testified that he then removed her underpants, began to lick the backs of her legs and buttocks, inserted a finger into her vagina, and then inserted his penis into her vagina. He then pulled her upright and again pushed her through the house, forcing her just past the front door. They began struggling, and he held something against her neck which she was unable to identify. She told him she would keep her eyes closed if he wouldn't kill her, to which he responded, "You promise? You promise?" She answered, "Yes." He then threw her on the floor, so that she "skidded about six to eight feet on [her] face," and he ran out the door.

Although her attacker remained behind her throughout the entire attack, Schneider was able to describe him from brief glimpses as dark-haired, about 5'6"' tall, with an average build. She also stated that he had a deep voice and that she detected no accent.

Dena Shaw testified that on March 7, 1986, at about 8:05 p.m., she had just returned home when she noticed the living room light had gone out. When she entered the living room, someone grabbed her from behind, placing his arm around her waist and his hand over her mouth. He told her to "Shut up, shut up," or he would kill her, and he pushed her toward her bedroom, telling her to turn off the light. She turned off the light, and they "just stood right there." Remaining behind her, he undid her pants, pulled her pants and pantyhose down, and started caressing her. She testified that he then "penetrated [her] with his finger, told [her] to lay down." As she was lying down, she tried to lie sideways, but he pushed her down so that she was face-down on the floor. He then penetrated her vagina with his penis. After ordering her to stay on the floor, he left through the back door. Shaw testified that the entire episode lasted about ten minutes. Based on brief glimpses of her attacker, Shaw testified that he was dark-haired and about 5'6"' or 5'7"' tall. She also testified that he had a deep voice and a Spanish accent.

Elizabeth Trujillo testified that on June 6, 1986, at about 11:00 p.m., she was walking home when someone grabbed her from behind. The attacker placed an arm around her waist and a hand over her mouth and pushed her into an alley. As he was pushing her, his hand slipped from her mouth and she started screaming. He told her, "Shut up, shut up or I'll kill you," and then picked her up and took her farther into the alley, pushing her against a fence. He asked her if she had made love before and how old she was. He touched her breast and unzipped her pants, and told her to pull down her pants. He inserted a finger, and then his penis, into her vagina. Then he sat her near a dumpster, told her not to turn and look at him or he would kill her, and he ran away. Although her attacker remained behind her throughout the attack, Trujillo testified that she was able to see that his arm was dark-complected and that he was about 5'6"' to 5'8"' tall. She also stated that he had a low-pitched voice and a Spanish accent, and he smelled of alcohol.

Lori Lambert testified that on July 10, 1986, at about 10:00 p.m., she was at home in her bedroom trying on clothes. While she was trying on a leotard, the bedroom lights went out, and someone grabbed her from behind with an arm around her waist and another arm around her neck. The attacker told her to "shut up, shut up," or he would kill her, and she fell to the floor. She felt a sharp object near her breast. He said he was going to "hurt [her] bad," and he told her to take off her clothes. She began to try to talk him out of it and continued trying to talk to him throughout the entire attack. He responded several times.

They struggled, and she testified that she "ma[d]e it out of the bedroom towards the door, which leads into the living room." He at first pulled her back, but then said, "Yes, go ahead and go in there," and he pushed her into the living room. She then hit the floor in the living room. She was trying to crawl to the front door when he started "manipulating [her] breasts with his hands" and telling her he wanted to "make love" to her. She again tried to talk him out of it. He then penetrated her vagina with his fingers. She screamed; he told her to shut up. Her head hit the floor again. She testified that at this point she was on her knees, with his left arm around her. She again tried to talk to him and calm him down. He talked to her for a moment, but he then became angry and told her again to "shut up, shut up."

She then tried to crawl to the front door. She screamed and he told her to shut up and not to look at him. He then banged her head on the floor again by her hair. She continued to try to talk to him. She testified that she was then on her stomach; he told her to turn over, then changed his mind and said, "No, don't." She then felt that he was naked behind her. He told her to spread her legs; she told him she could not spread them any farther. He then penetrated her vagina from behind with his penis once or twice. After this, he leaned back on his knees. She said, "Don't hurt me," and he said, "I won't." After talking for a few more moments, he picked her up by her arm and pushed her back towards the bedroom. He left by pushing her into the bedroom and then running out the back door.

Based on brief glimpses of her attacker, Lambert described him as dark-haired, about 5'7"' to 5'9"' tall, with an odor of alcohol on his breath. She also testified that he had deep voice and a Spanish accent.

Vicki Lueras 2 testified that on April 3, 1986, at about 9:15 p.m., she had just walked home from next door and was on the telephone in her bedroom when the call was disconnected. When she got up to check the phone line, she saw a man, whom she identified as petitioner, standing in the kitchen doorway about four feet away from her trying to turn off the kitchen light. After he turned off the light, which she stated was "tricky to turn off," he came towards her. He turned off her bedroom light, then pushed her down on her bed and tried to remove her pants. When she screamed for her father, he panicked and ran out the back door.

Lueras also testified that she had first identified petitioner as her attacker when she saw his photograph in the newspaper. She later identified petitioner in a photo array prepared by the police.

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