Sanchez-Diaz v. Wallace

• Decision Date: 27 January 2016
• Docket Number: Case No. 4:14CV185CAS(ACL)
• Citation: Sanchez-Diaz v. Wallace, Case No. 4:14CV185CAS(ACL) (E.D. Mo. Jan 27, 2016)
• Parties: MARCO SANCHEZ-DIAZ, Petitioner, v. IAN WALLACE, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

MARCO SANCHEZ-DIAZ, Petitioner, v. IAN WALLACE, Respondent.

Case No. 4:14CV185CAS(ACL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

January 27, 2016

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the Petition of Marco Sanchez-Diaz for a Writ of Habeas Corpus under 28 U.S.C. § 2254. This cause was referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636 (b).

I. Procedural History

Sanchez-Diaz is incarcerated at the Southeast Correctional Center in Charleston, Missouri, pursuant to the Sentence and Judgment of the Circuit Court of St. Francois County, Missouri. (Respt's Ex. B at 80-82.)

On September 3, 2010, a jury found Sanchez-Diaz guilty of first-degree child molestation and two counts of first-degree statutory sodomy. (Respt's Ex. A at 275.) The court sentenced Sanchez-Diaz to fifteen years' imprisonment on the child molestation count, and thirty years' imprisonment on each of the statutory sodomy counts, all terms to be served consecutively. (Respt's Ex. A at 301.)

In his direct appeal of his convictions, Sanchez-Diaz first argued that the trial court plainly erred in failing to sua sponte declare a mistrial when two witnesses testified that the victim, M.L., suffers from post-traumatic stress disorder ("PTSD"). (Respt's Ex. C at 19.) Sanchez-Diaz also argued that the trial court erred in overruling his objection and admitting into evidence testimony that the victim had all the symptoms of PTSD. Id. at 20. On January 17, 2012, the Missouri Court of Appeals affirmed Sanchez-Diaz's convictions. (Respt's Ex. E.) The Court held that Sanchez-Diaz's first claim was not preserved and reviewed for plain error only. Id. at 5.

Sanchez-Diaz filed a pro se motion for post-conviction relief under Rule 29.15. (Respt's Ex. F at 4-14.) After appointment of counsel, an amended post-conviction relief motion and request for evidentiary hearing was filed. Id. at 24-56. The amended motion raised the following ineffective assistance of counsel claims: (1) trial counsel failed to object to the state's closing argument based on improper personalization; and (2) trial counsel failed to object and request a mistrial when Patricia Hernandez, M.L.'s mother, testified that Sanchez-Diaz was "rough" with M.L. Id. The motion court denied Sanchez-Diaz's amended motion and his request for an evidentiary hearing. Id. at 45-47.

In his appeal from the denial of post-conviction relief, Sanchez-Diaz raised the same claims he had alleged in his post-conviction relief motion. (Respt's Ex. G.) The Missouri Court of Appeals affirmed the decision of the motion court. (Respt's Ex. H.)

Sanchez-Diaz filed the instant Petition on January 31, 2014. (Doc. 1.) He raises the following claims: (1) the trial court erred by failing to sua sponte declare a mistrial when two witnesses testified that M.L. suffers from PTSD; (2) the trial court erred by admitting into evidence testimony that M.L. had symptoms of PTSD; (3) he received ineffective assistance of trial counsel because trial counsel failed to object and request a mistrial during the state's closing argument; and (4) trial counsel was ineffective for failing to object and request a mistrial when Patricia Hernandez testified that Sanchez-Diaz was "rough" with M.L. Id.

On April 22, 2014, Respondent filed a Response to Order to Show Cause. (Doc. 9.) Respondent argues that Ground One is procedurally defaulted, and all of Sanchez-Diaz's claims fail on their merits.

Sanchez-Diaz has filed a Traverse, in which he provides further argument in support of his grounds for relief. (Doc. 15.)

II. Facts

The sufficiency of the evidence is not in dispute. The victim, M.L., is the daughter of Sanchez-Diaz's ex-wife. In separate incidents, when M.L. was less than twelve years old, Sanchez-Diaz touched M.L.'s vagina with his hand (Count I), made M.L. touch his penis with her hand (Count II), and touched M.L.'s vagina with his penis (Count IV).

III. Standard of Review

A federal court's power to grant a writ of habeas corpus is governed by 28 U.S.C. § 2254(d), which provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

The Supreme Court construed Section 2254(d) in Williams v. Taylor, 529 U.S. 362 (2000). With respect to the "contrary to" language, a majority of the Court held that a state court decision is contrary to clearly established federal law "if the state court arrives at a conclusionopposite to that reached by [the Supreme Court] on a question of law" or if the state court "decides a case differently than [the] Court has on a set of materially indistinguishable facts." Id. at 405. Under the "unreasonable application" prong of § 2254(d)(1), a writ may issue if "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies [the principle] to the facts of the particular state prisoner's case." Id. Thus, "a federal habeas court making the 'unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 410. Although the Court failed to specifically define "objectively unreasonable," it observed that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. at 410.

IV. Procedural Default

To avoid defaulting on a claim, a petitioner seeking federal habeas review must have fairly presented the substance of the claim to the state courts, thereby affording the state courts a fair opportunity to apply controlling legal principles to the facts bearing on the claim. Wemark v. Iowa, 322 F.3d 1018, 1020-21 (8th Cir. 2003) (internal quotation marks and citations omitted) (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) and Anderson v. Groose, 106 F.3d 242, 245 (8th Cir. 1997)). Specifically, a state prisoner must fairly present each of his claims in each appropriate state court before seeking federal habeas review of the claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004). A claim has been fairly presented when a petitioner has properly raised the same factual grounds and legal theories in the state courts that he is attempting to raise in his federal petition. Wemark, 322 F.3d at 1021 (internal quotation marks omitted) (quoting Joubert v. Hopkins, 75 F.3d 1232, 1240 (8th Cir. 1996)). Claims that are not fairly presented to the state courts are procedurally defaulted. See id. at 1022.

In cases of procedural default, federal courts are barred from reaching the merits of thedefaulted ground absent a showing of both 'cause' and 'actual prejudice' resulting from the alleged constitutional violations. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). A petitioner must "show that some objective factor external to the defense impeded counsel [or petitioner's] efforts to comply with the State's procedural rule" in order to show "cause" for procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). "Cause" can be demonstrated by either "a showing that the factual or legal basis for a claim was not reasonably available to counsel" or by a showing that interference by officials made compliance impracticable. Id. If a petitioner cannot show 'cause' for the procedural default, then the court need not determine whether actual prejudice has resulted. See Leggins v. Lockhart, 822 F.2d 764, 768 (8th Cir. 1987).

Respondent argues that Ground One is procedurally defaulted because the state court found that Sanchez-Diaz did not preserve this claim by failing to request a mistrial. Sanchez-Diaz responds that the Missouri Court of Appeals "lifted any procedural bar with regards to this ground by the Court reviewing the ground on the merits..." (Doc. 15 at 2.)

Until recently, there was uncertainty whether a state court's plain error review of a defaulted claim cured or otherwise remedied a procedural default for federal habeas purposes. The Eighth Circuit has now made clear that a state court's plain error review of an unpreserved or waived claim does not serve to excuse a procedural default. See Clark v. Bertsch, 780 F.3d 873, 876-77 (8th Cir. 2015) (resolving intra-circuit split).

In this case, the Missouri Court of Appeals concluded that Sanchez-Diaz failed to preserve the claims contained in Ground One. Thus, Sanchez-Diaz defaulted Ground One. Under Bertsch, the fact that the Missouri Court of Appeals reviewed Sanzhez-Diaz's arguments for plain error does not cure the default.

Accordingly, the undersigned recommends that Ground One be dismissed.

V. Sanchez-Diaz's Claims

Sanchez-Diaz raises four grounds for relief. The undersigned will discuss these claims in turn.

1. Ground One

Sanchez-Diaz argues that the trial court erred by failing to sua sponte intervene and declare a mistrial when two witnesses—Diana Blackwell and Dr. Carrie Kolmeyer-Dinehart—testified that the victim suffers from PTSD. Sanchez-Diaz claims that this testimony constituted impermissible opinion evidence vouching for M.L.'s credibility, thereby invading the province of the jury.

Ms. Blackwell, a licensed clinical social worker, testified that she saw the victim three times for therapy sessions. (Respt's Ex. A at 185, 189.) Sanchez-Diaz objects to the following testimony:

[Prosecutor]: Okay. And did you believe, after having seen her for those three times and the

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