Velazquez-Ramirez v. Fayram
Decision Date | 07 February 2014 |
Docket Number | No. C12-4065-MWB,C12-4065-MWB |
Parties | ESTEBAN VELAZQUEZ-RAMIREZ, Petitioner, v. JOHN FAYRAM, Respondent. |
Court | U.S. District Court — Northern District of Iowa |
Petitioner Esteban Velazquez-Ramirez's Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody is before me pursuant to a Report and Recommendation of United States Magistrate Judge Leonard T. Strand recommending that the petition be denied. Both parties filed objections to the Report and Recommendation. I now consider whether to accept, reject, or modify Judge Strand's Report and Recommendation in light of the objections.
Absent rebuttal by clear and convincing evidence, I must presume that any factual determinations made by a state court in a state prisoner's criminal and post-conviction relief cases were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009) ( ). The Iowa Court of Appeals summarized the facts underlying Velazquez-Ramirez's conviction, as follows:
Velazquez-Ramirez made a pre-trial motion to have a questionnaire sent to the jury panel. The Iowa District Court granted his request. In its post-conviction relief ruling, the Iowa District Court provided the following summary of that questionnaire and its results:
Velazquez-Ramirez v. State, Crawford Co. No. LACV035590, Ruling on Post-conviction Relief at 29-30 (Iowa Dist. Ct. Oct. 20, 2010); Respondent's Appendix Doc. No. 22-1 at 36-37.
Velazsquez-Ramirez is an inmate at Anamosa State Penitentiary, Anamosa, Iowa. He was convicted following a jury trial of murder in the first degree on March 19, 2004. Velazquez-Ramirez appealed, arguing that he was denied effective assistance of counsel by his counsel's failure to "make an appropriately specific motion forjudgment of acquittal to challenge the sufficiency of the evidence to establish malice aforethought . . . ." State v. Valazquez-Ramirez, 697 N.W.2d 127, 2005 WL 724172, at *1 (Iowa Ct. App. Mar. 31, 2005) (unpublished table decision).1 The Iowa Court of Appeals affirmed Velazquez-Ramirez's conviction, finding that his counsel had raised the issue of the sufficiency of the evidence to establish malice aforethought no less than four times and the district court had ruled on the issue on several occasions. Id. Therefore, the court of appeals concluded that Velazquez-Ramirez's counsel's conduct did not constitute deficient performance or result in prejudice. Id.
The Iowa Supreme Court granted review solely to discuss the issue of sufficiency of the evidence to sustain a finding of malice. State v. Valazquez-Ramirez, 707 N.W.2d 588, 2005 WL 3556252, at *1 (Iowa Dec. 30, 2005) (per curiam) (unpublished table decision). The Iowa Supreme Court concluded that "the evidence was sufficient beyond a reasonable doubt to sustain the finding of the jury that [Velazquez-Ramirez] acted with malice." Id. Thus, the Iowa Supreme Court affirmed the decision of the Iowa Court of Appeals and judgment of the district court. Id. at *2.
Velazquez-Ramirez then brought a state action for post-conviction relief ("PCR") in which he made the following claims: (1) Ineffective assistance of counsel for his failure to secure a second attorney to represent Velazquez; (2) Ineffective assistance of counsel for his failure to obtain a psychological exam of Velazquez; (3) That the failure to apply the ruling in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006), retroactively to his case violated his equal protection rights;2 (4) Ineffective assistanceof counsel for presenting a juror questionnaire to potential jurors and failure to file motion in limine to exclude reference to Velazquez-Ramirez's citizenship status; (5) Ineffective assistance of counsel for failing to file a motion for change of venue; (6) Ineffective assistance of counsel for failing to demand compliance with Article 36 of the Vienna Convention on Consular Relations ("the Vienna Convention"); (7) Ineffective assistance of counsel for failing to file a motion to suppress Velazquez-Ramirez's statements to police based upon either...
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