United States District Court, S.D. Indiana, Terre Haute Division
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF APPEALABILITY
MAGNUS-STINSON, CHIEF JUDGE
reasons explained in this Entry, the petition of Sergio
Villanueva for a writ of habeas corpus must be denied. In
addition, the Court finds that a certificate of appealability
should not issue.
facts pertinent to Villanueva's claims are set out by the
Indiana Court of Appeals in affirming the denial of his
petition for post-conviction relief: In August 2008, the
State filed an eight-count information charging Villanueva
with class C felony sexual misconduct with a minor, class D
felony sexual battery, class D felony criminal confinement,
three counts of class A misdemeanor contributing to the
delinquency of a minor, class A misdemeanor resisting law
enforcement, and class B misdemeanor battery. During the
ensuing months, the State offered Villanueva plea agreements
with determinate sentences of 28 and 30 years. On October 19,
2009, with the foregoing charges still pending, the State
filed an additional charge, Class A felony child molesting.
On August 17, 2010, Villanueva pled guilty to the Class A
felony child molesting charge, the remaining charges were
dismissed, and Villanueva was sentenced to an executed term
of 50 years.
plea agreement with the State included a provision waiving
what would otherwise be his right to appeal. Despite this
provision, Villanueva filed an appeal. The State of
Indiana's motion to dismiss that appeal was granted on
February 11, 2011. No petition for transfer was filed with
the Indiana Supreme Court.
March 30, 2011, Villanueva filed an action for
post-conviction relief. The petition was denied after an
evidentiary hearing, and that ruling was affirmed in
Villanueva v. State, 33 N.E.3d 1211 (Ind.Ct.App.),
transfer denied, 37 N.E.3d 960 (Ind. 2015). This
action was then filed on January 27, 2016 and is governed by
provisions of the Antiterrorism and Effective Death Penalty
federal court may grant habeas relief only if the petitioner
demonstrates that he is in custody “in violation of the
Constitution or laws . . . of the United States.” 28
U.S.C. § 2254(a). A federal habeas court's role in
reviewing state prisoner applications was modified by AEDPA
“in order to prevent federal habeas
‘retrials' and to ensure that state-court
convictions are given effect to the extent possible under
law.” Bell v. Cone, 535 U.S. 685, 693 (2002).
“Under the current regime governing federal habeas
corpus for state prison inmates, the inmate must show, so far
as bears on this case, that the state court which convicted
him unreasonably applied a federal doctrine declared by the
United States Supreme Court.” Redmond v.
Kingston, 240 F.3d 590 (7th Cir. 2001) (citing 28 U.S.C.
§ 2254(d)(1); Williams v. Taylor, 529 U.S. 362
(2000); Morgan v. Krenke, 232 F.3d 562 (7th Cir.
2000)). “A state-court decision involves an
unreasonable application of this Court's clearly
established precedents if the state court applies this
Court's precedents to the facts in an objectively
unreasonable manner.” Brown v. Payton, 544
U.S. 131, 141 (2005) (internal citations omitted). “The
habeas applicant has the burden of proof to show that the
application of federal law was unreasonable.”
Harding v. Sternes, 380 F.3d 1034, 1043 (7th Cir.
2004) (citing Woodford v. Visciotti, 537 U.S. 19, 25
addition to the foregoing substantive standard, “[i]t
is the rule in this country that assertions of error in
criminal proceedings must first be raised in state court in
order to form the basis for relief in habeas. Claims not so
raised are considered defaulted.” Breard v.
Greene, 523 U.S. 371, 375 (1998) (citing Wainwright
v. Sykes, 433 U.S. 72 (1977)).
Procedural default can occur in several ways, “but two
are paradigmatic.” Richardson v. Lemke, 745
F.3d 258, 268 (7th Cir. 2014). A state prisoner can
procedurally default a federal claim if he fails to
“fairly present” it “throughout at least
one complete round of state-court review, whether on direct
appeal of his conviction or in post-conviction
proceedings.” Id. Procedural default can also
occur if the state court rejects a federal claim based on a
state procedural rule “that is both independent of the
federal question and adequate to support the judgment.”
Id. (quotation marks omitted).
Clemons v. Pfister, No. 14-3797, 2017 WL 74709, at
*2 (7th Cir. Jan. 9, 2017)(also citing Thomas v.
Williams, 822 F.3d 378, 384 (7th Cir. 2016)); see
also Hough v. Anderson, 272 F.3d 878, 892-93 (7th Cir.
2001)(petitioner's failure to present issue to Indiana
Supreme Court constituted procedural default); Hogan v.
McBride, 74 F.3d 144, 146 (7th Cir. 1996)
(“Forfeiture under § 2254 is a question of a
state's internal law: failure to present a claim at the
time, and in the way, required by the state is an independent
state ground of decision, barring review in federal
default, although otherwise a bar to federal habeas review,
may be excused in certain circumstances. “A federal
court may excuse a procedural default if the habeas
petitioner establishes that (1) there was good cause for the
default and consequent prejudice, or (2) a fundamental
miscarriage of justice would result if the defaulted claim is
not heard.” Johnson v. Foster, 786 F.3d 501,
504 (7th Cir. 2015)(internal citations omitted). “Under
this cause-and- prejudice test, a cause is defined as
‘an objective factor, external to the defense, that
impeded the defendant's efforts to raise the claim in an
earlier proceeding.' Prejudice means ‘an error
which so infected the entire trial that the resulting
conviction violates due process.'” Smith v.
McKee, 598 F.3d 374, 382 (7th Cir. 2010) (internal
second exception, known as the fundamental miscarriage of
justice exception, requires a petitioner to show that he is
actually innocent. He must show that “in light of new
evidence, ‘it is more likely than not that no
reasonable juror would have found petitioner guilty beyond a
reasonable doubt.'” House v. Bell, 547
U.S. 518, 537 (2006) (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)). Actual innocence means factual
innocence, not legal insufficiency. Bousley v. United
States, 523 U.S. 614, 623 (1998).