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Villanueva v. Superintendent

United States District Court, S.D. Indiana, Terre Haute Division

January 20, 2017

SERGIO VILLANUEVA, Petitioner,
v.
SUPERINTENDENT, Respondent.

          ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          JANE MAGNUS-STINSON, CHIEF JUDGE

         For the 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.

         I. Background

         The 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.

         Villanueva's 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.

         On 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 Act (“AEDPA”).

         II. Applicable Law

         A 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 (2002)).

         In 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 court.”).

         Procedural 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 citation omitted).

         The 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).

         III. ...


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