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Lucio v. Superintendent

United States District Court, N.D. Indiana, Hammond Division

October 26, 2017

JUAN LUCIO, Petitioner,
v.
SUPERINTENDENT, Respondent.

          OPINION AND ORDER

          JAMES T. MOODY UNITED STATES DISTRICT COURT JUDGE

         Juan Lucio filed a habeas corpus petition challenging his conviction and life sentence without the possibility of parole for murder by the Hamilton County Superior Court on April 25, 2008, under cause number 29S00-0901-CR-1. (DE # 1 at 1.)

         I. BACKGROUND

         In deciding this habeas petition, the court must presume the facts set forth by the state courts are correct. 28 U.S.C. § 2254(e)(1). It is Lucio's burden to rebut this presumption with clear and convincing evidence. Id. The Court of Appeals of Indiana summarized the evidence as follows:

The trial evidence favorable to the verdict indicated that the defendant was recruited by Toby Payne to kill Payne's estranged wife Rebecca Payne, and her boyfriend, George Benner. Toby had given the defendant a key to Rebecca's house and a map, and promised him $100, 000 from a life insurance policy in return for the killing. The defendant, in turn, recruited Kyle Duckworth to drive him to Rebecca's house in exchange for $200 or a quarter-pound of marijuana. Originally, the defendant planned to be the shooter, but later changed his mind and recruited Anthony Delarosa to be the triggerman. On April 2, 2007, Duckworth drove the defendant and Delarosa to Rebecca's house. The defendant gave Delarosa a gun, and Delarosa entered the house but returned and said that Rebecca was not home. The men agreed to try again later. On April 4, the defendant called Duckworth to pick him up, called Delarosa to ask if he was ready, and called Toby Payne to inform him they were trying again. The three men drove to Rebecca's home, the defendant again gave Delarosa a gun, and Delarosa entered the house and fired the fatal shots. When police had questioned him during their investigation, the defendant first admitted that Toby Payne had given him a key to the house and asked him to kill Rebecca, but later claimed that they were supposed to scare Rebecca and extort money from her, that Delarosa told him where to go, that he did not know Delarosa had a gun, that he did not know why Delarosa was extorting money from her, and that he and Duckworth were supposed to get $200 each for driving.
At the conclusion of all the evidence [presented at the ensuing trial], the jury was instructed on vicarious criminal liability.[] It found the defendant guilty on all three counts. In the subsequent penalty phase proceeding, the jury determined that the State had proved two charged aggravating circumstances-murder for hire and multiple killings, Ind. Code §§ 35-50-2-9(b)(4), (b)(8)-beyond a reasonable doubt, found that the aggravators outweighed the mitigators, and recommended that the defendant be sentenced to life in prison without parole. The trial court, following the jury's recommendation, sentenced the defendant to life without parole for the murder counts and imposed a fifty-year term for the conspiracy count, all sentences to run consecutively.

(DE # 13-10 at 2-3 (citing Lucio v. State, 30 N.E.3d 787 at *1 (Ind.Ct.App.)).)

         Lucio argues that he is entitled to habeas corpus relief because he was denied effective assistance of trial counsel. Lucio argues that his trial counsel: (1) failed to properly preserve issues for appeal; (2) failed to present mitigating evidence during the evidentiary phase of the trial; (3) failed to present mitigating evidence during the penalty phase of the trial; (4) failed to object to the State's statement during closing argument; (5) failed to object to the State's belated amendment of the information; and (6) failed “to be certified to handle life without parole cases.” (DE # 1 at 3.) Lucio also argues that the trial court improperly denied trial counsel's motion for the appointment of co-counsel to assist in challenging the State's recommendation of life without the possibility of parole. (Id.)

         II. PROCEDURAL DEFAULT

         Respondent argues that Lucio is procedurally defaulted-and thus barred from pursuing-all but two of his claims. (DE # 13 at 7.) Respondent argues that Lucio failed to raise the following issues when he petitioned the Indiana Supreme Court for transfer of his post-conviction relief (“PCR”) case: (1) trial counsel's failure to preserve arguments for appeal; (2) trial counsel's failure to present mitigating evidence during the trial phase; (3) trial counsel's failure to object to the prosecutor's comments during trial; (4) trial counsel's failure to be certified to handle cases involving a requested sentence of life without parole; and (5) the trial court's denial of counsel's request for co-counsel.

         Before considering the merits of a habeas petition, a federal court must ensure that the petitioner has exhausted all available remedies in state court. 28 U.S.C. § 2254(b)(1)(A); Lewis v. Sternes, 390 F.3d 1019, 1025 (7th Cir. 2004). To avoid procedural default, a habeas petitioner must fully and fairly present his federal claims to the state courts. Boyko v. Parke, 259 F.3d 781, 788 (7th Cir. 2001). Fair presentment “does not require a hypertechnical congruence between the claims made in the federal and state courts; it merely requires that the factual and legal substance remain the same.” Anderson v. Brevik, 471 F.3d 811, 814-15 (7th Cir. 2006) (citing Boyko, 259 F.3d at 788). It does, however, require “the petitioner to assert his federal claim through one complete round of state-court review, either on direct appeal of his conviction or in post- conviction proceedings.” Lewis, 390 F.3d at 1025 (internal quotation marks and citations omitted). “A habeas petitioner who has exhausted his state court remedies without properly asserting his federal claim at each level of state court review has procedurally defaulted that claim.” Id.

         Respondent is correct that Lucio did not raise many of his present claims before the Indiana Supreme Court.[1] Specifically, he did not argue that his trial counsel: failed to preserve issues for appeal; failed to present mitigation evidence during the trial phase; or failed to be certified to represent defendants facing life without parole. Lucio also did not pursue a claim that the trial court erred in denying his counsel's request for co-counsel. Because he did not fully and fairly present these claims through one full round of state court review, he is procedurally defaulted on these claims.

         A habeas petitioner can overcome a procedural default by showing both cause for failing to abide by state procedural rules and a resulting prejudice from that failure. Wainwright v. Sykes, 433 U.S. 72, 90 (1977); Wrinkles v. Buss, 537 F.3d 804, 812 (7th Cir. 2008), cert. denied, 129 S.Ct. 2382 (2009). Cause sufficient to excuse procedural default is defined as “some objective factor external to the defense” which prevented a petitioner from pursuing his constitutional claim in state court. Murray v. Carrier, 477 U.S. 478, 492 (1986). Here, Lucio does not attempt to argue cause or prejudice. Nor could he, as he was assisted by counsel at all stages of his post-conviction relief case and he does not presently challenge the effectiveness of that representation.

         A habeas petitioner can also overcome a procedural default by establishing that the Court's refusal to consider a defaulted claim would result in a fundamental miscarriage of justice. House v. Bell, 547 U.S. 518, 536 (2006). To meet this exception, the petitioner must establish that “a constitutional violation has resulted in the conviction of one who is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 324 (1995). Here, Lucio does not argue that any fundamental miscarriage of justice will occur. Because he cannot show cause for his failure to fairly present these claims in one complete round of state court review, or that any fundamental miscarriage of justice would occur if the claims are not addressed, these claims are procedurally defaulted and that default is not excused.

         Respondent is mistaken, however, in asserting that Lucio is also procedurally defaulted on his ineffective assistance of counsel claim regarding a statement made by the prosecutor during closing argument. Respondent contends, “Lucio never claimed that trial counsel was ineffective for failing to object to the prosecutor's comments during trial . . . .” (DE # 13 at 7-8.) Rather, Respondent argues that Lucio only raised a “free-standing prosecutorial misconduct claim” and therefore, “any allegation that trial counsel was ineffective for failing to object to the prosecutor's comments is barred by procedural default.” Id. This is not the case. In his petition to transfer his PCR case to the Indiana Supreme Court, Lucio argued that his trial counsel “failed to object to . . . the prosecutor's misstatement of fact . . . .” (DE # 13-13 at 2.) Respondent, in turn, incorporated by reference the response he submitted in opposition to Lucio's PCR appeal to the Indiana Court of Appeals. (DE # 13-14 at 4.) In that brief, Respondent argues at length that Lucio's trial counsel was not ineffective for failing to object to the prosecutor's statement during closing argument. (DE # 13-8 at 41-46.) Respondent had a full and fair opportunity to address this claim, and did so. Thus, Lucio is not procedurally defaulted on this claim.

         III. LEGAL STANDARD

         A. Habeas Corpus Standard

         “Federal habeas review . . . exists as a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (internal quotation marks and citations omitted).

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).

[This] standard is intentionally difficult to meet. We have explained that clearly established Federal law for purposes of §2254(d)(1) includes only the holdings, as opposed to the dicta, of this Court's decisions. And an unreasonable application of those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice. To satisfy this high bar, a habeas petitioner is required to show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

Woods, 135 S.Ct. at 1376 (internal quotation marks and citations omitted). Criminal defendants are entitled to a fair trial but not a “perfect” one. Rose v. Clark, 478 U.S. 570, 579 (1986). To warrant relief, a state court's decision must be more than incorrect or erroneous; it must be “objectively” unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 (2003). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal quotation marks omitted).

         B. Ineffective Assistance of Counsel Standard

         To prevail on an ineffective assistance of counsel claim in the state courts, Lucio had to show that counsel's performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668 (1984). The test for prejudice is whether there was a reasonable probability that “but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. A reasonable probability is a probability “sufficient to undermine confidence in the outcome.” Id. at 693. In assessing prejudice under Strickland “[t]he likelihood of a different result must be substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011). However, “[o]n habeas review, [the] inquiry is now whether the state court ...


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