Fuentes v. Brown

          ORDER DENYING PETITION FOR A WRIT OF HABEAS CORUPUS

          HON. WILLIAM T. LAWRENCE, SENIOR JUDGE

         Petitioner Joseph Fuentes was convicted of attempted murder, criminal recklessness, resisting law enforcement, and possession of a firearm by a felon in an Indiana state court. Mr. Fuentes, by counsel, now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He maintains that his trial counsel provided ineffective assistance by failing to impeach a critical state witness with a prior inconsistent statement. The Indiana Court of Appeals rejected this claim, reasoning that trial counsel made a reasonable strategic decision to not impeach the witness. Because this was a reasonable application of Strickland v. Washington, 466 U.S. 668 (1984), Mr. Fuentes is not entitled to habeas relief. Accordingly, Mr. Fuentes's petition for a writ of habeas corpus is denied and a certificate of appealability will not issue.

         I. Background

         Federal habeas review requires the Court to “presume that the state court's factual determinations are correct unless the petitioner rebuts the presumption by clear and convincing evidence.” Perez-Gonzalez v. Lashbrook, 904 F.3d 557, 562 (7th Cir. 2018); see 28 U.S.C. § 2254(e)(1). On direct appeal, the Indiana Court of Appeals summarized the relevant facts and procedural history as follows:

On October 2, 2012, South Bend Police Officers John Comeau (“Officer Comeau”) and Tim Cichowicz (“Officer Cichowicz”) were dispatched to a house on Ford Street in South Bend, Indiana on a report of a possibly armed male. When the officers arrived at the scene, Fuentes was standing by his tan Cadillac. Another man, later identified as Jaime Duron (“Duron”) was standing in the yard of the house. Officer Comeau told Duron to approach him and ordered Fuentes not to move. Duron obeyed the officer's commands, but Fuentes jumped into his car and drove away. Officer Cichowicz pursued Fuentes in his patrol car with the siren and flashing lights activated. Fuentes ignored Officer Cichowicz's car and continued to flee, running through a stop sign. Soon thereafter, Fuentes lost control of his car and crashed into a nearby yard. Undaunted, Fuentes exited his car and fled on foot.

Officer Cichowicz got out of his patrol car and gave chase on foot. With Officer Cichowicz closing in on him, Fuentes slowed down, turned around, and pointed a firearm at Officer Cichowicz at head level. Officer Cichowicz dove for cover and heard Fuentes fire the weapon. Fuentes then continued to flee down an alleyway. Officer Cichowicz continued to pursue Fuentes, took cover behind a garage, and peered around the corner. Fuentes, who was approximately twenty-five yards away, fired his weapon two more times as Officer Cichowicz took cover.

Fuentes then took refuge in an abandoned home. After the police SWAT team surrounded the house and kicked in the door, Fuentes surrendered himself. When he was taken into custody, Fuentes did not have a firearm on his person. However, during a search of Fuentes's car, the police found an AR-15 rifle in the trunk. Fuentes asked the police officer who transported him to jail, “if [the police] had found an A.R. rifle in the trunk of the car that [Fuentes] was driving.” Tr. p. 306.

As a result of this incident, the State charged Fuentes on October 4, 2012, with Class A felony attempted murder, Class C felony possession of a firearm by a felon, Class D felony criminal recklessness, Class D felony resisting law enforcement, Class D felony intimidation, and Class A misdemeanor carrying a handgun without a license. The State later dismissed the intimidation charge. A bifurcated jury trial commenced on September 3, 2013, with regard to all charges except possession of a firearm by a felon. The jury found Fuentes guilty the following day, and Fuentes then pleaded guilty to being a felon in possession of a firearm. At the October 2, 2013 sentencing hearing, the trial court “merged” the misdemeanor conviction for carrying a handgun without a license into the conviction for possession of a firearm by a felon and imposed an aggregate executed term of forty years.

Fuentes v. State, 10 N.E.3d 68, 71-72 (Ind.Ct.App. 2014) (footnote omitted) (“Fuentes I”). The Indiana Court of Appeals in Fuentes I affirmed Mr. Fuentes's convictions.

         Mr. Fuentes pursued post-conviction relief in state court, arguing that his trial counsel provided ineffective assistance. The state post-conviction court denied relief, and the Indiana Court of Appeals affirmed. See Fuentes v. State, 91 N.E.3d 1106, 2017 WL 4322384 (Ind.Ct.App. 2017) (“Fuentes II”).

         Mr. Fuentes filed the instant petition for a writ of habeas corpus by counsel on March 2, 2018. His only claim is that the Indiana Court of Appeals in Fuentes II improperly rejected his ineffective-assistance-of-trial-counsel claim.

         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). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) directs how the Court must consider petitions for habeas relief under § 2254. “In considering habeas corpus petitions challenging state court convictions, [the Court's] review is governed (and greatly limited) by AEDPA.” Dassey v. Dittmann, 877 F.3d 297, 301 (7th Cir. 2017) (en banc) (citation and quotation marks omitted). “The standards in 28 U.S.C. § 2254(d) were designed to prevent federal habeas retrials and to ensure that state-court convictions are given effect to the extent possible under law.” Id. (citation and quotation marks omitted).

         A federal habeas court cannot grant relief unless the state court's ...