United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING PETITION FOR A WRIT OF HABEAS
WILLIAM T. LAWRENCE, SENIOR JUDGE
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.
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
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
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.
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”).
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
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).
federal habeas court cannot grant relief unless the state