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Quezada-Duran v. Schnurr

United States District Court, D. Kansas

January 17, 2019

ARNULFO QUEZADA-DURAN, Petitioner,
v.
DAN SCHNURR, Respondent.

          MEMORANDUM AND ORDER

          CARLOS MURGUIA JUDGE

         Petitioner Arnulfo Quezada-Duran, an inmate at the Hutchinson Correctional Facility in Hutchinson, Kansas, filed a pro se Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Doc. 1). Petitioner was convicted in Saline County District Court of one count of Second Degree Murder, one count of Possession of Cocaine, and one count of Possession of Methamphetamine. He was sentenced to 225 months in prison. He now seeks federal habeas relief on grounds that his trial counsel was ineffective for failing to call an expert witness on the issue of intoxication and for failing to file a motion to suppress, and on grounds that his appellate counsel was ineffective for failing to raise speedy trial issues on direct appeal. For the reasons set forth below, the court denies the petition.

         I. Background

         Highly summarizing the facts of the case, on December 31, 2005 petitioner was at a New Year's Eve dance at the 4-H building in Salina, Kansas when he encountered Angel Lerma in the men's bathroom. Lerma had dated petitioner's ex-wife, Irma Lopez, shortly after she and petitioner had gotten divorced. Lerma was married at the time he was dating Lopez. Lerma's wife, Berta, discovered the affair and divorced Lerma. Berta then began dating petitioner. Berta testified that petitioner wanted to get back at Lerma and Lopez, and had even pulled out a gun to show Lerma when he encountered him at a rodeo.

         Before and during the New Year's Eve dance, petitioner consumed approximately thirty beers and five glasses of tequila. He also admitted to using cocaine several times during the day. During the dance, Lerma and a few friends went into the men's restroom. Petitioner and his friend were already in the restroom. At some point petitioner shot Lerma in the back of the head and attempted to flee the scene. Security guards saw petitioner throw a gun to the ground as he fled. After he was apprehended, the guards discovered bullets in his pants pocket and bags of cocaine and methamphetamine in his jacket.

         After he was taken into custody, petitioner told police he was fighting someone bigger than him at the dance and was trying to separate other people who were fighting. He said he pulled his gun out because someone had hit him. The next day, after he sobered up, petitioner was able to recall who he went to the dance with, how much he drank, and what he was wearing, but could not remember being in the restroom, seeing Lerma, or anything that happened during the shooting.

         Petitioner was charged with first-degree murder, possession of cocaine, and possession of methamphetamine. At trial, the district court also instructed the jury on the lesser included offense of intentional second-degree murder and voluntary intoxication as an affirmative defense. The jury convicted petitioner of the lesser charge of intentional second-degree murder, possession of cocaine, and possession of methamphetamine.

         Petitioner appealed his convictions, arguing the trial court erred in not giving further lesser included offense instructions, not giving an instruction on self-defense, and enhancing his sentence without proof of aggravating facts. In 2009, the Kansas Court of Appeals affirmed petitioner's convictions and sentence, and the Kansas Supreme Court denied review. On November 2, 2010, petitioner filed a motion for post-conviction relief pursuant to K.S.A. § 60-1507 arguing his appellate counsel was ineffective for failing to raise speedy trial issues on direct appeal and claiming his trial counsel was ineffective for not filing a motion to suppress and for not hiring an expert to testify on the issue of intoxication. The district court appointed counsel to represent petitioner on his motion and held an evidentiary hearing. Petitioner's trial counsel had died and did not testify at the hearing. Petitioner's appellate counsel, an attorney with the appellate defender's office, testified that he does not raise every potential issue on appeal because there are page limits on the briefs, and therefore he wants to focus on the strongest issues. He testified that he and the chief attorney in the office use their best judgment about what issues to raise, and that the chief attorney edited his appellate briefs before they were filed. Although he did not specifically remember what issues he raised in petitioner's appellate brief, he testified he thought he raised the strongest issues and his brief was the best strategy at the time.

         Petitioner called a criminal defense attorney as an expert who testified that although she had not been involved in the trial or the appeal, it was her opinion that petitioner would have benefitted from a motion to suppress and that it would have been helpful if the trial attorney had hired an expert on the effects of drugs and alcohol and drug use on petitioner's mental abilities. She also testified that in her opinion, petitioner had not waived his right to a speedy trial. The State then called the lead prosecutor who tried petitioner's case. She testified that in her opinion, jurors can understand intoxication and its effect on people without the assistance of an expert witness and the jurors were made well aware that the petitioner had been intoxicated, as the trial counsel had raised the voluntary intoxication defense throughout the trial.

         The district court denied petitioner's motion, and he timely filed a notice of appeal. On November 13, 2015, the Kansas Court of Appeals affirmed the denial of petitioner's K.S.A. § 60-1507 motion. The Kansas Court of Appeals found that petitioner's trial counsel's decisions to not hire an expert and to not file a motion to suppress were strategic decisions and petitioner had failed to show that the outcome of his trial would have been different had his counsel taken either of these actions. The court also affirmed the district court's finding that petitioner was not prejudiced by appellate counsel's failure to raise a speedy trial claim, because the claim would not have been successful on appeal and that appellate counsel had exercised reasonable strategy.

         Petitioner filed a petition for review with the Kansas Supreme Court, which was denied. He then filed for federal habeas corpus relief pursuant to 28 U.S.C. § 2254.

         II. Legal Standards

         Petitions filed under 28 U.S.C. § 2254 are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Hale v. Gibson, 227 F.3d 1298, 1309 (10th Cir. 2000). Under the AEDPA, a court may only grant a petition if a petitioner can show the state court proceeding (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.” Id. (citing 28 U.S.C. § 2254(d)(1)-(2)). The state court's factual findings are presumed correct unless the petitioner can rebut the presumption by clear and convincing evidence. Id.

         Under 28 U.S.C. § 2254(d)(1), the court will only find a state court decision contrary to clearly established law “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). Alternatively, the court will find a state court decision is an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. The key inquiry into whether the decision was an unreasonable ...


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