United States District Court, M.D. Alabama, Southern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
matter concerns a pro se petition for writ of habeas
corpus under 28 U.S.C. § 2254 filed by Alabama inmate
Kevin Demetrius Lozano (“Lozano”) on August 21,
2015. Doc. No. 1. For the reasons that follow, it is the
recommendation of the magistrate judge that Lozano's
§ 2254 petition be denied without an evidentiary hearing
and this case be dismissed with prejudice.
INTRODUCTION AND PROCEDURAL HISTORY
February 6, 2013, in the Circuit Court of Houston County,
Lozano was found guilty of production of obscene material
containing a visual depiction of a person under 17 years old
involved in an obscene act, in violation of §
13A-12-197, Ala. Code 1975. Doc. No. 14-2 at 194. For that
offense, Lozano was sentenced to 15 years in prison.
Id. at 196.
appealed, arguing there was insufficient evidence that he
participated in the production of the obscene material, a
digital-video recording of Lozano engaged in sexual
intercourse with a 15-year-old female. Doc. No. 14-4. On
August 20, 2013, the Alabama Court of Criminal Appeals
affirmed Lozano's conviction by memorandum opinion. Doc.
No. 14-5. Lozano's application for rehearing was
overruled on October 11, 2013. Doc. Nos. 14-6 & 14-7.
Lozano did not seek certiorari review in the Alabama Supreme
Court. The Alabama Court of Criminal Appeals issued a
certificate of judgment on October 30, 2013. Doc. No. 14-8.
2, 2014, Lozano filed a pro se petition (later
supplemented) seeking post-conviction relief under Rule 32 of
the Alabama Rules of Criminal Procedure. Doc. No. 14-9 at
5-25. In his Rule 32 petition, Lozano claimed that his
appellate counsel was ineffective for failing to argue on
appeal that the trial court improperly applied Alabama's
rape shield law to exclude certain evidence regarding the
victim's conduct. Doc. No. 14-9 at 11-14. On July 14,
2014, the State moved to dismiss Lozano's Rule 32
petition. Id. at 30-31. On September 2, 2014, the
trial court entered an order denying the Rule 32 petition.
Id. at 32-33.
appealed, reasserting his Rule 32 claim that his appellate
counsel was ineffective for failing to argue that the trial
court improperly applied Alabama's rape shield law to
exclude certain evidence regarding the victim's conduct.
Doc. No. 14-11 at 26-31. Lozano also asserted two additional
claims: (1) that his appellate counsel was ineffective for
failing to argue on appeal that his trial counsel rendered
ineffective assistance on various grounds (id. at
14-25); and (2) that he was denied due process
because he did not receive a copy of the State's motion
to dismiss his Rule 32 petition before the trial court denied
the petition (id. at 32-35).
March 6, 2015, the Alabama Court of Criminal Appeals issued a
memorandum opinion affirming the trial court's denial of
Lozano's Rule 32 petition. Doc. No. 14-14. Lozano's
application for rehearing was overruled on April 17, 2015.
Doc. Nos. 14-15 & 14-16. Lozano filed a petition for writ
of certiorari with the Alabama Supreme Court, which that
court denied on July 24, 2015. Doc. Nos. 14-17 & 14-18.
On that same date, a certificate of judgment was issued. Doc.
August 21, 2015, Lozano initiated this habeas action by
filing a § 2254 petition reasserting the claims he
presented to the Alabama Court of Criminal Appeals on appeal
from the denial of his Rule 32 petition. Doc. No. 1. The
Respondents have filed an answer arguing that (1) Lozano has
procedurally defaulted his claim that his appellate counsel
was ineffective for failing to argue on appeal that his trial
counsel rendered ineffective assistance on various grounds
(see Doc. No. 14 at 5-8); (2) Lozano's claim
that his appellate counsel was ineffective for failing to
argue that the trial court improperly applied Alabama's
rape shield law to exclude certain evidence regarding the
victim's conduct was correctly adjudicated on the merits
by the state courts (id. at 8-13); and (3)
Lozano's claim that he was denied due process when he
received no copy of the State's motion to dismiss his
Rule 32 petition was not properly exhausted in the state
courts, and therefore has been defaulted, and even if the
claim has not been defaulted, it nonetheless fail on the
merits (id. at 13-14).
Claims Adjudicated on Merits by State Court
Standard of Review
it enacted the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Congress significantly limited
the circumstances under which a habeas petitioner may obtain
relief.” Hardy v. Allen, 2010 WL 9447204, at
*7 (N.D. Ala. Sep. 21, 2010). To prevail on a § 2254
claim adjudicated on the merits by the state courts, a
petitioner must show that a decision by the state courts was
“contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, ” or 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)(1) and (2);
see Williams v. Taylor, 529 U.S. 362, 404-05 &
court's decision is “contrary to” federal law
either if it fails to apply the correct controlling
authority, or if it applies the controlling authority to a
case involving facts “materially
indistinguishable” from those in a controlling case,
but nonetheless reaches a different result.
Williams, 529 U.S. at 404-06; Bell v. Cone,
535 U.S. 685, 694 (2002). A state court's decision is an
“unreasonable application” of federal law if it
either correctly identifies the governing rule but then
applies it to a new set of facts in a way that is objectively
unreasonable, or it extends or fails to extend a clearly
established legal principle to a new context in a way that is
objectively unreasonable. Williams, 529 U.S. at 407.
unreasonable” means something more than an
“erroneous” or “incorrect”
application of clearly established law, and a reviewing
federal court may not substitute its judgment for the state
court's even if the federal court, in its own independent
judgment, disagrees with the state court's decision.
See Williams, 529 U.S. at 411; Lockyer v.
Andrade, 538 U.S. 63, 76 (2003). The reviewing court
“must determine what arguments or theories supported or
... could have supported[ ] the state court's decision;
and then it must ask whether it is possible fairminded
jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the
Supreme] Court.” Harrington v. Richter, 562
U.S. 86, 102 (2011). “This is a ‘difficult to
meet, ' and ‘highly deferential standard for
evaluating state-court rulings, which demands that
state-court decisions be given the benefit of the
doubt.'” Cullen v. Pinholster, 536 U.S.
170, 181 (2011) (internal citations omitted).
courts are likewise directed to determine whether the state
court based its findings on “an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. §
2254(d)(2). A state court's determinations of fact shall
be “presumed to be correct, ” and the habeas
petitioner “shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.” 28 U.S.C. § 2254(e)(1).
Appellate Counsel's Failure to Challenge Trial
Court's Application of Rape Shield Law to Exclude Certain
contends that his appellate counsel was ineffective for
failing to argue on appeal that the trial court improperly
applied Alabama's rape shield law, Rule 412 of the
Alabama Rules of Evidence,  to exclude certain evidence
regarding the victim's conduct. Doc. No. 1 at 8;
see Doc. No. 14-9 at 11-14.
trial court granted the State's pretrial motion in limine
to exclude evidence, which Lozano had sought to introduce,
that the minor victim in the case had previously taken nude
images of herself and had displayed these images on a website
that she maintained, according to Lozano, “for older
men's sexual pleasure and gratification, as well as her
own.” See Doc. No. 14-1 at 92-97. In his Rule
32 petition, Lozano argued that the trial court erred in
excluding this evidence and that his appellate counsel was
ineffective for not raising this issue on appeal. Doc. No.
14-9 at 11-14. The trial court denied relief on this claim,
The court finds that the evidence in question was properly
excluded by Rule 412 of the Alabama Rules of Evidence. The
only practical effect of this evidence would be to place
before the trial jury the past sexual behavior of the minor
victim, which is clearly barred by law. This court notes the
argument by petitioner that the offense for which he was
convicted is not listed among those specifically mentioned in
Rule 412(2). However, applicability of this rule is not
limited to those offenses so listed, and the charge in this
case-production of an obscene matter involving a person under
the age of 17-would clearly be an offense involving criminal
Although this court's ruling at trial as to the
inadmissibility of this evidence was based on Rule 412, the
evidence was also inadmissible based upon general rules of
relevancy. The fact that the victim in this case took or
created nude photographic images of herself and displayed
them on a website, if in fact this allegation was true, in no
way refuted or even tended to refute the evidence set out by
the prosecution in this particular case. In fact, the
evidence at trial was undisputed that the victim had taken
the video in question; the only argument raised at trial by
the petitioner was that he could not be guilty of this
offense because he did not actually handle the camera or
actually make the video. The court notes that
petitioner's trial counsel was never able to articulate
how the admission of this evidence would have tended to
refute any evidence offered by the State.
Because the ruling at trial concerning the admission of this
evidence was proper, petitioner's appellate counsel was
not ineffective. An attorney is not ineffective for failing