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Lozano v. Boyd

United States District Court, M.D. Alabama, Southern Division

November 8, 2017

KEVIN DEMETRIUS LOZANO, # 288087, Petitioner,
v.
LOUIS BOYD, et al., Respondents.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.

         This 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.[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.

         I. INTRODUCTION AND PROCEDURAL HISTORY

         On 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.[2] Doc. No. 14-2 at 194. For that offense, Lozano was sentenced to 15 years in prison. Id. at 196.

         Lozano 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.

         On July 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.

         Lozano 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);[3] 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).

         On 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. No. 14-19.

         On 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).

         II. DISCUSSION

         A. Claims Adjudicated on Merits by State Court

         1. Standard of Review

         “When 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 & 412-13 (2000).

         A state 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.

         “Objectively 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).

         Federal 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).

         2. Appellate Counsel's Failure to Challenge Trial Court's Application of Rape Shield Law to Exclude Certain Evidence

         Lozano 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, [4] to exclude certain evidence regarding the victim's conduct. Doc. No. 1 at 8; see Doc. No. 14-9 at 11-14.

         The 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, stating:

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 sexual conduct.
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 to ...

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