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Vizcaino-Ramos v. Lindamood

United States District Court, W.D. Tennessee, Eastern Division

November 7, 2017

JOSE LUIS VIZCAINO-RAMOS, Petitioner,
v.
CHERRY LINDAMOOD, Respondent.

          ORDER DENYING MOTIONS FOR EVIDENTIARY HEARING AND DISCOVERY, DENYING MOTION FOR COUNSEL AND FINANCIAL ASSISTANCE, AND GRANTING LEAVE TO FILE SUPPLEMENTAL REPLY

          S. THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.

         On September 11, 2014, Petitioner, Jose Luis Vizcaino-Ramos, filed a pro se habeas corpus petition under 28 U.S.C. § 2254 (“Petition”). (ECF No. 1.) Respondent, Cherry Lindamood, filed an Answer to the Petition. (ECF No. 21.) In response, Vizcaino-Ramos filed two motions for “fact-finding procedures” (ECF Nos. 22 and 25), and a Reply (ECF No. 27.) In all three submissions, Petitioner requests discovery and an evidentiary hearing. Petitioner has also filed a motion for appointment of counsel and for “financial assistance for an expert.” (ECF No. 26.) For the reasons that follow, the motions are DENIED. Petitioner is GRANTED leave to file a supplemental reply.

         BACKGROUND

         In January 2010, a jury convicted Vizcaino-Ramos of first degree murder, and the trial court sentenced him to life in prison. (ECF No. 20-1 at 43.) On direct appeal, the Tennessee Court of Criminal Appeals (“TCCA”) affirmed the conviction. See State v. Vizcaino-Ramos, No. W2010-01325-CCA-R3-CD, 2011 WL 3330294, at *1 (Tenn. Crim. App. August 3, 2011), perm. app. denied (Tenn. Nov. 16, 2011). The Tennessee Supreme Court subsequently denied Petitioner's application for permission to appeal. (ECF No. 20-8 at 1.)

         Vizcaino-Ramos filed a pro se post-conviction petition in the state court (ECF No. 20-9 at 6-40), which was later amended through appointed counsel (Id. at 46-50). The post-conviction trial court denied the claims and the TCCA affirmed. See Vizcaino-Ramos v. State, No. W2012-02319-CCA-R3-PC, 2013 WL 6212041, at *1 (Tenn. Crim. App. Nov. 20, 2013), perm. app. denied (Tenn. April 9, 2014). The Tennessee Supreme Court denied Petitioner's application for permission to appeal. (ECF No. 20-15 at 1.)

         Petitioner filed his federal habeas Petition on September 11, 2014, asserting the following substantive claims:

Claim 2 : Trial counsel was ineffective in failing “to obtain and present forensic analysis of the wou[n]d pattern and crime scene evidence which would have yielded exculpatory evidence showing Petitioner's [i]nnocence.”
Claim 4: Trial counsel “failed to properly request forensic examination[]s of the victim's hands, personal effects, and clothing in order to check for physical evidence which supported Petitioner's testimony that the shooting was unintentional as opposed to premeditated murder.”
Claim 6: Trial counsel failed “to properly request forensic examination [of] the .9 mm pistol used in the shooting, in order to check for physical evidence which supported Petitioner's testimony that the shooting was unintentional as opposed to premeditated murder.”
Claim 8: Trial counsel failed “to properly present to the jurors the facts and circumstances surrounding the murder of the victim, in order to show that it was an unintentional as opposed to premeditated murder[, ]” including:
8(a): failing to present to the jury evidence that the victim initiated contact with Vizcaino-Ramos in violation of a “no-contact” order;
8(b) failing to present other evidence of lack of premeditation.
Claim 10: Trial counsel failed “to properly request instructions on, and present evidence to support the defenses of: (a) diminished capacity, (b) voluntary intoxication, (c) duress, and (d) accident and misfortune; and thereby prove that the murder of Mary Graves was unintentional as opposed to premeditated.”
Claim 12: Trial counsel failed “to properly obtain and present to the jurors, testimony of a forensic psychiatrist or neuro-psychologist showing that under the circumstances and facts of the murder, Petitioner lacked the capacity [to] form the requisite mental state.”
Claim 14: Trial counsel failed “to properly object to and challenge the admissib[ility] [of] evidence of prior bad acts, which therefore prejudiced the Petitioner.”
Claim 16:Trial counsel “made egregious and erroneous statements to the jury during both opening and ...

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