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Vizcaino-Ramos v. Lindamood

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

January 10, 2018

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

          ORDER DENYING § 2254 PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          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.) For the reasons that follow, the Petition is DENIED.

         BACKGROUND

         The following background summary is drawn from the state court record (ECF No. 20), and the decisions in Vizcaino-Ramos's state appeals. 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); Vizcaino-Ramos v. State, No. W2012-02319-CCA-R3-CD, 2013 WL 6212041, at *1 (Tenn. Crim. App. Nov. 20, 2013), perm. app. denied (Tenn. Apr. 9, 2014).

         1. Trial and Direct Appeal

         In early 2010, Vizcaino-Ramos was tried before a Hardeman County jury for the first degree premediated murder of his ex-girlfriend, Mary Graves. Vizcaino-Ramos, 2011 WL 3330294, at *1. The victim's son, who was eleven years old at the time of trial, testified that in March 2004, when he was five years old, he was sitting in the back seat of his mother's car, which was parked in front of their house. His mother and the defendant were in the front seat arguing. He testified that the defendant shot his mother, “dragged [her] body out of the car and placed it by her house.” Id. The defendant then took the child into his mother's house and left him alone for the night. Id.

         A passerby testified that he encountered the child that same night “standing in the middle of the highway.” Id. The child told him that his “dad” had killed his mom. The man “flagged down a police officer and explained the situation.” Id.

         Several law enforcement officers testified to various aspects of the investigation. Their testimonies revealed that the victim's body, which “had multiple gunshot wounds, ” was found “by the side” of her house”; “a nine millimeter handgun, spent shell casings, and rounds of ammunition were found at the scene”; and the victim's car was later found in Texas and contained “a spent shell casing that was fired from a handgun” which “had the marking of a nine millimeter Luger.” Id. at *1-2. It was determined that the casing found at the crime scene and the slugs found inside the victim's body “were fired from the gun found at the crime scene.” Id. at *2.

         An officer also testified that she had interviewed the child after the shooting, and that his “description during the interview was consistent with his testimony at trial.” Id. She stated that the defendant was found in Mexico in late 2008 and extradited to Tennessee. Id. After his extradition, he “admitted to [an] [o]fficer that he shot the victim, ” but “claimed that he [did so] accidentally . . . while they were fighting over a gun.” Id. The defendant “did not explain why the gun was fired six times.” Id.

         Reba Thurmon and Alberto Vasquez, close friends of Vizcaino-Ramos, testified what transpired before the shooting. Vasquez stated that the defendant had been “upset that his relationship with the victim had ended and had expressed a desire to commit suicide.” Id. He also stated that he had “never heard” his friend “talk” about harming another person.” Id. Thurmon testified that, shortly before the victim was killed, the defendant visited the house she shared with Vasquez. Id. Vizcaino-Ramos was driven to the house by the victim, and Thurmon could see that the child was riding in the backseat of the car. Id. “During the visit, Vasquez agreed to pick up the [d]efendant . . . from the victim's house later that evening.” Id. However, “[w]hen Thurmon and Vasquez drove to the victim's house to pick up Vizcaino-Ramos, no one was there.” Id.

         Two witnesses testified to conversations they had with the defendant a couple of months before the shooting. Both stated that Vizcaino-Ramos threatened to kill his girlfriend. Id.

         Vizcaino-Ramos was convicted of first degree murder and sentenced him to life in prison. Id. at *1.

         On direct appeal, Petitioner challenged the trial court's admission of the child's testimony and the sufficiency of the evidence to convict him of first degree murder. Id. The Tennessee Court of Criminal Appeals (“TCCA”) affirmed the conviction. Id. The Tennessee Supreme Court subsequently denied Petitioner's application for permission to appeal. (ECF No. 20-8 at 1.)

         2. Post-conviction Proceedings

         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 48-50). The amended petition presented the following claims:

1. “That Trial Counsel was ineffective because [she] failed to explore a mental defense that would assist the trier of fact in applying a ‘heat of passion, ' temporary insanity, post-traumatic stress disorder or other disease or defect leading to a potential manslaughter conviction or other lesser included verdict. No. Motion for a Mental Evaluation was filed in Petitioner's case.” (Id. at 48.)
2. Although “[s]everal jailers made reports of Defendant's hallucinations i.e., hearing voices in his head and crying[, ] . . . . no efforts were made to request a formal mental evaluation to determine Petitioner's ability to stand trial or of his competence/illness at the time of the incident.” (Id.)
3. “That Trial Counsel failed to reasonably investigate the circumstances surrounding the victim violating the Hardeman County General Sessions Court's No. Contact Order by going to Petitioner's home on the day of the incident . . . . If the victim initiated contact with Petitioner in violation of a No. Contact Order, it could assist the trier of fact [to] understand the manipulation of Petitioner's emotions and such might lead to a manslaughter conviction or other lesser included verdict.” (Id. at 49.)
4. “That Trial Counsel failed to investigate the existence of witnesses and procure information from potential witnesses who could have furthered a theory of manslaughter[, ] . . . includ[ing] but not limited to . . . Juan Martinez [and] . . . Anthony Parnell.” (Id.)
5. “That Trial Counsel failed to . . . request compensation [to retain] . . . a Firearms or Ballistic Expert [or] . . . any Mental Health Professional[].” (Id.)
6. “That Trial Counsel's performance was deficient, ineffective and prejudicial throughout this representation of Petitioner.” (Id.)

         According to the post-conviction court, Petitioner's “major point of contention . . . [was] that [trial counsel] did not present evidence . . . which would have bolstered his claim of heat of passion and manslaughter.” (ECF No. 20-9 at 66-69.) The court held an evidentiary hearing at which Petitioner, trial counsel, Petitioner's brother, and two other individuals testified. (Id. at 66-68.)

         Petitioner testified that on the day of the shooting he was distraught over the break-up with the victim and was thinking of killing himself. (ECF No. 20-10 at 115.) He stated that he then saw the victim drive up to his house, with her son in the backseat of the car, in violation of a no-contact order that prohibited Vizcaino-Ramos from being in proximity to the victim. (Id. at 115, 120.) The no-contact order had been issued as a result of Petitioner shooting at the victim's car several weeks earlier. (ECF No. 1 at 45-46.)

         Petitioner further testified that the victim was shot during a struggle which the victim instigated. (ECF No. 20-10 at 116-17.) He stated that, while traveling together in the car, the victim had “tried to push” him down, insisting several times that he “lay down” in the car so she would not “get . . . in trouble” with her then-boyfriend if he saw them together. (ECF No. 20-10 at 116.) He testified that she also cursed at him, told him that she never loved him, and “slapped [his] face a couple of times.” (Id. at 116-17.) Petitioner stated that he then started to cry, and when he lifted his shirt to wipe his face, the victim saw the handgun in his waistband, reached for it, and stated “‘I'm going to help you kill yourself right now.'” (Id. at 117.) The two struggled for control of the gun, and the victim was accidentally shot during the struggle. (Id. at 117, 124.)

         Vizcaino-Ramos testified that he told his trial counsel about these events, and stated that if he had been allowed to present a different defense he would have testified about them at trial. (Id. at 121, 124.) When pressed, he had no explanation for how the victim could have been shot six times by accident. (Id. at 124-25.)

         The court also heard testimony from trial counsel regarding her conduct in meeting with Petitioner, investigating the evidence, and assessing his mental state. (Id. at 30-93.) She testified that “in her experience, [P]etitioner was ‘pretty competent.'” Vizcaino-Ramos, 2013 WL 6212041, at *3. She stated that she had been “unaware of a statement [P]etitioner made to a jailer wherein he reported hearing voices, ” and that he “never said anything to her about temporary insanity, post-traumatic stress disorder, or mental disease or defect.” Id. at *3, 4. She further “said that she tried to argue at trial that he was not thinking rationally when he shot the victim, [and] that ‘he was distraught[, ] [b]ut [that] it was not to the point that he was incompetent or insane.'” Id. at *3 (alterations in original).

         With regard to the no-contact order, counsel explained that she made a strategic decision not to introduce this evidence. (ECF No. 20-10 at 45-47.) She believed that if the jury knew that a no-contact order existed, the door would be opened for the jury to hear that the order was issued because Petitioner fired shots into the victim's automobile. (Id. at 45-46.)

         Counsel also testified that her client never told her the version of events he presented at the post-conviction hearing. (Id. at 130.) She further stated that if he had told her, she would not have changed her strategy of trying to negate the element of premeditation in light of the overwhelming evidence:

If there had been one gunshot wound, okay, we were arguing the gun when off, I got scared and left, but when you have multiple gunshot wounds, you put the kid out of the car, you take the body out of the car, you flee to Mexico, live in Mexico for four years, start up a new family, have a baby with your new friend in Mexico, I just-I don't-and he continually blamed Mary for being killed. It was her fault she got herself killed.

(Id. at 131.)

         The three individuals whom Petitioner claimed trial counsel should have interviewed and called as witnesses testified at the post-conviction hearing. Petitioner's brother described Petitioner as having been “‘out of his mind crazy'” over rumors that the victim had been seeing another man, but “did not believe that [P]etitioner needed ‘mental help.'” Vizcaino-Ramos, 2013 WL 6212041, at *4. Kimberly Pannell testified that she had a single encounter with Petitioner, in which he stated that he “‘might get Mikey, '” one of the men the victim was rumored to have been seeing. Id. at * 3. She described Petitioner as having been “‘very calm and collected'” at the time of their conversation. Id. Anthony Parnell testified that he “‘went out a few times' with the victim.” Id. He stated that after he found out that the victim had been killed, he heard a rumor that Petitioner “‘was coming after'” him, but that “he never had any contact with [P]etitioner.” Id.

         The post-conviction court considered the evidence presented and “accredit[ed] the testimony of each witness other than Petitioner Ramos.” (ECF No. 20-9 at 69.) The court denied all claims, concluding that “defense counsel presented a reasonable defense for the petitioner.” (Id.)

         In his appeal from the denial of his post-conviction claims, Vizcaino-Ramos raised only the narrow issues of whether trial counsel was ineffective in failing to investigate and call the Parnells and the defendant's brother as witnesses, and failing to seek a mental evaluation. (ECF 20-11 at 12.)[1] The TCCA affirmed the lower court's determination that trial counsel had not been ineffective. Vizcaino-Ramos, 2013 WL 6212041, at *7. The Tennessee Supreme Court denied Petitioner's application for permission to appeal. (ECF No. 20-15 at 1.)

         3. Federal Habeas Petition

         Petitioner filed his federal habeas Petition in 2014, asserting the following claims:

Claim 1: Post-conviction counsel was ineffective for failing to present the claim that 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.” (ECF No. 1 at 10.)
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.” (Id.)
Claim 3: Post-conviction counsel was ineffective for failing to present the claim that trial counsel was ineffective for failing “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.” (Id.)
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.” (Id.)
Claim 5: Post-conviction counsel was ineffective for failing to present the claim that trial counsel was ineffective for failing “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.” (Id. at 11.)
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.” (Id.)
Claim 7: Post-conviction counsel was ineffective for failing to present the claim that trial counsel was ineffective by failing “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.” (Id.)
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, ” specifically:
8(a) failing to present to the jury evidence that the victim initiated contact with Vizcaino-Ramos in violation of a “no-contact” order; and
8(b) failing to present other evidence of lack of premeditation (id. at 11, 22-25).
Claim 9: Post-conviction counsel was ineffective for failing to present the claim that trial counsel was ineffective for failing “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 ...

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