Alfredo R. Prieto, Petitioner, against Warden of the Sussex I State Prison, Respondent.
Record No. 122054
Supreme Court of Virginia
September 12, 2013
Present: Kinser, C.J., Lemons, Goodwyn, Millette, McClanahan and Powell, JJ., and Lacy, S.J.
In the Supreme Court of Virginia held at the Supreme Court Building in the City of Richmond, on Thursday, the 12th day of September, 2013.
Upon a Petition for a Writ of Habeas Corpus
Upon consideration of the petition for a writ of habeas corpus filed November 30, 2012, and the respondent‘s motion to dismiss, the Court is of the opinion that the motion should be granted and the writ should not issue.
Alfredo R. Prieto was convicted in the Circuit Court of Fairfax County in 2008 of capital murder in the commission of, or subsequent to, rape,
CLAIM (I)
In a portion of claim (I), Prieto argues he was denied the effective assistance of counsel during the guilt phase of the 2008 trial because counsel failed to thoroughly investigate and review the analysis of the DNA found in Raver‘s vagina. Prieto alleges the analysis showed the presence of DNA not linked to either Prieto or Raver. Testing conducted on three occasions in 2000 by Carol Palmer, a forensic scientist of the Virginia Department of Forensic Science, showed a “12” allele at the vWA locus of the non-sperm fraction from the vaginal swabs taken from Raver. Neither Raver nor Prieto have a “12” allele at that
Prieto further argues counsel failed to have Dr. J. Thomas McClintock, a DNA expert appointed to assist Prieto, review this information to determine if it supported the presence of a second perpetrator. In support, Prieto provides Dr. McClintock‘s affidavit, stating he was never asked to look at the documentation pertaining to the non-sperm fraction of the vaginal swab and that had he known of the presence of the “12” allele he would have testified that it represented a foreign allele. Prieto contends this evidence was the strongest evidence available in support of the defense theory that a second perpetrator committed the murders. Prieto argues that had this evidence been presented, it would have “raise[d] reasonable doubt in jurors’ minds about whether the evidence proved that Prieto acted alone or was an immediate perpetrator of the murders” and would have likely “required a jury to acquit Prieto of capital murder.”
The Court holds that this portion of claim (I) satisfies neither the “performance” nor the “prejudice”
The affidavit of Dr. McClintock does not address the testing done at the second laboratory or how those results would have affected his opinion. Moreover, this Court has already extensively reviewed the evidence presented at
In another portion of claim (I), Prieto argues he was denied the effective assistance of counsel during the guilt phase of the trial because counsel failed to have the anal swabs taken from Raver further analyzed. Prieto cites to a 1988 certificate of analysis which notes the presence of spermatozoa in the extracts of the anal swabs and a 1994 note from the Department of Forensic Science that indicates both the vaginal and anal swabs contained a “male fraction.” The anal swab was never further tested. Prieto contends such testing reasonably could have uncovered additional evidence of a second perpetrator.
The Court holds that this portion of claim (I) fails to satisfy the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript and Palmer‘s affidavit, demonstrates that the anal swabs, which contained a trace amount of spermatozoa, were tested twice. In 1989, the swabs were tested by an
Subsequently, in 2000, Palmer inventoried the anal swabs and determined not to test them again because only a trace amount of spermatozoa had been present in the samples and most of the samples had been destroyed by the previous testing. Prieto fails to show that any testing could have been conducted on the amount of the anal swab sample that remained and he fails to proffer what the results of any testing would have shown. Thus, Prieto has failed to demonstrate that, but for counsel‘s alleged errors, the result of the proceeding would have been different.
In another portion of claim (I), Prieto argues he was denied the effective assistance of counsel during the guilt phase of the trial because counsel failed to present evidence that the Negroid hairs recovered from combings of Raver‘s pubic area were lost after the Commonwealth had identified Prieto as the primary suspect and after the exculpatory nature of the hairs became apparent. Prieto further contends counsel erred by conceding at trial that
The Court holds that this portion of claim (I) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The Court addressed the issue of the missing hairs in Prieto I. The Court held that the Commonwealth could not have had knowledge of any exculpatory value in the hairs at the time they were lost because the hairs were lost before Prieto was a suspect. Prieto, 278 Va. at 397, 682 S.E.2d at 926. The last time that the hairs were seen was in 1989, when they were sealed inside an evidence envelope. Id. They were not discovered to be missing until 2005, when Prieto became a suspect. Id. Thus, the hairs did not have “apparent exculpatory value” when they were lost. Id.
Moreover, the record, including the trial transcript, demonstrates that the jury was presented with evidence that the hairs were discovered to be missing in 2005, after Prieto had been identified as a possible suspect. Finally, Prieto presents no evidence to demonstrate that the
CLAIM (II)(A)
In claim (II)(A), Prieto contends he was denied the right to a jury “of the state and district” where the crimes were committed, in violation of the
The Court holds claim (II)(A) is without merit. “A ‘structural error’ is a ‘defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.‘” Morrisette v. Warden of the Sussex I State Prison, 270 Va. 188, 192, 613 S.E.2d 551, 556 (2005) (citing Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). Structural errors have been found in a very “limited class of cases,” and include the denial of counsel, the denial of an impartial trial judge, and the systematic exclusion of members of the defendant‘s race from the grand jury. Johnson v. United States, 520 U.S. 461, 468-69 (1997). Structural errors “necessarily render a trial fundamentally unfair,” and thus are not susceptible to harmless error review. Rose v. Clark, 478 U.S. 570, 577-78 (1986). “[I]f [a] defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis.” Id. at 579.
The seating of Juror 46 is not a structural error as it is not a “defect affecting the framework” of Prieto‘s trial. Thus, it is governed by the ordinary rules controlling claims of juror disqualification. After the jury has been sworn, such claims may only be brought “with leave of court” upon a showing the “disability be such as to probably cause injustice in a criminal case to the Commonwealth or to the accused.”
CLAIM (II)(B)
In claim (II)(B), Prieto contends he was denied the effective assistance of counsel because counsel failed to learn Juror 46 was not a Virginia resident at the time of Prieto‘s 2010 trial.
The Court holds claim (II)(B) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland, 466 U.S. at 687. As Prieto concedes, the record, including the manuscript record and the trial transcript, demonstrates that the juror list provided to trial counsel by the trial court showed an address for Juror 46 in Fairfax County. Additionally, after specifically informing Juror 46 and thirty-three other prospective jurors that each question required a verbal response, the trial court questioned the jurors regarding their citizenship and residency and the jurors affirmed that they had each lived in Fairfax County for the
CLAIM (III)
In claim (III), Prieto alleges he was denied the right to select and be sentenced by an impartial jury. Prieto contends that, at his 2010 trial, Juror 23 intentionally withheld information during voir dire regarding sexual assaults the juror had suffered. In support of this claim, Prieto relies on Juror 23‘s September 2012 affidavit, stating that Juror 23 was repeatedly molested as a child. Prieto alleges that Juror 23 withheld this information from the questionnaire that jurors filled out prior to voir dire, as well as during the course of voir dire questioning, to hide his bias against Prieto. Prieto contends the concealment of this information deprived him of a valid basis to remove Juror 23 for cause because he
The Court holds that claim (III) is without merit. The record, including the questionnaire of Juror 23 and the trial transcript, does not demonstrate that Juror 23 either failed to honestly answer the questions asked of him, or that he was biased against Prieto. In the questionnaire, Juror 23 responded “no” when asked if he had ever been the victim of a crime, even if the crime was never reported. However, Juror 23 subsequently answered that he had been previously assaulted by three men in response to a question about whether he had ever appeared in court. During voir dire, a panel of prospective jurors that included Juror 23 was asked if any of them or individuals close to them had been the victim of serious criminal conduct. Even though another juror answered regarding the rape of a niece, Juror 23 still only addressed the previous assault in his response. Additionally, near the end of voir dire, Juror 23 did not respond when asked if he thought of anything new as a result of anything that had been asked during the course of voir dire.
Juror 23‘s responses do not show that he was intentionally withholding information or not honestly
CLAIM (IV)
In a portion of claim (IV), Prieto contends he was denied the effective assistance of counsel because counsel failed to move to exclude Juror 23 for cause. Prieto alleges Juror 23 indicated during voir dire that he would not vote for a life sentence unless he heard from Prieto, either directly or indirectly, at sentencing.
The Court holds that this portion of claim (IV) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that Juror 23 expressed a desire either to hear directly from
In another portion of claim (IV), Prieto argues he was denied the effective assistance of counsel because counsel failed to interview Juror 23 after the jury returned with a sentence of death. Prieto contends that, based on the voir dire responses of Juror 23, counsel should have known Juror
Prieto cites to two portions of the affidavit of Juror 23 in support of this claim. First, Juror 23 admits he “really wanted” to hear from Prieto in some fashion at sentencing because Juror 23 believed Prieto “owed” the jury an explanation for his actions. Juror 23 states his belief that Prieto “should get up there and refute what [the Commonwealth is] saying about you” and that had such an explanation occurred he “could have voted for life.” Second, Juror 23 states that while the court explained what a life sentence was, the explanation was vague and did not change his understanding that “life in prison was 50 years.” Prieto alleges that, had counsel conducted a post-sentencing interview, these matters would have come to light and would have supported the granting of a mistrial as it would have showed that Juror 23 did not follow the court‘s instructions.
The Court holds that this portion of claim (IV) satisfies neither the “performance” nor the “prejudice”
Given the responses of Juror 23 and the precedent of this Court, which holds that a juror is presumed to follow the instructions given by the trial court, Muhammad v. Warden, 274 Va. 3, 18, 646 S.E.2d 182, 195 (2007) (citing Green v. Young, 264 Va. 604, 611, 571 S.E.2d 135, 139 (2002)), counsel could reasonably conclude they had no reason to interview Juror 23. Additionally, this Court has refused to impose such post-trial juror interviews upon trial counsel unless counsel knew or should have known of the alleged problem at the time of trial. See Lenz v. Warden, 267 Va. 318, 325-26, 593 S.E.2d 292, 296 (2004).
Furthermore, courts in Virginia “have adhered strictly to the general rule that the testimony of jurors should not be received to impeach their verdict” and that the best
CLAIM (V)
In a portion of claim (V), Prieto alleges he was denied the effective assistance of counsel because counsel failed to present evidence that he suffered from organic brain damage. Specifically, Prieto contends counsel should have presented evidence from a neurological evaluation, including a positron emission tomography (PET) scan, which would have proven that he suffers from frontal lobe dysfunction and temporal lobe damage, which renders him “incapable of appropriate reasoning, judgment, and impulse control.”
The Court holds that this portion of claim (V) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that counsel did present evidence at Prieto‘s 2010 trial that Prieto suffered from organic brain damage. Counsel
Moreover, counsel presented evidence of Prieto‘s PET scan during the sentencing phase of Prieto‘s 2008 trial. Although Prieto‘s expert, Dr. James Merikangan, testified that the scan showed Prieto suffered from organic brain damage, Dr. Merikangan‘s opinion was impeached by the report of Dr. Michael Kistler, the doctor who conducted the PET scan. Dr. Kistler opined that Prieto did not have organic brain damage and that his scan was “normal.”
Counsel, having had the opportunity to present the PET scan evidence and to evaluate the strength of the Commonwealth‘s contrary evidence and the effect of the evidence on the jury, could reasonably have determined that presenting the same evidence at Prieto‘s second sentencing hearing would not be prudent. Such tactical decisions are an area of trial strategy left to the discretion of counsel and should not be second-guessed in a habeas corpus proceeding. See Strickland, 466 U.S. at 689-90. Thus, Prieto has failed to demonstrate that counsel‘s performance
In another portion of claim (V), Prieto contends counsel was ineffective for failing to introduce anecdotal evidence to support his claim of brain damage. Specifically, Prieto contends counsel should have introduced evidence to show that as a youth Prieto was nervous and slow, stuttered, failed to follow instructions, did not like to bathe, and engaged in regressive behavior, including bed wetting, playing with toys that were not appropriate for his age and exhibiting fear of ghost stories, and that as an adult he was unnaturally focused.
The Court holds that this portion of claim (V) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcript, demonstrates that in addition to the expert testimony supporting Prieto‘s claim that he suffered brain damage, counsel presented anecdotal evidence at Prieto‘s 2010 trial that Prieto was slower and more reserved than other children, that he experienced nightmares as a child, and that he was scared of the violence he and his siblings had seen on a regular basis. Moreover, Prieto fails to explain in what manner
In another portion of claim (V), Prieto contends counsel was ineffective for failing to present evidence of the specific effects on Prieto of the chronic trauma he experienced and the ways in which such trauma influenced his actions as an adult. Prieto contends counsel should have presented evidence showing the symptoms of Post-Traumatic Stress Disorder (PTSD) that he suffered as a child and as an adult. Prieto contends that by presenting such evidence, counsel could have connected Prieto‘s symptoms to his actions in this case and that counsel‘s failure to do so left the jury with no option but to believe Prieto committed the crimes out of “malevolent choice.”
The Court holds that this portion of claim (V) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The
At Prieto‘s 2010 trial, counsel presented the testimony of Dr. Cunningham. Dr. Cunningham opined that Prieto did suffer from PTSD caused by his childhood exposure to “scenes of recurrent horror” during the El Salvadorian civil war. In addition, Dr. Cunningham suggested that Prieto suffered from a number of other deficits, including the results of chronic, long-term trauma, and opined that these deficits caused Prieto to lack self-control, inured him to violence, and prevented him from appreciating the pain he might inflict. Dr. Cunningham conceded Prieto‘s outward appearance might not show signs of PTSD but explained that his experience of
Counsel, having had the opportunity to present evidence in Prieto‘s 2008 trial related to his PTSD, to evaluate Prieto‘s appearance at trial relative to the description of the effects of his PTSD, and to evaluate the effect of the evidence on the jury, could reasonably have determined that presenting the same evidence at Prieto‘s 2010 trial would not be effective. Such tactical decisions are an area of trial strategy left to the discretion of counsel and should not be second-guessed in a habeas corpus proceeding. See Strickland, 466 U.S. at 689-90. Thus, Prieto has failed to demonstrate that counsel‘s performance was deficient or that there is a reasonable probability that, but for counsel‘s alleged errors, the result of the proceeding would have been different.
CLAIM (VII)
In claim (VII), Prieto contends he is mentally retarded and that his execution is therefore barred under Atkins v. Virginia, 536 U.S. 304, 321 (2002).
The Court holds that claim (VII) is barred because this non-jurisdictional issue could have been raised during the direct appeal process and, thus, is not cognizable in a
CLAIM (VIII)
In claim (VIII) and a portion of claim (V), Prieto argues counsel was ineffective for failing to present evidence at Prieto‘s 2010 trial that he is mentally retarded. Prieto contends counsel should have presented evidence of his low performance on the Escala Wechsler de Inteligencia Para Adultos III (EWIPA III) and of his significant deficits in adaptive functioning.
The Court holds that claim (VIII) and this portion of claim (V) satisfy neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including the trial transcripts, demonstrates that counsel presented evidence at Prieto‘s 2008 trial that Prieto is mentally retarded. Dr. Ricardo Weinstein testified that Prieto‘s full scale IQ score on the EWIPA III was 66, that his true score was much lower, taking into consideration the standard error of measurement and the Flynn Effect,1 and that Prieto had significant
The Commonwealth presented evidence that Prieto was not mentally retarded, including evidence that Prieto achieved a full scale score on the WAIS III of 73, that the EWIPA III that was administered to Prieto was not an approved test, as required by
The Commonwealth further presented evidence that Prieto did not suffer from deficits in his adaptive functioning, including evidence that Prieto received consistently good grades in elementary school; that he was capable of handling money and opening and closing his own bank accounts, obtaining employment, operating heavy equipment, and obtaining drivers’ licenses in two states; that he was fluent in Spanish and English; that he was capable of using the inmate grievance procedures; that he was interested in and understood current political and foreign policy issues; and that he had the ability to cultivate useful relationships. The Commonwealth further presented evidence suggesting the WAIS III, rather than the EWIPA III, was the appropriate tool for measuring Prieto‘s IQ, because at the time the tests were administered, Prieto had been in the United States for more than twenty-four years, over half of his life, spoke fluent English and was more fluent in English than in Spanish.
At Prieto‘s 2010 trial, counsel chose not to argue that Prieto was mentally retarded, instead focusing on his
CLAIM (IX)
The Court holds that this portion of claim (IX) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. A collateral attack on a prior conviction from a court of competent jurisdiction is normally not allowed as that
Counsel was not ineffective for failing to attempt a collateral attack on Prieto‘s California convictions. Thus, Prieto has failed to demonstrate that counsel‘s performance was deficient or that there is a reasonable probability that, but for counsel‘s alleged errors, the result of the proceeding would have been different.
In another portion of claim (IX), Prieto argues he was denied the effective assistance of counsel because counsel failed to investigate and present evidence that would have cast doubt on his role in the California crimes and thus would have diminished the weight of the evidence. Prieto argues counsel should have investigated and presented evidence of Barajas’ initial statement to the police that she could not identify the assailants as she was
The Court holds that this portion of claim (IX) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. The record, including Prieto‘s 1991 California trial transcript, demonstrates that Barajas was questioned extensively regarding her identification of Prieto. Barajas admitted to initially lying about being blindfolded and explained she did so out of fear of retaliation by her assailants. Barajas also explained how she identified Prieto from a photographic line-up prior to seeing his photograph in the newspaper and again identified Prieto in a live line-up after his photograph was published. Throughout the trial, Barajas was adamant in her identification of Prieto.
Counsel could have reasonably determined that attempting a similar attack on Barajas’ identification of Prieto at his 2010 trial would have been unsuccessful. Prieto has also failed to show in what way the
In another portion of claim (IX), Prieto argues he was denied the effective assistance of counsel because counsel failed to investigate and present evidence that would have cast doubt on his role in the California crimes and thus would have diminished the weight of the evidence. Prieto argues counsel should have investigated the lack of an expert to rebut California‘s theory for the absence of seminal fluid on Y. W. Prieto contends that had this information been presented at his 2010 trial it would have
The Court holds that this portion of claim (IX) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Prieto has failed to proffer the name or testimony of an expert regarding the seminal fluid. Muhammad, 274 Va. at 19, 646 S.E.2d at 195. Thus, Prieto has failed to demonstrate that counsel‘s performance was deficient or that there is a reasonable probability that, but for counsel‘s alleged errors, the result of the proceeding would have been different.
In another portion of claim (IX), Prieto argues he was denied the effective assistance of counsel because counsel failed to investigate and present evidence that would have cast doubt on his role in the California crimes and thus would have diminished the weight of the evidence. Prieto argues counsel should have investigated Prieto‘s trauma disorder and his use of drugs at the time of the California crimes. Prieto contends that had this information been presented at his 2010 trial it would have affected the jury‘s assessment that Prieto was a future danger to society.
Prieto fails to allege what additional evidence counsel could have presented that would have rebutted the aggravating circumstances of his California offenses. Thus, Prieto has failed to demonstrate that counsel‘s performance was deficient or that there is a reasonable probability that, but for counsel‘s alleged errors, the result of the proceeding would have been different.
The Court holds that this portion of claim (IX) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. In People v. Prieto, 66 P.3d 1123, 1137-38 (Cal. 2003), the Supreme Court of California determined that the jury was erroneously instructed that Prieto‘s possession of the car keys was a circumstance they could consider in determining his guilt without limiting the instruction to the theft related crimes. However, the Court found the error harmless. Id. at 1138.
Prieto fails to state how presenting evidence at his 2010 trial of the erroneous jury instruction would have mitigated the aggravating circumstances of his California offenses. Thus, Prieto has failed to demonstrate that counsel‘s performance was deficient or that there is a
In another portion of claim (IX), Prieto argues he was denied the effective assistance of counsel because counsel failed to rebut the Commonwealth‘s evidence regarding Prieto‘s other prior convictions.
The Court holds that this portion of claim (IX) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Prieto fails to proffer what evidence counsel should have presented to rebut the Commonwealth‘s evidence as to his other prior convictions. Thus, Prieto has failed to demonstrate that counsel‘s performance was deficient or that there is a reasonable probability that, but for counsel‘s alleged errors, the result of the proceeding would have been different.
CLAIM (X)
In claim (X), Prieto argues he was denied the effective assistance of counsel because counsel failed to object to evidence of his California convictions and death sentence. At the 2010 trial, the Commonwealth introduced certified copies of Prieto‘s California convictions and death sentence to show he was a future danger to society.
The Court holds that claim (X) satisfies neither the “performance” nor the “prejudice” prong of the two-part test enunciated in Strickland. Counsel had no reason to object to the introduction of the evidence relating to Prieto‘s convictions and sentence in California as this Court had previously upheld the introduction of such evidence. Prieto v. Commonwealth, 278 Va. at 413-15, 682 S.E.2d at 936. Prieto‘s reliance on Johnson is misplaced and would not have supported the objection Prieto contends counsel should have raised. In Johnson, the New York conviction was reversed while Johnson‘s motion for post-conviction relief from his Mississippi death sentence was pending. 486 U.S. at 583. The United States Supreme Court
Thus, Prieto has failed to demonstrate that counsel‘s performance was deficient or that there is a reasonable probability that, but for counsel‘s alleged errors, the result of the proceeding would have been different.
CLAIM (XI)
In claim (XI), Prieto contends that the cumulative effect of counsel‘s deficient performance at the 2010 trial undermines confidence in the jurors’ decision.
The Court holds that claim (XI) is without merit. As addressed previously, Prieto has failed to demonstrate prejudice as a result of counsel‘s alleged errors. “Having rejected each of petitioner‘s individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Lenz, 267 Va. at 340, 593 S.E.2d at 305.
CLAIM (VI)
The Court holds that claim (VI) is without merit. Prieto‘s argument is one of cumulative error. “Having rejected each of petitioner‘s individual claims, there is no support for the proposition that such actions when considered collectively have deprived petitioner of his constitutional right to effective assistance of counsel.” Lenz, 267 Va. at 340, 593 S.E.2d at 305.
Upon consideration whereof, Prieto‘s motions for access to files from the Virginia Department of Forensic Science, for the appointment of a DNA expert, to hold his Virginia habeas corpus proceedings in abeyance pending resolution of the California habeas corpus proceedings, and for an evidentiary hearing are denied.
Upon consideration of the respondent‘s motion to strike Prieto‘s rebuttal affidavits, the motion to strike is denied. The rebuttal affidavits are considered pursuant to the appropriate evidentiary rules.
This order shall be published in the Virginia Reports.
Respondent‘s costs:
Attorney‘s fee $50.00
A Copy,
Teste:
Patricia L. Harrington, Clerk