Loza v. Mitchell

• Decision Date: 24 October 2014
• Docket Number: No. 11–3453.,11–3453.
• Citation: 766 F.3d 466
• Parties: José Trinidad LOZA, Petitioner–Appellant, v. Betty MITCHELL, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

766 F.3d 466

José Trinidad LOZA, Petitioner–Appellant,

v.Betty MITCHELL, Warden, Respondent–Appellee.

No. 11–3453.

United States Court of Appeals,Sixth Circuit.

Argued: Dec. 5, 2012.

Decided and Filed: Sept. 2, 2014.

Rehearing En Banc Denied Oct. 24, 2014.^*

ARGUED:Laurence E. Komp, Manchester, Missouri, for Appellant. David M. Henry, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Michael J. O'Hara, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, for Amicus Curiae. ON BRIEF:Laurence E. Komp, Manchester, Missouri, James A. Wilson, Vorys, Sater, Seymour & Pease LLP, Columbus, Ohio, for Appellant. David M. Henry, Thomas E. Madden, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Michael J. O'Hara, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, for Amicus Curiae.

Before: GIBBONS, GRIFFIN, and WHITE, Circuit Judges.

GIBBONS, J., delivered the opinion of the court, in which GRIFFIN, J., joined, and WHITE, J., joined in part. WHITE, J. (pp. 500–01), delivered a separate opinion concurring in part and dissenting in part.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

In 1991, Jose Trinidad Loza shot and killed four members of his pregnant girlfriend's family. An Ohio jury convicted him of four counts of aggravated murder, and he was sentenced to death. Ohio state courts affirmed Loza's convictions and sentences on direct appeal and denied him postconviction relief. Loza filed a habeas corpus petition in federal district court, which was denied. On appeal, Loza argues that he is entitled to habeas relief on seven grounds. We affirm the district court's denial of Loza's habeas petition.

I.

The Ohio Supreme Court described the facts and circumstances underlying Loza's convictions as follows:

On January 16, 1991, defendant-appellant, Jose Trinidad Loza, shot four members of the family of his girlfriend, Dorothy Jackson. The victims were shot in the head at close range while they slept in their home in Middletown, Ohio. Loza shot Jackson's mother, Georgia Davis; her brother, Gary Mullins; and her two sisters, Cheryl (Mullins) Senteno and Jerri Luanna Jackson. Mullins died almost immediately from his wound; Davis and Senteno survived several hours before dying. Jerri Jackson, six months pregnant at the time of the shooting, died on January 31, 1991.

On the afternoon of January 16, 1991, Gary Hoertt observed an individual in a white Mazda pick-up truck with California plates loading trash into his dumpster at his shop in Middletown. Having had previous problems with the unauthorized use of his dumpster, Hoertt searched the dumpster for something with which to identify the individual. Hoertt found a letter in the dumpster signed by Loza with a return address in Butler County. Hoertt read the letter, the contents of which indicated that Loza was involved in a drive-by shooting in Los Angeles and that he came to Ohio to avoid apprehension by the Los Angeles police.

After reading the letter, Hoertt called the Warren County Sheriff's Department to report his discovery. Hoertt was informed that it would take some time before a deputy could respond. During that time, Hoertt was informed by an employee that the individual, later identified as Loza, and a female companion were seen in the vicinity of the nearby Greyhound bus station. Hoertt then called Middletown police detective Roger Knable.

After Knable arrived at Hoertt's shop and read the letter, Knable and Hoertt went to the dumpster, where they retrieved other items that Loza had discarded, which included: a knife; an empty box for a .25 caliber Raven automatic handgun; a receipt signed by a Judy A. Smith for the purchase of the handgun on January 15, 1991; a woman's purse; a blank check on the account of Georgia L. Davis; a general money order made payable to Jose Loza; clothing; and some other personal items.

As Hoertt and Knable were going through the items in Hoertt's office, Hoertt saw Loza approach the dumpster. Knable went to his cruiser and requested his dispatcher to notify Warren County deputies that the individual had returned and that he was going to speak to him. Knable identified himself as a police officer, approached Loza with his gun in his hand, and instructed Loza to place his hands on the front of the car. Knable searched Loza and asked his name. At this time, Loza identified himself as “Jose Rodriguez.” Knable told Loza the reason he was being stopped was because of what he put in the dumpster. Loza responded “yes.” Knable said the letter indicated that Loza may have been involved in a drive-by shooting in Los Angeles. Loza again responded “yes.” Knable then informed Loza that he was going to handcuff him and hold him until Warren County deputies arrived. Knable then went to locate the woman who had been seen with Loza earlier. Loza said that the woman's name was Cynthia Rodriguez, that she was his wife, and that they were headed to California.

Knable then went inside the bus station and approached Dorothy Jackson. He asked her name and she responded “Dorothy Jackson.” When asked, Jackson stated that Loza's name was “Jose Rodriguez,” and that they were not married. Within a short time after Knable's initial contact with Loza, Warren County deputies arrived. The deputies determined Jackson was under age and that she planned to travel to California with Loza. When asked, Jackson gave her mother's telephone number to the deputies. Knable was unsuccessful in reachingDavis, Jackson's mother, by phone. Detectives Knable and George Jeffery then went to Davis's home at 1408 Fairmont, but did not receive any response when they knocked at the door. A neighbor approached the detectives and said that she had been trying unsuccessfully all day to get someone from the house to respond.

Because the police were unable to determine if Jackson had permission to travel out of state, she was arrested for being an unruly minor and was taken to the Warren County Juvenile Detention Center. Loza was arrested for contributing to the delinquency or unruliness of a minor and was taken to the Warren County Justice Center.

When the detectives began questioning Jackson at the juvenile detention center, she did not initially tell them of the murders. Shortly into the questioning, she began crying. She said she did not want to go to jail, and that Loza had killed her family. Jackson then told the detectives what she knew about the murders.

Based upon Jackson's statement, Detective Knable obtained a search warrant for the house at 1408 Fairmont. When the police entered the house, they discovered the victims.

Knable and Jeffery then returned to the Warren County Justice Center and began questioning Loza. The detectives' interview with Loza was videotaped. At the beginning of the interview, Loza waived his Miranda rights. Initially, Loza said that he and Jackson were traveling to California with her mother's permission. The detectives told Loza they knew what had happened, and that it would be in his, Jackson's and the unborn baby's best interest if he just told the truth. About one hour into the interview, Loza confessed to the murders. Loza detailed the murders, including the order in which he shot the victims. Loza stated that Jackson was not in the house at the time of the murders, and that she did not know that he was going to kill her family members.

The detectives asked Loza when he began thinking about murdering Jackson's family members. Loza responded that he had been thinking about it since he had obtained the gun and particularly after Davis had threatened to have him arrested if he tried to leave the state with Jackson. Loza explained that he shot Davis because of her threats. When asked why he shot the others, he responded: “Knowing I had to do one, I had to do all. * * * Because if I only done one, they would have—they would have known it was me. If I would have done all of them, nobody would have found out.”

State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082, 1091–92 (1994).

In 1991, a jury convicted Loza of four counts of aggravated murder. It recommended that Loza be sentenced to death for the aggravated murders of Mullins, Senteno, and Jerri Jackson. It recommend that Loza be sentenced to thirty years' to life imprisonment for the aggravated murder of Davis. The trial court accepted the jury's recommendation.

The Ohio Court of Appeals and the Ohio Supreme Court affirmed Loza's convictions and sentences. State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994); State v. Loza, No. CA 91–11–198, 1993 WL 120028 (Ohio Ct.App. April 19, 1993). The Ohio Supreme Court denied Loza's motion for reconsideration. State v. Loza, 71 Ohio St.3d 1437, 643 N.E.2d 142 (1994) (table decision). The Butler County Court of Common Pleas denied Loza's petition for post-conviction relief, and the Ohio Court of Appeals affirmed. State v. Loza, No. CA 96–10–214, 1997 WL 634348 (Ohio Ct.App. Oct. 13, 1997). The Ohio Supreme Court declined discretionary review of Loza's appeal, stating that it posed no substantial constitutional question. State v. Loza, 81 Ohio St.3d 1429, 689 N.E.2d 49 (1998) (table decision).

Loza filed a petition for a writ of habeas corpus in federal district court, asserting thirty-four grounds for relief. The district court dismissed several of Loza's claims as procedurally defaulted. It denied Loza's remaining claims and dismissed the action. The district court certified fourteen issues for appeal, and this court granted a certificate of appealability on one additional issue. Loza raises seven of these issues on appeal. Loza abandoned the issues that he failed to raise, and we do not consider them. Post v. Bradshaw, 621 F.3d 406, 413–14 (6th Cir.2010).

II.

In an appeal of a § 2254habeas action, we review the district court's legal conclusions de novo. Cristini v. McKee, 526 F.3d 888, 897 (6th Cir.2008). “ ‘[W]here the district court has made factual determinations based on its review of trial...