Cash v. Wetzel

• Decision Date: 10 March 2021
• Docket Number: CIVIL ACTION No. 16-3758
• Parties: OMAR SHARIFF CASH, Petitioner v. JOHN E. WETZEL et al., Respondents
• Court: U.S. District Court — Eastern District of Pennsylvania

OMAR SHARIFF CASH, Petitioner v. JOHN E. WETZEL et al., Respondents

CIVIL ACTION No. 16-3758

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MARCH 10, 2021

MEMORANDUM

PRATTER, J.

Omar Shariff Cash is serving a life sentence for the kidnapping of Edgar Perez Rosas-Gutierrez and MCDA,¹ the murder of Mr. Rosas-Gutierrez, and the repeated rape of MCDA. Mr. Cash petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Jacob P. Hart issued a Report and Recommendation recommending that Mr. Cash's Petition be denied. (Doc. No. 59.) For the reasons that follow, the Report and Recommendation is adopted in full.

BACKGROUND

I. Factual Background

At trial, the following evidence was introduced, as summarized by the Bucks County Court of Common Pleas:

On May 10, 2010, shortly before midnight, victims Edgar Perez Rosas-Gutierrez and MCDA proceeded to Jalapeño Joe's nightclub in a black Buick sedan belonging to Mr. Gutierrez' uncle, Renee Gutierrez. Mr. Rosas-Gutierrez parked the vehicle in an adjoining parking lot some distance from the club. The two victims entered Jalapeño Joe's and spent several hours inside dancing and socializing with various members of Mr. Rosas-Gutierrez's family. At approximately 3:30 a.m., when the club was almost empty, the victims left. They walked alone to the dimly lit area where their car was parked. When they arrived at the car, Mr. Rosas- Gutierrez hugged and kissed MCDA and then opened the passenger side door for her. She got inside and lit a cigarette. Mr. Rosas-Gutierrezthen walked around the back of the car and got into the driver's seat. Thereupon, [Mr. Cash], who had been loitering in the area of the parking lot . . . entered the victims' vehicle by way of the back door on the driver's side. He pulled out a handgun, pointed it at the head of Mr. Rosas-Gutierrez and began shouting.

MCDA, who speaks Portuguese and is not fluent in English, could not understand what [Mr. Cash] was saying. Mr. Rosas-Gutierrez, however, had some knowledge of English, and was able to converse with [Mr. Cash]. Apparently at [Mr. Cash's] direction, Mr. Rosas-Gutierrez turned on the ignition and quickly drove away from Jalapeño Joe's northbound on Castor Avenue. In an "ugly" and menacing tone of voice, [Mr. Cash] told the victims to take him to a hotel, alternately pointing his handgun at their heads. At gunpoint, [Mr. Cash] robbed Mr. Rosas-Gutierrez of his identification papers, and MCDA of $400.00 in cash from her purse. Thereafter, [Mr. Cash] and his hostages proceeded northbound in the vehicle on Roosevelt Boulevard. At that time, using Mr. Rosas-Gutierrez as his interpreter, [Mr. Cash] directed that MCDA climb into the back seat with him. She complied and [MCDA] proceeded to remove her clothes and rape her at gunpoint while the car was in motion. . . . In between his threats and criminal acts, [Mr. Cash] laughed. After the rape, [Mr. Cash] pushed MCDA aside on the back seat and told her to put her clothes back on. He continued to demand that the victims take him to a hotel. Eventually, they pulled into the Sunrise Inn located on Route One in Bensalem Township, Bucks County, and parked the vehicle along side of the building. While parked, [Mr. Cash] demanded Mr. Rosas-Gutierrez's wallet at gunpoint. When it was handed over, [Mr. Cash] removed the cash and threw the wallet at Mr. Rosas-Gutierrez. In the meantime, MCDA had put her clothes back on while the car was parked. [Mr. Cash] then directed that she return to the front passenger seat. At gunpoint, he told Mr. Rosas-Gutierrez to drive away from the premises. . . . At trial, the jury was shown a surveillance video depicting the victim's car at the Sunrise Inn parking lot.

Upon leaving the Sunrise Inn, [Mr. Cash] and his victims proceeded onto the exit ramp from northbound Roosevelt Boulevard leading to eastbound Street Road in Bucks County. The exit ramp was poorly lighted and surrounded by woods on both sides. At gunpoint, [Mr. Cash] directed Mr. Rosas-Gutierrez to pull over and stop the car. [Mr. Cash] got out of the back seat of the car and approached the driver's door. He pointed his handgun at Mr. Rosas-Gutierrez, grabbed him around the neck and removed him from the car. [Mr. Cash] walked Mr. Rosas-Gutierrez up an embankment [alongside] of the roadway at gunpoint. Near the top of the embankment he shot Mr. Rosas-Gutierrez point blank in the back of the head, severing his brain stem and killing him instantly. MCDA heard the gun shot and then observed [Mr. Cash] quickly return to the vehicle. As she was calling out for "Edgar", [Mr. Cash] got into the driver's seat and fastened her seatbelt while holding the gun. [Mr. Cash] was laughing as he pulled away from the scene, leaving tire marks on the shoulder of the road as he quickly accelerated. A night clerk at the Sunrise Inn heard the gunshot at approximately 4:30 a.m. on May 11, 2008.

[Mr. Cash] and MCDA next stopped at a "7-Eleven" convenience store located a short distance from the murder scene, where he purchased a beverage. They then left and [Mr. Cash], acting happy, was singing and moving to the music playing on the car radio as he drove. Shortly thereafter, [Mr. Cash] pulled into a parking lot near a large building withan expansive lawn, most likely Philadelphia Park on Street Road in Bensalem Township. He got out of the car, grabbed MCDA by her hair and pulled her out of the vehicle. At gunpoint, he forced her to take off her pants and pushed her onto the hood of the car. Thereupon he held her down and []raped her. [Mr. Cash] kept the gun in his hand during the sexual assault. After the rape, MCDA put on her clothes and she was led by [Mr. Cash] toward a small lake. Fearing for her life, she ran away toward[s a] building and tried to get inside, but was not able to gain entry or make contact with anyone. [Mr. Cash] came after her, took hold of her arm and pulled her back to the car. He put her in the front passenger seat, fastened her seatbelt, and drove off in the direction of central New Jersey. [Mr. Cash] drove with his left hand and kept the gun in his right hand aimed at MCDA. As he was driving, [Mr. Cash] appeared happy and began singing the tune "New York, New York". He laughed as he commented on how beautiful it is there. [Mr. Cash] proceeded toward New York and made his next stop at a Comfort Inn on U.S. Route One in Lawrence Township, New Jersey. He and MCDA arrived there at approximately 5:30 a.m., whereupon he removed her from the car by taking her arm. They then entered the lobby and [Mr. Cash] directed her to sit in a waiting area while he approached the check-in counter. Using identification that belonged to an individual by the name of "Elbert Small" from the state of Delaware, [Mr. Cash] booked room number 410. While he was checking in, MCDA attempted to draw the attention of the clerk by gesturing that [Mr. Cash] had a gun, but the clerk did not respond.

After checking in, [Mr. Cash] took MCDA by the arm and escorted her to the hotel elevator. They proceeded to the fourth floor and entered room 410. Once inside, [Mr. Cash again raped MCDA] . . . . After[wards, Mr. Cash] impatiently told MCDA to get dressed. She did so and they went down to the lobby, whereupon MCDA ran from [Mr. Cash] out the front door. He followed and grabbed her shoulders with both arms and ripped off her purse. MCDA then ran back inside screaming for help, jumped over the four-foot check-in counter and hid behind the clerk. After the clerk realized that she was in great distress, he telephoned the police. By the time police responded, [Mr. Cash] had fled the scene. MCDA was taken by New Jersey authorities for a sexual assault examination. A video surveillance tape showing the common areas of the Comfort Inn was viewed by the jury at trial. The video depicted the victim running from the lobby followed by [Mr. Cash], and then running back into the lobby and climbing over the front desk to escape [Mr. Cash]. The video showed the [Mr. Cash] wearing the same tan slacks and shirt and black baseball cap that he was observed in earlier that morning.

(Doc. No. 7-2 at 45-47; Doc. No. 7-3 at 4-5.)

Mr. Cash then drove to New York City, where he was arrested for possession of marijuana on March 11, 2007. (Doc. No. 7-3 at 5.) After giving the police a false name and address, Mr. Cash was released pending a court appearance. Id. at 6. The next day, Mr. Cash stole a vehicle. Id. On March 13, 2008, police noticed the stolen SUV double parked at a bus stop on Broadway and 136thStreet in Manhattan. Id. The officers stopped the vehicle after Mr. Cash attempted to move it. Id. Mr. Cash became aggressive and combative, and was arrested. Id.

While Mr. Cash was in custody, Bucks County Detective Daniel Nieves traveled to New York to meet with him. Id. at 8. After the detective read to Mr. Cash his Miranda rights, Mr. Cash told Detective Nieves: "I don't want to talk about no murder." (Doc. No. 59 at 3.) However, Mr. Cash did observe that law enforcement from Bucks County probably had a better case against him than those from Philadelphia. (Doc. No. 7-3 at 8.)

Mr. Cash subsequently was extradited to Pennsylvania. Mr. Cash testified at trial that on August 4, 2008, Philadelphia County police detectives attempted to question him, but he told them that he would not speak without an attorney present. Id. But, nevertheless, he did later speak to Detective Nieves. Id. According to Detective Nieves, Mr. Cash refused to discuss certain topics, but did not attempt to end the conversation or invoke his right to counsel. Id. During this conversation, he stated that the entire case against him rested on the "Spanish girl."

II. Mr. Cash's Trial

A. Pre-trial Motions

Mr. Cash filed several pre-trial motions. The first relevant motion sought to suppress statements he had made to law enforcement on May 14, 2008 and August 4, 2008. (See Doc. No. 59 at 4.) The trial court denied the motion, holding that...