Gonzalez v. Phillips

• Decision Date: 21 December 2001
• Docket Number: No. 98-CV-75600.,98-CV-75600.
• Parties: Alejo GONZALEZ, Petitioner, v. Thomas PHILLIPS, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

Page 893

195 F.Supp.2d 893

Alejo GONZALEZ, Petitioner, v. Thomas PHILLIPS, Respondent.

No. 98-CV-75600.

United States District Court, E.D. Michigan, Southern Division.

December 21, 2001.

Alejo Gonzalez, Jackson, MI, pro se.

Rubina S. Mustafa, State Appellate Defender Office, Detroit, MI, for Alejo Gonzalez.

Janet Van Cleve, Michigan Department of Attorney General, Habeas Corpus Division, Lansing, MI, for Thomas Phillips.

OPINION AND ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS¹

TARNOW, District Judge.

I. Introduction

Petitioner Alejo Gonzalez ("Gonzalez") is currently incarcerated at the Charles Egeler Correctional Facility in Jackson, Michigan. Gonzalez, through his attorney Rubina S. Mustafa, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because the Court finds that Gonzalez received ineffective assistance of trial counsel, was constructively denied the assistance of counsel, and was deprived of his Sixth Amendment right to confront witnesses against him, the Court grants the petition.

II. Facts

Petitioner is incarcerated pursuant to 1992 convictions in Genesee County Circuit Court for conspiracy to deliver over 650 grams of cocaine and delivery of over 650 grams of cocaine. For a detailed recitation of the facts that led to Gonzalez's conviction, the Court directs the reader to its June 5, 2001 Opinion and Order Granting Evidentiary Hearing. Gonzalez v. Phillips, 147 F.Supp.2d 791 (E.D.Mich. 2001). This opinion will summarize the testimony presented at the evidentiary hearing conducted in this Court on October 1, 2001.

Three witnesses testified at the October 1, 2001 evidentiary hearing: the trial attorney, Cyril Hall; the interpreter, Marisol Ortiz-Garcia, and Petitioner. Cyril Hall, had very little specific recollection of his representation of Gonzalez. He did not specifically recall when he was retained to represent Gonzalez. However, he noted that his associate, Randall Upshaw represented Gonzalez's at the preliminary examination on his behalf. Although an interpreter was used at the preliminary examination, Attorney Hall did not recall having any conversations with Gonzalez or Attorney Upshaw regarding whether an interpreter was necessary at trial. At the preliminary examination, Maria Wallace served as a Spanish language interpreter for Gonzalez.

Attorney Hall recalled that the first time he spoke to Gonzalez he brought a Spanish language interpreter, Marisol Ortiz-Gracey, with him. He recalled that he communicated with Gonzalez through Ms. Ortiz during that first meeting. Attorney Hall also recalled that Ms. Ortiz-Gracey interpreted for him on his second meeting with Gonzalez. Attorney Hall testified that if he had been convinced that Gonzalez could not understand the trial court proceedings, he would have requested that an interpreter be appointed for him He had no specific recollection of reaching the conclusion that Gonzalez did not need an interpreter.

During the evidentiary hearing, Marisol Ortiz-Gracey testified that Attorney Hall contacted her and asked her to serve as a bilingual interpreter for Gonzalez. She served as an interpreter several times when Attorney Hall met with Gonzalez at the Genesee County Jail. She also recalled attending court one day, but could not remember any details related to those proceedings. Ms. Ortiz-Gracey testified that she felt that Gonzalez's ability to understand English was very limited. Ms. Ortiz-Gracey further testified that, during those meetings, no communication occurred between Attorney Hall and Gonzalez without her assistance.

Finally, Gonzalez testified at the evidentiary hearing. He testified that, prior to being incarcerated, the only formal education he received was in Cuba, where he received no English language education. He arrived in the United States in March 1980, at the age of 17. After arriving in the United States, Gonzalez was employed at various jobs, none of which required him to read, speak or write English.

Gonzalez testified that on the first day of trial, he indicated to Attorney Hall that he did not understand what was happening. Gonzalez testified that throughout the trial he did not understand the proceedings, because he could not understand the language. He stated that, initially, he did not even realize that this was his trial. Gonzalez had seen Ms. Ortiz-Gracey in the courtroom and thought she would interpret for him, but she did not. He testified that he would have testified at trial, had an interpreter been available to him.

The trial judge, Honorable Judith Fullerton, provided an affidavit that she saw no indication during the arraignment, trial or sentencing that Gonzalez had difficultly understanding the English language, nor was she informed by Gonzalez or his attorney of any difficulty. The presentence report had the following: "[Gonzalez] only attended school until age 16 and due to his Cuban upbringing, seems to have little grasp of the English language."

III. Procedural History

The complete procedural history is set forth in the Court's June 5, 2001 Opinion and Order Granting Evidentiary Hearing. Gonzalez, 147 F.Supp.2d 791. In his petition for a writ of habeas corpus, Petitioner presents the following claims:

I. Was due process violated where the court precluded cross-examination of a key witness as to bias?

II. Was the court's failure to provide Petitioner with an interpreter at trial, where Petitioner did not speak or understand English, reversible error?

III. Was defense counsel ineffective in failing to move for appointment of an interpreter for Petitioner at trial, in failing to bring out the entire bargain for the accomplices' testimony and the fact that they all lied about it, and in failing to utilize Petitioner's testimony where there was no other support for his defense?

On June 5, 2001, this Court issued an Opinion and Order Granting Evidentiary Hearing regarding the following issues: (1) whether Gonzalez spoke and understood English adequately at the time of his trial to intelligently participate in his own defense and protect his right of confrontation without the services of a competent interpreter, (2) whether the trial judge deprived Gonzalez of his constitutional rights to confrontation, meaningful presence at his trial, meaningful participation in his defense, and a fundamentally fair trial by failing to appoint Gonzalez an interpreter, or advise him of his right to an interpreter, (3) whether lack of an interpreter resulted in actual or constructive denial of counsel, and (4) whether trial counsel was ineffective.

An evidentiary hearing was held on October 1, 2001.

IV. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA") altered the standard of review federal courts must apply when reviewing applications for a writ of habeas corpus. The AEDPA applies to all habeas petitions filed after the effective date of the act, April 24, 1996. Because petitioner's application was filed after April 24, 1996, the provisions of the AEDPA, including the amended standard of review, apply to this case.

As amended, 28 U.S.C. § 2254(d) imposes the following standard of review that a federal court must utilize when reviewing applications for a writ of habeas corpus:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). Therefore, federal courts are bound by a state court's adjudication of a petitioner's claims unless the state court's decision was contrary to or involved an unreasonable application of clearly established federal law. Franklin v. Francis, 144 F.3d 429 (6th Cir.1998). Additionally, this Court must presume the correctness of state court factual determinations. 28 U.S.C. § 2254(e)(1)²; see also Cremeans v. Chapleau, 62 F.3d 167, 169 (6th Cir.1995) ("We give complete deference to state court findings unless they are clearly erroneous").

The United States Supreme Court has explained the proper application of the "contrary to" clause as follows:

A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases.... A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from [the Court's] precedent.

Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000).

With respect to the "unreasonable application" clause of § 2254(d)(1), the United States Supreme Court held that a federal court should analyze a claim for habeas corpus relief under the "unreasonable application" clause when "a state-court decision unreasonably applies the law of this Court to the facts of a prisoner's case." Id. at 1521. The Court defined "unreasonable application" as follows:

[A] federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable ... [A]n unreasonable application of federal law is different from an incorrect application of federal law.... Under § 2254(d)(1)'s "unreasonable application" clause, then, a federal habeas court may not issue the writ simply because...