Guerrero-Sanchez v. Bradley

• Decision Date: 16 October 2019
• Docket Number: Case No. 3:19-cv-037
• Court: U.S. District Court — Southern District of Ohio
• Parties: JOSE R. GUERRERO-SANCHEZ, Petitioner, v. CHARLES BRADLEY, Warden, Pickaway Correctional Institution Respondent.

JOSE R. GUERRERO-SANCHEZ, Petitioner, v. CHARLES BRADLEY, Warden, Pickaway Correctional Institution Respondent.

Case No. 3:19-cv-037

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON

October 16, 2019

District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus action is before the Court for decision upon the Petition (ECF No. 3), the State Court Record (ECF No. 24), the Return of Writ (ECF No. 26), and Petitioner's Reply (ECF No. 27). Although Petitioner filed this case pro se, the Court granted his motion for appointment of counsel and he has been represented by Assistant Federal Public Defender Kevin Schad (ECF No. 4, 6). After counsel was appointed, Guerrero-Sanchez was allowed to file a Supplement (ECF No. 20) which does not add grounds for relief, but briefs the procedural posture of the case.

Litigation History

Petitioner was indicted on March 11, 2016, by a Montgomery County grand jury on two counts of possession of drugs, fentanyl (fifty times bulk) and methamphetamine. He filed motions to suppress his statements to police and the drug evidence seized from his hotel room. After those motions were overruled, he pleaded no contest, receiving an eleven-year prison term on the fentanyl count and a concurrent one-year term on the methamphetamine count.

On direct appeal, Guerrero-Sanchez asserted error in the failure to suppress and in imposing the maximum sentence on the fentanyl conviction. The Second District Court of Appeals overruled the assignments of error and affirmed the conviction. State v. Guerrero-Sanchez, 107-Ohio-8185 (Ohio App. 2^nd Dist. Oct. 13, 2017), appellate jurisdiction declined, 152 Ohio St. 3d 1425 (2018).

On February 15, 2018, Guerrero-Sanchez, filed a Delayed Application to Reopen the appeal which the Second District rejected (ECF No. 24, Ex. 22). Petitioner took no appeal to the Supreme Court of Ohio. On June 4, 2018, he filed a petition for post-conviction relief which the trial court found was untimely and barred by res judicata. Later, he filed a duplicative post-conviction petition which the trial court rejected because it lacked jurisdiction over a second petition. Guerrero-Sanchez did not appeal either of those decisions. On January 23, 2019, he filed his habeas corpus petition in this Court by depositing it with prison staff for mailing.

The Petition pleads the following grounds for relief:

Ground One: The trial court erred when it overruled Guerrero-Sanchez's motion to suppress.

Issue #1: Whether the trial court erred by overruling Guerrero-Sanchez's motion to suppress his statements which were not made voluntarily.

. . . Mr. Guerrero-Sanchez did testify that he understood just a little bit of English. More importantly the police and/or detectives had already entered into Mr. Guerrero-Sanchez's hotel room, handcuffed Mr. Guerrero-Sanchez and searched the hotel room before a Spanish speaking officer arrived and gave/read Mr. Guerrero-Sanchez his Miranda rights. The totality of the circumstances shows that Mr. Guerrero-Sanchez did not have the understanding to KNOWINGLY waive any rights afforded to him under the U.S. Constitution.

Issue #2: Whether the trial court erred by overruling Guerrero-Sanchez's motion to suppress his statements which were made without benefit of Miranda warnings.

. . . In his present case there is a question as to when the petitioner was actually in custody. More so, Miranda warnings was not given until the petitioner was transported to the local DEA office.

Issue #3: Whether the trial court erred by overruling Guerrero-Sanchez's motion to suppress the contraband found during the search of his hotel room.

Ground Two: The trial court erred when it sentenced Guerrero-Sanchez to eleven years in prison on Count 1.

Supporting Facts: The trial court sentenced the petitioner to the maximum term of incarceration that is clearly outside the precedent set forth in federal precedents. Mr. Guerrero-Sanchez was led to believe there was an agreed sentence of three years. The trial court violated his Sixth Amendment right to a jury trial as to the finding of "Fentanyl" to be the worst form of the offense Aggravated Possession of Drugs.

Ground Three: Due process was violated when Petitioner was not given notice of the filing deadline of ORC § 2953.21(A)(2) by either trial or appellate counsel.

Supporting Facts: It has been held that the petitioner could raise an independent due process claim in a post-conviction when he is not provided the filing deadline notice by counsel's [sic] for this prejudiced the petitioner as to his right to foile [sic] for such collateral relief.

Ground Four: Trial counsel was prejudicially ineffective to advise against accepting a three year sentence plea offer in exchange for a guilty plea under the false advise [sic] of success on a motion to suppress that later was denied.

Supporting Facts: The Sixth Amendment guarantees the petitioner the right to have counsel present at all 'critical' stages of the criminal proceedings. This includes at the entry of guilty pleas and in the plea bargaining process. The advice of trial counsel to the petitioner to decline the three year sentence, for he/trial counsel will succeed at the suppression hearing constitutes ineffective assistance of counsel.

(Petition , ECF No. 3, PageID 84-96.) Issue Three of Ground One has been withdrawn as barred by Stone v. Powell, 428 U.S. 465 (1976)(Supplement, ECF No. 20, PageID 139).

Analysis

Ground One: Issue No. 1: Conviction Based on Involuntary Statements to Police

In this Issue 1 of Ground One, Guerrero-Sanchez argues his statements to the police were involuntary. He presented this claim to the Second District Court of Appeals as part of his First Assignment of Error on direct appeal and that court decided the issue as follows:

Guerrero-Sanchez's Statements Were Voluntary

[*P26] Guerrero-Sanchez first claims the statements he made to Agent Swallen and Detective Walters should have been suppressed because his statements were involuntary due to his inability to understand the English language.

[*P27] "Whether a statement was made voluntarily and whether an individual knowingly, voluntarily, and intelligently waived his or her Miranda rights are distinct issues." (Citations omitted.) State v. Lovato, 2d Dist. Montgomery No. 25683, 2014-Ohio-2311, ¶ 30. "Regardless of whether Miranda warnings were required and given, a defendant's statement may have been given involuntarily and thus be subject to exclusion." Id., citing State v. Kelly, 2d Dist. Greene No. 2004-CA-20, 2005-Ohio-305, ¶ 11.

[*P28] "In determining whether a pretrial statement is involuntary, a court 'should consider the totality of the circumstances, including the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.'" State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 13, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051 (1976), paragraph two of the syllabus, overruledon other grounds, Edwards v. Ohio, 438 U.S. 911, 98 S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

[*P29] "'[C]oercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment.'" State v. Banks-Harvey, 2d Dist. Montgomery No. 26786, 2016-Ohio-4715, ¶ 8, quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). "'Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis.'" Id., quoting State v. Clark, 38 Ohio St.3d 252, 261, 527 N.E.2d 844 (1988). "A confession is voluntary 'absent evidence that [the defendant's] will was overborne and his capacity for self-determination was critically impaired because of coercive police conduct.'" Id., quoting State v. Jackson, 2d Dist. Greene No. 02CA0001, 2002-Ohio-4680, ¶ 20. (Other citation omitted.)

[*P30] In this case, the trial court indicated that its decision to overrule the motion to suppress Guerrero-Sanchez's statements was based on the credibility of the witnesses. Accordingly, it is clear from the record that the trial court found the officers' testimony more credible than Guerrero-Sanchez's and relied on the officers' testimony when issuing its decision.

[*P31] The testimony of Agent Swallen, Detective Walters, and Officer Lockhart indicate [sic] that Guerrero-Sanchez understands and speaks the English language. Specifically, Swallen and Walters testified that Guerrero-Sanchez communicated with them in English throughout the encounter without a problem and that Guerrero-Sanchez did not mention a language barrier until after Swallen asked him about the drugs in the suitcase. Guerrero-Sanchez's ability to speak and understand English is buttressed by the testimony of Officer Lockhart, who testified that Guerrero-Sanchez had no difficulty understanding and speaking English with him while incarcerated at the Montgomery County Jail, and that Guerrero-Sanchez acted as an English translator for his Spanish-speaking cellmate. We also note that Guerrero-Sanchez testified that he has been living in the United States for 16 years, almost half his life, and that he has been able to obtain employment and travel across the country without any difficulty. Accordingly, there is competent and credible evidence in the record supporting the finding that Guerrero-Sanchez understood what the offers were saying during the encounter at the hotel room.

[*P32] We further note that the officers' testimony also indicates that the encounter in the hotel room was not coercive in nature. There is no indication that Guerrero-Sanchez was subject to any threats or mistreatment. Moreover, the officers

...