Lopez-Ochoa v. Rewerts

• Decision Date: 20 February 2019
• Docket Number: Case No. 1:19-cv-8
• Parties: LUIS MANUEL LOPEZ-OCHOA, Petitioner, v. RANDEE REWERTS, Respondent.
• Court: U.S. District Court — Western District of Michigan

LUIS MANUEL LOPEZ-OCHOA, Petitioner, v. RANDEE REWERTS, Respondent.

Case No. 1:19-cv-8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 20, 2019

Honorable Robert J. Jonker

OPINION

This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether "it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

Discussion

I. Factual allegations

Petitioner Luis Manuel Lopez-Ochoa is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Carson City, Montcalm County, Michigan. Following a jury trial in the Kent County Circuit Court, Petitioner was convicted of two counts of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520b(1)(f). On July 20, 2016, the court sentenced Petitioner to two concurrent prison terms of 15 to 50 years.

Petitioner appealed his convictions to the Michigan Court of Appeals. The facts underlying Petitioner's conviction, as taken from the opinion of the Michigan Court of Appeals, are as follows:

This case involves a sexual assault of an adult woman in her home. During the evening of February 14, 2016, the 61-year-old victim, her roommate, Victor Cervantes, and Cervantes's friend, defendant, were drinking alcohol at the victim's apartment in Grand Rapids, Michigan. The group was gathered around the dining room table of the home drinking beer and liquor. The victim's ex-husband, Craig, was also home, but he was sitting in the adjacent living room watching television and drinking beer; he was not participating in the group's gathering at the dining room table. At some point in the evening, Craig asked Cervantes to go to the store and get some tobacco. When Cervantes left, defendant asked the victim to help him work a radio in Cervantes's bedroom.

When the victim entered the bedroom, defendant closed the bedroom door, grabbed the victim by her left arm, and threw her face down on the bed. Defendant ripped the victim's clothes off and sexually assaulted her twice. He also forcibly groped the victim's left breast. The victim told defendant to stop, but he did not stop until he was finished.

Craig did not see or hear the assault, but he went to look for the victim after noticing that she was gone. He found the victim lying on the floor in Cervantes's bedroom with her pants and underwear down. She was crying, and she said, "He raped me." Defendant then fled the house. Craig went downstairs and told a neighbor to call 911. Police officers arrived shortly thereafter. When police arrived, they described the victim's demeanor as "distraught." She told police that defendant sexually assaulted her. Craig gave police officers defendant's first name, a description of defendant, and a description of defendant's vehicle. Police found defendant at a nearby farm where he worked and lived, and they arrested him. Police officers transported the victim to the YWCA where she met with AlisonEdidin, a sexual assault nurse examiner. Edidin did a physical examination of the victim. She noted multiple lacerations and tears on the victim's privates that were bleeding. She noted that the "whole area was an abrasion" and that the victim was in extreme pain during the examination. Edidin also noted pain and redness on the victim's left breast as well as bruising on the victim's left forearm.

People v. Lopez-Ochoa, No. 335302, 2017 WL 5759996, at *1 (Mich. Ct. App. Nov. 28, 2017). Petitioner does not contest the court of appeals' summary of the case.

In an unpublished opinion issued on November 28, 2017, the court of appeals rejected all appellate grounds and affirmed the convictions and sentences. Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same grounds presented to the court of appeals. The supreme court denied leave to appeal on May 1, 2018.

On December 27, 2018, Petitioner filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in the prison mailing system on December 27, 2018. (Pet., ECF No. 1, PageID.14.)

The petition raises the same three grounds in his petition as he presented to the Michigan appellate courts:

I. TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO: (1) IMPEACH [THE VICTIM] WITH HER PRELIMINAR EXAMINATION TESTIMONY, AND; (2) FAILED TO OBJECT TO THE PROSECUTOR'S REPEATED REFERENCES TO APPELLANT'S INVOCATION OF HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT WHEN REFUSING TO SPEAK WITH POLICE.

II. OFFENSE VARIABLES (OV'S) 3 AND 4 WERE INCORRECTLY SCORED WHICH RESULTED IN A HIGHER GUIDELINE RANGE OF WHICH [PETITIONER] WAS SENTENCED UNDER.

III. THE COURT'S IMPOSITION OF A 20% LATE FEE UNDER MCL 600.4803(1) CONSTITUTES AN IMPERMISSIBLE MEANS OF ENFORCEMENT THAT EXPOSES CRIMINAL DEFENDANTS TO MORE SEVERE COLLECTIONS PRACTICES THAN ORDINARY CIVIL DEFENDANTS.

(Pet., ECF No. 1, PageID.6-8.)

II. AEDPA standard

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA). The AEDPA "prevents federal habeas 'retrials'" and ensures that state court convictions are given effect to the extent possible under the law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(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 upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d). This standard is "intentionally difficult to meet." Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372, 1376 (2015) (internal quotation omitted).

The AEDPA limits the source of law to cases decided by the United States Supreme Court. 28 U.S.C. § 2254(d). This Court may consider only the holdings, and not the dicta, of the Supreme Court. Williams v. Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). In determining whether federal law is clearly established, the Court may not consider the decisions of lower federal courts. Williams, 529 U.S. at 381-82; Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir. 2002). Moreover, "clearly established Federal law" does not include decisions of the Supreme Court announced after the last adjudication of the merits in state court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011). Thus, the inquiry is limited to an examination of the legal landscape as it would have appeared to the Michigan state courts in light of Supreme Court precedent at the time of the state-court adjudication on the merits. Miller v. Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing Greene, 565 U.S. at 38).

A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in the Supreme Court's cases, or if it decides a case differently than the Supreme Court has done on a set of materially indistinguishable facts. Bell, 535 U.S. at 694 (citing Williams, 529 U.S. at 405-06). "To satisfy this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Woods, 135 S. Ct. at 1376 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, "[w]here the precise contours of the right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims." White v. Woodall, 572 U.S. 415, 424 (2014) (internal quotations omitted).

The AEDPA requires heightened respect for state factual findings. Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a factual issue made by a state court is presumed to be correct, and the petitioner has the burden of rebutting the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003); Bailey, 271 F.3d at 656. This presumption of correctness is accorded to findings of state appellate courts, as well as the trial court. See Sumner v. Mata, 449 U.S. 539, 546 (1981); Smith v. Jago, 888 F.2d 399, 407 n.4 (6th Cir. 1989).

III. Ineffective Assistance of Trial Counsel

In his first ground for habeas relief, Petitioner argues that trial counsel was ineffective in two ways. First, he contends, counsel was ineffective in failing to impeach the victim with her preliminary-examination testimony. The victim testified at the preliminary examination that, before they went to the bedroom, Petitioner had tried to kiss her on the mouth and had choked her,...