Montelongo-Rangel v. Warden, Noble Corr. Inst.

• Decision Date: 07 June 2021
• Docket Number: Case No. 2:20-cv-5463
• Parties: JOSUE MONTELONGO-RANGEL, Petitioner, v. WARDEN, Noble Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

JOSUE MONTELONGO-RANGEL, Petitioner, v. WARDEN, Noble Correctional Institution, Respondent.

Case No. 2:20-cv-5463

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION AT COLUMBUS

June 7, 2021

District Judge Algenon L. Marbley

Magistrate Judge Michael R. Merz

SUBSTITUTED REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Josue Montelongo-Rangel pursuant to 28 U.S.C. § 2254, is before the Court on the Magistrate Judge's Report and Recommendations ("Report" ECF No. 11) and Petitioner's objections to the Report, presented in two separate documents labeled "Objections" (ECF No. 14) and "Notice" (ECF No. 15¹). Having reconsidered the Report in light of the Objections and Notice, the Magistrate Judge has determined that substantially more analysis is needed. Accordingly, the Report is WITHDRAWN and the following is substituted in its stead.

Litigation History

On May 11, 2018, a Franklin County Grand Jury indicted Montelongo-Rangel on one count of engaging in a pattern of corrupt activity in violation of Ohio Revised Code § 2923.32 (Count 1), two counts of trafficking in marijuana in violation of Ohio Revised Code § 2925.03 (Counts 2 & 5), two counts of trafficking in cocaine in violation of Ohio Revised Code § 2925.03 (Counts 3 & 4), one count of receiving proceeds of an offense subject to forfeiture proceedings in violation of Ohio Revised Code § 2927.21 (Count 6), and one count of designing a vehicle with a hidden compartment used to transport a controlled substance in violation of Ohio Revised Code § 2923.21 (Count 7). Counts 1, 3, 4, 5, and 6 each carried a firearm specification and Counts 3 and 4 carried a specification for forfeiture of money in a drug case (Indictment, State Court Record ECF No. 4, Exhibit 1). Montelongo-Rangel pleaded not guilty to all counts. Id. at Ex. 2.

On June 18, 2019, Montelongo-Rangel, through counsel, entered a plea of guilty to Count 1, engaging in a pattern of corrupt activity without the specification and Count 3, trafficking in cocaine with the forfeiture specification. Id. at Exhibit 3. The trial court found Montelongo-Rangel guilty of the charges to which the plea was entered and ordered the remaining counts and their respective specifications to be dismissed. Montelongo-Rangel was then sentenced to a mandatory eleven years as to Counts 1 and 3 concurrent with each other and consecutive to the sentence imposed in Case No. 19CR23121. Id. at Ex. 4.

Montelongo-Rangel did not timely appeal, but filed a motion for delayed appeal February 21, 2020. Id. at Ex. 6. The Ohio Tenth District Court of Appeals denied the motion, along with parallel motions filed by co-defendants Anthony Jones and James Jones, concluding none of them had given an adequate excuse for his delay. Id. at Ex. 8. The Supreme Court of Ohio declinedappellate jurisdiction. Id. at Ex. 12.

On October 2 and 30, 2019, Montelongo-Rangel filed motions to vacate the judgment. Id. at Ex. 13, 16. The Franklin County Court of Common Pleas denied the motions. Id. at Ex. 18. The Tenth District affirmed. State v. Montelongo-Rangel, 2010-Ohio-5527 (10^th Dist. Dec. 3, 2020), appellate jurisdiction declined, 161 Ohio St. 3d 1475 (2021).

Montelongo-Rangel filed his Petition in this Court on October 16, 2020, pleading the following Grounds for Relief:

Ground One: Ineffective assistance of counsel.

Supporting Facts: Trial counsel was ineffective for failing to seek suppression of the evidence seized pursuant to two search warrants executed on June 16, 2018, and one warrantless search executed on April 4, 2018. (the first search warrant, executed on June 16, 2018, was issued by a state magistrate whom [sic] lacked the authority to issue it without the participation of federal authorities; the search warrant was based on an affidavit primised [sic] on federal probable cause, but was executed solely by state officers. Further, issuing magistrate abandoned her neutral role, the affidavit lacked a nexus to the locations, and probable cause for various reasons. The evidence obtained from this search formed the basis of the subsequest [sic] search warrant being issued, and of all counts in the indictment.)

Ground Two: Lack of subject matter jurisdiction.

Supporting Facts: It is undisputed that the issuing state magistrate of the search warrant on which the evidence obtained formed the basis of all counts in the indictment lacked the authority to issue it without the participation of federal authorities; the search warrant was based on an affidavit primised [sic] on federal probable cause, but was executed solely by state officers. The search warrant and evidence was [sic] void ab initio.

(Petition, ECF No. 1, PageID 5, 7).

Analysis

Exhaustion of State Court Remedies

Respondent asserted in his Return that the Petition was mixed because it included a claim, the Second Ground for Relief, on which Montelongo-Rangel had not exhausted available state court remedies (ECF No. 5, PageID 310-12). Since the Return was filed, the Supreme Court of Ohio declined appellate jurisdiction on this claim (Entry, ECF No. 9, PageID 342). In the Report the Magistrate Judge concluded this obviates Respondent's lack of exhaustion defense (Report, ECF No. 11, PageID 346). Respondent has not objected to this conclusion, so the Court should conclude that Petitioner has exhausted available state court remedies on Ground Two.

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Montelongo-Rangel claims he received ineffective assistance of trial counsel when his trial attorney did not seek to suppress the results of three searches which yielded evidence used against him, two on June 16, 2018, pursuant to search warrant and one warrantless search on April 4, 2018.

Procedural Default Analysis

Respondent asserts Montelongo-Rangel procedurally defaulted this claim by not taking a timely direct appeal to the Tenth District (Return, ECF No. 5, PageID 317-24).

The procedural default doctrine in habeas corpus is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). "Absent cause and prejudice, 'a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review.'" Boyle v. Million, 201 F.3d 711, 716 (6^th Cir. 2000), quoting Gravley v. Mills, 87 F.3d 779, 784-85 (6^th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle, 456 U.S. at 110; Wainwright, 433 U.S. at 87.

[A] federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175 L.Ed.2d 417 (2009). This is an important "corollary" to the exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124 S.Ct. 1847, 158 L.Ed. d 659 (2004). "Just as in those cases in which a state prisoner fails to exhaust state remedies, a habeas petitioner who has failed to meet the State's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address" the merits of "those claims in the first instance." Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111 S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). "[A] federal court may not review federal claims that were procedurally defaulted in state courts." Theriot v. Vashaw, 982 F.3d 999 (6^th Cir. 2020), citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).

The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 464 (6^th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6^th Cir. 2010)(en banc); Eley v. Bagley, 604 F.3d 958, 965 (6^th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6^th Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6^th Cir. 1986); accord Lott v. Coyle, 261 F.3d 594, 601-02 (6^th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6^th Cir. 2001).

First the court must determine that there is a state procedural rule that is applicable to the petitioner's claim and that the petitioner failed to comply with the rule.

. . . .

Second, the court must decide whether the state courts actually enforced the state procedural sanction, citing County Court of Ulster County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

Third, the court must decide whether the state procedural forfeiture is an "adequate and independent" state ground on which the state can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not complied with and that the rule was an adequate and independent state ground, then the petitioner must demonstrate under Sykes that there was "cause" for him to not follow the procedural rule and

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