Soler-Norona v. Nagy

• Decision Date: 16 September 2022
• Docket Number: 17-11357
• Parties: CARLOS SOLER-NORONA,[1] Petitioner, v. NOAH NAGY, Respondent,
• Court: U.S. District Court — Eastern District of Michigan

CARLOS SOLER-NORONA,^[1] Petitioner,
v.
NOAH NAGY, Respondent,

No. 17-11357

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

September 16, 2022

OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING THE MOTION TO STRIKE THE SUPPLEMENTAL ANSWER (ECF NO. 33), (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND (4) GRANTING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS

LINDA V. PARKER, U.S. DISTRICT JUDGE.

Petitioner Carlos Soler-Norona (“Petitioner), incarcerated at the Cooper Street Correctional Facility in Jackson, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for conspiracy to commit armed robbery. For the reasons that follow, the Court is denying Petitioner habeas relief.

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I. Background

This Court recites verbatim the relevant facts as described by the Michigan Court of Appeals:

In December 2008, police arrested James Whittington for home invasion. At the time of his arrest, Whittington had several similar charges pending against him throughout southern Michigan. While in jail, Whittington told the officer assigned to his case, Southfield Police Officer Corey Bauman that he had information regarding a planned robbery. More specifically, Whittington told Officer Bauman that he and five other men, including Solernorona, Lester Jennings-Bush Henry Bush, Huley Kennedy, and Julio Licorish, planned to rob the Darakjian Jewelry store in Southfield

While still in custody, Whittington called Jennings-Bush and asked him if the men still planned to rob the store. Jennings-Bush confirmed that the plan was still in effect, and he told Whittington about a meeting during which the men would further discuss the plan. Whittington agreed to attend the meeting while wearing a remote listening device so that police could hear the discussion. The men planned to meet at Jennings-Bush's house and then go to a restaurant where they would hold the meeting. When it came time to meet, the police followed Whittington to Jennings-Bush's house. However, the restaurant was overcrowded, so the men decided to go to Solernorona's house instead. The police surrounded the house with 40 to 50 officers and waited for the men to begin their meeting.

While monitoring the remote listening device, Officer Bauman heard the men discuss the robbery. The men stated that they planned to take the owner of the jewelry store and his family hostage in their home and that half the men would then escort the jeweler to his store. They would use the jeweler's family as leverage to convince him to open the vault. They agreed that they would torture the jeweler and his family if necessary. The men also stated that they would use weapons in the robbery, including an AK-47 assault rifle and handguns. Officer Bauman heard Solernorona state that he had already obtained the guns and heard Kennedy state that he would rather engage in a shootout with police than go back to jail. After

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hearing the men make these statements, Officer Bauman decided to enter Solernorona's house and arrest them.

Police later obtained a search warrant to search Solernorona's house. They recovered two handguns, a laptop computer, torn-up note cards, and a Darakjian jeweler's business card. The computer contained data showing that it had recently been used to search for the Darakjian jewelry store and to obtain directions to the store. The note cards contained a checklist, written in Spanish, of things the men would need to do and things that they should avoid during the robbery.

Police also obtained a search warrant to search Jennings-Bush's house. They recovered an assault rifle, a shotgun, and ammunition from his bedroom. Additionally, they found marijuana, packaging material, and scales. They found a white substance that they initially believed to be cocaine, but later testing refuted that initial belief. A computer that the police recovered from Jennings-Bush's house also contained evidence related to the Darakjian jewelry store.

People v. Solernorona, No. 299269, 2012 WL 1521444, at *1-2 (Mich. Ct. App. May 1, 2012). These facts are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009).

In 2010, an Oakland County Circuit Court jury found Petitioner guilty of conspiracy to commit armed robbery and conspiracy to commit unlawful imprisonment. The trial court vacated the latter conviction, concluding that the convictions merged. The trial court then sentenced Petitioner to 210 months to 50 years' imprisonment. Petitioner's conviction was affirmed on direct appeal but the case was remanded for resentencing. Id. On remand, the trial court re-sentenced Petitioner to 180 months to 50 years' imprisonment. The Michigan appellate

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courts subsequently affirmed Petitioner's new sentence. People v. Solernorona, No. 311641, 2014 WL 129270 (Mich. Ct. App. Jan. 14, 2014), leave denied, 498 Mich. 904 (2015). The United States Supreme Court denied Petitioner's petition for writ of certiorari. Solernorona v. Michigan, 569 U.S. 951 (2013), reh'g denied, 579 U.S. 924 (2016).

On April 27, 2017, Petitioner initiated this action by filing his § 2254 petition for habeas relief (ECF No. 1) and Respondent answered (ECF No. 14). Petitioner subsequently moved to amend his petition to add additional claims. The Court granted the motion but held the matter in abeyance so Petitioner could return to the State courts to exhaust these additional claims. (ECF No. 20); Soler-Norona v. Brewer, No. 17-11357, 2018 WL 1964677 (E.D. Mich. Apr. 26, 2018).

Petitioner then filed a post-conviction motion for relief from judgment in the State trial court, which the court denied. (ECF No. 32-6.) The Michigan appellate courts denied Petitioner leave to appeal. People v. Soler-Norona, No. 348547 (Mich. Ct. App. July 1, 2020), leave denied 953 N.W.2d 398 (Mich. 2021).

In his original habeas petition, Petitioner seeks habeas relief on the following grounds:

I. [Petitioner] is entitled to a new trial because of the harm caused by the admission of evidence obtained from a warrantless search of his home, which search was not justified by any exception to the warrant requirement of the Fourth Amendment. The admission and use of the illegal obtained evidence w[ere] fundamentally unfair and violated Petitioner's due process.

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II. The trial counsel['s] failure to object to the admission of the evidence seized from the search of Lester Jennings Bush's home deprived Petitioner of his Sixth Amendment right to the effective assistance of counsel. The Michigan Court of Appeals unreasonabl[y] applied the two prong[] test of Strickland v. Washington.

III. [Petitioner's] Sixth Amendment right to the effective assistance of counsel has been denied. Trial counsel was acting under the influence of an actual conflict of interest that adversely affected his performance. The Michigan Court's decision was contrary to United States Supreme Court precedent.

IV. [Petitioner's] Sixth and Fourteenth Amendment rights were violated by judicial fact finding, which increased the floor of that permissible sentence, in violation of Alleyne v. United States.

V. Petitioner's counsel['s] failure to object to the admission of surprise witnesses to the prosecutor's witness list and counsel['s] failure to investigate and pursue witness criminal record “fell below an objective standard of reasonableness” and deprive[d Petitioner] of his rights to effective assistance of counsel.

(ECF No. 1 at Pg ID 7-8.) In his amended habeas petition, Petitioner asserts these grounds:

I. Petitioner's Fourteenth and Sixth Amendment rights were violated[] when the prosecution presented testimonies [sic] and evidence to the Michigan courts and the jury that it knew or should have known to be falsified and when it failed to disclose evidence with exculpatory and impeachment value.

A. The trial court and the [c]ourt of [a]ppeals' decision to deny Petitioner's constitutional claims conflict with U.S. Supreme Court[] precedent[]. The record substantially shows that the prosecutor sponsored, exploited, and suppressed falsified evidence. The court['s] factual determination was not fairly supported by the record.

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II. [Petitioner] is entitle[d] to a new trial because of the harm caused by the admission of evidence obtained from a warrantless search of his home, which search was not justified by any exception to the warrant requirement of the Fo[u]rth Amendment. The admission and use of the illegal[ly] obtained evidence was fundamentally unfair and violated Petitioner's due process.

A. The [c]ourt of [a]ppeals holding that the exigent circumstances justified the warrantless search of [Petitioner]'s home was contrary to Payton v New York and Brighan City v Stuart. There was no need to raid Petitioner's home to protect the police.

III. The trial counsel's failure to discover the existence of forged documents, falsified testimonies, his failure to investigate key witness's police history, and his failure to hire an[] expert in Spanish language, and to object to the admission of damaging evidence deprived the Petitioner of his constitutional rights to effective assistance of counsel.

A. The denial of Petitioner['s] ineffective assistance of trial and appellate counsel [claims] was contrary to U.S. Supreme Court decision[s,] and the court['s] factual find[ing]s were based on the prosecution['s] misrepresentation of the fact[s].

(ECF No. 23.)

II. Preliminary Matters

A. Petitioner's Motion to Strike Supplemental Answer (ECF No. 33.)

Petitioner moves to strike Respondent's supplemental answer to the amended petition on the ground that it is untimely....