Guerrero-Sanchez v. Warden, Pickaway Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

JOSE R. GUERRERO-SANCHEZ,

Petitioner, : Case No. 3:19-cv-037

- vs - District Judge Walter H. Rice

Magistrate Judge Michael R. Merz

CHARLES BRADLEY, Warden,

Pickaway Correctional Institution

:

Respondent.

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. 2nd 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, overruled

on 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 testified that the

whole encounter lasted no more than 20 minutes without any

weapons drawn, and that Guerrero-Sanchez was not handcuffed

until he was transported to the DEA office.

[*P33] When considering the officers' testimony, the totality of the

circumstances do [sic] not indicate that Guerrero-Sanchez's

statements were rendered involuntary as the result of a language

barrier or any coercive police conduct. Rather, the totality of the

circumstances indicate that Guerrero-Sanchez understands and

speaks the English language at a level sufficient to have understood

Swallen's questions and that he voluntarily complied with the

officers at the hotel room and answered their questions.

[*P34] For the foregoing reasons, Guerrero-Sanchez's argument that

his statements were involuntary and should have been suppressed is

overruled.

Guerrero-Sanchez, 2017-Ohio-8185.

The Warden defends on this claim on the merits, relying on the Second District’s decision

just quoted (Return of Writ, ECF No. 26, PageID 500-03). Guerrero-Sanchez responds that the

actions of the officers amounted to an arrest without probable cause (Reply, ECF No. 27, PageID

528-29).

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86,

100(2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-94 (2002);

Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28 U.S.C. §

2254(d)(2) unless the state court decision was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceedings.

Guerrero-Sanchez does not argue this claim in terms of § 2254(d). The Magistrate Judge,

however, concludes the state court’s decision is entitled to deference under that statute. The

appropriate standard asks whether the totality of the circumstances was coercive. There was no

testimony of threats or physical violence or deprivations of food or water or sleep. The officers

testified the encounter only lasted twenty minutes and Petitioner only began to raise the language

barrier issue when the drugs and money were discovered and, of course, at that point there was

probable cause for arrest. During his testimony at the suppression hearing, Guerrero-Sanchez

claimed he neither spoke nor understood English, but he made no claims of physical coercion and

did not contradict their testimony about the length of the encounter. (Transcript, State Court

Record, ECF No. 24-1, PageID 423.) Petitioner’s ability to understand English was testified to by

both the arresting officers whose testimony was bolstered later by proof Guerrero-Sanchez

routinely used English in the Montgomery County Jail. Thus, it cannot be said that the trial judge’s

findings of fact about the totality of the circumstances were an unreasonable determination in light

of the evidence presented.

Great deference is due to state court credibility determinations. Storey v. Vasbinder, 657

F.3d 372, 380 (6th Cir. 2011), citing Felkner v. Jackson, 562 U.S. 594 (2011). “For a federal

habeas court to overturn a state court’s credibility judgments, the state court’s error must be stark

and clear.” Otte v. Houk, 654 F.3d 594 (6th Cir. 2011), quoting Larry v. Branker, 552 F.3d 356,

370 (4th Cir. 2009). In weighing the credibility of witnesses, trial judges who hear live witnesses

are in the best position to gauge credibility. Christopher v. United States, 831 F.3d 737, 739 (6th

Cir. 2016). While appellate judges review transcripts for a living, trial judges assess the credibility

of live witnesses for a living and this “ring-side perspective” must be accounted for on appeal. Id.,

quoting United States v. Poynter, 495 F.3d 349, 351-52 (6th Cir. 2007). In addition to failing to

show the state courts’ factual determination was unreasonable, Petitioner has also failed to show

it was an unreasonable application of clearly established Supreme Court precedent, particularly

Colorado v. Connelly, 479 U.S. 157, 167 (1986), which is cited in paragraph twenty-nine of the

Second District’s opinion, supra.

The Second District’s determination that Guerrero-Sanchez’s statements were voluntary is

entitled to deference. Ground One, Issue 1, should therefore be dismissed on the merits.

Ground One: Issue Two: Violation of the Miranda Rule

In his Second Issue, Petitioner asserts his statements should have been suppressed because

he was entitled to receive the Miranda warnings before the statements at issue and they were not

administered until afterwards. Guerrero-Sanchez raised this as part of his First Assignment of

Error on direct appeal and the Second District decided it as follows:

Guerrero-Sanchez's Statements Are Not Suppressible Under

Miranda

[*P35] Guerrero-Sanchez also contends that his statements to Agent

Swallen and Detective Walters should have been suppressed

because the officers failed to administer Miranda warnings.

[*P36] "Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966)] requires police to give a suspect certain

prescribed warnings before custodial interrogation commences and

provides that if the warnings are not given, any statements elicited

from the suspect through police interrogation in that circumstance

must be suppressed." State v. Petitjean, 140 Ohio App.3d 517, 523,

748 N.E.2d 133 (2d Dist.2000). Police are not required to administer

Miranda warnings to every person they question, even if the person

being questioned is a suspect. State v. Biros, 78 Ohio St.3d 426, 440,

1997 Ohio 204, 678 N.E.2d 891 (1997), citing Oregon v. Mathiason,

429 U.S. 492, 495, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). Rather,

Miranda warnings are required only for custodial interrogations. Id.,

citing Mathiason at 494. (Other citation omitted.)

[*P37] "An individual is in custody when there has been a formal

arrest or a restraint of freedom of movement such that a reasonable

man would believe that he is under arrest." State v. Wenzler, 2d Dist.

Greene No. 2003-CA-16, 2004-Ohio-1811, ¶ 15, citing Biros at 440.

"The subjective views of the interviewing officer and the suspect are

immaterial to the determination of whether a custodial interrogation

was conducted." (Citations omitted.) In re L.G., 2017-Ohio-2781,

82 N.E.3d 52, ¶ 13 (2d Dist.). "The inquiry whether a person is

subject to custodial interrogation is an objective question, focusing

on how a reasonable person in the suspect's position would have

understood the situation." (Citations omitted.) Id. "General, on-the-

scene questioning of persons concerning events that have happened

does not ordinarily fall within the ambit of custodial interrogation,

because the compelling atmosphere inherent in the process of in-

custody interrogation is not present." State v. Barnett, 2d Dist.

Montgomery No. 14019, 1994 Ohio App. LEXIS 4767, 1994 WL

567551, *4 (Aug. 31, 1994), citing Miranda at 477-478.

[*P38] As previously noted, the trial court relied on the officers'

testimony when overruling Guerrero-Sanchez's motion to suppress

his statements. In applying the officers' testimony to the relevant

law, we find that Guerrero-Sanchez's statements were not elicited

during a custodial interrogation, as a reasonable person in Guerrero-

Sanchez's position would not have believed that he was under arrest

at the time the statements were made.

[*P39] According to the officers' testimony, Guerrero-Sanchez

permitted the officers inside the hotel room after Agent Swallen

knocked on the door, identified himself, and asked to speak with

him. After Guerrero-Sanchez answered the door, he put on a pair of

jeans, sat on the couch, and proceeded to communicate with the

officers voluntarily while under no physical constraints or threats of

force. We note that after Swallen saw the glass pipe and

methamphetamine on the nightstand, he proceeded to ask for

Guerrero-Sanchez's permission to search the hotel room as opposed

to arresting him or physically constraining him in anyway. As a

further matter, neither Swallen nor Walters had their weapon drawn

or showing during the encounter. Most importantly, the officers

indicated that Guerrero-Sanchez was not placed in handcuffs until

after the drugs were discovered in the suitcase. Accordingly, the

officers' testimony indicates that Guerrero-Sanchez was not in

custody until after the fentanyl was found. As a result, the statements

elicited from Guerrero-Sanchez prior to those drugs being found

were not obtained in violation of Miranda.

[*P40] The officers' testimony also indicates that once Guerrero-

Sanchez was in custody he was not asked any further questions

about the drugs found at the hotel room. Rather, Detective Walters

testified that the only discussion he had with Guerrero-Sanchez after

he was in custody concerned the benefits of cooperating with the

authorities. We find that said discussion does not qualify as an

interrogation requiring Miranda warnings because it was not

designed or reasonably likely to elicit an incriminating response

from Guerrero-Sanchez, but rather was a casual conversation. See

State v. Tucker, 81 Ohio St.3d 431, 436-438, 1998 Ohio 438, 692

N.E.2d 171 (1998).

[*P41] Since Guerrero-Sanchez was not in custody when he

discussed the drugs with the officers, his statements are not

suppressible under Miranda. Accordingly, Guerrero-Sanchez's

argument that his statements should be suppressed as a result of not

being Mirandized is overruled.

Guerrero-Sanchez, 2017-Ohio-8185.

Respondent also defends this issue on the merits (Return of Writ, ECF No. 26, PageID 504-

06). Petitioner responds briefly:

Here, the circumstances compelled the giving of Miranda warnings.

Petitioner Guerrero was not free to leave. He was being questioned

by officers speaking in English, while he was a Spanish speaker. He

was forcibly shoved to a bed, and police immediately began

searching his room. Under such circumstances, Miranda warnings

should have been provided.

(Reply, ECF No. 27, PageID 530.)

The relevant law is summarized as follows:

The Miranda Court defined custodial interrogation as "questioning

initiated by law enforcement officers after a person has been taken

into custody or otherwise deprived of his freedom of action in any

significant way." Miranda, 384 U.S. at 444. A suspect is "in

custody" for purposes of receiving Miranda protection if there has

been a "formal arrest or restraint on freedom of movement." Oregon

v. Mathiason, 429 U.S. 492, 495 (1977). "[T]he initial determination

of custody depends on the objective circumstances of the

interrogation, not on the subjective views harbored by either the

interrogating officers or the person being questioned." Stansbury v.

California, 511 U.S. 318, 323 (1994) (per curiam). Miranda

warnings are not required "simply because the questioning takes

place in the station house, or because the questioned person is one

whom the police suspect." California v. Beheler, 463 U.S. 1121,

1125 (1983) (per curiam) (quoting Mathiason, 429 U.S. at 495).

"[T]he only relevant inquiry is how a reasonable man in the suspect's

position would have understood his situation." Berkemer v.

McCarty, 468 U.S. 420, 442 (1984).

Mason v. Mitchell, 320 F.3d 604, 631 (6th Cir. 2003). The only statements at issue in the

suppression hearing were those made by Guerrero-Sanchez before the drugs were found in the

suitcase. At that point he was placed formally under arrest and handcuffed and thus clearly was

in custody. But no interrogation took place after that point and no statements from that point

forward were sought to be placed in evidence.

The Second District’s decision is neither an objectively unreasonable application of

Miranda and its progeny nor an unreasonable determination of the facts from the evidence

presented. Ground One, Issue Two, should therefore also be dismissed with prejudice.

Ground Two: Sentence Imposed in Violation of the Right to Trial by Jury

In his Second Ground for Relief, Petitioner asserts his Sixth Amendment right to trial by

jury was violated when the trial court sentenced him to eleven years’ imprisonment on the fentanyl

count, determining that to be the “worst form of the offense Aggravated Possession of Drugs.”

Respondent defends by asserting Ground Two does not state a claim for relief cognizable

under the Eighth Amendment because the sentence is acknowledged to be within the maximum

authorized by Ohio law for the offense of conviction (Return, ECF No. 26, PageID 507).

Respondent also asserts this claim is procedurally defaulted by Guerrero-Sanchez’s failure to fairly

present it to the state courts as a federal constitutional claim. Id.

Petitioner replies that he is not making an Eighth Amendment cruel and unusual

punishment claim, but a Sixth Amendment claim under Apprendi v. New Jersey, 530 U.S. 466

(2000) and its progeny (Reply, ECF No. 27, PageID 531). He also claims that the Second District

understood it was adjudicating an Apprendi claim, thereby overcoming the lack of fair presentation

defense. Id. at PageID 531-32.

Guerrero-Sanchez raised his sentencing claim as his Second Assignment of Error on direct

appeal and the Second District rejected it, largely deciding the state law issue of whether it was

correct to find that possessing fentanyl in bulk was the worst form of possession. That question is

not before this Court because we do not sit in habeas to consider claims of state law error.

Petitioner’s claim that the federal issue was also being decided is supported, he claims, by the

Second District’s citation to State v. Marcum, 146 Ohio St. 3d 516 (2016), which is said to cite in

turn Apprendi and Blakely v. Washington, 542 U.S. 296 (2004). But Marcum only cites Apprendi

and Blakely in the context of explaining the decision in State v. Foster, 109 Ohio St. 3d (2006), in

which the Supreme Court of Ohio “excised portions of the [Ohio] sentencing statutes” in obedience

to Apprendi and Blakely. 146 Ohio St. 3d at ¶ 13. In other words, Marcum is not a state court

decision “employing [federal] constitutional analysis in like factual situations” so as to show a

federal question was being decided. See Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987);

accord, Whiting v. Birt, 395 F.3d 602 (6th Cir. 2005); McMeans v. Brigano, 228 F.3d 674, 681 (6th

Cir. 2000). Its citation to Marcum does not show the Second District believed it had been presented

with and was deciding an Apprendi issue. The Sixth Amendment issue arising from Apprendi was

not fairly presented to the Second District or decided by it. Ground Two is therefore procedurally

defaulted for lack of fair presentation.

Even if the Sixth Amendment claim were not procedurally defaulted, it would be without

merit. The trial judge did not have to make any finding of fact beyond what Guerrero-Sanchez

admitted with his no contest plea to impose the eleven-year sentence. That is, the amount of

fentanyl needed to authorize the eleven-year sentence was admitted by Petitioner in the no contest

plea proceedings. Thus, there was no necessary “element” requiring jury consideration or proof

beyond a reasonable doubt.

In sum, Ground Two should be dismissed as procedurally defaulted or, in the alternative,

on the merits.

Ground Three: Denial of Due Process by Failure to Notify of the Filing Deadline for Post-

Conviction Petition

In his Third Ground for Relief, Guerrero-Sanchez claims he was denied due process of law

when he was not notified of the filing deadline for a petition for post-conviction relief under Ohio

Revised Code § 2953.21.

Respondent argues that, as pleaded, Ground Three does not state a claim cognizable in

habeas corpus and, in any event, the claim is procedurally defaulted by Guerrero-Sanchez’s failure

to appeal from denial of his first post-conviction petition (Return, ECF No. 26, PageID 509-12).

Petitioner admits in his Reply that he filed his post-conviction petition late, but claims that

procedural default is excused by the ineffective assistance of trial counsel and ineffective

assistance of appellate counsel in not advising him of the deadline (Reply, ECF No. 27, PageID

526-28). He notes that Ground Three is not raised as a freestanding claim of ineffective assistance

of counsel, but rather to excuse his procedural default in filing late. Id. at PageID 528.

The Sixth Circuit has held that notifying a client of the filing of the trial transcript and of

the deadline for filing under Ohio Revised Code § 2953.21 is a duty of appellate counsel; failure

to fulfill that duty is cause excusing failure to timely file the post-conviction petition. Gunner v.

Welch, 749 F.3d 511, 518 (6th Cir. 2014). Conversely, the Sixth Circuit has not held that either

trial counsel or the trial or appellate court has a duty to provide notice of the post-conviction filing

deadline.

Because the fact of appellate counsel’s failure to notify is a fact outside the record on

appeal, it would have to be established in a post-conviction proceeding and Guerrero-Sanchez

attached to his post-conviction petition an affidavit indicating he had not been thus advised by

appellate counsel. However, he further procedurally defaulted this claim by not appealing from

the adverse decision of the trial court, an action he could not take now because delayed appeal is

not available from an Ohio Revised Code § 2953.21 decision.

Thus, any ineffective assistance of appellate counsel in not notifying Guerrero-Sanchez of

the filing deadline under Ohio Revised Code § 2953.21 cannot be used to excuse his untimely

filing of that petition because ineffective assistance of counsel, even when used to excuse a

procedural default and not as a freestanding claim, must itself be properly brought and exhausted

in state court proceedings. Edwards v. Carpenter, 529 U.S. 446, 452-53 (2000).

Ground Four: Ineffective Assistance of Trial Counsel in Plea Negotiations

In his Fourth Ground for Relief, Guerrero-Sanchez claims he received ineffective

assistance of trial counsel when his trial attorney advised him to reject a three-year agreed sentence

on the projection that he could and would win the motion to suppress.

The governing standard for ineffective assistance of trial counsel was adopted by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984):

A convicted defendant's claim that counsel's assistance was so

defective as to require reversal of a conviction or death sentence has

two components. First, the defendant must show that counsel's

performance was deficient. This requires showing that counsel was

not functioning as the "counsel" guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the

deficient performance prejudiced the defense. This requires

showing that counsel's errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable. Unless a

defendant makes both showings, it cannot be said that the conviction

or death sentence resulted from a breakdown in the adversary

process that renders the result unreliable.

466 U.S. at 687. In other words, to establish ineffective assistance, a defendant must show both

deficient performance and prejudice. Berghuis v. Thompkins, 560 U.S. 370, 389 (2010), citing

Knowles v. Mirzayance, 556 U.S.111 (2009).

With respect to the first prong of the Strickland test, the Supreme Court has commanded:

Judicial scrutiny of counsel's performance must be highly

deferential. . . . A fair assessment of attorney performance requires

that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel=s challenged

conduct, and to evaluate the conduct from counsel=s perspective at

the time. Because of the difficulties inherent in making the

evaluation, a court must indulge a strong presumption that counsel's

conduct falls within a wide range of reasonable professional

assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action "might be

considered sound trial strategy."

466 U.S. at 689.

As to the second prong, the Supreme Court held:

The defendant must show that there is a reasonable probability that,

but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability

sufficient to overcome confidence in the outcome.

466 U.S. at 694. See also Darden v. Wainwright, 477 U.S. 168 (1986); Wong v. Money, 142 F.3d

313, 319 (6th Cir. 1998); Blackburn v. Foltz, 828 F.2d 1177 (6th Cir. 1987). See generally

Annotation, 26 ALR Fed 218.

There is a constitutional right to the effective assistance of counsel in the plea bargain

process which includes the duty of an attorney to communicate an offered plea bargain. Missouri

v. Frye, 566 U.S. 134, 145 (2012); Lafler v. Cooper, 566 U.S. 156, 162-63 (2012).

The Strickland standard applies in evaluating ineffective assistance claims in cases which

resulted in a negotiated plea. Hill v. Lockhart, 474 U.S. 52, 57 (1985); Sparks v. Sowders, 852

F.2d 882, 884 (6th Cir. 1988). In order to satisfy the "prejudice" prong of Strickland in a negotiated

plea case, the defendant must show that there is a reasonable probability that, but for counsel's

errors, he would not have pleaded guilty or no contest and would have insisted on going to trial.

Hill, 474 U.S. at 58. Moreover, he must show that there would have been a reasonable chance he

would have been acquitted had he gone to trial. Id. at 59; but see Lee v. United States, 137 S.Ct.

1958, 1960 (2017)(where the critical issue from a defendant’s perspective is deportation, great

likelihood of conviction and deportation after trial does not make decision to go to trial irrational.)

“The test is objective, not subjective; and thus, ‘to obtain relief . . . a petitioner must

convince the court that a decision to reject the plea bargain would have been rational under the

circumstances’” Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012), quoting Padilla v.

Kentucky, 559 U.S. 356, 372 (2010). The rationality of such a rejection is typically based on

multiple factors, including the strength of the evidence against a defendant, the lack of viable

defenses, and the benefits of the plea bargain. See Pilla, 668 F.3d at 373; Haddad v. United States,

486 F. App'x 517, 522 (6th Cir. 2012). There is an established deference that is afforded trial

counsel in the area of plea bargaining. Bray v. Andrews, 640 F.3d 731, 738 (6th Cir. 2011).

In this case there appears to have been no likelihood of winning at trial. That is, there does

not appear to have been a question of the drug identity and it was found in a suitcase in a hotel

room of which Guerrero-Sanchez was the sole occupant in possession. Although he initially

claimed it belonged to others, they were not present or identified and there was testimony at the

motion to suppress hearing that the suitcase was unlocked with a key Petitioner gave the officers.

Thus Guerrero-Sanchez’s chances of an acquittal appear to have depended on getting the evidence

suppressed.

Moreover, the terms of the offered plea bargain are clear: an agreed three-year sentence,

but only if accepted before the suppression hearing began. Guerrero-Sanchez rejected that offer

on the record in open court after it was made clear to him that, after a conviction, he could be

sentenced anywhere from three to eleven years. (Transcript, ECF No. 24-1, PageID 367-68).

While the record includes clear evidence of what the offered plea bargain was, that

Petitioner had discussed it with counsel, and that Guerrero-Sanchez rejected it, it does not include

evidence of any advice defense counsel Lachman may have given Petitioner. Because the

allegedly ineffective advice is not in the record on direct appeal, it would have to have been raised

in a petition for post-conviction relief. Guerrero-Sanchez did so in the Affidavit attached to his

petition for post-conviction relief (State Court Record, ECF No. 24, PageID 335). The allegation

is completely conclusory: it does not reveal any discussion of the context of the advice, e.g, what

factors Lachman may have been relying on in projecting success on the motion to suppress. To

the extent that Guerrero-Sanchez may have persuaded Lachman that he could not understand

English and believed he could persuade Judge Singer of that, Guerrero-Sanchez knew that he had

spent nearly half his life in this country successfully acting in a predominantly English speaking

economy and that there were witnesses from the Montgomery County Jail, independent of what

happened at the scene of the arrest, who could testify to his acting as an English interpreter for his

cellmate. Lachman also may not have known how strong the testimony of the arresting officers

would be; we are not told whether their statements had been produced in discovery or not.

Given the officers’ testimony at the hearing, there was not a strong case to win on the

motion to suppress. Had Lachman known the facts as they developed in the hearing, it would have

been poor advice to suggest rejecting the offered plea agreement. However, none of those facts

are offered in Guerrero-Sanchez’s Affidavit which is completely conclusory. In evaluating that

claim on the merits, this Court is limited to the factual record created in the state courts. Cullen v.

Pinholster, 563 U.S. 170, 181 (2011). On that record, Guerrero-Sanchez has not demonstrated

that Lachman’s advice to reject the plea agreement was ineffective assistance of trial counsel.

Moreover, this Court may not reach the merits of this ineffective assistance of trial counsel

claim because it also is procedurally defaulted: when Guerrero-Sanchez lost on his petition for

post-conviction relief, he failed to appeal to the Second District. Had he done so, he would have

had a colorable claim to overcome the untimeliness, based on Gunner, supra, federal constitutional

precedent the Second District would have been bound to acknowledge. Furthermore, he would

have had a very arguable assignment of error challenging the trial court’s res judicata decision

because his claim of ineffective assistance of trial counsel plainly depended on facts outside the

record, taking it outside the res judicata doctrine of State v. Perry, 10 Ohio St. 2d 175 (1967).

Petitioner argues the Court can reach his ineffective assistance of trial counsel claim on the

merits because the “Court should forgive the exhaustion requirement where, as here, ‘pursuit [of

a state remedy] is clearly futile.’” (Supplement, ECF No. 20, PageID 139.) The Court agrees that

attempting a delayed appeal of the denial of the post-conviction petition would indeed be futile

because Ohio law does not permit such an appeal. (See letter from Assistant Ohio Public Defender

Craig Jacquith, ECF No. 20, PageID 157-58, citing State v. Nichols, 11 Ohio St. 3d 40 (1984).)

But the fact that a delayed appeal now would be futile does not imply that a timely appeal would

have been futile. For the reasons given above, Guerrero-Sanchez would have had arguable

assignments of error in a timely direct appeal, to which he had a clear right. If the State were to

argue lack of exhaustion from failure to pursue a delayed appeal now, the Court would readily

excuse that failure on the basis of futility. But excusing exhaustion is different from excusing

procedural default. "A claim may become procedurally defaulted in two ways." Lovins v. Parker,

712 F.3d 283, 295 (6th Cir. 2013), quoting Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).

First, a claim is procedurally defaulted where state-court remedies

have been exhausted within the meaning of § 2254, but where the

last reasoned state-court judgment declines to reach the merits

because of a petitioner's failure to comply with a state procedural

rule. Id. Second, a claim is procedurally defaulted where the

petitioner failed to exhaust state court remedies, and the remedies

are no longer available at the time the federal petition is filed

because of a state procedural rule.

Lovins, supra.

Guerrero-Sanchez has offered no excusing cause and prejudice for his failure to timely

appeal from denial of post-conviction relief. He was not in a situation such as that described in

Gunner where an attorney was under a duty to advise him of the deadline for appealing but was

not entitled under the Sixth Amendment to the assistance of appointed counsel in pursuing such

an appeal. Indeed, Guerrero-Sanchez’s circumstances are similar to those of the petitioner in

Bonilla v. Hurley, 370 F.3d 494, 497 (6th Cir. 2004), where the Sixth Circuit held that lack of

counsel on appeal, lack of a trial transcript, unfamiliarity with the English language, and short time

for legal research in prison do not establish cause to excuse this default. Id. at 497, citing Murray

v. Carrier, 477 U.S. 478, 494-95 (1986).

In sum, the state court record, to which this Court is limited, does not show attorney

Lachman provided ineffective assistance of trial counsel in advising Petitioner to reject the plea

agreement, assuming that he did in fact give that advice. Moreover, this Fourth Ground for Relief

is procedurally defaulted by Petitioner’s unexcused failure to appeal to the Second District from

denial of his post-conviction petition.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition herein be

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion,

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth

Circuit that any appeal would be objectively frivolous and therefore should not be permitted to

proceed in forma pauperis.

October 16, 2019.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days

because this Report is being served by mail. Such objections shall specify the portions of the

Report objected to and shall be accompanied by a memorandum of law in support of the objections.

A party may respond to another party’s objections within fourteen days after being served with a

copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on

appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947,

949-50 (6th Cir. 1981).