Castorella-Sotella v. Warden, London Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CESAR CASTORELLA-SOTELLA,

Petitioner, : Case No. 3:19-cv-215

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

NORM ROBINSON, Warden,

London Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This is a habeas corpus case brought pro se by Petitioner Cesar Castorella-Sotella under

28 U.S.C. § 2254 to obtain relief from his convictions in the Montgomery County, Ohio, Court of

Common Pleas on charges of rape, kidnapping, domestic violence, and tampering with public

services (Common Pleas Case No. 2016-CR-3467). The case is ripe for decision on the Petition

(ECF No. 1), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11) and

Petitioner’s Reply (ECF No. 15).

Litigation History

Petitioner was tried and convicted in the Montgomery County Court of Common Pleas on

charges of rape, kidnapping, domestic violence, and tampering with public services (disconnecting

a 911 call) with his wife as the victim. Represented by new counsel, he appealed his conviction

to the Second District Court of Appeals, raising one assignment of error, ineffective assistance of

trial counsel for failure “to examine witnesses on issues of Victim’s credibility despite an

unfavorable ruling in limine.” State v. Castorela1-Sotela, 2nd Dist. Montgomery No. 27522, 2018-

Ohio-2655, ¶ 2 (Jul. 6, 2018).

Under this one assignment of error, Petitioner raised three issues:

{¶ 6} Castorela-Sotela’s assignment of error raises three issues

related to the performance of his attorney at trial. First, he contends

his attorney provided ineffective assistance by failing to cross

examine his wife regarding her awareness of U-visas, which may

have provided a motivation for her to fabricate her allegations

against him. Second, he alleges ineffective assistance of counsel

based on his attorney’s failure to examine him about his own

immigration status, which may have provided a reasonable

explanation for his disconnection of his wife's 911 call and his

failure to answer the door when police knocked. Third, he asserts

that his attorney provided ineffective assistance by failing to call two

defense witnesses who would have testified about the “general

awareness” of U-visas in the Hispanic community.

Castorela-Sotela, 2018-Ohio-2655. Because the trial court had excluded this testimony by a ruling

in limine, “[t]he narrow question before [the Second District] is whether Castorela-Sotella’s

attorney provided ineffective assistance if he failed to preserve the three evidentiary issues set forth

above by not raising them again at trial.” Id. at ¶ 8. Applying the governing federal standard for

ineffective assistance of trial counsel from Strickland v. Washington, 466 U.S. 668 (1984), id. at ¶

7, the Second District found no ineffective assistance of trial counsel regarding these three

evidentiary issues and affirmed the conviction. Id. at ¶¶ 9-16. The Supreme Court of Ohio

declined to accept jurisdiction over Petitioner’s appeal. State v. Castorela-Sotela, 2018-Ohio-

1 Petitioner spells his name with two ll’s. The state courts have sometimes spelled it with one l.

3868.

On June 27, 2018, Petitioner filed a petition for post-conviction relief under Ohio Revised

Code § 2953.21 (State Court Record, ECF No. 10, PageID 154-167). The trial court denied the

Petition, id. at PageID 185-93, and Castorella-Sotella did not appeal. On September 7, 2018, he

filed an application to re-open his direct appeal under Ohio R.App.P. 26(B). Id. at PageID 194-

215 The Second District denied the application. State v. Castorela-Sotella, 2nd Dist. Montgomery

No. 27522 (unreported; copy at State Court Record, ECF No. 10, PageID 228-32), and the Supreme

Court of Ohio declined review. State v. Castorella-Sotella, 2019-Ohio-345.

Petitioner then filed his habeas corpus Petition in this Court, pleading the following

grounds for relief:

Ground One: Trial counsel’s objectively unreasonable deficient

performance deprive Petitioner of his right to effective assistance of

counsel of the 6th Amendment, U.S. Constitution.

Supporting Facts: Counsel failed to complete a reasonable pretrial

investigation by failing to interview or investigate victim; by failing

to introduce victim and Petitioner’s illegal alien status to the jury;

by failing to cross-examine victim to her knowledge of the U-visa

or her intent to apply for this visa; by failing to attack victim’s

motive for falsifying the consensual sex acts into an act of rape.

Petitioner [was] prejudice[d] by counsel’s performance because it

deprived him of his right to a fair trial, effective representation,

procedural due process, to fully test State’s case.

Ground Two: Appellate counsel objectively unreasonabl [sic]

deprived Petitioner of procedural due process, equal law, fairness,

counsel of the 5th, 6th, 14th Amendment, U.S. Constitution.

Supporting Facts: Counsel failed to raise reviewable constitutional

issues that were clearly on the face of the record; trial counsel failed

to investigate or interview victim, other witnesses with

impeachment evidence; trial counsel failed to introduce victim-

Petitioner illegal alien status; failed to attack victim motive for

falsifying rape charge, desire to obtain U-visa; counsel failure to

raise assignment trial court erred in denying Petitioner’s Crim. R. 29

motion to dismiss charges because State’s evidence was insufficient

to support any of the charges in the indictment. Petitioner

prejudiced by Appellate Counsel’s performance because it

deprive[d] the Petitioner of his right to procedural due process, equal

law, and fundamental fairness, effective assistance of counsel as

guaranteed by the 5th, 6th, 14th Amendments, United States

Constitution.

Ground Three: 2nd Dist. Court of Appeals abused its discretion

denying Petitioner’s App. R. 26(B), resulting in a violation of his

right to procedural due process, equal law, fundamental fairness,

effective assistance of the 5th, 6th, 14th Amendment[s], United States

Constitution.

Supporting Facts: Petitioner had a right to have his direct appeal

reopen[ed] because appellate counsel failed to raise issues on direct

appeal which were clearly stronger than the losing issues counsel

raised on appeal. Had the omitted issues been raised, it’s a

reasonable probability the outcome of the direct appeal would have

been different.

(Petition, ECF No. 1, PageID 5, 6, 8.)

Applicable Law

All three of Petitioner’s Grounds for Relief depend on his claim that he received ineffective

assistance of counsel at both the trial and appellate levels. The governing standard for effective

assistance of counsel is stated in Strickland:

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:

[T]he 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, 184 (1986), citing Strickland,

supra.; Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998), citing Strickland, supra; Blackburn v.

Foltz, 828 F.2d 1177, 1180 (6th Cir. 1987), quoting Strickland, 466 U.S. at 687. “The likelihood of

a different result must be substantial, not just conceivable.” Storey v. Vasbinder, 657 F.3d 372,

379 (6th Cir. 2011), quoting Harrington v. Richter, 562 U.S. 86, 111-12 (2011).

The Strickland test applies to appellate counsel. Smith v. Robbins, 528 U.S. 259, 285

(2000); Burger v. Kemp, 483 U.S. 776 (1987). “To evaluate a claim of ineffective assistance of

appellate counsel, then, the court must assess the strength of the claim that counsel failed to raise.”

Henness v. Bagley, 644 F.3d 308, 317 (6th Cir. 2011), citing Wilson v. Parker, 515 F.3d 682, 707

(6th Cir. 2008). “Counsel's failure to raise an issue on appeal amounts to ineffective assistance only

if a reasonable probability exists that inclusion of the issue would have changed the result of the

appeal.” Id., citing Wilson, 513 F.3d at 707.

Petitioner argues that the standard to apply to his claims is found in United States v.

Cronic(Reply, ECF No. 15, PageID 927, citing 466 U.S. 648 (1984). Yet, Cronic only applies

where there has been a complete denial of counsel at any stage of a case at which there is a

constitutional right to counsel. 466 U.S. at 659-61. The record does not establish that that occurred

in this case.

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Petitioner asserts he received ineffective assistance of trial

counsel when his attorney did not adequately investigate and present information regarding U-

visas. He asserts both he and his wife, the victim, were illegally in the country and that she had a

motive to claim she was raped because this would enable her to obtain a U-visa. He also wanted

his own alien status presented to attempt to excuse his failure to answer the door for the police

when they responded to his wife’s disconnected 911 call (Petition, ECF No. 1, PageID 5).

The trial judge had ruled in limine that Petitioner’s and his wife’s immigration status could

not be inquired into at trial. His trial attorney did not proffer during the trial what the testimony

would have been on that subject. Castorela-Sotela, 2018-Ohio-2655, ¶ 6.

The Second District found no deficient performance in counsel’s failure to raise Castorella-

Sotella’s own immigration status because, while it could have explained his aversion to the police,

it would have done nothing to excuse his interference with his wife’s telephone call (especially

since he claimed he did not know to whom she was talking. Castorela-Sotela, 2018-Ohio-2655 at

¶ 10. Nor would it have done anything to rebut the rape and domestic violence charges.

With respect to Petitioner’s claim that his wife’s knowledge of U-visa status2 would have

shown she had a motive to lie about whether the sex was consensual (which was Petitioner’s claim

and testimony), the Second District found there was no proof of what the wife would have testified

to in this regard. Castorela-Sotela, 2018-Ohio-2655 at ¶ 14.

In general the Second District concluded that, in light of the trial judge’s in limine ruling

and the potential prejudice against illegal immigrants, it would not have been deficient

performance not to challenge that ruling during trial. Castorela-Sotela, 2018-Ohio-2655 at ¶¶ 9-

11. When Petitioner later raised his claims about his wife’s motives in his Petition for post-

conviction relief, he made statements about her motives, but did not appeal from denial of the

petition (See State Court Record, ECF No. 10, PageID 154-57.)

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, 562 U.S. at 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

2 Victims of sexual assault can obtain a visa to remain in the United States for four years, which can be extended.

Castorela-Sotela, 2018-Ohio-2655 at ¶ 12, citing 8 U.S.C. §§ 1101(a)(15)(U), 1184(p), 1255(m.

evidence presented in the State court proceedings. When the issue is ineffective assistance of

counsel, the federal court is required to be doubly deferential. Harrington, 562 U.S. at 100.

The Magistrate Judge concludes that the Second District’s decision on Petitioner’s First

Ground for Relief is neither contrary to nor an objectively unreasonable application of Strickland.

Counsel’s tactical decisions, such as what questions to ask what witness, “are particularly difficult

to attack.” O’Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994). Indeed, “strategic choices by

defense counsel are ‘virtually unchallengeable.’” Buell v. Mitchell, 274 F.3d 337, 359 (6th Cir.

2001), quoting Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir. 1984). A decision not to expose

Petitioner to the bias jurors may have had against illegal immigrants is not an objectively

unreasonable tactical decision.

In his Reply, Petitioner admits that the prosecutor provided the trial court with case law

supporting the judge’s ruling to exclude illegal alien status (ECF No. 15, PageID 930). He claims

his trial attorney performed deficiently in not presenting case law to the contrary, but he himself

does not present that law to this Court.

Petitioner claims that without this evidence regarding the U-visa motivation of his wife, he

had no defense to the State’s case. That is not so. He testified and claims that the admitted sexual

intercourse was consensual. That is obviously the core of his defense. The jury did not believe

him, but lack of the U-visa evidence did not deprive him of this defense.

On the First Ground for Relief, the decision of the Second District is neither contrary to

nor and objectively unreasonable application of relevant Supreme Court precedent. The First

Ground should therefore be dismissed on the merits.

Ground Two: Ineffective Assistance of Appellate Counsel

In his Second Ground for Relief, Petitioner claims he received ineffective assistance of

appellate counsel when his appellate attorney did not raise certain assignments of error. When he

presented this claim to the Second District in his Application to Reopen under Ohio R.App.P.

26(B), he stated the omitted assignments of error as follows:

1. Counsel’s objectively unreasonable deficient performance at

Trial and Re-sentencing hearing, deprived the Appellant of his

right to Effective Assistance of Counsel, as guaranteed by the

6thAmendment, United States Constitution.

2. Trial Court abused its discretion, by over ruling (sic) Defense

Crim R. 29 motion, because State’s evidence insufficient to

support conviction of Rape-Vaginal, violating the Appellant’s

right to Due Process, as guaranteed by the 14thAmendment,

United States Constitution; Section 16, Article 1, Ohio

Constitution.

(Application, State Court Record, ECF No. 10, PageID 194, 198).

The Second District Court of Appeals denied the Application for reopening, reiterating the

points it had made in the direct appeal decision: there was no way of knowing from the record

whether defense counsel or someone working on his behalf had interviewed the victim or what she

would have said (Decision and Entry, State Court Record, ECF No. 10, PageID 229). It noted that

appointed appellate counsel had raised the issue on direct appeal and the court had found it was

without merit. Id. at PageID 230. As to appellate counsel’s failure to claim trial court error in

denying the motion for acquittal, the Second District found there was sufficient evidence for

conviction and it was therefore not ineffective assistance of appellate counsel to fail to claim there

was not. Id. at PageID 230-31.

It cannot be ineffective assistance of appellate counsel to fail to raise issues which have no

merit, as the Second District found here as to each of the assignments of error Petitioner claimed

it was ineffective assistance to omit. For that reason, Petitioner’s Second Ground for Relief should

be dismissed.

Ground Three: Abuse of Discretion in Denying Reopening

In his Third Ground for Relief, Castorella-Sotella claims the second District abused its

discretion in denying his Application to Reopen. This Ground for Relief is without merit for

several reasons.

First of all, federal habeas corpus is available only to correct federal constitutional

violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S.

764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983).

However, a state court does not violate the Constitution by abusing its discretion; abuse of

discretion is not a denial of due process. Sinistaj v. Burt, 66 F.3d 804, 807-08 (6th Cir. 1995).

Second, the Constitution does not guarantee that the States will provide a collateral remedy

for ineffective assistance of appellate counsel. In fact, the Constitution does not guarantee a right

to appeal at all. McKane v. Durston, 153 U.S. 684 (1894), cited as still good law in Lopez v.

Wilson, 426 F.3d 339, 354-5 (6th Cir. 2005); accord: Halbert v. Michigan, 545 U.S. 605, 610

(2005); Goeke v. Branch, 514 U.S. 115, 120 (1995) (“[D]ue process does not require a State to

provide appellate process at all.”). Of course, when it does provide a right to appeal, the State

cannot discriminate against the poor by failing to provide the necessary transcript. Griffin v.

Illinois, 351 U.S. 12, 18-20 (1956). Counsel must be appointed on appeal of right for indigent

criminal defendants. Douglas v. California, 372 U.S. 353 (1963). Here the State of Ohio did

provide an appeal of right, provided a transcript, and paid for appointed counsel. But it was not

obliged to create a remedy for claims of ineffective assistance of appellate counsel by way of

reopening a direct appeal.

Ground Three should therefore be dismissed for failure to state a claim upon which habeas

corpus relief can be granted.

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, it

is also recommended that Petitioner be denied a certificate of appealability and that the Court

certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be

permitted to proceed in forma pauperis.

January 10, 2020.

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. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6. 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.