The opinion
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.
DECISION AND ORDER
This 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 Court of Common
Pleas, is before the Court on Petitioner’s Objections (ECF No. 19) to the Magistrate Judge’s Report
and Recommendations recommending that the Petition be dismissed (ECF No. 16). As required
by Fed.R.Civ.P. 72(b), the Court has reviewed de novo all portions of the Report to which specific
objection has been made.
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. On appeal he raised 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, No. 27522, 2018-Ohio-2655,
¶ 2 (Ohio App. 2nd Dist. Jul. 6, 2018) (internal quotation marks and citation omitted).
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. The trial court excluded this testimony about Petitioner and
the victim’s immigration status by a ruling in limine. Therefore, “[t]he narrow question before
[the Second District] is whether Castorela-Sotela’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.
On September 7, 2018, Petitioner filed an application to re-open his direct appeal under
Ohio R.App.P. 26(B), asserting ineffective assistance of appellate counsel which the Second
District denied. State v. Castorela-Sotella, 2nd Dist. Montgomery No. 27522 (unreported; copy at
1 Petitioner spells his name with two ll’s. The state courts have sometimes spelled it with one l.
State Court Record, ECF No. 10, PageID 228-32), and the Supreme Court of Ohio declined review.
State v. Castorella-Sotella, 154 Ohio St. 3d 1503, 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 deprived 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.)
The Magistrate Judge noted that the governing standard for ineffective assistance of
counsel claims is set forth 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). The Objections do not disagree with this standard
and in fact trace the right to assistance of counsel back to the landmark decision in Gideon v.
Wainwright, 372 U.S. 335 (1963). Even earlier the Supreme Court had applied the Sixth
Amendment in capital cases. Powell v. Alabama, 287 U.S. 45 (1932).
As the Magistrate Judge held, and Petitioner agrees, the Strickland test also 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.
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, at ¶¶ 3, 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 and which he asserts was the whole theory of the defense), 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.
The Magistrate Judge correctly noted that 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. When the issue is ineffective assistance of counsel, the federal court is required to
be doubly deferential. Harrington, 562 U.S. at 100.
The Report concluded that the Second District’s decision on Petitioner’s First Ground for
Relief is neither contrary to nor an objectively unreasonable application of Strickland. The Court
agrees. Counsel’s tactical decisions, such as what questions to ask what witness, “are particularly
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).
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 admitted 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
did not present that law to this Court. A habeas petitioner has not shown deficient performance
by merely claiming there is law to support his position; he must show what that case law is.
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. As the Report found, Petitioner testified “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[,]”
(ECF No. 16, PageID 943); rather, it only deprived him of one possible basis to attack his wife’s
credibility.
On the First Ground for Relief, the Court concludes the decision of the Second District is
neither contrary to nor and objectively unreasonable application of relevant Supreme Court
precedent. The Report as to this Ground is adopted and the First Ground is 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 6th
Amendment, 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 196, 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, citing Castorela-Sotela, 2018-Ohio-2655, at ¶ 14. 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.
The Magistrate Judge concluded that 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.
Petitioner objects:
Because, it’s plain and obvious the 2nd District Appellate Court of
Appeals decision, is based on an objectively unreasonable
determination of the facts and evidence presented in the State
Court’s proceedings. The 2nd District Appellate Court asserts that
there is no way of knowing from the record whether Defense
Counsel or someone working in his behalf had interviewed the
victim (DOC #16, PAGEID #944). The 2nd District Appellate
Court’s decision is based on inference upon inference upon
inference. Because, there is nothing in the record that demonstrates
that Counsel had any employees, or financial resources to employ
someone to interview the victim.
(Objections, ECF No. 19, PageID 958.) Petitioner’s logic has this issue completely upside down.
The Second District did not infer that someone did interview the victim on behalf of defense.
Instead, it held there was nothing in the record to the contrary. If Petitioner had evidence outside
the record that no such interview took place, he could have presented it in post-conviction. Instead,
the affidavits filed in support of that petition largely attack the victim’s character without
presenting any evidence regarding counsel’s preparation for trial (State Court Record, ECF No.
10, PageID 160-67). Moreover, Petitioner procedurally defaulted any claims raised in his post-
conviction by not appealing.
Therefore, Petitioner’s objections as to Ground Two are overruled, the Report is adopted
as to that Ground, and it is 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. The Report concluded this Ground should
dismissed because it did not state a claim under the United States Constitution, because it is not a
constitutional violation for a state court to abuse its discretion.
Petitioner objects by rearguing his claims of ineffective assistance of appellate counsel
argued under Ground Two which have been discussed above. Ground Three will be dismissed on
the basis set forth in the Report.
Conclusion
Having reviewed the Magistrate Judge’s Report de novo in light of the Objections, the
Court concludes the Report should be adopted. Accordingly, it is hereby ORDERED that the
Petition herein be dismissed with prejudice. Because reasonable jurists would not disagree with
this conclusion, Petitioner is denied a certificate of appealability and the Court hereby certifies to
the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.
March 5, 2020 *s/Thomas M. Rose
_____________________________
Thomas M. Rose
United States District Judge