The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ELEAZER LOPES-FLORES,
Petitioner, : Case No. 3:18-cv-330
- vs - District Judge Walter H. Rice
Magistrate Judge Michael R. Merz
TIM SHOOP, Warden,
Pickaway Correctional Institution,
:
Respondent.
SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This habeas corpus case is before the Court on Petitioner’s Objections (ECF No. 12) to the
Magistrate Judge’s Supplemental Report and Recommendations in this case (ECF No. 9). Judge
Rice has recommitted the case for reconsideration in light of these Objections (ECF No. 13).
In his Petition for Writ of Habeas Corpus, Flores-Lopez pleaded two grounds for relief:
Ground One: Petitioner was denied due process of law in violation
of the Fifth and Fourteenth Amendments to the United States
Constitution when the lower courts failed to supperss [sic]
statements made during the course of an interrogation using an
unqualified interpreter unfamliar [sic] with Petitioner’s
constitutional rights.
Ground Two: The right to a motion of acquittal under Criminal
Rule 29 is paramount in the interest of justice under due process of
law. Petitioner’s Fifth and Fourteenth Amendments to the United
States Constitution are violated when the State is unable to prove
each element of a crime where the manifest weight and sufficiency
to establish a violation of R.C. 2925.11.
(Petition, ECF No. 3, PageID 37, 40.)
Because this case is before the Court for initial review under Habeas Rule 4, the Magistrate
Judge put to one side the probability that the Petition is barred by the statute of limitations and
analyzed the case on the merits.
As to Ground One, the Reports found the Miranda warnings had been given to Petitioner
both orally (with a translator) and in written Spanish and his waiver was therefore knowing,
intelligent, and voluntary. Because the Second District Court of Appeals had applied correct
federal standards in deciding this question, the reports concluded it was entitled to deference under
28 U.S.C. § 2254(d)(1). As to Ground Two, Petitioner’s claim of insufficient evidence, the Reports
also recommended deferring to the Second District’s decision under Jackson v. Virginia, 443 U.S.
307 (1979).
Flores-Lopez begins his current Objections by accusing the undersigned of bias and
prejudice, “possibly racially motivated.” (Objections, ECF No. 12, PageID 89.) He proceeds to
raise a number of questions about the evidence which he says his attorney never raised, including
whether the traffic stop here was a result of racial profiling. Id. at PageID 90. He suggests some
unknown other person placed the suitcase with more than 1,000 times bulk of methamphetamine
in the van in which he was a passenger. Id. He then accuses his trial attorney of ineffective
assistance of trial counsel for not asking these questions. Id. at PageID 91, citing Missouri v. Frye,
566 U.S. 133 (2012); Lafler v. Cooper, 566 U.S. 156 (2012).
He then returns to his attack on the undersigned for racial bias claiming, “it has been well
documented, on both sides of the bar, that Mr. Lopez does not comprehend (i.e. write) the English
language,” revealing for the first time that Lopez-Flores has been using a jail-house lawyer as the
writer of his pleadings. Id. at PageID 92. The jail-house lawyer then follows with a claim that
Flores-Lopez did not understand the Miranda warnings when they were read to him. Id. at PageID
93. Of course, these assertions constitute hearsay and are not in any event admissible evidence in
this habeas proceeding. Cullen v. Pinholster, 563 U.S. 170 (2011).
The gravamen of the Objections is found in the following paragraph:
I wonder if this Court can imagine Mr. Lopez's racing mind, full of
fear and anxiety about being arrested - possibly for a crime he did
not commit or had any knowledge of - worried about what the police
were going to do to him. Were they going to force a confession out
of him with physical violence or starvation or both. [sic] How would
this Court react if it was [sic] in a foreign land illegally, arrested by
the police, speaking and possibly shouting in a language that it did
not understand? What do people think about the police after
watching what takes place on the evening news. It is no "red herring"
when any evening on the news, on regular programming, and in the
movies we witness abuse by the police upon various minorities. Ask
any African-American citizen how they fear the police, even with
their hands in the air, and how they are not afforded the equal
protection of the laws.
(ECF No. 12, PageID 93-94.) Of course, all persons (not just citizens) are entitled under the
Fourteenth Amendment to equal protection of the laws. That particular provision of the Fourteenth
Amendment was initially adopted to protect recently emancipated African-American slaves, but
there is absolutely no doubt that it applies to everyone. There is, however, no proof in the record
that Flores-Lopez received anything less than the equal protection of the laws to which he was and
is entitled. This Court is bound to rule with respect to the evidence of record and not speculation
by a jail-house lawyer not grounded in the facts of this case.
Flores-Lopez through his jail-house lawyer argues “issues of low I.Q. and possible mild
retardation should have been explored by Mr. Lopez’s attorney in an effort to provide effective
assistance of counsel. . . .” Id. at PageID 92. No claim of ineffective assistance of trial counsel
was made on direct appeal, nor is any such claim included in the Grounds for Relief pleaded here.
Petitioner argues that “the evidence in this case could never be constitutionally sufficient,
but “[t]he Magistrate here, continues to twist the arguments against the Petitioner, and has
continued to make the case for the Respondent, as if the evidence was to be construed in favor of
the Respondent.” Id. at PageID 97-98. However, when considering an insufficiency of the
evidence claim already litigated in the state courts, a federal habeas corpus court does not
reconsider the facts de novo. Rather, it is required by the law to be “doubly deferential,” first to
the jury which found a defendant guilty beyond a reasonable doubt and then to the state court of
appeals that reviewed that conclusion. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009); Tucker
v. Palmer, 541 F.3d 652, 656 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc); Parker v. Matthews, 567 U.S. 37, 43 (2012).
Conclusion
Based on the foregoing analysis, it is again respectfully recommended that the Petition 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.
March 12, 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.