# Montelongo-Rangel v. Warden, Noble Correctional Institution

> District Court, S.D. Ohio · June 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10377985

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

JOSUE MONTELONGO-RANGEL,

Petitioner, : Case No. 2:20-cv-5463

- vs - District Judge Algenon L. Marbley
Magistrate Judge Michael R. Merz

WARDEN, Noble
Correctional Institution,

:
Respondent.
SUBSTITUTED REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Josue Montelongo-Rangel pursuant
to 28 U.S.C. § 2254, is before the Court on the Magistrate Judge’s Report and Recommendations
(“Report” ECF No. 11) and Petitioner’s objections to the Report, presented in two separate
documents labeled “Objections” (ECF No. 14) and “Notice” (ECF No. 151). Having reconsidered
the Report in light of the Objections and Notice, the Magistrate Judge has determined that
substantially more analysis is needed. Accordingly, the Report is WITHDRAWN and the
following is substituted in its stead.

1 Notice has only four pages, but they are numbered by Petitioner as pages 5-8.
Litigation History

On May 11, 2018, a Franklin County Grand Jury indicted Montelongo-Rangel on one count
of engaging in a pattern of corrupt activity in violation of Ohio Revised Code § 2923.32 (Count

1), two counts of trafficking in marijuana in violation of Ohio Revised Code § 2925.03 (Counts 2
& 5), two counts of trafficking in cocaine in violation of Ohio Revised Code § 2925.03 (Counts 3
& 4), one count of receiving proceeds of an offense subject to forfeiture proceedings in violation
of Ohio Revised Code § 2927.21 (Count 6), and one count of designing a vehicle with a hidden
compartment used to transport a controlled substance in violation of Ohio Revised Code § 2923.21
(Count 7). Counts 1, 3, 4, 5, and 6 each carried a firearm specification and Counts 3 and 4 carried
a specification for forfeiture of money in a drug case (Indictment, State Court Record ECF No. 4,
Exhibit 1). Montelongo-Rangel pleaded not guilty to all counts. Id. at Ex. 2.
On June 18, 2019, Montelongo-Rangel, through counsel, entered a plea of guilty to Count
1, engaging in a pattern of corrupt activity without the specification and Count 3, trafficking in

cocaine with the forfeiture specification. Id. at Exhibit 3. The trial court found Montelongo-Rangel
guilty of the charges to which the plea was entered and ordered the remaining counts and their
respective specifications to be dismissed. Montelongo-Rangel was then sentenced to a mandatory
eleven years as to Counts 1 and 3 concurrent with each other and consecutive to the sentence
imposed in Case No. 19CR23121. Id. at Ex. 4.
Montelongo-Rangel did not timely appeal, but filed a motion for delayed appeal February
21, 2020. Id. at Ex. 6. The Ohio Tenth District Court of Appeals denied the motion, along with
parallel motions filed by co-defendants Anthony Jones and James Jones, concluding none of them
had given an adequate excuse for his delay. Id. at Ex. 8. The Supreme Court of Ohio declined
appellate jurisdiction. Id. at Ex. 12.
On October 2 and 30, 2019, Montelongo-Rangel filed motions to vacate the judgment. Id.
at Ex. 13, 16. The Franklin County Court of Common Pleas denied the motions. Id. at Ex. 18.
The Tenth District affirmed. State v. Montelongo-Rangel, 2010-Ohio-5527 (10th Dist. Dec. 3,
2020), appellate jurisdiction declined, 161 Ohio St. 3d 1475 (2021).

Montelongo-Rangel filed his Petition in this Court on October 16, 2020, pleading the
following Grounds for Relief:
Ground One: Ineffective assistance of counsel.

Supporting Facts: Trial counsel was ineffective for failing to seek
suppression of the evidence seized pursuant to two search warrants
executed on June 16, 2018, and one warrantless search executed on
April 4, 2018. (the first search warrant, executed on June 16, 2018,
was issued by a state magistrate whom [sic] lacked the authority to
issue it without the participation of federal authorities; the search
warrant was based on an affidavit primised [sic] on federal probable
cause, but was executed solely by state officers. Further, issuing
magistrate abandoned her neutral role, the affidavit lacked a nexus
to the locations, and probable cause for various reasons. The
evidence obtained from this search formed the basis of the
subsequest [sic] search warrant being issued, and of all counts in the
indictment.)

Ground Two: Lack of subject matter jurisdiction.

Supporting Facts: It is undisputed that the issuing state magistrate
of the search warrant on which the evidence obtained formed the
basis of all counts in the indictment lacked the authority to issue it
without the participation of federal authorities; the search warrant
was based on an affidavit primised [sic] on federal probable cause,
but was executed solely by state officers. The search warrant and
evidence was [sic] void ab initio.

(Petition, ECF No. 1, PageID 5, 7).
Analysis
Exhaustion of State Court Remedies

Respondent asserted in his Return that the Petition was mixed because it included a claim,
the Second Ground for Relief, on which Montelongo-Rangel had not exhausted available state
court remedies (ECF No. 5, PageID 310-12). Since the Return was filed, the Supreme Court of
Ohio declined appellate jurisdiction on this claim (Entry, ECF No. 9, PageID 342). In the Report
the Magistrate Judge concluded this obviates Respondent’s lack of exhaustion defense (Report,
ECF No. 11, PageID 346). Respondent has not objected to this conclusion, so the Court should
conclude that Petitioner has exhausted available state court remedies on Ground Two.

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Montelongo-Rangel claims he received ineffective
assistance of trial counsel when his trial attorney did not seek to suppress the results of three
searches which yielded evidence used against him, two on June 16, 2018, pursuant to search
warrant and one warrantless search on April 4, 2018.

Procedural Default Analysis

Respondent asserts Montelongo-Rangel procedurally defaulted this claim by not taking a

timely direct appeal to the Tenth District (Return, ECF No. 5, PageID 317-24).
The procedural default doctrine in habeas corpus is described by the Supreme Court as
follows:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an adequate and independent state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause of the default and actual
prejudice as a result of the alleged violation of federal law; or
demonstrate that failure to consider the claims will result in a
fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406
(6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights
claim he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S.
72 (1977); Engle v. Isaac, 456 U.S. 107, 110 (1982). “Absent cause and prejudice, ‘a federal
habeas petitioner who fails to comply with a State’s rules of procedure waives his right to federal
habeas corpus review.’” Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000), quoting Gravley v.
Mills, 87 F.3d 779, 784-85 (6th Cir. 1996); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle,
456 U.S. at 110; Wainwright, 433 U.S. at 87.
[A] federal court may not review federal claims that were
procedurally defaulted in state court—that is, claims that the state
court denied based on an adequate and independent state procedural
rule. E.g., Beard v. Kindler, 558 U.S. 53, 55, 130 S.Ct. 612, 175
L.Ed.2d 417 (2009). This is an important “corollary” to the
exhaustion requirement. Dretke v. Haley, 541 U.S. 386, 392, 124
S.Ct. 1847, 158 L.Ed. d 659 (2004). “Just as in those cases in which
a state prisoner fails to exhaust state remedies, a habeas petitioner
who has failed to meet the State’s procedural requirements for
presenting his federal claims has deprived the state courts of an
opportunity to address” the merits of “those claims in the first
instance.” Coleman [v. Thompson], 501 U.S. [722,] 731-732, 111
S.Ct. 2546, 115 L.Ed.2d 640 [(1991)]. The procedural default
doctrine thus advances the same comity, finality, and federalism
interests advanced by the exhaustion doctrine. See McCleskey v.
Zant, 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017). “[A] federal court may not review federal claims
that were procedurally defaulted in state courts.” Theriot v. Vashaw, 982 F.3d 999 (6th Cir. 2020),
citing Maslonka v. Hoffner, 900 F.3d 269, 276 (6th Cir. 2018) (alteration in original) (quoting
Davila v. Davis, 137 S. Ct. 2058, 2064 (2017)).
The Sixth Circuit Court of Appeals requires a four-part analysis when the State alleges a

habeas claim is precluded by procedural default. Barton v. Warden, S. Ohio Corr. Facility, 786
F.3d 450, 464 (6th Cir. 2015), Guilmette v. Howes, 624 F.3d 286, 290 (6th Cir. 2010)(en banc);
Eley v. Bagley, 604 F.3d 958, 965 (6th Cir. 2010); Reynolds v. Berry, 146 F.3d 345, 347-48 (6th
Cir. 1998), citing Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord Lott v. Coyle, 261
F.3d 594, 601-02 (6th Cir. 2001); Jacobs v. Mohr, 265 F.3d 407, 417 (6th Cir. 2001).
First the court must determine that there is a state procedural rule
that is applicable to the petitioner's claim and that the petitioner
failed to comply with the rule.
. . . .
Second, the court must decide whether the state courts actually
enforced the state procedural sanction, citing County Court of Ulster
County v. Allen, 442 U.S. 140, 149, 99 S.Ct. 2213, 60 L.Ed.2d 777
(1979).

Third, the court must decide whether the state procedural forfeiture
is an "adequate and independent" state ground on which the state
can rely to foreclose review of a federal constitutional claim.

Once the court determines that a state procedural rule was not
complied with and that the rule was an adequate and independent
state ground, then the petitioner must demonstrate under Sykes that
there was "cause" for him to not follow the procedural rule and that
he was actually prejudiced by the alleged constitutional error.

Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986); accord, Hartman v. Bagley, 492 F.3d 347, 357
(6th Cir. 2007), quoting Monzo v. Edwards, 281 F.3d 568, 576 (6th Cir. 2002).
In this case Ohio has an applicable procedural rule: a direct appeal of right from a criminal
conviction must be filed within thirty days of the judgment of conviction. The Tenth District Court
of Appeals enforced that rule against Montelongo-Rangel when it denied him leave to file a
delayed appeal. Setting a definite deadline for taking an appeal is an independent and adequate
state procedural rule: it is not related to any federal law and it is supportive of the State’s interest
in obtaining finality for criminal convictions.
To attempt to excuse the default, Montelongo-Rangel argues:

[T]ere is persuasive precedent that a state court's refusal to allow a
petitiore [sic]to file a delayed direct appeal does not constitute an
“adequate” ground to bar habeas review because the State appellate
rule regarding the grant of delayed appeals is not firmly established
or regularly followed, and thus, has cause to overcome his default .
.
(Reply, ECF No. 9, PageID 329, citing Dietz v. Money, 391 F.3d 894 (7th Cir. 2004)[correct
citation Deitz v. Money, 391 F.3d 804 (6th Cir. 2004)]). Deitz supports the proposition for which
Montelongo-Rangel cites it, but it is no longer good law. In Beard v. Kindler, 558 U.S. 53, 54
(2009), the Supreme Court held “a discretionary rule can serve as an adequate ground to bar federal
habeas review.” In Walker v. Martin, 562 U.S. 307 (2011), it held unanimously that a California
rule that requires state habeas to be filed “as promptly as the circumstances allow” and without
“substantial delay,” confers discretion but does not mean the rule is not firmly established and
regularly followed. Recognizing the impact of these cases, the Sixth Circuit has now held:
Beard and Walker, when read together, permit a state procedural
rule to serve as an adequate state ground for preventing review of a
habeas petition even if the state rule accords courts broad discretion.
As a result of the Supreme Court’s decision in Walker, Deitz is no
longer the controlling law on this issue in our Circuit, and a
petitioner’s failure to follow Ohio Rule of Appellate Procedure 5(A)
can serve as the basis for a procedural default of a petitioner’s
habeas claims.

Stone v. Moore, 644 F.3d 342, 348 (6th Cir. 2011).

Montelongo-Rangel also relies on White v. Warden, Ross Corr. Inst., 940 F.3d 270 (6th
Cir. 2019), where the Sixth Circuit held Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v.
Thaler, 569 U.S. 413 (2013), were applicable to the Ohio system of litigating claims of ineffective
assistance of trial counsel. Under Ohio law an ineffective assistance of trial counsel claim must
be raised on direct appeal if it can be decided on the appellate record; otherwise it must be raised
in a petition for post-conviction relief under Ohio Revised Code § 2953.21. Under the
Martinez/Trevino exception to procedural default, a defendant who must litigate a claim of

ineffective assistance of trial counsel in post-conviction and who either has no attorney in those
proceedings or receives ineffective assistance from his attorney in those proceedings is not barred
from habeas review of a substantial ineffective assistance of trial counsel claim.
White is of no assistance to Montelongo-Rangel. The facts necessary to litigate his
ineffective assistance of trial counsel claim relating to possible motions to suppress were in the
record which would have been available on appeal, but he filed no such motion and pleaded guilty.
Montelongo-Rangel had a right to appointed counsel on a direct appeal. If he had filed a timely
notice of appeal counsel would have been appointed to represent him and raise this issue. Because
he did not appeal but could have litigated the issues on appeal, the Tenth District held the claims
were barred by res judicata. Ohio v. Montelongo-Rangel, 2020-Ohio-5527, ¶ 13 (10th Dist. Dec.

3, 2020).
Ohio’s doctrine of res judicata in criminal cases, enunciated in State v. Perry, 10 Ohio St.
2d 175 (1967), is an adequate and independent state ground of decision. Durr v. Mitchell, 487
F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v. Mitchell,
268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust v. Zent,
17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp. 2d 899,
913 (S.D. Ohio 2001). Petitioner has presented no excusing cause for his failure to file a timely
appeal. Accordingly, the Report concluded Petitioner’s First Ground for Relief is procedurally
defaulted and should be dismissed with prejudice on that basis (ECF No. 11, PageID 351).
In his Notice of objections, Petitioner contests the Tenth District’s finding that this claim
of ineffective assistance of trial counsel could have been presented on direct appeal (ECF No. 15,
PageID 380). Ohio law provides that when a claim of ineffective assistance of trial counsel cannot
be properly adjudicated on the appellate record, it must be raised by a petition for post-conviction

relief under Ohio Revised Code § 2953.21. “[P]resentation of competent, relevant, and material
evidence dehors the record may defeat the application of res judicata.” State v. Lawson, 103 Ohio
App. 3d 307 (12th Dist. 1995).
Petitioner filed a petition for post-conviction relief or in the alternative to withdraw his
guilty plea on May 1, 2020 (State Court Record, ECF No. 4, Ex. 25)2. In it he raised the same
claim of ineffective assistance of trial counsel he makes here in his First Ground for Relief, to wit,
failure to file a motion to suppress the results of the three searches noted above. Id. at PageID 226,
et. seq. In support he makes the following arguments:
(1) The first search warrant was based on “federal probable cause.” Id. at PageID 228.

(2) The first search warrant was a “document search warrant,” not a drug search warrant. Id.
at PageID 232-33.
(3) The issuing state judge “wholly abandoned … her judicial role” by issuing a warrant not
based on probable cause. Id. at PageID 233-35.
(4) The second search warrant was based entirely on the fruits of executing the first, invalid,
warrant. Id. at PageID 235-36.
(5) The April 4, 2018, warrantless search went beyond the consent to search given by Mr.
Hunter. Id. at PageID 236-37.

2 In his Objections, Petitioner cites PageID 46-67 as the record reference for his petition for post-conviction relief
(ECF No. 14, PageID 373). In fact, PageID 46-67 are pages from his motion for delayed appeal.
These arguments are entirely supported by reference to the record before the trial court
which would have been before the appellate court on direct appeal. The petition for post-
conviction relief is not supported by evidence dehors the record, but rather by copies of the search
warrants and supporting affidavits. In other words, Petitioner’s arguments as to why he received
ineffective assistance of trial counsel from the failure to file a motion to suppress all depend on

construction of documents already of record and legal argument. This confirms the correctness of
the Tenth District’s conclusion that the arguments could have been raised on direct appeal.
White does not apply to this case because all of Petitioner’s claims about suppressing the
seized evidence and thus his claim of ineffective assistance of trial counsel for not filing a motion
to suppress could have been raised on direct appeal, where he would have been entitled to
appointed, constitutionally effective, counsel. Evitts v. Lucey, 469 U.S. 387 (1985); Penson v.
Ohio, 488 U.S. 75 (1988); Mahdi v. Bagley, 522 F.3d 631, 636 (6th Cir. 2008); Douglas v.
California, 372 U.S. 353 (1963).

Merits of the First Ground for Relief

Alternatively, Petitioner’s First Ground for Relief is without merit.
The governing standard for ineffective assistance of counsel is found 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, 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).
In assessing prejudice under Strickland, the question is not whether
a court can be certain counsel's performance had no effect on the
outcome or whether it is possible a reasonable doubt might have
been established if counsel acted differently. See Wong v.
Belmontes, 558 U.S. 15, 27, 130 S. Ct. 383, 175 L. Ed. 2d 328
(2009) (per curiam); Strickland, 466 U.S., at 693, 104 S. Ct. 2052,
80 L. Ed. 2d 674. Instead, Strickland asks whether it is “reasonably
likely” the result would have been different. Id., at 696, 104 S. Ct.
2052, 80 L. Ed. 2d 674. This does not require a showing that
counsel's actions “more likely than not altered the outcome,” but the
difference between Strickland's prejudice standard and a more-
probable-than-not standard is slight and matters “only in the rarest
case.” Id., at 693, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674. The
likelihood of a different result must be substantial, not just
conceivable. Id., at 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674.

Harrington v. Richter, 562 U.S. 86, 111-112 (2011).
In his Notice of objections to the original Report, Montelongo-Rangel argues that, instead
of Strickland, his ineffective assistance of trial counsel claim should be measured against United
States v. Cronic, 466 U.S. 648 (1984)(ECF No. 15, PageID 382-83). A complete denial or absence
of counsel at a critical stage of the proceedings is per se ineffective, without proof of prejudice.
Mitchell v. Mason, 257 F.3d 554 (6th Cir., 2001), relying on Cronic, and Roe v. Flores-Ortega, 528
U.S. 470 (2000).
But a habeas petitioner cannot substitute the Cronic standard for Strickland merely by
asserting an attorney’s performance was really, really deficient. In fact, the Supreme Court has
overturned the Sixth Circuit’s reliance on Cronic in cases where that was essentially the
petitioner’s claim. In Bell v. Cone, 535 U.S. 685 (2002), it overturned Sixth Circuit reliance on
Cronic where counsel made no closing penalty-phase argument in a capital case. It has also held
absence of counsel during testimony of a government witness whose testimony is irrelevant under
the defendant’s theory of the case is not per se ineffective assistance of trial counsel under Cronic.
Woods v. Donald, 575 U.S. 312 (2015)(GVR), reversing Donald v. Rapelje, 580 Fed. Appx. 277
(6th Cir. 2014). In fact, Jones was represented in the trial court by Jeffrey Stavroff. To prevail on
the merits of his First Ground for Relief, Montelongo-Rangel would have to meet both prongs of
Strickland, deficient performance and prejudice.
Petitioner admits that, if the standard is Strickland rather than Cronic, to prevail on his First
Ground for Relief he would have to show that it was deficient performance for his attorney not to

make the arguments for suppression he now makes in these proceedings. He emphasizes that the
trial court and Tenth District have both held that his argument on the First Ground for Relief should
have been made in a motion to suppress. But that does not mean that, in failing to file such a
motion, Attorney Stavroff provided ineffective assistance of trial counsel; neither court held the
arguments would have been successful if made in a motion to suppress.
Petitioner’s claims that the evidence against him should have been suppressed are without
merit. He first claims the first June 16, 2018, search warrant results must be suppressed because
it was issued and executed by state officials on the basis of federal probable cause. His sole cited
authority for this proposition is United States v. Townsend, 394 F. Supp 736 (E.D. Mich. 1975).

Townsend does not support the proposition for which Jones cites it. Rather the Townsend court
held that when there is joint state and federal participation in the execution of a search warrant
issued by a state court judge to obtain evidence for presentation in a federal prosecution, the
procedure provided in Fed. R. Crim. P. 41 for federal search warrants must be followed. Townsend
is completely inapposite and Petitioner cites no other authority.
Petitioner’s second claim is that the warrant in question only authorized seizure of
documents and not the narcotics. That claim is patently without merit: the face of the warrant
authorizes the seizure of “goods, chattels, or articles” that evidence commission of drug crimes.
Petitioner’s third claim – that the first June 16th warrant does not show probable cause – is
thoroughly refuted by the detail that appears in the search warrant affidavit.
As to the second June 16, 2018, search warrant, Jones argues it would not have been issued
without evidence seized in the illegal search pursuant to the first warrant (Reply, ECF No. 8,
PageID 334, relying on United States v. Mitchell, 82 F.3d 146, 151 (7th Cir. 1996); Painter v.
Robertson, 185 F.3d 557, 567 (6th Cir. 1999); and United States v. Worley, 193 F.3d 380, 385-86

(6th Cir. 1999). In Painter the Sixth Circuit reversed summary judgment granted to a police officer
on the basis of qualified immunity because the officer did not have the reasonable suspicion
necessary under Terry v. Ohio, 392 U.S. 1 (1968), to justify the frisk that produced the firearm that
was the basis of the arrest. Worley does not concern reliance on illegally seized evidence to support
a subsequent search. In any event, the Magistrate Judge has concluded Jones’s arguments for
suppression of the evidence seized under authority of the first warrant are not persuasive.
In sum, Petitioner has not shown the evidence against him would have been suppressed if
Attorney Stavroff had made the arguments on which he now relies.

Effect of Montelongo-Rangel’s Guilty Plea

On June 18, 2019, Petitioner withdrew his former not guilty plea and entered a guilty plea
pursuant to a plea agreement (State Court Record, ECF No. 4, Ex. 3).
A valid, unconditional guilty or no contest plea waives all “constitutional violations
occurring prior to a plea of guilty once the defendant enters his plea,” including a challenge to the
evidence supporting a conviction and any pre-plea constitutional violations, unless expressly
preserved in a plea agreement or at a plea hearing. United States v. Lalonde, 509 F.3d 750, 757
(6th Cir. 2007). A guilty plea constitutes a break in the chain of events leading up to it. Tollett v.
Henderson, 411 U.S. 258 (1973). Federal habeas corpus review of claims raised by a petitioner
who has entered a guilty plea is limited to “the nature of the advice and the voluntariness of the
plea, not the existence as such of an antecedent constitutional infirmity.” Tollett, 411 U.S. at 266.
A guilty plea bars a defendant from raising in federal habeas corpus such claims as the defendant’s
right to trial and the right to test the state’s case against him. McMann v. Richardson, 397 U.S.

759 (1970); McCarthy v. United States, 394 U.S. 459, 466 (1969).
Montelongo-Rangel’s guilty plea has never been held to be invalid. His First Ground for
Relief is barred by his plea of guilty.

Ground Two: Lack of Subject Matter Jurisdiction

In his Second Ground for Relief, Montelongo-Rangel asserts that the Franklin County
Municipal Judge who issued the search warrant that resulted in seizure of the evidence used against
him lacked subject matter jurisdiction to issue that warrant because it was premised on federal

probable cause but executed only by state officers.
Respondent asserts this claim is not cognizable in habeas corpus because the only possible
constitutional right involved in being convicted on illegally seized evidence is a person’s right
under the Fourth Amendment. Federal habeas corpus relief is not available to state prisoners who
allege they were convicted on illegally seized evidence if they were given a full and fair
opportunity to litigate that question in the state courts. Stone v. Powell, 428 U.S. 465 (1976). Stone
requires the district court to determine whether state procedure in the abstract provides full and
fair opportunity to litigate, and Ohio procedure does. The district court must also decide if a
petitioner's presentation of claim was frustrated because of a failure of the state mechanism.
Habeas relief is allowed if an unanticipated and unforeseeable application of a procedural rule
prevents state court consideration of merits. Riley v. Gray, 674 F.2d 522 (6th Cir. 1982). The Riley
court, in discussing the concept of a “full and fair opportunity,” held:
The mechanism provided by the State of Ohio for resolution of
Fourth Amendment claims is, in the abstract, clearly adequate. Ohio
R. Crim. P. 12 provides an adequate opportunity to raise Fourth
Amendment claims in the context of a pretrial motion to suppress,
as is evident in the petitioner’s use of that procedure. Further, a
criminal defendant, who has unsuccessfully sought to suppress
evidence, may take a direct appeal of that order, as of right, by filing
a notice of appeal. See Ohio R. App. P. 3(A) and Ohio R. App. P.
5(A). These rules provide an adequate procedural mechanism for the
litigation of Fourth Amendment claims because the state affords a
litigant an opportunity to raise his claims in a fact-finding hearing
and on direct appeal of an unfavorable decision.

Id. at 526. The Tenth District Court of Appeals considered this claim on Montelongo-Rangel’s
appeal from denial of his motion to vacate his criminal judgment for lack of jurisdiction. That court
held that the proper method for Montelongo-Rangel to raise this claim would have been in a motion
to suppress in the trial court. State v. Jones, et al., Case No. 20AP-300 (State Court Record, ECF
No. 4, Ex. 8). Because Montelongo-Rangel pleaded guilty without litigating this suppression
claim, it was barred by res judicata. Moreover Montelongo-Rangel had not timely appealed and,
although he challenged the jurisdiction of the municipal court judge who issued the search warrant,
he did not challenge the subject matter jurisdiction of the Franklin County Court of Common Pleas,
the court that accepted his guilty plea. Id.
In his Reply Montelongo-Rangel offers no rebuttal to these arguments, but instead agrees
with the State that consideration of Ground Two should be delayed until the Supreme Court of
Ohio acts (Reply, ECF No. 9, PageID 335-38). Now that that Court has declined review, there is
of course no need for a stay.
Montelongo-Rangel’s Ground Two is also subject to procedural default analysis. Ohio
requires that constitutional issues which can be raised on direct appeal be raised in that forum.
State v. Perry, 10 Ohio St. 2d 175 (1967). In this case Montelongo-Rangel took no direct appeal
and his request to file a delayed appeal was denied. When he attempted to raise this issue by motion
to vacate the judgment, the Tenth District invoked the res judicata rule against him. State v.
Montelongo-Rangel, supra, at ¶¶ 13-14, citing Perry and State v. Cole, 2 Ohio St.3d 112, 113

(1982). The Sixth Circuit has repeatedly held that Ohio’s doctrine of res judicata in criminal cases,
enunciated in Perry, is an adequate and independent state ground of decision. Durr v. Mitchell,
487 F.3d 423, 432 (6th Cir. 2007); Buell v. Mitchell, 274 F.3d 337 (6th Cir. 2001); Coleman v.
Mitchell, 268 F.3d 417 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 521-22 (6th Cir. 2000); Rust
v. Zent, 17 F.3d 155, 160-61 (6th Cir. 1994)(citation omitted); Van Hook v. Anderson, 127 F. Supp.
2d 899, 913 (S.D. Ohio 2001). Because Montelongo-Rangel’s Second Ground was held barred by
res judicata by the Tenth District, it should be dismissed as procedurally defaulted.
Alternatively, the Court should decline to reach the merits of this claim because
Montelongo-Rangel forfeited it when he pleaded guilty. A valid, unconditional guilty or no contest

plea waives all “constitutional violations occurring prior to a plea of guilty once the defendant
enters his plea,” including a challenge to the evidence supporting a conviction and any pre-plea
constitutional violations, unless expressly preserved in a plea agreement or at a plea hearing.
United States v. Lalonde, 509 F.3d 750, 757 (6th Cir. 2007). A guilty plea constitutes a break in
the chain of events leading up to it. Tollett v. Henderson, 411 U.S. 258 (1973). Federal habeas
corpus review of claims raised by a petitioner who has entered a guilty plea is limited to “the nature
of the advice and the voluntariness of the plea, not the existence as such of an antecedent
constitutional infirmity.” Tollett, 411 U.S. at 266. A guilty plea bars a defendant from raising in
federal habeas corpus such claims as the defendant’s right to trial and the right to test the state’s
case against him. McMann v. Richardson, 397 U.S. 759 (1970); McCarthy v. United States, 394
U.S. 459, 466 (1969).
Montelongo-Rangel has not challenged the validity of his guilty plea in this proceeding.
He is accordingly barred from having this habeas court reach the merits of Ground Two which
should be dismissed with prejudice.

Conclusion

Based on the foregoing analysis, the Magistrate Judge respectfully recommends 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.

June 7, 2021.
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, but service is complete when the document is mailed, not when it is recetved. 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. #
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10377985. Public record. Not legal advice.