CORTEZ v. FINNAN

Filing 17

ENTRY Discussing Petition for Writ of Habeas Corpus and Denying Certificate of Appealability - For the reasons explained in this Entry, the petition of Emeterio Cortez for a writ of habeas corpus must be DENIED and the action DISMISSED with prejudice. In addition, the court finds that a certificate of appealability should not issue. Judgment consistent with this Entry shall now issue. (copy to Petitioner vis US Mail). Signed by Judge Jane Magnus-Stinson on 12/20/2011.(JKS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EMETERIO CORTEZ,
Petitioner,

v.
ALLAN FINNAN,

Respondent.

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No. 1:10-cv-1292-JMS-TAB

Entry Discussing Petition for Writ of Habeas
Corpus and Denying Certificate of Appealability
For the reasons explained in this Entry, the petition of Emeterio Cortez for a
writ of habeas corpus must be denied and the action dismissed with prejudice. In
addition, the court finds that a certificate of appealability should not issue.
The Petition for Writ of Habeas Corpus
I. Applicable Law
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
Pub.L. No. 104–132, 110 Stat. 1214, became effective on April 24, 1996, and governs
the habeas petition in this case because Cortez filed his petition after the AEDPA's
effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).
Under the AEDPA, a federal court may not grant habeas relief unless the
state court's adjudication of the claim resulted in a decision that (1) was “contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or (2) was “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).
Based on the above standard, federal habeas relief is barred for any claim
adjudicated on the merits in state court, “unless one of the exceptions listed in 28
U.S.C. § 2254(d) obtains.” Premo v. Moore, 131 S. Ct. 733, 739 (2011). Under the
“contrary to” clause, a federal court may issue a writ of habeas corpus if the state
court applied a rule that “contradicts the governing law” set forth by the Supreme

Court or if the state court reached a different outcome based on facts “materially
indistinguishable” from those previously before the Supreme Court. Williams v.
Taylor, 529 U.S. 362, 405-06 (2000); see also Calloway v. Montgomery, 512 F.3d 940,
943 (7th Cir. 2008). Under the “unreasonable application” clause, a petitioner must
show that the state court's decision unreasonably extended a rule to a context
where it should not have applied or unreasonably refused to extend a rule to a
context where it should have applied. Virsnieks v. Smith, 521 F.3d 707, 713 (7th
Cir. 2008) (citing Jackson v. Miller, 260 F.3d 769, 774 (7th Cir. 2001)); see also
Wright v. Van Patten, 128 S. Ct. 743, 746–47 (2008) (emphasizing that a state
court's application of clearly established law is acceptable, even if it is likely
incorrect, so long as it is reasonable).
A petitioner's challenge to a state court decision based on a factual
determination under § 2254(d)(2) will not succeed unless the state court committed
an “unreasonable error,” and § 2254(e)(1) provides the mechanism for proving
unreasonableness. See Ward v. Sternes, 334 F.3d 696, 703–04 (7th Cir. 2003). “A
state court decision that rests upon a determination of fact that lies against the
clear weight of the evidence is, by definition, a decision ‘so inadequately supported
by the record’ as to be arbitrary and therefore objectively unreasonable.” Id., at
704(quoting Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997)).
“A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “If this standard is difficult to
meet, that is because it was meant to be.” Id.
II. Background
Cortez was convicted of murder in an Indiana state court and was sentenced
on May 27, 2003, to an aggregate term of 55 years.
The murder occurred on June 28, 2002. Cortez was arrested the following
day. Once arrested, Cortez was taken to the Jail, where he was interviewed by
Indianapolis Police Detective Michael Turner. Shortly thereafter, Detective Turner
called for the assistance of Officer Alfred Gomez to act as a translator.
Cortez was read his rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966). This was done in Spanish by Officer Gomez. Cortez acknowledged receiving
these rights and understanding them, then initialed a waiver of each. He confessed.
He was convicted. His conviction was affirmed on appeal. His subsequent petition
for post-conviction relief was granted, his motion to suppress the confession was
denied, and he was again convicted as charged, this time following a bench trial.
This decision was affirmed on direct appeal in Cortez v. State, 2009 WL 4639487,
918 N.E.2d 25 (Ind.Ct.App. Jan. 28, 2009)(unpublished).

Cortez now seeks habeas corpus relief pursuant to 28 U.S.C. § 2254(a) based
on his claim that he was not properly given his rights pursuant to Miranda.
III. Discussion
Before a criminal suspect in custody may be interrogated, he must be
warned, among other things, that he has a right to remain silent and that anything
he says can be used against him in court. Miranda v. Arizona, 384 U.S. 436, 478–79
(1966). No evidence obtained from questioning may be used against him unless the
prosecution shows that he received a warning and waived his rights. See id., at 479.
The suspect's waiver must be voluntary, knowing, and intelligent—that is, it must
be the product of a free and deliberate choice, rather than intimidation, coercion, or
deception, and it must be made with a full awareness of the nature of the rights
that he is abandoning and the consequences of his decision to abandon them. See
Berghuis v. Thompkins, 130 S. Ct. 2250, 2260 (2010); Moran v. Burbine, 475 U.S.
412, 421 (1986); Miranda, 384 U.S. at 444. A court may conclude that a waiver was
legitimate only when the totality of the circumstances surrounding the
interrogation demonstrate both “an uncoerced choice and the requisite level of
comprehension.” Burbine, 475 U.S. at 421.
The Indiana Court of Appeals examined in detail the circumstances under
which Cortez was provided with the Miranda warnings and concluded from these
circumstances that the content of the information supplied to Cortez complied with
the requirements of Miranda, that Cortez understood his rights under Miranda,
and that “Cortez’s waiver of rights was knowing and voluntary.”
The state court's factual finding that Cortez understood what was being said
and asked of him and the character of what he said and did in response is presumed
to be correct unless Cortez demonstrates otherwise by clear and convincing
evidence. See Adams v. Haeberlin, 404 F. App'x 11, 14 (6th Cir. 2010) (citing 28
U.S.C. 2254(e)(1)); Williams v. Jones, 117 F. App'x 406, 412 (6th Cir. 2004)
(unpublished)(“Whether a defendant understood his Miranda rights is a question of
fact underlying the question of whether his waiver of those rights was knowing and
intelligent.”). Cortez has not attempted to make such a showing, nor does the court
discern any possible basis on which he could do so.
The state court's determination that Cortez knowingly, intelligently, and
voluntarily waived his Miranda rights prior to making his stationhouse statements
was neither an unreasonable application of Supreme Court law nor an
unreasonable determination of the facts in light of the evidence presented in the
state court proceeding. See 28 U.S.C. § 2254(d).

IV. Conclusion
A federal habeas court's role in reviewing state prisoner applications was
modified by the AEDPA “in order to prevent federal habeas ‘retrials' and to ensure
that state-court convictions are given effect to the extent possible under law.” Bell v.
Cone, 535 U.S. 685, 693 (2002). The requirements of the AEDPA “create an
independent, high standard to be met before a federal court may issue a writ of
habeas corpus to set aside state-court rulings.’ Uttecht v. Brown, 127 S. Ct. 2218,
2224 (2007) (citations omitted). As the Supreme Court recently explained, the
AEDPA's requirements reflect “the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for
ordinary error correction through appeal.” Harrington v. Richter, 131 S. Ct. 770, 786
(2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979)).
Having applied the appropriate standard of review, and having considered
the pleadings and the expanded record, Cortez’s petition for writ of habeas corpus
must be denied. Judgment consistent with this Entry shall now issue.
Certificate of Appealability
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the
Rules Governing § 2254 proceedings, and 28 U.S.C. § 2253(c), the court finds that
Cortez has failed to show that reasonable jurists would find “it debatable whether
the petition states a valid claim of the denial of a constitutional right.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a certificate of
appealability.
IT IS SO ORDERED.

12/20/2011
Date: __________________
_______________________________
Hon. Jane Magnus-Stinson, Judge
United States District Court
Southern District of Indiana