Feliciano v. Tibbals

Filing 17

MEMORANDUM OPINION Adopting Report and Recommendation.. Judge David A. Katz on 3/25/13. (G,C)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

RAFAEL FELICIANO,
Plaintiff,

Case No. 3:11 CV 2320

-vsMEMORANDUM OPINION
TERRY TIBBALS,
Defendant.
KATZ, J.
Petitioner Rafael Feliciano filed the instant petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. Doc. 1. Additionally, Feliciano subsequently filed a motion for leave to amend
and supplement the pleadings, Doc. 13, as well as a motion for judgment on the pleadings. Doc.
14.
The matter was referred to Magistrate Judge William H. Baughman, Jr., who
recommended that the petition be denied. See Report and Recommendation, Doc. 15 (hereinafter,
“R&R”). Feliciano timely objected to the R&R. Respondent Terry Tibbals did not respond to the
objections. In accordance with United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001), and Hill
v. Duriron Co., 656 F.2d 1208 (6th Cir. 1981), this Court has made a de novo determination of the
Magistrate’s findings. For the reasons stated herein, the R&R is adopted, Feliciano’s petition is
denied, and Feliciano’s motions for leave to amend and for judgment on the pleadings are denied
as moot.
I. Background
The Court hereby adopts the R&R’s statements of facts and of the case:
Statements of Facts and of the Case
A.

The underlying facts and the state trial

The facts6 that follow come from the decision of the Lorain County Court of
Appeals.7 Feliciano received his tax return check and used a part of the money to
purchase crack cocaine.8 After being warned by some of his neighbors in his apartment
complex that there was a plot to rob him, Feliciano armed himself and his friend,
Fletcher Windham.9 As the evening went on, Feliciano began to suspect that Windham
was part of the plot to rob him, and then proceeded to stab Windham.10 Windham died
as a result of the stab wounds he received from Feliciano, who would later testify that
he felt as if he had no choice but to stab his friend and that he was fighting for his
life.11
After being arrested and taken into custody by police, Feliciano was indicted
originally and pled not guilty to two counts of murder, two counts of felonious assault,
and an additional count of murder, which was subsequently added.12 After his arrest,
Feliciano, through his appointed counsel, requested a Spanish-speaking interpreter,
which motion was granted by the trial court.13 After the second count of murder from
the original indictment was dismissed by the State at the beginning of the jury trial,
Feliciano was found guilty on all four remaining charges.14 On May 5, 2009, the trial
court then sentenced Feliciano to a total of 19 years of incarceration.15
B.

Direct Appeal

1.

Ninth District Court of Appeals, Lorain County

6

Facts found by the state appellate court on its review of the record are presumed
correct by the federal habeas court. 28 U.S.C. § 2254(e)(1); Brumley v. Wingard, 269
F.3d 629, 637 (6th Cir. 2001).
7

ECF # 10, Attachment # 1 (state court record) at 214-32.

8

Id.

9

Id.

10

Id.

11

Id.

12

Id.

13

Id.

14

Id.

15

Id.
2

Following his sentencing, Feliciano, represented by new counsel,16 filed a
timely notice of appeal to the Ninth District Court of Appeals in Lorain County,
raising seven assignments of error18 . . . .
17

....
The State filed a brief in opposition.26 Prior to adjudicating the appeal,
Feliciano was re-sentenced by the trial court,27 and the state supplemented the
appellate court record with the re-sentencing entry.28 On June 21, 2010, the Ohio Ninth
District Court of Appeals then affirmed the decisions of the trial court, overruling all
of Feliciano’s assignments of error.29
2.

The Supreme Court of Ohio
Feliciano, now proceeding pro se, filed a timely30 notice of appeal to the Ohio
Supreme Court.31 In his memorandum in support of jurisdiction32 he raised three
propositions of law . . . .
16

Feliciano was represented by Michael Camera up to and including his sentencing but was represented
by Denise G. Wilms on appeal (ECF # 1 at 11-12).
17

Ohio App. Rule 4(A) provides that, to be timely, an appeal must be filed within 30 days of a
judgment’s entry. Here, the judgment entry was filed on May 5, 2009, and the notice of appeal filed
on June 3, 2009.
18

ECF # 10, Attachment # 1 at 21.

26

Id. at 66-135.

27

Id. at 153-56.

28

Id. at 157-59.

29

Id. at 167-96.

30

Ohio Supreme Court Rule of Practice 2.2(A)(1)(a) provides that an appeal must be filed within 45
days of the judgment being appealed. Here, the appellate judgment was entered on June 21, 2010, and
the notice of appeal filed in the Supreme Court on August 4, 2010.
31

Id. at 197-98.

32

Id. at 199-212.
3

....
The State filed no opposition. On October 27, 2010, the Ohio Supreme Court
denied leave to appeal, dismissing the matter as not involving any substantial
constitutional question.36 The record does not show that Feliciano filed for a writ of
certiorari with the United States Supreme Court.
C.

Petition for writ of habeas corpus

On October 28, 2011, Feliciano, pro se, filed a timely37 federal habeas petition
and, by attaching his brief to the Supreme Court of Ohio, raised three grounds for
relief:38
Ground for relief 1: The trial court committed Plain Error in its
incorrect, incomplete and insufficient jury instructions.39
Ground for relief 2: The trial court committed Plain Error when not
insisting upon the court appointed translator to properly translate the
totality of the court. Appellant’s conviction for felonious assault is
against [sic]40 [(sentence fragment in original)]
Ground for relief 3: Prosecutorial misconduct and the trial court erred
when testimony was presented from a witness who received
consideration for said testimony.41

36

Id. at 244.

37

28 U.S.C. § 2254 states that a habeas petition must be filed within one year of the conclusion of direct
review of the petitioner’s claims by the state. In that regard, the one-year period does not begin to run
until the day after a petition for a writ of certiorari would be due, or 90 days, regardless of whether
such a writ has been sought by the petitioner. Bronaugh v. Ohio, 235 F.3d 280, 283-84 (6th Cir.
2000). Here, the one-year limitations period began on January 27, 2011, and the petition was filed
approximately ten months later, thus making it timely.
38

ECF # 1.

39

Id., Attachment at 4.

40

Id., Attachment at 9.

41

Id., Attachment at 10.
4

The State’s return of the writ42 argues initially that the first and second grounds
for relief should be dismissed for reasons of procedural default because Feliciano
made no objections at trial to either the jury instructions or the translator arrangements
as required by Ohio’s contemporaneous objection rule.43 The State argues further that
the third ground for relief should be denied on the merits because the state appeals
court correctly analyzed this claim as an alleged due process violation and concluded
that, as a matter of fact, no prosecutorial misconduct occurred and further determined
that no clearly established federal law precludes a witness from testifying in
consideration for leniency as regards pending charges.44
A prior attempt by Feliciano to amend or supplement the petition45 was denied
but ordered filed as a traverse.46

R&R at 2-7.
II. Standard
The Court hereby incorporates the R&R’s thorough statement of the applicable legal
standards:
B.

Standards of review

1.

Procedural default

Under the doctrine of procedural default, the federal habeas court is precluded
from reviewing a claim for relief if the petitioner failed to obtain consideration of that
claim on its merits in state court, either because the petitioner failed to raise it when
state remedies were still available or due to some other violation of a state procedural
rule.56

42

ECF # 10.

43

Id. at 8-14.

44

Id. at 16-18.

45

ECF # 11.

46

ECF # 12.

56

Lundgren v. Mitchell, 440 F.3d 754, 763 (6th Cir. 2006).
5

When a violation of a state procedural rule is alleged as the basis for the
default, the Sixth Circuit has long-employed a four-part test to determine if the claim
is procedurally defaulted in a federal habeas proceeding:
(1)

Does a state procedural rule exist that applies to the petitioner’s
claim?

(2)

Did the petitioner fail to comply with that rule?

(3)

Did the state court rely on that failure as the basis for its refusal
to address the merits of the petitioner’s claim?

(4)

Is the state rule violated by the petitioner an adequate and
independent state law basis for barring the federal court from
considering the claim?57

In addition to establishing these elements, the state procedural rule must be
shown to be (a) firmly established and (b) regularly followed before the federal habeas
court will decline to review an allegedly procedurally defaulted claim.58
If a procedural default is established, the default may be overcome if: (1) the
petitioner can show cause for the default and actual prejudice from the court’s failure
to address the alleged constitutional violation, or (2) that a lack of review of the claims
merits will result in a fundamental miscarriage of justice.59 In addition, procedural
default may also be excused by a showing of actual innocence.60
To establish “cause” for the default, a petitioner must generally show that some
objective factor, something external to himself, precluded him from complying
with the state procedural rule.61 Demonstrating “prejudice” requires the petitioner to
show that the alleged constitutional error worked to his actual and substantial
disadvantage, infecting the entire proceeding with error of a constitutional

57

Morales v. Mitchell, 507 F.3d 916, 937 (6th Cir. 2007) (citation omitted).

58

Smith v. Ohio Dep’t of Rehab. & Corrs., 463 F.3d 426, 431 (6th Cir. 2006) (citations omitted).
59

Hicks v. Straub, 377 F.3d 538, 551-52 (6th Cir. 2004) (citations omitted).

60

Id.

61

Coleman v. Thompson, 501 U.S. 722, 753 (1991).
6

dimension.62 There can be no prejudice if the petitioner cannot show a reasonable
probability of a different outcome at trial.63
Notwithstanding these elements, the Supreme Court has held that federal
habeas courts are not required to consider an assertion of procedural default before
deciding a claim against the petitioner on the merits.64 In that regard, the Sixth Circuit
has stated that a federal habeas court may bypass an issue of procedural default when
that issue presents complicated questions of state law and addressing it is unnecessary
to resolving the claim against the petitioner on the merits.65
2.

AEDPA review

Where a state court adjudicated the merits of a claim now asserted in a federal
habeas petition, the controlling federal statute is plain that the federal habeas court
may use that claim as a basis for granting the writ only if the state decision was either
contrary to clearly established federal law as determined by the United States Supreme
Court or was an unreasonable application of that law.66
In applying that statute, a federal habeas court is guided by the well-known
teachings of Williams v. Taylor.67 As stated by the United States Supreme Court in
Williams, a decision is “contrary to” clearly established federal law if “the state court
arrives at a conclusion opposite to that reached by this Court on a question of law or
if the state court decides a case differently than this Court has on a set of materially
indistinguishable facts.”68 Williams further holds that a state court decision is an
“unreasonable application” of clearly established federal law if “the state court
identifies the correct governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prisoner’s case.”69

62

United States v. Frady, 456 U.S. 152, 170 (1982).

63

Mason v. Mitchell, 320 F.3d 604, 629 (6th Cir. 2003).

64

Lambrix v. Singletary, 520 U.S. 518, 525 (1997).

65

Hudson v. Jones, 351 F.3d 212, 215-16 (6th Cir. 2003).

66

28 U.S.C. § 2254(d).

67

Williams v. Taylor, 529 U.S. 362 (2000).

68

Id. at 412. Accord, Broom v. Mitchell, 441 F.3d 392, 398 (6th Cir. 2006).

69

Williams, 529 U.S. at 413; Broom, 441 F.3d at 398.
7

Moreover, a federal court may not find that a state court unreasonably applied
clearly established federal law simply because the habeas court “concludes on its
independent judgment that the relevant state court decision applied clearly established
federal law erroneously or incorrectly.”70 Rather, the state court holding may be
disturbed only upon showing that it was “objectively unreasonable.”71
The Supreme Court teaches that this “objectively unreasonable” standard is
“difficult to meet,”72 and “highly deferential” to the decision of the state court.73 As
the Supreme Court explained, “[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.”74 Or, stated differently, a writ will issue only
upon a showing that the state court’s ruling “was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”75
In addition, a state court may be found to have unreasonably applied clearly
established federal law if it unreasonably extends or unreasonably fails to extend a
clearly established federal legal principle to a new context.76
Finally, where a state court does not address the merits of a federal claim
properly presented to it, “the deference due [a state court decision by the federal
habeas court] under the AEDPA does not apply.”77 Then, the federal court is to review
the claim de novo.78

70

Williams, 529 U.S. at 411.

71

Id. at 409.

72

Harrington v. Richter, __ U.S.__, 131 S. Ct. 770, 786 (2011).

73

Woodford v. Visciotti, 537 U.S. 19, 24 (2002).

74

Harrington, 131 S. Ct. at 786.

75

Id. at 786-87.

76

Williams, 529 U.S. at 405-07. Accord, Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003).
77

Maples v. Stegall, 340 F.3d 433, 436 (6th Cir. 2003).

78

Id.
8

However, as the Supreme Court emphasized in Harrington v. Richter, since a
state court is not required to state its reasons or explain its conclusion when it
adjudicates a federal claim in the merits, when a federal claim was presented to the
state court and then denied without any statement of reasons or explanation for the
decision, “it may be presumed that the state court adjudicated the [federal] claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.”79 In such circumstances, the decision of the state court would be entitled to
deference from the federal habeas court.80
3.

Ineffective assistance of counsel

Claims of ineffective assistance of counsel are adjudicated pursuant to the
well-known standard of Strickland v. Washington.81 In Strickland, the Supreme Court
articulated a two-part test that a defendant must satisfy to establish a Sixth
Amendment violation: (1) “the defendant must show that counsel’s performance was
deficient,” and (2) “the defendant must show that the deficient performance prejudiced
the defense.”82
Under the first prong of deficient performance, a defendant must show that his
counsel’s representation “fell below an objective standard of reasonableness.”83 In
making that determination, the court must be highly deferential to counsel’s actions;
that is, it “must indulge a strong presumption that counsel’s conduct falls within a
wide range of reasonable professional assistance ... [such] that under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”84
Actions should not be evaluated in hindsight, but from the perspective of
circumstances at the time of the alleged errors.85 The key is not whether counsel’s
choices ultimately were strategically beneficial, but whether they were reasonable at
the time.86 To that end, counsel must make a reasonable investigation into possible

79

Harrington, 131 S. Ct. at 784-85; Brown v. Bobby, 656 F.3d 325, 328-29 (6th Cir. 2011).

80

Brown, 656 F.3d at 329.

81

Strickland v. Washington, 466 U.S. 668 (1984).

82

Id. at 687.

83

Id. at 688.

84

Id. at 689 (internal citations omitted).

85

Id. at 690.

86

Roe v. Flores, 528 U.S. 470, 481 (2000).
9

alternatives, but once having done so, will be presumed to have acted reasonably in
selecting the action taken.87
To show prejudice under Strickland’s second prong, the petitioner must “show
that there is a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.”88 A “reasonable probability is a
probability sufficient to undermine confidence in the outcome.”89 In arriving at that
determination, courts are to “consider the totality of the evidence before the judge or
jury.”90
Both of the prongs of the test must be met in order for the writ to issue; thus,
courts need not address the issue of deficient performance if the petitioner cannot
establish prejudice.91
R&R at 9-16.

III. Discussion
The R&R recommends that Ground 1 of Feliciano’s petition be dismissed as procedurally
defaulted, and that Grounds 2 and 3 be denied on the merits. Feliciano lodges objections to each
recommendation. This Court likewise deals with each of Feliciano’s objections in-turn.
A. Ground 1
Feliciano argues in Ground 1 of his petition that the trial court committed plain error by
giving incomplete jury instructions regarding self-defense and the duty to retreat in one’s own
home. The Ohio Court of Appeals found that Feliciano forfeited this argument because trial

87

Strickland, 466 U.S. at 691.

88

Id. at 694.

89

Id.

90

Id. at 695.

91

Id. at 697.
10

counsel did not object at the time the instruction was given, thereby violating Ohio’s
“contemporaneous objection rule.” Noting that the contemporaneous objection rule is an adequate
and independent state ground for foreclosing federal habeas review, the R&R concluded that
Ground 1 is procedurally defaulted. The R&R further concluded that because Feliciano failed to
argue in the Ohio Courts that counsel’s failure to object amounted to ineffective assistance,
Feliciano’s petition fails to demonstrate cause and prejudice that would excuse the procedural
default. The R&R therefore recommends that Ground 1 be dismissed as procedurally defaulted.
Feliciano objects, insisting that the brief he submitted to the Ohio Court of Appeals did
argue ineffective assistance of counsel. Yet, a review of the appellate brief reveals that
Feliciano–while arguing ineffectiveness as to suppression issues and as to the role of a Spanish
language interpreter–did not argue ineffectiveness on matters related to Ground 1. The R&R
therefore properly concluded that Ground 1 must be dismissed as procedurally defaulted. See
Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000) (citing Murray v. Carrier, 477 U.S. 478, 489
(1986)) (ineffective assistance claim must be presented to state court before it may be used to
establish cause for procedural default).
B. Ground 2
Feliciano argues in Ground 2 of his petition that the trial court erred by denying him a
simultaneous courtroom translator. The events surrounding the presence of a translator are
summarized in the R&R:
First, Feliciano moved for an interpreter at trial, and that motion was granted.107 Prior
to Feliciano testifying, defense counsel asked that the interpreter be seated next to
Feliciano in the witness box so that Feliciano could choose whether to directly answer

107

ECF # 10 at 11 (citing transcript).
11

questions in English or give a response in Spanish that would then be translated.108 The
court agreed and explained the process to the jury.109 When it was determined that a
Spanish-speaking juror was writing down Feliciano’s Spanish-language testimony
before it was translated into English and the prosecution could then object, the court
directed that all questions and answers be in English, with the interpreter being used
only if the jury had difficulty understanding Feliciano’s English-language answer or
Feliciano had trouble understanding a question.110
R&R at 18-19.
The R&R rejects Respondent’s assertion that Feliciano procedurally defaulted Ground 2,
opting to liberally read Felicino’s filings in a way that includes arguments regarding the
effectiveness of counsel’s assistance as it relates to a courtroom translator. This Court agrees with
the R&R’s reading of Feliciano’s filings. See Marrero-Montes v. United States, No. 98-5378,
1998 U.S. App. LEXIS 29563, at *4 (6th Cir. Nov. 10, 1998) (liberally construing pro se habeas
petition to include certain arguments).
This Court also agrees with the R&R’s conclusion that under Strickland, supra,
Feliciano’s ineffective assistance of counsel claims must be rejected. Feliciano does not
demonstrate that he was prejudiced by counsel’s failure to object to the use of the translator. See
Strickland, 466 U.S. at 687 (no ineffective assistance absent prejudice). Feliciano urges that he
has demonstrated prejudice, pinpointing several portions of his state appellate brief, state Supreme
Court brief, and federal habeas traverse in which he supposedly identified the prejudice suffered.
Yet, a review of those filings yields nothing more than conclusory assertions that he was
prejudiced. They do not demonstrate a reasonable probability that counsel’s objection would have

108

Id.

109

Id.

110

Id. at 12.
12

yielded a different result. See id. at 694-95 (prejudice demonstrated upon showing of reasonable
probability that counsel’s error would yield different result). To the contrary, “the record does not
show that the interpreter arrangement at trial was a problem for the court, the jury, the attorneys,
or Feliciano himself. Nor does Feliciano identify any impediment or obstacle created by the
interpreter arrangement that had an interpreter available to him at all times.” R&R at 21. Ground
2 of Feliciano’s petition is therefore denied.
C. Ground 3
Feliciano argues in Ground 3 of his petition that he was prejudiced by prosecutorial
misconduct when a witness for the prosecution–who himself was facing prosecution–agreed to
testify against Faliciano in exchange for the prosecutor’s promise to inform the judge in his case
of his cooperation. The R&R recommends denying this claim on grounds that the Ohio Court of
Appeals’ decision to deny the claim was not an unreasonable application of clearly established
federal law. See 28 U.S.C. § 2254(d)(1) (no habeas relief on claim adjudicated in state court
unless state court decision is contrary to, or unreasonably applies, clearly established federal law).
As explained in the R&R:
The state appeals court denied this claim, finding first that the single case cited
by Feliciano had been overruled and further that, under federal constitutional law,
there is a long-standing practice of “‘sanctioning the testimony of accomplices against
their confederates in exchange for leniency.’”118 In addition, the state appellate court
noted that even if Gutierrez’s testimony was improper, the error would have been
harmless because another witness, Nancy Tate, “repeated much of Gutierrez’s
testimony regarding the events surrounding [the victim’s] death,” as did the testimony
of Feliciano himself.119

118

Id. at 177 (quoting United States v. Singleton, 165 F.3d 1297, 1301 (10th Cir. 1999) (en banc)).
119

Id.
13

Moreover, in addition to the decision of the Ohio court, there is no clearly
established federal law as set forth by the United States Supreme Court that holds that
a prosecutor engages in misconduct by employing the testimony of a witness who
agreed to testify in exchange for leniency in a pending case.120 Indeed, it is axiomatic
that habeas relief is available only for violations of clearly established federal law and
that the petitioner has the burden of establishing his right to relief on that score.121
R&R at 22.
Feliciano objects to the R&R’s characterization of his state court appellate brief as only
relying on a singe, overruled case. Feliciano contends his brief cited numerous cases and statutes.
See Feliciano State Ct. Appellate Br., Doc. 10-1 at 42-44 (citing cases); Feliciano Obj. to R&R,
Doc. 16 at 9 (citing 18 U.S.C. § 201(c)(2); Ohio Rev. Code Ann. § 2921.02(c)). Regardless,
Feliciano cannot demonstrate that the prosecutor’s promise of leniency violated clearly established
federal law. See United States v. Reyes, Nos. 99-1647, 99-1717, 99-1744, 2002 U.S. App. LEXIS,
at **15-**16 (6th Cir. Oct. 9, 2002) (Sixth Circuit expressly rejected argument that prosecutor’s
promise of leniency violates federal anti-bribery law (18 U.S.C. § 201)). Feliciano therefore
cannot satisfy the strictures of 28 U.S.C. § 2254(d)(1), and Ground 3 of his petition is properly
denied.
IV. Conclusion
For the reasons stated herein, the Magistrate’s R&R is adopted. Doc. 15. Feliciano’s
petition for a writ of habeas corpus is denied, Doc. 1, and Feliciano’s motions for leave to amend
and for judgment on the pleadings are denied as moot. Doc. 13; Doc. 14.

120

ECF # 10 at 17.

121

See, Amos v. Renico, 683 F.3d 720, 726 (6th Cir. 2012) (citations omitted).
14

Further, the Court hereby certifies that an appeal from this decision cannot be taken in
good faith, 28 U.S.C. § 1915(a)(3), and the Court denies a certificate of appealability pursuant to
Rule 11(a) of the RULES GOVERNING SEC. 2254 CASES, and 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
s/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

15