Cruz-Altunar v. Warden Ross Correctional Institution

Filing 11

ORDER ADOPTING REPORT AND RECOMMENDATIONS, OVERRULING Petitioner's Objections, DENYING the petition for a writ of habeas corpus. This action is DISMISSED. Signed by Judge Algenon L. Marbley on 4/13/2016. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSE CRUZ-ALTUNAR,
CASE NO. 2:14-CV-01844
JUDGE ALEGNON L. MARBLEY
MAGISTRATE JUDGE KEMP

Petitioner,
v.
WARDEN, ROSS
CORRECTIONAL INSTITUTION,
Respondent.

OPINION AND ORDER
On March 9, 2016, the Magistrate Judge issued a Report and Recommendation
recommending that the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
be denied and that this action be dismissed. (ECF No. 9.) Petitioner has filed Objections to the
Magistrate Judge’s Report and Recommendation. (ECF No. 10.) Pursuant to 28 U.S.C. §
636(b), this Court has conducted a de novo review. For the reasons that follow, Petitioner’s
Objections (ECF No. 10) are OVERRULED. The Report and Recommendation (ECF No. 9) is
ADOPTED and AFFIRMED. The petition for a writ of habeas corpus pursuant to 28 U.S.C. §
2254 is DENIED and this action is hereby DISMISSED.
This case involves Petitioner’s October 2011, convictions after a jury trial in the Franklin
County Court of Common Pleas on two counts of murder. The Ohio Court of Appeals affirmed
Petitioner’s convictions and sentence. Petitioner did not timely appeal to the Ohio Supreme
Court, and the Ohio Supreme Court denied Petitioner’s motion for a delayed appeal. Petitioner
asserts that his convictions are against the manifest weight of the evidence, that the evidence is
constitutionally insufficient to sustain his convictions, and that the trial court improperly failed to
issue a jury instruction on the lesser included offense of voluntary manslaughter. The Magistrate

Judge concluded that Petitioner had failed to establish cause and prejudice for his procedural
default in failing to file a timely appeal to the Ohio Supreme Court, and recommended dismissal,
in any event, because Petitioner’s claims failed on the merits.

Petitioner objects to the

Magistrate Judge’s recommendations.
Petitioner again argues that the evidence is constitutionally insufficient to sustain his
convictions. He maintains that the evidence established his guilt solely as to the lesser included
offense of voluntary manslaughter and states that the Magistrate Judge misconstrued his
argument in this regard. Petitioner also again asserts that he has established cause for his
procedural default based on the State’s failure to provide him with Spanish resources or an
interpreter. Petitioner contends that such failure constituted state action that prevented him from
timely filing his appeal and denied him access to the courts. This Court is not persuaded by
Petitioner’s arguments.
“ ‘Cause’ for a procedural default is ordinarily shown by ‘some objective factor external
to the defense’ which impeded the petitioner's efforts to comply with the state's procedural rule.”
Horne v. Bunting, No. 5:12CV2274, 2014 WL 7375469, at *16 (N.D. Ohio Dec. 29, 2014)(citing
Coleman, 501 U.S. at 753 (quoting Murray, 477 U.S. at 488). See also Jamison v. Collins, 100
F.Supp.2d 521, 533 (S.D. Ohio 1998)(to establish cause for a procedural default, “the petitioner
must provide a ‘substantial’ reason that is ‘external’ to the petitioner”)(citing Murray v. Carrier,
477 U.S. 478, 488 (1986); Rust v. Zent, 17 F.3d 155, 161 (6th Cir. 1994)). As noted by the
Magistrate Judge, “courts have held that language barriers and unfamiliarity with the legal
system are not external factors sufficient to excuse procedural default.” Sanchez v. Hetzel, No.
1:11-cv-940-TMH, 2014 WL 1491178, at *4 (M.D. Ala. April 15, 2014)(citing Vazquez v.
Lockhart, 867 F.2d 1056, 1058 (8th Cir.1988) (pro se and language barrier insufficient to excuse

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procedural default); Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (“unfamiliarity with the
English language” is not “external to [his] defense”); Silva v. Oregon, 2009 WL 4505445, at *6
(D.Or. Dec. 2, 2009) (inability to speak English not an “objective factor amounting to cause”);
Fabian v. Herbert, 2003 WL 173910 at *4 (S.D.N.Y. Jan. 23, 2003) (inability to speak or
comprehend English insufficient to overcome procedural bar); Weeks v. Bowersox, 106 F.3d 248,
250 (8th Cir.1997) (illiteracy insufficient to excuse default); Marsh v. Soares, 223 F.3d 1217,
1220 (10th Cir.2000) (“The fact that an inmate law clerk was assisting in drafting [pleadings]
does not relieve [petitioner] from the personal responsibility of complying with the law.”);
Cornman v. Armontrout, 959 F.2d 727, 729 (8th Cir. 1992) (petitioner's below-average
intelligence insufficient to establish cause).
Moreover, even assuming that Petitioner could establish cause for his procedural default,
the record reflects that the evidence, when viewed in the light most favorable to the prosecution,
see Jackson v. Virginia, 443 U.S. 307, 319 (1979), is plainly constitutionally sufficient to sustain
his convictions on murder. Further, his claim that his convictions are against the manifest weight
of the evidence fails to provide a basis for federal habeas corpus relief. See Shedwick v. Warden,
North Correctional Institution, No. 2:13-cv-1230, 2015 WL 5785719, at *7 (S.D. Ohio Oct. 5,
2015). To the extent that Petitioner asserts that the trial court unconstitutionally failed to issue a
lesser-included jury instruction, such claim likewise fails to warrant relief. See McMullan v.
Booker, 761 F.3d 662, 667 (6th Cir. 2014).
Petitioner’s Objections (ECF No. 10) are OVERRULED.

The Report and

Recommendation (ECF No. 9) is ADOPTED and AFFIRMED. The petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED and this action is hereby DISMISSED.

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IT IS SO ORDERED.
DATED: April 13, 2016

s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge

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