Cruz-Altunar v. Warden Ross Correctional Institution

Filing 9

REPORT AND RECOMMENDATION that 3 Petition for Writ of Habeas Corpus be DENIED and that this case be DISMISSED. Objections to R&R due by 3/28/2016. Signed by Magistrate Judge Terence P. Kemp on 3/9/2016. (agm)(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-1844
JUDGE ALGENON L. MARBLEY
MAGISTRATE JUDGE KEMP

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

REPORT AND RECOMMENDATION
Petitioner, a state prisoner, filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. §2254. This matter is before the Court on the petition (Doc. 1), the return of
writ (Doc. 7), Petitioner’s traverse (Doc. 8), and the associated exhibits. For the reasons
that follow, the Magistrate Judge RECOMMENDS that the petition be DENIED and
that this case be DISMISSED.

I. Procedural History
On August 2, 2010, the Franklin County, Ohio grand jury indicted Petitioner on
one count of aggravated murder and two counts of murder arising out of the death of
one Ricardo Perez on July 24, 2010. Petitioner pleaded not guilty to those charges. The
case was tried to a jury which, on October 31, 2011, returned a verdict of guilty on two
counts of murder, and a verdict of not guilty on the charge of aggravated murder.
Return of Writ, Exhibits 1 and 3.

In an entry filed on January 20, 2012, the trial court sentenced Petitioner to fifteen
years to life on the murder charge, along with five years of post-release control. Return
of Writ, Ex. 4.
Through counsel, Petitioner timely appealed to the Tenth District Court of
Appeals. He raised two assignments of error: (1) that the trial court erred by not giving
an instruction on voluntary manslaughter; and (2) that the convictions were against the
manifest weight of the evidence and not supported by the evidence. Return, Ex. 6. In a
decision rendered on October 18, 2012, the court of appeals overruled each of
Petitioner’s assignments of error and affirmed his convictions. State v. Cruz-Altunar,
2012 WL 4953064 (Franklin Co. App. Oct 18, 2012).
Acting pro se, Petitioner appealed to the Ohio Supreme Court. His notice of
appeal, which was not filed within 45 days of the state court of appeals’ order, was
accompanied by a motion for leave to file a delayed direct appeal, which explained that
because he did not speak English and was incarcerated, he was unable to file his notice
of appeal in a timely fashion.

Return, Ex. 14. The Ohio Supreme Court denied that

motion and refused to accept the appeal State v. Cruz-Altunar , 139 Ohio St.3d 1482 (July
23, 2014).

Petitioner had also filed, again without the benefit of counsel, a motion to

vacate his sentence and to void his conviction; it was filed in the trial court on December
20, 2012, and raised an issue about the sufficiency of the indictment. Return of Writ,
Exhibit 9. That motion appears still to be pending in the common pleas court.
On October 9, 2014, Petitioner filed his petition for a writ of habeas corpus with
this court. He asserts the following ground for relief:

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Ground one: The trial court erred in refusing to give an instruction on
voluntary manslaughter when the evidence warranted such an
instruction.
Ground two: Appellant’s convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence.
Ground three: Petitioner was not able to “timely” appeal further, due to
a language barrier, and having no Spanish interpreter to afford him access
to courts from the State.

Respondent has suggested that the statute of limitations was tolled by the filing of the
motion to vacate sentence and conviction, which is still pending, but notes that if the
statute of limitations began to run on the date when Petitioner could have filed a timely
appeal of the state appellate court’s decision, it would have expired prior to the time
this case was filed. However, respondent’s primary argument is that all of the claims
raised by Petitioner have been procedurally defaulted.

Alternatively, Respondent

argues that claims one and two are without merit and that claim three is not cognizable
in habeas corpus.
II. The Facts
The Court begins by reciting the facts as they were set out in the state court of
appeals opinion. That court said:

Appellant was indicted on one count of aggravated murder and two
counts of murder for the death of [Ricardo] Perez. Appellant pleaded not
guilty to the charges, and a jury trial ensued. At trial, Adrian Worthington
testified as follows. On July 24, 2010, appellant and Perez were arguing
and trying to punch each other. The fight lasted for three minutes until
appellant walked away. Appellant returned three to five minutes later,
and he approached Perez with a knife. Perez pulled a knife from his

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pocket, but Worthington took that knife in an attempt to thwart another
fight. Nevertheless, appellant stabbed Perez. Perez fell to the ground and
tried to defend himself by kicking appellant. Appellant stabbed Perez four
more times and fled.
Deputy Coroner Kenneth Gerston testified that Perez died from four of his
stab wounds. Gerston said that the nature of those wounds indicates that
Perez was lying down when he was fatally stabbed and that his assailant
was above him. Gerston also noted that Perez had a “defensive wound”
on his body. (Tr. 369.) Franklin County Sherriff Deputy John Robison
testified that appellant was found hiding in a nearby bush after the
stabbing. Detective William Duffer testified that appellant admitted to
stabbing Perez.
After the prosecution rested its case-in-chief, appellant testified as follows
on his own behalf. On July 24, 2010, appellant was walking toward his
apartment when Perez approached him. Perez wanted some beer that
appellant was carrying. Appellant refused to give up his beer, and Perez
and two other men attacked him. The fight ended and appellant went
home. Appellant later went back outside with a knife, and he saw Perez
again. Appellant waited by a dumpster to see what Perez was going to do.
Perez approached him and threw him to the ground. Next, Perez pulled
out a knife and tried to stab him. Appellant was afraid, and he stabbed
Perez multiple times. Perez “loosened up and let go of his switchblade.”
(Tr. 425.) Appellant stabbed Perez another time and left.
At the close of the evidence, appellant asked for jury instructions on
self-defense and voluntary manslaughter. The trial court gave the
self-defense instruction, but it declined to instruct on voluntary
manslaughter. Afterward, the jury found appellant not guilty of
aggravated murder and guilty of the two murder counts.
State v. Cruz-Altunar, supra, at *1.
III. Legal Standards
A. The AEDPA

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The provisions of the Antiterrorism and Effective Death Penalty Act, Pub.L.
104–132, 110 Stat. 1214 (AEDPA) govern the scope of this Court's review. See Penry v.
Johnson, 532 U.S. 782, 791 (2001); Wilson v. Parker, 515 F.3d 682, 691 (6th Cir.2008).
AEDPA imposes a “highly deferential standard for evaluating state-court rulings,”
Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and “demands that state-court decisions
be given the benefit of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24,(2002) (per
curiam).
When the claims presented in a habeas corpus petition have been presented to
and decided by the state courts, a federal habeas court may not grant relief unless the
state court's decision was contrary to or an unreasonable application of clearly
established federal law, or based on an unreasonable determination of the facts in light
of the evidence that was presented. 28 U.S.C. § 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim(1) resulted in a decision that 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) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding
In applying this statute, the Supreme Court has held that “[t]he focus ... is on whether
the state court's application of clearly established federal law is objectively
unreasonable ... an unreasonable application is different from an incorrect one.” To
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obtain habeas corpus relief, a petitioner must show the state court's decision was “so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Bobby v. Dixon, –––
U.S. ––––, ––––, 132 S.Ct. 26, 27 (2011), quoting Harrington v. Richter, 5 62 U.S. ––––, ––––,
131 S.Ct. 770, 786–8 (2011). This bar is “difficult to meet” because “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.
at 786 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 50 (1979) (Stevens, J., concurring
in judgment)). In short, “[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.” Id., quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004).

B. Procedural Default
Congress has provided that state prisoners who are in custody in violation of the
Constitution or laws or treaties of the United States may apply to the federal courts for a
writ of habeas corpus. 28 U.S.C. §2254(a). In recognition of the equal obligation of the
state courts to protect the constitutional rights of criminal defendants, and in order to
prevent needless friction between the state and federal courts, a state criminal
defendant with federal constitutional claims is required to present those claims to the
state courts for consideration. 28 U.S.C. §2254(b), (c). If he fails to do so, but still has an
avenue open to him by which he may present his claims, then his petition is subject to

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dismissal for failure to exhaust state remedies. Id.; Anderson v. Harless, 459 U.S. 4, 6, 103
(1982 (per curiam) (citing Picard v. Connor, 404 U.S. 270, 275–78 (1971)). Where a
petitioner has failed to exhaust his claims but would find those claims barred if later
presented to the state courts, “there is a procedural default for purposes of federal
habeas....” Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991).
The term “procedural default” has come to describe the situation where a person
convicted of a crime in a state court fails (for whatever reason) to present a particular
claim to the highest court of the State so that the State has a fair chance to correct any
errors made in the course of the trial or the appeal before a federal court intervenes in
the state criminal process. This “requires the petitioner to present ‘the same claim
under the same theory’ to the state courts before raising it on federal habeas review.”
Hicks v. Straub, 377 F.3d 538, 552–53 (6th Cir. 2004) (quoting Pillette v. Foltz, 824 F.2d 494,
497 (6th Cir. 1987)). One of the aspects of “fairly presenting” a claim to the state courts is
that a habeas petitioner must do so in a way that gives the state courts a fair
opportunity to rule on the federal law claims being asserted. That means that if the
claims are not presented to the state courts in the way in which state law requires, and
the state courts therefore do not decide the claims on their merits, neither may a federal
court do so. In the words used by the Supreme Court in Wainwright v. Sykes, 433 U.S. 72,
87 (1977), “contentions of federal law which were not resolved on the merits in the state
proceeding due to respondent's failure to raise them there as required by state
procedure” also cannot be resolved on their merits in a federal habeas case-that is, they
are “procedurally defaulted.”

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In the Sixth Circuit, a four-part analysis must be undertaken when the state
argues that a federal habeas claim is waived by the petitioner's failure to observe a state
procedural rule. Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986). “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.” Id. Second, the Court must
determine whether the state courts actually enforced the state procedural sanction. Id.
Third, it must be decided whether the state procedural forfeiture is an adequate and
independent state ground upon which the state can rely to foreclose review of a federal
constitutional claim. Id. Finally, if the Court has determined 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 that there was cause for him not to follow
the procedural rule, and that he was actually prejudiced by the alleged constitutional
error. Id. This “cause and prejudice” analysis applies to failures to raise or preserve
issues for review at the appellate level. Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985).
Turning to the fourth part of the Maupin analysis, in order to establish cause, petitioner
must show that “some objective factor external to the defense impeded counsel's efforts
to comply with the State's procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986).
Constitutionally ineffective counsel may constitute cause to excuse a procedural default.
Edwards v. Carpenter, 529 U.S. 446, 453 (2000). In order to constitute cause, an ineffective
assistance of counsel claim generally must “ ‘be presented to the state courts as an
independent claim before it may be used to establish cause for a procedural default.’ ”
Edwards, 529 U.S. at 452 (quoting Murray v. Carrier, 477 U.S. 478, 479 (1986)). That is

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because, before counsel's ineffectiveness will constitute cause, “that ineffectiveness
must itself amount to a violation of the Sixth Amendment, and therefore must be both
exhausted and not procedurally defaulted.” Burroughs v. Makowski, 411 F.3d 665, 668
(6th Cir. 2005). Or, if procedurally defaulted, petitioner must be able to “satisfy the
‘cause and prejudice’ standard with respect to the ineffective-assistance claim itself.”
Edwards v. Carpenter, 529 U.S. 446, 450–51 (2000). The Supreme Court explained the
importance of this requirement:
We recognized the inseparability of the exhaustion rule and
the procedural-default doctrine in Coleman: “In the absence
of the independent and adequate state ground doctrine in
federal habeas, habeas petitioners would be able to avoid the
exhaustion requirement by defaulting their federal claims in
state court. The independent and adequate state ground
doctrine ensures that the States' interest in correcting their
own mistakes is respected in all federal habeas cases.” 501
U.S., at 732, 111 S.Ct. 2546, 115 L.Ed.2d 640. We again
considered the interplay between exhaustion and procedural
default last Term in O'Sullivan v. Boerckel, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (1999), concluding that the latter
doctrine was necessary to “ ‘protect the integrity’ of the
federal exhaustion rule.” Id., at 848, 526 U.S. 838, 119 S.Ct.
1728, 144 L.Ed.2d 1 (quoting id., at 853, 526 U.S. 838, 119
S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J., dissenting)). The
purposes of the exhaustion requirement, we said, would be
utterly defeated if the prisoner were able to obtain federal
habeas review simply by “ ‘letting the time run’ ” so that
state remedies were no longer available. Id., at 848, 526 U.S.
838, 119 S.Ct. 1728, 144 L.Ed.2d 1. Those purposes would be
no less frustrated were we to allow federal review to a
prisoner who had presented his claim to the state court, but
in such a manner that the state court could not, consistent
with its own procedural rules, have entertained it. In such
circumstances, though the prisoner would have “concededly
exhausted his state remedies,” it could hardly be said that, as
comity and federalism require, the State had been given a
“fair ‘opportunity to pass upon [his claims].’ ” Id., at 854, 526

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U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (STEVENS, J.,
dissenting) (emphasis added) (quoting Darr v. Burford, 339
U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950)).
Edwards, 529 U.S. at 452–53.
If, after considering all four factors of the Maupin test, the court concludes that a
procedural default occurred, it must not consider the procedurally defaulted claim on
the merits unless “review is needed to prevent a fundamental miscarriage of justice,
such as when the petitioner submits new evidence showing that a constitutional
violation has probably resulted in a conviction of one who is actually innocent.” Hodges
v. Colson, 727 F.3d 517, 530 (6th Cir. 2013) (citing Murray v. Carrier, 477 U.S. 478, 495–96
(1986)).
III. Discussion
It is clear that Petitioner did not file a timely appeal to the Ohio Supreme Court.
That is ordinarily a procedural default, and Petitioner does not contend otherwise.
However, he argues that the language barrier he faces, coupled with the State’s refusal
to provide adequate translation services to inmates who do not speak English, excuses
any procedural default he may have committed. Respondent, relying on the Court of
Appeals’ decision in Bonilla v. Hurley, 370 F.3d 494 (6th Cir. 2004), argues that
“unfamiliarity with the English language is not cause to excuse the procedural default.”
Return, at 13.
The facts presented in Bonilla are these.

Bonilla was convicted of multiple

felonies in an Ohio court and those convictions were affirmed on appeal. He moved for
leave to file a delayed appeal to the Ohio Supreme Court; that motion was denied. He

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had raised multiple reasons why that court should have accepted his delayed appeal,
including his lack of familiarity with English, but the Ohio Supreme Court rejected his
arguments. In affirming the denial of his federal habeas corpus petition, the Court of
Appeals held, first, that the Ohio Supreme Court’s refusal to entertain a delayed direct
appeal supported a finding of procedural default. It then concluded that he had not
established cause to excuse that default, holding that Bonilla’s pro se status, his
ignorance of the law, his mistaken belief that he needed a complete copy of his trial
transcript before filing his notice of appeal, his limited law library time, and his lack of
familiarity with the English language, were not valid excuses. In particular, it held that
language difficulties are not a factor “external” to the defense under Murray v. Carrier,
supra.

See Bonilla, 370 F.3d at 498.

Other federal courts have reached a similar

conclusion. See, e.g., Promotor v. Pollard, 628 F.3d 878, 887 (7th Cir. 2010); Vazquez v.
Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988); Sanchez v. Hetzel, 2014 WL 1491178, *4 (M.D.
Ala. 2014)(collecting cases). Consequently, due to Petitioner’s failure to file a timely
appeal with the Ohio Supreme Court, his claims have been procedurally defaulted. His
claim that the state courts prevented him from taking a timely appeal, to the extent that
it represents an independent ground for relief, fails for the same reason.
Even if that were not the case, the two claims which Petitioner raised in the state
courts would not succeed here. As to the sufficiency of the evidence, this Court is
required, first, to give deference to the jury’s finding that the evidence supported
conviction beyond a reasonable doubt, see Jackson v. Virginia, 443 U.S. 307, 319 (1979),
construing the evidence in the light most favorable to the prosecution. This is a hard

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standard for a habeas petitioner to overcome. But a federal court, considering a habeas
petition arising out of a state conviction, is also required to apply the deferential
standard of the AEDPA to its review of the state court’s decision on this subject. That
is, the federal court “must still defer to the state appellate court’s sufficiency
determination as long as it is not unreasonable” - creating, in effect, two layers of
deference to the state courts’ decisions. See Brown v. Konteh, 567 F.3d 191, 205 (6th Cir.
2009).
Here, the jury found the evidence sufficient to support a conviction for murder.
There was no dispute that Petitioner wielded the knife which killed Ricardo Perez. He
claimed self-defense. However, as the state court of appeals noted, “the jury was able
to conclude that appellant lied when he testified that he killed Perez out of fear for his
life. For instance, corroborating testimony from Worthington and Gerston [two other
witnesses] indicates that Perez was on the ground trying to defend himself when
appellant leaned over him and fatally stabbed him. In addition, Worthington testified
that Perez was unarmed during the conflict.” State v. Cruz-Altunar, supra, at *3. That
evidence is sufficient to sustain a murder conviction, and the state court’s finding to that
effect was not unreasonable.
The only other substantive issue which Petitioner has presented relates to the
trial court’s refusal to give a jury instruction on voluntary manslaughter. The state
court rejected that argument because, under Ohio law, voluntary manslaughter is
defined as a killing which occurs while the perpetrator is under the influence of sudden
passion or a sudden fit of rage. That court concluded that because the evidence showed

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that Petitioner “had sufficient time to calm down after [the first] fight” before he
returned with a knife and the second fight - the one in which Perez was killed - took
place. Id. at *2.
In McMullan v. Booker, 761 F.3d 662, 667 (6th Cir. 2014), the Court of Appeals had
this to say about such a claim, when presented in federal habeas corpus:
Federal courts may grant habeas relief only on the basis of federal
law that has been clearly established by the Supreme Court. § 2254(d)(1).
The Supreme Court, however, has never held that the Due Process Clause
requires instructing the jury on a lesser included offense in a non-capital
case. See Beck [v. Alabama], 447 U.S. [625] at 638 n. 14, 100 S.Ct. 2382
[1980)]. Simply put, “the Constitution does not require a lesser-included
offense instruction in non-capital cases.” Campbell v. Coyle, 260 F.3d 531,
541 (6th Cir.2001) (citing Bagby v. Sowders, 894 F.2d 792, 795–97 (6th
Cir.1990) (en banc)). What is determinative, at any rate, is that the
Supreme Court has never so held.
That being so, the state court’s failure, in Petitioner’s case, to give a lesserincluded offense instruction cannot have been a violation of clearly-established federal
law. So, too, the state court of appeals’ decision cannot have been contrary to, or an
unreasonable application of, clearly established federal law. Thus, Petitioner would not
be entitled to relief on this claim even if it had not been procedurally defaulted.
IV. Recommendation
For all of the reasons stated above, it is recommended that the petition for a writ
of habeas corpus be DENIED and this action be DISMISSED.
V. Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days of the date of this report, file and serve on all parties written

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objections to those specific proposed findings or recommendations to which objection is
made, together with supporting authority for the objection(s). A judge of this Court
shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made. Upon proper
objections, a judge of this Court may accept, reject, or modify, in whole or in part, the
findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a waiver of the right to appeal
the decision of the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981).
The parties are further advised that, if they intend to file an appeal of any
adverse decision, they may submit arguments in any objections filed, regarding
whether a certificate of appealability should issue.

/s/ Terence P. Kemp
United States Magistrate Judge

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