Montelongo-Rangel v. Warden, Noble Correctional Institution

Filing 29

ORDER denying 22 Motion to Alter Judgment; adopting Report and Recommendations re 23 Report and Recommendations; overruling Petitioner's Objections. Signed by Chief Judge Algenon L. Marbley on 11/17/2021. (cw)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

Case: 2:20-cv-05463-ALM-MRM Doc #: 29 Filed: 11/17/21 Page: 1 of 5 PAGEID #: 445

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOSUE MONTELONGO-RANGEL,
Petitioner,
Case No. 2:20-cv-5463
Chief Judge ALGENON L. MARBLEY
Magistrate Judge Michael R. Merz

v.
JAY FORSHEY, Warden, Noble
Correctional Institution,
Respondent.

ORDER ON REPORT AND RECOMMENDATIONS  
This 28 U.S.C. § 2254 case is before the Court on Petitioner Josue Montelongo-Rangel’s
Motion to Alter or Amend Judgment pursuant to Fed.R.Civ.P. 59(e) (ECF No. 22.) On September
16, 2021, the Magistrate Judge issued a Report and Recommendations recommending that the
Motion be denied (ECF No. 23.) On October 8, 2021, Petitioner filed Objections (ECF No. 28,
PageID 443.) For the reasons below, the Court ADOPTS the Report and Recommendation,
OVERRULES Petitioner’s Objections thereto, and DENIES the Motion.

I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Substituted Report and Recommendations on the Petition’s merits (ECF No. 16,

PageID 385-86) sets forth the factual background and procedural history to that point; the Court
incorporates that discussion by reference. On August 17, 2021, the Court adopted the Substituted
Report, dismissed with prejudice the Petition, entered judgment, and closed the case (Opinion and
Order, ECF No. 20; Judgment, ECF No. 21.) On September 11, 2021, Petitioner filed the Motion
to Alter or Amend. Therein, he argued that “the [Chief] District Judge’s determination of the facts

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was unreasonable as his/her findings conflict with clear and convincing evidence to the contrary.”
(Motion, ECF No. 22, PageID 424.) Specifically, contrary to the Magistrate Judge’s conclusion
adopted by the Chief Judge, the Tenth District never held that the ineffective assistance claim must
have been presented on direct appeal—that state court held it could have also been raised on prior
motion. (Id. (citation omitted).) Further evidence of this Court’s error was shown by a recent
opinion by District Judge Michael H. Watson in a companion case, in which Judge Watson held
that “‘Petitioner. . . could not have raised on direct appeal the underlying deficiencies in the
searches’, and thus the evidentiary support for his claim as to why counsel was ineffective was not
in the appellate record.” (Id. at PageID 425, quoting Jones v. Warden, No. 2:20-cv-5504, Opinion
and Order, ECF No. 25, PageID 483.)
Also, Petitioner argued that because he brought his pro se ineffective assistance of trial
counsel claim properly in his state postconviction petition, any procedural default can be excused
(Motion, ECF No. 22, PageID 425-26, quoting Montelongo-Rangel v. Warden, 2021 U.S. Dist.
LEXIS 106969, at *9-10 (S.D. Ohio Jun. 7, 2021) (Merz, Mag. J.); citing Trevino v. Thaler. 569
U.S. 413 (2013); Martinez v. Ryan, 566 U.S. 1 (2012); White v. Warden, Ross Corr. Inst., 940 F.3d
270 (6th Cir. 2019).) Finally, Petitioner claimed that
There is nothing in the record for this court to even draw an inference that at the
time he pleaded guilty, Montelongo-Rangel knew of the underlying deficiencies in
the searches under which the evidence against him had been obtained, much less
his trial counsel. Montelongo-Rangel’s trial counsel did not file a motion to
suppress. This constitutes an argument that the guilty plea was not knowing
intelligent, and voluntary.
(Id. at PageID 426.)
The Magistrate Judge rejected these arguments. First, he noted, as did the Tenth District
Court of Appeals, that res judicata operated as a bar to an issue that could have been raised on
direct appeal or in a prior motion, and thus, this Court finding that res judicata foreclosed his
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ineffective assistance of counsel claim was proper (Report, ECF No. 23, PageID 431-33, quoting
Opinion, ECF No. 20, PageID 418; Motion, ECF No. 22, PageID 424; State v. Montelongo-Rangel,
10th Dist. Franklin No. 20AP-302, 2020-Ohio-5527, ¶ 14 (Dec. 3, 2020).) Further:
The Opinion adopted the Magistrate Judge’s finding that all of the documents on
which Petitioner eventually relied for his ineffective assistance of trial counsel
claim could have been in the record on direct appeal because they were in the trial
court record. If Petitioner had timely appealed, his appointed appellate attorney
could have included those documents in support of an assignment of error that he
had received ineffective assistance of trial counsel when his trial attorney failed to
file a motion to suppress.
(Id. at PageID 433.) By failing to timely appeal, Petitioner lost the opportunity to have courtappointed counsel review the documents to raise a Sixth Amendment ineffective assistance of
counsel claim based on failing to move to suppress and the supposed underlying deficiencies of
the warrants. (Id. at PageID 434.) Finally, the reason Petitioner’s Fourth Amendment claims were
not examined is because failure to file a motion to suppress procedurally defaulted any such claim.
(Id.)

II.

LEGAL STANDARD
“A magistrate judge must promptly conduct the required proceedings when assigned,

without the parties’ consent, to hear a pretrial matter dispositive of a claim or defense . . . The
magistrate judge must enter a recommended disposition[.]” Fed.R.Civ.P. 72(b)(1). “[A] party
may serve and file specific written objections to the proposed findings and recommendations.”
Fed.R.Civ.P. 72(b)(2). “The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

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For a district court to grant relief under Fed.R.Civ.P. 59(e), “there must be ‘(1) a clear
error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4)
a need to prevent manifest injustice.’” Betts v. Costco Wholesale Corp., 558 F.3d 461, 474 (6th
Cir. 2009); Henderson v. Walled Lake Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006). A Rule
59(e) motion is not an opportunity to relitigate a case. “Thus, parties should not use them to
raise arguments which could and should have been made before judgment issued.” Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (citation omitted).

III.

ANALYSIS
Petitioner argues that the Magistrate Judge clearly erred in concluding that all the

documents on which Petitioner relied for his ineffective assistance of trial counsel claim were in
the trial record and thus were available to him on direct appeal (Objections, ECF No. 28, PageID
441, quoting Report, ECF No. 23, PageID 433.) He claims that there is no evidence of record to
support this assertion, and that 28 U.S.C. § 2254 does not allow for this assertion to be treated as
fact. (Id.) This is merely a rehashing of his argument that was rejected by this Court (Order,
ECF No. 20, PageID 418-19), and Petitioner has not shown that that decision was clearly
erroneous. Accordingly, Petitioner’s Objection is overruled.
Also, Petitioner claims that he has consistently argued that he could not support his
ineffective assistance of trial counsel claim with the necessary documentation from the trial
record alone (Objections, ECF No. 28, PageID 442). Petitioner does not explain why this was
not possible, and indeed, Petitioner’s own listing of the supposed deficiencies in the search
warrants (which allegedly prompted the duty to file the motion to suppress) (Motion, ECF No.
22, PageID 427) show that they were or reasonably should have been apparent from the trial

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record. As the ineffective assistance claim could have been raised on direct appeal, Petitioner
cannot avail himself of the Martinez-Trevino exception for failure to raise the ineffective
assistance of counsel claim in postconviction. Petitioner’s Objection is overruled.

IV.

DISPOSITION
For the foregoing reasons, the Report is ADOPTED, Petitioner’s Objections are

OVERRULED, and the Motion is DENIED. Because reasonable jurists would not disagree
with this conclusion, the Court certifies that any appeal would not be taken in good faith, and
Petitioner should not be permitted to proceed in forma pauperis.
IT IS SO ORDERED

Date: November 17, 2021

______________________________________
ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE

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