Subdiaz-Osorio v. Clements

Filing 22

ORDER DISMISSING CASE signed by Judge Pamela Pepper on 6/22/2017. 1 Petitioner's petition for writ of habeas corpus (2254) DENIED. The court declines to issue a certificate of appealability. (cc: all counsel, via mail to Nicolas Subdiaz-Osorio at Kettle Moraine Correctional Institution)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
NICOLAS SUBDIAZ-OSORIO,

Case No. 14-CV-1227-PP

Petitioner,
v.
MARC CLEMENTS,
Respondent.
DECISION AND ORDER DENYING PETITION
FOR WRIT OF HABEAS CORPUS (DKT. NO. 1)
Petitioner Nicolas Subdiaz-Osorio filed a petition for a writ of habeas
corpus under 28 U.S.C. §2254, seeking relief from the sentence he received
after his 2010 plea to and conviction for first-degree reckless homicide. Dkt.
No. 1. The petitioner alleges that investigating officers violated his Fourth
Amendment rights by tracking his cell phone without a warrant, id. at 6, and
that the Wisconsin Supreme Court erred in concluding that exigent
circumstances provided an exception to the warrant requirement, id. at 9.1 He
also alleges that his Fifth Amendment rights were violated when he was
questioned without an attorney present. Id. at 14. Finally, he argues that the
Wisconsin Court of Appeals’ harmless error analysis was contrary to federal
law. Id. at 17. The court denies the petition.
The petitioner stated this argument as two grounds—whether the officers
conducted a search without a warrant, and whether there were exigent
circumstances that would justify making an exception to the warrant
requirement.
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I.

FACTUAL BACKGROUND
On February 7, 2009, the petitioner and his brother got into an

argument in the mobile home they shared, and Marcos hit the petitioner in the
mouth. Dkt. No. 1 at 7; Dkt. No. 18 at 3. The petitioner then retrieved two
knives from the closet and stabbed Marcos with the knives – once in the chest
and once under the eye. Id. Marcos fell to the floor, where the petitioner kicked
and punched him multiple times, despite the pleas of eyewitness Lanita Mintz.
Dkt. No. 18 at 3. The next morning, a friend of the petitioner returned to the
mobile home and found Marcos dead. Id. The police went to the mobile home
later that day; they found that Marcos’ body was “severely battered and
appeared to have been stabbed,” surrounded by blood and evidence of heavy
drinking. Id.
In the meantime, the petitioner had borrowed his girlfriend’s car and left
the state. Dkt. No. 1 at 7; Dkt. No. 11-2 at 2. The police suspected that the
petitioner might be on his way to Mexico, given that he was in the country
illegally. Dkt. No. 11-2 at 2. Without getting a warrant, they asked the
petitioner’s cell phone service provider to track the location of the petitioner’s
phone. Id. The officers tracked the petitioner to a highway in Arkansas, where
they arrested him. Id. Several police officers traveled to Arkansas to interrogate
the petitioner. Id. An officer named Torres translated the interrogation into
Spanish. Id. at 16. Torres read the petitioner his Miranda2 warnings in
Spanish, and had him sign a waiver form titled “Waiver of Constitutional

2

Miranda v. Arizona, 384 U.S. 436 (1966).
2

Rights.” Id. During the interrogation, the petitioner asked if the officer was
going to take him back to Kenosha. Id. The following dialogue ensued:
We aren’t going to take you back to Kenosha. What
happens is that you have to appear in front of a judge
… And after you appear in front of a judge here in
Arkansas then they will find out if there is enough
reason to send you back to Kenosha, … but we are not
going to do that right now. We are not going to know
that right now . . . .
Id. at 16-17. The petitioner then asked, “How can I do to get an attorney here
because I don’t have enough to afford for one.”3 Id. at 17. The officer
responded, “If you need an attorney . . . by the time you’re going to appear in
the court, the state of Arkansas will get an attorney for you . . . .” Id. at 17. The
interrogation then continued. Id.
II.

PROCEDURAL HISTORY
The state charged the petitioner with first-degree intentional homicide for

stabbing his brother, Marcos, to death on February 8, 2009. Dkt. No. 18 at 2. A
couple of months later, the petitioner filed a pretrial motion “to suppress all
statements and evidence that the police obtained after his arrest.” Dkt. No. 112 at 18-19. He argued that the police had violated his Fourth Amendment
rights by obtaining his cell phone location data without a warrant. Id. at 19.
Two weeks later, he filed another suppression motion, seeking to suppress the
statements he made during the interrogation in Arkansas on the ground that
Torres had not properly warned him of his Miranda rights. Id. The trial court
During the hearing, the interpreter later clarified that the petitioner said “And
to get an attorney and to get an attorney of –from here because I don’t have
enough to pay, or I don’t have to pay.” Dkt. No. 11-4 at 68-69.
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denied both motions. Id. at 19-20. The court that ruled there was no violation
of either the Fourth or Fifth Amendments. Id.
The state reduced the charge to first-degree reckless homicide by use of a
dangerous weapon. Id. at 20. The petitioner pled guilty to that charge. Id. On
June 29, 2010, the Circuit Court of Kenosha County entered a judgment of
conviction against the petitioner, and sentenced him to twenty years of
confinement, followed by fifteen years of extended supervision Dkt. No. 11-1 at
1.
The petitioner appealed under Wis. Stat. §971.31(10), challenging the
order denying his suppression motions. Dkt. No. 11-7. The Wisconsin Court of
Appeals affirmed the trial court’s judgment in a per curiam decision issued on
November 15, 2012, State v Subdiaz-Osorio, No. 2010AP3016-CR (Wis. Ct.
App. Nov. 15, 2012). Id. The court of appeals assumed for the purposes of its
decision that the trial court should have suppressed the evidence, and focused
its analysis on whether the failure to do so constituted harmless error. Id. at 2.
The court concluded that the petitioner “would have accepted the same plea
deal even if the suppression motion had been granted,” and thus that the trial
court’s failure to grant the suppression motions constituted harmless error. Id.
at 5.
The Wisconsin Supreme Court granted review. State v. Subdiaz-Osorio,
849 N.W.2d 748 (Wis. 2014); Dkt. No. 11-2. The Court affirmed the court of
appeals, but in a somewhat fractured decision. Dkt. No. 11-2. Justice Prosser
wrote the majority opinion; five justices concurred in the mandate. Id. at 4.
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Unlike the court of appeals, Justice Prosser analyzed in depth the question of
whether officers violated the petitioner’s Fourth Amendment rights by obtaining
his cell location data without a warrant. He concluded that even if the
petitioner had possessed a reasonable expectation of privacy in his cell location
data, and even if the act of obtaining the data constituted a search, the search
would have fallen into the exigent circumstances exception to the warrant
requirement. Dkt. No. 11-2 at 41-42. He also analyzed the petitioner’s
argument that the interviewing officers violated his Fifth Amendment right
against self-incrimination when they did not stop the interrogation and provide
him a lawyer once he asked about how to hire one. Justice Prosser concluded
that the petitioner did not unequivocally assert his Sixth Amendment right to
counsel when he asked about a lawyer. Id. at 52.
Justice Bradley concluded that obtaining the petitioner’s cell location
data constituted a warrantless search, not justified by exigent circumstances.
She also concluded that the petitioner had invoked his Sixth Amendment right
to counsel by asking about how to get a lawyer. But she found that these errors
were harmless, and so concurred in the mandate. Id. at 54. Justice Crooks also
found that obtaining the cell location data constituted a search, but stated that
he would not apply the exclusionary rule because of the good-faith exception to
the warrant requirement. Id. at 62. He agreed that the petitioner had not
unequivocally invoked his Sixth Amendment right to counsel, and so concurred
in the mandate. Id.

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Justice Roggensack also held that obtaining the petitioner’s cell location
data constituted a search, but agreed with Justice Prosser that the search fell
within the exigent circumstances exception. She also agreed that the petitioner
did not unequivocally invoke his Sixth Amendment rights. Thus, she concurred
in the mandate. Id. at 75. Justices Ziegler and Gableman joined Justice
Roggensack’s opinion, although Justice Ziegler wrote separately to comment on
the possible impact of a recently-decided Supreme Court case, Riley v.
California, ___ U.S. ___, 134 S. Ct. 2473 (2014). Id. at 80. Chief Justice
Abrahamson dissented. Id. at 83.
The petitioner filed a petition for a writ of certiorari to the United States
Supreme Court, which that Court denied on October 14, 2014. Dkt. No. 3.
The petitioner filed his petition before this court on October 2, 2014. Dkt.
No. 1. (He asked the then-assigned judge to stay this federal proceeding until
the U.S. Supreme Court could rule on his petition for certiorari, dkt. no. 2; the
court granted that request and dismissed the case without prejudice, dkt. no.
5, then reopened the case once the petitioner notified the court that the
Supreme Court had denied the writ, dkt. no. 8.).
III.

LEGAL STANDARD
To prevail on a petition for a writ of habeas corpus, the petitioner must

show that he is in custody in violation of the constitution or laws or treaties of
the United States. 28 U.S.C. §2254(d). If the state appellate court ruled on the
merits of his claims, the petitioner must go a step further and show that his
detention is the result of a state court decision that was (a) contrary to, or
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involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States or (b) based on an
unreasonable determination of the facts in light of the evidence presented in
the state court proceeding. Id.; see Gonzales v. Mize, 565 F.3d 373, 379 (7th
Cir. 2009) (“We review the decision of the last state court that substantively
adjudicated each claim.”). This standard is highly deferential to state courts.
Carter v. Tegels, No. 3:11-cv-00320-wmc, 2013 WL 5570294, *2 (W.D. Wis.
Oct. 9, 2013) (citing Harrington v. Richter, 562 U.S. 86, 101 (2011)). The state
appellate court’s ruling must be “objectively unreasonable, not merely wrong;
even clear error will not suffice.” White v. Woodall, ___ U.S. ___, 134 S. Ct.
1697, 1702 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003)(internal quotations omitted)). The ruling must have been “so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington,
562 U.S. at 103.
Generally, though, a federal habeas court does not reexamine state-court
determinations on state law questions. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); see Ruhl v. Hardy, 743 F.3d 1083, 1098 (7th Cir. 2014) (citations
omitted) (noting as a general rule, federal habeas courts cannot overturn
evidentiary determinations made by state courts). But, “where the state court’s
resolution of the evidentiary dispute was clearly unreasonable or otherwise
implicates federal constitutional rights, a court may grant relief on state law
evidentiary questions.” Id.
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IV.

ARGUMENTS
In his brief, the petitioner first argues that the investigating officers

violated his Fourth Amendment rights by obtaining his cell location data
without a warrant. Dkt. No. 17 at 11. He states that he believes that if the
United States Supreme Court were to address this specific issue, it would “hold
that the tracking of [the petitioner’s] location by his cell phone (GPS) was a
search under the Fourth Amendment,” for which the officers would have had to
obtain a warrant. Id. at 13. He argues that the Wisconsin Supreme Court erred
in finding that there were exigent circumstances which justified the officers
searching without a warrant. Id.
Next, he argues that he invoked his Sixth Amendment right to counsel
during the interrogation in Arkansas. Id. at 16. He disagrees with Justice
Prosser’s conclusion that he did not unequivocally invoke that right, id. at 17,
and argues that he wanted to have an attorney with him during that
interrogation, id. at 18.
Finally, the petitioner argues—for the first time in his brief—that he did
not enter his guilty plea knowingly, voluntarily and intelligently. Id. at 18. He
appears to make this argument in response to Justice Bradley’s conclusion
that the warrantless search and the interrogation constituted harmless error.
Id. at 18-19.
The respondent asks the court to deny the petition because (1) Stone v.
Powell, 428 U.S. 465 (1976) bars review of Fourth Amendment challenges
where the petitioner was provided a full and fair opportunity to litigate the
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Fourth Amendment claims in state court, and (2) the Wisconsin courts did not
act contrary to, or unreasonably apply, Miranda v. Arizona, 384 U.S. 436
(1966), and Davis v. United States, 512 U.S. 452 (1994). Dkt. No. 18 at 1-2.
V.

ANALYSIS
A.

The Petitioner’s Fourth Amendment Claim Is Not Cognizable on
Habeas Review.

“[A] petitioner cannot obtain collateral relief on a Fourth Amendment
claim unless the state courts deprived him of a full and fair opportunity to
litigate the claim.” Watson v. Hulick, 481 F.3d 537, 541 (7th Cir. 2007) (citing
Stone v. Powell, 428 U.S. 465, 481-82 (1976)). The Seventh Circuit has held
that
[a] petitioner has had the benefit of such an opportunity so long
as (1) he clearly apprised the state court of his Fourth
Amendment claim along with the factual basis for that claim, (2)
the state court carefully and thoroughly analyzed the facts, and
(3) the court applied the proper constitutional case law to those
facts.
Miranda v. Leibach, 394 F.3d 984, 997 (7th Cir. 2005) (citing Pierson v.
O’Leary, 959 F.2d 1385, 1391 (7th Cir. 1992)). The courts’ role is “not to
second-guess the state court on the merits of the petitioner’s claim, but rather
to assure [themselves] that the state court heard the claim, looked to the right
body of case law, and rendered an intellectually honest decision.” Monroe v.
Davis, 712 F.3d 1106, 1114 (7th Cir. 2013). “It takes more than an error in the
state court’s analysis to surmount the Stone bar to collateral relief . . . .” Id.
(citing Hampton v. Wyant, 296 F.3d 560, 563-64 (7th Cir. 2002); Leibach, 394
F.3d at 998). Only if the error “betray[s] an unwillingness on the part of the
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[state] judiciary to treat [the petitioner’s] claim honestly and fairly” will an error
provide a basis for a merits review of a Fourth Amendment claim. Id.
The record demonstrates that the petitioner clearly apprised the state
courts at all three levels of his Fourth Amendment claim and the facts that
supported it. The record also shows that the state courts—particularly the
Wisconsin Supreme Court—carefully and thoroughly analyzed the facts, and
looked to the correct body of case law. Indeed, a decision in which six of the
seven Wisconsin Supreme Court justice wrote separate opinions, and each
went to lengths to explain the bases for his or her particular conclusions,
shows the opposite of an “unwillingness on the part of the [state] judiciary to
treat [the petitioner’s] claim honestly and fairly.” The Supreme Court’s decision
is evidence that all of the justices struggled to apply what each believed to be
the correct law to the facts of the petitioner’s case.
The petitioner argues that the Supreme Court “erred in their finding of
facts that qualified for the exigent circumstances exception to the warrant
requirement.” Dkt. No. 17 at 13. Even if the petitioner is right, that is not
enough to surmount the Stone bar. The petitioner also argues that the majority
decision “is in conflict with decisions in the U.S. Supreme court.” Id. In support
of this argument, he cites Missouri v. McNeely, ___ U.S. ___, 133 S. Ct. 1552
(2013). In McNeely, the Supreme Court held that the fact that alcohol may be
metabolizing in a defendant’s bloodstream does not constitute an exigent
circumstance that allows law enforcement to conduct nonconsensual blood
testing in drunk driving cases. The court found that, “while the natural
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dissipation of alcohol in the blood may support a finding of exigency in a
specific case . . ., it does not do so categorically.” Id. at 1563. The Supreme
Court found that courts needed to determine whether a nonconsensual,
warrantless blood test was reasonable on a case-by-case basis. Id.
In contrast, Justice Prosser evaluated the specific facts of the petitioner’s
case in determining that there were exigent circumstances present. He first
concluded that the officers had probable cause to track the cell phone, because
it was likely that they would find evidence related to the stabbing wherever the
petitioner’s cell phone was. Dkt. No. 11-2 at 44. He then found that there were
three different exigent circumstances—a threat to safety (the police were aware
that the petitioner had stabbed the victim, and the murder weapon was
missing); a risk of destruction of evidence (loss of the murder weapon, as well
as DNA and other evidence the petitioner might have on his person); and a
likelihood that the petitioner would flee (the petitioner had taken his girlfriend’s
car and left, and there was some evidence to support a conclusion that the
petitioner might be headed to Mexico). Id. at 45-50. The court cannot see any
conflict between the Supreme Court’s analysis in McNeely and Justice Prosser’s
careful, fact-specific analysis in the petitioner’s case.
The petitioner disagrees with Justice Prosser’s analysis, but again, that
is not enough to surmount the Stone bar. The petitioner had a full and fair
opportunity to litigate his Fourth Amendment issue before three levels of the
Wisconsin courts, and he did so. It is not this court’s role to second-guess the
Wisconsin Supreme Court’s decision, as long as it looked to the right body of
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case law and rendered and intellectually honest decision. The Supreme Court’s
thorough, reasoned analyses—the lead decision, and the various decisions
joining the mandate—make clear that the Supreme Court did just that. The
petitioner is not entitled to habeas relief on his Fourth Amendment claim.
B.

The Wisconsin State Court Did Not Unreasonably Apply Federal
Law to the Petitioner’s Fifth Amendment Claim.

In Miranda v. Arizona, the United States Supreme Court held that law
enforcement officer who are holding an individual for interrogation must clearly
inform that individual “that he has the right to consult with a lawyer and to
have the lawyer with him during interrogation . . . .” Miranda, 384 U.S. at 471.
The Court further held that if the individual “indicates that he wishes the
assistance of counsel before any interrogation occurs,” law enforcement
“cannot rationally ignore or deny his request on the basis that the individual
does not have or cannot afford a retained attorney.” Id. Finally, the Court held
that “[i]f the individual states that he wants an attorney, the interrogation must
cease until an attorney is present.” Id. at 474.
Individuals are not always clear in expressing their desire to have an
attorney represent them. The Supreme Court has held that “if a suspect makes
a reference to an attorney that is ambiguous or equivocal in that a reasonable
officer in light of the circumstances would have understood only that the
suspect might be invoking the right to counsel, [the Court’s] precedents do not
require the cessation of questioning.” Davis. v. United States, 512 U.S. 452,
459 (1994). Following this reasoning, the Wisconsin Supreme Court held in
State v. Jennings, 252 Wis. 2d 228, 246 (2002) that a defendant who stated, “I
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think maybe I need to talk to a lawyer,” did not make it clear that he was
asking to have a lawyer present during the interrogation.
In the petitioner’s case, the Wisconsin Supreme Court found that the
petitioner’s questions about how to get a lawyer here did not constitute an
unequivocal invocation of his right to counsel. The main opinion reviewed the
petitioner’s statements in the context of the topic the interrogating officers were
discussing with him, and found that the officer reasonably could have
concluded that the petitioner was not invoking his right to counsel because his
question arose in the context of the officer’s discussion of the extradition
process. Dkt. No. 11-2 at 50-52. In other words, Justice Prosser found it
reasonable that the officer could have understood the petitioner to be asking
how to get a lawyer to represent him during the extradition process. Id. at 52.
Justices Crooks, Roggensack, Ziegler and Gableman agreed. Justices Bradley
and Abrahamson disagreed.
The fact that two of the seven justices disagreed with the majority (and
that the petitioner also disagrees) does not mandate the conclusion that the
majority’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.” Harrington, 562 U.S. at 103. It was not
unreasonable for the majority to conclude that the petitioner’s question—“How
can I do to get an attorney here because I don’t have enough to afford for
one”—was just as equivocal as the Davis defendant’s statement that he thought
maybe he needed an attorney. In light of Davis and Jennings, this court cannot
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conclude that the majority unreasonably applied clearly-established federal
law, or that it made an unreasonable determination of the facts given the
evidence. The petitioner is not entitled to habeas relief on his Fifth Amendment
claim.
C.

The Court Need Not Reach the Question of Harmless Error.

In the petition, the petitioner argued that the Court of Appeals’ harmless
error analysis was contrary to federal law. Dkt. No. 1 at 17. The petitioner did
not discuss this argument in his brief in support of the petition, and the court
does not need to address it. The Wisconsin Supreme Court’s decision—which
was not based on a harmless error analysis4—is the controlling decision which
the petitioner challenges. Even if the Court of Appeals erred in applying the
harmless error doctrine, the Wisconsin Supreme Court’s decision rendered any
such error irrelevant.
D.

If the Petitioner Seeks to Challenge the Voluntariness of His Plea,
He Has Not Exhausted His Remedies.

The court has ruled on the grounds the petitioner raised in his October
2, 2014 habeas petition. In his January 21, 2015 brief in support of the
petition, however, the petitioner argued that he did not enter his plea
knowingly, voluntarily and intelligently. Dkt. No. 17 at 14. In her decision
joining the mandate, Justice Bradley concluded that even had the trial court
granted the petitioner’s suppression motions, he likely would have pled guilty
to the reduced charge given the weight of the other evidence against him. The
Justice Bradley based her decision to join the mandate on a harmless error
analysis. But Justice Prosser, who wrote the lead decision, did not.
4

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petitioner seizes on this reasoning—reasoning from one of the six justices who
joined the mandate—as an opportunity to argue that the other evidence against
him was not that strong, and that he would not have pled guilty had the trial
court granted the motions to suppress.
The petitioner did not raise this argument before any of the state courts.
The Supreme Court long has held that a federal court should not consider a
claim in a habeas petition if the petitioner did not give the state courts an
opportunity to decide the claim. See Rose v. Lundy, 455 U.S. 509, 516 (1982).
This is called requiring a petitioner to “exhaust” his state court remedies. The
Supreme Court has instructed district courts to dismiss habeas petitions that
contain both exhausted and unexhausted claims. Id. at 522. Had the petitioner
identified this claim as a ground in his October 2014 petition, it is likely that
Judge Stadtmueller (who was the judge assigned to the case at the “screening”
stage) would have dismissed the petition to give the petitioner the opportunity
to return to state court and litigate the claim there. Judge Stadtmueller
discussed the exhaustion requirement extensively in his November 4, 2014
screening order. Dkt. No. 8 at 3. But Judge Stadtmueller concluded—
correctly—that the petitioner had exhausted his Fourth and Fifth Amendment
claims in state court. Id. at 3-4. Those were the only claims Judge Stadtmueller
knew of.
Only after Judge Stadtmueller allowed the petitioner to proceed on his
Fourth and Fifth Amendment claims did the petitioner try to challenge the
knowing and voluntary nature of his guilty plea, by adding it as a new issue in
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his brief in support of his petition. This court cannot, and will not, rule on this
claim when the state courts did not have the opportunity to do so, and when
Judge Stadtmueller did not have the opportunity to dismiss the petition so that
the petitioner could return to state court to present the claim there.
Even if the petitioner had exhausted this claim in state court, and had
raised it properly in his petition here, the court finds that it would not have
had an impact on the court’s decision. Only one of the six justices who joined
the mandate concluded that the petitioner would have entered his plea even
had the trial court granted the suppression motions. Five other justices joined
the mandate on other grounds.
VI.

CERTIFICATE OF APPEALABILITY
Under Rule 11(a) of the Rules Governing Section 2254 Cases, the court

must consider whether to issue a certificate of appealability. A court may issue
a certificate of appealability only if the applicant makes a substantial showing
of the denial of a constitutional right. See 28 U.S.C. §2253(c)(2). The standard
for making a “substantial showing” is whether “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484, 120
S. Ct. 1595, 1603-04 (2000) (internal quotation marks omitted).
The court concludes that its decision to deny the writ is neither incorrect
nor debatable among jurists of reason. The petitioner received a full and fair
opportunity to litigate his Fourth and Fifth Amendment claims, and the
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Wisconsin Supreme Court did not unreasonably apply federal law or Supreme
Court precedent.
VII.

CONCLUSION
The court DENIES the petitioner’s §2254 petition, dkt. no. 1, and

DECLINES to issue a certificate of appealability.
Dated in Milwaukee, Wisconsin this 22nd day of June, 2017.
BY THE COURT:
____________________________________
HON. PAMELA PEPPER
United States District Judge

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