Mezo-Reyes v. Humphreys

Filing 20

DECISION AND ORDER signed by Magistrate Judge Nancy Joseph. IT IS ORDERED that the petitioner's 1 petition for a writ of habeas corpus be and hereby is DENIED. IT IS FURTHER ORDERED that this action be and hereby is DISMISSED. IT IS ALSO ORDERED that a certificate of appealability shall not issue. FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly. (cc: all counsel)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
ARMANDO MEZO-REYES,
Petitioner,
v.

Case No. 17-CV-452

ROBERT HUMPHREYS,
Respondent.
DECISION AND ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS
Armando Mezo-Reyes, a prisoner in Wisconsin custody, seeks a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Docket # 1.) Mezo-Reyes was convicted of seconddegree sexual assault, battery, and one count of having sex with a child over the age of
sixteen. He was sentenced to fifteen years of initial confinement to be followed by ten years
of extended supervision. Mezo-Reyes alleges that his conviction and sentence were
unconstitutional. For the reasons stated below, the petition for writ of habeas corpus will be
denied and the case dismissed.
BACKGROUND
Mezo-Reyes’ conviction stems from allegations that he “forced his way into the
home of his ex-girlfriend, pushed her to the floor, and forcibly had sexual intercourse with
her.” (State v. Mezo-Reyes, 2015AP1746, 2015AP1747 (Wis. Ct. App. June 22, 2016), Docket
# 9-5 at 2.) After his arrest, Mezo-Reyes was interviewed by Walworth police and gave an
incriminating statement. Before trial, Mezo-Reyes moved to suppress his statement. He
argued that police gave him the Miranda warning in English, although his first language was

Spanish, and he did not speak or comprehend English proficiently enough to freely,
voluntarily, and intelligently waive his rights. (Id. at 2–3.) The trial court denied the motion
finding that Mezo-Reyes had knowingly and intelligently waived his rights.
Mezo-Reyes appealed to the Wisconsin Court of Appeals, which rejected his
argument and affirmed the conviction. (Docket # 9-6.) Mezo-Reyes then petitioned the
Wisconsin Supreme Court, which denied review. (Docket # 9-7.) Subsequently, MezoReyes timely filed a petition for a writ of habeas corpus in this court.
STANDARD OF REVIEW
Mezo-Reyes’ petition is governed by the Antiterrorism and Effective Death Penalty
Act (“AEDPA”). Under AEDPA, a writ of habeas corpus may be granted if the state court
decision on the merits of the petitioner’s claim (1) was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States,” 28 U.S.C. § 2254(d)(1); or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
28 U.S.C. § 2254(d)(2).
A state court’s decision is “contrary to . . . clearly established Federal law as
established by the United States Supreme Court” if it is “substantially different from
relevant [Supreme Court] precedent.” Washington v. Smith, 219 F.3d 620, 628 (7th Cir. 2000)
(quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). The court of appeals for this circuit
recognized the narrow application of the “contrary to” clause:
[U]nder the “contrary to” clause of § 2254(d)(1), [a court] could grant a writ
of habeas corpus . . . where the state court applied a rule that contradicts the
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governing law as expounded in Supreme Court cases or where the state court
confronts facts materially indistinguishable from a Supreme Court case and
nevertheless arrives at a different result.
Washington, 219 F.3d at 628. The court further explained that the “unreasonable application
of” clause was broader and “allows a federal habeas court to grant habeas relief whenever
the state court ‘unreasonably applied [a clearly established] principle to the facts of the
prisoner’s case.’” Id. (quoting Williams, 529 U.S. at 413).
To be unreasonable, a state court ruling must be more than simply “erroneous” and
perhaps more than “clearly erroneous.” Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997).
Under the “unreasonableness” standard, a state court’s decision will stand “if it is one of
several equally plausible outcomes.” Hall v. Washington, 106 F.3d 742, 748–49 (7th Cir.
1997). In Morgan v. Krenke, the court explained that:
Unreasonableness is judged by an objective standard, and under the
“unreasonable application” clause, “a federal habeas court may not issue the
writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application must also be
unreasonable.”
232 F.3d 562, 565–66 (7th Cir. 2000) (quoting Williams, 529 U.S. at 411), cert. denied, 532
U.S. 951 (2001). Accordingly, before a court may issue a writ of habeas corpus, it must
determine that the state court decision was both incorrect and unreasonable. Washington,
219 F.3d at 627.
ANALYSIS
Mezo-Reyes argues that he is entitled to habeas relief because the court of appeals’
decision that he freely, voluntarily, and intelligently waived his Miranda rights was based on
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an unreasonable determination of the facts. Thus, Mezo-Reyes grounds his claim for relief
in § 2254(d)(2). To be entitled to habeas relief under § 2254(d)(2), Mezo-Reyes must show
that the court of appeals’ decision was based on an unreasonable determination of the facts
in the light of the evidence presented in state court. I may not characterize these state-court
factual determinations as unreasonable “merely because [I] would have reached a different
conclusion in the first instance.” Brumfield v. Cain, 135 S. Ct. 2269, 2277 (2015) (quoting
Wood v. Allen, 558 U.S. 290, 301 (2010)). Review of state court factual findings is deferential.
Id. (“[Section] 2254(d)(2) requires that we accord the state trial court substantial
deference.”). If “reasonable minds reviewing the record might disagree about the finding in
question, on habeas review that does not suffice to supersede the trial court’s . . .
determination” Id. (internal quotation and citation omitted). Determination of a factual
issue made by the state court is presumed to be correct and the petitioner carries the burden
of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. §
2254(e)(1).
To protect an individual’s right against self-incrimination under the Fifth
Amendment, the Supreme Court held in Miranda v. Arizona that suspects must be advised of
certain rights before they are subjected to custodial interrogation. 384 U.S. 436, 444 (1966).
A suspect may waive his Miranda rights only if that waiver was made voluntarily,
knowingly, and intelligently. Determining whether a waiver of Miranda rights is proper has
two distinct dimensions. Moran v. Burbine, 475 U.S. 412, 421 (1986). First, the
relinquishment of the right must have been voluntary in the sense that it was the product of
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a free and deliberate choice rather than intimidation, coercion, or deception. Id. Second, the
waiver must have been made with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it. Id. Only if the “totality of
the circumstances surrounding the interrogation” reveal both an uncoerced choice and the
requisite level of comprehension may a court properly conclude that the Miranda rights have
been waived. Id.
Here, at the motion to suppress, the trial judge had: (1) the recording of Mezo-Reyes’
police interview; (2) the testimony of three police officers who had contact with Mezo-Reyes
on the day he was arrested; and (3) Mezo-Reyes’s testimony, through an interpreter.
(Docket # 9-5 at 3–4.) The police officers testified that they communicated with MezoReyes in English, he answered in English, they had no trouble understanding him, he
appeared to have no difficulty understanding them, he responded appropriately to their
statements and commands, and he did not appear to need an interpreter. (Id.) Mezo-Reyes
testified that he understood none of the rights that were read to him because he did not
speak or read English well and understood “less than half” of what the interviewing officer
said to him. (Id. at 4.) He also testified that he had been in the United States for four or five
years, attended high school in Wisconsin for about two years, earned an A/B in his English
instruction class, and had worked at various local restaurants. (Id.) The trial judge found
that the officers’ testimonies were more credible. (Id.) Specifically, the trial judge found that
Mezo-Reyes had a motive to minimize his understanding of English, that his answers were
“self-serving,” and that he was “selective” as to what he did or did not understand. (Id.)
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Based on this record, the court of appeals found that the trial court’s findings and
rejection of the motion were not clearly erroneous. (Id.) The court of appeals found that the
trial court was not obliged to make an explicit finding as to the level of Mezo-Reyes’ ability
to speak and comprehend English. (Id.) Further, the court of appeals found that based on its
own review of the record and the recorded interview, it independently found that MezoReyes freely, voluntarily, and intelligently waived his Miranda rights. (Id.)
Mezo-Reyes argues that he is entitled to habeas relief because “the state court judge
did not make any historical findings concerning Mezo-Reyes’ ability to understand English,
and, consequently, it is logically impossible for the court to find that Mezo-Reyes
understood the Miranda warning, which was given to him in English.” (Petitioner’s Br. at 8,
Docket # 12.) He argues that “[u]nder the unique circumstances of this case, it is insufficient
to invoke the ‘presumption of correctness’ for factual findings simply because the state court
judge uttered the conclusion that Mezo-Reyes understood the Miranda warning.” (Id.)
As stated above, whether an individual freely, voluntarily, and intelligently waives
his Miranda rights is determined on a totality of the circumstances. Of course, implicit in
that analysis is a determination that the person understood the Miranda rights in the
language that that they were communicated to him. Here, although the trial judge did not
make an explicit finding of fact as to Mezo-Reyes’ English proficiency level (i.e., whether
Mezo-Reyes’ English proficiency was at the elementary, high school, or college level), he
did cite to evidence showing that Mezo-Reyes understood English and was able to
communicate in English. Specifically, the trial judge explained his decision as follows:
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In deciding this motion the Court has reviewed the testimony of all of the
parties -- all of the witnesses, starting with Chief Severt who spoke to the
defendant in English. He had contact with the defendant. He was given
commands and he followed those commands and indicated that the
defendant answered appropriately to these questions. Officer Hooper then
testified that when she arrived the defendant answered the door, she
spoke to him in English. She asked him to step outside and he answered
appropriately and talked to her about his side of the story. And we’ve got
the testimony of Officer Kjendlie. Officer Kjendlie only spoke to the
defendant in English. There was conversation that was give and take back
and forth and the defendant was responsive to those questions. When Mr.
Mezo-Reyes apparently was unable to understand things, he asked for
clarification.
(Answer, Ex. 9, Transcript of Apr. 3, 2014 Motion Hearing, Docket # 9-9 at 45–46.) The
trial judge then noted that Mezo-Reyes had been in the United States for four to five years,
attended high school for two years, and had worked. (Id. at 46.) Thus, although the trial
judge did not make an explicit finding of fact as to Mezo-Reyes’ English proficiency level,
this is not a case where the trial judge failed to consider and address Mezo-Reyes’ ability to
understand English in analyzing his ability to knowingly and intelligently waive his Miranda
rights.
Unquestionably, the video recording of the interrogation shows that Mezo-Reyes
does not speak English fluently. However, review of the video recording of Mezo-Reyes’
interrogation shows that it was not unreasonable for the trial judge to conclude that MezoReyes knowingly and intelligently waived his Miranda rights. (Compact Disk of
Interrogation, Docket # 19.) The video shows that Officer Kjendlie read Mezo-Reyes his
Miranda rights and asked Mezo-Reyes if he understood them. Mezo-Reyes indicated that he
did not understand part of it. Officer Kjendlie explained the part that Mezo-Reyes said he
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did not understand and then asked Mezo-Reyes if he now understood. Mezo-Reyes
responded that he did. Mezo-Reyes also indicated that he was willing to talk to Officer
Kjendlie. The video shows that the entirety of the exchange was in English. The video also
shows that Mezo-Reyes’ conversation with Officer Kjendlie was not limited to yes and no
answers. Mezo-Reyes could, albeit in imperfect English, narrate his side of the story in
response to questions posed to him.
Mezo-Reyes argues that several facts show that he did not understand English.
(Petitioner’s Br. at 11.) First, he told Officer Kjendlie that his English was “so-so.” (Id.)
While the video does show that exchange, “so-so” does not negate the trial judge’s reasons
for finding that Mezo-Reyes knowingly waived his Miranda rights. In other words, an
individual’s “so-so” English may be sufficient to understand and communicate in English
and waive Miranda rights depending on the totality of the circumstances. Here, the trial
judge cited to Mezo-Reyes’ ability to follow commands in English, requests for clarifications
in English, and engagement in a back-and-forth conversation in English.
Next, Mezo-Reyes argues that he “asked the officer to speak to him in Spanish.” (Id.)
This is not exactly correct. The video shows that Mezo-Reyes specifically asked Kjendlie:
“Do you speak Spanish?” Perhaps Mezo-Reyes asked this question because he wanted
Kjendlie to speak to him in Spanish. But even if Mezo-Reyes would have been more
comfortable speaking in Spanish, this does not mean that he could not understand or
communicate in English sufficiently to waive his Miranda rights.

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Additionally, Mezo-Reyes argues that he told the officer that he did not understand
his rights. (Id.) This is an overstatement of the record. As discussed above, Mezo-Reyes did
tell the officer that he did not understand part of Miranda. In response, Kjendlie explained
the part that Mezo-Reyes indicated he did not understand and then checked with him to see
if he then understood. Mezo-Reyes indicated that he did.
Finally, Mezo-Reyes relies on his testimony that he only understood half of what the
officer was saying. (Id.) As Mezo-Rezo acknowledges, the trial judge, who had the
opportunity to see Mezo-Reyes testify live, rejected his testimony as “self-serving” and “not
credible.” (Docket # 9-9 at 47.)
None of the facts that Mezo-Reyes points to, considered alone or in combination,
shows that the court of appeals’ decision was based on an unreasonable determination of the
facts. Again, AEDPA does not permit federal courts to “supersede the trial court’s . . .
determination” if a review of the record shows only that “[r]easonable minds . . . might
disagree about the finding in question.” Brumfield, 135 S. Ct. at 2277 (internal quotations
and citations omitted). For these reasons, Mezo-Reyes is not entitled to habeas relief.
CERTIFICATE OF APPEALABILITY
According to Rule 11(a) of the Rules Governing § 2254 Cases, the court must issue
or deny a certificate of appealability “when it enters a final order adverse to the applicant.”
A certificate of appealability may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make a
substantial showing of the denial of a constitutional right, the petitioner must demonstrate
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that “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 (2000)
(quoting Barefoot v. Estelle, 463 U.S. 880, 893 and n.4).
Reasonable jurists could not debate that Mezo-Reyes fails to show a denial of a
constitutional right. Thus, I will deny him a certificate of appealability. Of course, MezoReyes retains the right to seek a certificate of appealability from the Court of Appeals
pursuant to Rule 22(b) of the Federal Rules of Appellate Procedure.
ORDER
NOW, THEREFORE, IT IS ORDERED that the petitioner’s petition for a writ of
habeas corpus (Docket # 1) be and hereby is DENIED.
IT IS FURTHER ORDERED that this action be and hereby is DISMISSED.
IT IS ALSO ORDERED that a certificate of appealability shall not issue.
FINALLY, IT IS ORDERED that the Clerk of Court enter judgment accordingly.

Dated at Milwaukee, Wisconsin this 11th day of February, 2019.

BY THE COURT:
s/Nancy Joseph____________
NANCY JOSEPH
United States Magistrate Judge

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