Gonzales v. Wolfe

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0513n.06
Filed: August 20, 2008
No. 06-4437
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ALEXANDER GONZALES,
Petitioner-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
JEFFREY WOLFE, Warden, SOUTHERN DISTRICT OF OHIO
Respondent-Appellee.
/
BEFORE: MOORE and CLAY, Circuit Judges; and SCHWARZER, District Judge.*
CLAY, Circuit Judge. Alexander Gonzales appeals the district court’s denial of his petition
for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 in which he seeks relief from his
conviction and sentence for possessing and trafficking in cocaine in violation of sections
2925.03(A)(1) and 2925.11(A) of the Ohio Revised Code. For the reasons given below, this Court
AFFIRMS the district court’s denial of Gonzales’ petition for writ of habeas corpus.
*
The Honorable W illiam W Schwarzer, United States District Judge for the Northern District of California,
sitting by designation.
No. 06-4437
BACKGROUND
A. Substantive Facts
In 1996, Alexander Gonzales began transporting cocaine from New York City to Cincinnati,
Ohio, concealing the drugs in a hidden compartment in Manuel Rodriguez’s car. State v. Gonzales,
783 N.E.2d 903, 907 (Ohio Ct. App. 2002). Gonzales would purchase cocaine in New York, drive
to Cincinnati, and give the drugs to a local distributor to sell. Id. Rodriguez would often accompany
Gonzales on his trips to and from New York. Id. Although the local distributor changed over the
years, Moss Samake was acting in this capacity by the end of the drug trafficking scheme in
November 1998. Id.
On November 22, 1998, Rodriguez and his girlfriend picked up Gonzales at a Ramada Inn
in Cincinnati and took Gonzales to their apartment. Id. Gonzales told Rodriguez that he was
planning on delivering drugs to Samake and asked Rodriguez to keep two kilograms of cocaine in
his apartment. Id. at 908. After Gonzales spent the day in Rodriguez’s apartment, Rodriguez’s
girlfriend drove Gonzales back to his hotel. Id.
The next day, Gonzales returned to Rodriguez’s apartment and gave a portion of the cocaine
that he had brought the previous day to Samake. Gonzales, 783 N.E.2d at 908. Later that day,
Gonzales discovered that the police had surrounded Rodriguez’s apartment. Id. Gonzales then left
the cocaine with Rodriguez and his girlfriend and exited the apartment. Id. Rodriguez and his
girlfriend hid the cocaine in the apartment building and attempted to leave, but after leaving the
building Rodriguez was arrested and consented to a search of the apartment. Id. After an initial
unsuccessful search, police threatened to charge Rodriguez’s girlfriend with money laundering based
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on receipts that were found in the search. Id. Rodriguez then revealed the location of the drugs, and
police found two scales, 400.6 grams of powder cocaine and 164.2 grams of crack cocaine. Id.
Samake was also arrested after leaving Rodriguez’s apartment. Id. at 909. Police found $5,000 in
cash in Samake’s car and 400.1 grams of crack cocaine in his residence. Id. Gonzales was
subsequently arrested; however, no cocaine was discovered on his person. Id. at 908.
B. Procedural Facts
On December 3, 1998, Gonzales was indicted in the Hamilton County, Ohio Court of
Common Pleas on two counts of possessing at least 100 grams of crack cocaine in violation of Ohio
Revised Code § 2925.11(A) and one count of possessing at least 1,000 grams of non-crack cocaine
with a Major Drug Offender (“MDO”) specification on each count. At trial Gonzales’ accomplice,
Rodriguez, was called to testify against him. However, Rodriguez invoked his Fifth Amendment
right against self-incrimination, and instead of presenting his live testimony, the prosecution
presented Rodriguez’s recorded statement to police officers. Gonzales, 783 N.E.2d at 906. At the
close of trial, Gonzales was acquitted of one of the crack-possession charges and found guilty of the
remaining charges and their accompanying MDO specifications. Id. Gonzales was sentenced to
twenty years imprisonment. State v. Gonzalez, 742 N.E.2d 710, 713-14 (Ohio Ct. App. 2000). The
Ohio Court of Appeals reversed Gonzales’ conviction and remanded for a new trial, holding that the
admission of Rodriguez’s recorded statements constituted prejudicial error. Id.
Gonzales was retried on the possession counts and accompanying MDO specifications.
Gonzales, 783 N.E.2d at 906. At the end of his second trial, the judge declared a mistrial due to
allegations that one of Gonzales’ family members threatened a juror in an attempt to influence the
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verdict. Id. Following Gonzales’ second trial in 2001, the State filed an additional indictment
against Gonzales charging him with two counts of trafficking in at least 100 grams of crack cocaine
in violation of Ohio Revised Code § 2925.03(A) and one count of trafficking in at least 1,000 grams
of non-crack cocaine in violation of Ohio Revised Code § 2925.03(A) with an MDO specification
accompanying each count. Id. at 906-07. These new charges were consolidated with the remaining
two possession counts with MDO specifications from the 1998 indictment. Id. The crack cocaine
possession charge of which Gonzales had been acquitted was not included in the 2001 indictment.
Gonzales filed a motion to dismiss the indictments based on double jeopardy. The trial judge, a
different judge than had presided over Gonzales’ earlier trials, dismissed this motion.
Gonzales was convicted of all five possession and trafficking counts as well as their
accompanying specifications. Gonzales, 783 N.E.2d at 906. The trial court sentenced Gonzales to
10 years of imprisonment on the count of possessing at least 100 grams of crack cocaine and a
consecutive 10-year sentence on the MDO specification accompanying this charge. Id. Gonzales
was also sentenced to 10 years of imprisonment for possessing at least 1,000 grams of non-crack
cocaine to be served consecutively to the other possession count along with 10 years of
imprisonment for the MDO specification accompanying the charge to be served concurrently with
all counts. Id. For the three drug trafficking counts and their accompanying MDOs, Gonzales was
sentenced to 10 years each to be served concurrently with the possession counts. Id. In total,
Gonzales was sentenced to 30 years imprisonment.
On appeal, the Ohio Court of Appeals affirmed Gonzales’ conviction, and the Ohio Supreme
Court declined to exercise its jurisdiction to review the case. Gonzales subsequently filed a motion
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for new trial and a petition for post-conviction relief based upon newly discovered information about
the sentence reduction Rodriguez received for testifying against Gonzales. The trial court denied
both the motion and the petition for post-conviction relief. Gonzales appealed this denial, and the
Ohio Court of Appeals affirmed the trial court’s decision. Gonzales further appealed, but the Ohio
Supreme Court declined to exercise its discretionary jurisdiction.
Gonzales subsequently filed a petition for writ of habeas corpus in the United States District
Court for the Southern District of Ohio in which he raised eight grounds for relief. The case was
referred to a magistrate judge who issued a report that recommended denying Gonzales’ petition.
Gonzales filed objections to the report and recommendations, and the magistrate judge responded
to the objections in a supplemental report and recommendations, treating the objections as a motion
for reconsideration. Despite Gonzales’ objections to both the magistrate’s initial and supplemental
reports and recommendations, the district court adopted both reports and recommendations as
written, dismissing with prejudice Gonzales’ habeas petition on September 26, 2006. Gonzales
requested a certificate of appealability from the district court and filed a notice of appeal to the this
Court on October 20, 2006. The district court issued a certificate of appealability on the six issues
raised in Gonzales’ request. This Court construed Gonzales’ notice of appeal as a request for a
partial certificate of appealability on the remaining issues contained in his petition for writ of habeas
corpus and declined to issue a certificate of appealability on the remaining issues.
DISCUSSION
Standard of Review
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This Court’s review of the legal conclusions underlying a district court’s denial of habeas
corpus relief is conducted de novo. Lorraine v. Coyle, 291 F.3d 416, 422 (6th Cir. 2002). Because
the district court conducted no evidentiary hearing, we review the district court’s factual findings de
novo. Northrop v. Trippett, 265 F.3d 372, 377 (6th Cir. 2001).
Gonzales petitions for habeas corpus pursuant to 28 U.S.C. § 2254, which allows a person
in state custody “in violation of the Constitution or laws or treaties of the United States” to be
granted relief. 28 U.S.C. § 2254(a). Section 2254 allows this Court to grant habeas corpus relief
only when
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.
28 U.S.C. § 2254(d). The Supreme Court has made a distinction between the “contrary to” and
“unreasonable application of” provisions of § 2254(d)(1):
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by this Court on a question of
law or if the state court decides a case differently than this Court has on a set of
materially indistinguishable facts. Under the “unreasonable application” clause, a
federal habeas court may grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but unreasonably applies that
principle to the facts of the prisoner’s case.
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). The factual determinations of the state court will
be presumed to be correct unless the petitioner can show by “clear and convincing evidence” that
the factual determination was erroneous. 28 U.S.C. § 2254(e)(1).
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I. DOUBLE JEOPARDY CLAIMS
A. Preservation of the Issue
Gonzales argues that the Double Jeopardy Clause barred his conviction for three reasons;
Gonzales claims that his retrial followed a mistrial that was not manifestly necessary, that he was
given multiple punishments for the same offense, and that he was prosecuted for a crime of which
he had been acquitted. Before reaching the merits of Gonzales’ claims, this Court must determine
whether they were procedurally defaulted.
In disposing of a habeas petition from a state prisoner, this Court may not examine claims
that were denied by the state courts based upon the prisoner’s failure to abide by a state procedural
rule. Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). In order to determine whether a claim
has been procedurally defaulted, this Court applies the four-part test set forth in Maupin v. Smith,
785 F.2d 135 (6th Cir. 1986). This Court must first determine whether “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. at 138. This Court must then “decide whether the state courts actually enforced the state
procedural sanction.” Id. Next, this Court must determine “whether the state procedural forfeiture
is an ‘adequate and independent’ state ground on which the state can rely to foreclose review of a
federal constitutional claim.” Id. Finally, if we find that review of the petitioner’s claim in state
court was prevented by the petitioner’s failure to comply with an adequate and independent state
procedural rule, this Court must determine whether the petitioner has shown “that there was ‘cause’
for him to not follow the procedural rule and that he was actually prejudiced by the alleged
constitutional error.” Id.
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There is no question that Gonzales complied with all procedural requirements to bring his
claims that he was prosecuted for a crime of which he had been acquitted and that he was sentenced
twice for the same crime. The same cannot be said for Gonzales’ claim that the double jeopardy
clause was violated because he was retried following the declaration of a mistrial. The district court
found that this claim had been procedurally defaulted due to Gonzales’ failure to provide a complete
record to the Ohio Court of Appeals and Gonzales’ failure to make a contemporaneous objection to
the mistrial. For the reasons that follow, we agree that this claim was procedurally defaulted because
of Gonzales’ failure to provide the Ohio Court of Appeals with an adequate record.
On appeal to the Ohio Court of Appeals, Gonzales claimed that the mistrial of his second trial
was not based upon manifest necessity and that as a result his third trial violated the Double Jeopardy
Clause of the United States Constitution. State v. Gonzales, 783 N.E.2d 903, 909 (Ohio Ct. App.
2002). However, Gonzales failed to insure that the transcript of the trial proceedings that ended in
a mistrial and a letter to a jury member that precipitated the mistrial were included in the record on
appeal. Id. Under Ohio law, the appellant has the burden to provide “the appellate court with the
record and exhibits that demonstrate the assigned errors.” Id. at 910 (quoting State v. Israel, No.
C-961006, 1997 WL 598396, at *6 (Ohio Ct. App. Sept. 26, 1997)). See Ohio App. R. 9(B).
Because of Gonzales’ failure to comply with this rule, the Ohio Court of Appeals rejected Gonzales’
arguments regarding his retrial following the mistrial. State v. Gonzales, 783 N.E.2d 903, 910 (Ohio
Ct. App. 2002).
The application of the Maupin analysis to the Ohio courts’ rejection of Gonzales’ claim due
to his failure to present an adequate record on appeal reveals that this claim was procedurally
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defaulted. Ohio has a procedural rule that requires appellants to include materials relevant to their
assigned errors in the record on appeal. Ohio App. R. 9(B). In Gonzales’ case, the Ohio Court of
Appeals enforced the procedural rule by rejecting Gonzales’ claim due to his failure to follow this
rule. Thus, the first and second Maupin factors are met. As for the third factor, a state procedural
bar must be “firmly established and regularly followed” to be considered “adequate and
independent.” Ford v. Georgia, 498 U.S. 411, 423-24 (1991) (quoting James v. Kentucky, 466 U.S.
341, 348-51 (1984)). Ohio has regularly rejected claims due to appellants’ failure to present an
adequate record. Volodkevich v. Volodkevich, 549 N.E.2d 1237, 1237 (Ohio 1989); State v.
Davidson, No. 2005-P-0038, 2006 WL 763082, at *4 (Ohio Ct. App. March 24, 2006); State v.
Estrada, 710 N.E.2d 1168, 1170 (Ohio Ct. App. 1998). Finally, Gonzales has made no argument
that cause and prejudice existed for his failure to include relevant parts of the record on appeal.
Thus, Gonzales has procedurally defaulted his claim that the Double Jeopardy Clause was violated
because he was retried after a mistrial that was not manifestly necessary, and this Court may not
reach the merits of this issue.
The district court also found that this claim had been procedurally defaulted as the result of
Ohio’s contemporaneous objection rule. Under Ohio law, if an appellant could have made an
objection to a ruling at trial but failed to do so, the appellant has waived appellate review of the
challenge. State v. Murphy, 747 N.E.2d 765,788 (Ohio 2001). Issues that have been waived in this
manner are only subject to plain error review. Id. at 789; Ohio Crim. Proc. R. 52. The district court
found that Gonzales had procedurally defaulted his double jeopardy argument because he did not
object to the declaration of a mistrial at the end of his second trial. This conclusion was erroneous.
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Ohio courts have held that defendants waive double jeopardy challenges to a retrial following a
mistrial by failing to object before retrial, not at the time the mistrial was declared. State v. Gaines,
No. 82301, 2003 WL 22966190, at *9 (Ohio Ct. App. Dec. 18, 2003) (“Double jeopardy rights are
personal rights that can be waived when the accused does not raise the issue of double jeopardy prior
to a retrial.”). In this case, Gonzales made a timely objection to his retrial by filing a motion to
dismiss the indictment based on double jeopardy grounds before his third trial. It would be
nonsensical to require a defendant to object on double jeopardy grounds at the time a mistrial is
declared before the State has determined that it will seek a retrial.
The district court’s conclusion that the contemporaneous objection rule acted as a procedural
bar to Gonzales’ double jeopardy claims was based on language from the Ohio Court of Appeals’
opinion. The Ohio Court of Appeals stated that even if it were to analyze Gonzales’ argument
regarding the mistrial,
in light of Gonzales's failure to object on the record, we would not have concluded
that a retrial would have been barred. In determining whether a trial court has abused
its discretion in sua sponte declaring a mistrial, an accused’s right to have his case
decided by a particular jury is weighed against society’s interest in an efficient
dispatch of justice, and, depending on the circumstances, the accused’s right can be
subordinated to the public’s interest in a fair trial. See State v. Glover (1988), 35
Ohio St. 3d 18, 19, 517 N.E.2d 900. Thus, “[w]here the facts of the case do not
reflect unfairness to the accused, the public interest in insuring that justice is served
may take precedence.” See id. Here, Gonzales did not object to the mistrial.
If the facts were such that the mistrial had not been prompted by the state’s
misconduct, the mistrial was not inherently unfair to Gonzales, and no objection was
made, there would certainly have been no abuse of discretion. See id. at 20, 517
N.E.2d 900.
Gonzales, 783 N.E.2d at 910 (formatting altered). Although the Ohio Court of Appeals noted
Gonzales’ failure to object, it applied the standard of review applied to all cases in which the court
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sua sponte declares a mistrial. State v. Glover, 517 N.E.2d 900, 903 (Ohio 1988) (“We hold,
therefore, that where the trial judge sua sponte declares a mistrial, double jeopardy does not bar
retrial unless the judge's action was instigated by prosecutorial misconduct designed to provoke a
mistrial, or the declaration of a mistrial constituted an abuse of discretion.”). From the structure of
the opinion, it appears that Gonzales’ failure to object was just one of the circumstances taken into
account by the court in rejecting Gonzales’ claim. See Glover, 517 N.E.2d at 903 (noting
defendant’s failure to object to the declaration of a mistrial in examining whether this action was
inherently unfair to the defendant). Therefore, Gonzales’ failure to provide an adequate record on
appeal is the sole basis for the procedural default of Gonzales’ claim that his retrial was barred by
double jeopardy because of a prior mistrial that was not manifestly necessary.
Gonzales has not procedurally defaulted his claims that he was punished twice for the same
crime and that he was prosecuted for a crime of which he had been acquitted in an earlier proceeding.
Therefore, we address the merits of these claims below.
B. Analysis
Gonzales claims that his conviction for the Major Drug Offender (“MDO”) sentencing
specifications violates the Double Jeopardy Clause because the MDO specifications allow
cumulative punishment for the same crime as the possession and trafficking convictions. The
Double Jeopardy Clause protects a defendant “against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for the same offense after conviction. And
it protects against multiple punishments for the same offense.” Ohio v. Johnson, 467 U.S. 493, 498
(1984). The Supreme Court has interpreted the multiple punishments aspect of the Double Jeopardy
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Clause as protecting defendants from being punished more than once for a single act when the
legislature does not intend for the punishments to be cumulative. Albernaz v. United States, 450
U.S. 333, 344 (1981) However, when the legislature authorizes a defendant to be punished
cumulatively for the same act, the Double Jeopardy Clause is not violated. Id. The Supreme Court
developed the “same elements” test in Blockburger v. United States, 284 U.S. 299 (1932), to
determine whether cumulative punishment has been authorized, holding that:
The applicable rule is that, where the same act or transaction constitutes a violation
of two distinct statutory provisions, the test to be applied to determine whether there
are two offenses or only one, is whether each provision requires proof of a fact which
the other does not.
Id. at 304. The Blockburger same elements test is a general rule of statutory construction, and as a
result, when “a legislature specifically authorizes cumulative punishment under two statutes,
regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s
task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may
impose cumulative punishment under such statutes in a single trial.” Missouri v. Hunter, 459 U.S.
359, 368-69 (1983).
At his third trial, Gonzales was convicted of three counts of trafficking in cocaine and two
counts of possessing cocaine. He was also convicted of the MDO specifications that accompanied
each of these counts. His conviction on the MDO specifications added ten years to his sentence.
Gonzales notes that once the facts were established to convict him of trafficking in and possession
of cocaine there was no need to prove additional facts in order to convict him of the MDO
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specifications.1 As a result, he claims that his convictions fail the Blockburger same elements test
and are thus violative of the Double Jeopardy clause. The Ohio Court of Appeals determined that
the legislature clearly intended to impose cumulative punishment when a person sells or possesses
a large quantity of drugs. Gonzales, 783 N.E.2d at 915. This Court must accept the Ohio court’s
interpretation of the intent of the Ohio legislature. See Ohio v. Johnson, 467 U.S. 493, 499 (1984)
(“We accept, as we must, the Ohio Supreme Court’s determination that the Ohio Legislature did not
intend cumulative punishment for the two pairs of crimes involved here.”). Because the Ohio
legislature has authorized cumulative punishment in authorizing MDO convictions, Gonzales’
conviction did not violate the Double Jeopardy clause.
Gonzales also claims that since he was acquitted in his first trial of one count of possessing
cocaine, he cannot subsequently be prosecuted for trafficking the cocaine that he had been acquitted
of possessing. Courts also apply the Blockburger same elements test to evaluate whether the
successive prosecution aspect of the Double Jeopardy clause has been violated. United States v.
Dixon, 509 U.S. 688, 696 (1993). Applying the Blockburger test, the Ohio Court of Appeals held
that trafficking cocaine is not the same offense as possessing cocaine for double jeopardy purposes.
Gonzales, 783 N.E.2d at 913-14. The statutory provision defining the crime of possessing a
1
R.C. 2925.03(C)(4)(g) provides that whoever violates R.C.
2925.03(A), drug trafficking, where the amount of powder cocaine
exceeds 1,000 grams or the amount of crack cocaine exceeds 100
grams, is a major drug offender by operation of law, and the court
must impose the maximum ten-year prison sentence for the felony
violation. R.C. 2925.11(C)(3)(f) provides that a person possessing
such amounts of crack and powder cocaine is a major drug offender
and provides the same mandatory ten-year sentence.
Gonzales, 783 N.E.2d at 915.
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controlled substance, section 2925.11(A) of the Ohio Revised Code, “prohibits a person from
knowingly obtaining, possessing, or using a controlled substance,” whereas the crime of trafficking
in a controlled substance involves “knowingly selling or offering to sell a controlled substance.” Id.
at 913 (citing Ohio Rev. Code 2925.03(A)). The Ohio Court of Appeals found that each offense
requires proof of an additional fact that the other does not. 783 N.E.2d at 913-14. The court held
that it is possible to possess a controlled substance without selling or offering to sell it, and it is also
possible to sell or offer to sell a controlled substance without possessing it. Id. at 914. For the latter
conclusion, the court cited State v. Scott, 432 N.E.2d 798 (Ohio 1982), in which the Ohio Supreme
Court held that a defendant who had offered to sell ecstasy pills but had actually sold pills that did
not contain a controlled substance could be convicted for offering to sell a controlled substance
under Ohio Revised Code 2925.03(A). Id.
Gonzales admits that pursuant to the holding in Scott it is sometimes possible to be convicted
of trafficking in cocaine without the possibility of being convicted for possession of cocaine.
However, Gonzales contends that as applied to the facts of his case, the statutory provisions do not
satisfy the Blockburger same elements test. Even if this is the case, Gonzales’ argument fails
because the United States Supreme Court itself has applied the Blockburger test in the abstract to
the elements as described in a statute instead of to the facts of a particular case. Albernaz, 450 U.S.
at 339. Thus, the Ohio Court of Appeals’ determination that double jeopardy did not bar Gonzales’
retrial is not an unreasonable application of Supreme Court precedent.
II. CONFRONTATION CLAUSE CLAIM
A. Preservation of the Issue
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Although Gonzales claims that the district court denied Gonzales’ confrontation clause claim
because he failed to preserve the claim for federal habeas review, Gonzales’ preservation of the
Confrontation Clause issue has not been questioned. The claim was addressed on the merits in both
state court and federal district court. Thus, whether Gonzales’ conviction violated the Confrontation
Clause is properly before this Court.
B. Analysis
Gonzales argues that the Confrontation Clause was violated because he was unable to
meaningfully cross-examine Rodriguez because of the trial court’s limitations on his questioning.2
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. The right to cross-examination is the primary right secured by this clause and “is critical
for ensuring the integrity of the fact finding process.” Kentucky v. Stincer, 482 U.S. 730, 736 (1987).
The Supreme Court has held that “the exposure of a witness’ motivation in testifying is a proper and
important function of the constitutionally protected right of cross-examination.” Davis v. Alaska,
415 U.S. 308, 316-17 (1974) (citing Greene v. McElroy, 360 U.S. 474, 496 (1959)). Accord
Pennsylvania v. Ritchie, 480 U.S. 39, 51-52 (1987) (“[T]he right to cross-examine includes the
opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.”).
However, trial courts retain broad discretion regarding the conduct of cross examination and may
“impose reasonable limits on such cross-examination based on concerns about, among other things,
2
Gonzales also argues that the State’s withholding of evidence hindered him from cross-
examining Rodriguez. This argument is co-extensive with Gonzales’ Brady claim and is discussed
in Section VI below.
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harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive
or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). The Court has
cautioned that “[g]enerally speaking, the Confrontation Clause guarantees an opportunity for
effective cross-examination, not cross-examination that is effective in whatever way, and to whatever
extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20 (1985). Thus, a trial
court’s limitation on cross-examination regarding a witness’ bias violates the Confrontation Clause
when “[a] reasonable jury might have received a significantly different impression of [the witness’]
credibility had . . . counsel been permitted to pursue his proposed line of cross-examination.” Van
Arsdall, 475 U.S. at 680.
At trial, the court limited Gonzales’ questioning regarding the illegality of Rodriguez’s
sentence. Gonzales tried to establish during cross-examination that Rodriguez had received an
illegally short sentence in exchange for his testimony. Gonzales’ questioning was based upon
Rodriguez’s receipt of a five-year sentence for possessing at least 100 grams of crack cocaine
pursuant to a plea bargain when the mandatory minimum sentence for this offense was ten years
imprisonment. The trial court allowed Gonzales to inquire into whether Rodriguez entered into a
plea bargain, the length of his current sentence, and whether he could receive a sentence reduction
for his testimony. However, the trial court did not allow Gonzales to inquire into the specific length
of imprisonment Rodriguez faced in the absence of a plea bargain nor into the purported illegality
of his shortened sentence. The Ohio Court of Appeals held that the trial court’s limitation on
questions regarding Rodriguez’s understanding of the mandatory minimum sentence although
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“technically erroneous” was “not an abuse of discretion” and did not violate Gonzales’ Sixth
Amendment rights. Gonzales, 783 N.E.2d at 916.
Gonzales claims that the trial court’s decision violated his Confrontation Clause rights by
inhibiting his ability to cast doubt upon Rodriguez’s motives and incentives for testifying. For this
proposition, Gonzales cites extensively to Banks v. Dretke, 540 U.S. 668 (2004). In Banks the
Supreme Court determined that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by
failing to disclose a key witness’ status as a paid police informant. The Court found a witness’
informant status to be material due to the probability that the jury would have discounted the
witness’ testimony if the jury knew of the witness’ added incentive to cooperate at trial. Banks v.
Dretke, 540 U.S. at 701. The Court also noted that the jury was further put at a disadvantage by the
inability of the defendant to effectively cross-examine the witness regarding his credibility. Id. at
701-02.
Banks did not explicitly involve the Confrontation Clause and made no pronouncements on
the constitutionally-mandated scope of cross-examination. However, to the extent that Banks
highlighted the importance of the opportunity to cross-examine regarding a witness’ bias, the trial
court did not act contrary to this principle and deprive Gonzales of the opportunity to meaningfully
cross-examine Rodriguez. Gonzales’ counsel engaged in extensive cross-examination regarding
Rodriguez’s truthfulness, the existence of a plea bargain, the bargained-for sentence, and the
possibility of a sentence reduction as a result of his testimony. The trial court only restricted counsel
from questioning Rodriguez regarding the potential length of his sentence absent a plea bargain and
the legality his sentence. Gonzales has not shown that information regarding the allegedly illegal
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duration of Rodriguez’s sentence would have added to the jury’s understanding of Rodriguez’s
potential bias. See United States v. Nelson, 39 F.3d 705, 709 (7th Cir. 1994) (Confrontation Clause
was not violated where the defendant was not permitted to question a government witness about the
length of the prison sentence he would have faced absent a plea bargain); Brown v. Powell, 975 F.2d
1, 5-6 (1st Cir. 1992) (same).
III. JURY INSTRUCTIONS CLAIM
A. Preservation of the Issue
The district court determined that Gonzales had failed to preserve his federal constitutional
challenge to the jury instructions given by the trial court because his arguments in state court were
based solely upon state law. A habeas petitioner must exhaust “the remedies available in the courts
of the State.” 28 U.S.C. 2254(b)(1)(A). To fulfill this exhaustion requirement, a petitioner must
fairly present the factual and legal basis for his claims in order to give state courts a full and fair
opportunity to adjudicate such claims. Anderson v. Harless, 459 U.S. 4, 6-7 (1982); Picard v.
Connor, 404 U.S. 270, 275 (1971). The Supreme Court has held that this requirement of fairly
presenting a federal claim to state courts does not require extensive elaboration:
A litigant wishing to raise a federal issue can easily indicate the federal law basis for
his claim in a state-court petition or brief, for example, by citing in conjunction with
the claim the federal source of law on which he relies or a case deciding such a claim
on federal grounds, or by simply labeling the claim “federal.”
Baldwin v. Reese, 541 U.S. 27, 32 (2004). The Supreme Court recently examined the specificity
necessary to fairly present a federal claim to state courts when it reversed this Court’s decision in
Dye v. Hofbauer, 111 F. App’x 363 (6th Cir. 2004). In Dye v. Hofbauer, 546 U.S. 1 (2005), the
Court held that a petitioner fairly presented his federal claims when he argued in a state court brief
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that he was denied due process of law and a fair trial, linked his argument to constitutional
amendments, and cited federal cases. Id. at 3-4.
In order to determine whether a claim has been fairly presented to state courts, this Court
examines whether the petitioner presented his claim in one of four ways in state court:
(1) rel[ying] upon federal cases employing constitutional analysis; (2) rel[ying] upon
state cases employing federal constitutional analysis; (3) phrasing the claim in terms
of constitutional law or in terms sufficiently particular to allege a denial of a specific
constitutional right; or (4) alleging facts well within the mainstream of constitutional
law.
Whiting v. Burt, 395 F.3d 602, 613 (6th Cir. 2005) (quoting McMeans v. Brigano, 228 F.3d 674, 681
(6th Cir.2000)). Applying this test to Gonzales’ case leads to the conclusion that Gonzales fairly
presented his federal claims to the state courts.
In his brief to the Ohio Court of Appeals, Gonzales stated: “The Sixth Amendment right to
jury trial includes the right to a jury that is fairly and properly instructed. Cheek v. United States
(1991), 498 U.S. 192, 111 S. Ct. 604.” (J.A. 930.) He then proceeded to argue that his right to a jury
trial was denied. On the face of the brief, it is clear that Gonzales both relied “upon federal cases
employing constitutional analysis” and phrased “the claim in terms of constitutional law.” Whiting,
395 F.3d at 613. The district court disregarded this portion of Gonzales’ brief, noting that the
analysis of jury instructions conducted in Cheek was not relevant to the jury instructions at issue in
this case.
While the district court is correct that Cheek does not lend much support to Gonzales’ claim,
this observation is largely beside the point. The Cheek court held that it was error for a trial court
to instruct the jury to disregard evidence that could have been interpreted to negate the government’s
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proof of an element of the crime charged and that such error raised serious Sixth Amendment
concerns. Cheek v. United States, 498 U.S. 192, 203 (1991). Despite the weakness of his claim
under this precedent, by citing Cheek, Gonzales made clear “the federal law basis for his claim,”
Baldwin, 541 at 32, in this case the jury trial right embodied in the Sixth Amendment. See Fulcher
v. Motley, 444 F.3d 791, 798 (6th Cir. 2006) (holding that petitioner who discussed federal
constitutional violations but “cited the wrong cases in support of his constitutional claim” fairly
presented his federal claim). Because Gonzales fairly presented his jury instructions claim, this
claim cannot be dismissed on exhaustion grounds.
The State attempts to justify the district court’s determination that Gonzales’ Sixth
Amendment jury instruction argument was not fairly presented to the state courts by citing Slaughter
v. Parker, 450 F.3d 224 (6th Cir. 2006). In Slaughter this Court determined that a claim was not
fairly presented where the petitioner made a general reference to the Fourteenth and Sixth
Amendments. Slaughter, 450 F.3d at 236. This Court found that one general reference to the
Constitution was insufficient to fairly present a federal claim to state courts. Id. Although Slaughter
is arguably inconsistent with the Supreme Court precedent discussed above, see id. at 251-52 (Cole,
J., dissenting), Gonzales’ has fairly presented his claims to the state courts even under the strict
interpretation of this requirement espoused by Slaughter. Gonzales’ presentation to the state
appellate courts was more detailed than Slaughter’s inasmuch as Gonzales cited not only the
constitutional amendment relevant to his claim, but also a federal case specifically addressing denial
of the Sixth Amendment right to jury trial. See Slaughter, 450 F.3d at 236 (distinguishing the
Supreme Court’s decision in Dye from Slaughter’s case because Dye had “explicitly referenced four
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federal cases, all of which addressed due process violations”); see also Scuba v. Brigano, 527 F.3d
479, 486 (6th Cir. 2007) (remarking that a federal issue is fairly presented where petitioner cites the
applicable federal constitutional amendment and a case applying the constitutional principle at
issue). As a result, Gonzales fairly presented his Sixth Amendment jury instructions argument to
the state courts and has thus preserved this issue for review before this Court.
B. Analysis
Gonzales claims that the trial court’s erroneous jury instructions deprived him of his Sixth
Amendment right to trial by jury. Generally, the constitutionality of jury instructions is governed
by the Due Process clause of the Fifth and Fourteenth Amendments. See e.g., Estelle v. McGuire,
502 U.S. 62 (1991) (due process is violated where a defective instruction “infected the entire trial”).
However, the Sixth Amendment is implicated if defective instructions remove from the jury’s
consideration a necessary element of the prosecutor’s case. Cheek, 498 U.S. at 203.
Gonzales has presented no proof that such a situation existed at his trial. Gonzales claims
that the judge should not have given a complicity instruction and should have given Gonzales’
proposed instruction regarding the credibility of a co-defendant’s testimony. Gonzales does not
claim that the judge’s instructions usurped the jury’s factfinding role in any way. Gonzales instead
argues that the jury instructions violated Ohio law. These arguments are irrelevant to this Court’s
analysis inasmuch as “the fact that the instruction[s] w[ere] allegedly incorrect under state law is not
a basis for habeas relief.” Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Because there is no
indication that the jury instructions given in this case violate federal constitutional law, Gonzales’
jury instructions claim lacks merit.
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IV. APPRENDI CLAIM3
Gonzales’ claim that Ohio’s MDO specification statute is unconstitutional is based upon the
Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000). The Apprendi court held
that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490. The Sixth Amendment is violated “[w]hen a judge inflicts
punishment that the jury’s verdict alone does not allow.” Rita v. United States, 127 S. Ct. 2456,
2466 (2007) (quoting Blakely v. Washington, 542 U.S. 296, 303-04 (2004)). Gonzales claims that
the MDO specification statute violates the Sixth Amendment by requiring the trial court to make a
finding that a defendant is a major drug offender. This argument is meritless because the trial court
is not required to make an additional factual finding in order to apply the MDO specification.
Included in Ohio’s definition of a major drug offender is “an offender who is convicted of
or pleads guilty to the possession of, sale of, or offer to sell any drug, compound, mixture,
preparation, or substance that consists of or contains . . . at least one hundred grams of crack cocaine;
at least one thousand grams of cocaine that is not crack cocaine. . .” Ohio Rev. Code § 2929.01(X).
Gonzales objects to the statutory requirement that “[t]he court shall determine the issue of whether
an offender is a major drug offender.” Ohio Rev. Code § 2941.1410(B). However, the designation
of Gonzales as a major drug offender required no additional findings of fact to be made by the trial
court. Gonzales was charged and convicted by a jury of possessing and trafficking in at least one
hundred grams of crack cocaine and at least one thousand grams of non-crack cocaine. As a result,
3
It is undisputed that Gonzales has preserved this issue and all that follow.
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No. 06-4437
he met the statutory definition of a major drug offender, and the trial court designated him as such
and imposed the mandatory ten-year sentence resulting from a MDO specification. Ohio Rev. Code
§ 2925.14(D)(3)(a). Thus, the Ohio Court of Appeals did not unreasonably apply federal law by
determining that the trial court’s designation of Gonzales as a major drug offender did not violate
the Sixth Amendment. See Rita, 127 S. Ct. at 2466; In re Ohio Criminal Sentencing Statutes Cases,
845 N.E.2d 470, 494 (Ohio 2006) (holding that imposing punishment for MDO status complied with
Sixth Amendment as long as the judge did not impose additional punishment above the mandatory
ten-year sentence).
V. VINDICTIVE SENTENCING CLAIM
Gonzales claims that the thirty-year sentence imposed as the result of his third trial violated
his due process rights because it exceeded the twenty-year sentence imposed following his first trial.
The Due Process clause of the Fourteenth Amendment prohibits a court from imposing a harsher
sentence on a defendant to punish him for exercising his right to appeal. North Carolina v. Pearce,
395 U.S. 711 (1969). In order to protect this right, appellate courts must apply a presumption that
the trial court acted vindictively when a harsher sentence is imposed following appeal. Id. at 726.
When this presumption applies, reversal is required unless the reasons for the longer sentence are
apparent from the record. Id. The Supreme Court has recognized some exceptions to this rule for
situations in which such a presumption is not warranted. One such exception is made where a
different judge imposes sentence after appeal. Texas v. McCullough, 475 U.S. 134, 140 (1986). This
exception arises from the recognition that a sentencing judge uninvolved in the imposition of the
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earlier sentence would lack a “personal stake” in the outcome of later proceedings and would thus
have little motive to act vindictively. Id. at 140 n.3.
The judge that sentenced Gonzales after his first trial was not the same as the one who
sentenced him at his third trial. As a result, no presumption of vindictiveness applies, and Gonzales
must demonstrate actual vindictiveness on the part of the sentencing judge. Since Gonzales has
offered no such proof, the state court’s holding that Gonzales’ sentence did not violate Pearce was
not an unreasonable application of federal law.
VI. BRADY CLAIM
Gonzales claims that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by failing
to disclose the existence of a sentence reduction agreement between Rodriguez and the State. After
his third trial, Gonzales learned that Rodriguez had received a reduction in his sentence following
his testimony against Gonzales. Gonzales also procured from the State an interview tape-recorded
before Gonzales’ third trial in which Rodriguez stated that his lawyer had made a deal with
prosecutors to reduce his sentence in exchange for his testimony. As a result of this evidence,
Gonzales filed a petition for post-conviction relief, a motion for leave to file a motion for new trial,
and a motion for new trial, all of which were denied by the state trial court. This denial was affirmed
by the Ohio Court of Appeals, which held that the newly-discovered evidence was not material to
Gonzales’ case.
The Due Process Clause of the Fourteenth Amendment requires the prosecution to reveal all
evidence that is favorable to the defendant’s case and “material to either guilt or punishment.” Brady
v. Maryland, 373 U.S. at 87. Under this standard, the prosecution is obligated to turn over not just
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No. 06-4437
exculpatory evidence but also evidence that would impeach the credibility of prosecution witnesses.
Kyles v. Whitley, 514 U.S. 419, 433 (1995) (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)). Evidence is material for Brady purposes if “the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence in the verdict.”
Banks v. Dretke, 540 U.S. 668, 69 (2004) (quoting Kyles, 514 U.S. at 435).
The materiality of the evidence that Gonzales discovered after trial must be examined in light
of the evidence adduced at trial. During direct examination, Rodriguez stated that no promises had
been made to him in exchange for his testimony. On cross-examination Rodriguez continued to
claim that no promises had been made but admitted that he had talked to police about getting a
reduction in his sentence in exchange for his testimony against Gonzales. Although Rodriguez’s
initial statement that no promises were made to him in exchange for his testimony was misleading
at best, his testimony during cross-examination gave the jury an understanding of the benefits he
could derive from testifying for the prosecution. The newly discovered evidence of the reduction
of Rodriguez’s sentence and his statement regarding a deal with prosecutors remains consistent with
his testimony that he hoped to receive a sentence reduction as a result of his testimony and that
police had said they would help him seek a sentence reduction. As a result, Gonzales has not shown
that there exists a reasonable probability that knowledge of Rodriguez’s sentencing reduction would
have resulted in a different outcome. Therefore, the state court did not unreasonably apply federal
law in holding that the prosecution did not violate Brady by failing to disclose evidence of
Rodriguez’s probable sentencing reduction.
VII. CHALLENGE TO THE MAGISTRATE JUDGE’S AUTHORITY
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In addition to his claims regarding state court proceedings, Gonzales challenges the conduct
of the proceedings in district court. Gonzales argues that the magistrate judge exceeded his authority
by responding to Gonzales’ objections to the magistrate judge’s report and recommendations.
Section 636 of Title 28 of the United States Code allows a judge to “designate a magistrate judge
to conduct hearings, including evidentiary hearings, and to submit to a judge of the court proposed
findings of fact and recommendations for disposition by a judge of the court, . . . of applications for
posttrial [sic] relief made by individuals convicted of criminal offenses . . .” 28 U.S.C. §
636(b)(1)(B). This statute further provides that parties may file objections to the magistrate judge’s
report or recommendations and that “[a] judge of the court shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which objection
is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). See Rules Governing
Section 2254 Cases in United States District Courts 8(b) (“The judge must determine de novo any
proposed finding or recommendation to which objection is made. The judge may accept, reject, or
modify any proposed finding or recommendation.”). District courts may also assign magistrate
judges “additional duties as are not inconsistent with the Constitution and laws of the United States.”
28 U.S.C. § 636(3).
Gonzales filed objections to the magistrate judge’s initial report and recommendations, and
the magistrate judge responded to these objections by issuing a supplemental report and
recommendations. The district court subsequently adopted both the initial and supplemental report
and recommendations, stating that “[t]he Court has reviewed the comprehensive findings of the
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Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the
foregoing, the Court does determine that such Recommendations should be adopted.” (J.A. 14.)
Gonzales claims that the district court erred in adopting the magistrate judge’s supplemental
recommendations since the district court and not the magistrate judge had the duty to respond to
objections. Gonzales’ claim lacks merit because the district court fulfilled its statutory duty by
conducting its own independent review of the filings and considering Gonzales’ objections de novo.
CONCLUSION
For the reasons stated above, this Court AFFIRMS the district court’s denial of Gonzales’
petition for writ of habeas corpus.
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