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Castorella-Sotella v. Robinson

United States District Court, S.D. Ohio, Western Division, Dayton

January 10, 2020

CESAR CASTORELLA-SOTELLA, Petitioner,
v.
NORM ROBINSON, Warden, London Correctional Institution, Respondent.

          Thomas M. Rose District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus case brought pro se by Petitioner Cesar Castorella-Sotella under 28 U.S.C. § 2254 to obtain relief from his convictions in the Montgomery County, Ohio, Court of Common Pleas on charges of rape, kidnapping, domestic violence, and tampering with public services (Common Pleas Case No. 2016-CR-3467). The case is ripe for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 10), the Return of Writ (ECF No. 11) and Petitioner's Reply (ECF No. 15).

         Litigation History

         Petitioner was tried and convicted in the Montgomery County Court of Common Pleas on charges of rape, kidnapping, domestic violence, and tampering with public services (disconnecting a 911 call) with his wife as the victim. Represented by new counsel, he appealed his conviction to the Second District Court of Appeals, raising one assignment of error, ineffective assistance of trial counsel for failure “to examine witnesses on issues of Victim's credibility despite an unfavorable ruling in limine.” State v. Castorela[1] -Sotela, 2nd Dist. Montgomery No. 27522, 2018- Ohio-2655, ¶ 2 (Jul. 6, 2018).

         Under this one assignment of error, Petitioner raised three issues:

(¶ 6} Castorela-Sotela's assignment of error raises three issues related to the performance of his attorney at trial. First, he contends his attorney provided ineffective assistance by failing to cross examine his wife regarding her awareness of U-visas, which may have provided a motivation for her to fabricate her allegations against him. Second, he alleges ineffective assistance of counsel based on his attorney's failure to examine him about his own immigration status, which may have provided a reasonable explanation for his disconnection of his wife's 911 call and his failure to answer the door when police knocked. Third, he asserts that his attorney provided ineffective assistance by failing to call two defense witnesses who would have testified about the “general awareness” of U-visas in the Hispanic community.

Castorela-Sotela, 2018-Ohio-2655. Because the trial court had excluded this testimony by a ruling in limine, “[t]he narrow question before [the Second District] is whether Castorela-Sotella's attorney provided ineffective assistance if he failed to preserve the three evidentiary issues set forth above by not raising them again at trial.” Id. at ¶ 8. Applying the governing federal standard for ineffective assistance of trial counsel from Strickland v. Washington, 466 U.S. 668 (1984), id. at ¶ 7, the Second District found no ineffective assistance of trial counsel regarding these three evidentiary issues and affirmed the conviction. Id. at ¶¶ 9-16. The Supreme Court of Ohio declined to accept jurisdiction over Petitioner's appeal. State v. Castorela-Sotela, 2018-Ohio- 3868.

         On June 27, 2018, Petitioner filed a petition for post-conviction relief under Ohio Revised Code § 2953.21 (State Court Record, ECF No. 10, PageID 154-167). The trial court denied the Petition, id. at PageID 185-93, and Castorella-Sotella did not appeal. On September 7, 2018, he filed an application to re-open his direct appeal under Ohio R.App.P. 26(B). Id. at PageID 194-215 The Second District denied the application. State v. Castorela-Sotella, 2nd Dist. Montgomery No. 27522 (unreported; copy at State Court Record, ECF No. 10, PageID 228-32), and the Supreme Court of Ohio declined review. State v. Castorella-Sotella, 2019-Ohio-345.

         Petitioner then filed his habeas corpus Petition in this Court, pleading the following grounds for relief:

Ground One: Trial counsel's objectively unreasonable deficient performance deprive Petitioner of his right to effective assistance of counsel of the 6th Amendment, U.S. Constitution.
Supporting Facts: Counsel failed to complete a reasonable pretrial investigation by failing to interview or investigate victim; by failing to introduce victim and Petitioner's illegal alien status to the jury; by failing to cross-examine victim to her knowledge of the U-visa or her intent to apply for this visa; by failing to attack victim's motive for falsifying the consensual sex acts into an act of rape. Petitioner [was] prejudice[d] by counsel's performance because it deprived him of his right to a fair trial, effective representation, procedural due process, to fully test State's case.
Ground Two: Appellate counsel objectively unreasonabl [sic] deprived Petitioner of procedural due process, equal law, fairness, counsel of the 5th, 6th, 14th Amendment, U.S. Constitution.
Supporting Facts: Counsel failed to raise reviewable constitutional issues that were clearly on the face of the record; trial counsel failed to investigate or interview victim, other witnesses with impeachment evidence; trial counsel failed to introduce victim-Petitioner illegal alien status; failed to attack victim motive for falsifying rape charge, desire to obtain U-visa; counsel failure to raise assignment trial court erred in denying Petitioner's Crim. R. 29 motion to dismiss charges because State's evidence was insufficient to support any of the charges in the indictment. Petitioner prejudiced by Appellate Counsel's performance because it deprive[d] the Petitioner of his right to procedural due process, equal law, and fundamental fairness, effective assistance of counsel as guaranteed by the 5th, 6th, 14th Amendments, United States Constitution.
Ground Three: 2nd Dist. Court of Appeals abused its discretion denying Petitioner's App. R. 26(B), resulting in a violation of his right to procedural due process, equal law, fundamental fairness, effective assistance of the 5th, 6th, 14th Amendment[s], United States Constitution.
Supporting Facts: Petitioner had a right to have his direct appeal reopen[ed] because appellate counsel failed to raise issues on direct appeal which were clearly stronger than the losing issues counsel raised on appeal. Had the omitted issues been raised, it's a reasonable probability the outcome of the direct appeal would have been different.

(Petition, ECF No. 1, PageID 5, 6, 8.)

         Applicabl ...


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