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Subdiaz-Osorio v. Clements

United States District Court, E.D. Wisconsin

June 22, 2017

NICOLAS SUBDIAZ-OSORIO, Petitioner,
v.
MARC CLEMENTS, Respondent.

          DECISION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1)

          HON. PAMELA PEPPER United States District Judge.

         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.

         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 Miranda[2] warnings in Spanish, and had him sign a waiver form titled “Waiver of Constitutional 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. 11-2 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 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. 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.

         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 ...


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