Gonzalez v. Ryan et al

Filing 17

ORDER that the date of Mr. Gonzales' petition to this Court as stated in the background section of the R&R is modified to read March 16, 2011. Magistrate Judge Edward C. Voss's 14 R&R is accepted. Mr. Gonzales' 1 petition for writ of habeas corpus is denied with prejudice. Mr. Gonzales' 16 motion for voluntary dismissal is denied. A certificate of appealability and leave to proceed in forma pauperis are denied because Mr. Gonzales has made no substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court is directed to terminate this action. Signed by Judge David G Campbell on 12/13/11. (ESL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Petitioner,

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No. CV11-0502-PHX-DGC

Carlos Gonzales,

ORDER

vs.
Charles L. Ryan, et al.,
Respondents.

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Following a jury trial in Maricopa County Superior Court in 2006, Petitioner

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Carlos Gonzales was found guilty of second degree murder and aggravated assault.

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Doc. 11, Exh. E, F. The trial court sentenced Mr. Gonzales to 20 years in prison for the

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murder conviction and a consecutive term of 11.25 years for the aggravated assault

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conviction. Doc. 11, Exh. H. The Court also sentenced Petitioner to 9.75 years in prison

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for three prior felonies. Id.

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Mr. Gonzales filed a petition for writ of habeas corpus pursuant to

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28 U.S.C. ' 2254, alleging that the trial court’s answer to the jury’s question about

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accomplice liability and transferred intent was incorrect as a matter of law, thus calling

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into question the jury’s verdict on the murder charge. Doc. 1 at 6. Mr. Gonzales alleges

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that the erroneous answer allowed the jury to convict on a legal theory in contravention

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of the Due Process Clause and the Sixth Amendment right to effective assistance of

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counsel. Id. The Court referred the petition to United States Magistrate Judge Edward C.

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Voss for report and recommendation ("R&R"). Doc. 3. Judge Voss recommended that

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the Court deny the petition because Mr. Gonzales failed to raise the jury question on

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direct appeal in state court and failed to present a constitutional or federal issue with

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respect to this claim when he raised it for the first time in his state court petition for post-

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conviction relief (“PCR”). Doc. 14 at 4. Even construing Mr. Gonzales’ claim as

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presenting a constitutional issue, Judge Voss concluded that Mr. Gonzales failed to

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exhaust his claim in state court by seeking appellate review. Id. at 5. Because the time

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had passed for Mr. Gonzales to seek relief in state court, Judge Voss concluded that the

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claim was procedurally barred. Id.
Mr. Gonzales filed objections to the R&R. Doc. 15. For the reasons that follow,

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the Court will accept the R&R’s conclusions and deny the petition.

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I.

Standard of Review.

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A party may file specific written objections to the R&R’s proposed findings and

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recommendations. The Court must undertake de novo review of those portions of the

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R&R to which specific objections are made. The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the Magistrate Judge.

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Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1).

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II.

Analysis.

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Mr. Gonzales objects to the statement in the background section of the R&R that

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he filed his habeas petition with this Court on March 14, 2010. Doc. 15 at 3. The Court

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finds that Mr. Gonzales filed his petition on March 16, 2011. Doc. 1. The Court will

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modify the background section to reflect the correct date. Mr. Gonzales does not object

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to any other facts in the background section, and the Court will accept the rest of the

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background facts as stated in the R&R.

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Mr. Gonzales objects to the R&R’s finding of procedural default for his failure to

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file a petition for post-conviction relief with the state Court of Appeals because, he

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argues, he alleged both cause and prejudice and a fundamental miscarriage of justice, and

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the procedural default should be excused. Doc. 15 at 2. Mr. Gonzales argues that he

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properly presented his jury question claim – including the federal theory of the claim – in

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his initial petition for post-conviction relief, and that his sole failure to submit his petition

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for review by the state Court of Appeals was due not to any fault of his own, but to

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abandonment by his post-conviction counsel. Doc. 15 at 4. Mr. Gonzales argues that the

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failure of his post-conviction attorney to submit an appeal, thus procedurally defaulting

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his claim, caused him prejudice because the constitutional violation at issue infected his

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trial. Id. at 2. Mr. Gonzales also argues that a miscarriage of justice would result if his

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petition is denied because he is actually innocent. Id.

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Judge Voss addressed the question of whether Mr. Gonzales’ procedural default

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should be waived due to ineffective assistance of post-conviction counsel and determined

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that Mr. Gonzales had not raised this argument in his habeas petition and had not

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presented sufficient facts to show that his post-conviction counsel’s actions rose to the

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level of a constitutional violation. Doc. 14 at 5 (citing Coleman v. Thompson, 501 U.S.

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722, 755 (1991) (stating that ineffectiveness assistance of counsel does not show cause to

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excuse default when there is no constitutional right to counsel in state collateral review

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proceedings)). Mr. Gonzales has presented no specific objections to the R&R’s findings

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on this claim that require this Court to exercise de novo review. See Thomas v. Arn, 474

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U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) (stating that no review at all is

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required for “any issue that is not the subject of an objection.”); United States v. Reyna-

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Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (same).

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Mr. Gonzales has, however, presented new factual evidence for his ineffective

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assistance of counsel claim, including that counsel “dropped off the radar” while

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remaining counsel of record up to the time of default (Doc. 15 at 3), which requires the

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Court to determine whether it will consider these new facts. See United States v. Howell,

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231 F. 3d 615, 622 (9th Cir. 2000) (emphasizing that “in making a decision on whether to

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consider newly offered evidence, the district court must actually exercise its discretion,

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rather than summarily accepting or denying the motion.”). The Court will reject Mr.

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Gonzales’ additional factual allegations as moot. Absent a constitutional requirement

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that Mr. Gonzales be represented by counsel on collateral review, the Court agrees with

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the findings in the R&R that counsel’s failure to file a timely post-conviction petition to

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the Arizona Court of Appeals does not constitute a constitutional violation as required for

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a waiver of procedural default under the Supreme Court’s decision in Coleman. Mr.

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Gonzales argues that “the Rules” precluded him from filing his own brief and that he was

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“powerless to remedy” counsel’s failure, but Mr. Gonzales does not cite any specific rule.

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Doc 15 at 3, 4. Nor has Mr. Gonzales raised the issue of cause for default in his federal

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habeas petition. Additionally, Mr. Gonzales raises no specific objections to Judge Voss’s

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finding that he failed to show that actual prejudice or a miscarriage of justice would result

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from a failure to consider his federal habeas claim on the merits. See Doc. 14 at 6. Mr.

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Gonzales merely cites to the arguments already made in his reply brief, and rejected by

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Judge Voss, that he would be prejudiced by procedural default because the trial court

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committed constitutional error and he was actually innocent. See Docs. 15 at 4; 14 at 4-5.

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Mr. Gonzales’ reference to arguments already presented is ineffective because it fails to

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make any specific objection to the findings of Judge Voss. See Thomas v. Arn, 474 U.S.

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140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003);

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Sullivan v. Schriro, No. CV-04-1517, 2006 WL 1516005 (D. Ariz. May 30, 2006).

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Mr. Gonzales also argues that the Court should dismiss his petition without

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prejudice to allow him to return to state court based on new facts and his ineffective

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assistance of counsel claim. Doc. 15 at 5. Mr. Gonzales makes this argument in a

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separately titled “Motion for Voluntary Dismissal” made “pursuant to Federal Rule of

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Civil Procedure 41.” Id. at 7, Doc. 16. Rule 41 allows the Court to dismiss an action

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upon plaintiff’s request “on terms that the court determines proper.” Fed. R. Civ. P.

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41(a)(2). The Court finds that dismissal is not proper because this Court’s adjudication

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of Mr. Gonzales’ petition does not preclude him from seeking remedy on the basis of new

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facts and excusable default in state court under Arizona Rule of Criminal

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Procedure 32.1 (e) & (f). See Ariz. R. Crim. P. 32.2(b) (noting that adjudication in a

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collateral proceeding does not preclude claims brought under Rule 32.1(d)-(h)).

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IT IS ORDERED:

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1.

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The date of Mr. Gonzales’ petition to this Court as stated in the background

section of the R&R is modified to read March 16, 2011.

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2.

Magistrate Judge Edward C. Voss’s R&R (Doc. 14) is accepted.

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3.

Mr. Gonzales’ petition for writ of habeas corpus (Doc. 1) is denied with

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prejudice.

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4.

Mr. Gonzales’ motion for voluntary dismissal (Doc 16) is denied.

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5.

A certificate of appealability and leave to proceed in forma pauperis are

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denied because Mr. Gonzlaes has made no substantial showing of the denial of a

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constitutional right. See 28 U.S.C. § 2253(c)(2).

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6.

The Clerk of the Court is directed to terminate this action.

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Dated this 13th day of December, 2011.

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