Gonzalez v. Ryan et al
Filing
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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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