Gutierrez v. Ryan et al

Filing 21

ORDER ADOPTING REPORT AND RECOMMENDATION in full re: 19 Report and Recommendation with additional analysis as set forth herein. The Petition for Writ of Habeas Corpus (Doc. 1 ) is denied. A Certificate of Appealability and leave to proceed in f orma pauperis on appeal are denied because dismissal of portions of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable and other portions of the petition do not make a substantial showing of the denial of a constitutional right. Signed by Senior Judge Roslyn O Silver on 7/6/17. (DXD)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Augustine Villanueva Gutierrez, Petitioner, 10 11 ORDER v. 12 No. CV-16-00032-PHX-ROS Charles L Ryan, et al., 13 Respondents. 14 15 In January 2012, Petitioner Augustine Villanueva Gutierrez pled guilty to 16 aggravated assault and received a sixteen-year prison term. Gutierrez now claims he 17 received ineffective assistance of counsel during the plea proceedings, the trial court and 18 prosecutor lied about the evidence against him to coerce him to plead guilty, and he 19 received ineffective assistance of counsel during post-conviction relief proceedings. 20 Magistrate Judge Eileen S. Willett issued a Report and Recommendation (“R&R”) 21 concluding Gutierrez was not entitled to relief under any of these theories. Gutierrez 22 filed objections but, while they raise potentially valid points about discrete portions of the 23 R&R, he is not entitled to relief. 24 BACKGROUND 25 In February 2010, Gutierrez turned in front of another vehicle, causing the other 26 vehicle to hit Gutierrez’s vehicle. A passenger in the other vehicle suffered a broken arm 27 as a result. At the time of the collision Gutierrez’s blood alcohol level was well above 28 the legal limit. Gutierrez was charged in state court with aggravated assault based on the 1 2 injury to the passenger in the other vehicle. In January 2012, Gutierrez agreed to plead guilty to the aggravated assault charge 3 in exchange for a sixteen-year sentence. 4 actions qualified as aggravated assault because he recklessly caused physical injury to 5 another person using a “deadly weapon or dangerous instrument,” i.e. his vehicle. A.R.S. 6 §§ 13-1203; 13-1204(A)(2). At the sentencing, Gutierrez was asked “Did you make a 7 reckless turn using a car, a dangerous instrument, that caused a broken arm to a 8 [passenger in the other vehicle]?” Gutierrez responded “Yes, your honor.” (Doc. 18-1 at 9 13). Gutierrez was then sentenced to sixteen years. 10 Under the applicable statutes, Gutierrez’s Shortly after his sentencing, Gutierrez filed a petition for post-conviction relief 11 (“PCR petition”). 12 collision and did not know how it happened. But after he was sentenced, Gutierrez 13 learned the other vehicle had hit his vehicle. Gutierrez argued this information was 14 vitally important such that he should have been informed of it prior to pleading guilty. 15 More particularly, Gutierrez claimed his attorney had provided ineffective assistance of 16 counsel by failing to provide him with documents indicating the true circumstances of the 17 collision. The trial court denied the PCR petition, finding Gutierrez had not established 18 his counsel’s performance had been deficient nor had Gutierrez established he suffered 19 any prejudice as a result of his counsel’s performance. Gutierrez then filed a petition for 20 review with the Arizona Court of Appeals. According to his PCR petition, Gutierrez did not remember the 21 The petition for review again focused on the alleged failure by Gutierrez’s counsel 22 to turn over documents regarding the circumstances of the collision. Gutierrez explained 23 his counsel had been ineffective because, at the time of his guilty plea, Gutierrez was 24 confused about “who hit who” and if he had known the other vehicle had hit his, he 25 would not have plead guilty. (Doc. 14 at 32). Gutierrez further claimed the actual 26 circumstances of the collision meant he could not have been guilty of aggravated assault. 27 According to Gutierrez, the only possible crimes he committed were “failure to yield to 28 the right of away . . . and driving under the influence.” (Doc. 14 at 33). The Arizona -2- 1 Court of Appeals granted review but denied relief. 2 The Arizona Court of Appeals’ decision described Gutierrez as asserting three 3 theories of ineffective assistance of counsel. The first two theories were that counsel had 4 not obtained the police report and that counsel lied to Gutierrez about the circumstances 5 of the collision. 6 prejudiced by these alleged errors because the precise circumstances of the collision were 7 not material to Gutierrez’s guilt. That is, the fact that Gutierrez turned in front of the 8 other vehicle and caused the collision was a sufficient basis for an aggravated assault 9 conviction. The third theory of ineffective assistance of counsel was counsel’s advice not 10 to accept a plea deal for 7.5 years of prison time. The court of appeals concluded this 11 theory had no basis in fact because no such plea offer was ever made. Gutierrez did not 12 seek review by the Arizona Supreme Court. The court of appeals found Gutierrez had not established he was 13 Approximately four months after the court of appeals’ decision, Gutierrez filed his 14 federal petition. The Court construed his petition as presenting four claims: 1) ineffective 15 assistance of counsel during the plea negotiations; 2) the trial court coerced Gutierrez into 16 pleading guilty by lying about the evidence against him; 3) the prosecutor coerced 17 Gutierrez into pleading guilty by lying about the evidence against him; and 4) Gutierrez’s 18 post-conviction relief attorney was ineffective by failing to assert the second and third 19 grounds during the post-conviction review process. (Doc. 7). In responding to the 20 petition, Respondents conceded the first claim of ineffective assistance of counsel should 21 be reviewed on the merits but stated Gutierrez is not entitled to relief. Respondents 22 argued the other three claims were not properly before the Court. The R&R agrees with 23 Respondents. Gutierrez filed objections which are difficult to follow and do not establish 24 any material error in the R&R’s conclusions. 25 ANALYSIS 26 The parties agree Gutierrez’s first claim must be reviewed on the merits. That 27 claim is that Gutierrez received ineffective assistance of counsel during the plea 28 bargaining process. The undisputed facts are that Gutierrez turned in front of the other -3- 1 vehicle and that vehicle then hit Gutierrez’s. 2 provided ineffective assistance by not arguing these facts were insufficient to establish 3 aggravated assault. 4 provide Gutierrez with the documents explaining the circumstances of the collision and 5 then allowing Gutierrez to plead guilty. The problem for Gutierrez is that his arguments 6 are based on a misunderstanding of Arizona’s applicable aggravated assault statute. According to Gutierrez, his counsel Gutierrez also claims his counsel was ineffective by failing to 7 In claiming the circumstances of the collision were relevant to his situation, 8 Gutierrez cites to a number of Arizona cases interpreting a previous statute criminalizing 9 assault with a deadly weapon. Under that previous statute, “a conviction of assault with a 10 deadly weapon in which the alleged weapon is an automobile” required “evidence that 11 the vehicle was ‘aimed’ at the victim with the actual intent to use the automobile as a 12 deadly weapon.” State v. Reim, 549 P.2d 1046, 1048 (1976) (citing A.R.S. § 13-249(A)). 13 Gutierrez claims he did not “aim” his vehicle at the victim, meaning he could not have 14 been guilty of assault. But the statute Gutierrez relies on was repealed as of October 15 1978. The current aggravated assault statute does not require evidence of aiming one’s 16 vehicle. Instead, as pointed out by the Arizona Court of Appeals in Gutierrez’s post- 17 conviction relief proceedings, turning in front of another vehicle and causing a collision 18 can be sufficient to support an aggravated assault conviction. Thus, all of counsel’s 19 alleged failures in connection with Gutierrez’s flawed legal theory were not, in fact, 20 failures. It was neither deficient performance nor prejudicial for Gutierrez’s counsel to 21 not pursue a meritless legal theory based on a repealed statute. 22 Gutierrez’s second and third claims are based on the state court and prosecutor 23 inducing Gutierrez to plead guilty by lying to him about the circumstances of the 24 collision. Gutierrez explains the court and prosecutor both described the relevant events 25 as Gutierrez hitting the victim’s vehicle, instead of the victim’s vehicle hitting 26 Gutierrez’s. Claiming the court and prosecutor mislead him appears to be an attempt by 27 Gutierrez to establish his guilty plea was not voluntary. See Little v. Crawford, 449 F.3d 28 1075, 1080 (9th Cir. 2006) (discussing requirements for knowing and voluntary guilty -4- 1 pleas). Gutierrez did not present these claims to the state courts. Therefore, these claims 2 are unexhausted and the Court need not address them. 3 Even if the Court were to consider these claims on the merits, Gutierrez is not 4 entitled to relief. See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (pursuant to 5 28 U.S.C. § 2254(b)(2), “a federal court may deny an unexhausted petition on the merits 6 only when it is perfectly clear that the applicant does not raise even a colorable federal 7 claim”). Gutierrez’s guilty plea claims are similar to his ineffective assistance of trial 8 counsel claim in that they are based on Gutierrez’s belief that the precise circumstances 9 of the collision were relevant to his decision to plead guilty. As set out above, that belief 10 is based on a misunderstanding of the governing aggravated assault statute. Moreover, 11 while the state court or prosecutor may have described the collision in slightly inaccurate 12 terms at times, during the hearing where Gutierrez entered his guilty plea the trial court 13 accurately described the collision. In light of that, Gutierrez does not explain how any 14 earlier descriptions coerced him into pleading guilty. In short, the record provides no 15 support for Gutierrez’s coercion claims. 16 Gutierrez’s fourth and final claim is ineffective assistance of post-conviction relief 17 counsel based on that counsel’s failure to argue grounds two and three during the post- 18 conviction relief process. The R&R concluded this claim was not exhausted. It is 19 possible, however, that this type of claim need not be exhausted in state court. See, e.g., 20 Dickens v. Ryan, 740 F.3d 1302, 1322 n.17 (9th Cir. 2014) (noting in potentially 21 analogous circumstances there is “no requirement that the claim of ineffective assistance 22 of PCR counsel as cause for an ineffective-assistance-of-[trial]-counsel claim be 23 presented to the state courts”). But even assuming the claim need not be exhausted, it 24 fails on the merits because Gutierrez’s post-conviction relief counsel had no obligation to 25 raise obviously non-meritorious issues. Gutierrez’s coercion claims have no support in 26 the record and counsel could not have been ineffective by failing to pursue them. 27 Therefore, Gutierrez is not entitled to relief. 28 Accordingly, -5- 1 2 3 4 IT IS ORDERED the Report and Recommendation (Doc. 19) is ADOPTED IN FULL with additional analysis as set forth above. IT IS FURTHER ORDERED the Petition for Writ of Habeas Corpus (Doc. 1) is DENIED. 5 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 6 proceed in forma pauperis on appeal are DENIED because dismissal of portions of the 7 petition is justified by a plain procedural bar and jurists of reason would not find the 8 procedural ruling debatable and other portions of the petition do not make a substantial 9 showing of the denial of a constitutional right. 10 Dated this 6th day of July, 2017. 11 12 13 Honorable Roslyn O. Silver Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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