Gonzalez-Barrera v. Ryan et al

Filing 20

ORDER: IT IS ORDERED adopting Magistrate Judge Metcalf's R&R (Doc. 19 ) in its entirety and incorporating same into this Order; denying the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) and dismissing this mat ter with prejudice. IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to proceed in forma pauperis on appeal in this matter because the dismissal of the instant Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge John J Tuchi on 9/02/2016. (REK)

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NOT FOR PUBLICATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sergio F. Gonzalez-Barrera,
Petitioner,

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ORDER

v.

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No. CV-15-08024-PCT-JJT

Charles L. Ryan, et al.,

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Respondents.

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At issue is Petitioner Sergio F. Gonzalez-Barrera’s Petition under 28 U.S.C. §2254

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for Writ of Habeas Corpus (Doc. 1). United States Magistrate Judge James F. Metcalf

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issued a Report and Recommendation (“R&R”) in the matter recommending denial and

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dismissal of the Petition (Doc. 8). The time to object passed over five months ago and no

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party has objected, timely or otherwise. The Court thus may accept the R&R without

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further review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). The

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Court nonetheless has conducted its own review of the Petition, and for the reasons set

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forth in the R&R, it will deny and dismiss the Petition.

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In the R&R, Judge Metcalf thoroughly analyzed the issues involved in the instant

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Petition, and because this Court will adopt the recommendations set forth in the R&R, it

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will not restate those issues or their resolution here in detail. The R&R correctly

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concluded that Petitioner failed to raise what he now presents as Ground Two in the

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Petition—a federal due process claim attendant to the state court’s alleged failure to

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weigh mitigating and aggravating factors at sentencing—and thus that claim is

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unexhausted and now procedurally barred. While Petitioner argues his federal claim was

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obvious, Judge Metcalf correctly notes that “obviousness is not sufficient.” (Doc. 19 at p.

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25.) See Insyxiengmay v. Morgan, 403 F.3d 657, 68 (9th Cir, 2005).

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Petitioner’s Ground Three—arguing the prosecution violated the plea agreement

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by emphasizing the sentence Petitioner would have received had he not accepted the plea

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agreement and gone to trial—was properly exhausted but, as Judge Metcalf correctly

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found, fails on its merits. The PCR court found that the prosecution had lived up to its

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agreement in recommending, and continuing to recommend, a thirteen year sentence to

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the sentencing judge. The Arizona Court of Appeals, in reviewing the PCR court’s

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findings, endorsed and adopted them on this point. As Judge Metcalf found, Petitioner

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has identified no mistake of fact in those findings, nor has he shown how the decision

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was either contrary to or an unreasonable application of federal law. Ground Three will

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be denied on the merits.

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Petitioner’s Ground One—wherein he argues his sentence violated the Eighth

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Amendment’s prohibition against cruel and unusual punishment—is also properly denied.

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Judge Metcalf found in the first instance that Petitioner waived this claim in his plea

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agreement. The Court has become aware of a fairly recent case, Lemke v. Ryan, which

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potentially calls into question the validity of the waiver. 719 F.3d 1093 (9th Cir. 2013).

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Nonetheless, Judge Metcalf also analyzed Ground One on the merits and concluded

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correctly that, even absent a waiver, the claim failed. (Doc. 19 at pp. 33-42.) After

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correctly concluding that the applicable standard of review on this issue was de novo, as

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the state court decided the issue not on the merits but upon the application of a procedural

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bar, Judge Metcalf applied a proportionality analysis as required under federal law. The

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Eighth Amendment forbids sentences that are “grossly disproportionate” to the crime.

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Harmelin v. Michigan, 501 U.S. 957, 1001 (1991). Upon a review of the circumstances of

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the offense gleaned from the record on review, and also set forth in great detail in the

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R&R, the Court agrees with Judge Metcalf that while the sentence in this matter is

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“substantial, and even arguably disproportionate….it is not grossly disproportionate.”

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(Doc. 19 at p. 40.) Petitioner’s Ground One fails on the merits.

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IT IS ORDERED adopting Magistrate Judge Metcalf’s R&R (Doc. 19) in its
entirety and incorporating same into this Order.
IT IS FURTHER ORDERED denying the Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254 (Doc. 1) and dismissing this matter with prejudice.

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IT IS FURTHER ORDERED denying a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal in this matter because the dismissal of the instant

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Petition is justified by a plain procedural bar and jurists of reason would not find the

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procedural ruling debatable.
Dated this 2nd day of September, 2016.

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Honorable John J. Tuchi
United States District Judge

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