Gonzalez #232387 v. Ryan et al

Filing 15

ORDER: IT IS ORDERED that the 1 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, filed on 7/26/12 by Richard Joe Gonzalez, is DENIED. It is further Ordered DENYING the petitioner a certificate of appealability. The Clerk is directed to prepare a judgment and close the case. Signed by Magistrate Judge Leslie A Bowman on 4/16/14.(BAC)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Joe Gonzalez,
Petitioner,

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vs.

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Charles L. Ryan; et al.,

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Respondents.

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No. CIV 12-566-TUC-LAB
ORDER

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Pending before the court is a petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254, filed on July 26, 2012, by Richard Joe Gonzalez, an inmate confined in the Arizona

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State Prison Complex in Florence, Arizona. (Doc. 1)

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Magistrate Judge Bowman presides over this action pursuant to 28 U.S.C. § 636(c).
(Docs. 11, 13)
The petition will be denied. Trial counsel was not ineffective, and Gonzalez’s remaining
claims do not raise issues of federal constitutional law.

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Summary of the Case

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Gonzalez was found guilty after a jury trial of one count of continuous sexual abuse of

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a child. (Doc. 10-1, p. 2) On June 30, 2008, the trial court sentenced Gonzalez to 20 years’

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imprisonment followed by community supervision. (Doc. 10-1, p. 6)

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On direct appeal, Gonzalez argued (1) the trial court erred in permitting the testimony

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of expert Wendy Dutton, (2) the trial court erred by not limiting the scope of Dutton’s

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testimony, (3) the trial court erred in denying the defense an interview of the victim’s

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representative, (4) the prosecutor violated Gonzalez’s right to remain silent during the

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questioning of detective Flores, and (5) the prosecutor improperly impeached Gonzalez with

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a prior drug conviction. (Doc. 10-1, p. 12) The Arizona Court of Appeals affirmed his

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conviction and sentence on October 20, 2009. (Doc. 10-2, p. 15) The Arizona Supreme Court

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denied review on April 7, 2010. (Doc. 10-2, p. 43)

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On June 2, 2010, Gonzalez filed notice of post-conviction relief. (Doc. 10-2, p. 45) In

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his petition he argued trial counsel was ineffective for failing to contest evidence of Gonzalez’s

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prior convictions for drug trafficking. (Doc. 10-3, pp. 7-15) The trial court denied the petition

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on April 12, 2011. (Doc. 10-3, p. 33) On July 29, 2011, the Arizona Court of Appeals granted

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review but denied relief adopting the reasoning of the trial court below. (Doc. 10-3, pp. 50-52)

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On July 26, 2012, Gonzalez filed the pending petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2254. (Doc. 1) He raises four grounds for relief:
(1) Trial counsel was ineffective for failing to contest evidence regarding
Gonzalez’s prior conviction for drug trafficking.

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(2) The trial court erred by denying the defense the opportunity to interview the
victim’s representative.

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(3) The trial court erred by allowing the testimony of Wendy Dutton.

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(4) The trial court erred by not limiting the scope of Dutton’s testimony.

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(Doc. 1)
In their answer filed on December 17, 2013, the respondents argue all of Gonzalez’s
claims may be denied on the merits. (Doc. 10) Gonzalez did not file a reply.

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Discussion

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The writ of habeas corpus affords relief to persons in custody in violation of the

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Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is

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in custody pursuant to the judgment of a state court, the writ will not be granted unless prior

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adjudication of the claim –

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(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.

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28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden if the state court
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considered the issues and made findings of fact.
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In a proceeding instituted by an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The
applicant shall have the burden of rebutting the presumption of correctness by
clear and convincing evidence.

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28 U.S.C.A. § 2254 (e)(1).
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A decision is “contrary to” Supreme Court precedent if the “state court confronted a set
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of facts that are materially indistinguishable from a decision of the Supreme Court and
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nevertheless arrived at a result different from Supreme Court precedent.” Vlasak v. Superior
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Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir. 2003).

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decision is an “unreasonable application” if “the state court identified the correct legal
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principles, but applied those principles to the facts of [the] case in a way that was not only
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incorrect or clearly erroneous, but objectively unreasonable.” Id. If the state court denied on
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the merits but did not explain its reasoning, this court must independently review the record to
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determine whether the state court clearly erred in its application of Supreme Court law. Pirtle
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v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002), cert. denied, 539 U.S. 916 (2003). If the

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highest state court fails to explain its decision, this court looks to the last reasoned state court
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decision. See Brown v. Palmateer, 379 F.3d 1089, 1092 (9th Cir. 2004).

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Discussion
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In his first claim, Gonzalez argues counsel was ineffective for failing to properly cabin

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evidence of his prior felony conviction for drug trafficking. The state argues this claim should

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be denied on the merits. The court agrees.

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“Clearly established Supreme Court precedent provides a framework for examining Sixth

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Amendment ineffective assistance of counsel claims.” Miles v. Ryan, 713 F.3d 477, 486 - 487

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(9th Cir. 2013) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2054 (1984)), cert.

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denied, 134 S.Ct. 519 (2013). “To establish ineffective assistance of counsel under Strickland

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a prisoner must demonstrate both: (1) that counsel’s performance was deficient, and (2) that the

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deficient performance prejudiced his defense.” Id.

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“The first prong of the Strickland test—deficient performance—requires a showing that

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counsel’s performance fell below an objective standard of reasonableness or was outside the

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wide range of professionally competent assistance.” Id. (punctuation modified) “The test is

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highly deferential, evaluating the challenged conduct from counsel’s perspective at the time in

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issue.” Id. “This inquiry should begin with the premise that under the circumstances, the

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challenged actions might be considered sound trial strategy.” Id.

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“The second prong of the Strickland test—prejudice—requires the petitioner to

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demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of

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the trial would have been different.” Id. “A reasonable probability is a probability sufficient to

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undermine confidence in the outcome.” Id.

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This court’s review of the state court’s denial of the petitioner’s claim is “doubly

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deferential.” Miles, 713 F.3d at 487. “The issue is not whether we believe the state court’s

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determination under the Strickland standard was incorrect but whether that determination was

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unreasonable—a substantially higher threshold.” Id. (punctuation modified).

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At trial, Gonzalez took the stand in his own defense. (Doc. 10-3, p. 33) His prior felony

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conviction for drug trafficking therefore was introduced into evidence pursuant to Arizona

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Rules of Evidence 609. Id. During direct examination, trial counsel “pulled the sting” by

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informing the jury of the nature of the prior conviction – transporting marijuana. Id. During

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cross-examination, the prosecutor asked Gonzalez when he began selling drugs. Id. Gonzalez
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denied ever selling drugs. Id. The prosecutor further established that Gonzalez had been

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transporting a “large amount” of marijuana. Id. In her closing, the prosecutor referenced the

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conviction and sentence in part to argue that the abuse stopped when Gonzalez was

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incarcerated. (Doc. 10-3, p. 34) Defense counsel referenced the conviction and sentence in part

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to argue Gonzalez could not have committed the crimes on the indictment date. Id. Counsel

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“then reminded the jury that the charge was for marijuana possession and that Gonzalez pled

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guilty and paid the price for that charge.” Id. The trial court instructed the jury that the prior

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conviction could be used only on the issue of Gonzalez’s veracity, not as evidence of guilt. Id.

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In Claim (1), Gonzalez argues trial counsel was ineffective for allowing specific

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evidence of his prior felony to come into evidence. He argues counsel should have “sanitized”

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the felony by limiting the evidence to the fact of the conviction without mentioning the specific

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nature of the felony. (Doc. 1, pp. 12-13) He also argues counsel should not have allowed the

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prosecutor to “smear” him throughout the trial and during her closing. Id.

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The trial court, however, found that the amount of time the prosecutor spent discussing

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his prior felony was “minimal.” (Doc. 10-3, p. 35) Accordingly, counsel was not ineffective

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for failing to rein in her cross-examination or her closing argument. Moreover, the trial court

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noted that trial counsel had a compelling reason not to sanitize the prior felony: If the fact of

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the felony conviction was introduced without any further explanation, there was a real chance

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the jury would speculate that the prior felony was for some other crime involving sex or

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children. (Doc. 10-3, p. 35) It was therefore sound trial strategy to inform the jury of the nature

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of the prior felony. Moreover, counsel was able to use the testimony to help the defense. He

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established that Gonzalez pled guilty and therefore took responsibility for his crimes. Id. He

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also emphasized the fact that Gonzalez was incarcerated during part of the time he was accused

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of committing the abuse. Id.

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Trial counsel’s performance was not deficient, neither did it cause Gonzalez prejudice.

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The state court’s determination of this issue was not an unreasonable application of Supreme

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Court law.

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In Claim (2), Gonzalez argues the trial court erred when it denied his motion to compel

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a pre-trial interview with Shannon Gonzalez, the victim’s representative and aunt. (Doc. 1, p.

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14) He argues this interview was necessary to enable him to effectively cross-examine the

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witness at trial. Id.

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Habeas relief, however, is only available for a violation of “clearly established Federal

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law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). The

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Supreme Court, however, has never determined that an accused has a right to compel a pre-trial

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interview with one of the government’s witnesses. The Confrontation Clause protects the

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defendant’s right to cross-examine the government’s witnesses at trial. It does not give the

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defendant a right to pre-trial discovery. Pennsylvania v. Ritchie, 480 U.S. 39, 53, n. 9, 107 S.Ct.

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989, 999, n. 9 (1987) (“[T]he Confrontation Clause only protects a defendant’s trial rights, and

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does not compel the pretrial production of information that might be useful in preparing for

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trial.”); Hansen v. Schriro, 2010 WL 2491012, 2 (D.Ariz. 2010). The decision of the Arizona

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Court of Appeals denying relief was not an unreasonable application of Supreme Court law.

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(Doc. 10-2, pp. 20-21).

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In Claim (3), Gonzalez argues the trial court erred by allowing the testimony of expert

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Wendy Dutton because in previous cases she gave false testimony concerning her education.

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(Doc. 1, pp. 15-17) He argues her testimony should have been precluded pursuant to Arizona

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Rules of Evidence 702. Id.

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In Claim (4), Gonzalez argues in the alternative that the trial court erred by not limiting

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the scope of Dutton’s testimony. (Doc. 1, pp. 18-21) Specifically, he argues her testimony was

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not permissible pursuant to Arizona case law.

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Claim (3) and Claim (4) raise issues of state law. They do not raise issues of federal

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constitutional law. Accordingly, habeas relief is not available. Estelle v. McGuire, 502 U.S.

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62, 67, 112 S.Ct. 475, 480 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state

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law.”); Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (The Supreme Court has

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not clearly established that the admission of irrelevant or overtly prejudicial evidence results

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in a trial that is fundamentally unfair and therefore habeas corpus relief cannot be granted on

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this theory.).

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Certificate of Appealability

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Rule 11(a) of the Rules Governing Section 2254 Cases, requires that in habeas cases

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“[t]he district court must issue or deny a certificate of appealability when it enters a final order

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adverse to the applicant.”

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Here, the court declines to issue a certificate of appealability because the petitioner has

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not “made a substantial showing of the denial of a constitutional right,” as required under 28

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U.S.C. § 2253(c)(2). Reasonable jurists would not find the court’s conclusions and ruling

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debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly,

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IT IS ORDERED that the petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, filed on July 26, 2012 by Richard Joe Gonzalez, is DENIED.

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IT IS FURTHER ORDERED denying the petitioner a certificate of appealability.

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The Clerk is directed to prepare a judgment and close the case.

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DATED this 16th day of April, 2014.

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