Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Gutierrez v. Bock

United States District Court, Ninth Circuit

July 2, 2013

Daniel Oquita Gutierrez, Petitioner,
v.
Warden Richard A. Bock, et al., Respondents.

ORDER

D. THOMAS FERRARO, Magistrate Judge.

Petitioner Daniel Gutierrez, presently incarcerated at the Arizona State Prison - Yuma-Cheyenne Unit, in San Luis, Arizona, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Before this Court are the Petition (Doc. 1), Respondents' Answer (Doc. 9), and Petitioner's reply and supplement thereto (Docs. 11, 12). The parties consented to exercise of jurisdiction by a Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1). (Doc. 10.) The Court finds that the petition should be denied.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner was convicted in the Superior Court of Pima County of three counts of aggravated assault with a deadly weapon, two counts of aggravated assault resulting in serious physical injury, one count of aggravated assault resulting in temporary but substantial disfigurement and one count of manslaughter. (Doc. 9, Ex. B at 1-2.) He was sentenced to a total term of imprisonment of 66 years. ( Id. at 2.)

The Arizona Court of Appeals summarized the facts, taking them in the light most favorable to the prosecution, as follows:

In December 2004, Gutierrez and his girlfriend went to a house party for a friend's twenty-first birthday. Inside the house were a "deejay" and about forty to sixty guests. Sometime around two a.m., a fight broke out between two men in the front room of the house. Another man, apparently not directly involved in that altercation, fired two shots toward the crowded house as he backed out the front door. Two witnesses who were in the front yard observed the shooting and saw the shooter run past them down the street.
Three victims inside the house were seriously injured as a result of the shooting....
After the shooting, the gunman ran away from the house, jumped a fence, and entered another yard. Shortly afterward, a neighbor saw a man come from that direction and get into a dark-colored pickup truck with large lifted "four-by-four" tires. Gutierrez and his girlfriend drove to the party in a black pickup truck matching that description. Police found the gun used in the shootings in a nearby backyard. No fingerprints were identified on the gun, shell casings founds at the scene, or on the live rounds still in the gun. A criminalist, however, later matched Gutierrez's DNA with a sample found on the grip of the gun.

( Id. at 2-3.)

Petitioner filed a direct appeal, which was denied on March 17, 2008. (Doc. 9, Ex. B.) Petitioner did not seek review with the state supreme court and the court of appeals issued its mandate on May 20, 2008. ( Id., Ex. C.) On June 19, 2008, Petitioner filed a Notice of Post-conviction Relief (PCR). ( Id., Ex. D.) After holding an evidentiary hearing, the trial judge denied the PCR petition on the merits. ( Id., Ex. G.) Petitioner sought review at the court of appeals, which granted review but denied relief on the merits. ( Id., Ex. J.) Review at the supreme court was denied on September 30, 2010; subsequently, the appellate court issued a mandate on November 15, 2010. ( Id., Exs. K, L.)

On March 1, 2011, Petitioner filed a second PCR notice. ( Id., Ex. M.) The PCR court found the claims precluded. ( Id., Ex. O.) The appellate court granted review but denied relief finding all of the claims precluded. ( Id., Ex. Q.) The court issued its mandate on June 29, 2012. ( Id., Ex. R.)

DISCUSSION

Respondents argue that all of Petitioner's claims are barred because the petition violates the statute of limitations and two of Petitioner's three claims are procedurally defaulted.

STATUTE OF LIMITATIONS

On September 28, 2012, Petitioner filed his federal habeas petition in this Court. (Doc. 1.) Under the Antiterrorism and Effective Death Penalty Act (AEDPA), federal petitions for writ of habeas corpus filed by state prisoners are governed by a one-year statute of limitations period. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id.

In applying (d)(1)(A), the Court must assess when direct review of Petitioner's convictions became final. The Arizona Court of Appeals denied review on Petitioner's direct appeal on March 17, 2008, and his time to seek review in the Arizona Supreme Court expired thirty days later, on April 16, 2008. Ariz. R. Crim. P. 31.19. Thus, the judgment against Petitioner became final for purposes of § 2244(d)(1)(A) on that date.[1] See Hemmerle v. Schriro, 495 F.3d 1069, 1073-74 (9th Cir. 2007) (assessing § 2244 finality in light of the Arizona rules), cert. denied, 129 S.Ct. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.