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Gonzalez v. Ryan

United States District Court, D. Arizona

October 19, 2016

Andrew John Gonzalez, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Michelle H. Burns United States Magistrate Judge

         TO THE HONORABLE NEIL V. WAKE, UNITED STATES DISTRICT COURT:

         On June 6, 2016, Petitioner Andrew John Gonzalez, who is confined in the Arizona State Prison Complex-Lewis, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 8), but Petitioner has not filed a reply despite having the opportunity to do so.

         BACKGROUND[1]

         On June 24, 2010, Petitioner was indicted on attempted second-degree murder, two counts of armed robbery, conspiracy to commit armed robbery, two counts of aggravated assault, and misconduct involving weapons. (Exh. A.) On November 23, 2010, the jury found Petitioner guilty on all counts, and on January 21, 2011, the trial court sentenced Petitioner to 35.75 years. (Exhs. B, C.) The Arizona Court of Appeals found that the following facts supported Petitioner's convictions and sentences:

On July 11, 2009, defendant and another individual, Carlos Robles, were picked up by Daniel Gutierrez, T.K. and E.S. Gutierrez was driving a Chevy Silverado pickup truck which belonged to T.K. Robles suggested that the men “jack” two men whom he thought were cocaine dealers. Gutierrez drove the men to the area of 27th Drive and Pierce in Phoenix, where they located the victims' vehicle, a white SUV, which was parked in an alley.
After the men stopped and observed the SUV, Gutierrez drove up to the SUV and blocked it in the alley. Defendant and Robles exited the truck and shot at the victims, both of whom were hit. One of the shooters took a black shaving bag from inside the SUV. Defendant and Robles got back into the truck and the five men fled the scene.
Shortly thereafter, police observed the truck proceeding northbound on 35thAvenue and initiated a stop. Defendant jumped out of the bed of the truck and fled on foot. Defendant was later apprehended while hiding behind a garbage can at a nearby school. Two witnesses, Maria C. and Jeremy S., were brought to a restaurant parking lot near 35th Avenue and McDowell, where they identified T.K.'s truck. Additionally, Maria C. identified defendant and Jeremy S. identified Gutierrez.
Police found the nine millimeter semi-automatic handgun used by defendant in the bed of the truck. They found six nine millimeter cartridge casings that been fired by the gun at the scene of the shooting. Police also found a shotgun, a pistol, and the black shaving bag in the truck. Defendant admitted that he had been in T.K.'s truck and fled from police. Defendant stipulated that he had a prior felony conviction and was a prohibited possessor at the time of the shooting.
After a jury trial, defendant was convicted as charged. The trial court sentenced defendant to an aggravated term of 20 years in prison on count one; presumptive terms of 15.75 years on counts two, three, and four; presumptive terms of 11.25 years on counts five and six, and the presumptive term of 10 years on count seven. The court ordered defendant to serve the sentence for count three consecutive to the other six counts and the remaining counts to be served concurrently. The trial court gave defendant credit for 558 days of presentence incarceration.

State v. Gonzalez, 2012 WL 2795473, at *1, ¶¶ 2-6 (Ariz.Ct.App. July 3, 2012) (footnote omitted); (Exh. D.)

         On December 14, 2011, Petitioner filed his opening brief on direct appeal with the Arizona Court of Appeals, raising two issues:

(1) Whether there was sufficient evidence to sustain a conviction against [Petitioner] for Attempted Murder, Aggravated Assault, Armed Robbery, Conspiracy to Commit Armed Robbery, and Misconduct Involving Weapons[;]
(2) Whether the Trial Court Abused Its Discretion by Failing to Grant a Mistrial and or by Refusing to Allow Defense Counsel to question witness Edwin Ramos concerning his Prior Convictions where insufficient evidence was disclosed by the Prosecution to Establish the Relevancy of these Priors[.]

(Exh. E.) The State filed its answering brief on March 28, 2012, and on July 3, 2012, the Arizona Court of Appeals issued its memorandum decision, affirming Petitioner's convictions and sentences. (Exhs. D, E, F.)

         On December 14, 2012, Petitioner filed a petition for review to the Arizona Supreme Court. (Exh. H.) On April 29, 2013, the Arizona ...


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