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Gonzalez v. State

United States District Court, D. Arizona

February 15, 2018

Angel Daniel Gonzalez, Petitioner,
v.
State of Arizona, et al., Respondents.

          REPORT AND RECOMMENDATION

          CHARLES R. PYLE, UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE DAVID G. CAMPBELL, U.S. DISTRICT JUDGE:

         Angel Daniel Gonzalez filed an Amended Petition for Writ of Habeas Corpus (“Amended Petition”) in this Court. Respondents argue that Gonzalez's claims are either unexhausted, subject to a procedural bar, or without merit. As described below, the Court agrees with Respondents and recommends that the Amended Petition be denied and dismissed with prejudice.

         I. BACKGROUND

         In August 2008, the Mohave Area General Narcotics Enforcement Team (MAGNET) executed a search warrant at an apartment. Gonzalez was in the apartment at that time and the officers found a useable amount of methamphetamine on him. (Doc. 9-2 at 14-15, ¶¶ 2-5)

         In August 2009, Gonzalez was tried by a jury in Mohave County Superior Court. During voir dire, Gonzalez asked the Court to remove Juror R and Juror M for cause. Juror R stated that she was an administrative assistant for MAGNET, knew the officers who would testify at trial, interacted with the prosecutor on a daily basis, trusted the prosecutor, and would occasionally speak to him about cases. In response to questioning, Juror R stated that she could be fair and impartial. (Doc. 9-2 at 14-15, 17 ¶¶ 4-5, 7) Juror M stated that he was the brother of a MAGNET detective who was not involved in this case, had a lot of close friends in law enforcement, but stated that he could be fair and impartial. (Doc. 9-2 at 15-16, 17 ¶¶ 6, 8)

         The Court denied Gonzalez's request to remove Jurors R and M for cause and so Gonzalez used two of his peremptory challenges to remove them. Gonzalez used his four remaining peremptory challenges to remove four other venirepersons and told the Court that he would have removed Jurors K and O if the Court had removed Jurors R and M for cause. (Doc. 9-2 at 16-17, ¶¶ 9-11) Juror K's nephews were law enforcement officers and “[s]he unequivocally said that her relationship with them would not affect her ability to be fair and impartial.” (Doc. 9-02 at 26, ¶ 32) Juror O was a property crime victim, had a grandson with legal problems, and stated that this would “‘not at all' affect her ability to remain impartial.” (Doc. 9-2 at 26-27, ¶ 33)

         The jury found Gonzalez guilty of two counts of possession of drug paraphernalia. (Doc. 9-1 at 82-83) Gonzalez was sentenced in January 2011 to mitigated, concurrent sentences totaling eight years. (Doc. 9-1 at 102-03)

         In February 2011, Gonzalez, through counsel, moved for a new trial because of the Superior Court's refusal to remove Jurors R and M for cause. (Doc. 9-1 at 107-123) At the conclusion of briefing and following oral argument, the Court denied the motion. (Doc. 9-1 at 145-56)

         Gonzalez appealed to the Arizona Court of Appeals and argued that the Court's refusal to remove Jurors R and M for cause constituted prejudicial error under the U.S. and Arizona Constitutions. (Doc. 9-6 at 17-24; Doc. 9-7 at 14-17) The Court concluded that any error was harmless because he was tried by a fair and impartial jury and so the Court affirmed his conviction and sentence. (Doc. 9-2 at 13-28) His motion for reconsideration was denied in April 2012 and the mandate issued in May 2012. (Doc. 9-2 at 10, 12)

         In May 2012, Gonzalez filed a Notice of Post-Conviction Relief. (Doc. 9-2 at 7-10) His appointed counsel found no colorable claims for relief and Gonzalez filed his pro se Petition along with supplemental briefing. (Doc. 9-2 at 31-57) In these papers, Gonzalez argued he received ineffective assistance of trial counsel. After the State responded, the Court summarily dismissed his Notice of Post-Conviction Relief in April 2013. (Doc. 9-2 at 66-83) Specifically, the Court concluded that all of his claims were “either precluded or present[ed] no material issues of fact or law which would entitle [Gonzalez] to relief.” (Doc. 9-2 at 83)

         In October 2013, Gonzalez filed a supplemental brief for his post-conviction proceedings which the Superior Court declined to consider. (Doc. 9-2 at 85-89) In December 2013, Gonzalez moved for a rehearing under Arizona Rule of Criminal Procedure 32.9. (Doc. 9-2 at 90-92) In January 2014, the Court denied his motion. (Doc. 9-2 at 93)

         In April 2014, Gonzalez petitioned the Arizona Court of Appeals for review. (Doc. 9-7 at 43-52) In May 2016, the Court of Appeals denied review because he had failed to comply with Arizona Rule of Criminal Procedure 32.9(c) by “merely summariz[ing] his claim without providing any citation to legal authority or the record. Nor d[id] he make any argument relevant to our consideration of the trial court's order denying relief.” (Doc. 9-7 at 57-59, ¶ 4) The mandate issued in July 2016. (Doc. 9-7 at 61)

         In February 2017, Gonzalez initiated habeas proceedings in this Court. (Doc. 1) After his petition was dismissed, Gonzalez timely filed his Amended Petition which raises four claims: three claims for ineffective assistance of counsel (Grounds Two through Four) and one Constitutional claim related to jury selection (Ground One). (Doc. 4 at 6-9) Respondents argue that this Court cannot review any of his claims. (Doc. 14) In reply, ...


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