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Olivas v. Attorney General of State of Arizona

United States District Court, D. Arizona

November 16, 2018

Gilbert Gonzales Olivas, Petitioner,
v.
Attorney General of the State of Arizona, et al., Respondents.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE.

         On January 20, 2016, Petitioner Gilbert Gonzales Olivas, 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 on July 11, 2016, and Petitioner filed a Reply on August 11, 2016. (Docs. 16, 23.) On July 9, 2018, Magistrate Judge Bernardo P. Velasco issued a Report and Recommendation, recommending that Grounds One through Four be denied, that Ground Five be partially denied, and that an evidentiary hearing be held on the remaining part of Ground Five. (Doc. 35.) On July 23, 2018, Respondents filed Objections to the Report and Recommendation. (Doc. 36.) On August 6, 2018, Petitioner responded to Respondents' Objections and filed his own untimely Objections. (Doc. 37.) Respondents responded to Petitioner's Objections on August 15, 2018. (Doc. 38.)

         I. Factual and Procedural Background

         A. The Offense

         Following a jury trial, Petitioner was convicted of two counts of aggravated assault with a deadly weapon, theft of a means of transportation, armed robbery, and aggravated robbery. (Doc. 16-1 at 3.)[1] He was sentenced to a combination of concurrent and consecutive sentences totaling 35 years.[2] (Doc. 34-2 at 14, 16-17.) The presentence report summarizes the offense as follows:

On July 14, 2010 at 1:03 a.m. a large number of Tucson Police Department (TPD) officers arrived at a park located in the 200 block of East Irvington Road to investigate an attempted carjacking. Mr. Jose Carmago [sic] and his girlfriend Ismar [sic] Aguayo, the victims, told them that three individuals had taken their car, one armed with a handgun. The couple had been sitting the [sic] park when they were approached by the suspects who stopped to talk to them. One, later identified as defendant Peter Flores, pulled out a handgun and pointed it at Mr. Carmargo [sic]. Entering the stolen vehicle, the three men left the area.
Using information supplied by the victims, other TPD officers located the abandoned vehicle nearby. A canine unit was brought to the scene and two suspects, Flores and defendant Gilbert Olivas, were located hiding outside a laundry room in the 4800 block of South Cherry Avenue. The third person was never identified. Transported to the scene, Ms. Aguayo identified both men, but Mr. Carmago [sic] could not make a positive identification. The officers also found a handgun in the front yard of a nearby house.

(Doc. 16-1 at 7.) The TPD interviewed Mr. Camargo on the night of the incident. (Doc. 1-4 at 5-13.) Mr. Camargo reported that he and Ms. Aguayo were sitting in the park when three individuals approached. (Id. at 5.) According to Mr. Camargo, a dark-complexioned male pulled out a handgun, pointed it at Mr. Camargo, and demanded Mr. Camargo's vehicle, while a second, light-complexioned male stood immediately behind the gunman. (Id. at 7-10.) Mr. Camargo stated he ran away to a nearby house (leaving Ms. Aguayo) and called 911. (Id. at 10.) The transcript of that call shows that Mr. Camargo told the operator he had been pulled out of his car at gunpoint. (Doc. 1-5 at 2.)

         Mr. Camargo eventually passed the phone to Ms. Aguayo, whom he saw walking down the street a short while later. (Id. at 5-6.) Ms. Aguayo told the operator that the individuals allowed her to retrieve personal items from the vehicle and let her go because the keys were inside. (Id. at 6.) During an interview with TPD later that night, Ms. Aguayo told officers that, just prior to Flores pulling the handgun, Petitioner told Flores, “just do it, just do it” and “yea, yea, yea.” (Doc. 1-4 at 16.)

         C. Appeal and Post-Conviction Proceedings

         Petitioner timely appealed his convictions and sentences. (Doc. 16-1 at 3.) Petitioner chose to represent himself and waived his right to appellate counsel. (Id.) His direct appeal was dismissed on April 12, 2013, after he failed to timely file an opening brief despite being granted several extensions of time to do so. (Id.; Doc. 1-3 at 4.)[3]

         On September 18, 2012, prior to the dismissal of his direct appeal, Petitioner filed a pro se notice of post-conviction relief (“PCR”). (Doc 16-1 at 13-16.) The PCR proceeding was stayed pending resolution of Petitioner's direct appeal. (Id. At 18.) Following the dismissal of Petitioner's direct appeal, the PCR court appointed counsel for Petitioner, who filed a PCR petition on Petitioner's behalf. (Id. at 20.) Counsel later withdrew upon Petitioner's request, and on March 17, 2014, Petitioner filed a pro se amended PCR petition, advancing his former counsel's arguments plus new, additional claims for relief. (Doc. 1-1 at 12-13; Doc. 1-5 at 9.) The PCR court summarized Petitioner's claims as follows:

With regard to his trial, he argues that the evidence was insufficient to convict him on several counts; that the State withheld clearly exculpatory evidence; that he was denied his right to be heard on a Motion to Withdraw Counsel; and that evidence from another case was improperly introduced in this case. As to his sentencing, he argues that the sentencing on Count Nine [aggravated robbery] was improper, because that crime was treated as a dangerous nature offense; that his sentences in Counts One [aggravated assault with a deadly weapon], Two [same], Eight [armed robbery], and Nine were incorrectly enhanced by two prior dangerous convictions when he only had one; and that the imposition of a Criminal Restitution Order was illegal. Finally, he argues that his trial counsel was ineffective at both trial and sentencing and that he was denied his right to a direct appeal.

(Doc. 16-1 at 25-26.)

         The PCR court rejected Petitioner's insufficiency-of-evidence claim, finding that Petitioner's verbal encouragement to Flores met the definition of “accomplice” under Ariz. Rev. Stat. § 13-301. (Id. at 27.) The PCR court rejected Petitioner's claim that his counsel was ineffective by stipulating to the admission of Mr. Camargo's 911 call, since Petitioner failed to support his assertion that the 911 call contained false information and, even if the call were misleading, that would not establish that counsel was ineffective. (Id.) The PCR court also rejected Petitioner's claim that his sentences for aggravated assault, armed robbery, and aggravated robbery were illegally enhanced, since Petitioner's “historical dangerous felonies” stemmed from two incidents, not one; thus, the PCR court explained, Petitioner's counsel was not ineffective by failing to object to the enhancement. (Id. at 29-30.)

         Petitioner did obtain some relief. The PCR court ruled that since the jury did not find that Petitioner's aggravated robbery conviction was “dangerous nature, ” Petitioner's sentence as a dangerous offender was illegal. (Id. at 28-29.) The PCR court also found that the trial court erred by imposing a criminal restitution order at the sentencing hearing. (Id. at 30.) The Court vacated the restitution order and ordered that Petitioner be resentenced on the aggravated robbery conviction. (Id. at 29-30.)

         Petitioner appealed the partial denial of his PCR petition. (Id. at 3.) The Arizona Court of Appeals refused to address the merits of several of Petitioner's claims of trial error, finding that Petitioner was precluded from raising the claims in PCR proceedings because he failed to raise them on appeal. (Id. at 4.) The appellate court did analyze Petitioner's insufficiency-of-evidence claim, “agree[ing] with the trial court that sufficient evidence supported his convictions for the robberies and aggravated assaults.” (Id.) The appellate court also found that Petitioner's counsel was not deficient in stipulating to admission of the 911 call, since Petitioner identified no legal basis for objecting to the call's admission, nor did Petitioner explain how exclusion of the recording would have changed the verdict. (Id.) Petitioner sought review in the Arizona Supreme Court, but was denied review on September 16, 2015. (Id. at 35.)

         At the resentencing hearing, the trial court imposed a presumptive 11.25-year term of imprisonment for Petitioner's aggravated robbery conviction. (Id. at 32.) Petitioner appealed his new sentence, where his appointed counsel filed an Anders brief stating that a review of the record had revealed no arguable issue for appeal. (Id.) Finding no fundamental, reversible error, the Arizona Court of Appeals affirmed the sentence in a memorandum decision filed on March 2, 2015. (Id.)

         On June 10, 2015, Petitioner filed a second PCR notice. (Id. at 41.) In the second PCR petition, Petitioner argued both that his trial and PCR counsel were ineffective. (Id. at 21-22.) The PCR court found that Petitioner had waived his claims regarding trial counsel by not raising them in the first PCR proceeding. (Id. at 22.) The PCR court found Petitioner's claim regarding PCR counsel meritless because Petitioner had chosen to proceed pro se and thus was not represented. (Id.) Petitioner was denied review in both the Arizona Court of Appeals and Arizona Supreme Court. (Doc. 31-1.)

         D. The § 2254 Petition

         Petitioner filed the Petition on January 20, 2016, raising five grounds for relief. (Doc. 1.) In Ground One, he argues he was denied a fair trial in violation of his federal due process rights because no reasonable factfinder could have found him guilty of accomplice liability on the robbery, aggravated robbery, or aggravated assault charges. (Doc. 1-1 at 19.) Pointing to the transcript of TPD's interview with Mr. Camargo, which was not introduced at trial, Petitioner emphasizes that Mr. Camargo did not state that Petitioner took any action towards either victim. (Id. at 20.) Petitioner further contends that Ms. Aguayo's statement that he had encouraged Flores was inadmissible hearsay and should not have been admitted at trial through the interviewing TPD officer. (Id. at 22.) With the benefit of Mr. Camargo's recollection and the exclusion of Ms. Aguayo's statement, Petitioner argues, there would have been no evidence supporting accomplice liability, and thus no reasonable jury could have convicted him. (See Id. at 22-23.)

         In Ground Two, Petitioner argues that he was denied a fair trial in violation of his federal due process rights because he was convicted of accomplice liability on proof less than beyond a reasonable doubt. (Id. at 24.) He bases this claim on the following premises: because Ms. Aguayo testified she did not know she was being robbed, Petitioner could not have robbed her; Petitioner could not have robbed Mr. Camargo because the vehicle keys (not the vehicle itself) were the target of the robbery, and the keys were in the vehicle, not on Mr. Camargo's person; the vehicle transferred from Mr. Camargo's possession to Ms. Aguayo's when Mr. Camargo fled, and thus Petitioner could not have robbed Mr. Camargo; and Petitioner could not have robbed Ms. Aguayo because a new “incident” began once Mr. Camargo fled, and there was no threat or use of force against Ms. Aguayo during the second incident. (See Id. at 27-32.) Under Petitioner's view of the case, no reasonable jury could have found all elements of the charged offenses. (Id. at 33.)

         In Ground Three, Petitioner argues that his trial counsel rendered ineffective assistance by stipulating to the admission of the transcript of Mr. Camargo's 911 call. (Id. at 34.) Petitioner contends the prosecution knew it could not establish that Petitioner took the vehicle from Mr. Camargo's possession, since Mr. Camargo had fled, so the prosecution relied on Mr. Camargo's statement to the 911 operator that he had been pulled out of the vehicle at gunpoint. (Id. at 34-36.) Thus, Petitioner argues, his counsel prejudicially acquiesced in the prosecution's use of misleading evidence. (Id. at 37.)

         In Ground Four, Petitioner argues that his trial counsel rendered ineffective assistance by failing to introduce exculpatory evidence at trial. (Id. at 37.) He contends that the transcript of TPD's interview with Mr. Camargo directly refutes the prosecution's theory that Petitioner “directly participated” in the robbery, because Mr. Camargo told TPD officers only that Flores had pulled a handgun and demanded the vehicle. (Id. at 38.) Conspicuously absent from Mr. Camargo's recollection, Petitioner says, is any indication that Petitioner verbally encouraged Flores to commit the crime. (Id.) Petitioner argues that the transcript could have been used to impeach the officer who testified as to Ms. Aguayo's hearsay statement (that Petitioner encouraged Flores), and since Mr. Camargo refused to cooperate at trial, there would have been no evidence that Petitioner “directly participated.”[4] (Id. at 38-39.) Thus, he argues, his counsel was prejudicially ineffective by not introducing the transcript. (Id. at 41.)

         In Ground Five, Petitioner argues that his trial counsel rendered ineffective assistance by allowing Petitioner to receive illegally enhanced sentences. (Id. at 42.) During the pendency of the vehicle-theft case, Petitioner entered into a plea agreement in a separate case and pled guilty to resisting arrest. (Id.) Pursuant to the plea agreement, Petitioner admitted that certain prior convictions were “dangerous nature” for purposes of sentencing in the vehicle-theft case. (Id. at 42-43.) Those prior convictions included various dangerous felonies that were treated as a single conviction for sentencing purposes, and escape from custody, which is a non-dangerous felony. (Id. at 43-44.)[5]Pursuant to the plea agreement, the escape conviction was treated as a second “dangerous nature” offense, and Petitioner's sentence was enhanced based on two dangerous felony convictions. (Id. at 45.) He argues his counsel was ineffective by allowing him to admit that the escape was a dangerous felony and by letting the trial court enhance his sentence without proof of two predicate convictions. (Id. at 45-46.)

         II. ...


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