Gonzales v. Warden
| Decision Date | 25 October 2000 |
| Docket Number | No. 98-1987,98-1987 |
| Citation | 233 F.3d 348 |
| Parties | (6th Cir. 2000) Estevan Gonzales, Petitioner-Appellant, v. Frank Elo, Warden, Respondent-Appellee. Argued: |
| Court | U.S. Court of Appeals — Sixth Circuit |
Appeal from the United States District Court for the Eastern District of Michigan at Flint. No. 95-40187--Paul V. Gadola, District Judge.
Robyn B. Frankel, Bloomfield Hills, Michigan, for Appellant.
Olga Agnello, OFFICE OF THE PROSECUTING ATTORNEY, COUNTY OF WAYNE, Detroit, Michigan, for Appellee.
Before: DAUGHTREY and CLAY, Circuit Judges; RUSSELL, District Judge*.
Petitioner, Estevan Gonzales, appeals from the district court's order denying his petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Specifically, on appeal, Petitioner contends that the district court erred in denying his application for a writ of habeas corpus because he was denied his Sixth Amendment right to the effective assistance of trial counsel. For the reasons set forth below, we AFFIRM the district court's order.
Petitioner, a Michigan prisoner, was convicted of second-degree murder in violation of Mich. Comp. Laws Ann. §750.317 on April 5, 1984, following a bench trial in the Detroit Recorders Court, in connection with the beating death of Chris Tuggle. Petitioner was sentenced to a term of twelve to thirty years of imprisonment, and thereafter filed an appeal as of right in the Michigan Court of Appeals claiming that his conviction was not supported by sufficient evidence. The Michigan Court of Appeals affirmed Petitioner's conviction on January 10, 1986, and Petitioner did not seek leave to appeal to the Michigan Supreme Court.
Thereafter, in January of 1990, Petitioner filed a Motion for Relief from Judgment pursuant to Michigan Court Rule 6.500, claiming that the prosecution relied upon perjured testimony in securing Petitioner's conviction, and that trial counsel was ineffective in advising Petitioner regarding his constitutional right to testify. The trial court denied Petitioner's motion, and Petitioner filed a delayed application for leave to appeal to the Michigan Court of Appeals, which was denied. Petitioner then filed an application for leave to appeal to the Michigan Supreme Court and, on October 29, 1991, the Michigan Supreme Court denied the requested leave; however, the court remanded the case to the court of appeals for consideration "as on leave granted."
On November 12, 1993, the court of appeals once again affirmed Petitioner's convictions, and ruled that the claim of perjury was merely a renewed challenge to the prosecution witness' credibility which was therefore meritless. The court of appeals also ruled that Petitioner had waived review of his claim for ineffective assistance of counsel inasmuch as Petitioner had failed to raise the claim on direct appeal. However, the court added that because Petitioner was aware of his right to testify and because his attorney had advised Petitioner against testifying as a matter of trial strategy, Petitioner's claim was meritless in any event. Petitioner filed an application for leave to appeal the court of appeals decision to the state supreme court; the supreme court thereafter denied leave, noting that Petitioner could not satisfy the cause and prejudice prerequisite of Michigan Court Rule 6.508(D).
Petitioner then sought habeas relief in the United States District Court for the Eastern District of Michigan on June 21, 1995, pursuant to 28 U.S.C. § 2254. On April 8, 1997, Magistrate Judge Donald A. Scheer issued a report and recommendation in which he recommended that an evidentiary hearing be held as to Petitioner's claim involving ineffective assistance of counsel. The district court adopted the magistrate's recommendation, and Magistrate Scheer presided over the evidentiary hearing on February 19, 1998.
The magistrate thereafter issued a report and recommendation, wherein he recommended that the petition for a writ of habeas corpus be denied. The magistrate concluded that Petitioner's trial counsel was not ineffective, and that his counsel properly advised Petitioner of his constitutional right to testify in his own behalf. On July 21, 1998, District Judge Paul V. Gadola adopted the magistrate's report and recommendation, and denied Petitioner's application for the writ.
The district court declined to issue a certificate of appealability; however, on March 17, 1999, this Court granted Petitioner a certificate of appealability, and this appeal ensued.
Jonathon Paulk, who was fifteen years old at the time of Petitioner's trial, testified that he lived directly across the street from the victim, Chris Tuggle, in the City of Detroit. On September 6, 1983, at about 11:00 p.m., Paulk observed Tuggle as Tuggle removed the speakers from the trunk of his vehicle. Paulk noted that Tuggle's vehicle was parked on the same side of the street on which Tuggle lived, and that the distance from the upstairs window of the house where Paulk was positioned to where Tuggle's car was parked was about twenty to thirty feet. Paulk stated that Petitioner, whom Paulk referred to as "Chinaman," was standing next to the car as Tuggle removed the speakers from the trunk. Paulk also stated that once Tuggle removed the speakers from his trunk, Tuggle went into his house while Petitioner remained outside next to the car.
Paulk testified that he then observed a man that he called "Buddy" (later identified as Jesse Perez), walking down the street with another young man and two girls. Paulk observed Buddy and his companions walk past Petitioner to the corner of the street; Buddy then returned to where Petitioner was standing. By this time Tuggle had joined Petitioner back by the car; the three men then got into the vehicle and drove away. According to Paulk, Tuggle was driving, Petitioner was in the passenger's seat, and Buddy was in the back seat. The only conversation that Paulk heard between the men was when Petitioner ordered Buddy to "get in the back asshole." Tuggle, Petitioner, and Buddy then drove away, and Paulk did not see any of the men again; however, Paulk testified that he saw Tuggle's car on fire close to midnight in the church parking lot behind Paulk's house.
Jesse Perez (a/k/a "Buddy") also testified at trial. Perez stated that on the day in question, Petitioner (a/k/a "Chinaman") arrived at Perez's mother's home at about 6:00 p.m., and the two walked up to a local bar where they spent several hours drinking beer; they left and went to another bar for just a moment; and then left. The two walked toward Perez's mother's house, but Petitioner split from Perez while Perez returned home and sat on the back porch because he was not feeling well. Perez stated that about twenty minutes later, Petitioner returned driving a dark colored car. He told Perez to get into the car and to go with him; Perez declined because he was not feeling well; however, Petitioner insisted, so Perez got into the passenger seat of the vehicle and left with Petitioner.
Perez testified that Petitioner was headed to Toledo, Ohio, but stopped in Ecorse, Michigan, at the home of Perez's girlfriend, Susan Victor, who lived with her aunt, Bonny Lou Milanovich. The two men went inside and Petitioner told Perez in Spanish that he was going to kill someone that night and that he wanted Perez to go with him. Perez stated that he told Petitioner that he did not want to go with him, but that he ultimately agreed to go with Petitioner. The two men left Victor's house, got into the car, and drove away with Petitioner behind the wheel. Perez testified that it was about 11:30 p.m. by this time, and that Petitioner drove to the end of Westfield road and then stopped the car.
After Petitioner stopped the car, he popped the trunk, and Perez observed a young Caucasian man get out of the trunk. Petitioner got out of the car, but Perez remained inside. Perez claimed that from his position inside the car, he observed Petitioner and the young man arguing; Petitioner was pushing the man; and the man was pleading with Petitioner not to hurt him. Petitioner grabbed a tire jack from the trunk of the car and hit the man in the upper part of his body several times. The man fell to the ground; Petitioner got back into the car; and he then drove off with Perez, leaving the man's beaten body behind. When Petitioner got back into the car he warned Perez not to tell anyone what he observed or Petitioner would kill him.
The two proceeded back to Victor's home; Perez asked Victor to spend the night with him; she agreed, and left with Petitioner and Perez. The men dropped Victor off at Perez's mother's house. After the men dropped off Victor, they proceeded down an alley and then Petitioner made Perez get out of the car, allegedly because Perez was making him nervous. Several days later, Perez left for Toledo, Ohio; while there, he ran into his sister Rosie who was with a friend. Perez stated that Rosie informed him that the police were looking for a young boy back in Detroit. Perez told Rosie that he was going to flee the state and head to Indiana, but then decided to return to Detroit on October 6, 1983 with Rosie and her friend. Upon arriving in Detroit, Perez contacted the homicide unit of the Detroit Police Department by telephone, and told Lieutenant Deane about the events that he observed on the evening of September 6, involving Petitioner and Tuggle. Thereafter, the Detroit Police picked up Perez at an agreed location, and Perez then directed the police to the location where Perez observed Petitioner beat Tuggle and abandon Tuggle's body. The police recovered Tuggle's beaten remains.
Susan Victor also testified at Petitioner's trial. She corroborated Perez's version of the events that took place on the night in question, except that she stated that Perez had told her that Tuggle had been...
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