Gonzalez v. Phillips
| Decision Date | 05 June 2001 |
| Docket Number | No. CivA 98-CV-75600DT.,CivA 98-CV-75600DT. |
| Citation | 147 F.Supp.2d 791 |
| Parties | Alejo GONZALEZ, # 224220, Petitioner, v. Thomas PHILLIPS, Warden, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Alejo Gonzalez, Jackson, MI, pro se, Rubina S. Mustafa, MI, State Appellate Defender Office, Detroit, MI, for Petitioner.
Janet Van Cleve, MI Dept. of Atty Gen., Lansing, MI, for Respondent.
Petitioner, Alejo Gonzalez ("Gonzalez"), presently confined at the Charles Egeler Correctional Facility in Jackson, Michigan, has filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 through counsel alleging that he is confined in violation of his constitutional rights. In his application, Gonzalez challenges his conviction after a jury trial in the Genesee County Circuit Court of conspiracy to deliver over 650 grams of cocaine, M.C.L. 750 .157a, and delivery of over 650 grams of cocaine, M.C.L. 333.7401(2)(a)(i). Gonzalez was sentenced to two consecutive terms of life imprisonment for these crimes.
The Michigan Court of Appeals summarized the evidence against Gonzalez as follows:
The police surveillance team saw defendant transfer the package of drugs to its informant. The informant testified that defendant handed him the cocaine. Defendant's fingerprints were found on the package containing the cocaine.
People v. Gonzalez, Michigan Court of Appeals Docket No. 156916 at 2.
The informant was Karl Stewart. He had been arrested by federal agents for delivery of a kilogram of heroin. Stewart cooperated with the government in exchange for a non-binding prosecutorial recommendation of a reduced sentence. The reduction, if granted, would be from "10 to 12 years down to six and a half years."2 Stewart met with Gonzalez's eventual co-defendants David Walters, Ernesto Galarza, and David Osborn to arrange a cocaine purchase. Walters offered to sell Stewart 18 ounces, or about half a kilogram (500 grams) for $15,000. Stewart insisted on buying a whole kilogram. Stewart testified that Walters said that in a few days Osborn would meet Stewart and sell him a kilogram of cocaine for $ 27,600.
Stewart testified that he met Osborn at a Sears store parking lot on July 15, 1991. Stewart had $ 30,000 in a blue gym bag. Osborn told Stewart that he had to go to Pontiac, Michigan, to get the drugs and would meet him in a couple of hours. Osborn called Stewart and arranged to meet him at a Builder's Square store parking lot. About ten minutes after Stewart arrived at the meeting place, Osborn arrived. Stewart got into Osborn's car, a black Grand Prix. Police surveillance personnel were observing the scene. Osborn said that he still did not have the cocaine and drove towards the Builder's Square and picked up Galarza. Osborn drove a little farther and picked up Gonzalez.
Osborn then drove to a gas station where Gonzalez made a phone call from a pay phone. Soon afterwards, a brown car pulled up behind Osborn's car. Stewart gave Gonzalez the blue gym bag containing the money. Gonzalez took the bag full of money and walked to the brown car. Then he returned to Osborn's car with a plastic bag containing a package sealed in what appeared to be red wax. Gonzalez gave the plastic bag containing the red package to Stewart and left. Osborn drove with Stewart in his car and was intercepted by a large number of police. Osborn tried unsuccessfully to elude them. Osborn and Stewart were apprehended and the drugs, which Stewart had thrown from the car at Osborn's behest, were seized. Stewart further testified that Gonzalez had not been involved in any discussions with him arranging the transaction. Stewart testified that he was not sure, but thought that Gonzalez was wearing a black sweatshirt that day. It was later established that the red package contained a substance weighing just under one kilogram containing a measurable amount of cocaine.
Osborn testified that he had been a co-defendant of Gonzalez and the others and had been charged with conspiracy to deliver and delivery of over 650 grams of cocaine. He made a bargain to plead guilty to the one lesser offense of delivery of between 225 and 649 grams of cocaine, an "offense that would carry a penalty of 20 to 30 years in prison."3 Osborn testified that he drove to Builder's Square alone. Gonzalez, Galarza, and Sofia Garcia ("Garcia") drove there in a tan Oldsmobile. Osborn first picked up Stewart, then Galarza and Gonzalez. Osborn stated that Gonzalez left Osborn's car with the money Stewart had delivered. Galarza also left the car. Osborn said it was Galarza who brought the drugs to Osborn's car, not Gonzalez.
Sofia Garcia ("Garcia"), originally a co-defendant, testified that following her testimony at Gonzalez's trial, her charges would be reduced from one count of conspiracy to deliver over 650 grams of cocaine and one count of delivery of over 650 grams of cocaine to one count of delivery of between 225 and 649 grams of cocaine, "which carries 20 to 30 years in prison."4 Garcia was Gonzalez's fiancee. She agreed to plead guilty and testify because she had a young daughter and wanted to avoid a life sentence. Garcia drove the brown Oldsmobile to the gas station where the cocaine transaction took place. Garcia testified that it was Galarza who took a container from the Oldsmobile and gave it to someone in Osborn's car. Gonzalez returned to the Oldsmobile with the blue gym bag. Garcia did not see its contents. Garcia heard Gonzalez and Galarza arguing, with Gonzalez saying that he had nothing to do with preparations to sell drugs to anyone named Stewart. Garcia said Gonzalez was wearing white clothes on the day of the incident.
Ernesto Galarza ("Galarza"), also originally a co-defendant charged with one count each of conspiracy to deliver and delivery of over 650 grams of cocaine, testified that he agreed to testify and plead guilty to one count of delivery of between 225 and 649 grams of cocaine "which carries a possible penalty of 20 to 30 years" in exchange for dismissal of the more serious charges.5 Galarza testified that he and Gonzalez discussed the one kilogram cocaine sale to Stewart with Gonzalez and that Gonzalez provided the cocaine. Galarza denied carrying the cocaine to Stewart. Galarza said that Gonzalez was dressed in all white clothing on the day of the cocaine sale and arrests.
Michigan State Police fingerprint expert Robin Bratton testified that she examined the package containing the cocaine which was delivered to Stewart. The package was about 9 inches by 6 inches by an inch and a quarter and was wrapped over and over again in red tape giving it a book-like shape. The package contained 988.3 grams of a white powder showing the presence of cocaine. Gonzalez's fingerprints were found on the red tape on the outside of the package.
Gonzalez's co-defendant David Walters testified on his own behalf that Stewart asked him to obtain a kilogram of cocaine for him, but he refused. Walters said he had purchased small amounts of cocaine from Stewart, but had never sold any. Walters denied having anything to do with planning or carrying out the sale of the kilogram of cocaine to Stewart. Walters testified that he thought Stewart believed he was a possible source of cocaine because he (Walters) knew Galarza. Walters was convicted of conspiracy to deliver and delivery of over 650 grams of cocaine and was sentenced to two consecutive life terms.
Gonzalez did not testify on his own behalf or call any other defense witnesses.
Gonzalez was convicted by a jury of conspiracy to deliver over 650 grams of cocaine, M.C.L. 750.157a, and delivery of over 650 grams of cocaine, M.C.L. 333.7401(2)(a)(i). Gonzalez was sentenced to two consecutive life terms for these crimes. Gonzalez filed a direct appeal, raising the following issues:
I. Were defendant's rights to confrontation and due process violated, where the trial court precluded cross-examination of a key witness as to a possible source of bias?
II. Was the trial court's failure to provide defendant with an interpreter at trial reversible error, where defendant did not speak or understand English?
III. Did the trial court commit reversible error in unduly restricting voir dire?
IV. Was defense counsel ineffective in failing to move for appointment of an interpreter for defendant at trial, in failing to bring out the entire bargain for the accomplices' testimony and the fact that they all lied about it, and in failing to utilize defendant's testimony where there was no other support for his defense?
V. Was the trial court without statutory authority to order that the sentence for conspiracy to deliver a controlled substance run consecutively to the other sentence?
VI. Were mandatory minimum sentences of non-parolable life imprisonment for conspiracy and delivery of cocaine cruel and unusual punishment, at least as applied to defendant?
Gonzalez also filed a motion in the Michigan Court of Appeals to remand for a hearing on the matter of the trial court's failure to provide an interpreter at trial and ineffective assistance of counsel. On June 14, 1994, the Michigan Court of Appeals denied the motion to remand without prejudice in the following order:
The Court orders that the motion to remand is DENIED without prejudice to filing another motion to remand which sets forth in an affidavit how long the defendant has lived in the United States, the defendant's complete educational background and in what language he communicated with his trial attorney. In addition, appellate counsel shall contact trial counsel for defendant and ask counsel why a motion for an interpreter was not filed in the circuit court. That response by trial counsel shall be contained in the affidavit.
People v. Gonzales, Michigan Court of Appeals Docket No. 156916 (June 15, 1994).
Gonzalez refiled his...
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