Gutierrez v. Moriarty

• Decision Date: 07 January 1991
• Docket Number: No. 88-1849,88-1849
• Citation: 922 F.2d 1464
• Parties: Toby Joe GUTIERREZ, Petitioner-Appellant, v. Dan MORIARTY, Warden, Attorney General of the State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1464

922 F.2d 1464

Toby Joe GUTIERREZ, Petitioner-Appellant, v. Dan MORIARTY, Warden, Attorney

General of the State of New

Mexico, Respondents-Appellees.

No. 88-1849.

United States Court of Appeals, Tenth Circuit.

Jan. 7, 1991.

Ann Steinmetz, Asst. Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

Hal Stratton, Atty. Gen. and Bill Primm, Asst. Atty. Gen., Santa Fe, N.M., for respondents-appellees.

Before MCKAY, SEYMOUR and ANDERSON, Circuit Judges.

SEYMOUR, Circuit Judge.

Toby Joe Gutierrez brought this habeas corpus action pursuant to 28 U.S.C. Sec. 2254 (1988) challenging the constitutionality of his conviction and sentence under New Mexico law for heroin trafficking. A federal magistrate denied Gutierrez' motion for an evidentiary hearing and issued proposed findings recommending that relief be denied. The district court adopted the recommendation and Gutierrez appeals. Gutierrez contends that: (1) the State's failure to produce his co-defendant and a confidential informant denied his due process right to a fair trial; (2) the district court erred in failing to hold an evidentiary hearing on his claims arising from preindictment and pretrial delay; (3) the court erred in failing to hold an evidentiary hearing on his claim of ineffective assistance of counsel arising from counsel's failure to raise preindictment and pretrial delay; and (4) his life sentence constitutes cruel and unusual punishment. We affirm.

I.

On July 12, 1979, Gutierrez and co-defendant Ruth Maestas were indicted on two counts of heroin trafficking that had allegedly occurred in March. A bench warrant for their arrest was also issued on July 12, although Gutierrez was not arrested until February 14, 1980. Maestas was never apprehended and the case against her was ultimately dropped. Gutierrez' public defender entered an appearance on February 25 and moved the court on March 14 for an order requiring the State to identify and produce the confidential informant who had taken part in the transactions underlying the indictment. Although the court granted the motion on April 7, the State did not respond until May 28 at which time the State named Leonard Alvarez as the informant but stated that Alvarez' whereabouts were unknown.

A trial date of June 16, 1980, was extended upon Gutierrez' motion, and his trial commenced on August 21. Although Gutierrez' counsel pointed out to the court on the day of trial that the State had never produced Alvarez, no motion objecting to that failure is in the record on appeal. Alvarez and Maestas did not appear at trial, and the State established its case against Gutierrez through the testimony of Solomon Luna, a narcotics agent with the New Mexico State Police, who worked undercover with the confidential informant he identified as Leonard Alvarez. According to Luna, he and Alvarez went to Maestas' home to set up a heroin deal. Maestas left the home to obtain the heroin and returned followed by three men, one of whom Luna identified as Gutierrez. Two sales of heroin occurred, in one of which Gutierrez allegedly provided the heroin. The court directed an acquittal on one count, and a jury convicted Gutierrez on the remaining count involving the deal in which the man Luna identified as Gutierrez had actually handed over the drug in Luna's presence.

Gutierrez was found to be a second offender under the state heroin trafficking statute and sentenced to life in prison. Gutierrez appealed, raising the State's failure to produce the informant and his attorney's failure to file motions attacking the preindictment and pretrial delay. The New Mexico Supreme Court remanded for reconsideration of the sentence. In so doing, the Court did not address the informant issue and stated with respect to preindictment and pretrial delay that "appellant's failure to raise the 'speedy trial' issue at the trial level and present a proper quantum of proof on the issue was a failure to preserve the issue for appellate review. See State v. Elliott, 89 N.M. 756, 557 P.2d 1105 (1977)." Rec., vol. I, doc. 9, exh. D at 2. Upon resentencing, Gutierrez was again given a life term. After filing an unsuccessful petition for state post-conviction relief, Gutierrez brought the present action. ¹

II.

Gutierrez asserts that the State's failure to produce the informant Alvarez or reveal his whereabouts deprived Gutierrez of his right to due process. It is clear that a defendant may be "denied due process by the failure of the government to produce the informant for interview, as ordered by the trial court." United States v. Muse, 708 F.2d 513, 514 (10th Cir.1983). Although "[t]he Government must use reasonable efforts to produce an informant so that a defendant may interview him or use him as a witness, ... it is not the guarantor of an informant's presence at trial." Id.

In denying Gutierrez relief on this ground, the district court relied entirely on United States v. Valenzuela-Bernal, 458 U.S. 858, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), which requires that a defendant "at least make some plausible showing of how [the missing witness'] testimony would have been both material and favorable to his defense." Id. at 867, 102 S.Ct. at 3446. On appeal Gutierrez argues that Valenzuela-Bernal is factually distinguishable and that the lower court erred in applying the standard articulated in that case rather than what Gutierrez perceives to be the less demanding standard set out in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).

The Court in Roviaro considered a situation in which the government had not identified or produced an informant who "was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that [the informant] denied knowing [the accused] or ever having seen him before." Id. at 64-65, 77 S.Ct. at 630. Under these circumstances, the Court held that withholding disclosure was prejudicial error because the informant's "possible testimony was highly relevant and might have been helpful to the defense." Id. at 63-64, 77 S.Ct. at 629.

In Valenzuela-Bernal, the defendant, who was charged with bringing an illegal alien into the United States, was arrested along with three illegal aliens as they crossed a border checkpoint. The government detained one of the three to provide a basis for the charge against the defendant, while the other two were deported before they were interviewed by the defendant upon the government's determination that they possessed no evidence material to the defense. In finding no prejudicial error arising from the deportation, the Court concluded that the defendant had to offer "a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses." 458 U.S. at 873, 102 S.Ct. at 3449. Significantly, the Court observed that the defendant "was present throughout the commission of the crime," and that he was therefore in a position to offer a plausible explanation of the aid he would have received from the testimony of the missing witnesses. Id. at 871 & n. 8, 102 S.Ct. at 3448 & n. 8.

We see no conflict in the standards the Court applied in the two cases discussed above. As stated by the Court in Roviaro and as applied in Valenzuela-Bernal, assessment of whether nondisclosure or nonproduction of a witness is erroneous "must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." 353 U.S. at 62, 77 S.Ct. at 629. The adequacy of the showing of materiality is thus a product of these relevant factors in a particular case.

Here, as distinguished from Roviaro, the informant was not the only person other than the accused present at the scene of the crime. Unlike the situation in Valenzuela-Bernal Gutierrez' defense was that he was not present when the crime was committed and was misidentified by the State's witness. Although the question is a close one, we conclude that Gutierrez has failed to establish a constitutional violation arising from the State's failure to produce the informant. Gutierrez claims that because he was not present at the commission of the crime, he cannot do more than state that the missing informant, if he testified truthfully, would corroborate Gutierrez' story. Under some circumstances, this claim alone might constitute a plausible showing of how the informant's testimony would have been sufficiently "relevant and helpful to the defense, or ... essential to a fair determination of a cause" to require the government to produce the informant. Roviaro, 353 U.S. at 60-61, 77 S.Ct. at 628. The state trial court here obviously thought that Gutierrez should have had access to the informant because it ordered the State to reveal the informant's whereabouts. When the State did not do so, however, Gutierrez did not file any motion in the trial court. Moreover, although Gutierrez' defense was that he was not at the scene of the crime and was misidentified by Luna, Gutierrez did not respond to the State's demand for notice of an intent to present an alibi defense. Finally, at least three other people were present at the scene of the crime, including co-defendant Maestas whom Gutierrez knew. The record, however, contains no evidence that Gutierrez attempted to interview or subpoena Maestas, or to ascertain the identity of the other witnesses and support his defense through their testimony. Thus, even assuming that the state trial court was correct in ordering the informant disclosed and that the State therefore had a duty to exercise due diligence in producing him, under the circumstances of this case its alleged failure...