Gutierrez v. Thaler

• Decision Date: 19 May 2011
• Docket Number: A-06-CA-917-SS
• Parties: PETE GUTIERREZ, Petitioner v. RICK THALER, Director, Texas Department of Criminal Justice-Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Western District of Texas

PETE GUTIERREZ, Petitioner

v.RICK THALER, Director, Texas Department of Criminal

Justice-Correctional Institutions Division, Respondent.

A-06-CA-917-SS

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

SIGNED: May 19, 2011

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE SAM SPARKS UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. § 636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective December 1, 2002.

Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1); Respondent's Answer (Document 37); and Petitioner's Reply to Respondent's Answer (Document 38). Petitioner, proceeding pro se, has paid the filing fee for his application. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be denied.

Statement of the Case

I. Procedural History

According to Respondent, the Director has lawful and valid custody of Petitioner Pete Gutierrez pursuant to a judgment and sentence of the 331st Judicial District Court of TravisCounty, Texas, in cause number 995317, styled State of Texas v. Pedro Edwardo Gutierrez Alias Pete Gutierrez. Gutierrez was charged with murder to which he entered a plea of not guilty to a jury. C.R. 8-11.¹ The jury found Gutierrez guilty as charged, and on February 16, 2001, the jury assessed a fifty-year sentence. Id. at 8.

Gutierrez's conviction was affirmed on August 30, 2002, and the subsequent motion for rehearing was overruled on October 3, 2002. Gutierrez v. State, 85 S.W.3d 446 (Tex. App.-Austin, 2002, pet. ref'd), cert. denied, 544 U.S. 1034, 125 S. Ct. 2245 (2005). Gutierrez filed a state application for habeas corpus relief on March 19, 2003, seeking permission to file an out-of-time petition for discretionary review ("PDR"). The Texas Court of Criminal Appeals granted relief on September 10, 2003. Ex parte Gutierrez, Appl. No. 56,526-01, 2003 WL 22097232 (Tex. Crim. App. Sept. 10, 2003). Gutierrez filed his PDR on January 2, 2004, and the Texas Court of Criminal Appeals refused the PDR on March 24, 2004. Gutierrez v. State, No. 1664-03 (Tex. Crim. App. 2004). Petitioner subsequently filed a petition for writ of certiorari with the Supreme Court, which was denied on May 16, 2005. Gutierrez v. Texas, 544 U.S. 1034, 125 S. Ct. 2245 (2005).

Gutierrez filed a second state application for habeas corpus relief on April 27, 2006. The Texas Court of Criminal Appeals denied the application without written order on October 25, 2006. Ex parte Gutierrez, Appl. No. 56,526-02.

On November 15, 2006, the Court received Gutierrez's federal application for habeas corpus relief. On June 29, 2007, the Court dismissed it as time-barred pursuant to Salinas v.Dretke, 354 F.3d 425 (5th Cir. 2004), concluding that Gutierrez's out-of-time PDR did not reinstate the direct review process for purposes of resetting the federal limitations period. Following the dismissal and while the case was on appeal, the Supreme Court held that when "a state court grants a criminal defendant the right to file an out-of-time direct appeal during state collateral review, but before the defendant first sought federal habeas relief, his judgment is not yet 'final' for purposes of" the one-year limitations period. Jimenez v. Quarterman, 555 U.S. 113, -, 129 S. Ct. 681, 686 (2009). Accordingly, the Fifth Circuit Court of Appeals vacated the Court's judgment and remanded for further proceedings. Gutierrez v. Thaler, No. 07-50857, 2010 WL 1811881 (5th Cir. May 6, 2010).

II. Factual Background

The factual background of this case appears in the Third Court of Appeals opinion.

On October 31, 1999, [Pete Gutierrez] hosted a Halloween party at his residence. [Keith] Watson, accompanied by his friend Paul Davies, arrived at the party around 10:00 p.m. Witnesses testified that at some point Watson engaged in a verbal altercation with a party guest inside appellant's home. There was no physical contact between Watson and the guest, nor were weapons drawn. Appellant asked Watson to leave. There was testimony that Watson did not want to leave because he resented being blamed for the altercation. Witnesses testified that Watson's friends were successful in encouraging him to leave the party and that they began walking toward their car.

As Watson was leaving, appellant went to the front yard of his home where he confronted Watson. Witnesses heard appellant ask Watson if he wanted to go "one-on-one," meaning that appellant asked Watson if he wanted to fight. Watson took off his shirt. There was no indication that he was carrying a weapon. Appellant and Watson began punching one another. Appellant pulled a knife from his back pocket and began waving it at Watson. Appellant stabbed Watson in the chest, puncturing his heart and killing him. There was testimony that witnesses did not realize Watson had been stabbed until he tried to scream and then fell to the ground. Appellant ran into his house, took off his shirt, and hid it in his couch. Appellant threw the knife away, and it was never recovered.

When first questioned about the event, appellant denied that he was involved in a physical confrontation with Watson and blamed Watson's death on an unknown Hispanic male. After being confronted with information gathered from other witnesses, appellant admitted he stabbed Watson.

Appellant admitted to stabbing Watson, and numerous witnesses testified they observed appellant stab Watson. Although appellant claims he acted in self-defense, Watson was not in possession of a weapon, nor had he threatened appellant with deadly force. An autopsy of Watson's body revealed that he had defensive wounds on his hands and stab wounds in his back.

Gutierrez, 85 S.W.3d at 450.

III. Petitioner's Grounds for Relief

Gutierrez raises the following grounds for relief:

1. Gutierrez was denied effective assistance of counsel by his trial counsel's failure to move for a continuance rather than a mistrial when alleged Brady material was disclosed after jury selection. Pet. at 7 (Claim 1).²

2. Gutierrez was denied effective assistance of counsel by his trial and appellate counsel's failures to properly support the Brady violation contention presented by a motion for new trial by adequately investigating, interviewing, and subpoenaing material defense witnesses. Pet. at 7, 8e (Claims 2 & 9c).

3. The trial court erred in denying the motion for new trial based on the Brady contention, because the evidence was impeachment evidence related to the victim and would have served as mitigating evidence in relation to self-defense and punishment. Pet. at 8 (Claim 4).

4. The prosecutor withheld exculpatory impeachment evidence, in violation of Brady, impairing Gutierrez's ability to present his theory of self-defense. Pet. at 8f (Claim 10).

5. A due-process violation created by the prosecutor serving as a witness at the new trial hearing on the disclosure of the Brady material and also assisting theassistant prosecutor by giving closing argument at the hearing. Pet. at 7 (Claim 3).

6. The trial court violated the Confrontation Clause by allowing the prosecution to present police narrative hearsay regarding two alleged eye witnesses (Yadira Gutierrez and Roberto Ellis) who were not called to testify. Pet. at 8a (Claim 5).

7. The trial court erred by allowing the prosecution, over objection, to introduce extraneous offenses and bad acts by Gutierrez into evidence and not giving the requested limiting instruction to the jury. Pet. at 8c (Claim 6).

8. The trial court denied Gutierrez due process and a fair trial by not permitting the introduction of evidence of the decedent's earlier, extraneous offense of carrying a knife. Pet. at 8d (Claim 7).

9. The trial court denied Gutierrez due process and a fair trial by not allowing defense counsel to advance the defense of self-defense. Pet. at 8d (Claim 8).

10. Gutierrez was denied effective assistance of counsel on appeal by his appellate counsel's failure to:

a. raise a Confrontation Clause issue in relation to cross-examination of prosecution witness Paul Davies about the deceased's prior bad acts of violence, Pet. at 8e (Claim 9a); and

b. raise a due process issue based on a conflict of interest stemming from the prosecutor's participation in the hearing for the motion for new trial as a witness regarding the alleged Brady material, Pet. at 8e (Claim 9b).

IV. Exhaustion of State-Court Remedies

Respondent does not contest that Gutierrez has exhausted his state-court remedies regarding the claims brought in this application. A review of the state-court records submitted by Respondent shows that Gutierrez has properly raised these claims in prior state-court proceedings.

Discussion and Analysis

I. The Antiterrorism and Effective Death Penalty Act of 1996

The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is defined by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). By its terms, § 2254(d) bars relitigation of any claim ...