Gutierrez v. Thaler

• Decision Date: 31 August 2011
• Docket Number: CIVIL ACTION NO. V-10-047
• Parties: JOSE ALBERTO GUTIERREZ, TDCJ-CID NO. 1523604, Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

JOSE ALBERTO GUTIERREZ, TDCJ-CID NO. 1523604, Petitioner, v. RICK THALER, Director Texas Department of Criminal Justice Correctional Institutions Division, Respondent.

CIVIL ACTION NO. V-10-047

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS VICTORIA DIVISION

Dated: August 31, 2011

MEMORANDUM OPINION AND ORDER

Petitioner Jose Alberto Gutierrez, an inmate of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Docket Entry No. 1), challenging a state court conviction and an associated parole revocation. The respondent filed a motion for summary judgment (Docket Entry No. 40). After considering the motion, Gutierrez's pleadings, the record, and the applicable law, the court will grant the respondent's motion and dismiss the habeas petition.

I. Procedural History

Pursuant to a plea bargain agreement, Gutierrez entered a guilty plea to driving while intoxicated (DWI), enhanced, and the trial court sentenced him to twenty years in prison. State v. Gutierrez, No. 2008CR1186 (290th Dist. Ct., Bexar County, Tex., Aug. 6, 2008). Subsequently, Gutierrez's parole for a prior enhanced DWI was revoked at a TDCJ-CID hearing held at Willacy County State Jail.

Gutierrez filed an appeal which the Court of Appeals for the Fourth Judicial District of Texas dismissed because Gutierrez had no right to an appeal after having pled guilty pursuant toplea bargain agreement . Gutierrez v. State, No. 04-08-00655-CR, 2008 WL 4596571 (Tex.App.-San Antonio Oct 15, 2008, no pet). Gutierrez filed an application for a state writ of habeas corpus. The Texas Court of Criminal Appeals dismissed the first application because it had been filed while the appeal was still pending. Ex parte Gutierrez, No. 70,885-01 (Tx. Crim. App. Nov. 5, 2008). Gutierrez then filed a second application which the Court of Criminal Appeals denied, without a written order on findings of the trial court. Ex parte Gutierrez, No. 70,885-03 (Tx. Crim. App. Mar. 17, 2010). Gutierrez then filed the current pending federal habeas action with this court.

II. Claims for Relief

Gutierrez makes the following claims:

1. Gutierrez was arrested without a warrant and without probable cause.

2. Gutierrez's guilty plea was coerced and made under duress because his attorney had a conflict of interest and his sentence did not comply with the terms of his plea bargain.

3. Gutierrez's due process rights and equal protection rights were violated because he was not informed of his Miranda rights or "magistrated"¹ when he was arrested nor were his charges presented to a grand jury, and the state failed to present evidence of Gutierrez's habitual offender status.

4. Gutierrez was subjected to malicious prosecution.

5. Gutierrez's trial attorney was ineffective because he had a conflict of interest and engaged in misconduct.

6. Gutierrez was denied effective assistance of counsel on appeal because his appellate attorney failed to investigate the case and filed an Anders brief.

7. Gutierrez's due process and equal protection rights were violated because he was denied a preliminary hearing prior to his parole revocation. He was also denied the right to cross-examine witnesses at the revocation hearing and there was insufficient evidence to uphold the revocation.

8. Gutierrez is actually innocent.

Petition, Docket Entry No. 1, at 13-17.

III. The Applicable Legal Standards

Gutierrez's petition for a writ of habeas corpus is subject to review under the federal habeas statutes as amended by the Antiterrorism and Effective Death Penalty Act of 1996. 28 U.S.C. § 2254; Woods v. Cockrell, 307 F.3d 353, 356 (5th Cir. 2002); Nobles v. Johnson, 127 F.3d 409, 413 (5th Cir. 1997), citing Lindh v. Murphy, 117 S.Ct. 2059, 2068 (1997). A federal habeas petitioner challenging a state court decision is not entitled to relief unless the state court judgment:

(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).

The 1996 AEDPA provisions "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas 'retrials' and to ensure that state-court convictions are given effect to the extent possible under law." Bell v. Cone, 122 S.Ct. 1843, 1849 (2002), citing Williams v. Taylor, 120 S.Ct. 1495, 1518 (2000). A state court's decision is "contrary to" the Supreme Court's clearly established precedents if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Early v. Packer, 123 S.Ct. 362, 365 (2002), quoting Williams, 120 S.Ct. 1495, 1519-1520 (2000). An incorrect application of federal law is not necessarily an unreasonable application. Pape v. Thaler, 645 F.3d 281, _____ , 2011 WL 2476437, *2 (5th Cir. 2011), citing Harrington v. Richter, 131 S.Ct. 770, 785 (2011). "An unreasonable application of clearly established federal law 'identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts' of a case." Id., quoting Williams, 120 S.Ct. 1495, 1523 (2000). Therefore, a state court's application may be reasonable even if it is erroneous. Id. Habeas relief should only be granted where the state court decision is both incorrect and objectively unreasonable. Martin v. Cain, 246 F.3d 471, 476 (5th Cir. 2001), citing Williams, at 1521.

Summary Judgment standards established under the Federal Rules of Civil Procedure apply in habeas corpus cases brought under 28 U.S.C. § 2254. Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000); McBride v. Sharpe, 25 F.3d 962, 969 (11th Cir. 1994). A summary judgment shall be issued if the pleadings and evidence "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); Hall v. Thomas, 190 F.3d 693, 695 (5th Cir. 1999). In considering a motion for summary judgment, the court construes factual controversies in the light most favorable to the non-movant, but only if both parties have introduced evidence showing that an actual controversy exists. Lynch Properties, Inc. v. Potomac Ins. Co. of Illinois, 140 F.3d 622, 625 (5th Cir. 1998). The burden is on the movant to convince the court that no genuine issue of material fact exists as to the claims asserted by the non-movant, but the movant is not required to negate elements of the non-movant's case. See Celotex Corp. v. Catrett, 106 S.Ct. 2548, 2553 (1986).

The non-moving party may not rest solely on its pleadings. King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992). For issues on which the non-movant will bear the burden of proof at trial, that partymust produce summary judgment evidence and designate specific facts which indicate that there is a genuine issue for trial. Celotex, 106 S.Ct. at 2552; Wallace v. Texas Tech. Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106 S.Ct. 1348, 1356 (1986). To meet its burden, the non-moving party must present "significant probative" evidence indicating that there is a triable issue of fact. Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994). If the evidence rebutting the summary judgment motion is only colorable or not significantly probative, summary judgment should be granted. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2511 (1986).

The AEDPA "overrides the ordinary rule that, in a summary judgment proceeding, all disputed facts must be construed in the light most favorable to the non-moving party." Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002). A federal habeas court must also presume the underlying factual determinations of the state court to be correct, unless the petitioner "rebut[s] the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Miller-El v. Cockrell, 123 S.Ct. 1029, 1042 (2003).² A habeas petitioner cannot rely on "bald assertions on a critical issue in his pro se petition ... mere conclusory allegations do not raise a constitutional issue in a habeas proceeding." Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983). Under 28 U.S.C. § 2254(d)(2) "a decision adjudicated on the merits in a state court and based on afactual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding[.]" Miller-El, 123 S.Ct. at 1041.

IV. Analysis

A. Gutierrez's Arrest

Gutierrez contends that his arrest was unconstitutional because it was made without a warrant and without probable cause. Gutierrez attached a copy of the Offense/Incident Report (Docket Entry No. 1-5) which documented the circumstances of his arrest which apparently was made without a warrant. If a police officer does not have a warrant, the arrest must be based on probable cause which exists when the totality of facts and circumstances within a police officer's knowledge at the moment of arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense. Michigan v. DeFillippo, 99 S.Ct. 2627, 2631 (1979); Resendiz v. Miller, 203 F.3d 902, 903 (5th Cir. 2000). The Offense/Incident Report indicates that the arresting officer observed that Gutierrez was "very, very drunk" and that he had admitted that he "had just crashed the car" (Docket Entry No. 1-5 at 1)....