FILED
NOT FOR PUBLICATION JAN 03 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT GONZALEZ, No. 12-16607
Petitioner - Appellant, D.C. No. 4:08-cv-00658-FRZ
v.
MEMORANDUM*
CHARLES L. RYAN,** Director of
ADOC; et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted December 4, 2013
San Francisco, California
Before: HAWKINS, GOULD, and PAEZ, Circuit Judges.
Petitioner Robert Gonzalez appeals the district court’s denial of his habeas
petition under 28 U.S.C. § 2254. In separate trials, Gonzalez was convicted of two
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Charles L. Ryan is substituted for his predecessor, Dora B. Schriro, as
Director of the Arizona Department of Corrections, pursuant to Fed. R. App. P.
43(c)(2).
counts of attempted first degree murder for shootings on November 3, 2001 (“the
first trial” or “Humo shooting”), and November 19, 2001 (“the second trial” or
“Lewis shooting”), along with other crimes. We have jurisdiction pursuant to 28
U.S.C. § 2253, and we affirm.
We review de novo the district court's decision to deny the petition.
Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). Gonzalez’s petition is
governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214. Gonzalez must therefore show
that the last reasoned Arizona state court decision was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or was “an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d).
1. The district court correctly determined that an unconstitutional jury
instruction on premeditation in each of Gonzalez’s trials was harmless.1
Constitutional trial errors provide grounds for habeas relief only if the error “had
substantial and injurious effect or influence in determining the jury's verdict.”
1
The parties do not dispute that the jury instruction, which stated that “proof
of actual reflection is not required” to establish attempted first degree murder, was
unconstitutional.
2
Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). The record for each trial
contains extensive evidence that Gonzalez reflected before committing the
shootings. In the first trial, the evidence showed that Gonzalez parked his car
outside Humo’s apartment on November 2, 2001, and initiated a conversation with
Humo while holding a gun in plain sight. During the ensuing conversation, which
lasted several minutes, Gonzalez considered leaving but chose instead to engage in
verbal posturing with Humo that led to the shooting. Humo never physically
engaged Gonzalez and attempted to retreat as Gonzalez repeatedly shot him. In the
second trial, the evidence showed that Gonzalez purchased a fully automatic Mac-
11 handgun after learning there was a warrant out for his arrest. When Officer
Charles Blue attempted to execute the warrant, Gonzalez pulled out his weapon,
began to run, and then fired multiple shots at a second officer who had pulled his
truck in front of Gonzalez. Gonzalez also testified as to his decision to shoot at the
second officer instead of Officer Blue given his assessment of the situation.2
In light of the evidence of reflection in each trial, the erroneous jury
instruction did not have a “substantial and injurious effect” on the jury’s verdict.
See id. at 637-38.
2
Whether Gonzalez believed these officers were police or civilians is
irrelevant to the question of whether there was evidence of actual reflection.
3
2. Gonzalez’s claim that the first trial court erred by admitting two nine-
millimeter shell casings does not warrant relief. Even if there was evidentiary
error, it did not rise to the level of constitutional error because it did not affect the
“fundamental fairness” of the trial. See Hayes v. Ayers, 632 F.3d 500, 515 (9th
Cir. 2011) (internal quotations and citations omitted). The State did not rely upon
this evidence and, in fact, disavowed it in closing rebuttal. The State’s case was
not built upon ballistics, but upon three separate eye-witness accounts and positive
identifications of Gonzalez and of the car he was using the night of the Humo
shooting.
3. Gonzalez’s claim that the trial court’s preclusion of impeachment evidence
deprived him of his Due Process and Confrontation Clause rights is without merit.
The trial court properly excluded: (1) Humo’s outstanding misdemeanor warrants
because, contrary to Gonzalez’s allegations, there was no evidence that he testified
in exchange for a non-prosecution agreement; (2) pictures of Humo’s body tattoos
because Gonzalez failed to present any evidence establishing their relevance to the
trial; (3) Humo’s specific prior convictions for violent crimes because Humo’s
violent propensity was not at issue, and; (4) Humo’s shoplifting conviction because
it was not sufficiently probative of his credibility, see United States v. Ortega, 561
F.2d 803, 806 (9th Cir. 1977). Gonzalez has not established that any of the trial
4
court’s rulings were contrary to or an unreasonable application of clearly
established Supreme Court precedent.
4. Gonzalez’s claim that the trial court violated his due process rights by
improperly shifting the burden of proof for self defense away from the State in his
second trial fails because this was consistent with Arizona law at the time of the
trial. See Ariz. Rev. Stat. § 13-205 (1997). “The retroactivity of a state change of
law is a state question and the federal Constitution has no voice upon the subject.”
La Rue v. McCarthy, 833 F.2d 140, 142 (9th Cir. 1987) (internal quotations and
citations omitted). The Arizona Supreme Court established that the 2006
legislative amendments changing self defense to an affirmative defense and
shifting the burden of proof to the State are not retroactive. Garcia v. Browning,
151 P.3d 533, 537 (Ariz. 2007), overturned by State v. Montes, 245 P.3d 879 (Ariz.
2011) (approving validity of separate legislation establishing retroactivity of the
2006 amendments for crimes committed before the amendments but first submitted
to a trier of fact after the amendments). The 2006 amendments do not apply to
Gonzalez because the jury heard his case in 2002. Gonzalez’s alternate argument
that Arizona’s law at the time of his trial was unconstitutional fails because states
do not violate the Constitution if they place the burden of proof for self defense on
the defendant. Martin v. Ohio, 480 U.S. 228, 235-36 (1987).
5
5. Gonzalez’s claim that there was insufficient evidence to convict him in his
second trial for attempted first degree murder, aggravated assault, and disorderly
conduct on a police officer is without merit. “[A] federal habeas corpus court
faced with a record of historical facts that supports conflicting inferences must
presume—even if it does not affirmatively appear in the record—that the trier of
fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Jackson v. Virginia, 443 U.S. 307, 326 (1979). After AEDPA, this
court must apply the Jackson standard “with an additional layer of deference.”
Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005).
The following evidence supports Gonzalez’s conviction for the Lewis
shooting: (1) Gonzalez knew there was a warrant out for his arrest and therefore
would have been expecting the police to attempt an arrest; (2) Blue testified that he
yelled “Tucson Police,” and “get on the ground,” when he first confronted
Gonzalez; (3) Gonzalez looked straight at Blue, made eye contact with him, and let
out a sigh before pulling out a gun and running; (4) Blue was wearing a vest that
indicated he was a law enforcement officer; (5) Lewis had not drawn a weapon,
and did not have a weapon that was visible to Gonzalez, when Gonzalez began to
shoot at him; (6) Gonzalez’s shots narrowly missed Lewis, and; (7) Gonzalez had
purchased the Mac-11 handgun after the Humo shooting and within a week of the
6
Lewis shooting. This evidence is more than sufficient under the dual
Jackson/AEDPA standards to support Gonzalez’s conviction in his second trial.
6. Gonzalez’s claim that his constitutional rights were violated because Blue
destroyed exculpatory evidence by moving his vehicle before detectives could
complete their investigation of the Lewis shooting fails because Gonzalez has not
established that Blue acted in bad faith. See Arizona v. Youngblood, 488 U.S. 51,
58 (1988) (“[U]nless a criminal defendant can show bad faith on the part of the
police, failure to preserve potentially useful evidence does not constitute a denial
of due process of law.”). On appeal, Gonzalez makes no coherent argument that
Blue acted in bad faith. Further, other evidence established the location of Blue’s
car before the shooting. See California v. Trombetta, 467 U.S. 479, 489 (1984).
7. The three claims of prosecutorial misconduct that Gonzalez did not
procedurally default fail because, even if there was misconduct, it did not rise to
the level of a constitutional violation. See Parker v. Matthews, 132 S. Ct. 2148,
2153 (2012). Where a state court has ruled on the merits of a prosecutorial
misconduct claim, we must apply AEDPA deference in our analysis. Id.
First, the state appellate court reasonably determined that the prosecution
focused on Gonzalez’s credibility when it made reference to the Humo shooting
during closing argument at the second trial. Second, Gonzalez contends that the
7
prosecutor violated the attorney-client privilege and Gonzalez’s right to counsel by
impermissibly stating that Gonzalez surprised his own counsel when he concocted
a story just before taking the stand. This argument fails because the state court of
appeals reasonably determined that the prosecutor’s remarks were proper rebuttal
in response to Gonzalez’s closing argument. Last, the prosecutor’s comment that
Blue moved his vehicle from the November 19 shooting scene because “he needed
to do something” at the house near the Lewis shooting scene was proper because
the disputed comment did not give rise to the inference that Gonzalez was
approaching the house to engage in criminal activity.
8. The three ineffective assistance of counsel claims that Gonzalez did not
procedurally default fail under the double-deference standard we apply when
assessing ineffective assistance of counsel claims after AEDPA. Under Strickland
v. Washington, 466 U.S. 668, 688, 692 (1984), Gonzalez must establish both that
counsel’s performance “fell below an objective standard of reasonableness” based
on the “prevailing professional norms,” and that such error was prejudicial. Under
AEDPA, “[a] state court's determination that a claim lacks merit precludes federal
habeas relief so long as fairminded jurists could disagree on the correctness of the
state court's decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal
quotations and citations omitted).
8
Gonzalez’s first claim—that his counsel was ineffective in his first trial for
failing to make an objection when the State admitted a mug shot of Gonzalez taken
around the time of the shootings—is without merit because the photograph was
admissible to aid an eye witness to the crime in identifying Gonzalez, whose
physical appearance had changed considerably between the shooting and the trial.
Gonzalez’s second claim—that his counsel was ineffective in his first trial for
failing to obtain a ballistics expert to counter the State’s expert testimony as to the
nine millimeter shell casings—is without merit because Gonzalez has not
established prejudice. Gonzalez’s third claim—that his counsel in his first trial
failed to object to the State’s closing argument—similarly fails because Gonzalez
does not establish that any comment affected the outcome of the trial.
9. Gonzalez’s claims that his constitutional rights were violated during
sentencing are without merit. Gonzalez does not cite to any Supreme Court
authority setting forth a constitutional right to an individualized sentencing
determination in non-capital cases. Further, his argument on direct appeal was
exclusively focused on Arizona’s sentencing laws, not federal laws. His claim is
thus not cognizable on habeas review. See 28 U.S.C. § 2254(d); Duncan v. Henry,
513 U.S. 364, 365-66 (1995).
9
Gonzalez’s claim that the trial court violated Apprendi v. New Jersey, 530
U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), in applying
aggravating factors to arrive at consecutive eighteen-year sentences fails because
Gonzalez’s admission that he had a prior felony increased his sentencing range for
each crime and placed the sentences within that range. See Apprendi, 530 U.S. at
490 (establishing that “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt” (emphasis added)).
Therefore, the trial court could make findings on aggravating circumstances to
increase the sentence within that range. See id.
10. The district court correctly ruled that Gonzalez procedurally defaulted his
remaining claims because he did not fairly present them in state court. See
Baldwin v. Reese, 541 U.S. 27, 29 (2004). Gonzalez failed to exhaust the
following claims, in whole or in part, because he did not raise them before the state
courts: six3 (two of the three impermissible-preclusion-of-witnesses claims), seven,
eight, fifteen (six of the nine prosecutorial misconduct claims), sixteen (twelve of
the fifteen ineffective assistance of counsel claims), and seventeen (ineffective
3
Because Gonzalez puts forward eighteen separate claims for relief, many
with multiple sub-parts, we do not refer to the substance of each claim. Instead, we
retain the numbering that Gonzalez used in his briefs before this court.
10
assistance of counsel claims related to sentencing). Gonzalez also failed to fairly
present claims two, three, nine, and eleven in state court because he did not provide
a grounds for relief under federal law. See Duncan, 513 U.S. at 365-66.
No exception applies that would allow him to proceed with his procedurally
defaulted claims. Further, the district court did not err when it refused to stay the
proceedings to allow Gonzalez to return to state court to exhaust his claims.
Because the merits of Gonzalez’s claims were no longer reviewable in the Arizona
courts, see Ariz. R. Crim. Proc. 32.2(a)(3), 32.4, the claims were technically
exhausted but procedurally defaulted. The district court thus correctly determined
that there was no basis for staying Gonzalez’s petition. See Coleman v. Thompson,
501 U.S. 722, 735 n.1 (1991).
11. In conclusion, we find no reversible error in the district court’s denial of
Gonzalez’s habeas petition under 28 U.S.C. § 2254(d).
AFFIRMED.
11