Gutierrez v. Miller

Background

Oman Gutierrez, representing himself, filed a petition under 28 U.S.C. § 2254 seeking to vacate his New York convictions for first-degree murder, second-degree murder, second-degree conspiracy, and second- and third-degree criminal possession of a weapon. A New York jury convicted him in 2010, and he received a prison sentence of 52 1/2 years to life.

Gutierrez challenged several trial rulings: the admission of evidence about a July 2004 shooting; testimony by Eldia Duran about recorded conversations and the murder conspiracy; testimony by Officer Rolando Rivera about decoding recorded prison calls and narcotics trafficking; and the handling of alleged multiple conspiracies. He also claimed ineffective assistance of appellate counsel. In later filings, he sought to add claims that family members had been excluded from the courtroom and that he had been absent from a significant proceeding. He moved to amend the petition and to pause the case so he could pursue those claims in state court.

Report and Recommendation

Magistrate Judge Stewart D. Aaron recommended denying the petition and both motions. He concluded that some claims had not been properly presented to the state courts and were therefore procedurally barred. He also addressed the substance of several claims and found no basis for federal habeas relief.

Judge Aaron found that the July 2004 shooting evidence was relevant to the alleged murder conspiracy, that Duran’s testimony was based on firsthand knowledge and was otherwise admissible under a rule allowing statements by co-conspirators, and that any error in admitting portions of Rivera’s testimony was harmless. He also concluded that the multiple-conspiracies claim failed and that appellate counsel was not ineffective because the proposed appellate issues lacked merit.

Judge Aaron further concluded that the two proposed new claims were untimely under the one-year federal habeas filing period. He found that Gutierrez had not shown the diligence and extraordinary circumstances required to extend that deadline. He therefore recommended denying amendment and a stay as futile.

District Court’s Review

The district court reviewed the portions of the recommendation to which Gutierrez made specific objections under a fresh review standard and reviewed the remaining portions for clear error. The court adopted Judge Aaron’s recommendation in its entirety.

The court held that Gutierrez had not fairly presented the prior-bad-acts and multiple-conspiracies arguments as federal claims in state court. It also agreed that those arguments failed on the merits. The July 2004 shooting was relevant to whether Inoa participated in the charged conspiracy, and the evidence did not show that the jury had been misled into treating a drug conspiracy as the basis for conviction.

Regarding Rivera’s testimony, the court recognized that state courts had found that considerable portions of his expert testimony were admitted in error. It nevertheless held that the error was harmless because the recorded conversations were clear, other evidence of guilt was compelling, and the trial judge gave limiting instructions. Regarding Duran, the court held that her testimony was based on what she personally heard and observed and that the use of co-conspirator statements did not violate the constitutional right to confront witnesses.

The court rejected the ineffective-assistance claim. It found that the alleged juror error was factually incorrect because the dismissed juror was replaced by an alternate, and that the intent instruction was substantially the same as New York’s model instruction. The court therefore concluded that appellate counsel acted within the range of reasonable professional assistance and that the state court’s decision was not unreasonable.

The court also held that the two proposed new claims were untimely and that Gutierrez had not established a basis for extending the deadline. It denied the motions to amend and stay.

Disposition

Judge Gardephe adopted the Report and Recommendation in full. The petition, motion to amend, and motion to stay were denied. The court declined to issue a certificate of appealability, certified that an appeal would not be taken in good faith, denied permission to appeal without paying filing fees, and directed the Clerk of Court to close the case.