Rudy Gutierrez v. Warden

• Court: District Court, C.D. California
• Decided: February 4, 2021
• Docket: 2:20-cv-10678
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ) 11 RUDY GUTIERREZ, ) Case No. CV 20-10678-JWH (JPR) ) 12 Petitioner, ) ORDER DISMISSING ACTION WITHOUT 13 v. ) PREJUDICE ) 14 WARDEN, ) ) 15 Respondent. ) ) 16 BACKGROUND 17 On November 4, 2020, Petitioner, who is housed at the U.S. 18 Penitentiary at Lompoc, filed a Petition for Writ of Habeas 19 Corpus by a Person in Federal Custody under 28 U.S.C. § 2241 in 20 the Southern District of California, which transferred it here 21 on November 23. In 2007, he was convicted in the Southern 22 District of Texas of one count each of conspiracy to possess 23 with intent to distribute more than 1000 kilograms of marijuana 24 and conspiracy to commit money laundering, and he was sentenced 25 to an aggregate prison term of 360 months. See United States v. 26 Gutierrez, 292 F. App’x 412, 414-15 (per curiam) (5th Cir. 27 28 1 1)2008)7 (see also Pet. at 1, 11).1 Petitioner appealed, arguing 2 |famong other things that his Sixth Amendment right to counsel was 3 violated because a prosecution witness was represented by an 4 ||attorney who had briefly represented him and that his trial 5 ||}counsel was ineffective for failing to object to that 6 |jarrangement. Gutierrez, 292 F. App’x at 417. The Fifth Circuit 7 ||Court of Appeals affirmed his convictions and sentence. Id. 8 On February 16, 2010, Petitioner filed pro se a § 2255 9 |}motion in the district of conviction, repeating his Sixth 10 |/Amendment arguments; it was denied on February 10, 2011. United 11 |/States v. Gutierrez, Cr. No. C-06-380 (4), 2011 WL 649970, at *1 12 ||(S.D. Tex. Feb. 10, 2011), aff'd, 548 F. App’x 181 (5th Cir. 13 |}2013). He then filed an addendum to his § 2255 motion, raising 14 |[additional claims that were denied on the merits in two separate 15 ||decisions. See United States v. Gutierrez, No. C-06-380-4, 2011 16 13334116, at *2 (S.D. Tex. Apr. 14, 2011); United States v. 17 ||Gutierrez, No. C-06-380-4, 2011 WL 13334117, at *1 (S.D. Tex. 18 |jJuly 5, 2011), aff'd, 548 F. App’x at 181. The district court 19 ||subsequently denied as successive § 2255 motions his requests 20 ||for it to reconsider his claims. United States v. Gutierrez, 21 2:06-CR-380-4, 2014 WL 12872397, at *1 (S.D. Tex. Sept. 30, 22 ||2014); United States v. Gutierrez, No. 2:06-CR-380-4, 2014 WL 23 |[12872398, at *2 (S.D. Tex. Nov. 10, 2014). On December 6, 2013, 24 Fifth Circuit affirmed the denial of his § 2255 motion, 25 ||finding that he had “not shown a violation of his Sixth 26 27 ‘For documents that are not consecutively paginated, the Court uses the pagination generated by its Case Management/Electronic 28 case Filing system.

1 Amendment right to the effective assistance of counsel.” 2 Gutierrez, 548 F. App’x at 184. 3 On December 13, 2019, Petitioner sought authorization from 4 the Fifth Circuit under § 2255(h) to file a second or successive 5 motion, raising his claim that newly discovered evidence — 6 affidavits from his coconspirators recanting their testimony and 7 exculpating him — proved his innocence and “prosecutorial 8 misconduct.” Mot. at 8-12, In re Gutierrez, No. 19-41028 (5th 9 Cir. Dec. 13, 2019). On March 11, 2020, he filed through 10 counsel a supplemental brief in support of his application. 11 Suppl. Br. at 7-21, id. On March 31, 2020, the Fifth Circuit 12 denied his application, finding that the newly discovered 13 evidence “fail[ed] to establish by clear and convincing evidence 14 that, viewed in light of the record as a whole, including the 15 extensive evidence presented at [his] trial, no reasonable juror 16 would vote to convict [him].” Order at 2, id. It also found 17 that to the extent Petitioner sought to raise a “freestanding 18 actual innocence claim,” none existed. Id. And even if “an 19 actual innocence claim can serve as a gateway to raise 20 successive claims without satisfying the requirements of 21 § 2255(h)(1),” Petitioner’s newly discovered evidence failed to 22 show that it was “more likely than not that no reasonable juror 23 would have found [him] guilty beyond a reasonable doubt.” Id. 24 at 3 (citing Schlup v. Delo, 513 U.S. 298, 327-29 (1995)). 25 DISCUSSION 26 Generally, after a conviction and sentence are final, the 27 only mechanism for a federal prisoner to seek relief from 28 judgment is through § 2255. Tripati v. Henman, 843 F.2d 1160, 1 1162 (9th Cir. 1988). Prisoners may file only one § 2255 2 motion, and only within certain strict time limits. See 3 § 2255(f), (h). Under the “savings clause” of § 2255, however, 4 a prisoner may file a federal habeas petition when it “appears 5 that the remedy by motion is inadequate or ineffective to test 6 the legality of his detention.” § 2255(e). To qualify under 7 that clause, a petitioner must claim he is actually innocent and 8 not have had an “unobstructed procedural shot” at presenting the 9 claim earlier. Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 10 2008). The ban on unauthorized successive § 2255 motions does 11 not by itself render § 2255 inadequate or ineffective. Stephens 12 v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006). When a federal 13 prisoner files a § 2241 petition, a district court must answer 14 the “threshold jurisdictional question” of whether the petition 15 is properly brought under § 2241 or “is, instead, a disguised 16 § 2255 motion.” Marrero v. Ives, 682 F.3d 1190, 1194 (9th Cir. 17 2012). 18 Petitioner claims that his judgment should be vacated 19 because “newly obtained evidence” — the sworn statements from 20 his coconspirators — establishes that he was “absolutely 21 innocent.” (Pet. at 6; see id. at 13-20.) He also argues that 22 the new evidence shows that the prosecution withheld exculpatory 23 evidence and intimidated a witness into not testifying on his 24 behalf. (Id. at 6, 21-28.) And he argues for the first time 25 that his “post-conviction counsel” was ineffective for allegedly 26 failing to contend both that his pretrial attorney was 27 improperly permitted to later represent a prosecution witness 28 1 that his trial counsel was ineffective for not objecting to 2 |;that arrangement. (Id. at 7, 29-33.) 3 Because Petitioner is not challenging the manner in which 4 ||his sentence is being executed but the legality of his judgment 5 ||for “offenses he did not commit” (Pet. at 7; see id. at 2-3, 9), 6 § 2241 Petition is a disguised successive § 2255 motion. 7 ||See Marrero, 682 F.3d at 1194. He does not qualify for 8 2255(e)’s “savings clause” because he cannot show that he has 9 had an “unobstructed procedural shot” at raising any of the 10 ||/Petition’s claims. 11 The Petition’s claims mainly focus on his assertion that 12 ||newly discovered evidence proves his actual innocence and 13 |/prosecutorial misconduct. (See Pet. at 6, 13-28.) But even if 14 does possess new evidence that could not earlier have been 15 ||discovered through the exercise of due diligence, § 2255 16 ||/provides him a mechanism for seeking relief based on that 17 |jevidence. See § 2255(h)(1) (allowing prisoner to seek leave to 18 ||file second or successive § 2255 motion based on newly 19 ||discovered evidence). Indeed, Petitioner used that procedure 20 ||/when he sought authorization from the Fifth Circuit to file a 21 ||successive § 2255 motion raising his actual-innocence and 22 ||prosecutorial-misconduct claims. 23 That the Fifth Circuit denied his motion because he failed 24 ||to show that “no reasonable factfinder would have found [him] 25 ||[guilty of the offense” as required by § 2255(h)(1) does not 26 ||render § 2255 inadequate or ineffective. See Ivy v. Pontesso, 27 ||328 F.3d 1057, 1059 (9th Cir. 2003) (“[Section 2255’s] remedy is 28 ‘inadequate or ineffective’ merely because § 2255's

1 ||gatekeeping provisions prevent the petitioner from filing a 2 ||second or successive petition.” (citation omitted)); Knight v. 3 |}Rios, No. 1:09-cv-00823-AWI-JLT HC., 2010 WL 5200906, at *1-3 4 |/(E.D. Cal. Dec. 15, 2010) (denying motion for reconsideration 5 |}under Federal Rule of Civil Procedure 60(b) because despite 6 ||/petitioner’s “dogged assertion that he has not had an 7 |junobstructed procedural shot” at bringing claim, Fifth Circuit 8 |/|had considered and denied request to file second or successive 2255 motion). 10 As for his ineffective-assistance claim, Petitioner does 11 argue that he has not had an unobstructed procedural shot at 12 ||raising it. He appears to be contending that his appellate 13 |/counsel, Irma Sanjines,? unconstitutionally failed to argue on 14 ||direct appeal both that his pretrial counsel was improperly 15 |/permitted to later represent a prosecution witness and that his 16 ||/trial counsel was ineffective for failing to object to that 17 ||jarrangement. For starters, it appears that Sanjines did raise 18 ||/those arguments on direct appeal, as did Petitioner in his 19 |}initial § 2255 motion. See Gutierrez, 292 F. App’x at 417; 20 ||Gutierrez, 2011 WL 649970, at *1. Beyond that, he did not argue 21 ||Sanjines’s effectiveness when he sought the Fifth Circuit’s 22 |/(permission to file a second or successive § 2255 motion, see 23 ||Mot. at 8-12, In re Gutierrez, No. 19-41028 & Suppl. Br. at 7- 24 |/21, id., and he acknowledges that unlike the other claims in the 25 * Although Petitioner’s claim refers to “post-convictio 26 |jcounsel” (Pet. at 7), Sanjines, the attorney whose performance he assails (see id. at 30), represented him only on direct appeal 27 || (see id. at 75); Gutierrez, 292 F. App’x at 414. Petitioner was not represented by counsel when he filed his first § 2255 motion. 28 Gutierrez, 2011 WL 649970, at *1.

1 |]/Petition, he has not presented it “in all appeals that were 2 |favailable to [him]” (Pet. at 7). Further, he doesn’t explain 3 he didn’t challenge Sanjines’s performance in his initial 41/8 2255 motion or in any of his other attempts to upend his 5 |}convictions, all of which were filed after she represented him. 6 In sum, Petitioner has not shown that § 2255 is inadequate 7 ineffective as a means of providing him relief, and his 8 2241 Petition is nothing but a disguised § 2255 motion. It is 9 |inot only impermissibly successive without authorization but was 10 filed in the wrong court as well. See § 2244(b)(3)(A) (“Before 11 second or successive application . . . is filed in the 12 ||district court, the applicant shall move in the appropriate 13 |/court of appeals for an order authorizing the district court to 14 ||consider the application.”); Stephens, 464 F.3d at 897 (‘A 15 2255 motion must be filed in the district where the defendant 16 sentenced.”); see also § 2255(h) (noting that § 2244(b)’s 17 ||rule governing successive petitions applies to federal 18 ||prisoners).? As to his claims stemming from the newly obtained 19 |fevidence, the Fifth Circuit has already denied his application 20 file a successive § 2255 motion raising them; as to his claim 21 |/about Sanjines’s ineffectiveness, he must first obtain the Fifth 22 ||Circuit’s permission to raise it in a successive § 2255 motion 23 the sentencing court. 24 25 26 3Local Rule 72-3.2 provides that “if it plainly appears fro the face of the petition and any exhibits annexed to it that the 27 ||/petitioner is not entitled to relief, the Magistrate Judge ma prepare a proposed order for summary dismissal and submit it an 28 |la proposed judgment to the District Judge.”

1 IT THEREFORE IS ORDERED that Petitioner’s Petition is 2 ||dismissed without prejudice to its refiling should he obtain the 3 |Inecessary permission from the Fifth Circuit and that Judgment be 4 |}entered dismissing this action.# 5 6 ||DATED: February 4, 2021 YG. JO W. HOLCOMB 7 U.S. DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 JJ “On December 15, 2020, Petitioner requested appointment of counsel, asserting that he is “ill-equipped to represent himself.” 26 || (Mot. at 1.) Because this Court lacks jurisdiction over Petitioner’s disguised § 2255 motion, it also lacks jurisdictio 27 |lover his appointment-of-counsel request. See Chelberg v. FBOP Director, No. 3:19-cv-0748-BTM, 2019 WL 4934198, at *3 (S.D. Cal. 28 7, 2019).