Gonzales v. Furlong , 28 F. App'x 843 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 27 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
GILBERT J. GONZALES,
Petitioner - Appellant, No. 01-1253
v. (D. Colorado)
ROBERT FURLONG; ATTORNEY (D.C. No. 00-D-846)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
This order and judgment is not binding precedent, except under the
*
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
This case is before the court on Gilbert Gonzales’ request for a certificate
of appealability (“COA”). Gonzales seeks a COA so that he can appeal the
district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28
U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of
a § 2254 habeas petition unless the petitioner first obtains a COA). Because
Gonzales has not “made a substantial showing of the denial of a constitutional
right,” this court denies his request for a COA and dismisses this appeal. See id.
§ 2253(c)(2).
Gonzales was arrested in 1995 and charged with first degree murder and
illegal discharge of a firearm; he was fourteen years old at the time. On the date
he was scheduled to go to trial on the charges, Gonzales was offered and accepted
a plea bargain. Pursuant to the plea agreement, Gonzales pleaded guilty to one
count of second degree murder with a stipulated sentence of between thirty and
forty-eight years. Gonzales was sentenced to a term of thirty-four years in the
custody of the Colorado Department of Corrections and five years of mandatory
parole.
Although Gonzales did not file a direct appeal, he did file a post-conviction
motion in state court in 1996 challenging the validity of his guilty plea. He
asserted that his counsel was constitutionally ineffective and that the guilty plea
was obtained in violation of his right to due process. The state district court
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denied relief. The Colorado Court of Appeals affirmed the denial of relief as to
the due process claims but remanded for an evidentiary hearing on the claims of
ineffective assistance. Gonzales did not seek review by the Colorado Supreme
Court of the dismissal of his due process claims. In 1998, after holding an
evidentiary hearing, the state district court again denied Gonzales relief on his
claims of ineffective assistance of counsel. After the Colorado Court of Appeals
affirmed the district court’s denial of relief on the ineffective assistance claims,
the Colorado Supreme Court denied Gonzales’ petition for a writ of certiorari.
Gonzales then filed the instant 28 U.S.C. § 2254 habeas petition, raising the
same claims he had asserted in state court. The district court concluded that
Gonzales had not exhausted his due process claims because he did not seek
discretionary review by the Colorado Supreme Court of the decision of the
Colorado Court of Appeals affirming the dismissal of those claims. See
O’Sullivan v. Boerckel , 526 U.S. 838, 847-48 (1999). The district court further
concluded that the due process claims were now procedurally defaulted because
Gonzales was not entitled under Colorado law to file a second post-conviction
motion in order exhaust the claims. See People v. Hubbard , 519 P.2d 945, 947
(1974); see also Thomas v. Gibson , 218 F.3d 1213, 1221 (10th Cir. 2000) (“[I]f a
petitioner failed to exhaust state remedies and the court to which the petitioner
would be required to present his claims in order to meet the exhaustion
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requirement would now find the claims procedurally barred, the claims are
considered exhausted and procedurally defaulted for purposes of federal habeas
relief.” (quotation omitted)). The district court rejected as a matter of law
Gonzales’ claim that his procedural default was excused by ineffective assistance
of counsel during state post-conviction proceedings, see Thomas , 218 F.3d at
1222, and concluded that Gonzales had not carried his burden of demonstrating
that the failure to consider his due process claims would result in a fundamental
miscarriage of justice. In the alternative, the district court undertook a thorough
analysis of each of Gonzales’ due process claims and concluded that they also
failed on the merits.
The district court likewise concluded that the Colorado Court of Appeals’
resolution of Gonzales’ ineffective assistance of counsel claims was neither
“contrary to” nor “an unreasonable application of” clearly established Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). In so doing, the district court noted
that the state district court had considered on the merits each of Gonzales’ five
claims of ineffective assistance after an evidentiary hearing. The state court
specifically found that Gonzales’ testimony at the evidentiary hearing was not
credible. Accordingly, the state court concluded that Gonzales had not been
coerced into pleading guilty and had been adequately informed about the
consequences of his guilty plea. The Colorado Court of Appeals affirmed the
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state district court’s denial of relief, applying the controlling analytical
framework set forth by the Supreme Court in Strickland v. Washington , 466 U.S.
668 (1984). Upon review of the record, the district court concluded that the state
court’s factual findings were supported by the record and that the Colorado Court
of Appeals’ resolution of Gonzales’ claims was a reasonable application of
Strickland . See 28 U.S.C. § 2254(d), (e).
As noted above, Gonzales must obtain a COA before he can appeal the
district court’s denial of his § 2254 habeas petition. See 28 U.S.C.
§ 2253(c)(1)(A). Gonzales must make a “substantial showing of the denial of a
constitutional right” before he is entitled to a COA. Id. § 2253(c)(2). He may
make this showing by demonstrating the issues raised are debatable among jurists,
a court could resolve the issues differently, or that the questions presented
deserve further proceedings. See Slack v. McDaniel , 529 U.S. 473, 483-84
(2000). Upon review of the relevant case law, Gonzales’ appellate brief and
application for a COA, the district court’s order, and the entire record on appeal,
we conclude that the issues raised by Gonzales are not reasonably debatable,
deserving of further proceedings, or subject to a different resolution on appeal.
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Accordingly, for substantially the reasons stated by the district court in its
thorough order filed April 24, 2001, this court denies Gonzales’ request for a
COA and dismisses this appeal. Gonzales’ request to proceed in forma pauperis
is granted .
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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