Daniel Gutierrez v. Richard Bock , 616 F. App'x 339 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 24 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL OQUITA GUTIERREZ, No. 13-16849
Petitioner - Appellant, D.C. No. 4:12-cv-00712-DTF
v.
MEMORANDUM*
RICHARD A. BOCK; ATTORNEY
GENERAL OF THE STATE OF
ARIZONA; CHARLES L. RYAN,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
D. Thomas Ferraro, Magistrate Judge, Presiding
Submitted September 16, 2015**
San Francisco, California
Before: CHRISTEN and FRIEDLAND, Circuit Judges and LEMELLE,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ivan L.R. Lemelle, Senior District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
After a shooting at a crowded party, an Arizona jury convicted Daniel
Gutierrez on several counts of assault and one count of manslaughter. Gutierrez
filed a petition for a writ of habeas corpus in state court alleging ineffective
assistance of counsel. After that petition’s denial and several unsuccessful appeals,
Gutierrez filed a petition for a writ of habeas corpus in the district court. The
district court dismissed the petition and Gutierrez appeals. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.1
Gutierrez argues his counsel’s decision not to call Jose Baldenegro as a
witness amounted to ineffective assistance. Gutierrez is not entitled to relief
because the state court reasonably concluded that, even if counsel’s performance
was deficient, Gutierrez had not “show[n] that the deficient performance
prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687 (1984);
28 U.S.C. § 2254(d)(1). Gutierrez’s DNA was on the gun used in the shooting and
Baldenegro’s account would have been contradicted by that of two other witnesses.
AFFIRMED
1
The parties are familiar with the facts, so we will not recount them
here.