United States District Court, W.D. Michigan, Southern Division
Robert J. Jonker
REPORT AND RECOMMENDATION
KENT United States Magistrate Judge
Gonzalez is a prisoner currently incarcerated at a Michigan
state correctional facility. This matter is now before the
Court on Gonzalez' petition for writ of habeas corpus
filed by his counsel pursuant to 28 U.S.C. § 2254.
lived in Chicago, Illinois. See Trial Transcript II
(docket no. 15, p. 181). On August 6, 2009, petitioner and
two other men drove to Allegan County, Michigan, where they
entered the house of Leon Villa to collect money petitioner
alleged Villa owed him. Id. at pp. 108-109.
Petitioner and the other men held Mr. Villa and another
occupant, Nora Hernandez, at gun point, and forced them to
drive to a bank to withdraw the money. Id. at pp.
113-115. Instead of driving to a bank, Mr. Villa drove to the
Secretary of State's Office and ran inside. Id.
Ms. Hernandez was released. Id.
little more than one week later, petitioner and Omar Garcia
drove from Chicago to Mr. Villa's house to get the money.
Id. at pp. 209. They left Chicago at “around
midnight” and arrived in Michigan on the morning of
August 14, 2009. Id. at pp. 209-12. After they
arrived in Michigan, petitioner retrieved a long rifle and a
9mm pistol from a hidden location about 1/2 mile from Mr.
Villa's house. Id. at pp. 210-11. When they
arrived at Mr. Villa's house, the door was locked.
Petitioner had a sledgehammer and told Garcia to “[h]it
that door” with it. Id. at pp. 214-15. Garcia
put the pistol in his waistband and hit the door twice with
the sledgehammer to get it open. Id. at pp. 214-16.
When they entered the house, Garcia took the pistol out of
his waistband. Id. at p. 216. Mr. Villa was in a
room with a shotgun pointed towards Garcia, who shot his
pistol once into the room. Id. at pp. 216-17. The
pistol jammed. Id. at pp. 216-18. At that point,
petitioner shot the rifle “[f]ive or six times.”
Id. at pp. 218-19. After petitioner was done
shooting, he told Garcia “Let's go. . . he's on
the floor.” Id. at p. 220. Mr. Villa died the
next day. Id. at p. 17-18. After an autopsy, it was
determined that Mr. Villa died of one or two gunshot wounds.
Id. at 44-45.
was charged in two separate criminal cases involving the
victim, with his proceedings consolidated for a jury trial in
the Allegan County Circuit Court. In the case arising out of
events occurring on August 6, 2009, petitioner was convicted
of armed robbery, M.C.L. § 750.529; two counts of
unlawful imprisonment, M.C.L. § 750.349b; two counts of
assault with a dangerous weapon, M.C.L. § 750.82;
assault with intent to rob while armed, M.C.L. § 750.89;
and carrying a firearm during commission of a felony, M.C.L.
§ 750.227b. People v. Gonzalez, 2011 WL 4375080
at *1 (Mich. App. Sept. 20, 2011) (docket no. 298710). The
trial court sentenced petitioner to 17-1/2 to 50 years in
prison for the armed robbery and assault with intent to rob
while armed convictions; 10 to 15 years for the unlawful
imprisonment convictions; 2-1/2 to 4 years for the assault
with a dangerous weapon convictions; and a consecutive two
year sentence for the felony-firearm conviction. Id.
case arising out of events occurring on August 14, 2009,
petitioner was convicted of first-degree murder, M.C.L.
§ 750.316; first-degree home invasion, M.C.L. §
750.110a(2); and carrying a firearm during the commission of
a felony, M.C.L. §750.227b. Id. (docket no.
298709). The trial court sentenced petitioner to life in
prison for the first-degree murder conviction and 13 to 20
years for the first-degree home invasion conviction, an a
consecutive two year sentence for the felony-firearm
through counsel, raised five issues in his direct appeal to
the Michigan Court of Appeals:
I. Whether this Court must vacate [petitioner's]
convictions because the evidence of his participation even as
an aider and abettor was legally insufficient.
II. Whether [petitioner] is entitled to resentencing where
the trial court erred in departing upward from the sentencing
guidelines without substantial and compelling reasons.
III. Whether [petitioner's] State and Federal Due Process
Rights to be sentenced based on accurate information and with
the effective assistance of counsel were denied.
IV. Whether [petitioner's] rights under the State and
Federal Constitutions to be free from unreasonable search and
seizure were denied where the State Police did not have
probable cause or a reasonable suspicion to stop the car
[petitioner] was a passenger in, and the trial court erred in
denying [petitioner's] motion to suppress.
V. Whether [petitioner's] convictions for both armed
robbery and assault with intent to rob while armed violate
the State and Federal double jeopardy clauses where under the
facts of this case, assault with intent to rob while armed is
a necessarily included lesser offense of armed robbery.
Petitioner's Appellate Brief (docket no. 22).
Michigan Court of Appeals affirmed the convictions related to
the August 6th crimes (docket no. 298710) “except for
the assault with intent to rob while armed conviction, which
we vacate.” Id. In addition, the Michigan
Court of Appeals affirmed the convictions related to the
August 14th crimes (docket no. 298709), but remanded
“for resentencing on the first-degree home invasion
conviction.” Id. As the appellate court
Here, the trial court did not articulate any reasons for [an
upward sentencing] departure, nor did the court acknowledge
that it was departing from the guidelines. Moreover, the
court did not consider the two cases against defendant to be
consolidated for sentencing. Rather, the court first
sentenced defendant for the cause number involving the August
14 crimes (Docket No. 298709), and then sentenced defendant
for the cause number involving the August 6 crimes (Docket
No. 298710). Thus, it appears from the record that the trial
court recognized the cases were separate, but mistakenly
imposed an upward departure sentence for first-degree home
invasion. The imposition of a departure sentence was error,
absent an articulation of any reason for the departure. We
therefore remand for resentencing on defendant's
first-degree home invasion conviction, or for articulation of
substantial and compelling reasons warranting an upward
sentencing departure for that conviction.
Gonzalez, 2011 WL 4375080 at *4.
raised the same five issues in his application for leave to
appeal to the Michigan Supreme Court See Application
for leave (docket no. 23). The Michigan Supreme Court denied
his application for leave to appeal on March 5, 2012.
People v. Gonzalez, 491 Mich. 854, 808 N.W.2d 783
counsel filed a habeas petition on February 15, 2013.
Petition (docket no. 1). The petition was not on the form
provided by the Court and did not conform with the
requirements of Rule 2 of the Rules Governing Section 2254
Cases in the United States District Courts that “[t]he
petition must: (1) specify all grounds for relief available
to the petitioner; (2) state the facts supporting each ground
. . .” Rather, the petition stated that “[a]s set
forth in the accompanying memorandum, Petitioner Fortino
Gonzalez remains detained unconstitutionally by Respondent in
contravention of his Fourth, Fifth, and Fourteenth Amendment
rights under the United States Constitution.” The two
issues raised appear as arguments in the “Memorandum of
I. Petitioner's Fourth Amendment right to be free of
unreasonable search and seizure was violated where his
vehicle was stopped absent reasonable suspicion or probable
cause and he was arrested.
II. Petitioner's conviction for first degree
(premeditated) murder should be vacated and the sentence of
mandatory life in prison set aside and the Court should
thereafter rule that there is no sufficient evidence of
felony murder either.
See Petition (docket no. 1, PageID.23, 26).
Habeas Issue I appears to be the Fourth Amendment claim
raised in the Michigan Court of Appeals as Issue IV. However,
petitioner's Habeas Issue II does not track with the
sufficiency of the evidence claims raised in the Michigan
Court of Appeals because: (1) the issue raised in the present
habeas case only presents an argument with respect to the
premeditation element of first degree murder, while the claim
presented to the state appellate court involved “the
evidence of [petitioner's] participation . . . as an
aider and abettor” on first degree premeditated murder,
as well as the convictions for assault with a dangerous
weapon on Hernandez, unlawful imprisonment of Villa and
Hernandez, and first-degree home invasion) (see
Gonzalez, 2011 WL 4375080 at *1-*4); and, (2) the issue
appears to interject a new claim regarding the sufficiency of
the evidence with respect to felony murder, a claim which was
not raised in the state court appeal.
trial, the jury was instructed as to both first degree
murder and first degree felony
murder, and found him guilty on both counts.
Trial Trans. VI (docket no. 19, pp. 4-5). At sentencing, the
prosecutor pointed out that “this file alleges murder
in the first degree and felony murder” and
“[i]t's my understanding that to impose a mandatory
life sentence in each of those counts violates the
provisions, principles of double jeopardy” citing
People v. Bigelow, 229 Mich.App. 218, 581 N.W.2d 744
(1998). Sent. Trans. at p. 9 (docket no. 20). See, e.g.,
Smith v. Woods, No. 2:15-cv-73, 2016 WL 5899000 at *2
(W.D. Mich. Oct. 11, 2016) ...