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Gonzalez v. Berghuis

United States District Court, W.D. Michigan, Southern Division

February 6, 2017

FORTINO GONZALEZ, Petitioner,
v.
MARY BERGHUIS, Respondent.

          Hon. Robert J. Jonker

          REPORT AND RECOMMENDATION

          RAY KENT United States Magistrate Judge

         Fortino 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.

         I. Background

         Petitioner 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.

         A 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.

         Petitioner 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.

         In the 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 conviction. Id.

         Petitioner, 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).

         The 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 explained:

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.

         Petitioner 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 (2012).

         Gonzalez' 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 Law”:

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).

         Petitioner's 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.

         At trial, the jury was instructed as to both first degree murder[1] and first degree felony murder[2], 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) ...


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