Petition for Writ of Certiorari — Luis Gutierrez, Petitioner v. Gary Miniard, Warden
Supreme Court briefJun 28, 2024
Ask Donna
What actually matters in this document.
Text
No.
IN THE
Supreme Court of the United States
LUIS GUTIERREZ,
Petitioner,
v.
GARY MINIARD, WARDEN,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF A PPEALS FOR THE SIXTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
DAVID A. DODGE
Counsel of Record
DODGE & DODGE, P.C.
200 Ottawa Avenue NW, Suite 401
Grand Rapids, MI 49503
(616) 459-3850
dodgepc@dodgepc.com
Counsel for Petitioner
116852
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED FOR REVIEW
Mr. Gutierrez now raises the following question for this
Court’s review:
Whether a subsequent habeas petition, containing
only claims which were unexhausted when the initial
KDEHDV SHWLWLRQ ZDV XQWLPHO\ ÀOHG ZDV VHFRQGLQWLPH
because the unexhausted claims were not decided on
their merits or were unripe or whether the constitutional
LQHIIHFWLYHQHVVRIWKHDWWRUQH\ZKRÀOHGWKHSHWLWLRQFDQ
be considered, consistent with Castro v. United States,
540 US 375 (2007), to decide whether the petition was
second-in-time, despite the language in 28 USC 2254(i).
ii
LIST OF PARTIES
The caption to this petition contains the only parties
to this petition for a writ of certiorari.
iii
CORPORATE DISCLOSURE
There are no corporate disclosures necessary for this
case.
iv
LIST OF PROCEEDINGS
1.
Initial Federal Habeas Proceedings
a. Gutierrez v. Stoddard, Case No. 1:14-cv-226 (W.D.
Michigan, 2014)
b. Gutierrez v. Stoddard, Case No. 14-2199 (6th Cir.
3/25/15)
2.
Subsequent Federal Habeas Proceedings
a. Gutierrez v. Miniard, Case No. 2:23-cv-12496 (E.D.
Michigan, 2023)
b. In re Gutierrez, Case No. 23-2004 (6th Cir. 4/11/24)
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED FOR REVIEW . . . . . . . . . i
LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . . . iii
LIST OF PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . iv
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . .v
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vi
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . vii
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
CITATIONS TO OPINIONS BELOW. . . . . . . . . . . . . . .3
JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . .4
CONSTITUTIONAL AND STATUTORY
PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .6
REASONS WHY THE PETITION FOR
CERTIORARI SHOULD BE GRANTED . . . . . . .12
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
vi
TABLE OF APPENDICES
Page
APPENDIX A — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED APRIL 11, 2024 . . . . . .1a
APPENDIX B — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED APRIL 11, 2024 . . . . . .6a
A PPEN DI X C — OR DER OF T H E
UNITED STATES DISTRICT COURT
F OR T H E E A S T ER N DI S T R IC T OF
M ICH IGA N, S OU T H ERN DI V ISION,
FILED NOVEMBER 7, 2023 . . . . . . . . . . . . . . . . . . .7a
vii
TABLE OF CITED AUTHORITIES
Page
Cases
Altman v. Benik,
337 F.3d 764 (7th Cir. 2001). . . . . . . . . . . . . . . . . . . . .18
Bannister v. Davis,
509 US 504 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Castro v. United States,
540 US 375 (2007). . . . . . . . . . . . . 2, 3, 4, 20, 24, 26, 27
Coleman v. Thompson,
501 US 722 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Ford v. Wainwright,
477 US 399 (1986) . . . . . . . . . . . . . . . . . . . .13, 21, 22, 23
Gutierrez v. Miniard,
Case No. 2:23-cv-12496 (E.D. Mich. 2023) . . . . . .3, 10
Gutierrez v. Miniard,
Case No. 23-2004 (6th Cir. 2024) . . . . . . . . . . . . . . . . .4
Gutierrez v. Stoddard,
Case No. 1:14-cv-226 (W.D. Mich. 2014) . . . . . . . . 7, 16
Gutierrez v. Stoddard
Case No. 14-2199 (6th Cir. 2015). . . . . . . . . . . . . . . . . .8
In re Coley,
871 F.3d 455 (6th Cir. 2017). . . . . . . . . . . . . . . . . . . . .11
viii
Cited Authorities
Page
In re Cook,
215 F.3d 606 (6th Cir. 2000) . . . . . . . . . . . . . . . . .12, 18
In re Flowers,
595 F.3d 204 (5th Cir. 2009) . . . . . . . . . . . . . . . . . . . .18
In re Hill,
81 F.4th 560 (6th Cir. 2023) . . . . . . . . . . . . . . . . . . . . .11
In re Rains,
659 F.3d 1274 (10th Cir. 2011) . . . . . . . . . . . . . . . .12, 18
Lawrence v. Florida,
549 US 327(2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Magwood v. Patterson,
561 US 320 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . .12, 14
McCleskey v. Zant,
499 US 467 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . .14, 24
McNabb v. Yates,
587 F.3d 1028 (9th Cir. 2009) . . . . . . . . . . . . . . . . . . .18
Murray v. Giarratano,
492 US 1 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Murray v. Greiner,
394 F.3d 78 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . .18
ix
Cited Authorities
Page
Pace v. DiGuglielmo,
540 US 408 (2005) . . . . . . . . . . . . . . . . . . . . . . . .8, 9, 26
Pace v. DiGuglielmo,
544 US 408 (2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Panetti v. Quarterman,
551 US 930 (2007). . . . . . . . . . . . . . . . .12, 13, 14, 21, 23
Pennsylvania v. Finley,
481 US 551 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
People of the State of Michigan v. Gutierrez,
Kent County Circuit Court Case No. 09-1077-FC . . .6, 10
People of the State of Michigan v. Gutierrez
2011 WL 3299853 (Court of Appeals 2011) . . . . . . . . .6
People of the State of Michigan v. Gutierrez
Case No. 355479 (Court of Appeals 3/2/21
and 4/2/21) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 10
People of the State of Michigan v. Gutierrez,
509 Mich 991, 974 NW2d 224 (2022) . . . . . . . . . . . . .10
People of the State of Michigan v. Gutierrez,
979 N.W.2d 824 (2022) . . . . . . . . . . . . . . . . . . . . . . . . .10
Post v. Bradshaw,
422 F.3d 419 (6th Cir. 2005) . . . . . . . . . . . . . . . . . . . .25
x
Cited Authorities
Page
Rhines v. Weber,
544 US 269 (2005) . . . . . . . . . . . . . . . . . . . . .1, 8, 15, 22
Rose v. Lundy,
455 US 509 (1982). . . . . . . . . . . . . . . . . 2, 15, 22, 23, 24
Slack v. McDaniel,
529 US 473 (2000). . . . . . . . . . . . . . . . . . . . . . . . 9, 13, 16
Steed v. Head,
219 F.3d 1298 (11th Cir. 2000). . . . . . . . . . . . . . . .13, 25
Stewart v. Martinez-Villareal,
523 US 637 (1998) . . . . . . . . . . . . . . . . . . . . . . .13, 21, 23
Stutson v. United States,
516 US 193 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
Taliani v. Chrans,
189 F.3d 597 (7th Cir. 1999). . . . . . . . . . . . . . . . . . . . .26
Villaneuva v. United States,
346 F.3d 55 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . .18
Constitution
U.S. Constitution, Sixth Amendment . . . . . . . . . . . . . .5, 6
xi
Cited Authorities
Page
Statutes
28 USC 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
28 USC 2106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
28 USC 2244(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
28 USC 2244(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
28 USC 2244(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
28 USC 2244(b)(3)(E) . . . . . . . . . . . . . . . . . . . . . . . . . .3, 26
28 USC 2244(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
28 USC 2244(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
28 USC 2254(i) . . . . . . . . . . . . . . . . . . . . . . .2, 3, 5, 7, 25, 27
Michigan Court Rule
MCR 6.502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17
1
Luis Alberto Gutierrez respectfully petitions for a
writ of certiorari to review the judgment of the United
States Court of Appeals for the Sixth Circuit.
INTRODUCTION
The issue in the certiorari petition is whether the
6L[WK &LUFXLW &RXUW RI $SSHDOV FRUUHFWO\ FODVVLÀHG 0U
Gutierrez’s subsequent petition as second or successive
versus second-in-time.
Mr. Gutierrez was represented by an attorney when
WKHLQLWLDOSHWLWLRQZDVÀOHG7KDWDWWRUQH\UHFRJQL]HGWKDW
WKHUHZHUHH[KDXVWHGDQGXQH[KDXVWHGLVVXHV6KHÀOHG
a stay motion and, pursuant to Rhines v. Weber, 544 US
269 (2005), she asked the district court to stay the initial
petition so that she could return to state court, exhaust
the unexhausted issues, and then return to federal court.
The problem with her strategy was that the petition
LWVHOI ZDV XQWLPHO\ ,W ZDV ÀOHG PRUH WKDQ ÀYH PRQWKV
late. The attorney knew that the petition was untimely
EXWÀOHGWKHSHWLWLRQDQ\ZD\6KHDUJXHGWKDWHTXLWDEOH
tolling should save the late petition. However, as the
district court held, equitable tolling was not available in
large part because there was no showing of diligence.
For these reasons, the initial petition was denied as
being untimely, and the stay motion was denied as moot.
Mr. Gutierrez, now represented by undersigned
counsel, litigated the unexhausted claims in state court
and exhausted those claims. The subsequent petition,
which is the subject of this certiorari petition, was based
2
solely on the now-exhausted claims. Nevertheless, both
the district court and the Sixth Circuit Court of Appeals
treated the subsequent petition as second or successive.
Those decisions warrant this Court’s attention for
multiple reasons. First, the Sixth Circuit considered
the unexhausted claims to have been dismissed on their
merits even though the federal court did not and could not
(because of Rose v. Lundy, 455 US 509 (1982)) consider
them on their merits. This decision meant that Mr.
Guiterrez was denied any sort of federal review of those
unexhausted claims.
Second, the unexhausted claims were not ripe for
decision because of Rose. They would only become ripe
DIWHU WKH VWDWH FRXUWV ZHUH JLYHQ ÀUVW RSSRUWXQLW\ WR
decide them. Despite this fact, the Sixth Circuit concluded
that the unexhausted nature of the claims was irrelevant
because denying a habeas petition as untimely was a
decision on the merits even as to unexhausted claims. This
decision is contrary to decisions of this Court that have
made exceptions for unripe claims when deciding whether
a petition is second-in-time or second or successive.
Third, in Castro v. United States, 540 US 375 (2007),
this Court concluded that it had the authority to consider
whether a petition was second-in-time despite a statute
which stated that decisions to not authorize a subsequent
petition were not appealable. 28 USC 2244(E). This Court
reasoned that a second-in-time ruling was not about
authorization and was thus not barred by the statute.
Similarly, 28 USC 2254(i) states that the ineffectiveness
of counsel is not grounds for relief under section 2254.
3
In the instant case, prior counsel was clearly ineffective
IRUÀOLQJDSHWLWLRQWKDWVKHNQHZZDVXQWLPHO\ZKHQVKH
ÀOHGLW0U*XWLHUUH]KDVEHHQSUHMXGLFHGWRGDWHEHFDXVH
his subsequent petition has been considered second or
successive. Mr. Gutierrez is respectfully asking this
Court to conclude that, consistent with Castro, ineffective
lawyering can be considered when deciding whether a
petition was second-in-time or second or successive despite
section 2254(i).
Fourth, as an alternative, this Court could invoke its
GVR procedure to grant the petition, vacate the lower
court decisions, and to remand for further consideration
as to why this particular petition is second-in-time.
In sum, this Court is being respectfully asked to grant
certiorari so that these important issues can be considered
or alternatively to employ its GVR procedure to remand
for further consideration of the pertinent matters raised
by this certiorari petition.
CITATIONS TO OPINIONS BELOW
The United States District Court for the Eastern
District of Michigan transferred Mr. Gutierrez’s case to
the Sixth Circuit Court of Appeals pursuant to 28 USC
2244(b)(3). Gutierrez v. Miniard, Case No. 2:23-cv-12496
(E. D. Michigan November 7, 2023). This Order is found
at App. 7a-10a.
The Sixth Circuit Court of Appeals determined that
Mr. Gutierrez’s petition was second or successive as
opposed to second-in-time and declined to conclude that
its authorization was
4
not required. Gutierrez v. Miniard, Case No. 23-2004
(6th Cir. April 11, 2024). This Order is found at App. 1a-5a.
JURISDICTIONAL STATEMENT
The United States Court of Appeals for the Sixth
Circuit decided that the Petition was second or successive
and not second-in time. This Court has jurisdiction to
review the Court of Appeals judgment issued below
pursuant to 28 USC 1254(1) and Castro v. United States,
540 US 375, 380-381 (2007).
CONSTITUTIONAL AND STATUTORY
PROVISIONS
28 USC 2244(b)(1) states:
A claim presented in a second or successive
habeas corpus application under section 2254
that was presented in a prior application shall
be dismissed.
28 USC 2244(b)(2) states in relevant part:
A claim presented in a second or successive
habeas corpus application under section 2254
that was not presented in a prior application
shall be dismissed unless...the factual predicate
for the claim could not have been discovered
previously through the exercise of due diligence;
and the facts underlying the claim, if proven and
viewed in light of the evidence as a whole, would
EHVXIÀFLHQWWRHVWDEOLVKE\FOHDUDQGFRQYLQFLQJ
evidence that, but for the constitutional error,
5
QRUHDVRQDEOHIDFWÀQGHUZRXOGKDYHIRXQGWKH
applicant guilty of the underlying offense.
28 USC 2244(d)(2) states:
The time dur ing which a properly f iled
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be
counted toward any period of limitation under
this section.
28 USC 2254(i) states:
The ineffectiveness or incompetence of counsel
during Federal or State collateral postconviction proceedings shall not be a ground
for relief in a proceeding arising under section
2254.
28 USC 2106 states:
The Supreme Court or any other court of
appellate jurisdiction may affirm, modify,
vacate, set aside or reverse any judgment or
decree, or order of a court lawfully brought
before it for review, and may remand the
cause and direct the entry of such appropriate
judgment, decree, or order, or require such
further proceedings to be had as may be just
under the circumstances.
The United States Constitution, Sixth Amendment,
states in pertinent part:
6
In a criminal prosecution, the accused shall
enjoy the right to have the Assistance of
Counsel for his defense.
STATEMENT OF THE CASE
In 2009, Mr. Gutierrez was convicted by a jury for
Criminal Sexual Conduct in the 1st Degree (person under
the age of 13). He was sentenced to 25-40 years in prison
on November 4, 2009. People of the State of Michigan v.
Gutierrez, Kent County Circuit Court Case No. 09-1077FC.
There were no corroborative witnesses who could
FRQÀUPWKDWWKHDOOHJHGVH[XDODVVDXOWDFWXDOO\KDSSHQHG
As a result, the complainant’s allegations were the only
evidence against Mr. Gutierrez. Her claim that the
GHIHQGDQW KDG SHQHWUDWHG KHU DQDOO\ ZLWK KLV ÀQJHUV
became the basis for the conviction. His conviction was
FRQÀUPHGRQGLUHFWDSSHDOPeople of the State of Michigan
v. Gutierrez, 2011 WL 3299853 (2011).
Mr. Gutierrez’s Application for Leave to Appeal to the
Michigan Supreme Court was denied. People of the State
of Michigan v. Gutierrez, 491 Mich 892, 810 NW2d 263
(2012). A Motion for Reconsideration was denied on June
25, 2012. People of the State of Michigan v, Gutierrez, 491
Mich 947, 815 NW2d 484 (2012).
Mr. Gutierrez did not seek review from this Court at
that time.
2Q-XO\0U*XWLHUUH]ÀOHGD0RWLRQIRU1HZ
Trial in the Kent County Circuit Court. People of the State
7
of Michigan v. Gutierrez, Case No. 09-1077-FC. That
Motion was denied on October 3, 2013 as being untimely
ÀOHG Id.
On March 7, 2014, represented by a different attorney,
0U*XWLHUUH]ÀOHGDKDEHDVFRUSXVDFWLRQSXUVXDQWWR
USC 2254 in the Western District of Michigan. Gutierrez
v. Stoddard, Case No. 1:14-cv-226. The attorney admitted
WKDW WKH SHWLWLRQ ZDV QRW WLPHO\ ÀOHG EXW DUJXHG WKDW
equitable tolling applied. R., 1, Page ID 2. The attorney
referred to a Motion for a New Trial which Mr. Gutierrez
KDGÀOHGZKLFKKDGEHHQGHQLHGDVLPSURSHUO\ÀOHG3DJH
ID 3. The attorney stated that “[h]ad the trial court issued
its ruling in a more timely manner then Mr. Gutierrez
would have been left with nearly three months to seek
relief in federal court.” Page ID 3. Under the heading of
´5HOLHI5HTXHVWHGµWKHSOHDGLQJVWDWHG´DFFHSWWKHÀOLQJ
pursuant to the doctrine of Equitable Tolling.” Page ID 7.
7KH ÀIWK DUJXPHQW LQ WKH EULHI DFFRPSDQ\LQJ WKH
habeas petition was entitled “Although the instant petition
is untimely, Mr. Gutierrez is entitled to file and this
Honorable Court should consider it under the doctrine
of equitable tolling.” Page ID 64. In support of equitable
tolling, the pleading referred to the Motion for New Trial
and stated that “[u]nfortunately his motion was untimely
in the trial court and the trial court waited exactly three
months to issue an order informing him of same.” Page
ID 64. The pleading went on to state that “[b]y the time
KHUHFHLYHGWKHRUGHUKLVWLPHWRÀOHDSHWLWLRQKDG
expired. Had the trial court diligently reviewed the
pleadings and issued its order, Mr. Gutierrez would have
KDGVXIÀFLHQWWLPHWRÀOHDWLPHO\SHWLWLRQµ3DJH,'
8
$ PRWLRQ WR VWD\ ZDV DOVR ÀOHG 5 3DJH ,'
111-125. The stay motion asked for the stay so that Mr.
Gutierrez could return to the state court and exhaust
constitutional claims about the ineffectiveness of counsel
and then return to federal court. Id. The pleadings stated
that “counsel has advised Mr. Gutierrez to pursue these
claims in state court and eventually amend hi habeas
petition with the new ineffective assistance of counsel
claims.” Id. At Page ID 124. Rhines v. Weber, 544 US 269
(2005) was cited for the proposition that “he must exhaust
the new claims in state court while seeking a stay in the
instant federal case...” Id. Counsel also stated that “Mr.
Gutierrez concurs with counsel’s advice.” Id.
T he Mag ist rat e Judge issued a Repor t a nd
Recommendation recommending that the petition be
denied because it was time barred. Id. R., 4, Page ID 127134. The Magistrate Judge concluded that the statutory
limitations period plus 90 days had expired on September
23, 2012, citing Lawrence v. Florida, 549 US 327, 33233 (2007). Id3DJH,'7KH3HWLWLRQKDGEHHQÀOHG
PRUH WKDQ ÀYH PRQWKV DIWHU WKH OLPLWDWLRQV SHULRG KDG
expired. Id.
The Magistrate Judge also concluded that Mr.
*XWLHUUH] ZDV QRW HQWLWOHG WR WKH EHQHÀW RI HTXLWDEOH
tolling. Id., Page ID 131-133. The new trial motion did
not toll the statutory limitations period because it had
QRWEHHQSURSHUO\ÀOHGLHWKHVWDWHWULDOMXGJHGHQLHG
WKHPRWLRQDVXQWLPHO\ÀOHGFLWLQJPace v DiGuglielmo,
540 US 408 (2005). Id.
The Magistrate Judge further opined that Mr.
Gutierrez had not been diligent because the state new
9
trial motion did not toll the federal limitation and because
WKHKDEHDVSHWLWLRQKDGQRWEHHQÀOHGIRUPRUHWKDQÀYH
months after the new trial motion had been denied. Id.
The Magistrate Judge also concluded that there was
no evidence presented that Mr. Gutierrez was actually
innocent. Page ID 133.
The stay motion was denied as being moot. Page ID
133.
Mr. Gutierrez filed objections to the Magistrate
Judge’s ruling, but the District Judge approved the
Magistrate Judge’s Report and Recommendation for the
reasons articulated by the Magistrate Judge. R., 6, Page
,' $ &HUWLÀFDWH RI $SSHDODELOLW\ ZDV GHQLHG
Page ID 143.
0U *XWLHUUH] ÀOHG DQ DSSOLFDWLRQ IRU D &HUWLÀFDWH
of Appealability with the Sixth Circuit. Gutierrez v.
Stoddard, Case No. 14-2199. On March 25, 2015, the Sixth
&LUFXLWGHFOLQHGWRJUDQWWKH&HUWLÀFDWHId., pp. 1-3. The
Court stated that “because reasonable jurists could not
debate the district court’s procedural ruling, Gutierrez is
not entitled to a COA even if his underlying constitutional
claims have arguable merit. See, Slack, 529 US at 584.”
Represented by undersigned counsel, Mr. Gutierrez
ÀOHGDVWDWHSRVWFRQYLFWLRQPRWLRQSXUVXDQWWR0LFKLJDQ
Court Rules 6.500, et. seq. This Motion was filed in
accordance with state court procedure, i.e., there was no
procedural default.
10
The post-conviction motion asserted that petitioner’s
trial and appellate counsels were ineffective because,
among other things, they did not investigate and locate
critical trial witnesses, including a witness who could
have provided a motive for false accusations and an expert
witness that would have rebutted the prosecution’s expert
and provided the jury with reasons why a child would
falsely accuse him. These claims were unexhausted when
WKHÀUVWKDEHDVSHWLWLRQKDGEHHQÀOHGPeople of the State
of Michigan v. Gutierrez, Case No. 09-1077, Kent County
Circuit Court. The Motion was denied without a hearing
on March 31, 2020 and reconsideration was denied on
June 24, 2020. Id.
Mr. Gutierrez timely appealed to the Michigan Court
of Appeals which denied relief on March 2, 2021 by a 2-1
vote. The dissenting jurist would have remanded for a
hearing before making a decision. People of the State of
Michigan v. Gutierrez, Case No. 355749. A Motion for
Reconsideration was denied on April 12, 2021, by the
same 2-1 vote. Id.
Mr. Gutierrez appealed to the Michigan Supreme
Court which on June 2, 2022 declined to review the case.
People of the State of Michigan v. Gutierrez, 509 Mich 991,
974 NW2d 224 (2022). A Motion for Reconsideration was
denied on October 4, 2022. People of the State of Michigan
v. Gutierrez, 979 NW2d 824 (2022).
2Q2FWREHU0U*XWLHUUH]ÀOHGDVXEVHTXHQW
habeas petition in the Eastern District of Michigan (the
GLVWULFWRIKLVFRQÀQHPHQW Gutierrez v. Miniard, Case
No. 2:23-12496, R., 1, Page ID 1-10. The petition alleged
ineffective assistance of trial and appellate counsel.
11
These were the same issues which had been presented in
the state post-conviction proceedings. These previously
unexhausted issues were exhausted by the 2020-2022
state court proceedings.
On November 7, 2023, the district court treated the
petition as a second or successive petition and transferred
the case to the court of appeals for authorization. App.
7a-10a.
On April 11, 2024, a panel of the Sixth Circuit Court
of Appeals entered an Order denying authorization to
proceed. App. 1a-6a. The Court acknowledged that Mr.
Gutierrez was arguing that his petition was second-in-time
rather than second or successive and that not all petitions
ÀOHGVHFRQGLQWLPHDUHVHFRQGRUVXFFHVVLYH$SSDD
The panel cited two Sixth Circuit cases for a threepart test as to when a petition is not second-in time: “1)
the second petition challenges a new state-court judgment;
(2) the proposed claim would have been unripe at the
time of the original petition; or (3) the proposed claim
was not decided on the merits because it was dismissed
as unexhausted,” citing In re Coley, 871 F.3d 455 (6th Cir
2017); In re Hill, 81 F.4th 560 (6th Cir. 2023)(en banc). App.
2a-3a.
The panel concluded that Mr. Gutierrez did not satisfy
any of these three requirements: 1) the petition did not
challenge a new judgment; 2) his claims were ripe because
the attorney’s failures “had already occurred”; 3) the fact
that his claims were unexhausted when the initial 2254
SHWLWLRQZDVÀOHG´LVUHOHYDQWEHFDXVHWKDWSHWLWLRQZDV
denied as untimely.” App. 3a.
12
The panel cited In re Cook, 215 F.3d 606, 608 (6th Cir.
2000) and In re Rains, 659 F.3d 1274, 1275 (10 th Cir. 2011)
for the proposition that “[t]he dismissal of a petition as
untimely is a decision ‘on the merits.’”. App. 3a.
The panel also pointed out that the district court
denied as moot the motion to stay because Mr. Gutierrez’s
original petition was untimely, i.e., the initial petition was
not dismissed because it contained both exhausted and
unexhausted claims. App. 3a.
The balance of the opinion focused on whether a
second or successive petition could justify relief. App 4a5a. The panel concluded that it did not. App. 5a
REASONS WHY THE PETITION FOR
CERTIORARI SHOULD BE GRANTED
Second-in-Time Versus Second or Successive. Mr.
Gutierrez argued that his petition was second-in-time as
opposed to being second or successive. The Sixth Circuit
disagreed, and it is that disagreement that is the basis for
Mr. Gutierrez’s request for this Court’s review.
86& E OLPLWVWKHDELOLW\RISHWLWLRQHUVWRÀOH
VHFRQGRUVXFFHVVLYHSHWLWLRQV7KHVWDWXWHGRHVQRWGHÀQH
the phrase “second or successive” and thus the meaning
of the phrase has been the subject of much litigation.
This Court has made it clear that a petition is not
VHFRQGRUVXFFHVVLYHMXVWEHFDXVHLWZDV´ÀOHGVHFRQGRU
successively in time.” E.g., Magwood v. Patterson, 561 U.S.
320 (2010); Panetti v. Quarterman, 551 U.S. 930 (2007).
13
This Court has “declined to interpret ‘second or
successive’ as referring to all section 2254 applications
ÀOHGVHFRQGLQWLPHHYHQZKHQWKHODWHUÀOLQJVDGGUHVV
a state-court judgment already challenged in a prior
section 2254 application.” Panetti, 551 US at 944; Slack
v. McDaniel, 529 U.S. 473, 486-487 (2000); Stewart v.
Martinez-Villareal, 523 U.S. 637, 645 (1998).
Ripeness has been considered critical in deciding
whether a petition is second or successive or second-intime. For example, in Panetti, the defendant who had been
VHQWHQFHGWRGHDWKGLGQRWUDLVHLQKLVÀUVWDSSOLFDWLRQD
competency claim based on Ford v. Wainwright, 477 US
399 (1986). Competency is measured at the time of the
scheduled execution and an execution date had not been
VHWZKHQ3DQHWWLÀOHGKLVÀUVWKDEHDVSHWLWLRQ7KLV&RXUW
concluded that the second petition raising a Ford claim
was second-in-time because the claim was not ripe at the
WLPHRIWKHÀUVWKDEHDVSHWLWLRQ,QMartinez-Villareal, the
petitioner had raised a Ford claim in his initial petition but
the Ford claim was dismissed as being premature. This
Court concluded that his subsequent petition was secondin-time and thus not subject to the heightened standards
of a second or successive petition.
In Bannister v. Davis, 590 U.S. 504 (2020), this
Court stated that it has “looked for guidance in two main
places” when deciding the second-in-time versus second or
VXFFHVVLYHLVVXH7KHÀUVWLVZKHWKHUWKHKDEHDVSHWLWLRQ
at issue “constituted an abuse of writ, as that concept
is explained” in cases that predated the AEDPA. If the
petition is an abuse of the writ, then it is likely second or
successive, but if not, then it is likely second-in-time.
14
The second has been to look at the reasons behind
the AEDPA including “conser(ving) judicial resources,
reduc(ing) piecemeal litigation and streamlin(ing) federal
habeas proceedings.” Panetti, 551 U.S. at 946.
Mr. Gutierrez’s subsequent petition was not an
abuse of the writ. The abuse of writ was a legal doctrine
which federal courts used to refuse to examine a claim
SUHVHQWHG IRU WKH ÀUVW WLPH LQ D VHFRQGRUVXEVHTXHQW
petition. E.g., McCleskey v. Zant, 499 US 467 (1991). The
Court should look at the claim and decide whether the
applicant had a full and fair opportunity to raise the claim
in the prior application. E.g., Panetti v. Quarterman, 551
US 930, 947 (2007); Magwood v. Patterson, 561 US 320, 345
(2010) (Kennedy dissent, citing Panetti). Said differently,
if the applicant had no fair opportunity to raise the claim
in the prior application, the subsequent application should
not be treated as second or successive. Id.
In Mr. Gutierrez’s case, the issues presented in the
VXEVHTXHQW SHWLWLRQ ZHUH XQH[KDXVWHG ZKHQ WKH ÀUVW
SHWLWLRQ ZDV ÀOHG +H WKXV KDG QR IDLU RSSRUWXQLW\ WR
UDLVHWKRVHFODLPVLQKLVÀUVWSHWLWLRQDQGKHUHVSHFWIXOO\
submits that his subsequent petition should be treated as
being second-in-time rather than as second or successive.
The facts upon which his second-in-time argument is
based are:
A. Mr. Gutierrez was represented by an attorney for
purposes of the initial habeas petition.
%%HIRUHÀOLQJWKHLQLWLDOSHWLWLRQWKHDWWRUQH\NQHZ
WKDWWKHWLPHIRUÀOLQJKDGDOUHDG\SDVVHGLHWKDWDQ\
15
petition based on the prior proceedings would be subject
to being dismissed for being untimely.
&%HIRUHÀOLQJWKHSHWLWLRQWKHDWWRUQH\DOVRNQHZ
that there were a number of unexhausted claims to be
made and that this Court had previously held that a
federal district court must dismiss a state habeas petition
containing both exhausted and unexhausted claims. Rose
v. Lundy, 455 U.S. 509 (1982). The attorney also knew
that this Court had approved a procedure whereby the
federal habeas petition would be stayed to give the habeas
petitioner an opportunity to return to state court, exhaust
the unexhausted claims, and the return to federal court.
Rhines v. Weber, 544 US 269 (2005).
'7KHDWWRUQH\DOVRNQHZWKDW0U*XWLHUUH]KDGÀOHG
a pro-se Motion for a New Trial in state court and that
the state court had denied the Motion as being untimely
XQGHU VWDWH ODZ 7KH DWWRUQH\ DOVR NQHZ WKDW RYHU ÀYH
months had passed between the time that the state trial
court had denied the new trial motion and the time that
WKHLQLWLDOKDEHDVSHWLWLRQZDVUHDG\WREHÀOHG
E. The attorney represented that she had discussed
ZLWK0U*XWLHUUH]WKHRSWLRQRIÀOLQJD0RWLRQWR6WD\VR
that Mr. Gutierrez could return to state court to exhaust
his remedies and that Mr. Gutierrez had agreed with that
strategy.
F. There is nothing in the record that indicates that the
attorney discussed with Mr. Gutierrez that if the courts
rejected his admittedly untimely initial habeas petition,
that rejection could affect his ability to seek any federal
review of his unexhausted issues.
16
G. As described supra, the attorney admitted that she
NQHZWKDWWKHLQLWLDOSHWLWLRQZDVEHLQJÀOHGRXWRIWLPH
The attorney tried to get around that problem by arguing
that Mr. Gutierrez was entitled to equitable tolling. The
only grounds that the attorney presented in support
of equitable tolling was blaming the state court for the
ODWHÀOLQJLHWKDWWKHVWDWHFRXUWKDGWDNHQWRRORQJWR
decide the new trial motion and had the state court moved
SURPSWO\DWLPHO\SHWLWLRQFRXOGKDYHEHHQÀOHG
As pointed out by the district court, this equitable
tolling argument was a doomed argument because in Pace
v. DiGuglielmo, 544 U.S. 408 (2008) this Court held that
DQXQWLPHO\ÀOHGDSSOLFDWLRQIRUSRVWFRQYLFWLRQUHOLHIZDV
QRWSURSHUO\ÀOHG&RQVLVWHGZLWKPace, the Magistrate
Judge opined that “the trial court cannot be faulted for a
three-month delay in denying a motion that was improper
XQGHUVWDWHFRXUWUXOHVµ7KHPRUHWKDQÀYHPRQWKGHOD\
EHWZHHQ WKH VWDWH FRXUW·V GHFLVLRQ DQG WKH ÀOLQJ RI WKH
habeas petition was also indicative of a lack of diligence
and therefore ineligibility for equitable tolling. Gutierrez
v. Stoddard, Case No. 1:14-cv-00226, R., 4, Page ID 5-6.
The legal issues which support the second-in-time
argument have the following components:
A . Whether a habeas petition dismissed as
untimely has been denied on the merits when there
are unexhausted claims that could still be litigated in
state court?
In Slack v. McDaniel, 529 US 473, 485-486 (2000), this
&RXUWVWDWHGWKDW´>D@KDEHDVSHWLWLRQÀOHGLQWKHGLVWULFW
court after an initial habeas petition was unadjudicated
17
on its merits and dismissed for failure to exhaust state
remedies is not a second or successive petition”. This
quotation has been the focus of numerous circuit decisions
ZKLFKKDYHDWWHPSWHGWRGHÀQH´RQLWVPHULWVµ
Mr. Gutierrez’s subsequent habeas petition was
based upon claims that had not been exhausted when
WKHLQLWLDOSHWLWLRQZDVÀOHG0U*XWLHUUH]KDGOLWLJDWHG
those previously-unexhausted claims in state court after
the initial habeas petition was denied. There was no
procedural default because state procedure allowed him to
litigate those issues despite the passage of time between
his conviction in 2009 and the commencement of the state
post-conviction proceedings in 2020. MCR 6.502.
It was thus Mr. Gutierrez’s position that his subsequent
habeas petition was second-in-time because the denial of
WKH ÀUVW SHWLWLRQ DV XQWLPHO\ GLG QRW DGMXGLFDWH WKHVH
unexhausted claims on their merits.
The Sixth Circuit disagreed and held that “[t]he
dismissal of a petition as untimely is a decision ‘on the
merits.’” App. 3a. The Sixth Circuit further reasoned
that the fact that there were unexhausted claims was
“irrelevant because the petition was denied as untimely.”
Id. The Sixth Circuit referred to the procedure for
granting a stay so that a petition containing exhausted and
unexhausted claims could be held in abeyance while those
claims are litigated in state court. App. 3a-4a. According
to the Sixth Circuit, that exception only applies “where
a federal court dismissed an earlier petition because
it contained exhausted and unexhausted claims and in
doing so never passed on the merits.” App. 3a-4a. Since
Mr. Gutierrez’s stay motion was denied as moot and the
18
petition was dismissed as untimely, the exception for
unexhausted claims not decided on the merits did not
apply to Mr. Gutierrez’s facts. Id.
A number of other circuits have held that a dismissal
RIWKHÀUVWSHWLWLRQDVWLPHEDUUHGZDVDGHFLVLRQRQWKH
merits. For example, in McNabb v. Yates, 587 F.3d 1028 (9th
Cir. 2009), the panel reasoned that “on the merits” means
that either the district court considered and rejected
the claims or that the district court determined that the
underlying claim will not be considered by a federal court.
7KHÀQDOKROGLQJZDVWKDWGLVPLVVDOIRUDWLPHEDULVD
permanent bar to federal review, i.e. a time bar cannot
be cured.
The Second Circuit also used the “permanent
bar” rationale to support the holding that dismissal on
timeliness grounds was an adjudication on the merits. E.g.,
Murray v. Greiner, 394 F.3d 78 (2d Cir. 2005); Villaneuva
v. United States, 346 F.3d 55 (2d Cir. 2003).
Other circuits have also ruled that a dismissal of the
ÀUVWSHWLWLRQDVWLPHEDUUHGLVDGHFLVLRQRQWKHPHULWV
E.g., In re Rains, 659 F.3d 1274 (10 th Cir. 2011); In re
Flowers, 595 F.3d 204 (5th Cir. 2009); Altman v. Benik,
337 F.3d 764 (7th Cir. 2001).
The Sixth Circuit so ruled in the instant case. App
1a-4a.
Another Sixth Circuit case suggests the basis for Mr.
Gutierrez’s argument. In In re Cook, 215 F.3d 606 (6th Cir.
&RRN·VÀUVWSHWLWLRQFRQWDLQHGDQXPEHURIFODLPV
that were unexhausted. The unexhausted claims could
19
not be exhausted because the state statute of limitations
had run on the relevant state remedies. The panel opined
that if the statute of limitations had not run and if the
unexhausted claims could have been exhausted, the second
petition would not be second or successive. However, since
the state statute of limitations had expired, the dismissal
RI WKH ÀUVW SHWLWLRQ ZDV D GHFLVLRQ RQ WKH PHULWV $V D
result, the second petition was second or successive rather
than second-in-time.
The difference in Mr. Gutierrez’s case is that the
state statute of limitations had not run, and Mr. Gutierrez
litigated the unexhausted claims prior to filing the
subsequent habeas petition.
In sum, Mr. Gutierrez respectfully submits that
his second petition was second-in-time for at least the
following reasons:
A. The subsequent petition was based on claims that
ZHUHXQH[KDXVWHGZKHQWKHÀUVWSHWLWLRQZDVÀOHG
B. Although the petition was dismissed because it was
untimely, it is Mr. Gutierrez’s position that the dismissal
only adjudicated the exhausted claims. There was no
ruling on the merits regarding the unexhausted claims.
C. Even though the stay procedure was not available
because the petition was untimely, that fact should not
be dispositive because the unexhausted claims could still
be litigated in state court. Moreover, the purpose of the
stay procedure is to assure that the exhausted claims can
be litigated. If the petition was dismissed, the exhausted
claims could be lost because they would thereafter be
20
untimely. The stay stops the clock and, as a result, the
exhausted claims can be litigated. In the instant case, the
exhausted claims were barred because the initial petition
was untimely. However, the unexhausted claims, which
could be timely presented to the state court, should not
be considered as being part of the barred claims.
D. For these reasons, Mr. Gutierrez contends that the
dismissal of the petition was not a decision on the merits
with respect to the unexhausted claims.
E. Since the subsequent petition only sought to
litigate the claims which were unexhausted when the
LQLWLDO SHWLWLRQ ZDV ÀOHG DQG ZKLFK ZHUH VXEVHTXHQWO\
exhausted, the second petition should have been treated
as being second-in-time.
F. If the petition is not treated as being second-intime, Mr. Gutierrez will be forever denied federal review of
the state court proceedings which litigated the previously
unexhausted claims. It is this type of outcome that has
LQÁXHQFHGWKLV&RXUWLQRWKHUFLUFXPVWDQFHVWRFRQFOXGH
WKDWDSHWLWLRQVKRXOGEHFODVVLÀHGDVVHFRQGLQWLPHE.g.,
Castro v. United States, 540 US 375 (2007); and
*7KH6L[WK&LUFXLW·VDQDO\VLVZDVÁDZHGEHFDXVH
1) the Sixth Circuit did not consider that the denial of the
stay motion as moot did not preclude Mr. Gutierrez from
litigating the unexhausted claims in state court; and 2)
the Sixth Court did not consider that even if the dismissal
of the initial petition as untimely was an adjudication of
the merits for the exhausted claims, that dismissal did
not adjudicate the unexhausted claims on their merits.
21
The instant certiorari petition presents an important
issue. Mr. Gutierrez is respectfully requesting this
Court to conclude that the issue is worthy of this Court’s
attention and to agree that certiorari should be granted.
Alternatively, Mr. Gutierrez is asking this Court to employ
its GVR procedure by granting the petition, vacating the
Sixth Circuit decision and remanding to the district court
with directions to treat the petition as second-in-time.
The unexhausted claims were not ripe for decision.
In Panetti v. Quarterman, 551 US 930 (2007), this Court
considered the ripeness doctrine in the context of whether
DVHFRQGSHWLWLRQFRXOGEHÀOHG,QPanetti, the petitioner
KDG EHHQ VHQWHQFHG WR GHDWK :KHQ KH ÀOHG KLV LQLWLDO
petition, no execution date had been set. He did not raise
any claims based on Ford v. Wainwright, 477 US 399
(1986). Ford had established procedural requirements
that had to be followed to assure that the death penalty
ZDVQRWLQÁLFWHGRQLQVDQHSULVRQHUV$IWHUKLVH[HFXWLRQ
GDWH ZDV VHW KH ÀOHG D VHFRQG SHWLWLRQ EDVHG RQ Ford.
The district court and the Fifth Circuit Court of Appeals
treated the application as second or successive. This Court
granted certiorari and reversed. This Court reasoned that
the Ford claim was not ripe until a date of execution was
set. Ford required sanity to be determined at the time he
was to be executed and that date had not been set when
WKHÀUVWSHWLWLRQZDVÀOHG6LQFHWKHVHFRQGSHWLWLRQZDV
brought when the Ford FODLP ZDV ÀUVW ULSH LW ZDV QRW
VHFRQGRUVXFFHVVLYH7KLV&RXUWGLGQRWGHÀQHWKHZRUG
“ripe,” so that the meaning of the term was left open.
In Stewart v. Martinez-Villareal, 523 US 637 (1998), a
similar issue was presented albeit with somewhat different
facts. In StewartWKHÀUVWSHWLWLRQGLGUDLVHDFord claim,
22
but the claim was dismissed as being premature. After
his execution date was set, he attempted to return to
district court to raise the Ford claim. After his claims
were denied, this Court granted certiorari and ruled that
the second effort was not second or successive. The claim
was initially not ripe, and the claim was re-presented
when it became ripe. This situation was no different from
a petitioner whose claims were dismissed because they
had not been exhausted.
7KHVSHFLÀFLVVXHLQ0U*XWLHUUH]·VFDVHLVZKHWKHU
his unexhausted claims were unripe.
Mr. Gutierrez is respectfully asking this Court to
conclude that the answer to that question is “yes”.
In Rose v. Lundy, 455 US 509 (1982), this Court
determined that a federal district court must dismiss
a habeas petition which contained both exhausted and
unexhausted claims. This Court reasoned that the
reason for this rule was to protect the state court’s role
in enforcement of federal law and prevent disruption of
state judicial procedures. This requirement for exhaustion
JLYHVWKHVWDWHFRXUWWKHÀUVWRSSRUWXQLW\WRUHYLHZDOO
claims of federal constitutional error.
The attorney representing Mr. Gutierrez for the initial
petition realized that there were unexhausted claims. She
ÀOHGDPRWLRQWRVWD\DUJXLQJWKDWXQGHURhines v. Weber,
544 US 269 (2005), she should be allowed to go back to
state court, exhaust the claims, and then return to federal
FRXUW6LQFHWKHSHWLWLRQKDGEHHQÀOHGODWHKHUPRWLRQWR
stay was denied as moot.
23
However, that left the issue of what to do with the
unexhausted claims.
Under Rose, they could not be presented to the federal
court because they were unexhausted.
Mr. Gutierrez respectfully contends that this scenario
is analogous to the Ford claims addressed by this Court
in Panetti and Stewart, i.e. the unexhausted claims were
unripe.
Mr. Gutierrez then went into state court and exhausted
those claims. The claims were now ripe for federal review.
Under the r ipeness doct r i ne, M r. Gut ier rez
respectfully submits that his subsequent petition should
have been considered second-in-time as opposed to second
or successive.
The Sixth Circuit agreed that one of the categories of
second-in-time petitions is a petition where “the proposed
claim would have been unripe at the time of the original
petition.” App. 3a.
The Sixth Circuit reasoned that “his claims were ripe
DWWKHWLPHKHÀOHGKLVRULJLQDOSHWLWLRQEHFDXVHWKHHYHQWV
giving rise to the claim...had already occurred.” App. 3a.
The Sixth Circuit also reasoned that the unexhausted
nature of the claims “is irrelevant “because the initial
petition was denied as untimely” and because “dismissal of
a petition as untimely is a decision ‘on the merits.’” App. 3a.
Mr. Gutierrez respectfully submits that this reasoning
JLYHVLQVXIÀFLHQWFRQVLGHUDWLRQWRWKHIDFWWKDWHYHQLIWKH
24
events had already occurred, they were unripe because
they were unexhausted. Under Rose, the federal court
could not consider them until they were exhausted. The
reasoning also doesn’t give consideration to the fact that
if the Sixth Circuit is right, unexhausted claims could
never be considered for federal review if the initial petition
was untimely as to exhausted claims. On the other hand,
if the petitioner exhausts those claims and then seeks
federal review of those claims only, federal review could
be obtained. In addition, the rationale for exhaustion–
JLYLQJWKHVWDWHÀUVWRSSRUWXQLW\UHJDUGLQJWKHIHGHUDO
constitutional claims–would be satisfied because the
exhaustion process would accomplish just that.
Mr. Gutierrez’s position also squares with the purpose
of the abuse of writ doctrine as set forth in McCleskey v.
Zant, 499 US 467 (1991), i.e., there is no abuse of the writ
because the previously unexhausted claims raised in the
subsequent petition could not have been presented in the
initial petition.
For these reasons, Mr. Gutierrez is respectfully
asking this Court to conclude that his subsequent petition
EDVHGRQFODLPVWKDWKDGEHHQH[KDXVWHGDIWHUWKHÀUVW
petition was decided is second-in-time and not second
or successive. Mr. Gutierrez is respectfully asking this
Court to either grant certiorari or employ the GVR
procedure and remand this case to the district court with
instructions.
The ineffectiveness of the attorney who represented
Mr. Gutierrez during his initial habeas petition should,
consistent with Castro v. United States, 540 US 375
(2003), be a reason to treat his subsequent petition as
second-in-time.
25
28 USC 2254(i) states that “[t]he ineffectiveness or
incompetence of counsel during Federal or State collateral
post-conviction proceedings shall not be a ground for relief
in a proceeding arising under section 2254.”
There are also numerous cases which are consistent
with this statute.
For example, in Pennsylvania v. Finley, 481 US
551 (1987), this Court held that prisoners have no
constitutional right to counsel when mounting collateral
attacks to a conviction. Therefore, prisoners have no right
to appointed counsel.
In Coleman v. Thompson, 501 US 722 (1991), this
Court held that convicted defendants do not have a
constitutional right to effective assistance of counsel in
the course of collateral proceedings.
In Murray v. Giarratano, 492 US 1 (1989), this Court
held that the Due Process Clause does not require states
to provide counsel for post-conviction proceedings
Circuit decisions also echo these principles.
For example, in Post v. Bradshaw, 422 F.3d 419 (6th
Cir. 2005), the Court held that the statute bars federal
relief based on a claim that a post-conviction lawyer was
ineffective. In Taliani v. Chrans, 189 F.3d 597 (7th Cir.
1999), the Court held that a lawyer’s mistake or ineffective
assistance during post-conviction proceedings is not
grounds for equitable tolling. In Steed v. Head, 219 F.3d
1298 (11th Cir. 2000), the Court held that an attorney’s
miscalculation of the limitations period is not a basis for
equitable tolling.
26
As to the instant case, Mr. Gutierrez respectfully
contends that his lawyer was ineffective. She knowingly
ÀOHG D ODWH SHWLWLRQ DQG ÀOHG D PRWLRQ WR VWD\ WKDW ZDV
moot because the petition was late. The incorrectness of
that position was supported by this Court in Pace, supra.
Mr. Gutierrez was prejudiced because he has to date lost
access to federal review of his unexhausted issues.
At the threshold, Mr. Gutierrez agrees that he cannot
argue that the ineffectiveness of his initial post-conviction
attorney is a reason to grant his habeas petition.
However, Mr. Gutierrez is respectfully asking this
Court to extend the rationale of Castro v. United States,
540 US 375 (2003) to his facts and to conclude that the
ineffectiveness of post-conviction counsel can be a reason
to decide that a subsequent petition is not second or
successive.
In Castro, the statute at issue was 28 USC 2244(b)
(3)(E). That statute states that “[t]he grant or denial of
DQDXWKRUL]DWLRQE\DFRXUWRIDSSHDOVWRÀOHDVHFRQGRU
successive application shall not be appealable and shall
not be the subject of a petition for rehearing or for a writ
of certiorari.”
In Castro, WKHGHIHQGDQWÀOHGDPRWLRQIRUDQHZWULDO
The district re-characterized his motion as a 2255 motion.
The defendant did not challenge that decision. Three years
ODWHUWKHGHIHQGDQWÀOHGDVHFRQGPRWLRQUDLVLQJDFODLPRI
ineffective assistance of counsel. His motion was dismissed
DVVHFRQGRUVXFFHVVLYHDQGWKHDSSHDOVFRXUWDIÀUPHG
This Court reversed. As pertinent to Mr. Gutierrez’s case,
this Court reasoned that: 1) the certiorari’s subject matter
27
is not the authorization but the lower courts’ decision to
not view the motion as second-in time; and 2) the Supreme
Court reads limitations on its jurisdiction narrowly.
The subject of Mr. Gutierrez’s certiorari petition is
whether his petition is second-in-time. The subject matter
of his ineffective counsel argument is related solely to
the question of whether his petition should be considered
second-in-time as opposed to second or successive. Had
his post-conviction counsel been effective, she would have
UHDOL]HGWKDWWKHUHZDVQRSRLQWWRÀOLQJDQRXWRIWLPH
petition. She would also have realized the equitable tolling
ZDVQRWDUHPHG\ZKLFKZRXOGFXUHWKHXQWLPHO\ÀOLQJ
To date, these mistakes have meant that Mr. Gutierrez’s
subsequent petition has been characterized as second or
successive.
Castro’s logic would allow this Court to interpret the
statute as only applying to situations where the postconviction lawyer’s ineffectiveness was being proposed
as a substantive reason for relief. By contrast, when the
reason is to establish that the subsequent petition should
be considered second-in-time, the statute would not forbid
this Court from considering ineffective lawyering as a
reason to classify the subsequent petition so that the
petitioner would not be denied federal review.
The Sixth Circuit did not directly consider the
lawyer’s ineffectiveness or 28 USC 2254(i). However, the
Sixth Circuit’s opinion did attribute the lawyer’s mistakes
WR0U*XWLHUUH]E\WUHDWLQJWKHÀUVWGHFLVLRQDVEHLQJRQ
the merits and as foreclosing any remedy for unexhausted
claims. App. 3a.
28
Mr. Gutierrez is respectfully asking this Court to
either grant certiorari or to employ the GVR process to
remand the case back for further consideration.
The GVR process is an alternate remedy to be
considered. In Stutson v. United States, 516 US 193
(1996), this Court referred to a number of principles
which applied when employing this procedure: 1) the fact
that this is a criminal case requires consideration of the
fact that “a litigant is subject to the continuing coercive
power of the Government in the form of imprisonment;”
2) “[T]echnicalities that caused no prejudice” should not
“preclude a remand under 28 USC 2016 (1988 ed) in the
interests of justice;” 3) “Procedural accommodations to
prisoners are a familiar aspect of our jurisprudence;”
4) “[D]ry formalism should not sterilize procedural
resources which Congress has made available to federal
courts; 5) “[A] GVR order guarantees the petitioner full
and fair consideration of his rights in light of all pertinent
considerations...;” 516 US at 196-197.
In the instant case, the fact that the claims at issue
were unexhausted and unripe when the initial petition was
ÀOHGMXVWLÀHVUHOLHIXQGHUSUHYLRXVGHFLVLRQVPDGHE\WKLV
Court. As an alternative remedy, this Court could employ
the GVR procedure and remand for consideration of those
claims that were unexhausted at the time that the initial
SHWLWLRQZDVÀOHG
29
CONCLUSION
This Court should grant the petition or, in the
alternative, grant, vacate, and remand the case for further
consideration.
Respectfully submitted,
DAVID A. DODGE
Counsel of Record
DODGE & DODGE, P.C.
200 Ottawa Avenue NW, Suite 401
Grand Rapids, MI 49503
(616) 459-3850
dodgepc@dodgepc.com
Counsel for Petitioner
APPENDIX
i
TABLE OF APPENDICES
Page
APPENDIX A — ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED APRIL 11, 2024 . . . . . .1a
APPENDIX B — JUDGMENT OF THE UNITED
STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT, FILED APRIL 11, 2024 . . . . . .6a
A PPEN DI X C — OR DER OF T H E
UNITED STATES DISTRICT COURT
F OR T H E E A S T ER N DI S T R IC T OF
M ICH IGA N, S OU T H ERN DI V ISION,
FILED NOVEMBER 7, 2023 . . . . . . . . . . . . . . . . . . .7a
1a
A THE UNITED
APPENDIX A —Appendix
ORDER OF
STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT, FILED APRIL 11, 2024
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-2004
In re: LUIS ALBERTO GUTIERREZ,
Movant.
Filed April 11, 2024
ORDER
Before: BOGGS, WHITE, and THAPAR, Circuit
Judges.
Luis Alberto Gutierrez, a pro se Michigan prisoner,
moves for an order authorizing the district court to
consider a second or successive 28 U.S.C. § 2254 petition
for a writ of habeas corpus, or, in the alternative, for a
determination that authorization is not needed. See 28
U.S.C. § 2244(b). Because Gutierrez’s proposed petition
is second or successive and fails to satisfy the necessary
requirements, we deny authorization.
,Q D MXU\ FRQYLFWHG *XWLHUUH] RI ÀUVWGHJUHH
criminal sexual conduct involving a person under the age
of 13. The trial court sentenced him to 25 to 40 years of
LPSULVRQPHQW7KH0LFKLJDQ&RXUWRI$SSHDOVDIÀUPHG
People v. Gutierrez, No. 295169, 2011 WL 3299853 (Mich.
2a
Appendix A
Ct. App. Aug. 2, 2011), and the Michigan Supreme Court
denied leave to appeal, People v. Gutierrez, 810 N.W.2d
263 (Mich. 2012). The trial court denied Gutierrez’s motion
IRUDQHZWULDODVXQWLPHO\+HWKHQÀOHGKLVLQLWLDO§ 2254
petition, but the district court determined that it was
barred by the one-year statute of limitations. Gutierrez v.
Stoddard, No. 1:14-cv-226, 2014 WL 4101509 (W.D. Mich.
Aug. 18, 2014); see 28 U.S.C. § 2244(d)(1). This court denied
DFHUWLÀFDWHRIDSSHDODELOLW\Gutierrez v. Stoddard, No.
14-2199 (6th Cir. Mar. 25, 2015).
,Q 2FWREHU *XWLHUUH] ÀOHG D VHFRQG § 2254
petition, which the district court transferred to this court.
*XWLHUUH]KDVÀOHGDFRUUHFWHGPRWLRQIRUDXWKRUL]DWLRQ
premising his claims on two affidavits: one from Dr.
.DWKHULQH-DFREVZKRFRXOGKDYHWHVWLÀHGDVDQH[SHUW
witness concerning the unreliability of child testimony and
the proper forensic protocols for interviewing a child or
could have advised trial counsel about cross-examination;
DQGRQHIURP0DUWLQ9DVTXH]ZKRFRXOGKDYHWHVWLÀHG
that the victim’s mother swore to make Gutierrez pay
after learning that he was dating another woman. He
claims that trial counsel performed ineffectively by failing
to obtain an expert witness like Jacobs and by failing to
investigate and discover Vasquez’s testimony. He also
argues that authorization is not necessary because his
second-in-time petition is not second or successive.
We begin by analyzing whether Gutierrez’s proposed
SHWLWLRQLVVHFRQGRUVXFFHVVLYH´>1@RWDOOSHWLWLRQVÀOHG
second in time are ‘second or successive’” and thus subject
to the restrictions of § 2244(b). In re Hill, 81 F.4th 560,
3a
Appendix A
568 (6th Cir. 2023) (en banc), SHWLWLRQIRUFHUWÀOHG, No.
23-6276 (Nov. 20, 2023). A second-in-time petition is not
considered second or successive when (1) the second
petition challenges a new state-court judgment; (2) the
proposed claim would have been unripe at the time of the
original petition; or (3) the proposed claim was not decided
on the merits because it was dismissed as unexhausted. Id.
at 568-69; see In re Coley, 871 F.3d 455, 457 (6th Cir. 2017).
Gutierrez’s claims do not satisfy any of these
exceptions. First, he does not challenge a new state-court
MXGJPHQW6HFRQGKLVFODLPVZHUHULSHDWWKHWLPHKHÀOHG
his original petition because the events giving rise to the
claim—counsel’s failure to investigate and present expert
testimony and testimony from Vasquez—had already
occurred. Third, whether his proposed claims were
XQH[KDXVWHGDWWKHWLPHKHÀOHGKLVLQLWLDO§ 2254 petition
is irrelevant because that petition was denied as untimely.
The dismissal of a petition as untimely is a decision “on
the merits.” In re Cook, 215 F.3d 606, 608 (6th Cir. 2000);
see also In re Rains, 659 F.3d 1274, 1275 (10th Cir. 2011)
(per curiam) (collecting cases). And the district court
denied as moot his motion for a stay to exhaust additional
claims because his petition was untimely. The exception for
unexhausted claims is meant to allow a petitioner to return
to federal court when he has had some of his § 2254 claims
dismissed as unexhausted, which is not the case here. See
Slack v. McDaniel, 529 U.S. 473, 485-87 (2000); see also
In re Coley, 871 F.3d at 457 (noting that the unexhausted
claims exception is meant to be applied “where a federal
court dismissed an earlier petition because it contained
exhausted and unexhausted claims and in doing so never
4a
Appendix A
passed on the merits”). Accordingly, Gutierrez’s petition
is second or successive and he must obtain leave.
:HPD\DXWKRUL]HWKHÀOLQJRIDVHFRQGRUVXFFHVVLYH
habeas petition only if Gutierrez makes a prima facie
showing, see 28 U.S.C. § 2244(b)(3)(C), that the petition
contains a new claim that relies on (1) “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable” or (2) new facts that could not have been
discovered earlier through the exercise of reasonable
diligence and that, “if proven and viewed in light of the
HYLGHQFH DV D ZKROH ZRXOG EH VXIÀFLHQW WR HVWDEOLVK E\
clear and convincing evidence that, but for constitutional
HUURU QR UHDVRQDEOH IDFWÀQGHU ZRXOG KDYH IRXQG WKH
applicant guilty of the underlying offense,” id. § 2244(b)(2).
Gutierrez’s motion is premised solely on newly discovered
evidence.
*XWLHUUH] UHOLHV RQ WKH DIÀGDYLWV RI 'U -DFREV DQG
9DVTXH]EXWWKHLQIRUPDWLRQFRQWDLQHGLQWKHVHDIÀGDYLWV
LVQRWQHZ9DVTXH]·VDIÀGDYLWLVGDWHG2FWREHU
DQG WKXV ZDV DYDLODEOH WR *XWLHUUH] ZKHQ KH ÀOHG KLV
original 2014 petition. Gutierrez acknowledges that he
does not know why it was not included. Similarly, he does
not claim that the information provided by Dr. Jacobs
about the unreliability of child witnesses and forensicinterview protocols was unavailable either at the time
RIWULDORUZKHQKHÀOHGKLVRULJLQDOSHWLWLRQDQGWKXVLW
could have been discovered with reasonable diligence.
See 28 U.S.C. § 2244(b)(2)(B)(i). Regardless, Dr. Jacobs
possessed no personal knowledge of what occurred
5a
Appendix A
between Gutierrez and the victim, and thus her testimony,
although it might have been helpful to his case, is not
VXIÀFLHQW WR VKRZ WKDW ´QR UHDVRQDEOH IDFWÀQGHU ZRXOG
have found [Gutierrez] guilty” based on the testimony of
the victim and other corroborating evidence. 28 U.S.C.
§ 2244(b)(2)(B)(ii); see Gutierrez, 2011 WL 3299853, at *4
(summarizing the evidence).
For these reasons, we DENY Gutierrez motion for an
order authorizing the district court to consider a second
or successive § 2254 petition for a writ of habeas corpus.
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Kelly L. Stephens, Clerk
6a
Appendix B OF THE UNITED
APPENDIX B — JUDGMENT
STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT, FILED APRIL 11, 2024
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 23-2004
In re: LUIS ALBERTO GUTIERREZ,
Movant.
Filed April 11, 2024
JUDGMENT
Before: BOGGS, WHITE, and THAPAR, Circuit
Judges.
THIS MATTER came before the court upon the
motion by Luis Alberto Gutierrez to authorize the district
court to consider a second or successive 28 U.S.C. § 2254
petition for a writ of habeas corpus.
UPON FULL REVIEW of the record and any
submissions by the parties,
IT IS ORDERED that the motion for authorization
is DENIED.
ENTERED BY ORDER OF THE COURT
/s/ Kelly L. Stephens
Kelly L. Stephens, Clerk
7a
C THE UNITED
APPENDIX C —Appendix
ORDER OF
STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF MICHIGAN, SOUTHERN DIVISION,
FILED NOVEMBER 7, 2023
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Civil No. 2:23-cv-12496
LUIS GUTIERREZ,
Petitioner,
GARY MINIARD,
Respondent.
Honorable Sean F. Cox
United States District Judge
ORDER TRANSFERRING CASE TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Before the Court is Michigan prisoner Luis Gutierrez’s
second or successive petition for a writ of habeas corpus
under 28 U.S.C. § 2254 challenging his state-court
FRQYLFWLRQIRUÀUVWGHJUHHFULPLQDOVH[XDOFRQGXFW SHUVRQ
XQGHU \HDUV ROG 0LFK &RPS /DZV E
D 3HWLWLRQHU UHTXLUHV DXWKRUL]DWLRQ IURP WKH FRXUW RI
DSSHDOVEHIRUHÀOLQJDVXFFHVVLYHKDEHDVSHWLWLRQSee 28
86& E 7KHFDVHZLOOWKHUHIRUHEHWUDQVIHUUHG
8a
Appendix C
to the Sixth Circuit. See In re Sims, )G WK
Cir. 1997).
BACKGROUND
3HWLWLRQHUZKRLVUHSUHVHQWHGE\FRXQVHOLQWKLVDFWLRQ
ZDVFRQYLFWHGLQWKH.HQW&RXQW\&LUFXLW&RXUWRIÀUVW
GHJUHH FULPLQDO VH[XDO FRQGXFW 2Q 1RYHPEHU
WKHWULDOFRXUWVHQWHQFHG3HWLWLRQHUDVDIRXUWKKDELWXDO
RIIHQGHU0LFK&RPS/DZV WRLPSULVRQPHQWRI
WR\HDUV7KH0LFKLJDQ&RXUWRI$SSHDOVDIÀUPHG
3HWLWLRQHU·VFRQYLFWLRQLQDSHUFXULDPRSLQLRQLVVXHGRQ
$XJXVWPeople v. Gutierrez, 1R :/
DW 0LFK&W$SS$XJ 7KH0LFKLJDQ
6XSUHPH&RXUWVXPPDULO\GHQLHG3HWLWLRQHU·VDSSOLFDWLRQ
IRUOHDYHWRDSSHDORQ$SULOPeople v. Gutierrez,
0LFK 1:G 3HWLWLRQHUPRYHG
for reconsideration of that decision, which was denied on
-XQH People v. Gutierrez, 491 Mich·. 947, 815
1:G
2Q-XO\3HWLWLRQHUÀOHGDPRWLRQIRUQHZWULDO
LQWKH.HQW&RXQW\&LUFXLW&RXUW2Q2FWREHUWKH
WULDOFRXUWGHQLHGWKHPRWLRQDVXQWLPHO\(See .HQW
&RXQW\ &LUFXLW &RXUW 2UGHU GRFNHW ([ & 3DJH
,' 2Q 0DUFK 3HWLWLRQHU ÀOHG D KDEHDV
SHWLWLRQLQWKH:HVWHUQ'LVWULFWRI0LFKLJDQFKDOOHQJLQJ
his convictions on the basis that the trial court failed
WR FRPSO\ ZLWK SURSHU MXU\ VHOHFWLRQ SURFHGXUH ZKLFK
FUHDWHG´DUDGLFDOGHIHFWµLQWKHWULDOFRXUW·VMXULVGLFWLRQ
RYHUWKHFULPLQDOPDWWHUSee Gutierrez v. Stoddard, No.
O &9:/ :'0LFK$XJ
9a
Appendix C
7KH GLVWULFW FRXUW GLVPLVVHG WKH SHWLWLRQ RQ WKH EDVLV
WKDW LW ZDV WLPH EDUUHG XQGHU WKH RQH\HDU VWDWXWH RI
OLPLWDWLRQVId. DW 3HWLWLRQHUWKHQÀOHGDQDSSOLFDWLRQ
IRU D FHUWLÀFDWH RI DSSHDODELOLW\ ´&2$µ LQ WKH 6L[WK
&LUFXLWZKLFKZDVVXEVHTXHQWO\GHQLHG
2Q -DQXDU\ 3HWLWLRQHU ÀOHG D PRWLRQ IRU
UHOLHI IURP MXGJPHQW SXUVXDQW WR 0LFKLJDQ 5XOHV RI
&RXUW,QWKHPRWLRQKHUDLVHGFODLPVFRQFHUQLQJ
ineffective assistance of trial and appellate counsel. On
0DUFKWKHWULDOFRXUWGHQLHGWKHPRWLRQIRUUHOLHI
RIMXGJPHQWDQGRQ-XQHWKHWULDOFRXUWGHQLHG
3HWLWLRQHU·V PRWLRQ IRU UHFRQVLGHUDWLRQ 3HWLWLRQHU ÀOHG
an application for leave to appeal in the Michigan Court
RI $SSHDOV ZKLFK ZDV GHQLHG 7KH 0LFKLJDQ 6XSUHPH
&RXUWGHQLHG3HWLWLRQHU·VDSSOLFDWLRQIRUOHDYHWRDSSHDODV
well. People v. Gutierrez, 0LFK 1:G
UHFRQVLGHUDWLRQGHQLHG 1:G 0LFK 1RZ
EHIRUHWKH&RXUWLV3HWLWLRQHU·VKDEHDVSHWLWLRQFKDOOHQJLQJ
WKH VDPH .HQW &RXQW\ FRQYLFWLRQ IRU ÀUVWGHJUHH
FULPLQDOVH[XDOFRQGXFWIRUWKHUHDVRQVVHWIRUWKLQKLV
PRWLRQIRUUHOLHIIURPMXGJPHQW
DISCUSSION
%HFDXVH3HWLWLRQHULVFKDOOHQJLQJWKHYDOLGLW\RIWKH
VDPHFRQYLFWLRQRQGLIIHUHQWJURXQGVWKH&RXUWFRQFOXGHV
WKDW3HWLWLRQHULVDWWHPSWLQJWRÀOHDVHFRQGRUVXFFHVVLYH
habeas petition.
7KH&RXUWGRHVQRWKDYHMXULVGLFWLRQWRHQWHUWDLQD
VXFFHVVLYHKDEHDVSHWLWLRQDEVHQWDXWKRUL]DWLRQIURPWKH
D
Appendix C
court of appeals, See Franklin v. Jenkins, 839 F.3d 465,
WK&LU FLWLQJ86& E 8QGHU
WKH $QWLWHUURULVP DQG (IIHFWLYH 'HDWK 3HQDOW\ $FW RI
DQ LQGLYLGXDO VHHNLQJ WR ÀOH D VXFFHVVLYH KDEHDV
SHWLWLRQPXVWÀUVWDVNWKHDSSURSULDWHFRXUWRIDSSHDOV
IRUDQRUGHURIDXWKRUL]DWLRQWRÀOHDVXFFHVVLYHSHWLWLRQ
See 86& $ see also Felker v. Turpin,
86 :KHQDKDEHDVSHWLWLRQHUÀOHVD
successive petition for habeas corpus relief directly in the
GLVWULFWFRXUWZLWKRXWÀUVWREWDLQLQJDXWKRUL]DWLRQXQGHU
$ WKHGLVWULFWFRXUWPXVWWUDQVIHUWKHFDVHWR
the court of appeals. See Sims, )GDW 86&
3HWLWLRQHUKDVQRWREWDLQHGDSSHOODWHDXWKRUL]DWLRQ
WRÀOHDVHFRQGRUVXFFHVVLYHIHGHUDOKDEHDVSHWLWLRQDV
UHTXLUHGE\86& $ &RQVHTXHQWO\WKH
&RXUWPXVWWUDQVIHUWKLVFDVHWRWKH6L[WK&LUFXLW
CONCLUSION
The Court ORDERS the Clerk of the Court to transfer
this case to the Sixth Circuit pursuant to 28 U.S.C. § 1631
and Sims, 111 F.3d at 47.
IT IS SO ORDERED.
'DWHG 1RYHPEHU
V6HDQ)&R[
U.S. District Judge
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.