Gonzalez v. North Dakota, State of

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Garron Gonzalez, )
)
Petitioner, ) ORDER DENYING HABEAS RELIEF
)
vs. ) Case No. 1:23-cv-104
)
J. L. Jamison, Warden of FCI )
Otisville, and Drew Wrigley, Attorney )
General, State of North Dakota, )
)
Respondents. )
Before the Court is the Petition and Amended Petition (“Petition”) under 28 U.S.C.
§ 2254 for writ of habeas corpus by a person in state custody filed by Petitioner, Garron
Gonzalez.1 (Doc. Nos. 1, 7). Respondents, J. L. Jamison, Warden, and Drew Wrigley, Attorney
General (“State”), filed an answer seeking dismissal of the Petition. (Doc. No. 9). The parties
have consented to the exercise of jurisdiction by the magistrate judge. (Doc. Nos. 4, 13). The
Court requested Gonzalez to submit a response to the State’s arguments for dismissal, which he
did on April 1, 2024. (Doc. No. 15). The matter is now ripe for review.
I. BACKGROUND
A. Criminal Proceedings
Gonzalez pleaded guilty in state court to two counts of gross sexual imposition of a
juvenile female, under the age of 15, on January 13, 2004. (Doc. No. 9-6 at 3-4).
1 Because the Amended Petition contains additional information sought by the Court but
does not raise any new or additional substantive issues, the Court’s review is directed to the
Amended Petition. (Doc. No. 7).
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On August 22, 2003, at 10:30 p.m., Gonzalez saw the victim, L.G., at Wal-Mart, where
he worked.2 Id. at 5. Gonzalez knew L.G. through mutual friends. Gonzalez asked if he could
come to her house on his break, which he thought would be around midnight on August 23. Id.
Gonzalez arrived at L.G.’s home at about 12:10 a.m. on August 23, 2003, and while he was there
L.G. performed oral sex on him. Id. Before returning to work, Gonzalez said he wanted to come
back after his shift. Gonzalez did so, arriving between 6:45 and 7:00 a.m. on August 23, and
again L.G. performed oral sex on him. Id. L.G. was 14 years old at the time. At the plea hearing,
Gonzalez and his defense counsel agreed to these facts with a caveat. Id. Counsel explained to
the court that a private investigator interviewed L.G., and “[s]he basically indicated she was
angry at [Gonzalez] because he had slighted a friend of hers, and she was going to set him up,
that this was her doing.” Id. at 6. When the court began to question counsel about the alleged “set
up,” Gonzalez’s attorney responded, “he’s a big boy and he should have known better.” Id.
Gonzalez’s guilty plea was accepted by the court as freely and voluntarily given and
supported by a factual basis. Id. The maximum punishment on each count was 20 years in prison.
Pursuant to a favorable plea recommendation by the State, Gonzalez was sentenced to five years
on each count to be served concurrently with all but 130 days suspended, credit for time served
of 130 days, and five years of supervised probation. (Doc. No. 9-7 at 2, 6; Doc. No. 9-8). No
appeal was taken.
Gonzalez had trouble abiding the terms of his supervised probation and his probation was
revoked on several occasions.3 He was resentenced more harshly on each revocation. (Doc. Nos.
2 The facts are taken from the transcript of the change of plea hearing. (Doc. No. 9-6).
3 The Court notes that a primary basis for the petitions for revocation was Gonzalez’s
continued contact of a sexual nature with minor females. (See Doc. No. 9-12 at 5-7, 11-13; Doc.
No. 9-17 at 5-8; Doc. No. 9-24 at 8-10, 13, 15, 19-22, 24-30). Gonzalez was federally indicted
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9-9, 9-11, 9-13, 9-14, 9-16, 9-18; see also Doc. No. 9 at 2-10 (explaining the procedural
history)). On February 9, 2011, he was resentenced to 20 years on each count to be served
consecutively. (Doc. No. 9-18). The North Dakota Supreme Court affirmed the amended
sentence on appeal. North Dakota v. Gonzalez, 799 N.W.2d 402 (N.D. 2011). Gonzalez has since
challenged his sentence and conviction through multiple post-conviction relief applications and
appeals in state court, some of which have been successful.4 (See generally Doc. No. 9 at 3-10).
B. Seventh Post-Conviction Relief Application
The procedural history relevant to the Petition begins with a state post-conviction relief
application alleging newly discovered evidence filed in February 2018. (Doc. No. 7 at 3; Doc.
No. 9-99). This was Gonzalez’s seventh application for relief. (Doc. No. 9-101 at 4). In the
application, Gonzalez alleged the State failed to disclose several pieces of evidence to him
during the prosecution, including a report by K.V., a friend of L.G., alleging gross sexual
imposition, the results of L.G.’s physical examination, and the results of DNA testing. (Doc. No.
9-99 at 1-2). Gonzalez also claimed the officer testifying during his preliminary hearing gave
false testimony that the results of the DNA testing had not been received. Id. at 2. The court
summarily denied the application based on the State’s request before Gonzalez had an
and convicted of attempted sexual exploitation of minors in United States v. Gonzalez, Case No.
1:11-cr-042, Doc. No. 107 (D.N.D. May 20, 2015). He is currently in federal custody serving a
300-month sentence. Id. Gonzalez has an anticipated release date of January 11, 2039. See Fed.
Bureau of Prisons, www.bop.gov/inmateloc (last visited April 12, 2024).
4 Most recently, the North Dakota Supreme Court held Gonzalez’s amended sentence to a
harsher term was illegal based on a change in state law. North Dakota v. Gonzalez, 1 N.W.3d
919, 921-22 (N.D. 2024). On February 8, 2024, the district court resentenced Gonzalez to five
years concurrent on each count with credit for time served of 6 years, 6 months, and 153 days.
North Dakota v. Gonzalez, Case No. 08-03-K-02928, Index 272 (Burleigh Cnty. Feb. 8, 2024). It
appears that when Gonzalez is released from his current federal sentence, he will not have to
serve any additional time on the state sentence.
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opportunity to respond and before Gonzalez’s motion for appointment of counsel was granted.
(Doc. No. 9-101). The court relied on a state statute for misuse of process and concluded the
issues raised by Gonzalez in the seventh application could have been raised in one of his
previous requests for post-conviction relief.5 Id. at 4.
Shortly thereafter, Gonzalez was appointed counsel to represent him. (Doc. No. 102).
Gonzalez’s attorney requested the court to reconsider the summary denial, requested leave to
conduct discovery, and appealed to the North Dakota Supreme Court.6 (Doc. Nos. 9-103, 9-104,
9-105, 9-107). To the district court, Gonzalez’s attorney argued he should be allowed to present
the newly discovered DNA analysis because the results were not available at the time of the
preliminary hearing and were not disclosed to Gonzalez prior to his guilty plea. (Doc. No. 9-104,
¶ 8). Gonzalez’s attorney argued the DNA results would have been material to both the probable
cause determination and Gonzalez’s decision to plead guilty. (Doc. No. 9-104, ¶ 8). Counsel
asserted the newly discovered evidence, potential perjury by a state witness at the preliminary
hearing, Brady violations, and denial of due process all warranted reconsideration of the post-
conviction relief application on its merits. Id. ¶ 10.
The state court denied the motion to reconsider and the motion to conduct discovery.
(Doc. 9-109). Irrespective of the DNA analysis, the court concluded the evidence supporting the
probable cause determination was overwhelming based on the investigating detective’s
testimony. Id. ¶ 12. The detective testified L.G. had provided him a statement describing the
sexual conduct and Gonzalez had admitted he engaged in sexual activity with her to a private
5 See N.D. Cent. Code § 29-32.1-12(2).
6 The Court foregoes detailing the procedural history surrounding the simultaneous
appeal to the North Dakota Supreme Court and the request for reconsideration to the district
court because it is not necessary to the issues presented in the Petition.
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investigator. Id. ¶¶ 12, 23. Based on this testimony, the court found that the alleged newly
discovered evidence would not have impacted the finding of probable cause. Id. ¶ 28. The court
reviewed the extensive history of Gonzalez’s post-conviction relief applications and again found
that Gonzalez had prior opportunities to bring those issues forward but chose not to do so. Id.
¶¶ 14-22, 24, 29. The court concluded Gonzalez had not shown circumstances warranting setting
aside the prior order denying the seventh application. Id. ¶¶ 30, 35-36.
On appeal, Gonzalez argued the district court abused its discretion by summarily denying
his seventh application and denying the motion for reconsideration. (Doc. No. 112). The North
Dakota Supreme Court held the summary denial was erroneous, but the crux of the issue was
whether Gonzalez had been prejudiced by the error. See Gonzalez v. North Dakota, 923 N.W.2d
143, 144 (N.D. 2019). Because the district court had not addressed whether the newly discovered
evidence would have impacted Gonzalez’s decision to plead guilty, the court remanded the case
to determine whether the DNA analysis would have been material to Gonzalez’s decision. Id. at
148-49.
On remand, Gonzalez was appointed counsel, and the court held an evidentiary hearing
on January 14, 2020. (Doc. Nos. 9-115, 9-116; 9-117). Gonzalez, his former criminal defense
attorney, and a legal assistant from the prosecutor’s office testified. (Doc. No. 9-117 at 9-40;
Doc. No. 9-120, ¶¶ 20, 29). During the hearing, the State objected to categorizing the report as a
DNA analysis and clarified that the tests were preliminary biological screenings. (Doc. No. 9-
117 at 12-13). The screening report indicated “no spermatozoa observed, but epithelial cells are
present;” in other words, the tested material showed “positive results for the enzyme found in
semen, even though no sperm was present.” Id. at 13. Counsel for Gonzalez agreed to that
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clarification, and the court ruled the document was a screening document, not a DNA analysis.
Id.
The legal assistant testified to the prosecutor’s process for sending discovery to defense
counsel at the time of Gonzalez’s prosecution. (Doc. No. 9-117 at 26-27). She further explained
that if a defendant pleaded guilty prior to receiving the state lab’s full analysis of DNA testing,
the lab would be notified that the results were not needed. Id. at 27. Gonzalez’s former defense
counsel testified he had very little independent recollection of the case and his old criminal
defense files were destroyed when he left his private law practice in 2009. Id. at 30-31. He
testified that his process, without exception, was to send all discovery documents to his clients.
Id. at 31. So, whatever he received from the State’s attorney’s office would be copied and
forwarded to the client. Id. Defense counsel further recalled that Gonzalez did not dispute he had
engaged in sexual acts with L.G., only her motivation had been an issue. Id. at 32-33.
Gonzalez testified that he received the screening report sometime in 2016 in response to
an open records request he made on February 23, 2016. Id. at 15. He denied having reviewed the
report prior to changing his plea. Gonzalez testified that no-one explained to him what the report
meant for his case. Id. He asserted the report would have affected his decision because “[f]rom
what I saw it didn’t have anything to with me.” Id. at 15-16.
The court again denied Gonzalez’s seventh application. (Doc. No. 9-120). Based on the
evidence presented at the hearing, the court concluded the screening report was not newly
discovered, finding:
[T]here is nothing offered by Petitioner Gonzalez that disputes the logical
presumption that the DNA screening document, to the extent it has any relevance,
was sent to defense counsel and received and reviewed by him before Gonzalez
entered his plea of guilty.
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Id. ¶ 30. The court concluded Gonzalez was aware that evidence potentially containing DNA
evidence was collected and being tested at the state lab at the time of his plea, explaining:
The allegation is that a DNA screening document was discovered after Petitioner
Gonzalez pled guilty. The Court concludes the best evidence suggests that the
referenced document . . . was given to the defense prior to the Preliminary Hearing.
It is uncontroverted that during the Preliminary Hearing DNA samples were
discussed and that samples had been sent to the North Dakota State Laboratory.
The Court concludes that Petitioner Gonzalez was more than aware at the time
he decided to change his plea that … evidence potentially containing DNA was
collected at the alleged crime scene and sent to the State Lab for analysis. The
Court concludes that this was clearly taken into account by him and his counsel in
contemplation of a plea.
Id. ¶ 41 (emphasis added).
The court also considered that Gonzalez’s guilty plea was the result of a negotiated deal
with the prosecutor that included a favorable proposed sentencing recommendation. Id. ¶ 35.
While he faced a maximum of 40 years imprisonment on the two felonies, the court concluded
the plea offered a “good deal.” Id. ¶ 35. The court further held that Gonzalez’s alleged failure to
learn about the testing results before pleading guilty was due to his own choices and the decision
to accept the plea deal when he did, explaining:
The credible and persuasive evidence is that [P]etitioner Gonzalez was very aware
that DNA samples were collected from the crime scenes and sent to the North
Dakota State Laboratory by the time he reached the Preliminary Hearing and was
considering a change of plea based upon a proposed plea deal. The timing of the
change of plea was in the hands of Petitioner Gonzalez. If he wanted to wait for
DNA analysis (to the extent it may have influenced his decision to change his
plea) all he had to do is convey that to his attorney. But timing clearly was an
issue. A favorable plea deal was offered and accepted based upon the status of
the case at that time. Petitioner Gonzalez took a knowing and voluntary risk but
also accepted a favorable plea deal. He chose to not wait for DNA results. His
investigator’s proposed testimony that Gonzalez admitted the sexual act also clearly
influenced his decision to plead guilty.
Id. ¶ 42 (emphasis added).
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The court emphasized that regardless of the results, the overarching problem Gonzalez
faced was his own admission that sexual acts had occurred between him and L.G., a 14-year-old.
Id. ¶ 44. The court concluded “there is and was no ‘newly discovered evidence’ which would
justify [] granting the seventh post-conviction relief petition.” Id. ¶ 46. On appeal, the North
Dakota Supreme Court summarily affirmed, concluding “the decision of the district court is
supported by findings meeting the required standard of proof[.]” (Doc. No. 9-126 at 2).
C. Eighth Application for Post-Conviction Relief
Gonzalez next brought a motion requesting the state court rule on the alleged
“unaddressed issues” in his seventh application. (Doc. No. 9-127). He identified those issues as
an undisclosed police report by K.V., the results of L.G.’s physical examination, and the state’s
failure to correct allegedly false testimony during the preliminary hearing. Id. at 2-3. Gonzalez
asserted he did not have the K.V. police report until 2016. Id. at 3. He again argued the court
erred when it held the DNA screening report could have been raised in prior proceedings because
he had only received that report in 2016, too. Id. Gonzalez further argued the court erred by not
addressing the Brady and due process violations. Id. at 3. The court treated this motion as an
eighth application for post-conviction relief. (Doc. No. 9-133, ¶ 1). Counsel was appointed to
represent him, and she filed a supporting brief. (Doc. Nos. 9-129, 9-131).
The eighth application was denied on August 20, 2021. (Doc. No. 9-133, ¶¶ 9-11, 33-34).
As to K.V.’s police report, the court concluded the issue lacked merit and strongly doubted such
a report ever existed because it had not been produced during any of the prior proceedings,
explaining:
Petitioner Gonzalez attempts to feather out his prior [argument] that the State in the
underlying case had suppressed [what] he asserts is a relevant and related police
report of a GSI claiming that the victim’s sister and the victim’s friend had filed
GSI reports that Gonzalez now claims was directly related to the present case and
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were evidence of “collusion.” He points to nothing in the record. It is a wholly
undocumented claim that amounts to nothing more than assertion, that “if I say that
such a report exists enough times, it must be true, there must be a report and I did
not get it.” There is no evidentiary basis to believe such a report existed.
Id. ¶¶ 41-42 (emphasis added).
The court concluded that regardless of Gonzalez’s collusion theory, L.G.’s statement
“was well known to Gonzalez” before he pleaded guilty. Id. ¶ 43. His attorney had added the
information on the record and Gonzalez had still entered a guilty plea. Id.
The court next rejected the claim that false testimony was given by the detective at the
preliminary hearing. (Doc. No. 9-133, ¶¶ 44-46). Detective Kaiser testified “that although items
had been sent to the lab for testing and comparison to [Gonzalez], the results were not back yet
(as of the date of the Preliminary Hearing).” Id. ¶ 44. The court held “Detective Kaiser’s
testimony was not ‘false’” because the “testing and comparison had not been completed at the
time of the Preliminary Hearing.” Id. ¶ 45. The court concluded this was another manufactured
issue by Gonzalez that was not unaddressed in previous orders. Id. ¶ 46. In sum, Gonzalez’s
petition was found to have no merit and was denied.7 Id. ¶ 11.
After the eighth application was denied, Gonzalez filed a flurry of motions, including a
motion to suspend judgment, two notices of appeal, a motion for order to show cause, an
amended motion to suspend judgment, and an amended motion for order to show cause. (Doc.
7 The state court did not directly address the alleged non-disclosure of the results from
L.G.’s physical examination. The purported medical report was not provided in the state court
proceeding and it is unknown whether L.G.’s report was ever part of the State’s file. Gonzalez
attested only that he had reviewed a police report indicating L.G. had been taken for a medical
examination, but he never saw the results. (Doc. 9-128, ¶ 3). Gonzalez’s petition referenced the
medical report only in passing, and he failed to develop the record by explaining how knowledge
of L.G.’s physical examination would have impacted his decision to plead guilty. (Doc. No. 9-
130, ¶¶ 13, 15). His counsel’s brief simply stated, “the results of the physical examination . . .
would not have supported the accusations” without explaining how or why. (Doc. 9-131, ¶ 3).
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Nos. 9-135, 9-136, 9-137, 9-141, 9-143, 9-145). The theme in these motions was ineffective
assistance of counsel. Gonzalez contended that post-conviction counsel had not communicated
with him or obtained the evidence he requested she procure, had filed a brief without providing
him a copy of it, and “left him in the dark” concerning the case. (See, e.g., Doc. No. 143). The
State responded and brought its own motion to declare Gonzalez a vexatious litigant. (Doc. Nos.
9-138, 9-139, 9-142, 9-146). The state court denied Gonzalez’s motions. (Doc. Nos. 9-149, 9-
150, 9-151, 9-153.). The State’s motion was granted, and Gonzalez was declared a vexatious
litigant. (Doc. No. 9-150).
Gonzalez filed a third amended notice of appeal from the denial of his various motions.8
(Doc. No. 157). Gonzalez did not include an appeal from the district court’s Findings and Order
Denying Eighth Post Conviction Relief Petition dated August 20, 2021, in the notice. Id. On May
26, 2022, the North Dakota Supreme Court summarily affirmed, holding “the district court did
not err in denying Gonzalez’s application for post-conviction relief, titled as motions to suspend
judgment and for an order to show cause.”9 Gonzalez v. North Dakota, 974 N.W.2d 664, 665
(N.D. 2022). The court held Gonzalez’s claim of ineffective assistance of post-conviction
counsel was precluded by N.D. Cent. Code § 29-32.1-09(2) and Atkins v. State, 2021 N.D. 34,
¶ 11, 955 N.W.2d 109. Id.
Gonzalez timely filed his first § 2254 Petition on May 24, 2023. (Doc. No. 1).
8 Gonzalez’s third notice stated an appeal was being taken from the order denying the
motion to suspend judgment, the order denying the motion for order to show cause, the order
denying the amended motion to suspend judgment, the order denying the amended motion for
order to show cause, and the order declaring him a vexatious litigant. (Doc. No. 157).
9 The North Dakota Supreme Court did not address the order denying Gonzalez’s eighth
application for post-conviction. (Doc. No. 160).
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II. PETITION
Gonzalez’s habeas petition raises one ground for relief: that he was denied due process in
violation of the Fourteenth Amendment. (Doc. No. 7 at 5). In support, he asserts:
Issues raised in the application for post conviction relief [alleging] newly
discovered evidence were left unaddressed by the state courts. Particularly the state
suppression of both the results of the medical examination & related police report
by a friend of the alleged victim.
Id.
Gonzalez requests the case be remanded to the district court to fully address the
undressed issues—L.G.’s medical examination and K.V.’s police report. Id. at 14. He contends
“[a]ny future state custody would be in violation of the U.S. Constitution as I was denied due
process by the court’s failing to address the issues raised in the post conviction application.”
(Doc. No. 7-1 at 2). But Gonzalez was resentenced on February 8, 2024, and does not have any
further state time to serve once he completes his federal sentence. See supra p. 2-3, n. 3.
III. GOVERNING LAW
A. Scope of Review
Under 28 U.S.C. § 2254, a federal court may review state-court criminal proceedings to
determine whether a person is being held in custody in violation of the United States
Constitution or other federal law. When the state court has adjudicated the constitutional claim
on the merits, this court’s review is limited by 28 U.S.C. § 2254(d). The court may grant relief
only if it determines the state court’s decision is (1) directly contrary to, or an unreasonable
application of, clearly established federal law as determined by the United States Supreme Court,
or (2) based on an unreasonable determination of the facts based on the evidence presented in the
state-court proceeding. See 28 U.S.C. § 2254(d) (emphasis added); see generally Harrington v.
Richter, 562 U.S. 86, 97–100 (2011); Williams v. Taylor, 529 U.S. 362, 399–413 (2000).
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This is a highly deferential standard of review, often referred to as “AEDPA deference”
because it was enacted by the Antiterrorism and Effective Death Penalty Act of 1996. E.g.,
Pederson v. Fabian, 491 F.3d 816, 824-25 (8th Cir. 2007); see generally Renico v. Lett, 559 U.S.
766, 773 n.1 (2010). The reasons for the limited review are ones of federalism and comity that
arise because state courts have primary responsibility for ensuring compliance with federal law
in state criminal proceedings. See, e.g., Richter, 562 U.S. at 103.
“The essence of habeas corpus is an attack by a person in custody upon the legality of
that custody.” Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996) (citing Preiser v.
Rodriguez, 411 U.S. 475, 484 (1973)). Accordingly, federal habeas relief is available to a state
prisoner only on the ground that he or she is in custody in violation of a constitutional or federal
statutory right. Williams–Bey v. Trickey, 894 F.2d 314, 317 (8th Cir. 1990); 28 U.S.C.
§ 2254(a). Claims that do not reach a level of “constitutional magnitude” cannot be addressed in
a § 2254 petition. Carter v. Armontrout, 929 F.2d 1294, 1296 (8th Cir. 1991).
“Because there is no federal constitutional requirement that states provide a means of
post-conviction review of state convictions, an infirmity in a state post-conviction proceeding
does not raise a constitutional issue cognizable in a federal habeas petition.” Williams–Bey, 894
F.2d at 317. In other words, “Section 2254 only authorizes federal courts to review the
constitutionality of a state criminal conviction, not infirmities in a state post-conviction relief
proceeding.” Id. This means the court does not review whether the state court’s post-conviction
proceedings were flawed. So, to the extent that Gonzalez argues the state court denied him due
process when adjudicating his post-conviction applications (i.e., the alleged failure to fully
address the issues), such claims are not cognizable, and this court cannot provide relief on that
basis. See id.; see also Boos v. Fabian, No. 05-523, 2008 WL 398787, at *7 (D. Minn. Feb. 12,
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2008) (holding that habeas relief based on the post-conviction court's failure to address the
claims in his supplemental pro se brief was not cognizable).
B. State Court Decision Under Review
This court’s function is limited to determining whether the state court’s decision was
contrary to, or an unreasonable application of, clearly established federal law or based on an
unreasonable determination of the facts in light of the evidentiary record. 28 U.S.C. § 2254(d).
This limitation raises another issue: which state court decision is under review in Gonzalez’s
Petition? The State says Gonzalez has exhausted his state remedies, but that does not answer the
question. (Doc. No. 9 at 17).
Section 2254(b)(1) provides that a writ for habeas corpus may only be granted if the
applicant has exhausted the remedies in state court; there is no available state corrective process;
or the circumstances render the state process ineffective to protect the applicant’s rights. 28
U.S.C. § 2254(b)(1). Ordinarily, the court would review the decision of the highest state court to
rule on the issues based on the exhaustion requirement. See id.; Baldwin v. Reese, 541 U.S. 27,
29 (2004) (“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust
available state remedies, . . . thereby giving the State the ‘opportunity to pass upon and correct
alleged violations of its prisoners’ federal rights.’”). To exhaust a claim, the petitioner must
fairly present his federal claim to the appropriate state courts in the manner required by state law,
thereby “afford[ing] the state courts meaningful opportunity to consider [the] allegations of legal
error.” Vasquez v. Hillery, 474 U.S. 254, 257 (1986); Chatman v. Sayler, No. 1:20-CV-047,
2022 WL 4182248, at *14 (D.N.D. Sept. 13, 2022) (explaining that the petitioner “must give the
state courts one full opportunity to resolve any constitutional issues by invoking one complete
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round of the State's established appellate review process.”) (citing O'Sullivan v. Boerckel, 526
U.S. 838, 845 (1999).
The North Dakota Supreme Court did not address the substantive denial of Gonzalez’s
eighth post-conviction application; it only considered the motions to reconsider that were filed
afterward. Gonzalez, 974 N.W.2d at 665. Thus, Gonzalez failed to exhaust the substantive claims
raised in his eighth post-conviction application. Chatman, 2022 WL 4182248, at *14. And, thus,
Gonzalez has procedurally defaulted this claim in this court. See Coleman v. Thompson, 501
U.S. 722, 734–35, n.1 (1991) (explaining that “if the 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 requirement would now find the claims procedurally barred[,] . . . there is a
procedural default for purposes of federal habeas regardless of the decision of the last state court
to which the petitioner actually presented his claims.”).
Because the State did not argue procedural default in this context, and a petition may be
denied on the merits notwithstanding the failure to exhaust, the court will proceed.10 See 28
U.S.C. § 2254(b)(2). The court deems the Findings and Order Denying Eighth Post Conviction
Relief Petition dated August 20, 2021, as the decision under review. (Doc. No. 9-133).
C. Failure to Develop the State Record
Before reviewing the state court’s decision, another preliminary matter must be
addressed. Gonzalez has for the first time produced the much-touted police report by K.V. to this
court. (Doc. No. 15-2). The report details that K.V., a juvenile female under the age of 15,
10 To be clear, the State argued Gonzalez procedurally defaulted the “newly discovered
evidence” claim by failing to develop the factual predicate in state court, which is discussed in
Section III.C. (Doc. No. 9 at 17-19). It did not argue procedural default by failing to appeal the
denial of the eighth application to the North Dakota Supreme Court.
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alleged Gonzalez repeatedly attempted to engage her in sexual activity while he was at her house
visiting her sister. Id. at 3. The state declined to prosecute. Id. at 4. To whatever extent Gonzalez
believes this report is helpful to support his Petition, the Court will not consider it.
A habeas court’s review is limited to the state court record and AEDPA strictly limits the
court’s ability to consider new evidence that was not developed in state court proceedings. See
28 U.S.C. §§ 2254(d), (e)(2); Shoop v. Twyford, 596 U.S. 811, 819 (2022) (stating “AEDPA
also restricts the ability of a federal habeas court to develop and consider new evidence” and
§ 2254(d) is “limited to the record that was before the state court”) (internal quotations omitted).
In fact, “AEDPA’s statutory scheme is designed to strongly discourage” state prisoners from
submitting new evidence in federal court. Id. at 819-20 (emphasis added).
When a petitioner fails to develop the factual record in state court, a habeas court may
admit new evidence only if the claim relies upon a new and previously unavailable rule of
constitutional law made retroactive by the Supreme Court, or on facts that “could not have been
previously discovered through the exercise of due diligence.” 28 U.S.C. § 2254(e)(2)(A)(i), (ii).
Under either exception, the petitioner must also show that “the desired evidence would
demonstrate, by clear and convincing evidence, that no reasonable factfinder would have
convicted him of the charged crime.” Shoop, 596 U.S. at 819; 28 U.S.C. § 2254(e)(2)(B).
Expansion of the record is not appropriate under either exception. First, Gonzalez’s
Petition does not rely on a new rule of constitutional law. His claims of Brady violations and
denial of due process are not new constitutional claims. Second, the state court record amply
supports that K.V.’s report could have been obtained through the exercise of due diligence,
particularly in light of the numerous proceedings that surrounded Gonzalez’s seventh and eighth
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applications for relief. Finally, Gonzalez admitted during the state evidentiary hearing that he
had obtained the report himself sometime in 2016.
To overcome the state court’s lack of diligence finding, Gonzalez blames his post-
conviction counsel for not obtaining the information and submitting it. (Doc. No. 15 at 2-3). The
argument is immaterial. The Supreme Court has recently reiterated that “under AEDPA and our
precedents, state postconviction counsel’s ineffective assistance in developing the state-court
record is attributed to the prisoner.” Shinn v. Rodriguez, 596 U.S. 366, 382 (2022); see also
Holland v. Jackson, 542 U.S. 649 (2004) (per curiam) (holding state postconviction counsel’s
negligent failure to locate a witness to provide impeachment testimony was chargeable to the
petitioner and precludes relief unless § 2254(e)(2) is satisfied). In other words, Gonzalez’s claim
that his post-conviction counsel failed to obtain the document and file it does not allow this
Court to consider the previously unproduced K.V. report.
Additionally, the Court finds the claim of ineffective assistance of post-conviction
counsel specious. It appears that Gonzalez was in possession of K.V.’s report during the state
court proceedings. In his March 8, 2021 motion, Gonzalez represented that he obtained the
police report through an open records request in 2016. (Doc. No. 9-127 at 3). This is consistent
with his testimony at the evidentiary hearing on January 14, 2020. (Doc. No. 9-117 at 17
(explaining that while at the NDSP, he “started requesting information from these agencies. One
was the State, one was the Bismarck Police Department, the other one was the state lab, and the
other one was the Bureau of Criminal Investigation.”)). He also admitted in this Court that he
obtained the police record in that manner. (Doc. 15 at 3). Based on those representations, his
failure to develop the record and provide K.V.’s report during the state proceedings cannot be
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excused under 28 U.S.C. § 2254(e)(2). Thus, the Court will not consider the police report filed at
Document 15-2.
D. Alleged Due Process and Brady Violations
Turning now to the substance of Gonzalez’s claims for relief, he alleges the State
withheld information during his prosecution in violation of his due process rights under Brady v.
Maryland, 373 U.S. 83 (1963) and contends the state court did not fully address the issues of
K.V.’s undisclosed police report or L.G.’s medical record in the post-conviction proceedings.
(Doc. No. 7 at 5). Gonzalez asks this Court to remand the case to have the “unaddressed” issues
fully addressed by the state court. The federal district court, however, does not have remand
authority and does not exercise general appellate jurisdiction over a state court.11 Keene Corp. v.
Cass, 908 F.2d 293, 296 (8th Cir. 1990) (stating “[f]ederal courts, with the exception of the
United States Supreme Court, do not possess appellate jurisdiction over state court
proceedings.”). In a habeas corpus matter, this Court has only limited subject matter jurisdiction
under the strictures of AEDPA to determine whether Gonzalez’s state conviction violated federal
law. See generally 28 U.S.C. § 2254(a), (b), (d).
Because he is acting pro se, the Court broadly construes Gonzalez’s Petition, without
regard to his request for remand. See Miller v. Kemma, 207 F.3d 1096, 1097 (8th Cir. 2000)
(stating pro se habeas petition should be construed liberally and with a measure of tolerance). In
doing so, the Court frames the issue as whether Gonzalez’s due process rights under the
Fourteenth Amendment and Brady were violated by the State’s alleged suppression of K.V.’s
police report and L.G.’s medical report. Construing this as the issue, AEDPA directs the Court
11 Gonzalez’s request for a remand should have been presented to the North Dakota
Supreme Court in his appeal.
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“to undertake only a limited and deferential review” of the state court decision. Collier v. Norris,
485 F.3d 415, 421 (8th Cir. 2007). As such, the Court must examine: (1) whether the state court
decision denying the eighth application was contrary to or an unreasonable application of clearly
established federal law; or (2) whether the decision was based on an unreasonable determination
of the facts based on the evidentiary record in the state proceeding. See id.; 28 U.S.C. § 2254(d).
i. The State Court’s Determination Was Not Unreasonable.
The Court addresses the second inquiry first because it ties into Gonzalez’s failure to
develop the record. K.V.’s police report was not made part of the state court record, nor were the
results of L.G.’s alleged physical examination. It bears repeating that a federal habeas court is
limited to reviewing the state-court record and only rarely may consider evidence not submitted
to the state court. Shinn, 596 U.S. at 375-76, 378. Here, the state court denied Gonzalez’s eighth
application, in part, based on its conclusion that the police report was a non-existent issue. As
that court found, “[t]here is no evidentiary basis to believe such report existed.” (Doc. No. 9-133,
¶ 42). That conclusion was eminently reasonable based on the state record. Regardless that
Gonzalez has now produced K.V.’s report for the first time in this federal habeas case, the Court
will not consider it for the reasons discussed previously. See 28 U.S.C. § 2254(d)(2); Shoop, 596
U.S. at 819. The Court further notes it has discretion to deny admission of new evidence even if
the requirements of § 2254(e)(2) are satisfied, which they are not. See Shinn, 596 U.S. at 381-82
(stating “even if all of these requirements are satisfied, a federal habeas court still is not required
to . . . take any evidence” based on “principles of comity and finality that govern every federal
habeas case.”).
As to L.G.’s medical report, that too was not made part of the state court record.
Furthermore, there is no evidence the State ever obtained her medical report. (Doc. No. 9 at 17-
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18). Gonzalez believes such a report exists only because a police report referred to L.G. having
been taken to a local medical facility after the sexual activity. Gonzalez did not develop his
argument in state court beyond the conclusory statement that “the results of the physical
examination . . . would not have supported the accusations.” (Doc. 9-131, ¶ 3). He did not
explain how or why that would be so. Given that Gonzalez admitted L.G. twice performed oral
sex on him, it is difficult for this Court to fathom how the results of L.G.’s medical examination
would have any bearing on his decision to plead guilty. The Court concludes the state court’s
denial of Gonzalez post-conviction relief on this basis was not objectively unreasonable.
ii. The State Decision Was Not Contrary to Federal Law
Turning to whether the state court’s decision was contrary to or an unreasonable
application of federal law, the Court finds no such violation. A decision is contrary to federal law
if the state court “applies a rule that contradicts the governing law” set out by the Supreme Court,
or if it considers facts that are “materially indistinguishable” from a Supreme Court case and
decides differently. Brown v. Payton, 544 U.S. 133, 141 (2005).
Gonzalez deems K.V.’s police report and L.G.’s medical report exculpatory evidence that
should have been disclosed to him prior to his plea of guilty.12 “In Brady, the Supreme Court
held that ‘suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution.’” Villasana v. Wilhoit, 368 F.3d 976, 978 (8th
Cir. 2004), cert. denied, 543 U.S. 1153 (2005) (quoting Brady, 373 U.S. at 87). Materially
12 No evidence was presented in state court that the State had either K.V.’s police report
or L.G.’s medical report as part of its file in the underlying prosecution. Because the parties have
not raised whether the State had a duty to obtain that information, the Court does not address that
issue.
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favorable evidence, under Brady, includes both exculpatory and impeachment evidence. Id.
(citing United States v. Bagley, 473 U.S. 667 (1985)). To succeed on a Brady claim, a defendant
must demonstrate that (1) the prosecution suppressed evidence, (2) the evidence was material
and favorable to the defendant, and (3) prejudice ensued. Collier, 485 F.3d at 421-22. But “the
Constitution is not violated every time the government fails or chooses not to disclose evidence
that might prove helpful to the defense.” Kyles v. Whitley, 514 U.S. 419, 436-37 (1995); see also
Villasana, 368 F.3d at 979 (holding the prosecutor did not violate Brady by failing to obtain and
disclose crime lab expert’s lab notes and test documents).
Laying aside the issues of materiality and favorableness, there is no clearly established
constitutional right to the disclosure of Brady material prior to the entry of a guilty plea. The
Supreme Court addressed pre-guilty-plea disclosures in United v. Ruiz, 536 U.S. 622 (2002). In
Ruiz, the Supreme Court rejected the proposition that a guilty plea is involuntary where Brady
impeachment material is not disclosed before the plea. Id. at 628. The Supreme Court explained
that the right to receive impeachment material emanates from the constitutional guarantee of a
right to a “fair trial.” Id. at 628. However, “[w]hen a defendant pleads guilty he or she, of course,
foregoes not only a fair trial, but also other accompanying constitutional guarantees.” Id. The
Supreme Court reasoned that “impeachment information is special in relation to the fairness of
the trial, not in respect to whether a plea is voluntary (‘knowing,’ ‘intelligent,’ and ‘sufficiently
aware’).” Id. at 629 (cleaned up). After weighing multiple considerations, the Supreme Court
concluded “the Constitution does not require the Government to disclose material impeachment
evidence prior to entering a plea agreement with a criminal defendant.” Id. at 633.
The State argues Ruiz applies in this case because Gonzalez pleaded guilty, and the
alleged undisclosed evidence is impeachment material at best. (Doc. No. 9 at 22-24). The Court
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agrees. K.V.’s police report is not exculpatory or favorable, and the results of L.G.’s physical
examination, which are unknown, are unlikely to be exculpatory or favorable given the sexual
contact with L.G. was oral sex. Moreover, Brady does not impose a “burden on the Government
to determine what facially nonexculpatory evidence might possibly be favorable to the accused
by inferential reasoning.” Villasana, 368 F.3d at 979. Nevertheless, even if the Court construes
the information as exculpatory—as suggested by Gonzalez—the result remains the same:
Gonzalez is not entitled to habeas relief.
The Supreme Court has never held that due process requires all useful information to be
shared with the defendant. See Ruiz, 536 U.S. at 629. Nor has the Supreme Court held the
Constitution requires all exculpatory evidence to be provided to a criminal defendant prior to the
entry of a guilty plea. See Freeman v. Attorney Gen. for New Mexico, No. 20-910, 2023 WL
5320041 at *6-7 (D.N.M. Aug. 18, 2023), report and recommendation adopted by Freeman v.
Martinez, 2023 WL 7151075 (D.N.M. Oct. 31, 2023) (observing “the Supreme Court has not
decided that the due process protections it recognized in Brady . . . are implicated at the time a
defendant enters a guilty plea.”).
Lower federal courts are divided on whether there is a federal constitutional right to
exculpatory Brady information before entering a guilty plea, with numerous courts holding there
is no such federal constitutional right. Id. at 6; Robertson v. Lucas, 753 F.3d 606, 621 (6th Cir.
2014) (“Whatever rights appellants had to receive exculpatory evidence prior to entering their
pleas was not clearly established.”); United States v. Mathur, 624 F.3d 498, 507 (1st Cir. 2010)
(observing that the right memorialized in Brady is universally acknowledged as a trial right);
United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009) (rejecting claim that government’s
failure to turn over alleged exculpatory evidence in violation of Brady rendered her guilty plea
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unknowing and involuntary); see also United States v. Colbert, 76 F.4th 1039, 1040 (8th Cir.
2023) (citing Ruiz and holding government’s failure to disclose information regarding
investigating officer’s credibility did not render guilty plea involuntary); 6 Wayne R. LaFave et
al., Criminal Procedure, § 24.3(b) (4th ed.) (Supp. 2023) (“The debate about non-impeachment
exculpatory evidence left open by . . . Ruiz divided the courts before and after the decision, and
continues in scholarly commentary.”). The debate over pre-plea disclosure of non-impeachment
material has not been resolved since Ruiz and certainly the law was not “clearly established” at
the time Gonzalez entered his guilty plea in January 2004. See Evenstad v. Carlson, 470 F.3d
777, 783 (8th Cir. 2006) (“When the federal circuits disagree as to a point of law, the law cannot
be considered ‘clearly established[.]’”).
Therefore, even assuming the undisclosed reports were non-impeachment Brady material,
the Court cannot conclude the denial of Gonzalez’s post-conviction relief application was
contrary to clearly established federal law. In other words, the alleged withholding of this
information, even if characterized as Brady material, did not vitiate Gonzalez’s knowing and
voluntary guilty plea. The state court’s decision denying post-conviction relief to Gonzalez was
not contrary to or an unreasonable application of clearly established law; nor did the decision
involve an unreasonable determination of the facts based on the record before that court. See 28
U.S.C. § 2254(d). Thus, Gonzalez is not entitled to habeas relief.
Last, Gonzalez argues that even if no Brady violation occurred, there is still a violation of
the state’s criminal discovery rules. (Doc. No. 15 at 1, 4). This argument lacks merit. “[F]ederal
habeas corpus relief does not lie for errors of state law . . . [and] it is not the province of a federal
habeas court to reexamine state-court determinations on state-law questions.” Evanstad, 470 F.3d
at 782 (quoting Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (internal quotations omitted).
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IV. CONCLUSION
For these reasons, Gonzalez’s Petition for habeas corpus relief under 28 U.S.C. § 2254 is
denied. The Court finds that any appeal would be frivolous, could not be taken in good faith, and
may not be taken in forma pauperis. 28 U.S.C. § 1915(a)(3); see also Coppedge v. United States,
360 U.S. 438, 444-45 (1962).
V. CERTIFICATE OF APPEALABILITY
The Court may issue a certificate of appealability only if the petitioner has made a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To satisfy this
standard, a “petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)); see also, United States v.
Lambros, 404 F.3d 1034, 1036-37 (8th Cir. 2005); Garrett v. United States, 211 F.3d 1075,
1076-77 (8th Cir. 2000) (per curiam), cert. denied, 531 U.S. 908 (2000).
Based upon the entire record before the Court, reasonable jurists would not find the
denial of this Petition debatable, reasonably subject to a different outcome on appeal, or
otherwise deserving of further proceedings. Consequently, no certificate of appealability shall be
issued. See Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997).
Dated this 13th day of May, 2024.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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