U.S. Court of Appeals for the Ninth Circuit, 2015

Daniel Gutierrez v. Richard Bock

Daniel Gutierrez v. Richard Bock
U.S. Court of Appeals for the Ninth Circuit · Decided September 24, 2015 · Christen, Friedland, Lemelle
616 F. App'x 339

Daniel Gutierrez v. Richard Bock

Opinion

MEMORANDUM ***

After a shooting at a crowded party, an Arizona jury convicted Daniel Gutierrez on several counts of assault and one count of manslaughter. Gutierrez filed a petition for a writ of habeas corpus in state court alleging ineffective assistance of counsel. After that petition’s denial and several unsuccessful appeals, Gutierrez filed a petition for a writ of habeas corpus in the district court. The district court dismissed the petition and Gutierrez appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1

Gutierrez argues his counsel’s decision not to call Jose Baldenegro as a witness amounted to ineffective assistance. Gutierrez is not entitled to relief because the state court reasonably concluded that, even if counsel’s performance was deficient, Gutierrez had not “show[n] that the deficient performance prejudiced the defense.” See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); 28 U.S.C. § 2254(d)(1). Gutierrez’s DNA was on the gun used in the shooting and Baldenegro’s account would have been contradicted by that of two other witnesses.

AFFIRMED.

***

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1

. The parties are familiar with the facts, so we will not recount them here.

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