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Almazan v. Commonwealth

United States District Court, E.D. Pennsylvania

January 21, 2015


Decided January 20, 2015





Roque Gutierrez Almazan (" Petitioner" ) is a prisoner at State Correctional Institution -- Benner in Bellefonte, Pennsylvania. Petitioner filed a pro se application seeking relief through a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (" Habeas Petition" ). Magistrate Judge Lynne A. Sitarski (" Judge Sitarski" ) recommended denial of the Habeas Petition without an evidentiary hearing and with no certificate of appealability. Petitioner now objects. For the reasons that follow, the Court will deny Petitioner's Habeas Petition.


The Pennsylvania Superior Court has offered the following summary of the facts:

On Christmas Eve of 2005, at approximately 10:00 p.m., Gutierrez-Almazan and another man, Vincente Carillo, went to Concepcion Arias Tellez's apartment. (Tellez was Gutierrez-Almazan's estranged common law wife.) Gutierrez-Almazan then forcibly removed Tellez from her apartment. A neighbor heard a woman screaming and looked out her window and saw Gutierrez-Almazan and Carillo frog-marching Tellez to a van where yet another man, Juan Carillo, was waiting in the driver's seat. The neighbor immediately called the police.
The trio then drove Tellez to an apartment building where she was taken into an apartment. Gutierrez-Almazan then struck and raped Tellez. The police eventually entered the apartment and found Gutierrez-Almazan completely nude and observed Tellez also nude and in a fetal position; she was sobbing uncontrollably and had bruises on her neck, face, lower back, and legs. Tellez told the police that Gutierrez-Almazan raped her. The police arrested Gutierrez-Almazan and took Tellez to a local hospital where a nurse completed a rape kit and recovered a white substance inside Tellez's vagina. The substance never underwent DNA testing.

Commonwealth v. Gutierrez-Almazan, 970 A.2d 468, slip op. at 26-27 (Pa. S.Ct. Feb. 23, 2009), ECF No. 5-2.

Petitioner was charged with rape, kidnapping, simple assault, criminal conspiracy, and related offenses. On June 29, 2006, following a jury trial in the Bucks County Court of Common Pleas, Petitioner was found guilty of rape, kidnapping, unlawful restraint, and simple assault. On September 26, 2006, the trial court sentenced Petitioner to five to ten years' imprisonment. Report & Recommendation (" R& R" ) 2.

Petitioner filed a counseled post-sentence motion, asserting the following grounds for relief: (1) counsel was ineffective for failing to call relevant witnesses and to request DNA testing; (2) there was insufficient evidence in support of the guilty verdict; and (3) the verdict was against the weight of the evidence. R& R 2-3. The motion was denied.

On direct appeal, Petitioner raised one issue: whether trial counsel was ineffective in failing to request testing of the DNA evidence. The Pennsylvania Superior Court affirmed Petitioner's sentence on February 23, 2009, and denied allocatur review on August 5, 2009. R& R 3.

On March 22, 2010, Petitioner filed a pro se petition pursuant to Pennsylvania's Post Conviction Relief Act (" PCRA" ). PCRA counsel was appointed. A PCRA evidentiary hearing was held on December 10, 2010, and Petitioner clarified that he was seeking relief on the following grounds: (1) trial counsel was ineffective for failing to effectively cross-examine one of the police officers regarding differences between his court testimony and his police report; (2) Juan and Vincente Carillo had recanted testimony; (3) the Spanish interpreter at trial provided incompetent translation services; (4) trial counsel was ineffective for failing to obtain and present DNA evidence; (5) Petitioner should have been judged by Mexican law since Petitioner and his wife were Mexican citizens illegally residing in the United States; and (6) Petitioner's arrest and prosecution violated the Vienna Convention. R& R 4-5. At the conclusion of the evidentiary hearing, the court denied Petitioner PCRA relief and permitted PCRA counsel to withdraw. R& R 5.

Petitioner appealed. On February 17, 2011, he filed a pro se Statement of Matters Complained of on Appeal. The PCRA court denied his claims and reappointed PCRA counsel for the purposes of appeal. R& R 6. On September 23, 2011, the Superior Court affirmed the PCRA court's order denying relief and allowed PCRA counsel to withdraw again. The Supreme Court then denied several Petitions for Allowance of Appeal. Id.

On July 18, 2012, Petitioner filed the Habeas Petition - written entirely in Spanish - in the United States District Court for the Middle District of Pennsylvania. The case was then transferred to the Western District of Pennsylvania, which ordered Petitioner to file an amended petition in English on October 9, 2012. Petitioner did so on October 31, 2012. On January 13, 2013, the case was transferred to this District. ECF No. 1. On February 19, 2013, the Government filed an Answer in Opposition to the Habeas Petition. ECF No. 5. Judge Sitarski entered a Report and Recommendation (" R& R" ) on June 19, 2014 (ECF No. 15), and Petitioner filed a timely objection (" Objection" ) (ECF No. 17). The matter is now ripe for disposition.


The Court may refer an application for a writ of habeas corpus to a U.S. Magistrate Judge for a report and recommendation. 28 U.S.C. § 636(b)(1)(B). A prisoner may object to the magistrate judge's report and recommendations within fourteen days after being served with a copy thereof. See § 636(b)(1); E.D. Pa. Civ. R. 72.1(IV)(b). The Court must then " make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." § 636(b)(1). The Court does not review general objections. See Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011) (" We have provided that § 636(b)(1) requires district courts to review such objections de novo unless the objection is not timely or not specific." (internal quotation marks omitted)). The Court " may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." § 636(b)(1).

On habeas review, the Court must determine whether the state court's adjudication of the claims raised was (1) contrary to, or an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts ...

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