Adams County District Court No. 97CR3018 Honorable F. Michael Goodbee, Judge.
John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Ashley Ratliff Attorney at Law, LLC, Ashley Ratliff, Denver, Colorado; Samler and Whitson, PC, Eric Samler, Denver, Colorado, for Defendant-Appellant.
¶1 Defendant, Giselle Gutierrez-Ruiz, appeals the trial court's order summarily denying his Crim. P. 35(c) motion challenging his conviction and sentence to life imprisonment without the possibility of parole. We affirm the order except insofar as it rejects defendant's challenge to the constitutionality of his life sentence, vacate that sentence, and remand for resentencing.
¶2 While defendant was driving a car, his passenger, the co-defendant, shot from the car at a truck, wounding the driver. The co-defendant later shot at another car, killing the driver. Defendant was a juvenile at the time of his arrest. A jury convicted defendant of first degree murder after deliberation and first degree assault with a deadly weapon. The trial court sentenced defendant to life without parole on the murder count and to ten years and one day on the assault count. The court denied defendant's motion for a new trial.
¶3 Defendant challenged his conviction on direct appeal, and a division of this court affirmed. People v. Gutierrez-Ruiz, (Colo.App. No. 99CA1149, Feb. 22, 2001) (not published pursuant to C.A.R. 35(f)) (Gutierrez-Ruiz I). The Colorado Supreme Court denied certiorari review on August 21, 2001. Defendant did not file a petition for certiorari with the United States Supreme Court.
¶4 In November 2006, defendant filed a pro se motion for postconviction relief (the first postconviction motion). The trial court denied the motion.
¶5 In August 2009, defendant filed an action in federal district court under 28 U.S.C. section 2254 (2006). The district court dismissed the petition as barred by the one-year limitations period governing section 2254 petitions. Gutierrez-Ruiz v. Trani, No. Civ. A. 09-CV02026BNB, 2009 WL 4015587 (D. Colo. Nov. 19, 2009)(unpublished order). The district court denied defendant's application for a certificate of appealability, Gutierrez-Ruiz v. Trani, No. Civ. A. 09-CV-02026TLW, 2010 WL 174802 (D. Colo. Jan. 12, 2010)(unpublished order), and defendant appealed. The Tenth Circuit Court of Appeals denied defendant's request for a certificate of appealability and dismissed the appeal. Gutierrez-Ruiz v. Trani, 378 F.App'x 797 (10th Cir. 2010) (unpublished order).
¶6 Thereafter, in November 2010, defendant filed his second pro se Crim. P. 35(c) motion, alleging that (1) trial counsel was ineffective for failing to challenge the propriety of the complicity instruction; (2) trial counsel was ineffective for failing to discover before trial that defendant's brother had a pending felony drug charge at the time of his police interrogation; (3) appellate counsel was ineffective for failing to advise him of the one-year limitation period for filing a section 2254 petition; and (4) his life sentence without the possibility of parole was unconstitutional under Graham v. Florida, 560 U.S. 48, 74 (2010).
¶7 The trial court denied three of the issues without a hearing, concluding that the two ineffective assistance of trial counsel claims were barred by Crim. P. 35(c)(3)(VI), because the issues had been raised and resolved in the direct appeal, see Gutierrez-Ruiz I; and that defendant's life sentence without the possibility of parole was not unconstitutional under Graham because Graham applied only to nonhomicide crimes committed by juveniles, and that even if Graham applied, defendant "could clearly 'foresee that a life' would be taken by virtue of the passenger's conduct and his complicity thereto."
¶8 The court appointed postconviction counsel to investigate defendant's allegation that appellate counsel was ineffective for failing to advise him of the one-year limitation period for filing a section 2254 petition. Postconviction counsel filed a supplemental Crim. P. 35(c) motion, acknowledging that Colorado case law establishes that there is no "constitutionally mandated standard that appellate counsel must advise an appellant of other post-conviction options, either of the state or federal variety, " and requesting that the trial court vacate and then reinstate defendant's sentence, thereby restoring defendant's right to seek relief under section 2254. The trial court denied the ...