571 F. App'x 724

10th Cir.

2014

UNITED STATES оf America, Plaintiff-Appellee, v. Jonathan PABLO, Defendant-Appellant.

No. 14-2000.

United States Court of Appeals, Tenth Circuit.

July 15, 2014.

573 F. App‘x 724

the Guidelines. And he could have argued that his 7-year mandatory minimum sentence on the § 924(c) charge violated his Sixth Amendment rights. Thus, because Williams could havе raised all his arguments in his initial § 2255 motion, he may not resort to § 2241 to raise them now.

Of course, Williams disagrees with that. He says he never had an opportunity to present his arguments in his initial § 2255 motion because the district court erroneously concluded that he had waived those arguments in his plea agreement. At bottom though, Williams‘s complaint is not that he lacked an opportunity to press his arguments in his initial § 2255 motion, but that his initial § 2255 motion failed to bear fruit. But we have said that the savings clause “is concerned with process—ensuring the petitioner an opportunity to bring his argument—not with substance—guaranteeing nothing about what the opportunity promised will ultimately yield in terms of relief.” Id. at 584 (emphases in original). Indeed, “[t]he ultimate result [of a § 2255 motion] may be right or wrong as a matter of substantive law, but the savings clause is satisfied so long as the petitioner had an opportunity to bring and test his claim.” Id. at 585. The upshot is that just because the district court concluded that Williams had waived most of his arguments doesn‘t mean that Williams had no opportunity to raise them in his initial § 2255 motion.

We conclude that the district court ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍correctly dismissed Williams‘s § 2241 petition because his initial § 2255 motion provided an adequate and effective mechanism for testing his arguments. We affirm the district court‘s judgment and we deny Williams‘s motion to proceed on appeal in forma pauperis.

Laura Fashing, Kyle T. Naybaek, Office of the United States Attorney, Albuquerque, NM, for Plaintiff-Appellee.

Gregory Acton, Esq., Acton Law Office PC, Albuquerque, NM, for Defendant-Appellant.

Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior Circuit Judge.

ORDER AND JUDGMENT*

WADE BRORBY, United States Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.

A jury convictеd Appellant Jonathan Pablo of aggravated sexual abuse (against a minor involving vaginal rape), kidnaping, assault, and carjacking. See United States v. Pablo, 625 F.3d 1285, 1290 (10th Cir. 2010) (Pablo I). The district court sentenced him to 200 months imprisonment on his convictions for rape, kidnaping, and carjacking, to run concurrently with a 120-month sentence for his conviction for assault. Id. We affirmed Mr. Pablo‘s convictions, see id. at 1303, which the Supreme Court vacated and remanded for consideration in light of its decision in Williams v. Illinois, 567 U.S. —, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). See Pablo v. United States, — U.S. —, 133 S.Ct. 56, 183 L.Ed.2d 699 (2012). On remand, we again affirmed Mr. Pablo‘s convictions. See United States v. Pablo, 696 F.3d 1280, 1302 (2012) (Pablo II). While on remand, Mr. Pablo filed the instant motion for a new trial on claims of newly-discovered medical evidence and Brady violations, which the district court denied. While Mr. Pablo now appeals the denial of his motion for a new trial, his attorney has filed an Anders brief and a motion to withdraw as counsel. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the reasons set forth hereafter, we grant counsel‘s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motion to withdraw and dismiss this appeal.

I. Factual and Procedural Background

Facts supporting Mr. Pablo‘s convictions are contained in our prior decisions on appeal and their reiteration is unnecessary for our disposition of this appeal. See Pablo II, 696 F.3d at 1284-86; Pablo I, 625 F.3d at 1288-90. In moving for a new trial, Mr. Pablo alleged: 1) the SAER (Sexual Assault Examination Report),¹ mentioning tears to the posterior four-chette and prepared by Dr. Linda Lucy Boulanger, who treаted the victim, was improperly suppressed given it was not provided to the defense until the morning she testified at trial; and 2) in testifying on her treatment of the victim after the alleged sexual assault, Dr. Boulanger improperly gаve an opinion, without a voir dire examination on her expertise, that the tears were consistent with non-consensual intercourse. Based on these circumstances, Mr. Pablo alleged the newly-discovered medical evidence resulted in his being unable to discredit Dr. Boulanger for the purpose of producing an acquittal at a new trial or otherwise to prepare a defense to show fourchette tears are not necessarily diagnostic of rape but may be present in cases of consensual sexual intercourse under certain conditions. He also claimed Brady violations occurred because thе evidence was “favorable” to him, was suppressed by the government either willfully or inadvertently, and caused prejudice.

The district court denied Mr. Pablo‘s motion for new trial. It determined, in part: 1) the government only intended to call Dr. Boulanger as a fact witness as to her first-hand observations of the victim, and therefore no written summary for an expert witness was necessary; 2) the defense failed to object to Dr. Boulanger‘s opiniоn statement regarding the fourchette tears and, instead, elicited further opinion testimony on cross-examination, and therefore the government did not violate any rules regarding her opinion testimony; and 3) the defense received notice of the fourchette tears when it received the triage notes months prior to trial which were filled out by the same doctor at the time of treatment and expressly noted such tears. As a result, it concluded information on the fourchette tears did not qualify as “newly-discovered” evidence nor was it otherwise impermissibly suppressed. It also concluded a few minutes of legal research would have led counsel to numerous sexual assault cases discussing the significance of evidence on the injury to a victim‘s posterior fourchette and that no Brady violation occurred, as evidence on the pоsterior fourchette tears was provided months prior to the trial and therefore not suppressed by the government.

II. Discussion

After Mr. Pablo filed a notice of appeal, his appointed counsel, who participated in his motion for a new trial, but not his prior trial, filed an Anders motion and appeal brief, explaining a review of the record revealed no nonfrivolous issues to appeal, and moving for an order pеrmitting his withdrawal as counsel. See Anders, 386 U.S. at 744. In support of the Anders filing, counsel notes: 1) the doctor‘s scrawls regarding her finding of fourchette tears are contained on the last page of the triage notes and therefore are not “newly-discoverеd evidence“; 2) no request for a trial continuance or suspension of trial was made nor was the doctor recalled for voir dire or further examination; and 3) no Brady violation arose because the triagе notes with the information about the tears were prepared on the same date² as the alleged attack and provided to the defense months in advance of trial. Finally, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍counsel points out that because the government provided the triage notes and evidence of the fourchette tears to the defense months prior to the trial, the defense had ample time to prepare for cross-exаmination and any failure to learn of this evidence was caused by the defense‘s own lack of diligence.

Pursuant to Anders, this court gave Mr. Pablo an opportunity to respond to his counsel‘s Anders brief. See id. at 744. Mr. Pablo did not file a response. Thе government filed a notice of its intention not to file an answer brief in this appeal.

As required by Anders, we have conducted a full examination of the record before us. See id. at 744. As Mr. Pablo‘s counsel acknowledges and the district court explained, the government provided the triage notes containing the doctor‘s notation on the fourchette tears to the defense months before his trial. Thus, neither the evidence concerning the fourchette tears nor the doctor‘s testimony as to the existence of such tears is newly-discovered evidence,³ and it is therefore evident the defense received notice sufficient to prepare a defense, including cross-examination of the doctor who made the entry about the tears on the triage notes. Moreover, the defense waived or forfeited⁴ its objection to Dr. Boulanger‘s opinion statement—that the tears were consistent with non-consensual sex—when it failed to object to the rendering of such an opinion and did not request a continuance or conduct voir dire but, instead, proceeded tо elicit additional opinion testimony from that witness. As to any Brady violations,⁵ none occurred because the allegedly-suppressed evidence concerning the tears was furnished in advance of trial in the form of the doсtor‘s triage notes. Finally, the jury clearly credited the testimony of the government‘s witnesses, including the victim herself,⁶ as well as DNA and serology lab evidence,⁷ in finding Mr. Pablo committed the crimes of sexual assault by rape, kidnaping, carjacking, and assault. Thus, even without the doctor‘s testimony, the fourchette notation, and her opinion, “sufficiently strong evidence” on the conviction for rape exists “to sustain our confidence in the jury‘s verdict.” Reese, 745 F.3d at 1084 n. 6. As a result, no nonfrivolous reason exists supporting an appeal. Our conclusion is bolstered by Mr. Pablo‘s failure to take the opportunity to offer any additional nonfrivolous reason warranting a new trial.

III. Conclusion

For these reasons, we GRANT counsel‘s motion to withdraw and DISMISS the appeal.

WADE BRORBY

UNITED STATES CIRCUIT JUDGE

UNITED STATES of America, Plaintiff-Appellee, v. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Enrique MARTINEZ-GONZALEZ, Defendаnt-Appellant.

No. 14-6030.

United States Court of Appeals, Tenth Circuit.

July 15, 2014.

Steven W. Creager, Rozia Marie McKinney-Foster, Esq., Office of the United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Julia Summers, Office of the Federal Public Defender, Oklahoma City, OK, for Defendant-Apрellant.

Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.

ORDER AND JUDGMENT*

STEPHEN H. ANDERSON, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordеred submitted without oral argument.

Defendant and appellant, Enrique Martinez-Gonzalez, a Mexican citizen, appeals his fifty-seven-month sentence imposed

Notes

The SAER is also referred to in the record and Appellant‘s brief as the SANE report and is different than another document, also filled out by the same doctor, entitled “Crownpoint Triage and Nurses Notes” (hereafter “triage notes“), both of which mention the fourchette teаrs.

The record shows the triage notes were prepared the same morning as the attack which extended into the morning of January 30, 2005. See Pablo II, 696 F.3d at 1284.

To prevail on a motion for a new trial based on newly-discovered evidence, the defendant must establish: (1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by lack of diligence; (3) the new evidence is not merely impeaching or cumulative; (4) the new evidence is material to the principal issues involved; and (5) the new evidence would probably produce an acquittal if a new trial were granted. , cert. denied, ; .

A waived claim is one a party knowingly аnd intelligently relinquishes while a forfeited claim is one a party merely failed to preserve.

To establish a Brady violation for the purpose of a new trial, a defendant must show: 1) the prosecution suppressed evidence; 2) whiсh was favorable to the defendant; and 3) was material. See .

See Pablo II, 696 F.3d at 1284-86.

See id. at 1286-87, 1293-95 (explaining DNA and serology analyses were conducted and holding no error occurred in allowing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍testimony of lab employee on results which showed Mr. Pablo‘s DNA was found in the victim‘s genitalia).

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