Alarcon 291020 v. Thornell

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Javier Velazquez Alarcon, No. CV-23-00821-PHX-ROS 10 Petitioner, ORDER 11 v. 12 Ryan Thornell, et al., 13 Respondents. [14] 15 Petitioner Javier Velazquez Alarcon filed a petition for a writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254 . (Doc. 1). Magistrate Judge Alison S. Bachus filed a Report 17 and Recommendation finding the petition should be denied. (Doc. 12). Petitioner filed 18 objections. (Doc. 21). The Court will adopt the recommendation of Magistrate Judge 19 Bachus as set forth below. 20 I. Factual Background 21 In 2017, a jury convicted Petitioner of one count of first-degree murder, two counts 22 of kidnapping, two counts of armed robbery, one count of burglary in the first degree, and 23 one count of aggravated assault. (Doc. 10-1 at 83). Petitioner filed a direct appeal and on 24 January 14, 2020, the Arizona Court of Appeals affirmed his sentences. (Doc. 10-1 at 82– 25 89). The Arizona Supreme Court denied Petitioner’s petition for review on October 23, 26 2020, (Doc. 10-1 at 91), and the Arizona Court of Appeals issued a mandate affirming his 27 convictions on December 2, 2020, (Doc. 10-1 at 93). That day, Petitioner filed a notice of 28 post-conviction relief (“PCR”). (Doc. 10-2 at 47). On PCR, Petitioner presented one issue 1 that he was denied his Sixth Amendment right to effective assistance of counsel because 2 his attorneys failed to immediately locate his alibi witness. (Doc. 10-2 at 55–62). The 3 PCR court found Petitioner failed to meet his burden to show counsel’s assistance fell 4 below reasonable norms or prejudiced his defense. (Doc. 10-2 at 68–74). Petitioner filed 5 a petition for Arizona appellate review on April 18, 2022. (Doc. 10-2 at 76–81). The 6 Arizona Court of Appeals granted review but denied relief holding Petitioner had not 7 established an abuse of discretion. (Doc. 10-2 at 92–93). Petitioner did not file a motion 8 for reconsideration or a petition for review and the Arizona Court of Appeals issued its 9 mandate on December 19, 2022. (Doc. 10-2 at 95). 10 On May 10, 2023, Petitioner filed his federal habeas petition, seeking relief on four 11 grounds: (1) ineffective assistance of counsel in failing to object to a seven-month delay 12 between Petitioner’s initial appearance and the arraignment; (2) denial of the right to 13 counsel during that seven-month delay; (3) error by the trial court in denying his motion to 14 suppress DNA evidence; and (4) cumulative prejudicial errors. (Doc. 1). 15 II. Analysis 16 The Magistrate issued a Report and Recommendation (“R&R”) on December 19, 17 2023, recommending the Court deny Petitioner’s habeas petition. (Doc. 12). A district 18 judge “may accept, reject, or modify, in whole or in part, the findings or recommendations 19 made by the magistrate judge.” 28 U.S.C. § 636 (b). The district court must review de 20 novo the portions to which an objection is made. Id. The district court need not, however, 21 review the portions to which no objection is made, see Schmidt v. Johnstone, 263 F. Supp. 22 2d 1219, 1226 (D. Ariz. 2003), or where an objection merely repeats arguments raised in 23 the habeas petition, see Scott v. Shinn, 2021 WL 5833270 , at *4 (D. Ariz. Dec. 9, 2021) 24 (“Petitioner’s objections largely amount to his repeating the same arguments he raised in 25 his habeas petition and reply. . . . This approach is impermissible—at this stage of the 26 proceedings, Petition must identify specific flaws in the R&R’s reasoning, not simply 27 repeat his earlier arguments.”). Petitioner filed objections to the R&R. (Doc. 15). But, as 28 Respondents correctly state in their reply, Petitioner failed to challenge the R&R’s 1 conclusions and simply repeats his petition’s substantive arguments. (Doc. 30 at 3). 2 a. Ground One 3 In ground one, Petitioner asserts his “Sixth Amendment right to the effective 4 assistance of counsel was denied when counsel, once appointed, failed to object to the 5 seven-month delay endured by [Petitioner] without counsel between the initial appearance 6 and the arraignment, during which time necessary exculpatory evidence was lost.” (Doc. 7 3 at 14). Plaintiff claims this delay prevented him from timely consulting with a 8 knowledgeable attorney, obtaining details of the alleged offenses through discovery, 9 securing exculpatory video evidence showing Petitioner’s presence at a Circle K store 10 while the crime was committed, locating exculpatory witnesses who could have verified 11 this alibi, and asserting the right to a speedy trial in a timely matter. (Doc. 3 at 14–15). 12 The R&R found ground one is procedurally defaulted and Petitioner did not show 13 cause for the default or resulting prejudice or a fundamental miscarriage of justice absent 14 consideration on the merits. (Doc. 12 at 9–14). Petitioner’s objection argues post15 conviction relief and appellate counsel were ineffective in failing to raise the issue of the 16 delay constituting cause and prejudice to excuse procedural default. (Doc. 21 at 9–17). 17 But the R&R explicitly considered this argument in finding cause and prejudice did not 18 excuse Petitioner’s procedural default. (Doc. 12 at 11–13). 19 Further, where there is no clearly established federal law that the delay before 20 Petitioner was appointed counsel violated the Sixth Amendment—discussed in detail in 21 analyzing Petitioner’s second ground for relief below—there is no clearly established 22 federal law that Petitioner’s attorney’s failure to object to the delay once appointed violated 23 the Sixth Amendment. Thus, the Court adopts the R&R on ground one. 24 b. Ground Two 25 In ground two, Petitioner asserts the “denial of the right to counsel during seven26 month delay between initial appearance and arraignment violated [his] Fifth, Sixth, and 27 Fourteenth Amendment rights and constitutes structural error requiring reversal.” As noted 28 above, Petitioner did not properly object to the R&R and merely repeated his substantive 1 arguments that he was prejudiced by the seven-month delay in appointing counsel. (See 2 Doc. 21 at 22–28). However, the Court will analyze this claim as it is the crux of 3 Petitioner’s argument. 4 As the Magistrate addressed in the R&R, this is a Sixth Amendment Claim. (See 5 Doc. 12 at 14–18). Specifically, Petitioner claims he was denied counsel during a critical 6 stage of the proceedings between his initial appearance on August 14, 2013, and his 7 arraignment on March 17, 2014. (Doc. 3 at 21). 8 Petitioner presented this claim on direct appeal, and the Arizona Court of Appeals 9 denied the claim, finding Petitioner “has not established a deprivation of counsel 10 amounting to structural error” because “the period of pre-arraignment delay was not a 11 critical stage of the trial process” since Petitioner “was not subjected to a confrontation 12 with the State and did not face any proceeding testing the merits of his case.” (Doc. 10-1, 13 Ex. H, at 4–5) (internal quotations omitted). Further, the Court of Appeals noted the record 14 does not “show that Petitioner requested counsel or that the court denied such a request, or 15 that Petitioner lost any significant rights over that period.” Id. 16 As the Magistrate set forth in addressing this claim on the merits in the R&R, 17 “Petitioner must show that the state court’s adjudication of this claim (1) resulted in a 18 decision that was contrary to, or involved an unreasonable application of, clearly 19 established Federal law, as determined by the Supreme Court of the United States, or 20 (2) resulted in a decision that was based on an unreasonable determination of the facts in 21 light of the evidence presented in the state court proceeding.” (Doc. 12 at 16) (citing 28 22 U.S.C. § 2254 (d)). The Magistrate found Petitioner did not meet this bar. (Doc. 12 at 16). 23 The Court agrees. 24 First, Petitioner was not entitled to counsel at the initial appearance. See State v. 25 Cook, 724 P.2d 556, 561 (Ariz. 1986) (“In Arizona, an initial appearance is a proceeding 26 at which a person is advised of his right to counsel and steps are taken toward obtaining 27 counsel for subsequent proceedings.”) (citing Ariz. R. Crim. P. 4.2). But, as the Supreme 28 Court of the United States held in Rothgery v. Gillespie County, the right to counsel 1 attaches at the initial appearance and “counsel must be appointed within a reasonable time 2 after attachment to allow for adequate representation at any critical stage before trial, as 3 well as the trial itself.” 554 U.S. 191, 212 (2008). The Supreme Court’s holding in 4 Rothgery was “narrow” and did “not decide whether [a] 6-month delay in appointment of 5 counsel resulted in prejudice to Rothgery’s Sixth Amendment rights” and did not “consider 6 what standards should apply in deciding” this issue. Id. at 213 . 7 The Court finds there is no clearly established federal law (i) holding a seven-month 8 delay in appointing counsel here was unreasonable; (ii) that unreasonable delay in 9 appointing counsel constitutes structural error; or (iii) concerning what courts are required 10 to consider when addressing whether a delay was unreasonable. Thus, the Court finds the 11 Arizona Court of Appeals rejecting Petitioner’s claims was not contrary to nor an 12 unreasonable application of clearly established federal law. 13 Further, Petitioner cannot establish prejudice. No hearings took place during the 14 delay, and—as the R&R and the Arizona Court of Appeals found based on testimony from 15 Petitioner’s investigator—any potential allegedly exculpatory video evidence would have 16 been erased in June 2013, long before Petitioner’s initial appearance on August 14, 2013. 17 (See Doc. 10-1 at 87). The Court adopts the R&R with respect to ground two. 18 c. Ground Three 19 In ground three, Petitioner asserts the trial court erred in denying his motion to 20 suppress DNA evidence depriving Petitioner of his Fifth Amendment right to a fair trial. 21 The R&R found the Petitioner did not allege facts or assertions regarding his Fifth 22 Amendment violation claim and rather his argument hinges on violations of his Fourth 23 Amendment rights. (Doc. 12 at 19). Furthermore, the R&R found that Petitioner’s Fourth 24 Amendment claim is non-cognizable on federal habeas review because Petitioner was 25 afforded a full and fair opportunity to litigate the Fourth Amendment claim when the state 26 court heard and considered his claim. (Doc. 12 at 20). Petitioner instead repeats the 27 arguments in his petition that the trial court should have granted his motion to suppress 28 DNA evidence. (Doc. 21 at 29–31). The Court finds there have been no specific objections 1 to this portion of the R&R and the Court adopts the R&R with respect to ground three. 2 d. Ground Four 3 In ground four, Petitioner asserts the Court should vacate his convictions and 4 sentences based on the cumulative prejudicial errors. As Respondents point out in their 5 reply, Petitioner has not offered specific objections to the R&R with respect to ground four. 6 (Doc. 30 at 3). The R&R found this claim was procedurally defaulted without excuse, (see 7 Doc. 12 at 20–22), but Petitioner’s objection does not address procedural default 8 whatsoever and instead repeats his arguments that alleged cumulative error requires his 9 convictions to be vacated, (see Doc. 21 at 32–33). The Court finds there are no specific 10 objections to this portion of the R&R and the Court adopts the R&R with respect to ground 11 four. 12 Accordingly, 13 IT IS ORDERED the Report and Recommendation (Doc. 12) is ADOPTED. 14 IT IS FURTHER ORDERED the petition for writ of habeas corpus (Doc. 1) is 15 DENIED and DISMISSED WITH PREJUDICE. 16 IT IS FURTHER ORDERED a certificate of appealability is DENIED because 17 Petitioner has not shown jurists of reason would not find the procedural ruling debatable, 18 and because Petitioner has not made a substantial showing of denial of a constitutional 19 right. 20 IT IS FURTHER ORDERED Petitioner’s motion for case status (Doc. 28) is 21 DENIED. 22 IT IS FURTHER ORDERED Petitioner’s motion for leave to file a response to 23 Respondents’ reply (Doc. 31) is DENIED. 24 … 25 … 26 … 27 … 28 … 1 IT IS FURTHER ORDERED Respondents’ motion to strike Petitioner’s motion 2|| for leave to file a response (Doc. 32) is DENIED. 3 Dated this 21st day of August, 2024. 4 fo _ 5 ( —— 7 Senior United States District Judge [28] -7-