Alvarez-Calo v. Obenland

[8] UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA [10] 11 WILLIAM MANUEL ALVAREZ-CALO, CASE NO. 3:19-cv-05904-TL-DWC 12 Petitioner, ORDER ON REPORT AND v. RECOMMENDATION [13] MIKE OBENLAND, [14] Respondent. [16] 17 Petitioner William Manuel Alvarez-Calo seeks a writ of habeas corpus for relief from a 18 state conviction. This matter comes before the Court on the Report and Recommendation (the 19 “R&R”) of the Honorable David W. Christel, United States Magistrate Judge, which 20 recommends denial of the petition. Dkt. No. 46. Having reviewed the R&R, Mr. Alvarez-Calo’s 21 objections to the R&R (Dkt. No. 47), and the relevant record, the Court ADOPTS the R&R and 22 OVERRULES Mr. Alvarez-Calo’s objections. [24] 1 I. BACKGROUND 2 The factual background of this matter is set out at length in various parts of the decision 3 of the Washington State Court of Appeals. See Dkt. No. 42-1 at 411–71; State v. Calo, No. 4 49798-8-II, 2018 WL 6819566 (Wash. Ct. App. Dec. 27, 2018); see also Dkt. No. 8 (state court 5 record); Dkt. No. 46 at 2–6. The facts relevant to this Order are recounted here. 6 A. Pretrial Events 7 In February 2013, Mr. Alvarez-Calo was facing pending criminal charges in two 8 Washington State jurisdictions. Dkt. No. 42-1 at 413. In Lakewood Municipal Court, he was 9 charged with a misdemeanor driving offense. Id. at 106 (indicating charge for “driving [with a] 10 suspended [license]”). There he was represented by Ms. Kristin Fay and her supervisor, Mr. Ken 11 Harmell, both of whom primarily handled misdemeanor matters. Id. at 94 (103:21–24), 135–36 12 (144:25–145:3). In Pierce County Superior Court, Mr. Alvarez-Calo was charged with second 13 degree identity theft (a felony) and third degree driving with a suspended license (a 14 misdemeanor), and he was represented by Ms. Mary Kay High. Id. at 413–14. 15 1. Conversations with Counsel and Outreach to Police 16 On February 11, 2013, Mr. Alvarez-Calo asked Ms. Fay to “put him in contact with” the 17 officers who were investigating the murder of Jaime Diaz-Solis. Dkt. No. 42-1 at 413. Ms. Fay 18 had not previously assisted a client in a proffer situation. Id. at 114 (123:16–18). Mr. Alvarez19 Calo told her that he wanted to “provide information on the murder in exchange for the dismissal 20 of his Lakewood and Pierce County cases.” Id. at 413–14; but see id. at 104 (115:10–12) (Ms. 21 Fay: “[H]e, um, volunteered information, what would happen if I got – gave you information, 22 um, on this – and I’m going to summarize this – on this murder.”). Ms. Fay continued the 23 Lakewood case so that she could speak to Mr. Harmell and Ms. High. Id. at 414. She spoke to 24 Mr. Harmell, who did not attempt to identify or contact Ms. High. Id. at 414, 154 (163:2–7). 1 Ms. Kay attempted to contact Ms. High1 but ultimately did not speak to her. Id. at 414. 2 “Sometime after February 11, Ms. Fay ‘caused a message to be sent to Detective [Les] Bunton’ 3 about [Mr. Alvarez-Calo’s] request.” Id.; Dkt. No. 8-1 at 63 ¶ 5. 4 On February 22, 2013, Mr. Alvarez-Calo was transported to the Lakewood Municipal 5 Court for a hearing on the Lakewood matter, for which Mr. Harmell would represent him. Dkt. 6 No. 42-1 at 414. Detective Bunton and Lakewood Police Department Investigator Jason Catlett 7 were present in the courtroom, and they spoke to Mr. Harmell about speaking with Mr. Alvarez8 Calo. Id. 9 Mr. Harmell then met with Mr. Alvarez-Calo, along with an interpreter, for 20–30 10 minutes to discuss whether Mr. Alvarez-Calo should speak with the officers. Id. Mr. Harmell 11 told Mr. Alvarez-Calo that it “was a bad idea to talk with detectives” and expressed concern 12 about Mr. Alvarez-Calo’s safety given the nature of the information he would provide. Id.; Dkt. 13 No. 8-1 at 64 ¶ 9. Mr. Harmell believed there was a risk that Mr. Alvarez-Calo would implicate 14 himself in the murder (Dkt. No. 42-1 at 165 (174:21–25)), but he only asked Mr. Alvarez-Calo if 15 he was “100 percent sure” that the police could not tie him to the murder (id. at 166 (175:3–12)). 16 He did not provide advice regarding theories of criminal liability or the possible consequences 17 that could ensue. See id. at 163–67. However, Mr. Harmell spent “the bulk of [the] conversation 18 . . . trying to talk [Mr. Alvarez-Calo] out of doing the deal.” Id. at 167 (176:4–5). Mr. Alvarez19 Calo “was not concerned about being implicated and was positive that he would not get caught 20 up with the murder.” Id. at 414; Dkt. No. 8-1 at 64 ¶ 10. Despite Mr. Harmell’s efforts to dissuade 21 him, Mr. Alvarez-Calo agreed to speak to the officers at the police station. Dkt. No. 42-1 at 414. [23] 1 Ms. Fay left a voicemail message for Ms. High about the case and was looking to see if the cases could be resolved 24 together. See Dkt. No. 42-1 at 107 (116:4–9), 110 (119:9–18), 112–13 (121:23–122:8). 1 At that point, Mr. Harmell gave “a little bit of information” to Detective Bunson and 2 Investigator Catlett to see if Mr. Alvarez-Calo had valuable information; they believed he did. 3 Dkt. No. 42-1 at 151–52 (160:21–161:3). One of the officers then contacted Mr. Sven Nelson, 4 the prosecutor on the Pierce County charges, and put Mr. Harmell on the phone with him. Id. 5 at 153 (162:2–4); see also Dkt. No. 8-1 at 64 ¶ 13 (“Mr. Harmell . . . subsequently spoke to 6 prosecutors regarding both cases.”). Mr. Harmell sought “to get as many cases dismissed as 7 possible,” despite knowing “nothing at all” about the felony charges. Dkt. No. 42-1 at 153 8 (162:10–16). He did not attempt to secure immunity for Mr. Alvarez-Calo in exchange for the 9 information (id. at 156 (165:3–6)). He did attempt to contact Ms. High regarding resolution of 10 the felony case. Id. at 415; Dkt. No. 8-1 at 64 ¶ 14; but see Dkt. No. 42-1 at 154 (163:11–13) 11 (testimony by Mr. Harmell that he did not attempt to “involve” or identify Ms. High). Mr. 12 Harmell believed that he “had an agreement from a prosecutor that I trusted, that he was going to 13 dismiss the case.” Id. at 155 (164:6–7). 14 2. The February 22 Initial Interrogation 15 Detective Bunton and Investigator Catlett transported Mr. Alvarez-Calo to the Lakewood 16 Police Station for an interview so that other detainees at the court would not see Mr. Alvarez17 Calo speaking to police. Dkt. No. 42-1 at 415, n.5. Mr. Harmell did not accompany Mr. Alvarez18 Calo because he “had the rest of the [court] calendar to complete” and because he “did not view 19 [himself] as [Mr. Alvarez-Calo’s] attorney any longer” as the Lakewood case was going to be 20 dismissed. Id. at 169 (178:17–22). 21 Mr. Alvarez-Calo was in jail clothing, was handcuffed, and was not free to leave because 22 he was in custody on the pending Pierce County charges. Id. at 415. At no point prior to or 23 during the interview did the officers advise Mr. Alvarez-Calo of his Miranda rights. Id. The 24 interview was held in a secured room, though Mr. Alvarez-Calo was not physically restrained 1 during the interview. Id. at 418. “The interview had a conversational tone,” and although the 2 officers asked follow-up questions, they “did not generally direct the conversation.” Id. “[T]here 3 was nothing indicating that [Mr. Alvarez-Calo] could not have chosen to end the interview at any 4 time without any consequence other than being returned to his original custody status.” Id. at 5 425. Mr. Alvarez-Calo told the officers about his contacts and involvement with a narcotics 6 cartel, identified people in photographs, and implicated people in the murder.2 Id. at 415. Mr. 7 Alvarez-Calo also stated that he wanted his current felony charge dropped because he wanted to 8 regain his right to have firearms so he could protect himself. Id. at 418. He also asked the 9 officers to not contact him at the jail and to “get him out of the jail as soon as possible.” Id. 10 Ultimately, Mr. Alvarez-Calo’s misdemeanor case in Lakewood was dismissed, and he 11 pleaded guilty to an amended and lesser charge of one count of second degree driving while 12 license suspended in Pierce County. Id. at 415. Based on the information he provided to the 13 Lakewood police over the course of multiple interviews, Mr. Alvarez-Calo was arrested for 14 murder and conspiracy. Id. at 416. 15 B. The Trial 16 At the murder trial, in its opening statement, the prosecution made several statements that 17 are at issue in the petition and about which Mr. Alvarez-Calo objects. Dkt. No. 42-1 at 454–58. 18 First, the prosecution used a “jigsaw puzzle analogy.” Id. at 454. It stated that “understanding the 19 case based on the evidence presented in the case was similar to putting together a jigsaw puzzle.” 20 Id. It further stated that the opening statement “was akin to having the picture on the box available 21 when working on the puzzle.” Id. Mr. Alvarez-Calo did not object to these statements. Id. [23] 2 Mr. Alvarez-Calo was also interviewed by officers on March 18, March 26, and June 18. Dkt. No. 42-1 at 415–16. As 24 explained below, the details of those interviews are not relevant to the disposition of this petition. See infra, Section III.C. 1 Second, the prosecution described Mr. Alvarez-Calo as “spin[ning] a story” to Detective 2 Bunson and Investigator Catlett. Id. at 454–55. Mr. Alvarez-Calo objected to the statement, and 3 the court instructed the jury to disregard the statement. Id. at 455. 4 Third, the prosecution made repeated references to Mr. Alvarez-Calo’s drug use. Id. 5 at 455–56. The prosecution stated that Mr. Alvarez-Calo “had a problem” and went on to discuss 6 the “drug business” and addiction. Id. Mr. Alvarez-Calo objected, and the court reminded the 7 jury that information in the opening statement is not evidence but merely the expectation of 8 evidence. Id. at 456. The prosecution then again stated that Mr. Alvarez-Calo “had a problem” 9 and referred to “drug usage.” Id. 10 Over the course of the trial, a variety of evidence was presented, which is summarized by 11 the Washington Court of Appeals. See Dkt. No. 42-1 at 419–21; see also Dkt. No. 42 at 14–17. 12 The evidence showed that Mr. Alvarez-Calo worked for Mr. Alberto Mendoza Ortega, also 13 known as “Yeto.” Dkt. No. 42-1 at 419. Mr. Alvarez-Calo assisted Yeto with drug sales and 14 worked as a mechanic in Yeto’s garage. Id. At one point, Mr. Alvarez-Calo was arrested, and 15 Yeto, along with other friends of Mr. Alvarez-Calo, bailed him out of jail. Id. On the night of the 16 murder, Mr. Alvarez-Calo met with several friends to discuss, among other things, a plan to raid 17 the apartment of Mr. Juan Hidalgo-Mendoza, Yeto’s drug supplier, and steal any drugs or 18 money. Id. at 419–20. Mr. Alvarez-Calo provided some of them with firearms, and the group 19 went to the apartment anticipating that someone could be home. Id. at 420. When they entered 20 the apartment, one of the individuals, Mr. Mazzar Robinson, shot Mr. Diaz-Solis. Id. In addition 21 to this information, the prosecution presented evidence of Mr. Alvarez-Calo’s multiple interviews 22 with police, in which he admitted, among other things, that he arranged the robbery and murder with 23 Robinson. Id. at 420–21. [24] 1 At one point in the trial, Yeto testified that he eventually had issues with Mr. Alvarez2 Calo, who “would get arrested for driving without a license” and who Yeto would then “have to 3 bail . . . out of jail.” Id. at 434. He also testified that he bailed Mr. Alvarez-Calo out of jail in 4 October 2012 and that he had bailed him out a total of three times. Id. at 434–35. Mr. Alvarez- 5 Calo’s attorney did not object to the testimony. Id. at 435. 6 Ultimately, the jury found Mr. Alvarez-Calo guilty of first degree felony murder, first 7 degree burglary, and attempted first degree robbery. Id. at 421. Mr. Alvarez-Calo subsequently 8 filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . See Dkt. No. 42. 9 II. LEGAL STANDARD 10 A. District Court Review of a Report and Recommendation 11 A district court has jurisdiction to review a magistrate judge's report and recommendation 12 on “applications for posttrial relief made by individuals convicted of criminal offenses.” 28 13 U.S.C. § 636 (b)(1)(B); see also Rule 8(b) of the Rules Governing § 2254 Cases (“A judge may 14 . . . refer the petition to a magistrate judge to conduct hearings and to file proposed findings of 15 fact and recommendations for disposition.”); Rule 10 (“A magistrate judge may perform the 16 duties of a district judge under these rules, as authorized under 28 U.S.C. § 636 .”). “Within 17 fourteen days after being served with a copy, any party may serve and file written objections to 18 such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. 19 § 636(b)(1)(C); accord Rule 8(b). The court “shall make a de novo determination of those 20 portions of the report or specified proposed findings or recommendations to which objection is 21 made.” 28 U.S.C. § 636 (b)(1)(C). The court “may accept, reject, or modify, in whole or in part, 22 the findings or recommendations made by the magistrate judge.” Id. [24] 1 B. Federal Habeas Review 2 Under two circumstances, a federal court may grant habeas relief with respect to a claim 3 adjudicated on the merits in state court. 4 First, a federal court may grant relief if the state adjudication “resulted in a decision that 5 was contrary to, or involved an unreasonable application of, clearly established Federal law, as 6 determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1) (emphases 7 added). A state decision is “contrary to” clearly established Supreme Court precedent if the state 8 court (1) “arrives at a conclusion opposite to that reached by [the Supreme Court] on a question 9 of law”; or (2) “confronts facts that are materially indistinguishable from a relevant Supreme 10 Court precedent and arrives at a result opposite to [the Supreme Court].” Williams v. Taylor, 529 11 U.S. 362, 405 (2000). A state decision involves an “unreasonable application” of clearly 12 established Supreme Court precedent if the state court “identifies the correct governing legal rule 13 from [Supreme Court] cases but unreasonably applies it to the facts of the particular state 14 prisoner’s case.” Id. at 407 . A decision also involves an “unreasonable application” if the state 15 court “either unreasonably extends a legal principle from [Supreme Court] precedent to a new 16 context where it should not apply or unreasonably refuses to extend that principle to a new 17 context where it should apply.” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting 18 Williams, 529 U.S. at 407). Review is “limited to the record that was before the state court that 19 adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011). 20 Second, a federal court may grant relief if the state adjudication “resulted in a decision 21 that was based on an unreasonable determination of the facts in light of the evidence presented 22 in the State court proceeding.” 28 U.S.C. § 2254 (d)(2) (emphasis added); accord Juan H. v. 23 Allen, 408 F.3d 1262, 1270 n.8 (9th Cir. 2005) (observing that the determination must be [24] 1 “material”). A state court’s factual determinations are “presumed to be correct” unless the 2 petitioner rebuts the presumption with “clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1). 3 III. DISCUSSION 4 Mr. Alvarez-Calo raises six objections to the R&R. See Dkt. No. 47. Five objections 5 concern the substance of the state court proceedings. Id. at 2–15. The final objection concerns the 6 magistrate judge’s denial of an evidentiary hearing and a certificate of appealability. Id. at 15– 7 16. Defendant Mike Obenland did not respond to any of the objections. The Court considers each 8 objection in turn. 9 A. Objection One: Custodial Status of Original Interrogation 10 Mr. Alvarez-Calo argues that the state court unreasonably applied clearly established law 11 in concluding that Mr. Alvarez-Calo was not “in custody” within the meaning of Miranda v. 12 Arizona, 384 U.S. 436 (1966), during his first interrogation on February 22.3 See Dkt. No. 47 13 at 2–6. The objection centers mostly on the contention that the magistrate judge did not fully 14 engage with the Supreme Court’s decision in Howes v. Fields, 565 U.S. 499 (2012), what 15 Mr. Alvarez-Calo calls “the seminal Supreme Court case analyzing interrogation of a suspect 16 who is already in custody for an unrelated offense.” Dkt. No. 47 at 2. In Fields, the Supreme 17 Court considered whether a state prisoner, serving a sentence, was “in custody” when he was 18 escorted to a conference room and questioned about an unrelated offense. 565 U.S. at 502 . The 19 objection fails because it is premised on a misreading of Fields and a misunderstanding of this 20 Court’s standard of review.4 [21] 22 3 The magistrate judge concluded that the state court’s factual finding that Mr. Alvarez-Calo was “in custody” is presumed correct. Dkt. No. 46 at 16. However, the custody determination presents a mixed question of law and fact that qualifies for independent review. Thompson v. Keohane, 516 U.S. 99 , 112–13 (1995). [23] 4 Mr. Alvarez-Calo also objects to the magistrate judge’s conclusion that he did not have a right to counsel during 24 this interrogation under the Fifth or Sixth Amendments. See Dkt. No. 47 at 4–5. As detailed in this section, the state court was reasonable in concluding that he was not in custody, so he did not have a Fifth Amendment right to 1 1. The Supreme Court’s Decision in Fields 2 Fields is comprised of two parts. First, the Court rejected a purported categorical rule 3 articulated by the court of appeals, in which Miranda warnings were required whenever a 4 prisoner was removed from the general prison population and interrogated about conduct outside 5 the prison. Fields, 565 U.S. at 505–14. “On the contrary,” the Court stated, “we have repeatedly 6 declined to adopt any categorical rule with respect to whether the questioning of a prison inmate 7 is custodial.” Id. 505. The Court further cautioned, “our decisions do not clearly establish that a 8 prisoner is always in custody for purposes of Miranda whenever a prisoner is isolated from the 9 general prison population and questioned about conduct outside the prison.” Id. at 508. Second, 10 the Court applied the traditional test for custodial status and found that Mr. Fields was not in 11 custody. Id. at 514–17. “When a prisoner is questioned,” the Court explained, “the determination 12 of custody should focus on all of the features of the interrogation.” Id. at 514. 13 Mr. Alvarez-Calo appears to argue that Fields sets out a three-factor test for custody 14 involving prisoners serving time, which does not apply to his case and was not distinguished by 15 the magistrate judge. See Dkt. No. 47 at 3–4. But Fields does no such thing. As Mr. Alvarez16 Calo acknowledges in the same breath, the Court “outlined three rationales for finding an 17 interrogation of an individual in custody for an unrelated offense is not necessarily custodial.” 18 Dkt. No. 47 at 3 (emphases added); see Fields, 565 U.S. at 511–12. First, questioning a prisoner 19 serving time “does not generally involve the shock that very often accompanies arrest.” Id. 20 at 511. Second, a prisoner “is unlikely to be lured into speaking by a longing for prompt release.” 21 Id. Third, a prisoner “knows that the law enforcement officers who question him probably lack 22 the authority to affect the duration of his sentence.” Id. at 512. [23] counsel. Further, Mr. Alvarez-Calo’s Sixth Amendment right to counsel had not yet attached as to the homicide 24 charges. See infra, Section III.B.1. 1 While it could be said that these rationales do not apply cleanly or at all to a typical pretrial 2 detainee, the Supreme Court’s reasoning does not clearly establish a test or categorial rule that 3 benefits Mr. Alvarez-Calo. The Supreme Court analyzed these rationales only to explain why the 4 “imprisonment” element of the court of appeals’ rule was incorrect. Id. Thus, as directed by the 5 Supreme Court, this Court will “focus on all of the features of the interrogation.” Id. at 514. 6 2. The State Court’s Determination of Custody 7 Given the facts of the case and existing Supreme Court precedent, it cannot be said that the 8 state court unreasonably conducted the “ultimate inquiry” of a Miranda custody determination— 9 namely, whether there was “a formal arrest or restraint on freedom of movement of the degree 10 associated with a formal arrest.” Thompson, 516 U.S. at 112 . “Courts must examine ‘all of the 11 circumstances surrounding the interrogation.’” Fields, 565 U.S. at 509 (quoting Stansbury v. 12 California, 511 U.S. 318, 322 (1994)). Courts also ask “whether the relevant environment presents 13 the same inherently coercive pressures as the type of station house questioning at issue in 14 Miranda.” Id. “The custody test is general,” and courts are given “more leeway” in making a 15 determination of this issue. Yarborough v. Alvarado, 541 U.S. 652 , 664–65 (2004). 16 Here, the circumstances of the February 22 interrogation present a mixed picture. Mr. 17 Alvarez-Calo succinctly identifies facts in his favor: “[H]e was taken to a geographically 18 separated police precinct in handcuffs and shackled, placed in a locked room, questioned for over 19 an hour, and never told he had an opportunity to decline speaking at any moment.”5 Dkt. No. 42 [20] 5 Mr. Alvarez-Calo also points out that he “has limited English proficiency and severe cognitive difficulties without 21 use of the interpreter.” Dkt. No. 47 at 5; see also Dkt. No. 42 at 30 (describing himself as “a very suggestible individual with a minimal grasp on the English language relying on a police investigator who was not a certified 22 interpreter to translate for him”). But analysis of Miranda custody is limited to the “objective circumstances” of the interrogation and not “the idiosyncrasies of every individual suspect” and how the suspect is affected. J.D.B. v. North Carolina, 564 U.S. 261, 271 (2011). The Supreme Court has never held that a person’s use of an interpreter or [23] a person’s cognitive ability is part of an objective Miranda analysis. 24 Moreover, Mr. Alvarez-Calo’s attorney used an interpreter during their meeting (Dkt. No. 42-1 at 414), and one of the police officers periodically acted as an interpreter during the February 22 interview (id. at 415). Mr. Alvarez1 at 30. He was questioned outside the presence of his attorneys.6 Dkt. No. 47 at 5. He also 2 demonstrated a belief that his interrogators could affect the duration of his detention, as he asked 3 the officers to get him out of the jail as soon as possible. Dkt. No. 42-1 at 418. 4 Ultimately, however, there are too many other facts that neutralize or undermine facts in 5 Mr. Alvarez-Calo’s favor for this Court to conclude that the state court was unreasonable in its 6 conclusion. For example, even if Mr. Alvarez-Calo did not precisely schedule his contact with 7 police, he initiated the contact by expressing to his attorney a desire to share information with 8 them and thus receive leniency for his then-pending charges. Dkt. No. 42-1 at 413–14; id. at 104 9 (115:10–12). Although his attorney met with him along with an interpreter and advised that it 10 was a bad idea, Mr. Alvarez-Calo proceeded to speak to police against that advice, and he agreed 11 to do so at the police station. Id. at 414. This case also does not present “the paradigmatic 12 Miranda situation” where someone is taken off the street and hustled straight into questioning. 13 Fields, 565 U.S. at 511 . Instead, Mr. Alvarez-Calo was already detained on state charges. Dkt. 14 No. 42-1 at 415. Nor was he “‘subjected to treatment’ in connection with the interrogation.” 15 Fields, 565 U.S. at 514 (quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984)). Again, he was 16 already detained on pending charges. Dkt. No. 42-1 at 415. He was not physically restrained 17 while he spoke with the police. Id. at 418. The interview had a conversational tone, and officers [19] Calo does not demonstrate that officers were even aware of any cognitive difficulties. The only indications in the 20 record of cognitive difficulties are discussions in the Court of Appeals decision about his dyslexia in the context of a waiver he signed at a June 21, 2013, interrogation (id. at 416), a “Cultural Competency Evaluation” for his counsel 21 (id. at 434), and a supplemental brief filed by Mr. Alvarez-Calo in support of the appointment of counsel for his habeas petition (see Dkt. No. 21). As there is no evidence that he was asked to read or sign anything at the February 22 interrogation, it does not appear that his cognitive difficulty is relevant to the issues raised in this petition. [22] 6 Mr. Alvarez-Calo asserts that this is a case “in which police took their suspect for questioning directly from his attorney and paid no regard to a request from another attorney that she did not wish for them to interrogate her client [23] without her present.” Dkt. No. 47 at 5. The other attorney referenced is Ms. High, and she informed the police that she wanted to be present for any further discussions with Mr. Alvarez-Calo on February 26, 2013, after the initial 24 interview at issue in this case. See Dkt. No. 42-1 at 262 (February 26 email from Ms. High to Bunton). 1 did not generally direct the conversation. Id. Together, these circumstances provide a sufficient 2 basis for the state court to conclude that Mr. Alvarez-Calo was not in Miranda custody. 3 Mr. Alvarez-Calo does raise a potential distinction in how courts should approach the 4 custodial status of a pretrial detainee in comparison to that of a prisoner serving time post- 5 conviction. This is no trivial issue: most people in local jails in the United States (approximately 6 427,000 people) are awaiting trial. See Prison Pol’y Initiative, “Mass Incarceration: The Whole 7 Pie 2023” (Mar. 14, 2023), https://perma.cc/P3M4-GQWH. At least one commentator has 8 recently argued that the logic of Fields and a related line of cases should be confined to prisoners 9 serving time and not extended to pretrial detainees. See Kit Kinports, Pretrial Custody and 10 Miranda, 78 Wash. & Lee L. Rev. 725 (2021) (arguing that “pretrial detainees should be deemed 11 to be in Miranda custody for the duration of their confinement prior to trial”). 12 But on habeas review, the question before the Court is not what the law should be in the 13 abstract, or how a case should be decided as a matter of first impression. The question is whether 14 the state court unreasonably applied clearly established law. This Court cannot say that it did. 15 The objection is OVERRULED. 16 B. Objection Two: Ineffective Assistance of Counsel in Police Interaction 17 Mr. Alvarez-Calo argues that the state court unreasonably applied clearly established law in 18 concluding that his Sixth Amendment right to the effective assistance of counsel was not violated 19 because the right had not attached. See Dkt. No. 47 at 6–10. Mr. Alvarez-Calo highlights the 20 questionable performance of “attorneys who were already representing him” who “arranged for and 21 allowed him to participate in an interrogation with detectives without counsel present.” Id. at 6. He 22 argues that the attorneys “were unequivocally acting as his attorneys with respect to the homicide” 23 and, “[a]s such, they owed him a professional duty not to render performance falling below an 24 objective standard of reasonableness even if charges had not yet been formally brought.” Id. 1 The objection fails because existing Supreme Court precedent does not require such a 2 finding, and the state court did not unreasonably refuse to extend precedent to this context. For 3 Mr. Alvarez-Calo to prevail, he would need to show ineffective assistance on either the future 4 homicide charges or the preexisting driving-related charges, but such a finding is not required on 5 these facts.7 6 1. The Homicide Charges 7 Where a defendant has no constitutional right to counsel, they cannot be deprived of the 8 effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587 (1982). The right to 9 counsel is “offense specific.” Texas v. Cobb, 532 U.S. 162, 167 (2001) (quoting McNeil v. 10 Wisconsin, 501 U.S. 171, 175 (1991)). It “does not attach until a prosecution is commenced.” 11 Rothgery v. Gillespie Cnty., 554 U.S. 191, 198 (2008) (quoting McNeil, 501 U.S. at 175 ); see 12 also id. (holding that a prosecution commences with “the initiation of adversary judicial criminal 13 proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or 14 arraignment.” (quoting United States v. Gouveia, 467 U.S. 180, 188 (1984))). 15 Here, when Mr. Alvarez-Calo was initially questioned by officers on February 22, a 16 prosecution of the homicide charges had not commenced—indeed, police did not yet know that 17 Mr. Alvarez-Calo would implicate himself. Thus, Mr. Alvarez-Calo did not have a constitutional [18] 19 7 The unusual facts of this case suggest a kind of gap in the Sixth Amendment, its shield neither broad enough (on the driving-related charges) nor applicable early enough (on the homicide charges) to offer any protection. Indigent defendants cannot afford an attorney to provide comprehensive representation, and under existing precedent, they 20 are not entitled to appointed counsel on cases for which the right to counsel has not attached. But defendants with sufficient financial means are able to retain attorneys to handle all matters that might pose a danger to the client, 21 without regard to the stage of the proceedings. A different model of the right to effective assistance might recognize this gap and provide a remedy to indigent defendants in this situation. See Johnson v. Zerbst, 304 U.S. 458 , 465 22 (1938) (“The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights . . . .”); Maples v. Thomas, 565 U.S. 266 , 283 [23] (2012) (holding in another context that a client cannot be faulted “for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him.”); see also Justin Marceau, Embracing a New Era of Ineffective Assistance of Counsel, 14 U. Pa. J. Const. L. 1161 (2012) (describing a “new—non-trial 24 oriented—conception of the right to counsel”). 1 right to counsel with respect to the homicide charges. Mr. Alvarez-Calo insists that his attorneys 2 for the driving charges “were unequivocally acting as his attorneys with respect to the homicide” 3 in arranging his contact with police. Dkt. No. 47 at 6 (emphasis added). But Mr. Alvarez-Calo 4 identifies no authority for this novel theory of “acting” counsel that would entitle him to an early 5 attachment of the Sixth Amendment right. 6 2. The Driving-Related Charges 7 There is no dispute that at the time Mr. Alvarez-Calo was questioned by officers, his 8 constitutional right to counsel had attached with respect to the pending driving-related charges in 9 Lakewood Municipal Court and Pierce County Superior Court: he was already formally charged 10 and detained on the charges. Dkt. No. 42-1 at 413, 415. The question, then, is whether his 11 attorneys failed to provide effective assistance with respect to those matters. 12 To show ineffective assistance, a defendant must first show that their counsel’s 13 performance was so deficient that it “fell below an objective standard of reasonableness.” 14 Strickland v. Washington, 466 U.S. 668, 686 (1984). Reasonableness is defined in terms of 15 “prevailing professional norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting 16 Strickland, 466 U.S. at 688 ). A defendant must also show that counsel’s deficient performance 17 resulted in prejudice: a “reasonable probability that, but for counsel’s unprofessional errors, the 18 result of the proceedings would have been different.” Strickland, 466 U.S. at 694 . Like the 19 Miranda custody rule, the ineffective assistance rule is a “general standard,” and thus “a state 20 court has even more latitude to reasonably determine that a defendant has not satisfied that 21 standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). 22 Here, Mr. Alvarez-Calo cannot demonstrate prejudice because he received the leniency 23 he sought in speaking to police: one pending matter was dismissed, and the other resolved with a 24 plea to a charge below the top count. Dkt. No. 42-1 at 415. As to the formal charges for which he 1 was actually represented by counsel, Mr. Alvarez-Calo received a favorable outcome. He cannot 2 demonstrate that, but for counsel’s alleged missteps in arranging contact with police, the result of 3 the Lakewood and Pierce County driving-related cases would have been different. Strickland, [4] 466 U.S. at 694 . The objection is OVERRULED. 5 C. Objection Three: Subsequent Statements to Police 6 Mr. Alvarez-Calo concedes that this objection “necessarily rises and falls with the 7 adjudication of whether or not [the] original interrogation was custodial.” Dkt. No. 47 at 11. As 8 detailed above, the state court was reasonable in concluding that Mr. Alvarez-Calo was not in 9 custody during the original interrogation. See supra, Section III.A. Therefore, it was reasonable 10 for the state court to also conclude that Mr. Alvarez-Calo’s subsequent statements should not be 11 suppressed. The objection is OVERRULED. 12 D. Objection Four: Improper Arguments by Prosecution 13 Mr. Alvarez-Calo argues that the state court unreasonably applied clearly established law 14 in concluding that the prosecution’s alleged misconduct during opening statements did not have 15 “substantial and injurious effect or influence in determining the jury’s verdict” thus resulting in 16 “actual prejudice.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see Dkt. No. 47 at 11–12. 17 Mr. Alvarez-Calo insists that the use of a “jigsaw puzzle analogy,” an assertion that he had been 18 “spin[ning] a story,” and references to drug use “were indeed so egregious that they impacted the 19 jury’s verdict and deprived him of due process under the law.” Id. 20 The objection fails because Mr. Alvarez-Calo does not show that these statements had a 21 “substantial and injurious effect” on the jury’s verdict. Brecht, 507 U.S. at 637 ; see also Darden 22 v. Wainwright, 477 U.S. 168, 181 (1986) (“The relevant question is whether the prosecutors’ 23 comments ‘so infected the trial with unfairness as to make the resulting conviction a denial of 24 due process.’” (quoting Donnelly v. DeChristoforo, 416 U.S. 637 , 642–43 (1974))). As the 1 magistrate judge noted, the trial judge immediately addressed the “spin[ning] a story” and drug 2 use comments with the jury (Dtk. No. 42-1 at 454–57), and “[a] jury is presumed to follow its 3 instructions.”8 Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing Richardson v. Marsh, 481 4 U.S. 200, 211 (1987)); accord Samia v. United States, 143 S. Ct. 2004 , 2013 (2023) (observing 5 “the law’s broader assumption that jurors can be relied upon to follow the trial judge’s 6 instructions”). Further, Mr. Alvarez-Calo has not demonstrated how the jigsaw puzzle analogy 7 could have substantially and injuriously affected the jury’s verdict. In the context of the entire 8 trial, it was reasonable for the state court to conclude that the prosecution’s statements did not 9 deprive Mr. Alvarez-Calo of due process. See Boyde v. California, 494 U.S. 370 , 384–85 (1990); 10 Greer v. Miller, 483 U.S. 756, 765 (1987). And this is not the “unusual case” where the 11 prosecution’s actions “so infect[ed] the integrity of the proceeding” as to warrant relief without a 12 showing of effect on the jury’s verdict. Brecht, 507 U.S. at 639 n.9. The objection is OVERRULED. 13 E. Objection Five: Ineffective Assistance of Counsel in Failure to Object 14 Mr. Alvarez-Calo argues that the state court unreasonably applied clearly established law 15 in concluding that his counsel’s failure to object to testimony that he was bailed out of jail did 16 not constitute ineffective assistance of counsel. See Dkt. No. 47 at 12–15. He argues that 17 avoiding attention to a harmful and improper statement is “not a valid strategic reason” to 18 withhold an objection (id. at 13–14), nor is the belief that the objection will be overruled “cause” 19 to withhold it (id. at 14). Mr. Alvarez-Calo further argues that “[t]here was a lot of room left for 20 the jury” to speculate as to the nature of the offense for which he was jailed. Id. [22] 8 Mr. Alvarez-Calo argues that “requiring [him] to prove that the jury disregarded the instruction is an unreasonable demand . . . particularly given the serious nature of the violations committed by the prosecutor.” Dkt. No. 47 at 12; [23] see also Dkt. No. 42 at 47 (calling this “an undue and indeed largely unsurmountable burden on a defendant”). Whatever the merits of this critique, the Court is bound by Supreme Court precedent and the stringent standard of 24 habeas review. 1 Mr. Alvarez-Calo’s objection fails because he cannot demonstrate either deficient 2 performance or prejudice under Strickland. See supra, Section III.B. As the magistrate judge 3 noted, counsel’s failure to object may have been a reasonable tactical decision designed to avoid 4 attention to the harmful statement. See Strickland, 466 U.S. at 689 (“[A] court must indulge a 5 strong presumption that counsel’s conduct falls within the wide range of reasonable professional 6 assistance; that is, the defendant must overcome the presumption that, under the circumstances, 7 the challenged action ‘might be considered sound trial strategy.’” (quoting Michel v. Louisiana, [8] 350 U.S. 91, 101 (1955))). Further, even if counsel’s performance was deficient, Mr. Alvarez9 Calo does not demonstrate that, but for the testimony, “the result of the proceeding would have 10 been different.” Strickland, 466 U.S. at 694 . And because the Strickland standard is a general 11 rule, the state court had “even more latitude to reasonably determine that a defendant has not 12 satisfied that standard.” Knowles, 556 U.S. at 123 . The objection is OVERRULED. 13 F. Objection Six: Evidentiary Hearing and Certificate of Appealability 14 Finally, Mr. Alvarez-Calo objects to the magistrate judge’s denial of an evidentiary 15 hearing and a certificate of appealability. Dkt. No. 47 at 15–16. He argues that an evidentiary 16 hearing would assist the Court in assessing various issues in this matter, including the “true 17 totality of the circumstances” of his interrogation, his attorneys’ performance, and his own 18 “intellectual and linguistic shortcomings.” Id. at 15. But see supra n.5. Mr. Alvarez-Calo also 19 argues that a certificate of appealability is due because “jurists of reason” could disagree on 20 “several of the issues,” including Miranda custody and ineffective assistance. Id. at 16. 21 Mr. Alvarez-Calo’s objection fails. Because Mr. Alvarez-Calo does not proffer evidence 22 that would entitle him to relief, and because the state record “otherwise precludes habeas relief,” 23 the Court “is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465 , 24 474 (2007). And while jurists of reason might disagree on some of the issues as matters of first 1 impression, they would not disagree that the state court was reasonable in its application of 2 clearly established law, nor would they conclude that “the issues presented are adequate to 3 deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). 4 IV. CONCLUSION 5 Accordingly, the Court ADOPTS the Report and Recommendation (Dkt. No. 46) and 6 OVERRULES Mr. Alvarez-Calo’s objections (Dkt. No. 47). 7 Dated this 1st day of August 2023. [8] A [9] Tana Lin United States District Judge