Alcarez-Guerrero v. Ryan et al

Filing 23

ORDER ADOPTING 18 Report and Recommendation. Petitioners § 2254 Petition (Doc. 1) is denied and this case is dismissed with prejudice; A Certificate of Appealability is denied and shall not issue; and The Clerk of the Court shall enter judgment accordingly and close the file in this matter. Signed by Judge Jennifer G Zipps on 10/1/13. (SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Noel Alcarez-Guerrero,

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Petitioner,

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ORDER

vs.

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No. CV-10-750-TUC-JGZ (JR)

Charles L. Ryan, et al.,

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Respondents.

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Pending before the Court is a Report and Recommendation issued by United

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States Magistrate Judge Jacqueline Rateau that recommends denying Petitioner’s habeas

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petition filed pursuant to 28 U.S.C. § 2254. (Doc. 18.) As thoroughly explained by

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Magistrate Judge Rateau, Petitioner is not entitled to relief as the claims raised in his

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petition were not properly exhausted and/or are without merit. As Petitioner’s objections

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do not undermine the analysis and proper conclusion reached by Magistrate Judge

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Rateau, Petitioner’s objections are rejected and the Report and Recommendation is

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adopted.1
ANALYSIS

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Petitioner objects to the Report and Recommendation on three grounds: (1) the

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Court should consider his procedurally defaulted Claim 4 because Petitioner is actually

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innocent; (2) 28 U.S.C. § 2254 (“AEDPA”) is unconstitutional; (3) the Magistrate erred
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The Court reviews de novo the objected-to portions of the Report and
Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court reviews for clear error
the unobjected-to portions of the Report and Recommendation. Johnson v. Zema Systems Corp.,
170 F.3d 734, 739 (7th Cir. 1999); see also Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or.
1998).

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in denying Petitioner’s Claims 1, 2, 3 and 5 on the merits.

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The Court declines to consider Petitioner’s actual innocence claim

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Petitioner contends that the Court should consider his procedurally defaulted

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Claim 4 because he is actually innocent. (Doc. 21, pg. 4.) Petitioner did not present this

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claim at any time in these proceedings prior to filing his Objection. The Court has

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discretion, but is not required, to consider evidence presented for the first time in a party's

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objection to a magistrate judge's recommendation. Brown v. Roe, 279 F.3d 742, 744 (9th

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Cir. 2002). The Court declines to exercise its discretion to consider Petitioner’s actual

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innocence claim. First, the claim is merely conclusory; Petitioner alleges only that he “is

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innocent of first degree murder.” Conclusory allegations are not sufficient to support

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habeas relief. See Jones v. Gomez, 66 F.3d 199, 204-05 (9th Cir. 1995). In addition,

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Petitioner has failed to explain his failure to raise the actual innocence claim in his

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Petition, or in a reply to Respondents’ Answer.2 See United States v. Howell, 231 F.3d

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615, 623 (9th Cir. 2000) (district court does not abuse its discretion in declining to

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consider new arguments raised in objection to report and recommendation which were

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available to counsel before the magistrate’s proceedings began).
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Petitioner’s Objection does not allege why Petitioner believes AEDPA to be

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AEDPA is constitutional

unconstitutional.

In his Petition, Petitioner argued that AEDPA unconstitutionally

suspends the writ of habeas corpus and violates the separation of powers doctrine. These
arguments are foreclosed by Crater v. Galaza, 491 F.3d 1119, 1129 (9th Cir. 2007).
3.

The Magistrate Judge correctly concluded that Claims 1, 2, 3 and 5 are
without merit
a.

Claim 1

In Claim 1, Petitioner alleges that his natural life sentence was inconsistent with
the Supreme Court’s decision in Cunningham v. California, 549 U.S. 270, 288-89 (2007)

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Petitioner did not file a reply to Respondents’ Answer.

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and Alleyne v. United States, 133 S.Ct. 2151 (2013).

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In Cunningham, the Supreme Court held that California’s determinate sentencing

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law violated Apprendi v. New Jersey, 530 U.S. 466 (2000), because it gave trial judges

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the authority to impose an upper term sentence based on aggravating circumstances

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without submitting the aggravating factors to the jury for factual finding. According to

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Petitioner, the trial court sentenced him to natural life after considering several

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aggravating factors that had not been found by the jury. However, unlike California’s

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determinate sentencing law, Arizona’s first-degree murder statute does not create tiers of

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punishment, requiring that an aggravating circumstance be found before a natural life

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sentence is imposed.

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discretion to sentence an offender within a range—from life to natural life—for non-

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capital first degree murder.” See State v. Fell, 115 P.3d 594, 598 (Ariz. 2005). As such,

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it is in line with Apprendi and its progeny. See Apprendi, 530 U.S. at 481 (“we should be

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clear that nothing in this history suggests that it is impermissible for judges to exercise

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discretion – taking into consideration various factors relating both to offense and offender

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Instead, Arizona law “provides the superior court with the

– in imposing a judgment within the range prescribed by statute.”)
Similarly, Alleyne holds that “facts that increase mandatory minimum sentences
must be submitted to the jury.” 133 S.Ct at 2163. The Alleyne court specifically stated
that “our ruling today does not mean that any fact that influences judicial discretion must
be found by a jury” and reaffirmed Apprendi’s conclusion that judges may exercise
discretion in imposing a judgment within the range prescribed by statute.

Id.

Accordingly, the Court concludes that Claim 1 is without merit.
b.

Claim 2

In Claim 2, Petitioner argues that his state court conviction was not supported by
sufficient evidence and that the state court’s decision rejecting that argument was based
on an unreasonable determination of the facts in light of the evidence presented.
According to Petitioner, the state failed to present forensic evidence connecting Petitioner

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to the victim’s death. However, as the state court and the Magistrate Judge noted,3 the

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jury was presented with ample evidence to support Petitioner’s conviction under either a

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felony murder or accomplice theory of liability: Petitioner admitted to police that he was

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angry with the victim; he took the victim to the residence where the victim was beaten,

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knowing the victim’s death was planned; he slapped the victim; he spontaneously denied

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choking or kicking the victim before police disclosed that the victim had died of

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strangulation and suffered broken ribs; a co-defendant offered to pay Petitioner with

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money or dope if Petitioner would kill the victim; and the co-defendant stated to

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Petitioner “I knew you would do this for me.” (Doc. 13, Ex. R, pg. 3; 13-4, Ex. H, pgs.

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41-42). Accordingly, Claim 2 is without merit.

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c.

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In Claim 3, Petitioner argues that his counsel was ineffective for failing to seek a

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change of venue based on the publicity the murder received. The Court disagrees.

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Pursuant to the Sixth Amendment of the United States Constitution, a criminal defendant

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has a right to “effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668,

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686 (1984).

Claim 3

A defendant must first demonstrate that counsel's performance was

deficient, i.e., that counsel made errors so serious that counsel was not functioning as the
“counsel” guaranteed a defendant by the Sixth Amendment and counsel's conduct “fell
below an objective standard of reasonableness.” 466 U.S. at 687. Second, a defendant
must show that the mistakes made were "prejudicial to the defense," that is, the mistakes
created a "reasonable probability that, but for [the] unprofessional errors, the result of the
proceeding would have been different.” 466 U.S. at 694. Counsel's performance is
strongly presumed to fall within the ambit of reasonable conduct unless Movant can show
otherwise. Id. at 689-90.
Petitioner has failed to demonstrate that his trial counsel was objectively
unreasonable in failing to request a change of venue. Due process requires that the trial

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Petitioner’s claim that the Magistrate Judge did not discuss the sufficiency of the
evidence (Doc. 21, pg. 10) is inaccurate. (Doc. 18, pg. 18.)

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court grant a defendant's motion for a change of venue when the trial court is unable to

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seat an impartial jury because of prejudicial pretrial publicity or an inflamed community

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atmosphere. See Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir. 1988). A motion for

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change of venue must be supported by evidence of presumed or actual prejudice.

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Ainsworth v. Calderon, 138 F.3d 787, 796 (9th Cir. 1998). Prejudice is presumed when

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the record demonstrates that the community where the trial was held was saturated with

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prejudicial and inflammatory media publicity about the crime. Id. Prejudice is rarely

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presumed because “saturation” defines conditions found only in “extreme” situations. Id.

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To establish actual prejudice, the defendant must demonstrate that the jurors exhibited

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actual partiality or hostility that could not be laid aside. Id. Petitioner has failed to

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demonstrate that media coverage of the murder for which he was convicted was

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“extreme” or that any jurors exhibited actual partiality or hostility. The media coverage

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that Petitioner highlights in his petition is largely factual and does not rise to the level of

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extreme publicity that effectively “corrupts” the trial. See Skilling v. United States, 130

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S. Ct. 2896, 2915 (2010). Accordingly, Petitioner’s trial counsel was not deficient for

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failing to file a motion for change of venue. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th
Cir. 1996) (failure to take futile action can never be deficient performance).
d.

Claim 5

In Claim 5, Petitioner argues that his trial counsel was ineffective in failing to
present mitigating evidence at sentencing. Petitioner cannot establish that the Arizona
Court of Appeals’ ruling on this claim was contrary to, or an unreasonable application of,
clearly-established Supreme Court precedent; “there is no clearly established federal law
as determined by the Supreme Court” regarding the standard for ineffective assistance of
counsel in noncapital sentencing cases. See Cooper-Smith v. Palmateer, 397 F.3d 1236,
1244 (9th Cir. 2005). When the Supreme Court established the test for ineffective
assistance of counsel claims in Strickland, the Court expressly declined to “consider the
role of counsel in an ordinary sentencing, which ... may require a different approach to
the definition of constitutionally effective assistance.” Id. Since Strickland, the Supreme

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Court has not decided what standard should apply to ineffective assistance of counsel

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claims in the noncapital sentencing context.4 See id. Consequently, there is no clearly

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established law in this context, and Petitioner is not entitled to habeas relief under 28

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U.S.C. § 2254(d)(1) with respect to Claim 5.

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The Court will not grant a certificate of appealability

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Before Petitioner can appeal this Court's judgment, a certificate of appealability

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must issue. See 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b)(1). Federal Rule of

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Appellate Procedure 22(b) requires the district court that rendered a judgment denying

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the petition made pursuant to 28 U.S.C. § 2254 to "either issue a certificate of

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appealability or state why a certificate should not issue." Additionally, 28 U.S.C. §

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2253(c)(2) provides that a certificate may issue "only if the applicant has made a

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substantial showing of the denial of a constitutional right." In the certificate, the court

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must indicate which specific issues satisfy this showing. See 28 U.S.C. § 2253(c)(3). A

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substantial showing is made when the resolution of an issue of appeal is debatable among

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reasonable jurists, if courts could resolve the issues differently, or if the issue deserves

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further proceedings. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Upon review
of the record in light of the standards for granting a certificate of appealability, the Court
concludes that a certificate shall not issue as the resolution of the petition is not debatable
among reasonable jurists and does not deserve further proceedings.
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The Court disagrees with the Magistrate Judge’s characterization of Lafler v.
Cooper, 132 S.Ct. 1376 (2012) as holding that Strickland applies in the context of an

attorney’s conduct at sentencing. (Doc. 18, pg. 23.) Lafler addresses alleged ineffective
assistance of counsel during the plea bargaining process. In addition, as the Magistrate
Judge correctly noted, Lafler is not retroactively applied. See Buenrostro v. United
States, 697 F.3d 1137 (9th Cir. 2012).
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Accordingly, IT IS HEREBY ORDERED as follows:

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(1) The Report and Recommendation (Doc. 18) is accepted and adopted;

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(2) Petitioner’s § 2254 Amended Petition (Doc. 1) is denied and this case is

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dismissed with prejudice;

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(3) A Certificate of Appealability is denied and shall not issue; and

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(4) The Clerk of the Court shall enter judgment accordingly and close the file in

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this matter.
Dated this 1st day of October, 2013.

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