Alex Carreon v. David Long

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALEX CARREON, No. 14-55524
Petitioner - Appellant, D.C. No. 5:13-cv-00702-JVS-JPR
v.
MEMORANDUM*
DAVID B. LONG,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted April 9, 2015**
Pasadena, California
Before: SILVERMAN and BEA, Circuit Judges and QUIST,*** Senior District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
Petitioner Alex Carreon was convicted by a jury in California state court of
assault with intent to commit rape, forcible sexual penetration with a foreign
object, and assault with force to produce great bodily injury. He appeals the
district court’s decision to deny his petition for writ of habeas corpus. We have
jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm.
Carreon argues the delay between his arrest and trial violated his right to a
speedy trial under the Sixth Amendment. We balance four factors to evaluate a
Sixth Amendment speedy trial claim: “(1) the length of the delay; (2) the reason for
the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the
prejudice to the defendant.” United States v. Gregory, 322 F.3d 1157, 1161 (9th
Cir. 2003) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). In applying this
standard, the California Court of Appeal measured the delay as the time between
the second felony complaint and Carreon’s trial. That decision was “an
unreasonable application of [] clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The Supreme Court
has held the time between a defendant’s arrest until his trial is the relevant time
period, even when the initial charging document is dismissed. See United States v.
Loud Hawk, 474 U.S. 302, 314 (1986) (evaluating the entire 90-month delay
between the defendants’ arrests until trial even though the district court dismissed,
2
and the government re-filed, multiple indictments throughout the case). Because
the California Court of Appeal unreasonably applied Federal law, we review
Carreon’s Sixth Amendment speedy trial claim de novo. See Castellanos v. Small,
766 F.3d 1137, 1146 (9th Cir. 2014) (“If the state court applies a legal standard
that contradicts clearly established federal law, we review de novo the applicant’s
claims, applying the correct legal standard to determine whether the applicant is
entitled to relief.”).
Carreon’s claim fails under de novo review. The first factor “is a threshold
issue,” and triggers an inquiry into the remaining factors if the delay is longer than
one year. Gregory, 322 F.3d at 1161–62. Because the delay between Carreon’s
arrest and his trial was more than one year, we evaluate the other three factors.
First, the “reason for the delay” is the “focal inquiry” of the analysis. United
States v. King, 483 F.3d 969, 976 (9th Cir. 2007). Almost all the delay in this case
was attributable to Carreon’s requested continuances, the government’s requested
continuances in which Carreon acquiesced, Carreon’s interlocutory appeal, and the
government’s continuances due to unavailable witnesses. These delays do not
weigh in favor of Carreon’s claim. See Loud Hawk, 474 U.S. at 316–17; Barker,
407 U.S. at 531; United States v. Drake, 543 F.3d 1080, 1085–86 (9th Cir. 2008).
3
Second, Carreon asserted his right to a speedy trial, but he requested
continuances and acquiesced in the government’s requested continuances after that
assertion. Those continuances undermined his assertion of the right. See King,
483 F.3d at 976.
Third, the record shows the California Court of Appeal was correct to find
that Carreon did not demonstrate prejudice due to the delay. It was Carreon’s lack
of diligence in staying in touch with the witness Joanna Osuna—and not the delay
itself—that caused her absence. See United States v. Guerrero, 756 F.2d 1342,
1350 (9th Cir. 1984). Carreon’s trial commenced on August 18, 2010. The
defense’s investigator first contacted Osuna, a security guard, in September 2009.
Osuna told the investigator she was willing to speak with him but first needed her
employer’s permission and would contact the investigator once she obtained it. At
that time, the investigator knew Osuna’s address and her employer’s address, but
did not serve her a subpoena or otherwise attempt to procure her testimony. The
investigator did not attempt to contact Osuna again until weeks before trial almost
a year later, in August 2010. At that point, the investigator learned Osuna had
moved on from her last known address and job about ten months before. The
investigator then served a subpoena on Osuna’s former employer to obtain Osuna’s
contact information, but the compliance date on the subpoena was August 30,
4
2010. Despite the subpoena return date, Carreon declared he was ready for trial on
July 30 and August 12 and the court set trial for August 16. Then, on August 16,
Carreon filed his motion to dismiss based on a violation of his Sixth Amendment
speedy trial right, relying primarily on his inability to locate Osuna as the alleged
prejudice.
Our dissenting colleague would excuse defense counsel’s lack of diligence.
Ninth Circuit precedent forecloses that position. We have held there must be a
“causal relationship between the delay and the unavailability” of the missing
witnesses. Guerrero, 756 F.2d at 1350; see also Gregory, 322 F.3d at 1163 (“The
prejudice with which we are concerned is prejudice caused by the delay that
triggered the Barker inquiry, not simply any prejudice that may have occurred
before the trial date but unrelated to the fact of the delay itself.”). Guerrero
involved a 31-month delay in bringing the defendant to trial, and the defendant
argued that the delay prejudiced him because he could not locate two witnesses.
Guerrero, 756 F.2d at 1349–50. We found it was the defendant’s lack of diligence,
and not the delay that caused the witnesses’ absence:
Although the defense knew as early as July 1980 that these witnesses
would be helpful in establishing an alibi defense, it made no attempt
to keep in touch with them. The defense did not have these witnesses
under subpoena and did not attempt to locate them until July 1982,
even though it was aware of the probability of having to defend
5
against these charges. Thus, we cannot find that the delay was the
cause of the loss of these witnesses.
Id. at 1350. The same can be said of the defense in this case. California law
authorizes defendants to subpoena a witness to procure her attendance at trial1 and
to take a witness’s deposition if the defense is concerned the witness will not be
able to attend trial. See Cal. Penal Code §§ 1326(a), 1336(a). But Carreon’s
counsel did not take advantage of either of these methods to ensure that the jury
would hear Osuna’s testimony. Further, the investigator did not start looking for
Osuna until weeks before trial. Defense counsel compounded the harm caused by
his lack of diligence by announcing he was ready for trial despite knowing it was a
matter of weeks before he would obtain Osuna’s contact information. And nothing
in the record suggests the trial court would have denied defense counsel a further
continuance based on Osuna’s unavailability had the defense so moved. Indeed,
the trial court had granted the government several continuances due to unavailable
witnesses. As a result, the delay did not cause Osuna’s absence. See Guerrero,
756 F.2d at 1350.
Carreon may have a claim for ineffective assistance of counsel due to the
defense counsel’s conduct, but he does not have a claim under the Speedy Trial
1
A witness can be subpoenaed to be “on-call” for a period of time. See
People v. Perez, 207 Cal. App. 3d 431, 436–37 (Ct. App. 1989).
6
Clause of the Sixth Amendment. Because the Barker factors weigh against
Carreon’s claim, the California Court of Appeal was correct to find Carreon’s
Sixth Amendment right to a speedy trial was not violated.
AFFIRMED.
7
FILED
Carreon v. Long, 14-55524 MAY 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
QUIST, Senior District Judge, concurring:
I agree that Carreon’s petition should be denied for all of the reasons stated
in the principal Memorandum. I, respectfully, write separately to explain why I
believe that Carreon has not demonstrated prejudice resulting from Osuna’s
absence.
As suggested by the dissent, this case boiled down to the issue of consent.
The victim claimed that, as a result of heavy drinking, she was in and out of
consciousness during the night in question. She remembered that she regained
consciousness on someone’s lawn, that Carreon choked her, and that she told him
she would not tell what happened if he let her live. The nurse who examined the
victim testified that
[the victim] not only had lots of scrapes and abrasions on both sides of her
neck, on her breasts, her backside, her knees, and legs, she also had red
raised bumps on her face that were consistent with her claim that [Carreon]
had strangled her. [The victim] also had what appeared to be bite marks on
her abdomen and left elbow. In addition, . . . [the victim] had multiple
lacerations to her genitalia, and a very large red contusion and an avulsion
(torn skin that is hanging by a thread) on her anus.
People v. Carreon, No. E052856, 2012 WL 5992736, at *5 (Cal. Ct. App. Nov. 29,
2012).
In contrast, Carreon told police that he and the victim had “a consensual
sexual encounter”that began in his car, and that he eventually dragged the victim
onto the grass, where she took off her clothes. Id. at *1. He denied that they had
intercourse. Id. Carreon denied that the victim had resisted or that he had choked
her. Id. At trial, Carreon provided testimony from an expert witness who testified
that the victim’s injuries were consistent with a consensual sexual encounter. Id.
Contrary to the assertion by our dissenting colleague, Osuna’s statement to
the police does not indicate that she would have provided “highly exculpatory
testimony.” Osuna told the police that, while she was driving as part of her patrol
duties, she saw a clothed male lying on top of an unclothed female in a yard and
she assumed they were having sex. Assuming that Osuna would have testified
consistently with that statement, the testimony would have demonstrated only that
the victim was not visibly struggling against Carreon at the moment that Osuna
drove past. That is a far cry from demonstrating consent by an intoxicated woman
who, according to Carreon, had to be “dragged” out of a vehicle and showed
evidence of severe battery. Moreover, Osuna’s statement to the police did not
contradict anything in the victim’s description of the events. In short, it is difficult
to imagine how someone with a brief drive-by view of a portion of the encounter
could provide testimony that would give the jury any insight into the issue of
consent.
Finally, I offer no opinion regarding a claim based on ineffective assistance
of counsel, as that issue is not before us.
2
FILED
Carreon v. Long, 14-55524 MAY 13 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SILVERMAN, Circuit Judge, dissenting:
It is not in every rape case with a consent defense that there is an
independent eyewitness who happens upon the defendant and the alleged victim
having sexual intercourse. We see cases where biased friends of the defendant
(such as fraternity brothers) testify to observing their friend and the alleged victim
having supposedly consensual sex. We see cases in which independent witnesses
testify to the alleged victim’s conduct before and after the sexual encounter, but
not during the sexual encounter itself.
This case is unusual. A totally independent witness – a security guard
making her rounds – told police that she came upon the defendant and the alleged
victim having what appeared to be consensual sexual relations on the lawn of the
property she was patrolling. Even if the security guard’s observations would not
conclusively establish innocence, if you’re a defendant charged with rape and
consent is your defense, that’s about as good as it gets.
The problem is that during the 864 days during which petitioner was
-2-
incarcerated while awaiting trial, the security guard moved away and left no
forwarding address. The majority agrees that the 864 days in which petitioner was
incarcerated while awaiting trial was excessive for speedy trial purposes, but holds
that there was no Sixth Amendment speedy trial violation, mainly because
petitioner was not prejudiced by the delay. And that’s because, the majority says,
it was counsel’s lack of diligence – not the delay itself – that caused the loss of this
crucial witness.
Counsel should have “stay[ed] in touch” with the witness, the majority says,
but it is not clear exactly what he should have done. Periodically called her on the
phone? Sent her cards? Kept her under surveillance for over two years? Unless
counsel drove by her home and actually caught her in the act of packing up her car,
counsel’s attempts to “stay[] in touch” with the witness at most would have
hastened the discovery that she had disappeared. The majority says that counsel
should have subpoenaed her. Subpoenaed her to what? There was no firm trial
date until nearly two-and-a-half years after petitioner’s arrest, and by that time, the
witness had moved and left no address. And even if the witness had been
subpoenaed early on to some phantom trial date, what would have kept her from
disappearing just as she did? A subpoena is not a writ of ne exeat. If counsel had
-3-
known that the witness was planning to move, he could have made efforts to
depose her, but who knew? There is nothing in the record suggesting that counsel
should have known that the witness was going to up and leave.
The majority relies heavily on United States v. Guerrero, 756 F.2d 1342 (9th
Cir. 1984), but there is a big difference between what happened in that case and
ours. In our case, the investigator hired by the defendant’s lawyers contacted the
prospective witness, the security guard, well before she would be needed in court.
Then, unbeknownst to anyone, the witness moved away and left no address. In
Guerrero, although the defense knew about the existence of possible alibi
witnesses as early as July 1980, it “did not attempt to locate them until July 1982,
even though it was aware of the probability of having to defend against these
charges.” That is why we held that Guerrero failed to show any causal connection
between the delay and the loss of the witnesses – they didn’t even look for alibi
witness for two years. Id. at 1350.
And speaking of diligence, how does any possible shortcoming of defense
counsel absolve the Riverside County Superior Court and the district attorney of
their obligations to take care that a defendant is tried in a timely manner?
-4-
The bottom line is this: In most speedy trial violations, the pre-trial delay
thankfully causes no harm, but that’s not the case here. By the time this case
finally wound its way to trial nearly two-and-a-half years after petitioner’s arrest,
an independent witness who could have provided highly exculpatory testimony had
moved away and couldn’t be found. This is exactly the sort of prejudice that the
right to a speedy trial is designed to prevent. As the Supreme Court said in Barker
v. Wingo, 407 U.S. 514, 532 (1972), “the inability of a defendant adequately to
prepare his case skews the fairness of the entire system. If witnesses die or
disappear during a delay, the prejudice is obvious.”
Because habeas relief should have been granted, I respectfully dissent.