Caballero v. Ryan

          REPORT AND RECOMMENDATION

          HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE

         Currently pending before the Court is Petitioner Victor M. Caballero's Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Amended Petition”) (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 11), and Petitioner replied (Doc. 20). The Petition is ripe for adjudication.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, ^[1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Initial Charge and Sentencing

         The Arizona Court of Appeals stated the facts^[2] as follows:

In August 2010, a patrol officer noticed a car with its license plate light out and pulled it over. The driver identified himself as Caballero. The officer could smell alcohol, and Caballero told the officer he had one beer. The officer asked Caballero to get out of the car and noticed that his speech was slurred. An assisting officer observed that Caballero had glassy eyes and was swaying; further, he saw cold, open beers in the car. Another officer conducted a horizontal gaze nystagmus (HGN) test on Caballero and noted four out of six possible cues, but Caballero refused other field sobriety tests. Caballero was arrested, and blood tests revealed cocaine and its metabolite, as well as a blood alcohol content of .027. He was charged with two counts of aggravated driving under the influence of alcohol and two counts of aggravated driving with an illegal drug in his body.^[1]

Caballero failed to appear at his first trial, and a mistrial was declared. The second trial proceeded in absentia.

^[1] The charges were aggravated because Caballero's license was suspended and revoked and because he had two convictions for driving under the influence within the last seven years. See A.R.S. § 28-1383(A)(1), (2).

Answer (Doc. 11), Ariz. Ct. of Appeals, Case No. 2 CA-CR 2014-0055, Mem. Decision 10/21/2014 (Exh. “I”) (Doc. 12) at 98-99.^[3]

         Following a jury trial, Defendant Victor M. Caballero was “acquitted [] on the two counts of aggravated driving under the influence of alcohol but found him guilty on the remaining counts.” Id., Exh. “I” at 99. On January 22, 2014, Petitioner was sentenced to a presumptive term of ten (10) years imprisonment. See Answer (Doc. 11), Ariz. Superior Ct., Pima County, Case No. CR20114143-001, Minute Entry 1/22/2014 (Exh. “D”) (Doc. 12) at 16 & Hr'g Tr. 1/22/2014 (Exh. “U”) (Doc. 18) at 12.

         B. Direct Appeal

         On January 31, 2014, counsel for Petitioner filed a Notice of Appeal from the judgment and sentence. See Answer (Doc. 11), Ariz. Superior Ct., Pima County, Case No. CR20114143-001, Def.'s Not. of Appeal 1/31/2014 (Exh. “E”) (Doc. 12). On June 13, 2014, counsel for Petitioner filed an Opening Brief asserting three (3) issues for review. See Answer (Doc. 11), Ariz. Ct. of Appeals, Case No. 2 CA-CR 2014-0055, Appellant's Opening Br. 6/13/2014 (Exh. “F”) (Doc. 12). Petitioner's issues included whether 1) the trial court erred in denying Caballero's motion to suppress his blood test results and other evidence based on the violation of his right to counsel; 2) the blood test results should have been suppressed for lack of foundation and a flawed chain of custody; and 3) the trial court abused its discretion by imposing a presumptive 10-year prison sentence based upon an improper aggravating factor. Id., Exh. “F” (Doc. 12) at 30. On October 21, 2014, the Arizona Court of Appeals affirmed Petitioner's conviction. Answer (Doc. 11), Ariz.Ct.App., Case No. 2 CA-CR 2014-0055, Memorandum Decision 10/21/2014 (Exh. “I”) (Doc. 12).

         The court of appeals first considered the trial court's denial of Petitioner's motion to suppress his blood test results based on an alleged denial of an opportunity to consult with an attorney prior to admission of the test. Id., Exh. “I” at 99-102. The appellate court noted that Arizona law requires it to defer “to the trial court's determinations of witness credibility.” Id., Exh. “I” at 100 (citing State v. Gerlaugh, 134 Ariz. 164, 167, 654 P.2d 800, 803 (Ariz. 1982)). The appellate court reviewed the trial testimony of Petitioner and Officer Honomichl and found that “[a]ny dispute between the witnesses about whether Caballero actually had his attorney's phone number or was offered a phone book was resolved by the trial court, and we will not disturb that finding.” Id., Exh. “I” at 100-101 (citing State v. Olquin, 216 Ariz. 250, ¶ 10, 165 P.3d 228, 230 (Ariz.Ct.App. 2007)). The appellate court also noted that Petitioner's argument that “any waiver of the right to counsel was not ‘voluntary, knowing, and intelligent[]'” was raised for the first time on appeal and Petitioner did not argue that fundamental error had occurred, thereby waiving the issue. Id., Exh. “I” at 101 n. 5. Finally, the appellate court considered Petitioner's argument that under Arizona law, Officer Honomichl's failure to offer privacy violated Petitioner's right to private consultation with counsel. Answer (Doc. 11), Exh. “I” (Doc. 12) at 102 (citing State v. Holland, 147 Ariz. 453, 455-56, 711 P.2d 592, 594-95 (Ariz. 1985)). The appellate court noted that after consideration of the witnesses' testimony, “[t]he trial court concluded the need for privacy never arose, ” and deferred to the trial court's factual finding, which was supported by the record and not clearly erroneous. Id., Exh. “I” at 102 (citing State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (Ariz.Ct.App. 2000)).

         The court of appeals next considered Petitioner's argument that the trial court erred in denying his motion in limine to preclude the use of blood test results based upon a lack of foundation due to the State's failure to call the first person who tested Petitioner's blood thereby creating a break in the chain of custody. Id., Exh. “I” at 102- 03. The appellate court considered the sufficiency of the evidentiary foundation pursuant to Rule 901(a), Arizona Rules of Evidence. Id., Exh. “I” at 102. Petitioner's argument was based upon the first Tucson Police Department criminalist who broke the evidence seals to perform tests having retired and did not testify at trial. Id., Exh. “I” at 102-03. The appellate court noted that Petitioner did not suggest that the first criminalist tampered with the blood or failed to follow protocol. Answer (Doc. 11), Exh. “I” (Doc. 12) at 103. Moreover, the criminalist who had retested the blood and did testify explained the laboratory procedures and that the blood sample was properly resealed when she received it. Id., Exh. “I” at 102-03. As such, the appellate court found that “[t]he trial court did not abuse its discretion in admitting the blood test results.” Id., Exh. “I” at 103 (first citing State v. Hurles, 185 Ariz. 199, 206-07, 914 P.2d 1291, 1298-99 (Ariz. 1996); then citing State v. McCray, 218 Ariz. 252, ¶¶ 8-15, 183 P.3d 503, 507-08 (Ariz. 2008)).

         Regarding Petitioner's presumptive sentence and contrary to Petitioner's contention that the trial court improperly considered is addiction issues as an aggravating circumstance, the appellate court noted that the trial court “never stated that it had considered addiction itself to be an aggravating factor; [and] it did not list any aggravating factors at all.” Id., Exh. “I” at 103-04. The appellate court further recognized that the trial “court's concern focused on Caballero's extensive criminal history, which included his alcohol-related crimes, and whether he was a danger to the community.” Id., Exh. “I” at 104. The appellate court explained that even when evidence is presented in support of mitigation, the trial court needs to consider it, but is not required to find mitigating factors and even if it does find aggravating and mitigating factors, it is not required to deviate from the presumptive sentence. Answer (Doc. 11), Exh. “I” (Doc. 12) at 104 (citing State v. Carbajal, 177 Ariz. 461, 463, 868 P.2d 1044, 1046 (Ariz.Ct.App. 1994); then citing State v. Risco, 147 Ariz. 607, 610, 712 P.2d 454, 457 (Ariz.Ct.App. 1985); and then citing A.R.S. § 13-703(G)). The appellate court held that the trial court did not identify any aggravating circumstances, and it “did not abuse its discretion in finding mitigating circumstances were insufficient to justify a sentence less than the presumptive term . . . or in considering Caballero's alcohol-related criminal history along with those circumstances.” Id., Exh. “I” at 103-04 (citations omitted). On November 20, 2014, Petitioner petitioned the Arizona Supreme Court for review. See Answer (Doc. 11), Arizona Supreme Court, Case No. CR-14-0389-PR, Pet.'s Pet. for Review 11/20/2014 (Exh. “J”) (Doc. 13). On May 27, 2015, the Arizona Supreme Court denied review. See Answer (Doc. 11), Arizona Supreme Court, Case No. CR-14-0389-PR, Memorandum 5/27/2015 (Exh. “K”) (Doc. 13). On August 6, 2015, the Arizona Court of Appeals issued its mandate. Answer (Doc. 11), Ariz. Ct. of Appeals, Case No. 2 CA-CR 2014-0055, Mandate 8/6/2015 (Exh. “L”) (Doc. 13).

         C. Post-Conviction Relief Proceeding

         On November 17, 2014, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 11), Ariz. Superior Ct., Pima County, Case No. CR2011-4143-001, Def.'s Not. of PCR 11/17/2014 (Exh. “M”) (Doc. 13). On August 7, 2015, the trial court appointed counsel to Petitioner for the Rule 32 proceeding. See Answer (Doc. 11), Ariz. Superior Ct., Pima County, Case No. CR20114143-001, Notice-In Chambers Notice (Exh. “N”) (Doc. 13). On June 9, 2016, counsel for Petitioner filed a Notice of No Colorable Claim. See Answer (Doc. 11), Ariz. Superior Ct., Pima County, Case No. CR20114143-001, Not. of No Colorable Claim (Exh. “O”) (Doc. 13). Pursuant to Montgomery v. Sheldon (I), ^[4] counsel stated that there were no viable issues appropriate for Rule 32 relief.^[5] See id., Exh. “O.”

         On June 10, 2016, the Rule 32 court entered its Order granting Petitioner until August 1, 2016 to file a pro se supplemental PCR petition. Answer (Doc. 11), Ariz. Superior Ct., Pima County, Case No. CR20114143-001, Order Setting Date for Filing of Pro Se Petition for PCR 6/10/2016 (Exh. “P”) (Doc. 13). Petitioner did not file a pro se PCR petition. See Answer (Doc. 11), Ariz. Superior Ct., Pima County, Case No. CR20114143-001, Order In Chambers Re: Rule 32 Petition 9/21/2016 (Exh. “Q”) (Doc. 13). Accordingly, the Rule 32 court dismissed Petitioner's PCR petition. Id. Petitioner did not appeal this ruling.

         D. The Instant Habeas Proceeding

         On August 9, 2016, Petitioner filed his Petition Pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Petitioner asserts three (3) grounds for relief. First, Petitioner alleges that “[t]he Arizona Court of Appeals and Arizona Supreme Court unreasonably determined the facts in light of the evidence presented in the suppression hearing regarding [Petitioner's] blood test results and other evidence based on his right to counsel under the Sixth Amendment to the United States Constitution.” Id. at 6 (citations omitted). Petitioner asserts that “the police interfered with his right to counsel in the police investigation stage.” Id. at 7. Second, Petitioner asserts that “[t]he Arizona courts unreasonably determined the facts in light of the evidence presented and based rulings on the misinterpreted facts and law regarding the motion in limine to preclude the use of the blood tests results [sic][;] thereby violating [Petitioner's] Fourteenth Amendment right to due process [and] Sixth Amendment right to a fair trial.” Id. at 8. Petitioner further asserts that he “had Federal Constitutional rights to confront Conley[, the first criminologist to test Petitioner's blood samples, ] about what she did to the blood evidence or to have the blood evidence excluded, as well as the right to know if she corrupted the blood evidence and how.” Id. at 8-9. Third, Petitioner claims that he “was denied due process of law under the Fourteenth Amendment to the U.S. Constitution and the Eighth and Fourteenth Amendments of the U.S. Constitution to be free from cruel and unusual punishments when the trial court imposed a presumptive 10 year prison sentence based upon an improper aggravating factor.” Petition (Doc. 1) at 10. Petitioner contends that “it was improper to punish [Petitioner][] by increasing his sentence by four years because he was an addict. Id. Petitioner further asserts that because the trial court found three (3) mitigating factors and no aggravating factors, he should have been sentenced to a mitigated sentence of six (6) years. Id.

         On November 18, 2016, Respondents filed their Answer (Doc. 11), and on December 19, 2016, Petitioner replied (Doc. 20).

         II. STANDARD OF REVIEW

         A. In General

         The federal courts shall “entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws of treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in state custody:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable ...