United States District Court, D. Arizona
Victor M. Caballero, Petitioner,
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
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
to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,
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).
FACTUAL AND PROCEDURAL BACKGROUND
Initial Charge and Sentencing
Arizona Court of Appeals stated the facts 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
Caballero failed to appear at his first trial, and a mistrial
was declared. The second trial proceeded in absentia.
 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. §
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.
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.
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).
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)).
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)).
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).
Post-Conviction Relief Proceeding
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),  counsel stated that there were no viable
issues appropriate for Rule 32 relief. See id.,
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.
The Instant Habeas Proceeding
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.
November 18, 2016, Respondents filed their Answer (Doc. 11),
and on December 19, 2016, Petitioner replied (Doc. 20).
STANDARD OF REVIEW
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 ...