Alarcon-Chavez v. Nebrasks

• Decision Date: 01 October 2018
• Docket Number: 8:17CV345
• Parties: LEODAN ALARCON-CHAVEZ, Petitioner, v. THE STATE OF NEBRASKA, and SCOTT FRAKES, Director of the Nebraska Department of Corrections; Respondents.
• Court: U.S. District Court — District of Nebraska

LEODAN ALARCON-CHAVEZ, Petitioner, v. THE STATE OF NEBRASKA, and SCOTT FRAKES,Director of the Nebraska Department of Corrections; Respondents.

8:17CV345

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

October 1, 2018

MEMORANDUM AND ORDER

This matter is before the court on Petitioner Leodan Alarcon-Chavez's ("Petitioner" or "Alarcon-Chavez") Petition for Writ of Habeas Corpus. (Filing No. 1.) For the reasons that follow, Petitioner's habeas petition is denied and dismissed with prejudice.

I. CLAIMS

Summarized and condensed, and as set forth in the court's initial review order (Filing No. 8), Petitioner asserted the following claims that were potentially cognizable in this court:

Claim One: Petitioner was denied his right to due process under the 5th, 6th, and 14th Amendments because the trial court erred in rejecting Petitioner's proposed jury instruction and failing to find the entire step instruction was an incorrect statement of law.

Claim Two: Petitioner was denied his right to be free from unreasonable searches and seizures under the 4th and 14th Amendments because the trial court erred in overruling Petitioner's amended motion to suppress based on an unauthorized seizure of Petitioner's vehicle without a warrant.

Claim Three: Petitioner was denied his right to a fair trial under the 5th, 6th, and 14th Amendments because of the prosecutor's inflammatory remarks made during his closing and rebuttal arguments.

Claim Four: Petitioner was denied his rights to due process and to effective assistance of counsel under the 5th, 6th, and 14th Amendments because trial counsel failed to (1) verify, ensure, and/or preserve the making of an official record of the voir dire proceeding, (2) raise a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), when the State struck a Hispanic juror from the venire; (3) communicate plea offers; (4) speak with witnesses provided by Petitioner; (5) advise Petitioner of his right to independently test DNA, (6) advise Petitioner of his right to depose the State's expert witnesses, and (7) object during trial to the State's questioning of key witnesses and offers of exhibits.

Claim Five: Petitioner was denied his rights to due process and to a fair trial under the 5th, 6th, and 14th Amendments because he could not understand one of the trial court Spanish interpreters.

(Filing No. 8 at CM/ECF pp. 1-2.)

II. BACKGROUND

A. Conviction and Sentence

The court states the facts as they were recited by the Nebraska Supreme Court in State v. Alarcon-Chavez, 821 N.W.2d 359, 361-65 (Neb. 2012) (affirming Alarcon-Chavez's convictions on direct appeal). (Filing No. 10-13.) See Bucklew v.Luebbers, 436 F.3d 1010, 1013 (8th Cir. 2006) (utilizing state court's recitation of facts on review of federal habeas petition).

1. Events Prior to Stabbing

Alarcon-Chavez and Maria Villarreal ("Villarreal") began dating and moved into an apartment together in January 2009. Alarcon-Chavez was the sole leaseholder for their apartment, which was located in Norfolk, Nebraska. Their relationship ended after Alarcon-Chavez informed Villarreal that he was seeing another woman. After the breakup, Villarreal stayed in the apartment and Alarcon-Chavez moved in with a friend. While he was living with his friend, Villarreal called to threaten him on several occasions. Once, she told him that her boyfriend would "adjust accounts" with him.

On two occasions when he knew Villarreal would not be present, Alarcon-Chavez went back to the apartment he had shared with Villarreal. One time, he noticed another man's clothes.

In late February 2010, Villarreal began dating Aniel Campo Pino ("Pino"), and he moved into the apartment with Villarreal and her 3-year-old son.

On March 9, 2010, Alarcon-Chavez saw Villarreal and Pino at a store. Alarcon-Chavez returned to his friend's house around 7 p.m. and began consuming alcohol. Around 11 p.m., he drove across town to Wal-Mart to purchase more beer. While at Wal-Mart, Alarcon-Chavez saw a set of Sunbeam knives, and he testified he decided to purchase them for cooking purposes. He purchased the knives and beer just after 11:30 p.m. He returned to his friend's house and took the beer inside, but left the knife set in the vehicle.

Alarcon-Chavez knew Villarreal went to work early in the morning. So, around 5 a.m. on March 10, 2010, he drove to the apartment where Villarreal was living. He testified that he intended to tell Villarreal and Pino to get out of hisapartment. He explained he did not want to live with his friend anymore because he had been sleeping on the floor and using clothes for a pillow.

2. Stabbing

Alarcon-Chavez arrived at the apartment around 5:10 or 5:20 a.m. He initially got out of the vehicle, but then, after remembering Villarreal's threat that Pino would "adjust accounts" with him, reentered it. Alarcon-Chavez then remembered the knife set, so he opened the package with his teeth and concealed one of the knives on his body.

Alarcon-Chavez entered the apartment and found Villarreal in the kitchen making her lunch. She had a knife in her hand. Villarreal came toward Alarcon-Chavez and grabbed his body and somehow dropped the knife. She was holding Alarcon-Chavez and yelling for the police and for Pino, and Alarcon-Chavez was struggling to escape her grip. Fearing that Pino would attack him, he drew the knife he had concealed on his body. Alarcon-Chavez and Villarreal continued to struggle, and as he tried to get loose, he stabbed Villarreal in the abdomen. Alarcon-Chavez did not remember stabbing her anywhere else. After the stabbing, Villarreal sat on the floor and leaned back onto the carpet. Alarcon-Chavez then heard someone coming and locked the door.

Pino had gone outside before Alarcon-Chavez arrived. He went back to the apartment after he heard Villarreal scream. When he arrived, the door was locked. Villarreal was screaming that he should not come in because a man was stabbing her. Pino told Alarcon-Chavez to come out of the apartment so he could help Villarreal, but Alarcon-Chavez did not respond. Pino left for a few minutes to give Alarcon-Chavez an opportunity to leave, but Alarcon-Chavez was still inside when Pino returned. Pino heard Villarreal saying, "Leo, don't kill me, Leo, don't kill me." Alarcon-Chavez then told Villarreal he was going to kill her and said, "I told you not to leave me because if you did this was going to happen to you." Pino told a neighbor to call the police and then retrieved a friend.

Police officers were dispatched to the apartment. One officer knocked at 6:06 a.m. and tried unsuccessfully to open the door. An officer standing outside of the apartment activated a tape recorder. Villarreal can be heard on the recording pleading for help. She told Alarcon-Chavez to go away and not to kill her. She said that she had been stabbed five times and that Alarcon-Chavez was still in the apartment with her. The recording also revealed numerous expressions of pain from Villarreal, several of which occurred just before the officers entered the apartment. Alarcon-Chavez testified that Villarreal was not asking him not to kill her, but, rather, was begging him not to kill himself.

When another officer arrived, he knocked and announced his presence and tried to open the door. Either Pino or his friend told the officers they needed to get inside. The officers entered the apartment by kicking the door several times. When the officers opened the door, they observed Alarcon-Chavez standing over Villarreal's body with a knife in each hand. Alarcon-Chavez was shot with an electric stun gun and handcuffed. He was covered in blood. As Alarcon-Chavez was being taken out of the apartment, Pino's friend asked him "why [he] didn't do this to [Pino and his friend]," and he responded that "he didn't want to do any harm to [them], the problem wasn't with [them]."

Although she was obviously in pain, Villarreal was alert, coherent, and talking when the officers first entered the apartment. Within a few minutes, her color turned to an ash gray and she stopped speaking. There was a large amount of blood around her. She died as a result of multiple stab wounds. Her most traumatic wound traversed the upper right side of her abdomen. The cut went through the right lobe of her liver and pierced her inferior vena cava. The wound caused a massive intra-abdominal hemorrhage. She also had stab wounds on the right side of her back, on her right tricep, and under her left armpit. She had several deep cuts on her hands which were described at trial by one of the officers as classic defense wounds. The officer explained, "[I]f somebody is attacking you with a knife, your natural reaction is to protect your body [by] bring[ing] your hands up."

3. Investigation

Several items from the crime scene underwent DNA testing. Villarreal was included as a match for blood found on two knives discovered at the scene, and testing revealed an infinitely low possibility that the blood belonged to anyone else. Villarreal was also a match for blood found on a blue shirt Alarcon-Chavez was wearing at the time of his arrest. Blood found on the shirt also revealed a single male profile. While this blood was never compared with the blood of Alarcon-Chavez, one officer opined that the blood came from Alarcon-Chavez being shot with the electric stun gun, which would have penetrated his skin. There were no defensive wounds on Alarcon-Chavez's hands.

Officers learned that a vehicle parked outside the apartment belonged to Alarcon-Chavez. By looking through the window, an officer saw a package for three Sunbeam knives protruding from a Wal-Mart bag; one of the knives was missing. An officer believed that a knife found inside the apartment was the missing knife. After discussing with the prosecutor what was observed in the vehicle, officers decided to tow the vehicle without first obtaining a warrant. Department policy permitted the officers to seize the vehicle and later obtain a search warrant. The...