Alavez v. Shinn
| Decision Date | 12 April 2022 |
| Docket Number | CV-19-00498-TUC-CKJ (BGM) |
| Parties | Damaso Alavez, Petitioner, v. David Shinn, et al., Respondents. |
| Court | U.S. District Court — District of Arizona |
REPORT AND RECOMMENDATION
Currently pending before the Court is Petitioner Damaso Alavez's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (“Petition”) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 10). Petitioner did not reply. 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) as untimely. . . . . . . . . . . . .
The Arizona Court of Appeals stated the facts[2] as follows:
In October 2011, while “racing” with another car, Alavez drove through a red light and collided with a vehicle, killing the driver, S.L. At the time of the collision, Alavez was traveling over ninety miles per hour. A test of his blood showed trace amounts of marijuana and a metabolite of cocaine, and established his alcohol concentration had been approximately .198 an hour after the collision.
Answer (Doc. 10), State v. Alavez, No. 2 CA-CR 2012-0441, Mem. Decision at 4 (Ariz.Ct.App. July 19, 2013) (Exh. “A”) (Doc. 10-1) (citations omitted).[3] After a three (3) day trial, the jury found Petitioner guilty of second degree murder, criminal damage, endangerment, driving under the influence of an intoxicating liquor and/or drugs, driving with an alcohol concentration of 0.08 or more, and driving under the extreme influence of alcohol, and not guilty of possession of drug paraphernalia. Answer (Doc. 10), State v. Alavez, No. CR20113655-001, Minute Entry (Pima Cnty. Super. Ct. Sept. 14, 2012) (Exh. “B”) (Doc. 10-1) at 14, 18-19. Petitioner filed a motion for new trial, which was denied. See Answer (Doc. 10), Def.'s Mot. for New Trial, State v. Alavez, No. CR20113655-001 (Pima Cnty. Super. Ct. Sept. 24, 2012) (Exh. “C”) (Doc. 10-1); Answer (Doc. 10), State v. Alavez, No. CR20113655-001, Minute Entry (Pima Cnty. Super. Ct. Oct. 15, 2012) (Exh. “B”) (Doc. 10-1). Petitioner was “sentenced to a combination of concurrent and consecutive, presumptive terms totaling 18.25 years[] imprisonment.” Answer (Doc. 10), State v. Alavez, No. 2 CA-CR 2012-0441, Mem. Decision (Ariz.Ct.App. July 19, 2013) (Exh. “A”) (Doc. 10-1); see also Answer (Doc. 10), State v. Alavez, No. CR20113655-001, Minute Entry (Pima Cnty. Super. Ct. Oct. 15, 2012) (Exh. “D”) (Doc. 10-1).
On October 23, 2012, Petitioner filed a Notice of Appeal. Answer (Doc. 10), Def.'s Not. of Appeal, State v. Alavez, No. CR20113655-001 (Pima Cnty. Super. Ct. Oct. 12, 2012) (Exh. “D”) (Doc. 10-1). On March 28, 2013, counsel for Petitioner filed an Opening Brief asserting four (4) issues for review. Answer (Doc. 10), Appellant's Opening Br., State v. Alavez, No. 2 CA-CR 2012-0441 (Ariz.Ct.App. July 19, 2013) (Exh. “F”) (Doc. 10-1). First, Petitioner asserted that the trial court committed “fundamental error, ” because it “[f]ail[ed] to empanel a twelve-person jury when [Mr. Alavez] face[d] a sentence of thirty years or more[.]” Id., Exh. “F” at 37, 41. Second, Petitioner argued that “[t]he trial court committed reversible error by refusing to provide a negligent homicide jury instruction and Mr. Alavez's requested manslaughter instruction because both instructions were supported by the evidence and the manslaughter instruction given did not adequately cover the offense.” Id., Exh. “F” at 37, 48. Third, Petitioner contended that the trial court committed reversible error when it declined to give a jury instruction for the lesser-included offense of negligent homicide despite sufficient evidence to support it. Id., Exh. “F” at 37, 49. Finally, Petitioner asserted that the trial court committed reversible error when it declined to give Mr. Alavez's requested jury instruction for manslaughter and chose to give an instruction that allegedly did not adequately cover the offense. Id., Exh. “F” at 37, 53-54.
On July 19, 2013, the Arizona Court of Appeals vacated Petitioner's conviction and sentence for driving with an alcohol concentration of .08 or more, because it was a lesser-included offense of his conviction for driving while under the extreme influence of liquor, but affirmed Petitioner's convictions and sentences in all other respects. See Answer (Doc. 10), State v. Alavez, No. 2 CA-CR 2012-0441, Mem. Decision (Ariz.Ct.App. July 19, 2013) (Exh. “A”) (Doc. 10-1).
As an initial matter, the court of appeals observed that “Alavez did not request a twelve-person jury or raise this objection below[.]” Id., Exh. “A” at 5 n.1. Reviewing the Arizona Supreme Court's previous decision in State v. Soliz, 223 Ariz. 116, 219 P.3d 1045 (2009), the appellate court noted that “[t]he trial court empanelled [sic] an eight-person jury and neither party objected[, ] . . . and the [sentencing] court imposed, a presumptive, ten-year sentence.” Answer (Doc. 10), Exh. “A” at 5. “On review, the supreme court noted that ‘[b]y failing to request a jury of twelve, the State effectively waived its ability to obtain a sentence of thirty years or more [and] [t]he trial judge affirmed this by failing to empanel a jury of twelve.'” Id. (quoting Soliz, 223 Ariz. at ¶ 16) (alterations in original). The appellate court reiterated the supreme court holding that “the twelve-person guarantee of Article [II], Section 23 is not triggered” when a lesser sentence may legally be imposed. Answer (Doc. 10), Exh. “A” at 5-6 (quoting Soliz, 223 Ariz. at ¶ 16) (alterations in original). The appellate court acknowledged the supreme court's finding that “even if the defendant faces a maximum sentence of thirty or more years, there is no error, structural or otherwise, when ‘the case proceeds to verdict with a jury of less than twelve people without objection, and the resulting sentence is less than thirty years.'” Id., Exh. “A” at 6 (quoting Soliz, 223 Ariz. at ¶¶ 1, 18). The appellate court found that Petitioner did not have standing to assert any rights that the victims may have had in this regard. Id., Exh. “A” at 7. Consistent with Soliz, the appellate court held that “[e]ven though Alavez initially faced a potential sentence of thirty years, because the case proceeded ‘to verdict with a jury of less than twelve people without objection, and the resulting sentence [was] less than thirty years,' no error occurred.” Id., Exh. “A” at 7 (quoting Soliz, 223 Ariz. at ¶¶ 1, 18) (alterations subsequent to first in original).
Next, the appellate court considered the trial court's denial of Petitioner's requested jury instructions for manslaughter and negligent homicide. Id., Exh. “A” at 7- 11. The appellate court observed that Petitioner did not object regarding the manslaughter instruction prior to deliberation. Answer (Doc. 10), State v. Alavez, No. 2 CA-CR 2012-0441, Mem. Decision (Ariz.Ct.App. July 19, 2013) (Exh. “A”) (Doc. 10-1) at 8-9. The appellate court found that “Alavez ha[d] not established that the court's instructions, taken as a whole, did not adequately explain the law.” Id., Exh. “A” at 10 (citing State v. Gallegos, 178 Ariz. 1, 10, 870 P.2d 1097, 1106 (Ariz. 1997)). The appellate court further observed that “[W]hen a jury is properly instructed on the applicable law, the trial court is not required to provide additional instructions that do nothing more than reiterate or enlarge the instructions in defendant's language.” Id., Exh. “A” at 10 (quoting State v. Salazar, 173 Ariz. 399, 409, 844 P.2d 566, 576 (Ariz. 1992)). As such, the appellate court found no error with the trial court's manslaughter jury instruction. Additionally, “[b]ecause the jury had the option of th[e] immediately-lesser [sic] included offense [of manslaughter], but nonetheless found [Alavez] guilty of the highest offense, it ‘necessarily rejected all other lesser-included offenses[]'” including negligent homicide. Id., Exh. “A” at 11 (quoting State v. Anderson, 210 Ariz. 327, ¶ 65, 111 P.3d 369, 386 (Ariz. 2005) (quoting State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (Ariz. 1989))). The appellate court held that Petitioner had “not established resulting prejudice” from the trial court's denial of a negligent homicide instruction and found “relief [wa]s not appropriate.” Id., Exh. “A” at 11 ().
Finally, the appellate court agreed with the State's concession that a conviction for both driving with an alcohol concentration of .08 or more and driving while under the extreme influence of liquor violated the prohibition against double jeopardy. Answer (Doc. 10), State v. Alavez, No. 2 CA-CR 2012-0441, Mem. Decision (Ariz.Ct.App. July 19, 2013) (Exh. “A”) (Doc. 10-1) at 11. As such, the appellate court vacated Petitioner's conviction for the lesser-included charge of driving with an alcohol concentration of .08 or more. Id., Exh. “A” at 12.
On October 15, 2013, the mandate issued indicating that Petitioner had not filed a motion for reconsideration or sought review with the Arizona Supreme Court. Answer (Doc. 10), Ariz.Ct.App., No. 2 CA-CR 13-0639, Mandate 10/15/2013 (Exh. “I”) (Doc. 10-1). . . .
On April 23, 2018, Petitioner filed his Petition for Post-Conviction Relief (“PCR”). See Answer (Doc. 10), Def.'s Pet. for PCR,...
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