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Alarcon-Chavez v. State

United States District Court, D. Nebraska

October 1, 2018

THE STATE OF NEBRASKA, and SCOTT FRAKES, Director of the Nebraska Department of Corrections; Respondents.


          Richard G. Kopf Senior United States District Judge

         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.)


         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 his apartment. 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 vehicle was transported and secured in the Norfolk Police Division's sally port, and a search warrant was obtained.

         The following items were recovered from the vehicle: a knife; a package of three knives in a Wal-Mart bag with the middle knife missing; an unbent piece of plastic, which appeared to be cut from the package of knives; a barbell; a baseball bat; a warning citation for speeding; a purchase contract showing the vehicle was purchased on March 7, 2010; and another Wal-Mart bag with a holder for jumper cables. The State charged Alarcon-Chavez with murder in the first degree, use of a deadly weapon to commit a felony, and tampering with a witness. The latter charge was based upon an incident between Alarcon-Chavez and Villarreal for which Alarcon-Chavez was charged with terroristic threats and use of a weapon to commit a felony.

         4. Motion to Suppress

         Alarcon-Chavez moved to suppress all physical evidence seized by the officers during the search of his vehicle, and following a hearing, the court made the following factual findings:

Officers were called to an apartment where [Villarreal] was found with multiple stab wounds. [Alarcon-Chavez] was present in the apartment in the possession of a knife and was arrested. Law enforcement officers were directed to an automobile in the apartment parking lot. A three-knife set was in plain view in the vehicle in which one knife was missing. The knife recovered at the apartment appeared to be part of that set. The vehicle was then impounded and transported into police custody. A search warrant was obtained the next day and the car was searched.

         Based upon this evidence, the district court concluded that the officers had probable cause to seize the vehicle. The court reasoned that because the officers had probable cause to conduct a warrantless search of the vehicle, they were also authorized to seize the vehicle and to search it after obtaining a warrant. Accordingly, the court denied the motion to suppress.

         5. Trial and Jury Instructions

         A jury trial was held from June 13 to 16, 2011. At the jury instruction conference, the court proposed giving NJI2d Crim. 3.1, the standard step instruction defining the elements of first degree murder, second degree murder, and manslaughter, in that order. Alarcon-Chavez objected to the proposed instruction.

         Alarcon-Chavez's proposed instruction did not challenge the elements of the crimes. Rather, it contested the order in which the jury was to consider them. The court overruled Alarcon-Chavez's objection, reasoning that the jury was required to read all instructions in connection with one another and that the instructions adequately informed the jury there were three levels of homicide.

         6. Closing Arguments

         During closing argument, the State discussed Alarcon-Chavez's credibility and truthfulness. The prosecutor questioned Alarcon-Chavez's claim that he opened the package of knives with his teeth, arguing the evidence showed it was cut open. The prosecutor asserted that the knife purchase was not a spontaneous decision, as claimed by Alarcon-Chavez, and that Alarcon-Chavez did not go back to the apartment for the purpose of telling Villarreal and Pino to leave. The prosecutor called Alarcon-Chavez's claim that Villarreal was begging for him not to kill himself “absolutely preposterous and insulting.” The prosecutor also likened the case to the O.J. Simpson case. In concluding, the prosecutor said, “[T]he defense told you to focus on credibility. But they call [Alarcon-Chavez] anyway.” When Alarcon-Chavez's defense attorney began his closing argument, he told the jury he would not go through all the evidence or “sit and read [the jury] instructions.” One of the prosecutor's first statements in rebuttal was that it was smart for the defense not to discuss the evidence or the jury instructions very much because both essentially said to “go back and find [Alarcon-Chavez] guilty.” The prosecutor asked the jury to be “fair to dead people” and again challenged Alarcon-Chavez's credibility, commenting, “You saw him lying.” Finally, the prosecutor told a story about General Anthony McAuliffe's being informed that he was surrounded and that he should surrender. McAuliffe responded, “‘Nuts, '” and when General George Patton learned of the response, he said, “[A] man that eloquent has to be saved.” Turning back to the case, the prosecutor asked, “[W]hat do you say to this crazy theory[?]” and stated, “What you're going to have to do is go back there and fill out guilty. That is the most eloquent answer you can give, and that is the short answer, the same answer [General] McAuliffe would have given.” Alarcon-Chavez did not object to any of the prosecutor's closing remarks.

         7. Verdict and Sentencing

         Alarcon-Chavez was found guilty on all counts. He was sentenced to life imprisonment, with credit for 534 days of time served, for murder in the first degree; to an indeterminate term of not less than 19 nor more than 20 years' imprisonment for use of a deadly weapon to commit a felony; and to an indeterminate term of not less than 1 nor more than 2 years' imprisonment for tampering with a witness. The sentences were to run consecutively. Alarcon-Chavez timely appealed.

         B. Direct Appeal

         Alarcon-Chavez appealed his convictions to the Nebraska Court of Appeals on September 20, 2011. (Filing No. 10-5 at CM/ECF pp. 1-2, 10.) The appeal was directed to the Nebraska Supreme Court. (Id. at CM/ECF p. 13.) Alarcon-Chavez was represented both at trial and on direct appeal by lawyers from the same office. In his brief, Alarcon-Chavez assigned that the state district court erred in (1) finding that it was lawful for the officers to seize his vehicle without a warrant and denying his motion to suppress and (2) refusing to give his proposed jury instruction that Villarreal's death was intentional but provoked by a sudden quarrel and instead giving an instruction on manslaughter that did not require the State to prove that the killing was not the result of a sudden quarrel. Alarcon-Chavez also asserted that the prosecutor's closing remarks deprived him of his right to a fair trial and that reversal was warranted under the plain error standard. (Filing No. 10-2 at CM/ECF p. 2, 10-11; Filing No. 10-4 at CM/ECF p. 2.)

         The Nebraska Supreme Court rejected Alarcon-Chavez's claims of trial court error and prosecutorial misconduct. (Filing No. 10-13.) With respect to Alarcon-Chavez's challenge to the trial court's decision to deny his motion to suppress, the court held that the police officers had probable cause to have immediately searched Alarcon-Chavez's vehicle without a warrant and thus were not precluded from seizing the vehicle and then searching it at a later time after obtaining a warrant, because: the vehicle was operational and therefore readily movable; the officers knew Villarreal had been severely injured with a knife; a Sunbeam knife was found in the apartment; and a set of Sunbeam knives with one knife missing was clearly visible from outside of Alarcon-Chavez's vehicle. (Id. at CM/ECF p. 11.) Regarding Alarcon-Chavez's challenge to the manslaughter jury instruction, the court concluded that where the jury found that premeditation, intent, and malice existed beyond a reasonable doubt, Alarcon-Chavez was not prejudiced and his substantial rights were not affected by any error in the instructions. (Id. at CM/ECF p. 12.) Last, with respect to Alarcon-Chavez's prosecutorial misconduct claims, the court concluded that the prosecutor's closing remarks did not rise to the level of prosecutorial misconduct that would warrant reversal under the plain error standard of review, even assuming they were improper, because: the comments were based on the evidence and were few and isolated in a long closing argument and rebuttal; the evidence that the murder was premeditated and deliberate was plenary; and any resulting prejudice to Alarcon-Chavez was not of such a nature that to leave it uncorrected would have resulted in damage to the integrity, reputation, and fairness of the judicial process. (Id. at CM/ECF pp. 13-14.) As the court found no merit to Alarcon-Chavez's assigned errors, the court affirmed his convictions. (Id. at CM/ECF p. 14.)

         C. Postconviction Action

         Alarcon-Chavez filed a verified motion for postconviction relief on February 27, 2013. (Filing No. 10-14 at CM/ECF pp. 2-3.) The state district court appointed new counsel to represent Alarcon-Chavez in the postconviction matter. Alarcon-Chavez was granted leave to amend his postconviction motion several times (id. at CM/ECF pp. 4-27), and, through counsel, he filed a fourth amended motion for postconviction relief on September 9, 2015. (Id. at CM/ECF pp. 28-38.) Alarcon-Chavez alleged numerous claims: (1) that the state district court erred in failing to require a recording of the voir dire proceeding and that his trial counsel was ineffective for not verifying, ensuring and/or preserving the making of an official record of the voir dire proceeding; (2) that trial counsel was ineffective for failing to raise a Batson challenge to the State's peremptory strike of a Hispanic juror; (3) that trial counsel was ineffective for not timely communicating plea offers; (4) that trial counsel was ineffective for failing to have an independent testing of the State's DNA and fingerprint evidence presented at trial; (5) that trial counsel was ineffective for failing to depose any of the State's expert witnesses; (6) that trial counsel was ineffective for failing to notify him whether defense witnesses had been contacted before trial and for failing to call defense witnesses at trial; (7) that trial counsel was ineffective for failing to obtain an independent medical examination of Villarreal; (8) that trial counsel was ineffective for failing to object to the prosecutor's unfairly prejudicial comments and offers of exhibits and for failing to strike certain answers; (9) that trial counsel was ineffective for failing to sufficiently and accurately advise him of his right to testify or not to testify and the possibility of outcomes in light of the accusations and evidence presented against him; (10) that trial counsel was ineffective for failing to properly prepare him for cross-examination; (11) that trial counsel was ineffective for failing to object to jury instructions on manslaughter; (12) that the state district court erred in denying trial counsel's motion to sever the tampering with a witness charge; (13) that the State's striking of a Hispanic juror and the prosecutor's unfairly prejudicial comments constituted prosecutorial misconduct; and (14) that his constitutional rights were violated because he was unable to understand one of the court interpreters during trial and trial counsel was ineffective for failing to so advise the court. (Id.)

         An evidentiary hearing was held on the issues set forth in Alarcon-Chavez's fourth amended motion for postconviction relief. (Filing No. 10-20 at CM/ECF pp. 28-197.) In a written order entered April 6, 2016, the state district court denied postconviction relief on all grounds. (Filing No. 10-14 at CM/ECF pp. 39-56.) Alarcon-Chavez appealed to the Nebraska Supreme Court, arguing that the state district court erred in denying his postconviction motion because his trial counsel was constitutionally ineffective for failing to (1) “verify, ensure and or preserve” a record was made of voir dire, (2) raise a challenge under Batsonwhen the State struck a Hispanic juror from the venire, (3) communicate plea offers, (4) speak with witnesses before trial, (5) advise Alarcon-Chavez of his right to independently test DNA, (6) advise Alarcon-Chavez 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. (Filing No. 10-17 at CM/ECF pp. 7-8; Filing No. 10-19.) Additionally, Alarcon-Chavez argued that the state district court erred in not finding his constitutional rights were violated because he was unable to understand one of the court interpreters during trial. (Filing No. 10-17 at CM/ECF p. 8; Filing No. 10-19.)

         In a published opinion, the Nebraska Supreme Court concluded that all of Alarcon-Chavez's claims were without merit and, thus, they were properly denied. State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 710 (2017). (Filing No. 10-22.) The mandate issued on March 17, 2017. (Filing No. 10-16 at CM/ECF p. 2.)

         D. Habeas Petition

         Alarcon-Chavez timely filed his Petition in this court on September 20, 2017. (Filing No. 1.) In response to the Petition, Respondent filed an Answer, a Brief, and the relevant state court records. (Filing Nos. 10, 11, 12 & 13.) Alarcon-Chavez filed a brief in response to Respondent's Answer (Filing No. 18), and Respondent filed a reply brief (Filing No. 19). This matter is fully submitted for disposition.


         A. Standard Under 28 U.S.C. § 2254(d)

         When a state court has adjudicated a habeas petitioner's claim on the merits, there is a very limited and extremely deferential standard of review both as to the law and the facts. See28 U.S.C. § 2254(d). Section 2254(d)(1) states that a federal court may grant a writ of habeas corpus if the state court's decision “was contrary to, or involved 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). As explained by the Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), a state court acts contrary to clearly established federal law if it applies a legal rule that contradicts the Supreme Court's prior holdings or if it reaches a different result from one of that Court's cases despite confronting indistinguishable facts. Id. at 405-06, 120 S.Ct. 1495. Further, “it is not enough for [the court] to conclude that, in [its] independent judgment, [it] would have applied federal law differently from the state court; the state court's application must have been objectively unreasonable.” Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 2006).

         With regard to the deference owed to factual findings of a state court's decision, Section 2254(d)(2) states that a federal court may grant a writ of habeas corpus if a state court proceeding “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Additionally, a federal court must presume that a factual determination made by the state court is correct, unless the petitioner “rebut[s] the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1).

         As the Supreme Court noted, “[i]f this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). The deference due state court decisions “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents.” Id. Indeed, “[i]t bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id.

         However, this high degree of deference only applies where a claim has been adjudicated on the merits by the state court. See Brown v. Luebbers, 371 F.3d 458, 460 (8th Cir. 2004) (“[A]s the language of the statute makes clear, there is a condition precedent that must be satisfied before we can apply the deferential AEDPA [Antiterrorism and Effective Death Penalty Act] standard to [the petitioner's] claim. The claim must have been ‘adjudicated on the merits' in state court.”).

         The Eighth Circuit clarified what it means for a claim to be adjudicated on the merits, finding that:

AEDPA's requirement that a petitioner's claim be adjudicated on the merits by a state court is not an entitlement to a well-articulated or even a correct decision by a state court. Accordingly, the postconviction trial court's discussion of counsel's performance-combined with its express determination that the ineffective-assistance claim as a whole lacked merit-plainly suffices as an adjudication on the merits under AEDPA.

Worthington v. Roper, 631 F.3d 487, 496-97 (8th Cir. 2011) (internal quotation marks and citations omitted).

         The court also determined that a federal court reviewing a habeas claim under the AEDPA must “look through” the state court opinions and “apply AEDPA review to the ‘last reasoned decision' of the state courts.” Id. at 497. A district court should do “so regardless of whether the ...

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