                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 13 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ALEX CARREON,                                    No. 14-55524

              Petitioner - Appellant,            D.C. No. 5:13-cv-00702-JVS-JPR

  v.
                                                 MEMORANDUM*
DAVID B. LONG,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                             Submitted April 9, 2015**
                               Pasadena, California

Before: SILVERMAN and BEA, Circuit Judges and QUIST,*** Senior District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
      Petitioner Alex Carreon was convicted by a jury in California state court of

assault with intent to commit rape, forcible sexual penetration with a foreign

object, and assault with force to produce great bodily injury. He appeals the

district court’s decision to deny his petition for writ of habeas corpus. We have

jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm.

      Carreon argues the delay between his arrest and trial violated his right to a

speedy trial under the Sixth Amendment. We balance four factors to evaluate a

Sixth Amendment speedy trial claim: “(1) the length of the delay; (2) the reason for

the delay; (3) the defendant’s assertion of his right to a speedy trial; and (4) the

prejudice to the defendant.” United States v. Gregory, 322 F.3d 1157, 1161 (9th

Cir. 2003) (citing Barker v. Wingo, 407 U.S. 514, 530 (1972)). In applying this

standard, the California Court of Appeal measured the delay as the time between

the second felony complaint and Carreon’s trial. That decision was “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). The Supreme Court

has held the time between a defendant’s arrest until his trial is the relevant time

period, even when the initial charging document is dismissed. See United States v.

Loud Hawk, 474 U.S. 302, 314 (1986) (evaluating the entire 90-month delay

between the defendants’ arrests until trial even though the district court dismissed,


                                           2
and the government re-filed, multiple indictments throughout the case). Because

the California Court of Appeal unreasonably applied Federal law, we review

Carreon’s Sixth Amendment speedy trial claim de novo. See Castellanos v. Small,

766 F.3d 1137, 1146 (9th Cir. 2014) (“If the state court applies a legal standard

that contradicts clearly established federal law, we review de novo the applicant’s

claims, applying the correct legal standard to determine whether the applicant is

entitled to relief.”).

       Carreon’s claim fails under de novo review. The first factor “is a threshold

issue,” and triggers an inquiry into the remaining factors if the delay is longer than

one year. Gregory, 322 F.3d at 1161–62. Because the delay between Carreon’s

arrest and his trial was more than one year, we evaluate the other three factors.

       First, the “reason for the delay” is the “focal inquiry” of the analysis. United

States v. King, 483 F.3d 969, 976 (9th Cir. 2007). Almost all the delay in this case

was attributable to Carreon’s requested continuances, the government’s requested

continuances in which Carreon acquiesced, Carreon’s interlocutory appeal, and the

government’s continuances due to unavailable witnesses. These delays do not

weigh in favor of Carreon’s claim. See Loud Hawk, 474 U.S. at 316–17; Barker,

407 U.S. at 531; United States v. Drake, 543 F.3d 1080, 1085–86 (9th Cir. 2008).




                                           3
      Second, Carreon asserted his right to a speedy trial, but he requested

continuances and acquiesced in the government’s requested continuances after that

assertion. Those continuances undermined his assertion of the right. See King,

483 F.3d at 976.

      Third, the record shows the California Court of Appeal was correct to find

that Carreon did not demonstrate prejudice due to the delay. It was Carreon’s lack

of diligence in staying in touch with the witness Joanna Osuna—and not the delay

itself—that caused her absence. See United States v. Guerrero, 756 F.2d 1342,

1350 (9th Cir. 1984). Carreon’s trial commenced on August 18, 2010. The

defense’s investigator first contacted Osuna, a security guard, in September 2009.

Osuna told the investigator she was willing to speak with him but first needed her

employer’s permission and would contact the investigator once she obtained it. At

that time, the investigator knew Osuna’s address and her employer’s address, but

did not serve her a subpoena or otherwise attempt to procure her testimony. The

investigator did not attempt to contact Osuna again until weeks before trial almost

a year later, in August 2010. At that point, the investigator learned Osuna had

moved on from her last known address and job about ten months before. The

investigator then served a subpoena on Osuna’s former employer to obtain Osuna’s

contact information, but the compliance date on the subpoena was August 30,


                                         4
2010. Despite the subpoena return date, Carreon declared he was ready for trial on

July 30 and August 12 and the court set trial for August 16. Then, on August 16,

Carreon filed his motion to dismiss based on a violation of his Sixth Amendment

speedy trial right, relying primarily on his inability to locate Osuna as the alleged

prejudice.

      Our dissenting colleague would excuse defense counsel’s lack of diligence.

Ninth Circuit precedent forecloses that position. We have held there must be a

“causal relationship between the delay and the unavailability” of the missing

witnesses. Guerrero, 756 F.2d at 1350; see also Gregory, 322 F.3d at 1163 (“The

prejudice with which we are concerned is prejudice caused by the delay that

triggered the Barker inquiry, not simply any prejudice that may have occurred

before the trial date but unrelated to the fact of the delay itself.”). Guerrero

involved a 31-month delay in bringing the defendant to trial, and the defendant

argued that the delay prejudiced him because he could not locate two witnesses.

Guerrero, 756 F.2d at 1349–50. We found it was the defendant’s lack of diligence,

and not the delay that caused the witnesses’ absence:

      Although the defense knew as early as July 1980 that these witnesses
      would be helpful in establishing an alibi defense, it made no attempt
      to keep in touch with them. The defense did not have these witnesses
      under subpoena and did not attempt to locate them until July 1982,
      even though it was aware of the probability of having to defend


                                           5
      against these charges. Thus, we cannot find that the delay was the
      cause of the loss of these witnesses.

Id. at 1350. The same can be said of the defense in this case. California law

authorizes defendants to subpoena a witness to procure her attendance at trial1 and

to take a witness’s deposition if the defense is concerned the witness will not be

able to attend trial. See Cal. Penal Code §§ 1326(a), 1336(a). But Carreon’s

counsel did not take advantage of either of these methods to ensure that the jury

would hear Osuna’s testimony. Further, the investigator did not start looking for

Osuna until weeks before trial. Defense counsel compounded the harm caused by

his lack of diligence by announcing he was ready for trial despite knowing it was a

matter of weeks before he would obtain Osuna’s contact information. And nothing

in the record suggests the trial court would have denied defense counsel a further

continuance based on Osuna’s unavailability had the defense so moved. Indeed,

the trial court had granted the government several continuances due to unavailable

witnesses. As a result, the delay did not cause Osuna’s absence. See Guerrero,

756 F.2d at 1350.

      Carreon may have a claim for ineffective assistance of counsel due to the

defense counsel’s conduct, but he does not have a claim under the Speedy Trial

      1
      A witness can be subpoenaed to be “on-call” for a period of time. See
People v. Perez, 207 Cal. App. 3d 431, 436–37 (Ct. App. 1989).

                                          6
Clause of the Sixth Amendment. Because the Barker factors weigh against

Carreon’s claim, the California Court of Appeal was correct to find Carreon’s

Sixth Amendment right to a speedy trial was not violated.

AFFIRMED.




                                        7
                                                                                 FILED
Carreon v. Long, 14-55524                                                        MAY 13 2015

                                                                              MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS


QUIST, Senior District Judge, concurring:

         I agree that Carreon’s petition should be denied for all of the reasons stated

in the principal Memorandum. I, respectfully, write separately to explain why I

believe that Carreon has not demonstrated prejudice resulting from Osuna’s

absence.

         As suggested by the dissent, this case boiled down to the issue of consent.

The victim claimed that, as a result of heavy drinking, she was in and out of

consciousness during the night in question. She remembered that she regained

consciousness on someone’s lawn, that Carreon choked her, and that she told him

she would not tell what happened if he let her live. The nurse who examined the

victim testified that

         [the victim] not only had lots of scrapes and abrasions on both sides of her
         neck, on her breasts, her backside, her knees, and legs, she also had red
         raised bumps on her face that were consistent with her claim that [Carreon]
         had strangled her. [The victim] also had what appeared to be bite marks on
         her abdomen and left elbow. In addition, . . . [the victim] had multiple
         lacerations to her genitalia, and a very large red contusion and an avulsion
         (torn skin that is hanging by a thread) on her anus.

People v. Carreon, No. E052856, 2012 WL 5992736, at *5 (Cal. Ct. App. Nov. 29,

2012).

         In contrast, Carreon told police that he and the victim had “a consensual

sexual encounter”that began in his car, and that he eventually dragged the victim
onto the grass, where she took off her clothes. Id. at *1. He denied that they had

intercourse. Id. Carreon denied that the victim had resisted or that he had choked

her. Id. At trial, Carreon provided testimony from an expert witness who testified

that the victim’s injuries were consistent with a consensual sexual encounter. Id.

      Contrary to the assertion by our dissenting colleague, Osuna’s statement to

the police does not indicate that she would have provided “highly exculpatory

testimony.” Osuna told the police that, while she was driving as part of her patrol

duties, she saw a clothed male lying on top of an unclothed female in a yard and

she assumed they were having sex. Assuming that Osuna would have testified

consistently with that statement, the testimony would have demonstrated only that

the victim was not visibly struggling against Carreon at the moment that Osuna

drove past. That is a far cry from demonstrating consent by an intoxicated woman

who, according to Carreon, had to be “dragged” out of a vehicle and showed

evidence of severe battery. Moreover, Osuna’s statement to the police did not

contradict anything in the victim’s description of the events. In short, it is difficult

to imagine how someone with a brief drive-by view of a portion of the encounter

could provide testimony that would give the jury any insight into the issue of

consent.

      Finally, I offer no opinion regarding a claim based on ineffective assistance

of counsel, as that issue is not before us.


                                              2
                                                                                FILED
Carreon v. Long, 14-55524                                                       MAY 13 2015

                                                                             MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS



SILVERMAN, Circuit Judge, dissenting:



      It is not in every rape case with a consent defense that there is an

independent eyewitness who happens upon the defendant and the alleged victim

having sexual intercourse. We see cases where biased friends of the defendant

(such as fraternity brothers) testify to observing their friend and the alleged victim

having supposedly consensual sex. We see cases in which independent witnesses

testify to the alleged victim’s conduct before and after the sexual encounter, but

not during the sexual encounter itself.



      This case is unusual. A totally independent witness – a security guard

making her rounds – told police that she came upon the defendant and the alleged

victim having what appeared to be consensual sexual relations on the lawn of the

property she was patrolling. Even if the security guard’s observations would not

conclusively establish innocence, if you’re a defendant charged with rape and

consent is your defense, that’s about as good as it gets.



      The problem is that during the 864 days during which petitioner was
                                          -2-

incarcerated while awaiting trial, the security guard moved away and left no

forwarding address. The majority agrees that the 864 days in which petitioner was

incarcerated while awaiting trial was excessive for speedy trial purposes, but holds

that there was no Sixth Amendment speedy trial violation, mainly because

petitioner was not prejudiced by the delay. And that’s because, the majority says,

it was counsel’s lack of diligence – not the delay itself – that caused the loss of this

crucial witness.



      Counsel should have “stay[ed] in touch” with the witness, the majority says,

but it is not clear exactly what he should have done. Periodically called her on the

phone? Sent her cards? Kept her under surveillance for over two years? Unless

counsel drove by her home and actually caught her in the act of packing up her car,

counsel’s attempts to “stay[] in touch” with the witness at most would have

hastened the discovery that she had disappeared. The majority says that counsel

should have subpoenaed her. Subpoenaed her to what? There was no firm trial

date until nearly two-and-a-half years after petitioner’s arrest, and by that time, the

witness had moved and left no address. And even if the witness had been

subpoenaed early on to some phantom trial date, what would have kept her from

disappearing just as she did? A subpoena is not a writ of ne exeat. If counsel had
                                          -3-

known that the witness was planning to move, he could have made efforts to

depose her, but who knew? There is nothing in the record suggesting that counsel

should have known that the witness was going to up and leave.



      The majority relies heavily on United States v. Guerrero, 756 F.2d 1342 (9th

Cir. 1984), but there is a big difference between what happened in that case and

ours. In our case, the investigator hired by the defendant’s lawyers contacted the

prospective witness, the security guard, well before she would be needed in court.

Then, unbeknownst to anyone, the witness moved away and left no address. In

Guerrero, although the defense knew about the existence of possible alibi

witnesses as early as July 1980, it “did not attempt to locate them until July 1982,

even though it was aware of the probability of having to defend against these

charges.” That is why we held that Guerrero failed to show any causal connection

between the delay and the loss of the witnesses – they didn’t even look for alibi

witness for two years. Id. at 1350.



      And speaking of diligence, how does any possible shortcoming of defense

counsel absolve the Riverside County Superior Court and the district attorney of

their obligations to take care that a defendant is tried in a timely manner?
                                          -4-



      The bottom line is this: In most speedy trial violations, the pre-trial delay

thankfully causes no harm, but that’s not the case here. By the time this case

finally wound its way to trial nearly two-and-a-half years after petitioner’s arrest,

an independent witness who could have provided highly exculpatory testimony had

moved away and couldn’t be found. This is exactly the sort of prejudice that the

right to a speedy trial is designed to prevent. As the Supreme Court said in Barker

v. Wingo, 407 U.S. 514, 532 (1972), “the inability of a defendant adequately to

prepare his case skews the fairness of the entire system. If witnesses die or

disappear during a delay, the prejudice is obvious.”




      Because habeas relief should have been granted, I respectfully dissent.
