Alex Carreon v. David Long

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 incarcerated while awaiting trial, the security guard moved away and left no forwarding address. The majority agrees that the 864 days in which petitioner…

MEMORANDUM ***

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 , 92 S.Ct. 2182 , 33 L.Ed.2d 101 (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…

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 hex’, and that she told him she would not tell what happened if he let her live. The nurse who examined the victim testified that

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 intercoui'se. Id. Carreon denied that the victim had resisted or that he had choked her. Id. At trial, Carreon provided testimony from an expei’t witness who testified that the victim’s injuries were…

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…