FILED
NOT FOR PUBLICATION JAN 08 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN JESUS ALCANTARA, No. 12-56698
Petitioner - Appellant, D.C. No. 2:11-cv-04703-ODW-
JPR
v.
L. S. MCEWEN, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted November 21, 2014
Pasadena, California
Before: KLEINFELD and PAEZ, Circuit Judges, and CHRISTENSEN, Chief
District Judge.**
Alcantara first argues in this § 2254 habeas appeal that his due process rights
were violated because of a twenty-two year delay between the murder and his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
arrest. The pertinent Supreme Court precedent is United States v. Lovasco, 431
U.S. 783 (1977). Lovasco involved an eighteen month delay between the crime
and the indictment. Id. at 784. The Supreme Court held that the government’s
delay was not so “fundamentally unfair” as to offend due process. Id. at 796.
The Court held in Lovasco that the Sixth Amendment is irrelevant for pre-
indictment delay analysis. Id. at 788. The statute of limitations is the primary
protection against stale charges, Id. at 789, and, of course, it did not ban this
murder indictment. The Due Process Clause nevertheless “has a limited role to
play.” Id. Even actual prejudice does not necessarily establish a due process
violation. Id. at 789–90. Deferring indictment until the prosecutor has probable
cause and until the prosecutor is satisfied that he can prove guilt beyond a
reasonable doubt justifies delay. Id. at 791–92. That justifies the delay here. And
under Lovasco, the prosecutor may delay further for various necessary, subjective
reasons so long as the delay is not “solely to gain tactical advantage over the
accused.” Id. at 795 (internal quotation marks and citation omitted). The record
here supports no such inference.
Because this is a § 2254 habeas appeal, only Supreme Court holdings can
establish a right to have the petition granted. But Ninth Circuit pre-indictment
delay precedent would also be of no help to petitioner. See, e.g., Mays v. Coltrane,
549 F.2d 670 (9th Cir. 1977).
Here, Alcantara has not shown actual prejudice. The instances of prejudice
Alcantara points to are speculative at best. For example, it is not clear that Davis
would have testified at all, since he might well have exercised his Fifth
Amendment right to remain silent. Nor is there any indication that Davis’s
testimony would have exonerated Alcantara. Davis’s statement to the police does
not account for Alcantara’s whereabouts when he went off the morning of the
murder with Bennett, the victim. And Davis’s statement to the police was read into
the record for the jury to consider. The other instances of alleged prejudice
Alcantara cites are even more speculative. Alcantara complains that the
destruction of the blood sample from the crime scene kept him from getting to test
the blood to see if it really belonged to Bennett, but he offers no reason to doubt
that it did.
Alcantara argues, basically, that if the government had investigated more
vigorously, they could have caught him sooner. But there is no Supreme Court
holding that failing promptly to turn over this or that rock makes pre-indictment
delay a due process violation. Nor does the record establish a factual predicate for
any contention that a weak investigation deprived Alcantara of a speedier
indictment. At the time of the murder, the government interviewed numerous
witnesses and targeted Alcantara as the prime suspect. But his guilt could not be
established beyond a reasonable doubt then. The record also indicates that at the
time of the initial investigation the government made a good faith determination
that there was insufficient evidence to charge Alcantara with the murder. The body
of Bennett, his victim, was never located and witnesses were reluctant to talk.
Only in 2004 did investigators get the break they needed, when Al Hatten told
investigators that Alcantara had told him that he had murdered Bennett.
In addition, Alcantara argues that his due process rights were violated when
the trial court improperly admitted evidence regarding his workplace behavior that
prejudiced him. The admitted evidence was relevant because his outrageous
conduct at work explained why many of Alcantara’s co-workers were scared to
come forward. The California Court of Appeal’s ruling that admission of the
evidence was not a due process violation was not an unreasonable application of
United States Supreme Court precedent.
Alcantara’s final argument is that the trial court improperly admitted the
preliminary hearing testimony of Al Hatten, who could not testify when the case
went to trial because of health problems. Alcantara argues that use of Hatten’s
prior testimony violated his constitutional right to confront and cross-examine his
accusers. Alcantara had an opportunity to cross-examine Hatten at the preliminary
hearing, satisfying his right to confrontation and cross-examination.
AFFIRMED.