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Garza v. Fabian

July 31, 2009

CESAR DE LA GARZA, PETITIONER - APPELLANT,
v.
JOAN FABIAN, RESPONDENT - APPELLEE.



Appeal from the United States District Court for the District of Minnesota.

The opinion of the court was delivered by: Miller, District Judge.

Submitted: May 12, 2009

Before LOKEN, Chief Judge, BYE, Circuit Judge, and MILLER, District Judge.*fn1

We affirm the district court's order*fn2 denying the petition for writ of habeas corpus of appellant Cesar de la Garza. De la Garza, who was convicted of second degree murder by a Kandiyohi County, Minnesota jury, petitioned the district court for habeas relief asserting, among other things, that he was denied his Sixth Amendment right to counsel because jail officials did not permit him to communicate with his attorney during an overnight trial recess. The district court denied de la Garza's petition and he was granted a certificate of appealability. We affirm because the state court did not violate clearly established law and because we presume the state court's factual finding, that de la Garza 's right to counsel was neither denied nor interfered with, is correct.

I.

De la Garza was arrested on June 7, 2000, and was later charged with first degree murder for the death of Jesus Garcia Guajardo. He was detained in the Kandiyohi County Law Enforcement Center while awaiting trial. On January 6, 2002, de la Garza and four other inmates created a disturbance in the center and he was placed in disciplinary segregation. As a result, his out-of-cell time was limited to fifteen minutes per day.

De la Garza's trial began on January 28, 2002. During voir dire, de la Garza's attorney provided him with several newspaper articles relating to the case and told de la Garza to call him about the possibility of filing a motion for change of venue due to pretrial publicity. According to de la Garza, that evening, after returning to his cell, he asked one of the guards to use the telephone to call his attorney. He states that he was told that his out-of-cell time had been used up during the ten hours that he was in court and that he was denied the use of the telephone. The next morning, before the start of trial, de la Garza met with his attorney to discuss a change of venue and was informed that it was too late. De la Garza was convicted of second degree murder.

After exhausting his state court remedies, de la Garza petitioned for post-conviction relief, arguing that the state had interfered with his right to counsel. A hearing on the petition was held and, at that hearing, de la Garza testified that he was not denied access to counsel on trial days between the hours of 8:30 a.m. and 5:00 p.m. He also testified that his attorney had not attempted to telephone him.

Jail Administrator Ron Wilson testified that the center is required to permit attorneys to meet with detainees. Wilson also testified that there are no restrictions on how long a detainee can stay out of his cell while talking to his attorney and that jailers do not cut detainees off when they are on the telephone with their attorneys.

The state trial court denied de la Garza's petition for post-conviction relief and that denial was affirmed by the state appellate court. In affirming, the state appellate court found that the record did not reflect that: (1) de la Garza asked to use the telephone to contact his attorney; (2) de la Garza's attorney was available to speak with him if he had called; or (3) if de la Garza's attorney had been available, the attorney could have prepared the memorandum necessary to support a motion for change of venue. The appellate court also found that de la Garza had admitted that no one had interfered with his access to counsel. The state appellate court concluded that although limits had been placed on de la Garza's telephone usage, the limits were justified and did not unduly interfere or prejudice de la Garza's right to counsel.

Thereafter, de la Garza filed a petition for writ of habeas corpus containing eleven grounds; the first being that his Sixth Amendment right to counsel was violated when he was not permitted to use the telephone on the evening of January 28, 2002. The magistrate judge issued a report recommending dismissal with prejudice of grounds two through eleven, and those grounds were dismissed. In a second report, the magistrate judge recommended denying de la Garza's petition for habeas corpus. That recommendation was adopted by the district court and de la Garza's petition for a writ of habeas corpus was dismissed with prejudice.

De la Garza was granted a certificate of appealability on April 25, 2008, to determine whether he is entitled to a writ of habeas corpus because the guard did not permit him to call his attorney, thereby violating his Sixth Amendment right to counsel.

II.

The district court's denial of de la Garza's petition for writ of habeas corpus is affirmed because de la Garza has not shown that the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law. This is true because there is no Supreme Court precedent holding that the failure of a jail guard to permit a detainee to call counsel during an overnight trial recess violates the detainee's Sixth Amendment right to counsel. Further, de la Garza has failed to show that the state court's determination, that the limits placed on de la Garza's phone usage did not unduly ...


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