Perez v. Pima County Superior

50 F. App'x 368

Opinion

MEMORANDUM

**

Petitioner Fermín C. Perez appeals the district court’s order denying his petition for a writ of habeus corpus following his state court conviction of one count of aggravated driving under the influence of intoxicating liquor (DUI). See 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C. § 2253. We affirm.

I.

On September 21, 1993, a Pima County deputy sheriff stopped Petitioner for speeding. Following field sobriety tests, the deputy placed Petitioner under arrest and advised him of his Miranda rights. Petitioner immediately requested an attorney. When asked if he would submit to a chemical sobriety test, Petitioner replied that he would take a blood test but wanted an attorney present during the test. The deputy informed Petitioner that he did not have the right to have an attorney present during the test, but could telephone an attorney. Petitioner continued to insist on having his attorney present for the blood test. Interpreting Petitioner’s insistence as a refusal to submit to the test, the deputy transported Petitioner to the Pima County Jail and read Petitioner the Arizona Implied Consent affidavit. The affidavit informed Petitioner of the deputy’s right to conduct chemical testing and the consequences, under Arizona law, of Petitioner’s refusal to submit to testing. Petitioner continued to insist on having his attorney present.

An Arizona jury subsequently convicted Petitioner of one count of aggravated driving under the influence of intoxicating liquor while his license was suspended, revoked, or in violation of a restriction, a class four felony. On direct appeal, Petitioner argued he was denied his Sixth Amendment right to counsel when he was not allowed to have counsel present prior to submitting to a chemical sobriety test. The Arizona Court of Appeals affirmed Petitioner’s conviction, and the Arizona Supreme Court and the United States Supreme Court denied certiorari. Petitioner raised the same claim in his federal habeas petition.¹ The district court denied Petitioner’s habeas petition, but granted his request for a certificate of appealability.²

We review the district court’s decision to deny a § 2254 habeas petition de novo. Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001). Petitioner’s petition, filed after April 24, 1996, is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a petitioner is entitled to relief on a claim adjudicated in the state court only if the petitioner can establish the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based upon an unreasonable determination of facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). We presume state court factual findings are correct, and place the burden on the petitioner to rebut that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

II.

The Arizona Court of Appeals concluded that a suspect is not entitled to have an attorney present prior to submitting to a sobriety test. The decision was not contrary to federal law. The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defence.” U.S. Const. Amend. VI. The right to counsel attaches only upon the initiation of judicial criminal proceedings against the defendant, or when the government’s role otherwise shifts from investigation to accusation. See United States v. Hayes, 231 F.3d 663, 667 (9th Cir.2000) (en banc) (citing United States v. Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984)). In the present case, state officials had not brought formal charges against Petitioner. The deputy’s request that Petitioner submit to a sobriety test is merely investigatory. See Schmerber v. California, 384 U.S. 757, 761, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Accordingly, Petitioner’s Sixth Amendment right to counsel had not yet attached. See Roberts v. Maine, 48 F.3d 1287, 1290-91 (1st Cir. 1995) (rejecting argument that a suspect’s right to counsel attaches prior to submitting to a sobriety test); McVeigh v. Smith, 872 F.2d 725, 727-28 (6th Cir.1989) (same); Langelier v. Coleman, 861 F.2d 1508, 1510 n. 3 (11th Cir.1988) (same); see also Nyflot v. Minnesota Comm’r of Public Safety, 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985) (dismissing for lack of a substantial federal question Appellant’s claim that her Constitutional rights were violated when she was refused counsel prior to submitting to a sobriety test).

The Arizona Supreme Court has held that due process guarantees a criminal suspect a reasonable opportunity to consult with counsel, in person or by telephone, prior to submitting to a blood test if such access would not unduly delay the investigation and arrest. See Kunzler v. Pima County Superior Court, 154 Ariz. 568, 744 P.2d 669, 672 (1987). This right is based on Arizona Rule of Criminal Procedure 6.1 which, although based on the federal right to counsel, provides more expansive rights.³ Petitioner does not have a federal right to consult with counsel prior to submitting to a chemical sobriety test, or a federal right to have counsel physically present during the test.

Accordingly, the district court order denying habeas relief is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1

. Petitioner also raised two additional claims on direct appeal and in his federal habeas petition that are not at issue in this appeal.

2

. At oral argument, Petitioner attempted to raise additional Constitutional claims. The District Court’s certificate of appealability was limited to Petitioner's Sixth Amendment claim. Accordingly, this Court does not have jurisdiction over Petitioner’s remaining claims. See 28 U.S.C. § 2253(c)(1).

3

. Under Rule 6.1, the right to counsel attaches "as soon as feasible after a defendant is taken into custody.... ”