Arevalo v. White, 5:14-cv-00415

Background

In 2007 Josue Marquez Arevalo was convicted by a Kentucky jury of murder and sentenced to 40 years; evidence included eyewitnesss seeing him run to his car, witness testimony about prior threats and possession of a gun, and a gun from his home with his fingerprints that ballistically matched the murder weapon.
Arevalo exhausted state remedies: direct appeal (affirmed by Kentucky Supreme Court) and an RCr 11.42 post‑conviction proceeding (denied by trial court and Kentucky Court of Appeals; discretionary review denied).
Arevalo filed a pro se 28 U.S.C. § 2254 habeas petition raising nine grounds, principally: ineffective assistance of trial counsel (investigation, expert use, advising re: right to testify, sentencing mitigation), Vienna Convention consular‑notification claims, lack of GSR/ballistics defense testing, insufficiency of evidence/actual innocence, admission of an excited utterance, and cumulative error.
The magistrate applied AEDPA’s deferential standard, reviewed state‑court factual findings as presumptively correct, and analyzed Strickland ineffective‑assistance claims with double deference where applicable.
The court concluded most claims were meritless or procedurally defaulted, found no unreasonable application of federal law by the state courts, and recommended denial of the § 2254 petition and denial of a certificate of appealability.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to appointed counsel on state collateral review (DPA withdrawal)	Arevalo: DPA abandoned him during post‑conviction review; as a non‑English speaking indigent he was denied due process/equal protection.	Commonwealth: No federal right to appointed counsel on state collateral review; DPA complied with Kentucky statute in withdrawing.	Denied — no constitutional right to counsel on state collateral review; state court’s ruling reasonable.
Vienna Convention (consular notification)	Arevalo: Police/trial court/attorneys failed to inform him of Article 36 rights; violation requires reversal.	Commonwealth: Claim procedurally defaulted (not raised on direct appeal) and, in any event, Vienna Convention does not give enforceable individual right in federal habeas here.	Procedurally defaulted and alternatively not cognizable for habeas relief; claim fails.
Ineffective assistance — investigation and expert use (ballistics, GSR)	Arevalo: Counsel failed to investigate alibi witnesses, alternate suspects, victim’s criminal ties, and failed to retain defense experts or request GSR testing.	Commonwealth: Counsel investigated and reasonably declined further probes/experts for strategic/financial reasons; state court credited counsel’s testimony.	Denied — state court’s performance finding was reasonable under Strickland and AEDPA; no showing of prejudice.
Ineffective assistance — advising re: right to testify and post‑conviction rights	Arevalo: Counsel did not explain his right to testify or his post‑conviction options/consular rights.	Commonwealth: Record shows court advised Arevalo; he waived on the record; he was represented at stages and was informed of remedies.	Denied — trial record contradicts claim about right to testify; no prejudice shown re: post‑conviction counsel.
Sufficiency / actual innocence / failure to present defense evidence	Arevalo: Evidence was insufficient; jury should have heard victim’s alleged criminal activity, alternate suspect in yellow shirt, and ballistic/GSR testing.	Commonwealth: Theories were presented to jury; overwhelming evidence (fingerprints, ballistic match, eyewitnesss) supports conviction; no new reliable evidence of innocence.	Denied — no new reliable evidence of actual innocence; theories were presented and state findings reasonable.
Admission of excited utterance (mother’s 911 statements)	Arevalo: Mother’s statements were speculative hearsay and inadmissible; violated due process.	Commonwealth: Claim is a trial error that should have been raised on direct appeal; procedurally defaulted.	Procedurally defaulted — federal habeas review barred absent cause and prejudice, which Arevalo did not show.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (1984) (two‑prong test for ineffective assistance: performance and prejudice)
Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA deference to state‑court Strickland rulings; review is ‘doubly’ deferential)
Cullen v. Pinholster, 563 U.S. 170 (2011) (§ 2254 review is generally limited to the state‑court record)
Medellin v. Texas, 552 U.S. 491 (2008) (limits on domestic enforceability of certain treaty claims including aspects of Vienna Convention)
Pennsylvania v. Finley, 481 U.S. 551 (1987) (no federal constitutional right to appointed counsel for state collateral review)
Schlup v. Delo, 513 U.S. 298 (1995) (actual‑innocence gateway standards for overcoming procedural default)
Rock v. Arkansas, 483 U.S. 44 (1987) (constitutional right of a defendant to testify in his own defense)
Bousley v. United States, 523 U.S. 614 (1998) (actual innocence as narrow exception to procedural default)