Archey v. Palmer Correctional Center

Filing 50

ORDER: re Petition for Writ of Habeas Corpus 39 and Report and Recommendations 45 (see order for full details). Signed by Judge Sharon L. Gleason on 03/30/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

GARRY R. ARCHEY, JR.,
Petitioner,
vs.
Case No. 3:15-cv-00213-SLG-SAO

JOHN CONANT,
Respondent.

ORDER RE PETITION FOR WRIT OF HABEAS CORPUS
Before the Court is Petitioner Garry R. Archey, Jr.’s Amended Petition for Writ of
Habeas Corpus, filed at Docket 19. Mr. Archey filed a merits brief in support of the
amended petition at Docket 39. Respondent John Conant filed a merits brief in opposition
at Docket 43. 1 The motion was referred to United States Magistrate Judge Scott A.
Oravec pursuant to 28 U.S.C. § 636(b)(1)(B).
On March 12, 2018, the magistrate judge issued a Report and Recommendation
(“R & R”) at Docket 45. The magistrate judge recommended that the petition be denied
and that this action be dismissed with prejudice. Mr. Archey filed objections to the R & R
at Docket 46. Respondent John Conant filed a response on March 29, 2018 at Docket
49.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute
provides that a district court “may accept, reject, or modify, in whole or in part, the findings

1

Respondent filed a Notice of Errata at Docket 44, to which was appended Gordon Pentecost’s
affidavit.

or recommendations made by the magistrate judge.” 2 A court is to “make a de novo
determination of those portions of the [magistrate judge’s] report or specified proposed
findings or recommendations to which objection is made.” 3 But as to those topics on
which no objections are filed, “[n]either the Constitution nor [28 U.S.C. § 636(b)(1)]
requires a district judge to review, de novo, findings and recommendations that the parties
themselves accept as correct.” 4
A. BACKGROUND
On September 8, 2006, the State of Alaska indicted Garry R. Archey, Jr., on five
counts related to the manufacture of methamphetamine in Soldotna, Alaska. 5 Mr. Archey
pleaded not guilty and proceeded to trial. Lisa Samson, Mr. Archey’s former girlfriend,
was also charged with drug distribution offenses, and pleaded guilty to two offenses. 6 As
a condition of her plea agreement, Ms. Samson testified against Mr. Archey at his trial.7
There, Ms. Samson denied manufacturing methamphetamine and also denied
recognizing that certain chemicals and material for manufacturing methamphetamine

2

28 U.S.C. § 636(b)(1).

3

Id.

4

United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); see also Thomas v. Arn, 474
U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”).
5

Docket 39 at 7.

6

Docket 39 at 3–4. Ms. Samson pleaded guilty to reduced counts of fourth-degree misconduct,
for possession of controlled substances and for maintaining a structure for the manufacture of
methamphetamine.
7

Docket 39 at 4.

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were present in the trailer where she lived and in which Mr. Archey stayed. 8 Although
potential witness Gordon Pentecost later stated that he could have provided testimony
that undermined Ms. Samson’s statements, Mr. Archey’s trial counsel did not call Mr.
Pentecost to testify. 9 Ms. Samson also testified that she had received a call from a friend
of Mr. Archey who instructed her to move a black duffle bag that contained equipment
used for the production of methamphetamine. 10 While seeking to find tapes of Mr.
Archey’s jail phone calls that might corroborate this testimony, the prosecution uncovered
tapes of recorded conversations between Mr. Archey and his son, in which Mr. Archey
indicates knowledge of the black duffle bag. 11
The jury convicted Mr. Archey on all counts. 12 He was sentenced to 20 years on
each of the first four counts and five years on the fifth count, all to run concurrently.
Mr. Archey appealed his conviction and sentence. Among other points, he argued
that (1) insufficient evidence supported the conviction on Count V, maintaining a structure
for the manufacture of methamphetamine, and (2) the trial court erred in admitting Mr.
Archey’s jail phone calls with his son. 13 The Alaska Court of Appeals reversed the

8

Docket 39 at 8.

9

See Docket 43-1 (Gordon Pentecost Affidavit).

10

Docket 19 at 4; Docket 20-2 (Trial Tr. Vol. III) at 93–94. Although Ms. Samson initially testified
that the call came from a man named “Lester,” this was later treated by the parties as having been
allegedly made by Gordon Pentecost. See Docket 20-2 at 94; Docket 19 at 4; Archey v. State
(Archey I), No. A-10129, 2010 WL 2436739, at *4 (Alaska Ct. App. June 16, 2010). The
prosecution did not present any evidence of a call by Mr. Archey to Gordon Pentecost. See
Archey I, No. A-10129, 2010 WL 2436739, at *4.
11

See Trial Exhibit 105; Docket 20-2 at 404–05.

12

Docket 39 at 12.

13

Archey I, No. A-10129, 2010 WL 2436739, at *1 (Alaska Ct. App. June 16, 2010).

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conviction for Count V, but denied the rest of Mr. Archey’s claims. 14 Mr. Archey petitioned
for review to the Alaska Supreme Court. That petition was denied on August 31, 2010. 15
Mr. Archey also initiated a post-conviction relief proceeding in the Alaska state
court. 16 He filed an amended post-conviction relief application on August 30, 2011. 17 In
his second amended post-conviction relief application, filed on March 19, 2012, Mr.
Archey included the following reasons why his trial and appellate attorneys had been
ineffective: (1) trial counsel failed to challenge the admission of the jail phone calls Mr.
Archey made to his son; (2) trial counsel failed to adequately investigate potential
exculpatory witness Gordon Pentecost; 18 and (3) appellate counsel failed to challenge

14

Id. at *6.

15

See Archey v. State, No S-13919 (Alaska Supreme Court Order).

16

Docket 21-1 (PCR Application).

17

Docket 21-2 (Am. PCR Application).

18

Docket 21-5 (Second Am. PCR Application) at 1–2. Specifically, Mr. Archey asserted that Mr.
Pentecost could have testified that Ms. Samson personally manufactured methamphetamine at
her residence and was personally in control of the laboratory located there. Docket 21-5 at 1–2;
see Docket 43-1.
Mr. Pentecost signed an affidavit dated March 1, 2012 in which he stated: “During the
spring and summer of 2006, I observed Lisa Samson making methamphetamine in her residence
. . . in Soldotna. It appeared to me that she was in control of the meth lab at all times. In addition
to the fact that it was located at her residence, she was the person who operated it, and she made
statements that indicated to me that she believed it to be her property and under her control.
When Gary Archey was charged with crimes related to the lab, I told his attorney, Hatten [sic]
Greer, that I had personal knowledge that the lab really belonged to Lisa Samson. I told him that
if necessary I would testify for the defense.” Docket 43-1 at 1–2.
Mr. Archey contends “[Trial counsel’s] decision to forego Mr. Pentecost's exculpatory
testimony was not the result of any tactical decisions on his part or, if it was the result of a tactical
decision, that decision was unreasonable and was beneath the standard of care for attorneys
employed in the provision of criminal defense in the Third Judicial District.” Docket 21-5 at 2.
Mr. Archey’s trial counsel subsequently filed an affidavit in which he acknowledged his
awareness of Mr. Pentecost and described speaking with a local defense attorney regarding Mr.
Pentecost. Docket 21-6 (Hatton Greer April 19, 2012 Affidavit) at 2. Trial counsel stated that he
“do[es] not recall if [he] spoke to Mr. Pentecost at this time.” Docket 21-6 at 2.

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the admission of the jail phone calls in Mr. Archey’s petition for review to the Alaska
Supreme Court. 19 The superior court dismissed the post-conviction relief application for
failure to state a prima facie case. 20
Mr. Archey then appealed the superior court’s dismissal of his post-conviction relief
application to the Alaska Court of Appeals. Mr. Archey renewed his claims that trial
counsel was ineffective for failing to establish proper grounds for excluding the phone
conversations Mr. Archey had with his son while incarcerated and that trial counsel was
ineffective for failing to call Mr. Pentecost to testify at trial. 21 The Court of Appeals
affirmed, holding that even if trial counsel had been ineffective in failing to investigate or
present the testimony of Mr. Pentecost, Mr. Archey had not shown that he suffered
prejudice as a result. 22 Mr. Archey’s petition for review with the Alaska Supreme Court
was denied. 23
On November 4, 2015, Mr. Archey initiated this action by filing a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. 24 On September 16, 2016, Mr. Archey filed
an amended habeas petition, asserting that trial counsel’s failure to investigate Gordon
Pentecost’s potentially exculpatory testimony violated Mr. Archey’s Sixth Amendment

19

Docket 19 at 7; Docket 39 at 14; Docket 21-1; Docket 21-2; Docket 21-5.

20

Archey v. State (Archey II), No. A-11516, 2015 WL 1881554, at *1 (Alaska Ct. App. Apr. 22,
2015).

21

Id.; Docket 21-13 (Archey II case).

22

Id. at *3.

23

See Archey v. State, S-15916 (Alaska Supreme Court Order denying petition for review,
September 4, 2015).

24

Docket 1 (Habeas Petition).

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right to effective counsel. 25 Mr. Archey also stated that “the Court of Appeals’ adjudication
of [his] claim rested on an unreasonable determination of the facts in light of the evidence
presented at the state court proceeding.” 26 In Mr. Archey’s merits brief, filed on August
24, 2017, he alleged ineffective assistance of counsel for the failure to investigate Gordon
Pentecost and also asserted that the Alaska court had made an unreasonable
determination of the facts because it had mischaracterized evidence at trial regarding Mr.
Archey’s recorded jail phone calls. 27
On March 12, 2018, the magistrate judge issued the R & R, recommending the
denial of Mr. Archey’s petition. The magistrate judge found that the Court of Appeals’
factual mischaracterization was not relevant to a material factual issue central to Mr.
Archey’s claim and therefore did not provide a basis for relief. 28 With regard to the
ineffective assistance claim, the magistrate judge found that Mr. Archey had not shown
that the state court unreasonably applied clearly established federal law when it held that
Mr. Archey was not prejudiced by trial counsel’s approach to Mr. Pentecost. 29 Mr. Archey
then filed objections to the R & R on March 19, 2018. 30

B. DISCUSSION

25

Docket 19 at 10.

26

Docket 19 at 10.

27

Docket 39 at 19–20.

28

Docket 45 at 30.

29

Docket 45 at 21–22.

30

Docket 46.

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Mr. Archey raised five objections to the R & R, each of which the Court addresses
de novo below.
1. “Mr. Archey raised both grounds for relief in his amended petition.” 31
Mr. Archey first contends that the magistrate judge “fault[ed] Mr. Archey for not
having identified Claim 2 in his amended petition.” 32 The magistrate judge stated that Mr.
Archey “raise[d] for the first time in his merits brief the contention that the Alaska Court of
Appeals made an unreasonable determination of facts in denying his post-conviction relief
appeal.” 33

Mr. Archey points to a portion of his amended petition that alleged an

unspecified unreasonable determination of the facts in light of the evidence presented at
the state court proceedings. 34

As such, the magistrate judge’s statement that the

unreasonable determination of facts claim was not raised until the amended petition was
not correct.

Nevertheless, the magistrate judge fully considered this claim, “treat[ing]

Archey’s merits brief at Docket 39 as amending his habeas petition to include the second
claim.” 35 Therefore, this objection is moot, because the magistrate judge analyzed the
unreasonable factual determination claim.

However, the Court will not adopt the

magistrate’s statement that Mr. Archey’s Claim 2 argument was not raised until his merits
brief.

31

Docket 46 at 1.

32

Docket 46 at 1–2.

33

Docket 45 at 15–16.

34

Docket 46 at 1–2; Docket 19 at 10; but see Docket 19 at 5 (“In one of those phone calls, Mr.
Archey spoke with his son, who disclosed that the police had located a black bag on Samson’s
property. Archey responded that someone should tell Sills to stop talking to the police.”).
35

Docket 45 at 16.

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2. “To obtain relief under 28 U.S.C. § 2254(d)(2), Mr. Archey does not have to
prove that all reasonable jurists would conclude the state-court decision was
unreasonable.”36
Mr. Archey appears to argue that the magistrate judge applied an incorrect legal
standard to his ineffective assistance claim. 37 The magistrate judge described “[t]he
pivotal question [as] whether the state court’s application of the Strickland standard was
unreasonable.”38 The magistrate judge also stated that
[T]his court’s inquiry is not to conduct a de novo Strickland analysis. Instead,
its two duties are to, first, “determine what arguments or theories supported
or . . . could have supported, the state court's decision;” and, second, to
“ask whether it is possible fair-minded jurists could disagree that those
arguments or theories are inconsistent with” the Supreme Court’s Strickland
jurisprudence. 39
Mr. Archey appears to contend that the magistrate judge erred by applying the
standard articulated by the Supreme Court in Harrington v. Richter, in which the Court
held that “[a] state court's determination that a claim lacks merit precludes federal habeas
relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court's
decision.”40 Citing to a Supreme Court decision from 2000, Williams v. Taylor, Mr. Archey
argues that the Supreme Court has “offered two seemingly contradictory definitions of the

36

Docket 46 at 2.

37

Docket 46 at 2–4 (citing Williams v. Taylor, 529 U.S. 362 (2000)).

38

Docket 45 at 23.

39

Docket 45 at 23–24 (citing Harrington v. Richter, 562 U.S. 86, 101 (2011)).

40

Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In Richter,
the Supreme Court held that “[a]s a condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court's ruling on the claim being presented in federal court
was so lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. at 103. The Court added,
“If this standard is difficult to meet, that is because it was meant to be.” Id. at 102.
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standard for relief.”41 Mr. Archey argues that pursuant to Williams v. Taylor, “a habeas
Petitioner does not bear the burden of proving unanimity among fair-minded judges about
the correctness of the state-court decision in order to show that the state court’s decision
is ‘unreasonable.’” 42

Mr. Archey further asserts that “[t]he standard announced in

Harrington (i.e., relief is foreclosed so long as fair-minded jurists – plural – could disagree
about the merits of the state court decision), should not be interpreted as requiring a
habeas petitioner to bear the impossible burden of proving that all reasonable jurists
would be in agreement about the correctness of the state court’s adjudication of the
claim.” 43
Mr. Archey does not point to a particular statement of law by the magistrate judge
that he maintains is incorrect, and thus the objection is overruled on that basis. Moreover,
although there may be some tension between the Supreme Court’s statements in Taylor
and Richter, the Supreme Court has more recently instructed courts to ask “whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of this Court.” 44 The magistrate judge
cited to and applied this controlling Supreme Court precedent. 45

41

Docket 46 at 2 (citing Williams v. Taylor, 529 U.S. 362 (2000)).

42

Docket 46 at 3.

43

Docket 46 at 4.

44

Richter, 562 U.S. at 102.

45

Docket 45 at 27 (“In the present case, there is no possibility that ‘fairminded jurists could
disagree’ with Alaska’s resolution of Archey’s Strickland claim, and as such his habeas claim must
be denied.”).
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3. “The failure to call Pentecost as a witness was objectively unreasonable and
constituted a violation of Strickland’s deficiency prong.” 46
Mr. Archey has asserted that his trial counsel was ineffective for failing to call
potential witness Gordon Pentecost at his trial. 47 Mr. Archey contends that Mr. Pentecost
could have testified as to Ms. Samson’s involvement in the process of producing
methamphetamine, thus undermining her testimony implicating Mr. Archey at trial. 48 The
Alaska Court of Appeals did not adjudicate whether trial counsel’s performance was
deficient in this regard. Rather, it held that “even assuming [Mr.] Archey's trial attorney
was incompetent for failing to call Pentecost as a witness, [Mr.] Archey has not shown
that he suffered prejudice as a result.” 49 However, on habeas review, the magistrate
judge addressed the adequacy of trial counsel’s performance on this issue, and found
that “[d]efense counsel in [Mr.] Archey’s case exercised reasonable professional
judgment.” 50
Mr. Archey contends that the Court should reject the magistrate judge’s
recommendation and should instead find that Mr. Archey’s trial counsel was ineffective
not only for failing to call Mr. Pentecost at trial, but also for failing to adequately investigate
the possibility of calling Mr. Pentecost as a witness. 51 Mr. Archey argues that “[i]n the

46

Docket 46 at 4.

47

Docket 46 at 4–5.

48

See supra note 18.

49

Archey II, No. A-11516, 2015 WL 1881554, at *3 (Alaska Ct. App. Apr. 22, 2015).

50

Docket 45 at 24.

51

Docket 46 at 4–5. The magistrate judge found that Mr. Pentecost’s affidavit “stat[ed] that he
did talk to trial counsel at the time of trial and he did disclose then what he knew about Samson.”
Docket 45 at 24. But Mr. Archey argues that “even assuming [trial counsel] spoke with Pentecost,
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context of impeachment witnesses, the Ninth Circuit has held that, although counsel’s
approach to impeachment is often viewed as a tactical decision, and such decisions do
not constitute deficient conduct simply because there are better options, a poor tactical
decision may constitute deficient conduct if ‘the defendant can overcome the presumption
that, under the circumstances, the challenged action or lack of action might be considered
sound trial strategy.’” 52 Mr. Archey maintains that trial counsel was ineffective for failing
to “make any attempt at conducting a thorough pretrial investigation that would have
revealed valuable impeachment evidence that would have undermined the prosecution’s
assertion that Archey—and Archey alone—had knowledge and access to the chemicals
which formed the gravamen of the state’s case.” 53
However, as the magistrate judge found, the record indicates that Mr. Archey’s trial
counsel did in fact investigate the possibility of eliciting Mr. Pentecost’s testimony at trial.
In trial counsel’s April 19, 2012 affidavit, he recalls that he inquired about Mr. Pentecost
with a local defense attorney who was familiar with Mr. Pentecost. 54 Trial counsel also
indicated that he considered Mr. Pentecost as a potential witness, before deciding not to
call him at trial. 55 Furthermore, Mr. Pentecost himself stated in his affidavit that he had

that bare fact alone does not invariably give rise to the conclusion that [trial counsel’s] decision to
forego calling Pentecost as a witness was competent.” Docket 46 at 4.
52

Docket 46 at 5–6 (quoting Reynoso v. Giurbino, 462 F.3d 1099, 1113 (9th Cir. 2006) (alterations
omitted).
53

Docket 46 at 6.

54

Docket 21-6 at 2 (“I spoke with a local defense attorney regarding Mr. Pentecost. That local
defense attorney was Carol Brenckle. I believe she had recently represented a co-defendant of
Mr. Pentecost. Ms. Brenckle was of the opinion that if Mr. Pentecost was facing legal trouble, he
would try to help out the State in hopes of getting consideration on his case.”).

55

Docket 21-6 at 1–2 (“My memory of how Mr. Pentecost came to be considered a potential

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told trial counsel that he had personal knowledge of relevant facts and could testify at trial
if necessary. 56 Therefore, this Court adopts the finding of the magistrate judge that
counsel did investigate Mr. Pentecost by communicating directly with him. 57 At trial, trial
counsel initially indicated that he planned to call Mr. Pentecost to testify. 58 That trial
counsel ultimately decided not to call Mr. Pentecost to testify as an impeachment witness
does not demonstrate a failure to perform an adequate pretrial investigation. 59 Therefore,
Mr. Archey’s assertions do not rebut the “strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance.”60
Reynoso v. Giurbino, the case cited by Mr. Archey, does not support a different
conclusion. In Reynoso, the defendant’s trial counsel failed to interview the only two
purported eyewitnesses in a murder trial. 61 Consequently, trial counsel did not learn that

witness was that either Lisa Sampson, or Joanna Sampson-Sills testified that while Mr. Archey
was in jail Mr. Archey called them and told them to hide the duffle bag containing meth making
equipment. . . . I decided not to call Mr. Pentecost.”). Trial counsel also stated, “I no longer have
access to Mr. Archey's file because I no longer work with Osterman Law Office, and Mr. Osterman
has moved out of state. Thus, all of the following statements are based on memory.” Docket 216 at 1. Trial counsel’s affidavit is dated April 19, 2012; the trial was held in June 2007.
56

Docket 43-1 at 2.

57

Docket 45 at 9 (“[T]his court finds that defense counsel [ ] did talk directly to Pentecost at the
time of Archey’s trial.”).
58

Docket 20-2 at 162.

59

A number of concerns could have persuaded trial counsel not to call Mr. Pentecost. For one,
at the time of Mr. Archey’s trial, Mr. Pentecost was facing criminal charges, and trial counsel may
have been concerned that Mr. Pentecost would testify against Mr. Archey in an effort to gain favor
with the prosecutor. Furthermore, testimony that Ms. Samson had actively participated in the
production of methamphetamine would not have undermined the evidence that Mr. Archey
manufactured methamphetamine, and therefore trial counsel may well have concluded that the
potential benefits of Mr. Pentecost’s testimony would not outweigh the risks.
60

Strickland v. Washington, 466 U.S. 668, 689 (1984).

61

462 F.3d 1099 (9th Cir. 2006).

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both eyewitnesses had contacted law enforcement in response to an offer of a cash
reward in return for information about the crime. Given the paucity of other evidence
against the defendant, this impeachment evidence may have been especially critical to
the defense. As the Ninth Circuit explained,
Reynoso's trial counsel failed to interview the only two witnesses who
placed Reynoso at the scene of the murder. She also failed to crossexamine these critical witnesses effectively, neglecting to examine the
relationship of the reward to their pivotal testimony in this case. The
consequence was that the defense did not provide the jury with the motive
to lie that would have explained why the State's eyewitnesses'
identifications of the defendant were not worthy of credence. Given that the
testimony of the two witnesses was central to the prosecution's case and
that the case against Reynoso was otherwise exceedingly weak, such a
performance unquestionably fell outside “the wide range of reasonable
professional assistance” contemplated by Strickland [v. Washington]. 62
In Reynoso, trial counsel later acknowledged that “cross-examination about the
reward would have been entirely consistent with [counsel’s] decision to cross-examine
another similarly situated witness” and “conceded that such questioning likely would have
weakened [one of the key witness’s] credibility substantially.” 63 Here, in contrast, the
potential impact of Mr. Pentecost’s testimony is far less clear—he was not a key
prosecution witness, nor has Mr. Archey demonstrated that trial counsel failed to interview
Mr. Pentecost. To the contrary, the record demonstrates that trial counsel communicated
with but then did not call this potential witness to testify. In short, Mr. Archey has not

62

Id. at 1120.

63

Id. at 1114.

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demonstrated that trial counsel failed to “make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” 64
4. “[Mr.] Archey has shown that he was prejudiced by his trial counsel’s actions,
and fair-minded jurists would agree that the state court’s resolution of this issue
was unreasonable.”65
28 U.S.C. § 2254 provides that when a state court has adjudicated a criminal
petitioner’s claim on the merits, a district court may grant a habeas petition when the state
court’s adjudication of the claim “resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” Here, the Alaska Court of Appeals determined that
Mr. Archey “failed to show that he was prejudiced by his trial attorney's decision not to
call Pentecost as a witness,” stating:
As the superior court emphasized, Pentecost's affidavit did not assert that
he had any knowledge of Archey's involvement (or lack of involvement) in
the manufacture of methamphetamine or in the possession of drugs used
to manufacture methamphetamine—the conduct underlying Archey's
convictions. Pentecost only asserted that he could testify that Samson, not
Archey, controlled the methamphetamine laboratory. 66
Similarly, the magistrate judge found “that [Mr.] Archey has failed to show a reasonable
possibility that the outcome of his trial would have been different had his trial counsel
presented the witness testimony of Pentecost, considering all the other evidence
presented at trial.”67

64

Strickland, 466 U.S. at 691.

65

Docket 46 at 7.

66

Archey II, 2015 WL 1881554, at *3.

67

Docket 45 at 22.

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To prove prejudice under Strickland, a defendant must show that there is a
“reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” 68 Here, as before the Alaska Court of Appeals
and the magistrate judge, Mr. Archey asserts that trial counsel’s failure to call Mr.
Pentecost as a witness was prejudicial because it allowed Lisa Samson’s testimony that
she had not participated in the production of methamphetamine to go unchallenged. Mr.
Archey asserts that
Samson denied seeing evidence of methamphetamine manufacturing in her
home. She specifically denied seeing any bottles or chemicals. She
specifically denied that she had ever used methamphetamine before
meeting Mr. Archey. Her testimony was bolstered in part by her sister’s
tearful assertion that Archey had used Ms. Samson as a “gopher” for his
scheme . . . . Pentecost’s testimony would have significantly undermined
this testimony, and by extension the prosecution’s depiction of Samson as
a blameless puppet. 69
Mr. Archey maintains that had Mr. Pentecost testified, he would have undermined Ms.
Samson’s testimony to such an extent that a jury would not have concluded that he was
guilty of at least one of the charges against him.

However, the substance of Mr.

Pentecost’s testimony is entirely speculative, and there has been no adjudication of what
Mr. Pentecost likely would have stated at trial. In short, Mr. Archey has not shown that
reasonable jurists would find the state court’s decision on the issue of prejudice was
unreasonable.
As the Alaska Court of Appeals recognized, even if Mr. Pentecost’s testimony had
undermined Ms. Samson’s statements that she was unfamiliar with the process of

68

Strickland, 466 U.S. at 694.

69

Docket 46 at 7–8 (internal citations omitted).

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manufacturing methamphetamine, it is not clear how that testimony would have benefitted
Mr. Archey. 70 Prior to Mr. Archey’s trial, Ms. Samson had pleaded guilty to possession
of methamphetamine and maintaining a dwelling for the keeping or distribution of
controlled substances, and the jury was informed of that fact. 71
More

importantly,

testimony

related

to

Ms.

Samson’s

familiarity

with

methamphetamine production would not have significantly undermined the other
evidence against Mr. Archey, even if it did undermine Ms. Samson’s credibility as a
witness and further implicate her in the production of methamphetamine. The evidence
against Mr. Archey included testimony by Joanna Samson-Sills that Mr. Archey was
involved in producing methamphetamine, and that her sister, Ms. Samson, had been
contacted by Mr. Archey through a third party, instructing her to move the black duffle bag
that contained equipment for producing methamphetamine. 72 Pat Price, a neighbor,
informed police that Mr. Archey had asked him to lock the trailer with a padlock once
police arrived. 73 Furthermore, Mr. Archey’s phone calls from jail indicated an awareness
of the black duffle bag and its contents, giving rise to a potential inference that he
possessed the bag and used it to produce methamphetamine. 74 This evidence provides

70

See Archey II, 2015 WL 1881554 at *3 (“Archey was ultimately acquitted of the charge that he
maintained a dwelling used for keeping or distributing controlled substances. Consequently, even
if Pentecost had testified that Samson controlled the laboratory, there is no reasonable possibility
that his testimony would have altered the outcome of Archey's case. Archey has therefore failed
to show that he was prejudiced by his trial attorney's decision not to call Pentecost as a witness.”).

71

Docket 46 at 7.

72

Docket 39 at 9; Docket 20-2 at 125, 128.

73

Docket 39 at 6.

74

See Docket 39 at 11.

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ample grounds for the jury’s verdict, even if Mr. Pentecost had testified. Therefore, Mr.
Archey has not shown that the Alaska Court of Appeals unreasonably applied the
prejudice prong of the Strickland standard. 75
5. “The erroneous characterization of the phone calls was an unreasonable
determination of the facts which was material to the Court of Appeals’
adjudication of Mr. Archey’s Sixth Amendment claim.” 76
In Mr. Archey’s direct appeal, the Alaska Court of Appeals mischaracterized the
content of the jail phone calls between Mr. Archey and his son on August 31, 2006,
stating:
On the tapes, Archey's son mentioned that the police had found the black
bag, and Archey responded that someone should tell [Ms. Samson-]Sills to
stop talking to the police. This evidence suggested that Archey knew about
the bag, and that he blamed [Ms. Samson-]Sills for its discovery. 77
In fact, the tapes admitted into evidence and played to the jury do not contain a reference
by Mr. Archey about Ms. Samson-Sills. 78 Therefore, the Court of Appeals’ statement that
“Archey responded that someone should tell [Ms. Samson-]Sills to stop talking to the
police” was factually inaccurate. 79 Mr. Archey contends that he is entitled to habeas relief

75

See White v. Woodall, 134 S. Ct. 1697, 1705 (2014) (recognizing that “a state-court decision
involves an unreasonable application of [Supreme Court] precedent if the state court identifies
the correct governing legal rule but unreasonably applies it to the facts of the particular state
prisoner's case” (citations and alterations omitted)).
76

Docket 46 at 8.

77

Archey I, No. A-10129, 2010 WL 2436739, at *4 (Alaska Ct. App. June 16, 2010).

78

See Trial Exhibit 105.

79

It appears that Mr. Archey did make a statement to the effect of wanting Ms. Samson-Sills to
stop talking to the police. However, he did so in the conversations he had with his mother from
jail, not his son. See Docket 20-2 at 405. The prosecution stated at trial that “the only recording
offered with regard to the two conversations with [Mr. Archey’s] mother is that he repeatedly says
somebody’s got to tell Joanna [Samson-Sills] to shut up and stop talking. Don’t talk to anybody,
don’t talk to cops.” Docket 20-2 at 405. However, the two tapes containing Mr. Archey’s jail phone
calls with his mother were not admitted into evidence. See Docket 20-2 at 415 (the prosecution
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because this factual misstatement was material to the state court’s decision regarding his
ineffective assistance of counsel claim. 80
However, the Court of Appeals’ reference to the content of the phone calls was
made in the context of determining whether the trial court had the discretion to admit the
state’s rebuttal evidence of the jail calls. Specifically, the calls had been admitted at trial
as evidence to rebut Mr. Archey’s claims that he did not make phone calls from jail and
did not know about the black duffle bag. 81 The Court of Appeals’ factual misstatement,
however, was limited to stating that Mr. Archey had referred in those calls to Ms. SamsonSills. 82 The magistrate judge concluded that the Court of Appeals’ factual misstatement
did not “go to a material factual issue that is central to [Mr. Archey’s] claim.”83
Mr. Archey contends that because the Court of Appeals misstated the contents of
the phone calls, it was more likely to reach the wrong conclusion with regard to his
ineffective assistance claim. Mr. Archey asserted in his merits brief, “[b]earing in mind

stated “I also agreed to eliminate the -- both of the calls to the mother so that we’re just focusing
on the two calls with the son.”).
80

Docket 46 at 8.

81

Archey I, 2010 WL 2436739 at *5 (“Archey's defense suggested that Sills owned the black bag
and that he did not make any phone calls from jail asking Samson to move it. The State’s rebuttal
evidence indicated that Archey did make a phone call from jail suggesting that he knew about the
black bag. This newly discovered evidence fell well within the judge's authority to allow new
evidence to support the State's case-in-chief ‘for good reason’ and to make the ‘presentation
effective for the ascertainment of the truth.’”).
82

Mr. Archey’s statements on the tapes do evince an awareness of the black duffle bag after his
arrest. See Trial Exhibit 105, first recording at approximately 1:17.
83

See Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (“[W]here the state courts plainly
misapprehend or misstate the record in making their findings, and the misapprehension goes to
a material factual issue that is central to petitioner's claim, that misapprehension can fatally
undermine the fact-finding process, rendering the resulting factual finding unreasonable.”),
abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014).
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that the phone calls had only limited probative value of Archey’s knowledge of the black
bag, it logically follows that the testimony of Lisa Samson and Joanna Samson-Sills
contributed greatly to the jury’s verdicts.” 84 However, Mr. Archey’s assertion requires
inferences that are not supported by the record. At trial, the phone calls between Mr.
Archey and his son were discussed in the context of demonstrating Mr. Archey’s
awareness of the black duffle bag. 85 Therefore, the connection between the Court of
Appeals’ factual misstatement and potential prejudice resulting from trial counsel’s
decision not to call Mr. Pentecost to testify is exceedingly attenuated, if it exists at all.
Accordingly, Mr. Archey has not demonstrated that the Court of Appeals’ factual
misstatement regarding Mr. Archey’s statement about Ms. Samson-Sills was relevant to
a material factual issue that is central to the ineffective assistance claim.
C. CONCLUSION
The Court has reviewed the parties’ briefing, the records on file, and the decisions
of the Alaska Court of Appeals on both direct review and on the petition for post-conviction
relief. The Court has considered de novo each of the Petitioner’s objections to the Report
and Recommendation.

84

Based on that review, the magistrate judge’s Report and

Docket 39 at 20.

85

See Docket 20-2 at 404–05. At trial, both defense counsel and the prosecution described the
conversations between Mr. Archey and his son. Both parties discussed the fact that Mr. Archey
and his son talked about the black duffle bag. Docket 20-2 at 404–05. Furthermore, the
discussion at trial indicated that the relevance of the phone calls was related to the black duffle
bag. See Docket 20-2 at 213. Regarding the tapes of jail phone calls by Mr. Archey, the
prosecution stated, “There’s two with the son on August 31st and there’s two with his mother on
September 1st. Those are the only recordings I have.” Docket 20-2 at 217. Furthermore, the
prosecution asserted that “[t]he only real relevant ones are the ones to his son.” Docket 20-2 at
213. Defense counsel then stated that “[t]he implication, as I understand it, [is] that [the
prosecution] is going to try and get in [ ] [that] his son would not have known about the black bag
unless is [sic] was Mr. Archey’s black bag.” Docket 20-2 at 213.
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Recommendation at Docket 45 is ACCEPTED, 86 the Amended Petition for Habeas
Corpus at Docket 19 is DISMISSED with prejudice, and the relief sought in Petitioner’s
merits brief at Docket 39 is DENIED.
The Court further finds that Mr. Archey has not made the requisite substantial
showing of the denial of a constitutional right, and therefore a certificate of appealability
will not be issued by this Court. 87 Mr. Archey may request a certificate of appealability
from the Ninth Circuit Court of Appeals.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 30th day of March, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

86

The R & R is accepted in its entirety, with the exception of the magistrate judge’s statement that
Mr. Archey did not raise any claim regarding the state court’s unreasonable determination of the
facts until his merits brief, contained in section IV, subsection A, and section IV, subsection D(5),
of the R & R. See Docket 45 at 15–16, 27; supra p. 7–8.
87

In a 28 U.S.C. § 2254 proceeding, a petitioner may only take an appeal if a circuit or district
judge issues a certificate of appealability. See Fed. R. App. P. 22. Pursuant to § 2253(c)(2), the
certificate may only be issued if the petitioner “has made a substantial showing of the denial of a
constitutional right.” The COA inquiry asks “whether the applicant has shown that ‘jurists of reason
could disagree with the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.’”
Buck v. Davis, 137 S. Ct. 759, 773 (2017). Here, Mr. Archey has not shown that jurists of reason
could disagree with the resolution of the constitutional claims presented in this case when
applying AEDPA’s highly deferential standard.
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