Smith v. Ryan et al

Filing 29

ORDER - The 23 R&R's recommended disposition is accepted. Petitioner's 24 objections are overruled. The 1 petition is denied and dismissed with prejudice. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right and because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable; and the Clerk shall enter judgment accordingly and terminate this action Signed by Judge Dominic W Lanza on 10/4/19. See document for complete details. (MSA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Locy Mendoza Smith, II,
Petitioner,

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ORDER

v.

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No. CV-17-04096-PHX-DWL

Charles L Ryan, et al.,

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Respondents.

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On November 6, 2017, Petitioner filed a petition for writ of habeas corpus under 28

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U.S.C. § 2254. (Doc. 1.) On June 4, 2019, Magistrate Judge Burns issued a Report and

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Recommendation (“R&R”) concluding the petition should be denied and dismissed with

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prejudice. (Doc. 23.) Afterward, Petitioner filed written objections to the R&R (Doc. 24),

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Respondents filed a response (Doc. 26), and Petitioner filed a reply (Doc. 27). For the

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following reasons, the Court will overrule Petitioner’s objections and deny and dismiss his

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petition.

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I.

State Court Proceedings

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On June 9, 2010, officers from the Glendale Police Department discovered a corpse

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in the trunk of a car. (Doc. 23 at 1.) Through investigation, the police learned that the

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victim had operated a marijuana trafficking business with Petitioner and that Petitioner was

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the last known person to be seen with the victim. (Id.) Based on this information, the

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police obtained a warrant to search Petitioner’s home for evidence of drug trafficking. (Id.

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at 1-2.) During the search, the police observed a bullet strike on a floor tile, red drops of

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liquid on the floor, loaded gun magazines, and a wall that appeared to have been freshly

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patched and painted. (Id. at 2.) The police proceeded to test the drops and confirmed they

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were, in fact, blood. (Id.) Based on all of this information, the police obtained another

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warrant to expand the scope of the search. (Id.)

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Petitioner was arrested around the time of the search. (Id.) During a post-arrest

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interview, Petitioner admitted that he had shot and killed the victim during a drug-related

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argument, further admitted that he’d attempted to clean his house with bleach and patch

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the wall after the murder, and further admitted that he’d disposed of the victim’s property

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and placed the victim in the trunk after the murder. (Id.)

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Before trial, Petitioner’s counsel moved to suppress the blood evidence and the
evidence found during the second search. (Id.) The trial court denied the motion. (Id.)

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At trial, Petitioner testified in his own defense. (Id.) The jury could not reach a

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unanimous verdict on the charge of first-degree murder but convicted Petitioner of the

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lesser-included offense of second-degree murder, as well as of the charge of abandonment

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or concealment of a body. (Id.) Petitioner was sentenced to consecutive terms of

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imprisonment totaling 24 years. (Id.)

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Petitioner timely appealed his conviction and sentence to the Arizona Court of

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Appeals. (Id. at 3.) The sole argument raised in this appeal was whether the trial court

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erred by denying the suppression motion. (Id.) In an unpublished decision issued in June

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2013, the Arizona Court of Appeals affirmed. (Id. at 2-3.)

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In July 2013, Petitioner filed a pro se notice of post-conviction relief (“PCR”). (Id.

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at 3.) In response, the trial court appointed counsel, who subsequently informed the court

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that he could not identify any colorable issues. (Id.) Petitioner also filed a pro se PCR

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petition in which he raised the following arguments: (1) the state presented false testimony;

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(2) the state failed to adequately investigate the case; (3) the state violated Brady; (4) the

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trial court improperly excluded certain evidence; and (5) he received ineffective assistance

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because his trial counsel (a) failed to obtain and use impeachment evidence, (b) untimely

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interviewed the state’s medical examiner, and (c) failed to investigate or present mitigation

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evidence at sentencing. (Id.)

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On December 2014, the trial court dismissed the PCR petition. (Id.) The court

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found that many of Petitioner’s claims were precluded under Rule 32.2 of the Arizona

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Rules of Criminal Procedure, because he could have raised them in his direct appeal, and

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that Petitioner’s ineffective assistance claims failed because, regardless of whether

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counsel’s performance was deficient, Petitioner “failed to show any evidence of prejudice”

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in light of the “overwhelming evidence of [Petitioner’s] guilt.” (Id. at 3-4.)

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In February 2017, the Arizona Court of Appeals issued a memorandum decision

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affirming the trial court’s dismissal of the PCR petition. (Id. at 4.) In that decision, the

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appellate court expressly adopted the trial court’s reasoning and analysis. (Id.)

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In September 2015, while his appeal in the first PCR proceeding was pending,

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Petitioner filed a second pro se PCR notice. (Id.) Once again, the trial court appointed

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counsel, and once again, counsel could not identify any colorable issues. (Id.) Petitioner

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then filed a second pro se PCR petition, which raised the following seven grounds for

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relief: “(1) the State committed misconduct by presenting false testimony by witness

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McKeen; (2) the State in bad faith, failed to collect potentially exculpatory evidence; (3)

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the State violated the defendant’s rights under Brady by not raising the fact that witness

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McKeen had knowledge of the drug transactions that he and the victim were involved in;

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(4) defense counsel engaged in ineffective assistance of counsel; (5) defense counsel failed

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to collect or utilize impeachment material to attack witness testimony; (6) defense counsel

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erred by interviewing the medical examiner immediately before trial; and (7) defense

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counsel failed to investigate or present sufficient mitigation at sentencing.” (Id.)

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In December 2016, the trial court dismissed the second PCR petition. (Id.) The

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court found that all of Petitioner’s claims had been raised in his first PCR petition, only to

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be rejected on the merits, and/or could have been raised in the first PCR petition and were

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therefore forfeited. (Id.)

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In November 2017, the Arizona Court of Appeals denied Petitioner’s petition for
review of the order denying his second PCR petition. (Id.)

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II.

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On November 6, 2017, Petitioner filed his habeas petition. (Doc. 1.) It asserts the
following 10 grounds for relief:

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(1)

Fourth Amendment violation—issuance of illegal search warrant. (Doc. 1 at

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Ineffective assistance of counsel—“Failure of Trial Attorney to Investigate

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The Petition

Case.” (Doc. 1 at 7-8.)

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(3)

Ineffective assistance of counsel. (Doc. 1 at 9-11.)

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(4)

Brady violation. (Doc. 1 at 12.)

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(5)

Admission of false testimony. (Doc. 1 at 13-14.)

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(6)

Ineffective assistance of counsel—“Trial Attorney Failed to Provide

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Appellate Attorneys With Complete File.” (Doc. 1 at 15.)

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(7)

Failure to provide full discovery. (Doc. 1 at 16.)

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(8)

Violation of right of self-representation. (Doc. 1 at 17.)

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(9)

“Due process violation for failure to allow the defendant to investigate the

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state’s case and to pursue evidence to prove statements in appeals petition.” (Doc. 1 at 18.)

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(10)

“Due process violation for ignoring all evidence of 2nd post conviction

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petition to rule it as excessive.” (Doc. 1 at 19.)

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III.

Summary Of R&R

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The R&R concludes the petition should be denied and dismissed with prejudice.

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As for Ground One, the R&R concludes it is not cognizable because Fourth

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Amendment claims cannot provide the basis for habeas relief when (as here) the state

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provided a full and fair opportunity to litigate the claim. (Doc. 23 at 22.)

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As for Grounds Two and Three, the R&R begins by noting that these claims are

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premised on “a narrative account of incidents and allegations purportedly underlying . . .

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multiple claims of ineffective assistance of counsel.” (Id. at 12.) The R&R concludes that

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Petitioner only presented three specific theories of ineffective assistance in his initial PCR

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petition, so any additional theories articulated in Grounds Two and Three are procedurally

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defaulted. (Id. at 12-18.) As for the three non-defaulted theories, the R&R concludes the

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first one (failing to collect or utilize impeachment material to attack the testimony of a

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particular witness, McKeen) fails because “Petitioner has not shown deficient performance

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or prejudice.” (Id.at 18-19.) Specifically, the R&R notes that the record reveals that

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Petitioner’s trial counsel did attempt to impeach and cross-examine McKeen “to the extent

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the judge allowed such questioning” and that a trial attorney’s impeachment strategy is, in

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general, a tactical decision that is afforded great deference. Id.) As for Petitioner’s second

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non-defaulted theory of ineffective assistance (failing to timely interview the medical

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examiner), the R&R concludes that Petitioner failed to show deficient performance or

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prejudice because (1) the evidence shows that counsel actually conducted the interview a

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week before trial and (2) Petitioner has not demonstrated how an earlier interview would

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have resulted in more favorable evidence. (Id. at 20-21.) Finally, as for Petitioner’s third

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non-defaulted theory of ineffective assistance (failing to “submit the results of the

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Rappleyea Investigations Report to the court”), the R&R concludes that Petitioner failed

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to show deficient performance or prejudice because the record reflects that Petitioner’s

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counsel did submit the report as an attachment to his sentencing memorandum and then

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made arguments based upon the report during the sentencing hearing. (Id. at 21-22.)

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As for Grounds Four and Five, the R&R concludes these claims are “procedurally

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barred” because (1) Petitioner could have raised them in his direct appeal but failed to do

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so, (2) the Arizona courts concluded, during the PCR proceedings, that these claims were

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therefore “precluded pursuant to Arizona Rule of Criminal Procedure 32.2(a),” and (3) the

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Arizona courts’ invocation of Rule 32.2(a) constitutes “an adequate and independent state

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ground” for denying relief. (Doc. 23 at 11-12.)

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As for Ground Six, the R&R concludes this claim is procedurally defaulted because
Petitioner failed to raise it during either of his PCR proceedings. (Id. at 12.)

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As for Ground Seven, the R&R concludes (just as it concluded with respect to

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Grounds Four and Five) that this claim is “procedurally barred” because (1) Petitioner

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could have raised it in his direct appeal but failed to do so, (2) the Arizona courts concluded,

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during the PCR proceedings, that this claim was therefore “precluded pursuant to Arizona

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Rule of Criminal Procedure 32.2(a),” and (3) the Arizona courts’ invocation of Rule 32.2(a)

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constitutes “an adequate and independent state ground” for denying relief. (Doc. 23 at 11-

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12.)

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As for Grounds Eight and Nine, the R&R concludes these claims (like Ground Six)

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are procedurally defaulted because Petitioner failed to raise them during either of his PCR

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proceedings. (Id. at 12.)

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Finally, as for Ground Ten, the R&R concludes it lacks merit because it does “not

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allege violations of federal constitutional law” and instead challenges Arizona’s PCR

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procedures. (Id. at 22-23.) (The R&R also concludes that Ground Nine additionally fails

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for this reason.)

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IV.

Legal Standard

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A party may file specific, written objections to an R&R within fourteen days of

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being served with a copy of it. Rules Governing Section 2254 Cases 8(b) (“Section 2254

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Rules”); see also Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). The Court must

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undertake a de novo review of those portions of the R&R to which specific objections are

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made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (“It does not appear that

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Congress intended to require district court review of a magistrate’s factual or legal

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conclusions, under a de novo or any other standard, when neither party objects to those

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findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (“[T]he

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district judge must review the magistrate judge’s findings and recommendations de novo

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if objection is made, but not otherwise.”). The Court may accept, reject, or modify, in

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whole or in part, the findings or recommendations made by the magistrate judge. Section

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2254 Rules 8(b); see also Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1)(C).

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V.

Analysis
Parties’ Arguments

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A.

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Petitioner filed a two-page document entitled “Objection.” (Doc. 24.) First,

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Petitioner objects to the R&R’s rejection of Ground Six,1 arguing that the R&R’s finding

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of procedural default is inaccurate because he raised this claim in his second PCR petition.

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(Id.) Second, with respect his third non-defaulted theory of ineffective assistance (trial

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counsel’s purported failure to “submit the results of the Rappleyea Investigations Report”),

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Petitioner faults the R&R for “overlooking [his] dyslexia,” argues that the jury was never

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able to see the report, and contends the report would have impeached two of the witnesses

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who testified against him because it shows they “had a vested interest in [Petitioner] going

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to prison.” (Id.) Third, in the final sentence of his objections, Petitioner asserts that “[a]ll

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of these mistakes along with the other 9 grounds would demonstrate a miscarriage of

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justice.” (Id. at 2.)

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In their response, Respondents argue that Petitioner’s first objection is unavailing

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because “the R&R did not err by finding that [Petitioner] procedurally defaulted Ground

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6.” (Doc. 26 at 2-3.) Specifically, Respondents state that Petitioner didn’t fairly present

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Ground Six in his second PCR petition because (1) he didn’t identify it as a discrete ground

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for relief, (2) didn’t offer any argument in support of it, (3) merely made a passing reference

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to it in the “conclusion” section of the petition, and (4) characterized it as a claim of

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ineffective assistance of appellate counsel (whereas, here, he seeks to characterize it as a

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claim of ineffective assistance of trial counsel). (Id.) Respondents further note that, even

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if Petitioner had fairly presented this claim in his second PCR petition, it would still be

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considered procedurally defaulted because he could have raised it in his first PCR petition.

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(Id.) As for Petitioner’s second objection, Respondents argue that the theory Petitioner

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now wishes to pursue (i.e., trial counsel failed to present the report to the jury) is different

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from the theory he articulated in his habeas petition, which is that trial counsel failed to

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present the report to the state-court judge or request a new trial based upon it. (Id. at 3-4.)

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Respondents also argue that the report didn’t, in any event, identify any facts that might

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warrant a new trial. (Id. at 4.) As for Petitioner’s third objection (miscarriage of justice),

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Respondents argue that (1) “this is a new argument because [Petitioner] did not allege a

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Although Petitioner refers to “Ground 9” in his objection (Doc. 24 at 1), he clarifies
in his reply that he was actually referring to Ground Six (Doc. 27 at 1).
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fundamental miscarriage of justice in his habeas petition” and (2) on the merits, there can

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be no such miscarriage here because Petitioner “does not allege or prove actual innocence.”

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(Id. at 4-5.)

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In his reply, Petitioner argues that he did fairly raise Ground Six in his second PCR

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petition and that he couldn’t have raised this claim in his first PCR petition because he

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“only discovered” the basis for it in March 2016. (Doc. 27 at 1-2.)

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B.

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Petitioner’s objections will be overruled. As an initial matter, because Petitioner

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didn’t raise any objections to the R&R’s rejection of Grounds One, Four, Five, Seven,

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Eight, Nine, and Ten of the petition, the Court will adopt the R&R’s rejection of those

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claims without further discussion. Thomas, 474 U.S. at 149-50; Reyna-Tapia, 328 F.3d at

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1121.

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Discussion

As for Grounds Two and Three, the R&R provided an array of reasons why these

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claims should be rejected.

Petitioner objects to only one small component of this

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analysis—the R&R’s rejection of one of his non-defaulted theories of ineffective assistance

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(counsel’s alleged failure to submit the results of the Rappleyea Investigations Report).

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Thus, the Court will adopt, without further discussion, the unobjected-to portions of the

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R&R addressing Grounds Two and Three. Thomas, 474 U.S. at 149-50; Reyna-Tapia, 328

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F.3d at 1121.

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The Court also agrees with the R&R’s rationale for rejecting the ineffective

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assistance claim in Grounds Two and Three premised on counsel’s purported failure to

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utilize the report. First, Petitioner hasn’t demonstrated that counsel’s performance was

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deficient. Although Petitioner faults his counsel for not presenting the report to the jury,

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the trial ended on September 20, 2011 (Doc. 12-1 at 20) and the report wasn’t issued by

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the investigative agency until November 19, 2011 (Doc. 12-3 at 58). Counsel couldn’t

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have utilized, during trial, a report that didn’t even exist yet. Second, Petitioner also cannot

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demonstrate prejudice. As noted, Petitioner confessed the police after they found drops of

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blood, loaded gun magazines, and a freshly-patched wall in his home. See generally Doc.

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23 at 3-4 (R&R, noting that the state courts rejected Petitioner’s ineffective-assistance

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claims because “the “overwhelming evidence of [Petitioner’s] guilt” made it impossible to

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demonstrate prejudice).

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As for Ground Six, the Court agrees with the R&R that Petitioner procedurally

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defaulted this claim by failing to fairly present it during the state-court proceedings.

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Petitioner’s second PCR petition appears at Doc. 12-6, pages 14-34. In the section of this

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petition entitled “Denial of Trial Counsel,” Petitioner identified a laundry list of reasons

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why he was dissatisfied with his trial counsel’s performance. (Doc. 12-6 at 18-23.) That

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section of the petition doesn’t say anything about trial counsel’s alleged failure to provide

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records to appellate counsel. (Id.) It is only in a different section of the brief, entitled

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“Conclusion,” that Petitioner made a passing claim that his trial counsel did “not disclos[e]

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his full file to the Defendant and other Attorney’s” and thus “affect[ed] the post-conviction

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proceedings.” (Doc. 12-6 at 30.) This is not fair presentation. Moreover, even if this claim

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weren’t procedurally defaulted, it fails to provide a valid foundation for an ineffective-

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assistance claim because, as noted above, the overwhelming evidence of Petitioner’s guilt

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makes it impossible to demonstrate prejudice.

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Finally, as for Petitioner’s attempt to raise a “fundamental miscarriage of justice”

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claim in his objections, the R&R correctly rejected the possibility of such a claim (Doc. 23

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at 14-15) because, inter alia, Petitioner hasn’t proved actual innocence.

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Accordingly, IT IS ORDERED that:

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(1)

The R&R’s recommended disposition (Doc. 23) is accepted;

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(2)

Petitioner’s objections (Doc. 24) are overruled;

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(3)

The petition (Doc. 1) is denied and dismissed with prejudice;

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(4)

A Certificate of Appealability and leave to proceed in forma pauperis on

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appeal are denied because Petitioner has not made a substantial showing of the denial of a

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constitutional right and because the dismissal of the petition is justified by a plain

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procedural bar and jurists of reason would not find the procedural ruling debatable; and

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…

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(5)

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Dated this 4th day of October, 2019.

The Clerk shall enter judgment accordingly and terminate this action.

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