Thompson v. Ryan et al

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATION: IT IS ORDERED that the 29 Report and Recommendation is adopted as the findings of fact and conclusions of law of this Court. The Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED, and the Clerk of the Court shall enter Judgment, accordingly. IT IS FURTHER ORDERED that Petitioner's 36 Motion for a Certificate of Appealability is GRANTED. Signed by Senior Judge David C Bury on 1/11/16.(BAC)

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1 2 UNITED STATES DISTRICT COURT 3 DISTRICT OF ARIZONA 4 5 Lyndall Dwaine Thompson, 6 Petitioner, 7 v. 8 Charles L. Ryan, et al., 9 Respondents. 10 11 12 ) ) ) ) ) ) ) ) ) ) ) ) CV-12-00766-TUC-DCB ORDER This matter was referred to Magistrate Judge Bruce G. Macdonald, pursuant 13 to the Rules of Practice for the United States District Court, District of Arizona 14 15 (Local Rules), Rule (Civil) 72.1(a). On July 31, 2015, he issued a Report and 16 Recommendation (R&R), recommending that the Court dismiss the Petition for 17 Writ of Habeas Corpus. 18 On April 11, 2008, a jury found Petitioner, Lyndall Dwaine Thompson, 19 20 guilty of second degree murder for shooting and killing his brother. On July 14, 21 2008, Petitioner was sentenced to the presumptive term of sixteen years 22 23 imprisonment. After the shooting, Petitioner called police and claimed the shooting 24 25 was in self-defense. Prior to being interviewed by police, he was Mirandized and 26 1 1 2 3 agreed to waive his Miranda rights, act as his own attorney, and answer police officer’s questions if they would answer his questions. Thereafter, he made incriminating statements. During the interview, police responded to his inquiries 4 5 regarding his brother’s condition by acting like they didn’t know it, but they knew 6 his brother was dead. His trial attorney did not seek to suppress the interview and 7 a redacted recording of the interview was presented to the jury. Petitioner asserts 8 9 that he did not see a copy of the un-redacted recording until after the trial, and 10 Petitioner argues that there were differences in the redacted tape recording played 11 to the jury which were so substantial as to amount to a presentation of false 12 evidence. 13 Petitioner’s claim of self-defense was that he had thrown his hand gun on the 14 15 ground and believed his brother picked it up and was armed, and after he shot his 16 brother he also threw his SKS automatic rifle on the ground and ran away. The 17 18 testimony and statements from police were that they found both weapons on the 19 top of a vehicle parked in his carport. There was some confusion over whether the 20 guns were put there by the defendant or moved there by police because none of the 21 22 investigating officers were responsible for initially locating the gun, and the 23 Government in closing admitted: “we would like to know how the guns got there.” 24 (Response (Doc. 11-3(A): TR at122.) Petitioner argues his counsel should have 25 26 investigated and discovered which officer actually found the guns and where the 2 1 2 3 guns were found because proof that the guns were found on the ground would have supported his assertion of self-defense. Whereas, the guns being found together on top of the vehicle totally undermined his self-defense claim. 4 On habeas, Petitioner raises eight (8) grounds for relief. First, Petitioner 5 6 alleges ineffective assistance of trial counsel due to an alleged failure to move to 7 suppress incriminating statements, which he asserts were unconstitutionally 8 9 obtained by police. Second, Petitioner alleges ineffective assistance of trial counsel 10 based on an alleged failure to move for additional disclosure and/or failure to 11 investigate who found his weapons and where the guns were located when found. 12 The remainder of Petitioner’s claims relate to his assertion that the State used false 13 14 evidence against him because it introduced a redacted recording of his confession, 15 which materially misrepresented his statements to the jury. Petitioner asserts that 16 an evidentiary hearing is required. (Objection (Doc. 34) at 3 (citing Doody v Ryan, 17 18 19 649 F.3d 986, 1021 (9th Cir. 2011); Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)). 20 STANDARD OF REVIEW 21 The duties of the district court in connection with an R&R by a Magistrate 22 23 24 Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in 25 26 part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 3 1 2 3 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to an R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) 4 5 (quoting 28 U.S.C. § 636(b)(1)). This Court's ruling is a de novo determination as to those portions of the 6 7 R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 8 9 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 10 1114, 1121-22 (9th Cir.2003) (en banc). To the extent that no objection has been 11 made, arguments to the contrary have been waived. Fed. R. Civ. P. 72; see 28 12 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days 13 14 of service of the R&R), McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) 15 (failure to object to Magistrate's report waives right to do so on appeal); see also 16 Advisory Committee Notes to Fed. R. Civ. P. 72 (citing Campbell v. United States 17 18 Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, 19 the court need only satisfy itself that there is no clear error on the face of the record 20 in order to accept the recommendation)). 21 The parties were sent copies of the R&R and instructed that, pursuant to 28 22 23 24 U.S.C. § 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party objecting to the recommended disposition has fourteen (14) days 25 26 to file specific, written objections). The Court has considered the objections made 4 1 2 by the Petitioner, and the parties’ briefs considered by the Magistrate Judge in deciding the Petition for Writ of Habeas Corpus. 3 OBJECTIONS 4 Evidentiary Hearing 5 In Petitioner’s Objection to the R&R, he charges that the Magistrate Judge 6 7 erred in failing to order an evidentiary hearing to determine Petitioner’s ineffective 8 9 assistance of counsel claims one and two and his false evidence claim five. 10 “Specific issues on which an evidentiary hearing is required in this case to resolve 11 disputed factual claims include, although are not necessarily limited to: (1) whether 12 Petitioner’s counsel performed deficiently in failing to move to suppress 13 14 Petitioner’s custodial statements to police; (2) whether Petitioner’s counsel acted 15 unreasonably in failing to further investigate and challenge the initial location of 16 the weapons; and (3) whether Petitioner was prejudiced by these failures and 17 18 omissions.” (Objection (Doc. 34) at 9.) 19 Petitioner argues he has established a “colorable” claim for relief on counts 20 one and two, and five, and he was never been accorded a state evidentiary hearing 21 22 on them. He asserts that Magistrate Judge Macdonald made the same mistake. 23 Petitioner asserts he is entitled to a hearing because he has established a colorable 24 claim, i.e., he has alleged facts which, if true, would entitle him to relief. 25 26 (Objection (Doc. 34) at 4.) This Court must decide “whether such a hearing could 5 1 2 enable [Petitioner] to prove the petition’s factual allegations.” Id. (citing Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). 3 The Court denies the Petitioner’s request for an evidentiary hearing because 4 5 he presents no evidence to suggest he could prove the Petition’s factual allegations 6 at such a hearing. As noted by the Magistrate Judge: “’Judges are not like pigs, 7 hunting for truffles buried in briefs.’” (R&R (Doc. 29) at 54 (quoting Christian 8 9 Legal Soc. Chapter of Univ. of Calif. V. Wu, 626 F.3d 483, 488 (9th Cir. 2010)). 10 In respect to counsel’s failure to investigate who located the guns and where 11 the guns were located, the record reflects that all the investigating officers believed 12 the guns were found on the top of the vehicle parked in the carport. Petitioner now 13 14 asserts that he “discovered evidence after trial that Sgt. Janes actually discovered 15 the weapons—contrary to Janes’ testimony at trial.” (Objection (Doc. 34) at 6.) In 16 his Objection, Petitioner complains that the Magistrate Judge found only a “bald 17 18 assertion” of this newly discovered evidence, but Petitioner still does not produce 19 the allegedly “discovered evidence.” A bald assertion will not enable the 20 Petitioner to prove this fact at an evidentiary hearing. 21 In respect to counsel’s failure to move to suppress his incriminating 22 23 24 statements, the failure to file a suppression motion does not constitute per se ineffective assistance of counsel. Kimmelman v. Morrison, 477 U.S. 365, 381 25 26 (1986). It is undisputed that Petitioner was given Miranda warnings prior to 6 1 2 3 making his statements to police. His argument is that his waiver was contingent on his agreeing to answer their questions if they answered his questions. About half way through the interview, he asked about his brother and police put him off by 4 5 saying they would make inquiries and find out, but they knew his brother was dead. 6 Petitioner argues that he intended to waive his right to have an attorney present and 7 would act as his own attorney, and therefore, “’police were not allowed to lie or 8 9 create gamesmanship.’” (R&R (Doc. 29) at 29 (quoting Petition (Doc. 1) at 7.) It 10 is undisputed that the interviewing officers concealed the fact of his brother’s death 11 and used trickery during the interview. 12 The Court agrees with the State courts and the Magistrate Judge’s 13 14 conclusion that there was no Miranda violation. “Deception is [] a permitted tactic. 15 ‘Ploys to mislead a suspect or lull him into a false sense of security that do not rise 16 to the level of compulsion or coercion to speak are not within Miranda's concerns.’” 17 18 Doody v. Ryan, 649 F.3d 986, 1046 (9th Cir. 2011) (quoting Illinois v. Perkins, 496 19 U.S. 292, 297 (1990)). “‘[T]rickery is not automatically coercion. Indeed, the 20 police commonly engage in such ruses as suggesting to a suspect that a confederate 21 22 has just confessed or that police have or will secure physical evidence against the 23 suspect.’” Id. (quoting United States v. Crawford, 372 F.3d 1048, 1061 (9th Cir. 24 2004) (additional citations omitted)). 25 26 7 As the Magistrate Judge clearly outlined, the alleged quid pro quo promise 1 2 3 occurred at the beginning of the taped interview. Petitioner told the investigators that he understood his rights and intended to act as his own attorney, that they 4 5 could ask him anything and he would ask them anything. If they stopped 6 answering, he would stop answering. They said: “ok.” The Court notes that there 7 was no promise by either party to answer truthfully. Prior to beginning 8 9 questioning about the incident, as noted by the Magistrate Judge, the detectives 10 expressly told Petitioner that there were no promises and if he wanted to stop 11 talking he could stop. Petitioner expressly told the detectives that he wanted to talk. 12 (R&R (Doc. 29) at 30-31.) 13 There was no Miranda violation. The record reflects that the statements 14 15 were voluntary. The Court agrees with the Magistrate Judge that the Arizona 16 courts got it right under clearly established federal law, Strickland v. Washington, 17 18 466 U.S. 668 (1984), when they concluded that counsel was not ineffective for 19 failing to file a motion to suppress. (R&R (Doc. 29) at 32.) 20 Petitioner’s false evidence claims, whether based on a due process violation, 21 22 Miller v. Pate, 386 U.S. 1 (1967), or a discovery violation, Brady v. Maryland, 373 23 U.S. 83 (1999), fail as well. Petitioner complains that the recording of his 24 statements made during his interview with police was redacted by the State in a 25 26 way that misrepresented facts and excluded favorable exculpatory statements. He 8 1 2 3 complains that he discovered this constitutional violation after his trial. To support his false evidence claim, Petitioner submits two transcripts. “The two transcripts (the 94-page transcript made by the State and the 117-page transcript made by the 4 5 Public Defender’s Office) were materially different . . . .” (Objection (Doc. 34) at 6 10) (emphasis in original). There is no Brady violation and no newly discovered 7 evidence because the 117-page transcript, which Petitioner asserts reflects the full 8 9 interview, was prepared by his attorney from the original recording which the State 10 produced to the defense. Petitioner’s own statement of the facts defeats the Brady 11 claim and any assertion of newly discovered evidence. 12 The Court turns to Petitioner’s assertion that his constitutional right to a fair 13 14 trial was violated by the presentation to the jury of the redacted recording of the 15 interview. He gives “some glaring examples”: 1) the 23 page difference; 2) 16 omitted references to Petitioner’s repeated requests about the condition of his 17 18 brother and petitioner being distraught; 3) the redacted transcript changed “I don’t 19 know where the .45 is” to “I know where the .45 is,” and 4) it excluded a plethora 20 of exculpatory statements. (Objection (Doc. 34) at 11.) 21 The difference in total pages between the two transcripts is not evidence of 22 23 24 a material difference. Beyond the allegedly “glaring examples,” above, the Petitioner refers the Court to the State’s Response, Exhibit 7 pages 34-43, Exhibit 25 26 8 pages 1-43, and Exhibit 9, which is 27 pages long. Again, Petitioner invites the 9 1 2 3 Court to rut through the record. He does not refer the Court to where the redacted recording left out his inquiries about his brother. The Court found the first inquiry, as noted by the State in closing arguments, was about half way through both 4 5 transcripts. (Response (Doc. 11-7) at 34: TR at 147.) The Court did find the 6 discrepancy between the redacted transcript’s change from “I don’t know where 7 the .45 is” to “I know where the .45 is.” The Court also stumbled across another 8 9 change from “In the time it takes to figure out what they’ve got in their hand, 10 they’re already shooting you” to “I’m already shooting him.” (Response (Doc. 11- 11 8) at #57.) Petitioner fails to refer the Court to exculpatory evidence that was 12 omitted. The Court instead found that at least one exculpatory statement, I 13 14 “defended myself with lethal force,” remained in the redacted transcript. Id. at # 15 22. 16 As the State courts noted, the redacted transcript was not given to the jury. 17 18 The jury listened to the redacted State-recording. Therefore, the jurors heard what 19 the Petitioner said, not what either of the two different transcribers heard. Playing 20 the recording for the jury nullified differences between the transcripts attributable 21 22 to the transcripts being prepared by two different transcribers, who apparently 23 heard the tape differently. For example, if he said “I don’t know where the .45 is,” 24 not “I know where the .45 is” – the jury would have heard the former not the latter. 25 26 It would not matter what the State transcript read. 10 The Court agrees with the Magistrate Judge and the State courts: there was 1 2 3 no material difference between the redacted and unredacted transcripts and for the most part differences between the transcripts were remedied by presenting the 4 5 6 recording to the jury. Petitioner fails to point the Court to any material omission in the redacted recording and the Court has found none. 7 The differences between the two transcriptions fail to support Petitioner’s 8 9 assertion that the State presented false evidence for a claim under Miller. The 10 Court can say with confidence that if the jury had heard the interview recording as 11 transcribed by the Defendant, it would not have produced a different verdict. 12 State Courts: Unreasonable Application of Clearly Established Federal Law 13 For the reasons explained above, the Magistrate did not err in finding that 14 15 the State courts did not unreasonably apply federal law. The State courts’ 16 application of Strickland was reasonable because there was no clear argument that 17 18 the Petitioner’s statements were involuntary. Likewise, Petitioner offers no clear 19 argument that further investigation would have revealed the guns were found 20 where he said they were found, on the ground. His trial attorney made a 21 22 reasonable strategic choice to challenge the evidence by showing that none of the 23 testifying officers were responsible for finding the guns, which forced the State to 24 admit in closing that it did not know how the guns got on top of the vehicle. In 25 26 large part, differences between the transcripts were nullified because the jury heard 11 1 2 3 the recording and did not rely on the State’s transcript. To the extent there were omissions in the redacted recording, the Petitioner has failed to refer the Court to any material omission that would suggest any intent by prosecutors to present false 4 5 evidence. The Court finds that the State courts got it right, and likewise, the 6 Magistrate Judge got it right in finding the State courts reasonably applied federal 7 law. 8 CONCLUSION 9 After a de novo review of the issues raised in Petitioner's Objection, this 10 11 Court agrees with the findings of fact and conclusions of law made by the 12 Magistrate Judge in his R&R for determining the Petition for Writ of Habeas 13 14 Corpus. The Court adopts the R&R, and for the reasons stated in the R&R, the 15 Court denies the Petition. 16 Accordingly, 17 IT IS ORDERED that the Report and Recommendation (Doc. 29) is 18 19 adopted as the findings of fact and conclusions of law of this Court. 20 IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus 21 22 pursuant to 28 U.S.C. § 2254 (Doc. 1) is DISMISSED, and the Clerk of the Court 23 shall enter Judgment, accordingly. 24 ///// 25 ///// 26 12 IT IS FURTHER ORDERED that the Petitioner’s Motion for a Certificate 1 2 of Appealability (Doc. 36) is GRANTED. 3 Dated this 11th day of January, 2016. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 13

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