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Day v. Ryan

United States District Court, D. Arizona

February 21, 2014

Richard R. Day, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 8, 2013 (Doc. 1). On September 5, 2013 Respondents filed their Answer (Doc. 9). Petitioner filed a Reply on October 9, 2013 (Doc. 10), and has supplemented the record with various documents (Doc. 18).

The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

A. FACTUAL BACKGROUND

In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:

Appellant, who was forty-three at the time of the trial, had lived with his grandparents, Verlin S. and Lois S., since the age of eighteen. After Verlin's death on March 26, 2003, Rickey, Nancy P. (Appellant's aunt), and Appellant discussed the welfare of Lois's health and the deteriorating condition of her house. Appellant became angry when Lois's children discussed the option of having Lois live in an assisted living facility. Appellant then visited a paralegal who prepared the following: Proposed changes in Lois's will, a joint tenancy deed, and a proposed document granting Appellant power of attorney to make her financial and personal decisions. Appellant presented these documents to Lois for her signature, and Lois signed them. Further, Appellant adamantly argued to keep Lois at her house in Phoenix; if she moved and the house sold, Appellant would have to find another place to live.
In April 2003, over Appellant's objections, Lois moved to Las Vegas to live with her daughter, Nancy. Nancy left a message with Appellant, informing him that Rickey would be coming over to Lois's house at her request to gather her clothes and other personal belongings. When Rickey and other family members arrived, he discovered Appellant had changed the door locks; however Rickey had a new key and was able to unlock the front door with that key. After entering the house, Rickey's wife noticed that a chair had been blocking the door and that the inside of the door knob had fallen off. While gathering Lois's belongings, no one entered Appellant's room or removed any of his property. Later, after Rickey and the others had left and after Appellant came home, Officer Tiffany Scott of the City of Phoenix Police Department responded to a robbery reported by Appellant. Despite Appellant stating that Rickey was responsible, Officer Scott did not consider him a suspect.
Two days later, on May 10, Rickey returned to Lois's house. Nancy had told him that Appellant was leaving for Las Vegas on May 9, with an apparent plan to return with Lois; however, unbeknownst to Rickey, Appellant had not yet left. Rickey entered the house through a window in the living room, where a muddy footprint was later found by Detective Clifton Jewell of the City of Phoenix Police Department. Appellant first engaged Rickey in the living room, where Detective Jewell later found a bullet hole in the wall, and the cartridge casing in the sofa. Appellant's girlfriend, who was also in the house at the time, heard noise of the conflict move from the hallway to the master bedroom. In the master bedroom, Appellant's girlfriend heard Rickey say, "No, don't, don't. Please don't kill me. I'm sorry." Appellant's girlfriend then heard a gunshot. Appellant called 911 and reported that he had shot his uncle.
Police officers found Rickey in the bathroom between the toilet and bathtub, with a linear abrasion on his left forearm and a gunshot wound to his left chest. The Chief Medical Examiner for Maricopa County testified that a bullet entered Rickey's thorax, and caused his death. Rickey also had a "shored" exit wound on the left portion of his back, indicating he was shot while against something firm, such as a mattress or wall.

(Exhibit D, Mem. Dec. 8/16/07 at 3-6.) (Exhibits to the Answer, Doc. #, are referenced herein as "Exhibit ___.")

B. PROCEEDINGS AT TRIAL

On June 3, 2003, Petitioner was indicted on charges of first degree murder, and following remand to the grand jury, was again indicted on September 5, 2003. (Exhibit D, Mem. Dec. at 2-3.)

Petitioner was found incompetent to stand trial, based upon delusional beliefs of a widespread conspiracy against him, but on subsequent re-evaluation, was found competent to stand trial. ( Id. at 3.)

Petitioner proceeded to a jury trial, testified on his own behalf in support of his defense theory of self-defense, including testifying that he had overheard the victim saying "it would be nice' if [Petitioner] disappeared.'" ( Id. at 8.) The Arizona Court of Appeals described Petitioner's description of events on the day of the shooting as follows:

On the night of May 9, 2003, Appellant thought he heard someone on the roof. At 7:00 a.m. the next morning Appellant heard a loud noise but he went back to sleep. Appellant then heard a screen door open and got out of bed but again went back to bed. Moments later Appellant heard a window slide open and he then grabbed a gun. As Appellant moved into the living room from the hallway he encountered Rickey who told him not to shoot. Appellant instructed Rickey to lie on the ground. Appellant saw a knife in a sheath in Rickey's hand, turned his head, and fired one shot. After Appellant shot at Rickey, Rickey fell down three times and then, surprisingly, rammed him into a bookcase. Appellant and Rickey continued to struggle, but Appellant was able to control Rickey, until Rickey got away and hid behind a chair in the living room.
Appellant further testified that he retreated to his bedroom while Rickey ran to hide in the master bedroom. Rickey frantically tried to open the arcadia door in the master bedroom; however a dowel rod prevented the door from opening. Appellant then pointed his gun at Rickey and ordered him to the floor. Rickey threw a pillow at Appellant in a failed effort to protect himself. Purportedly fearing for his life, Appellant shot Rickey. Rickey apparently got off the floor and went into the bathroom, leaving the knife on the floor, while Appellant went into a different room to call 911. As noted above, Rickey subsequently died as a result of his gunshot wounds.

( Id. at 8-9.)

Petitioner was found guilty of first degree murder, and considering Petitioner's mental health as a mitigating factor the trial court sentenced him to life in prison with the possibility of parole after 25 years. ( Id. at 10; Exhibit A, Sentence.)

C. PROCEEDINGS ON DIRECT APPEAL

Petitioner filed a direct appeal. Counsel was unable to find an appealable issue, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related state cases, asking the court to review the record for error and seeking leave for Petitioner to file a supplemental brief. (Exhibit B, Opening Brief.)

Petitioner then filed a Supplemental Opening Brief (Exhibit C), arguing that counsel was ineffective for failing to investigate, obtain or present various evidence.

In a decision issued August 16, 2007, the Arizona Court of Appeals declined to reach Petitioner's claims of ineffective assistance, finding that they should properly be brought in a petition for post-conviction relief. (Exhibit D, Mem. Dec. at 10.) The court searched the record for, and found no reversible error. ( Id. at 11.)

Petitioner did not seek further review. (Exhibit E, Order and Mandate.)

D. PROCEEDINGS ON POST-CONVICTION RELIEF

On November 20, 2007, more than 90 days after the conclusion of his direct appeal, Petitioner filed a motion to extend the time to file his petition for post-conviction relief (Exhibit F). The PCR court did not rule on this motion, and Petitioner has never filed anything further with the PCR court. (Exhibit G, Docket.)

E. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 8, 2013 (Doc. 1). The original petition was unsigned, and Petitioner submitted a separate certification of the Petition on February 18, 2014 (Doc. 25). Petitioner's Petition asserts the following two grounds for relief: (1) ...


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