United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT COURT:
Petitioner Troy Lynn McDorman, who is confined in the Arizona State Prison Complex, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 12), and Petitioner filed a Reply (Doc. 22).
On February 29, 2004, Debra McDorman, Petitioner's ex-wife, brought their two adopted 19-year-old sons, Keith and Adrian, to meet with a Mesa police officer so they could report sexual abuse by Petitioner that occurred while they were juveniles. (Exh. A at 4.) Keith reported Petitioner performed various sexual acts with him from the age of 10 through 14. (Id.) Next, Adrian reported Petitioner molested him several times from the time he was 10 until he was 11. (Id.) In the course of the follow-up investigation, on February 11, 2005, at the direction of a Mesa police detective, Adrian completed an audio-recorded confrontational telephone call to Petitioner. (Exh. B at 5.) In the phone call, Petitioner denied sexual contact with Keith, but made admissions of sexual contact with Adrian. (Id. at 5-6.)
On May 3, 2005, police arrested Petitioner. (Id. at 6.) Subsequently, in a four-count indictment, the State charged Petitioner with: Count 1, intentionally or knowingly molesting Adrian by touching his penis over his gym short; Count 2, intentionally or knowingly having oral sexual contact with Adrian's penis; Count 3, intentionally or knowingly stroking Adrian's penis; and Count 4, intentionally or knowingly molesting Keith by touching Keith's penis while giving him a massage. (Exh. C.)
At Petitioner's jury trial, he was represented by appointed counsel, Kirk Nurmi, as well as Knapp counsel, Robert Billar. (Doc. 1 at 42; Ex. D.) During the 4-day trial (November 8, 2005 to November 14, 2005), Keith, Adrian and Petitioner all testified and were cross-examined, Petitioner's statements to the arresting officer were found voluntary and the recorded confrontation call, Trial Exhibit 4, was admitted. (Exh. D, Minute Entries at 0049, 0052, 0063.)
The entire confrontation call was played for the jurors. Excerpts from that recorded call included Adrian asking Petitioner, "Did you ever try to touch Keith ever?" (Exh. E at 03:40.) Petitioner replied, "No, " (Id. at 03:43) and asked, "Why?" (Id. at 03:56.) Adrian told Petitioner, "I think he knows that you touched me... I think he knows for sure." (Id. at 04:16-22.) Adrian then told Petitioner that Keith had told him that Petitioner tried to give him (Keith) a "blowjob" once before. (Id. at 05:27-30.) When Petitioner denied this accusation, Adrian asked, "so it's only been to me?" (Id. at 06:00.) Petitioner replied, "Hm-hmm [affirmative response]." (Id. at 06:01) Adrian then asked, "Did you ever jerk him off ever?" (Id. at 06:14.) When Petitioner again said no, Adrian asked, "Just me?" (Id. at 06:21.) To this, Petitioner replied, "Yep." (Id. at 06:22.)
Adrian then asked Petitioner, "Is there ever really a big reason me and you did it?" (Id. at 07:34.) Petitioner responded, "I don't know Adrian... I don't know. Shit happens." (Id. at 07:38-41.) Petitioner continued: "It's been bugging me for years.... Once it first happened it's like, now what, we're stuck." (Id. at 10:41-54.) Petitioner later stated "It's been a living hell for me. I know I'm sure it has been for you too.... I was worried about it." (Id. at 11:16-28.) When Adrian stated that he was only 12 years old when "it first started, " Petitioner acknowledged that it was "somewhere around there." (Id. at 11:45-54.) The jurors found Petitioner guilty of Counts 1-3, but found him not guilty of Count 4, the count that involved Keith. (Exh. D. at 0063.)
On January 20, 2006, after hearing from 12 individuals who addressed the court on behalf of Petitioner, the trial court sentenced Petitioner to the presumptive term of incarceration for each of the three counts, and ordered that the three counts be served consecutively, resulting in a 57-year sentence, less credit for presentence incarceration. (Exh. F.) On November 8, 2007, in a Memorandum Decision, the Arizona Court of Appeals affirmed his convictions and sentences. (Doc. 1 at 41-56.) The Arizona Supreme Court summarily denied Petitioner's petition for review on September 23, 2008. (Exh. G.)
On October 22, 2008, counsel for Petitioner, Cynthia A. Leyh, timely filed on Petitioner's behalf a PCR notice, then eventually filed two PCR petitions supported by exhibits, and filed a supplemental PCR petition. (Exh. H.) Petitioner raised three claims for relief: (1) his appointed trial counsel provided constitutionally ineffective assistance of counsel, (2) his Knapp counsel also provided constitutionally ineffective assistance, and (3) prosecutorial misconduct, based on the prosecutor allegedly having a favorable treatment agreement with Adrian. (Id.) Following the State's Response and Petitioner's Reply, the trial judge who presided at the trial, the Honorable David K. Udall, denied Petitioner's PCR petition without an evidentiary hearing. (Doc. 1 at 57.)
Thereafter, on February 19, 2010, Petitioner's counsel timely filed a petition for review in the Arizona Court of Appeals raising the following issues:
1. Did the trial court abuse its discretion when it failed to assume that all of Petitioner's allegations in his Petition were true?
2. Did the trial court abuse its discretion when it held that Petitioner failed to establish a claim for ineffective assistance of trial counsel and Knapp counsel?
3. Did the trial court abuse its discretion when it held that Petitioner failed to establish a claim for newly discovered evidence?
4. Did the trial court abuse its discretion when it held that Petitioner failed to establish a claim of prosecutorial misconduct?
5. Did the trial court abuse its discretion by failing to follow Rule 32.6(c)
(Exh. I at 1-2.) On November 14, 2012, the Court summarily denied review. (Doc. 1 at 58.)
Now represented by Attorney Gary Dean Schneider, Petitioner timely sought review in the Arizona Supreme Court, based on the following claims:
A. Evidence Exists to Support Petitioner's Allegation that the State's Primary Witness May Have Had an Undisclosed Agreement with the State regarding Favorable Treatment as to Criminal Charges.
B. The State's Failure to Disclose That a Key Witness is Receiving Favorable Treatment from the State in Other Criminal Proceedings Would ...