United States District Court, D. Arizona
REPORT AND RECOMMENDATION
MICHELLE H. BURNS, Magistrate Judge.
Petitioner John Balla Pierce, who is confined in the Arizona State Prison Complex-Lewis in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Respondents filed an Answer (Doc. 9), and Petitioner has filed a reply (Doc. 20).
After a jury trial, Petitioner was convicted of one count each of: (1) first-degree felony murder, a class 1 dangerous felony; (2) attempted armed robbery, a class 3 dangerous felony; (3) burglary in the first degree, a class 2 dangerous felony; and (4) conspiracy to commit armed robbery, a class 3 dangerous felony, as well as one count of aggravated assault, a class 3 dangerous felony. (Exhs. A, N.) Petitioner was subsequently sentenced to natural life in prison for murder, an aggravated term of 10 years for attempted armed robbery, and aggravated terms of 15 years each for first-degree burglary, conspiracy to commit armed robbery, and aggravated assault. (Exh. N.) The sentences for attempted armed robbery, first-degree burglary and conspiracy to commit armed robbery were concurrent with each other but consecutive to the fifteen-year sentence for aggravated assault; and all of these sentences were ordered consecutive to the sentence of natural life. (Id.)
The Arizona Court of Appeals set forth the following facts in its Memorandum Decision affirming Petitioner's convictions and sentences on direct appeal.
D.S. was contacted by Michael Carey on December 21, 2006, to give him a ride to "pick up money." D.S. and her friend, C.C., first picked up Sarah Duran from school, then went to Angel "Moyo" Smiley's apartment complex. The girls left the complex but returned, and Pierce, Carey, and Smiley got into the car. Pierce told D.S. that he was going to be giving them "directions." When she saw Carey placing a "big, black, long case" into the trunk of the car, she asked him what it was and he told her it was a guitar or violin case that he "needed to drop... off to pick up the money."
D.S. was directed to a different apartment complex where the boys talked with another friend. She was then directed to drive to an area near the victim's house. Once the car was parked near some mailboxes, Carey asked Duran if she would "go up to the door and do [him] a favor." She agreed. She, along with Pierce, Carey, and Smiley got out of the car. Carey told D.S. to "pop the trunk, " went to it, pulled out the case and closed the trunk. He had a bandana over his face. The four then walked around the corner towards the house.
The victim was inside his house with his teenage son, his teenage daughter and her eight-month-old child. Because his daughter was expecting some friends to come by, the victim opened the door when Duran rang the doorbell. She then moved out of the way and the victim's daughter saw "the kid with the shotgun pop around the corner." The daughter described "the kid with the shotgun" as a black male with a purple bandana covering his face.
The victim's daughter saw her father grab for the shotgun as she ran down the hallway to find her brother. She heard more than one gunshot as she fled down the hall. After she woke her brother up, he quickly found his gun, and pulled his sister out of the hallway after a shot was fired at her. Looking through her screaming daughter's window, she saw three people running away from the house. Once D.S. heard gunshots, she started driving away. C.C. asked her to stop as she saw Duran running to the car. Duran then told D.S. to stop as Pierce, Smiley, and Carey were running towards the car with their bandanas still covering their faces. Carey banged on the trunk, D.S. opened it, and threw in the shotgun. D.S. drove away quickly because the victim's son was shooting at the car.
The victim had been shot in the face and back. He died in his home. Police found evidence that two handguns and a shotgun were fired. After being informed of his juvenile Miranda rights, Pierce agreed to be interviewed and stated the plan was to take guns, money and "weed" from the victim's house. He explained his job was to get in the house to "go grab the s* *t, " and he tried to gain access to the house to "do what I needed to do, " which included shooting someone if necessary "[for] my safety." He said "the dude f* * * *d up" by grabbing Carey's shotgun. He further explained he had been shown the victim's house three days before the incident, and he was told which rooms to search.
Petitioner thereafter filed a direct appeal raising the following claims: (1) the trial court abused its discretion in denying Petitioner's request to strike the entire jury panel during voir dire for alleged misconduct; (2) the trial court erred in failing to sever Petitioner's trial from his co-defendants'; and (3) under Roper v. Simmons, 543 U.S. 551 (2005), the imposition of a lifetime sentence violated the Eighth and Fourteenth Amendments to the United States Constitution. (Exh. R.)
On January 21, 2010, the Arizona Court of Appeals denied relief. (Exhs. T, U.) In doing so, the court reasoned that: (1) Petitioner had failed to satisfy his burden of demonstrating that the jury was not fair and impartial; (2) the trial court did not err in failing to sever the trials and any conceivable prejudice was cured by the trial court's jury instructions; and (3) the imposition of a natural life sentence for first-degree murder by defendants who were juveniles at the time of the commission of the offense did not constitute cruel and unusual punishment under the Eighth Amendment. (Id.)
Petitioner thereafter filed a petition for review in the Arizona Supreme Court, which was denied on September 21, 2010. (Exhs. V, W, Y.)
While his direct appeal was still pending, Petitioner filed his first notice of post-conviction relief on August 11, 2008. (Exh. O.) The trial court, subsequently, dismissed the proceeding three months later pursuant to Petitioner's own motion. (Exhs. P, Q.)
On March 14, 2013, almost two-and-a-half years after Petitioner's direct appeal concluded, Petitioner filed a second notice of post-conviction relief arguing that: (1) under Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the imposition of a lifetime sentence violated the prohibition against cruel and unusual punishment; and (2) the trial court failed to properly consider, as a mitigating factor, psychological studies regarding the difference between juveniles and adults that his attorney had submitted at sentencing. (Exhs. Z, AA.)
On March 27, 2013, the state trial court dismissed the proceeding as both untimely under state ...