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Musgrove v. Ryan

United States District Court, D. Arizona

September 28, 2016

Danny Musgrove, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          ORDER

          CHARLES R. PYLE United States Magistrate Judge.

         Petitioner, confined in the Arizona State Prison Complex, Florence, and represented by counsel, has filed a Petition Under 28 U.S.C. § 2254 For A Writ of Habeas Corpus By A Person In State Custody (Non-Death Penalty). (Doc. 1, Pet.). Respondents have filed an Answer to the Petition (Doc. 11, Answer). Petitioner has not filed a Reply. This case is before the Magistrate Judge based on the parties' consent to such jurisdiction. (Doc. 10, Order). For the foregoing reasons, the Court denies Petitioner's Petition for a Writ of Habeas Corpus.

         I. Factual and Procedural History

         A. Petitioner's Convictions and Sentences

         Petitioner was convicted by a jury in the Superior Court of Pima County of one count of first degree murder, one count of conspiracy to commit first-degree murder, and two counts of endangerment. (Ex. A, State v. Musgrove, No. 2 CA-CR 2008-0294, Opinion (Ariz. App. Dec. 1, 2009); State v. Musgrove, 221 P.3d 43 (Ariz. App. Dec. 1, 2009)).[1] The charges stemmed from the shooting death of Michael Lopez on or about February 24, 2006. (Ex. C, No. 2 CA-CR 2008-0294, Appellee's Answering Br. at 1). The State's evidence showed that on the date of the shooting, Lopez got into a fight with Petitioner in the VFW parking lot in South Tucson and knocked out Petitioner. (Id.). Lopez returned home and about an hour later, Petitioner and a few others arrived at Lopez's home where Petitioner allegedly shot Lopez twice in the head, killing him. (Id.). Petitioner's blood and DNA evidence were found in the Lopez house. (Id.). Petitioner's cell mate, Floyd Lee, testified for the State that Petitioner confided in him that he shot Lopez:

He told me that he was at the VFW night club on 36th and Park and he got into it with this guy, Michael Lopez. They bumped into one another. They exchanged words. They started fighting. Michael Lopez knocked Danny Musgrove out. Musgrove woke up from being knocked out and went to get a gun. Came back to the club, Michael Lopez was gone. He went to where Michael Lopez was and shot him several times.

(Id., citing Ex. N, R/T 2/15/08 at 92-93).

         The trial court sentenced Petitioner to concurrent terms of life imprisonment for the murder and conspiracy to commit murder and to two consecutive terms of 2.25 years' imprisonment on the endangerment convictions. (Ex. A, Musgrove, 221 P.3d at 45, ¶ 3). Petitioner appealed, raising several grounds, including that “tainted” and “fabricated” evidence was introduced at trial violating his right to a fair trial and due process of law. (Id.). The state appellate court found as to this ground that Petitioner had not sought relief from the trial court based on this allegation, the issue was forfeited, Petitioner had not argued fundamental error, and no fundamental error was found sua sponte. (Id.). The Arizona Court of Appeals affirmed Petitioner's convictions and sentences for first degree murder and the two counts of endangerment but vacated his conviction and sentence on the one count of conspiracy to commit murder. (Id. at 47, ¶ 13). Petitioner did not seek review in the Arizona Supreme Court. (Ex. D, Court of Appeals Mandate).

         B. Petitioner's State Post-Conviction Proceedings

         While his direct appeal was pending, Petitioner proceeding pro se filed a Notice of Post-Conviction Relief (“PCR”) on February 9, 2006. (Ex. E, PCR Notice). On September 29, 2010, Petitioner, represented by counsel, filed a Petition for Post-Conviction Relief (“PCR petition”) in the trial court. (Ex. F, PCR Pet.). Petitioner asserted in the PCR Petition ineffective assistance of appellate and trial counsel. Petitioner contended that appellate counsel had provided ineffective assistance by failing to file a motion for new trial causing the fabricated evidence issue to be waived on appeal. (Ex. F, PCR Pet., at 5). The claim of fabricated evidence concerned (1) the placement of a bullet the police found at the crime scene and the subsequent report by the authorities that Petitioner's DNA was found on the bullet; and (2) crime scene photographs showed that the victim's body had been moved. (Id. at 6-10). Petitioner contended that trial counsel provided ineffective assistance by stipulating into evidence statements made by Lillian Pillow, that is, her video taped interview with the police, her recorded telephone calls from the Pima County Jail, and her free talk with the police. (Id. at 12-14). Petitioner requested an evidentiary hearing as to his claims. (Id. at 14). The State filed a Response asserting that Petitioner was not entitled to relief based on the grounds asserted. (Ex. G, Response to PCR Pet.).

         On December 10, 2010, the state trial court issued a Ruling denying the PCR Petition. (Ex. H, 12/10/10 Ruling). Petitioner sought review in the Arizona Court of Appeals who granted review but denied relief. (Ex. I, No. 2 CA-CR 2011-0001-PR, Pet. for Review; Ex. B, State v. Musgrove, No 2 CA-CR 2011-0001-PR, Mem. Decision, April 4, 2011). The State Court of Appeals ruled that the trial court had not abused its discretion in denying the PCR Petition, that the trial court clearly and correctly addressed the merits of each claim, and that the trial court's ruling was “adopt[ed] ... [there was] no need to repeat the court's analysis here.” (Ex. B, Musgrove, Mem. Decision). The Arizona Supreme Court subsequently denied Petitioner's request for review without comment on September 6, 2011. (Ex. J).

         C. The Petition for Writ of Habeas Corpus

         Petitioner filed his federal habeas petition on September 4, 2012. (Doc. 1) Petitioner asserts the following grounds for relief:

(1) Petitioner's due process rights were violated when appellate counsel provided ineffective assistance of counsel by failing to raise a motion for new trial based on fabricated evidence, that is, placement of the bullet, DNA collected from the bullet, and movement of the victim's body; U.S. Constitution Amendments 5, 6 and 14; Strickland v. Washington, 466 U.S. 668 (1984) (Pet. at 4, 14-20);
(2) Petitioner's due process rights were violated when defense trial counsel introduced incriminating evidence, that is, the Lillian Pillow statements, against Petitioner at trial; U.S. Constitution Amendments 5, 6 and 14; Strickland v. Washington, 466 U.S. 668 (1984) (Pet. at 4, 20-24).

         Petitioner requests an evidentiary hearing on his two grounds. (Id. at 25-26).

         II. ANALYSIS

         A. Timeliness and Exhaustion

         Petitioner contends that his federal habeas petition has been timely filed and that he has exhausted his state court remedies. (Pet. at 5). Respondents do not contend that the Petition is untimely or that Petitioner has not exhausted his claims. Respondents argue that the grounds asserted are without merit and the federal habeas petition should denied and dismissed with prejudice. The Court, therefore, will proceed to a merits analysis of Petitioner's grounds.

         B. Merits Analysis

         1. Standards of Review

         To be eligible for federal habeas corpus relief, a state prisoner must establish that he is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). This Court's analysis of the merits of Petitioner's claims is constrained by the applicable standard of review. A state prisoner “whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S.C. § 2254(d).” Price v. Vincent,538 U.S. 634, 638 (2003). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a “highly deferential standard for evaluating state-court rulings, ” Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997), and “demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). Under AEDPA, this Court cannot grant habeas relief unless the state court decision was: (1) ‚Äúcontrary to, or involved an unreasonable ...


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