United States District Court, D. Arizona
CHARLES R. PYLE United States Magistrate Judge.
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.
Factual and Procedural History
Petitioner's Convictions and Sentences
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)). 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
(Id., citing Ex. N, R/T 2/15/08 at 92-93).
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
Petitioner's State Post-Conviction Proceedings
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.).
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).
The Petition for Writ of Habeas Corpus
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).
requests an evidentiary hearing on his two grounds.
(Id. at 25-26).
Timeliness and Exhaustion
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.
Standards of Review
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) “contrary to, or involved an