United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. BOWMAN UNITED STATES MAGISTRATE JUDGE.
before the court is a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, filed on July 28, 2016, by
Rafael Key, an inmate confined in the Arizona State Prison
Complex in Winslow, Arizona. (Doc. 1)
to the Rules of Practice, this matter was referred to
Magistrate Judge Bowman for report and recommendation. LRCiv
Magistrate Judge recommends that the District Court, after
its independent review of the record, enter an order denying
the petition on the merits. Trial counsel was not ineffective
for failing to move to suppress an out-of-court
identification or failing to impeach an eye witness with a
statement he made at the scene of the arrests.
of the Case
found guilty after a jury trial of first degree murder. (Doc.
14, p. 4) The trial court sentenced Key to life in prison
with the possibility of parole after 25 years. (Doc. 14, p.
night of the murder, Key and his brother approached a group
of three men, the victim and two others, who were chatting
outside the victim's trailer. (Doc. 14, p. 4); (Doc. 15,
p. 22) “The five men were under the influence of liquor
and[/]or illegal drugs.” (Doc. 15, p. 22) The
victim's two friends later “gave varying, sometimes
confusing accounts of what happened.” (Doc. 15, p. 23)
One of the friends, Aguirre, testified that Key shot the
victim after the victim got into a fight with Key's
brother. (Doc. 14, p. 4) The other, Lopez, denied there was
any altercation and testified that Key shot the victim after
telling him, “I was looking for you.”
Id. Key's brother testified that he was
not the shooter, but he did not expressly
incriminate Key. (Doc. 15, p. 24)
brothers fled the scene immediately after the shooting. (Doc.
15, p. 22) Later that same night, police located and arrested
the brothers in another part of the trailer park.
Id. Aguirre saw Key's brother being arrested and
said in Spanish to the arresting officer either “you
got him” or “you got
them.” (Doc. 15, p. 23) After the arrests,
Aguirre was interviewed by the police in Spanish.
Id. According to the English transcription, he
recalled saying “you got him.”
brothers had the victim's DNA on their clothing. (Doc.
15, p. 22) Key argued at trial that his brother was the real
shooter and the witnesses were mistaken or lying. (Doc. 15,
the verdict and sentencing, Key filed an appeal arguing there
was insufficient evidence of premeditation and the killing
was in the “heat of passion.” (Doc. 14, pp. 3-7)
The Arizona Court of Appeals affirmed Key's conviction on
November 30, 2011. Id. The Arizona Supreme Court
summarily denied Key's petition for review on September
6, 2012. (Doc. 14-5, p. 2)
on January 13, 2012, Key filed notice of post-conviction
relief. (Doc. 14-6, p. 2) Key filed his petition on June 24,
2013. (Doc. 14-7, p. 2) Key argued trial counsel was
ineffective because he “should have filed a motion to
suppress identification pursuant to State v.
Strickland” and he should have impeached Aguirre
with the statement he made at the scene of the arrests. (Doc.
14-7, pp. 12-17)
trial court held an evidentiary hearing on June 3, 2014.
(Doc. 14-10, p. 2) Trial counsel testified that he did not
file a motion to suppress Aguirre's out-of-court
identification at the preliminary hearing “because he
had never had such a motion granted.” (Doc. 15, p. 26)
He could not offer an explanation for why he did not try to
impeach Aguirre with the statement he made at the scene of
the arrests. (Doc. 15, p. 27) On August 15, 2014, the trial
court denied the petition for post-conviction relief. (Doc.
15, pp. 22-29)
filed a petition for review raising the same two issues.
(Doc. 15-4, p. 5) The Arizona Court of Appeals granted review
but denied relief on January 16, 2015, adopting the reasoning
of the trial court. (Doc. 15-5, pp. 2-4) The Arizona Supreme
Court denied his petition for review on September 22, 2015.
(Doc. 15-5, p. 5)
28, 2016, Key filed the pending petition for writ of habeas
corpus. (Doc. 1) He claims counsel was ineffective for (1)
failing to suppress Aguirre's identification of him at
the preliminary hearing and (2) failing to impeach Aguirre
with the statement he made when he saw Key's brother
being arrested. (Doc. 1)
their answer, the respondents argue Key's petition should
be denied on the merits. (Doc. 13)