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Key v. Ryan

United States District Court, D. Arizona

January 11, 2017

Rafael Key, Petitioner,
v.
Charles L. Ryan; et al., Respondents.

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED STATES MAGISTRATE JUDGE.

         Pending 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)

         Pursuant to the Rules of Practice, this matter was referred to Magistrate Judge Bowman for report and recommendation. LRCiv 72.2(a)(2).

         The 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.

         Summary of the Case

         Key was 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. 4)

         The 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)

         The two 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.” Id.

         Both 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, p. 14)

         After 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)

         Previously, 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)

         The 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)

         Key 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)

         On July 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)

         In their answer, the respondents argue Key's petition should be denied on the merits. (Doc. 13)

         Standard ...


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