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Cook v. Ryan

United States District Court, D. Arizona

April 27, 2017

Michael Lynn Cook, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          Michelle H. Bums United States Magistrate Judge.

         TO THE HONORABLE ROSLYN O. SILVER, UNITED STATES DISTRICT COURT: On November 7, 2016, Petitioner Michael Lynn Cook filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, (Doc. 1), and a memorandum in support (Doc. 3). Respondents filed an answer on December 28, 2016, and a Petitioner filed a reply and supplement thereafter (Docs. 11, 13, 15).

         BACKGROUND[1]

         The following facts were found by the state appellate court.

On October 18, 2005, Cook shot C.S. five times while driving out of the parking lot of a mosque in Phoenix. Paramedics took C.S. to a hospital where he provided Officer A. Of the Phoenix Police Department with a description of the car and the shooter, but stated the shooter was not someone he knew. Detective K. of the Phoenix Police department identified and interviewed three additional eyewitnesses at the scene of the shooting: two of Cooks's younger siblings and the daughter of the mosque's Imam, S.S. Both of Cook's siblings told Detective K. that Cook shot C.S. S.S., however identified Cook's brother as the shooter.
On December 1, 2005, Detective J. Of the Phoenix Police Department showed C.S. a six-person photographic lineup from which C.S. selected a photograph of Cook and identified him as the shooter. On December 28, 2005, Detective J. showed the same photographic lineup to S.S. At that time, S.S. informed Detective J. she had misidentified the shooter when she spoke to Detective K. on the night of the shooting and that Cook, not J.W., had shot C.S. She identified two photographs from the lineup-one of which was the photograph of Cook-and told Detective K. one of the two photographs depicted the shooter but was not sure which one.

(Exh. A at 1.) After a jury trial, Petitioner was convicted of attempted second-degree murder, drive-by shooting, weapons misconduct, and five counts of aggravated assault. (Exh. B at 1.). He was sentenced to concurrent and consecutive prison terms totaling 40 years. (Id.)

         Petitioner timely appealed his convictions and sentences. (Exh. A at 1.) In finding no error, the Arizona Court of Appeals affirmed. (Id. at 3.) The record cited by Respondents suggests that Petitioner appealed to the Arizona Supreme Court. (Exh. F.)[2] Moreover, it appears that the Arizona Supreme Court denied the petition to review. (Id.)

         On February 17, 2010, Petitioner filed a notice of post-conviction relief (PCR). (Exh. C.) Subsequently, appointed counsel gave notice that he found no claims to be raised in the proceeding. (Exh. D.) Petitioner thereafter filed a pro se PCR petition, which was summarily denied by the trial court. (Exh. E.) Petitioner then petitioned the Arizona Court of Appeals for review of the dismissal, but review was denied on July 17, 2013. (Exh. G.) While Petitioner's petition for review of the dismissal of his first PCR petition was pending in the Arizona Court of Appeals, he filed a second PCR notice on January 17, 2012, raising a claim of newly discovered evidence. (Exh. H.) The trial court summarily denied relief, and Petitioner petitioned the Arizona Court of Appeals for review. (Exh. B at 1.) The Court of Appeals denied relief on November 12, 2015. (Id. at 3.)

         On November 7, 2016, Petitioner filed the instant habeas. (Doc. 1.) According to the Screening Order, Petitioner raised eighteen grounds for relief. (Doc. 5.)

         1. The trial court erred when it denied the defense motion to preclude Carl S. from identifying Petitioner in court because “Carl S['s] identification, as well as that of other witnesses, was inherently unreliable and overly suggestive under the Due Process Clause of the Fifth and Fourteenth [Amendments], which prohibits the admission of identification testimony obtained from overly suggestive procedures”;

         2. The trial court erred by “ denying the defense motion for an acquittal on all counts under the Due Process Clause of the [Fourteenth Amendment]; the stipulation that Petitioner was a prohibited possessor at the time of the alleged offense was self-incrimination in violation of the [Fifth Amendment]”; 3. Petitioner received ineffective assistance of trial and appellate counsel in violation of the Sixth and Fourteenth Amendments;

         4. Because assault is a lesser-included offense of attempted murder, Petitioner was subjected to “multiplicity” in violation of his Fifth, Sixth, and Fourteenth Amendment rights and to a violation of the prohibition against double jeopardy;

         5. Petitioner's Sixth and Fourteenth Amendment rights were violated because he is actually innocent; 6. Petitioner received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments;

         7. Petitioner's Sixth and Fourteenth Amendment rights were violated because he received the ineffective assistance of appellate counsel and because the State engaged in misconduct;

         8. Petitioner's Fourteenth Amendment due process rights were violated because the trial court erroneously ...


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