Channel v. Ryan

          REPORT AND RECOMMENDATION

          LESLIE A. BOWMAN UNITED SUITES MAGISTRATE JUDGE.

         Pending before the court is a petition for writ of habeas corpus filed in this court on May 9, 2018, by Michael Allen Channel, Sr., an inmate currently confined in the Arizona State Prison Complex in Tucson, Arizona. (Doc. 1)

         Pursuant to the Rules of Practice of this court, the 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. Channel's claims are, for the most part, vague and conclusory. Those claims that the court can understand are meritless.

         Summary of the Case

         On July 10, 2013, Phoenix police responding to a 911 call involving a disturbance encountered Channel sitting in front of his apartment. (Doc. 24-1, p. 157) Channel admitted he owned a weapon and told officers where it was located in his apartment. Id. Channel's wife allowed police to enter and retrieve the loaded gun. Id.

         At trial, the parties stipulated that Channel had a prior felony conviction and was prohibited from legally possessing a firearm. (Doc. 24-1, p. 158) Channel tried to elicit testimony showing that his wife and daughter had been threatened, but the trial court ruled that such questioning did not establish “imminent” injury. Id. Channel was convicted of one count of Misconduct Involving Weapons. (Doc. 24-1, p. 75) On December 4, 2015, he was sentenced to a 10-year term of imprisonment. Id.

         On direct appeal, Channel argued that the trial court abused its discretion by failing to give the jury a justification/necessity instruction and failing to grant a motion for new trial after an evidentiary hearing established that Channel had been previously threatened by an angry mob and needed the weapon to protect his family. (Doc. 24-1, p. 87) On April 27, 2017, the Arizona Court of Appeals affirmed his conviction and sentence. (Doc. 24-1, pp. 156-162)

         Previously, on May 12, 2016, Channel filed notice of post-conviction relief. (Doc. 24-1, p. 164) The trial court dismissed the notice on the defendant's motion as premature. (Doc. 24-1, pp. 171-174)

         At the conclusion of his direct appeal, Channel filed notice of post-conviction relief on May 12, 2017 and May 15, 2017, which the trial court consolidated into a single notice. (Doc. 24-1, pp. 176, 180, 184) Channel filed his petition pro se on June 8, 2017. (Doc. 24-1, p. 187) His petition is prolix, confusing, and entirely conclusory. (Doc. 24-1, pp. 187-207) Channel argued generally “that the officers provided false testimony, that all the officers were not interviewed or called to testify at trial, that bullets were not impounded, that his residence was not photographed, that he was not read his Miranda Rights, that a warrant should have been obtained for the search of his residence, that his statements were obtained under duress, that the complaint against him was not filed timely, and that the State[] failed to provide exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), but never specified how these complaints could be, much less were, substantiated.” (Doc. 24-5, p. 32) The trial court denied the petition on October 14, 2017. Id.

         Channel filed a petition for review on October 27, 2017 and December 7, 2017. (Doc. 24-5, pp. 34, 60) The Arizona Court of Appeal granted review but denied relief on April 17, 2018. (Doc. 24-5, p. 93) The court explained simply that the superior court's prior ruling was not an abuse of discretion. (Doc. 24-5, p. 94) The Arizona Supreme Court denied Channel's petition for review on August 24, 2018. (Doc. 24-5, p. 109)

         On May 9, 2018, Channel filed in this court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 1) He filed an “Opening Brief” on June 11, 2018. (Doc. 7) He claims (a) his Miranda rights were violated when he was arrested, (b) Sergeant Montoya questioned him illegally without Miranda, (c) Officer Guilford “violated operations orders, ” (d) the complaint was untimely, (e) “A.R.S. Rule (a) and 5.1(b), (c) was violated, ” (f) “the seven elements of jurisdiction” were not answered on the record, (g) counsel was not competent, (h) the trial judge had a conflict of interest, (i) “Channel's due process rights or civil rights” were violated, (j) “Channel's Amendment rights” were violated, (k) “judicial misconduct” occurred, (1) the court of appeals provided improper review, (m) “conspiracy against rights” pursuant to 18 U.S.C.A. § 241 is continuing, (n) “deprivation of civil rights under color of law” pursuant to 18 U.S.C. § 242 is continuing, (o) “the seven elements of jurisdiction” were not proven but might be on this court's records, (p) “Article II declaration of rights § 24 and §30 of Arizona Constitution” were violated, and (q) his waiver of preliminary hearing is without a signature. (Doc. 7, pp. 2-3) Channel's petition is prolix, confusing, and entirely conclusory. (Doc. 1); (Doc. 7) Channel asserts that he presented all of his claims to the Arizona Court of Appeals in his first PCR petition. (Doc. 1, p. 6)

         On November 15, 2018, the respondents filed an answer. (Doc. 24) They argue “Channel's claims are not cognizable, procedurally defaulted, waived and abandoned as conclusory assertions, or meritless.” (Doc. 24, p. 2)

         Channel filed a reply on November 28, 2018. (Doc. 28)

         Discussion

         The writ of habeas corpus affords relief to persons in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). If the petitioner is in custody pursuant to the judgment of a state court, the writ will not be granted unless prior adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         28 U.S.C. § 2254(d). The petitioner must shoulder an additional burden if the state court made findings of fact.

In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.

         28 U.S.C.A. § 2254 (e)(1).

         “[The] standard is intentionally difficult to meet.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). “‘[C]learly established Federal law' for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of th[e] [Supreme] Court's decisions.” Id.

         A decision is “contrary to” Supreme Court precedent if that Court already confronted “the specific question presented in this case” and reached a different result. Woods, 135 S.Ct. at 1377. A decision is an “unreasonable application of” Supreme Court precedent if it is “objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. at 1376. “To satisfy this high bar, a habeas petitioner is required to show that the state court's ruling on the claim being presented in federal court was so lacking in justification ...