United States District Court, D. Arizona
REPORT AND RECOMMENDATION
A. BOWMAN UNITED SUITES MAGISTRATE JUDGE.
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)
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).
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.
of the Case
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.
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.
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)
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)
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.
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)
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,
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)
filed a reply on November 28, 2018. (Doc. 28)
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
(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;
(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.
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.
U.S.C.A. § 2254 (e)(1).
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
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 ...