Lynam v. Ryan

          REPORT AND RECOMMENDATION

          Honorable Bruce G. Macdonald United States Magistrate Judge

         Currently pending before the Court is Petitioner Michael Ray Lynam's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus (“Answer”) (Doc. 10), and Petitioner replied (Doc. 13). The Petition is ripe for adjudication.

         Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, ^[1] this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Initial Charge and Sentencing

         Petitioner was charged via Indictment with “transportation of methamphetamine for sale, six counts of possession of a deadly weapon while committing a felony drug offense, three counts of possession of drug paraphernalia, and possession of less than two pounds of marijuana.” Answer (Doc. 10), Ariz. Ct. of Appeals, No. 2 CA-CR 2009-0130, Mem. Decision 3/9/2010 (Exh. “E”) at 1. “After a jury trial, he was convicted of all charges except two counts of possessing a deadly weapon while committing a felony drug offense.” Id., Exh. “E” at 1-2; see also Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Minute Entry (Jury Trial-Day Three) 2/19/2009 (Exh. “A”) (Doc. 10-1). On April 2, 2009, Petitioner was sentenced to presumptive, concurrent terms of imprisonment for Counts I, VI, VII, VIII, and IX- transport of a dangerous drug for sale, possession of marijuana, and three (3) counts of possession of drug paraphernalia. See Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Resentence Hearing and Sentence of Imprisonment 4/2/2009 (Exh. “B”) (Doc. 10-1). Petitioner was also sentenced to presumptive, concurrent terms of imprisonment for Counts II, III, IV, and V-each of which involved possession of a deadly weapon while committing a felony. See id., Exh. “B.” This second term was ordered to run consecutively to the sentences imposed for Counts I, VI, and VII. See id., Exh. “B.” In total, Petitioner was sentenced to 12.5 years imprisonment with credit for 216 days served prior to Sentencing. See id., Exh. “B.”

         B. Direct Appeal

         On April 9, 2009, Petitioner filed his Notice of Appeal from Superior Court. Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Def.'s Not. of Appeal from Superior Ct. 4/9/2009 (Exh. “C”) (Doc. 10-1). On November 3, 2009, counsel for Petitioner filed an Anders^[2] brief with the Arizona Court of Appeals.^[3] Answer (Doc. 10), Ariz. Ct. of Appeals, No. 2 CA-CR 2009-0130, Appellant's Substituted Opening Br. 11/3/2009 (Exh. “D”) (Doc. 10-1). On March 9, 2010, the Arizona Court of Appeals affirmed Petitioner's conviction. Answer (Doc. 10), Ariz.Ct.App., No. 2 CA-CR 2009-0130, Memorandum Decision 3/9/2010 (Exh. “E”) (Doc. 10-1). The court of appeals concluded that “[t]he sentences imposed totaling 12.5 years were legal and, accordingly, there was no reversible error[.]” Id., Exh. “E” at 48.^[4] Upon review of the record the court further found “ample evidence establishing the elements of the offenses of which Lynam was convicted.” Id., Exh. “E” at 48. The appellate court certified that “[h]aving searched the record for reversible error as requested by counsel and pursuant to [its] obligation under Anders, and having found none, [the appellate court] affirm[ed] the convictions and the sentences imposed.” Id., Exh. “E” at 49. On April 19, 2010, the mandate issued indicating that Petitioner had not filed a motion for reconsideration or sought review with the Arizona Supreme Court. Answer (Doc. 10), Ariz.Ct.App., No. 2 CA-CR 2009-0130, Mandate 4/19/2010 (Exh. “F”) (Doc. 10-2).

         C. Initial Post-Conviction Relief Proceeding

         On April 22, 2010, Petitioner filed his Notice of Post-Conviction Relief (“PCR”). Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Def.'s Not. of PCR 4/22/2010 (Exh. “G”) (Doc. 10-2). On May 11, 2010, the trial court appointed counsel to Petitioner for the Rule 32 proceeding. See Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Notice Re: Assignment of Counsel (Exh. “H”) (Doc. 10-2). On November 24, 2010, Petitioner timely filed his Petition for Post-Conviction Relief. Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Def.'s Petition for PCR (Exh. “J”) (Doc. 10-2); see also Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Order for Ext. of Time to File Pet. for PCR (Exh. “I”) (Doc. 10-2).

         Petitioner asserted that “the [t]rial [c]ourt erred in sentencing Mr. Lynam to consecutive sentences on the weapons convictions.” Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Exh. “J” at 25. Petitioner further asserted ineffective assistance of both trial and appellate counsel for their alleged failure to object to the imposition of consecutives sentences on Petitioner's weapons convictions. Id., Exh. “J” at 25-26.

         On May 5, 2011, the Rule 32 court dismissed Petitioner's petition. See Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Decision and Order 5/5/2011 (Exh. “L”) (Doc. 10-2). The Rule 32 court held that the State's position was correct, and “the consecutive prison terms imposed by the court were authorized by law.” Id., Exh. “L” at 34 (citing State v. Siddle, 202 Ariz. 512, 47 P.3d 1150 (Ct. App. 2002)). The Rule 32 court further held that “[b]ecause the sentences were proper, neither trial nor appellate counsel c[ould] be faulted for not arguing otherwise.” Id., Exh. “L” at 34. The Rule 32 court also noted that in his PCR petitioner, Petitioner argued that “the court may have erred by not imposing a flat-time sentence for transportation of methamphetamine, as opposed to the 85% sentence actually imposed[, ]” and acknowledged that the State did not address this argument in its response. Id., Exh. “L” at 34. The court went on to indicate that “[e]vidently the State is not concerned about the minor break the defendant was given by mistake, and definitely the defendant does not really want a flat-time sentence.” Id., Exh. “L” at 35. The court dismissed Petitioner's Rule 32 petition and denied relief finding”[n]o issue of fact or law ha[d] been presented which would entitle defendant to any post-conviction relief.” Id., Exh. “L” at 35. Petitioner did not appeal.

         D. Second Post-Conviction Relief Proceeding

         On November 15, 2011, ^[5] Petitioner wrote a letter to the trial court seeking appointment of counsel “in an effort to file another [R]ule 32.” Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Lynam Ltr. 11/15/2011 (Exh. “M”) (Doc. 10-2). On November 18, 2011, the court denied Petitioner's request for counsel, because “[n]o Rule 32 proceedings [were] pending.” Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Decision and Order 11/18/2011 (Exh. “N”) (Doc. 10-2). The court further indicated that “[i]f and when defendant files another Rule 32 petition, any request for PCR counsel would be addressed.” Id., Exh. “N.”

         On January 12, 2012, ^[6] Petitioner again wrote the trial court seeking an order to compel the Public Defender's Office to provide him with his case file. Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Lynam Ltr. 1/12/2012 (Exh. “O”) (Doc. 10-2). On January 30, 2012, the court denied Petitioner's request “because nothing [was] pending”; however, the court did send a courtesy copy of its order to the Public Defender's Office. Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Decision and Order 1/30/2012 (Exh. “P”) (Doc. 10-2). On June 11, 2013, the Rule 32 Court issued an order applying the mailbox rule and deeming Petitioner's second PCR notice filed as of April 30, 2012. Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Decision and Order 6/11/2013 (Exh. “T”) (Doc. 10-3).

         1. Petitioner's Second PCR Petition

         On December 23, 2013, Petitioner filed his Supplemental Petition for Post-Conviction Relief Pursuant to Ariz. R. Crim. P. 32 in Propria Persona. See Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Pet.'s Suppl. PCR Pet. (Exh. “W”) (Doc. 10-3) at 23-51. Petitioner alleged that “statements made in Judges [sic] chambers without petitioner present and petitioner never being made aware of them prior to or during trial created a situation in which the defense counsel changed agreed upon defense strategy without notification to defendant and which also created a prejudice against the defendant at sentencing.” Id., Exh. “W” at 27. Petitioner asserted that he decided not to take the stand “[c]ompletely against my better judgement [sic] and what [he] now consider[ed] borderline ‘duress.'” Id., Exh. “W” at 29. Petitioner argued that “[e]very other circumstancial [sic] connection [to anything illegal] could be explained away ‘if' a proper investigation would have been done.” Id., Exh. “W” at 30. Petitioner alleged that “there was more than enough evidence to present at trial and believe[d] ‘if' it had been presented properly, the jury and the Court would have had the presence of mind to see more of the truth in this case and the results would not have been as severe.” Id., Exh. “W” at 31. As such, Petitioner alleged that trial counsel was ineffective for failing to present testimony from witnesses. Answer (Doc. 10), Exh. “W” (Doc. 10-3) at 33.

         Petitioner alleged in his second ground for relief, that he was “interviewed by a Sierra Vista Detective, without defense counsels [sic] knowledge or permission.” Id., Exh. “W” at 35. Petitioner asserts that this “violat[ed] [his] due process right to remain silent and to access to [sic] counsel.” Id., Exh. “W” at 35. Petitioner allegedly provided information to the detective regarding the weapons that were found in his vehicle, and prior to speaking with his attorney, had his wife send a copy of the Bill of Sale to the contact provided by the detective. Id., Exh. “W” at 35-36, 37. Petitioner did not tell his attorney about the encounter until trial. Id., Exh. “W” at 36. Petitioner asserted that this situation constituted “new evidence” requiring an evidentiary hearing. Answer (Doc. 10), Exh. “W” (Doc. 10-3) at 38.

         Petitioner's third ground for relief alleged ineffective assistance of counsel in both his direct appeal, as well as his initial Rule 32 proceeding. Id., Exh. “W” at 38. Relying on Martinez v. Ryan, ^[7] Petitioner argues that the state court should excuse any preclusion to hear his subsequent claims, including the fourth and fifth claims for relief contained in his Supplemental Petition. Id., Exh. “W” at 39-40. Petitioner's fourth ground for relief alleged that his sentence was “not in accordance with the sentencing procedures established by rule and statute[, ] . . . [because] Defendants [sic] sentence did not properly use the statutory mitigators as opposed to the statutory aggravators. Id., Exh. “W” at 40. Petitioner further alleged that the trial court “misapplied” the “catch-all” provision in giving equal weight to Petitioner's prior convictions and potential mitigating factor of being “a good friend to people who are in need.” Id., Exh. “W” at 41-42. Petitioner asserted that this error resulted in a presumptive sentence, which should have been mitigated. Id., Exh. “W” at 42-43.

         Petitioner's fifth ground for relief alleged that he “would have accepted the plea-aggreement [sic] if he had known that his counsel was not going to present any witnesses or evidence on his behalf.” Answer (Doc. 10), Exh. “W” (Doc. 10-3) at 43. Petitioner asserted that both trial counsel and appellate counsel were ineffective-trial counsel because of an alleged lack of defense, and appellate counsel for not raising the issue on appeal. Id., Exh. “W” at 44. As his sixth ground for relief, Petitioner asserted that he should have been required to serve 85% of his sentence prior to being eligible for any type of release, as opposed to “flat-time.” Id., Exh. “W” at 45-46.

         2. Rule 32 Court Order

         The Rule 32 court determined that Petitioner's grounds three (3) and five (5) regarding ineffective assistance of trial and appellate counsel were precluded by Rule 32.2, Arizona Rules of Criminal Procedure. Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Decision and Order 2/19/2014 (Exh. “Z”) (Doc. 10-4) at 23-25 (citing Ariz. R. Crim. P. 32.2; then citing Stewart v. Smith, 202 Ariz. 446, 449-50, 46 P.3d 1067, 1070-71 (2002)). The Rule 32 court further noted that Petitioner's attempted reliance on Martinez v. Ryan^[8] was meritless as Martinez “did nothing to the rules of preclusion in state Rule 32 proceedings.” Id., Exh. “Z” at 25 (citing State v. Escareno-Meraz, 232 Ariz. 586, 587, 307 P.3d 1013, 1014 (Ct. App. 2013)). The Rule 32 court also dismissed Petitioner's argument that because his newly-discovered evidence claims were not precluded, his otherwise precluded claims should be allowed to be heard. Id., Exh. “Z” at 25. The Rule 32 court considered Petitioner's claim that PCR counsel for his first petition was ineffective, finding it not precluded. Id., Exh. “Z” at 26. The Rule 32 court went on to hold, however, that Petitioner's claim was without merit, because as a non-pleading defendant, Petitioner's Rule 32 proceeding was not “of right” and therefore he did not have a right to counsel at all, much less a right to effective assistance of counsel. Id., Exh. “Z” at 26 (citing Ariz. R. Crim. P. 32.1; then citing State v. Escareno-Meraz, 232 Ariz. 586, 587, 307 P.3d 1013, 1014 (Ct. App. 2013)).

         The Rule 32 court also found Petitioner's claims regarding sentencing (Grounds 4 and 6) were precluded, because they should have been raised on direct appeal. Answer (Doc. 10), Exh. “Z” (Doc. 10-4) at 27 (citing Ariz. R. Crim. P. 32.2(a)(2) & (3)). The Rule 32 court noted that despite the issues not having been raised, the Arizona Court of Appeals “determined that defendant's sentences were lawful[.]” Id., Exh. “Z” at 27. The Rule 32 court further found that “even if the sentencing issues somehow survived the decision of the Court of Appeals, they were waived by not having been included in the first Rule 32 petition.” Id., Exh. “Z” at 27. The Rule 32 court also indicated that the trial court “did consider evidence both in mitigation and aggravation, but determined that nothing was sufficiently substantial to call for the imposition of sentences other than the presumptive terms[, and therefore] . . . did not utilize the ‘catch-all' provision to impose aggravated sentences.” Id., Exh. “Z” at 27.

         The Rule 32 court described Petitioner's first ground for relief as a “[d]isguised IAC claim.” Id., Exh. “Z” at 28. The Rule 32 court noted that ineffective assistance of trial counsel claims were precluded as this was his second petition for post-conviction relief. Id., Exh. “Z” at 28. Moreover, even if the claims “were not precluded, they would still not present a colorable claim.” Answer (Doc. 10), Exh. “Z” (Doc. 10-4) at 28. After properly citing the rule delineated in Strickland v. Washington, ^[9] the Rule 32 court held that Petitioner could not satisfy the first prong of Strickland, because Petitioner had failed to present any “basis for concluding that counsel fell below prevailing professional norms - that is, applicable objective standards for criminal defense lawyers[.]” Answer (Doc. 10), Exh. “Z” (Doc. 10-4) at 28. The Rule 32 court also held that “[t]he alleged acts or omissions of defense counsel during trial are not newly-discovered material facts as contemplated by [] [R]ule [32.1(e).]” Id., Exh. “Z” at 30-31 (emphasis in original) (citing Ariz. R. Crim. P. 32.1(e); then citing State v. Saenz, 197 Ariz. 487, 4 P.3d 1030 (Ct. App. 2000)).

         Finally, the Rule 32 court considered Petitioner's claim regarding an alleged custodial interview by a Sierra Vista police officer. Id., Exh. “Z” at 31-32. For purposes of its decision, the Rule 32 court assumed the facts presented by Petitioner as true and held that “law enforcement conducted improper and unauthorized in-custody interrogation of a represented criminal defendant without defense counsel's knowledge or approval[] [and] [s]uch interrogation cannot be condoned[;] [however] [i]t cannot be newly-discovered evidence, because defendant knew about it months before trial[, ] [n]or does it show IAC by defense counsel, because defendant did not tell his lawyer about the interview until trial[.]” Id., Exh. “Z” at 32. The Rule 32 court further noted that “[i]t [was] unclear what [defense] counsel might have attempted to do, because the State did not present any evidence of the interview during the trial.” Id., Exh. “Z” at 32.

         3. Motion for Reconsideration

         On April 25, 2014, Petitioner filed a Rule 32.9(a) Motion for Reconsideration of February 18th, 2014 “P.C.R. Dismissal.” Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Pet.'s Mot. for Reconsideration (Exh. “AA”) (Doc. 10- 5). Petitioner reasserted his arguments regarding “newly-discovered” evidence and ineffective assistance of counsel. See Id. The Rule 32 court summarily denied Petitioner's motion. Answer (Doc. 10), Ariz. Superior Ct., Cochise County, No. CR200800661, Decision and Order 4/30/2014 (Exh. “BB”) (Doc. 10-5).

         4. Appeal of Second PCR

         On July 25, 2014, Petitioner filed his Petition for Review with the Arizona Court of Appeals. See Answer (Doc. 10), Ariz. Ct. of Appeals, No. 2 CA-CR 2014-0275-PR, Pet.'s Pet. for Review (Exh. “DD”) (Doc. ...