United States District Court, D. Arizona
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. ...