United States District Court, D. Arizona
Honorable John J. Tuchi, United States District Judge.
case is before the Court on limited remand from the Ninth
Circuit Court of Appeals. (Doc. 109.) The Court is directed
to reconsider, in the light of intervening law, Claim 2 of
Lee's habeas petition and to address whether
reconsideration of Claims 9(A) and (D) is warranted.
issues have been briefed. (Docs. 120, 124, 128.) For the
reasons set forth below, the Court finds that Lee is not
entitled to relief on the remanded issues.
tried, convicted, and sentenced to death for the 1991 murder
of John Anderson. On December 5, 1991, Lee and co-defendant
Karen Thompson approached Anderson as he was leaving a clinic
in Phoenix and asked him for a ride. They planned to kidnap
and rob him in order to get money to buy drugs. Lee, who
pretended to be armed, told Anderson to drive south on the
freeway. When they arrived in Chandler, Lee and Thompson took
Anderson's wallet. They used Anderson's ATM cards and
credit cards over the next five days, both before and after
Thompson bound Anderson's hands and feet and left him in
a ditch alongside the road. They came back for him, however,
and placed him in the trunk of the car.
Thompson drove toward California, stopping frequently to use
cocaine and alcohol. They decided to kill Anderson to avoid
apprehension. Lee stated he would asphyxiate Anderson with
the car's exhaust and obtained a hose for that purpose.
about eight hours, Lee and Thompson stopped the car and
attempted to suffocate Anderson with car fumes by running the
hose from the exhaust pipe into the trunk. Their efforts
failed because Anderson kept pushing up the trunk lid. While
the couple paused to use more cocaine, Anderson escaped from
the trunk and attempted to flee. Lee chased Anderson and
wrestled him to the ground. Thompson then brought Lee a belt,
which he used to strangle Anderson. The belt broke, and Lee
yelled for Thompson to get a rock. As Lee choked Anderson
with his hands, Thompson hit Anderson in the head with the
rock, fracturing his skull.
Thompson placed the body in the trunk of the car. After
driving to California and then back to Phoenix, the couple
eventually went to Tucson, where they purchased a shovel and
buried Anderson in a shallow grave outside the city.
Paz County grand jury indicted Lee and Thompson on one count
each of first-degree murder, kidnapping, theft, armed
robbery, and credit card theft. Thompson entered a plea of
guilty to first-degree murder and armed robbery and testified
first accepted, then rejected, a plea offer in which the
State agreed not to pursue the death penalty. At trial he
presented an alibi defense. He was convicted on all counts.
an aggravation/mitigation hearing, the trial judge sentenced
Lee to death for first-degree murder. He found the following
aggravating factors: that Lee had a prior felony conviction
involving the use or threat of violence pursuant to A.R.S.
§ 13-703(F)(2); that he had participated in the killing
for pecuniary gain, A.R.S. § 13-703(F)(5); and that the
murder was perpetrated in an especially cruel manner, A.R.S.
§ 13-703(F)(6). The judge also determined that the
following mitigation existed but was not substantial enough
to call for leniency: Lee was remorseful; he admitted his
guilt; he lacked education and had a low level of
intelligence; he had strong family ties; he was a
“follower” by nature; co-defendant Thompson
received a life sentence; and the prosecutor had recommended
against the death penalty.
direct appeal, the Arizona Supreme Court affirmed Lee's
convictions and sentences. State v. Lee, 185 Ariz.
549, 917 P.2d 692 (1996). After unsuccessfully pursuing
postconviction relief (“PCR”), Lee commenced
proceedings in this Court, filing an amended petition for
writ of habeas corpus on November 29, 2004. (Doc. 52.)
2006 order, the Court denied a number of Lee's claims,
including Claim 2, alleging that trial counsel performed
ineffectively by failing to request a competency hearing,
which the Court found procedurally barred. (Doc. 87.) In a
subsequent order and judgment dated September 30, 2010, the
Court denied Lee's remaining claims, including Claims
9(A) and (D), alleging ineffective assistance of counsel
during the guilt and penalty phases, which the Court found
meritless. (Doc. 93.)
Ninth Circuit's remand order directs the Court to
consider with respect to these claims the effects of
intervening law, including Martinez v. Ryan, 566
U.S. 1 (2012); Dickens v. Ryan, 740 F.3d 1302 (9th
Cir. 2014) (en banc); Detrich v. Ryan, 740 F.3d 1237
(9th Cir. 2013) (en banc); and Woods v. Sinclair,
764 F.3d 1109 (9th Cir. 2014).
review is generally not available for a state prisoner's
claims when those claims have been denied pursuant to an
independent and adequate state procedural rule. Coleman
v. Thompson, 501 U.S. 722, 750 (1991). In such
situations, review is barred unless the petitioner can
demonstrate cause and prejudice or a fundamental miscarriage
of justice. Id. Coleman held that ineffective
assistance of counsel in post-conviction proceedings does not
establish cause for the procedural default of a claim.
Martinez, however, the Court announced a new,
“narrow exception” to the rule set out in
Coleman. The Court explained that:
Where, under state law, claims of ineffective assistance of
trial counsel must be raised in an initial-review collateral
proceeding, a procedural default will not bar a federal
habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral
proceeding, there was no counsel or counsel in that
proceeding was ineffective.
566 U.S. at 17; see also Trevino v. Thaler, 569 U.S.
413, 418 (2013).
under Martinez an Arizona petitioner may establish
cause and prejudice for the procedural default of an
ineffective assistance of trial counsel claim by
demonstrating that (1) PCR counsel was ineffective and (2)
the underlying ineffective assistance claim has some merit.
Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012)
(quoting Martinez, 566 U.S. at 14); see
Clabourne v. Ryan, 745 F.3d 362, 377 (9th Cir. 2014),
overruled on other grounds by McKinney v. Ryan, 813
F.3d 798, 818 (9th Cir. 2015) (en banc).
demonstrate that PCR counsel was ineffective, a petitioner
must “establish that both (a) post-conviction
counsel's performance was deficient, and (b) there was a
reasonable probability that, absent the deficient
performance, the result of the post-conviction proceedings
would have been different.” Clabourne, 745
F.3d at 377 (citing Strickland v. Washington, 466
U.S. 668, 687, 694 (1984)). Determining whether there was a
reasonable probability of a different outcome “is
necessarily connected to the strength of the argument that
trial counsel's assistance was ineffective.”
Id. at 377-78. “PCR counsel would not be
ineffective for failure to raise an ineffective assistance of
counsel claim with respect to trial counsel who was not
constitutionally ineffective.” Sexton v.
Cozner, 679 F.3d 1150, 1157 (9th Cir. 2012).
claims that were adjudicated on the merits in state court,
federal habeas review “is limited to the record that
was before the state court.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). In
Dickens, the Ninth Circuit ruled that
Pinholster does not apply to a claim that has been
“fundamentally altered” by new evidence because
such a claim was not adjudicated on the merits in state