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Lee v. Ryan

United States District Court, D. Arizona

April 5, 2019

Darrel Easton Lee, Petitioner,
Charles L. Ryan, et al., Respondents.



          Honorable John J. Tuchi, United States District Judge.

         This 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. (Id.)

         The 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.


         Lee was 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 killing him.

         Lee and 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.

         Lee and 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.

         After 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.

         Lee and 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.

         A La 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 against Lee.

         Lee 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.

         After 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).[1] 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.

         On 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.)

         In a 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.)

         The 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).


         Federal 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. Id.

         In 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).

         Accordingly, 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).

         To 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).

         For 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 ...

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