Lee v. Ryan

          ORDER

          G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE

         This case has been remanded by the Ninth Circuit Court of Appeals, which ordered this Court to reconsider Claims 2, 5, and 6 of Lee's habeas petition in the light of intervening law. (Doc. 135.) The issues have been briefed. (Docs. 141, 150, 153, 167-169.) For the reasons set forth below, the Court finds that the claims remain procedurally defaulted and barred from federal review.

         BACKGROUND

         In two separate trials, Lee was convicted and sentenced to death for three murders he committed during a crime spree in April 1992. In the first trial, he was convicted of first-degree murder in the deaths of Linda Reynolds, a pizza delivery woman, and David Lacey, a taxi driver, as well as kidnapping, sexual assault, armed robbery, and theft with respect to Reynolds, and armed robbery with respect to Lacey. Several months later, Lee was convicted of the murder and armed robbery of Harold Drury, a convenience store clerk. The facts surrounding the crimes, as found by the Arizona Supreme Court, are as follows.

         On April 6, 1992, Lee, then 19 years old, and David Hunt, 14, called Pizza Hut from a pay phone and placed an order to be delivered to a vacant house. When Linda Reynolds arrived with the pizza order, Lee and Hunt confronted her with a rifle, forced her to remove her shorts and shirt, and abducted her. Lee drove his Pontiac LeMans into the desert with Reynolds, and Hunt drove Reynolds' car to meet them.

         Lee removed the stereo and speakers from Reynolds' car and then destroyed the car by smashing windows and various parts with a bat, puncturing the tires, and disabling the engine by cutting hoses and spark plug wires. Lee destroyed Reynolds' car so that she could not escape.

         Reynolds was forced to remove her pantyhose, socks, and shoes and to walk barefoot with Hunt in the desert north of her car where he raped her. Hunt then walked Reynolds back toward her car, where Lee forced her to perform oral sex on him.

         Lee drove Reynolds and Hunt to Reynolds' bank and forced her to withdraw money from an ATM. She had a little over twenty dollars in her account. Lee and Hunt also forced her to give them the rings from her fingers.

         Lee and Hunt then drove Reynolds back to the desert where they had destroyed her car. She momentarily escaped, but Hunt found her and forced her back to the car. When she returned, her face and lips were bloody.

         Lee claimed that he and Hunt argued in front of Reynolds about whether to release her. Lee testified that Hunt was opposed to releasing her because she would be able to identify them. While escorting Reynolds away from Hunt, Lee shot her in the head. Lee ran back to the car, got a knife, went back to Reynolds, and stabbed her twice in the left side of her chest. He returned to his car and drove away with Hunt.

         Shortly after midnight on April 16, 1992, nine days after the Reynolds murder, Lee called for a cab from a pay telephone at a convenience store. David Lacey's cab was dispatched, and he picked up Lee. Hunt, who had waited near the convenience store, drove Lee's car to the location where he and Lee intended to rob Lacey. When Lacey stopped the cab and turned around to get paid, Lee shot him. He fired nine shots, four of which hit Lacey. Lee removed forty dollars from Lacey's pockets and dumped his body by the side of the road. With Hunt following, Lee drove the cab to a dirt road where he shot the cab's windows and tires and rifled through its contents. Lee's cigarette lighter and bloody fingerprint on a receipt were later found in the abandoned cab.

         After hearing news reports that police had found distinctive shoeprints at the Reynolds and Lacey crime scenes, Lee drove to a forest north of Prescott and burned the shoes he had worn during both murders. He also burned and buried two .22 caliber rifles including the gun he used to shoot Reynolds. Lee left the knife he used to stab Reynolds stuck into a tree at the same location.

         Around 1:00 a.m. on April 27, 1992, Lee entered an AM-PM market to purchase some cigarettes. When the clerk, Harold Drury, opened the cash drawer, Lee shot him in the shoulder, causing him to fall backwards. Lee then shot Drury in the top of the head, the forehead, the cheek, and the neck. Drury slumped to the floor. Lee walked around the counter and shot Drury two more times in the right temple. Lee picked up the cigarettes, took the entire cash drawer from the register, and left the store. Hunt was in Lee's car waiting to leave the scene.

         Lee removed the cylinder from his revolver and threw both parts into a dumpster. After driving for several miles, Lee and Hunt disposed of the cash drawer in a creek bed Authorities identified Lee and Hunt as suspects. They were arrested in Flagstaff on unrelated armed robbery charges and transported to Phoenix. In a series of interviews with detectives, Lee confessed to robbing and murdering Reynolds, Lacey, and Drury. He led detectives to the campsite where he had hidden the weapons.

         In his first trial, Lee was convicted of two counts of first-degree murder. The court sentenced him to death for the Reynolds and Lacey murders. In his second trial, he was convicted and sentenced to death for the Drury murder.

         The convictions and sentences were confirmed on appeal. State v. Lee (Lee I), 189 Ariz. 590, 944 P.2d 1204 (1997); State v. Lee (Lee II), 189 Ariz. 608, 944 P.2d 1222 (1997). After unsuccessfully pursuing postconviction relief (PCR), Lee commenced proceedings in this Court. He filed an amended petition for writ of habeas corpus on March 3, 2003. (Doc. 59.)

         In a 2005 order, the Court denied Claims 2, 5, and 6, alleging ineffective assistance of trial and appellate counsel, as procedurally barred. (Doc. 94.) The Court denied Lee's amended petition in 2009. (Doc. 126.)

         In 2014, the Ninth Circuit remanded the case and directed the Court to consider the effects of intervening law on Claims 2, 5, and 6. (Doc. 135.) The remand order cited 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); Woods v. Sinclair, 764 F.3d 1109, 1138 n.16 (9th Cir. 2014); and Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013).^[1](Id.)

         APPLICABLE LAW

         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, federal habeas 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, 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, 423 (2013).

         Accordingly, under Martinez an Arizona petitioner may establish cause for the procedural default of an ineffective assistance of trial counsel claim by demonstrating that PCR counsel was ineffective under Strickland v. Washington, 466 U.S. 668 (1984). 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 show ineffectiveness, a petitioner must demonstrate that PCR counsel's performance was deficient and there was a reasonable probability that, absent the deficient performance, the result of the PCR proceedings would have been different. (Id.)

         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. The Ninth Circuit has explained that “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).

         To establish “prejudice” in the Martinez context, a petitioner must show that the underlying ineffective assistance of trial counsel claim was “substantial” or had “some merit.” Clabourne, 745 F.3d at 377 (citing Martinez, 566 U.S. at 14).

         The Martinez exception applies only to claims of ineffective assistance of trial counsel. Pizzuto v. Ramirez, 783 F.3d 1171, 1177 (9th Cir. 2015); Hunton v. Sinclair, 732 F.3d 1124, 1126-27 (9th Cir. 2013). As relevant here, it does not apply to claims of ineffective assistance of appellate counsel. Davila v. Davis, 137 S.Ct. 2058, 2062-63 (2017).

         Claims of ineffective assistance of counsel are governed by the principles set forth in Strickland. To prevail under Strickland, a petitioner must show that counsel's representation fell below an objective standard of reasonableness and that the deficiency prejudiced the defense. Id. at 687-88.

         The inquiry under Strickland is highly deferential, and “every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” 466 U.S. at 689; see Wong v. Belmontes, 558 U.S. 15 (2009) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam). To satisfy Strickland's first prong, a defendant must overcome “the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id.

         With respect to Strickland's second prong, a defendant must affirmatively prove prejudice by “show[ing] that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         DISCUSSION

         Pursuant to the remand order, the Court assesses the impact of Martinez on the procedurally defaulted Claims 2, 5, and 6.

         Claim 2

          In Claim 2 of his amended habeas petition, Lee alleged that trial counsel provided ineffective assistance by failing to investigate and present mitigation evidence during the sentencing phase of Lee's trials. (Doc. 59 at 96.) Lee did not raise the claim in state court and this Court dismissed it as procedurally barred. (Doc. 94 at 9.)

         Lee's principal allegation is that despite “tantalizing indications” trial counsel failed to pursue evidence that Lee was exposed to alcohol in utero. (Doc. 141 at 14.) Lee asserts that “[he] was born with neurological impairments consistent with a diagnosis of Fetal Alcohol Effect (FAE) or Alcohol Related Neurodevelopmental Disorder (ARND).”^[2] (Id. at 18.) Lee argues he was prejudiced by counsel's performance because evidence of FAE “would have provided the ‘explanation' the judge sought” for why Lee committed the murders. (Id. at 15.) Finally, Lee alleges that PCR counsel performed ineffectively in failing to raise the claim so its default is excused under Martinez. (Id. at 9-13.)

         Trial court proceedings:

         Lee was represented by attorney Alan Simpson. Prior to trial, Simpson moved to have Lee's confessions suppressed. (ROA 66.)^[3] At a hearing on the motion, Simpson presented testimony from Dr. Mickey McMahon, a psychologist, who testified that Lee suffered from Attention Deficit Disorder (ADD), was submissive to authority, and had difficulty processing information. (RT 1/28/94 at 163-86.)^[4]

         After the jury found Lee guilty of the Reynolds and Lacey murders, Simpson filed a “Disclosure of Mitigation” listing mitigating circumstances and naming Dr. McMahon as an expert witness for the sentencing hearing. (ROA 118.) Before the hearing, Simpson filed a sentencing memorandum contesting ...