United States District Court, D. Arizona
MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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
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.
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.
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.)
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.
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.
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).
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.)
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).
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).
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).
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.
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.
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.
to the remand order, the Court assesses the impact of
Martinez on the procedurally defaulted Claims 2, 5,
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.)
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).” (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
represented by attorney Alan Simpson. Prior to trial, Simpson
moved to have Lee's confessions suppressed. (ROA
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.)
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