United States District Court, D. Arizona
ORDER
Dominic W. Lanza United States District Judge
On
November 6, 2017, Petitioner filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254. (Doc. 1.) On June
4, 2019, Magistrate Judge Burns issued a Report and
Recommendation (“R&R”) concluding the
petition should be denied and dismissed with prejudice. (Doc.
23.) Afterward, Petitioner filed written objections to the
R&R (Doc. 24), Respondents filed a response (Doc. 26),
and Petitioner filed a reply (Doc. 27). For the following
reasons, the Court will overrule Petitioner's objections
and deny and dismiss his petition.
I.
State Court Proceedings
On June
9, 2010, officers from the Glendale Police Department
discovered a corpse in the trunk of a car. (Doc. 23 at 1.)
Through investigation, the police learned that the victim had
operated a marijuana trafficking business with Petitioner and
that Petitioner was the last known person to be seen with the
victim. (Id.) Based on this information, the police
obtained a warrant to search Petitioner's home for
evidence of drug trafficking. (Id. at 1-2.) During
the search, the police observed a bullet strike on a floor
tile, red drops of liquid on the floor, loaded gun magazines,
and a wall that appeared to have been freshly patched and
painted. (Id. at 2.) The police proceeded to test
the drops and confirmed they were, in fact, blood.
(Id.) Based on all of this information, the police
obtained another warrant to expand the scope of the search.
(Id.)
Petitioner
was arrested around the time of the search. (Id.)
During a post-arrest interview, Petitioner admitted that he
had shot and killed the victim during a drug-related
argument, further admitted that he'd attempted to clean
his house with bleach and patch the wall after the murder,
and further admitted that he'd disposed of the
victim's property and placed the victim in the trunk
after the murder. (Id.)
Before
trial, Petitioner's counsel moved to suppress the blood
evidence and the evidence found during the second search.
(Id.) The trial court denied the motion.
(Id.)
At
trial, Petitioner testified in his own defense.
(Id.) The jury could not reach a unanimous verdict
on the charge of first-degree murder but convicted Petitioner
of the lesser-included offense of second-degree murder, as
well as of the charge of abandonment or concealment of a
body. (Id.) Petitioner was sentenced to consecutive
terms of imprisonment totaling 24 years. (Id.)
Petitioner
timely appealed his conviction and sentence to the Arizona
Court of Appeals. (Id. at 3.) The sole argument
raised in this appeal was whether the trial court erred by
denying the suppression motion. (Id.) In an
unpublished decision issued in June 2013, the Arizona Court
of Appeals affirmed. (Id. at 2-3.)
In July
2013, Petitioner filed a pro se notice of
post-conviction relief (“PCR”). (Id. at
3.) In response, the trial court appointed counsel, who
subsequently informed the court that he could not identify
any colorable issues. (Id.) Petitioner also filed a
pro se PCR petition in which he raised the following
arguments: (1) the state presented false testimony; (2) the
state failed to adequately investigate the case; (3) the
state violated Brady; (4) the trial court improperly
excluded certain evidence; and (5) he received ineffective
assistance because his trial counsel (a) failed to obtain and
use impeachment evidence, (b) untimely interviewed the
state's medical examiner, and (c) failed to investigate
or present mitigation evidence at sentencing. (Id.)
On
December 2014, the trial court dismissed the PCR petition.
(Id.) The court found that many of Petitioner's
claims were precluded under Rule 32.2 of the Arizona Rules of
Criminal Procedure, because he could have raised them in his
direct appeal, and that Petitioner's ineffective
assistance claims failed because, regardless of whether
counsel's performance was deficient, Petitioner
“failed to show any evidence of prejudice” in
light of the “overwhelming evidence of
[Petitioner's] guilt.” (Id. at 3-4.)
In
February 2017, the Arizona Court of Appeals issued a
memorandum decision affirming the trial court's dismissal
of the PCR petition. (Id. at 4.) In that decision,
the appellate court expressly adopted the trial court's
reasoning and analysis. (Id.)
In
September 2015, while his appeal in the first PCR proceeding
was pending, Petitioner filed a second pro se PCR
notice. (Id.) Once again, the trial court appointed
counsel, and once again, counsel could not identify any
colorable issues. (Id.) Petitioner then filed a
second pro se PCR petition, which raised the
following seven grounds for relief: “(1) the State
committed misconduct by presenting false testimony by witness
McKeen; (2) the State in bad faith, failed to collect
potentially exculpatory evidence; (3) the State violated the
defendant's rights under Brady by not raising
the fact that witness McKeen had knowledge of the drug
transactions that he and the victim were involved in; (4)
defense counsel engaged in ineffective assistance of counsel;
(5) defense counsel failed to collect or utilize impeachment
material to attack witness testimony; (6) defense counsel
erred by interviewing the medical examiner immediately before
trial; and (7) defense counsel failed to investigate or
present sufficient mitigation at sentencing.”
(Id.)
In
December 2016, the trial court dismissed the second PCR
petition. (Id.) The court found that all of
Petitioner's claims had been raised in his first PCR
petition, only to be rejected on the merits, and/or could
have been raised in the first PCR petition and were therefore
forfeited. (Id.)
In
November 2017, the Arizona Court of Appeals denied
Petitioner's petition for review of the order denying his
second PCR petition. (Id.)
II.
The Petition
On
November 6, 2017, Petitioner filed his habeas petition. (Doc.
1.) It asserts ...