Smith v. Ryan

          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 ...