Bloom v. Hacker-Agnew

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          JAMES F. METCALF UNITED STATES MAGISTRATE JUDGE

         I. MATTER UNDER CONSIDERATION

         Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on November 20, 2018 (Doc. 1) is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND A. FACTUAL BACKGROUND

         In addressing Petitioner's direct appeal, the Arizona Court of Appeals provided the following summary of evidence of guilt:

¶4 …The victim's body was discovered in an advanced state of decomposition under a mattress between two beds in June 2004 in a locked travel trailer owned by Bloom. The medical examiner determined that the victim had died from two gunshot wounds to the head, and testified that he recovered two bullets that appeared to be .22 caliber from inside the victim's skull. A .22 caliber rifle, an empty case for a .22 pistol and a silencer were among the items seized during a search of Bloom's residence.

¶5 Bloom's girlfriend testified that Bloom told her one night in March 2003 that he had gone to the trailer, where the victim had been living with their permission, and talked to him in the bedroom about some problems they were having with him. Bloom told her that the victim did not take him seriously, but added, “we have no dilemma on the property” anymore. She testified that she asked Bloom, “What did you do? Shoot him?” Bloom responded, “Oh, yeah, bang, bang, ” and said he had shot the victim. He told her that now he had a mess to clean up.

¶6 Another witness testified that Bloom also had told him that he had killed the victim, and had asked him to help cut up and move the victim's body. Two other witnesses also testified that Bloom had sought help around that time either in cleaning up a “mess” at the trailer or “to take out the garbage.” Bloom told police that on several visits to the trailer, he had intended to shoot the victim but had lost his nerve. Bloom confirmed to police, however, that he had told his girlfriend she would not have to worry about the victim anymore and that he had shot the victim.

(Exhibits to the Answer, Doc. 10 (A thru V), and the Supplemental Answer, Doc. 19 (X thru CC) are referenced herein as “Exh.__ .”^[1] Exhibits to the Reply, Doc. 17 are referenced herein as “Exh. R-__.”)

         B. PROCEEDINGS AT TRIAL

         Petitioner was appointed counsel. A month before trial, Petitioner filed a Motion to Change Attorney (Exh. BB), arguing counsel was not zealously representing Petitioner, and had failed to address the jail's denial of medical treatment for his “chemical imbalance, ” which he admitted had since been resumed, and arguing the Americans with Disabilities Act and Rehabilitation Act. He also filed a Petition for Writ of Habeas Corpus (Exh. AA), arguing the same issues.

         The trial court conducted a hearing. (Exh. CC, R.T. 10/11/5.) Petitioner confirmed his medications issued had been resolved (id. at 6-7), defense counsel supported the motion on the basis that Petitioner had accused him of lying and conspiring with the prosecution (id. at 10), the court considered appointing new counsel if Petitioner would waive the resulting delay in trial which the court estimated at 4 months (id. at 11), but the prosecution objected on the basis of impact on witnesses (id. at 12). The court concluded to deny the motion to change attorney. (Id. at 12-13.) The court expressed confusion over the desired relief on the habeas petition, and the matter was continued. (Id. at 13-14.)

         Counsel filed a Motion to Suppress (Exh. R-A) arguing that Petitioner's confession should be suppressed because it was obtained in violation of Petitioner's right to counsel and involuntary because based on threats and promises related to the imposition of the death penalty. The trial court largely granted the motion, finding that Petitioner had invoked his right to counsel after being taken into custody in Maricopa County, and ensuing statements to Officer Womack were inadmissible. However, the court also concluded that once he was in Apache County jail, Petitioner waived his rights by initiating discussions with Officer Womack, and statements to Officer Womack thereafter were admissible. On the other hand, the subsequent interrogation by Officer Scruggs was deemed involuntary because Officer Scruggs initiated his interview with threats or promises regarding the death penalty, and thus was excluded. (Exh. R-B, Order 10/27/05.) Thus, the court did permit Womack to testify as to a portion of the statements Petitioner made to him. (See Exh. Z, R.T. 11/2/5 (Womack testimony).)

         After a five-day jury trial, Bloom was found guilty of first degree murder on November 8, 2005. (Exh. X, R.T. 11/8/5.) Petitioner again moved for new counsel, which was denied. (Exh. Y, RT 11/28/15 at 4.)

         On request of defense counsel, the Court appointed Dr. Potts, M.D. to conduct a pre-sentence examination of Petitioner pursuant to Arizona Rules of Criminal Procedure 26.5 (mental health examination for sentencing). (Exh. Y, R.T. 11/28/5 at 4, 5.) Dr. Potts rendered a report (Exh. R-C) with findings of no major mental illness, reported ADHD, thought processes that were goal directed and intact, and normal cognitive abilities, but noting discrepancies in Petitioner's statements that could either be lies or potentially a delusional disorder. (Exh. H, PCR Pet., Exh. 6, Potts Letter 2/14/6.)

         Petitioner was sentenced on March 13, 2006, to natural life in prison. (Exh. A, Mem. Dec. at ¶ 2.)

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner filed through counsel an Opening Brief (Exh. B) on direct appeal, arguing: (1) error in denial of the motion for judgment of acquittal; (2) error in admitting prejudicial photos of the victim; and (3) prosecutorial misconduct in closing arguments by arguing for closure for the victim's family. The Arizona Court of Appeals affirmed. (Exh. A, Mem. Dec.)

         Petitioner sought review by the Arizona Supreme Court, which denied review on December 7, 2007 (Exh. F, Order.)

         Petitioner proffers nothing to show he sought certiorari review by the U.S. Supreme Court. Respondents contend he did not. (Answer, Doc. 10 at 6.) Petitioner does not counter the contention. (Reply, Doc. 17 at 1.) The undersigned finds Petitioner did not seek certiorari review.

         D. PROCEEDINGS ON POST-CONVICTION RELIEF 1. First PCR Proceeding (2006/2008)

         On June 2, 2006 (during the pendency of Petitioner's direct appeal), Petitioner filed a Notice of Post-Conviction Relief (Exh. V). The parties report no further proceedings on the basis of that notice. (See Petition, Doc. 1 at 7 (not recognizing); and Answer, Doc. 10 at 3, n. 2 (“no further documents associated with the notice” in Respondents' files).)

         On Monday, January 7, 2008, Petitioner filed a Notice of Post Conviction Relief (Exh. G). Counsel was appointed, who filed a PCR Petition (Exh. H) arguing trial counsel was ineffective for failing to: (1) pursue and argue evidence regarding the victim's wounds; (2) present evidence of reputation for non-violence; and (3) failure to address Plaintiff's mental health to explain his confession. The PCR court summarily rejected the claims on the merits and denied the petition. (Exh. J, M.E. 12/3/08.)

         Counsel moved for an extension of time for a petition for review (Exh. Q) and then moved to withdraw (Exh. R).

         Petitioner then filed a pro se Petition for Review (Exh. T) arguing: (1) improper use of portions of a VCR recording of Petitioner' statement; (2) failure of trial counsel to object to refusal of the jury's request to listen again to the recording; (3) failure of trial counsel to argue that the house searched (where the weapons were found) was not, contrary to the search warrant, the residence of Petitioner, but that of his girlfriend; (4) withholding of evidence on fingerprints; (5) failure of trial counsel to object to use of the suppressed statement; (6) failure of trial counsel to object to the rifles taken from the “wrong” house; and (7) failure of trial counsel to pursue the fingerprint evidence. Petitioner did not raise any claim regarding his mental competence.

         Petitioner did include the following statement:

The following is my original brief from my attorney to the Superior Court for “Ineffective Assistance of Counsel” and my understanding is I am supposed to include this in my this review. (Appendix D1-6.)

(Exh. T, Pet. Rev. at 5.)

         On February 25, 2010, the Arizona Court of Appeals summarily denied review. (Exh. U, Order 2/25/10.)

         2. Attempts at Discovery/Investigation (2012)

         Almost two and a half years later, on or about August 21, 2012, Petitioner filed a motion for appointment of an investigator and for additional documents, for preparation of a petition for post conviction relief. (Exh. P, Doc. 12 at 21.) The trial court denied that request on August 29, 2012. (Id. at 22.)

         On September 10, 2012, Petitioner filed a Motion for Reconsideration (id. at 23) of that denial, which was denied on September 13, 2012 (id. at 25).

         Petitioner then filed a Petition for Special Action on October 9, 2012 challenging the denial. (Id. at 28.) On October 11, 2012, the Arizona Court of Appeals declined to accept jurisdiction, finding the Petition inadequately supported with specific ...