United States District Court, D. Arizona
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 ...