United States District Court, D. Arizona
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge.
Petitioner
David Lee Lamb (Lamb or Petitioner), formerly confined in the
Arizona State Prison Complex, filed a pro se
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (Petition). (Doc. 1.) Before the Court are the
Petition, Respondent's Answer to Petition for Writ of
Habeas Corpus (Answer) and Petitioner's reply (Docs. 2,
12.) This matter was referred to Magistrate Judge Ferraro for
Report and Recommendation. (Doc. 8.) As more fully set forth
below, the Magistrate Judge recommends that
the district court, after its independent review,
dismiss the Petition.
BACKGROUND
On
April 3, 2008, Petitioner was charged in the Arizona Superior
Court, Maricopa County in CR 2008-006214 with five
drug-related offenses stemming from a wiretap investigation
known as Operation Sidewinder. (Doc. 13-5 at 136.)
On
April 1, 2009, the grand jury returned an indictment charging
Petitioner in CR 2009-006230 with one count of possession or
use of a narcotic drug (cocaine), one count of possession or
use of marijuana and one count of threatening or intimidating
by a street gang member. (Doc. 13-1 at 11-12.)
On June
23, 2009, Petitioner was convicted by a jury in CR
2009-006230 of possession or use of a narcotic drug and
possession or use of marijuana. The jury acquitted Petitioner
of the threatening or intimidating charge. (Doc. 13-1 at
232-36.) After his conviction in CR 2009-06230, the state
dismissed the charges in CR 2008-006214. (Doc. 13-5 at 154.)
On July 24, 2009, Petitioner was sentenced to a twelve-year
term of imprisonment. (Doc. 13-1 at 240.)
Petitioner
timely appealed his conviction to the Arizona Court of
Appeals arguing that the trial court erred in denying his
motion to suppress without holding an evidentiary hearing,
the trial court erred in determining that he was not eligible
for mandatory probation under Proposition 200, and that he
was “due additional presentence incarceration
credit.” (Doc. 13-3 at 147.) The appeal was fully
briefed. Id. at 178-242.
On June
9, 2011, the court of appeals vacated Petitioner's
convictions and remanded the case to the trial court
“with directions to conduct an evidentiary hearing on
[Petitioner's] motion to suppress, and to conduct such
other proceedings as are necessary for the resolution of this
case.” (Doc. 14-1 at 1-9.) The court of appeals
affirmed Petitioner's ineligibility for mandatory
probation under Proposition 200. Id.
The
state filed a Motion for Reconsideration urging the court of
appeals to issue a new remedy; namely, “to either
affirm the convictions subject to the outcome of the
evidentiary hearing[] or stay the appeal and remand for an
evidentiary hearing.” (Doc. 13-4 at 23-33.) The
state's motion was fully briefed. Id. at 39-58.
On
August 16, 2011, the court of appeals issued a new decision
conditionally affirming Petitioner's convictions and
remanding the matter to the trial court with the instruction
that the trial court conduct an evidentiary hearing on
Petitioner's motion to suppress evidence due to an
illegal stop, detention and arrest. Id. at 60-72.
On
October 17, 2011, Petitioner, through counsel, filed a
Petition for Review in the Arizona Supreme Court asking that
court “to review that portion of the decision of the
[c]ourt of [a]ppeals … affirming [Petitioner's]
ineligibility for mandatory probation under …
Proposition 200.” Id. at 74-96. The petition
for review was denied. Id. at 101.
As
directed by the court of appeals, on May 4th and
10th, 2012, the trial court held an evidentiary
hearing on Petitioner's motion to suppress. (Doc. 13-4 at
116-242.) On May 9, 2012, Petitioner filed a supplement to
his motion to suppress. (Doc. 13-5 at 10-22.) On May 15,
2012, the trial court denied Petitioner's motion to
suppress. Id. at 24-28.
Petitioner
appealed the trial court's denial of his motion to
suppress to the court of appeals. (Doc. 13-5 at 30-63.) The
appeal was fully briefed. (Doc. 13-5 at 66-159; Doc. 13-6 at
2-40.) On July 9, 2013, the Arizona Court of Appeals affirmed
the trial court's denial of the motion to suppress. (Doc.
13-6 at 42-54.)
On
August 8, 2013, Petitioner sought review in the Arizona
Supreme Court. Id. at 56-85. The petition for review
was denied. Id. at 88.
On
March 6, 2014, Petitioner filed a notice of post-conviction
relief (PCR) in the trial court. Id. at 108-112.
Petitioner timely filed a pro se PCR petition and
the petition was fully briefed. (Doc. 13-6 at 118-277; Doc.
13-7 at 2-37.) On July 7, 2015, the trial court denied
Petitioner's PCR petition. (Doc. 13-7 at 39-40.)
Petitioner
timely sought review of the trial court's denial of his
PCR petition, the state responded, and Petitioner replied.
(Doc. 13-7 at 42-215; Doc. 13-8 at 2-11.) On July 13, 2017,
the Arizona Court of Appeals granted review but denied
relief. (Doc. 13-8 at 13-16.) Petitioner sought additional
time to seek review in the Arizona Supreme Court.
Id. However, on November 14, 2017, the Arizona
Supreme Court dismissed the proceedings because Petitioner
failed to file any petition for review. Id.
On
August 6, 2018, Petitioner deposited the instant Petition in
the prison mailing system claiming:
Ground One: The trial court violated his rights
under the Fourth and Fourteenth Amendments when it denied his
suppression motion.
Ground Two: Petitioner's right to present a
defense, right to due process and right to a fair trial were
violated when the Arizona Court of Appeals remanded his case
for a suppression hearing after he had already been convicted
at trial.
Ground Three: Petitioner's right to present a
defense, right to due process and right to a fair trial were
violated when the state unlawfully introduced evidence that
was not procedurally disclosed.
(Doc. 1 at 6-7, 9-11, 15.) Respondents filed their Answer
urging that the claim alleged in Ground One is non-cognizable
on habeas review and that the claims alleged in Grounds Two
and Three are procedurally defaulted without excuse and
barred from federal habeas review. (Doc. 13 ...