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Lamb v. Shinn

United States District Court, D. Arizona

November 25, 2019

David Lee Lamb, Petitioner,
v.
David Shinn, Respondent.

          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 ...


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