Erickson v. Ryan

• Decision Date: 09 August 2016
• Docket Number: No. CV-13-01102-TUC-RM (BGM),CV-13-01102-TUC-RM (BGM)
• Parties: Jon Edward Erickson, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Jon Edward Erickson, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-13-01102-TUC-RM (BGM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 9, 2016

REPORT AND RECOMMENDATION

Currently pending before the Court is Petitioner Jon Edward Erickson's pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1). Respondents have filed a Limited Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 11) and Petitioner replied (Doc. 14). The Petition is ripe for adjudication.

Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure,¹ this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1).

I. FACTUAL AND PROCEDURAL BACKGROUND

The Arizona Court of Appeal stated the facts² as follows:

Erickson met S., the victim in this case, in 2000 and she moved into his home within a month. Erickson testified at trial that, after moving in, S. had been involved in drug use and "partying." He testified that as a result he had asked S. to leave, only to allow her back days later, and that this cycle had gone on repeatedly. In January 2001, after Erickson had spent a week with his wife, from whom he was separated, S. wrote him a letter demanding that he choose between her and his wife. Erickson testified he had refused to make a choice but had told S. she would have to move out.

On February 2, 2001, Erickson's neighbors called 9-1-1 after finding him outside with blood on his clothing and hands. When emergency personnel arrived, Erickson was "combative" but did not have any injuries. Sheriff deputies initially assumed Erickson had been the victim of a stabbing and went to Erickson's home to conduct a "welfare check." As they approached, they could see through the open front door, S. face-down on the floor and covered in blood. She was pronounced dead and an autopsy determined she had sustained at least thirty stab wounds, three of which were potentially fatal.

When interviewed by a detective the next day, Erickson initially stated the blood on his clothing had come from a deer he had killed and skinned. But after he was informed that S. was dead, he stated "it was self-defense." He explained that S. had tried to kill him by "practicing witchcraft on him" and "crushing his heart" and that he had to kill her. He stated he had stabbed her ten to fifteen times.

Answer (Doc. 11), Ariz. Ct. of Appeals, Memorandum Decision 1/21/2011 (Exh. "A") at 1.

On February 9, 2001, Petitioner was indicted on and charged with (1) first degree murder; (2) possession of marijuana; and (3) possession of drug paraphernalia. Answer(Doc. 11), Indictment 2/9/2011 (Exh. "B"). On February 11, 2002, a jury found Petitioner guilty on all three (3) counts. Answer (Doc. 11), Verdict Forms (Exh. "C"). On April 23, 2002, Petitioner was sentenced to an aggravated term of natural life without the possibility of parole for first degree murder³ and probation for the possession of marijuana and unlawful possession of drug paraphernalia counts. Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Sentence of Imprisonment 4/22/2002 (Exh. "D") at 2-3 & Sentence of Probation 4/23/2002 (Exh. "D") at 1. After Petitioner's conviction and sentence, he timely filed a notice of appeal. Answer (Doc. 11), Def.'s Motion to Remand (Exh. "E") at 2. A direct appeal was never had, as Defendant's Motion to Remand explained:

Since that date [of filing the notice of appeal], court reporter Rebecca Hume, who reported most of the trial has failed to produce a complete and accurate record, this court ultimately appointed court reporter Royce Conner to review Ms. Hume's notes and transcriptions and provide a report to the court concerning the ability to obtain a complete record.

On January 23, 2008, this court conducted a hearing at which time Mr. Conner produced his report on Ms. Hume's transcripts and testified concerning the inadequacy of the transcripts. Counsel undersigned received a copy of that report on February 5, 2008 from the Clerk of Superior Court. This Motion now follows.

Rule 31. 8, Arizona Rules of Criminal Procedure requires that a certified transcript of all hearings and trial dates be provided to the parties and the court of appeals for purposes of pursuing an appeal. The transcript is due forty-five (45) days after transcripts are ordered. Six years have now passed and it is clear from Mr. Conner's report and his testimony at the January 23, 2008 hearing that it is impossible to produce a complete and accurate transcript. As Mr. Conner testified, the transcript is only sixty to seventy percent complete. Substantial portions of the trial are missing,such as the first day of trial, complete examinations of three key State's witnesses, nearly all the cross-examinations on a number of other witnesses, portions of the Defendant's testimony, and portions of closing statements.

Answer (Doc. 11), Def.'s Motion to Remand at 2-3. At a status hearing, the trial court granted Defendant's Motion to Remand, finding that there was not an adequate record and vacating his convictions and sentences. Answer (Doc. 11) Ariz. Superior Ct., Cochise County, Minute Entry 1/27/2009 (Exh. "E") at 1.

Petitioner was again tried for first degree murder and found guilty by a jury. See Answer (Doc. 11), Verdict Form 10/9/2009 (Exh. "F"). On December 3, 2009, Petitioner was again sentenced to term of imprisonment "for the remainder of his natural life without the possibility of parole or other possibility of release under any circumstances." Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Sentence of Imprisonment 12/3/2009 (Exh. "G") at 2; see also Answer (Doc. 11), Hr'g Tr. 12/2/2009 (Exh. "H"). At the time of sentencing, the State moved to dismiss Counts II and III of the indictment for possession of marijuana and unlawful possession of drug paraphernalia, which were set for trial at a later date. Answer (Doc. 11), Exh. "H" at 49:16-50:17. The court granted the motion to dismiss the two remaining counts. Id.

A. Direct Appeal

On October 6, 2010, Petitioner filed his Opening Brief. Answer (Doc. 11), Appellant's Opening Br. 10/6/2010 (Exh. "I"); see also Petition (Doc. 1), Exh. "A-1." Petitioner's sole issue on appeal was whether there was sufficient evidence to sustain a conviction for first degree murder. Answer (Doc. 11), Exh. "I" at 15-17. Relying solelyon state law, Petitioner argued that "[t]he facts of this case simply do not fit the definition of premeditated murder." Id., Exh. "I" at 17. Accordingly, Petitioner sought "a reversal of his conviction and sentence." Id.

On January 21, 2011, the Arizona Court of Appeals affirmed Petitioner's conviction. Answer (Doc. 11), Ariz. Ct. App. Memorandum Decision 1/21/2011 (Exh. "A"); see also Petition (Doc. 1), Exh. "A-3." Upon review of state law and the evidence presented at trial, the court of appeals held that "the state presented sufficient evidence to support the jury's conclusion that Erickson had committed premeditated, first-degree murder and we will not set aside the conviction." Answer (Doc. 11), Exh. "A" at 6 (citing State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (Ct. App. 2000)). On January 21, 2011, Petitioner filed his Petition for Review. Petition (Doc. 1), Pet. for Review (Exh. "A-3"). On August 1, 2011, the Arizona Supreme Court denied review. See Answer (Doc. 11), Ariz. Supreme Ct. Minute Entry 8/1/2011 (Exh. "J"); see also Petition (Doc. 1), Exh. "A-3."

B. Initial Post-Conviction Relief Proceeding

On August 11, 2011, Petitioner filed his Notice of Post-Conviction Relief ("PCR"). Answer (Doc. 11), Not. of PCR 8/11/2011 (Exh. "K"); see also Petition (Doc. 1), Exh. "B-1." On June 1, 2012, counsel for Petitioner filed a Petition for Post Conviction Relief. See Answer (Doc. 11), Pet. for PCR 6/1/2012 (Exh. "L"); see also Petition (Doc. 1), Exh. "B-2." Petitioner asserted a single ground for relief, alleging ineffective assistance of trial counsel based on an alleged failure to "adequately present in mitigation at sentencing the overwhelming evidence that Defendant was mentallypsychotic at the time of the murder to the extent that he was significantly impaired in his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law." Answer (Doc. 11), Exh. "L" at 2. Petitioner further asserted that he "was not merely 'high' on drugs, but was psychotic and extremely impaired." Id., Exh. "L" at 19. Moreover, Petitioner argued that although "the Court heard some of the above-cited evidence over the eight days of trial regarding defendant's bizarre behavior, trial counsel failed to specifically recall for the Court any of the evidence at the pre-sentence hearing." Id., Exh. "L" at 21. As such, Petitioner asserted that "[h]ad defense counsel properly presented the matter at sentencing, Defendant's psychosis would have been a strong mitigating factor with [a] reasonable probability of altering [the] sentence." Id.

On July 23, 2012, the Rule 32 court determined that the issue regarding trial counsel's alleged failure was "not precluded . . . but [it] d[id] not present a colorable claim." Answer (Doc. 11), Ariz. Superior Ct., Cochise County, Decision and Order 7/23/2012 (Exh. "M") at 2; see also Petition (Doc. 1), Exhibits. Upon review of the evidence presented at trial, including Petitioner's own testimony, the Rule 32 court found that although "Mr. Erickson had every right to present one defense at trial and then, after that defense failed, to have presented in mitigation a completely inconsistent or even contradictory position[,] . . . merely because inconsistent defenses may be offered does not always mean they should be offered." Answer (Doc. 11), Exh. "M" at 4. The Rule 32 court further stated that "[n]ot only would the psychosis strategy have been inconsistent with defendant's...