Thompson v. Ryan

• Decision Date: 31 July 2015
• Docket Number: No. CV-12-00766-TUC-DCB (BGM),CV-12-00766-TUC-DCB (BGM)
• Parties: Lyndall Dwaine Thompson, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Lyndall Dwaine Thompson, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CV-12-00766-TUC-DCB (BGM)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

July 31, 2015

REPORT AND RECOMMENDATION

Currently pending before the Court is Petitioner Lyndall Dwaine Thompson'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) ("Petition") (Doc. 1). Respondents have filed an Answer to Petition for Writ of Habeas Corpus ("Answer") (Doc. 11). Petitioner filed his Traverse (Doc. 13). 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 Superior Court, Pima County stated the facts² as follows:

The charges in the Petitioner's case stem from the following incident. On June 29, 2007, the Petitioner and his brother Clark got into an argument which erupted into a fist fight. The Petitioner was carrying two handguns a .45 and a 9mm when the fight began. Before the fight ensued, the Petitioner removed the handguns from his person and tossed them aside or dropped them so that they could not be used during the fight. Clark pinned the Petitioner to the ground during the fight and was getting the better of the Petitioner when the Petitioner managed to escape from beneath Clark and run inside his trailer home. The Petitioner claimed that during the fight Clark repeatedly threatened to kill him and that after running inside, he feared that Clark now had access to the handguns which were still outside. Based on these fears the Petitioner retrieved his SKS rifle and he went back outside carrying the rifle. When the Petitioner emerged from the trailer with the SKS rifle he saw Clark nearby, walking in the other direction. The Petitioner then chambered a round of ammunition in the rifle and as he did so, he claimed that Clark turned abruptly to confront him once again. The Petitioner claimed that he could not see Clark's hands because his view was blocked by a nearby parked vehicle. As Clark turned, he began approaching the Petitioner at a rapid pace. The Petitioner claims that at that point he shot Clark several times, emptying the magazine of the SKS. The Petitioner claimed he then threw down the rifle and ran back inside his trailer to retrieve his cellular phone before he fled on foot.

The Petitioner fled to a nearby intersection where he flagged down a passing driver. The Petitioner called 911 and asked the driver to tell the 911 operator that he had just shot his brother. Police arrived and took the Petitioner into custody. Deputies Almarez and Sutton and Sergeant James arrived at the scene of the shooting and conducted a search for any victims. The deputies cleared the Petitioner's trailer and though they found no victims there, they did find a malfunctioned 9mm handgun with a live round of ammunition "stovepiped" in the ejection part of the weapon. The deputies then proceeded to clear the remainder of the property whereupon the discovered the Petitioner's brother lying shot to death on a path betweenthe two trailer homes. There were several spent shell casings and a spent shotgun shell lying nearby. Deputy Sutton's report states that an SKS rifle and a .45 caliber handgun were found next to each other near the north side of the Petitioner's trailer home. Later, when Deputy Sutton was interviewed by Defense Counsel he claimed that he did not actually discover the weapons and that he could not remember if they were found on the ground, but that he believed they were found by a uniformed officer atop the engine compartment of a vehicle parked on the property. None of the reports from officers at the scene indicate whether the weapons were actually discovered atop the vehicle or whether they were placed there after being discovered on the ground. At trial, Detective Copeland testified that the weapons were discovered on the engine compartment of the vehicle by uniformed officers who initially responded to the scene. Detective Pruess also testified that the weapons were found on the vehicle.

Meanwhile, the Petitioner was read his Miranda[³] rights and transported to the Green Valley substation for questioning. The Petitioner agreed to waive his right to remain silent based on the condition that the detectives answer any questions that he might have. The Petitioner made it clear that he would terminate the interview if the detectives failed to answer any of his questions. The detectives agreed to this arrangement. Specifically, the following exchange took place:

DETECTIVE COPELAND: (Reading Miranda rights) Do you understand these rights?

PETITIONER: I understand those rights and I'll act as my own attorney. When I ask you a question, I'll need your answer or we'll stop the interview. Fair is fair.

DETECTIVE COPELAND: Okay. So, so you're.

PETITIONER: You can ask me anything you want, I'm my own lawyer. I'll represent myself. I'll ask you anything I want, if you stop answering questions for me, then I'll stop answering questions for you.

DETECTIVE COPELAND: Okay.

PETITIONER: Fair is fair.

DETECTIVE COPELAND: Fair is fair. [Footnote omitted]

During the interrogation, the Petitioner asked the detectives about his brother and the detectives led the Petitioner to believe that his brother was still alive and that one [of] the handguns he had discarded before the flight had been fired. The Petitioner made several incriminating statements which were used against him at trial. After the Petitioner was informed that his brother was dead, he terminated the interview and refused to answer any more questions.

Answer (Doc. 11), In Chambers Ruling, Re: Petition for Post-Conviction Relief 8/3/2010 (Exh. "E") at 1-3.

On July 10, 2007, a grand jury indicted the Petitioner on one count of first degree murder for the shooting death of his brother Clark Duval. Id., Exh. "E" at 1; see also Answer (Doc. 11), Ct. App. Mem. Decision 9/24/2009 (Exh. "C") at ¶ 1. On April 11, 2008, a jury found Petitioner not-guilty of first degree murder, but found him guilty of the lesser-included offense of second degree murder, a class two felony. Answer (Doc. 11), Exh. "C" at ¶ 1, Exh. "E" at 1. On July 14, 2008, Petitioner was sentenced to the presumptive term of sixteen years imprisonment. Id., Exh. "C" at ¶ 1, Exh. "E" at 1.

A. Direct Appeal

On March 2, 2009, counsel for Petitioner filed an Anders⁴ brief with the Arizona Court of Appeals.⁵ Answer (Doc. 11), Appellant's Opening Br. 3/2/2009 (Exh. "G").Subsequently, Petitioner filed two pro se supplemental appellate briefs. Answer (Doc. 11), Appellant's Pro Se Suppl. Br. 7/17/2009 (Exh. "I") & Appellant's Pro Se Suppl. Br. 7/8/2009 (Exh. "M"). Petitioner initially alleged six (6) claims for relief, including that (1) "because of the 'irreconcilable conflict and friction' between him and his attorney of record, the trial court abused its discretion in refusing to replace trial counsel[;]" (2) "because he was prevented from participating in an effective and amicable manner with his trial counsel, he was deprived of the opportunity and right to put forth mitigating factors into the record of testimony and complete and full disclosure[;]" (3) because of the conflict between Petitioner and counsel "request after request for interview and investigation concerning family, friends, associates and witnesses went entirely unheeded or considered[,]" preventing Petitioner for establishing mitigating factors and "conditions of historical background and motives of conduct[;]" (4) prosecutorial misconduct by the State "because it engaged in presenting facts and various misstatements about Appellant during the trial and sentencing that were prejudicial[;]" (5) "all officers of the honorable court did not participate in or take action to insure or represent a profound attitude offairness[;]" and (6) based on the conflict between Petitioner and counsel "he was not given proper nor full and complete full disclosure of evidence[.]" Answer (Doc. 11), Exh. "M" at 2-3. The majority of Petitioner's first supplemental brief focused on the trial court's alleged failure to replace his attorney despite the "irreconcilable conflict" between them. See id., Exh. "M." Petitioner's second supplemental brief alleged that (1) "the trial court abused its discretion by not allowing attorney [sic] and Public Defender's Office [sic] to withdraw wholly and completely and the court's failure to acknowledge a gross conflict of interest and denial, summarily, of the Appellant's due process[;]" (2) Petitioner was "denied his right to pre-trial and hearing that would put forth mitigating factors and circumstances reflecting his nature and associations surrounding all trial issues and alleged events . . . [including] knowledge of a right to preliminary hearings, to include mitigation hearings and hearing of discovery[;]" and (3) the "denial of due process did not allow [Petitioner] to present mitigating testimony for the record nor for the jury's review." Id., Exh. "I" at 3-4. The majority of Petitioner's second supplemental brief focused on the alleged denial of a preliminary hearing. See id., Exh. "I."

On September 24, 2009, the Arizona Court of Appeals affirmed Petitioner's convictions. See Answer (Doc. 11), Ariz. Ct. App. Mem. Decision 9/24/2009 (Exh. "C"). As an initial matter the appellate court "note[d] that most of the arguments Thompson has attempted to assert in his first supplemental brief appear to have been copied from the pleadings of other defendants." Id., Exh. "C" at 3. The court went on to state that "[a]s such, they are generally unclear and unsupported by the record on appeal." Id. "To theextent Thompson intended to challenge Skitzki's conduct at trial, his arguments constitute claims of ineffective assistance of c...