Brooks v. Ryan

Michael Eugene Brooks, Petitioner v. Charles L. Ryan, et al., Respondents.

CV-19-0963-PHX-SPL (JFM)

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

October 9, 2020

Report & Recommendation on Petition for Writ of Habeas Corpus and Motion to Stay

I. MATTER UNDER CONSIDERATION

Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition 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 August 2009, a police internet investigation for child pornography led officers to an internet subscriber who turned out to be Petitioner. A search warrant was executed at Petitioner's home. Petitioner admitted to having hundreds of child pornography images on his computer. A forensic examination of Petitioner's computer revealed (under his user account) searches for child pornography, 255 child pornography videos on an external hard drive which listed Petitioner's account as the owner, and links to at least some such videos in the player history on Petitioner's computer. A forensic examiner concluded the people and events in the ten videos referenced in the indictment were real, and a pediatrician concluded the children depicted in them were prepubescent. (Exh. P, Mem. Dec. 6/9/15 at ¶¶ 1-7 (summarizing facts).) (Exhibits to the Answer, Doc. 15, are referenced herein as "Exh. ___.")

B. TRIAL PROCEEDINGS

Over two years later, on October 19, 2011, Petitioner was charged with 10 counts of sexual exploitation of a minor, each count referencing one of the child pornography videos. (Exh. A, Indictment.) He proceeded to trial on January 23, 2014. (Exh. B, R.T. 1/23/14.)

For trial, the case agent prepared a CD containing the ten charged videos. During trial and for each count, the agent read from his investigative report the video's file name, its duration, and summarized the video's contents. The State correspondingly played for the jurors a representative clip of each video. The State later offered the CD into evidence, Brooks did not object, and the trial court admitted it.

(Exh. P, Mem Dec. 6/9/15 at ¶ 8.) Petitioner was found guilty on all ten charges. (Exh. K, R.T. 2/11/14; Exh. P, Mem. Dec. 6/9/15 at ¶ 9.)

Petitioner filed a Motion for New Trial on the basis that Petitioner's computer was not passworded or firewalled and accessible in the home, his unknowing downloading of child pornography while viewing adult pornography, Petitioner's absence from the home at the time of the downloads, discrepancies in the various identifications of the external hard drive, prosecutorial misconduct, and juror misconduct. (Petition, Doc. 1, at Exh. 8.) The motion was denied.

On June 9, 2015, Petitioner was convicted and sentenced to consecutive, mitigated 12-year terms on each count, an effective sentence of 120 years. (Exh. P, Mem. Dec. 6/9/15 at ¶ 9.) The trial court found mitigation based on Petitioner's otherwise exemplary life, family and community support, and age. It found those offset by the uncharged offenses and the disturbing nature of the charged videos. The sentence imposed was less than the presumptive terms of 17 years argued for by the probation office and the prosecution (Exh. L, R.T. 5/9/14 at 5), and greater than the minimum terms of 10 years.See Ariz. Rev. Stat. § 13-705(D).

C. DIRECT APPEAL PROCEEDINGS

Petitioner filed a direct appeal, arguing through counsel that: (1) "structural error" occurred because the CD provided to the jury contained 90 minutes of child pornography never seen by the judge or played in court; (2) Plaintiff's life sentence was "cruel and unusual punishment." (Exh. N, Opening Brief.) The Arizona Court of Appeals found the CD properly admitted, and thus properly provided to the jury, and that the Arizona's Supreme Court ruling on the constitutionality of the sentencing was determinative. (Exh. P, Mem. Dec. 6/9/15.)

Petitioner sough review by the Arizona Supreme Court. (Petition, Doc. 1, at Exh. 4, Pet. Rev.) That court "[b]y order, dated January 6, 2016, denied the petition for review." (Exh. Q, Mandate 2/9/16.)

D. POST-CONVICTION RELIEF PROCEEDINGS

On February 3, 2016 (after denial of the direct appeal petition for review), Petitioner filed through retained counsel a Notice of Request for Post-Conviction Relief (Exh. R). Petitioner then filed through counsel a Petition for Post-Conviction Relief (Exh. S) which argued ineffective assistance of counsel based on: (1) insufficient investigation on work history and an alibi witness; (2) failure to communicate or adequately advise on a plea offer; (3) failure to request a jury instruction, limiting the use of other act evidence; (4) failure to adequately advise on Petitioner's right to testify and to prepare him to testify; (5) failure to call a defense witness, a co-worker. He also filed an Amended Petition for Post-Conviction Relief (Petition, Doc. 1, at Exh. 5) arguing he was "factually innocent," and arguing his claims of ineffective assistance of trial counsel.

The PCR court considered both petitions and summarily dismissed both (i.e. without an evidentiary hearing) on the basis that the claims were not "colorable." (Exh. X, M.E. 12/16/16.)

Petitioner filed through retained counsel a Petition for Review (Exh. Y) challenging the summary rejection of the claim of ineffectiveness based on communication of a plea offer and advice on the range of sentence. The Arizona Court of Appeals granted review, but denied relief. (Exh. Z, Mem. Dec. 1/4/18.)

Petitioner filed a Petition for Review by the Arizona Supreme Court, raising the same issues presented to the Arizona Court of Appeals. (Petition, Doc. 1, at Exh. 7.) That petition was summarily denied on August 24, 2018. (Exh. AA, Order 8/24/18). The mandate of the Arizona Court of Appeals issued December 28, 2018. (Exh. BB, Mandate 12/28/18.)

E. TRIAL DISCOVERY PROCEEDINGS

On September 5, 2018, after the issuance of the mandate in the PCR proceeding, Petitioner filed a "Motion to Allow Defense Expert Bryan Neumeister to Forensically Examine the State's Evidence." The Court denied the motion on September 25, 2018, on the basis that the appeal and PCR proceedings were terminated, and no other post-conviction proceeding was pending. (Amend. Reply, Doc. 23, Exh. A, M.E. 9/25/18.)

In the Petition, Petitioner argues that the appellate court decision was rendered on September 15, 2018. (Petition, Doc. 1 at 13 (Ground 8 - Hard Drive).) He argues in his Amended Reply that his Petition for Review was pending when it was denied, citing Exhibit Y, his PCR Petition for Review. (Amend. Reply, Doc. 23 at 6.) The record before this Court, as reflected in the foregoing findings, belies that contention. Decisions had already issued from the Arizona Court of Appeals (Exh. Z, Mem. Dec. 1/4/18) and the Arizona Supreme Court (Exh. AA, Order 8/24/18). The only thing incomplete at that juncture was the appellate court's mandate (Exh. BB, Mandate 12/28/18).

F. PRESENT FEDERAL HABEAS PROCEEDINGS

Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, commenced the current case less than six months later, by filing hispro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on February 13, 2019 (Doc. 1 ). Petitioner's Petition asserts the following 11 grounds for relief:

(1) Petitioner's sentence violates the Eighth Amendment because it is disproportionate to the crime;

(2) Petitioner's Sixth Amendment rights were violated when the trial court erroneously admitted two Compact Discs (CDs) into evidence and when the jury listened to a CD from another case during its deliberations;

(3) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to conduct a pretrial investigation and for failing to communicate a plea offer to Petitioner;

(4) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to investigate and obtain timesheets from Petitioner's employer;

(5) Petitioner is actually innocent;

(6) Petitioner's trial counsel was ineffective, in violation of the Sixth Amendment, for failing to call a key witness;

(7) There are no records of a Donald hearing or settlement conference, and multiple affidavits were disregarded;

(8) Plaintiff's counsel was denied access to a hard drive;

(9) Detective Thorley offered inconsistent testimony regarding the contents of a hard drive;

(10) The prosecutor brought up race "to an all non-black jury"; and

(11) During his initial contact with Detective Thorley, Petitioner stated that he could possibly have "1 or 2" child pornography files on his computer, it was Detective Thorley who said Petitioner had "2 - 5 hundred" such files.

(Order 6/28/19, Doc. 1 at 1-2.) Respondents parse Ground 3 into the following five separate claims of ineffectiveness:

a. failing to do adequate pretrial investigation

b. failing to call a potential alibi witness named "Kristi"

c. failing to admit documentation to establish Brooks's work schedule.

d. failing to communicate a plea offer to Brooks.

e. failing to prepare Brooks for testifying.

(Answer, Doc. 15 at 6-7.) Petitioner does not object to this construction, and the undersigned adopts it referencing the subparts as Grounds 3A, 3B, etc.

In his Amended Reply, Petitioner's counsel parses Ground 7 (settlement conference) into two separate claims of ineffectiveness:

Ground 7a: There were no records of a settlement conference.

Ground 7b: The PCR court should have accepted as true the affidavits of Brooks and his wife.

(Amend. Reply, Doc. 23 at 3.) The undersigned adopts counsel's construction,referencing the subparts as Grounds 7A and 7B.

Response - On September 23, 2019, Respondents filed their...