ORDER RE PETITION FOR WRIT OF HABEAS CORPUS

SHARON L. GLEASON, District Judge.

Before the Court is Petitioner Garry R. Archey, Jr.'s Amended Petition for Writ of Habeas Corpus, filed at Docket 19. Mr. Archey filed a merits brief in support of the amended petition at Docket 39. Respondent John Conant filed a merits brief in opposition at Docket 43.1 The motion was referred to United States Magistrate Judge Scott A. Oravec pursuant to 28 U.S.C. § 636(b)(1)(B).

On March 12, 2018, the magistrate judge issued a Report and Recommendation ("R & R") at Docket 45. The magistrate judge recommended that the petition be denied and that this action be dismissed with prejudice. Mr. Archey filed objections to the R & R at Docket 46. Respondent John Conant filed a response on March 29, 2018 at Docket 49.

The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That statute provides that a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."2 A court is to "make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made."3 But as to those topics on which no objections are filed, "[n]either the Constitution nor [28 U.S.C. § 636(b)(1)] requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct."4

A. BACKGROUND

On September 8, 2006, the State of Alaska indicted Garry R. Archey, Jr., on five counts related to the manufacture of methamphetamine in Soldotna, Alaska.5 Mr. Archey pleaded not guilty and proceeded to trial. Lisa Samson, Mr. Archey's former girlfriend, was also charged with drug distribution offenses, and pleaded guilty to two offenses.6 As a condition of her plea agreement, Ms. Samson testified against Mr. Archey at his trial.7 There, Ms. Samson denied manufacturing methamphetamine and also denied recognizing that certain chemicals and material for manufacturing methamphetamine were present in the trailer where she lived and in which Mr. Archey stayed.8 Although potential witness Gordon Pentecost later stated that he could have provided testimony that undermined Ms. Samson's statements, Mr. Archey's trial counsel did not call Mr. Pentecost to testify.9 Ms. Samson also testified that she had received a call from a friend of Mr. Archey who instructed her to move a black duffle bag that contained equipment used for the production of methamphetamine.10 While seeking to find tapes of Mr. Archey's jail phone calls that might corroborate this testimony, the prosecution uncovered tapes of recorded conversations between Mr. Archey and his son, in which Mr. Archey indicates knowledge of the black duffle bag.11

The jury convicted Mr. Archey on all counts.12 He was sentenced to 20 years on each of the first four counts and five years on the fifth count, all to run concurrently.

Mr. Archey appealed his conviction and sentence. Among other points, he argued that (1) insufficient evidence supported the conviction on Count V, maintaining a structure for the manufacture of methamphetamine, and (2) the trial court erred in admitting Mr. Archey's jail phone calls with his son.13 The Alaska Court of Appeals reversed the conviction for Count V, but denied the rest of Mr. Archey's claims.14 Mr. Archey petitioned for review to the Alaska Supreme Court. That petition was denied on August 31, 2010.15

Mr. Archey also initiated a post-conviction relief proceeding in the Alaska state court.16 He filed an amended post-conviction relief application on August 30, 2011.17 In his second amended post-conviction relief application, filed on March 19, 2012, Mr. Archey included the following reasons why his trial and appellate attorneys had been ineffective: (1) trial counsel failed to challenge the admission of the jail phone calls Mr. Archey made to his son; (2) trial counsel failed to adequately investigate potential exculpatory witness Gordon Pentecost;18 and (3) appellate counsel failed to challenge the admission of the jail phone calls in Mr. Archey's petition for review to the Alaska Supreme Court.19 The superior court dismissed the post-conviction relief application for failure to state a prima facie case.20

Mr. Archey then appealed the superior court's dismissal of his post-conviction relief application to the Alaska Court of Appeals. Mr. Archey renewed his claims that trial counsel was ineffective for failing to establish proper grounds for excluding the phone conversations Mr. Archey had with his son while incarcerated and that trial counsel was ineffective for failing to call Mr. Pentecost to testify at trial.21 The Court of Appeals affirmed, holding that even if trial counsel had been ineffective in failing to investigate or present the testimony of Mr. Pentecost, Mr. Archey had not shown that he suffered prejudice as a result.22 Mr. Archey's petition for review with the Alaska Supreme Court was denied.23

On November 4, 2015, Mr. Archey initiated this action by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.24 On September 16, 2016, Mr. Archey filed an amended habeas petition, asserting that trial counsel's failure to investigate Gordon Pentecost's potentially exculpatory testimony violated Mr. Archey's Sixth Amendment right to effective counsel.25 Mr. Archey also stated that "the Court of Appeals' adjudication of [his] claim rested on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding."26 In Mr. Archey's merits brief, filed on August 24, 2017, he alleged ineffective assistance of counsel for the failure to investigate Gordon Pentecost and also asserted that the Alaska court had made an unreasonable determination of the facts because it had mischaracterized evidence at trial regarding Mr. Archey's recorded jail phone calls.27

On March 12, 2018, the magistrate judge issued the R & R, recommending the denial of Mr. Archey's petition. The magistrate judge found that the Court of Appeals' factual mischaracterization was not relevant to a material factual issue central to Mr. Archey's claim and therefore did not provide a basis for relief.28 With regard to the ineffective assistance claim, the magistrate judge found that Mr. Archey had not shown that the state court unreasonably applied clearly established federal law when it held that Mr. Archey was not prejudiced by trial counsel's approach to Mr. Pentecost.29 Mr. Archey then filed objections to the R & R on March 19, 2018.30

B. DISCUSSION

Mr. Archey raised five objections to the R & R, each of which the Court addresses de novo below.

1. "Mr. Archey raised both grounds for relief in his amended petition."31

Mr. Archey first contends that the magistrate judge "fault[ed] Mr. Archey for not having identified Claim 2 in his amended petition."32 The magistrate judge stated that Mr. Archey "raise[d] for the first time in his merits brief the contention that the Alaska Court of Appeals made an unreasonable determination of facts in denying his post-conviction relief appeal."33 Mr. Archey points to a portion of his amended petition that alleged an unspecified unreasonable determination of the facts in light of the evidence presented at the state court proceedings.34 As such, the magistrate judge's statement that the unreasonable determination of facts claim was not raised until the amended petition was not correct. Nevertheless, the magistrate judge fully considered this claim, "treat[ing] Archey's merits brief at Docket 39 as amending his habeas petition to include the second claim."35 Therefore, this objection is moot, because the magistrate judge analyzed the unreasonable factual determination claim. However, the Court will not adopt the magistrate's statement that Mr. Archey's Claim 2 argument was not raised until his merits brief.

2. "To obtain relief under 28 U.S.C. § 2254(d)(2), Mr. Archey does not have to prove that all reasonable jurists would conclude the state-court decision was unreasonable."36

Mr. Archey appears to argue that the magistrate judge applied an incorrect legal standard to his ineffective assistance claim.37 The magistrate judge described "[t]he pivotal question [as] whether the state court's application of the Strickland standard was unreasonable."38 The magistrate judge also stated that

Mr. Archey appears to contend that the magistrate judge erred by applying the standard articulated by the Supreme Court in Harrington v. Richter, in which the Court held that "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as `fairminded jurists could disagree' on the correctness of the state court's decision."40 Citing to a Supreme Court decision from 2000, Williams v. Taylor, Mr. Archey argues that the Supreme Court has "offered two seemingly contradictory definitions of the standard for relief."41 Mr. Archey argues that pursuant to Williams v. Taylor, "a habeas Petitioner does not bear the burden of proving unanimity among fair-minded judges about the correctness of the state-court decision in order to show that the state court's decision is `unreasonable.'"42 Mr. Archey further asserts that "[t]he standard announced in Harrington (i.e., relief is foreclosed so long as fair-minded jurists — plural — could disagree about the merits of the state court decision), should not be interpreted as requiring a habeas petitioner to bear the impossible burden of proving that all reasonable jurists would be in agreement about the correctness of the state court's adjudication of the claim."43

Mr. Archey does not point to a particular statement of law by the magistrate judge that he maintains is incorrect, and thus the objection is overruled on that basis. Moreover, although there may be some tension between the Supreme Court's statements in Taylor and Richter, the Supreme Court has more recently instructed courts to ask "whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court."44 The magistrate judge cited to and applied this controlling Supreme Court precedent.45

3. "The failure to call Pentecost as a witness was objectively unreasonable and constituted a violation of Strickland's deficiency prong."46

Mr. Archey has asserted that his trial counsel was ineffective for failing to call potential witness Gordon Pentecost at his trial.47 Mr. Archey contends that Mr. Pentecost could have testified as to Ms. Samson's involvement in the process of producing methamphetamine, thus undermining her testimony implicating Mr. Archey at trial.48 The Alaska Court of Appeals did not adjudicate whether trial counsel's performance was deficient in this regard. Rather, it held that "even assuming [Mr.] Archey's trial attorney was incompetent for failing to call Pentecost as a witness, [Mr.] Archey has not shown that he suffered prejudice as a result."49 However, on habeas review, the magistrate judge addressed the adequacy of trial counsel's performance on this issue, and found that "[d]efense counsel in [Mr.] Archey's case exercised reasonable professional judgment."50

Mr. Archey contends that the Court should reject the magistrate judge's recommendation and should instead find that Mr. Archey's trial counsel was ineffective not only for failing to call Mr. Pentecost at trial, but also for failing to adequately investigate the possibility of calling Mr. Pentecost as a witness.51 Mr. Archey argues that "[i]n the context of impeachment witnesses, the Ninth Circuit has held that, although counsel's approach to impeachment is often viewed as a tactical decision, and such decisions do not constitute deficient conduct simply because there are better options, a poor tactical decision may constitute deficient conduct if `the defendant can overcome the presumption that, under the circumstances, the challenged action or lack of action might be considered sound trial strategy.'"52 Mr. Archey maintains that trial counsel was ineffective for failing to "make any attempt at conducting a thorough pretrial investigation that would have revealed valuable impeachment evidence that would have undermined the prosecution's assertion that Archey—and Archey alone—had knowledge and access to the chemicals which formed the gravamen of the state's case."53

However, as the magistrate judge found, the record indicates that Mr. Archey's trial counsel did in fact investigate the possibility of eliciting Mr. Pentecost's testimony at trial. In trial counsel's April 19, 2012 affidavit, he recalls that he inquired about Mr. Pentecost with a local defense attorney who was familiar with Mr. Pentecost.54 Trial counsel also indicated that he considered Mr. Pentecost as a potential witness, before deciding not to call him at trial.55 Furthermore, Mr. Pentecost himself stated in his affidavit that he had told trial counsel that he had personal knowledge of relevant facts and could testify at trial if necessary.56 Therefore, this Court adopts the finding of the magistrate judge that counsel did investigate Mr. Pentecost by communicating directly with him.57 At trial, trial counsel initially indicated that he planned to call Mr. Pentecost to testify.58 That trial counsel ultimately decided not to call Mr. Pentecost to testify as an impeachment witness does not demonstrate a failure to perform an adequate pretrial investigation.59 Therefore, Mr. Archey's assertions do not rebut the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."60

Reynoso v. Giurbino, the case cited by Mr. Archey, does not support a different conclusion. In Reynoso, the defendant's trial counsel failed to interview the only two purported eyewitnesses in a murder trial.61 Consequently, trial counsel did not learn that both eyewitnesses had contacted law enforcement in response to an offer of a cash reward in return for information about the crime. Given the paucity of other evidence against the defendant, this impeachment evidence may have been especially critical to the defense. As the Ninth Circuit explained,

In Reynoso, trial counsel later acknowledged that "cross-examination about the reward would have been entirely consistent with [counsel's] decision to cross-examine another similarly situated witness" and "conceded that such questioning likely would have weakened [one of the key witness's] credibility substantially."63 Here, in contrast, the potential impact of Mr. Pentecost's testimony is far less clear—he was not a key prosecution witness, nor has Mr. Archey demonstrated that trial counsel failed to interview Mr. Pentecost. To the contrary, the record demonstrates that trial counsel communicated with but then did not call this potential witness to testify. In short, Mr. Archey has not demonstrated that trial counsel failed to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."64

4. "[Mr.] Archey has shown that he was prejudiced by his trial counsel's actions, and fair-minded jurists would agree that the state court's resolution of this issue was unreasonable."65

28 U.S.C. § 2254 provides that when a state court has adjudicated a criminal petitioner's claim on the merits, a district court may grant a habeas petition when the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Here, the Alaska Court of Appeals determined that Mr. Archey "failed to show that he was prejudiced by his trial attorney's decision not to call Pentecost as a witness," stating:

Similarly, the magistrate judge found "that [Mr.] Archey has failed to show a reasonable possibility that the outcome of his trial would have been different had his trial counsel presented the witness testimony of Pentecost, considering all the other evidence presented at trial."67

To prove prejudice under Strickland, a defendant must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."68 Here, as before the Alaska Court of Appeals and the magistrate judge, Mr. Archey asserts that trial counsel's failure to call Mr. Pentecost as a witness was prejudicial because it allowed Lisa Samson's testimony that she had not participated in the production of methamphetamine to go unchallenged. Mr. Archey asserts that

Mr. Archey maintains that had Mr. Pentecost testified, he would have undermined Ms. Samson's testimony to such an extent that a jury would not have concluded that he was guilty of at least one of the charges against him. However, the substance of Mr. Pentecost's testimony is entirely speculative, and there has been no adjudication of what Mr. Pentecost likely would have stated at trial. In short, Mr. Archey has not shown that reasonable jurists would find the state court's decision on the issue of prejudice was unreasonable.

As the Alaska Court of Appeals recognized, even if Mr. Pentecost's testimony had undermined Ms. Samson's statements that she was unfamiliar with the process of manufacturing methamphetamine, it is not clear how that testimony would have benefitted Mr. Archey.70 Prior to Mr. Archey's trial, Ms. Samson had pleaded guilty to possession of methamphetamine and maintaining a dwelling for the keeping or distribution of controlled substances, and the jury was informed of that fact.71

More importantly, testimony related to Ms. Samson's familiarity with methamphetamine production would not have significantly undermined the other evidence against Mr. Archey, even if it did undermine Ms. Samson's credibility as a witness and further implicate her in the production of methamphetamine. The evidence against Mr. Archey included testimony by Joanna Samson-Sills that Mr. Archey was involved in producing methamphetamine, and that her sister, Ms. Samson, had been contacted by Mr. Archey through a third party, instructing her to move the black duffle bag that contained equipment for producing methamphetamine.72 Pat Price, a neighbor, informed police that Mr. Archey had asked him to lock the trailer with a padlock once police arrived.73 Furthermore, Mr. Archey's phone calls from jail indicated an awareness of the black duffle bag and its contents, giving rise to a potential inference that he possessed the bag and used it to produce methamphetamine.74 This evidence provides ample grounds for the jury's verdict, even if Mr. Pentecost had testified. Therefore, Mr. Archey has not shown that the Alaska Court of Appeals unreasonably applied the prejudice prong of the Strickland standard.75

5. "The erroneous characterization of the phone calls was an unreasonable determination of the facts which was material to the Court of Appeals' adjudication of Mr. Archey's Sixth Amendment claim."76

In Mr. Archey's direct appeal, the Alaska Court of Appeals mischaracterized the content of the jail phone calls between Mr. Archey and his son on August 31, 2006, stating:

In fact, the tapes admitted into evidence and played to the jury do not contain a reference by Mr. Archey about Ms. Samson-Sills.78 Therefore, the Court of Appeals' statement that "Archey responded that someone should tell [Ms. Samson-]Sills to stop talking to the police" was factually inaccurate.79 Mr. Archey contends that he is entitled to habeas relief because this factual misstatement was material to the state court's decision regarding his ineffective assistance of counsel claim.80

However, the Court of Appeals' reference to the content of the phone calls was made in the context of determining whether the trial court had the discretion to admit the state's rebuttal evidence of the jail calls. Specifically, the calls had been admitted at trial as evidence to rebut Mr. Archey's claims that he did not make phone calls from jail and did not know about the black duffle bag.81 The Court of Appeals' factual misstatement, however, was limited to stating that Mr. Archey had referred in those calls to Ms. Samson-Sills.82 The magistrate judge concluded that the Court of Appeals' factual misstatement did not "go to a material factual issue that is central to [Mr. Archey's] claim."83

Mr. Archey contends that because the Court of Appeals misstated the contents of the phone calls, it was more likely to reach the wrong conclusion with regard to his ineffective assistance claim. Mr. Archey asserted in his merits brief, "[b]earing in mind that the phone calls had only limited probative value of Archey's knowledge of the black bag, it logically follows that the testimony of Lisa Samson and Joanna Samson-Sills contributed greatly to the jury's verdicts."84 However, Mr. Archey's assertion requires inferences that are not supported by the record. At trial, the phone calls between Mr. Archey and his son were discussed in the context of demonstrating Mr. Archey's awareness of the black duffle bag.85 Therefore, the connection between the Court of Appeals' factual misstatement and potential prejudice resulting from trial counsel's decision not to call Mr. Pentecost to testify is exceedingly attenuated, if it exists at all. Accordingly, Mr. Archey has not demonstrated that the Court of Appeals' factual misstatement regarding Mr. Archey's statement about Ms. Samson-Sills was relevant to a material factual issue that is central to the ineffective assistance claim.

C. CONCLUSION

The Court has reviewed the parties' briefing, the records on file, and the decisions of the Alaska Court of Appeals on both direct review and on the petition for post-conviction relief. The Court has considered de novo each of the Petitioner's objections to the Report and Recommendation. Based on that review, the magistrate judge's Report and Recommendation at Docket 45 is ACCEPTED,86 the Amended Petition for Habeas Corpus at Docket 19 is DISMISSED with prejudice, and the relief sought in Petitioner's merits brief at Docket 39 is DENIED.

The Court further finds that Mr. Archey has not made the requisite substantial showing of the denial of a constitutional right, and therefore a certificate of appealability will not be issued by this Court.87 Mr. Archey may request a certificate of appealability from the Ninth Circuit Court of Appeals.

The Clerk of Court is directed to enter a final judgment accordingly.