Archey v. John Conant

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
GARRY R. ARCHEY, JR., 	) 	Case No. 3:15-cv-00213-SLG-SAO
)
Petitioner, 	)
) 	REPORT AND RECOMMENDATION
vs. 	) 	REGARDING MERITS PETITION FOR
) 	WRIT OF HABEAS CORPUS
JOHN CONANT, 	) 	28 U.S.C. § 2254(d)
)
Respondent. 	) 	(Dockets 19 and 39)
)
I. INTRODUCTION
Before the court is Petitioner Garry R. Archey’s First Amended 28 U.S.C. §2254 Petition
for Writ of Habeas Corpus.1 He filed a merits brief in support of his petition.2 John Conant
(“the State Custodian”) entered an opposition.3 Archey makes two arguments. First, he asserts
that 	Alaska 	unreasonably 	applied 	clearly 	established 	Supreme 	Court 	Authority 	when 	it
adjudicated a Fifth Amendment due process Strickland ineffective assistance of counsel claim.4
Second, he claims, for the first time in his merits brief, that the Alaska Court of Appeals made an
unreasonable determination of the facts in light of the evidence presented at trial when it
adjudicated Archey’s post-conviction relief appeal.5
1 Dkt. 19.
2 Dkt. 39.
3 Dkt. 43. John Conant was the acting State Superintendent of Goose Creek Correctional Center
where Archey is serving his sentence.
4 Dkt. 19 at 10; 39 at 20–24; Strickland v. Washington, 466 U.S. 668 (1984).
5 Dkt. 39 at 3, 17, 18–20; See Archey v. State (Archey II), No. A-11516, 2015 WL 1881554
(Alaska App. April 22, 2015).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 1 of 31

2
Archey filed his initial habeas petition in District Court on November 4, 2015. 6 On
November 24, 2015, this Court ordered counsel appointed to represent Archey and ordered
deadlines for Archey to file an amended petition and for the respondent to file an answer or
response.7 On November 30, 2015, the Federal Defender was appointed to represent Archey.8 On
September 26, 2016, Archey, represented by counsel, filed his first amended petition. 9 The
respondent opposed.10 Archey filed a reply in support of his first amended petition on November
9, 2016.11 On August 24, 2017, Archey filed his merits brief.12 On October 23, 2017, the state
custodian filed his merits brief. 13 Archey did not file a reply. Neither party requested oral
argument and it was not necessary for determination of the issues.
For the reasons set forth below, considering the arguments of each party, this court
RECOMMENDS DENIAL of the Petition.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Pre-Trial.
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.14 Count I charged
Misconduct 	Involving 	a 	Controlled 	Substance 	in 	the 	Second 	Degree 	for 	producing
6 Dkt. 01, Petition for Writ of Habeas Corpus.
7 Dkt. 05, Order Directing Service and Response.
8 Dkt. 09, Order Granting Motion to Withdraw at Dkt. 07 and appointing attorneys.
9 Dkt. 19, Petitioner’s First Amended Petition for Writ of Habeas Petition.
10 Dkt. 22, Respondent’s Response to First Amended Petition.
11 Dkt. 23, Petitioner’s Reply in Support of First Amended Petition.
12 Dkt. 39, Petitioner’s Merits Brief.
13 Dkt. 43, Respondent’s Merits Brief.
14 Dkt. 39 at 7.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 2 of 31

3
methamphetamine. 15 Counts 	II, 	III, 	and 	IV 	charged 	Misconduct 	Involving 	a 	Controlled
Substance in the Second Degree for possession of precursor chemicals, namely red phosphorous,
acetone, and iodine, used for manufacturing methamphetamine.16 Count V alleged Misconduct
Involving 	a 	Controlled 	Substance 	in 	the 	Fourth 	Degree 	for 	maintaining 	a 	structure 	to
manufacture methamphetamine.17
Archey entered pleas of not guilty and was represented by Office of Public
Advocacy attorney Hatton Greer. 18 Before going to trial, Archey moved to dismiss the
indictment based on the prosecutor’s statements to the grand jury regarding a witness’s
credibility.19 The trial court denied the motion; the Alaska Court of Appeals later affirmed.20
Archey’s former girlfriend, Lisa Samson, was also charged with various drug
distribution offenses, and pleaded guilty to two reduced counts of Misconduct Involving a
Controlled Substance in the Fourth Degree for possession of methamphetamine and for
Maintaining a Dwelling for the Keeping or Distributing of Controlled Substances. 21 As a
condition of her plea agreement, she agreed to testify at Archey’s trial.22
B. Trial and Sentencing.
15 Id. at 7.
16 Id. at 7.
17 Id. at 7.
18 Id. at 7.
19 Id. At 7.
20 Id. at 7; See Archey v. State (Archey I), No. A-10129, 2010 WL 2436739 at *1 (Alaska App.
June 16, 2010)
21 Dkt. 19 at 3–4.
22 Id.; Dkt. 43 at 1, 8.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 3 of 31

4
At trial, the State presented evidence that in 2006, Archey worked as a handyman
for a family friend, Gary Grover.23 Grover had two adult step-daughters, Lisa Samson and her
sister Joanna Samson-Sills (Sills), 24 who lived in separate residences on Grover’s one-acre
Soldotna property. Sills lived in a cabin on the property with her children.25 Samson lived in a
trailer with a plywood structure attached to it.26
Samson testified that she and Archey began a romantic relationship that lasted
approximately four months.27 Archey sometimes stayed at Samson’s trailer.28 Samson, Sills, and
Archey used crystal methamphetamine during this time.29
Officers testified that in August 2006, the Soldotna Police Department reviewed
pharmacy drug sales logs and noticed that Archey, Samson, and Sills had purchased Sudafed
frequently, 	and 	police 	believed 	that 	the 	Sudafed 	was 	probably 	used 	in 	manufacturing
methamphetamine.30 Law enforcement responded to the Grover property, arresting Samson on
outstanding warrants. 31 Police interviewed Sills, who said that methamphetamine had been
23 Dkt. 39 at 5.
24 Nearly all of the pleadings in this case refer to Joanna Samson-Sills as “Sills” to avoid
confusion. We continue to do so here.
25 Tr. 335, 430; Dkt. 39 at 5. A partial transcript of the trial and other trial court hearings in this
case is entered in the docket as Docket Nos. 20-1 (“Volume II,” containing pages 46–518) and
20-2 (“Volume III,” containing pages 520–1060). Each page of the transcript copy in the docket
is marked with three separate page numbers: the rightmost-justified number, in Courier font, that
appears to be a part of the original transcript and two that are listed identically as Page X of
YYY. This report and recommendation will cite to “Tr.” and use the page number in Courier
font.
26 Tr. 335, 577–78; Dkt. 39 at 5.
27 Tr. 580; Dkt. 39 at 5.
28 Dkt. 39 at 5.
29 Id. at 5; Tr. 581, 666.
30 Dkt. 39 at 6; Tr. 126–28, 267-68, 305-06, 325–26.
31 Dkt. 39 at 6.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 4 of 31

5
manufactured in Samson’s trailer.32 Archey, when contacted by police: first, closed the door of
Samson’s trailer; next, left the property to go to a neighbor’s house; then asked the neighbor, Pat
Price, to lock Samson’s trailer with a padlock; and finally, after Price returned with police after
reporting that Archey had requested he install the padlock, Archey fled into the woods.33 Archey
was later arrested for violating conditions of his parole.34
Police obtained a warrant to search the property,35 and found a black duffel bag in
a “bear hole” in the ground, about 30 feet from the back of the main cabin and 40 feet from
Samson’s 	trailer. 36 The 	bag 	held 	equipment 	and 	liquids 	used 	in 	the 	manufacture 	of
methamphetamine as well as bi-phase liquids containing methamphetamine.37 The prosecution
referred to this duffel bag at trial as the “mobile meth lab.”38 Police also searched the trailer and
discovered items used in the manufacture of methamphetamine.39 The prosecution argued that
these items were Archey’s, and that he discarded the bag in the hole during his flight from
police.40
The prosecution presented witness testimony from Lisa Samson and Sills, among
others. Samson testified that she had used methamphetamine with Archey, though she said she
had never used it before meeting Archey.41 Samson denied manufacturing methamphetamine and
32 Id.
33 Id.
34 Id.
35 Id.
36 Tr. 373–74.
37 Dkt. 39 at 6.
38 Id. at 7; Tr. 538, 558; see also Tr. 673, 989.
39 Dkt. 19 at 3.
40 Dkt. 39 at 7.
41 Id. at 8, Dkt. 19 at 4.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 5 of 31

6
denied recognizing that certain chemicals and materials for manufacturing methamphetamine
were in her trailer.42 Samson admitted purchasing Sudafed, saying she had because Archey had
asked 	her 	and 	her 	sister 	to 	do 	it. 43 Sills 	also 	admitted 	purchasing 	Sudafed 	and 	using
methamphetamine. 44 Sills testified that Samson knew that Archey was using Sudafed to
manufacture methamphetamine.45
Samson testified that she had hidden a black bag once before, when Archey had
gone to jail, unrelated to the methamphetamine charges, in July 2006. 46 She testified that
Archey’s friend “Lester” called to ask her to hide a bag that was underneath her trailer.47 Samson
and her sister hid the bag in a hole on the property.48 Sills’s testimony corroborated the report
that the sisters had buried a bag in a hole in the ground, though according to Sills, the sisters
originally found the bag in the trailer’s bathroom.49
During recross examination by Archey’s counsel, Samson identified “Lester’s”
last name as Pentecost.50 Archey claims in his brief that defense counsel asserted “on several
occasions” that he would call Pentecost to cast doubt on Samson’s and Sills’s testimony that
42 Dkt. 39 at 8.
43 Id.; Tr. 584.
44 Dkt. 39 at 9.
45 Id., see Tr. 643.
46 Dkt. 39 at 8.
47 Id.
48 Id.
49 Id. at 9. Sills recalled at Grand Jury that the black bag they buried in July 2006 was different
than the bag prosecutors were calling the “mobile meth lab.” Id. at 9 fn.6. But Archey does not
argue that this information came out at trial. At trial, Sills recalled “a black luggage type bag”
that she had seen Archey “carry on several occasions,” but she had not seen him with any other
bags. Tr. 647.
50 Tr. 629. Outside the presence of the jury, the prosecutor identified “Lester” as Gordon
Pentecost. Tr. 680.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 6 of 31

7
incriminated Archey. 51 The defense did not promise Pentecost’s testimony in his opening
argument.52 Nor did defense counsel’s closing argument rely on Pentecost, though he mentioned
“Lester” when recounting Samson’s and Sills’s testimony about hiding the duffel bag.53 After
prosecution rested, the defense made two motions for judgment of acquittal: one as to Count III,
which alleged possession of acetone, a listed prohibited precursor chemical used in the
production of methamphetamine, and one as to Count V, which alleged maintaining premises—
the black bag—for manufacturing methamphetamine.54 The trial court denied both motions.55
The defense case focused on debunking Samson’s claim that Archey had called
her in July 2006 from jail asking her to hide a black bag. He presented evidence that Archey was
in jail during the time Samson said that Archey had contacted her indirectly through Pentecost.56
The defense theory on this point relied on an assumption that Samson initially told prosecutors
that Archey had called her directly to ask her to hide the bag when he was in jail.57 The defense
apparently believed that, at some point before giving testimony, Samson learned that this
statement would not be credible because of jail rules against calling cell phones. A corrections
51 Dkt. 39 at 2, 8, 10; c.f. Tr. 636–37 (largely indiscernible portion of the transcript that
suggested that defense counsel had one additional witness that he “had to find,” and suggesting
that witness was Pentecost), 671 (defense counsel notifying court out of the presence of the jury
that he had a subpoena prepared for Pentecost), 680–82 (discussion among parties and court
about whether Pentecost’s testimony would be allowed into evidence). The Tr. citations listed
here are the only places in the trial record that the Court is aware defense counsel mentions he
planned to call Pentecost.
52 Tr. 682.
53 Tr. 980–90.
54 Dkt. 39 at 9.
55 Id.
56 Id. at 10.
57 Tr. 728.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 7 of 31

8
officer testified that Archey was not able to call any cell phones while incarcerated. 58 The
defense demonstrated that Archey would not have been able to call Samson directly from jail
because she did not have a landline.59 Defense counsel also attempted to undermine Samson’s
testimony that a third party, Pentecost, had called to give her Archey’s directions to hide the
bag.60 However, the defense did not present Pentecost’s testimony at trial.
Whether Pentecost was actually available to testify at trial came out several years
later. Gordon Pentecost executed an affidavit on March 1, 2012 relating to his knowledge of
Samson and Archey at the time of Archey’s trial.61 In his affidavit, he wrote:
I, Gordon Pentecost, also known as Lester Pentecost, being first duly sworn,
depose and state that:
I am personally acquainted with Lisa Samson and Gary [sic] Archey. I have
known them since 2006. During the spring and summer of 2006, I observed Lisa
Samson making methamphetamine in her residence, the trailer Samson lived in].
It appeared to me that she was in control of the meth lab at all times. In addition
to the fact that it was located at her residence, she was the person who operated it,
and she made statements which indicated to me that she believed it to be her
property and under her control.
When Gary [sic] Archey was charged with crimes related to the lab, I told his
attorney, Hatten [sic] Greer, that I had personal knowledge that the lab really
belonged to Lisa Samson. I told him that, if necessary I would testify for the
defense.
I was available as a witness during Mr. Archey’s trial, but Mr. Greer never called
me to testify.62
58 Tr. 620.
59 Tr. 621.
60 Tr. 620–21.
61 Dkt. 21-5 at 4–5.
62 Id.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 8 of 31

9
At around the same time,63 defense trial counsel also submitted an affidavit, dated
April 19, 2012, detailing his best memory of the circumstances surrounding his decision whether
to call Pentecost as a witness.64 Defense counsel could not remember if he interviewed Pentecost
at the time of the trial.65 Defense counsel did recall that he spoke to a local defense attorney
about Pentecost, who had represented a co-defendant of Pentecost’s in a recent case. 66 He
recalled that attorney “was of the opinion that if Mr. Pentecost was facing legal trouble, he would
try to help out the State in hope of getting consideration on his case.”67
In light of these sworn statements, this court finds that defense counsel Greer did
talk directly to Pentecost at the time of Archey’s trial. Although Greer doesn’t remember
whether they talked or not, Pentecost states that they had. Greer in 2012 no longer had access to
his case files because the principal in his former firm had moved out of state.68 	Pentecost’s
unequivocating statement appears credible, and Greer’s lack of memory is reasonable given the
time that had passed.
At trial, the state sought to present a rebuttal case. To rebut the suggestion that
Archey did not contact, nor arrange to have someone contact, Samson from jail, Alaska
requested DOC recordings of inmate calls attributed to Archey in July 2006. 69 Wildwood
Correctional Complex, where Archey had been imprisoned, did not have recordings from the
63 The affidavits of Pentecost and defense trial counsel were made in support of Archey’s Second
Amended Application for Post-Conviction Relief, dated March 19, 2012. Dkt. 21-5 at 1–3. For
further discussion of the PCR proceedings, see Subsection D of this Section, infra.
64 Dkt. 21-6.
65 Id. at 2.
66 Id.
67 Id.
68 Id. at 1.
69 Dkt. 19 at 5, Dkt. 39 at 10–11.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 9 of 31

10
requested period.70 They did, however, produce two recorded phone calls between Archey and
his son, and two phone calls between Archey and his mother, made August 31, 2006-September
1, 2006.71 The State sought to admit two phone calls between Archey and his son, but not those
between Archey and his mother.72 The defense objected to the admission of the recordings.
After an evidentiary hearing, the court allowed the State to introduce excerpts of the two jail
phone calls between Archey and his son as rebuttal evidence. 73 The two phone calls to his
mother were not admitted.
The jury convicted Archey on all counts.74 He was sentenced to 20 years on each
of the first four counts, and five years on the fifth count, all to run concurrently.
C. Direct Appeal - Alaska Court of Appeals and Alaska Supreme Court.
Archey I
Archey appealed his conviction and sentence. He argued that (1) the prosecutor
improperly vouched for a witness at grand jury; (2) insufficient evidence supported the
conviction on Count V, maintaining a structure for the manufacture of methamphetamine; (3)
insufficient evidence supported Count III, possession of acetone; (4) the trial court erred in
admitting Archey’s jail phone calls in violation of discovery rules; and (5) his sentence was
70 Dkt. 39 at 10.
71 Dkt. 39 at 11.
72 Tr. 933.
73 The prosecution argued that they sought the jail phone call recordings in response to the
defense claim that Pentecost had been subpoenaed and would be called to testify. Tr. 916. The
prosecutor had at least five of Pentecost’s criminal files, including a pending case and a petition
to revoke probation for an older sentence. Id. This corroborates Greer’s 2012 recollection that an
attorney who had represented a co-defendant of Pentecost’s around the time of Archey’s trial.
See supra note 67. Tr. 923. Exhibit 105.
74 Dkt. 39 at 12.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 10 of 31

11
excessive.75 In Archey I, the Court of Appeals reversed the conviction for Count V, maintaining
a structure containing a methamphetamine lab. The Court denied the rest of Archey’s claims.76
Relevant to the instant habeas petition, the court in Archey I engaged in an
analysis of the recorded jail phone calls. The Court of Appeals found:
Although the State was unable to find any evidence of a call to Pentecost, the
State did discover calls that Archey made to his son. On the tapes, Archey’s son
mentioned that the police had found the black bag, and Archey responded that
someone should tell Sills to stop talking to the police. This evidence suggested
that Archey knew about the bag, and that he blamed Sills for its discovery . . .
Archey’s defense suggested that Sills owned the black bag and that he did not
make any phone calls from jail asking Samson to move it. The State’s rebuttal
evidence indicated that Archey did make a phone call from jail suggesting that he
knew about the black bag. This newly discovered evidence fell well within the
judge’s authority to allow new evidence to support the State's case-in-chief for
good reason and to make the presentation effective for the ascertainment of the
truth.77
Archey petitioned the Alaska Supreme Court to review the decision finding
evidence sufficient to uphold his conviction on Count III. The petition was denied on August 31,
2010.78
D. Post-Conviction Relief Proceedings.
On February 7, 2008, while his direct appeal was pending, Archey filed a pro se
post-conviction relief application. 79 Through appointed counsel he filed an amended post-
75 Archey v. State (Archey I), No. A-10129, 2010 WL 2436739 at *1 (Alaska App. June 16,
2010); Dkt. 39 at 12.
76 Archey I at *6.
77 Archey I, 2010 WL 2436739, at *4–5.
78 Dkt 19 at 6, 39 at 14; see Archey v. State, No S-13919 (Alaska Supreme Court Order).
79 Dkt. 14 at 6, 39 at 14, 21-1.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 11 of 31

12
conviction relief application on August 30, 2011.80 Alaska filed a motion to dismiss for failure to
state a prima facie case, and Archey filed a second amended post-conviction relief application on
March 19, 2012.81 His applications raised several arguments that his trial and appellate attorneys
had been ineffective: (1) trial counsel failed to challenge the admission of the jail phone call
Archey made to his son; (2) he failed to object to the lack of evidence corroborating the
testimony of accomplice witnesses; (3) he failed to call potential exculpatory witnesses; (4) he
failed to investigate potential exculpatory witness Gordon Pentecost; and (5) appellate counsel
failed to challenge the admission of the jail phone call in Archey’s petition for review to the
Alaska Supreme Court. 82 The trial court dismissed the post-conviction relief application for
failure to state a prima facie case on February 6, 2013.83
Regarding Pentecost, the trial court reasoned that Pentecost’s affidavit did not
specify 	that 	Pentecost 	could 	testify 	that 	Archey 	had 	not 	possessed 	or 	manufactured
methamphetamine, and therefore Pentecost’s testimony would have little bearing on Archey’s
guilt. 84 The court found that defense trial counsel did conduct a pre-trial investigation with
respect to Pentecost.85 The court concluded that Archey “had not rebutted the presumption that
his trial attorney’s decisions were not the result of a sound trial strategy.”86
In Archey II, Archey appealed the superior 	court’s dismissal of his PCR
application. He argued that his trial counsel’s affidavit did make a prima facie showing that his
80 Dkt. 21-2.
81 Dkt. 19 at 6, 39 at 14, 21-5.
82 Dkt 19 at 7, 39 at 14, 21-1, 21-2, 21-5.
83 Id., Archey v. State (Archey II), No A-11516, 205 WL 1881554 at *1 (Alaska App. April 22,
2015).
84 Dkt. 21-9 at 7.
85 Id.
86 Dkt. 19 at 7, 39 at 15, 21-9 at 8.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 12 of 31

13
attorney performance was deficient because he relied on a representation by another attorney in
deciding that Pentecost would not be a good witness.87 He also renewed his claim that his
attorney was ineffective for failing to exclude the jail phone call to his son.88
The 	Court 	of 	Appeals 	affirmed 	the 	superior 	court’s 	decision. 	Regarding
Pentecost’s testimony, the court held that even if Archey’s attorney failed to investigate
Pentecost and his potentially exculpatory contribution to Archey’s case, Archey did not show
prejudice.89 The Court reasoned that Pentecost would testify about Archey’s lack of ownership
of 	the 	trailer, 	and 	not 	about 	Archey’s 	involvement, 	or 	lack 	of 	it, 	in 	manufacturing
methamphetamine.90 Pentecost could only testify that Samson “controlled [and operated] the
methamphetamine 	laboratory.” 91 	Because 	the 	conviction 	for 	maintaining 	premises 	to
manufacture methamphetamine had been dismissed on direct appeal in Archey I, “there is no
reasonable possibility that his testimony would have altered the outcome of Archey’s case.”92
The Court of Appeals also agreed with the superior court that Archey did not
support his claim that the admission of the jail phone calls violated discovery rules because he
made only cursory, unsupported statements that the evidence was available to the prosecution as
ordinary pretrial discovery.93 “The superior court was not obligated to accept Archey’s ‘pro
forma assertions of the ultimate facts to be proved,’ even at the pleadings phase.”94
87 Dkt. 19 at 8, 39 at 15–16.
88 Archey II, 2015 WL 1881554 at *1.
89 Id. at *3.
90 Id. .
91 Id. at *3, 2.
92 Id. at *3.
93 Id. at *2.
94 Id. at *2 (citing LaBrake v. State, 152 P.3d 474, 481 (Alaska App. 2007)).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 13 of 31

14
Archey petitioned the Alaska Supreme Court for review on July 27, 2015. He
again argued that trial counsel was ineffective for failing to investigate Pentecost and for relying
on another attorney’s assessment of Pentecost’s credibility.95 Archey asserted that the Court of
Appeals did not properly consider the prejudice to Archey with respect to his convictions for
Counts I-IV in light of the evidence presented at trial. 96 The Court denied the petition for
review.97
Now before the court is the instant habeas petition.
E. 	Federal Court Proceedings.
Archey’s 28 U.S.C. § 2254 amended habeas petition, filed September 26, 2016,
makes one claim. He asserts that his trial counsel’s failure to independently investigate
Pentecost’s 	possible 	exculpatory 	testimony 	prejudiced 	Archey 	and 	violated 	his 	Sixth
Amendment right to effective counsel.98 In Archey’s August 24, 2017 merits brief, Archey’s
arguments expand to two claims: (1) the same ineffective assistance of trial counsel claim as in
his petition;99 and (2) that the Alaska courts made an unreasonable determination of the facts in
light of the evidence presented when it mischaracterized evidence at trial regarding Archey’s
recorded statements during jail phone calls.100
95 Dkt. 19 at 8, 39 at 16.
96 Dkt. 19 at 8–9, 39 at 16.
97 See Archey v. State, S-15916 (Alaska Supreme Court Order denying petition for review,
September 4, 2015).
98 Dkt. 19 at 10.
99 Dkt. 39 at 20–24.
100 Dkt. 39 at 18–20.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 14 of 31

15
The state custodian opposes.101 He argues that Archey is not entitled to relief
under AEDPA for his ineffective assistance of counsel claim because the Alaska courts
reasonably applied Strickland in adjudicating Archey’s claim.102 His merit brief in opposition
only addresses Archey’s first claim from “his first amended application, which is at issue
here.”103 The state custodian contends that Archey has not demonstrated that his trial counsel’s
performance was deficient nor that Archey was prejudiced by any incompetence.104
Archey did not file a reply brief.
III. 	ISSUES PRESENTED FOR REVIEW
1. 	Was Alaska’s resolution of Archey’s Strickland claim contrary to, or an
unreasonable application of, clearly established United States Supreme Court authority?
2. 	Was Alaska’s rejection of Archey’s Strickland claim based on an
unreasonable determination of the facts in light of the evidence presented in the State court
proceedings?
IV. DISCUSSION
After careful consideration of Archey’s claims, this court finds controlling
Supreme Court authority requires that his § 2254 petition for writ of habeas corpus be denied.
A. This report addresses both of Archey’s claims as described in his merits brief, but
primarily whether Alaska courts unreasonably applied Strickland in deciding Archey’s
claim of ineffective assistance of counsel.
Archey raises 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
101 Dkt. 22.
102 Id. at 3.
103 Dkt. 43 at 2, 12.
104 Dkt. 43 at 16–21.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 15 of 31

16
relief appeal.105 Alaska responds that Archey raised only a single claim in his first amended
habeas petition, that his trial counsel did not provide effective assistance for failing to investigate
Pentecost.106 Alaska does not brief whether the court’s decisions were based on an unreasonable
determination of the facts in light of the evidence, presumably relying on Archey’s failure to
plead the claim in either his initial habeas petition at Docket 1 or his first amended petition at
Docket 19.107
We treat Archey’s merits brief at Docket 39 as amending his habeas petition to
include the second claim. 108
B. The Standard of Review Used by Federal Courts for a Writ of Habeas Corpus
Depends on Whether the Petitioner’s Claims were Adjudicated on the Merits.
The district court’s authority to issue a writ of habeas corpus is limited in scope
by the Antiterrorism and Effective Death Penalty Act (AEDPA), codified at 28 U.S.C. § 2254.
The Supreme Court has interpreted the statute as existing to guard against only the most
“extreme malfunctions in the state criminal justice systems, not [as] a substitute for ordinary
error correction through appeal.”109 Of course, “even a single federal judge may overturn the
judgment of the highest court of a State insofar as it deals with the application of the United
States Constitution or laws to the facts in question[.]” 110 Yet, this court gives significant
105 Dkt 39 at 18–20.
106 Dkt. 43 at 12–13.
107 Dkt. 22, 43.
108 A habeas petitioner is required to “specify all the grounds for relief available” in his petition.
Rule 2(b)(2). Rules Governing Section 2254 Cases in the U.S. District Courts available at
http://www.uscourts.gov/sites/default/files/rules-governing-section-2254-and-section-2255-
proceedings.pdf.
109 Harrington v. Richter, 562 U.S. 86, 102–03 (2011).
110 Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir. 1984) (quoting Sumner v. Mata, 449 U.S.
539, 543–44 (1981)).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 16 of 31

17
deference to the state court, and despite whether the district court finds a petitioner’s grounds for
the writ compelling, “[i]t bears repeating that even a strong case for relief does not mean the state
court's contrary conclusion was unreasonable.”111
28 U.S.C. § 2254 provides that when a state court has adjudicated a criminal
petitioner’s claim on the merits, the district court may not grant a habeas petition unless the state
court’s adjudication of the claim “(1) 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; (2) or resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.”112
Under that statutory framework, a state court decision contravenes clearly established federal law
when it arrives at a conclusion that is “opposite to that reached by the Supreme Court on a
question of law or if the state court decides a case differently than the Supreme Court has on a
set of materially indistinguishable facts.”113
As relevant to the instant petition, the state court unreasonably applies clearly
established federal law where it “identifies the correct governing legal rule . . . but unreasonably
applies it to the facts of the particular state prisoner’s case.” 114 	Where the state court has
rendered judgment that a claim lacks merit, such judgment “precludes federal habeas relief so
long as fair-minded jurists could disagree on the correctness of the state court's decision.”115 Put
another way, the finality of a state court’s judgment will not be disturbed unless there is “no
111 Harrington, 562 U.S. at 102.
112 28 U.S.C. § 2254(d).
113 Godoy v. Spearman, 834 F.3d 1078, 1083–84 (9th. Cir. 2016) (quoting Williams v. Taylor,
529 U.S. 362, 413 (2000)).
114 Id.
115 Id.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 17 of 31

18
possibility fair-minded jurists could disagree that the state court's decision conflicts with this
Court's precedents.”116 This standard is “difficult to meet . . . because it was meant to be.”117
Nonetheless, if the district court finds error in a state trial court’s decision, and it is “in grave
doubt about whether [the] error had substantial and injurious effect or influence on verdict and
therefore finds itself in virtual equipoise about such issue, error is not harmless,” and habeas
corpus relief would be warranted.118
C. 	The State Court Adjudicated Petitioner’s Claim of Ineffective Assistance of
Counsel on the Merits.
When the State court decides a petitioner’s claim on the merits, the federal district
court is limited to the record before the State court,119 and may only grant habeas relief if the
requirements of § 2254(d) are satisfied. However, § 2254(d) does not apply if the State court did
not decide the claim on the merits.120 In that case, the district court should review the claim de
novo.121 For the reasons set forth below, this court concludes that Archey’s claim of ineffective
assistance was decided on the merits at the state court, and thus this court’s review is limited to
the state record and under the deferential constraints set forth in § 2254 (d).
1. 	The operative decision under review is the Alaska Court of Appeals decision
in Archey II.
In the event the highest state court denies a claim without explanation, the
relevant state court decision for the purposes of AEDPA is the “last reasoned state court
116 Harrington, 562 U.S. at 102.
117 Id.
118 Cooper v. Taylor, 103 F.3d 366, 370 (4th Cir. 1996), certiorari denied 522 U.S. 824 (1997).
119 See Cullen v. Pinholster, 563 U.S. 170, 181–182 (2011).
120 Cone v. Bell, 556 U.S. 449, 472 (2009).
121 Rompilla v. Beard, 545 U.S. 374, 390 (2005).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 18 of 31

19
decision.”122 Such is the case with Archey’s claim of unreasonable application of the Strickland
standard in our case. The Alaska Supreme Court denied his petition without explanation,123 and
thus the last-reasoned state court decision was the decision of the Alaska Court of Appeals.124
The parties do not dispute this.
2. 	The Alaska Court of Appeals decided Archey’s case while cognizant of its
“federal constitutional dimensions” and it thus reached the merits of petitioner’s
claim; accordingly, this court must apply AEDPA’s deferential standard of
review.
The state court need not cite federal law, nor even be aware of relevant federal
law. 125 Citing state court decisions which rest on Supreme Court precedent is sufficient to
constitute adjudication on the merits.126 Indeed, in Johnson,127 the Supreme Court reversed a
Ninth Circuit decision and held that the California Court of Appeals reached the merits where it
did not “expressly purport to decide a federal constitutional question,” 128 but extensively
discussed a state supreme court opinion and where that opinion extensively discussed three
federal cases.129 In Johnson, it was of no consequence that the state supreme court ultimately
rejected the cited federal courts’ holdings on the presented issue – what mattered was that they
knew they were grappling with a question exhibiting “federal constitutional dimensions.”130 In
122 Ylst v. Nunnemaker, 501 U.S. 797, 803–806 (1991). See also Johnson v. Williams, 133 S.Ct.
1088 ,1094 (2013) citing Williams v. Cavazos, 646 F.3d 626, 635 (2011).
123 See Archey v. State, S-15916 (Alaska Supreme Court Order denying petition for review,
September 4, 2015).
124 Archey II.
125 Harrington, 562 U.S. at 98; Early v. Packer, 537 U.S. 3, 7–8 (2002).
126 Baker v. City of Blaine, 221 F.3d 1108, 1112 (9th Cir. 2000).
127 Johnson v. Williams, 133 S. Ct. 1088, 1097 (2013).
128 Id. at 1098.
129 Id.
130 Id.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 19 of 31

20
other words, when the last reasoned state court opinion primarily relies on seminal state
precedent to address a claim, but that state precedent at least substantially considered federal
case law, a federal habeas court must find the merits to have been reached. The state Court of
Appeals reached the merits in this case.
When deciding Archey’s case, the Alaska Court of Appeals evaluated whether his
trial counsel was ineffective for failing to establish proper grounds for excluding the jail phone
call recording using the framework of Alaska cases Burton v. State,131 Risher v. State,132 and
State v. Jones.133 Thereunder, the court engaged a brief analysis that the “defendant must plead
facts showing that (1) the attorney’s performance fell below the standard of minimal competence
for a criminal lawyer and (2) there is a reasonable possibility that the outcome of the trial would
have been different but for the attorney’s incompetence.”134 The court attributed this statement to
Burton.135 Second, the Court cited Jones, a prominent state case, for its strong presumption that
counsel acted competently.136 Jones compiles several state and – most importantly – several
federal137 cases in comparing and contrasting their respective standards and rules for ineffective
assistance claims. Here, the Court of Appeals considered at least eleven federal cases concerning
131 180 P.3d 964, 968 (Alaska App. 2008).
132 523 P.2d 421, 424–25 (Alaska 1974).
133 759 P.2d 558, 569 (Alaska App. 1988) (cited in Archey II, 2015 WL 1881554 at *1).
134 Archey II, at *1.
135 See id. at *1 n.9.
136 See id. at *1, *1 n.10.
137 Strickland v. Washington, 466 U.S. 668, (1984); Beasley v. United States, 491 F.2d 687, 696
(6th Cir.1974); Murray v. Carrier, 477 U.S. 478 (1986) (quoting *569 Engle v. Isaac, 456 U.S.
107, 133–34, (1982)); United States v. Cronic, 466 U.S. 648, 658–62, (1984); Kimmelman v.
Morrison, 477 U.S. 365, (1986); Darden v. Wainwright, 477 U.S. 168, (1986); Baldwin v.
Maggio, 704 F.2d 1325, 1334 (5th Cir.1983); 	United States v. DeCoster, 624 F.2d 196, 211
(D.C.Cir.1976) (en banc); Chapman v. California, 386 U.S. 18, (1967); 	United States ex rel.
Cross v. DeRobertis, 811 F.2d 1008, 1016–17 (7th Cir.1987).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 20 of 31

21
ineffective assistance. While some of the cases address secondary ineffective assistance issues
not directly relevant to the Court of Appeals’ presumption of competence analysis, these many
cases inform this court that the state Court of Appeals was acutely aware that it was deciding an
issue that had “federal constitutional dimensions.” 	Therefore, this court finds that the issue
related to ineffective assistance during the admission of the phone calls, was decided on the
merits by the Alaska Court of Appeals.
D. Archey has not demonstrated that he is entitled to relief on the merits with respect
to his ineffective assistance of counsel claim.
1. The Alaska Court of Appeals Did Not Unreasonably Apply Clearly
Established Federal Law When it Resolved Archey’s Strickland Claim.
Archey argues, invoking Strickland, that the Alaska Court of Appeals’ decision
“was based on an unreasonable application of clearly-established federal law.”138 To establish a
prima facie claim for ineffective assistance of counsel, a petitioner must demonstrate that the
attorney’s performance fell below the standard of minimal competence and also show a
reasonable possibility that the outcome of the trial would have been different.139 Archey claims
that trial counsel “was ineffective when he decided not to call Pentecost as a witness without
conducting adequate investigation.”140 He claims that the Court of Appeals did not adjudicate
whether trial counsel’s performance was deficient because it focused on whether there had been
prejudice to Archey.141 Archey urges this Court to therefore evaluate whether trial counsel’s
performance was deficient de novo.142 Yet there is no need for this Court “to address both [the
138 Dkt. 39 at 5.
139 Strickland, 466 U.S. at 688–93.
140 Dkt. 39 at 20.
141 Dkt. 39 at 21.
142 Dkt. 39 at 21.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 21 of 31

22
performance and prejudice] components of the inquiry if the defendant makes an insufficient
showing on one.”143 Even if this court were to agree that the trial counsel performed deficiently,
and it does not, Archey cannot prevail because he has not shown prejudice. As discussed below,
this court finds that 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.
2. 	Application of the Highly Deferential Standard.
A federal habeas court may grant habeas relief on the ground of ineffective
assistance of counsel, over a lower state court’s earlier judgment to the contrary, if the appellant
shows that the state court’s decision was contrary to or misapplied clearly established federal
law.144 In February 2016, the Ninth Circuit, sitting en banc, declared the Strickland test for
ineffective assistance to be clearly established federal law for the purposes of habeas corpus in
noncapital cases, and expressly overruled its earlier decisions to the contrary.145 The Court also
overruled the three-judge panel’s opinion in the case before it, then remanded the case to the
panel to reconsider its affirmance of the district court’s denial of the writ. On remand, the panel
denied relief for a final time. In so doing, it reviewed the district court’s decision de novo and
applied146 the Strickland test. The test is two pronged, and requires an appellant to show first that
143 Strickland, 466 U.S. at 697.
144 Yarborough v. Gentry, 540 U.S. 1 (2003); on remand 381 F.3d 1219.
145 Daire v. Lattimore, 812 F.3d 766 (9th Cir. 2016) (en banc).
146 The panel’s original opinion included an alternate analysis under Strickland despite its
observation that Ninth Circuit precedent did not view Strickland as clearly established law.
Upon remand, the panel revisits, reapplies, and affirms its earlier analysis in light of the Ninth
Circuit’s en banc determination.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 22 of 31

23
her trial counsel’s performance was unreasonable under the totality of the circumstances.147 If
counsel’s performance was unreasonable, then, second, the appellant must show that, but not for
trial counsel’s poor performance, the result of the trial would have been different.148 Attached to
trial counsel’s actions is a rebuttable presumption that they constituted “sound trial strategy.” 149
Indeed, at trial, counsel for the defendant is granted “wide latitude” in making “tactical
decisions” on behalf of his client.150
The pivotal question is whether the state court’s application of the Strickland
standard was unreasonable. This is different from asking whether defense counsel's performance
fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if,
for example, this Court were adjudicating a Strickland claim on direct review of a criminal
conviction in a United States District Court. Under AEDPA, it is a necessary premise that the
two questions are different. For purposes of § 2254(d)(1), “an unreasonable application of
federal law is different from an incorrect application of federal law.”151 “A state court must be
granted a deference and latitude that are not in operation when the case involves review under
the Strickland standard itself.”152
Accordingly, this court’s inquiry is not to conduct a de novo Strickland analysis.
Instead, its two duties are to, first, “determine what arguments or theories supported or . . . could
have supported, the state court's decision;” and, second, to “ask whether it is possible fair-
147 Daire v. Lattimore, 818 F.3d 454, 461 (9th Cir. 2016) (citing Strickland, 466 U.S. at 688).
148 Id.
149 Id. at 464 (quoting Strickland, 466 U.S. at 689 (internal quotation marks and citation
omitted)).
150 Id. at 461 (quoting Strickland, 466 U.S. at 689).
151 Williams v. Taylor, 529 U.S. 362, 410 (2000).
152 Harrington v. Richter, 562 U.S. 86, 101 (2011).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 23 of 31

24
minded jurists could disagree that those arguments or theories are inconsistent with” the
Supreme Court’s Strickland jurisprudence.153
3. Defense counsel in Archey’s case exercised reasonable professional judgment.
Archey asserts that his trial attorney was incompetent for failing to investigate
Pentecost or to call him as a witness.154 He relies on Pentecost’s affidavit which states that he
would have been available to testify at Archey’s trial and he had knowledge that Samson,
Archey’s former girlfriend, manufactured methamphetamine in the trailer that Archey sometimes
shared with her. Archey challenges his trial counsel’s decision to move away from Pentecost’s
testimony based on, the attorney later recalled, statements of another attorney that Pentecost had
troubling legal charges of his own. He states that trial counsel had a duty to investigate
Pentecost’s testimony himself and decide for himself whether Pentecost would be a helpful
witness.155
Confounding the issue is a statement Pentecost makes in his affidavit, stating that
he did talk to trial counsel at the time of trial and he did disclose then what he knew about
Samson. Neither Archey nor the state custodian discuss the significance of this statement in their
merits briefing. This statement is evidence of some investigation into Pentecost by trial counsel
at the time of trial, and that it is reasonable that the attorney, who presumably met with dozens if
not more witnesses each year, would not recall speaking with Pentecost during the lead-up to
Archey’s trial. Pentecost’s mention of the meeting with the trial attorney establishes that counsel
investigated Pentecost and made his own professional judgment at the time about whether to call
him as a witness.
153 Id. at 101–102.
154 Dkt. 39 at 20.
155 Dkt. 39 at 22.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 24 of 31

25
Pentecost was simultaneously facing criminal charges in another matter. Samson
was not sure of his name when she testified that “Lester” had called her on behalf of Archey,
asking her to move his black bag. It was not clear that Pentecost was the person Samson testified
about, or that he would testify that he did or did not participate in the call asking Samson to
move the bag.156 Pentecost, according to his affidavit, would only have been able to testify about
having 	seen 	Samson 	manufacture 	methamphetamine. 157 	This 	would 	have 	highlighted
inconsistencies in Samson’s testimony that she was not even aware of methamphetamine-making
materials in her trailer. However, Pentecost did not have information that would necessarily
exculpate Archey. Pentecost’s affidavit did not state that he had not seen Archey manufacture
methamphetamine. The prosecutor could have cross-examined Pentecost on that issue. Had
Pentecost denied seeing Archey manufacture methamphetamine, the State could have attempted
to impeach him, perhaps with his previous criminal convictions. Or, as counsel’s defender
colleague 	had 	suggested 	to 	defense 	counsel, 	Pentecost 	could 	have 	provided 	inculpatory
testimony in consideration of Pentecost’s open state case. On these facts, trial counsel’s
decisions are reasonable strategic choices. Considering the presumption that his attorney acted
competently,158 Archey cannot establish that his attorney’s performance was deficient.
4. There is not a reasonable possibility that the outcome of Archey’s trial would
have been different had trial counsel further investigated and examined Pentecost.
Under 	Strickland, 	to 	show 	ineffective 	assistance 	of 	counsel, 	Archey 	must
demonstrate “reasonable probability that, but for counsel’s unprofessional errors, the result of the
156 Tr. 680–681.
157 Dkt. 21-5 at 4–5.
158 State v. Jones, 759 P.2d 558, 569 (Alaska App. 1988) (citing Strickland, 466 U.S. at 689; U.S.
v. Cronic, 466 U.S. 648, 658 (1984)).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 25 of 31

26
proceeding 	would 	have 	been 	different.” 159 “Reasonable 	probability” 	means 	“probability
sufficient to undermine confidence” in the jury verdict.160 Archey overstates the significance of
Pentecost’s proposed testimony in light of all other evidence presented at trial. He states that
Pentecost would have implicated Samson in methamphetamine production in the trailer and in
ownership or use of the contents of the black duffel bag.161 He also asserts that Pentecost’s
testimony would have been critical in impeaching Samson, who testified that she did not see any
chemicals or manufacture methamphetamine herself.162
But Pentecost’s testimony would have done little to discount the remainder of the
evidence against Archey at trial. Samson disclosed that she had entered into a plea agreement
with the state, and jurors could infer that she had some responsibility for the contents of the
trailer and the black duffel bag. However, even if all of Samson’s testimony was discounted,
Sills testified that she saw Archey bring items used in the manufacture of methamphetamine to
the trailer. Pat Price, the neighbor, testified that Archey visited his house and asked Archey to
lock up the trailer before walking into the woods. Jurors could infer Archey did not want police
to discover the contents of the trailer. In the jail phone calls with Archey’s son, Archey talked in
what could be characterized as a ‘resigned tone’ about the black bag found on the property.
Archey’s comments to his son about the bag could reasonably suggest Archey was distressed at
its discovery. Jurors could reasonably infer Archey owned the bag and its contents.
159 Hernandez v. Chappell, 878 F.3d 843, 852 (9th Cir. 2017) (quoting Strickland, 466 U.S. at
694).
160 Id.
161 Dkt. 39 at 23.
162 Dkt. 39 at 23–24.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 26 of 31

27
Archey argues that the jury could have heard Pentecost’s testimony and still have
credited Samson’s and Sills’s testimony, but that the standard is that the testimony taken as a
whole might have influenced the jury’s appraisal about the testimony of both sisters.163 He does
not explain why this is true, especially with respect to Sills’s testimony. On this record, Pentecost
would merely have offered information that Samson had made methamphetamine and had
control of the trailer that contained products for making methamphetamine. Standing alone, this
information may inculpate Samson, but it is too tenuous to undermine a determination of
Archey’s guilt on the four counts related to methamphetamine production.
In the present case, there is no possibility that “fairminded jurists could disagree”
with Alaska’s resolution of Archey’s Strickland claim, and as such his habeas claim must be
denied.164 Pentecost’s proposed testimony is simply not material to a determination of Archey’s
guilt or innocence.
5. The error included in the Alaska Court of Appeals opinion does not constitute
an unreasonable determination of the facts in light of the evidence presented in a
state court proceeding.
Archey claims, for the first time in his merits brief, that the Alaska Court of
Appeals made an unreasonable determination of the facts in light of the evidence presented at
trial when it adjudicated Archey’s post-conviction relief appeal.165 He specifically points out:
Archey did not refer to Ms. Sills at any point during his phone calls with his son.
According to the prosecutor’s proffer at Tr. 923, Archey spoke about Ms. Sills –
frustration with her communications with law enforcement – during a separate set
163 Dkt. 39 at 24.
164 Harrington v. Richter, 562 U.S. 86, 88 (2011) (quoting Yarborough v. Alvarado, 541 U.S.
652, 664 (2004)).
165 Dkt. 39 at 3, 17, 18–20; see Archey II, 2015 WL 1881554. Archey II relies on the factual
findings the Alaska Court of Appeals made in Archey I. See 2010 WL 2436739.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 27 of 31

28
of phone calls to his mother on September 1, 2006. Those calls were not admitted
at trial.166
In contrast, the Court of Appeals stated:
On the tapes, Archey’s son mentioned that the police had found the black bag, and
“Archey responded that someone should tell Sills to stop talking to the police.”
This evidence suggested Archey knew about the bag, and that he blamed Sills for
its discovery.167
Archey’s contention that Archey did not directly reference Sills in the call to his
son is correct; phone calls between Archey and his mother existed, but were not played at trial.
Relevant to our discussion, there were four jail calls: two between Archey and his son on August
31, 2006, and two between Archey and his mother on September 1, 2006.168 During the first
call, Archey’s son told Archey, “it was Bridget, she answered and then she was like they still
here and got the black duffel bag [expletive noun] … and I don’t know.”169 	The prosecutor
wanted to present excerpts of the calls in her rebuttal case.170 She conceded she would not seek
to admit the calls between Archey and his mother, but argued for admission of the two jail calls
to his son. 171 	Defense counsel objected, and an evidentiary hearing was conducted, which
resulted in the trial court decision to allow excerpts from the two calls between Archey and his
son as rebuttal evidence.172
The Court of Appeals factual error that “Archey responded that someone should
tell Sills to stop talking to the police,” was made in the Court’s findings regarding whether the
166 Dkt. 39 at 13 n.10.
167 Archey I, 2010 WL 2436739 at *4 (Alaska App. June 16, 2010) (emphasis added).
168 Tr. 731.
169 Tr. 731, 965. Trial Exhibit 105, first recording at approximately 1:17.
170 Tr. 908.
171 Tr. 933.
172 Tr. 965.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 28 of 31

29
trial court “had discretion to admit the state’s rebuttal evidence” of the jail calls.173 It is well-
established that “where state courts plainly misapprehend or misstate the record in making their
findings, and the misapprehension goes to a material factual issue that is central to the
petitioner’s 	claim, 	that 	misapprehension 	can 	fatally 	undermine 	the 	fact-finding 	process,
rendering the resulting factual finding unreasonable.”174
For this court to act, however, the factual error must go to a material factual issue
that is central to the petitioner’s claim,175 and that is not the case here. This error was not central
to Archey’s claim that the trial court abused its discretion to admit the phone calls, and not
central to the defense counsel’s decision whether to present Pentecost’s testimony at trial.
Archey argued to the Court of Appeals that “the trial court abused its discretion in admitting
evidence in the State’s rebuttal case of telephone calls he made to his son from jail.”176 The
Court of Appeals explained the issue simply in its analysis:
Archey’s defense suggested that Sills owned the black bag and that he did not
make any phone calls from jail asking Samson to move it. 	The State’s rebuttal
evidence indicated that Archey did make a phone call from jail suggesting that he
knew about the black bag. 	This newly discovered evidence fell well within the
judge’s authority to allow new evidence to support the State’s case-in-chief…”177
173 Archey I, 2010 WL 2436739 at *4.
174 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004).
175 Id.
176 Archey I, 2010 WL 2436739 at *4. Archey also argued “the State violated the discovery rules
by failing to disclose these recorded telephone calls before trial” and “the trial court found there
was no discovery violation because the phone calls were newly discovered evidence.” Archey I,
2010 WL 2436739 at *4. The Court of Appeals affirmed that the phone calls were not a
discovery violation. For our purposes, the Court of Appeals’ evaluation of the sufficiency of
discovery is clearly “not a material factual issue that is central to the petitioner’s claim” and the
issue is not before this court. Taylor, 366 F.3d at 1001.
177 Archey I, 2010 WL 2436739 at *5.
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 29 of 31

30
The existence of the phone calls were significant to the Court of Appeals because
they contradicted testimony presented by Archey that no calls were made, and because it showed
Archey knew about the existence of the black bag. The factual error by the appellate court that
the jury heard evidence that “Archey said Sills should stop talking to police” is not material to
either of these considerations. The error did not affect the fact that inculpatory phone calls had
taken place. The factual error did not directly reference the black duffel bag; rather, Archey’s son
mentioned, “they still here and got the black duffel bag [expletive noun].”178 	Therefore, the
inclusion of the error that “Archey responded that someone should tell Sills to stop talking to the
police” did not go to a material factual issue central to Archey’s claim.
The Court of Appeals’ error was not relevant to a material factual issue central to
the petitioner’s claim in the instant § 2254(d) petition. Archey asserts that Alaska unreasonably
applied clearly established Supreme Court Authority when it adjudicated a Fifth Amendment due
process Strickland ineffective assistance of counsel claim,179 namely that his defense counsel did
not call Pentecost who may have provided information to contradict the testimony of the State’s
two leading witnesses. 	The Court of Appeals’ mistaken finding does not affect Archey’s
Strickland claim before this court and is not related to a factual issue involving that claim;
therefore it does not warrant relief.
178 Tr. 731; Trial Exhibit 105, first recording at approximately 1:17.
179 Dkt. 19 at 10; 39 at 20–24; Strickland v. Washington, 466 U.S. 668 (1984).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 30 of 31

31
V. CONCLUSION
Based on the foregoing analysis, this court RECOMMENDS that Archey’s
Petition for Writ of Habeas Corpus be DENIED.
DATED this 12th day of March, 2018 at Fairbanks, Alaska.
S/ SCOTT A. ORAVEC
United States Magistrate Judge
Pursuant to D.Ak.L.M.R. 6(a), a party seeking to object to this proposed finding and
recommendation shall file written objections with the Clerk of Court no later than March 19,
2018. Failure to object to a magistrate judge’s findings of fact may be treated as a procedural
default and waiver of the right to contest those findings on appeal. Miranda v. Anchondo, et. al,
684 F.3d 844 (9th Cir. 2012). The Ninth Circuit concludes that a district court is not required to
consider evidence introduced for the first time in a party’s objection to a magistrate judge’s
recommendation. United States v. Howell, 231 F.3d 615 (9th Cir. 2000). Objections and
responses shall not exceed ten (10) pages in length, and shall not merely reargue the positions
presented in motion papers. Rather, objections and responses shall specifically designate the
findings and recommendations objected to, the basis of the objection, and the points and
authorities in support. Response(s) to the objections shall be filed on or before March 26, 2018.
The parties shall otherwise comply with provisions of D.Ak.L.M.R. 6(a).
Reports and recommendations are not appealable orders. Any notice of appeal
pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court’s judgment.
See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
Case 3:15-cv-00213-SLG-SAO Document 45 Filed 03/12/18 Page 31 of 31