United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Movant was convicted on September 17, 2010, of three counts of armed bank robbery, aiding and abetting, and using a firearm during a crime of violence. Following a direct appeal, Movant timely filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 ("Motion") on December 3, 2012 (Doc. 7).
On December 16, 2013, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation ("R&R") recommending that this Court deny the Motion (Doc. 14). Movant filed objections to the R&R (Doc. 15).
I. Review of R&R
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). It is "clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise." United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ) (emphasis in original); Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D. Ariz. 2003) ("Following Reyna-Tapia, this Court concludes that de novo review of factual and legal issues is required if objections are made, but not otherwise.'"); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district court "must review de novo the portions of the [Magistrate Judge's] recommendations to which the parties object."). District courts are not required to conduct "any review at all... of any issue that is not the subject of an objection." Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. § 636(b)(1) ("the court shall make a de novo determination of those portions of the [report and recommendation] to which objection is made."). Thus, this Court will review the portions of the R&R to which Movant objected de novo.
The Motion in this case claims two theories of ineffective assistance of counsel. As the R&R correctly noted, claims of ineffective assistance of counsel are properly raised in a motion under 28 U.S.C § 2255. R&R at 3. The R&R determined that neither of Movant's claims established ineffective assistance of counsel, and recommended that the motion be denied on the merits. Movant objected to the R&R's recommendation on both of his theories of ineffective assistance of counsel.
The R&R correctly details the law governing ineffective assistance of counsel claims, and neither party objected to this legal standard. Therefore, the Court adopts the following and will apply it to Movant's claims:
...The Court reviews claims of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, Movant must show: (1) that counsel's performance was deficient, and (2) that counsel's deficient performance prejudiced the defense. 466 U.S. at 687.
To establish that counsel's performance was deficient, Movant must show that "counsel's representation fell below an objective standard of reasonableness." Id. at 688. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id. Movant "must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Id. (citing Michael v. Louisiana, 350 U.S. 91, 101 (1955)). "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689.
To establish prejudice from counsel's errors, Movant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. The court need not determine whether counsel's performance was deficient before examining whether prejudice resulted from the alleged deficiencies. See Smith v. Robbins, 528 U.S. 259, 286 fnt.14 (2000). "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. (quoting Strickland, 466 U.S. at 697).
R&R at 3-4.
A. First theory of ineffective assistance of counsel
Movant's first theory of ineffective assistance of counsel is that his attorney failed to investigate and present an alibi defense. The R&R concludes that Movant has failed to show counsel was ineffective in this regard because Movant makes only a vague assertion that he had an alibi witness or defense. R&R at 4. Movant objects to the R&R ...