United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before this Court is Petitioner's Petition for Writ of Habeas Corpus ("Petition"). The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that this Court deny the Petition. 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).
Petitioner has filed objections to the R&R. Consistent with United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ), this Court will review the portion of the R&R to which there is an objection de novo.
I. Factual Background
The R&R quotes the Arizona Court of Appeals' recounting of the facts of this case, which are as follows:
On June 23, 2006, at 8:55 p.m., Arizona Department of Public Safety Officer Manjarres was patrolling Interstate 8 in Pinal County. He observed a pick-up truck, driven by Saenz, "cross over the solid white line... that separates the slow lane from the emergency lane" for approximately three feet and then return to the driving lane. He followed the truck, determined it was going sixty miles per hour in a seventy-five-mile-per-hour zone, and observed it travel into the emergency lane again. He then initiated a traffic stop.
When Saenz rolled down the window, Manjarres smelled a "moderate odor of alcohol emitting from the vehicle." He noticed Saenz's face was flushed and his speech slurred. Saenz agreed to perform two field sobriety tests but refused to perform a third. Based on his performance on the tests, Manjarres decided to arrest Saenz for driving under the influence of intoxicating liquor (DUI) while impaired to the slightest degree. Saenz physically resisted as Manjarres attempted to place handcuffs on him, so Manjarres released him to create distance and drew his taser. As Saenz ran toward his truck, Manjarres fired his taser, hitting Saenz in the back. Saenz removed the taser "probes" and fled in his truck. A twenty-six mile chase ensued, ending when Saenz drove his truck into the desert, turned off his lights, and fled on foot. Saenz was arrested at his place of work a few days later.
Doc. 15 at 1-2 (quoting Doc. 13-2 at 93-94).
Petitioner does not object or argue that the above quoted language accurately represents the Arizona Court of Appeals' decision. Accordingly, the Court adopts this summary as the finding of the state court. However, Petitioner does object and argue some of the facts are incorrect. The Court will address those objections as necessary below.
II. Preliminary Requests
Petitioner asks this Court to release him from the Arizona Department of Corrections so that he can do discovery on this case. That request is denied.
Petitioner also complains about his lack of counsel. Specifically, Petitioner states, "...Petitioner was also denied a Federal Public Defender by a Federal Judge to promptly represent him for what the state court Judges refused to do." Doc. 18 at 40.
The rules governing habeas proceedings mandate the appointment of counsel if necessary for the effective utilization of discovery procedures (Rule 6(a), 28 U.S.C. foll. § 2254), or if an evidentiary hearing is required (Rule 8(c)), but "[t]hese rules do not limit the appointment of counsel under 18 U.S.C. § 3006A at any stage of the case if the interest of justice so requires." Rule 8(c)....
... In deciding whether to appoint counsel in a habeas proceeding, the district court must evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved. See, e.g., Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir.1981); Dillon v. United States, 307 F.2d 445, 447 (9th Cir.1962).
Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
In this case, the Court has reviewed the Petition, Answer, R&R, and Objections. The Court does not find discovery is necessary. Further, the Court finds that Petitioner is capable of articulating his claims pro se and that Petitioner is unlikely to succeed on the merits. ...