United States District Court, D. Arizona
DIANE J. HUMETEWA, District Judge.
This matter is before the Court on Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Michelle H. Burns (Doc. 24). Petitioner raised four grounds for relief in the Petition. In the Reply, however, he withdrew Grounds One, Three and Four. (Doc. 23). Thus, as the Magistrate Judge did, this Court will only consider Petitioner's claim in Ground Two. Petitioner alleges in Ground Two that his trial counsel rendered ineffective assistance by failing to request a lesser-included offense jury instruction regarding the first of two child abuse counts charged against him. After a thorough analysis, the Magistrate Judge determined that the Arizona State courts' rejection of Petitioner's claim was not contrary to or an unreasonable application of the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the Magistrate Judge recommends the Petition be denied. (Doc. 24 at 10).
Petitioner filed an Objection to the R&R ("Objection") (Doc. 29) on February 24, 2014. Respondents then filed a Response to Petitioner's Objection (Doc. 35) on May 5, 2014. Petitioner subsequently filed a Reply to Respondents' Response (Doc. 36) on May 19, 2014. The R&R did not authorize a reply and Petitioner did not seek leave to file one. Out of an abundance of caution, however, the Court has considered it.
The Magistrate Judge set forth a full procedural and factual background in the R&R. The Court need not repeat that information here. Moreover, Petitioner has not objected to any of the information in the background section. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), "does not on its face require any review at all... of any issue that is not the subject of an objection.")
Petitioner raises three issues in his Objection. First, Petitioner claims the Magistrate Judge erred by failing to address Respondents' assertion of a procedural bar to Plaintiff's claim and proceeding directly to the merits. Second, Petitioner claims the Magistrate Judge erred in determining that trial counsel's decision not to request a lesser-included offense instruction was a reasoned choice to pursue an "all or nothing" defense. Third, Petitioner claims the Magistrate Judge erred by failing to order an evidentiary hearing.
The district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge "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)(C); Fed.R.Civ.P. 72(b)(3).
A. Procedural Bar
According to Petitioner, the Magistrate Judge erred by proceeding directly to the merits of his ineffective assistance claim rather than first addressing the procedural bar argument asserted by Respondents. Petitioner claims that Respondents' assertion of a procedural bar was so "grossly erroneous and improper" that it called into question the quality of Respondents' subsequent analysis of the merits of Petitioner's claim. (Doc. 29 at 5 n.1). Petitioner claims the Magistrate Judge "consciously and deliberately elected to evade any written analysis of the alleged procedural bar...." (Doc. 29 at 5).
The Court finds no error in the Magistrate Judge's decision to proceed directly to the merits without addressing Respondents' asserted procedural bar. Addressing the merits of a habeas case without first considering a procedural bar is authorized by statute, which provides that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(a)(2). In addition, case law establishes that a federal court may proceed to the merits without addressing an alleged procedural bar. See Flourney v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits."); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("[A]ppeals courts are empowered to, and in some cases should, reach the merits of habeas petitions if they are... clearly not meritorious despite an asserted procedural bar.").
Moreover, the Magistrate Judge's decision to proceed directly to the merits in no way harmed Petitioner. Even if the Magistrate Judge had considered the procedural bar asserted by Respondents and found it to be "grossly incorrect" as Petitioner claims, the remedy was to reject the procedural bar and proceed to the merits. Although the Magistrate Judge did not expressly reject the procedural bar, the decision to proceed directly to the merits had the same effect as if the procedural bar had been rejected. Petitioner's objection on this basis is rejected.
B. Merits of Claim
Next, Petitioner argues the Magistrate Judge erroneously found that trial counsel's decision not to request a lesser-included offense instruction on one of the charged offenses was a reasoned decision based on an "all or nothing" strategy. Petitioner does not object to the Magistrate Judge's discussion of the relevant legal standards, including the strict standards to establish ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984) and the highly deferential standard for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). ( See R&R at 5-8). Rather, Petitioner claims the Magistrate Judge ...