United States District Court, D. Arizona
JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is Petitioner's Petition for Writ of Habeas Corpus. The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that this Court deny the Petition. Petitioner has filed objections to the R&R. In addition, the Petitioner also requested an evidentiary hearing that the R&R recommends the Court denies.
I. Factual Background
As the R&R quoted, the Arizona Court of Appeals summarized the facts of this case as follows:
On December 20, 2004, suspecting his wife, Laverne Steah, was having an affair, Steah left his jobsite in Craig, Colorado and drove home to St. Johns, Arizona. At home, Steah discovered Laverne together with another man, B.C. A fight ensued between Steah and B.C.
Shortly thereafter, St. Johns Police Officer Aaron Smith responded to a dispatch concerning a knife fight at Steah's home. Officer Smith testified that upon arriving at the scene, he observed Steah kicking and hitting B.C., who was trying to get up from the ground in the front yard. Officer Smith stated that Steah was covered in blood from "head to toe" and that B.C. had multiple wounds, including a wound "from the base of his ear.. [that] was bleeding profusely." Officer Smith recalled Steah stating, "I cut him and stabbed him.... I, [sic] had the only knife.... I'm not hurt, none of this blood is mine. It's all his."
B.C. was transported to a hospital and later died while in the emergency room. Maricopa County medical examiner, Dr. Vladimir Shvarts, opined that the cause of death was "multiple wounds." According to Dr. Schvarts, B.C. had sustained ten wounds to the head and neck area, including a stab wound by the ear that damaged a major artery, eleven wounds and multiple superficial cuts on other parts of his body, and blunt force injuries.
R&R at 1-2.
II. Reply by Petitioner to Respondents' Reply
Petitioner submitted a reply to the Respondents' reply to Petitioner's initial objection to the R&R. (Doc. 44). While a reply to Respondents' reply is not allowed by the Federal Rules of Civil Procedure ("Rule") 72 and is moot, the Court will consider it regardless.
III. Review of Report and Recommendation
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.").
The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is incarcerated based on a state conviction. With respect to any claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law" or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 71 (2003). This is a "highly differential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation omitted). The petitioner bears the burden of proving the standards for habeas relief have been met. Id. at 25. Further, this Court must presume the correctness of the state court's factual findings regarding a petitioner's claims. 28 U.S.C. § 2254(e)(1); Ortiz v. Stewart, 149 F.3d 923, 936 (9th Cir. 1998). Additionally, "[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(b)(2).
"When applying these standards, the federal court should review the last reasoned decision' by a state court...." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Accordingly, the summary denial of Petitioner's petition for review by the Arizona Court of Appeals renders the trial court's decision on Petitioner's Petition for Post-Conviction Relief the "last reasoned decision" of the state court, subject to this Court's review. See Y1st v. Nunnemaker, 501 U.S. 797, 803-03 (1991) ("later unexplained orders upholding [a] judgment [rejecting a federal claim]" raises a presumption that the reviewing court "looks through" that order to the last reasoned decision).
In his Petition, Petitioner raised one legal theory for habeas relief, ineffective assistance of counsel. However, Petitioner raised eight different factual variations of ineffective assistance of counsel. The Court will review the theory and factual variations on which Petitioner filed an objection de novo.
A. Legal Standards for Ineffective Assistance of Counsel
The R&R recounts the law governing a claim for ineffective assistance of counsel as follows:
The controlling Supreme Court precedent on claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a convicted defendant must show that counsel's performance was objectively deficient and counsel's deficient performance prejudiced the petitioner. Id. at 687. To be deficient, counsel's performance must fall "outside the wide range of professionally competent assistance." Id. at 690. When reviewing counsel's performance, the court engages a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. "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." Id. at 689. Review of counsel's performance is "extremely limited." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), rev'd on other grounds, 525 U.S. 141 (1998). Acts or omissions that "might be considered sound trial strategy" do not constitute ineffective assistance of counsel. Strickland, 466 U.S. at 689.
In addition to showing counsel's deficient performance, a petitioner must establish that he suffered prejudice as a result of that deficient performance. Id. at 691-92. To show prejudice, a petitioner must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694; Hart v. Gomez, 174 F.3d 1067, 1069 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). The prejudice component "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). It is not enough to merely show "that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693.
A habeas court may proceed directly to the prejudice prong without deciding whether counsel's performance was deficient. Id. at 697; Jackson v. Calderon, 211 F.3d 1148, 1155 n. 3 (9th Cir. 2000) (citing Strickland ). The court, however, may not assume prejudice solely from counsel's allegedly deficient performance. Jackson, 211 F.3d at 1155.
In the context of a habeas petition, a petitioner must do more than demonstrate to the federal court that the state court applied Strickland incorrectly. Bell, 535 U.S. at 698-99. Rather, a petitioner must show the state court "applied Strickland to the facts of his case in an objectively unreasonable manner." Id. Because the standards created by Strickland and § 2254(d) are both "highly deferential, " review under both standards in tandem is even more deferential. Richter, 131 S.Ct. at 788 (citations omitted). "[T]he question is not whether counsel's ...