United States District Court, District of Arizona
James A. Teilborg Senior United States District Judge
Pending before the Court is Movant’s motion to vacate, set aside, or correct sentence. Doc. 1. On December 17, 2014, the Magistrate Judge to whom this case was assigned issued a Report and Recommendation (R&R) recommending that the Motion be denied. Doc. 13. Movant has filed a “motion to reconsider” which the Court will treat as objections to the R&R. Doc. 15.
In his Motion and in his Objections, Movant makes one primary argument with several underlying factual bases. Specifically, Movant’s primary argument is that he received ineffective assistance of counsel because his counsel did not give him enough information to realize he should have taken the plea agreement rather than go to trial. Objections at 7. Additionally, Movant argues that his sentence is disproportionate to that of his co-defendants. Id.
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.”).
Accordingly, as indicated above, the Court will treat Movant’s “motion to reconsider” as objections to the R&R and will review the portions of the R&R that Movant sought to “reconsider” de novo.
Appointment of Counsel
In his objections, Movant did not object to the R&R’s conclusion that no evidentiary hearing is necessary to decide this case. This Court accepts that recommendation. See R&R at 10-11.
In his objections, Movant sought appointment of counsel. Doc. 15 at 11. This Court has discretion to appoint counsel if the Court “determines that the interests of justice so require.” Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990), cert. denied, 499 U.S. 979 (1991) (quoting 18 U.S.C. § 3006A(a)(2)(B)). “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.” Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).
In this case, the Court finds that Movant has competently articulated his claims pro se and, given the record, is unlikely to succeed on the merits. Accordingly, the Court denies the request to appoint counsel.
Merits of Ineffective Assistance of Counsel Claim
The R&R recounts the legal standard for an ineffective assistance of counsel claim and Movant did not object to that statement of the law. Accordingly, the Court accepts it. Specifically, the R&R stated:
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, Movant must show: (1) deficient performance - counsel’s representation fell below the objective standard for reasonableness; and (2) prejudice - there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Id. at 687-88. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel’s performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
The court hearing an ineffective assistance of counsel claim must consider the totality of the evidence with an eye toward the ultimate issue of whether counsel’s conduct so undermined the functioning of the adversarial process that the proceeding lacked fundamental fairness. Id. at 686; Card v. Dugger, 911 F.2d 1494 (11th Cir. 1990)(observing that counsel cannot be labeled ineffective for failing to raise issues which have no merit); Boag v. Raines, 769 F.2d 1341, ...