United States District Court, D. Arizona
DIANE J. HUMETEWA, UNITED STATES 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 Bridget S. Bade (Doc. 13).
Petitioner raises two grounds for relief in the Petition. In Ground One, Petitioner alleges his second trial counsel, David Gregan, provided ineffective assistance in violation of the Sixth Amendment by promising Petitioner a more favorable plea deal than the available offer of 3.5 years in prison; Plaintiff instead received eight years. (Doc. 1 at 6). In Ground Two, Petitioner alleges his first trial counsel, Kent Volkmer, provided ineffective assistance in violation of the Sixth Amendment by failing or refusing to accurately convey the original plea offer to Petitioner. (Doc. 1 at 7). After a thorough and well-reasoned analysis, the Magistrate Judge determined that Petitioner failed to show that the Arizona State Courts’ rejection of his claims was based on an unreasonable determination of the facts or that it was contrary to or an unreasonable application of federal law. Accordingly, the Magistrate Judge recommends the Petition be denied. (Doc. 13 at 23).
Petitioner filed an Objection to the R&R ("Objection") (Doc. 14) on April 16, 2015. Respondents have not filed a response to Petitioner’s Objection. On April 27, 2015, Petitioner filed a Motion for Clarification (Doc. 15) in which he inquires whether his Objection was in proper form.
The Magistrate Judge described in the R&R the procedural and factual background of the case. (Doc. 13 at 1-9). The Court therefore finds it unnecessary to repeat the same 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 asserts in his Objection that the Magistrate Judge erred in recommending that his ineffective assistance claims be denied. Petitioner disagrees with the Magistrate Judge’s conclusion and argues that the State Court’s decision was based on an unreasonable determination of the facts, and is contrary to or an unreasonable application of federal law. Petitioner further contends the Magistrate Judge erred in recommending that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied. Lastly, Petitioner argues that an evidentiary hearing should be granted.
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. Merits of Claims
As noted above, Petitioner alleges in Ground One that Attorney Gregan provided ineffective assistance of counsel by promising, but failing to obtain, a better plea offer. Petitioner alleges in Ground Two that Attorney Volkmer provided ineffective assistance by failing to accurately convey to Petitioner the original plea offer. In his Objection, Petitioner does not challenge 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 9-13). Rather, Petitioner claims the Magistrate Judge erred in the conclusions she reached upon applying the legal standards. Petitioner contends his lawyers were ineffective and the State Court’s ruling to the contrary was sufficiently erroneous to meet the high standard for habeas relief. The Court disagrees.
Under the AEDPA, a habeas corpus petition cannot be granted unless the State court decision was: (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or was (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). The petitioner bears the burden of proving the standards for habeas relief have been met. Woodford v. Visciotti, 537 U.S. 19, 25 (2002). When applying this highly deferential standard of review, "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 Court has reviewed the Memorandum Decision issued by the Arizona Court of Appeals on February 10, 2014. (Doc. 11-2 at 83-83). That decision was issued after Petitioner filed a petition for review of the trial court's denial of his petition for post-conviction relief. (Doc. 11-2 at 65-81).
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.” Lock ...