United States District Court, D. Arizona
David C. Bury United States District Judge
This matter was referred to Magistrate Judge Bruce G. Macdonald, pursuant to the Rules of Practice for the United States District Court, D. Arizona (Local Rules), Rule (Civil) 72.1(a). On July 31, 2015, he issued a Report and Recommendation (R&R), recommending that the Court dismiss the Petition for Writ of Habeas Corpus.
On April 11, 2008, a jury found Petitioner, Lyndall Dwaine Thompson, guilty of second degree murder for shooting and killing his brother. On July 14, 2008, Petitioner was sentenced to the presumptive term of sixteen years imprisonment.
After the shooting, Petitioner called police and claimed the shooting was in self-defense. Prior to being interviewed by police, he was Mirandized and agreed to waive his Miranda rights, act as his own attorney, and answer police officer’s questions if they would answer his questions. Thereafter, he made incriminating statements. During the interview, police responded to his inquiries regarding his brother’s condition by acting like they didn’t know it, but they knew his brother was dead. His trial attorney did not seek to suppress the interview and a redacted recording of the interview was presented to the jury. Petitioner asserts that he did not see a copy of the un-redacted recording until after the trial, and Petitioner argues that there were differences in the redacted tape recording played to the jury which were so substantial as to amount to a presentation of false evidence.
Petitioner’s claim of self-defense was that he had thrown his hand gun on the ground and believed his brother picked it up and was armed, and after he shot his brother he also threw his SKS automatic rifle on the ground and ran away. The testimony and statements from police were that they found both weapons on the top of a vehicle parked in his carport. There was some confusion over whether the guns were put there by the defendant or moved there by police because none of the investigating officers were responsible for initially locating the gun, and the Government in closing admitted: “we would like to know how the guns got there.” (Response (Doc. 11-3(A): TR at122.) Petitioner argues his counsel should have investigated and discovered which officer actually found the guns and where the guns were found because proof that the guns were found on the ground would have supported his assertion of self-defense. Whereas, the guns being found together on top of the vehicle totally undermined his self-defense claim.
On habeas, Petitioner raises eight (8) grounds for relief. First, Petitioner alleges ineffective assistance of trial counsel due to an alleged failure to move to suppress incriminating statements, which he asserts were unconstitutionally obtained by police. Second, Petitioner alleges ineffective assistance of trial counsel based on an alleged failure to move for additional disclosure and/or failure to investigate who found his weapons and where the guns were located when found. The remainder of Petitioner’s claims relate to his assertion that the State used false evidence against him because it introduced a redacted recording of his confession, which materially misrepresented his statements to the jury. Petitioner asserts that an evidentiary hearing is required. (Objection (Doc. 34) at 3 (citing Doody v Ryan, 649 F.3d 986, 1021 (9th Cir. 2011); Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004)).
STANDARD OF REVIEW
The duties of the district court in connection with an R&R by a Magistrate Judge are set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1). Where the parties object to an R&R, “‘[a] judge of the [district] court shall make a de novo determination of those portions of the [R&R] to which objection is made.’” Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)).
This Court's ruling is a de novo determination as to those portions of the R&R to which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en banc). To the extent that no objection has been made, arguments to the contrary have been waived. Fed.R.Civ.P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not filed within fourteen days of service of the R&R), McCall v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report waives right to do so on appeal); see also Advisory Committee Notes to Fed.R.Civ.P. 72 (citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation)).
The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. § 636(b)(1), they had 14 days to file written objections. See also, Fed.R.Civ.P. 72 (party objecting to the recommended disposition has fourteen (14) days to file specific, written objections). The Court has considered the objections made by the Petitioner, and the parties’ briefs considered by the Magistrate Judge in deciding the Petition for Writ of Habeas Corpus.
In Petitioner’s Objection to the R&R, he charges that the Magistrate Judge erred in failing to order an evidentiary hearing to determine Petitioner’s ineffective assistance of counsel claims one and two and his false evidence claim five. “Specific issues on which an evidentiary hearing is required in this case to resolve disputed factual claims include, although are not necessarily limited to: (1) whether Petitioner’s counsel performed deficiently in failing to move to suppress Petitioner’s custodial statements to police; (2) whether Petitioner’s counsel acted unreasonably in failing to further investigate and challenge the initial location of the weapons; and (3) whether Petitioner was prejudiced by these failures and omissions.” (Objection (Doc. 34) at 9.)
Petitioner argues he has established a “colorable” claim for relief on counts one and two, and five, and he was never been accorded a state evidentiary hearing on them. He asserts that Magistrate Judge Macdonald made the same mistake. Petitioner asserts he is entitled to a hearing because he has established a colorable claim, i.e., he has alleged facts which, if true, would entitle him to relief. (Objection (Doc. 34) at 4.) This Court must decide “whether such a hearing could enable ...