United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is the Report and Recommendation (Doc. 8)
(“R&R”) issued by the Magistrate Judge to
whom this case was assigned recommending that the motion to
vacate, set aside or correct sentence pursuant to 28 U.S.C.
§ 2255 file in this case be denied. Movant has filed
objections (Doc. 9) to the R&R and Respondent has filed a
reply (Doc. 10) to those objections.
Review of R&R
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.”). Thus,
the Court will review the portion of the R&R to which
Movant objected de novo.
Factual and Procedural Background
R&R recounts the factual and procedural background of
this case, and neither party objected to this summary. (Doc.
8 at 1-5). The Court accepts this portion of the R&R.
Motion, Movant raises two theories of ineffective assistance
of counsel. The R&R recounts the law governing
ineffective assistance of counsel claims. (Doc. 8 at 5-6).
Neither party objected to this legal standard; the Court
hereby accepts it.
Potential Witness Kiki Norris
objects to the R&R's conclusion that his counsel was
not ineffective for not locating potential witness Kiki
Norris. As the R&R notes, defense counsel filed an
affidavit explaining that he did not locate this witness
because Movant could not provide her address, contact
information, known associates, or a physical description.
(Doc. 8 at 7). Indeed, Movant's story about this witness
changed sufficiently that counsel became skeptical as to her
existence. (Id.). Movant nonetheless objects and
argues that because there was a reference to this witness in
the police report, counsel should have used the name in the
police report to discover the witness's location.
(Doc. 9 at 1). The Court finds counsel's conduct, coupled
with Movant's changing story, did not fall below the
objective standard of reasonableness required by
as noted in the R&R, the police report suggested that
Kiki's testimony would not have been helpful to Movant.
(Doc. 8 at 9). Thus, it was a reasonable strategic decision
to not locate Kiki; and Movant was not prejudiced by
counsel's failure to locate a witness that would have
been harmful to Movant's case.
defense counsel's failure to locate and interview witness
Kiki Norris was not ineffective assistance of counsel.
Counsel's Opening Statement
the R&R and Respondent interpreted Movant's second
theory of ineffective assistance of counsel as involving
Movant's counsel somehow impairing Movant's right to
testify in his own defense at trial. (Doc. 8 at 10; 10 at 2).
In his objections, Movant recasts this theory as his ...