Darrell v. USA

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending 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.

         I. 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 (9^th 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.

         II. Factual and Procedural Background

         The 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.

         III. Movant's Objections

         In his 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.^[1]

         A. Potential Witness Kiki Norris

         Movant 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^[2] 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 Strickland.

         Further, 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.

         Accordingly, defense counsel's failure to locate and interview witness Kiki Norris was not ineffective assistance of counsel.

         B. Counsel's Opening Statement

         Both 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 ...