United States District Court, D. Arizona
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
(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.
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 ...