United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
October 23, 2017, Magistrate Judge Jacqueline M. Rateau
issued a Report and Recommendation (Doc. 16) in which she
recommended that the Petition under 28 U.S.C. § 2254 for
a Writ of Habeas Corpus by a Person in State Custody filed by
Manuel Luis Garcia (“Garcia”) be denied. The
magistrate judge advised the parties that written objections
to the Report and Recommendation (“R & R”)
were to be filed within fourteen days of service of a copy of
the Report and Recommendation.
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). Further, under
28 U.S.C. § 636(b)(1), if a party makes a timely
objection to a magistrate judge's recommendation, then
this Court is required to “make a de novo determination
of those portions of the [report and recommendation] to which
objection is made.” See also Schmidt v.
Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003)
(reading the Ninth Circuit's decision in
Reyna-Tapia as adopting the view that district
courts are not required to review “any issue that is
not the subject of an objection”); United States v.
Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding
the standard of review employed by the district court when
reviewing a report and recommendation to which no objections
First, the Court misconstrued the holding in certain cases
that a finding of ineffective assistance can be made with no
consideration of the issues presented if the evidence
presumptively precludes any finding contrary to guilt.
Second, the facts pertaining to Mr. Garcia's alibi were
insufficiently considered, denying a fair and meaningful
review of that issue. Third, the Court erred in totally
ignoring the severance issue that could have changed the
outcome as to some or all of charges.
Objection (Doc. 17), p. 2.
Court adopts those portions of the Report and Recommendation
to which Garcia has not specifically objected.
Review of Ineffective Assistance of Counsel Claims
federal court is not to grant habeas relief with respect to
“any claim that was adjudicated on the merits in State
court proceedings” unless the state decision was (1)
“contrary to, or an unreasonable application of,
clearly established Federal law, ” as determined by the
United States Supreme Court; or (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). See e.g. Harrington v.
Richter, 562 U.S. 86, 97-8 (2011) (“determining
whether a state court's decision resulted from an
unreasonable legal or factual conclusion does not require
that there be an opinion from the state court explaining the
state court's reasoning”).
establish an ineffective assistance of counsel claim, a
movant must prove: (1) counsel's performance was
deficient, and (2) movant was prejudiced by such deficiency.
Strickland v. Washington, 466 U.S. 668, 687. As to
the first prong, there is a strong presumption defense
counsel's performance was sufficiently effective.
Id. at 689. A movant must show counsel's
performance was “outside the wide range of
professionally competent assistance.” Id. at
690. Counsel's representation must fall “below an
objective standard of reasonableness.” Stanley v.
Cullen, 633 F.3d 852, 862 (9th Cir.2011). A court is to
inquire “whether counsel's assistance was
reasonable considering all the circumstances” at the
time of the assistance. Strickland, 466 U.S. at 689.
the second prong, a habeas petitioner must demonstrate a
reasonable probability that, but for counsel's errors,
the result of the proceeding would have been different.
Id. at 694. A “reasonable probability”
is a “probability sufficient to undermine confidence in
the outcome.” Id. at 695. Both prongs of the
ineffective assistance test need not be addressed if the
claim can be disposed of on one prong. Id. at 697.
According to the Supreme Court:
The object of an ineffectiveness claim is not to grade
counsel's performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed. Courts should
strive to ensure that ineffectiveness claims not become so
burdensome to defense counsel that the entire criminal
justice system suffers as a result.
Magistrate Judge's Conclusion Regarding Lack of
Prejudice Without Consideration of Whether the Decision Would
Reasonably Likely Have Been Different Absent the Errors
argues that a court must conduct at least a brief review of
each issue to follow the dictates of Strickland to
determine how the errors, if true, would have affected a
determination of prejudice. As previously stated, a
determination of whether prejudice has been shown requires
consideration of whether there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. See
Strickland, 466 U.S. at 694. The magistrate judge
similarly summarized this prejudice standard. R & R (Doc.
16), p. 9. The magistrate judge discussed the strength of the
government's case; in this discussion the magistrate
judge discussed some of the claims raised by Garcia. In
concluding prejudice had not been shown, the magistrate judge
implicitly considered whether there was a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
Court agrees with the magistrate judge that the
government's case was strong. Further, the Court agrees
with the magistrate judge that the result of the proceeding
would not have been different even if Garcia's claims
were determined to be true. Garcia asserts counsel was
ineffective as follows:
1. Trial counsel failed to investigate and determine the
exact date and time of the 2005 incident until shortly before
trial, resulting in the diminishment of a valuable alibi
defense as to that incident.
2. Trial counsel, having failed to timely and properly
investigate Garcia's alibi, failed to take appropriate
corrective measures, i.e., to move for continuance or to move
to withdraw as counsel, having become a critical witness.
3. Trial counsel failed to move to sever the two separate and
unrelated incidents which occurred seventeen months apart,
and which had significant factual differences.
4. Trial counsel failed to preemptively object to questions
concerning whether Garcia had ever carried a gun, knowing
that such questions were likely to be asked of ...