United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Petitioner's Petition for Writ of
Habeas Corpus. The Magistrate Judge to whom this case is
assigned issued a Report and Recommendation
(“R&R”) recommending that the Petition be
denied. (Doc. 12). Petitioner filed an objection to the
R&R. (Doc. 13).
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). The district court
must review the Magistrate Judge's findings de
novo only if a party objects to the Magistrate
Judge's findings or recommendations. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc). However, if no party objects to any fact or issue, the
district court is not required to engage in “any review
at all . . . .” Thomas v. Arn, 474 U.S. 140,
149 (1985). Accordingly, the Court will review the portions
of the R&R to which Petitioner has objected de
novo. . . .
Petition for Writ of Habeas Corpus
Petition raises a single ground for relief, the claim that
Petitioner's counsel was ineffective. As explained in the
R&R, the test for determining whether counsel is
ineffective requires both objective deficiency on the part of
counsel and a showing that that deficient performance
actually prejudiced the defense. (Doc. 12 (citing
Strickland v. Washington, 466 U.S. 668, 687
(1984))). The standard requires a showing “that
counsel's errors were so serious as to deprive the
defendant of a fair trial . . . whose result is
reliable.” Id. (emphasis added).
R&R finds this claim without merit, based on the factual
record of the case and the Superior Court's decision.
Petitioner objects to these findings.
Factual and Procedural Background
R&R recounts the factual and procedural background of
this case. (Doc. 12 at 1-2). Petitioner objects to certain
factual claims, which the Court will address below.
Petitioner's Factual Claims
claims that there was no hearing as required by State v.
Donald, 10 P.3d 1193 (Ariz.Ct.App. 2000), as referenced
in the R&R at page 1. (Doc. 13). However, the R&R
specifically cites to Doc. 7, Ex. B as evidence of said
hearing. In the referenced document, the court transcript
clearly identifies the hearing as a Donald hearing.
(Doc. 7, Ex. B, page 3, line 5). Ultimately, the presence or
absence of a Donald hearing in the record has no
bearing on Petitioner's claim. To the extent that
Petitioner claims that the lack of a Donald hearing
affords him post-conviction relief, such a claim is based on
state law and is not cognizable as a federal habeas claim.
Estelle v. McGuire, 502 U.S. 62, 68 (1991).
Moreover, Petitioner had a Donald hearing; thus the
Court finds that the Magistrate Judge did not err in
describing the referenced hearing as a Donald
claims that there was no plea negotiation. The record
indicates that Petitioner confirmed to the state court that
an offer was made to him at the Early Disposition Court, and
that said offer was reviewed with counsel at that time. (Doc.
7, Ex. B at 9-10). The record further reflects that the plea
offer was withdrawn because Petitioner was uninterested in
the plea. (Doc. 7, Ex. B at 3). While the record does not
reflect any plea negotiation at the Donald hearing,
it does reflect the fact that negotiations had previously
further claims that the R&R was incorrect in its finding
that Petitioner did not petition the Supreme Court for
review. (Doc. 13). The Magistrate Judge relied on the
information provided in Petitioner's initial filing,
where the Petitioner did not indicate that he petitioned
either the Arizona Supreme Court or the United States Supreme
Court. (Doc. 1, page 3, questions 9-10). Petitioner now
claims that he petitioned the Supreme Court for review on
November 7, 2017. Regardless of whether Petitioner sought
such review, nothing about this fact would indicate that his
counsel was ineffective.
claims that he was not provided an opportunity to accept or
reject a plea offer, because no such offer was in existence.
(Doc. 13). Petitioner references a statement in the R&R
summarizing Petitioner's claim that he was not provided
an opportunity to accept or reject an offer, (Doc. 12 at 2),
and subsequently quotes a non-binding Fifth Circuit case
stating that “improper statements by a prosecutor may
constitute reversible error where the defendant's right
to a fair trial is substantially affected, ” (Doc. 13)