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Gatewood v. USA

United States District Court, D. Arizona

February 11, 2019

Jefferson Gatewood, Petitioner,
v.
USA, Respondent.

          ORDER

          James A. Teiiborg, Senior United States District Judge.

         Pending before the Court is Movant's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (as amended) and Motion to Appoint Counsel (Doc. 21[1]). The Magistrate Judge to whom this case was assigned issued a Report and Recommendation (hereinafter “R&R”) (Doc. 19) recommending that this Court deny the motion to vacate, set aside or correct sentence. Movant has filed objections (Doc. 20) to the R&R, and Respondent has filed a reply (Doc. 22) 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.” 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.”); 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.'”). 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) (“[T]he 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. (R&R at 2). The Court accepts this portion of the R&R.

         III. MOTION TO APPOINT COUNSEL

         On November 2, 2018, Movant filed a “Motion to Request Assistance of Counsel, ” (Doc. 21), in which he requests this Court appoint counsel. In support of his Motion, Movant alleges that counsel is necessary because of his inability as a federal prisoner to investigate claims and interview witnesses. (Doc. 21 at 3).

         Appointment of counsel is mandatory pursuant to Rule 8(c) of the Rules Governing § 2255 Cases when an evidentiary hearing is required, United States v. Duarte-Higareda, 68 F.3d 369, 370 (9th Cir. 1995), and when necessary for effective discovery pursuant to Rule 6(a) of the Rules Governing § 2255 Cases. Appointment is also required when the complexities of the case are such that lack of counsel would equate with denial of due process. Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980) (citing Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir. 1962)). There is presently no indication that lack of counsel would result in the denial of due process.

         Otherwise, the court must determine whether the “interests of justice” require the appointment of counsel. Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990) (quoting 18 U.S.C. § 3006A(a)(2)(B)). This determination is guided by an assessment of the likelihood of success on the merits and movant's ability to articulate his claim in light of the complexity of the legal issues. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). Movant has articulated his claims well and the legal issues are not inherently complex. Additionally, Movant pleaded sufficiently well to move the Court to order Respondent to file responsive pleadings. Under such circumstances, the interests of justice do not warrant appointment of counsel. Therefore, the request for appointment of counsel will be denied.

         IV. MOVANT'S OBJECTIONS

         In his Motion to Vacate, Movant raises two theories of ineffective assistance of counsel against his trial counsel (Doc. 1 at 4-5) and “challenges the sufficiency of the evidence offered to prove the Indian status element of his crimes, where the determination of his Indian status was not submitted to the jury for a finding of fact[.]” (Doc. 13 at 2).

         A. Grounds One and Two

          The R&R recounts the law governing ineffective assistance of counsel claims. (Doc. 19 at 2-3). Neither party objected to this legal standard; the Court hereby ...


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