United States District Court, D. Arizona
A. Teiiborg, Senior United States District Judge.
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). 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.
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). 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.
FACTUAL AND PROCEDURAL BACKGROUND
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
MOTION TO APPOINT COUNSEL
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).
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.
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.
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).
Grounds One and Two
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 ...