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 (“Petition”). The Magistrate Judge
to whom this case was assigned issued a Report and
Recommendation (“R&R”) recommending that the
Petition be denied. (Doc. 10). Petitioner filed many
documents in response to the R&R, including: objections
(Doc. 15); a motion to appoint counsel (Doc. 15); a request
for a certificate of appealability (Doc. 15); a motion to
file an untimely reply to Respondents' response to the
objections (Doc. 18); a lodged reply to the response to the
objections (Doc. 19); a motion to amend the habeas petition
(Doc. 21); and a lodged amended petition (Doc. 22).
Respondents replied to the objections (Doc. 16); responded to
the motion to file an untimely reply (Doc. 20); responded to
the motion to amend (Doc. 23); and filed a supplemental brief
at the Court's request (Doc. 26). Petitioner then
responded to the supplemental brief. (Doc. 27).
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.” 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.”).
Accordingly, the Court will review the portions of the
R&R to which Petitioner objected de novo.
Appointment of Counsel
is no constitutional right to counsel on habeas.”
Bonin v. Vasquez, 999 F.2d 425 (9th Cir. 1993).
Indigent state prisoners applying for habeas corpus relief
are not entitled to appointed counsel unless the
circumstances indicate that appointed counsel is necessary to
prevent due process violations. Chaney v. Lewis, 801
F.2d 1191, 1196 (9th Cir. 1986), cert. denied, 107
S.Ct. 1911 (1987); Kreiling v. Field, 431 F.2d 638,
640 (9th Cir. 1970); Eskridge v. Rhay, 345 F.2d 778,
782 (9th Cir. 1965), cert. denied, 382 U.S. 996
Court has discretion to appoint counsel when a judge
“determines that the interests of justice so
require.” Terrovona v. Kincheloe, 912 F.2d
1176, 1181 (9th Cir. 1990) (quoting 18 U.S.C.
§ 3006A(a)(2)(B)). “In deciding whether to appoint
counsel in a habeas proceeding, the district court must
evaluate the likelihood of success on the merits as well as
the ability of the petitioner to articulate his claims pro se
in light of the complexity of the legal issues
involved.” Weygandt v. Look, 718 F.2d 952, 954
(9th Cir. 1983).
the Court has reviewed the R&R and all of
Petitioner's subsequent filings and finds Petitioner is
not likely to succeed on the merits and is capable of
articulating his claims pro se. Accordingly, the motion for
appointment of counsel is denied.
Motion to File Untimely Reply to Objections
argues Rule 72 does not bar him from filing a reply to the
response to his objections (Doc. 24 at 1). He is mistaken.
Rule 72 permits only objections and a response to the
objections. Thus, by negative implication no further
(indefinite) briefing is permitted. Petitioner further argue
that Local Rule Civil 7.2(d) permits him to file a reply.
(Doc. 24 at 1). Local Rule Civil 7.2(d) permits replies to
motions, but objections are not motions. Thus, this Rule is
inapposite. Accordingly, Petitioner's request to file an
untimely reply (Doc. 18) is denied.
Motion to Amend
over a year after filing his habeas petition and almost 2
months after the R&R was filed, moved to amend his habeas
petition. (Doc. 21). Local Rule Civil 15.1(a) requires that
any motion to amend indicate in what respect it differs from
the original pleading. This requirement is even more critical
at this late stage in this case where an R&R on the
merits of the Petition was already briefed. Petitioner failed
to comply with this procedural requirement and the motion is
denied for this reason.
on the merits, Petitioner summarized what claims he was
seeking to add in his motion (Doc. 21). Assuming Petitioner
correctly summarized what Petitioner seeks to add (which the
Court has not undertaken to verify against the lodged
proposed amended petition because Petitioner did not comply
with Local Rule Civil 15.1(a)), the Court agrees with
Respondents that these additional claims would be futile.
Petitioner's claim of ineffective assistance of counsel
premised on a lack of mental health evidence fails because
under State v. Jacobson, 244 Ariz. 187, 192- 93,
¶¶ 18-20 (App. 2017), any efforts by counsel in
this regard would have been futile. (Doc. 23 at 4).
Counsel's failure to take action that would have been
futile can never be deficient performance. Rupe v.
Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). Thus,
Martinez v. Ryan, 566 U.S. 1 (2012) would not excuse
Petitioner's procedural default of this claim because the
claim is not substantial. (Doc. 23 at 4). Accordingly,
alternatively, the Court denies the motion to amend on the
merits because any amendment would be futile.
Factual and Procedural History
On September 9, 2013, a jury sitting in the Superior Court of
Arizona in and for Coconino County convicted Petitioner of
second degree murder, a class one felony. The trial court
sentenced Petitioner to sixteen years in prison. The Arizona
Court of Appeals affirmed Petitioner's convictions and
sentences on January 29, 2015.
In February 2015, Petitioner filed a Notice of
Post-Conviction Relief (“PCR”). The trial court
appointed PCR counsel, who could not find a colorable claim
for relief. The trial court set September 28, 2015 as the
deadline for Petitioner to file a pro se PCR Petition.
Petitioner did not file a PCR Petition.
On March 27, 2017, Petitioner filed a second PCR Notice. The
trial court appointed counsel, who could not find a colorable
claim. On July 24, 2017, Petitioner filed a pro se
“Opening Brief” that the trial court construed as
a PCR Petition. On November 30, 2017, the trial court denied
Petitioner's PCR ...