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Veseli v. Hacker-Agnew

United States District Court, D. Arizona

April 17, 2019

Cemaludin Veseli, II, Petitioner,
v.
Carla Hacker-Agnew, et al., Respondents.

          ORDER

          James A. Teilborg Senior United States District Judge

         Pending 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).

         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.” 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.

         II. Appointment of Counsel

         “There 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 (1966).

         The 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).

         Here, 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.

         III. Motion to File Untimely Reply to Objections

         Petitioner 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.

         IV. Motion to Amend

         Petitioner, 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.

         Alternatively, 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. (Doc. 23).

         Specifically, 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.

         V. 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 ...

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