JAMES A. TEILBORG, Senior District Judge.
Pending before the Court is the Magistrate Judge's Report and Recommendation ("R&R") (Doc. 18), recommending that Petitioner's Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus By a Person in State Custody (Non-Death Penalty) be denied, and that the Court decline to issue a certificate of appealability.
Petitioner is serving an eighteen year sentence in the Arizona State Prison Complex in Florence, Arizona for a second degree murder conviction. Petitioner's convictions arise out of an altercation that occurred outside the Redfish Grill and Bar in Chandler, Arizona. The Arizona Court of Appeals recounted the events as follows:
(Doc. 18 at 2-3) (quoting Doc. 16-1 at 56-59).
The Magistrate Judge correctly recited the procedural history of this case as follows:
(Doc. 18 at 4-5).
Petitioner summarizes the claims in his Amended Petition as follows: "Petitioner's Due Process rights were violated when his trial counsel provided ineffective assistance of counsel with respect to failing to find, interview, and call as a witness at trial the only eye-witness to the shooting whose testimony would have supported and bolstered Petitioner's claim of self-defense." (Doc. 15 ¶ 11.2). Notably, the Amended Petition claims, and Defendant does not dispute, that at trial, "the jury asked to hear from the eye-witness [trial] counsel failed to call as a witness." (Id.).
On March 24, 2015, the Magistrate Judge assigned to this case issued her R&R, recommending that the Amended Petition be denied. (Doc. 20). Petitioner filed his objections to the R&R on April 7, 2015.
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."
The Petition in this case was filed under 28 U.S.C. § 2254 because Petitioner is incarcerated based on a state conviction. With respect to the claims Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and (2) this Court must deny the Petition on those claims unless "a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law"
"When applying these standards, the federal court should review the `last reasoned decision' by a state court. . . ." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
Under Strickland v. Washington, 466 U.S. 668 (1984) and its progeny, "[a]n ineffective assistance claim has two components: A petitioner must show that counsel's performance was deficient, and that the deficiency prejudiced the defense." Wiggins v. Smith, 539 U.S. 510, 521 (2003) (internal citations and quotations omitted). The Court will address Petitioner's objections regarding each of these prongs separately.
A deficient performance is one that is "outside the wide range of professionally competent assistance," Strickland, 466 U.S. at 690, meaning that the petitioner must demonstrate that trial counsel's representation "fell below an objective standard of reasonableness," Wiggins, 539 U.S. at 521 (internal citations and quotations omitted). The Supreme Court has recognized that within this standard of reasonableness, "[c]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 691. "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Hovey v. Ayers, 458 F.3d 892, 909 (9th Cir. 2006) (quoting Strickland, 466 U.S. at 691). Indeed, "[j]udicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 669. Trial counsel is not required to interview every possible witness to be effective. See Bobby v. Van Hook, 558 U.S. 4, 11 (2009).
Petitioner argues that regardless of what Ajamu initially told trial counsel, "there is no reasonable explanation for not interviewing Ajamu prior to trial." (Doc. 20 at 2). Citing Ajamu's post-trial affidavit, Petitioner claims that trial counsel should not have been satisfied with Ajamu's initial communications because (1) he was not under oath, (2) he "did not provide a full statement," and (3) he only spoke with trial counsel "to ascertain his own potential risk of prosecution." (Doc. 20 at 3). Thus, Petitioner argues that trial counsel should have investigated further to determine the real extent of Ajamu's testimony.
These arguments fail. Because a reviewing court must "eliminate the distorting effects of hindsight," Strickland, 466 U.S. at 689, the Court may not look to Ajamu's affidavit, as Petitioner did, to determine why Ajamu initially approached trial counsel or whether he gave trial counsel "a full statement." (Doc. 20 at 2-3). Furthermore, Petitioner gives no authority for the proposition that trial counsel may not rely on a witness's unsworn statements when determining whether to conduct further investigation.
A brief review of the emails sent by trial counsel to current counsel demonstrates that, given the information he had at the time, trial counsel did not act unreasonably when he decided not to formally interview or call Ajamu as a witness. Trial counsel noted in these emails that Ajamu "did not give me information that was exculpatory for [Petitioner]," that "[i]n our conversations [Ajamu's] account of what happened did not match [Petitioner's] story," and that because Petitioner's story had "changed frequently," adding Ajamu's story would not help, "in fact, I thought it would hurt" Petitioner's case. (Doc. 16-1 at 100-01). Given this information, the Court agrees with the Magistrate Judge's conclusion that "Petitioner has failed to show how trial counsel's performance fell below a standard of reasonableness under prevailing professional norms."
Even if Petitioner's performance was inadequate, Petitioner has failed to show prejudice. In order to show prejudice, Petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694; accord Harrington v. Richter, 562 U.S. 86, 112 (2011) ("The likelihood of a different result must be substantial, not just conceivable."). When analyzing the prejudice prong of the Strickland analysis, reviewing courts must consider the totality of the evidence and the strength of the government's case. Alcala v. Woodford, 334 F.3d 862, 872 (9th Cir. 2003); see also Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).
Petitioner first argues that "[t]he issue is not whether the jury would have believed Ajamu—that would be an impossible standard for Petitioner to meet—the issue is whether Ajamu should have been called as a witness." (Id.). This argument ignores Strickland's prejudice prong altogether. It is well-established that in addition to showing an error by trial counsel, Petitioner must also show that, were it not for the error, there would have been a substantial chance that the outcome would have been different. Richter, 562 U.S. at 112. Therefore, it is not enough, as Petitioner suggests, that "Ajamu should have been called as a witness."
Next, Petitioner argues that prejudice is evident from "the jury's multiple requests and inquiries regarding why they did not hear from Ajamu." (Doc. 20 at 3). The Court agrees that these requests indicate the jury likely drew a negative inference from Ajamu's failure to testify. The requests alone, however, do nothing to prove how the jury would have viewed Ajamu's testimony had he testified.
Indeed, given the strength of the government's evidence, it is unlikely that the jury would have changed its verdict if Ajamu would have testified. As the Magistrate Judge correctly pointed out, the government presented convincing objective evidence that contradicted Petitioner's theory of the case:
(Doc. 18 at 11-12).
Because Ajamu would have testified to the same version of events Petitioner presented at trial, his testimony would have been contradicted by the same objective evidence that discredited Petitioner's theory. Thus, even if Ajamu had testified, a jury would likely have discredited Ajamu's testimony, just as they rejected Petitioner's matching theory. It is, of course, possible that Ajamu's testimony could have convinced the jury to ignore the objective evidence and believe the Petitioner's story, but mere possibility cannot sustain a finding of prejudice. See Richter, 562 U.S. at 112 ("The likelihood of a different result must be substantial, not just conceivable."). Accordingly, given the weight of the objective evidence offered by the government that contradicts Ajamu's account, Petitioner has failed to show that calling Ajamu's testimony would have changed the outcome of the trial.
Accordingly,
