ORDER

DIANE J. HUMETEWA, District Judge.

This matter is before the Court on Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and the Report and Recommendation ("R&R") issued by United States Magistrate Judge Michelle H. Burns (Doc. 24). Petitioner raised four grounds for relief in the Petition. In the Reply, however, he withdrew Grounds One, Three and Four.1 (Doc. 23). Thus, as the Magistrate Judge did, this Court will only consider Petitioner's claim in Ground Two. Petitioner alleges in Ground Two that his trial counsel rendered ineffective assistance by failing to request a lesser-included offense jury instruction regarding the first of two child abuse counts charged against him. After a thorough analysis, the Magistrate Judge determined that the Arizona State courts' rejection of Petitioner's claim was not contrary to or an unreasonable application of the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the Magistrate Judge recommends the Petition be denied. (Doc. 24 at 10).

Petitioner filed an Objection to the R&R ("Objection") (Doc. 29) on February 24, 2014. Respondents then filed a Response to Petitioner's Objection (Doc. 35) on May 5, 2014. Petitioner subsequently filed a Reply to Respondents' Response (Doc. 36) on May 19, 2014. The R&R did not authorize a reply and Petitioner did not seek leave to file one. Out of an abundance of caution, however, the Court has considered it.

I. Background

The Magistrate Judge set forth a full procedural and factual background in the R&R. The Court need not repeat that information here. Moreover, Petitioner has not objected to any of the information in the background section. See Thomas v. Arn, 474 U.S. 140, 149 (1989) (The relevant provision of the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(C), "does not on its face require any review at all . . . of any issue that is not the subject of an objection.")

II. Analysis

Petitioner raises three issues in his Objection. First, Petitioner claims the Magistrate Judge erred by failing to address Respondents' assertion of a procedural bar to Plaintiff's claim and proceeding directly to the merits. Second, Petitioner claims the Magistrate Judge erred in determining that trial counsel's decision not to request a lesser-included offense instruction was a reasoned choice to pursue an "all or nothing" defense. Third, Petitioner claims the Magistrate Judge erred by failing to order an evidentiary hearing.

The district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."); U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (same). The judge "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)(C); Fed.R.Civ.P. 72(b)(3).

A. Procedural Bar

According to Petitioner, the Magistrate Judge erred by proceeding directly to the merits of his ineffective assistance claim rather than first addressing the procedural bar argument asserted by Respondents. Petitioner claims that Respondents' assertion of a procedural bar was so "grossly erroneous and improper" that it called into question the quality of Respondents' subsequent analysis of the merits of Petitioner's claim. (Doc. 29 at 5 n.1). Petitioner claims the Magistrate Judge "consciously and deliberately elected to evade any written analysis of the alleged procedural bar . . . ." (Doc. 29 at 5).

The Court finds no error in the Magistrate Judge's decision to proceed directly to the merits without addressing Respondents' asserted procedural bar. Addressing the merits of a habeas case without first considering a procedural bar is authorized by statute, which provides that "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(a)(2). In addition, case law establishes that a federal court may proceed to the merits without addressing an alleged procedural bar. See Flourney v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) ("While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits."); Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002) ("[A]ppeals courts are empowered to, and in some cases should, reach the merits of habeas petitions if they are. . . clearly not meritorious despite an asserted procedural bar.").

Moreover, the Magistrate Judge's decision to proceed directly to the merits in no way harmed Petitioner. Even if the Magistrate Judge had considered the procedural bar asserted by Respondents and found it to be "grossly incorrect" as Petitioner claims, the remedy was to reject the procedural bar and proceed to the merits. Although the Magistrate Judge did not expressly reject the procedural bar, the decision to proceed directly to the merits had the same effect as if the procedural bar had been rejected. Petitioner's objection on this basis is rejected.

B. Merits of Claim

Next, Petitioner argues the Magistrate Judge erroneously found that trial counsel's decision not to request a lesser-included offense instruction on one of the charged offenses was a reasoned decision based on an "all or nothing" strategy. Petitioner does not object to the Magistrate Judge's discussion of the relevant legal standards, including the strict standards to establish ineffective assistance under Strickland v. Washington, 466 U.S. 668 (1984) and the highly deferential standard for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). (See R&R at 5-8). Rather, Petitioner claims the Magistrate Judge "engaged in an improper evaluation of the state trial and appellate courts' treatment of Petitioner's ineffective assistance of counsel claim." The Court disagrees.

As noted above, Petitioner claims his trial attorney rendered ineffective assistance by failing to request a lesser-included offense jury instruction regarding the first of two child abuse charges. The first child abuse offense with which Petitioner was charged requires that the conduct be done intentionally or knowingly.2 See A.R.S. § 13-3623(A)(1). Petitioner contends his attorney should have requested a lesser-included instruction pursuant to A.R.S. § 13-3623(A)(2), which provides that if the offense is committed recklessly or negligently, the offense level is reduced and the potential punishment is less.

Under the AEDPA, a habeas corpus petition cannot be granted unless the State court decision was: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). The petitioner bears the burden of proving the standards for habeas relief have been met. Woodford v. Visciotti, 537 U.S. 19, 25 (2002). When applying this highly deferential standard of review, "the federal court should review the `last reasoned decision' by a state court . . . ." Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Accordingly, the Court has reviewed the Memorandum Decision issued by the Arizona Court of Appeals on May 2, 2012. (Doc. 12, Exh. J). That decision was issued after Petitioner filed a Petition for Review of the trial court's denial of his petition for post-conviction relief. (Doc. 12, Exh. H, I).

The controlling Supreme Court precedent on claims of ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a convicted defendant must show that counsel's performance was objectively deficient and counsel's deficient performance prejudiced the petitioner. Id. at 687. To be deficient, counsel's performance must fall "outside the wide range of professionally competent assistance." Id. at 690. When reviewing counsel's performance, the court engages a strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. Id. "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." Id. at 689. Review of counsel's performance is "extremely limited." Coleman v. Calderon, 150 F.3d 1105, 1113 (9th Cir. 1998), rev'd on other grounds, 525 U.S. 141 (1998). Acts or omissions that "might be considered sound trial strategy" do not constitute ineffective assistance of counsel. Strickland, 466 U.S. at 689.

In addition to showing counsel's deficient performance, a petitioner must establish that he suffered prejudice as a result of that deficient performance. Id. at 691-92. To show prejudice, a petitioner must demonstrate 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." Id. at 694; Hart v. Gomez, 174 F.3d 1067, 1069 (9th Cir. 1999); Ortiz v. Stewart, 149 F.3d 923, 934 (9th Cir. 1998). The prejudice component "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair." Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). It is not enough to merely show "that the errors had some conceivable effect on the outcome of the proceeding." Strickland, 466 U.S. at 693.

A habeas court may proceed directly to the prejudice prong without deciding whether counsel's performance was deficient. Id. at 697; Jackson v. Calderon, 211 F.3d 1148, 1155 n. 3 (9th Cir. 2000) (citing Strickland). The court, however, may not assume prejudice solely from counsel's allegedly deficient performance. Jackson, 211 F.3d at 1155.

In the context of a habeas petition, a petitioner must do more than demonstrate to the federal court that the State court applied Strickland incorrectly. Bell, 535 U.S. at 698-99. Rather, a petitioner must show the State court "applied Strickland to the facts of his case in an objectively unreasonable manner." Id. Because the standards created by Strickland and § 2254(d) are both "highly deferential," review under both standards in tandem is even more deferential. Harrington v. Richter, 131 S.Ct. 770, 788 (2011) (citations omitted). "[T]he question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

In its Memorandum Decision, the Arizona Court of Appeals rejected Petitioner's claim that the trial court failed to consider his ineffective assistance claim when it denied his petition for post-conviction relief. (Doc. 12, Exh. J at 5). The Court of Appeals stated:

granting relief. (Id.)3 Thus, the Court of Appeals affirmed the denial of Petitioner's claim because trial counsel had made a reasonable tactical decision not to request the lesser-included offense instruction.

Here, the Court finds Petitioner has failed to demonstrate that the Court of Appeals decision affirming the trial court was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or was based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(1), (2). Petitioner, for example, asserts in his Objection that "[i]f the failure to seek a lesser-included jury instruction was the result of a mistaken belief on the part of defense counsel, that failure cannot possibly constitute a legitimate tactical choice." (Doc. 29 at 7). Petitioner, however, presents no evidence to show counsel's decision was the result of a mistaken belief. Rather, the evidence in the record supports the conclusion reached by the State court, that it was a reasonable tactical decision. (Doc. 12, Exh. M at 52-112 (defense counsel's closing argument)).

Petitioner at no point in the trial presented any evidence or argument to indicate he acted negligently or recklessly.4 Petitioner's defense was that his daughter's death was the result of a horrible accident in which she climbed into the toy box to play and the lid closed, thereby trapping her and causing her to suffocate. He presented a starkly different set of facts from the State, which alleged Petitioner forced his daughter into the toy box and closed the lid. Petitioner maintained this defense throughout the trial, including closing argument. Petitioner never suggested he did anything, negligently, recklessly, or otherwise, to contribute to his daughter's death. The record supports the conclusion that the defense strategy was to present two unambiguously different scenarios for the jury. The record further supports that trial counsel acted consistently with that strategy and, as the State court concluded, made the reasonable decision not to request a lesser-included offense instruction, thus avoiding the risk of distorting the clear picture he was attempting to present.

Additionally, the timing and manner of defense counsel's decision to withdraw the instruction supports the State court's conclusion that it was a reasonable tactical decision. The record reflects that trial counsel withdrew the lesser included instruction after nearly all of the evidence in the trial had been presented. (Doc. 12, Exh. S at 146). This is not a situation where counsel failed to consider a lesser included instruction. Instead, the instruction had apparently previously been requested and counsel withdrew the request shortly before the close of evidence. (Doc. 12, Exh. S at 146). This suggests a strategic decision to pull the instruction based on the absence of any evidence to support it, and maintain the defense theory that the incident was purely an accident for which Petitioner bore no responsibility.

By failing to present evidence, in the form of affidavits or otherwise, to show his attorney's decision was not a reasonable tactical decision, Petitioner has failed to overcome the strong presumption under Strickland that counsel rendered adequate assistance and exercised reasonable professional judgment. Although Petitioner claims throughout his Objection that counsel's decision not to seek the lesser-included instruction was based on a "mistaken belief," that claim appears to be based on nothing more than speculation. Such speculation is insufficient to overcome Strickland's presumption. For these reasons, the Court concludes Petitioner has failed to show that the State court's decision denying his ineffective assistance claim satisfies the standards for habeas relief. Thus, Petitioner's objection that that Magistrate Judge erred in reaching this same conclusion is rejected.

C. Evidentiary Hearing

Lastly, Petitioner claims he is entitled to an evidentiary hearing. Petitioner did not, however, request an evidentiary hearing in his Petition, Memorandum, or Reply. (See Doc. 1 at 11; Doc. 2 at 37; Doc. 23). Consequently, the Magistrate Judge did not address the issue in the R&R. Because the issue is raised for the first time in Petitioner's Objection, the Court declines to consider it because it has not been fairly presented for adjudication. See Brown v. Roe, 279 F.2d 742, 744 (9th Cir. 2002) (holding that a district court is not required to consider claims raised for the first time in a party's objection to a magistrate judge's recommendation).

Even if the Court considered Petitioner's claim that he is entitled to an evidentiary hearing, it would be denied. The standard for holding an evidentiary hearing in a habeas case is set forth in 28 U.S.C. § 2254(e)(2), which states:

Evidentiary hearings, however, are not authorized for claims adjudicated on the merits in the State court. Cullen v. Pinholster, 131 S.Ct. 1388, 1400-1401 (2011). Such claims are subject to review under § 2254(d)(1), which asks whether a State court's decision on the claim was contrary to, or an unreasonable application of, clearly established federal law. Id. at 1398. "[R]eview under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." Id. Evidence introduced in federal court would, therefore, have no bearing on the Court's review under § 2254(d)(1). Id. at 1400. As a result, evidentiary hearings pursuant to 28 U.S.C. § 2254(e)(2) are inapplicable to claims decided on the merits in State court. Id. at 1401.

As the above analysis demonstrates, the State court adjudicated Petitioner's ineffective assistance claim on the merits. Applying § 2254(d)(1), this Court has determined that the State Court of Appeals decision affirming the trial court was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court law. Under Pinholster, the Court's analysis was limited to the record before the State court that decided the claim on the merits. The Court could not consider any newly presented evidence. Petitioner is, therefore, not entitled to an evidentiary hearing to present new evidence.

III. Conclusion

Based on the foregoing,

IT IS ORDERED that Magistrate Judge Burns' R&R (Doc. 24) is accepted and adopted. Petitioner's Objections (Doc. 31) are overruled.

IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) is denied and dismissed with prejudice.

IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, a Certificate of Appealability and leave to proceed in forma pauperis on appeal are denied because Petitioner has not made a substantial showing of the denial of a constitutional right.

IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly.