Martin v. Shinn

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Justin L. Martin, No. CV-18-03005-PHX-RCC 10 Petitioner, ORDER 11 v. 12 Charles L Ryan, et al., 13 Respondents. — 14 — 15 On March 3, 2021, Magistrate Judge Jacqueline M. Rateau issued a Report and 16 Recommendation (“R&R”) in which she recommended the Court deny Petitioner Justin 17 L. Martin’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 . (Doc. 1).1 18 (Doc. 24.) Judge Rateau notified the parties they had fourteen days from the date of the 19 R&R to file objections and an additional fourteen days to file a response. (Id. at 10.) 20 Plaintiff filed an objection (Doc. 26), and Defendant a response (Doc. 28). The Court 21 adopts the Magistrate Judge’s R&R and dismisses the § 2254 habeas petition. — 22 — I. Standard of Review: Magistrate’s R&R — 23 — The standard of review of a magistrate judge’s R&R is dependent upon whether or — 24 — not a party objects: where there is no objection to a magistrate’s factual or legal — 25 — determinations, the district court need not review the decision “under a de novo or any — 26 — other standard.” Thomas v. Arn, 474 U.S. 140, 150 (1985). However, when a party — 27 — 28 1 Citations refer to the docket and page numbers generated by the Court’s CM/ECF system. 1 objects, the district court must “determine de novo any part of the magistrate judge’s 2 disposition that has been properly objected to. The district judge may accept, reject, or 3 modify the recommended disposition; receive further evidence; or return the matter to the 4 magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 5 636(b)(1). 6 II. Martin’s Objections 7 a. General Objections 8 First, Martin states he “objects to all adverse rulings in the Report and 9 Recommendation” and generally asserts that his objection stems from the argument 10 contained in his petition. (Doc. 26 at 1.) This is an unacceptable basis for objection, 11 requiring the Court to formulate Petitioner’s arguments for him and search throughout 12 various filings to find his previous arguments. Fed. R. Civ. P. 72(b) (objections must be 13 specific); see Indep. Towers of Wash. v. Wash., 350 F.3d 925 , 929 (9th Cir. 2003) 14 (“Judges are not like pigs, hunting for truffles buried in briefs.”) (quoting United States v. 15 Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)). The Court, therefore, will only address 16 arguments that specifically describe why the Magistrate Judge’s conclusions were 17 incorrect. 18 b. Ground One 19 Martin’s first specific objection to the Magistrate’s R&R claims that the 20 Magistrate did not address Martin’s allegations that his counsel failed to: (1) object when 21 the prosecutor “solicited false testimony from Det. Frank Hockstra,” who stated Darrel 22 “Thompson[’]s story had never changed”; (2) cross-examine Thompson and Det. 23 Hockstra about the inconsistency; (3) object to the prosecutor’s closing argument stating 24 testimony had been consistent; and (4) ensure that the inconsistent statements be 25 submitted to the jury. (Doc. 26 at 3–5.) Martin believes that because the false testimony 26 of Thompson was not apparent, this was not a simple issue of credibility as the 27 Magistrate Judge believed, but rather a demonstration of counsel’s ineffectiveness. (Id.) 28 Martin claims these failures show his counsel was ineffective under Strickland standards. 1 (Id. at 7.) Furthermore, Martin argues he suffered prejudice. — 2 — To raise a colorable claim of ineffective assistance of counsel, a petitioner must — 3 — demonstrate both that counsel’s performance was deficient, and that petitioner was 4 prejudiced because of counsel’s deficient actions. Strickland v. Washington, 466 U.S. 5 668, 686-90, (1984). There is “a strong presumption that counsel’s conduct falls within 6 the wide range of reasonable professional assistance[.]” Carrera v. Ayers, 670 F.3d 938 , 7 943 (9th Cir. 2011) (quoting Strickland, 466 U.S. at 689). Moreover, ineffective 8 assistance of counsel claims in a habeas petition are “doubly” deferential. Harrington v. 9 Richter, 562 U.S. 86, 105 (2011). “When §2254(d) applies, the question is not whether 10 counsel’s actions were reasonable. The question is whether there is any reasonable 11 argument that counsel satisfied Strickland’s deferential standard.” Id. Under this 12 deference, prejudice requires a petitioner demonstrate that there is “a reasonable 13 probability that, but for counsel’s unprofessional errors, the result of the proceeding 14 would have been different.” Id. at 104. “Failure to satisfy either prong of the Strickland 15 test obviates the need to consider the other.” Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 16 2002). 17 The Magistrate Judge noted counsel adequately pointed out Thompson’s 18 inconsistent statements by “directly cross-examin[ing] Thompson about lying during his 19 initial police interview and Thompson admitted that he had lied about not being involved 20 or having any knowledge of the incidences giving rise to the charges against Martin.” 21 (Doc. 24 at 7.) She continued that “Martin’s counsel thus made it clear to the jury that 22 Thompson had lied during the investigation and that his initial statements to police did 23 not implicate either Thompson or Martin in the charged crimes.” (Id.) Because the 24 inconsistency was clear, the Magistrate found that the credibility of the testimony was for 25 a jury to decide. (Id. at 8.) So, counsel’s representation was not deficient because 26 “counsel effectively represented Martin in relation to the testimony of Thompson . . . .” 27 (Id.) Therefore, the denial by the Arizona Court of Appeals was reasonable. (Id.) 28 The Court cannot find the Magistrate Judge’s decision was erroneous. Martin is 1 entitled to effective counsel, which requires reasonable representation, not perfection. See 2 Yarborough v. Gentry, 540 U.S. 1, 8 (2003); United States v. Barbour, 150 F. Supp. 2d 3 369, 384 (N.D.N.Y. 2001) (“A defendant is not entitled to representation by a modern4 day Clarence Darrow - mere competence will suffice.”) (citation and quotation marks 5 omitted)). Counsel’s ability to draw out the inconsistencies of Thompson’s testimony was 6 reasonable, despite Martin’s desire to have these inconsistencies presented differently. 7 Because the Court finds counsel was not ineffective, it need not address prejudice. 8 c. Ground Two 9 Martin then states the Magistrate did not address his argument that counsel failed 10 to object to the false testimony of Darrel Thompson. He chooses to incorporate his prior 11 arguments rather than reassert them in his objection. As stated previously, this is non12 specific, circumvents the Court’s established page limits for objections, and requires the 13 Court to peruse the docket and locate the arguments Martin to which is referring. See 14 Fed. R. Civ. P. 72(b). Moreover, the contention is inaccurate. The Magistrate Judge stated 15 that counsel had cross-examined Thompson and pointed out that his recollections were 16 contradictory, and that “Thompson agreed with counsel that he had ‘boldface lied’ to him 17 during their pretrial interview.” (Doc. 24 at 7.) Although the Magistrate did not 18 specifically state this conclusion was in response to Ground Two, Martin’s argument was 19 properly addressed in the R&R when the Magistrate found the Arizona Court of Appeals’ 20 determination that counsel’s representation was not deficient was neither an unreasonable 21 determination of the facts, nor contrary to federal law. For the same reasons stated 22 previously, the Court agrees. 23 Martin asks this Court to acknowledge the prosecutor’s errors, including eliciting 24 and repeating false testimony alleging Thompson’s statements were consistent. (Doc. 26 25 at 5.) However, these concessions do not prove Martin received ineffective assistance. 26 Martin’s counsel highlighted the inconsistent statement even eliciting Thompson’s 27 admission he blatantly lied, which let the jury decide whether Thompson’s assertions 28 were credible. This was not ineffective. 1 d. Ground Three 2 Martin’s third ineffective assistance of counsel claim alleges counsel should have 3 presented financial information to show Martin did not need to obtain money through 4 crime. (Doc. 26 at 10.) First, Martin claims the Magistrate Judge made an error in the 5 “amount paid to Mr. Martin by Iris Larson”; it was $1,450.00 rather than the stated 6 $600.00 (Doc. 24 at 8.) In addition, counsel should have produced evidence that Martin 7 received public assistance benefits. (Doc. 26 at 10.) 8 The Magistrate Judge found Martin’s allegations were conclusory and Martin 9 “offer[ed] no evidence that his counsel did not consider or conduct such an 10 investigation.” (Doc. 24 at 8.) The Judge directly addressed Martins concerns, stating: — 11 — It was certainly within the wide range of reasonableness for Martin’s 12 counsel to elect not to present evidence that Martin was on public assistance in an attempt to rebut the State’s claim that he needed money. 13 Reasonable jurors could readily conclude that by seeking public assistance, 14 Martin was in fact not earning enough to cover his expenses. The state court’s denial of this claim was therefore not unreasonable. — 15 — (Id. at 8–9.) Regardless of whether Martin’s income from Larson was $600.00 or — 16 — $1,450.00, Martin has not shown how the Magistrate’s conclusions are incorrect. With — 17 — the proper deference given to counsel, there need only be a reasonable argument that — 18 — counsel exhibited adequate representation. See Harrington, 562 U.S. at 105 . The — 19 — Magistrate’s conclusion provides a reasonable likelihood the choice not to present — 20 — financial evidence was trial strategy. The Arizona Court of Appeals denial was not, — 21 — therefore, in error. — 22 — e. Ground Four — 23 — Here Martin claims that trial counsel should have submitted into evidence a receipt — 24 — that would have placed him ten miles from where the first of six robberies occurred, — 25 — despite his cell phone placing him in the vicinity. (Doc. 26 at 11.) He states that if this — 26 — evidence had been presented “it could have painted a different picture for the jury.” (Id. — 27 — at 12.) This does not demonstrate prejudice. Martin was not convicted of Counts 1–5, and — 28 — any conclusion that one receipt relevant to the first robbery would have prevented his 2|| conviction of another is purely speculative. See Strickland, 466 U.S. at 694 (ineffective assistance requires showing outcome would have changed absent counsel’s deficient 4|| conduct). 5 Cumulative Error 6 Martin argues for the first time in his objection that the cumulative effect of 7 || counsel’s errors prejudiced him. (Doc. 26 at 14.) In this circuit, a district judge need not 8 || conduct a de novo review of arguments never raised before the magistrate judge. United 9|| States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). Moreover, because the Court does 10 || not find counsel’s representation as to his individual claims deficient, the Court cannot 11 || determine that as a whole of counsel representation was ineffective. 12|| JI. Certificate of Appealability 13 The Court declines to issue a certificate of appealability because reasonable jurists 14|| would not find the Court’s decision debatable. See Slack v. McDaniel, 529 U.S. 473 , 484 15} (2000). 16 IT IS ORDERED Magistrate Judge Jacqueline M. Rateau’s Report and || Recommendation is ADOPTED. (Doc. 24.) Petitioner Justin L. Martin’s Petition for Writ 18 || of Habeas Corpus Pursuant to 28 U.S.C. § 2254 is DENIED and this matter is DISMISSED with prejudice (Doc. 1). The Clerk of Court shall docket accordingly and 20 || close the case file in this matter. — 21 — 22 Dated this 8th day of April, 2021. — 23 — 24 4] 25 Lb pL tK~ Cub 26 Honorable Raner ©. Collins senior United States District Judge — 28 — -6-