Garcia v. Ryan

• Decision Date: 22 August 2018
• Docket Number: No. CIV 15-322-TUC-CKJ (JR),CIV 15-322-TUC-CKJ (JR)
• Parties: Manuel Luis Garcia, Petitioner, v. Charles L. Ryan, et al., Respondents.
• Court: U.S. District Court — District of Arizona

Manuel Luis Garcia, Petitioner, v. Charles L. Ryan, et al., Respondents.

No. CIV 15-322-TUC-CKJ (JR)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

August 22, 2018

ORDER

On October 23, 2017, Magistrate Judge Jacqueline M. Rateau issued a Report and Recommendation (Doc. 16) in which she recommended that the Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody filed by Manuel Luis Garcia ("Garcia") be denied. The magistrate judge advised the parties that written objections to the Report and Recommendation ("R & R") were to be filed within fourteen days of service of a copy of the Report and Recommendation.

Report and Recommendation

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Further, under 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." See also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).

Garcia summarizes his objections as follows:

First, the Court misconstrued the holding in certain cases that a finding of ineffective assistance can be made with no consideration of the issues presented if the evidence presumptively precludes any finding contrary to guilt. Second, the facts pertaining to Mr. Garcia's alibi were insufficiently considered, denying a fair and meaningful review of that issue. Third, the Court erred in totally ignoring the severance issue that could have changed the outcome as to some or all of charges.

Objection (Doc. 17), p. 2.

The Court adopts those portions of the Report and Recommendation to which Garcia has not specifically objected.

Habeas Review of Ineffective Assistance of Counsel Claims

A federal court is not to grant habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the state decision was (1) "contrary to, or an unreasonable application of, clearly established Federal law," as determined by the United States Supreme Court; or (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). See e.g. Harrington v. Richter, 562 U.S. 86, 97-8 (2011) ("determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning").

To establish an ineffective assistance of counsel claim, a movant must prove: (1) counsel's performance was deficient, and (2) movant was prejudiced by such deficiency. Strickland v. Washington, 466 U.S. 668, 687. As to the first prong, there is a strong presumption defense counsel's performance was sufficiently effective. Id. at 689. A movant must show counsel's performance was "outside the wide range of professionally competent assistance." Id. at 690. Counsel's representation must fall "below an objective standard of reasonableness." Stanley v. Cullen, 633 F.3d 852, 862 (9th Cir.2011). A court is to inquire "whether counsel's assistance was reasonable considering all the circumstances" at the time of the assistance. Strickland, 466 U.S. at 689.

As to the second prong, a habeas petitioner must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. A "reasonable probability" is a "probability sufficient to undermine confidence in the outcome." Id. at 695. Both prongs of the ineffective assistance test need not be addressed if the claim can be disposed of on one prong. Id. at 697. According to the Supreme Court:

The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

Id.

Magistrate Judge's Conclusion Regarding Lack of Prejudice Without Consideration of Whether the Decision Would Reasonably Likely Have Been Different Absent the Errors

Garcia argues that a court must conduct at least a brief review of each issue to follow the dictates of Strickland to determine how the errors, if true, would have affected a determination of prejudice. As previously stated, a determination of whether prejudice has been shown requires consideration of whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. The magistrate judge similarly summarized this prejudice standard. R & R (Doc. 16), p. 9. The magistrate judge discussed the strength of the government's case; in this discussion the magistrate judge discussed some of the claims raised by Garcia. In concluding prejudice had not been shown, the magistrate judge implicitly considered whether there was a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

The Court agrees with the magistrate judge that the government's case was strong. Further, the Court agrees with the magistrate judge that the result of the proceeding would not have been different even if Garcia's claims were determined to be true. Garcia asserts counsel was ineffective as follows:

1. Trial counsel failed to investigate and determine the exact date and time of the 2005 incident until shortly before trial, resulting in the diminishment of a valuable alibi defense as to that incident.

2. Trial counsel, having failed to timely and properly investigate Garcia's alibi, failed to take appropriate corrective measures, i.e., to move for continuance or to move to withdraw as counsel, having become a critical witness.

3. Trial counsel failed to move to sever the two separate and unrelated incidents which occurred seventeen months apart, and which had significant factual differences.

4. Trial counsel failed to preemptively object to questions concerning whether Garcia had ever carried a gun, knowing that such questions were likely to be asked of Garcia when he testified at trial.

5. Trial counsel failed, during cross-examination of Garcia, to object to questioning regarding whether Garcia had been on release from another felony at the time of the second incident, when such issue was relevant only to an allegation of committing an offense while on release, which was a question to be heard by the jury only after a guilty verdict.

6. Trial counsel failed to make a proper objection or move for mistrial when the prosecution commented on Garcia's right to silence. Trial counsel's incorrect objection to this line of questioning then opened the door for inappropriate questioning of Garcia as to confidential attorney-client communications.

7. Trial counsel, without reason or cause, intentionally interjected into Garcia's trial testimony that Garcia had been in prison, when such testimony was irrelevant to any issue and grossly prejudicial.

8. Trial counsel failed to adequately communicate with Garcia and provide case materials to him.

9. Trial counsel did not object to the invocation of the "rape shield law" in the case.

R & R, pp. 6-7.

As to Garcia's ineffective assistance of counsel claims, except for the alibi and severance issues, the post-conviction court stated:

As to the remainder of Defendant's issues with trial counsel's performance, this Court believes that the decisions made could be considered to discretionary, tactical decisions. For example, Defendant argues that counsel should have objected to the State's invocation of the rape shield law. Defendant has not shown a likelihood of success on the objection and regardless of whether Defendant was denied the opportunity to examine the victim as to her sexual history, the defense presented its own DNA expert, Melissa Beddow, who was allowed to discuss the presence of DNA on the 2007 victim's underwear that matched neither the Defendant nor the victim. This Court cannot conclude that Defendant was prejudiced by counsel's failure to object to the invocation of the rape shield law.

Response, Ex. LL (Doc. 12-8), p. 5. The court also states that the case "involved a two-week trial and upon review of the evidence as a whole, this Court concludes that trial counsel was not ineffective." Id. at 6. In adopting the post-conviction court's ruling, the Court of Appeals of Arizona stated:

The trial court found that, even assuming a counsel's performance had fallen below prevailing professional norms, Garcia had failed to raise a colorable claim for relief because he had not and could not establish that this allegedly deficient performance had been prejudicial, as required under the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See State v. Fillmore, 187 Ariz. 174, 180, 927 P.2d 1303, 1309 (App. 1996) ("[t]o avoid summary dismissal and achieve an evidentiary hearing on a post-conviction claim of ineffective assistance of counsel," petitioner must raise colorable claim on both parts of the Strickland test, deficient performance and resulting prejudice). The court's ruling and its comments during the status hearing reflect it carefully considered the record and applied the correct standards for determining whether Garcia had raised a claim that entitled him to

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