Muhammad v. Schriro et al

Filing 130

ORDER ADOPTING REPORT AND RECOMMENDATIONS 124 : IT IS FURTHER ORDERED DENYING AND DISMISSING Petitioner's Petition for Writ of Habeas Corpus (Doc. 1). IT IS FURTHER ORDERED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be GRANTED because Petitioner has made a substantial showing of the denial of a constitutional right. (See document for further details). Signed by Judge Stephen M McNamee on 11/7/11. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Riki Rashaad Muhammad,
Petitioner,

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v.

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Charles L. Ryan, et. al.,

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Respondents.

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No. CV 06-1036-PHX-SMM
ORDER

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Before the Court is Petitioner Riki Rashaad Muhammad’s (“Petitioner”) Petition for
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Writ of Habeas Corpus (the “Petition”) (Doc. 1). On April 23, 2010, the Ninth Circuit issued
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its mandate vacating this Court’s denial of Petitioner’s Petition and remanding “for an
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evidentiary hearing to address the merits of Petitioner’s ineffective assistance of counsel
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claim.” (Doc. 41; Doc. 41-1.) The Court “refer[red] this case to the magistrate judge for the
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purpose of conducting an evidentiary hearing and issuing a Report and Recommendation for
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this Court’s consideration.” (Doc. 42 (citing 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72).) On
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March 3, 2011 and March 4, 2011, the Magistrate Judge held the evidentiary hearing. (Doc.
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102, Doc. 104.)
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On July 7, 2011, the Magistrate Judge filed a Report and Recommendation
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recommending that the Court deny the Petition. (Doc. 124.) The Magistrate Judge
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recommended that Petitioner’s Petition be denied as meritless as Petitioner failed to
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demonstrate “that the State [C]ourt’s rejection of his claim of ineffective assistance of
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counsel was contrary to, or an unreasonable application of clearly established federal law.”

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(Doc. 124 at 26 (citing 28 U.S.C. § 2254).) The Magistrate Judge held that Petitioner failed

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to meet his burden to establish that the State Court unreasonably applied the Strickland v.

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Washington standard used in ineffective assistance of counsel claims, which requires

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Petitioner to establish both that counsel’s performance was deficient and that, but for

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counsel’s deficient performance, the proceedings would have had a different result. (Doc.

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124 (citing 466 U.S. 668, 687 (1984).)

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On July 11, 2011, this Court granted Petitioner’s unopposed Motion to Extend Time

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to File Objections to the Report and Recommendation (Doc. 125) and ordered Petitioner to

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file any objections to the Report and Recommendation by September 6, 2011 and

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Respondents to file any response to those objections by October 21, 2011. (Doc. 126.) On

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September 6, 2011, Petitioner timely filed his Objections to Magistrate Judge’s Report and

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Recommendation. (Doc. 127.) On October 20, 2011, Respondents timely filed their Response

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to Petitioner’s Objections. (Doc. 129.) After considering the Magistrate Judge’s Report and

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Recommendation and the arguments raised in Petitioner’s Objections thereto, the Court

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issues the following ruling.
STANDARD OF REVIEW

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When reviewing a Magistrate Judge’s Report and Recommendations, this Court must

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“make a de novo determination of those portions of the report . . . to which objection is

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made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Baxter

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v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch.

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Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate Judge’s

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recommendation relieves the Court of conducting de novo review of the Magistrate Judge’s

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factual findings; the Court then may decide the dispositive motion on the applicable law.

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Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell v. United States

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Dist. Court, 501 F.2d 196 (9th Cir. 1974)).

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DISCUSSION

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Petitioner first objects to the Magistrate Judge’s findings that certain testimony

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presented during the evidentiary hearing was irrelevant. (Doc. 124 at 22-23 n.8; Doc. 127 at

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18-22.) The Court denies Petitioner’s objections. First, the Magistrate Judge appropriately

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ruled that the circumstances surrounding Petitioner’s acceptance of a plea deal in an earlier

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case was irrelevant, as the pertinent issue here is the circumstances surrounding the alleged

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proposed plea deal which gave rise to Petitioner’s ineffective assistance of counsel

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allegations. (Doc. 124 at 23-24 n.8; Doc. 127 at 18-19.) Second, the Magistrate Judge

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properly ruled that Petitioner’s aunt’s testimony regarding his present prison behavior was

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irrelevant to his Petition, as Petitioner’s present prison conduct does not help determine

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whether he would have accepted the alleged plea offer in 1996. (Doc. 124 at 23-24 n.8; Doc.

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127 at 20.)

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Next, Petitioner objects to the Magistrate Judge’s findings regarding whether counsel

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was deficient. (Doc. 127 at 22-27.) The Court denies these objections. First, the Magistrate

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Judge properly recognized the presumption that counsel’s performance was competent and

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also properly deferred to the State Court’s decision. (Doc. 124 at 20 (citing Knowles v.

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Mirzayance, 556 U.S. 111; Cullen v. Pinholster, __ U.S. __, 131 S.Ct. 1388, 1403 (2011));

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Doc. 127 at 23-24.) Second, the Magistrate Judge appropriately held that the State Court did

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not unreasonably apply clearly established federal law in finding that Petitioner’s counsel

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was not deficient. (Doc. 124 at 20; Doc. 127 at 22-27.) Third, the Magistrate Judge did not

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err by suggesting possible reasons for the State Court’s finding, including that the State Court

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may have found that counsel was not deficient given the unclear status of Arizona law at the

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time of the alleged plea bargain advice and that Petitioner was charged with other offenses

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involving different kinds of intent. (Doc. 124 at 20-21; Doc. 127 at 22-27.) Fourth,

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Petitioner’s contention that Petitioner’s counsel provided no advice on the proposed plea

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bargains is contrary to both the evidence in this case and to Petitioner’s contention that he

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received erroneous advice. (Doc. 127 at 24-26.)

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Petitioner also objects to the Magistrate Judge’s findings regarding whether Petitioner

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was prejudiced by counsel. (Doc. 127 at 27-38.) The Court denies these objections. First, the

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Magistrate Judge properly found that prejudice requires demonstration of a “substantial”

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likelihood of a different result. (Doc. 124 at 21; Doc. 127 at 28-29.) The U.S. Supreme Court

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has stated that prejudice “requires a ‘substantial,’ not just ‘conceivable,’ likelihood of a

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different result.” Cullen v. Pinholster, __ U.S. __, 131 S.Ct. at 1403. Second, the Magistrate

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Judge made appropriate findings related to Petitioner’s statements and testimony about the

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likelihood that he would accept a plea bargain and the influence that counsel’s alleged

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statements had on him. (Doc. 124 at 23-24; Doc. 127 at 31-32, 37-38). The Magistrate Judge

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properly concluded that Petitioner’s denial of wrongdoing and Petitioner’s steadfast belief

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that his conduct toward his son was non-criminal does not support Petitioner’s contention

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that he would have accepted a plea offer. (Doc. 124 at 24.) The Magistrate Judge also

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reasonably concluded that Petitioner’s self-serving statements made six years after his

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conviction that he would have accepted a plea offer should be viewed with skepticism. (Doc.

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124 at 24.) Third, the Court will overrule Petitioner’s objection to the Magistrate Judge’s

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finding that lack of U.S. Supreme Court precedent precludes a finding that the State Court’s

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decision was contrary to or an unreasonable application of Supreme Court precedent. (Doc.

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124 at 25; Doc. 127 at 27-28.)
CONCLUSION

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The Court denies all of Petitioner’s objections to the Magistrate Judge’s Report and

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Recommendation, whether specifically discussed above or not. The Court agrees with the

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Magistrate Judge that Petitioner has not shown that the State Court’s rejection of his claim

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of ineffective assistance of counsel was contrary to, or an unreasonable application of clearly

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established federal law pursuant to 28 U.S.C. § 2254. Accordingly,

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IT IS HEREBY ORDERED that the Court adopts the Report and Recommendation
of the Magistrate Judge (Doc. 124).

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IT IS FURTHER ORDERED DENYING AND DISMISSING Petitioner’s Petition
for Writ of Habeas Corpus (Doc. 1).

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IT IS FURTHER ORDERED that a Certificate of Appealability and leave to

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proceed in forma pauperis on appeal be GRANTED because Petitioner has made a

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substantial showing of the denial of a constitutional right.

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DATED this 7th day of November, 2011.

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