United States District Court, D. Oregon
Michael H. Simon, United States District Judge.
States Magistrate Judge Stacie F. Beckerman issued Findings
and Recommendation in this case on March 28, 2019. ECF 67.
Magistrate Judge Beckerman recommended that the Court should
grant Petitioner's Amended Habeas Petition (ECF 29) on
the basis that trial counsel was ineffective for failing to
offer mitigation evidence at sentencing.
the Federal Magistrates Act (“Act”), the 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). If a party
files objections to a magistrate judge's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
those portions of a magistrate judge's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate judge's findings and recommendations if
objection is made, “but not otherwise”). Although
in the absence of objections no review is required, the Act
“does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate judge's
recommendations for “clear error on the face of the
timely filed an objection (ECF 75), to which Petitioner
responded (ECF 76), Respondent replied (ECF 79), and
Petitioner sur-replied (ECF 81). Respondent objects to the
portion of Magistrate Judge Beckerman's recommendation
finding that habeas relief is warranted on Petitioner's
claim 1C, alleging ineffective assistance of counsel.
Respondent raises three primary claims of error. First,
Respondent argues that the F&R erroneously fails to
address the first prong of Strickland v. Washington,
466 U.S. 669 (1984) under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). Second, Respondent
argues that, even if the F&R did consider both prongs of
Strickland under AEDPA, it failed to accord the PCR
court's decision deference under 28 U.S.C. § 2254.
And third, Respondent argues that the F&R failed to
evaluate trial counsel's performance under the
deferential standard required by Strickland.
Court turns first to the question of whether Judge Beckerman
correctly applied the “doubly” deferential
standard of review resulting from the combination of
Strickland and 28 U.S.C. § 2254. See
Harrington v. Richter, 562 U.S. 86, 105 (2011).
Federal habeas relief may not be granted for claims subject
to § 2254(d) unless it is shown that the earlier state
court's decision “was contrary to” federal
law then clearly established in the holdings of this Court, .
. . or that it “involved an unreasonable application
of” such law, § 2254(d)(1); or that it “was
based on an unreasonable determination of the facts” in
light of the record before the state court, §
Id. at 100 (internal citations omitted).
pivotal question is whether the state court's application
of the Strickland standard was unreasonable.”
Id. The PCR court engaged in a lengthy analysis of
the motivation of Judge James, the sentencing judge, in
imposing a 269-month sentence, referring repeatedly to the
specific facts of Petitioner's crime that the PCR court
believed would have stood out to Judge James and motivated
Judge James's decision. Resp. Ex. 128 at 33-36. The
Strickland analysis, however, is an objective one
and “should not depend on the idiosyncrasies of the
particular decisionmaker.” Strickland, 466
U.S. at 695; White v. Ryan, 895 F.3d 641, 670 (9th
Cir. 2018). The PCR court's decision was thus contrary to
clearly established federal law because it applied the
incorrect analysis under Strickland.
Judge Beckerman determined that the PCR court's
determination was contrary to Strickland, she
analyzed Petitioner's ineffective assistance claim
“independently without AEDPA deference.”
White, 895 F.3d at 671. “When a state
court's adjudication of a claim is dependent on an
antecedent unreasonable application of federal law, the
requirement set forth in § 2254(d)(1) is satisfied. A
federal court must then resolve the claim without the
deference AEDPA otherwise requires.” Panetti v.
Quarterman, 551 U.S. 930, 953 (2007). If a federal court
“determine[s] that ‘the requirements of AEDPA
have been met, [it] must also determine, applying a de
novo review standard, [that] there has been a
constitutional violation' before [it] may grant habeas
corpus relief.” Crace v. Herzog, 798 F.3d 840,
846 (9th Cir. 2015). Accordingly, Judge Beckerman's
analysis of Petitioner's constitutional claim was
appropriately conducted under a de novo standard of
review, which still involved an application of the
deferential standard of Strickland, but was stripped
of the doubly deferential standard under AEDPA.
Court has reviewed the remainder of the F&R and concludes
that Judge Beckerman properly analyzed Petitioner's
ineffective assistance of counsel claim under
Strickland. The failure to present any testimony,
affidavits, letters of support, documentary evidence, or even
a sentencing memorandum fell below an objective standard of
reasonableness. Trial counsel knew that Petitioner, then 49
years old, was facing a lengthy sentence-potentially up to 25
years- and that Petitioner had a compelling personal history
of law-abiding work, family support, and great personal loss.
Yet, trial counsel undertook no steps, other than obtaining
funding to prepare a three-page sentencing report that
largely repeated Petitioner's own statements, to pursue,
investigate, or present mitigation evidence in the sentencing
hearing. Despite affidavits from Petitioner's family
members that they were available and willing to testify,
trial counsel failed to contact them. Petitioner's
daughter stated in her affidavit that she called
Petitioner's trial counsel “up to three times a
week” offering her assistance, but trial counsel never
asked her to testify or provide any information or documents.
Trial counsel also never sought testimony from
Petitioner's cousin, who was present at sentencing and
willing to testify. Although Respondent argues that trial
counsel may have made a strategic choice in not pursuing a
certain line of investigation, the decision not to pursue any
investigation at all beyond the basic sentencing reports
falls below an acceptable standard of reasonableness. See
Wiggins v. Smith, 539 U.S. 510, 524 (2003);
White, 895 F.3d at 668-69; Clabourne v.
Lewis, 64 F.3d 1373, 1384 (9th Cir. 1995).
sentencing, the only evidence that, contrary to the
State's contention, Petitioner was not a long-time drug
dealer was Petitioner's own statements. Had
Petitioner's counsel presented evidence in the form of
testimony, documents, letters of support, or a sentencing
memorandum, there is a reasonable probability that a
sentencing judge might have sentenced Petitioner, a
first-time, non-violent offender, to a sentence lower than
the 269-month sentence that he is currently serving.
those portions of Magistrate Judge Beckerman's Findings
and Recommendation to which neither party has objected, this
Court follows the recommendation of the Advisory Committee
and reviews those matters for clear error on the face of the
record. No. such error is apparent.
Court ADOPTS Magistrate Judge
Beckerman's Findings and Recommendation, ECF 67.
Petitioner's 269-month sentence is vacated and a new
sentencing hearing must be held within 60 days from the date
of entry of judgment in this case. The Court declines to
issue a Certificate of Appealability on the claims that Judge
Beckerman rejected on the basis that Petitioner has not made
a substantial ...