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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Darryl D. Johnson, 

Petitioner, 

v. 

Charles L. Ryan, et al., 

Respondents. 

 No. CV-17-04473-PHX-GMS 

ORDER 

 Pending before the Court is Magistrate Judge Eileen Willet’s Report and 

Recommendation on the merits of the petition (“R&R”) (Doc. 24). 

BACKGROUND

 Because no party has objected to the procedural background as set forth in the R&R, 

the Court adopts the background as an accurate account. (Doc. 24 at 1-2). Magistrate 

Judge Willett recommends that Johnson’s Petition be denied. (Doc. 24 at 7). Johnson 

objected to the conclusions of the R&R, arguing that Judge Willett incorrectly determined 

that the petition was meritless. (Doc. 25 at 3). But because the R&R correctly analyzed 

Bastian’s claims, his petition for habeas corpus will be denied. 

DISCUSSION

I. Legal Standard 

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). “[T]he district judge 

must review the magistrate judge’s findings and recommendations de novo if objection is 

made, but not otherwise. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 

2003) (en banc) (emphasis in original). District courts are not required to conduct “any 
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review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 

U.S. 140, 149 (1985). 

II. Analysis 

1. Grounds One and Two of the Petition Are Meritless 

The writ of habeas corpus affords relief to persons in custody in violation of the 

Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241(c)(3). Review of 

Petitions for Habeas Corpus is governed by the Antiterrorism and Effective Death Penalty 

Act of 1996 (“AEDPA”). 28 U.S.C. § 2244 et seq. 

When reviewing habeas claims previously raised in state court, a federal court may 

not grant habeas relief unless the state’s adjudication of the claims resulted in a decision 

that was contrary to, or involved an unreasonable application of, clearly established federal 

law as determined by the Supreme Court, or resulted in a decision that was based on an 

unreasonable determination of the facts in light of the evidence presented in the state court 

proceedings. 28 U.S.C. § 2254(d)(1); see Robertson v. Pichon, 849 F.3d 1173, 1182 (9th 

Cir. 2017). “This is a difficult to meet and highly deferential standard for evaluating statecourt rulings, which demands that state-court decisions be given the benefit of the doubt.” 

Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal citations and quotations omitted). 

Review of a prior state court decision under 2254(d)(1) by a federal court is limited to the 

record “before the state court that adjudicated the claim on the merits.” Id. “When 

reviewing state criminal convictions on collateral review, federal judges are required to 

afford state courts due respect by overturning their decisions only when there could be no 

reasonable dispute that they were wrong.” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). 

The parties agree that the claims that Johnson asserts in his petition for habeas 

corpus are not procedurally defaulted or otherwise barred. So the Court will analyze 

whether Johnson has met the high threshold for relief under AEDPA. 

Johnson asserts that his trial counsel was ineffective because he failed to “properly 

explain the plea offer to Petitioner or show the plea offer to Petitioner made by the state 

prosecutor which caused the Petitioner not to act or accept the plea offer which he would 
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have accepted. . .” (Doc. 1 at 6). Johnson previously made this argument in his first postconviction relief proceeding, where the post-conviction relief trial court (“PCR trial court”) 

held an evidentiary hearing. (Doc. 23-1, 23-2). The trial court heard testimony from 

Johnson, his trial attorney, and the state prosecutor, and decided that Johnson’s testimony 

was not credible. Ground Two of Johnson’s Petition challenges this credibility 

determination. The post-conviction relief trial court dismissed the proceeding, and the 

Arizona Court of Appeals affirmed in an unexplained decision (Doc. 11-1 at 17-22). When 

evaluating claims previously brought in state courts under AEDPA, courts “look through” 

to the last-reasoned opinion. See Ylst v. Nunnemaker, 501 U.S. 797, 806 (1991). So the 

analysis here will focus on the state PCR trial court’s decision. 

To succeed on an ineffective assistance of counsel claim under Strickland, a 

petitioner must show (1) that his counsel’s representation fell below an objective standard 

of reasonableness and (2) that the failure prejudiced him. Strickland v. Washington, 466 

U.S. 668, 687 (1984). “If a plea bargain has been offered, a defendant has the right to 

effective assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 132 

S.Ct. 1376, 1387 (2012). Failing to communicate a plea offer to a client is deficient 

performance under Strickland as a matter of law. United States v. Blaylock, 20 F.3d 1458, 

1466 (9th Cir. 1994). To succeed on his petition, Johnson must either demonstrate that the 

PCR trial court made an unreasonable determination of the facts in light of the record or 

unreasonably applied Strickland. See Robertson, 849 F.3d at 1182. 

In evaluating the credibility of the witnesses, this Court may not “re-determine 

credibility of witnesses whose demeanor has been observed by the state trial court.” Aiken 

v. Blodgett, 921 F.2d 214, 217 (9th Cir. 1990). And “[w]here there are two permissible 

views of the evidence, a fact finder’s choice cannot be clearly erroneous.” Cooper v. 

Brown, 510 F.3d 870, 919 (9th Cir. 2007). 

At the PCR trial hearing, Johnson’s trial counsel testified that he informed Johnson 

of the plea bargain and its terms, which would have allowed Johnson to serve a prison 

sentence of 2.5-3 years. (Doc. 23-1 at 122-123). Johnson’s trial counsel was explicit about 
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the risk of declining the plea bargain, he testified that he told Johnson “it’s not going to get 

any better. . . if we go to trial, you’re going to be found guilty.” (Id. at 148). He further 

testified that Johnson told him, “I prayed to God, and God told me not to take [the plea 

deal],” and that Johnson would “rather go to trial because that would be consistent with 

what my prayers—answers to my prayers.” (Id.). In its decision, the PCR trial court found 

the testimony of Johnson’s trial counsel credible, and Johnson’s testimony not credible. 

The PCR trial court reasoned that Johnson’s testimony had many inconsistencies with his 

filings and was generally not believable. (Doc. 11 Ex. C at 5, 6). This is not an 

unreasonable determination of the facts considering the evidence presented to the PCR trial 

court. 

Given the PCR trial court’s factual determinations, the decision did not involve an 

unreasonable application of Strickland. These determined facts demonstrate that Johnson’s 

trial counsel informed him of the plea deal and urged him to take it. (Doc. 23-1 at 148). 

Indeed, the factual determinations show that Johnson explicitly chose to decline the plea 

deal after it was explained to him. While failing to explain or notify a defendant of a plea 

deal may constitute deficient performance under Strickland, the record demonstrates that 

Johnson was informed of the plea deal and the risk of declining it. 

CONCLUSION 

Because the R&R correctly determined that Johnson’s claims are meritless, this 

Court will accept the R&R and deny Johnson’s Petition. And because the Court finds that 

Johnson’s Petition is meritless, his request for release is denied as moot. 

IT IS THEREFORE ORDERED accepting Magistrate Judge Willett’s R&R 

(Doc. 24). 

IT IS FURTHER ORDERED that the Petitioner’s Petition for the Writ of Habeas 

Corpus (Doc. 1) is DENIED AND DISMISSED WITH PREJUDICE. 

IT IS FURTHER ORDERED that Petitioner’s Motion for Release (Doc. 14) is 

DENIED AS MOOT. 
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IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 

Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a 

certificate of appealability because reasonable jurists would not find the Court’s procedural 

ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action 

and enter judgment accordingly. 

 Dated this 20th day of December, 2018.