Libman #327694 v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Matthew Garrett Libman,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-25-02363-PHX-GMS
ORDER
and
DENIAL OF CERTIFICATE OF
APPEALABILITY AND IN FORMA
PAUPERIS STATUS
Pending before the Court is the Report and Recommendation (“R&R”) of
Magistrate Judge John Z. Boyle. (Doc. 25). The R&R recommends that Petitioner’s
Petition for Writ of Habeas Corpus (Doc. 1) be dismissed with prejudice. The Magistrate
Judge advised the parties that they had fourteen days to file objections to the R&R. (R&R
at 18 citing United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). Petitioner
was granted an extension through May 20, 2026, within which to file specific written
objections. (Doc. 27). Petitioner filed objections on May 5, 2026 (Doc. 28) and
Respondents filed a reply on May 19, 2026 (Doc. 29).
The facts and procedural background of this case are set forth in detail in the
Magistrate Judge’s R&R and will not be restated herein. (R&R at 1-4)
In his objections, Petitioner first objects to the R&R’s conclusion that Ground 2(a),
which is a claim that his trial counsel was ineffective in failing to challenge allegedly false
evidence, lacked merit. (Doc. 28 at 1-7). As explained in the R&R, the merits of Ground
2(a) do not warrant relief regardless of any potential procedural default. The R&R
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addressed only the merits of Petitioner’s claim and finds it meritless. (R&R at 8-12).
Petitioner asserts that the R&R misapplied the appropriate legal test, because under
Hill v. Lockhart, 474 U.S. 52 59 (1985) the question is whether there was a reasonable
probability that but for counsel’s deficient advice and investigation, Petitioner would not
have pleaded guilty and would have gone to trial. But, as Hill further clarifies:
The determination whether the error prejudiced the defendant by
causing him to plead guilty rather than go to trial will depend on the
likelihood that discovery of the evidence would have led counsel to change
his recommendation as to the plea. This assessment, in turn, will depend in
large part on a prediction whether the evidence likely would have changed
the outcome of the trial.
Id. Thus, the Petitioner does not state the entire test. The Report’s observation that
the in-tact hyoid bone, and the correct amount of monthly support the Petitioner was
receiving from his father (which the Petitioner had to know anyway) does not create a
reasonable probability that Petitioner would have prevailed at trial in light of all of the other
evidence of suffocation, throat trauma, stabbing, and body movement that existed is far
from irrelevant to the inquiry. Petitioner offers no reason why an unbroken hyoid alone in
light of the other existing evidence would have created a reasonable probability that his
trial counsel would have changed the plea recommendation that he gave to Petitioner.
(That Petitioner now says that he would not have pleaded guilty is insufficient to meet his
burden in absence of proof that suggests a reasonable probability that his counsel would
have changed the recommendation). But as noted in the R&R, regardless of whether the
hyoid bone was intact, there was “extensive evidence of blunt force trauma to the victim’s
neck” and evidence that trash bags “had been sucked into the victim’s mouth” that also
indicated strangulation or suffocation. (R&R at 9-10). The totality of the evidence makes
it unlikely that Petitioner’s counsel would have changed the recommendation to Petitioner
about accepting a plea.
Petitioner next objects to the R&R’s rejection of his claim that his guilty plea was
involuntary because it was induced by the allegedly false evidence. But as to this claim
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the Report found that “[b]ecause [Libman] accepted his plea on the advice of counsel, he
is precluded from independently attacking the plea on the grounds of involuntariness and
lack of knowledge.” (R&R at 6-7). As explained in the R&R, because Ground 1 “is a
claim against the nature of the plea itself, not a claim against counsel,” it is not an
independent ground for habeas relief. (R&R at 7).
Petitioner next objects that the R&R “accepts the state court’s ‘strategy’ explanation
too readily” in concluding that his Claim 2(b), which is a claim that his trial counsel was
ineffective in failing to order a full psychiatric evaluation. (Doc. 28 at 8). Petitioner’s
argument goes to whether counsel’s failure to obtain a full mental health evaluation was
prejudicial. Neither the state courts nor the R&R were required to address the second
(prejudice) prong of Strickland with respect to this claim. See, LaGrand v. Stewart, 133
F.3d 1253, 1270 (9th Cir. 1998) (“[A] court is not required to address both components of
the Strickland test in deciding an ineffective assistance of counsel claim ‘if the defendant
makes an insufficient showing on one.’”) (quoting Strickland, 466 U.S. at 697).
Next, Petitioner objects “to the extent the [R&R]’s discussion [of Grounds 3, 4 and
5, pertaining to the alleged ineffectiveness of post-conviction counsel] could be read to
make those allegations irrelevant for every purpose.” (Doc. 28 at 9). The R&R makes no
findings with respect to those claims except that they “all argue ineffective assistance of
PCR counsel, which is not a ground for relief in a federal habeas proceeding.” (R&R at
16).
Petitioner also objects that the “actual-innocence discussion is too cramped”
because it does not consider “the old and new evidence together.” (Doc. 28 at 9). The
R&R, however, states that it is unlikely that the “new evidence would have proven that
[Libman had] acted in self-defense, again because of the rest of the evidence against him.”
(R&R at 18). Furthermore, the R&R notes that because Petitioner’s claims “fail on the
merits regardless of whether they are procedurally defaulted…even if [he] did qualify for
the actual-innocence gateway … his claims still fail.” Id.
Petitioner further requests an evidentiary hearing if the Court concludes that the
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current record is not yet sufficient to resolve the plea-stage prejudice issues. (Doc. 28 at
10). The Court finds that the record is sufficiently developed and that an evidentiary
hearing is not necessary to resolve this matter.
The Court agrees with the Magistrate Judge’s determinations. Petitioners’
objections do not refute the Magistrate Judge’s resulting conclusions that Petitioner’s
claims are without merit.
Thus, the Court accepts the recommended decision with the meaning of Rule 72(b),
Fed. R. Civ. P., and overrules Petitioner’s objections. See 28 U.S.C. § 636(b)(1) (stating
that the district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate”).
IT IS ORDERED that the Report and Recommendation of the Magistrate Judge
(Doc. 25) is accepted.
IT IS FURTHER ORDERED that the Clerk of the Court enter judgment denying
and dismissing Petitioner’s Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C.
§ 2254 (Doc. 1) with prejudice. The Clerk shall terminate this action.
Rule 11 of the Rules Governing Section 2254 Cases in the United States District
Courts requires the district court to “issue or a deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11, 28 U.S.C. foll. § 2254. Any
certificate of appealability should be denied because he has not made a substantial showing
of the denial of a constitutional right and because jurists of reason would not find the
Court’s rejection on constitutional grounds of Petitioner’s claims to be “debatable or
wrong.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Dated this 29th day of May, 2026.
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