Opinion
CV-22-00892-PHX-ROS (ESW)
03-17-2023
Daniel Campos, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge.
Pending before the Court is Daniel Campos' (“Petitioner”) “Petition under 28 U.S.C. § 2254 for a Writ of Habeas Corpus” (the “Petition”) (Doc. 1). Respondents have filed an Answer (Doc. 11), to which Petitioner has replied (Doc. 15). For the reasons explained herein, it is recommended that the Court deny habeas relief.
I. BACKGROUND
The Petition challenges criminal judgments entered against Petitioner in the Superior Court of Arizona in two separate cases: Case No. CR2017-151875-001 (the “2017 Case”) and CR2019-124969-001 (the “2019 Case”).
In April 2018, Petitioner entered into a plea agreement in the 2017 Case in which Petitioner agreed to plead guilty to failing to register as a sex offender, a class 4 felony. (Doc. 11-1 at 7). The trial court accepted Petitioner's guilty plea. (Id. at 12).
On July 17, 2018, the trial court sentenced Petitioner to a ten-year term of supervised probation. (Id. at 22-25). On January 31, 2019, Petitioner's probation officer filed a petition to revoke probation for Petitioner's failure to comply with numerous terms of his probation. (Id. at 27-30). At the violation hearing on February 11, 2019, Petitioner admitted to violating the probation term imposing a curfew. (Id. at 32). The Court reinstated supervised probation for a ten-year term to begin on February 11, 2019 with a revised expiration date of July 25, 2028. (Id. at 34-37).
On March 26, 2019, Petitioner filed a Notice of Post-Conviction Relief (“PCR”) and PCR Petition. (Id. at 39-41, 43-46). The trial court appointed Petitioner counsel. (Id. at 49). On June 18, 2019, Petitioner's counsel filed a notice stating that counsel could not find any colorable claims to raise in post-conviction proceedings. (Id. at 52-54). The trial court ordered that counsel must remain in an advisory capacity for Petitioner until resolution of the PCR proceeding. (Id. at 56-57). In a minute entry filed on September 20, 2019, the trial court dismissed the PCR proceeding because Petitioner had not filed a PCR Petition and the deadline to do so had passed. (Id. at 59).
On May 24, 2019, Petitioner's probation officer filed another petition to revoke probation in the 2017 Case. (Id. at 61-64). On July 16, 2019, the State of Arizona filed an information in the 2019 Case charging Petitioner with (i) one count of interference with monitoring devices, a class 4 felony and (ii) escape in the second degree, a class 5 felony. (Id. at 66-67). Pursuant to a plea agreement, Petitioner pled guilty to interference with monitoring devices. (Id. at 76-77). The trial court accepted the plea and sentenced Petitioner to a three-year prison term in the 2019 Case. (Id. at 77, 88). The trial court also revoked Petitioner's probation in the 2017 Case and sentenced Petitioner to a prison term of 3.75 years. (Id. at 90).
On October 18, 2019, Petitioner filed a PCR Notice in both the 2017 and 2019 Cases. (Id. at 92-94). The trial court appointed PCR counsel. (Id. at 96-98). On February 10, 2020, counsel filed a notice stating that no colorable claims could be found. (Id. at 100-02). Petitioner thereafter filed a pro se PCR Petition. (Doc. 11-2 at 8-40). Following briefing, on May 18, 2021, the trial court denied relief. (Id. at 69-77). Petitioner sought further review by the Arizona Court of Appeals. (Id. at 79-119).
In a decision filed on March 29, 2022, the Arizona Court of Appeals granted Petitioner's request for review and granted partial relief by vacating Petitioner's sentence in the 2017 Case and remanding the matter to the trial court for resentencing. (Id. at 141).
On May 24, 2022, Petitioner filed the Petition seeking federal habeas relief (Doc. 1). The Court screened the Petition and required Respondents to file an Answer. (Doc. 5). Respondents filed their Answer (Doc. 11) on July 20, 2022 and notified the Court of supplemental authority on August 5, 2022 (Doc. 12). Petitioner filed a Reply (Doc. 15) on October 24, 2022. As explained below, the undersigned concurs with Respondents that Petitioner has not presented a meritorious habeas claim.
II. DISCUSSION
A. Respondents Raise an Affirmative Defense as to Petitioner's 2017 Case Only
The Petition contains one claim for relief that is directed to both Petitioner's 2017 and 2019 Cases. Respondents do not assert that the claim is unexhausted or procedurally defaulted as to either case. Respondents concede that Petitioner's habeas claim should be reviewed on the merits as to Petitioner's 2019 case, but Respondents assert that the claim is time-barred as to Petitioner's 2017 case. (Doc. 11 at 9-13). Although a procedural issue should ordinarily be resolved first, “judicial economy sometimes dictates reaching the merits [of a claim] if the merits are easily resolvable against a petitioner while the procedural bar issues are complicated.” Barrett v. Acevedo, 169 F.3d 1155, 1162 (8th Cir. 1999) (internal citations omitted); 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”); Barrett, 169 F.3d at 1162 (seeing no need to “belabor” the “difficult question” of a procedural bar when the claim was easily resolvable against the petitioner on the merits); Miller v. Mullin, 354 F.3d 1288, 1297 (10th Cir. 2004) (in the interest of judicial economy, choosing not to address issues of whether habeas claims were procedurally barred “because the case may be more easily and succinctly affirmed on the merits”).
The Anti-Terrorism and Effective Death Penalty Act of 1996 provides a one-year limitations period for a state prisoner to file a federal habeas petition. 28 U.S.C. § 2244(d)(1).
Here, the undersigned finds that it is more efficient to resolve Petitioner's habeas claim on the merits as to both the 2017 and 2019 Cases. See Chambers v. Bowersox, 157 F.3d 560, 564 n.4 (8th Cir. 1998) (“The simplest way to decide a case is often the best.”).
B. Legal Standards Applying to Merits Review of Habeas Claims
In reviewing the merits of a habeas petitioner's claims, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires federal courts to defer to the last reasoned state court decision. Woods v. Sinclair, 764 F.3d 1109, 1120 (9th Cir. 2014); Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). To be entitled to relief, a state prisoner must show that the state court's adjudication of his or her claims either:
1. resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2. resulted in a decision that was 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)(1), (2); see also, e.g., Woods, 764 F.3d at 1120; Parker v. Matthews, 132 S.Ct. 2148, 2151 (2010); Harrington v. Richter, 562 U.S. 86, 99 (2011).
As to relief under 28 U.S.C. § 2254(d)(1), “clearly established federal law” refers to the holdings of the U.S. Supreme Court's decisions applicable at the time of the relevant state court decision. Carey v. Musladin, 549 U.S. 70, 74 (2006); Thaler v. Haynes, 559 U.S. 43, 47 (2010). A state court decision is “contrary to” such clearly established federal law if the state court (i) “applies a rule that contradicts the governing law set forth in [U.S. Supreme Court] cases” or (ii) “confronts a set of facts that are materially indistinguishable from a decision of the [U.S. Supreme Court] and nevertheless arrives at a result different from [U.S. Supreme Court] precedent.” Price v. Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
As to relief under 28 U.S.C. § 2254(d)(2), factual determinations by state courts are presumed correct unless the petitioner can show by clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1); see also Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011). A state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (as amended) (internal quotation marks and citation omitted).
C. Petitioner's Habeas Claim is without Merit
Petitioner's habeas claim alleges that Petitioner's Fourteenth Amendment due process and equal protection rights “were violated in his of-right state post-conviction proceeding where no Anders or comparable safeguard was followed denying him the right to counsel.” (Doc. 1 at 16) (italics added).
In Anders v. California, 386 U.S. 738 (1967), the United States Supreme Court invalidated the State of California's policy of allowing court-appointed appellate attorneys to withdraw without explaining that there were no meritorious claims and without requiring an independent review by the appellate court. The Supreme Court reasoned that, when an indigent defendant is constitutionally entitled to the assistance of counsel, the Fourteenth Amendment guarantees that the defendant does not receive less thorough appellate review than nonindigent defendants who can afford private counsel. Id. at 741. Therefore, when a court-appointed appellate attorney finds a direct appeal frivolous, counsel should
so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished [to] the indigent and time allowed [for] him to raise any points that he chooses; the court-not counsel-then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.Id. at 744. In a subsequent case, the Supreme Court stated that the specific procedures outlined in Anders are “merely one method of satisfying the requirements of the Constitution for indigent criminal appeals.” Smith v. Robbins, 528 U.S. 259, 276 (2000). States may establish procedures that diverge from the Anders procedure, as the “Constitution erects no barrier to them doing so,” and those procedures will not violate the Constitution if they provide “a criminal appellant pursuing a first appeal as of right the minimum safeguards necessary to make the appeal adequate and effective.” Id. (quotation marks, brackets, and quotation omitted). “A State's procedure provides such review so long as it reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal.” Id. at 276-77.
The Supreme Court further explained that
any view of the procedure described in Anders' last section that converted it from a suggestion into a straitjacket would contravene this Court's established practice of allowing the States wide discretion, subject to the minimum requirements of the Fourteenth Amendment, to experiment with solutions to difficult policy problems. The Court, because of its status as a court-particularly a court in a federal system-avoids imposing a single solution on the States from the top down and instead evaluates state procedures one at a time, while leaving “the more challenging task of crafting appropriate procedures . . . to the laboratory of the States . . . in the first instance[.]”528 U.S. 259, 260-61 (internal citations omitted).
The portion of this quotation stating the “procedure described in Anders' last section” refers to the excerpt from Anders, 386 U.S. at 744, that is quoted above.
Under Arizona law, a defendant in a non-capital case who pleads guilty waives his or her right to a direct appeal. See ARIZ. REV. STAT. § 13-4033(B). A PLEA-CONVICTED DEFENDANT, HOWEVER, IS ENTITLED TO AN OF-RIGHT PCR PROCEEDING UNDER RULE 33 OF THE ARIZONA RULES OF CRIMINAL PROCEDURE. Indigent defendants are appointed counsel after filing an of- right PCR notice. If appointed PCR counsel determines that there are no colorable claims, counsel's role is limited to acting as advisory counsel until the trial court's final determination in the PCR proceeding. Ariz. R. Crim. P. 33.6(e); former Ariz. R. Crim. P. 32.4(d)(2)(A).
Prior to January 1, 2020, Rule 32 of the Arizona Rules of Procedure applied to a defendant's collateral review proceeding regardless of whether the defendant was convicted at trial or pled guilty or no contest. This procedure was changed in amendments effective January 1, 2020. Rule 32 now only governs collateral review proceedings for defendants who were convicted at trial. Collateral review proceedings for defendants who pled guilty or no contest are now governed by Rule 33.
In his Petition, Petitioner asserts that the “Superior Court did not follow any Anders or comparable safeguard to ensure Petitioner's right to counsel in his first of-right Rule 33 proceeding was protected.” (Doc. 1 at 17) (italics added). Petitioner further contends that “Arizona's procedures governing PCR proceedings for pleading defendants in their first of-right Rule 33 proceeding and the provision of counsel therein leads to the constructive denial of counsel altogether and does not comport with the 14th Amendment nor Anders v. California, 386 U.S. 738 (1967) as applied by Pennsylvania v. Finley, 481 U.S. 551, 55455 (1987).” (Id. at 18) (italics added).
The last state court decision reviewing Petitioner's habeas claim is the March 29, 2022 Arizona Court of Appeals' decision. (Doc. 11-2 at 133-41). The Court of Appeals stated
Finally, we reject [Petitioner's] contention that the superior court violated Anders, given that defendants are not entitled to Anders-type reviews in Arizona PCR proceedings. State v. Chavez, 243 Ariz. 313, 317, ¶ 12 (App. 2017). PCR counsel was thus not required to file an Anders brief in [Petitioner's] case, nor was [Petitioner] “entitled to a review of the record by the superior court for arguable issues.” Chavez, 243 Ariz. at 314, ¶ 1.(Id. at 141, ¶ 20). The Arizona Court of Appeals case cited above, State v. Chavez, rejected an Anders claim brought by a pleading defendant and explained that under Arizona Supreme Court precedent and the Arizona Rules of Criminal Procedure, “superior courts are not required to conduct Anders review in a Rule 32 of-right petition.” State v. Chavez, 407 P.3d 85, 91 (Ariz.Ct.App. 2017). The opinion provides that:
¶ 15 Unlike the direct appeal, where the appellate court has access to the same record that appellate counsel reviews for error, the post-conviction proceeding is one in which counsel can raise issues that are not apparent from the court record. Generally, to prevail on a PCR claim, counsel must investigate beyond the court record and present that evidence to the superior court. For example, if PCR counsel raises an ineffective assistance of counsel claim for failing to properly advise the defendant about the plea agreement, PCR counsel must present evidence developed outside the court record. But such an ineffective assistance of counsel claim cannot be made without undertaking an investigation into extra-record information. In contrast, when reviewing for the limited issues that can arise in an of-right proceeding, superior courts do not undertake an extra-judicial record investigation necessary to search for arguable issues. Indeed, the necessity for an extrajudicial record was part of the reasoning behind the elimination of direct appeals in plea agreement cases and the change in the Arizona Rules of Criminal Procedure. See Charles R. Krull, Eliminating Appeals from Guilty Pleas, ARIZONA ATTORNEY, Oct. 1992, at 35; Crane McClennen, Eliminating Appeals from Guilty Pleas: Making the Process More Efficient, ARIZONA ATTORNEY, Nov. 1992, at 16. Because the superior court is not able to undertake an extra-record investigation, the court is simply not situated to undertake an Anders-type review in a PCR proceeding.
¶ 16 Additionally, the sheer volume of post-conviction of-right petitions in the superior court bolsters our current procedure as well. There were more than 3000 petitions for post-conviction relief pending in superior court at the end of fiscal year 2016. . . . To require the superior court to conduct Anders-type reviews of the record in all these cases would only further burden our already taxed state court system, especially when “the number of meritorious cases is ‘infinitesimally small.'” Davila v. Davis, U.S.--, 137 S.Ct. 2058, 2070, 198 L.Ed.2d 603 (2017) (rejecting a proposed rule that “would likely generate high systemic costs and low systemic benefits”).
¶ 17 As the Amici have recognized in their briefing, without further guidance from either the Arizona Supreme Court or the United States Supreme Court, we will continue to follow our state's established procedure. See State v. Smyers,
207 Ariz. 314, 318, ¶ 15, n.4, 86 P.3d 370, 374, n.4 (2004) (“The courts of this state are bound by the decisions of [the Arizona Supreme Court] and do not have the authority to modify or disregard this court's rulings.”). Currently, that procedure does not require the superior court to review of-right petitions for post-conviction relief for arguable issues in accordance with Anders.Id. at 90-91.
As mentioned, effective January 1, 2020, Rule 33 of the Arizona Rules of Criminal Procedure governs PCR proceedings for plea-convicted defendants.
On August 5, 2022, Respondents filed a “Notice of Supplemental Authority” (Doc. 12) advising the Court that the Ninth Circuit Court of Appeals issued an opinion in Chavez v. Brnovich, 42 F.4th 1091 (9th Cir. 2022). The Ninth Circuit reversed the District of Arizona's conditional grant of habeas relief to the defendant in the Chavez case discussed above. The District of Arizona's decision to grant habeas relief was based on the conclusions that (i) the Arizona Court of Appeals had incorrectly determined that Anders did not apply to Arizona's of-right PCR proceedings and (ii) Arizona's of-right PCR procedure was deficient under Anders.
The Ninth Circuit in Chavez stated that “it was clearly established that Anders and its progeny apply to Arizona's of-right PCR proceedings.” Chavez, 42 F.4th at 1098. However, the Ninth Circuit recounted that in Smith, the Supreme Court clarified that “the Anders procedure is merely one method of satisfying the requirements of the Constitution for indigent criminal appeals” and that a divergent procedure suffices under Anders “so long as it reasonably ensures that an indigent's appeal will be resolved in a way that is related to the merit of that appeal.” Id. (quoting Smith, 528 U.S. at 276-77). The Ninth Circuit held that under Smith, “fairminded jurists could disagree over whether Arizona's of-right PCR procedure satisfies Anders and its progeny.” Id. at 1101.
In reversing the District of Arizona's decision, the Ninth Circuit found that Arizona's of-right PCR procedure differs in material ways from the procedure rejected in Anders. The Ninth Circuit explained:
In Anders, it was significant that, under California's procedure, neither counsel nor the court had to determine whether the appeal was frivolous or lacked arguable issues; instead,
California required only a determination that the defendant was unlikely to prevail on appeal. See Smith, 528 U.S. at 279-80, 120 S.Ct. 746. Another significant problem was that counsel was allowed to withdraw, leaving the court to decide the appeal without counsel. See id. at 280, 120 S.Ct. 746. These key defects, along with other problems, rendered California's procedure in Anders constitutionally inadequate.
Arizona's of-right PCR procedure does not suffer from the same defects. Arizona requires counsel to determine whether there are any “colorable claims.” Ariz. R. Crim. P. 32.4(c)(2); Colorable, Black's Law Dictionary (11th ed. 2019) (defining “colorable” as “appearing to be true, valid, or right”). Thus, unlike the procedure in Anders, Arizona requires counsel to identify any issues that could appear to be valid. Arizona also does not permit counsel to withdraw. Counsel remains in an advisory capacity until the PCR court's final determination, and, in that capacity, counsel remains available to defendant and the PCR court to brief viable issues. See Ariz. R. Crim. P. 32.4(c)(2); Lammie, 915 P.2d at 663. These differences make Anders materially distinguishable. For that reason, the Arizona Court of Appeals's rejection of the Anders claim was not contrary to clearly established federal law.Id. The Ninth Circuit concluded that “Arizona's procedure is better than those the Court has rejected in two material respects: Arizona requires counsel to identify any valid claims and counsel may not withdraw but must remain available to brief any viable issues.” Id. at 1102 (citing Ariz. R. Crim. P. 32.4(c)(2)). The Ninth Circuit explained that “[t]hese protections help to ensure that an appeal will be resolved on the merits” and that at the “very least,” “Arizona's procedure falls somewhere in the gray area between those the Court has found adequate and those it has found invalid.” Id.
Here, the March 29, 2022 Arizona Court of Appeals decision does not state that Anders is wholly inapplicable to of-right PCR proceedings. Rather, it repeats the language used in the state appellate decision in Chavez, and states that “defendants are not entitled to Anders -type reviews in Arizona PCR proceedings.” (Doc. 11-2 at 141) (emphasis added). In interpreting the decision in Chavez, the Ninth Circuit stated that “if we can read the decision as finding Anders applies to of-right PCR proceedings, we must do so.” Chavez, 42 F.4th at 1099 (citing Mann v. Ryan, 828 F.3d 1143, 1158 (9th Cir. 2016) (en banc) (“Under AEDPA, because we can read the decision to comport with clearly established federal law, we must do so.”). Under Woodford v. Visciotti, 537 U.S. 19, 24 (2002), it is presumed “that state courts know and follow the law,” and accordingly, their decisions must be “given the benefit of the doubt.”
The Ninth Circuit found that the Arizona Court of Appeals' statements in Chavez that there is no requirement for PCR courts to perform an “Anders-type review” or “Anders review” are ambiguous and could be interpreted in different ways. Chavez, 42 F.4th at 1099. The Ninth Circuit concluded that the Arizona Court of Appeals' decision in Chavez
can be construed as finding Anders applicable and nothing clearly suggests otherwise. Because we must give the court of appeals the benefit of the doubt and presume that it followed the law, Woodford, 537 U.S. at 24, 123 S.Ct. 357, we must and do find that the Arizona Court of Appeals correctly found Anders applies to of-right PCR proceedings.Id. The Ninth Circuit reversed the District of Arizona's contrary determination. Id.
Like the appellate decision at issue in Chavez, the undersigned finds that the March 29, 2022 Arizona Court of Appeals' decision can be construed as finding Anders applicable to of-right PCR proceedings. Therefore, the undersigned finds that Respondents correctly argue that Petitioner has failed to show that the Arizona Court of Appeals' rejection of his Anders claim was contrary to clearly established federal law, as determined by the United States Supreme Court.
The Ninth Circuit decision in Chavez is also instructive in determining whether the March 29, 2022 Arizona Court of Appeals decision is an unreasonable application of clearly established federal law. Like the decision at issue in Chavez, the Arizona Court of Appeals in Petitioner's case did not explain why it rejected the broader argument that Petitioner had been denied Anders protections. The Ninth Circuit recounted that in “an analogous circumstance, where the state court's reasons for rejecting a claim were unclear, we elected to treat the state court's determination as if it were unaccompanied by reasons and applied the standard in Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011)).” Chavez, 42 F.4th at 1100 (citing Cannedy v. Adams, 706 F.3d 1148, 1162 n.7 (9th Cir. 2013)). The Ninth Circuit instructed that because the appellate court's decision was ambiguous, the District of Arizona “should have followed our approach in Cannedy by first ‘determining] what arguments or theories . . . could have supported' the court of appeals's rejection of Chavez's argument that he had been denied Anders protections, and then giving AEDPA deference to those arguments.” Id. (citing Richter, 562 U.S. at 102).
To conclude that a state court decision was objectively unreasonable, the Court must find that “no fairminded jurist could agree with the state court's” decision. Davis v. Ayala, 576 U.S. 257, 277 (2015). The state court decision must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. The Ninth Circuit in Chavez explained that it must give the Arizona Court of Appeals “even more leeway” as the “applicable rule announced in Smith is very general.” Chavez, 42 F.4th at 1101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); citing Smith, 528 U.S. at 276-77) (internal quotation marks omitted). “The more general the rule, the more leeway courts have in reaching outcomes in case-by case determinations.” Yarborough, 541 U.S. at 664.
To reiterate, the Ninth Circuit held that “[u]nder Smith, fairminded jurists could disagree over whether Arizona's of-right PCR procedure satisfies Anders and its progeny.” Chavez, 42 F.4th at 1101. Consequently, the Ninth Circuit concluded that the Arizona Court of Appeals “could have reasonably determined that Arizona's of-right PCR procedure satisfied Anders and its progeny” and therefore did not unreasonably apply clearly established federal law. Id. at 1103.
Here, like in Chavez, the Arizona Court of Appeals could have determined that Petitioner had not been denied Anders protections because it could reasonably conclude that Arizona's of-right PCR procedure satisfied Anders and its progeny. Giving the deference due under AEDPA to the March 29, 2022 Arizona Court of Appeals' decision, the undersigned thus finds that the Arizona Court of Appeals did not unreasonably apply clearly established federal law when it rejected Petitioner's Anders claim. The undersigned further finds that the Arizona Court of Appeals' decision is not based on an unreasonable determination of the facts. It is recommended that the Court deny Petitioner's request for habeas relief.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Petition (Doc. 1) be DENIED.
IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because Petitioner has not made a substantial showing of the denial of a constitutional right.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.