Opinion
CV-22-02131-PHX-DWL (JZB)
09-22-2023
Cosme Castillo-Cervantes, Petitioner, v. Ryan Thornell, et al., Respondents.
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Petitioner Cosme Castillo-Cervantes has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.)
I. Summary of Conclusion.
Petitioner was convicted at trial and sentenced for sexual conduct with a minor and kidnapping. Petitioner unsuccessfully sought relief in state court. Petitioner then filed a habeas petition in this Court asserting two grounds for relief. (Doc. 1.) Petitioner argues that the prosecution introduced irrelevant statistical evidence that vouched for the prosecution. Petitioner's claims are procedurally defaulted because he did not raise them as federal claims in the Arizona Court of Appeals. The claims also lack merit. The Court recommends the petition be dismissed with prejudice.
II. Background.
A. Conviction & Sentencing.
The Arizona Court of Appeals summarized the facts of the case as follows:
The Court presumes the Arizona Court of Appeals' summary of the facts is correct. 28 U.S.C. § 2254(e)(1).
Defendant sexually assaulted his niece in 2013 or 2014 when she was twelve or thirteen years old. About four years later, she told her brother what happened after observing Defendant's growing interest in their youngest sister. The siblings told their mother who took the victim to a medical clinic. The clinic told law enforcement. Police investigated.
Defendant was interviewed by Detective Barrios. He admitted forcing himself on the victim, describing his sexual misconduct and saying he felt “really bad” about it. A grand Jury indicted Defendant on one count of sexual conduct with a minor under fifteen years old and one count of kidnapping a minor under fifteen years old, class 2 felonies and dangerous crimes against children. See A.R.S. §§ 13-705(Q)(1)(e), (i); -1304(A)(3), (B); -1405. Defendant pled not guilty.
Defendant argued at trial that Detective Barrios coerced his confession. The State called Detective Godbehere, the case agent and member of the Children's Crimes Unit, who acknowledged that law enforcement has trouble investigating child sex crimes because “we do not have evidence to show that a crime occurred or probable cause, [and] the case is closed.” After defense counsel's unsuccessful relevance objection, the prosecutor continued.
Q. How many - - ballpark or percentage of 100 cases, how many would be closed and not forwarded to the county attorney?
A. I would say about 90 percent.
Q. Okay. So ten percent are forwarded to the county attorney's. And of the cases that are sent to the county attorney, what percentage of those cases are actually filed, charges are filed?
A. I would guess maybe . . . 50 percent of the ten percent.
Defendant was convicted on both counts after a five-day jury trial. The superior court imposed consecutive sentences totaling 23 years, the mandatory minimum. See A.R.S. §§ 13-705(C), (D), (M), (O), 13-1304(B), 13-1405(B). Defendant timely appealed. State v. Castillo-Cervantes, 2020 WL 7624849, at *1 (Ariz.Ct.App. Dec. 22, 2020).
B. Direct Appeal.
On May 15, 2020, Petitioner's counsel filed an opening brief in the Arizona Court of Appeals. (Doc. 9-1 at 13, Ex. C.) On December 22, 2020, the Arizona Court of Appeals affirmed the convictions and sentences. (Doc. 9-1 at 71, Ex. F.)
On August 11, 2021, the Arizona Supreme Court denied review. (Doc. 9-1 at 103, Ex. I.) On September 9, 2021, the mandate issued. (Doc. 9-1 at 105, Ex. J.)
C. Post-Conviction Relief.
On September 7, 2021, Petitioner filed a pro se Notice of Post-Conviction Relief. (Doc. 9-1 at 113, Ex. K.) On January 28, 2022, counsel filed a notice stating “counsel is unable to find any claims for relief to raise in post-conviction proceedings.” (Doc. 9-1 at 133, Ex. M.) On May 24, 2022, Petitioner filed a pro se Petition for Post-Conviction Relief. (Doc. 9-1 at 140, Ex. O.) Petitioner argued his confession was coerced, a claim he does not present here. (Id. at 141-142.) The record does not indicate if the matter was resolved by the court.
III. Petition for Writ of Habeas Corpus.
On December 16, 2022, Petitioner timely filed the instant habeas petition. (Doc. 1.) As summarized by the Court:
Petitioner raises two grounds for relief. In Ground One, he contends his Sixth Amendment rights were violated because the trial court erroneously admitted testimony about the percentage of child abuse investigations that end up being charged. In Ground Two, Petitioner claims he was denied his Fifth Amendment right to due process because the State, in closing argument, “never linked [Petitioner's] position that he felt intimidated with the irrelevant statistical evidence” and “never specifically linked the irrelevant statistical evidence in closing argument to anything.”(Doc. 4 at 1-2.) On February 23, 2023, Respondents filed a Response. (Doc. 9.)
On March 10, 2023, Petitioner filed a motion to strike the response because the caption of the response/answer incorrectly listed Mark Brnovich as the Arizona Attorney General. (Doc. 10.) On September 1, 2023, the Court denied the Motion. (Doc. 14.)
IV. Legal Standards.
A. Requisites for Federal Habeas Review.
1. Federal Claim.
“In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see 28 U.S.C. § 2254(a). “[F]ederal habeas corpus relief does not lie for errors of state law.” Swarthoutv. Cooke, 562 U.S. 216, 219 (2011) (citations omitted); see Estelle, 502 U.S. at 63 (“[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.”). “[T]he availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, 489 U.S. 401, 409 (1989). A petitioner “may not . . . transform a state-law issue into a federal one merely by asserting a violation of due process.” Langfordv. Day, 110 F.3d 1380, 1389 (9th Cir. 1996).
2. Exhaustion of State Remedies.
“Before seeking a federal writ of habeas corpus, a state prisoner must exhaust available state remedies, thereby giving the State the opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (cleaned up); see 28 U.S.C. § 2254(b)(1). “To provide the State with the necessary ‘opportunity,' the prisoner must ‘fairly present' his claim in each appropriate state court.” Baldwin, 541 U.S. at 29 (citations omitted). Fair presentation requires a prisoner to “clearly state the federal basis and federal nature of the claim, along with relevant facts.” Cooper v. Neven, 641 F.3d 322, 326 (9th Cir. 2011).
“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief.” Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994). In non-capital cases, “claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see Crowell v. Knowles, 483 F.Supp.2d 925, 933 (D. Ariz. 2007).
3. Absence of State Procedural Bar.
“A federal court may not hear a habeas claim if it runs afoul of the procedural bar doctrine.” Cooper, 641 F.3d at 327. Under this doctrine, a claim is procedurally defaulted and consequently barred from federal review “if the state court denied the claim on state procedural grounds” or “if [the] claim is unexhausted but state procedural rules would now bar consideration of the claim.” Id.; see Martinez v. Ryan, 566 U.S. 1, 9 (2012) (“[A] federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.'” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991))).
To preclude federal review, the state procedural rule must be a “nonfederal ground adequate to support the judgment” and “firmly established and consistently followed.” Martinez, 566 U.S. at 9. “Arizona's waiver rules are independent and adequate bases for denying relief.” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014). Under these rules, a defendant is precluded from relief on any constitutional claim “waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.” Ariz. R. Crim. P. 32.2(a)(3). A defendant waives a claim by failing to assert it during the appropriate proceeding unless the claim implicates a “right . . . of sufficient constitutional magnitude to require personal waiver by the defendant,” e.g., the right to a jury and the right to counsel. Stewart v. Smith, 202 Ariz. 446, 449-50 (2002).
To obtain review of a procedurally defaulted claim, the prisoner must show “cause for the default and resulting prejudice, or that failure to review the claims would result in a fundamental miscarriage ofjustice.” Moormann v. Schriro, 426 F.3d 1044, 1058 (9th Cir. 2005). The latter requires a showing of actual innocence. Polandv. Stewart, 117 F.3d 1094, 1106 (9th Cir. 1997).
B. Standard for Merits Review.
To obtain relief, a petitioner must show the state courts' adjudication of a claim:
(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). “This ‘standard is difficult to meet.'” Mays v. Hines, 141 S.Ct. 1145, 1149 (2021) (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). As explained by the Supreme Court:
The term “unreasonable” [in § 2254(d)] refers not to “ordinary error” or even to circumstances where the petitioner offers “a strong case for relief,” but rather to “‘extreme malfunctions in the state criminal justice system.'” In other words, a federal court may intrude on a State's “‘sovereign power to punish offenders'” only when a decision “was so lacking in justification . . . beyond any possibility for fairminded disagreement.”Id. (brackets omitted) (quoting Richter, 562 U.S. at 102-03). “Factual determinations by state courts are presumed correct absent clear and convincing evidence to the contrary.” Miller-El v. Cockrell, 537 U.S. 322, 324 (2003) (citing 28 U.S.C. § 2254(e)(1)). “[A] decision adjudicated on the merits in a state court and 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.” Id. (citing 28 U.S.C. § 2254(d)(2)). Cf. Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (“Unreasonable determinations of material facts can occur where the state court plainly misapprehends or misstates the record in making its findings or where the state court has before it, yet apparently ignores, evidence that supports petitioner's claim.” (internal quotations and citations omitted)).
The subject of federal review is “the last reasoned state-court decision.” Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). “When at least one state court has rendered a reasoned decision, but the last state court to reject a prisoner's claim issues an order ‘whose text or accompanying opinion does not disclose the reason for the judgment,' [a federal court] ‘look[s] through' the mute decision and presume[s] the higher court agreed with and adopted the reasons given by the lower court.” Curiel v. Miller, 830 F.3d 864, 870 (9th Cir. 2016) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 802-06 (1991)).
V. Analysis.
A. Ground One.
i. Failure to Raise a Federal Claim.
In Ground One, Petitioner asserts “the trial court erred by admitting testimony about the percentage of child abuse investigations that ended up being charged because such testimony was allegedly irrelevant to any material fact.” (Doc. 1 at 6.) He submits it “did not prove any fact at issue” but told “the jury that the police and prosecution believed the alleged victim.” (Id.) He concludes that the “irrelevant evidence improperly bolstered the credibility of the victim, vouched for the truthfulness of the state's witnesses, and improperly appealed to the emotions of the jury.” (Id.)
In the Arizona Court of Appeals, Petitioner did not cite to federal law but instead cited only to Arizona law in support of his claim. (Doc. 9-1 at 12-28, Ex. C.) A claim is only “fairly presented” to the state courts when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000) (quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact that he is raising a federal constitutional claim, his federal claim is unexhausted regardless of its similarity to the issues raised in state court.”). On the final page of the opening brief, in the conclusion, Petitioner did state that “[t]he testimony denied Appellant Due Process of Law under the United States Constitution and Arizona Constitution.” (Doc. 9-1 at 27, Ex. C.) In Castillo v. McFadden, the Court found a similar, conclusory reference to “due process” and the “Fifth Amendment” was insufficient to exhaust this claim.
In the “Conclusion” of the Reply Brief, Petitioner similarly asserted the “testimony denied Appellant Due Process of Law under the 5th Amendment of the United States Constitution and Article 2, Section 4 of the Arizona Constitution.” (Doc. 9-1 at 69, Ex. E.)
The conclusion of Castillo's brief did no better in fairly presenting a federal due process claim to the Arizona Court of Appeals. The brief's parting sentence asserted that “[t]he gross violations of Appellant's Fifth, Sixth, and Fourteenth Amendment rights requires [sic] that his convictions and sentences be reversed and that he be granted a new trial consistent with due process of law.” This conclusory, scattershot citation of federal constitutional
provisions, divorced from any articulated federal legal theory, was the first time Castillo's brief used the words “due process” or “Fifth Amendment.”Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005).
Petitioner's claim is unexhausted because he did not raise this as a federal claim in the Arizona Court of Appeals. The requirement exists to ensure that the petitioner has “explicitly alerted” a state court that he is making a federal constitutional claim. Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1204-05 (9th Cir. 2005). Petitioner does not explain why he failed to raise a federal claim on direct appeal. Petitioner's claim is unexhausted and procedurally defaulted without excuse.
ii. Merits-Irrelevant Evidence.
Notwithstanding Petitioner's failure to exhaust this claim, Petitioner also fails to argue how the decision of the Arizona Court of Appeals was unreasonable. The Arizona Court of Appeals reviewed Petitioner's claim and denied relief.
Defendant reasserts his relevance objection. But even assuming the evidence was irrelevant, its admission was harmless error because “the guilty verdict actually rendered in this trial was surely unattributable to the error.” State v. Bible, 175 Ariz. 549, 588 (1993) (emphasis omitted) (citation omitted). Again, Defendant confessed to Detective Barrios.
Defendant asserts three arguments not raised at trial. We review for fundamental error, State v. Lopez, 217 Ariz. 433, 434-35, ¶ 4 (App. 2008), and find none. He first argues that Detective Godbehere's testimony improperly bolstered the victim's credibility, but the record does not support the argument. Detective Godbehere testified that investigators have “a lot of reasons” for not referring matters for indictment and prosecution. Moreover, Detective Godbehere explained that an indictment turns on probable cause as measured by all evidence, not just the victim's credibility.
Defendant next argues that Detective Godbehere's testimony constituted impermissible prosecutorial vouching. Prosecutorial vouching, however, requires “personal assurances” made by the prosecutor “ofa witness' truthfulness.” See State v. Dunlap, 187 Ariz. 441, 462 (App. 1996); see also State v. Acuna Valenzuela, 245 Ariz. 197, 219, ¶ 86 (2018) (prosecutor's comments did not constitute vouching because she did not “use ‘I' or ‘me' to indicate what her personal opinion on the case was to the jury” (emphasis omitted)). Defendant never identifies such “personal assurances” in the record.
And last, Defendant argues that Detective Godbehere's testimony improperly “appeal[ed] to the passions, fears, or prejudices of the jury.” But the court instructed jurors that: A charge is not evidence against the defendant. You must not think the defendant is guilty just because of a charge.” It also cautioned the jury not to be influenced” by sympathy or
prejudice. The jury is presumed to have followed those instructions and Jefendant has offered no evidence to rebut that presumption. See State v. Murray, 184 Ariz. 9, 25 (1995).(Doc. 9-1 at 73-74, Ex. F.)
First, the Arizona Court of Appeals found that the testimony, if irrelevant, was harmless beyond a reasonable doubt. The Supreme Court has imposed a strict standard in habeas cases for a due process claim based on the introduction of irrelevant evidence. The Court noted that the introduction of evidence in a criminal trial can only violate due process when a trial is completely permeated with unfairness on account of the introduction of the evidence. See Estelle v. McGuire, 502 U.S. 62, 75 (1991). The Ninth Circuit has concluded that “[a]lthough the Court has been clear that a writ should be issued when constitutional errors have rendered the trial fundamentally unfair, it has not yet made a clear ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (citation omitted).
Assuming Petitioner is eligible for habeas relief, he fails to demonstrate that the decision of the Arizona Court of Appeals was objectively unreasonable. A federal court may not grant relief “if the state court simply erred in concluding that the State's errors were harmless; rather, habeas relief is appropriate only if the [state court] applied harmless-error review in an ‘objectively unreasonable' manner.” Mitchell v. Esparza, 540 U.S. 12, 18 (2003). Here, the court found the introduction of the evidence was harmless considering the evidence against the Petitioner, which included the victim's testimony, and a confession Petitioner does not dispute in his petition. Petitioner fails to demonstrate the court's conclusion was objectively unreasonable.
A transcript of the confession is not contained in the briefing, but a summary of the confession is contained in the Appellee's brief. (Doc. 9-1 at 38-40, Ex. D.) According to the Appellee, Defendant admitted the minor victim was unclothed when he “‘unintentionally' touched her vagina with his penis” for approximately two minutes while “‘touching'” her but not penetrating her. (Id. at 40.) Petitioner allegedly admitted he pushed the victim down and admitted she was unable to “get up” because he was on top of her. (Id.) Similar facts are recounted in Petitioner's counsel's Notice of Completion of PostConviction Review. (Doc. 9-1 at 129-132, Ex. M.)
iii. Merits-Vouching.
Petitioner also claims his due process rights were violated when the prosecution improperly bolstered the victim's testimony, vouched for the prosecution, and appealed to the passions of the jury. (Doc. 1 at 6.) “[T]he touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219 (1982). “[P]rosecutorial misconduct[ ] warrant[s] relief only if [it] ‘had substantial and injurious effect or influence in determining the jury's verdict.'” Woodv. Ryan, 693 F.3d 1104, 1113 (9th Cir. 2012) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)).
The Court considers Petitioner's vouching and bolstering arguments to be identical. Petitioner also asserts the prosecution improperly inflamed the passion of the jury by discussing the percentage of investigations charged. The Ninth Circuit has “consistently cautionedagainst prosecutorial statements designed to appeal to the passions, fears and vulnerabilities of the jury.” United States v. Weatherspoon, 410 F.3d 1142, 1149 (9th Cir. 2005). The statistical testimony would have no such effect on a jury.
The prosecution's reference to the percentage of investigations that were ultimately charged amounted to vouching. “As a general rule, a prosecutor may not express his opinion of the defendant's guilt or his belief in the credibility of government witnesses.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (internal quotation marks and citation omitted). The detective testified that “law enforcement has trouble investigating child sex crimes because ‘we do not have evidence to show that a crime occurred or probable cause, [and] the case is closed.'” (Doc. 9-1 at 72, Ex. F.) The detective then testified that only ten percent of investigations are forwarded for charging, and only half of those cases were charged. (Id. at 72-73.) This testimony suggested that law enforcement and the prosecution “had the evidence” that a crime occurred. The testimony may have been elicited to rebut claims that the detective was not a neutral factfinder. But this evidence had little bearing on the neutrality of the detective, and more on the assertion that this case was in the five percent of investigations worthy of prosecution.
But Petitioner fails to establish this evidence had a substantial and injurious effect or influence in determining the jury's verdict. The victim and Petitioner both testified at trial. (Doc. 9-1 at 55-56, Ex. D.) Petitioner's confession was reviewed with the jury. (Id. at 55.) The jury was instructed that the charges were not evidence and that they “must not think the defendant is guilty just because of a charge.” (Doc. 9-1 at 74, Ex. F.) In light of the evidence and instructions, the testimony that five percent of investigated cases were charged was insubstantial. See United States v. Brooks, 508 F.3d 1205, 1212 (9th Cir. 2007) (affirming on direct appeal because vouching relating to plea agreement references and improper examination on the wiretap authorization process did not undermine strong evidence presented against defendant); United States v. Lew, 875 F.2d 219, 223-24 (9th Cir. 1989) (finding no plain error where the government vouched for two witnesses by eliciting testimony about the truthfulness requirements of their plea agreements because “there was substantial evidence against [the defendant] independent of the credibility of' the two witnesses).
Therefore, the Arizona Court of Appeals' ruling was not contrary to, or an unreasonable application of, clearly established federal law, as determined by the Supreme Court, and was not based on an unreasonable determination of the facts in light of the evidence. Accordingly, Petitioner is not entitled to habeas relief for Ground One.
B. Ground Two.
In Ground Two, Petitioner asserts that in “closing argument, the state never linked the Appellant's position that he felt intimidated with the irrelevant statistical evidence.” (Doc. 1 at 7.) He argues “the prosecutor here never specifically linked the irrelevant statistical evidence in closing argument to anything. The prosecutor at trial addressed any claim of intimidation by Detective Barrios with questions on re-direct about the consensual circumstances of the interview.” (Id.) Petitioner appears to argue that it was improper for the prosecutor to fail to link the statistical evidence with any other part of the case.
As noted in Ground One, the prosecution attempted to link the statistical evidence with the credibility/neutrality of the detective. Petitioner failed to raise any other claim (about linking evidence) in the Arizona Court of Appeals. Because Petitioner could have raised those claims but failed to do so, his claim is technically exhausted and procedurally defaulted without excuse.
Petitioner is not entitled to relief on this claim.
VI. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Hab. R. 11(a). The Court may issue a certificate of appealability “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). As to both of Petitioner's claims, Petitioner has failed to make the requisite showing and the Court will recommend that a certificate of appealability be denied.
The record is sufficiently developed that an evidentiary hearing is unnecessary to resolve factual disputes alleged by Petitioner. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (“[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.”).
Accordingly, IT IS RECOMMENDED that the Petition for a Writ of Habeas Corpus (doc. 1) be dismissed with prejudice.
IT IS ORDERED the October 10, 2023 deadline to file a Reply (Doc. 15) is stricken. The Court concludes a Reply is unnecessary, and Petitioner is afforded an opportunity to make timely objections to the Report and Recommendation.
IT IS FURTHER RECOMMENDED that a certificate of appealability be denied as to all of Petitioner's claims.
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 14 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 14 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.