Opinion
CV 19-05078 PHX DLR (CDB)
07-05-2021
Dale Brakhop, Petitioner, v. David Shinn, Attorney General of the State of Arizona, Respondents.
THE HONORABLE DOUGLAS L. RAYES
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Petitioner Dale Brakhop, proceeding pro se, filed a petition pursuant to 28 U.S.C. § 2254 on September 3, 2019. Respondents answered the petition on March 6, 2020 (ECF No. 10), and Brakhop filed a reply on November 12, 2020 (ECF No. 23).
I.Background
After videotaping, photographing, and engaging in sexual conduct with a young child, Brakhop and his co-defendant were charged with eleven counts of sexual exploitation of a minor, nine counts of sexual conduct with a minor, four counts of child molestation, and one count of bestiality.
Brakhop pled guilty to one count of sexual conduct with a minor, one count of attempted sexual conduct with a minor, and one count of attempted sexual exploitation of a minor. Brakhop stipulated to a term of twenty years' imprisonment for sexual conduct, and to terms of lifetime probation for the other two counts. The superior court accepted the plea agreement and sentenced Brakhop according to its terms.
Brakhop timely filed his notice of post-conviction relief. Counsel was appointed but could not find any colorable claims to raise. Brakhop then filed a pro se petition claiming ineffective assistance of trial and PCR counsel. He also claimed the superior court violated his constitutional rights when it denied his motion for change of counsel based on counsel's performance before he decided to enter his plea agreement. The superior court summarily dismissed Brakhop's petition, and this petition for review followed. [footnote 1: Although the petition for review presents additional issues, Brakhop did not raise these issues in the PCR petition he filed in the superior court. Therefore, we do not consider them. A petition for review may not present issues not first presented to the superior court. State v. Bortz, 169 Ariz. 575, 577 (App. 1991); Ariz. R. Crim. P. 32.9(c)(1)(ii)].State v. Brakhop, 2017 WL 3526542, at *1 & n.1 (Ariz.Ct.App. Aug. 17, 2017). The appellate court concluded that the trial court had not abused its discretion in denying state post-conviction relief, and addressed the merits of Brakhop's claims as follows:
Brakhop argues that his trial counsel failed to adequately investigate his case, but this claim is too general to be colorable. An alleged failure to investigate does not meet the prejudice prong when the defendant does not explain what evidence additional investigation would have discovered and how it might have changed the outcome. See Gallego v. McDaniel, 124 F.3d 1065, 1077 (9th Cir. 1997); Hendricks v. Calderon, 70 F.3d 1032, 1036-37, 1042 (9th Cir. 1995) (“Absent an account of what beneficial evidence investigation into any of these issues would have turned up, Hendricks cannot meet the prejudice prong of the Strickland test.” (citing Strickland v. Washington, 466 U.S. 668, 687-90 (1984)).
Brakhop also asserts his trial counsel failed to establish “lies stated by law enforcement.” Had counsel done so, he could have gone to trial and
impeached the police witnesses. Then the jury would have believed him and not the police, he argues, and the outcome of his case would have been different. This claim is not colorable. Even if counsel had impeached the police officers at trial, no reasonable probability exists that a jury would have acquitted Brakhop given the videotapes and photographs which depict him and his co-defendant engaged in sexual acts with the victim.
Brakhop next claims that the superior court violated his constitutional rights when it denied his motion for change of trial counsel. This claim is waived. The entry of a guilty plea waives all non-jurisdictional defects, including ineffective assistance of counsel, other than ineffectiveness in connection with matters directly relating to entry of the guilty plea. State v. Quick, 177 Ariz. 314, 316 (App. 1993). Furthermore, we note that the court held a hearing on this motion, but Brakhop has not provided a transcript of that hearing. Missing portions of the record are presumed to support the court's ruling. State v. Geeslin, 223 Ariz. 553, 554, ¶ 5 (2010).
Finally, Brakhop's claim that PCR counsel was ineffective is not cognizable in this action. However, because this is Brakhop's post-conviction relief proceeding of-right, ineffective assistance of PCR counsel is a cognizable claim under Rule 32 and may be raised in a timely subsequent PCR petition. State v. Pruett, 185 Ariz. 128, 130-31 (App. 1995).Id., 2017 WL 3526542, at *1-2.
The presentence investigation report, summarizing the relevant Phoenix Police Department report, states, inter alia;
On March 5, 2013, federal agents learned that images depicting the sexual exploitation of minors were downloaded using [a] ¶ 2P file sharing network . . . and the agents were able to track the IP address. On May 22, 2013, a federal search warrant was executed at the residence of the codefendant, [C.R., who was not Brakhop's wife] . . . The codefendant . . . denied she possessed any images or had downloaded any files depicting the sexual exploitation of minors. Officers removed items from the codefendant's residence including a computer with a C-gate expansion card. A forensic examination of the hard drive found the following images showing the codefendant engaged in sexual acts with a prepubescent male child []: . . . Additional files contained still shots taken by the codefendant of the victim holding the penis of an adult male (later identified as the defendant), [and] the victim's penis being fondled by the defendant . . . There were additional images of sexual activity involving the victim, the defendant, and the defendant's dog. . . . Further investigation identified the victim as three year old H.B., the defendant's grandson who often stayed with him while his mother [] was working.(ECF No. 10-1 at 47). When confronted by investigating officers, and after initially denying knowledge of “how those images could have been taken, ”
. . . the defendant admitted that he was hundreds of thousands of dollars in debt and the codefendant told him that he could make money by doing this . . . He also denied that the codefendant ever threatened or bribed him to commit these activities. He admitted that he often acted as a model while the codefendant photographed him and the victim . . . He admitted that the codefendant took photographs of him and the victim in sexual positions . . . The defendant also stated that he did perform oral sex on the victim but did not like it. . . . He further stated that he took pictures of the codefendant engaged in sexual acts with the victim. He admitted knowing what he was doing was wrong but believed it was considered a misdemeanor offense not a felony or that these acts were considered molestation or sexual conduct with a minor. . . . he admitted talking to people on the Internet about their fantasies involving sexual activity with children and talked to people on best dating website. . . .(ECF No. 10-1 at 47-48).
[2] Under the heading “Defendant's Statement, ” the presentence report states: The defendant stated that it was public record that he was under duress, his family had been threatened, and that if he did not do certain things or called the police his family would be killed. He believes he should be placed on probation but has been told that it does not matter why he did something only that he did it. He believes he has been treated unfairly as he only broke the law to save his family's life and that his family's life is more important than any man made law. He does not know why the Court does not consider that he has never been in any kind of legal trouble in the past and has seven children and several other grandchildren who he has never harmed.(ECF No. 10-1 at 49). At sentencing Brakhop told the court:
I was under duress. I honestly was. It was like, well, why didn't you go to the police. I couldn't say anything because, talking to them I did not know that she was arrested. I'm keeping my mouth shut because I'm in fear of what is going to happen to my family.
This is what happened. Yes, I took the photographs. I did not like the idea of taking them. I was complying with what they asked. I tried to do this - to try to keep him from being injured, my family from being injured, I did this. I hate the fact that it happened. I hate the fact that something happened to my grandson. I did not want something to happen to him. I love him dearly. I did what I thought I had to do to keep my family safe. That's what happened.
I regret that it happened. It makes me sick. Yes, it was a repulsive thing to do. but it's also more repulsive to see my family's brains blown out of their heads if I didn't do what I was told. And there was things in there that shows that I did say that there was a man there when I got there and I didn't know who he was, but I gave a description.
. . . I don't understand a lot of this. I take - you know, I will go to prison. But I do now that I did what I felt I had to do to save my family, to protect them.(ECF No. 10-1 at 126-27). When the sentencing court asked if there was any evidence to support Brakhop's claims of duress, the prosecutor averred there was no such evidence, and the court inquired of Brakhop as to how he was threatened. (ECF No. 10-1 at 129-30) (“How were you threatened?”). He responded that his codefendant told him:
. . . if I did not comply - she had taken photographs - I gave [defense counsel] the full story the first day that I saw him and he told me not to say anything and I didn't say anything. . . . I know it sounds unbelievable, but many things are unbelievable. But believe me, things do happen. Things happen.
I went over to get some chicken to bring it back - my grandson was not feeling well. I come back and he was nude when I got there. And I asked why. And [his codefendant] was cleaning him up . . . And she had taken some photos. And she said she had already sent these to somebody and if I did not take more photos, if I did not comply or if I went to the police my family would be hurt. . . .
There are cases over here too now that you are seeing where the chief of police of New York was in on child porn ring and all this stuff . . . This stuff you see the movies when somebody threatens you like that, they go home and they find their family dead, their brains all over the walls. That's what went through my head. And it's like, God, I don't want that to happen.(ECF No. 10-1 at 131-32). The court asked how many images had been taken over how long a period of time, and the prosecutor responded that there were “at least two incidents where there were pictures taken, ” but that there could have been “three or four, ” and further noted “[t]here were over 100 images taken. Some of those images include videos. In those videos you can hear the Defendant's voice directing the action.” (ECF No. 10-1 at 133).
Brakhop did not seek review of the appellate court's decision affirming the denial of state post-conviction relief, and the appellate court's mandate issued October 11, 2017. (ECF No. 10-1 at 192).
On March 5, 2018, Brakhop filed pro per motions requesting dismissal of the charges and a new judge pursuant to Rules 8.6 and 10.1 of the Arizona Rules of Criminal Procedure. (ECF No. 10-1 at 198-208, 210). Brakhop argued, inter alia, that the plea agreement had been revoked and that it was procured by threats from his counsel and fraud by the prosecutor, and further argued his speedy trial rights were violated. (ECF No. 10-1 at 198-208). These motions were denied by the trial court on April 16, 2018. (ECF No. 10-1 at 213) (“The court finds no remedy available to Defendant pursuant to Rule 8.6 at this stage in the proceedings. The Court further finds no basis for a change of judge in the trial court, as there are no pending proceedings in the trial court.”).
Rule 8.6 provides: “If the court determines, after excluding any applicable time periods, that a time limit established by these rules has been violated, the court must dismiss the prosecution with or without prejudice.”
On April 11, 2018, Brakhop sought a writ of mandamus, asking the Arizona Supreme Court to mandate “accelerated proceedings throughout Petitioner's case from this point forward.” (ECF No. 10-1 at 216-18, 226). On April 25, 2018, he sought leave from the Arizona Supreme Court to amend his petition for the writ. (ECF No. 10-1 at 221). In an order entered September 7, 2018, the Arizona Supreme Court dismissed the motion seeking the writ and all “related motions.” (ECF No. 10-1 at 226). The Arizona Supreme Court noted: “the superior court denied Mr. Brakhop's Rule 8.6 and Rule 10.1(a) motions and no proceedings are now pending. The motion also assumes, incorrectly, that this Court can conduct an ‘investigation into the criminal acts committed by government officials.'” (Id.).
Brakhop contends he is entitled to federal habeas relief because:
1. He was denied the effective assistance of counsel.
Under fundamental-miscarriage-of-justice exception, Petitioner argues legal matter malpractice of plea agreement counsel [Mr.] Lee and Rule 32 counsel [Mr.] DeBrigida. See Fed. Habeas Exhibit - 1 and 3, Petitioner's petitions filed with the Superior Court. The “Supremacy clause” mandates the “supreme law of the land, ” the U.S. Const., acts of Congress made according to the U.S. Const., and the treaty between the U.S. and AZ. Petitioner was guaranteed the effective assistance of counsel per 18 U.S.C. §§241 and 242, Mr. Lee and Mr. DeBrigida violated Petitioner's civil rights.(ECF No. 1 at 6).
2. His counsel, the prosecutors, and two state judges acted illegally:
Under fundamental-miscarriage-of-justice exception, Petitioner argues the illegal conduct of Judge Welty on April 11, 2014; Judge Sanders on April 30, 2014 and July 10, 2014; Prosecutor Ms. [] Mitchell on April 30, 2014 and July 10, 2014; Counsels Mr. Lee and Mr. DeBrigida, Jr. throughout their representation [] Petitioner's evidence of the State actors' violation of 18 U.S.C. §§241 and 242 in denying Petitioner's civil rights.(ECF No. 1 at 7).
Respondents contend Brakhop's § 2254 petition was not filed within the applicable statute of limitations. (ECF No. 10 at 10).
II.Analysis
A.Statute of limitations
Brakhop's petition for habeas corpus relief is barred by the statute of limitations provision of the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA imposed a one-year statute of limitations on state prisoners seeking federal habeas relief from their state convictions. 28 U.S.C. § 2244(d)(1). The one-year statute of limitations on habeas petitions begins to run on “the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review.” Id. at § 2244(d)(1)(A). The limitations period is statutorily tolled during the time a “properly filed” state action for post-conviction relief is pending in the state courts. Id. at § 2244(d)(2).
To assess the timeliness of the pending petition, the Court must first determine the date on which Brakhop's conviction became “final by the conclusion of direct review.” 28 U.S.C. § 2244(d)(1)(A). In his written plea agreement Brakhop waived his right to an appeal and, by pleading guilty, Brakhop was precluded from pursuing a direct appeal in the Arizona Court of Appeals. See Ariz. Rev. Stat. § 13-4033(B). Instead, Brakhop was entitled to seek review of his conviction and sentence in an “of-right” proceeding pursuant to Rule 32 (now Rule 33) of the Arizona Rules of Criminal Procedure, the functional equivalent of a direct appeal. See Summers v. Schriro, 481 F.3d 710, 715-16 (9th Cir. 2007).
Brakhop was sentenced on July 10, 2014. Therefore, his notice of post-conviction relief was due ninety days later, i.e., on October 8, 2014. See Ariz. R. Crim. P. 32.4(a) (since renumbered as Rule 33.4(b)(3)). Brakhop initiated a state action for post-conviction relief on September 30, 2014. This tolled the running of the statute of limitations until October 11, 2017, when the Arizona Court of Appeals' mandate issued in his state post-conviction action, rendering his conviction “final.”
Although Brakhop's state post-conviction action was initially dismissed, in its order denying relief the Arizona Court of Appeals found the reinstated action timely.
Accordingly, the AEDPA's statute of limitations began to run on October 12, 2017, and expired October 12, 2018. Brakhop's federal habeas petition, signed September 3, 2019, was not filed within the applicable statute of limitations. Neither the motions file by Brakhop seeking the dismissal of his conviction and a change of judge, both citing state rules of criminal procedure other than the rule governing state actions for post-conviction relief, nor Brakhop's petition for a writ of mandamus, tolled the statute of limitations. These motions were not properly filed state actions for post-conviction relief because they were not “application[s] for State post-conviction or other collateral review with respect to the pertinent judgment or claims” within the meaning of § 2244(d)(2). See Meadows v. Jacquez, 242 Fed.Appx. 453 (9th Cir. 2007) (stating that mandamus petitions are not petitions for collateral review within the meaning of 28 U.S.C. § 2244(d)(2)); Hardiman v. Galaza, 58 Fed.Appx. 708, 710 (9th Cir. 2003); Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001).
The one-year statute of limitations for filing a federal habeas petition may be equitably tolled if extraordinary circumstances beyond the petitioner's control prevented them from filing their petition on time. See Holland v. Florida, 560 U.S. 631, 645 (2010); Gibbs v. Legrand, 767 F.3d 879, 884-85 (9th Cir. 2014). “Equitable tolling is applicable only if extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time.” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quotations and citations omitted). The “extraordinary circumstance” must be attributable to an external force rather than a petitioner's lack of diligence or his lack of legal knowledge. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Equitable tolling is also available if the petitioner establishes their actual, factual innocence of the crimes of conviction. See McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014).
When an otherwise time-barred habeas petitioner “presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial, ” and the petitioner also asserts a colorable claim that his state criminal proceedings involved non-harmless constitutional error, the Court may consider the petition on the merits. Stewart v. Cate, 757 F.3d 929, 937-38 (9th Cir. 2014), citing Schlup v. Delo, 513 U.S. 298, 329 (1995). The Supreme Court has cautioned, however, that “tenable actual-innocence gateway pleas are rare.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). “[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.” Id.
Equitable tolling is to be rarely granted. See, e.g., Yow Ming Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); Waldon-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). It is the petitioner's burden to establish that equitable tolling is warranted in his case. See Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010); Waldon-Ramsey, 556 F.3d at 1011; Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2004). To be entitled to equitable tolling Brakhop must show “extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time.” Porter, 620 F.3d at 959 (emphasis added and internal quotations omitted). See also Bryant v. Arizona Att'y Gen., 499 F.3d 1056, 1060 (9th Cir. 2007) (holding the petitioner must establish a “causal connection” between the extraordinary circumstances and their failure to file a timely petition).
In response to Respondents' allegation that his petition is time-barred, Brakhop asserts he “has shown that there were multiple fundamental miscarriages of justice, with a plethura (sic) of undisputable facts, found in transcripts and documents within his petition, ” and he argues that the “State has not objected to any of the claims, thus clearly admitting to the legitimacy of the Petitioner's charges.” (ECF No. 23 at 1). Brakhop asserts he was under duress “and had no choice in order to protect his family” when committing and admitting to the crimes. (ECF No. 23 at 2). Brakhop asserts the plea agreement was facially invalid because it was signed April 30, 2014, when the agreement stated it expired April 11, 2014. (Id.). He further alleges he signed the plea agreement due to “[his counsel's] threat that the prosecutor was going to indict Petitioner's wife if the plea was not signed.” (ECF No. 23 at 2-3). Brakhop contends the sentencing judge was aware that Brakhop and his counsel had been engaged in a “loud shouting match” just outside the courtroom just prior to the entry of his guilty plea, and that “the judge accepted the contract, a revoked plea, with no rejections. This placed the court's sentencing order in violation of the contract and kidnapping the Petitioner under false pretense. . . .” (ECF No. 23 at 5).
Attached to the habeas petition is a transcript of the change of plea hearing. (ECF No. 1-1 at 97-117). Brakhop did not mention or protest that the written plea agreement had “expired.” Brakhop told the court: he had read the plea agreement and discussed it with his counsel; he understood the plea agreement; and he understood the rights he was giving up by pleading guilty. When asked specifically if he had been threatened or promised anything to get him to plead guilty, Brakhop responded: “No.” (ECF No. 1-1 at 105). Brakhop admitted to a factual basis for his guilty plea, although when he told the court there were “reasons it happened, ” the court informed him it would not accept a guilty plea if no admission of guilt was entered. (ECF No. 1-1 at 107-08).
The following colloquy then occurred:
THE DEFENDANT: There were reasons it happened. Yes, it happened. Okay. Yes.
THE COURT: Okay. Somebody had a gun to your head?
THE DEFENDANT: My family's head.
[Defense counsel]: Judge, duress-again, I mean, I think it would be up to the Court whether duress is a defense or not. However, I think in any case you can waive a defense if that's what you want to do.
THE COURT: So, the gist of it is that he held some kind of recording device or photographic device while the codefendant engaged in these sexual contacts with the child?
[Defense counsel]: Correct. And again, this was an attempt.
THE COURT: That would be a factual basis. Is that what happened?
THE DEFENDANT: That's what happened, but I had to do it.
THE COURT: You had to do it?
THE DEFENDANT: Yes.
THE COURT: [After ascertaining that the codefendant had entered a guilty plea] . . . I'm going to give you your plea agreement back, and we're going to go ahead and just affirm the final trial management conference is set for May 12th and the trial date that is set for May 19th . . . But at this point, I just do not find that the defendant is really pleading guilty, so I will vacate the change of plea proceeding.
THE DEFENDANT: I pled guilty because I don't really have a choice in this matter.
THE COURT: Well, see, I get this a lot of times, sir, where people just kind of hem and haw and don't want to admit that they did anything wrong.
THE DEFENDANT: I didn't say that I didn't. I never said I didn't do it. I said there were reasons why.
THE COURT: Sir, if you didn't do anything wrong or there were compelling reasons and you feel like you didn't have a [choice] then, you know, this is something that a jury can listen to and decide.
THE DEFENDANT: You know, it's guilty. So(ECF No. 1-1 at 108-10).The Court then allowed Brakhop to consult with his counsel. (ECF No. 1-1 at 110-11). Upon resuming the hearing, Brakhop again entered guilty pleas and agreed to the factual basis for the guilty pleas. In response to the court's question: “And would you agree that those acts would have caused the child emotional harm?” Brakhop responded: “I don't know.” The court then asked: “You don't know if somebody performing sexual acts on a two year old would cause any harm to the child?” and Brakhop responded: “Okay, yes.” (ECF No. 1-1 at 114).
In his reply Brakhop reiterates the merits of his habeas claims, noting his counsel knew of his duress defense and was ineffective in failing to raise the defense, further alleging counsel failed to properly investigate his case, failed to adequately meet and confer with Brakhop, and induced Brakhop to enter a guilty plea (ECF No. 23 at 5-8). He further asserts his post-conviction counsel was ineffective because, he contends, counsel “NEVER contacted Petitioner after he was assigned to him” and because counsel “filed an Anders Brief claiming nothing colorable.” (ECF No. 23 at 9). After reasserting the merits of all of his claims, Brakhop maintains: “Under Fundamental Miscarriage of Justice Exception, there is no time limit and no requirement to exhaust all the remedies of the State. They should know that.” (ECF No. 23 at 10).
Brakhop fails to establish a basis for equitable tolling of the statute of limitations. Inter alia, Brakhop fails to demonstrate diligence in pursuing his claims, as he allowed almost a year to elapse from the date his last motion was resolved by the state courts on September 7, 2018 and the filing of his federal habeas petition on September 3, 2019. Brakhop does not assert his factual, rather than his legal, innocence of the crimes of conviction and, accordingly, he is not entitled to tolling of the statute of limitations pursuant to the “actual innocence” exception to the statute of limitations. See Marrero v. Ives, 682 F.3d 1190, 1192-93 (9th Cir. 2012).
III.Conclusion
Brakhop's federal habeas petition was not filed within the applicable statute of limitations. He fails to establish he is entitled to equitable tolling of the statute of limitations and he does not assert his factual, rather than his legal, innocence. Accordingly, consideration of the merits of his claims is precluded.
IT IS THEREFORE RECOMMENDED that amended petition seeking a federal writ of habeas corpus at ECF No. 1 be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” The undersigned recommends that, should the Report and Recommendation be adopted and, should Brakhop seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.