Opinion
CV-23-1376-PHX-ROS (JFM)
11-20-2023
D'Angelo LauRance Brown, Petitioner v. Ryan Thornell, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
I. MATTER UNDER CONSIDERATION
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND
A. TRIAL COURT PROCEEDINGS
Petitioner (among others) was indicted on August 15, 2012 in Maricopa County Superior Court on 18 charges, including: conspiracy to commit illegal control of an enterprise (count 1); illegal control of an enterprise (counts 2, 9); sex trafficking (count 4); pandering (counts 5, 7); receiving earnings of prostitution (count 6, 8); child prostitution (counts 10, 11, 12, 13, 14, 15, 16, 17) and misconduct involving weapons (counts 23, 24). (Exh. A, Redacted Indictment.)
Petitioner proceeded with counsel to a settlement conference (Exh. B, M.E. 4/22/13) and eventually entered into a written Plea Agreement (Exh. D), and entered a plea of guilty to Counts 4 (sex trafficking), 7 (pandering), 10 (child prostitution), and 23 (weapons misconduct). In exchange, the other charges and aggravating allegations were dismissed, and various agreements made with respect to sentencing and restitution. He entered his guilty pleas, and they were accepted. (Exh. E, M.E. 5/2/13; Exh. C, RT 5/2/13.)
Petitioner was sentenced to consecutive prison terms of 4, 1.5, and 7 years on, respectively, Counts 4, 7 and 10. The court deferred sentencing on Count 23 and placed Petitioner on a consecutive term of probation of 4 years. Consequently, Petitioner is currently serving a combined 12.5 year prison term. (Exh. F, Sentence.)
B. PROCEEDINGS ON DIRECT APPEAL
Petitioner did not file a direct appeal. (Petition, Doc. 1 at 2-3.) Moreover, as a pleading defendant, Petitioner had no right to file a direct appeal. See Ariz. R. Crim. P. 17.1(e); and Montgomery v. Sheldon, 181 Ariz. 256, 258, 889 P.2d 614, 616 (1995).
Petitioner argues in his Reply that the trial court advised him at sentencing he retained a right to a direct appeal. To the contrary, the court advised Petitioner he had “the right to petition the Court for post-conviction relief.” (Exh. I, RT 6/14/13 at 21:21-22.)
C. PROCEEDINGS ON POST-CONVICTION RELIEF
1. First Post-Conviction Proceeding
On September 11, 2013, Petitioner commenced his first of-right post-conviction relief (PCR) proceeding by filing a PCR Petition (Exh. K), which was treated as a PCR notice. Counsel was appointed (Exh. L, M.E. 9/18/13) who eventually filed a Notice of Completion (Exh. M) asserting an inability to find a “colorable” issue for review. Petitioner was granted leave to file a pro per PCR petition by February 3, 2014. (Exh. O, M.E. 12/20/13.) Petitioner instead filed a “Motion to Dismiss” (Exh. P), which the court construed this as a PCR petition, and set a May 16, 2014 deadline for Petitioner to file an amended petition complying with the requirements for such a petition. (Exh. Q, M.E. 4/15/14.)
Instead, on May 5, 2014 Petitioner filed a document titled Notice of PostConviction Relief (Exh. R), which the Court construed as his PCR petition, and directed a response. (Exh. T, M.E. 5/29/14.) A Response (Exh. V) to the Petition was filed July 2, 2014, and a Reply (Exh. Y) was filed on July 22, 2014.
Subsequently, Petitioner filed various motions to be provided with his file by PCR counsel and to amend his petition. PCR counsel was repeatedly ordered to provide the file, and subsequent deadlines set for Petition to file an amended petition, and then (after no amendment was filed) a reply in support of the original Petition. (See Exh. A, AA, BB, CC, DD, EE, FF, GG, HH.) Almost two years later, on May 4, 2016 counsel was again ordered to provide the file, the court staff ordered to forward to Petitioner the transcripts, and Petitioner was given 30 days after delivery to file his Reply. (Exh. II, M.E. 5/4/16.) On May 22, 2016 PCR counsel filed a Notice of Compliance (Exh. JJ) indicating mailed portions of the file to Petitioner on that date, but indicating that (given the nature of the offenses) Petitioner had directed counsel to retain the transcripts.
Petitioner did not subsequently file a reply, and on July 21, 2016 Petitioner's PCR proceeding was dismissed. (Exh. KK, M.E. 7/21/16.) However, on August 6, 2016 Petitioner filed a Motion for Reconsideration (Exh. LL) indicating he still had not received transcripts from counsel. The Court granted reconsideration, vacated the dismissal, found no timely amendment had been made, and took under advisement the originally filed Petition. (Exh. MM, M.E. 8/11/16.)
A duplicate of this minute entry is included at Exh. MMM (Doc. 9-1 at 173), which is identified as “Memorandum Decision.” (Doc. 9 at 25.) It appears that the intended exhibit was the Arizona Court of Appeals' Memorandum Decision in Petitioner's 5th postconviction proceeding. A copy of that Memorandum Decision is appended (Doc. 9-1 at 179) to the Mandate (Exh. NNN) and thus available to Petitioner and the Court. Consequently, no supplement to the record has been ordered.
On August 18, 2016, the PCR court treated Petitioner's May 5, 2014 filing (Exh. R) as a “successive” PCR proceeding, and dismissed the petition as failing to assert colorable claims raisable in a successive proceeding. (Exh. NN, Order 8/18/16.)
On February 6, 2017 (almost 6 months after the PCR Court's ruling), Petitioner filed a pro se Motion for Reconsideration (Exh. OO). No ruling was made on this filing.
2. 2nd Post-Conviction Proceeding
Over 30 months later, on August 20, 2019, Petitioner filed a pro se Motion to Correct or Reduce Sentence (Exh. PP). The motion was denied on September 12, 2019 (Exh. RR).
Although this filing (Exh. PP) and Petitioner's Motion for Summary Judgment (Exh. SS) and may not have qualified as a post-conviction relief proceeding under Ariz. R. Crim. Proc. 32 or 33, that does not mean they were not, for purposes of statutory tolling of the federal habeas statute of limitations, a post-conviction application seeking relief from Petitioner's conviction and sentence.
On October 15, 2019 Petitioner filed a pro per Petition for Review (Exh. GGG), which was dismissed on October 21, 2018 as unauthorized. (Exh. HHH, Order 10/21/19.)
3. 3rd Post-Conviction Proceeding
On October 14, 2019 Petitioner filed a pro se Motion for Summary Judgment (Exh. SS), which was denied on November 15, 2019 (Exh. TT).
4. 4th Post-Conviction Proceeding
On January 7, 2020 Petitioner filed a pro se Petition for Post-Conviction Relief (Exh. UU). On February 12, 2020 the Petition was dismissed as untimely and successive, finding Petitioner failed to state claims raisable in such a petition. (Exh. WW, Order 2/12/20.)
5. 5th Post-Conviction Proceeding
On June 2, 2020 Petitioner filed a pro se PCR Notice (Exh. YY) and another pro se Petition for Post-Conviction Relief (Exh. XX), which was dismissed as untimely and successive. (Exh. ZZ, Order 8/4/20; Exh. BBB, Order 8/5/20.)
Counsel filed a Petition for Review (Exh. JJJ), and review was granted but relief summarily denied based on a finding that Petitioner had not shown an abuse of discretion by the PCR court. (Exh. NNN, Mem. Dec. 10/25/22.)
Although the Arizona Court of Appeals issued its Mandate (Exh. NNN) on December 2, 2022, Petitioner sought and was granted extensions to seek further review. (Exh. OOO, Order 12/22/22; Exh. PPP Order 1/25/23.) In the meantime Counsel sought and was granted leave to withdraw. (Exh. QQQ, Order 2/7/23.) Petitioner eventually filed a pro se Petition for Review by the Arizona Supreme Court. (Pet. Exh., Doc. 1 at 41-58.) Review was summarily denied on May 1, 2023. (Exh. RRR.)
D. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Petitioner, presently incarcerated in the Arizona State Prison Complex at Kingman, Arizona, commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on July 14, 2023 (Doc. 1). Petitioner's Petition asserts the following three grounds for relief:
In Ground One, Petitioner asserts that the Arizona Court of Appeals “failed to interp[re]t” Arizona Revised Statutes section 13-3212(A)(1) and “removed an essential element” of the charge, in violation of Petitioner's right to due process under the Fourteenth Amendment. In Ground Two, Petitioner claims the Arizona Court of Appeals abused its discretion by failing to address the equal protection violation that Petitioner raised in his petition for review. In Ground Three, Petitioner contends the Arizona Court of Appeals failed to address the constitutional violations “attached to” Petitioner's claim of ineffective assistance of counsel.(Order 8/8/23, Doc. 5 at 1-2.)
Answer - On September 18, 2023, Respondents filed their Limited Answer (Doc. 9). Respondents argue the Petition is untimely, Grounds 1 and 2 are non-cognizable state law claims, and Petitioner procedurally defaulted his state remedies on Grounds 1, 2, and 3.
Reply - Because Respondents relied in part upon a failure to properly exhaust state remedies, the Court set a date certain for a reply and directed:
any assertions in the reply that Petitioner's claims were fairly presented to the state appellate courts shall be supported by specific references to the location of the presentation of the claim, i.e. by exhibit number/letter in the record of this proceeding, document name, date of filing with the state court, page(s)/ line number(s) (e.g. “Exh. A, Petition for Review, filed 1/1/15, at 1/17 - 2/23”).(Order 9/18/23, Doc. 10.)
On October 27, 2023, Petitioner filed a Reply (Doc. 11). Petitioner argues he properly exhausted his state remedies, he did not waive his right to a direct appeal, he is entitled to equitable tolling because the dismissal of his PCR proceeding resulted from delays in receiving his trial counsel's file and his incarceration in isolation with resulting limitations on his access to the court. He also argues any procedural default should be excused for cause, and his petition has merit.
III. APPLICATION OF LAW TO FACTS
A. TIMELINESS
1. Statute of Limitations Applies
Respondents assert that Petitioner's Petition is untimely. A 1-year statute of limitations governs all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging convictions and sentences rendered by state courts. 28 U.S.C. § 2244(d). Petitions filed beyond the one-year limitations period are barred and must be dismissed.
Petitioner argues in his Petition that the statute of limitations does not apply to him because the state courts have continued to accept petitions from him. (Petition, Doc. 1 at 11.) But Petitioner posits no legal basis for that contention, and the undersigned has found none. Accordingly, the undersigned concludes that despite him having been permitted to file petitions with the state courts for years, Petitioner federal petition remains subject to the statute of limitations in § 2244(d).
2. Commencement of One Year
The one-year statute of limitations on habeas petitions generally 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." 28 U.S.C. § 2244(d)(1)(A). For an Arizona noncapital pleading defendant like Petitioner, “Arizona's Rule 32 of-right proceeding for plea-convicted defendants is a form of direct review within the meaning of 28 U.S.C. § 2244(d)(1)(A).” Summers v. Schriro, 481 F.3d 710, 717 (9th Cir. 2007).
Later commencement times can result from a state created impediment, newly recognized constitutional rights, and newly discovered factual predicates for claims. See 28 U.S.C. § 2244(d)(1)(B)-(D). Petitioner proffers no argument that any of these apply.
Here, Petitioner filed a timely, of-right PCR proceeding, his first post-conviction application, which remained pending at least until August 18, 2016, when it was dismissed by the PCR court. (Exh. NN, Order 8/18/16.)
Respondents reference the finality date as “August 18, 2017, one year after his of-right PCR proceeding was dismissed.” (Answer, Doc. 9 at 12 (emphasis added) (citing Exh. NN).). Apart from being one year after such date, this ignores the delayed filing/mailing of that order and the time for further review.
The undersigned notes, however, that the minute order dismissing the PCR proceeding, although dated August 18, 2016, did not appear to have been entered in the presence of the parties, and was not filed until August 22, 2016. Thus, the dismissal date should be deemed to be the later date. See Matter of Maricopa County Juvenile Action No. JS-8441 , 174 Ariz. 341, 343, 849 P.2d 1371, 1373 (1992) (concluding on the basis of fundamental fairness, that a minute order be deemed entered on the latest date reflected however denominated).
Moreover, after that dismissal, Petitioner had the right to seek further review by the Arizona Court of Appeals, although he did not do so. Rule 32.9(c) requires petitions for review to the Arizona Court of Appeals be filed within thirty days of the trial court's decision on the PCR petition. Moreover, at that time Arizona applied Arizona Rule of Criminal Procedure 1.3 to extend “the time to file an appeal by five days when the order appealed from has been mailed to the interested party and commences to run on the date the clerk mails the order.” State v. Zuniga, 163 Ariz. 105, 106, 786 P.2d 956, 957 (1990). Here, there is no indication that the PCR court's decision was delivered to Petitioner or his counsel by any means other than mailing. Accordingly, Petitioner's time to seek review by the Arizona Court of Appeals expired 35 days after the PCR court's decision. Accordingly, Petitioner's conviction became final on Monday, September 26, 2016.
For purposes of 28 U.S.C. § 2244, “direct review" includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012). The Supreme Court “can review, however, only judgments of a ‘state court of last resort' or of a lower state court if the ‘state court of last resort' has denied discretionary review.” Gonzalez v. Thaler, 565 U.S. 134, 154 (2012) (citing U.S. Sup.Ct. R. 13.1 and 28 U.S.C. § 1257(a)). Here, Petitioner did not seek direct review by the Arizona Supreme Court in his of-right PCR proceeding. Accordingly, the time for seeking a writ of certiorari with the U.S. Supreme Court cannot be considered in determining when Petitioner's judgment became final. Id.
On February 6, 2017 (almost 6 months after the PCR Court's ruling), Petitioner filed a pro se Motion for Reconsideration (Exh. OO). Motions for reconsideration or rehearing in Arizona's PCR proceedings must be filed within 15 days of the court's decision. Ariz. R. Crim. Proc. 32.14(a). This time had been long expired, and consequently, Petitioner's Motion for Reconsideration did not delay the finality of Petitioner's conviction. See Randle v. Crawford, 604 F.3d 1047, 1056 (9th Cir. 2010).
Based on the foregoing, Petitioner's conviction became final on September 26, 2016, upon expiration of his time to file a petition for review with the Arizona Court of Appeals. His one year began running thereafter, and without any applicable tolling would have expired on September 26, 2017.
For purposes of counting time for a federal statute of limitations, the standards in Federal Rule of Civil Procedure 6(a) apply. Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). Rule 6(a)(1)(A) directs that the “the day of the event that triggers the period” is excluded. See Patterson v. Stewart, 251 F.3d 1243 1246 (9th Cir. 2001) (applying “anniversary method” under Rule 6(a) to find that one year grace period from adoption of AEDPA statute of limitations, on April 24, 1996, commenced on April 25, 1996 and expired one year later on the anniversary of such adoption, April 24, 1997).
3. Statutory Tolling
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). However, statutory tolling only results from state applications that are “properly filed,” and an untimely application is never “properly filed” within the meaning of § 2244(d)(2). Pace v. DiGuglielmo, 544 U.S. 408 (2005).
On the other hand, the fact that the application may contain procedurally barred claims does not mean it is not “properly filed.” “[T]he question whether an application has been ‘properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar.” Artuz v. Bennett, 531 U.S. 4, 9 (2000).
Here, after the finality of his conviction, Petitioner's next application for collateral review was his Motion for Reconsideration in his first PCR proceeding. However, as discussed hereinabove, that filing was untimely. It is true that the state courts have not made a ruling on that motion, including its untimeliness. But “[i[n the absence of. .clear indication that a particular request for appellate review was timely or untimely, the [federal court] must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness.” Evans v. Chavis, 546 U.S. 189, 198 (2006). Accordingly, this untimely filing did not result in any statutory tolling, and the one-year continued to run, and expired on September 26, 2017.
Petitioner's next post-conviction application was his Motion to Correct or Reduce Sentence (Exh. PP). It was not filed until August 20, 2019, almost 23 months after Petitioner's limitations period had expired. Once the statute has run, a subsequent postconviction or collateral relief filing does not reset the running of the one year statute. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001); Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Accordingly, Petitioner has no statutory tolling resulting from his this application, nor from any of his subsequent PCR applications, petitions for review, etc.
Consequently, Petitioner's habeas petition, filed July 14, 2023 was almost six years delinquent.
“In determining when a pro se state or federal petition is filed, the ‘mailbox' rule applies. A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010). Petitioner's Petition asserts that it was delivered to prison officials for filing on July 11, 2023. The difference of three days does not render his Petition timely.
4. Equitable Tolling
"Equitable tolling of the one-year limitations period in 28 U.S.C. § 2244 is available in our circuit, but only when ‘extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time' and ‘the extraordinary circumstances were the cause of his untimeliness.'" Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To receive equitable tolling, [t]he petitioner must establish two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way. The petitioner must additionally show that the extraordinary circumstances were the cause of his untimeliness, and that the extraordinary circumstances ma[de] it impossible to file a petition on time.Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (internal citations and quotations omitted). “Indeed, ‘the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.' ” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)).
Even if extraordinary circumstances prevent a petitioner from filing for a time, equitable tolling will not apply if he does not continue to diligently pursue filing afterwards. “If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2nd Cir. 2000).
Petitioner bears the burden of proof on the existence of cause for equitable tolling. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006) (“Our precedent permits equitable tolling of the one-year statute of limitations on habeas petitions, but the petitioner bears the burden of showing that equitable tolling is appropriate.”).
Petitioner complains that the state courts continued to accept PCR petitions from him. (Petition Doc, 1 at 11.) But that is not an extraordinary circumstance. Moreover, Petitioner fails to explain how his sporadic state petitions precluded him from filing his federal habeas petition.
Finally, diligence and tenaciousness are two different things. While diligence is a prerequisite to equitable tolling, it is diligence in pursuing a federal petition, not diligence in the state court proceedings, that is required. See United States v. Oriakhi, 394 Fed.Appx. 976, 977 (4th Cir. 2010) (unpublished decision) (“Although the record shows that Oriakhi doggedly pursued a transcript, he has failed to show that he diligently pursued his [federal habeas petition”); and Parker v. Neven, 2014 WL 3592424, at *9 (D. Nev. July 18, 2014) (“Dogged pursuit of other litigation in other courts, including a federal action in Arkansas, does not demonstrate that petitioner pursued his rights diligently with regard to federal postconviction relief.”). Moreover, diligence is required for equitable tolling, but not sufficient. Rather, Petitioner must also show that “extraordinary circumstances ma[de] it impossible to file a petition on time.” Ramirez, 571 F.3d 997.
Petitioner complains about his troubles obtaining his file from PCR counsel. (Reply, Doc. 11 at 3.) But those troubles occurred during Petitioner's first PCR proceeding, when his limitations period had not even commenced running. Petitioner proffers nothing to show that he was diligent thereafter. Instead the record reflects no activity by Petitioner for some 30 months.
Further, where the denial was not of all records, but only some, the Ninth Circuit has focused on whether the available records were sufficient for the petitioner to formulate their claims. See Gibbs v. Legrand, 767 F.3d 879, 889 (9th Cir. 2014) (where petitioner had “copies of the state post-conviction briefs,” tolling still appropriate because “federal petition includes a due process claim not present in the state post-conviction petition”). Here, Petitioner clearly had been provided some of his files as early as May, 2016. (See Exh. II, M.E. 5/4/16; Exh. JJ, Not. Completion 5/22/16.) Petitioner offers nothing to connect any particular missing records with any claim raised in his federal petition.
Petitioner complains that he was “in isolation and did not have proper access to the court.” But Petitioner proffers no explanation about the timing of such isolation, nor what “proper access” he was denied. Assuming this transpired during the running of his limitations period in 2016 and 2017, Petitioner fails to show that there was no time thereafter that he had sufficient resources to file a federal petition. The contrary is shown by his ability to file four additional post-conviction proceedings with the state courts between August 20, 2019 (when his second PCR application was filed) and July 14, 2023 when his federal petition was filed.
Petitioner fails to show he is entitled to equitable tolling.
5. Actual Innocence
To avoid a miscarriage of justice, the habeas statute of limitations in 28 U.S.C. § 2244(d)(1) does not preclude “a court from entertaining an untimely first federal habeas petition raising a convincing claim of actual innocence.” McQuiggin v. Perkins, 569 U.S. 383 (2013). To invoke this exception to the statute of limitations, a petitioner “'must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'” Id. at 399 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). This exception, referred to as the “Schlup gateway,” applies “only when a petition presents ‘evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error.' ” Id. at 400 (quoting Schlup, 513 U.S. at 316). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Schlup, 513 U.S. at 324.
Petitioner makes no claim of actual innocence based on new credible evidence, and the record reveals none.
6. Summary re Statute of Limitations
Taking into account the available statutory tolling, Petitioner's one year habeas limitations period commenced running on September 27, 2016, and expired on September 26, 2017, making his July, 2023 Petition almost six years delinquent. Petitioner has shown no basis for additional statutory tolling, and no basis for equitable tolling or actual innocence to avoid the effects of his delay. Consequently, the Petition must be dismissed with prejudice.
B. OTHER DEFENSES
Because the undersigned concludes that Petitioner's Petition is plainly barred by the statute of limitations and resolution of the other defenses would involve addressing the merits of various claims to dispose of Petitioners' assertions of cause from ineffective assistance of counsel, and Respondents assertions regarding cognizability, Respondents other defenses are not reached.
IV. CERTIFICATE OF APPEALABILITY
The standard for issuing a certificate of appealability (“COA”) is whether the applicant has “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling. Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED:
(A) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
(B) To the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.
VI. EFFECT OF RECOMMENDATION
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.
However, 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. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”