Opinion
CV-19-3755-PHX-DWL (JFM)
04-06-2021
Richie Lee Carver, Petitioner v. David Shinn, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS
James F. Metcalf United States Magistrate Judge
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Tucson, Arizona, 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. FACTUAL BACKGROUND
In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:
The state court's summary was admittedly viewing “the evidence in the light most favorable to sustaining the jury's convictions.” (Exh. DD, Mem. Dec. 2/26/13 at ¶ 2.) The undersigned does not present this summary as factual findings, but merely as background.
In December 2006, Carver moved out of a house that he had shared with one of the victims, Ryan. On December 23, 2006, Carver and his father, Larry, went to the house to retrieve some property that he had left behind and to confront Ryan about a rumor that Ryan had “pistol whipped” them.
¶3 Ryan and his girlfriend Heather were sitting on the couch watching television when Carver and Larry arrived at the back door. Not anticipating any problems, Ryan opened the door. Carver pulled out a revolver, pointed it at Ryan's head, and shot him in the face. Ryan immediately fell to the floor and, as he tried to get up, thought he was shot in the head a second time before he lost consciousness. When Ryan did not come home for Christmas on December 25, his mother called the police. Officers arrived at Ryan's home and, after receiving no response from their repeated knocks, peered inside and observed a body and blood on the couch. Thereafter, they entered the home and found Heather dead on the couch in the living room of the house. The medical examiner determined that Heather died of a gunshot wound to her head and that the time of death was “a few days before” the police discovered her body.
¶4 Police interviewed Ryan, not realizing that he had suffered a bullet wound to the head. Ryan appeared disoriented and confused, and claimed that he had been shot by Carver. Police then observed a small hole on the side of Ryan's nose and realized that Ryan had suffered a gunshot wound and called paramedics.(Exh. DD, Mem. Dec. 2/26/13 at ¶¶ 2-4.) (Exhibits to the Answer, Doc. 14, are referenced herein as “Exhibit __.”)
When interviewed by police, Petitioner's mother (and co-defendant's wife) told police co-defendant admitted to the shootings. At trial, when called by the prosecution, she said she could not remember making the statements, and had lied to get away from co-defendant, her estranged husband.
B. PROCEEDINGS AT TRIAL
Petitioner and his father were charged in Maricopa County Superior Court with burglary, aggravated assault, first degree murder, theft, and weapons misconduct. (Exh. A, Indictment.) Before trial, the court granted Petitioner's motion to sever, and the prosecution dismissed co-defendant's case without prejudice. (Exh. DD, Mem. Dec. 2/26/13 at ¶ 5, n. 2.)
Petitioner proceeded to a jury trial with counsel, asserting an alibi defense (being at home with his mother and sister, who corroborated the alibi). He also sought to present a third-party defense, referencing a jealous ex-boyfriend of Heather, but the trial court precluded evidence on the defense.
Petitioner was acquitted of theft but was found guilty of the remaining charges. (Id. at ¶ 10.) Petitioner was sentenced to life without possibility of parole on the murder charge and consecutively to presumptive, concurrent prison terms on the remaining charges, the longest of which was 15.75 years for burglary. (Exh. U, Sentence.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed through counsel a direct appeal. After an initial round of briefing under Anders, counsel filed an Opening Brief (Exh. BB) raising arguments about hearsay statements by co-defendant, improper methods by the prosecution to introduce such testimony, and the exclusion of evidence on third party culpability. On February 26, 2013, the Arizona Court of Appeals rejected the arguments and affirmed Petitioner's conviction and sentences. (Exh. DD, Mem. Dec. 2/26/13.)
Originally counsel filed a brief (Exh. V) pursuant to Anders v. California, 386 U.S. 738 (1967) and related state cases, reciting potential issues, but asserting an inability to find an arguable issue of law to raise. The appellate court directed supplemental briefing by counsel on potential arguments identified in the Anders brief. (Exh. W, Order 1/17/10.) The appellate court then directed supplemental briefing pursuant to Penson v. Ohio , 488 U.S. 75 (1988) on five issues relating to the hearsay statements of co-defendant. (Exh. X Order 7/28/11.) Counsel then filed a supplemental brief (Exh. Y) arguing various errors in admission of hearsay statements by co-defendant. The Court then struck the opening brief, finding the issues raised were not frivolous, and ordering a new opening brief. (Exh. AA, Order 3/1/12.)
Petitioner did not seek further review, and on June 12, 2013 the mandate issued. (Exh. DD.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
On April 1, 2013, between the appellate decision on appeal and the issuance of the mandate, Petitioner filed a Notice of Post-Conviction relief (Exh. EE). Counsel filed a notice of inability to find an issue for review. (Exh. FF.) Petitioner then filed a pro per PCR Petition (Exh. GG), raising claims that trial and appellate counsel were ineffective, and the prosecution engaged in misconduct. The PCR court rejected all three claims on the merits. (Exh. JJ, M.E. 3/6/15.)
Petitioner filed a Petition for Review (Exh. KK) raising the same arguments. On May 18, 2017, the Arizona Court of Appeals granted review and denied relief. The Court concluded that only the ineffective assistance of trial counsel was fairly presented, and the other claims waived under Arizona Rule of Criminal Procedure 32.9(c)(1) by failure to argue them. The Court found that the Petition for Review failed to provide any argument on his claims of ineffective assistance of trial counsel or to show error in the trial court's ruling, and thus deemed them waived as well. (Exh. MM, Mem. Dec. 5/18/17.)
Petitioner then filed with the Arizona Supreme Court a Petition for Review (Exh. NN). On January 4, 2018, the Arizona Supreme Court summarily denied review (Exh. OO).
E. PRESENT FEDERAL HABEAS PROCEEDINGS
Petition - Over 16 months later, Petitioner commenced the current case by filing his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 24, 2019 (Doc. 1). Petitioner's Petition asserts the following grounds for relief:
In Ground One, Petitioner asserts that he received ineffective assistance of trial, appellate, and post-conviction counsel, in violation of the Sixth Amendment. In Ground Two, Petitioner claims he was denied his right to a fair trial, due process, and equal protection when the trial court allowed the admission of Petitioner's codefendant's incriminating statements, called Petitioner's mother to testify, and precluded Petitioner from questioning a witness about third-party culpability. In Ground Three, Petitioner contends the prosecutor committed misconduct, in violation of Petitioner's rights to a fair trial, equal protection, and due process. In Ground Four, Petitioner asserts that the cumulative effect of his counsel's ineffectiveness violated Petitioner's Sixth Amendment rights. In Ground Five, Petitioner claims he is actually innocent.(Service Order 10/3/19, Doc. 7 at 1-2 (emphasis added).) Petitioner argues any untimeliness should be excused because: “Requested stay and abey via motion. Denial of Access to the courts. IAC counsels at all stage.” (Petition, Doc. 1 at 11, physical page (hereafter “p.p.”) 12.)
Petitioner also filed a Motion to Stay and Abey (Doc. 2) seeking a stay to allow him to exhaust his state remedies on his unexhausted claims.
Response - On December 24, 2019, Respondents filed their Limited (“Answer”) (Doc. 14). Respondents argue the petition is untimely, Petitioner has procedurally defaulted his state remedies on all but Ground 2 (which asserts the claims raised on direct appeal), and all of Petitioner's claims are conclusory and thus too vague to warrant habeas relief. Respondents argue because no new state proceeding had been instituted, a stay was inappropriate. (Doc. 13 at 2, n. 1.)
Reply -The Court set a firm deadline of January 31, 2020 for Petitioner to reply in support of the Petition and the Motion to Stay and Abey. (Order 1/2/20, Doc. 15.) Petitioner filed neither.
On February 13, 2020, the Court denied the Motion to Stay and Abey. (Order, Doc. 16.)
III. APPLICATION OF LAW TO FACTS
A. TIMELINESS
1. One Year Limitations Period
Respondents assert that Petitioner's Petition is untimely. A 1-year statute of limitations applies to 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. Id.
2. Commencement of Limitations Period
a. Conviction Final
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).
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). Except as discussed hereinafter, Petitioner proffers no argument that any of these apply.
Here, Petitioner's direct appeal remained pending at least through February 26, 2013 when the Arizona Court of Appeals denied his appeal. (Exhibit DD Mem.Dec.) Thereafter, Petitioner had 30 days to seek review by the Arizona Supreme Court. Moreover, Arizona applies 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 Memorandum Decision was delivered to Petitioner or his counsel by any means other than mailing. Accordingly, Petitioner's time to seek review by the Arizona Supreme Court expired 35 days after the appellate court decision, or on April 2, 2013.
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. 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.
Based on the foregoing, Petitioner's conviction became final on April 2, 2013 upon expiration of his time to file a petition for review with the Arizona Supreme Court.
b. Impediment
Section 2244(d)(1)(B) provides for a delayed commencement of the limitations period “when a petitioner has been impeded from filing a [federal] habeas petition” by state action. Shannon v. Newland, 410 F.3d 1083, 1088 (9th Cir. 2005).
Petitioner argues in the Petition that his untimeliness should be excused because of “[d]enial of access to the courts.” But Petitioner fails to offer anything to show that such denial related to the filing of his federal habeas, or that it arose from an impediment created by the State of Arizona.
Moreover, Section 2244(d)(1)(B) requires that the impeding State action be “in violation of the Constitution or laws of the United States.” Petitioner offers nothing to show that whatever circumstance he refers to would amount to a constitutional violation.
Petitioner also references “IAC at all stages.” Defense counsel, regardless if employed or paid by the state, is the Petitioner's agent, not the state's. Such incompetence, assuming it occurred, “is not the type of State impediment envisioned in § 2244(d)(1)(B).” Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), affirmed on other grounds 549 U.S. 317 (2007).
Petitioner's conclusory assertions do not justify the application of § 2244(d)(1)(B).
c. Conclusion re Commencement
Therefore, Petitioner's one year began running on April 3, 2013, and without any tolling expired on April 2, 2014.
Respondents calculate the expiration date as one day later, on April 3, 2014. (Answer, Doc. 14 at 11.) 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. Thus, the one year commenced the day after Petitioner's conviction became final, or on April 3, 2013 (day one), and the last day was 364 days later, on April 2, 2014. 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. Timeliness Without Tolling
Petitioner's Petition (Doc. 1) was filed on May 24, 2019.
However, the Petition is dated May 17, 2019, and bears what appears to be a postmark from “5/22/19.” “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 proffers nothing to suggest that his Petition was delivered to prison officials for mailing. The postage stamp on the accompanying envelope indicates it was mailed from Kemah, Texas, while Plaintiff's return address showed he was incarcerated at the Arizona State Prison in Tucson, Arizona. Moreover, apart from the date of the Petition and the apparent postal mark, Petitioner proffers nothing to show that it was so delivered prior to its filing date. Nonetheless, because it does not make a difference, the undersigned assumes arguendo (in Petitioner's favor) that his Petition was delivered to prison officials for mailing to the Court on the date it was signed, May 17, 2019, and that it should be deemed “filed” as of that date.
As determined in subsection (1) above, without any tolling Petitioner's one-year habeas limitations period expired no later than April 2, 2014, making his May 17, 2019 Petition over five years delinquent.
4. 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). This provision only applies to state proceedings, not to federal proceedings. Duncan v. Walker, 533 U.S. 167 (2001).
Petitioner's limitations period commenced running on April 3, 2013. Petitioner's PCR proceeding was commenced at least by April 1, 2013, before his limitations period began running, when he filed his PCR notice. It remained pending until January 4, 2018, when the Arizona Supreme Court denied review. (Exhibit OO.)
An Arizona post-conviction relief proceeding remains pending until issuance of the mandate, at least in those PCR cases in which a mandate is called for under Ariz. Rev. Stat. § 12-120.24 (requiring a mandate “if the matter has been decided by formal opinion”). See Celaya v. Stewart, 691 F.Supp.2d 1046 (D. Ariz. 2010), aff'd 497 Fed.Appx. 744, 2012 WL 5505736 (9th Cir. 2012), cert. denied, 133 S.Ct. 1824 (2013). See Ariz. R. Crim. Proc. 31.22(a), eff. 1/1/18 (“An appellate court retains jurisdiction of an appeal until it issues the mandate.”). Here, the Arizona Court of Appeals issued a formal opinion (as opposed to an order denying review), and its mandate was not issued until February 5, 2018 (Exh. MM), and tolling continued through that date.
Respondents' calculations (that the limitations period ran from January 2018) do not consider the effect of the state court's delayed mandate. (Ans. Doc. 14 at 12.)
Thus, Petitioner's habeas limitations period was tolled from its commencement through February 5, 2018. It commenced running again on February 6, 2018 and expired one year later, on February 5, 2019.
The undersigned observes that Plaintiff had filed in this federal proceeding a Motion to Stay and Abey (Doc. 2), seeking a stay to exhaust his state remedies, and references such motion as a justification for his untimeliness. (Petition, Doc. 1 at p.p. 12.) But it is only state proceedings which toll the statute of limitations. Duncan, supra. Moreover, that motion was filed at the same time as the Petition, after the otherwise tolled statute of limitations had already expired. Once the statute has run, a subsequent post-conviction 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).
Consequently, Petitioner's May 17, 2019 habeas petition was over three months delinquent.
5. 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.). Moreover, 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.”).
As discussed hereinabove in connection with state created impediments and the commencement of the limitations period (Section III(A)(2)(b), supra), Petitioner offer conclusory assertions of a denial of access to the courts and ineffective assistance of counsel. Those conclusory assertions do not meet Petitioner's burden of proving cause for equitable tolling.
Moreover, with regard to the ineffective assistance of counsel, ordinarily such ineffectiveness in the state court proceeding does not establish cause for tolling in filing a federal habeas petition. Petitioner offers nothing to show that such counsel had an obligation to assist him in filing his federal petition.
Further, although a habeas attorney's behavior can establish the extraordinary circumstances required for equitable tolling, mere negligence or professional malpractice is insufficient. Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001). A “garden variety claim of excusable neglect,' such as a simple ‘miscalculation' that leads a lawyer to miss a filing deadline does not warrant equitable tolling.' ” Holland v. Florida, 560 U.S. 631, 651-652 (2010). Rather, the attorney's misconduct must rise to the level of extraordinary circumstances. Id. Petitioner suggests no such extraordinary circumstances.
Petitioner also references his Motion to Stay and Abey. (Petition, Doc. 1 at p.p. 12.) But the need for or pendency of such motion would not have prevented him from timely filing his federal habeas petition. Nor would his need to have exhausted state remedies on his claims. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Supreme Court analyzed the potential catch-22 between the habeas limitations period and the exhaustion requirement, where a state petitioner has filed a state post-conviction relief proceeding which may ultimately be deemed untimely, thus not properly filed, and resulting in the expiration of his habeas limitations period. “A prisoner seeking state postconviction relief might avoid this predicament, however, by filing a ‘protective' petition in federal court and asking the federal court to stay and abey the federal habeas proceedings until state remedies are exhausted.” Id. at 416. Petitioner proffers no reason why this avenue was not available to him.
Nor does Petitioner show that he has ever actually commenced the state proceeding to exhaust his state remedies since filing his federal petition. Rather, he appears to have simply abandoned such efforts at exhaustion.
In sum, Petitioner fails to meet his burden of showing cause for equitable tolling.
6. 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, 133 S.Ct. 1924, 1935 (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 1935 (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 1936 (quoting Schlup, 513 U.S. at 316).
Petitioner makes no claim of actual innocence as a basis to avoid the statute of limitations. He does, however, assert actual innocence as a claim for relief. (Petition, Doc. 1 at p.p. 10.)
In support of that assertion, the Petition offers no facts, only a reference to the Motion to Stay and Abey. In his Motion to Stay and Abey, Petitioner refers to his family's assertions that they have “direct communication with Lloyd Carver and said do-defendant is willing to provide [a] notarized affidavit as evidence in proof for Petition to raise the Actual Innocence constitutional claim, ” and that such affidavit would be obtained “soon.” (Motion, Doc. 2 at 2-3.) However, Petitioner has not provided such affidavit.
A petitioner may not simply allege that such evidence exists, but must present it to the habeas court, through affidavit of the witness, etc. See Weeks v. Bowersox, 119 F.3d 1342, 1352-1353 (8th Cir. 1997). It is not sufficient for a petitioner to claim actual innocence if he fails to proffer anything other than conclusory allegations to support a claim of actual innocence. See James v. Borg, 24 F.3d 20, 26 (9th Cir.1994) (stating that unsupported, conclusory allegations do not warrant habeas relief).
Moreover, Petitioner does not even provide any indication of the nature of the expected affidavit. At best, he submitted with the Petition what purports to be an undated letter from “Larry Carver” asserting that if asked to testify at trial, he would have done so, and “my son would have never been convected [sic] of this crime...that what I have to say will change everything.” (Petition, Doc. 1 at pp. 13.)
Further, “[t]o 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 proffers no reason to believe such evidence would be reliable. In addition to the bias from the familial relationship, the fact that Petitioner's father did not come forward previously (or since the purported discussions with Petitioner's family reported by Petitioner) to provide whatever information he has, despite knowing his son's freedom was at stake, suggests he is not a trustworthy witness.
Petitioner fails to meet his burden of showing a convincing claim of actual innocence.
7. Summary re Statute of Limitations
Taking into account the available statutory tolling, Petitioner's one-year habeas limitations period commenced running on April 3, 2013, and with the tolling from his PCR proceeding from then until February 5, 2018, expired on February 5, 2019. Thus, his Petition (assumed arguendo to have been “filed” as of May 17, 2019) was 101 days 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 some claims to dispose of assertions of cause from ineffective assistance of counsel), Respondents other defenses are not reached.
IV. CERTIFICATE OF APPEALABILITY
Ruling Required - Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the “district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Such certificates are required in cases concerning detention arising “out of process issued by a State court”, or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).
Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.
Applicable Standards - 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). “Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “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.” Id.
Standard Not Met - 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 that the Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that, 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.”