Opinion
No. CV-19-08153-PCT-NVW (MTM)
04-06-2020
Glen James Cooper, Petitioner, v. Charles L Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE NEIL V. WAKE, SENIOR UNITED STATES DISTRICT JUDGE:
Petitioner Glen James Cooper has filed pro se a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1)
I. SUMMARY OF CONCLUSION
Petitioner's conviction became final on April 7, 2014. Petitioner's first post-conviction relief proceeding concluded when the Arizona Court of Appeals denied the petition for review of the denial of Petitioner's notice of post-conviction relief on August 10, 2017. Petitioner's habeas Petition was due on or before September 11, 2018 but was not filed until May 21, 2019. Because there are no grounds for equitable tolling, the Court concludes that Petitioner's claims are untimely. Petitioner is not entitled to equitable tolling because Petitioner has not identified any extraordinary circumstance that prevented him from a timely filing of his claims. Therefore, the Court will recommend that the Petition be denied and dismissed with prejudice.
II. BACKGROUND
A. Factual Background.
The Arizona Court of Appeals set forth the following facts in its Memorandum Decision affirming Petitioner's convictions and sentences on direct appeal:
See 28 U.S.C § 2254(e)(1) (stating that "a determination of factual issues made by a State court shall be presumed to be correct."); Runningeagle v. Ryan, 686 F.3d 758, 763 (9th Cir. 2012) (affording the Arizona Supreme Court's statement of facts "a presumption of correctness that may be rebutted only by clear and convincing evidence") (citing 28 U.S.C. § 2254(e)(1) and Moses v. Payne, 555 F.3d 742, 746 n.1 (9th Cir. 2009)).
On June 27, 2010, S.P. informed her mother that in October 2008, while the family was on a camping/quail-hunting trip in Hackberry, Arizona, defendant placed his hand down her pants and touched her genitals. S.P. told mother about the incident after defendant entered S.P.'s bedroom and asked her to "come lay [sic] with [him] ... when everybody else [was] asleep." S.P. did not previously inform mother of the incident because mother had dismissed S.P. after reporting another incident during which defendant placed his hand inside her bra and touched her nipple, stating that "maybe it was [S.P.]" and that "it didn't matter" and that S.P. was "overplaying it." S.P. decided to disclose the 2008 incident because she was "just filled up with it ... it had happened enough" and she thought that her mother would do something about it "that time."State v. Cooper, No. 1 CA-CR 12-0467, 2013 WL 2446055 *1 (Ariz. Ct. App. June 4, 2013). Petitioner was charged with one count of molestation of a child, one count of sexual abuse with a minor under fifteen years of age, and one count of voyeurism. On May 24, 2012 the jury convicted Petitioner on the molestation charge but acquitted on the other two charges. (Doc. 9-1, Ex. E at 18.) Petitioner was sentenced by the Mojave County Superior Court to a term of eleven (11) years in prison, with sixty (60) days of service credit, and eighteen (18) months of supervised release. (Doc. 9-1, Ex. G at 26.)
S.P. eventually told Detective Earl Chalfant about what happened during the camping trip in 2008. She told Detective Chalfant that, while the family usually went quail hunting on her grandfather's property in Yucca, Arizona, the family went instead to Hackberry, to her Aunt Kelly and Uncle Wade's property. The molestation occurred while the family was sleeping in a trailer located on the property. All of the family members—mother, defendant, S.P., and S.P.'s three siblings—all slept "in a very small bed" in the "fold out travel trailer."
S.P. woke up because she "felt something" and realized that defendant had "switched" places to where he was lying next to her. She felt defendant "walking his hand down" in her pants. She was scared and did not know how to confront him, so she pretended to be asleep but kept slapping defendant's hand away, "trying to make it look like a gesture that I was still sleeping and it wasn't like I was awake doing that." This behavior continued "for about an hour or so;" and, while S.P. would "smack his hand out before he did anything," each time defendant would put his hand back "faster ." Although defendant never got "inside" her vagina, one time, when she did not have time to slap fast enough, defendant "touched the lips." After that, defendant "kept trying" to put his hand down her pants, but she smacked him away and "he never touched the lips again." S.P. then saw defendant go out the door of the trailer, and she seized the opportunity to put her sister next to her. When defendant returned to bed, he reached over her sister and tried once again to put his hand down her pants, but S.P. "smacked his hand away once more" and defendant eventually stopped trying.
B. Direct Appeal.
In a timely, direct appeal filed on July 18, 2012, Petitioner raised one issue: whether the trial court abused its discretion by granting Mojave County's motion amending the indictment to change the location the incident allegedly occurred in. The Arizona Court of Appeals discussed the pertinent facts surrounding the motion:
In July 2010, the state charged defendant with Count 1, molestation of a child, alleging that "[d]uring the month of October 2008, in the vicinity of 4025 East Mountain View Road, Yucca, Mohave County, Arizona," defendant "intentionally or knowingly engaged in sexual contact with S.P., a person under 15 years of age." On the day prior to the start of jury selection, defendant filed a motion in limine in which he moved to preclude the victim's statements regarding the molestation incident that she alleged occurred in Hackberry. According to defendant, "the alleged victim's statement and [defendant's] statement discuss[ed] two different acts which they claim occurred at two different locations." Therefore, because the victim's statements involved "an uncharged sex act" and because the state had not alleged an intent to use them as Arizona Rule of Evidence 404(c) propensity evidence, the victim's statements about the Hackberry incident were precluded by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012), because evidence of the Hackberry incident was not "intrinsic" to the actual offense charged.
The state responded that the evidence supported only "one incident" of molestation that occurred in October 2008 during a "camping/quail-hunting trip" when defendant touched S.P.'s genitals one time. The fact that the victim and defendant disputed the location where the incident occurred—with the victim being adamant that it occurred on her aunt's property in Hackberry, and defendant being equally adamant that it occurred in Yucca—did not "mean that two events were created." The state also noted that it need only have alleged that the incident occurred in Mohave County as all parties agreed. Consequently, the state simultaneously filed a motion to amend indictment to delete the specific address and indicate only that the offense "occurred in Mohave County."
At the hearing, the prosecutor explained that the state had decided to use the Yucca address based on its surmise that defendant, being older than the fourteen-year-old victim, "was able to describe the property better." Regardless, defendant could cross-examine witnesses and argue the inconsistencies to his advantage. Defense counsel maintained that changing
the location in the indictment to Mohave County was "not sufficient notice ... as to the location [of the offense] for [the defense] to form any sort of defense" to the charge. He also argued that, because defendant and the victim were each adamant as to the location, and because the evidence showed that the family went camping fifteen times in three different locations that year, it was important to identify precisely where the offense occurred. Consequently, defense counsel argued that amending the indictment to state simply "Mohave County" was not made to correct a mistake of fact because it was "entirely possible we're talking about two different incidents."Cooper, 2013 WL at *2-3. On June 4, 2013, the Arizona Court of Appeals rejected Petitioner's argument, and affirmed his conviction and sentence. Petitioner sought review in the Arizona Supreme Court, which summarily denied review on January 7, 2014. (Doc. 9-2, Ex. Q at 22.) Petitioner's conviction became final on April 7, 2014, after the 90-day window to seek certiorari in the Supreme Court of the United States expired.
The trial court noted that the "only discrepancy" was where in Mohave County the offense had occurred because "everyone agrees that every one of these three locations is somewhere in Mohave County." The trial court also noted that the alleged date of the incident was the same and that "the description [of the incident] by the alleged victim and the defendant seem to be describing the same incident." The court granted the state's motion to amend the indictment pursuant to Rule 13.5(b) of the Arizona Rules of Criminal Procedure based on what it found to be a mistake of fact, striking "4025 East Mountain View Road, Yucca" and leaving only "Mohave County" as the designated location in the document. The trial court accordingly denied defendant's motion in limine, finding that the "two differing dueling versions of the camping trip incident" described an incident that only "happened once" with simply "a disagreement as to where it took place."
C. Post-Conviction Relief Proceedings.
1. First Post-Conviction Relief Proceeding.
On March 5, 2014, Petitioner filed a Notice of Post-Conviction Relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure with the Mojave County Superior Court. (Doc. 9-2, Ex. R at 24.) Petitioner was assigned an attorney and filed a timely petition on February 8, 2016. (Doc. 9-2, Ex. T at 31.) On July 22, 2016, the Mojave County Superior Court denied relief. (Doc. 9-2, Ex. W at 103.) Petitioner sought review by the Arizona Court of Appeals, which denied relief on August 10, 2017. (Doc. 9-3, Ex. EE at 23.) Petitioner did not appeal the Arizona Court of Appeals' decision to the Arizona Supreme Court. (Doc. 9-3, Ex. FF at 25.)
The approximate two-year gap between when the Notice of Post-Conviction Relief was filed versus when the Petitioner for Post-Conviction Relief was filed was not explained. The reviewing court considered the petition on the merits, as did the Arizona Court of Appeals.
2. Second Post-Conviction Relief Proceeding.
On December 8, 2017, Petitioner filed a second Notice of Post-Conviction Relief with the Mojave County Superior Court. (Doc. 9-3, Ex. GG at 31.) The reviewing court dismissed the petition as untimely on March 13, 2018. (Doc. 9-3, Ex. HH at 47.) Petitioner sought review of the dismissed petition with the Arizona Court of Appeals, which denied review on June 14, 2018. (Doc. 9-3, Ex. KK at 67.) Petitioner did not appeal to the Arizona Supreme Court.
III. PETITION FOR WRIT OF HABEAS CORPUS
On May 15, 2019, Petitioner filed a Petition for Writ of Habeas Corpus. (Doc. 1.) This Court summarized his claims as follows:
In Ground One, he claims that his due process rights were violated when the trial court allowed the state to amend the indictment to conform to the evidence. In Grounds Two through Four, Petitioner alleges that he received ineffective assistance of counsel when his trial counsel failed to: file a motion to preclude other-act evidence (Ground Two), "complete" his impeachment of the victim's testimony (Ground Three), or object to the amended indictment on grounds that it was duplicitous (Ground Four).(Doc. 3 at 1-2.)
On October 4, 2019, Respondents filed a Limited Response. (Doc. 9.) On October 21, 2019, Petitioner filed a Reply. (Doc. 11.)
IV. DISCUSSION
The writ of habeas corpus affords relief to persons in custody pursuant to the judgment of a state court in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. §§ 2241(c)(3), 2254(a). Petitions for Habeas Corpus are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 28 U.S.C. § 2244. Whether a petition is barred by the statute of limitations is a threshold issue that must be resolved before considering other procedural issues or the merits of individual claims.
The AEDPA imposes a one-year limitation period, which begins to run "from the latest of . . . the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Here, on June 4, 2013, the Arizona Court of Appeals affirmed Petitioner's conviction. On January 7, 2014, the Arizona Supreme Court summarily denied the petition for review. Petitioner's conviction thus became final 90 days later on April 7, 2014, when the period for filing a petition for writ of certiorari with the Supreme Court of the United States expired.
Petitioner states in his Reply that the one-year limitations period of the AEDPA began to run only after the second post-conviction relief proceeding was concluded on July 30, 2018 and asserts that the deadline to file his federal petition was July 30, 2019. (Doc. 11 at 2-3.) From that date, Petitioner's May 21, 2019 filing in this Court would be timely. However, the AEDPA's limitations period begins to run upon the conclusion of "direct review" of the conviction. Petitioner's first and second PCR proceedings are considered "collateral review" proceedings instead of "direct review" proceedings, and therefore at best only entitle Petitioner to tolling of the limitations period. See Hemmerle v. Schriro, 495 F.3d 1069, 1075 n.4 (9th Cir. 2007).
a. Statutory Tolling
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). In Arizona, post-conviction review is pending once a notice of post-conviction relief is filed. See Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1056 (9th Cir. 2004). See also Ariz. R. Crim. P. 32.4(a) ("A proceeding is commenced by timely filing a notice of post-conviction relief with the court in which the conviction occurred.").
Because Petitioner filed a timely notice of post-conviction relief, he is entitled to statutory tolling of the first PCR proceeding. Petitioner filed the first notice of post-conviction relief on February 2, 2014. Because the notice of post-conviction relief was filed before the time to seek certiorari in the Supreme Court of the United States expired, the one-year limitation period of the AEDPA did not begin to run until after the proceedings in Petitioner's first notice of post-conviction relief concluded. Petitioner's first PCR proceeding concluded on August 10, 2017, when the Arizona Court of Appeals denied the petition for review of the denial of Petitioner's post-conviction relief petition. See Hemmerle 495 F.3d at 1074-76. Therefore, the one-year period was tolled until at least September 11, 2017, and Petitioner was required to file his Petition in this Court by September 11, 2018 at the latest.
The Ninth Circuit in Hemmerle stated that the tolling period lasted "at least" until the first PCR notice was summarily dismissed, but did not address whether tolling terminates on the exact day the reviewing court issues its decision, or if tolling continues until the period to seek review of the adverse decision elapses. At least one court in this District has highlighted the discrepancy. See Holemen v. Ryan, No. CV-12-02350-PHX-SRB, 2013 WL 3716603 *4-9 (D. Ariz. July 15, 2013). In this case, the question is not outcome determinative, but the Court affords Petitioner the benefit of the doubt and uses the date when the opportunity to seek review of the Arizona Court of Appeals' decision expired.
Petitioner is not entitled to statutory tolling while his second post-conviction relief proceeding was pending. A state petition that is not filed within the state's required time limit is not "properly filed," and therefore not entitled to statutory tolling. Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) ("When a post-conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of § 2244(d)(2)."); Allen v. Siebert, 552 U.S. 3, 6 (2007) (finding that inmate's untimely state post-conviction petition was not "properly filed" under the AEDPA's tolling provision).
Petitioner filed his second PCR proceeding on December 20, 2017. (Doc. 9-3, Ex. HH at 47.) Petitioner acknowledged in his second PCR petition that his petition was untimely but argued the trial court should excuse his untimely filing. (Doc. 9-3, Ex. GG at 40-44.) However, the Mojave County Superior Court rejected this argument. (Doc. 9-3, Ex. HH at 47-48.) Even when Petitioner brought the timeliness issue to the attention of the Arizona Court of Appeals (see doc. 9-3, Ex. JJ at 53-54), the court affirmed dismissal. (Doc. 9-3, Ex. KK at 67.) Therefore, Petitioner's second PCR petition was untimely as a matter of state law, and therefore not eligible for statutory tolling under the AEDPA.
Insofar as Petitioner contends that the finding of untimeliness by the Mojave County Superior Court under Ariz. R. Crim. P. 32 was mistaken, that contention does not entitle Petitioner to relief. Even assuming one occurred, federal courts do not grant relief for errors by state courts in interpreting state law. Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
b. Gap Tolling
The Petitioner is not entitled to toll the time gap between the two PCR proceedings. King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003). As set forth by the Ninth Circuit, the two-part "gap tolling" test reads as follows:
First, we ask whether the petitioner's subsequent petitions are limited to an elaboration of the facts relating to the claims in the first petition. If not, these petitions constitute a "new round" and the gap between the rounds is not tolled. But if the petitioner simply attempted to correct the deficiencies, then the petitioner is still making "proper use of state court procedures," and his application is still "pending" for tolling purposes. We thus construe the new petitions as part of the first "full round" of collateral review. We then ask whether they were ultimately denied on the merits or deemed untimely. In the former event, the time gap between the petitions is tolled; in the latter event it is not.King, 340 F.3d at 823 (citations omitted); see also Hemmerle, 495 F.3d at 1075. Here, the first prong of the King test is not satisfied. The first ground for relief stated in Petitioner's second PCR proceeding is that trial counsel in Petitioner's first PCR proceeding "fail[ed] to investigate and preserve specific claims made by Cooper in written communications to Mojave County Legal Defender Eric Devany [...] in Cooper's 'Rule 32 of-right' proceeding." (Doc. 9-3, Ex. GG at 32.) Petitioner reiterates in his Reply that his second PCR proceeding "was done to address a constitutional violation that had not been factored into the original PCR filing." (Doc. 11 at 2.) The second PCR petition is therefore not merely "an elaboration of the facts relating to the claims in the first petition" within the meaning of King, because it presented entirely new grounds for relief. Accordingly, Petitioner is not entitled to toll the time gap between the two PCR proceedings.
Even assuming the first prong of King is satisfied, the second is not. Petitioner's second PCR was dismissed as untimely by the trial court and affirmed by the Arizona Court of Appeals. (Doc. 9-3, Exs. HH, KK at 47, 67.) Because at least one PCR petition was not decided on the merits, Petitioner does not satisfy the second prong of King.
c. Equitable Tolling
Petitioner is not entitled to equitable tolling because he has not shown extraordinary circumstances. "A petitioner who seeks equitable tolling of AEDPA's one-year filing deadline must show that (1) some 'extraordinary circumstance' prevented him from filing on time, and (2) he has diligently pursued his rights." Holland v. Florida, 560 U.S. 631, 649 (2010); Luna v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). Petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). Equitable tolling is only appropriate when external forces, rather than a petitioner's lack of diligence, account for the failure to file a timely habeas action. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). Equitable tolling is to be rarely granted. See, e.g., Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009). Petitioner must show that "the extraordinary circumstances were the cause of his untimeliness and that the extraordinary circumstances made it impossible to file a petition on time." Porter v. Ollison, 620 F.3d 952, 959 (9th Cir. 2010). "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) (citation omitted).
Petitioner does not assert that equitable tolling should apply. In the Petition, Petitioner left blank Question No. 16, which requires Petitioner to explain why the limitations period of AEDPA does not bar a federal habeas petition "if your judgment of conviction became final more than one year ago." (Doc. 1 at 11.) The standard petition form also includes a copy of 28 U.S.C. § 2244(d), which identifies the bases for statutory tolling. (Id.) In the Reply, Petitioner also does not address the issue of equitable tolling, arguing instead that the Petition was timely filed. (Doc. 11 at 2-3.) It is Petitioner's burden to demonstrate the "extraordinary circumstances" that excuse the untimely filing of the Petition. Because Petitioner made no effort to do so anywhere in this proceeding, the Petition is not subject to equitable tolling.
Petitioner's pro se status and unfamiliarity with the law does not excuse his failure to comply with 28 U.S.C. § 2244(d)'s one-year statute of limitations. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."). Petitioner has failed to meet the "very high threshold," United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004), of establishing that extraordinary circumstances beyond his control made it impossible for him to timely file a habeas petition and that those extraordinary circumstances were the cause of his untimeliness.
d. Actual Innocence
Petitioner could avoid the time bar if he can demonstrate that a fundamental miscarriage of justice would result from this Court's failure to reach the merits of the claim. "Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar . . . [or] expiration of the statute of limitations." McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013). The Ninth Circuit has held that "[a] petitioner is actually innocent when he was convicted for conduct not prohibited by law." Alaimalo v. United States, 645 F.3d 1042, 1047 (9th Cir. 2011). Actual innocence is possible when a petitioner shows "in light of subsequent case law, that he cannot, as a legal matter, have committed the alleged crime." Vosgien v. Persson, 742 F.3d 1131, 1134 (9th Cir. 2014).
Here, actual innocence is not one of the four claims presented by Petitioner. Petitioner challenges the legal sufficiency of the amendment to the indictment and the performance of trial counsel, as opposed to the factual sufficiency of the elements necessary to obtain a conviction under A.R.S. § 13-1410(A). This Court cannot say that no juror, acting reasonably, could find Petitioner guilty beyond a reasonable doubt.
The Arizona Court of Appeals held in Cooper that the location of the alleged molestation was not an element of the crime charged. 2013 WL at *4, citing State v. Archer, 603 P.2d 918, 920 (Ariz. Ct. App. 1979). Therefore, Petitioner's assertions that the trial court violated the Fifth, Sixth, and Fourteenth Amendments by allowing the state to amend the indictment do not establish that "he was convicted for conduct not prohibited by law," even assuming the alleged constitutional violations are proven.
e. Martinez
Although Petitioner does not cite to Martinez v. Ryan, 566 U.S. 1 (2012), the Court has considered Petitioner's general claim that his prior counsel did not pursue his claims. Martinez is unavailing because it does not excuse untimeliness. In Martinez, the Supreme Court recognized a narrow means by which a prisoner can show "cause" to excuse a state procedural default of a claim based upon alleged ineffective assistance of counsel at trial. See Martinez, 566 U.S. at 7-8. Martinez does not address or create an exception to the AEDPA statute of limitations. Federal courts have consistently rejected the argument that Martinez provides relief for time-barred petitions in the form of equitable tolling of the statute of limitations. See Chavez v. Sec'y, Fla. Dep't Corr., 742 F.3d 940, 945 (11th Cir. 2014) ("Chavez's initial § 2254 petition was dismissed as untimely because it was filed more than one year after his convictions became final on direct review, see 28 U.S.C. § 2244(d)(1)(A), and nothing in Martinez alters that fact."); See also, Madueno v. Ryan, No. CV-13-01382-PHX-SRB, 2014 WL 2094189, at *7 (D. Ariz. May 20, 2014) ("Martinez has no application to the statute of limitations in the AEDPA which governs Petitioner's filing in federal court.").
IV. EVIDENTIARY HEARING
An evidentiary hearing is not warranted regarding Petitioner's claims, including equitable tolling, because the record is sufficiently developed to resolve the question of whether the Petition is timely. A habeas petitioner asserting equitable tolling "should receive an evidentiary hearing when he makes 'a good-faith allegation that would, if true, entitle him to equitable tolling.'" Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quoting Laws, 351 F.3d at 919). An evidentiary hearing is not mandatory. For the reasons outlined above, the Court has thoroughly reviewed the Petition, Reply, and attachments and found Petitioner has not made a showing that equitable tolling should be granted in this case.
V. CONCLUSION
The record is sufficiently developed and the Court does not find that an evidentiary hearing is necessary for resolution of this matter. See Rhoades v. Henry, 638 F.3d 1027, 1041 (9th Cir. 2011). Based on the above analysis, the Court finds that Petitioner's claims are untimely. The Court will therefore recommend that the Petition for Writ of Habeas Corpus (Doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
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. The parties shall have 14 days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.
Dated this 6th day of April, 2020.
/s/_________
Honorable Michael T. Morrissey
United States Magistrate Judge