Opinion
CV 23-00746-PHX-DWL (MTM)
04-26-2024
Leonard Eshaya, Petitioner, v. Ryan Thornell, et al., Respondents.
HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
Petitioner Leonard Eshaya, who is confined in the Arizona Department of Corrections, has filed, through counsel, a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
I. SUMMARY OF CONCLUSION
Petitioner was convicted of three counts of possession or use of dangerous drugs, two counts of possession of drug paraphernalia, and three counts of promoting prison contraband. He was sentenced to a 14-year term of imprisonment. In his Petition, Petitioner raises one ground for relief, alleging prosecutorial misconduct. Because his claim is without merit, the Court recommends his habeas petition be denied and dismissed with prejudice.
II. BACKGROUND
Petitioner was convicted by jury trial in Maricopa County Superior Court, case #CR 2014-118120, of three counts of possession or use of dangerous drugs, two counts of possession of drug paraphernalia, and three counts of promoting prison contraband, and was sentenced to a 14-year term of imprisonment. (Doc. 3); State v. Eshaya, 2019 WL 1777001 (Ariz.Ct.App. April 23, 2019). The Arizona Court of Appeals described the facts of the case, as follows:
The Arizona Court of Appeals' recitation of the facts is presumed correct. See 28 U.S.C. § 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting argument that statement of facts in state appellate court s opinion should not be afforded the presumption of correctness).
Detective Chilczek drove to a residential complex that had been the subject of numerous complaints and noticed an unfamiliar car parked in a resident's designated spot. Alerted to reports of possible illegal activity, Chilczek became suspicious of the car and began conducting surveillance. From his concealed location, Chilczek observed Eshaya and a woman, K.B., moving items from a residence to the car.
Chilczek followed the pair after they finished loading the car and drove away. Before long, he saw Eshaya extend his right arm outside the passenger window to drop a crumpled piece of paper onto the road, prompting Chilczek to ask Detective Goodsen-driving a marked police car nearby-to initiate a traffic stop. During that stop, Goodsen arrested and searched Eshaya, finding pieces of foil, a lighter, and a piece of a pen.
After completing the search, Goodsen transported Eshaya to the city jail. Upon their arrival, Goodsen asked Eshaya if he had any remaining contraband in his possession, warning that taking contraband into jail is a serious separate offense. Eshaya did not respond. Shortly thereafter, detention officers discovered a pouch in Eshaya's shorts with a glass pipe and multiple baggies containing drugs..
At trial, Eshaya testified he first met K.B. at a party. Although they had apparently just become acquainted, Eshaya offered to help K.B. pack some of her belongings for a move and they departed for her apartment. With the car loaded, Eshaya suggested they swim in the apartment complex's pool. Eshaya, who had no swim trunks, entered the hot tub with the shorts he was already wearing. A short time later, K.B. received a phone call and told Eshaya “we need to hurry and get out of here.” When they returned to the
apartment, K.B. asked Eshaya to grab whatever dry clothing he could find because she did not want him to ride in her car with wet clothing. Eshaya quickly donned a pair of oversized shorts he found on the floor, not noticing the pouch sewn inside them.Eshaya, 2019 WL 1777001, *1.
Petitioner filed a timely appeal alleging prosecutorial misconduct. Specifically, Petitioner argued that the prosecutor's questions on cross-examination and statements made at closing argument compel a new trial because the questions and statements shifted the burden of proof to Petitioner. Id. On April 23, 2019, the Arizona Court of Appeals affirmed Petitioner's convictions and sentences, finding no error. Id. On November 14, 2019, the Arizona Supreme Court denied Petitioner's petition for review, and the mandate issued on December 9, 2019. (Doc. 8 at 17, Exh. A.)
The record reflects that Petitioner commenced post-conviction relief proceedings on December 13, 2019, tolling the statute of limitations until May 31, 2022. (Doc. 8, Exhs. B, C, D.) Petitioner's PCR proceedings are not relevant to the instant matter.
In his habeas petition, Petitioner raises the same two instances of prosecutorial misconduct he raised in state court. In their Answer, Respondents argue that Petitioner's claim is meritless.
Although the appellate court addressed Petitioner's argument regarding the “cumulative effect” of alleged instances of prosecutorial misconduct, Petitioner raises no such claim in his habeas petition.
III. DISCUSSION
Pursuant to the AEDPA, a federal court “shall not” grant habeas relief with respect to “any claim that was adjudicated on the merits in State court proceedings” unless the state court decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and delivering the opinion of the Court as to the AEDPA standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is also a “highly deferential standard for evaluating state court rulings, which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted). “When applying these standards, the federal court should review the ‘last reasoned decision' by a state court ....” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
Antiterrorism and Effective Death Penalty Act of 1996.
A state court's decision is “contrary to” clearly established precedent if (1) “the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or (2) “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [its] precedent.” Williams, 529 U.S. at 404-05. “A state court's decision can involve an ‘unreasonable application' of Federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
In Ground One, Petitioner argues that the Arizona Court of Appeals' decision, finding no error with the State's questioning on cross-examination and statements made during closing argument, was contrary to or an unreasonable application of federal law. Petitioner contends that the State impermissibly shifted the burden of proof by telling the jury they could not acquit Petitioner unless they believed the defense's theory of the case. The Court will address the two instances of alleged prosecutorial misconduct below.
The appropriate standard for a claim of prosecutorial misconduct is “the narrow one of due process, and not the broad exercise of supervisory power.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). To succeed on a claim of prosecutorial misconduct, a petitioner must prove that the prosecutor's remarks were improper and that they so infected the trial with unfairness as to make the resulting conviction a denial of due process. Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974); see Smith v. Phillips, 455 U.S. 209, 219 (1982) (“the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor”). A petitioner is not entitled to habeas corpus relief in the absence of a due process violation even if the prosecutor's comments were “undesirable or even universally condemned.” Donnelly, 416 U.S. at 642.
When evaluating a petitioner's allegations of prosecutorial misconduct, the court “must consider the probable effect of the prosecutor's [comments] on the jury's ability to judge the evidence fairly.” United States v. Young, 470 U.S. 1, 12 (1985). To make such an assessment, the court must consider the prosecutor's remarks in context. See Boyde v. California, 494 U.S. 370, 385 (1990); Williams v. Borg, 139 F.3d 737, 745 (9th Cir. 1998). The Supreme Court has assessed the fairness of a petitioner's trial by considering, among other circumstances, whether the prosecutor's comments manipulated or misstated the evidence, whether the trial court gave a curative instruction, and “the weight of the evidence against the petitioner.” Darden, 477 U.S. at 181-82.
A. Cross-examination
In addressing Petitioner's direct appeal, the Arizona Court of Appeals first discussed the questions the prosecutor asked on cross-examination. The court stated:
At trial, the prosecutor asked Eshaya whether he disputed that he had carried drugs and drug paraphernalia on his person into a city jail. Eshaya said he had, but had done so without knowledge. The prosecutor then asked whether the jury “need[ed] ... to believe” Eshaya to acquit him, to which Eshaya answered, “[a]bsolutely.” The prosecutor followed this question up later with twelve questions asking Eshaya if he “need[ed]” the jury to “believe” certain implausible aspects of his testimony to acquit him.Eshaya, 2019 WL 1777001, *2. Petitioner objects to the following exchange:
(By Ms. Lake) And you need this jury to believe you, don't you?
A Absolutely.
Q There is no way that they can find you not guilty if they don't buy your story, can they?
A Right....
Q Another thing you need this jury to do is believe that your memory of this event is perfect, right?
A Yeah, but it's not.
Q Let's talk about some of the things you don't remember that well..
Q So let's just go over what you need this jury to believe in order to find you not guilty. First of all, you need them to believe that those pants over there in evidence are in fact the pants that you were wearing on the day in question, correct?
A Yes.
Q And you need them to believe that you put those pants on and could not have noticed what was inside them, correct?
A Correct.
Q And you need them to believe that in the course of putting those pants on, you didn't check for, I don't know, stains or anything on the inside, correct? A Yeah, no.
Q You need them to believe you put a belt on without noticing there was something tied around the button?
A If you say so. Why would there be stains on the inside?
Q You need them to believe that you put two - you bent over to put two shoes on without noticing anything between your legs, right?
A I just put them on real quick, put the belt on and walked out. I didn't evaluate anything.
Q But you need them to believe that you bent over, wearing the pants, put your shoes on, without noticing that there was an extra item there, right?
A I didn't bend over anywhere. I just sat down and put my shoes on.
Q They also need to believe that out of all of the options you might have had of all the clothes that were in this apartment, you picked the one pair of pants with drugs in them, right?
A The options were not a lot. The first pants that I looked at were three, four, five times bigger than those ones. So I didn't have very many options. There was girl clothes everywhere. There was few guy clothes, shirts, not very -there is pants, long pants.
Q So you did inspect the pants then.
A Very long pants.
Q But you need the jury to believe that you inspected some of the clothes but not these. Is that what you are saying?
A There was pants right next to the clothes, the pile of clothes. I just picked a pair of shorts and put them on and I left. What are you trying to say? I don't understand.
Q Well, you need this jury to believe that you inspected enough pairs of bottoms to know that these were the only ones that would fit you, but you did not inspect the interior of these shorts. Is that what you are asking the jury to believe?
A I didn't have time to go inspecting all these pants or these clothings. I had to go. She was already in the car. So I didn't have the time to do any of that.
Q So, yes, you are asking the jury to believe that you were able to assess the clothes in the apartment, but not assess the interior of the pants that you actually wore. That's correct.
A Yes.
Q Yes or no?
A Correct.
MS. LAKE: I have nothing further.(Doc. 16-3 at 56, 58-59, 80-83.)
In finding no error with the prosecutor's questioning of Petitioner, the court first found the twelve questions the prosecutor asked “were confined to a brief exchange at the close of cross-examination, mitigating the risk of unfairness.” Eshaya, 2019 WL 1777001, *2. Second, the court stated,
[W]e can reasonably infer a proper purpose for these questions. See State v. Bolton, 182 Ariz. 290, 308 (1995) (distinguishing [Pool v. Superior Court, 677 P.2d 261 (Ariz. 1984)], because “the prosecutor here did not call defendant pejorative names, refer to matters not in evidence, suggest unfavorable matter for which no proof exists, or abuse defendant in any other way”). The questions appear designed to undermine Eshaya's credibility -undoubtedly a proper purpose and were asked after multiple attempts by the prosecutor to impeach Eshaya with prior inconsistent statements and Eshaya's concession that he told police officers conflicting stories. To the extent the prosecutor may have crossed the line in posing argumentative questions to Eshaya, the consequences of doing so were mitigated by the prosecutor's phrasing at the end of this sequence. After asking multiple questions phrased in terms of what Eshaya “need[ed]” the jury to believe, the final question began “you are asking the jury to believe.” (Emphasis added.) This latter phrasing was more clearly designed to attack Eshaya's credibility, not badger him into conceding an incorrect legal position.Eshaya, 2019 WL 1777001, *3.
The Court finds the appellate court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of facts. Initially, the Court agrees that given the apparent conflicts in Petitioner's testimony and statements made to detectives, a reasonable interpretation of the State's questioning was to address Petitioner's credibility and the plausibility of his account of the events that occurred on the day of his arrest -- which the Court finds is a proper purpose as noted by the Court of Appeals. If a defendant “takes the stand and testifies in his own defense his credibility may be impeached and his testimony assailed like that of any other witness.” United States v. Palmer, 536 F.2d 1278, 1282 (9th Cir. 1976) (quoting Brown v. United States, 356 U.S. 148, 154-55 (1958)); see also United States v. Demarest, 570 F.3d 1232, 1242 (11th Cir. 2009) (Explaining that the prosecutor did not impermissibly shift the burden of proof; “[t]he prosecutor was entitled to crossexamine [the defendant] after he decided to testify, and a cross-examination necessarily entails testing the plausibility of a defendant's account.”). Thus, the prosecutor's crossexamination, asking Petitioner if he “need[ed]” the jury to “believe” certain implausible aspects of his testimony and highlighting the inconsistencies in his testimony and statements, while inartful, does not rise to the level of a constitutional violation. See, e.g., United States v. Tucker, 641 F.3d 1110, 1122 (9th Cir. 2011).
Further, even assuming the prosecutor's questions were misconduct, Petitioner has not shown such misconduct was so persistent to have “infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181. The twelve questions at issue were confined to the end of counsel's cross-examination constituting an isolated incident over the course of a six-day trial. Moreover, the trial court's instructions made abundantly clear to the jury where the burden of proof lay. See, e.g., United States v. Tam, 240 F.3d 797, 802 (9th Cir. 2001) (holding that even if the prosecutor's burden-shifting statements during closing argument were improper, they were rendered harmless as a result of the district court's comments and instructions to the jury); United States v. Hernandez, 145 F.3d 1433, 1439 (11th Cir. 1998) (ruling that, even if the prosecutor's arguments were improper, any potential prejudice regarding burden-shifting was diminished by the court's explicit instruction that the government bore the burden of proof). The trial court instructed the jury before the trial began, and again when the case was submitted that (1) the State “has the burden of proving the defendant guilty beyond a reasonable doubt,” (2) the jury was to presume Petitioner innocent and that he “is not required to prove innocence or to produce any evidence,” (3) arguments or statements of counsel are not evidence, (4) the jury was the judge of witness credibility and that they should consider Petitioner's testimony in the same manner as they would any other witness's testimony, and (5) the court would provide the jury with the law it was to apply to the facts of the case. (Doc. 15 at 4-11, 17-28, Exhs. E, F.) Jurors are presumed to follow the court's instructions. See Greer v. Miller, 483 U.S. 756, 766 n.8 (1987).
Accordingly, under these facts, the Court agrees with the appellate court, and finds that the state court's adjudication of this claim was not contrary to, or an unreasonable application of federal law, or based on an unreasonable determination of the facts.
B. Closing Argument
The Court of Appeals next addressed Petitioner's contention that the State shifted the burden of proof during its initial closing and rebuttal arguments. The court stated:
Eshaya also contends two incidents in closing arguments compounded the prejudicial effect of these cross-examination questions so that the jury must have understood that Eshaya was required to prove his innocence.. . .
Eshaya first directs us to the following comments from the State's initial closing argument, asserting the prosecutor improperly shifted the burden of proof to him by allegedly instructing the jurors that Eshaya had to create reasonable doubt before they could acquit him.
And remember, because it's in your instructions, reasonable doubt is not a numerical calculation.... Reasonable doubt is whatever you find reasonable....
... [P]roof beyond a reasonable doubt is proof that leaves you firmly convinced. There are few things that we can know for absolute certainty. You don't have to know for absolute certainty. If you find the doubt reasonable, you find him not guilty. You should not find the defendant's story reasonable because it isn't.
The thrust of the prosecutor's argument was that the circumstantial evidence proved Eshaya knew about the drugs in his shorts. The prosecutor repeatedly attacked Eshaya's claim of not noticing the pouch inside his shorts, pointing out it was undermined by Eshaya's own in-court demonstration because he looked down each time he put the shorts on, and the pouch would have been visible from that perspective. Indeed, as defense counsel would later
acknowledge in closing argument, Eshaya's story was one that was “not very plausible for most of us.” The prosecutor had also recently drawn the jury's attention to the court's instruction regarding the credibility of witnesses and the reasonable doubt standard. Although the prosecutor unnecessarily added some confusion by deviating from the reasonable doubt instruction in the comment quoted above, it is difficult to believe the jury would have understood that it must apply the reasonable doubt standard to Eshaya when the verbal and written instructions explicitly stated it applied to the State's burden of proof. Instead, it is more likely that the jurors would have understood the comments to be part of the broader credibility theme. Moreover, any risk that the jurors would have misunderstood the instructions was mitigated by Eshaya's own repeated insistence that the State's failure to produce certain evidence meant that it could not discharge its burden.
The second incident Eshaya identifies occurred during the State's rebuttal closing argument, beginning with the prosecutor's statement: “This defendant has an excuse for everything. He needs you to believe that he's a victim of just terrible circumstance. So let's go over what it is that you would need to believe to find the defendant not guilty.” (Emphasis added.) Eshaya objected, arguing that although the prosecutor could argue “that you would need to believe he didn't have knowledge for the following reasons,” the prosecutor could not argue that Eshaya was “not not guilty for the following reasons.” After conferring with counsel, the superior court did not rule on the objection, and the prosecutor went on to list aspects of Eshaya's testimony she claimed the jury “need[ed] to believe to buy the defendant's story, to find him not guilty.” As the prosecutor enumerated the sixth item, Eshaya renewed his objection as burden shifting. The parties and the court reconvened to discuss the objection, and without comment or direction to the jury, the court again allowed the prosecutor to continue the argument unimpeded.
Viewing these comments in their proper context, we disagree with Eshaya's contention that they prejudiced him by shifting the burden of proof from the State to him for at least four reasons.. . .Eshaya, 2019 WL 1777001, *3-4. First, the court found that since the prosecutor's statements were directly related to Petitioner's own testimony, the statements were reasonably supported by the evidence. Id. Second, the court found that the statements were part of “a wider discussion of credibility,” and it was clear that the prosecutor's intent was “to undermine Eshaya's credibility, not shift the burden of proof.” Id. Third, the court found that Petitioner's own closing argument, which attacked the sufficiency of the police investigation, lessened any unfairness regarding the prosecutor's statements in response. Id. Lastly, the court found that “the State's burden was mentioned multiple times throughout the trial, including by the court, the defense, and the prosecutor-ameliorating the risk of unfairness.” Id.
Having reviewed the prosecutor's initial and rebuttal arguments, the Court again finds the appellate court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of facts. Prosecutors and defense lawyers are given “wide latitude” in closing arguments. United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997). “Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence. In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying.” United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991) (citing United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988) (holding that the prosecutor's statement that defendant was a liar could be construed as a comment on the evidence) and United States v. Birges, 723 F.2d 666, 672 (9th Cir. 1984) (“It is neither unusual nor improper for a prosecutor to voice doubt about the veracity of a defendant....”)); Tucker, 641 F.3d at 1120-21 (“Prosecutors can argue reasonable inferences based on the record, and have considerable leeway to strike hard blows based on the evidence and all reasonable inferences from the evidence. A prosecutor may express doubt about the veracity of a witness's testimony [and] may even go so far as to label a defendant's testimony a fabrication.” (alteration in original) (internal quotation marks and citations omitted)).
As to the allegedly improper comments made towards the end of the prosecutor's initial closing argument, the Court finds the comments were made as part of her credibility discussion. Immediately before the comments were made, the prosecutor discussed the court's instructions for determining the credibility of witnesses. (Doc. 15 at 69, Exh. G.) Then, after the comments were made, the prosecutor stated,
So you are going to1 be given all of this evidence and you're going to be given an opportunity to talk to each other and explore what it is you found reasonable and what it is you didn't. And at the end of all of that, you should conclude that the defendant, the defendant's story is not credible. The defendant's claim that he kept those pants for three years is not plausible. The defendant's allegation that he couldn't have known because he dressed so quickly is ridiculous. And the defendant's excuse that he's the victim of tragic circumstances is laughable. And at the end of the day you should find the defendant guilty. Thank you.(Doc. 15 at 69-70, Exh. G.) The Court finds no error with the prosecutor's comments. “While the prosecutor's phrasing was inartful, his meaning is evident from context: to believe the defendant's account, the jury would have to believe implausible aspects of his testimony. This sort of argumentation is permissible.” Tucker, 641 F.3d at 1122.
Regarding the comments about what Petitioner “need[ed]” the jury to “believe” to find him not guilty, the Court again finds these comments were made in the context of the prosecutor's credibility discussion. The prosecutor repeatedly addressed Petitioner's testimony and explained why the jury should reject Petitioner's version of events. (Doc. 15 at 109-119, Exh. G.) Following her seventh comment on what the jury would “have to believe,” and further discussion of Petitioner's implausible testimony, the parties addressed the credibility of witnesses, and the prosecutor stated, Petitioner's credibility “is the most important issue” in this case. (Doc. 15 at 119-124, Exh. G.) The record reflects that these comments were made only after both parties repeatedly emphasized the State's burden. Eshaya, 2019 WL 1777001, *5.
The Court again finds no error with the prosecutor's comments. Highlighting weaknesses in the defense does not shift the burden of proof, particularly when, as here, the parties reiterate that the burden of proof is on the government. See Tucker, 641 F.3d at 1120-22; United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir. 1995). See also Molina, 934 F.2d at 1445 (In “a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of two sides is lying.”); United States v. Moreland, 622 F.3d 1147, 1163 (9th Cir. 2010) (Finding that the prosecution did not commit misconduct when it asked jurors to assess a witness's credibility and “once you conclude they're not credible, case is over.”).
Furthermore, even if the comments were improper, the trial court's statements and instructions to the jury (as the Court has previously noted) neutralized any potential prejudice. See Tam, 240 F.3d at 802 (holding that even if the prosecutor's burden-shifting statements during closing argument were improper, they were rendered harmless as a result of the district court's comments and instructions to the jury).
In sum, the Court finds that the prosecutor's comments during closing argument did not “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” Darden, 477 U.S. at 181. Petitioner has not shown that the appellate court's resolution of this claim was based on an unreasonable determination of the facts, or that it was contrary to, or based on an unreasonable application of federal law, and he is not entitled to habeas corpus relief on this claim.
Accordingly, the Court will recommend that Petitioner's claim as alleged in Ground One be denied.
IV. CONCLUSION
Having determined that Petitioner's claim as alleged in Ground One is meritless, the Court will recommend that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be denied and dismissed with prejudice.
IT IS THEREFORE RECOMMENDED that Petitioner's 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 Petitioner has not made a substantial showing of the denial of a constitutional right.
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 fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen days within which to file a response to the objections. Pursuant to Rule 7.2, 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 seventeen (17) pages in length. Failure timely to 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 timely to 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 or judgment entered pursuant to the Magistrate Judge's recommendation. See Rule 72, Federal Rules of Civil Procedure.