Opinion
Civil No. 05cv0358 H (AJB).
January 26, 2006
Report and Recommendation Re Petition For Writ of Habeas Corpus [Doc. No. 1, 12]
Petitioner Leroy Willis, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in San Diego Superior Court Case No. SCD160270. Petitioner was convicted of sale of a controlled substance, possession of a controlled substance for sale, and possession of a controlled substance. Petitioner was, however, paroled with regard to case number SCD160270, but was arrested on September 16, 2005 on charges unrelated to his prior case and is currently being held in the San Diego County Jail. With regard to SCD 160270 Petitioner argues 1) that the police failed to impound the currency used in the buy, in violation of his due process right to the disclosure of exculpatory evidence and that failure to impound the buy money violated other unspecified constitutional rights and 2) that there was insufficient evidence to support his conviction. Respondents filed a Answer to the Petition. Petitioner subsequently filed two Traverses. Upon review and for the reasons set forth herein, it is recommended that Petitioner's Petition for Writ of Habeas Corpus be DENIED.
Procedural History
The San Diego County District Attorney's Office filed an information charging Petitioner with unlawful sale of cocaine base (count 1), unlawful possession of cocaine base for sale (count 2), and unlawful possession of cocaine base (count 3). Cal. Health Safety Code §§ 11350(a), 11351.5, 11352(a). The information further alleged that Petitioner had five previous convictions within the meaning of California Penal Code section 667.5(b). (Lodgement 1 at 1-2.)A jury found Petitioner guilty on all three counts. (Lodgment 1 at 284-286.) In a bifurcated trial, the trial court found true allegations that Petitioner had five previous convictions within the meaning of California Penal Code section 667.5(b). (Lodgment 1 at 287-289.) Petitioner was sentenced to an aggregate determinate prison term of seven years. Petitioner received the middle term of four years for the sale of cocaine base (count 1). Three consecutive one year sentence enhancements were added for three of Petitioner's five prior convictions pursuant to section 667.5(b); in the interest of justice, the trial court exercised its discretion to dismiss the remaining two prior conviction sentence enhancements. Punishment on count 2 was ordered to be served concurrently and punishment on count 3 was stayed. (Lodgment 1 at 240, 294.)
Petitioner, with the aid of appointed counsel, appealed his conviction to the California Court of Appeals. (Lodgment 3.) Petitioner concurrently filed a separate writ for habeas corpus, in propria persona. (Lodgment 6.) The Court of appeals consolidated the direct appeal and the habeas corpus claims, denied both, and affirmed Petitioner's conviction. (Lodgment 8.)
Petitioner subsequently appealed this conviction to the California Supreme Court, which summarily denied Petitioner's appeal. (Lodgment 9.)
Petitioner filed the present Petition for Writ of Habeas Corpus on February 22, 2005.
Factual Background
On May 22, 2001, San Diego County Police Officer Raymond Rowe was working as an undercover narcotics officer in downtown San Diego. Rowe, a seven year veteran of the San Diego Police Department, was a member of Narcotics Team 8, a group of officers specifically assigned to investigate narcotics street transactions. Prior to joining Narcotics Team 8, Rowe underwent an 80-hour course in which he learned to identify narcotics, narcotic sales and transactions, and street slang and drug culture relevant to his work as an uncover narcotics officer. (Lodgment 2 at 236-238.) During his tenure on Team 8, Rowe observed over 300 narcotics transactions. (Lodgment 2 at 253.)
At approximately 7:30 pm on the date in question, Rowe was working undercover on the southwest corner of the intersection of Eighth Avenue (North-South) and C Street (East-West). (Lodgment 2 at 241.) Rowe was approached by Gerry Moore, who asked Rowe if he sold narcotics; Rowe replied he did not. Rowe was approached by Gerry Moore, said no and then walked away. (Lodgment 2 at 244.)
Several minutes later, Moore returned with two companions. The three stopped approximately ten feet away from Rowe and conversed for several minutes. (Lodgment 2 at 245.) Meanwhile, Rowe observed Petitioner approach a parking structure located on the opposite side of C Street, accompanied by three individuals. The four men spoke briefly on the street and then Petitioner entered the entry way of the parking structure with one of the men; the other two waited on the street. (Lodgment 2 at 247, 249.) Petitioner reached into the waist area of his pants, removed an object, and handed it to the man. Once the transaction finished, the man walked off. (Lodgment 2 at 252.) Rowe had an unobstructed view of the entire transaction. (Lodgment 2 at 250.) Based on his training and experience, and the events which had just transpired, Rowe suspected that Petitioner was selling narcotics. (Lodgment 2 at 252-253.)
While this transaction took place, Rowe observed Moore point to Petitioner and say to his two companions, "there he is". (Lodgment 2 at 247.) Moore crossed the street alone and waited on the sidewalk until Petitioner completed the transaction in the parking structure. After Petitioner finished, Moore approached Petitioner and spoke with him briefly. Immediately thereafter, Moore walked back across the street and said to his two companions, "you wanted a 20 right?", "go across and get it". Rowe understood Moore's statement as street slang indicating that Moore's companions wanted twenty dollars worth of narcotics. (Lodgment 2 at 253-255.)
One of Moore's companions walked across the street and spoke with Petitioner. The two walked into the parking structure and conducted a transaction similar to the first. Petitioner reached into his pant leg and removed an object from his sock, which he then handed to Moore's companion. Moore's two companions left immediately after the transaction finished. Rowe suspected that Petitioner had consummated a second hand-to-hand narcotics transaction with Moore's companion. (Lodgment 2 at 255.)
Rowe subsequently approached Moore and asked for assistance in procuring "two twenties" of rock cocaine (forty dollars worth of cocaine); Moore agreed to do so. Rowe handed Moore two pre-recorded twenty dollar bills as payment for the cocaine. Moore again crossed the street spoke with Petitioner. The two men then walked back across C Street and down 7th Ave., roughly a block away from Rowe's position. Suspicious and concerned that Moore might simply leave with the money, Rowe followed in pursuit. Roughly a minute later, Moore returned with the rock cocaine. (Lodgment 2 at 255-257.) Before delivering the cocaine, Moore asked for a small piece of cocaine as a transaction fee for procuring the drugs. Rowe denied the request but instead offered Moore a five dollar bill, which had also been pre-recorded. Rowe and Moore then parted ways. Immediately thereafter, Rowe contacted his fellow officers to stop Petitioner and Moore. (Lodgment 2 at 322-323.)
San Diego Police Department narcotics units customarily photocopy currency and bills used in narcotics investigations. The practice facilitates efforts to track currency used in undercover investigations. (Lodgment 2 at 239-240.)
Petitioner and Moore were arrested several minutes later. Officers found the two pre-recorded twenty dollar bills in Petitioner's pants pocket. At the time of arrest, the officers verified that the bills recovered from Petitioner were in fact Rowe's pre-recorded bills by matching the serial numbers on the confiscated bills against those in the photocopies. (Lodgment 2 at 451.) During a subsequent strip-search, officers also revealed 1.52 grams of cocaine and 2.35 grams of marijuana. (Lodgment 2 at 329-331.) Police also searched Moore and recovered the pre-recorded five dollar bill; no narcotics were found. (Lodgment 2 at 326, 451.) Pursuant to department procedure, the pre-recorded bills confiscated from both men were re-circulated for use in other on-going narcotics investigations. In other words, the bills were neither impounded nor preserved as evidence. (Lodgment 2 at 340.)
The San Diego District Attorney filed an information charging Petitioner with: (i) sale of a controlled substance, (ii) possession of a controlled substance for sale, and (iii) possession of a controlled substance. The information further alleged that Petitioner had five prior convictions. Petitioner pled not guilty on all three counts and denied all allegations. (Lodgment 1 at 1-2.)
At trial, the prosecution presented the facts as stated above. Petitioner made a pretrial motion to prohibit any reference to the pre-recorded bills because the police had not impounded the money. Petitioner's pretrial motion was denied by the trial court. Moore testified that he independently sold cocaine to Rowe, without help or participation from Petitioner. He further testified that the cocaine sold to Rowe was not purchased from Petitioner. Last, Moore testified the 1.52 grams of cocaine and 2.35 grams of marijuana found on Petitioner belonged to him, not Petitioner. Moore explained that the cocaine and marijuana had fallen to the floor at the Police Station and had been mistakenly attributed to Petitioner. (Lodgment 2 at 569-574.)
Legal Standard
1. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), in order to obtain relief, a petition for writ of habeas corpus must demonstrate that the state court's adjudication on the merits resulted in a decision that was "contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of facts in light of the evidence presented." 28 U.S.C. § 2254(d); Juan H. v. Allen, 408 F.3d 1262 (9th Cir. 2005).
A state court's decision is contrary to clearly established federal law if the state court applies a rule that contradicts the governing law as set forth in Supreme Court cases. It will also be contrary to Supreme Court precedent if it confronts a set of facts that are materially indistinguishable from a prior decision of the Supreme Court and arrives at a different result. Early v. Packer, 537 U.S. 3, 7-10 (2002).
A state court's decision will involve an unreasonable application of clearly established federal law if the state court identifies the correct governing legal principle from Supreme Court precedent, but unreasonably applies that principle to the facts of the case. See Williams v. Taylor, 529 U.S. 362, 407-408 (2000). The application of clearly established federal law by the state court must be objectively unreasonable. Lockyer v. Andrade, 538 U.S. 63 (2003).
Federal habeas corpus relief is limited to claims that allege a constitutional violation in the state criminal proceedings. Herrera v. Collins, 506 U.S. 390, 400 (1993); Townsend v. Sain, 372 U.S. 293, 317(1963). In federal habeas proceedings, a state court's factual determinations are presumptively correct. 28 U.S.C. § 2254(d); Patton v. Yount, 467 U.S. 1025, 1037 n. 12 (1984); Sumner v. Mata, 455 U.S. 591, 592-93 (1982).
2. Claims Under Brady v. Maryland
Due process under the Fourteenth Amendment requires a prosecutor to disclose or produce all material exculpatory information in its possession to the defense. Brady v. Maryland, 373 U.S. 83, 87 (1963); United States v. Agurs, 427 U.S. 97, 107 (1976). Evidence is material when there is "a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." U.S. v. Bagley, 473 U.S. 667, 682 (1985); see also Karis v. Calderon, 283 F.3d 1117, 1128 (9th Cir. 2002).
"There are three components of a true Brady violation: [t]he evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 119 S.Ct. 1936, 1948 (1999). A Brady violation is committed when the prosecution fails to disclose evidence that is "favorable to an accused" and "material either to guilt or to punishment." Brady v. Maryland, 373 U.S. 83, 87 (1963). While a Brady claim does not aim at undermining the sufficiency of the evidence, it may have that effect, because "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995).
This rule extends to impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985); United States v. Alvarez, 86 F.3d 901, 904 (9th Cir. 1996), cert. denied, 519 U.S. 1082 (1997). Moreover, failure to request particular evidence does not relieve the government of its burden to disclose exculpatory or impeaching evidence, "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682, 105 S.Ct. at 3383-84. See also Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995).
In determining whether the evidence is material, the Court must look at whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome. U.S. v. Bagley, 473 U.S. 667, 682 (1985). Thus, the evidence must have been that which if disclosed to the defense, would have changed the result of the proceeding. Id. The materiality test is the "equivalent to the Chapman harmless error test." Brown v. Borg, 951 F.2d 1011, 1015 n. 2 (9th Cir. 1991) ( citing Bagley, 473 U.S. at 679 n. 9).
3. Failure to Preserve Evidence
The duty to preserve evidence is limited to material evidence, i.e., evidence whose exculpatory value was apparent before its destruction and that is of such nature that the defendant cannot obtain comparable evidence from other sources. California v. Trombetta, 467 U.S. 479, 489(1984); Cooper v. Calderon, 255 F.3d 1104 (9th Cir. 2001). A police officer's failure to preserve or collect potential exculpatory evidence does not violate the Due Process Clause unless the officer acted in bad faith. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Miller v. Vasquez, 868 F.2d 1116, 1120 (9th Cir. 1989); Cooper v. Calderon, 255 F.3d 1104 (9th Cir. 2001). "The presence or absence of bad faith . . . turn[s] on the police's knowledge of the exculpatory value of the evidence at the time it was lost or destroyed." Youngblood, 488 U.S. at 57.
Furthermore, under the rule of Arizona v. Youngblood, "the failure of a state to preserve evidence `of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant,' is not a denial of due process of the law `unless a criminal defendant can show bad faith on the part of the police.'" 488 U.S. 5; Mitchell v. Goldsmith, 878 F.2d 319, 321 (9th Cir. 1989) ( quoting Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). Bad faith is required to make out a violation of due process because a law enforcement agency has no constitutional duty to perform any particular test. See Youngblood, 488 U.S. at 59; U.S. v. Heffington, 952 F.2d 275, 281 (9th Cir. 1991); United States v. Van Griffin, 874 F.2d 634, 638 (9th Cir. 1989).
Bad faith is shown where "the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant." Youngblood, 488 U.S. at 58; U.S. v. Heffington, 952 F.2d at 281. A police department's compliance with "departmental procedure" should be regarded as an indication that the disposal of evidence was not performed in "bad faith." See Mitchell, 878 F.2d at 322 (observing, in the course of enumerating reasons for not finding bad faith, that "the police were acting in accord with their normal practices"); U.S. v. Heffington, 952 F.2d at 281. 4. Sufficiency of the Evidence
Under 28 U.S.C. § 2254, a federal court must entertain a claim by a state prisoner that he or she is being held in "custody in violation of the Constitution or laws or treaties of the United States" when all state remedies have been exhausted, and no independent and adequate state ground stands as a bar. See Jackson v. Virginia, 443 U.S. 307 (1979). Where a state prisoner claims, under 28 U.S.C. Section 2254, that he is entitled to relief due to the insufficiency of the evidence, the Court must review the Petitioner's claims to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979).
See Jackson v. Virginia, 443 U.S. 307, 321 (1979).
See 28 U.S.C. § 2254(b).
See Estelle v. Williams, 425 U.S. 501 (1976); Francis v. Henderson, 425 U.S. 536 (1976); Wainwright v. Sykes, 433 U.S. 72 (1977); Fay v. Noia, 372 U.S. 391 (1963).
The Ninth Circuit has held that the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. at 318. However, this inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Id. at 319 citing Woodby v. INS, 385 U.S. 276, 282 (1966). Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S. 356, 362 (1972). This familiar standard gives full weight to the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. at 319. Once a defendant has been found guilty of the crime charged, the fact-finder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review, all of the evidence is to be considered in the light most favorable to the prosecution. Id. The criterion thus impinges upon "jury" discretion only to the extent necessary to guarantee the fundamental protection of due process of law.
Discussion
The Petitioner is not entitled to habeas relief unless he is able to show that the state court's ruling on the issue was contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). In his petition, the Petitioner argues 1) that the police failed to impound the currency used in the buy, in violation of his due process right to the disclosure of exculpatory evidence and that that failure to impound the buy money violated other unspecified constitutional rights and 2) that there was insufficient evidence to support his conviction.A. Petitioner's Brady Claims
To succeed on this claim, Petitioner must show that: (1) the evidence was exculpatory or impeaching; (2) the suppressed evidence was material to his guilt or punishment; and (3) it should have been, but was not produced. See United States v. Steinberg, 99 F.3d 1486, 1489 (9th Cir. 1996).
1. Evidence Was Not Exculpatory
Petitioner has failed to demonstrate the exculpatory weight and value of the $20 bills. Contrary to Petitioner's contention, the Court finds that had the bills been produced, they would more likely serve to inculpate, rather than exculpate Petitioner. Here, the bills circumstantially establish Petitioner's involvement in the sale of narcotics to Rowe. Rowe gave two $20 bills to Moore to procure cocaine. Moore then met with Petitioner and returned with the cocaine. The end result of these dual transactions left Rowe with cocaine, Moore with a $5 commission, and Petitioner with two pre-recorded $20 bills. A jury could reasonably find these events sufficient to establish the consummation of a narcotics transaction in which Moore was the facilitator and Petitioner the dealer. At the very least, the bills shift the burden of proof upon Petitioner to explain his possession and control over the bills if in fact he had no participation in the narcotics transaction.
Furthermore, the prosecution's inability to produce the bills at trial only served to undercut its theory that Petitioner was connected to the sale of narcotics to Rowe. Without the $20 bills, the prosecution was forced to rely on in court testimonies from Rowe and the arresting officers to verify that the bills recovered from Petitioner were identical to those previously recorded by Rowe. Thus, the unavailability of the bills arguably placed the prosecution at a disadvantage with respect to establishing Petitioner's role in the narcotics transaction. Moreover, this verification process provided Petitioner a valuable opportunity to cross-examine the arresting officers' credibility, recollection, and percipience, and thereby undercut the prosecution's case in chief. These considerations lead the Court to find that the $20 bills offer little exculpatory weight or value.
Though couched in the language of a Brady claim, Petitioner's prayer for relief should more appropriately be characterized as a challenge to the sufficiency of evidence supporting conviction. Petitioner is not truly concerned that the $20 bills would have exonerated him, but rather that a reasonable jury could not have convicted him without the production of the bills. However, for reasons that will be discussed below, the Court finds that there was more than sufficient evidence to support conviction.
2. Evidence Was Not Material
Petitioner has not shown that the evidence was "material" as that term has come to be understood in the context of a Brady claim. In United States v. Bagley, 473 U.S. 667 (1985), the Court explained the meaning of the term "material." "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 682 (plurality opinion); accord id. at 685 (White, J., concurring). "The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434 (1995).
Thus, the Court must determine whether the production of the two $20 bills would have changed the outcome of the trial. Steinberg, 99 F.3d at 1491 (one shows a Brady violation "by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict") ( quoting Kyles v. Whitley, 514 U.S. at 435, 115 S.Ct. at 1566). In the present case, the $20 bills carry little, if any, exculpatory weight, and therefore, are unlikely to change the outcome of the trial. Put simply, the evidence complained of fails to meet the threshold level of materiality necessary to establish a successful Brady claim. 3. Respondent's Failure to Preserve Evidence
Since the evidence in the instant case was disposed of in compliance with departmental procedures, this routine disposal of the evidence was apparently not the product of any realization that the evidence could form a basis for exonerating the defendant. See Mitchell, 878 F.2d at 322. Furthermore, the facts of the instant case are not specific or compelling enough to show bad faith on the part of the San Diego Police officers involved. Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir 2001) (stating plaintiff must "put forward specific, nonconclusory factual allegations that establish improper motive") (internal quotations omitted). Jeffers v. Gomez, 267 F.3d 895, 907 (9th Cir 2001).
As such, the mere failure on the part of the San Diego Police Department to preserve potentially useful evidence, the two $20 bills used in the buy, does not violate Petitioner's due process rights under the Fourteenth Amendment as Petitioner has failed to demonstrate any nonconclusory factual allegations that establish bad faith on the part of the officers involved in his arrest. See Youngblood, 488 U.S. at 58; Jeffers, 267 F.3d at 907. Furthermore, the fact that it was departmental policy not to preserve such buy money and that the officers acted in compliance with this departmental procedure should, in the absence of nonconclusory factual allegations to the contrary, be regarded as an indication that the disposal of evidence was not performed in "bad faith." See Mitchell, 878 F.2d at 322 (observing, in the course of enumerating reasons for not finding bad faith, that "the police were acting in accord with their normal practices"); U.S. v. Heffington, 952 F.2d at 281.
B. Sufficiency of the Evidence
When reviewing the sufficiency of the evidence to support a criminal conviction, the critical inquiry must not be to simply determine whether the jury was properly instructed on reasonable doubt, but to determine whether the evidence in the record could reasonably support a finding of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 308 (1979) quoting In re Winship, 397 U.S. 358 (1970). The relevant question is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
There is ample evidence in the present case to support the trial court verdict. The prosecution established by circumstantial evidence that Petitioner was involved in the sale of narcotics to Rowe. Rowe testified he paid Moore two pre-recorded $20 bills to procure cocaine. Following a brief meeting with Petitioner, Moore returned and delivered the cocaine. The completed transactions left Rowe with the solicited cocaine, Moore with a $5 commission, and Petitioner with the two pre-recorded $20 bills. Although the prosecution was unable to produce the $20 bills at trial, the prosecution established through witness testimony that the bills confiscated from Petitioner matched those previously recorded by Rowe. Verifying the identity of the bills in this way raises issues regarding witness credibility, veracity, recollection, and percipience, all of which the jury must resolve in rendering a verdict. Undoubtedly, such issues are open to different interpretations, and therefore, create the potential for error. Nonetheless, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. Applying these criteria, we hold that a rational trier of fact could reasonably have found that the petitioner guilty. Jackson v. Virginia, 443 U.S. 307, 326 (1979).
Conclusion
For the foregoing reasons, the Court hereby recommends that this Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED. This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Petitioner's written objections must be filed with the court and a copy served on all parties by February 15, 2006. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed by March 1, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.