1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAIME ACOSTA, Case No.: 20-cv-2039-WQH-AHG
12 Petitioner, ORDER 13 v. 14 JEFF LYNCH, 15 Respondent. 16 HAYES, Judge: 17 The matter before the Court is the Report and Recommendation issued by the 18 Magistrate Judge (ECF No. 8), recommending that the Court grant the Motion to Dismiss 19 Petition for Writ of Habeas Corpus filed by Respondent Jeff Lynch (ECF No. 4). 20 I. BACKGROUND 21 On February 3, 1993, a jury found Petitioner Jaime Acosta guilty of first-degree 22 murder and robbery with use of a firearm. (ECF No. 1 at 1-2). On June 25, 1993, Petitioner 23 was sentenced to life in prison without the possibility of parole. (Id. at 1). Petitioner 24 appealed and filed a petition for writ of habeas corpus in the California Court of Appeal. 25 (ECF No. 5-2 at 3). On June 1, 1995, the court of appeal affirmed the conviction and 26 sentence and denied the petition for writ of habeas corpus. (Id.). On September 14, 1995, 27 the California Supreme Court affirmed the conviction and sentence. (ECF No. 1-2 at 2-3). 28 1 Petitioner filed a second petition for writ of habeas corpus in the California Court of 2 Appeal, which was denied on February 26, 2003. (ECF No. 5-2 at 3). 3 On October 12, 2018, Petitioner filed a third petition for writ of habeas corpus in the 4 San Diego County Superior Court. (ECF No. 5-1 at 1). Petitioner asserted, in relevant part, 5 that that there was insufficient evidence in his case to prove special circumstances based 6 on two California Supreme Court decisions: People v. Banks, 61 Cal. 4th 788 (2015), and 7 People v. Clark, 63 Cal. 4th 522 (2016). (ECF No. 5-1 at 10). On January 15, 2019, the 8 superior court denied the petition, concluding that Banks and Clark did not apply in 9 Petitioner’s case. (ECF No. 5-2 at 7). 10 On February 13, 2020, Petitioner filed a fourth petition for writ of habeas corpus in 11 the San Diego County Superior Court. (ECF No. 5-3 at 1). On March 2, 2020, the superior 12 court denied the petition, concluding that “[t]he fourth petition reasserts claims and 13 arguments made in petitioner’s appeal and third habeas corpus petition, all of which have 14 been denied.” (ECF No. 5-4 at 2-3). On April 28, 2020, Petitioner filed the fourth petition 15 in the California Court of Appeal. (ECF No. 5-5 at 7). On April 30, 2020, the court of 16 appeal denied the petition, concluding that it was untimely, and Banks and Clark are 17 inapplicable. (ECF No. 5-6 at 2-3). On July 2, 2020, Petitioner filed the fourth petition in 18 the California Supreme Court, which was summarily denied on September 9, 2020. (ECF 19 Nos. 5-7 at 1; 1 at 26). 20 On October 15, 2020, Petitioner filed a Petition for Writ of Habeas Corpus pursuant 21 to 28 U.S.C. § 2254 in this Court, asserting that there was insufficient evidence in his case 22 to prove special circumstances pursuant to Banks and Clark. (ECF No. 1). On January 5, 23 2021, Respondent filed a Motion to Dismiss, contending that the Petition is untimely. (ECF 24 No. 4). On February 3, 2021, Petitioner filed an Opposition to the Motion to Dismiss. (ECF 25 No. 6). Respondent did not file any reply. 26 On July 8, 2021, the Magistrate Judge issued a Report and Recommendation, 27 recommending that the Court grant Respondent’s Motion to Dismiss. (ECF No. 8). The 28 Report and Recommendation concludes that the Petition is facially untimely, and Petitioner 1 is not entitled to delayed accrual of the statute of limitations based on Banks and Clark. 2 The Report and Recommendation concludes in the alternative that even if Petitioner is 3 entitled to delayed accrual, neither statutory nor equitable tolling render the Petition timely. 4 On July 23, 2021, Petitioner filed Objections to the Report and Recommendation. (ECF 5 No. 9). Respondent did not file any reply. 6 II. THE REPORT AND RECOMMENDATION 7 The Report and Recommendation states that pursuant to the Antiterrorism and 8 Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner had until April 24, 1997, to 9 file his Petition for Writ of Habeas Corpus in this Court. The Report and Recommendation 10 states that “in filing his instant federal petition on October 15, 2020, the Petition is facially 11 untimely.” (ECF No. 8 at 4). The Report and Recommendation states that Petitioner is not 12 entitled to delayed accrual of the statute of limitations based on Banks and Clark, because 13 delayed accrual “only applies to new rules established by the United States Supreme 14 Court,” and “Banks and Clark were both decided by the California Supreme Court.” (Id. at 15 4). The Report and Recommendation concludes that the Petition is untimely on its face, 16 and “the analysis may end.” (Id. at 5). 17 The Report and Recommendation concludes in the alternative that the Petition is 18 untimely even if delayed accrual extends the expiration of the statute of limitations. The 19 Report and Recommendation states that Petitioner is entitled to statutory tolling while his 20 state habeas petitions were pending. The Report and Recommendation states that “if Banks 21 and Clark had delayed the trigger date for the statute of limitations, at most Petitioner 22 would have been entitled to 304 days of [statutory] tolling, which means that his limitation 23 period would have expired on April 28, 2018,” absent additional equitable tolling. (Id. at 24 6). The Report and Recommendation states that Petitioner is not entitled to equitable 25 tolling. The Report and Recommendation states that the medical records presented by 26 Petitioner do not support his assertions that Hepatitis C and chronic fatigue, depression, 27 and lack of mental clarity prevented Petitioner from timely filing a petition in this Court. 28 The Report and Recommendation states that Petitioner’s assertions that he had limited 1 access to the law library and lacks knowledge of the legal system are not extraordinary 2 circumstances sufficient to warrant equitable tolling. The Report and Recommendation 3 recommends that the Court grant Respondent’s Motion to Dismiss on the grounds that the 4 Petition is untimely. 5 III. OBJECTIONS 6 Petitioner objects to the conclusion of the Report and Recommendation that 7 Petitioner is not entitled to delayed accrual of the statute of limitations based on Banks and 8 Clark. Petitioner contends that he is entitled to delayed accrual because Banks and Clark 9 were “clarifying and reiterating U.S. constitutional law” and “are retroactive under the 10 federal due process test.” (ECF No. 9 at 3). Petitioner objects to the conclusion of the 11 Report and Recommendation that Petitioner is not entitled to equitable tolling. Petitioner 12 contends that he “pursued his case diligently from the time he discovered (Banks) and 13 (Clark) in late 2018,” and his lack of access to the law library, in combination with his 14 Hepatitis C, present extraordinary circumstances that warrant equitable tolling. Petitioner 15 requests that the Court hold an evidentiary hearing “on the issue of whether Hepatitis C 16 and limited legal resources prevented Petitioner from timely filing his Petition.” (Id. at 2).1 17 IV. LEGAL STANDARD 18 The duties of the district court in connection with a report and recommendation of a 19 magistrate judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 20 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 21 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 22 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAIME ACOSTA, Case No.: 20-cv-2039-WQH-AHG
12 Petitioner, ORDER 13 v. 14 JEFF LYNCH, 15 Respondent. 16 HAYES, Judge: 17 The matter before the Court is the Report and Recommendation issued by the 18 Magistrate Judge (ECF No. 8), recommending that the Court grant the Motion to Dismiss 19 Petition for Writ of Habeas Corpus filed by Respondent Jeff Lynch (ECF No. 4). 20 I. BACKGROUND 21 On February 3, 1993, a jury found Petitioner Jaime Acosta guilty of first-degree 22 murder and robbery with use of a firearm. (ECF No. 1 at 1-2). On June 25, 1993, Petitioner 23 was sentenced to life in prison without the possibility of parole. (Id. at 1). Petitioner 24 appealed and filed a petition for writ of habeas corpus in the California Court of Appeal. 25 (ECF No. 5-2 at 3). On June 1, 1995, the court of appeal affirmed the conviction and 26 sentence and denied the petition for writ of habeas corpus. (Id.). On September 14, 1995, 27 the California Supreme Court affirmed the conviction and sentence. (ECF No. 1-2 at 2-3). 28 1 Petitioner filed a second petition for writ of habeas corpus in the California Court of 2 Appeal, which was denied on February 26, 2003. (ECF No. 5-2 at 3). 3 On October 12, 2018, Petitioner filed a third petition for writ of habeas corpus in the 4 San Diego County Superior Court. (ECF No. 5-1 at 1). Petitioner asserted, in relevant part, 5 that that there was insufficient evidence in his case to prove special circumstances based 6 on two California Supreme Court decisions: People v. Banks, 61 Cal. 4th 788 (2015), and 7 People v. Clark, 63 Cal. 4th 522 (2016). (ECF No. 5-1 at 10). On January 15, 2019, the 8 superior court denied the petition, concluding that Banks and Clark did not apply in 9 Petitioner’s case. (ECF No. 5-2 at 7). 10 On February 13, 2020, Petitioner filed a fourth petition for writ of habeas corpus in 11 the San Diego County Superior Court. (ECF No. 5-3 at 1). On March 2, 2020, the superior 12 court denied the petition, concluding that “[t]he fourth petition reasserts claims and 13 arguments made in petitioner’s appeal and third habeas corpus petition, all of which have 14 been denied.” (ECF No. 5-4 at 2-3). On April 28, 2020, Petitioner filed the fourth petition 15 in the California Court of Appeal. (ECF No. 5-5 at 7). On April 30, 2020, the court of 16 appeal denied the petition, concluding that it was untimely, and Banks and Clark are 17 inapplicable. (ECF No. 5-6 at 2-3). On July 2, 2020, Petitioner filed the fourth petition in 18 the California Supreme Court, which was summarily denied on September 9, 2020. (ECF 19 Nos. 5-7 at 1; 1 at 26). 20 On October 15, 2020, Petitioner filed a Petition for Writ of Habeas Corpus pursuant 21 to 28 U.S.C. § 2254 in this Court, asserting that there was insufficient evidence in his case 22 to prove special circumstances pursuant to Banks and Clark. (ECF No. 1). On January 5, 23 2021, Respondent filed a Motion to Dismiss, contending that the Petition is untimely. (ECF 24 No. 4). On February 3, 2021, Petitioner filed an Opposition to the Motion to Dismiss. (ECF 25 No. 6). Respondent did not file any reply. 26 On July 8, 2021, the Magistrate Judge issued a Report and Recommendation, 27 recommending that the Court grant Respondent’s Motion to Dismiss. (ECF No. 8). The 28 Report and Recommendation concludes that the Petition is facially untimely, and Petitioner 1 is not entitled to delayed accrual of the statute of limitations based on Banks and Clark. 2 The Report and Recommendation concludes in the alternative that even if Petitioner is 3 entitled to delayed accrual, neither statutory nor equitable tolling render the Petition timely. 4 On July 23, 2021, Petitioner filed Objections to the Report and Recommendation. (ECF 5 No. 9). Respondent did not file any reply. 6 II. THE REPORT AND RECOMMENDATION 7 The Report and Recommendation states that pursuant to the Antiterrorism and 8 Effective Death Penalty Act of 1996 (“AEDPA”), Petitioner had until April 24, 1997, to 9 file his Petition for Writ of Habeas Corpus in this Court. The Report and Recommendation 10 states that “in filing his instant federal petition on October 15, 2020, the Petition is facially 11 untimely.” (ECF No. 8 at 4). The Report and Recommendation states that Petitioner is not 12 entitled to delayed accrual of the statute of limitations based on Banks and Clark, because 13 delayed accrual “only applies to new rules established by the United States Supreme 14 Court,” and “Banks and Clark were both decided by the California Supreme Court.” (Id. at 15 4). The Report and Recommendation concludes that the Petition is untimely on its face, 16 and “the analysis may end.” (Id. at 5). 17 The Report and Recommendation concludes in the alternative that the Petition is 18 untimely even if delayed accrual extends the expiration of the statute of limitations. The 19 Report and Recommendation states that Petitioner is entitled to statutory tolling while his 20 state habeas petitions were pending. The Report and Recommendation states that “if Banks 21 and Clark had delayed the trigger date for the statute of limitations, at most Petitioner 22 would have been entitled to 304 days of [statutory] tolling, which means that his limitation 23 period would have expired on April 28, 2018,” absent additional equitable tolling. (Id. at 24 6). The Report and Recommendation states that Petitioner is not entitled to equitable 25 tolling. The Report and Recommendation states that the medical records presented by 26 Petitioner do not support his assertions that Hepatitis C and chronic fatigue, depression, 27 and lack of mental clarity prevented Petitioner from timely filing a petition in this Court. 28 The Report and Recommendation states that Petitioner’s assertions that he had limited 1 access to the law library and lacks knowledge of the legal system are not extraordinary 2 circumstances sufficient to warrant equitable tolling. The Report and Recommendation 3 recommends that the Court grant Respondent’s Motion to Dismiss on the grounds that the 4 Petition is untimely. 5 III. OBJECTIONS 6 Petitioner objects to the conclusion of the Report and Recommendation that 7 Petitioner is not entitled to delayed accrual of the statute of limitations based on Banks and 8 Clark. Petitioner contends that he is entitled to delayed accrual because Banks and Clark 9 were “clarifying and reiterating U.S. constitutional law” and “are retroactive under the 10 federal due process test.” (ECF No. 9 at 3). Petitioner objects to the conclusion of the 11 Report and Recommendation that Petitioner is not entitled to equitable tolling. Petitioner 12 contends that he “pursued his case diligently from the time he discovered (Banks) and 13 (Clark) in late 2018,” and his lack of access to the law library, in combination with his 14 Hepatitis C, present extraordinary circumstances that warrant equitable tolling. Petitioner 15 requests that the Court hold an evidentiary hearing “on the issue of whether Hepatitis C 16 and limited legal resources prevented Petitioner from timely filing his Petition.” (Id. at 2).1 17 IV. LEGAL STANDARD 18 The duties of the district court in connection with a report and recommendation of a 19 magistrate judge are set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 20 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 21 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 22 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 23 636(b)(1). The district court need not review de novo those portions of a report and 24
25 26 1 Petitioner further objects to the “statement [in the Report and Recommendation] that that California Supreme Court summarily denied Petitioner’s appeal on September 9, 2020,” because the court “actually 27 denied Petitioner with a postcard denial that did not show the reason for denying the petition.” (ECF No. 9 at 2). Petitioner’s objection is overruled. (See ECF No. 1 at 26 (order of the California Supreme Court 28 1 recommendation to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 2 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) 3 (en banc) (“Neither the Constitution nor the [Magistrates Act] requires a district judge to 4 review, de novo, findings and recommendations that the parties themselves accept as 5 correct.”). 6 V. DISCUSSION 7 Petitioner does not object to the conclusion of the Report and Recommendation that 8 Petitioner had until April 24, 1997, to file his Petition for Writ of Habeas Corpus in this 9 Court, and in filing the Petition on October 15, 2020, the Petition is facially untimely. The 10 Court concludes that the Magistrate Judge correctly determined that the Petition was filed 11 more than twenty-four years after the statute of limitations expired on April 24, 1997, and 12 is facially untimely. See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir. 2001) 13 (“State prisoners, like [Petitioner], whose convictions became final prior to AEDPA’s 14 enactment [on April 24, 1996], had a one-year grace period in which to file their petitions 15 . . . [which] ended on April 24, 1997 in the absence of statutory tolling.”).2 16 Petitioner objects to the conclusion of the Report and Recommendation that he is not 17 entitled to delayed accrual of the statute of limitations based on Banks and Clark. 28 U.S.C. 18 § 2244(d) provides, in relevant part: 19 (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. 20 The limitation period shall run from the latest of— 21 . . . (C) the date on which the constitutional right asserted was initially 22 recognized by the Supreme Court, if that right has been newly 23 recognized by the Supreme Court and made retroactively applicable to cases on collateral review. 24
25 26
27 2 Petitioner does not assert that he is entitled to tolling that would toll the statute of limitations for over 28 1 28 U.S.C. § 2244(d)(1)(C). Delayed accrual under § 2244(d)(1)(C) applies to 2 constitutional rights newly recognized by the United States Supreme Court, not state 3 supreme courts. See Dodd v. United States, 545 U.S. 353, 357 (2005) (“What Congress has 4 said in [§ 2244(d)(1)(C)] is clear: An applicant has one year from the date on which the 5 right he asserts was initially recognized by this Court.” (emphasis added)). Banks and Clark 6 are decisions of the California Supreme Court and have no impact on the statute of 7 limitations in this case. The Court concludes that the Magistrate Judge correctly determined 8 that Petitioner is not entitled to delayed accrual, and the Petition is untimely. 9 Petitioner further objects to the conclusion of the Report and Recommendation that 10 he is not entitled to equitable tolling. The Court has concluded that the Magistrate Judge 11 correctly determined that the Petition is untimely, but addresses Petitioner’s objection in 12 the alternative. Petitioner does not object to the conclusion of the Report and 13 Recommendation that even if delayed accrual applies, statutory tolling does not render the 14 Petition timely. The Court concludes that the Magistrate Judge correctly determined that 15 “if Banks and Clark had delayed the trigger date for the statute of limitations, at most, 16 Petitioner would have been entitled to 304 days of [statutory] tolling [during the pendency 17 of Petitioner’s state court petitions], which means that his limitation period would have 18 expired on April 27, 2018,”3 absent additional equitable tolling. (ECF No. 8 at 6). 19 A petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been 20 pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his 21 way and prevented timely filing.’” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting 22 Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005), reh’g denied, 545 U.S. 1135 (2005)). “The 23 petitioner must additionally show that the extraordinary circumstances were the cause of 24 his untimeliness and that the extraordinary circumstances ma[de] it impossible to file a 25 petition on time.” Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir. 2009) (alteration in 26 27 28 1 original) (citations omitted). “[E]quitable tolling is unavailable in most cases and is 2 appropriate only if extraordinary circumstances beyond a prisoner’s control make it 3 impossible to file a petition on time.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 4 2002) (citations and emphasis omitted). “[T]he threshold necessary to trigger equitable 5 tolling [under AEDPA] is very high, lest the exceptions swallow the rule.” Id. (second 6 alteration in original) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 7 2000)). “[The petitioner] bears the burden of showing that equitable tolling is appropriate.” 8 Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005) (citing Miranda, 292 F.3d at 1065), 9 vacated and amended on reh’g on other grounds, 447 F.3d 1165 (9th Cir. 2006). 10 In this case, Petitioner fails to show that any of his asserted ailments made it 11 impossible to file a petition in this Court by April 27, 2018. The record does not support 12 Petitioner’s assertion in his Opposition to the Motion to Dismiss and Objections to the 13 Report and Recommendation that Hepatitis C impaired his ability to file a timely petition. 14 Petitioner was cured of Hepatitis C in 2019 and did not file his Petition until October 2020. 15 (See ECF No. 6 at 3 (assertion by Petitioner that he was cured of Hepatatis C in 2019); 16 ECF No. 7 at 17 (undated letter from California Correctional Health Care Services stating, 17 “[Y]ou do not need to be seen for hepatitis C anymore. Your hepatitis C is cured”)). The 18 medical progress noted submitted by Petitioner stated that Petitioner was diagnosed with 19 Hepatitis C in 1998 and was “asymptomatic” in 2013. (ECF No. 7 at 12). In addition, 20 Petitioner was able to file his second and third petitions for writ of habeas corpus in state 21 court while he was diagnosed with Hepatitis C. See Gaston, 417 F.3d at 1034-35 (rejecting 22 prisoner’s contention that his physical and mental disabilities constituted an “extraordinary 23 circumstance” where he filed state habeas petitions before and after the period in which he 24 sought tolling, and he did not show that his condition was significantly worse during the 25 interim). 26 The record further fails to support Petitioner’s assertion that he suffered from chronic 27 fatigue, depression, and lack of mental clarity. The medical progress noted submitted by 28 Petitioner stated that that Petitioner was “alert and oriented” in 2013. (ECF No. 7 at 12). 1 Petitioner fails to show that any asserted mental illness prevented Petitioner from being 2 able to understand the need to timely file or rendered Petitioner unable to prepare and file 3 a habeas petition. See Taylor v. Knowles, No. CIV S-07-2253 WBS EFB P, 2009 U.S. Dist. 4 LEXIS 20110, at *20 (E.D. Cal. Mar. 13, 2009) (“Without any allegation or evidence of 5 how petitioner’s symptoms actually caused him not to be able to file despite his diligence, 6 the court cannot find that he is entitled to equitable tolling.”), report and recommendation 7 adopted, U.S. Dist. LEXIS 29730 (E.D. Cal. Apr. 1, 2009), affirmed, 368 F. App’x 796 8 (9th Cir. 2010) (no equitable tolling where petitioner failed to show hallucinations, 9 depression, and anxiety “actually caused him not to be able to file despite his diligence”). 10 In addition, limited access to the law library and legal materials does not warrant equitable 11 tolling. See Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). The Court concludes that 12 the Magistrate Judge correctly determined that even if delayed accrual applies, Petitioner 13 is not entitled to equitable tolling. The Court has addressed equitable tolling in the 14 alternative, and Petitioner is not entitled to an evidentiary hearing on the issue of equitable 15 tolling. See West v. Ryan, 608 F.3d 477, 485 (9th Cir. 2010) (“If the record refutes the 16 applicant’s factual allegations or otherwise precludes habeas relief, a district court is not 17 required to hold an evidentiary hearing.”). 18 VI. CERTIFICATE OF APPEALABILITY 19 A certificate of appealability must be obtained by a petitioner in order to pursue an 20 appeal from a final order in a § 2254 habeas corpus proceeding. See 28 U.S.C. § 21 2253(c)(1)(A); Fed. R. App. P. 22(b). Pursuant to Rule 11 of the Federal Rules Governing 22 Section 2254 Cases, “The district court must issue or deny a certificate of appealability 23 when it enters a final order adverse to the applicant.” 24 A certificate of appealability may issue “only if the applicant has made a substantial 25 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). It must appear that 26 reasonable jurists could find the district court’s assessment of the petitioner’s constitutional 27 claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 28 1 || concludes that jurists of reason could not find it debatable whether this Court was correct 2 ||in dismissing the Petition. The Court denies a certificate of appealability. 3 CONCLUSION 4 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 8) is 5 || adopted in full. 6 IT IS FURTHER ORDERED that Petitioner’s Objections to the Report and 7 || Recommendation (ECF No. 9) are overruled. 8 IT IS FURTHER ORDERED that Respondent’s Motion to Dismiss Petition for Writ 9 ||of Habeas Corpus (ECF No. 4) is granted. The Petition for Writ of Habeas Corpus (ECF 10 || No. 1) is dismissed. A certificate of appealability is denied. 11 |} Dated: August 26, 2021 Nitta Z. A a 12 Hon, William Q. Hayes 13 United States District Court 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28