Archuleta v. United States

• Court: District Court, D. Arizona
• Decided: July 9, 2025
• Docket: 3:25-cv-08017
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Avery Curry Archuleta, No. CV-25-08017-PHX-SMB No. CR-22-08024-01-PHX-SMB 10 Movant, REPORT AND RECOMMENDATION 11 v.

12 United States of America,

13 Respondent. 14 15 TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT 16 JUDGE: 17 Movant Avery Curry Archuleta has moved to vacate his convictions under 28 18 U.S.C. § 2255. (Doc. 1.) Because Movant’s grounds for relief lack merit, the Court 19 recommends the Motion be denied.1 20 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY. 21 A. Conviction and Sentencing. 22 On March 29, 2022, the government indicted Movant on two counts: Assault with 23 a Dangerous Weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3) (“Count 1”) and 24 Assault Resulting in Serious Bodily Injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6) 25 (“Count Two”). On December 1, 2022, a jury convicted Movant on both counts. (CR Doc. 26 58.) The Court sentenced Movant to 87 months of imprisonment followed by 36 months 27 of supervised release. (CR Doc. 69.)

28 1 “Doc.” refers to the docket in this civil case. “CR doc.” refers to the docket in Movant’s underlying criminal case, United States v. Archuleta, No. CR-22-08024-01-PHX-SMB. 1 B. Direct Appeal. 2 Movant timely appealed. (CR Doc. 283.) Movant raised the following issues on 3 appeal: (1) whether the failure to include a specific unanimity instruction was plain error; 4 and (2) ineffective assistance of counsel. (CR Doc. 90.) The Court of Appeals for the Ninth 5 Circuit affirmed Movant’s convictions and sentence. (Id.) 6 II. MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE. 7 A federal prisoner may move to vacate, set aside, or correct his sentence on the 8 grounds it “was imposed in violation of the Constitution or laws of the United States, or 9 that the court was without jurisdiction to impose such sentence, or that the sentence was in 10 excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 11 U.S.C. § 2255. 12 A. Ground One – Failure to Object to Rule 404(b) Evidence. 13 In Ground One, Movant argues trial counsel provided ineffective assistance by 14 failing to object to the government’s Notice of Intent to Introduce Evidence Pursuant to 15 Rule 404(b). (Doc. 1 at 10-11.) Prior to trial, the government filed a notice of intent to 16 introduce evidence of Movant threatening the victim James Begay in April 2020 (13 17 months prior to the charged offense of June 19, 2021). (CR Doc. 30 at 2.) The notice stated: 18 In April 2020, the defendant arrived at the victim’s home intoxicated and upset. He tried to hit the victim, but the victim’s family intervened. The 19 defendant told them that he would be back and that he would hurt them. The police report of this incident was disclosed to the defense in July 2022. 20 21 (Id.) Movant did not oppose the introduction of the evidence. 22 Here, while counsel’s performance may have been deficient, Movant fails to argue 23 or establish prejudice. To succeed on an ineffective-assistance claim, a movant must show 24 both that: (1) counsel’s performance was deficient, meaning “counsel’s representation fell 25 below an objective standard of reasonableness,” and (2) “the deficient performance 26 prejudiced the [movant’s] defense.” Strickland v. Washington, 466 U.S. 668, 687–88 27 (1984). To establish prejudice, the movant must show “there is a reasonable probability 28 that, but for counsel’s unprofessional errors, the result of the proceeding would have been 1 different.” Id. at 694. 2 Regarding deficient performance, Movant is correct that counsel could have 3 opposed the government’s notice. Movant would have been in no worse of a position if he 4 had objected. Movant’s counsel filed an affidavit, which is attached to the government’s 5 response. Counsel declares: 6 Before trial, the government filed a notice of intent to introduce evidence pursuant to Rule 404(b). I did not have a good faith basis to object to the 7 evidence because I believed it was properly admissible to show Mr. Archuleta’s motive and intent when he allegedly assaulted the victim. 8 Additionally, I was able to use the 404(b) evidence to Mr. Archuleta’s benefit by arguing to the jury that it showed the victim’s motive for attacking Mr. 9 Archuleta. 10 (Doc. 8-1 at 2.) But this affidavit does not speak to whether the preclusion of this evidence 11 would have assisted the defense.2 Certainly, the government believed the evidence aided 12 the prosecution. The motive for the event, as described by the prosecution during its 13 opening statement, was that Movant had “been harassing [the victim] and his family telling 14 them that they do not belong to the area and telling them they needed to move somewhere 15 else.” (CR Doc. 86 at 17.) The government asserted the video evidence would show 16 Movant shouting “things like, ‘You don’t even belong here. You better watch your ass. I’m 17 gonna fuck you up.’” (Id.) Movant’s counsel could have argued the threats were too remote 18 in time, too dissimilar to the charged conduct, and unduly prejudicial. 19 But Movant fails to argue or establish Strickland prejudice. Movant asserts the 20 “issue is not whether the trial court would have granted a defense motion or sustained an 21 objection. Rather, the lack of any engagement on the topic was ineffective” because it 22 would “have preserved the issue for appeal.” (Doc. 1 at 11.) But preserving the matter for 23

24 2 The Court notes that Movant’s counsel argued the prior event supported Movant’s self- defense claim, and he requested a limiting instruction. On the second day of trial, Movant’s 25 counsel advised the Court that he “provided our [other act] instruction, which is based on the model Ninth Circuit instruction we submitted as our proposed instructions.” (Doc. 1-5 26 at 6.) Both parties then agreed the instruction should be read to the jury prior to James Begay’s testimony. (Id. at 6-9.) Movant’s opening statement asserted that Movant was 27 assaulted by the victim. “We believe that you are going to see that there is a different version of the story than what’s presented by the United States, that my client was the 28 victim of attack and not the initiator of the attack and that my client was engaging in defensive positions and not aggressive positions.” (CR Doc. 86 at 24.) 1 appeal is only relevant if there was a reasonably possibility that the evidence would have 2 been precluded. Movant does not argue the evidence was inadmissible. Under Federal Rule 3 of Evidence 404(b), evidence of crimes, wrongs, or other acts are admissible for purposes 4 of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 5 mistake, or lack of accident.” The Ninth Circuit has adopted a four-part test for the 6 application of Rule 404(b): “evidence of prior or subsequent criminal conduct may be 7 admitted if (1) the evidence tends to prove a material point; (2) the other act is not too 8 remote in time; (3) the evidence is sufficient to support a finding that defendant committed 9 the other act; and (4) (in certain cases) the act is similar to the offense charged.” United 10 States v. Luna, 21 F.3d 874, 878 (9th Cir. 1994). The government’s evidence tended to 11 prove a material point in the case: Movant’s motive and intent to commit the offense. Such 12 evidence of a prior threat may be admitted into evidence. See United States v. Cvijanovich, 13 556 F.3d 857, 864 (8th Cir. 2009) (finding a defendant’s past threats may be admissible 14 under Rule 404(b) to provide “context for the indicted conduct” and to show “the 15 seriousness of [later] threats.”); United States v. Jongewaard, 567 F.3d 336, 342 (8th Cir. 16 2009) (finding “statements and actions during [an incident two years earlier] were relevant 17 evidence of Jongewaard’s motive and intent to commit the present offense.”). Movant is 18 not entitled to relief on Ground One. 19 B. Ground Two – Failure to Provide Correct Instruction on Self Defense. 20 In Ground Two, Movant argues his counsel provided ineffective assistance by 21 failing to request a correct self-defense instruction. He argues “counsel ineffectively failed 22 to offer a self-defense instruction directing the jury their decision had to be unanimous.” 23 (Doc. 1 at 12.) Movant agrees defense counsel ultimately requested a self-defense 24 instruction “on the fly” but argues it was ineffective to not object to an instruction that did 25 not contain “key unanimity language.” (Id.) Counsel concedes that the Ninth Circuit “did 26 not rule in Mr. Archuleta’s favor on this issue” but still asserts counsel provided ineffective 27 assistance. 28 On direct appeal, Movant argued that “the district court plainly erred by failing to 1 specifically instruct the jury that it must be unanimous in its determination of whether the 2 government disproved self defense.” (Doc. 1-2 at 1-2.) Because Movant did not object to 3 the jury instruction at trial, the claim was reviewed for plain error. (Id.) The Ninth Circuit 4 found as follows: 5 We reject Archuleta’s argument that the district court plainly erred by not giving a specific self-defense unanimity instruction. The district court 6 instructed the jury several times that its verdict must be unanimous. “In the ordinary case, a general instruction that the verdict must be unanimous will 7 be sufficient to protect the defendant’s rights.” United States v. Tuan Ngoc Luong, 965 F.3d 973, 985 (9th Cir. 2020) (brackets omitted) (quoting United 8 States v. Anguiano, 873 F.2d 1314, 1319 (9th Cir. 1989)). A specific unanimity instruction is required only when there is “a genuine possibility of 9 jury confusion or that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.” United States v. 10 Gonzalez, 786 F.3d 714, 717 (9th Cir. 2015) (quoting United States v. Chen Chiang Liu, 631 F.3d 993, 1000 (9th Cir. 2011)). Archuleta has shown 11 neither possibility. Given the district court’s “wide discretion in crafting jury instructions,” we conclude that it did not plainly err by failing to give a 12 specific self-defense unanimity instruction. United States v. Humphries, 728 F.3d 1028, 1033 (9th Cir. 2013). 13 14 (Doc.1-2 at 2-3.) 15 As Movant concedes, the Ninth Circuit ruling precludes any finding of prejudice 16 under Strickland. The jury instructions did not improperly instruct the jury with respect to 17 unanimity, so Movant cannot show “a reasonable probability” that “the result of the 18 proceeding would have been different” with a different self-defense instruction. Movant is 19 not entitled to relief on Ground Two. 20 C. Ground Three – Failure to Call Movant as Self-Defense Witness. 21 In Ground Three, Movant argues that “trial counsel’s failure to have [Movant] 22 testify regarding self-defense was per se ineffective assistance of counsel.” (Doc. 1 at 12.) 23 He asserts that “the only effective way to present self-defense would have been for 24 [Movant] to tell the jury ‘my side of the story which I wanted to --- to testify.’” (Id. at 13.) 25 Movant argues, “Not having the defendant testify makes a self-defense claim meaningless 26 and is per se ineffective assistance of counsel.” (Id. at 13.)3

27 3 The Court notes Movant does not claim he was prevented from testifying. Movant agreed that “I wanted to testify . . . but my lawyer suggested I shouldn’t, so I didn’t testify at all.” 28 (CR Doc. 85 at 7.) Even if Movant claims he was prevented from testifying, that claim is waived. United States v. Gillenwater, 717 F.3d 1070, 1080 (9th Cir. 2013) (stating that a 1 1. Deficient Performance. 2 A court must indulge a strong presumption that counsel’s conduct falls within the 3 wide range of reasonable professional assistance; that is, the defendant must overcome the 4 presumption that, under the circumstances, the challenged action “might be considered 5 sound trial strategy.” Strickland, 466 U.S. at 689. Recognizing the “tempt[ation] for a 6 defendant to second-guess counsel’s assistance after conviction or adverse sentence,” the 7 Court in Strickland established that counsel should be “strongly presumed to have rendered 8 adequate assistance and made all significant decisions in the exercise of reasonable 9 professional judgment.” Id. at 690. 10 In his Reply, Movant again argues “[it] was per se ineffective assistance to not 11 present the jury the only witness to establish self-defense.” (Doc. 10 at 2.) Movant provides 12 no authority for the proposition that the failure to call a defendant in a self-defense case 13 involving only a victim and a defendant is per se ineffective.4 A case could involve 14 substantial circumstantial evidence5 of self-defense and not require a defendant to testify. 15 More importantly, a defendant’s possible testimony might be so incredible that it might aid 16 the prosecution. See Johnson v. Baldwin, 114 F.3d 835, 839 (9th Cir. 1997) (finding 17 Strickland prejudice based on poor defense preparation and a “reasonable probability that, 18 if [defendant] had not taken the stand and lied [about not being present at the scene of the 19 sexual assault], the outcome of the trial would have been different.”). 20 Here, the declaration of Movant’s counsel states: 21 13. Before trial, Mr. Archuleta and I discussed his possible testimony. I explained to Mr. Archuleta that it was his choice whether to testify. Mr. 22 Archuleta told me that he did not injure the victim. His theory was that the elderly victim beat himself up and caused his own injuries. 23

24 defendant waives his right to testify “when defense counsel elects not to call the defendant as a witness, and despite being present, the defendant takes no affirmative action to 25 demonstrate his disagreement with his counsel’s decision not to call him as a witness.”).

26 4 Per se “typically means ‘always,’ ‘absolute,’ or ‘absolutely.’” See Bryan A. Garner, Modern American Usage (2d ed. 2003). 27 5Significant age, size, and strength differences between a smaller defendant and larger 28 victim might support a self-defense claim. Prior aggressive statements by a victim, or a lack of defendant’s motive to commit an assault could support a self-defense claim. 1 14. Due to the nature of the victim’s injuries and the DNA evidence, I told Mr. Archuleta that the jury was unlikely to believe the elderly victim injured 2 himself. Accordingly, I suggested that Mr. Archuleta not testify. I was crystal clear, however, that the ultimate decision whether to testify was his. I never 3 told Mr. Archuleta that he could not testify. 4 (Doc. 8-1 at 1.) (emphasis added). Counsel’s concerns are corroborated by Movant’s words 5 at sentencing. Movant told the Court: 6 How you doing, Your Honor? I just want to say a few things. 7 I feel that the jury didn’t get to hear my side of the story which I 8 wanted to -- to testify, but my lawyer suggested I shouldn’t, so I didn’t testify at all. I think they needed to hear my side, it was the truth of what happened 9 that day. And, if they heard that, they would probably have made a different decision. 10 And a lot of things would have been explained if I testified, and if my 11 attorney would have seen what I was trying to show him through the evidence and everything, what was being done and been. And I never -- I never said I 12 fought James, but my attorney did. 13 The truth is I was attacked by James, Johanna, and Jerelson, and the daughter Jewelianna is making up a short -- well, I don’t -- she wasn’t there 14 at all. I will never -- I would never attack or do what they said. I mean, there is no reason. I don’t know why they saying I did this. 15 16 (CR Doc. 85 at 7.) (Emphasis added.) 17 If Movant had testified that he never “fought James,” that testimony could have 18 been devastating to the defense. Movant’s counsel asserts the victim had injuries on “the 19 back of his head,” and Movant’s “DNA was found on the weapon, along with the victim’s 20 blood.” (Doc. 8-1 at 1.) If Movant testified he did not fight the victim, it would likely have 21 eliminated any possibility of a self-defense argument and left the jury to decide only if 22 Movant had caused the victim’s injuries. 23 As such, the Court is not persuaded by Movant’s argument that “given the lack of 24 other witnesses there was no other way of presenting self-defense besides Mr. Archuleta’s 25 testimony.” (Doc. 1 at 14.) Movant’s counsel was also considering whether Movant’s 26 actual testimony might be so devastating that not testifying was preferable. Given these 27 difficult choices, the Court does not find it was unreasonable for counsel to advise Movant 28 to remain silent. In any ineffective assistance case, “a particular decision . . . must be 1 directly assessed for reasonableness in all the circumstances, applying a heavy measure of 2 deference to counsel’s judgments.” Strickland 466 U.S. at 691. And, “strategic choices 3 made after thorough investigation of law and facts relevant to plausible options are virtually 4 unchallengeable . . . . ” Id. at 690-91. See also Hodge v. Haeberlin, 579 F.3d 627, 640 (6th 5 Cir. 2009) (finding when a movant “does not show that his right to testify was impaired, 6 he cannot show deficient performance by counsel.”). Movant fails to establish counsel’s 7 advice was deficient under the standard set by Strickland.6 7 8 2. Prejudice. 9 Movant also fails to satisfy his burden of proving a reasonable probability of 10 prejudice.8 “A reasonable probability is a probability sufficient to undermine confidence 11 in the outcome.” Strickland, 466 U.S. at 694. A reasonable probability requires a 12 “substantial,” not just “conceivable,” likelihood of a different result. Cullen v. Pinholster, 13 563 U.S. 170, 189 (2011). At the outset, Movant provides no actual information about 14 Movant’s possible testimony. Movant submits only that Movant wanted to “tell the jury 15 ‘my side of the story . . . .’” (Doc. 1 at 13.) But if Movant’s side of the story is what he told 16 the Court (i.e., that he never “fought” the victim), there is no substantial likelihood of a 17 different result. The Court is left to speculate as to Movant’s testimony, which diminishes

18 6 The Court is not persuaded by Respondent’s argument that counsel’s advice is not subject to Strickland review. Respondent asserts that the “Court cannot hold trial counsel 19 responsible for the defendant’s ‘fundamental decision’ not to testify, nor can the defendant have his conviction overturned based on his own decision. The Court should deny the claim 20 on this basis alone.” (Doc. 8 at 15.) Counsel’s advice to a client regarding the decision to testify is reviewable. See e.g. Demetrulias v. Davis, 14 F.4th 898, 913 (9th Cir. 2021) 21 (“advising a defendant against testifying is a strategic choice entitled to deference . . .”); Smith v. Archuleta, 658 F. App’x. 422, 438 (10th Cir. 2016) (finding “no error in the 22 postconviction court’s finding that trial counsel’s decision to advise defendant not to testify was a reasonable strategic decision and did not fall outside the range of reasonable 23 professional assistance.”).

24 7 Both parties (Doc. 8 at 16: Doc. 10 at 2) reference the Government’s allegation (CR Doc. 31 at 2) under Rule 609 of its intent to impeach Movant with two prior felony convictions 25 from June 30, 2011. The government agrees the prior convictions were more than 10 years old and there does not appear to be any ruling from the Court on the allegation. But 26 Movant’s counsel does not cite to this concern regarding his advice to Movant, so the Court reviews the claim on counsel’s stated reasons for advising Movant. 27 8 The Court need not address the prejudice prong of the Strickland test “if the petitioner 28 cannot even establish incompetence under the first prong.” Siripongs v. Calderon, 133 F.3d 732, 737 (9th Cir. 1998). 1 Movant’s ability to establish prejudice. See Gonzalez v. Knowles, 515 F.3d 1006, 1016 (9th 2 Cir. 2008) (“[S]peculation is plainly insufficient to establish prejudice.”); Sandgathe v. 3 Maass, 314 F.3d 371, 379 (9th Cir. 2002) (affirming denial of ineffective assistance claim 4 where petitioner “offered no evidence for his asserted incompetence”); Grisby v. Blodgett, 5 130 F.3d 365, 373 (9th Cir. 1997) (speculative prejudice claim insufficient to establish 6 Strickland standard). 7 The undersigned notes that the District Judge is in the far superior position to 8 determine whether Movant’s testimony would have created a substantial likelihood of a 9 different result. At sentencing, the Court told Movant that “it was very clear from the prior 10 incident and from the injuries to the victim that you viciously attacked him.” (Doc. 1-7 at 11 13.) Ultimately, Judge Brnovich heard the testimony and saw the pictures that were 12 admitted into evidence but not presented here, and the prejudice analysis must take into 13 account “the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695. 14 Movant fails to establish he is entitled to relief on Ground Three. 15 III. Evidentiary Hearing. 16 A prisoner filing a claim for federal habeas relief under § 2255 is entitled to an 17 evidentiary hearing “[u]nless the motion and the files and records of the case conclusively 18 show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). 19 The district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the 20 movant is not entitled to relief. See United States v. Andrade–Larrios, 39 F.3d 986, 991 (1994). Section 2255, however, requires that “an 21 evidentiary hearing ‘shall’ be granted ‘[u]nless the motion and the files and records of the case conclusively show that the prisoner is 22 entitled to no relief.’” Baumann v. United States, 692 F.2d 565, 570 (9th Cir.1982) (quoting 28 U.S.C. § 2255). “[T]he petitioner need not 23 detail his evidence, but must only make specific factual allegations which, if true, would entitle him to relief.” Id. at 571 (citing United 24 States v. Hearst, 638 F.2d 1190, 1194–95. (9th Cir. 1980)). Here, if Mejia–Mesa’s allegations are proven true, an essential element of the 25 offenses charged in two of the three crimes of conviction may be lacking. An evidentiary hearing on Mejia–Mesa’s Brady claim is thus 26 required. 27 United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998). Compare Lopez v. United 28 States, 2024 WL 3914590, at *1 (6th Cir. 2024) (remanding “to hold an evidentiary hearing 1 to resolve the factual dispute about whether [movant] timely instructed his attorney to file 2 an appeal on his behalf.”); United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) 3 (“[V]ague and conclusory allegations contained in a § 2255 petition may be disposed of 4 without further investigation by the District Court.”). 5 Movant has requested an evidentiary hearing. (Doc. 9.) This request was based in 6 whole or in part on Movant’s request for the Court to appoint him an expert witness 7 regarding ineffective assistance of counsel. (Id.) The Court denied the request to appoint 8 an expert. (Doc. 12.) The Court does not require expert assistance “to understand the legal 9 analysis required by Strickland.” Bonin v. Calderon, 59 F.3d 815, 838 (9th Cir. 1995) 10 (finding the district court in habeas proceedings did not abuse its “discretion by refusing to 11 allow an expert on juror psychology” because the “district judge is himself qualified to 12 assess the likely responses of a jury to certain evidence and is also qualified to understand 13 the legal analysis required by Strickland”); Provenzano v. Singletary, 148 F.3d 1327, 1332 14 (11th Cir. 1998) (affirming denial of habeas evidentiary hearing regarding “counsel’s 15 decision to forego a change of venue” noting “the reasonableness of a strategic choice is a 16 question of law to be decided by the court, not a matter subject to factual inquiry and 17 evidentiary proof. Accordingly, it would not matter if a petitioner could assemble affidavits 18 from a dozen attorneys swearing that the strategy used at his trial was unreasonable”). See 19 also Fed. R. Evid. 702, 1972 Comm. Note (directing courts to ask whether the finder of 20 fact “would be qualified to determine intelligently and to the best possible degree the 21 particular issue without enlightenment from those having a specialized understanding of 22 the subject involved in the dispute”). 23 If Movant still requests an evidentiary hearing, he is directed to advise the District 24 Court of the request and state the specific grounds upon which the request is made. 25 IV. CERTIFICATE OF APPEALABILITY. 26 A movant may not appeal a final order in a § 2255 proceeding unless a certificate 27 of appealability issues. 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability may only 28 issue if the movant makes “a substantial showing of the denial of a constitutional right.” 1 28 U.S.C. § 2253(c)(2). In order to make a substantial showing, a movant “must 2 demonstrate that reasonable jurists would find the district court’s assessment of the 3 constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 4 Based on the record before the Court, the Court finds that no reasonable jurist would 5 dispute that counsel’s challenged performance fell within the “wide range of reasonable 6 professional assistance[.]” See Strickland, 466 U.S. at 689. The Court concludes Movant 7 fails to establish prejudice as to Grounds One and Two and fails to establish counsel’s 8 conduct was deficient as to Ground Three. 9 V. CONCLUSION 10 Movant fails to establish he is entitled to relief on his claims. 11 Accordingly, 12 IT IS RECOMMENDED the Motion to vacate, set aside or correct sentence (doc. 13 1) be DENIED. 14 IT IS ORDERED Movant submit any request for an evidentiary hearing within 14 15 days of the filing of this Report and Recommendation. Movant shall state the grounds for 16 the request in the Motion. 17 IT IS FURTHER RECOMMENDED a certificate of appealability and leave to 18 proceed in forma pauperis on appeal be DENIED. Movant has not demonstrated 19 reasonable jurists could find the ruling debatable or jurists could conclude the issues 20 presented are adequate to deserve encouragement to proceed further. See Miller-El v. 21 Cockrell, 537 U.S. 322, 327 (2003). 22 This Report and Recommendation is not an order that is immediately appealable to 23 the Ninth Circuit Court of Appeals. Any notice of appeal under Federal Rule of Appellate 24 Procedure 4(a)(1) should not be filed until entry of the District Court’s judgment. The 25 parties have fourteen days from the date of service of this Report and Recommendation’s 26 copy to file specific, written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. 27 Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have fourteen days to respond to the 28 objections. Failure to timely object to the Magistrate Judge’s Report and Recommendation |} may result in the District Court’s acceptance of the Report and Recommendation without 2|| further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 3|| Failure to timely object to any factual determinations of the Magistrate Judge may be 4|| considered a waiver of a party’s right to appellate review of the findings of fact in an order 5 || of judgment entered pursuant to the Magistrate Judge’s Report and Recommendation. See 6|| Fed. R. Civ. P. 72. 7 Dated this 9th day of July, 2025. 8 Lo ? alan — 10 United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

-12-