1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BRUGMAN, Case No.: 22cv1350-RBM(LR)
12 Petitioner, REPORT AND RECOMMENDATION 13 v. RE: PETITIONER’S MOTION TO STAY PROCEEDINGS 14 PATRICK EATON, et al.,
15 Respondents. [ECF No. 6] 16 17 18 This Report and Recommendation is submitted to United States District Judge 19 Ruth B. Montenegro pursuant to 28 U.S.C § 636(b) and Civil Local Rules 72.1(d) and 20 HC.2 of the United States District Court for the Southern District of California. 21 Petitioner, a state prisoner represented by counsel, filed a Petition for Writ of Habeas 22 Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) on September 8, 2022, raising the 23 single, exhausted claim that the trial court violated his federal constitutional right to due 24 process under the Fourteenth Amendment because he was convicted of assault with a 25 deadly weapon despite insufficient evidence. (See Pet., ECF No. 1 at 3, 6.) Petitioner 26 concurrently filed a Memorandum in support of his Petition (Pl.’s Mem., ECF No. 5) as 27 well as an “Application to hold [his] Federal Habeas Petition in Abeyance Pending 28 Exhaustion of Issues in State Court” on October 10, 2022. (See Pet’r’s Stay Mot., ECF 1 No. 6 (“Stay Mot.”).) 2 Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), Petitioner asks the Court to stay 3 this case while he exhausts claims regarding newly discovered evidence and ineffective 4 assistance of counsel. (See Stay Mot. at 2-3.) Respondents filed a Response to 5 Petitioner’s Stay Motion on November 9, 2022, noting that while they have no objection 6 to this action being stayed pending Petitioner’s exhaustion of the other claims in state 7 court, the stay should be granted under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) and 8 King v. Ryan, 564 F. 3d 1133 (9th Cir. 2009), rather than Rhines. (See Resp’ts’ Resp. 9 (“Resp.”), ECF No. 8 at 1-2.) For the reasons set forth below, the Court 10 RECOMMENDS that Petitioner’s Stay Motion pursuant to Rhines be DENIED and 11 GRANTED under Kelly. 12 I. RELEVANT BACKGROUND 13 Petitioner was convicted by juries in two separate trials of numerous criminal 14 offenses, including corporal injury to someone with whom he had a dating relationship 15 and assault with a deadly weapon. (See ECF No. 8-2 at 1-2.) Petitioner was initially 16 charged on February 6, 2018. (See ECF No. 8-5 at 10.) The trial court sentenced 17 Petitioner to a prison term of 25 years and eight months on August 21, 2019. (See id. at 18 13.) 19 Petitioner filed his Petition for Writ of Habeas Corpus in this Court on September 20 8, 2022, raising a single claim that the trial court violated his constitutional right to due 21 process under the Fourteenth Amendment because he was convicted of assault with a 22 deadly weapon despite insufficient evidence: 23 Petitioner was convicted of assault with a deadly weapon based upon a collision he had with another car. The Defense 24 acknowledged that [P]etitioner[’]s driving was reckless. 25 However, the record does not support a reasonable inference that at the time of the collision [P]etitioner committed an act 26 that he knew would directly and probably result in battery. 27 28 1 (ECF No. 1 at 6.) He had previously raised this claim by direct appeal, and the California 2 Supreme Court denied review one year and ninety days prior, on June 9, 2021. (ECF No. 3 8-2.) 4 On October 10, 2022, Petitioner filed the instant Motion for Stay and Abeyance, 5 indicating for the first time that he has filed a petition in state court presenting additional 6 claims related to newly discovered evidence and ineffective assistance of counsel. (See 7 Stay Mot. at 6-7.) Specifically, he claims that the newly discovered evidence includes 8 facts “that would have rebutted the rape of an unconscious victim charge,” as well as 9 false claims that the victim made to the police about being the victim of domestic abuse. 10 (Stay Mot. at 2-3.) Respondents note that although Petitioner has specifically requested a 11 stay under Rhines, which permits a court to stay a petition containing both exhausted and 12 unexhausted claims, such a stay is unnecessary because the petition presently before the 13 Court only contains one fully exhausted claim. (See Resp. at 1, 3-4.) Accordingly, as 14 Respondents argue, a stay under Kelly is appropriate here, and they do not oppose such a 15 stay. (Id.) 16 II. DISCUSSION 17 A. Legal Standard 18 A federal district court may not address a petition for writ of habeas corpus unless 19 the petitioner has exhausted state remedies with respect to each of the issue(s) presented. 20 28 U.S.C. § 2254(b)(1)(A); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) 21 (“We may review the merits of Petitioner’s habeas petition only if he exhausted state 22 court remedies”). Generally, to satisfy the exhaustion requirement, a petitioner must 23 “‘fairly present[]’ his federal claim to the highest state court with jurisdiction to consider 24 it,” or “demonstrate[] that no state remedy remains available.” Johnson v. Zenon, 88 25 F.3d 828, 829 (9th Cir. 1996) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. 26 Connor, 404 U.S. 270, 275 (1971)). A state prisoner seeking relief with respect to a 27 California conviction is required to fairly present his federal claims to the California 28 Supreme Court. See Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998). 1 Pursuant to the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), all 2 federal habeas petitions are subject to a one-year statute of limitations, and claims not 3 exhausted and presented to the federal court within the one-year period are forfeited. 28 4 U.S.C. § 2244(d). Federal district courts may not consider a “mixed” federal habeas 5 petition—one which contains both exhausted and unexhausted claims. See Rose v. 6 Lundy, 455 U.S. 509, 522 (1982). 7 There are two procedures available to federal habeas petitioners who present both 8 exhausted and unexhausted claims for relief in the same petition. Under the Rhines 9 procedure, a district court may stay a mixed petition while the petitioner returns to state 10 court to exhaust his unexhausted claims. 544 U.S. at 277-78; see also King v. Ryan, 564 11 F.3d 1133, 1140 (9th Cir. 2009). For a Rhines stay, a petitioner must establish, amongst 12 other requirements, that good cause exists for his failure to exhaust the claim for which a 13 stay is sought and that the claims are potentially meritorious. 544 U.S. at 277-78. 14 An additional stay procedure exists in the Ninth Circuit—the Kelly stay—as it is 15 commonly known. See 315 F.3d at 1070-71, overruled on other grounds by Robbins v. 16 Carey, 481 F.3d 1143, 1149 (9th Cir. 2007).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BRUGMAN, Case No.: 22cv1350-RBM(LR)
12 Petitioner, REPORT AND RECOMMENDATION 13 v. RE: PETITIONER’S MOTION TO STAY PROCEEDINGS 14 PATRICK EATON, et al.,
15 Respondents. [ECF No. 6] 16 17 18 This Report and Recommendation is submitted to United States District Judge 19 Ruth B. Montenegro pursuant to 28 U.S.C § 636(b) and Civil Local Rules 72.1(d) and 20 HC.2 of the United States District Court for the Southern District of California. 21 Petitioner, a state prisoner represented by counsel, filed a Petition for Writ of Habeas 22 Corpus pursuant to 28 U.S.C. § 2254 (“Petition”) on September 8, 2022, raising the 23 single, exhausted claim that the trial court violated his federal constitutional right to due 24 process under the Fourteenth Amendment because he was convicted of assault with a 25 deadly weapon despite insufficient evidence. (See Pet., ECF No. 1 at 3, 6.) Petitioner 26 concurrently filed a Memorandum in support of his Petition (Pl.’s Mem., ECF No. 5) as 27 well as an “Application to hold [his] Federal Habeas Petition in Abeyance Pending 28 Exhaustion of Issues in State Court” on October 10, 2022. (See Pet’r’s Stay Mot., ECF 1 No. 6 (“Stay Mot.”).) 2 Pursuant to Rhines v. Weber, 544 U.S. 269 (2005), Petitioner asks the Court to stay 3 this case while he exhausts claims regarding newly discovered evidence and ineffective 4 assistance of counsel. (See Stay Mot. at 2-3.) Respondents filed a Response to 5 Petitioner’s Stay Motion on November 9, 2022, noting that while they have no objection 6 to this action being stayed pending Petitioner’s exhaustion of the other claims in state 7 court, the stay should be granted under Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003) and 8 King v. Ryan, 564 F. 3d 1133 (9th Cir. 2009), rather than Rhines. (See Resp’ts’ Resp. 9 (“Resp.”), ECF No. 8 at 1-2.) For the reasons set forth below, the Court 10 RECOMMENDS that Petitioner’s Stay Motion pursuant to Rhines be DENIED and 11 GRANTED under Kelly. 12 I. RELEVANT BACKGROUND 13 Petitioner was convicted by juries in two separate trials of numerous criminal 14 offenses, including corporal injury to someone with whom he had a dating relationship 15 and assault with a deadly weapon. (See ECF No. 8-2 at 1-2.) Petitioner was initially 16 charged on February 6, 2018. (See ECF No. 8-5 at 10.) The trial court sentenced 17 Petitioner to a prison term of 25 years and eight months on August 21, 2019. (See id. at 18 13.) 19 Petitioner filed his Petition for Writ of Habeas Corpus in this Court on September 20 8, 2022, raising a single claim that the trial court violated his constitutional right to due 21 process under the Fourteenth Amendment because he was convicted of assault with a 22 deadly weapon despite insufficient evidence: 23 Petitioner was convicted of assault with a deadly weapon based upon a collision he had with another car. The Defense 24 acknowledged that [P]etitioner[’]s driving was reckless. 25 However, the record does not support a reasonable inference that at the time of the collision [P]etitioner committed an act 26 that he knew would directly and probably result in battery. 27 28 1 (ECF No. 1 at 6.) He had previously raised this claim by direct appeal, and the California 2 Supreme Court denied review one year and ninety days prior, on June 9, 2021. (ECF No. 3 8-2.) 4 On October 10, 2022, Petitioner filed the instant Motion for Stay and Abeyance, 5 indicating for the first time that he has filed a petition in state court presenting additional 6 claims related to newly discovered evidence and ineffective assistance of counsel. (See 7 Stay Mot. at 6-7.) Specifically, he claims that the newly discovered evidence includes 8 facts “that would have rebutted the rape of an unconscious victim charge,” as well as 9 false claims that the victim made to the police about being the victim of domestic abuse. 10 (Stay Mot. at 2-3.) Respondents note that although Petitioner has specifically requested a 11 stay under Rhines, which permits a court to stay a petition containing both exhausted and 12 unexhausted claims, such a stay is unnecessary because the petition presently before the 13 Court only contains one fully exhausted claim. (See Resp. at 1, 3-4.) Accordingly, as 14 Respondents argue, a stay under Kelly is appropriate here, and they do not oppose such a 15 stay. (Id.) 16 II. DISCUSSION 17 A. Legal Standard 18 A federal district court may not address a petition for writ of habeas corpus unless 19 the petitioner has exhausted state remedies with respect to each of the issue(s) presented. 20 28 U.S.C. § 2254(b)(1)(A); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir. 2005) 21 (“We may review the merits of Petitioner’s habeas petition only if he exhausted state 22 court remedies”). Generally, to satisfy the exhaustion requirement, a petitioner must 23 “‘fairly present[]’ his federal claim to the highest state court with jurisdiction to consider 24 it,” or “demonstrate[] that no state remedy remains available.” Johnson v. Zenon, 88 25 F.3d 828, 829 (9th Cir. 1996) (citing Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. 26 Connor, 404 U.S. 270, 275 (1971)). A state prisoner seeking relief with respect to a 27 California conviction is required to fairly present his federal claims to the California 28 Supreme Court. See Keating v. Hood, 133 F.3d 1240, 1242 (9th Cir. 1998). 1 Pursuant to the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), all 2 federal habeas petitions are subject to a one-year statute of limitations, and claims not 3 exhausted and presented to the federal court within the one-year period are forfeited. 28 4 U.S.C. § 2244(d). Federal district courts may not consider a “mixed” federal habeas 5 petition—one which contains both exhausted and unexhausted claims. See Rose v. 6 Lundy, 455 U.S. 509, 522 (1982). 7 There are two procedures available to federal habeas petitioners who present both 8 exhausted and unexhausted claims for relief in the same petition. Under the Rhines 9 procedure, a district court may stay a mixed petition while the petitioner returns to state 10 court to exhaust his unexhausted claims. 544 U.S. at 277-78; see also King v. Ryan, 564 11 F.3d 1133, 1140 (9th Cir. 2009). For a Rhines stay, a petitioner must establish, amongst 12 other requirements, that good cause exists for his failure to exhaust the claim for which a 13 stay is sought and that the claims are potentially meritorious. 544 U.S. at 277-78. 14 An additional stay procedure exists in the Ninth Circuit—the Kelly stay—as it is 15 commonly known. See 315 F.3d at 1070-71, overruled on other grounds by Robbins v. 16 Carey, 481 F.3d 1143, 1149 (9th Cir. 2007). This procedure is also typically invoked 17 when a mixed petition is submitted: 18 (1) a petitioner amends his petition to delete any unexhausted claims; (2) the court stays and holds in abeyance the amended, 19 fully exhausted petition, allowing the petitioner the opportunity 20 to proceed to state court to exhaust the deleted claims; and (3) the petitioner later amends his petition and re-attaches the 21 newly exhausted claims to the original petition. 22 23 King, 564 F.3d at 1135 (citing Kelly, 315 F.3d at 1070-71). A petitioner seeking a Kelly 24 stay need not show good cause but must establish that the newly exhausted claims, once 25 amended into the existing petition, will be timely under AEDPA or “relate back” to the 26 exhausted claims in the pending federal petition. See King, 564 F.3d at 1140-41; see also 27 Mayle v. Felix, 545 U.S. 644, 662-64 (2005). 28 In contrast with the Rhines procedure, the Kelly procedure does not protect a 1 petitioner’s unexhausted claims from expiring during a stay and becoming time-barred in 2 federal court. See King, 564 F.3d at 1140-41; see also Quintero v. Foss, No. 2:20-CV- 3 00200-TLN-CKD P, 2021 WL 5054202, at *1 (E.D. Cal. Nov. 1, 2021) (citing Duncan v. 4 Walker, 533 U.S. 167, 172-75 (2001)) (noting that unlike the filing of a state habeas 5 petition, the filing of a federal habeas petition does not toll the statute of limitations). 6 “[T]he Kelly procedure, unlike the Rhines procedure, does nothing to protect a 7 petitioner's unexhausted claims from untimeliness in the interim.” King, 564 F.3d at 8 1141. The processes in both Kelly and Rhines “are directed at solving the same 9 problem—namely, the interplay between AEDPA’s one-year statute of limitations and 10 the total exhaustion requirement first articulated in [Rose].” Id. at 1136. 11 B. Analysis 12 Petitioner asks that the Court enter a Rhines stay so that he can return to state 13 court to exhaust clams related to newly discovered evidence and ineffective assistance of 14 counsel. (See Stay Mot. at 2-4.) He specifically cites to Rhines as the basis of his motion 15 and contends that he has met the requirements for his federal Petition to be held in 16 abeyance while he exhausts the other claims in state court. (See id. at 6.) The Petition, 17 however, only includes one exhausted claim, and Petitioner has not sought to amend the 18 Petition to add his unexhausted claims. (See ECF No. 1.) Because the instant Petition is 19 not mixed, the Rhines analysis is inapplicable. See Barbarin v. Madden, Case No. EDCV 20 17–257–VBF (GJS), 2017 WL 3726763, at *3 (C.D. Cal. June 30, 2017) (citing Jackson 21 v. Roe, 425 F.3d 654, 661 (9th Cir. 2005)) (noting that Rhines stays apply only to mixed 22 petitions—not fully exhausted ones). 23 Although a Rhines stay is inappropriate when a petition is not mixed, courts within 24 the Ninth Circuit have concluded that the procedure delineated in Kelly can be used to 25 stay fully exhausted petitions in some circumstances. See, e.g., Patton v. Beard, No. 14– 26 CV–569–BEN (BLM), 2015 WL 1812811, at *4-6 (S.D. Cal. Apr. 20, 2015) (finding the 27 Rhines stay procedure inapplicable because the petition was not mixed and construing the 28 petitioner’s request for a Rhines stay as a request for a Kelly stay); Reid v. Sherman, No. 1 2:20-CV-1596-KJM-DMC-P, 2022 WL 4086916, at *1 (E.D. Cal. Sept. 6, 2022) (“If, 2 however, the petition currently on file is fully exhausted, and what petitioner seeks is a 3 stay-and-abeyance order to exhaust claims not raised in the current federal petition, the 4 approach set out in [Kelly] applies.”). Even though Petitioner has not submitted a mixed 5 petition, other courts have analogized similarly situated petitioners to those who have 6 already completed step one of the Kelly withdrawal and abeyance process: 7 This Court acknowledges that Petitioner did not start on the same procedural ground as the normal Kelly petitioner; with a 8 mixed petition. Petitioner is, however, in the same procedural 9 posture as any Kelly-petitioner that has taken step-one; he possesses a fully exhausted habeas claim and prays that the 10 Court grant a stay. Accordingly, the Court believes the rules 11 governing Kelly apply in the instant case.
12 Haskins v. Schriro, No. CV 05-3252-PHX-MHM (JM), 2009 WL 3241836, at *7 (D. 13 Ariz. Sept. 30, 2009); see also Canela v. Allison, Case No.: 19cv1434-GPC (MSB), 2022 14 WL 2188388, at *4 (S.D. Cal. June 17, 2022) (applying Kelly to the petitioner’s request 15 to stay a fully exhausted petition). 16 The Court agrees with the reasoning in the opinions cited above that the Rhines 17 stay and abeyance procedure is not available to Petitioner. Accordingly, the Court will 18 consider the Stay Motion under the Kelly stay framework. To qualify for a Kelly stay, 19 Petitioner must show that the unexhausted claims will be timely following their 20 exhaustion when he seeks to amend the Petition to include them. To meet the timeliness 21 requirement, Petitioner must show that either the limitations period will not have run by 22 that time—or if it has—that the unexhausted claims relate back to the exhausted claims 23 contained in the original petition, thus obtaining the benefit of the original filing date. 24 See Canela, 2022 WL 2188388, at *4 (citing Hughes v. Walker, No. 2:10-cv-3024 WBS 25 TJB, 2012 WL 346449, at *5 (E.D. Cal. Feb. 1, 2012)) (noting that a petitioner’s new 26 claims must either relate back to original claims raised in the federal habeas petition or 27 must be independently timely under AEDPA to qualify for a Kelly stay). Moreover, in 28 1 accordance with AEDPA, there is a one-year statute of limitations for bringing a habeas 2 corpus petition in federal court and claims not exhausted and presented to the federal 3 court within the one-year period are forfeited. See 28 U.S.C. § 2244(d). 4 The one-year AEDPA statute of limitations begins to run from the latest of: 5 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for 6 seeking such review; 7 (B) the date on which the impediment to filing an application 8 created by State action in violation of the Constitution or laws 9 of the United States is removed, if the applicant was prevented from filing by such State action; 10
11 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been 12 newly recognized by the Supreme Court and made retroactively 13 applicable to cases on collateral review; or
14 (D) the date on which the factual predicate of the claim or 15 claims presented could have been discovered through the exercise of due diligence. 16
17 28 U.S.C. § 2244(d)(1). 18 The California Supreme Court denied Petitioner’s Petition for Review on June 9, 19 2021, and Petitioner’s judgment became final for the purposes of AEDPA ninety days 20 later, on September 7, 2021. (See ECF No. 8-4); see also Bowen v. Roe, 188 F.3d 1157, 21 1158-59 (9th Cir. 1999) (limitations period does not begin to run until after expiration of 22 ninety-day period for seeking certiorari). Accordingly, the AEDPA statute of limitations 23 in this case began to run on September 8, 2021, the day after Petitioner’s conviction 24 became final, and expired one year later, on September 8, 2022. See 28 U.S.C. § 25 2244(d)(1)(A); Corjasso v. Ayers, 278 F.3d 874, 877 (9th Cir. 2002) (the one-year 26 AEDPA statute of limitations begins to run the day after the conviction becomes final); 27 see also Espinoza v. Lopez, No. 1:10–cv–01211–JLT, 2012 WL 2995475, at *3 (E.D. 28 Cal. July 23, 2012) (describing the anniversary method of calculating the statute of 1 limitations under AEDPA). Petitioner filed the instant Petition in federal court on 2 September 8, 2022, the day that the statute was set to run. (See ECF No. 1.) Because 3 Petitioner filed his Petition before the AEDPA deadline had passed, the Petition is timely. 4 The instant Petition, asserting only exhausted claims, therefore satisfies the first 5 step under Kelly. As set forth above, the Court is not required to find good cause to 6 proceed to the next step of Kelly by granting Petitioner’s motion to stay and holding the 7 Petition in abeyance while petitioner exhausts his remaining claims in state court. 8 Petitioner is cautioned, however, that exhaustion in state court does not guarantee federal 9 review at the third step of Kelly. See, e.g., Lawton v. Muniz, Case No. 1:17-cv-00737 10 MJS (HC), 2017 WL 6730415, at *3 (E.D. Cal. Dec. 29, 2017) (collecting cases and 11 noting that a newly exhausted claim that is untimely under AEDPA may be added only if 12 it relates back to the original exhausted claims). Petitioner contends—and Respondents 13 appear to concede—that he filed his unexhausted claims in state court before he filed his 14 federal petition, and that none of these claims will be untimely under AEDPA once they 15 are fully exhausted. (See Stay Mot. at 6-7 (“petitioner in this case actually filed in state 16 court before he filed in federal court and before the one-year federal statute expired”); 17 Resp. at 5 (“[Petitioner] filed his fully exhausted federal petition on September 8, 2022, 18 one day before the federal statute of limitations expired. He filed his first state habeas 19 petition one week earlier. Therefore, it appears that at present, none of his actually raised 20 or potential claims are time barred.”).) 21 Accordingly, while the Court will recommend that Petitioner’s motion be granted 22 with respect to the instant Petition, it does not reach the question of whether any of the 23 new claims Petitioner is exhausting in state court may later be presented through an 24 amendment. The Court will address that question if Petitioner seeks leave to present his 25 newly exhausted claims in an amended federal petition pursuant to the third step of the 26 Kelly procedure. 27 The undersigned therefore RECOMMENDS that Petitioner’s Stay Motion be 28 GRANTED pursuant to Kelly. Petitioner’s federal habeas petition should be held in 1 || abeyance to afford Petitioner the opportunity to exhaust his state judicial remedies with 2 ||regard to his claims of newly discovered evidence and ineffective assistance of counsel. 3 HI. CONCLUSION AND RECOMMENDATION 4 For the reasons stated above, IT IS HEREBY RECOMMENDED that the 5 || District Judge issue an Order: (1) approving and adopting this Report and 6 || Recommendation; and (2) DENYING Petitioner’s Stay Motion pursuant to Rhines but 7 || GRANTING Petitioner’s Stay Motion pursuant to Kelly. 8 IT IS ORDERED that no later than May 17, 2023, any party to this action may 9 || file written objections with the Court and serve a copy on all parties. The document 10 should be captioned “Objections to Report and Recommendation.” 11 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 12 || the Court and served on all parties no later than May 31, 2023. The parties are advised 13 || that failure to file objections within the specified time may waive the right to raise those 14 || objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d 449, 455 (9th 15 |] Cir. 1998). 16 IT IS SO ORDERED. 17 Dated: May 2, 2023 18 19 / L 20 Honorable Lupe Rodriguez, Jr. 7] United States Magistrate Judge 22 23 24 25 26 27 28