Edgar D Contreras v. Charles L Ryan, et al.

• Court: District Court, D. Arizona
• Decided: December 27, 2018
• Docket: 2:18-cv-00077
• Status: Unknown

Opinion

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

9 Edgar D Contreras, No. CV-18-00077-PHX-DWL (DMF)

10 Petitioner, REPORT AND RECOMMENDATION 11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 TO THE HONORABLE DOMINIC W. LANZA, U.S. DISTRICT JUDGE: 16 Petitioner Edgar D. Contreras (“Petitioner”), who is confined in the Arizona State 17 Prison Complex-Tucson, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 18 28 U.S.C. § 2254 (“Petition”) (Doc. 1). Petitioner was convicted, by guilty plea, in 19 Maricopa County Superior Court, case number CR 2014-116154-001, of conspiracy to 20 commit possession of dangerous drugs for sale (methamphetamine) and was sentenced to 21 a 10-year term of imprisonment (Doc. 1 at 1-2). The Court required an answer to the 22 Petition (Doc. 5). A response and reply were filed (Docs. 13, 14). The matter is ripe for 23 decision. As described below, the undersigned recommends that the Petition be denied and 24 dismissed with prejudice and no certificate of appealability issue. 25 I. STATE COURT PROCEEDINGS 26 A. Superior Court 27 Petitioner was charged in Maricopa County Superior Court case number CR 2014- 28 116154-001 with one count of dangerous drugs for sale - methamphetamine, one count of 1 possession of marijuana for sale, six counts of misconduct involving weapons, and one 2 count of possession of drug paraphernalia (Doc. 13, Ex. A). 3 In August 2014, the superior court conducted a settlement conference (Doc. 13, Exs. 4 F, LL).1 The prosecutor and judge explained to Petitioner that his combined prison 5 sentence could easily exceed 50 years if he was found guilty at trial of the offenses (Doc. 6 13, Ex. LL at 5–9). The State offered Petitioner a plea where he would plead guilty to one 7 count of conspiracy to commit possession of dangerous drugs for sale, the state and 8 Petitioner would stipulate to a sentence of imprisonment of 10 years for that count, and 9 Petitioner would be eligible to serve 85% of that sentence rather than face possible flat time 10 (Id. at 5-7, 17–22). The State would then dismiss the remaining eight counts (Id.). The 11 court noted that it “did not expect such a good plea to tell you the truth” and stated it was 12 a “[v]ery good plea,” but that Petitioner had “an absolute right to go to trial” (Id. at 23). 13 The court also stated multiple times that Petitioner did not “have to take” the plea (Id. at 14 23, 24). The court again stated on the record that, “we’ve told [Petitioner] many times, he 15 doesn’t have to take a plea. Solely up to him what he wants to do” (Id. at 25). 16 Petitioner accepted the plea offer to a count of dangerous drugs for sale - 17 methamphetamine, amended to allege conspiracy to commit dangerous drugs for sale; the 18 other eight charges were to be dismissed under the plea agreement (Id.).2 Petitioner signed 19 a plea agreement for ten years of imprisonment, and the superior court judge conducted a 20 change of plea hearing on the same day in August, 2014 (Doc. 13, Exs. E, F, LL at 27-32). 21 The factual basis for the amended count 1, conspiracy to commit possession of dangerous 22 drugs for sale, did not specify where the methamphetamine had been found (Doc. 13, Ex. 23 LL at 44-46).3 24 In October 2014, Petitioner filed a Motion to Change Counsel where he stated that

25 1 Petitioner’s mother was present for the settlement conference (Doc. 13, Ex. LL at 3). 26 2 A separate plea agreement was also reached on a separately charged case from events on a different day; such case, CR 2014-117124 is not at issue in this habeas matter 27 (Doc. 13, Ex. S, LL). 3 Methamphetamine had been found by police in the hoodie Petitioner had left in 28 the yard when fleeing police, and methamphetamine had been found the house that was searched by police (Doc. 13, Exs. AA). 1 his lawyer was not returning his calls, he was too medicated to have signed his plea 2 agreement, and his lawyer had yelled at him to sign the plea agreement (Doc. 13, Ex. G). 3 Counsel was substituted and through his new counsel, Petitioner moved to withdraw from 4 the plea agreement, asserting manifest injustice (Doc. 13, Exs. H, I, J). Petitioner claimed 5 that he had started taking medication for depression and anxiety shortly before the 6 settlement conference and that the new medication had caused him to misunderstand the 7 consequences of the plea; he also claimed that he felt pressured by his counsel and the 8 prosecutor to accept the plea (Doc. 13, Ex. I). After the state responded, the court heard 9 oral argument, found that Petitioner had not demonstrated manifest injustice, and denied 10 the motion to withdraw from the plea agreement (Doc. 13, Exs. L, M, MM, NN). The trial 11 court addressed the benefits of the plea agreement in its ruling:

12 There has been absolutely no showing that the result would be any 13 different if [the court] let[s] him withdraw from the plea. [The court] sentenced the co-defendant, it’s a contingent plea, earlier this week. So . . . 14 if [the court] allowed him to withdraw, the State’s going to be able to 15 withdraw from the codefendant’s plea.

16 But the cases against the defendant are very, very strong. The State 17 made a showing at the settlement conference they can treat him one of two ways. He has 66 grams of methamphetamines, and he’s got a prior criminal 18 history. So they could have either treated him with just the meth statute for 19 5, 10, 15, or he could have been treated with a person in category 3 with two or more historic prior felonies, and the presumed term would have been 15 20 and 3 quarter years up to 35. 21 So while the plea seems harsh, on the same token, there has been no 22 showing in either an affidavit, or otherwise, there is any defense to these charges. And based upon a review of the presentence reports in both matters, 23 the Court doesn’t see a defense. 24 So the only reason to withdraw from the plea is some hope to get a 25 different plea because going to trial is going to result in him getting 26 substantially more time. That’s not even talking about consecutive sentences.

27 Under the biggest break, and that was the big point at the settlement 28 conference, was the presumptive term for a class 2 with two or more priors was 15 and 3 quarters. And based upon the amount of methamphetamines 1 that were present, the sentence may well have gone substantially higher.

2 (Doc. 13, Ex. NN at 3-5). 3 At the sentencing setting in January 2015, the superior court addressed Petitioner’s 4 request to represent himself and concluded that Petitioner had knowingly, intelligently, and 5 voluntarily waived his right to counsel (Doc. 13, Ex. N). Advisory counsel was appointed 6 for Petitioner (See Doc. 13, Exs. N, Q, OO, PP). After reviewing Petitioner’s Motion to 7 Change Judge, the judge recused, and sentencing did not go forward (Doc. 13, Ex. N). In 8 February, 2015, Petitioner filed a pro per “Motion to Reconsider Withdraw of Pleas” 9 wherein he again argued that his plea was coerced, but for the first time also argued that 10 there had been an illegal search of the house and a motion to suppress should have been 11 filed (Doc. 13, Ex. O). After the state responded, the court conducted oral argument on the 12 motion before denying it (Doc. 13, Exs. P, Q, R, OO). In March 2015, the court sentenced 13 Petitioner to a term of 10 years in case number CR 2014-116154-001, the subject of this 14 Petition, pursuant to the plea agreement (Doc. 13, Exs. T, U, PP, Doc. 13, Ex. PP at 5). 15 Petitioner timely initiated post-conviction relief proceedings where he argued that 16 his plea had been unlawfully induced and also that he had received ineffective assistance 17 of counsel because counsel had not moved to suppress the evidence police had seized 18 during their search of his house (Doc. 13, Ex. W). Attached to his petition for post- 19 conviction relief, Petitioner included a report from a private investigator Petitioner retained 20 to review his file, including the transcript of the change of plea proceedings and case 21 discovery such as the police reports (Doc. 13, Ex. Y). The state’s response argued that trial 22 counsel had not provided ineffective assistance because the search had been proper, and 23 the state provided the police reports pertaining to the events (Doc. 13, Exs. Z, AA). 24 Petitioner filed a reply and was appointed advisory counsel (Doc. 13, Exs. BB, CC). After 25 briefing and a status conference wherein Petitioner was present by telephone and the state 26 was present in person, the superior court denied the petition for post-conviction relief (Doc. 27 13, Exs. DD, FF). 28 1 B. Arizona Court of Appeals 2 Petitioner sought review at the Arizona Court of Appeals based on ineffective 3 assistance of counsel for not filing a motion to suppress the evidence obtained from the 4 house (Doc. 13, Exs. EE, FF). At the conclusion of briefing (Doc. 13, Ex. GG), the court 5 of appeals granted review but denied relief (Doc. 13, Ex. HH). The court of appeals set 6 out the correct of review for Petitioner’s ineffective assistance of counsel claim (Doc. 13, 7 Ex. HH ¶¶ 4, 5). The court of appeals then reviewed the evidence and arguments which 8 had been before the superior court during the post-conviction relief proceedings:

9 With his petition, Contreras filed an investigator’s report, created after 10 a review of police reports, that the search was “questionable since no exigent circumstances were expressed or evident at that time.” Responding to his 11 petition, the State point out that, contrary to the conclusion of the 12 investigator, officers called to Contreras’s home to investigate a report of domestic violence watched through a window as Contreras and a woman 13 appeared to be trying to hid unknown items or move them from one room to 14 another. After Contreras ran from the home and the woman came outside, the woman told officers that her two children, ages two and seven months, 15 remained in the home. In response to his petition, the State argued that at that 16 point, officers were justified in entering the house to check on the welfare of the children and to confirm that no one else remained at risk in the home. 17 When they entered the home to check on the children, they observed a strong 18 smell of marijuana and saw contraband, including marijuana, pills and many electronic items (and car tires) they suspected were stolen. Under a couch 19 cushion, they found a handgun where they had seen the woman attempt to hide something. The State argued that the officers’ initial sweep of the 20 residence was valid under the “emergency aid” exception to the warrant 21 requirement, based on the presence of the very young children in the home and the possibility that the perpetrator of the domestic violence might still be 22 inside. See State v. Bennett, 237 Ariz. 356, 358–59, ¶ 9 (App. 2015). The 23 State also argued that the inevitable discovery doctrine applied because a preponderance of the evidence would establish that a lawful warrant could 24 have been obtained based on what officers had seen through a window and 25 their discovery of methamphetamine in a hoodie that Contreras left behind in the yard when he dashed away. See State v. Davolt, 207 Ariz. 191, 204– 26 05, ¶¶ 35–38 (2004). 27 (Doc. 13, Ex. HH, ¶ 6). The Arizona Court of Appeals affirmed the superior court: 28 1 Based on the evidence in the record, the superior court did not abuse its discretion in summarily denying relief to Contreras. See State v. Febles, 2 210 Ariz. 589, 595, ¶ 18 (App. 2005) (to raise colorable claim and avoid 3 summary dismissal of petition, defendant must establish, inter alia, counsel’s performance was objectively unreasonable based on applicable professional 4 standards); State v. Donald, 198 Ariz. 406, 414, ¶ 14 (App. 2000) (to warrant 5 evidentiary hearing, Rule 32 claim “must consist of more than conclusory assertions”). 6 For these reasons, we grant review but deny relief. 7 (Doc. 13, Ex. HH, ¶¶ 7, 8). 8 Petitioner did not petition the Arizona Supreme Court for review (Doc. 13, Exs. II, 9 JJ, KK). 10 II. HABEAS PETITION 11 In his Petition, Petitioner names Charles L. Ryan as Respondent and the Arizona 12 Attorney General as an Additional Respondent (Doc.1). Petitioner raises one ground for 13 relief in which he alleges he was denied effective assistance of counsel in violation of the 14 Sixth Amendment (Doc. 1 at 6). Despite Petitioner’s guilty plea, the basis for the alleged 15 ineffective assistance of counsel is that trial counsel did not file a motion to suppress 16 evidence obtained from a warrantless search of Petitioner’s house (Id.). As reflected in the 17 state proceedings section below and the docket in this matter, the Petition is timely, and 18 the claim is exhausted. 19 III. ANALYSIS 20 A. Standard of Review 21 On habeas review, this Court can only grant relief if the petitioner demonstrates 22 prejudice because the adjudication of a claim either “(1) resulted in a decision that was 23 contrary to, or involved an unreasonable application of, clearly established Federal law, as 24 determined by the Supreme Court of the United States; or (2) resulted in a decision that 25 was based on an unreasonable determination of the facts in light of the evidence presented 26 in the State court proceeding.” 28 U.S.C § 2254(d). This is a “‘highly deferential standard 27 for evaluating state-court rulings’ which demands that state-court decisions be given the 28 benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting 1 Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)). 2 With respect to § 2254(d)(2), a state court decision “based on a factual determination 3 will not be overturned on factual grounds unless objectively unreasonable in light of the 4 evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 5 340 (2003). A “state-court factual determination is not unreasonable merely because the 6 federal habeas court would have reached a different conclusion in the first instance.” Wood 7 v. Allen, 558 U.S. 290, 301 (2010). As the Ninth Circuit has explained, to find that a factual 8 determination is unreasonable under 28 U.S.C §2254(d)(2), the court must be “convinced 9 that an appellate panel, applying the normal standards of appellate review, could not 10 reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 11 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 12 984, 1000 (9th Cir. 2014). “This is a daunting standard—one that will be satisfied in 13 relatively few cases.” Id. 14 The petitioner bears the burden of rebutting the state court’s factual findings “by 15 clear and convincing evidence.” 28 U.S.C § 2254(e)(1). The Supreme Court has not 16 defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified 17 “that a state-court factual determination is not unreasonable merely because the federal 18 habeas court would have reached a different conclusion in the first instance.” See Burt v. 19 Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301). Likewise, the heavy 20 burden for an undeveloped factual basis for a claim falls on Petitioner. 28 U.S.C. § 21 2254(e)(2) requires Petitioner to show that the “factual predicate could not have been 22 previously discovered through the exercise of due diligence” and that the facts “would be 23 sufficient to establish by clear and convincing evidence that, but for the constitutional error, 24 no reasonable factfinder would have found the applicant guilty of the underlying offense.” 25 B. Law Governing Ineffective Assistance of Counsel 26 Pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984), a petitioner arguing 27 ineffective assistance of counsel must establish that counsel’s performance was (i) 28 objectively deficient and (ii) prejudiced the petitioner. “Surmounting Strickland’s high 1 bar is never an easy task.” Clark v. Arnold, 769 F.3d 711, 725 (9th Cir. 2014). The court 2 need not consider both factors if the court determines that a defendant has failed to meet 3 one factor. Strickland, 466 U.S. at 697 (“If it is easier to dispose of an ineffectiveness 4 claim on the ground of lack of sufficient prejudice, which we expect will often be so, that 5 course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (a 6 court need not look at both deficiency and prejudice if the habeas petitioner cannot 7 establish one or the other). 8 A habeas court reviewing a claim of ineffective assistance of counsel must 9 determine “whether there is a reasonable argument that counsel satisfied Strickland’s 10 deferential standard, such that the state court’s rejection of the IAC claim was not an 11 unreasonable application of Strickland. Relief is warranted only if no reasonable jurist 12 could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th 13 Cir. 2014) (internal citations and quotations omitted). This results in a “doubly 14 deferential” review. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).

15 Where, as here, a defendant is represented by counsel during the plea process 16 and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was within the range of competence 17 demanded of attorneys in criminal cases . . . [A] defendant who pleads guilty 18 upon the advice of counsel ‘may only attack the voluntary and intelligent character of the plea by showing that the advice he received from counsel 19 was [ineffective]. 20 Hill v. Lockhart, 474 U.S. 52, 56–57 (1985) (internal quotations and citations omitted). 21 Thus, because Petitioner “pled guilty upon the advice of counsel, he is limited to 22 challenging his plea by demonstrating that the advice he received from counsel did not 23 constitute effective representation.” Lambert v. Blodgett, 393 F.3d 943, 979 (9th Cir. 2004). 24 When reviewing an ineffective assistance of counsel claim, a court must “indulge a 25 strong presumption that counsel’s conduct falls within the wide range of reasonable 26 professional assistance,” and a petitioner “must overcome the presumption that, under the 27 circumstances, the challenged action might be considered sound trial strategy.” Strickland 28 v. Washington, 466 U.S. 668, 689 (1984). (internal quotation marks omitted). Further, the 1 “failure to raise a meritless legal argument does not constitute ineffective assistance of 2 counsel.” Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982) 3 Here because Petitioner plead guilty,

4 the ineffectiveness inquiry probes whether the alleged ineffective assistance 5 impinged on the defendant’s ability to enter an intelligent, knowing and voluntary plea of guilty. To succeed, the defendant must show that counsel’s 6 assistance was not within the range of competence demanded of counsel in 7 criminal cases and that the defendant suffered actual prejudice as a result. In order to satisfy the prejudice requirement, the defendant must show that 8 there is a reasonable probability that, but for counsel’s errors, he would 9 not have pled guilty and would have insisted on going to trial. 10 Lambert v. Blodgett, 393 F.3d at 979–80 (internal quotations and citation omitted) 11 (emphasis added). “In the context of pleas, a defendant must show the outcome of the plea 12 process would have been different with competent advice.” Lafler v. Cooper, 566 U.S. 13 156, 163 (2012). “In cases where a defendant complains that ineffective assistance led him 14 to accept a plea offer as opposed to proceeding to trial, the defendant will have to show ‘a 15 reasonable probability that, but for counsel's errors, he would not have pleaded guilty and 16 would have insisted on going to trial.’ Hill, 474 U.S., at 59, 106 S.Ct. 366.” Missouri v. 17 Frye, 566 U.S. 134, 148, (2012). 18 C. Applying the Law 19 Petitioner argues that trial counsel should have filed a motion to suppress the 20 evidence obtained in the house because there were no emergent or exigent circumstances 21 and a welfare check was unnecessary; thus, law enforcement officers could not have 22 justified their warrantless entry and search of his home. Petitioner’s argument assumes 23 that all of the evidence found in the house would have been excluded and “absent the 24 excludable evidence[,] the petitioner would not have been convicted of the underlying 25 offence [sic]” (Doc. 1 at 17). Petitioner also argues the state courts should have held an 26 evidentiary hearing on his post-conviction claims and that this Court should hold an 27 evidentiary hearing on his habeas claims (Doc. 1). 28 In support of his claim, Petitioner cites to cases where courts found ineffective 1 assistance when trial counsel should have filed motions to suppress (Docs. 1, 14), but the 2 cited cases are ones where there was a trial conviction, not a guilty plea. See Kimmelman 3 v. Morrison, 477 U.S. 365 (1986); State v. Fillmore, 927 P.2d 1303 (Ariz. Ct. App. 1996). 4 Different from those cases, for prejudice here, Petitioner has the burden of showing that 5 had counsel filed a motion to suppress, Petitioner would not have plead guilty under the 6 plea agreement reached and entered. The record does not support such a claim. 7 Petitioner’s arguments ignore that methamphetamine was found in the hoodie that 8 Petitioner discarded in the yard of his house when he ran away as police arrived. The court 9 of appeals recognized significance of the methamphetamine left behind by Petitioner in the 10 yard in applying the inevitable discovery doctrine to the merits of the search warrant 11 ineffective assistance claim (Doc. 13, Ex. HH paragraph 6).4 The methamphetamine in 12 the hoodie not only supports the state courts’ analysis of the search warrant issue itself, but 13 undermines Petitioner’s current assertions regarding prejudice. Petitioner plead guilty to 14 conspiracy to possess methamphetamine for sale without reference to where the 15 methamphetamine was found. The methamphetamine in the hoodie he discarded was 16 found in the yard, not the house. Given the methamphetamine in the hoodie alone, 17 Petitioner cannot show prejudice from failure to move to suppress the methamphetamine 18 and other items found in the house. 19 The record does reflect that Petitioner attempted to take back his guilty plea from 20 shortly after he entered it. First, Petitioner tried, and failed, to get his guilty plea set aside 21 for reasons having nothing to do with the ineffective assistance suppression motion claim 22 in the Petition. This underscores that a suppression motion was not at the forefront of 23 Petitioner’s mind when he entered the guilty plea and for a time thereafter. Thus, it is hard 24 to give any credence to Petitioner’s blanket assertions that he would not have plead guilty 25 under the plea agreement if a suppression motion had been filed. Further, in his reply in

26 4 The state court record contains multiple references to methamphetamine in the hoodie Petitioner discarded (Doc. 13, Ex. K , Doc. 13-1 at 46; Ex. Z, Doc. 13-1 at 153; Ex. 27 AA, Doc. 13-1 at 169, 178; Ex. GG, Doc. 13-2 at 68). Based on the methamphetamine in the hoodie, the state argued, in the trial court and at the court of appeals, that Petitioner 28 would have been subject to a presumptive term of 10 years if his conviction only regarding the methamphetamine found in the hoodie (Id.). 1 support of his arguments for post-conviction relief based on the ineffective assistance 2 suppression motion claim, Petitioner argues that winning the suppression motion “would 3 have resulted in gaining plea bargain leverage” (Doc. 13, Ex. BB, Doc. 13-1 at 182). The 4 hope of gaining plea bargain leverage does not meet Petitioner’s burden to show that had 5 counsel filed a motion to suppress, Petitioner would not have plead guilty under the plea 6 agreement reached and would have instead gone to trial, as he now claims (Doc. 1 at 16, 7 lines 21-22). 8 The plea agreement reached and entered conferred substantial benefit on Petitioner. 9 counts 2, 3, 4, 5, 6, 7, 8, and 9 were dismissed as part of the plea agreement. The structure 10 of the plea agreement, amending the count of conviction, count 1, to conspiracy to possess 11 dangerous drugs for sale, assured flat time imprisonment would not be imposed on Count 12 1. Further, a certain prison sentence was stipulated in the plea agreement, when Petitioner 13 could have faced a much higher sentence if he lost at trial. It is a reasonable conclusion 14 that these benefits were the motivating factors for Petitioner in entering his guilty plea, and 15 they were perceived and understood by his counsel as well. Petitioner has not shown that 16 trial counsel’s performance was ineffective in going forward with the change of plea with 17 Petitioner without the filing of a motion to suppress evidence from the house. Petitioner 18 has not shown that he would have risked losing the plea agreement benefits by trying to 19 suppress the evidence from the house. 20 Despite Petitioner’s guilty plea, the Arizona Court of Appeals squarely addressed 21 Petitioner’s claim that counsel was ineffective for not filing a motion to suppress. The 22 undersigned has carefully reviewed the record, finds the record sufficiently developed, and 23 finds that the state court factual determinations were reasonable. Undersigned cannot say 24 that no reasonable jurist would disagree that the state court erred. To the contrary, the state 25 court’s determinations were reasonable application of clearly established federal law. 26 Thus, Petitioner has not established that his counsel’s performance was objectively 27 deficient. Given that the state court’s reasonable factual determinations support a 28 conclusion that the evidence from the house would not have been suppressed had a motion 1 to suppress been filed, there was no objectively deficient conduct by counsel and there was 2 no prejudice to Petitioner from trial counsel not filing a motion to suppress. 3 IV. CONCLUSION 4 Petitioner has not demonstrated that he was prejudiced, nor has he demonstrated 5 that trial counsel’s performance was objectively deficient. Petitioner has not shown that 6 the state courts’ determination of the facts was unreasonable, nor has Petitioner met the 7 standard for undeveloped facts. The Arizona Court of Appeals found that Petitioner was 8 not entitled to relief, and this Court cannot say that this was contrary to, or an unreasonable 9 application of, Strickland. 10 Further, a Certificate of Appealability should be denied and leave to proceed in 11 forma pauperis on appeal be denied because Petitioner has not “made a substantial showing 12 of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and jurists of reason would 13 not find the Court’s assessment of Petitioner’s constitutional claims “debatable or wrong,” 14 Slack v. McDaniel, 529 U.S. 473, 484 (2000). 15 Accordingly, 16 IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus (Doc. 1) be 17 denied and dismissed with prejudice without an evidentiary hearing. 18 IT IS FURTHER RECOMMENDED that a Certificate of Appealability should 19 be denied and leave to proceed in forma pauperis on appeal be denied because Petitioner 20 has not “made a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 21 2253(c)(2), and jurists of reason would not find the Court’s assessment of Petitioner’s 22 constitutional claims “debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 23 This recommendation is not an order that is immediately appealable to the Ninth 24 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 25 Appellate Procedure, should not be filed until entry of the district court’s judgment. The 26 parties shall have fourteen days from the date of service of a copy of this recommendation 27 within which to file specific written objections with the Court. See, 28 U.S.C. § 636(b)(1); 28 Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen || days within which to file a response to the objections. Failure timely to file objections to 2|| the Magistrate Judge’s Report and Recommendation may result in the acceptance of the 3 || Report and Recommendation by the district court without further review. See United States 4|| v. Reyna-Tapia, 328 F.3d 1114, 1121 (9" Cir. 2003). Failure timely to file objections to 5 || any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order or judgment entered pursuant to 7\| the Magistrate Judge’s recommendation. See Rule 72, Federal Rules of Civil Procedure. 8 Dated this 27th day of December, 2018. 9 10

2 Honorable Deborah M. Fine United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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