Franklin v. Filson

• Court: District Court, D. Nevada
• Decided: December 2, 2021
• Docket: 3:18-cv-00150
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 TERON FRANKLIN, Case No. 3:18-cv-00150-MMD-CLB

7 Petitioner, ORDER v. 8 TIMOTHY FILSON, et al., 9 Respondents. 10 11 Teron Franklin’s 28 U.S.C. § 2254 petition for writ of habeas corpus is before the 12 court for final disposition on the merits. (ECF No. 17.) As discussed below, the petition is 13 denied. 14 I. PROCEDURAL HISTORY AND BACKGROUND 15 In January 2012, a jury convicted Franklin of battery causing substantial bodily 16 harm. (Exhibit “Exh.” 22.)1 The state district court adjudicated him a habitual offender and 17 sentenced him to life in prison without the possibility of parole. (Exh. 24.) Judgment of 18 conviction was filed on March 19, 2012. (Exh. 25.) The Nevada Supreme Court affirmed 19 Franklin’s convictions in September 2013, and the Nevada Court of Appeals affirmed the 20 denial of his state postconviction habeas corpus petition in February 2018. (Exhs. 55, 21 103.) 22 Franklin’s federal petition sets forth three grounds for relief based on ineffective 23 assistance of counsel. (ECF No. 17.) Respondents have answered the petition, and 24 Franklin replied. (ECF Nos. 35, 42.) 25 /// 26 /// 27 1 II. LEGAL STANDARDS 2 a. AEDPA Standard of Review 3 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty 4 Act (“AEDPA”), provides the legal standards for this court’s consideration of the petition 5 in this case:

6 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect 7 to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ― 8 (1) resulted in a decision that was contrary to, or involved an 9 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 10 (2) resulted in a decision that was based on an unreasonable 11 determination of the facts in light of the evidence presented in the State court proceeding. 12 13 AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in 14 order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are 15 given effect to the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). 16 The Court’s ability to grant a writ is limited to cases where “there is no possibility fair- 17 minded jurists could disagree that the state court’s decision conflicts with [Supreme Court] 18 precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011). The Supreme Court has 19 emphasized “that even a strong case for relief does not mean the state court’s contrary 20 conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)); 21 see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the AEDPA standard 22 as “a difficult to meet and highly deferential standard for evaluating state-court rulings, 23 which demands that state-court decisions be given the benefit of the doubt”) (internal 24 quotation marks and citations omitted). 25 A state court decision is contrary to clearly established Supreme Court precedent, 26 within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts 27 the governing law set forth in [the Supreme Court’s] cases” or “if the state court confronts 1 and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” 2 Lockyer, 538 U.S. at 73 (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000), and 3 citing Bell, 535 U.S. at 694). 4 A state court decision is an unreasonable application of clearly established 5 Supreme Court precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court 6 identifies the correct governing legal principle from [the Supreme Court’s] decisions but 7 unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. 8 at 74 (quoting Williams, 529 U.S. at 413). The “unreasonable application” clause requires 9 the state court decision to be more than incorrect or erroneous; the state court’s 10 application of clearly established law must be objectively unreasonable. Id. (quoting 11 Williams, 529 U.S. at 409). 12 To the extent that the state court’s factual findings are challenged, the 13 “unreasonable determination of fact” clause of § 2254(d)(2) controls on federal habeas 14 review. Lambert v. Blodgett, 393 F.3d 943, 972 (9th Cir. 2004). This clause requires that 15 the federal courts “must be particularly deferential” to state court factual determinations. 16 Id. The governing standard is not satisfied by a showing merely that the state court finding 17 was “clearly erroneous.” Id. at 973. Rather, AEDPA requires substantially more 18 deference:

19 .... [I]n concluding that a state-court finding is unsupported by substantial evidence in the state-court record, it is not enough that we would reverse in 20 similar circumstances if this were an appeal from a district court decision. Rather, we must be convinced that an appellate panel, applying the normal 21 standards of appellate review, could not reasonably conclude that the finding is supported by the record. 22 23 Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004); see also Lambert, 393 F.3d at 972. 24 Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be 25 correct unless rebutted by clear and convincing evidence. The petitioner bears the burden 26 of proving by a preponderance of the evidence that he is entitled to habeas relief. See 27 Cullen, 563 U.S. at 181. 1 b. Ineffective Assistance of Counsel 2 Franklin asserts three grounds of ineffective assistance of counsel (“IAC”). Such 3 claims are governed by the two-part test announced in Strickland v. Washington, 466 4 U.S. 668 (1984). In Strickland, the Supreme Court held that a petitioner claiming 5 ineffective assistance of counsel has the burden of demonstrating that (1) the attorney 6 made errors so serious that he or she was not functioning as the “counsel” guaranteed 7 by the Sixth Amendment, and (2) that the deficient performance prejudiced the defense. 8 Williams, 529 U.S. at 390-91 (citing Strickland, 466 U.S. at 687). To establish 9 ineffectiveness, the defendant must show that counsel’s representation fell below an 10 objective standard of reasonableness. See id. To establish prejudice, the defendant must 11 show that there is a reasonable probability that, but for counsel’s unprofessional errors, 12 the result of the proceeding would have been different. See id. A reasonable probability 13 is “probability sufficient to undermine confidence in the outcome.” Id. Additionally, any 14 review of the attorney’s performance must be “highly deferential” and must adopt 15 counsel’s perspective at the time of the challenged conduct, in order to avoid the distorting 16 effects of hindsight. Strickland, 466 U.S. at 689. It is the petitioner’s burden to overcome 17 the presumption that counsel’s actions might be considered sound trial strategy. See id. 18 Ineffective assistance of counsel under Strickland requires a showing of deficient 19 performance of counsel resulting in prejudice, “with performance being measured against 20 an objective standard of reasonableness, . . . under prevailing professional norms.” 21 Rompilla v. Beard, 545 U.S. 374, 380 (2005) (internal quotations and citations omitted). 22 When the ineffective assistance of counsel claim is based on a challenge to a guilty plea, 23 the Strickland prejudice prong requires a petitioner to demonstrate “that there is a 24 reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and 25 would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). 26 If the state court has already rejected an ineffective assistance claim, a federal 27 habeas court may only grant relief if that decision was contrary to, or an unreasonable 1 application of, the Strickland standard. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). 2 There is a strong presumption that counsel’s conduct falls within the wide range of 3 reasonable professional assistance. See id. 4 The United States Supreme Court has described federal review of a state supreme 5 court’s decision on a claim of ineffective assistance of counsel as “doubly deferential.” 6 Cullen, 563 U.S. at 190 (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)). The 7 Supreme Court emphasized that: “We take a ‘highly deferential’ look at counsel’s 8 performance . . . through the ‘deferential lens of § 2254(d).’” Id. at 1403 (internal citations 9 omitted). Moreover, federal habeas review of an ineffective assistance of counsel claim 10 is limited to the record before the state court that adjudicated the claim on the merits. See 11 Cullen, 563 U.S. at 181-84. The United States Supreme Court has specifically reaffirmed 12 the extensive deference owed to a state court's decision regarding claims of ineffective 13 assistance of counsel: 14 Establishing that a state court’s application of Strickland was unreasonable 15 under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” id. at 689, 104 S.Ct. 2052; Lindh 16 v. Murphy, 521 U.S. 320, 333, n.7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, Knowles, 556 U.S. 17 at 123. The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U.S. at 124. Federal habeas courts must 18 guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d). When § 2254(d) applies, the 19 question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. 20 21 Harrington, 562 U.S. at 105. “A court considering a claim of ineffective assistance of 22 counsel must apply a ‘strong presumption’ that counsel’s representation was within the 23 ‘wide range’ of reasonable professional assistance.” Id. at 104 (quoting Strickland, 466 24 U.S. at 689). “The question is whether an attorney’s representation amounted to 25 incompetence under prevailing professional norms, not whether it deviated from best 26 practices or most common custom.” Id. (internal quotations and citations omitted). 27 /// 1 III. TRIAL TESTIMONY OF VICTIM AND FRANKLIN 2 Michelle Winship’s mother, Sharon Ford, testified that on the day in question, 3 Winship and Franklin were in Ford’s apartment, and Franklin was trying to get Winship to 4 give him a ride. (Exh. 106 at 125-183.) Winship refused, and they got into a heated 5 argument. Franklin then grabbed Winship by the hair, dragged her out of the house, and 6 threw her on the ground. He picked up Winship’s son’s bike and threw it on top of her. He 7 then started kicking her repeatedly in the head and body. 8 Michelle Winship testified that when Franklin threw the bike on her, it broke two 9 bones in her arm. (Id. at 184-261.) She had surgery a couple of days later; doctors placed 10 titanium plates in her arm, and she had 18 staples. She stated that her arm was fine 11 before the incident, but now she can hardly lift anything, and her fingertips are still numb. 12 She said that after the incident Franklin called her several times and urged and threatened 13 her not to testify against him. Winship testified that she was not involved in any other 14 physical altercation around the time that Franklin injured her. She acknowledged that she 15 remained in contact with Franklin after the incident and that they would spend time 16 together and get high together. 17 Franklin testified that on the day in question there was no bicycle in front of Ford’s 18 apartment. (Exh. 19 at 63-150.) He agreed that he and Winship argued because she 19 refused to give him a ride. He said he threw some pills that Winship was counting down 20 the kitchen garbage disposal and then she became belligerent and was trying to push 21 him out the front door. He testified that he had his back to the front door threshold and as 22 she was shoving him, they both fell backwards down the steps. Franklin said he pushed 23 Winship off of him and as he was getting up, she was holding on to his leg and pulling. 24 He said that after that he walked to Winship’s apartment, which was in the same complex, 25 collected his things, and left on foot. 26 /// 27 /// 1 IV. FRANKLIN’S PETITION 2 a. Ground 1 3 Franklin contends that his trial counsel, Gemma Waldron, was ineffective for failing 4 to communicate a plea offer (ECF No. 17 at 13-17).2 The State offered a plea deal of 5 domestic battery causing substantial bodily harm—with a sentence range of 1 to 5 6 years—with no habitual criminal enhancement. Franklin asserts that his counsel did not 7 inform him of the proffered deal until after the offer expired. 8 Sean Sullivan, a deputy public defender, testified that he appeared at an October 9 11, 2011, hearing on behalf of Franklin. (Exh. 87 at 19-33.) He explained that he was not 10 actually assigned to the case but was covering for his colleague Theresa Ristenpart. 11 Sullivan testified that the State offered a plea deal of domestic violence causing 12 substantial bodily harm and the State would concur with the Division of Parole and 13 Probation at the time of sentencing and not pursue habitual criminal treatment. Sullivan 14 stated that Franklin rejected the offer; the only offer that Franklin was willing to accept 15 was for a misdemeanor. At the time, the victim was not cooperating with the State, and 16 Franklin also maintained his innocence. Sullivan testified that he advised Franklin that a 17 habitual criminal adjudication could result in a sentence of life without parole:

18 It’s my custom, habit and practice, whenever the habitual is being alleged or possibly alleged by the State, to go through the statute and go through 19 their criminal history and then talk about the possibilities. 20 But I always make sure that this isn’t like a three strikes and you are out, 21 like other jurisdictions. The judge has that broadest kind of discretion to impose habitual or adjudicate habitual or not adjudicate habitual. 22 So that’s my custom, habit and practice, and that’s what I believe that we 23 discussed. 24 25 (Id. at 31-32.) 26

27 2Waldron passed away in 2014, after the trial and sentencing and before the evidentiary hearing on Franklin’s state postconviction habeas petition. (See, e.g., ECF 1 Theresa Ristenpart testified that she was the public defender assigned to 2 Franklin’s case early in the proceedings before her office was conflicted out. (Exh. 87 at 3 65-80.) She had discussed with Franklin the offer to plead to the charge, with no habitual 4 criminal; he rejected the offer. She stated that when she spoke with the victim, the victim 5 told her that she had been drinking all day and was on medication, and she either fell over 6 the bike or couldn’t remember. Ristenpart said that she was aware that the State could 7 potentially pursue habitual criminal treatment and that she discussed that with Franklin 8 along with the possible sentences. 9 Elliott Sattler testified that he was the deputy district attorney that prosecuted 10 Franklin. (Exh. 87 at 34-62.) Evidence was presented that the district attorney sent an 11 email to Waldron on January 18, 2012, with the same offer—plead guilty to domestic 12 violence causing substantial bodily harm and the State would not seek habitual criminal 13 treatment. The offer was set to expire on January 23, and trial was set for January 30. 14 Franklin testified that he had discussed the offer to plead to the charge with 15 Sullivan. (Exh. 87 at 80-167.) On cross-examination Franklin stated that he and Sullivan 16 went back and forth about different possibilities for a plea deal, including pleading to a 17 misdemeanor and a deal that included being released on his own recognizance. Waldron 18 ultimately represented Franklin at trial. Franklin testified that when he met with Waldron 19 on January 21, she told him that the State was going to seek habitual criminal treatment. 20 He insisted at the evidentiary hearing that he did not know until the beginning of the trial 21 on January 30 that he faced a potential life without parole sentence if he were adjudicated 22 a habitual offender. But he also testified that he did not know of that possibility until 23 sentencing. He also equivocated when asked whether Waldron conveyed the plea offer 24 to him before it expired, whether he understood the consequences of the deal, and 25 whether he would have agreed to the plea deal. (See id. at 108-113.) 26 The Nevada Court of Appeals affirmed the denial of this claim in Franklin’s state 27 postconviction petition: First, Franklin argued that counsel failed to communicate the State’s final 1 guilty plea offer until after it had already expired. The district court found 2 Franklin was not credible and, accordingly, Franklin failed to demonstrate by a preponderance of the evidence that counsel failed to communicate the 3 offer, or he would have accepted it. See Missouri v. Frye, 566 U.S. 134, 145 (2012) (holding counsel is deficient when she fails to timely communicate a 4 favorable guilty plea offer and petitioner is prejudiced when he demonstrates a reasonable probability he would have accepted the offer, it 5 would have been entered without the State rescinding it or the trial court 6 rejecting it, and it was more favorable than the trial outcome). The district court’s findings are supported by the record and are not clearly wrong. We 7 therefore conclude the district court did not err by denying this claim. 8 (Exh. 103 at 3.) 9 Franklin’s testimony at the evidentiary hearing was inconsistent. Two of his 10 attorneys testified that they advised him of the potential sentences, and Franklin 11 acknowledged that his trial attorney also advised him of the possible sentences. Franklin 12 has failed to demonstrate that counsel did not communicate the offer or that he would 13 have accepted it. He has not shown that the Nevada Court of Appeals’ decision was 14 contrary to or involved an unreasonable application of Strickland. See 28 U.S.C. § 15 2254(d). Federal habeas relief is denied as to ground 1. 16 b. Ground 2 17 Franklin next argues that Waldron was ineffective in violation of his Sixth and 18 Fourteenth Amendment rights because she failed to understand the charges against 19 Franklin. (ECF No. 17 at 17-19.) Franklin asserts that his counsel informed him that he 20 could not be convicted of a felony because this conviction would have had to have been 21 his third domestic battery offense, but Franklin had no prior domestic battery offenses. 22 Franklin contends that after the State filed the notice in the Amended Information that it 23 was seeking habitual criminal treatment, his counsel told him he could not get habitual 24 treatment because he was only charged with a misdemeanor. Franklin further claims that 25 counsel represented to him that the possible habitual sentences were 10 years to life or 26 a term of 10 to 25 years. 27 /// 1 Ristenpart, who represented Franklin before her office identified a conflict of 2 interest, testified at the state evidentiary hearing about the charges:

3 Q: 200.485 is the domestic battery statute. 4 A: Yes, that was his original charge. 5 Q: And so was it your understanding the State was pursuing because they 6 thought he had two prior misdemeanor domestic battery convictions?

7 A: No, it’s because the -- causing substantial bodily harm. 8 Q: And are you aware of a statute that requires a domestic relationship for 9 a battery causing substantial bodily harm conviction?

10 A: Correct. So they have to establish there’s a domestic relationship, as well as that a battery occurred causing substantial bodily harm. So I think I know 11 your next question, but I’ll wait for it. 12 Q: So were you put on notice by any of the charging documents you saw 13 that the State was alleging a domestic battery causing substantial bodily harm using all three statutes, 200.481, 33.018 and 200.485? 14 A: Correct. 15 In fact, it was on a mandatory status conference sheet that it was a domestic 16 battery causing. And that was part of the issue in our potential defense, because maybe who could establish it was domestic besides the alleged 17 victim. 18 (Exh. 87 at 72-73.) 19 The prosecutor also testified that there was nothing to suggest that trial counsel 20 was confused about the charges:

21 Q: Did Ms. Waldron discuss with you that she didn’t believe Mr. Franklin could commit a felony because this was not his third-time domestic battery? 22

23 A: No, I don’t remember her discussing that with me at all, because the charge was domestic battery causing substantial bodily harm. And so it’s 24 not predicated on two prior misdemeanor convictions, it’s based on the substantial bodily harm. So I don’t remember her discussing that with me. 25 But if she would have, I would have simply said it’s a felony because of the 26 substantial bodily harm. 27 (Id. at 45.) 1 Rejecting this claim, the Nevada Court of Appeals reasoned:

2 The district court found counsel questioned prospective jurors, made an 3 opening statement, cross-examined witnesses, and made closing arguments. These findings of active participation at trial are supported by 4 the record and are not clearly wrong, and they thus belie Franklin’s claim. . . . 5 The district court found counsel engaged in detailed cross-examination of 6 witnesses and argued the relevant facts and law in closing arguments, both 7 of which demonstrated her preparation for trial. These findings are supported by the record and are not clearly wrong. . . . 8 Franklin argued counsel did not understand the factual or legal basis of his 9 case and told him a felony conviction—and thus habitual criminal treatment—was impossible. The district court found Franklin was not 10 credible and counsel’s actions at trial, summarized above, demonstrated 11 her understanding of the case. These findings ae supported by the record and are not clearly wrong. We therefore conclude the district court did not 12 err by denying this claim. 13 14 (Exh. 103 at 4.) 15 The Court has reviewed the state-court record, which supports the state district 16 court’s assessment of defense counsel’s performance at trial and belies Franklin’s 17 contentions that counsel was uninformed and ill-prepared. Accordingly, Franklin has not 18 shown that the Nevada Court of Appeals’ decision was contrary to or involved an 19 unreasonable application of Strickland. See 28 U.S.C. § 2254(d). Ground 2 is, therefore, 20 denied. 21 c. Ground 3 22 Franklin then claims that his trial counsel was ineffective because she had 23 previously prosecuted him, creating an actual conflict of interest and depriving him of his 24 Sixth and Fourteenth Amendment rights to effective assistance of counsel. (ECF No. 17at 25 20-21.) Franklin contends that county district attorney records indicate that Waldron was 26 the deputy district attorney assigned to prosecute him for false imprisonment and 27 domestic battery in 2002. The cases, which listed the defendant as William Johnson, a 1 pseudonym Franklin used, were dismissed two weeks after they were filed due to the 2 unavailability of witnesses. (See Exh. 66 at 18, 34-35.) Franklin argues that this alleged 3 conflict meant that he was essentially without counsel at trial and sentencing. See, e.g., 4 U.S. v. Chronic, 466 U.S. 648 (1984); White v. Maryland, 373 U.S. 59 (1963). 5 The Sixth Amendment right to counsel encompasses a right to representation free 6 from conflicts of interest. See Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir. 2004). With 7 respect to a breakdown in the attorney-client relationship, the Supreme Court has made 8 it clear that the Sixth Amendment guarantee of counsel does not guarantee a meaningful 9 attorney-client relationship. See Morris v. Slappy, 461 U.S. 1, 14 (1983). 10 The Nevada Court of Appeals explained:

11 Franklin argued counsel suffered from an actual conflict of interest. A 12 petitioner who demonstrates an actual conflict has adversely affected counsel’s performance has satisfied Strickland’s deficiency prong, and we 13 presume prejudice. See Cuyler v. Sullivan, 446 U.S. 335, 349-50 (1980); Clark v. State, 831 P.2d 1374, 1376 (Nev. 1992). “[A] conflict exists when 14 an attorney is placed in a situation conducive to divided loyalties.” Clark, 831 P.2d at 1376 (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 15 1991)). 16 Franklin claimed counsel’s conflict stemmed from her prosecution of him in 17 two 2002 cases when she was a deputy district attorney. Franklin failed to demonstrate divided loyalties. First, we note the record does not 18 demonstrate counsel was aware she had been assigned to Franklin’s prior cases. Both of the 2002 cases were dismissed two weeks after the criminal 19 complaint was filed due to witness unavailability, and in both cases, Franklin 20 was prosecuted under a pseudonym. And Franklin did not demonstrate how counsel could feel a loyalty to a case of which she was unaware. Second, 21 Franklin did not demonstrate the alleged conflict had any bearing on counsel’s performance, adverse or otherwise. Finally, Franklin neither 22 alleged nor demonstrated the 2002 cases and the instant case were substantially related or involved the revelation of privileged 23 communications. See Maiden v. Bunnell, 35 F.3d 477, 480 (9th Cir. 1994) 24 (“In cases of successive representation, conflicts of interests may arise if the cases are substantially related or if the attorney reveals privileged 25 communications of the former client or otherwise divides his loyalties.” (internal quotation marks omitted)). We therefore conclude the district court 26 did not err by denying this claim. 27 (Exh. 103 at 4-5.) 1 This claim is meritless. Franklin presents nothing to indicate that his counsel was 2 even aware that she had been briefly assigned to prosecute him a decade earlier in two 3 cases in which he was prosecuted under a pseudonym. Franklin has not demonstrated 4 that the Nevada Court of Appeal’s decision was contrary to or involved an unreasonable 5 application of Strickland. See 28 U.S.C. § 2254(d). Federal habeas relief is denied as to 6 ground 3. 7 Accordingly, the petition is denied in its entirety. 8 V. CERTIFICATE OF APPEALABILITY 9 This is a final order adverse to the petitioner. As such, Rule 11 of the Rules 10 Governing Section 2254 Cases requires this court to issue or deny a certificate of 11 appealability (“COA”). Accordingly, the Court has sua sponte evaluated the claims within 12 the petition for suitability for the issuance of a COA. See 28 U.S.C. § 2253(c); Turner v. 13 Calderon, 281 F.3d 851, 864-65 (9th Cir. 2002). 14 Pursuant to 28 U.S.C. § 2253(c)(2), a COA may issue only when the petitioner 15 “has made a substantial showing of the denial of a constitutional right.” With respect to 16 claims rejected on the merits, a petitioner “must demonstrate that reasonable jurists would 17 find the district court’s assessment of the constitutional claims debatable or wrong.” Slack 18 v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 19 (1983)). For procedural rulings, a COA will issue only if reasonable jurists could debate 20 (1) whether the petition states a valid claim of the denial of a constitutional right and (2) 21 whether the court’s procedural ruling was correct. See id. 22 Having reviewed its determinations and rulings in adjudicating Franklin’s petition, 23 the Court finds that none of those rulings meets the Slack standard. The Court therefore 24 declines to issue a certificate of appealability for its resolution of Franklin’s petition. 25 VI. CONCLUSION 26 The Court notes that the parties made several arguments and cited to several 27 cases not discussed above. The Court has reviewed these arguments and cases and has 1 It is therefore ordered that the amended petition (ECF No. 17) is denied. 2 It is further ordered that a certificate of appealability is denied. 3 The Clerk of Court is directed to enter judgment accordingly and close this case. 4 DATED THIS 2"¢ Day of December 2021.

6 MIRANDA M. DU, CHIEF JUDGE 7 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14