Garcia v. Robertson

• Court: District Court, S.D. California
• Decided: August 3, 2021
• Docket: 3:20-cv-02127
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN CARLOS GARCIA, 20-CV-2127-LAB-WVG

12 Petitioner, REPORT AND RECOMMENDATION 13 v. DENYING PETITION FOR WRIT OF HABEAS CORPUS 14 15 J. ROBERTSON, Warden, et al., 16 Respondents. 17 18 I. INTRODUCTION 19 On October 29, 2020, Juan Carlos Garcia (“Petitioner”), a state prisoner proceeding 20 pro se, filed a Petition for Writ of Habeas Corpus (“Petition”) pursuant to 28 U.S.C. section 21 2254, challenging his conviction in San Diego Superior Court for carjacking, assault with 22 a deadly weapon, unlawful taking and driving of a vehicle, and withholding a stolen 23 vehicle.1 (Doc. No. 10-8 at 74-78). Petitioner claims the trial court committed prejudicial 24 error and violated his due process rights and right to a fair trial by allowing an officer to 25 testify as to whether the Petitioner appeared in a surveillance video at the crime scene. 26 27 1 Petitioner was also convicted based on findings that, during the commission of the carjacking and the assault with a deadly weapon, Petitioner personally inflicted great bodily injury and personally used a dangerous and deadly weapon. (Doc. No. 28 10-8 at 74-75). Additionally, Petitioner had served a prior prison term and he had a prior conviction that qualified as a serious 1 Petitioner argues the officer’s testimony on the surveillance video ultimately led the officer 2 to improperly opine on Petitioner’s guilt, which unfairly prejudiced the jury against 3 Petitioner. (Doc. No. 1 at 6). 4 On March 3, 2021, James Robertson, Warden of Pelican Bay State Prison, who is 5 represented by Sharon L. Rhodes and Xavier Becerra (“Respondents”), filed an Answer to 6 the Petition (“Answer”). (Doc. No. 9.) On May 14, 2021, Petitioner filed a Traverse. (Doc. 7 No. 13.) This case is before the undersigned Magistrate Judge who has reviewed the 8 Parties’ submissions as well as the entirety of the underlying record. For the reasons 9 discussed below, the Court RECOMMENDS the Petition be DENIED without prejudice. 10 II. FACTUAL BACKGROUND 11 This Court gives deference to state court findings of fact and presumes them to be 12 correct; Petitioner may rebut the presumption of correctness but only by clear and 13 convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, U.S. 20, 35-36 14 (1992) (holding findings of historical fact, including inferences properly drawn from these 15 facts, are entitled to a statutory presumption of correctness). 16 a. Petitioner’s Underlying Conduct 17 On the afternoon of June 7, 2013, E.F. was sitting in his car outside of the Logan 18 Heights Library when he noticed a woman, a man, and a child exit the library together. 19 (Doc. No. 10-15 at 3). E.F. noticed the couple appeared to be arguing, and moments later, 20 the woman and child left in a car without the man. Id. Shortly after, the man appeared at 21 the driver’s side window of E.F.’s car and said to E.F., “‘Puto, who are you calling?’” E.F. 22 replied, “‘Nobody, I’m waiting for my daughter.’” Id. at 4. The man walked away and 23 returned to E.F.’s car a couple of times before he ultimately returned and opened E.F.’s car 24 door. Id. E.F. saw the man holding a knife. Id. E.F. moved toward the passenger side of the 25 car, but before he could get outside of the car, E.F. felt the man grab his left foot. Id. E.F. 26 managed to get out of the car, and the man closed the passenger door and drove off in E.F.’s 27 car, taking E.F.’s phone, wallet, and tools with him. Id. At that point, E.F. realized he had 28 been stabbed in the leg. Id. E.F. was transported to the hospital where he received stitches 1 for the stab wound. Id. at 5. 2 b. Officer Smith’s Investigation of Petitioner’s Underlying Conduct 3 The following facts are taken directly from the California Court of Appeal’s 4 opinion: 5 San Diego Police Detective John Smith began investigating the carjacking and stabbing that occurred at the Logan Heights Library. 6 Detective Smith obtained surveillance video from the library taken on 7 the day of the incident. The video did not show the carjacking because the view from the camera panned around the library grounds, “back and 8 forth,” but “wasn’t panning on where the incident occurred” at the time 9 of the incident. Smith was aware from the witness descriptions that he was looking at the video to find a Hispanic male in his twenties with a 10 shaved head or close cut hair who was accompanied by a woman and a 11 small child. Smith personally watched all of the video that had been provided to him by [the] library staff, and he found images that matched 12 the subject, as well as the woman and child. Smith created several still 13 photo[graph]s from the video. Smith then went to the hospital and showed E.F. one of the still photographs derived from the video. E.F. 14 said that the photograph showed the man who had stabbed him and had 15 taken E.F.’s car.

16 Detective Smith tracked down the registered owner of the car that E.F. 17 had seen the woman and child get into just before the incident. The owner of that car was D.N. Detective Smith and another officer made 18 contact with D.N. and showed her several still images that he had 19 obtained from the library surveillance video. D.N. told the officers that she recognized the car shown in the photographs as her own and that 20 her daughter [] sometimes used the car. D.N. also said that she believed 21 the woman in the photographs was her daughter. D.N. also told the officers that she believed the man in the photographs was Garcia, who 22 had been dating D.N.’s daughter at that time. 23 Detective Smith investigated Garcia, including by looking at Garcia’s 24 photographs and postings on Facebook. Smith found several 25 photographs, including a group photograph that had been posted to Garcia’s Facebook page sometime after June 7, 2013, that included a 26 reference to Garcia being in Chicago with [his] family; this photograph 27 was admitted as an exhibit at trial. Based on information provided by Garcia’s sister, K.T., Smith believed that Garcia was the third person 28 1 fprhoomto tghrea plehf.t in the photograph. Some of his tattoos were visible in the 2

3 Another photo posted to Garcia’s Facebook around the same time frame was admitted at trial; Smith found this photograph to be significant 4 because he believed that it showed Garcia wearing the same black tank 5 top as the tank top worn by the suspect in the [surveillance] video. Smith acknowledged that the person he believed to be Garcia in the two 6 photographs was not bald, although the suspect from the surveillance 7 video was bald; there was only a single Facebook photo, which was posted a year before the incident, in which the person he believed to be 8 Garcia displayed a shaved head. Smith believed that Garcia’s tattoos 9 were consistent with those that could been [sic] seen on the suspect in the surveillance video. Garcia also had a scar on his left arm, and this 10 scar was visible on the arm of the man seen in the surveillance video 11 from the library.

12 Upon learning Garcia’s identity in 2013, Detective Smith issued a 13 warrant for Garcia’s arrest. Garcia was not arrested until 2017.

14 (Doc. No. 10-15 at 3-7). 15 c. Petitioner’s Jury Trial 16 Detective Smith’s investigation led to charges being brought against Petitioner, and 17 Petitioner’s case was tried before a jury. Petitioner’s defense at trial was that he was not 18 the person who had been involved in the incident and that the man in the library 19 surveillance video was someone else. (Doc. No. 10-15 at 7). During trial, the State called 20 Detective Smith as a witness. (Doc No. 10-6 at 131). Detective Smith testified at length 21 about his investigation into Petitioner, which included his review of the surveillance 22 footage taken from the library on the day of the carjacking. (Doc. No. 10-6 at 131-45;Doc. 23 No. 10-7 at 24-87). The prosecutor asked Detective Smith if, based on his investigation 24 and review of the video surveillance, had he formed an opinion regarding the identity of 25 the suspect. (Doc. No. 10-7 at 66:7-11). Detective Smith answered affirmatively and 26 proceeded to identify Garcia as the person he believed was the suspect in the surveillance 27 video. Id. at 66:14-19. The prosecutor re-called Detective Smith to the stand in rebuttal to 28 1 ask whether any of the photographs introduced by the defense had changed Detective 2 Smith’s opinion as to who the person in the surveillance video was. Id. at 174:17-22. 3 Detective Smith replied “No, it does not,” and when asked why not, he elaborated, 4 “Because I’m still 100 percent sure, in my mind, that that is [Garcia].” Id. at 174:23-26. 5 On October 31, 2017, a jury convicted Petitioner of one count of carjacking (Pen. 6 Code § 215(a)); one count of assault with a deadly weapon (§ 245(a)(1)); one count of 7 unlawful taking and driving of a vehicle (Veh. Code § 10851(a)); and one count of 8 withholding a stolen vehicle (§ 496(d)). (Doc. No. 10-8 at 74-78). The jury also found that, 9 during the commission of the carjacking, Petitioner personally inflicted great bodily injury 10 on the victim within the meaning of Penal Code sections 12022.7(a) and 1192.7(c)(8), and 11 that Petitioner personally used a dangerous and deadly weapon within the meaning of Penal 12 Code sections 1192.7 (c)(23), and 12022(b)(2). Id. Further, the jury found that, related to 13 the assault with a deadly weapon charge, Petitioner personally used a dangerous and deadly 14 weapon within the meaning of Penal Code section 1192.7(c)(23), and that he personally 15 inflicted great bodily injury on the victim within the meaning of Penal Code Sections 16 1192.7(c)(8) and 12022.7(a). Id. Petitioner also admitted he had a prior serious felony 17 conviction within the meaning of Penal Code section 667(a)(1), a prison sentence prior 18 within the meaning of §667.5(b), and a prior strike conviction pursuant to Penal Code 19 sections 667(b)-(1), 668, and 1170.12. Id. As a result of Petitioner’s convictions, the court 20 sentenced Petitioner to 20 years in state prison. (Doc. No. 10-10 at 6). Petitioner then 21 pursued the appeals process, which is detailed further below. 22 III. PROCEDURAL HISTORY 23 On August 13, 2018, Petitioner filed a timely appeal of his conviction in the 24 California Court of Appeal, Fourth Appellate District, Division One. (Doc. No. 10-15). 25 Petitioner argued the trial court committed prejudicial error and violated Petitioner’s rights 26 to due process and a fair trial by allowing Detective Smith to testify to his opinion of 27 Petitioner’s guilt. (Doc. No. 10-11). On October 11, 2018, Petitioner submitted a 28 supplemental brief arguing the enactment of Senate Bill 1393 required the case to be 1 remanded to enable the trial court to exercise its discretion to remove the five-year prior 2 serious felony enhancement to Petitioner’s sentence. (Doc. No. 10-12). On June 26, 2019, 3 the appellate court affirmed Petitioner’s conviction on the merits. The court explained 4 Petitioner failed to object at trial to Detective Smith’s testimony on the identity of the 5 suspect in the video surveillance. (Doc. No. 10-15). However, the appellate court vacated 6 Petitioner’s sentence and remanded it for resentencing because the trial court was entitled 7 to strike the prior serious felony enhancement to Petitioner’s sentence under Senate Bill 8 1393. Id. 9 On August 5, 2019, Petitioner exhausted his state court remedies by presenting the 10 ground for relief to the California Supreme Court in a petition for review. (Doc. No. 10- 11 16). The California Supreme Court denied the petition for review on September 11, 2019. 12 Id. On October 29, 2020, Petitioner filed the instant petition for writ of habeas corpus 13 pursuant to 28 U.S.C. section 2254 in this Court. (Doc. No. 1). Having been fully briefed 14 by Petitioner and Respondents, the petition is ripe for this Court’s recommendation. 15 IV. STANDARD OF REVIEW 16 This petition is governed by 28 U.S.C. section 2254, the Antiterrorism and Effective 17 Death Penalty Act (“the AEDPA”). The AEDPA provides that a federal court will review 18 a state prisoner’s application for a writ of habeas corpus “only on the ground that he is in 19 custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. 20 § 2254(a). Additionally, the AEDPA restricts federal courts’ ability to afford federal habeas 21 corpus relief unless a petitioner demonstrates the state court’s adjudication on the merits: 22 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 23 determined by the Supreme Court of the United States; or 24

25 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of evidence presented in the State 26 court proceeding. (28 U.S.C. § 2245(d)(1)-(2)). 27 28 1 The AEDPA sets forth a standard that is highly deferential to state courts. Section 2 2254 was intended to “reflect[] the view that habeas corpus is a ‘guard against extreme 3 malfunctions in the state criminal justice systems,’ not a substitute for ordinary error 4 correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (citing 5 Jackson v. Virginia, 443 U.S. 307, 332 (1979)). Further, the AEDPA “preserves authority 6 to issue the writ [of habeas corpus] where there is no possibility fairminded [sic] jurists 7 could disagree that the state court’s decision conflicts with this Court’s precedents. It goes 8 no further.” Harrington, 562 U.S. at 102. 9 V. DISCUSSION 10 Petitioner bases his habeas corpus claim on the grounds that the Superior Court 11 committed prejudicial error and violated his constitutional rights to due process and a fair 12 trial by allowing an officer to testify as to whether Petitioner appeared in a surveillance 13 video at the crime scene, which resulted in the officer testifying as to his opinion of 14 Petitioner’s guilt. (Doc. No. 1 at 6). Respondents argue Petitioner’s request for relief is 15 procedurally barred because the California Court of Appeal denied relief on the procedural 16 ground of forfeiture due to Petitioner’s failure to object during trial on the specific grounds 17 raised on appeal. (Doc. No. 9 at 1). Respondents further argue Petitioner cannot be granted 18 federal habeas review because any error during trial did not have a substantial and injurious 19 effect or influence on the jury’s verdict, and his federal rights to due process and a fair trial 20 were thus not violated. Id. 21 A. Petitioner’s Claim is Procedurally Barred 22 The California Court of Appeal affirmed Petitioner’s conviction on the procedural 23 grounds that Petitioner forfeited his claims by failing to make a specific and timely 24 objection to Detective Smith’s testimony at trial pursuant to California Evidence Code 25 section 353’s contemporaneous objection rule. The Court of Appeal specified: 26 Smith testified about the time he spent and the efforts he took to 27 examine the surveillance video and the still photographs he obtained from the video, as well as the time he took to review the photographs 28 1 a“vNaoilwab, laef toenr Gviaerwciian’gs Fmauceltbipoloek p phaogteo.g Trahpeh psr oosfe cthueto dr ethfeennd aasnkte tdh Satm yitohu, 2 have seen … did you form an opinion as to who you believe the person 3 on court’s exhibit 47 [a still photograph taken from the surveillance video] was?” Defense counsel interjected, stating, “Objection, 4 relevance.” The court overruled the relevance objection, and Detective 5 Smith answered, “Yes.” The prosecutor then asked Smith, “Who is that person?” Defense counsel did not object, and Smith responded by 6 identifying Garcia as the person seen in the photograph from the 7 surveillance video. Smith then went on to testify that he had also personally met Garcia, and that this meeting “confirm[ed] [his] opinion 8 that the person in court’s [exhibit] 47 was” Garcia. Defense counsel 9 registered no further objections to this line of questioning.

10 The prosecutor proceeded to show Detective Smith another court 11 exhibit and asked Smith whether he recognized it. Smith replied that the exhibit was “a photograph taken in 2017 of [Garcia], the defendant 12 sitting at the table here.” … The prosecutor asked, “So, the person who 13 you witnessed the photograph being taken of, who was that person?” Smith replied that it was Garcia. When the prosecutor asked him to 14 point out Garcia, Smith said, “The individual sitting at the defense table 15 with the blue suit and gray tie.” The prosecutor asked, “The same person that we’ve been identifying?” and Smith replied, “Correct.” The 16 prosecutor then asked, “And you’re confident it was the same person?” 17 Smith replied, “Yes.” No objections were made.

18 The prosecutor recalled Detective Smith to testify in rebuttal. The 19 prosecutor said to Smith, “Now, Detective, understanding that the defense has offered some court’s exhibits in regards to tattoos on [one 20 of Garcia’s brothers]; correct?” Smith indicated he understood that the 21 defense had offered these photographs…. When asked whether those photographs “change[d] [his] opinion, at all, as to who the person is in 22 the surveillance video, court’s exhibit 7, and in all of the still photos 23 that are from court’s exhibit 7,” Smith said, “No, it does not.” When asked why not, Smith said, “Because I’m still 100 percent sure, in my 24 mind, that that is [Garcia].” Smith proceeded to explain that the tattoos 25 visible in exhibits 59 and 60, which showed Garcia’s brother, “do not match the tattoos that I have seen on the body of the individual inside 26 the library from the video from court’s exhibit 7.” Defense counsel did 27 not object at any point during this line of questioning.

28 1 (Doc. No. 15 at 8-10). 2 In analyzing the foregoing record, the California Court of Appeal relied on 3 California’s contemporaneous objection rule: 4 “A verdict or finding shall not be set aside, nor shall the judgment or 5 decision based thereon be reversed, by reason of the erroneous admission of evidence unless: (a) There appears of record an objection 6 to or a motion to exclude or to strike the evidence that was timely made 7 and so stated as to make clear the specific ground of the objection or motion.” Cal. Evid. Code § 353(a). 8

9 Based on this state procedural rule, the California Court of Appeal found the 10 Petitioner’s single relevance objection was insufficient to preserve the Petitioner’s claim 11 raised on appeal and now raised before this Court for federal habeas review. (Doc. No. 15 12 at 12). Respondents contend the appellate court’s finding on procedural grounds forecloses 13 this Court’s consideration of the merits of the Petitioner’s claim. (Doc. No. 9 at 1). 14 The Supreme Court of the United States has ruled federal courts are precluded from 15 reviewing a state court’s decision on a question of federal law if the decision rests on an 16 “independent and adequate” state procedural rule. Coleman v. Thompson, 501 U.S. 722, 17 729 (1991). The Ninth Circuit has further held the respondent has the burden to prove the 18 “existence of an independent and adequate state procedural ground” because procedural 19 default is an affirmative defense. Bennett v. Mueller, 322 F. 3d 573, 586 (9th Cir. 2003). If 20 the state adequately pleads an independent and adequate state procedural ground, the 21 burden then shifts to the petitioner to place the defense in issue by “asserting specific 22 factual allegations that demonstrate the inadequacy of the state procedure.” Id. If the state 23 meets its burden under Bennett, federal review of the habeas corpus claim is foreclosed 24 unless the petitioner “can demonstrate cause for the default and actual prejudice as a result 25 of the alleged violation of federal law or demonstrate that failure to consider the claims 26 will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. 27 A state procedural rule is deemed “independent” if the state law basis for the decision 28 is not interwoven with federal law. Michigan v. Long, 463 U.S. 1032, 1041 (1983). See 1 also Harris v. Reed, 489 U.S. 255, 265 (1989). The basis for a decision is “interwoven” 2 with federal law if the state has made application of the procedural bar dependent on an 3 antecedent ruling on federal law, such as the determination of whether federal 4 constitutional error has been committed. Ake v. Oklahoma, 470 U.S. 68, 75 (1985). For a 5 state procedural rule to be considered “adequate,” it must be “firmly established and 6 regularly followed.” Walker v. Martin, 562 U.S. 307, 316 (2011) (citing Beard v. Kindler, 7 558 U.S. 53, 60-61 (2009)). 8 Respondents have met their initial burden under Bennett. The Ninth Circuit 9 previously concluded in Fairbank the contemporaneous objection rule constitutes an 10 independent and adequate state procedural ground.2 (Doc. No. 9 at 13) (citing Fairbank v. 11 Ayers, 650 F.3d 1243, 1256-57 (9th Cir. 2011)). Therefore, as Respondents argue in their 12 briefing, it is firmly established that the contemporaneous objection rule is both an 13 independent and an adequate state procedural rule to satisfy Coleman. The burden thus 14 shifts to Petitioner to “demonstrate the inadequacy of the state procedure.” Bennett, 322 15 F.3d at 586. Although Petitioner contends his claims are not procedurally barred as the 16 state argues, he did not specifically discuss the inadequacy of the contemporaneous 17 objection rule and instead focused on the due process grounds of his claim. (Doc No. 13 at 18 2). Therefore, Petitioner has failed to meet his burden under Bennett, and the California 19 Court of Appeal’s decision rests on an independent and adequate state procedural rule. 20 Bennett, 322 F. 3d at 586. 21 Petitioner has also not established “cause” and “prejudice” or a “fundamental 22 miscarriage of justice” to overcome the claim being precluded from federal review. 23 Coleman, 501 U.S. at 750. Although neither “cause” nor “prejudice” have been explicitly 24 defined, Supreme Court decisions subsequent to Coleman have shed light on what a 25 26 27 2 “Because a federal court sitting in habeas must presume that [the state court’s] finding of fact is correct, see 28 U.S.C. § 2254(b)(3), and because there is no clear and convincing evidence to the contrary, we conclude that the California Supreme 28 Court applied an independent and adequate state procedural rule that bars federal review of Fairbank’s prosecutorial [sic] 1 petitioner must show to demonstrate each. The Court in Murray found “cause” may be 2 demonstrated by “a showing of some external impediment preventing counsel from 3 constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 492 (1986). Further, 4 “prejudice” has been found to require a showing that the alleged errors at trial must have 5 worked to the petitioner’s “actual and substantial disadvantage, infecting his entire trial 6 with error of constitutional dimensions.” U.S. v. Frady, 456 U.S. 152, 171 (1982). No 7 showings of cause or prejudice have been demonstrated here, either through Petitioner’s 8 briefing or through the underlying state court record, which this Court has reviewed in its 9 entirety. 10 Regarding “cause,” Petitioner argues it would have been futile for him to continue 11 objecting to Officer Smith’s testimony at trial after one relevance objection was overruled 12 by the court. (Doc. No. 13 at 3). However, the Supreme Court has explicitly ruled “[t]he 13 futility of presenting an objection to the state courts cannot alone constitute cause for a 14 failure to object at trial.” Engle v. Issac, 465 U.S. 107, 130 (1982). Additionally, Petitioner 15 failed to allege any other facts suggesting cause such as ineffective assistance of counsel 16 for failing to properly object to the admission of Detective Smith’s testimony. Therefore, 17 Petitioner’s claims are insufficient to demonstrate “cause for the default,” and, because 18 Coleman requires petitioners to show both cause and prejudice, an analysis of “prejudice” 19 is unnecessary. Coleman, 501 U.S. at 750. 20 As stated above, as an alternative to demonstrating cause and prejudice, a petitioner 21 can avoid preclusion of federal review by demonstrating “that failure to consider the claims 22 will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750. The 23 Supreme Court has limited the “miscarriage of justice” exception to petitioners who can 24 show that “a constitutional violation has probably resulted in one who is actually innocent.” 25 Schlup v. Delo, 513 U.S. 298, 326-27 (1995). “Actual innocence” requires a showing that 26 “it is more likely than not that no reasonable juror would have convicted [the petitioner] in 27 light of the new evidence.” Id. at 327. Therefore, “a claim of actual innocence must be 28 1 || based on reliable evidence not presented at trial.” Calderon v. Thompson, 523 U.S. 538, 2 ||559 (1998). No such claims have been sufficiently made by Petitioner in any of his briefing. 3 While Petitioner maintains he is innocent of the charges he was convicted of and 4 ||contests the admission of Officer Smith’s testimony on federal due process and fair trial 5 || grounds, he has not presented any new evidence to show “it is more likely than not that no 6 reasonable juror would have convicted [Petitioner] in light of the new evidence.” Schlup, 7 U.S. at 326-27. Due to this lack of new evidence, Petitioner has demonstrated neither 8 ||“‘cause for the default and actual prejudice as a result of the alleged violation of federal 9 ||law” nor this Court’s “failure to consider the claims will result in a fundamental 10 || miscarriage of justice.” Coleman, 501 U.S. at 750. Because the State has met its burden 11 the Court of Appeal’s decision is based on “an independent and adequate state 12 || procedural rule” and Petitioner did not sufficiently demonstrate an exception to the rule in 13 || Coleman, Petitioner’s habeas corpus claim is procedurally barred. Accordingly, this Court 14 |/is precluded from reviewing the merits of Petitioner’s claim. /d. at 729. 15 VI. CONCLUSION 16 For the aforementioned reasons, the Court RECOMMENDS that Petitioner’s 17 || Petition for Writ of Habeas Corpus be DENIED without prejudice. The Court submits this 18 ||Report and Recommendation to United States District Judge Larry A. Burns pursuant to 19 U.S.C. section 636(b)(1). 20 IT IS ORDERED. 21 9 DATED: August 3, 2021 | Se 23 Hon. William V. Gallo 24 United States Magistrate Judge 25 26 27 28