(HC) Martinez v. Johnson

• Court: District Court, E.D. California
• Decided: July 9, 2020
• Docket: 2:16-cv-01302
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRISTINA MARIE MARTINEZ, No. 2:16-cv-1302 MCE AC 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 DEBORAH K. JOHNSON, Warden 15 Respondent. 16 17 Petitioner is a California state prisoner proceeding pro se with an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. The action proceeds on a petition which challenges 19 petitioner’s 2011 conviction for special circumstances murder, and resulting sentence of life 20 without the possibility of parole. ECF No. 1. Respondent has answered, ECF No. 10, and 21 petitioner has filed a traverse, ECF No. 11. 22 BACKGROUND 23 I. Proceedings In the Trial Court 24 A. Preliminary Proceedings 25 Petitioner and her boyfriend, Robert Lee Hammons, were charged in Sacramento County 26 with the 2004 robbery and murder of Clayton Skinner. Petitioner was charged with (1) murder, 27 with the special circumstance of killing while engaged in robbery and burglary; (2) first degree 28 robbery, with an allegation that the defendants acted in concert; and (3) first degree burglary. 1 Hammons was also charged in Counts One through Three, and he faced an additional allegation 2 on the murder count of having personally used a deadly weapon. Counts One through Three 3 arose from the incident in which Skinner was killed. Hammons alone was charged with (4) 4 attempted robbery and (5) assault with a deadly weapon. CT 222-225.1 Counts Four and Five 5 arose from a previous incident involving Skinner. 6 Petitioner’s pre-trial motion to sever her trial from Hammons’s was denied. Supp. CT 19- 7 28; RT 4.2 8 B. The Evidence Presented at Trial 9 The prosecution proceeded on a felony-murder theory, presenting evidence that petitioner 10 and Hammons went to Clayton Skinner’s home to steal gemstones on July 2, 2004, and that in the 11 course of the robbery Hammons beat Skinner to death with a blunt instrument. The jury heard 12 evidence of the following facts. 13 Petitioner and Hammons lived in the same household as Stacy L. and her two teenagers, 14 Teran (14 years old) and Taje (13 years old). Petitioner and Hammons babysat for the boys while 15 their mother worked. 16 On June 26, 2004, Clayton Skinner called 911 to report that he had just been robbed and 17 beaten in his home by a man in his 20s and two teenagers. He had been beaten on the back with a 18 steering wheel locking device known as a Club. Teran testified3 that he and his brother had gone 19 with Hammons to Skinner’s house on that date to see about a car for sale. Skinner had a tackle 20 box with gemstones in it, which Taje had unsuccessfully tried to take. In the days that followed, 21 Hammons told Teran and Taje that they needed to go back and get the gemstones. Hammons 22 convinced petitioner to go with them. Hammons wanted petitioner to set everything up so that 23 they could get back into the house, by pretending to be interested in the car that Skinner was 24 offering for sale. 25

26 1 “CT” refers to the Clerk’s Transcript on Appeal. “Supp. CT” refers to the Supplemental Clerk’s Transcript on Appeal. 27 2 “RT” refers to the Reporter’s Transcript on Appeal. 3 Teran had initially been charged as a co-defendant, and testified as part of a negotiated plea 28 agreement. 1 On July 2, 2004, petitioner drove Hammons and the boys back to Skinner’s house in 2 Stacy’s van. First Taje went to the front door, but Skinner recognized him and pulled a knife. 3 (At this point Skinner called 911 to report that one of his assailants had returned, but finally said 4 that it looked like “they want to talk” and there was no emergency.) Next petitioner went up to 5 the door, and gained access by asking Skinner about the car for sale. Hammons was listening to 6 the interaction from the van, via cell phone. When Hammons overheard Skinner make a crude 7 remark to petitioner, he and the boys went into the house. When Skinner alerted to the sound of 8 someone else in the house, petitioner called out a warning that Skinner had a knife. Hammons 9 picked up the Club that was lying on a couch. He hit Skinner on the head with it, and kept hitting 10 until Skinner appeared to be unconscious. Hammons instructed Taje to “keep him down” with 11 the Club, so Taje hit Skinner in the back a few times until Teran told him to stop. Petitioner 12 grabbed some speaker wire and wrapped it around her hands to use as a choke. She would 13 approach Skinner when he roused and tried to get up, but never put the wire around his neck 14 because Taje would kick or hit him to keep him from getting up. The four left, taking the Club 15 and Skinner’s cell phone with them. 16 The next morning, Skinner’s father went to his home and found blood all over the house 17 and Skinner dead in the bathroom. The tackle box containing Skinner’s collection of semi- 18 precious stones was missing. An autopsy concluded that Skinner had been killed by blunt force 19 trauma to the head. A piece of plastic from the Club was found in a skull fracture. 20 Petitioner was interviewed by a detective in her home in February 2009, and falsely stated 21 that a photograph of Hammons was a picture of a friend who had died. Later, at the police 22 station, she denied knowing Hammons even though they had three children together. The jury 23 was admonished to consider these statements as to petitioner only. Hammons was interrogated in 24 March and June of 2009, and made certain incriminating statements that were admitted as to 25 Hammons only. 26 C. Outcome 27 Both defendants were found guilty on all counts except Count Four, the attempted robbery 28 charge against Hammons, as to which the jury could not reach a verdict and a mistrial was 1 declared. The special circumstance and all special allegations were found true. Supp. CT 32-34. 2 On September 22, 2011, petitioner was sentenced to life without the possibility of parole 3 on Count One (special circumstances murder). Additional terms were imposed on Counts Two 4 and Three, and were stayed. Supp. CT 83-85. 5 II. Post-Conviction Proceedings 6 Petitioner timely appealed, and the California Court of Appeal affirmed the murder 7 conviction and life without parole sentence on January 12, 2015. Lodged Doc. 4.4 The California 8 Supreme Court denied review on April 15, 2015. Lodged Doc. 8. 9 Petitioner filed a petition for writ of habeas corpus in the California Supreme Court on 10 January 20, 2016. Lodged Doc. 7. The petition was denied on April 20, 2016, without comment 11 or citation. Lodged Doc. 6.5 12 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 13 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 14 1996 (“AEDPA”), provides in relevant part as follows: 15 (d) 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 16 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 17

18 4 The counts other than murder were found to have been brought after expiration of the 19 applicable statutes of limitations, and were therefore vacated. Lodged Doc. 4 at 37-38, 39. 5 There are two problems with the lodged state court record. First, Lodged Doc. 6, which is 20 identified by respondent as the California Supreme Court’s order denying the petition for review, actually contains case information documenting denial of the state habeas petition. Lodged Doc. 21 8, identified as the order denying the habeas petition, contains the information regarding the petition for review. Second, the undersigned generally requires the lodged state court record to 22 include a copy of the California Supreme Court’s order denying a habeas petition, and not just the 23 docket report showing denial. This is because the federal court’s review under 28 U.S.C. § 2254(d) must proceed on the basis of the state court’s actual decision. Although the Appellate 24 Courts Case Information system of the California Courts does generally indicate any procedural citation that may accompany a denial, or indicate when a written opinion has issued, it is this 25 court’s obligation to review the decision itself. Here, respondent has provided the docket report, 26 which indicates denial and does not indicate any comment or citation. Lodged Doc. 6. Because petitioner is represented by counsel, and independently represents that the denial was without 27 comment, ECF No. 1 at 4, the undersigned finds that the accuracy and completeness of the docket report is stipulated by the parties. Accordingly, in this instance the court will not require 28 respondent to supplement the lodged state court record with a copy of the April 20, 2016 order. 1 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 2 determined by the Supreme Court of the United States; or 3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 4 State court proceeding. 5 The statute applies whenever the state court has denied a federal claim on its merits, 6 whether or not the state court explained its reasons. Harrington v. Richter, 582 U.S. 86, 99 7 (2011). State court rejection of a federal claim will be presumed to have been on the merits 8 absent any indication or state-law procedural principles to the contrary. Id. (citing Harris v. Reed, 9 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a 10 decision appearing to rest on federal grounds was decided on another basis)). “The presumption 11 may be overcome when there is reason to think some other explanation for the state court's 12 decision is more likely.” Id. at 99-100. 13 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing legal 14 principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 538 15 U.S. 63, 71-72 (2003). Only Supreme Court precedent may constitute “clearly established 16 Federal law,” but courts may look to circuit law “to ascertain whether…the particular point in 17 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 18 (2013). 19 A state court decision is “contrary to” clearly established federal law if the decision 20 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Williams v. Taylor, 529 21 U.S. 362, 405 (2000). A state court decision “unreasonably applies” federal law “if the state 22 court identifies the correct rule from [the Supreme Court’s] cases but unreasonably applies it to 23 the facts of the particular state prisoner’s case.” Id. at 407-08. It is not enough that the state court 24 was incorrect in the view of the federal habeas court; the state court decision must be objectively 25 unreasonable. Wiggins v. Smith, 539 U.S. 510, 520-21 (2003). 26 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 27 Pinholster, 563 U.S. 170, 180-181 (2011). The question at this stage is whether the state court 28 reasonably applied clearly established federal law to the facts before it. Id. at 181-182. In other 1 words, the focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 182. 2 Where the state court’s adjudication is set forth in a reasoned opinion, §2254(d)(1) review is 3 confined to “the state court’s actual reasoning” and “actual analysis.” Frantz v. Hazey, 533 F.3d 4 724, 738 (9th Cir. 2008) (en banc). A different rule applies where the state court rejects claims 5 summarily, without a reasoned opinion. In Richter, supra, the Supreme Court held that when a 6 state court denies a claim on the merits but without a reasoned opinion, the federal habeas court 7 must determine what arguments or theories may have supported the state court’s decision, and 8 subject those arguments or theories to § 2254(d) scrutiny. Richter, 582 U.S. at 102. 9 DISCUSSION 10 I. Petitioner’s Allegations and Pertinent State Court Record 11 Petitioner presents a single claim for relief, alleging as follows: 12 Petitioner was denied effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution, for failure 13 of appointed appellate counsel to challenge the petitioner’s special circumstance liability for lack of evidence that, as an aider and 14 abettor to felony murder, she was a “major participant” in the murder. 15 The Eighth Amendment to the Constitution forbids death penalty eligibility for a defendant whose participation in criminal activities 16 known to carry a grave risk of death was not sufficiently significant to be considered “major” under controlling United States Supreme 17 Court authority. 18 As a matter of state statute, this standard is applicable to all allegations of a felony-murder special circumstance, regardless of 19 whether the state seeks the death penalty or life without parole. 20 The evidence at trial did not support the conclusion that petitioner knew that her own actions would involve a grave risk of death to the 21 victim. 22 The failure to raise this issue on appeal denied petitioner the right to effective assistance of counsel guaranteed by the Sixth Amendment. 23 24 ECF No. 1 at 4. 25 Petitioner’s Points and Authorities clarify the substance of her claim. Petitioner relies 26 heavily on the decision of the California Supreme Court in People v. Banks, 61 Cal.4th 788 27 (2015), which was issued shortly after her conviction became final. In Banks, as discussed more 28 fully below, the California Supreme Court held that a getaway driver who did not otherwise 1 participate in the underlying felony could not be liable for a mandatory LWOP sentence under 2 Cal. Penal Code § 190.2(d), because he could not be considered a “major participant” within the 3 meaning of the statute. Petitioner contends that Banks demonstrates the invalidity of the special 4 circumstance finding in her case. Petitioner also argues that Banks demonstrates that petitioner’s 5 LWOP sentence violates the Eighth Amendment principles established by the U.S. Supreme 6 Court in Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 (1987).6 7 Accordingly, she contends that appellate counsel was ineffective in failing to mount a Banks-type 8 challenge under the Eighth Amendment and Enmund, supra. ECF No. 1-1 at 15-16. 9 II. The Clearly Established Federal Law 10 A criminal defendant enjoys the right to effective assistance of counsel on appeal. Evitts 11 v. Lucey, 469 U.S. 387, 391 (1985). Claims that this right has been violated are evaluated under 12 the framework of Strickland v. Washington, 466 U.S. 668 (1984). Smith v. Robbins, 528 U.S. 13 259, 285 (2000). Under Strickland, the Sixth Amendment is violated when (1) counsel's 14 representation falls below an objective standard of reasonableness, and (2) the defendant is 15 prejudiced by the unreasonable performance. Strickland, 466 U.S. at 692, 694. To demonstrate 16 prejudice in the appellate context, petitioner must show a reasonable probability that she would 17 have prevailed on appeal absent counsel’s alleged errors. Smith, 528 U.S. at 285-286. 18 III. Pertinent California Law 19 A. Statutory Framework 20 In California, murder with special circumstances is punishable by a mandatory sentence of 21 life without parole (“LWOP”) if the death penalty is not sought. See Cal. Penal Code § 190.2(a). 22 One of the statutory special circumstances that renders a defendant death-eligible and/or subject 23 to mandatory LWOP is specific to the felony-murder context: § 190.2(a)(17) establishes a special 24 circumstance for murder “committed while the defendant was engaged in, or was an accomplice 25

26 6 Petitioner has not directly presented a free-standing claim for relief on Eighth Amendment grounds, although her briefing sometimes reads as if she had. See n. 9, infra. Likewise, 27 petitioner extensively argues the insufficiency of the evidence, but has not presented a claim for relief under Jackson v. Virginia, 433 U.S. 307 (1974), nor argued unreasonable application of 28 Jackson by the California Supreme Court. 1 in, the commission of, attempted commission of, or the immediate flight after committing, or 2 attempting to commit” enumerated felonies including robbery and first-degree burglary. Cal. 3 Penal Code § 190.2(a)(17)(A)&(G). 4 The application of this special circumstance to aiders and abettors is governed by § 5 190.2(d), which provides as follows: 6 [E]very every person, not the actual killer, who, with reckless indifference to human life and as a major participant, aids, abets, 7 counsels, commands, induces, solicits, requests, or assists in the commission of a felony enumerated in paragraph (17) of subdivision 8 (a) which results in the death of some person or persons, and who is found guilty of murder in the first degree therefor, shall be punished 9 by death or imprisonment in the state prison for life without the possibility of parole if a special circumstance enumerated in 10 paragraph (17) of subdivision (a) has been found to be true under Section 190.4. 11 12 Cal. Penal Code § 190.2(d). 13 B. People v. Banks, 61 Cal.4th 788 (2015) 14 In Banks, the California Supreme Court considered the circumstances under which an 15 accomplice who lacks the intent to kill may qualify as a “major participant” so as to be statutorily 16 eligible for the death penalty or subject to mandatory LWOP.7 The defendant in Banks had been 17 the getaway driver for an armed robbery; that was his sole role in the underlying felony. He was 18 found guilty of felony murder, and the jury also found the felony-murder aider and abettor special 19 circumstance to be true. The California Supreme Court held that the evidence did not support 20 liability under § 190.2(d), because being the getaway driver was not enough to be a “major 21 participant” in the underlying felony as required by the statute. 22 Banks was a case about statutory construction and sufficiency of the evidence. On the 23 statutory issue, the court held that the phrase “major participant” in § 190.2(d) has the same 24 meaning that it does in the U.S. Supreme Court’s cases about the death-eligibility of felony- 25 murder accomplices, Enmund v. Florida, 458 U.S. 782 (1982) and Tison v. Arizona, 481 U.S. 137 26 (1987). See Banks, 61 Cal.4th at 798 (noting that text of § 190.2(d) mirrored the holding, and 27 7 Banks was decided on July 9, 2015, approximately three months after the California Supreme 28 Court denied review of petitioner’s conviction. 1 was intended to bring state law into conformity with, Tison). The court announced, “[a]s a matter 2 of state statute. . . the Tison-Enmund standard is ‘applicable to all allegations of a felony-murder 3 special circumstance, regardless of whether the People seek and exact the death penalty of a 4 sentence of life without parole.’” Banks, 61 Cal.4th at 805 (citation omitted). That standard 5 requires a degree of personal involvement and culpability greater than that required for aider and 6 abettor liability simpliciter. Id. at 801-802. The court identified several factors that “may play a 7 role in determining whether a defendant’s culpability is sufficient” to make her eligible for the 8 death penalty or mandatory LWOP, but emphasized that none of these were necessary or 9 necessarily sufficient. Id. at 803. The ultimate question, to be determined on the totality of the 10 evidence, is whether the defendant’s participation in criminal activities known to carry a grave 11 risk of death was sufficiently significant to be considered major. Id. 12 On the facts before it, the Banks court found insufficient evidence to support a major 13 participant finding. The court looked to the facts of Enmund and Tison as creating a “spectrum” 14 of accomplice participation, and found that Banks was indistinguishable from the getaway driver 15 in Enmund, who the U.S. Supreme Court was not a “major participant” in the underlying felony 16 and thus was ineligible for the death penalty. Id. at 805. 17 IV. The State Court’s Ruling on Petitioner’s Claim 18 The California Supreme Court denied petitioner’s ineffective assistance of appellate 19 counsel claim in state habeas, without comment or citation. Lodged Doc. 6.8 20 V. Objective Reasonableness Under § 2254(d) 21 Because the state court rejected petitioner’s claim of deficient appellate representation by 22 unexplained “postcard denial,” this court’s review of that decision proceeds according to Richter, 23 582 U.S. at 102. The bottom line is whether denial of the claim was objectively unreasonable in 24 light of the clearly established federal law. Id. Denial of an ineffective assistance of counsel 25 claim cannot be unreasonable where a petitioner has failed to establish prejudice. See Strickland, 26 466 U.S. at 697 (relief may be denied for lack of prejudice without addressing the performance 27

28 8 See supra, n. 5. 1 prong of the ineffective assistance analysis). 2 Prejudice in this context turns on the merit of the issue that appellate counsel failed to 3 pursue. Smith, 528 U.S. at 285-286. Petitioner’s federal claim thus rests entirely on the strength 4 of her incorporated state law argument that she is not eligible for LWOP under Cal. Penal Code § 5 190.2(d) because the evidence does not support a finding that she was a “major participant” as 6 that term was clarified by the California Supreme Court in Banks.9 Assuming arguendo that 7 counsel performed deficiently in failing to raise this issue on appeal, the question becomes the 8 likely outcome under California law at the time of petitioner’s appeal.10 If there is a reasonable 9 likelihood that petitioner would have prevailed and obtained a more favorable sentence, then 10 prejudice is established. See Smith, 528 U.S. at 285-286. 11 Petitioner cannot demonstrate prejudice here, for a very simple reason: the California 12 Supreme Court has itself considered and rejected her §190.2(d) claim. Petitioner’s state habeas 13 petition squarely presented the claim that the evidence at trial was insufficient to support the 14 special circumstance finding in light of Banks. See Lodged Doc. 7, Table of Contents.11 In state 15 habeas, the ineffective assistance of appellate counsel claim was presented as a subclaim and 16 alternative theory for relief; the primary ground for relief presented to the California Supreme 17 Court was that “petitioner was not a ‘major participant’ in the murder and must not be subjected

18 9 Petitioner’s briefing repeatedly conflates this issue with the distinct substantive question 19 whether petitioner’s LWOP sentence violates the Eighth Amendment under the Enmund-Tison rule. See, e.g., ECF No. 1-1 at 1. Petitioner has not presented a free-standing Eighth Amendment 20 claim here. If she had, relief would be barred by 28 U.S.C. § 2254(d), because the U.S. Supreme Court has never applied this rule to a non-capital sentence. In the absence of governing U.S. 21 Supreme Court precedent, a habeas petitioner cannot prevail under AEDPA standards. Wright v. van Patten, 552 U.S. 120, 126 (2008). Banks obviously does not count as “clearly established 22 federal law” for AEDPA purposes, and moreover was decided not as a matter of Eight 23 Amendment requirements but as a matter of state statutory interpretation. 10 The undersigned will proceed as if petitioner would have been entitled to the benefit of Banks. 24 That decision did not overrule any prior precedent of the California Supreme Court that would have required a different result; rather it clarified the meaning of the statute that was in place at 25 the time of petitioner trial. 26 11 The copy of the state habeas petition provided by respondent, Lodged Doc. 7, is partial—it jumps from page 19 of the Points and Authorities into exhibits, mid-argument, entirely omitting 27 the sections at pages 19-25 that address the sufficiency of the evidence to support aider and abettor liability under Cal. Penal Code § 190.2(d). The petition’s Table of Contents, however, is 28 sufficient to establish that the issue was presented. 1 to special circumstances liability.” Id. (capitalization altered). That claim was summarily denied 2 on the merits. Lodged Doc. 6; see Harris, 489 U.S. at 265. The California Supreme Court has 3 thus determined, as a matter of California law, that there is no merit to the claim that petitioner’s 4 conviction for special circumstances felony-murder lacks sufficient evidence in light of Banks or 5 otherwise. That ruling is binding on this court. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) 6 (federal habeas court is bound by state court’s interpretation of state law). There is, therefore, no 7 possibility that the claim would have succeeded if appellate counsel had raised it on direct review. 8 Accordingly, petitioner cannot satisfy the prejudice prong of Strickland, and the state court’s 9 summary denial of the appellate ineffectiveness claim cannot have been objectively unreasonable. 10 Petitioner briefs the application to her case of the specific factors recognized in Banks as 11 potentially relevant to the major participant inquiry. This court need not undertake such detailed 12 analysis. It is enough that petitioner’s involvement in the robbery and culpability for the victim’s 13 death exceeded the involvement of the Enmund and Banks accomplices. Petitioner was not 14 merely a getaway driver. She was the one who got inside the victim’s home on false pretenses, 15 by advance design, for the purpose of facilitating a robbery. She was present when Hammons 16 repeatedly hit Skinner in the head with the Club, and there was testimony that she stood over 17 Skinner afterwards prepared to choke him with speaker wire if necessary to prevent him from 18 getting up. This is simply not an Enmund or Banks scenario. Even if the California Supreme 19 Court had not rejected petitioner’s Banks claim, the undersigned would readily conclude that such 20 a claim would have likely failed had appellate counsel raised it. 21 Petitioner also contends that appellate counsel should have argued the evidence was 22 insufficient to establish that petitioner exhibited “reckless indifference to human life,” a 23 requirement recognized in Banks as independent of the “major participant” requirement and also 24 necessary to a non-capital special circumstances finding under § 190.2(d).12 This contention is 25

26 12 The jury in this case was instructed pursuant to CALCRIM 703 that the special circumstance applicable to petitioner, as a felony-murder accomplice who was not the actual killer, required 27 findings of both major participation and of reckless indifference to human life. CT 331. This distinguishes petitioner’s case from Cody v. Gower, 2016 U.S. Dist. LEXIS 70087, *78-79 (C.D. 28 Cal., Mar. 22, 2016), which petitioner cites in the traverse. See ECF No. 11 at 4. WAS EWN □□□ BO POI Ie AY te I te

1 || also defeated by the testimony that petitioner stood over the victim after he had sustained multiple 2 || blows to the head with a Club, with speaker wire wrapped around her hand, and approached as if 3 || prepared to choke him when he stirred. 2 RT 423-424. Although petitioner did not actually use 4 | the speaker wire as a garotte, this evidence reasonably supports an inference of willingness to use 5 || force against a person who was already grievously injured, which would establish reckless 6 || indifference to human life. In light of this evidence, there is no reasonable likelihood that a 7 | challenge to the evidence of reckless indifference would have succeeded on appeal. 8 Because petitioner cannot establish prejudice from the alleged errors of appellate counsel, 9 | the state court cannot have unreasonably applied Strickland. Federal habeas relief accordingly is 10 | unavailable. 11 CONCLUSION 12 For all the reasons explained above, the state court’s denial of petitioner’s claim was not 13 || objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Relief is therefore 14 | statutorily barred. Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of 15 || habeas corpus be denied. 16 These findings and recommendations are submitted to the United States District Judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. §636(b)(). Within twenty-one days 18 || after being served with these findings and recommendations, any party may file written 19 || objections with the court and serve a copy on all parties. Such a document should be captioned 20 | “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections, 21 || he shall also address whether a certificate of appealability should issue and, if so, why and as to 22 || which issues. See 28 U.S.C. § 2253(c)(2). Any reply to the objections shall be served and filed 23 || within fourteen days after service of the objections. The parties are advised that failure to file 24 | objections within the specified time may waive the right to appeal the District Court’s order. 25 | Martinez v. Ylist, 951 F.2d 1153 (9th Cir. 1991). 26 | DATED: July 8, 2020 □ HMtL0n— Llor—e_ 27 ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE 12