(HC) Ortiz v. Gastelo

• Court: District Court, E.D. California
• Decided: May 21, 2021
• Docket: 1:21-cv-00198
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 AMADO RAMIREZ ORTIZ, Case No. 1:21-cv-00198-AWI-EPG-HC

10 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF PETITION 11 v. FOR WRIT OF HABEAS CORPUS

12 JOSIE GASTELO, ORDER DENYING PETITIONER’S REQUEST FOR APPOINTMENT OF 13 Respondent. COUNSEL

14 (ECF No. 16)

15 16 Petitioner Amado Ramirez Ortiz is a state prisoner proceeding pro se with a petition for 17 writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the petition, Petitioner asserts that trial 18 and appellate counsel were ineffective, the evidence was insufficient to sustain the verdict, and 19 Petitioner was unlawfully sentenced to an aggravated prison term. For the reasons discussed 20 herein, the undersigned recommends denial of the petition for writ of habeas corpus. 21 I. 22 BACKGROUND 23 On April 24, 2019, Petitioner was convicted by a jury in the Madera County Superior 24 Court of three counts of second-degree robbery (counts 1, 2, and 4), one count of attempted 25 second-degree robbery (count 3), and one count of possession of a controlled substance (count 26 5). The jury found true various special allegations regarding Petitioner’s use of a firearm during 27 the commission of the offenses. (1 CT1 247–60, 271). Petitioner was sentenced to an aggregate 1 imprisonment term of thirty-seven years and eight months, calculated as follows:

2 • on count 4, robbery, the principal term: the upper term of five years, enhanced by 20 years for the firearm use allegation; 3 • on each of counts 1 and 2, robbery, consecutive terms of one 4 year (one third the three-year middle term), plus three years and four months for the firearm use enhancement (one-third of 5 10 years); and

6 • on count 3, attempted robbery, a consecutive term of eight months, enhanced by three years and four months for the 7 firearm use allegation. 8 People v. Ortiz, No. F079490, 2020 WL 634411, at *1 (Cal. Ct. App. Feb. 11, 2020). (See also 1 9 CT 271; 3 RT2 606–09). 10 On February 11, 2020, the California Court of Appeal, Fifth Appellate District affirmed 11 the judgment. Ortiz, 2020 WL 634411, at *3. On April 22, 2020, the California Supreme Court 12 denied the petition for review. (LD3 11). 13 On February 3, 2021, Petitioner filed the instant federal habeas petition in the United 14 States District Court for the Central District of California (ECF No. 1). On February 16, 2021, 15 the petition was transferred to this Court. (ECF No. 3). In the petition, Petitioner raises the 16 following claims for relief: (1) ineffective assistance of appellate counsel; (2) ineffective 17 assistance of trial counsel; (3) sufficiency of the evidence; and (4) violation of the Sixth 18 Amendment with respect to Petitioner’s aggravated prison term. (ECF No. 1). Respondent filed 19 an answer, and Petitioner filed a traverse. (ECF Nos. 14, 15). 20 II. 21 STATEMENT OF FACTS4

22 Prosecution Case

23 1. Count 1

24 On August 26, 2017, at approximately 11:00 a.m., J.S. was inside her truck on D Street in Madera when Ortiz approached her. He asked if she could jump start his 25 car, which was parked around the corner. J.S. agreed and Ortiz entered her vehicle. 26 2 “RT” refers to the Reporter’s Transcript on Appeal lodged by Respondent on April 4, 2021. (ECF No. 13). 27 3 “LD” refers to the documents lodged by Respondent on April 4, 2021. (ECF No. 13). 4 The Court relies on the California Court of Appeal’s February 11, 2020 opinion for this summary of the facts of 1 When J.S. did not see Ortiz’s vehicle after two turns, she told him to get out of the 2 car. Ortiz responded by lifting his shirt and showing her a gun in his waistband. He told her she would go wherever he told her to go. 3 Scared, J.S. tried to get out of her car. Ortiz grabbed her arm and told her he 4 would kill her if she moved. He removed the semiautomatic gun from his waistband and demanded money. J.S. gave him her wallet containing “maybe 5 $86”; Ortiz grabbed the wallet and exited the truck. He again told J.S. not to move. 6 Within a half an hour, J.S. drove to the police station and reported the incident. 7 About a month later, J.S. selected Ortiz’s picture from a photographic array and identified him as the person who entered her truck and pointed the gun at her. 8 2. Count 2 9 On August 27, 2017, between 2:40 p.m. and 3:20 p.m., V.S. was working alone at 10 a cellular phone store in Madera when a male with a bandana covering his face entered the store, pointed a long, gray gun at her, and demanded all the money in 11 the cash register. V.S. gave the man the $100 to $104 in the cash register. The man took the money, told V.S. not to call the police, and walked out of the store. 12 Shortly after the man left, a gray car sped away from the front of the store. V.S. did not see the man enter the car. She called the police. 13 The incident was captured on the store’s surveillance video system. 14 3. Count 3 15 On August 28, 2017, at approximately 5:00 p.m., a man wearing a “sweater [with] 16 a hat” and black eyeglasses entered a market in Madera, pointed a long-nosed gun at the clerk, T.A., and demanded money. The man spoke English, which is not 17 T.A.’s native language. T.A. raised his hands in the air.

18 The man left the store without any money. He entered a brownish colored Nissan occupied by other people and the vehicle drove away. 19 The store’s surveillance system recorded the incident. 20 4. Count 4 21 On September 7, 2017, at approximately 9:26 a.m., a blue Nissan Altima drove up 22 to the front of a different market in Madera and two masked men exited the vehicle and entered the market. One of the men pointed a gun at the owner, M.M., 23 and demanded all the money in the register. When M.M. put his hands up, he grazed his hand with the gun. It was not loaded. As soon as the gunman racked a 24 round, M.M. opened the register and gave the gunman the contents, between $1,800 and $2,000. The gunman demanded more money and M.M. said he did not 25 have any more. The gunman said he would kill M.M. if he did not give him more money. M.M. told the man to go ahead and shoot him. The gunman fired. The 26 bullet went into the wall.

27 The incident, which lasted 20 to 30 seconds, was captured on the store’s surveillance camera system. 1 Police found a 9-millimeter shell casing on the floor by the cash register and a bullet hole in the wall behind the casing. Although only a fragment of a bullet was 2 recovered, the bullet strike was consistent with a 9-millimeter bullet.

3 A few weeks later, M.M. identified Ortiz as the gunman by selecting his picture out of a photographic array. 4 5. Count 5 5 Ortiz was arrested on November 8, 2017, following a vehicle stop. Inside the car’s 6 ashtray was .712 grams of methamphetamine, a usable quantity.

7 6. Police Investigation

8 After the first two robberies, the Madera Police Department posted portions of the surveillance videos on the department’s Facebook page, asking for the public’s 9 assistance in identifying the robbers. On September 13, 2017, an anonymous caller provided a location of the possible suspects. That location, on Bilbao Court, 10 was near all the robberies, which occurred within a two mile radius of each other.

11 During the ensuing surveillance at Bilbao Court, Detective Hector Garibay made contact with R.I. R.I. said Ortiz was the person depicted in the video stills from 12 the first market and the cellular store. R.I. also identified Ortiz’s vehicle as a gray or silver Nissan Altima. R.I. said Ortiz and his brother stayed on R.I.’s property, 13 living in the Nissan. They entered his house occasionally to use the facilities.

14 However, at trial, R.I. recalled talking to police and seeing some pictures, but did not recall having identified Ortiz in any of the pictures, or identifying Ortiz’s 15 vehicle, or explaining Ortiz’s living arrangements. R.I.’s failure of recollection was impeached by Detective Garibay’s testimony regarding his prior statements. 16 The long-barreled handgun used in the robberies of the first market and the 17 cellular store was not the same gun as used in the robbery of the second market.

18 Defense Case

19 Testifying on his own behalf, Ortiz denied having committed any of the robberies. He admitted having been in the second market and having seen M.M.; he had 20 been there over 50 times because he drove his wife there to cash her checks. He also had been at the first market on various occasions. 21 Ortiz denied owning a Nissan Altima. Although he was stopped in 2012 while 22 driving a Nissan Altima, the car belonged to his cousin. He previously owned a 2006 Chevy Colorado. About a month before his arrest he bought a BMW Z4. At 23 the time of the robberies, he lived in the house on Bilbao Court with his wife. He had a rental agreement to live there. 24 Ortiz denied owning any firearms in the United States. On cross-examination, he 25 admitted that his mother had a .22-caliber handgun in Mexico.

26 On cross-examination, Ortiz denied that he was depicted in any video stills from the second market. Ortiz said the person in the video with the gun looked like his 27 brother. He also denied he was the person in the first market’s video surveillance. Ortiz, 2020 WL 634411, at *1–3. 1 III. 2 STANDARD OF REVIEW 3 Relief by way of a petition for writ of habeas corpus extends to a person in custody 4 pursuant to the judgment of a state court if the custody is in violation of the Constitution or laws 5 or treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 6 529 U.S. 362, 375 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed 7 by the United States Constitution. The challenged convictions arise out of the Madera County 8 Superior Court, which is located within the Eastern District of California. 28 U.S.C. § 2254(a); 9 28 U.S.C. § 2241(d). 10 On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act 11 of 1996 (“AEDPA”), which applies to all petitions for writ of habeas corpus filed after its 12 enactment. Lindh v. Murphy, 521 U.S. 320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 (9th 13 Cir. 1997) (en banc). The instant petition was filed after the enactment of AEDPA and is 14 therefore governed by its provisions. 15 Under AEDPA, relitigation of any claim adjudicated on the merits in state court is barred 16 unless a petitioner can show that the state court’s adjudication of his claim: 17 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 18 determined by the Supreme Court of the United States; or

19 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the 20 State court proceeding. 21 28 U.S.C. § 2254(d); Davis v. Ayala, 576 U.S. 257, 268–69 (2015); Harrington v. Richter, 562 22 U.S. 86, 97–98 (2011); Williams, 529 U.S. at 413. Thus, if a petitioner’s claim has been 23 “adjudicated on the merits” in state court, “AEDPA’s highly deferential standards” apply. Ayala, 24 576 U.S. at 269. However, if the state court did not reach the merits of the claim, the claim is 25 reviewed de novo. Cone v. Bell, 556 U.S. 449, 472 (2009). 26 In ascertaining what is “clearly established Federal law,” this Court must look to the 27 “holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time of the 1 decision must “‘squarely address[] the issue in th[e] case’ or establish a legal principle that 2 ‘clearly extend[s]’ to a new context to the extent required by the Supreme Court in . . . recent 3 decisions”; otherwise, there is no clearly established Federal law for purposes of review under 4 AEDPA and the Court must defer to the state court’s decision. Moses v. Payne, 555 F.3d 742, 5 754 (9th Cir. 2008) (alterations in original) (quoting Wright v. Van Patten, 552 U.S. 120, 125, 6 123 (2008)). 7 If the Court determines there is clearly established Federal law governing the issue, the 8 Court then must consider whether the state court’s decision was “contrary to, or involved an 9 unreasonable application of, [the] clearly established Federal law.” 28 U.S.C. § 2254(d)(1). A 10 state court decision is “contrary to” clearly established Supreme Court precedent if it “arrives at 11 a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state 12 court decides a case differently than [the Supreme Court] has on a set of materially 13 indistinguishable facts.” Williams, 529 U.S. at 413. A state court decision involves “an 14 unreasonable application of[] clearly established Federal law” if “there is no possibility 15 fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme 16 Court’s] precedents.” Richter, 562 U.S. at 102. That is, a petitioner “must show that the state 17 court’s ruling on the claim being presented in federal court was so lacking in justification that 18 there was an error well understood and comprehended in existing law beyond any possibility for 19 fairminded disagreement.” Id. at 103. 20 If the Court determines that the state court decision was “contrary to, or involved an 21 unreasonable application of, clearly established Federal law,” and the error is not structural, 22 habeas relief is nonetheless unavailable unless it is established that the error “had substantial and 23 injurious effect or influence” on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) 24 (internal quotation mark omitted) (quoting Kotteakos v. United States, 328 U.S. 750, 776 25 (1946)). 26 AEDPA requires considerable deference to the state courts. Generally, federal courts 27 “look through” unexplained decisions and review “the last related state-court decision that does 1 adopted the same reasoning.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018). This presumption 2 may be rebutted “by showing that the unexplained affirmance relied or most likely did rely on 3 different grounds than the lower state court’s decision, such as alternative grounds for affirmance 4 that were briefed or argued to the state supreme court or obvious in the record it reviewed.” Id. 5 “When a federal claim has been presented to a state court[,] the state court has denied 6 relief,” and there is no reasoned lower-court opinion to look through to, “it may be presumed that 7 the state court adjudicated the claim on the merits in the absence of any indication or state-law 8 procedural principles to the contrary.” Richter, 562 U.S. at 99. Where the state court reaches a 9 decision on the merits and there is no reasoned lower-court opinion, a federal court 10 independently reviews the record to determine whether habeas corpus relief is available under 11 § 2254(d). Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013). “Independent review of the 12 record is not de novo review of the constitutional issue, but rather, the only method by which we 13 can determine whether a silent state court decision is objectively unreasonable.” Himes v. 14 Thompson, 336 F.3d 848, 853 (9th Cir. 2003). The federal court must review the state court 15 record and “must determine what arguments or theories . . . could have supported, the state 16 court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that 17 those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] 18 Court.” Richter, 562 U.S. at 102. 19 IV. 20 DISCUSSION 21 A. Request for Appointment of Counsel 22 At the same time Petitioner submitted his traverse on May 3, 2021, Petitioner also filed a 23 request for appointment counsel. (ECF No. 16). There currently exists no absolute right to 24 appointment of counsel in habeas proceedings. See, e.g., Chaney v. Lewis, 801 F.2d 1191, 1196 25 (9th Cir. 1986); Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958). However, 18 U.S.C. 26 § 3006A(a)(2)(B) authorizes the appointment of counsel at any stage of the proceeding for 27 financially eligible persons if “the interests of justice so require.” See Rule 8(c), Rules 1 evaluate the likelihood of success on the merits as well as the ability of the petitioner to articulate 2 his claims pro se in light of the complexity of the legal issues involved.” Weygandt v. Look, 718 3 F.2d 952, 954 (9th Cir. 1983). 4 In the request, Petitioner states that “an Evidentiary Hearing and the effective utilization 5 of discovery is required to prove his Constitutional claims of a fundamental miscarriage of 6 justice. As such, appointment of Counsel is warranted.” (ECF No. 16 at 2). 5 Upon review of 7 Petitioner’s submissions in this case, the Court finds that Petitioner appears to have a sufficient 8 grasp of his claims and the legal issues involved and that he is able to articulate those claims 9 adequately. The legal issues involved are not extremely complex, and for the reasons set forth 10 infra, an evidentiary hearing is not warranted and Petitioner does not demonstrate a likelihood of 11 success on the merits such that the interests of justice require the appointment of counsel. 12 Accordingly, Petitioner’s request for appointment of counsel is denied. 13 B. Sufficiency of the Evidence 14 In his third claim for relief, Petitioner asserts that there was insufficient evidence to 15 sustain the verdict. (ECF No. 1 at 8). Specifically, Petitioner argues that he “can prove that the 16 identification of the Petitioner by the eyewitnesses was procured under unnecessarily suggestive 17 circumstances arranged by Law Enforcement,” and thus, “it is clear the Judgment of Conviction 18 for all Counts was not supported by substantial evidence that ‘reasonably inspired confidence’ 19 and was of ‘solid value.’” (Id. at 33, 34 (citation omitted)). Respondent argues that it was not 20 objectively unreasonable for the state court to find a chain of logic connecting the evidence to a 21 finding of identity. (ECF No. 14 at 8). 22 On appeal, Petitioner’s appointed counsel filed a brief pursuant to People v. Wende, 25 23 Cal. 3d 436 (1979), raising no issues and requesting that the California Court of Appeal 24 independently review the entire record on appeal. (LD 7). In affirming the judgment, the 25 California Court of Appeal stated:

26 Ortiz’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this 27 court to review the record independently. (People v. Wende (1979) 1 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating [Petitioner] was advised he could file 2 his own brief with this court. By letter on October 4, 2019, we invited [Petitioner] to submit additional briefing. To date, he has 3 not done so.

4 After independently reviewing the entire record, we have concluded there are no reasonably arguable legal or factual issues. 5 6 Ortiz, 2020 WL 634411, at *3. 7 Thereafter, Petitioner raised his sufficiency of the evidence claim in his petition for 8 review in the California Supreme Court, which summarily denied the petition for review. The 9 Court presumes that the state court adjudicated the claim on the merits. See Richter, 562 U.S. at 10 99 (“When a federal claim has been presented to a state court and the state court has denied relief 11 it may be presumed that the state court adjudicated the claim on the merits in the absence of any 12 indication or state-law procedural principles to the contrary.”). Accordingly, AEDPA’s 13 deferential standard of review applies, and as there is no reasoned state court decision on this 14 claim, the Court “must determine what arguments or theories . . . could have supported, the state 15 court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that 16 those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] 17 Court.” Id. at 102. 18 1. Unduly Suggestive Identification Procedure 19 “[C]onvictions based on eyewitness identification at trial following a pretrial 20 identification by photograph will be set aside on that ground only if the photographic 21 identification procedure was so impermissibly suggestive as to give rise to a very substantial 22 likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 23 (1968). “[D]ue process concerns arise only when law enforcement officers use an identification 24 procedure that is both suggestive and unnecessary.” Perry v. New Hampshire, 565 U.S. 228, 25 238–39 (2012) (citing Manson v. Brathwaite, 432 U.S. 98, 112 (1977); Neil v. Biggers, 409 U.S. 26 188, 198 (1972)). Whether due process was violated by the identification procedure must be 27 determined “on the totality of the circumstances,” Stovall v. Denno, 388 U.S. 293, 302 (1967), and “courts [must] assess, on a case-by-case basis, whether improper police conduct created a 1 ‘substantial likelihood of misidentification,’” Perry, 565 U.S. at 239 (quoting Biggers, 409 U.S. 2 at 201). 3 Although Petitioner contends that he “can prove that the identification of the Petitioner 4 by the eyewitnesses was procured under unnecessarily suggestive circumstances arranged by 5 Law Enforcement,” (ECF No. 1 at 33), Petitioner does not provide any factual allegations6 and 6 nothing in the record indicates that the identification procedures were unduly suggestive. (See 1 7 RT 78, 157–58). For example, on cross-examination, J.S. denied that law enforcement “point[ed] 8 . . . or suggest[ed] . . . a person that they identified,” testifying that “not at any time did they 9 point it out to none of them. And once I saw his face I was able to recognize him.” (1 RT 78). 10 2. Sufficiency of the Evidence 11 The Supreme Court has held that when reviewing a sufficiency of the evidence claim, a 12 court must determine whether, viewing the evidence and the inferences to be drawn from it in the 13 light most favorable to the prosecution, any rational trier of fact could find the essential elements 14 of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). A 15 reviewing court “faced with a record of historical facts that supports conflicting inferences must 16 presume—even if it does not affirmatively appear in the record—that the trier of fact resolved 17 any such conflicts in favor of the prosecution, and must defer to that resolution.” Id. at 326. State 18 law provides “for ‘the substantive elements of the criminal offense,’ but the minimum amount of 19 evidence that the Due Process Clause requires to prove the offense is purely a matter of federal 20 law.” Coleman v. Johnson, 566 U.S. 650, 655 (2012) (quoting Jackson, 443 U.S. at 319). 21 Jackson “makes clear that it is the responsibility of the jury—not the court—to decide 22 what conclusions should be drawn from evidence admitted at trial. A reviewing court may set 23 aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact 24 could have agreed with the jury.” Cavazos v. Smith, 565 U.S. 1, 2 (2011). Moreover, when 25 AEDPA applies, “a federal court may not overturn a state court decision rejecting a sufficiency 26

27 6 The Court also notes that the petition for review filed in the California Supreme Court is nearly identical to the federal petition filed in the instant proceeding and is similarly void of factual allegations to support Petitioner’s 1 of the evidence challenge simply because the federal court disagrees with the state court. The 2 federal court instead may do so only if the state court decision was ‘objectively unreasonable.’” 3 Cavazos, 565 U.S. at 2. 4 In light of the verdict, the jury necessarily found J.S. and M.M.’s testimony and their 5 identifications of Petitioner to be credible and R.I.’s failure to recall his pretrial identifications of 6 Petitioner in the pictures shown by the police and of Petitioner’s vehicle as a silver or gray 7 Nissan Altima to be not credible. “[U]nder Jackson, the assessment of credibility of witnesses is 8 generally beyond the scope of review.” Schlup v. Delo, 513 U.S. 298, 330 (1995). See also 9 Bruce v. Terhune, 376 F.3d 950, 957 (9th Cir. 2004) (“A jury’s credibility determinations are 10 therefore entitled to near-total deference under Jackson.”). Therefore, viewing the record in the 11 light most favorable to the prosecution, a rational trier of fact could have found true beyond a 12 reasonable doubt that Petitioner committed the offenses. 13 “[A]fter AEDPA, we apply the standards of Jackson with an additional layer of deference 14 to state court findings.” Ngo v. Giurbino, 651 F.3d 1112, 1115 (9th Cir. 2011) (internal quotation 15 marks and citation omitted). Under this doubly deferential standard of review, the state court’s 16 denial of Petitioner’s sufficiency of the evidence claim based on the alleged unreliability of the 17 witnesses’ identification of Petitioner as the perpetrator was not contrary to, or an unreasonable 18 application of, clearly established federal law, nor was it based on an unreasonable determination 19 of fact. The decision was not “so lacking in justification that there was an error well understood 20 and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 21 562 U.S. at 103. See Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011) (“[W]hen we assess a 22 sufficiency of evidence challenge in the case of a state prisoner seeking federal habeas corpus 23 relief subject to the strictures of AEDPA, there is a double dose of deference that can rarely be 24 surmounted.”). Accordingly, Petitioner is not entitled to habeas relief on his third claim, and it 25 should be denied. 26 C. Sentencing Error 27 In his fourth claim for relief, Petitioner asserts that the trial court “erred in sentencing 1 20 years respectively.” (ECF No. 1 at 34). Petitioner appears to argue that his sentence on count 2 4 violates the Sixth Amendment because it was based on judicial fact finding. (ECF No. 1 at 37). 3 As noted in section IV(B), supra, Petitioner’s appointed counsel filed a Wende brief on 4 appeal. In affirming the judgment, the California Court of Appeal stated that “[a]fter 5 independently reviewing the entire record, we have concluded there are no reasonably arguable 6 legal or factual issues.” Ortiz, 2020 WL 634411, at *3. Thereafter, Petitioner raised his 7 sentencing error claim in his petition for review in the California Supreme Court, which 8 summarily denied the petition for review. The Court presumes that the state court adjudicated the 9 claim on the merits. See Richter, 562 U.S. at 99. Accordingly, AEDPA’s deferential standard of 10 review applies, and as there is no reasoned state court decision on this claim, the Court “must 11 determine what arguments or theories . . . could have supported, the state court’s decision; and 12 then it must ask whether it is possible fairminded jurists could disagree that those arguments or 13 theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102. 14 In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held: “Other than 15 the fact of a prior conviction, any fact that increases the penalty for a crime beyond the 16 prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable 17 doubt.” Id. at 490. “[T]he ‘statutory maximum’ for Apprendi purposes is the maximum sentence 18 a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the 19 defendant.” Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis in original). “When a 20 judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all 21 the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper 22 authority.” Id. at 304 (citation omitted). However, “when a trial judge exercises his discretion to 23 select a specific sentence within a defined range, the defendant has no right to a jury 24 determination of the facts that the judge deems relevant.” United States v. Booker, 543 U.S. 220, 25 233 (2005). 26 In Cunningham v. California, 549 U.S. 270 (2007), the Supreme Court found that 27 California then-existing determinate sentencing law did not satisfy the requirements described in 1 Apprendi, Blakely, and Booker, and violated the Sixth Amendment.7 “California responded to 2 Cunningham by passing SB 40, which amended California Penal Code sections 1170 and 3 1170.3,” but “retained the three-option scheme.” Creech v. Frauenheim, 800 F.3d 1005, 1016 4 (9th Cir. 2015). “[T]he choice of the appropriate term would rest within the sound discretion of 5 the court,” and the “amended statute instructs sentencing judges to select the term which, in the 6 court’s discretion, best serves the interests of justice, and to state the reasons for its sentence 7 choice on the record at the time of sentencing.” Creech, 800 F.3d at 1015 (internal quotation 8 marks and citations omitted). “In selecting one of the three terms, the sentencing judge may 9 consider circumstances in aggravation or mitigation, and any other factor reasonably related to 10 the sentencing decision.” Creech, 800 F.3d at 1015 (internal quotation marks and citations 11 omitted). 12 In Creech v. Frauenheim, the Ninth Circuit held that a “state court’s determination that 13 California’s post-Cunningham revision did not violate [the petitioner]’s Sixth Amendment right 14 to a jury trial was neither contrary to nor an unreasonable application of Cunningham, Booker, 15 Blakely, and Apprendi.” 800 F.3d at 1017. Similarly, here, the state court’s denial of Petitioner’s 16 Sixth Amendment claim regarding the post-Cunningham imposition of the aggravated term of 17 five years on count 4 was not contrary to, or an unreasonable application of, clearly established 18 federal law. 19 Petitioner also challenges the imposition of the twenty-year term for the firearm special 20 allegation on count 4. This twenty-year term was imposed pursuant to California Penal Code 21 section 12022.53, which provides in pertinent part: “Notwithstanding any other provision of law, 22 any person who, in the commission of a felony specified in subdivision (a), personally and 23 intentionally discharges a firearm, shall be punished by an additional and consecutive term of 24 imprisonment in the state prison for 20 years.” Cal. Penal Code § 12022.53(c). 25 7 “Under California’s pre-Cunningham determinate sentencing system, the Penal Code prescribed lower, middle, 26 and upper term sentences for most crimes. . . . [and] required a court to impose the middle term unless there were aggravating or mitigating circumstances, which the court would determine based on consideration of enumerated 27 factors.” Creech v. Frauenheim, 800 F.3d 1005, 1015 (9th Cir. 2015). Aggravating circumstances were “facts which justify the imposition of the upper prison term . . . [and] were required to be established by a preponderance of the 1 The jury found the special allegation that Petitioner personally used and discharged a 2 firearm during the commission of count 4 within the meaning of Penal Code section 12022.53(c) 3 to be true. (1 CT 259). Accordingly, the trial court’s imposition of the twenty-year term for the 4 firearm allegation was solely on the basis of the facts reflected in the jury verdict. Accordingly, 5 the state court’s denial of Petitioner’s Sixth Amendment claim regarding imposition of the 6 firearm enhancement was not contrary to, or an unreasonable application of, clearly established 7 federal law, nor was it based on an unreasonable determination of fact. 8 Based on the foregoing, the state court’s denial of Petitioner’s sentencing error claim was 9 not “so lacking in justification that there was an error well understood and comprehended in 10 existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. 11 Accordingly, Petitioner is not entitled to habeas relief on his fourth claim, and it should be 12 denied. 13 D. Ineffective Assistance of Counsel 14 In his first and second claims for relief, Petitioner asserts ineffective assistance of 15 appellate counsel for failing to raise issues on appeal that he now raises in the instant habeas 16 petition and ineffective assistance of trial counsel for failing to conduct a proper and adequate 17 pretrial investigation, failing to file a motion to dismiss, a motion to suppress, and a motion for 18 new trial, failing to object to various witnesses’ testimony, and failing to object to the unlawful 19 sentence imposed. (ECF No. 1 at 5, 7, 26, 29–30). Respondent argues the state courts’ rejection 20 of the ineffective assistance of counsel claims was reasonable (ECF No. 14 at 9). 21 1. Strickland Legal Standard 22 The clearly established federal law governing ineffective assistance of counsel claims is 23 Strickland v. Washington, 466 U.S. 668 (1984), which requires a petitioner to show that (1) 24 “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the 25 defense.” Id. at 687. To establish deficient performance, a petitioner must demonstrate that 26 “counsel’s representation fell below an objective standard of reasonableness” and “that counsel 27 made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 1 is highly deferential. A court indulges a “strong presumption” that counsel’s conduct falls within 2 the “wide range” of reasonable professional assistance. Id. at 687. To establish prejudice, a 3 petitioner must demonstrate “a reasonable probability that, but for counsel’s unprofessional 4 errors, the result of the proceeding would have been different. A reasonable probability is a 5 probability sufficient to undermine confidence in the outcome.” Id. at 694. A court “asks whether 6 it is ‘reasonable likely’ the result would have been different. . . . The likelihood of a different 7 result must be substantial, not just conceivable.” Richter, 562 U.S. at 111–12 (citing Strickland, 8 466 U.S. at 696, 693). 9 When § 2254(d) applies, “[t]he pivotal question is whether the state court’s application of 10 the Strickland standard was unreasonable. This is different from asking whether defense 11 counsel’s performance fell below Strickland’s standard.” Richter, 562 U.S. at 101. Moreover, 12 because Strickland articulates “a general standard, a state court has even more latitude to 13 reasonably determine that a defendant has not satisfied that standard.” Knowles v. Mirzayance, 14 556 U.S. 111, 123 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “The 15 standards created by Strickland and § 2254(d) are both ‘highly deferential,’ and when the two 16 apply in tandem, review is ‘doubly’ so.” Richter, 562 U.S. at 105 (citations omitted). Thus, “for 17 claims of ineffective assistance of counsel . . . AEDPA review must be ‘doubly deferential’ in 18 order to afford ‘both the state court and the defense attorney the benefit of the doubt.’” Woods v. 19 Donald, 575 U.S. 312, 316–17 (2015) (quoting Burt v. Titlow, 571 U.S. 12, 15 (2013)). When 20 this “doubly deferential” judicial review applies, the appropriate inquiry is “whether there is any 21 reasonable argument that counsel satisfied Strickland’s deferential standard.” Richter, 562 U.S. 22 at 105. 23 2. Trial Counsel 24 In his second claim for relief, Petitioner asserts ineffective assistance of trial counsel for 25 failing to conduct a proper and adequate pretrial investigation, failing to file a motion to dismiss, 26 a motion to suppress, and a motion for new trial, failing to object to and move to exclude various 27 witnesses’ testimony, and failing to object to the allegedly unlawful sentence imposed. (ECF No. 1 As noted in section IV(B), supra, Petitioner’s appointed counsel filed a Wende brief on 2 appeal. In affirming the judgment, the California Court of Appeal stated that “[a]fter 3 independently reviewing the entire record, we have concluded there are no reasonably arguable 4 legal or factual issues.” Ortiz, 2020 WL 634411, at *3. Thereafter, Petitioner raised his 5 sentencing error claim in his petition for review in the California Supreme Court, which 6 summarily denied the petition for review. The Court presumes that the state court adjudicated the 7 claim on the merits. See Richter, 562 U.S. at 99. Accordingly, AEDPA’s deferential standard of 8 review applies, and as there is no reasoned state court decision on this claim, the Court “must 9 determine what arguments or theories . . . could have supported, the state court’s decision; and 10 then it must ask whether it is possible fairminded jurists could disagree that those arguments or 11 theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Richter, 12 562 U.S. at 102. 13 a. Failure to Conduct Proper and Adequate Pretrial Investigation 14 Petitioner asserts that trial counsel was ineffective for failing to conduct a proper and 15 adequate pretrial investigation. (ECF No. 1 at 30, 31). In Strickland, the Supreme Court declared 16 that “counsel has a duty to make reasonable investigations or to make a reasonable decision that 17 makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not 18 to investigate must be directly assessed for reasonableness in all the circumstances, applying a 19 heavy measure of deference to counsel’s judgments.” 466 U.S. at 690–91. 20 Here, Petitioner provides no factual allegations with respect to his claim that trial counsel 21 did not conduct a proper and adequate pretrial investigation.8 Petitioner does not specify any 22 avenue of investigation that would have revealed information helpful to his defense. Therefore, 23 Petitioner has not overcome the “strong presumption that counsel’s conduct falls within the wide 24 range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Under the “doubly 25 deferential” AEDPA review of ineffective assistance of counsel claims, the state court’s denial 26 was not contrary to, or an unreasonable application of, clearly established federal law, nor was it 27 based on an unreasonable determination of fact. The decision was not “so lacking in justification 1 that there was an error well understood and comprehended in existing law beyond any possibility 2 for fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to 3 habeas relief for ineffective assistance of counsel on the ground that trial counsel failed to 4 conduct a proper and adequate pretrial investigation. 5 b. Failure to File Motion to Suppress and Motion to Dismiss 6 Petitioner asserts that trial counsel was ineffective for failing to file a motion to dismiss 7 and motion to suppress under California Penal Code section 995. (ECF No. 1 at 29). “Generally, 8 a defendant claiming ineffective assistance of counsel for failure to file a particular motion must 9 not only demonstrate a likelihood of prevailing on the motion, but also a reasonable probability 10 that the granting of the motion would have resulted in a more favorable outcome in the entire 11 case.” Styers v. Schriro, 547 F.3d 1026, 1030 n.5 (9th Cir. 2008). 12 “A criminal defendant is permitted to challenge the reasonableness of a search or seizure 13 by making a motion to suppress at the preliminary hearing. If the defendant is unsuccessful at the 14 preliminary hearing, he or she may raise the search and seizure matter before the superior court 15 under the standards governing a section 995 motion.” People v. McDonald, 137 Cal. App. 4th 16 521, 528–29 (2006) (citations omitted). “In a proceeding under section 995, the superior court’s 17 role is similar to that of an appellate court reviewing the sufficiency of the evidence to sustain a 18 judgment. The superior court merely reviews the evidence; it does not substitute its judgment on 19 the weight of the evidence nor does it resolve factual conflicts.” Id. at 529 (citations omitted). 20 Again, Petitioner provides no factual allegations with respect to his claim that trial 21 counsel was ineffective for failing to file a motion to dismiss and motion to suppress under 22 California Penal Code section 995.9 Therefore, Petitioner has not overcome the “strong 23 presumption that counsel’s conduct falls within the wide range of reasonable professional 24 assistance,” Strickland, 466 U.S. at 689, and under the “doubly deferential” AEDPA review of 25 ineffective assistance of counsel claims, the state court’s denial was not contrary to, or an 26 unreasonable application of, clearly established federal law, nor was it based on an unreasonable 27 1 determination of fact. The decision was not “so lacking in justification that there was an error 2 well understood and comprehended in existing law beyond any possibility for fairminded 3 disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief 4 for ineffective assistance of counsel on the ground that trial counsel failed to file a motion to 5 dismiss and motion to suppress under California Penal Code section 995. 6 c. Failure to Object to Witness Testimony 7 Petitioner asserts that trial counsel was ineffective because he “utterly failed on numerous 8 occasions to make timely objections to. . . highly prejudicial testimony without proper 9 impeachable cross-examination[.]” (ECF No. 1 at 29). 10 i. Witnesses Who Identified Petitioner 11 First, Petitioner contends that witnesses who testified regarding Petitioner’s identity were 12 “clearly coached and thus should have been objected to.” (ECF No. 1 at 29). To the extent 13 Petitioner contends that defense counsel should have objected to the identification testimony as 14 being the result of impermissibly suggestive identification procedures, as noted in section 15 IV(B)(1), supra, Petitioner does not provide any factual allegations and nothing in the record 16 indicates that the identification procedures were unduly suggestive. 17 To the extent Petitioner contends that defense counsel should have objected to the 18 identification testimony due to lack of reliability, the record reflects the identification testimony 19 was sufficiently reliable. J.S. was in a vehicle with the perpetrator when he robbed her, J.S. 20 testified that she “remember[ed the day of the robbery] very well,” she identified Petitioner as 21 the culprit approximately one month after the incident when viewing two separate six-person 22 photograph arrays (also known as a “six-pack”), and J.S. testified that “once [she] saw 23 [Petitioner’s] face [she] was able to recognize him.” (1 RT 62–65, 75, 78). Although the 24 perpetrator wore a mask, M.M. was able to view his face because the perpetrator pulled his mask 25 down, and M.M. identified Petitioner as the culprit less than two weeks after the incident when 26 viewing a six-pack photo array. (1 RT 158, 164–65). See Manson v. Brathwaite, 432 U.S. 98, 27 114 (1977) (holding that “reliability is the linchpin in determining the admissibility of 1 to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his 2 prior description of the criminal, the level of certainty demonstrated at the confrontation, and the 3 time between the crime and the confrontation”). As the identification testimony was sufficiently 4 reliable, “trial counsel cannot have been ineffective for failing to raise a meritless objection.” 5 Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005). 6 Based on the foregoing, Petitioner has not overcome the “strong presumption that 7 counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 8 466 U.S. at 689, and under the “doubly deferential” AEDPA review of ineffective assistance of 9 counsel claims, the state court’s denial was not contrary to, or an unreasonable application of, 10 clearly established federal law, nor was it based on an unreasonable determination of fact. The 11 decision was not “so lacking in justification that there was an error well understood and 12 comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 13 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief for ineffective assistance of 14 counsel on the ground that trial counsel failed to object to the testimony of witnesses who 15 identified Petitioner. 16 ii. Witnesses Who Did Not Identify Petitioner 17 Second, Petitioner contends that defense counsel should have objected to the testimony of 18 witnesses who could not or did not identify Petitioner from being admitted into evidence and 19 presented to the jury. (ECF No. 1 at 29). Some witnesses at trial testified regarding the criminal 20 conduct alleged in the information, but could not identify Petitioner as the perpetrator. (1 RT 21 128, 201). Although these witnesses could not provide testimony regarding identification, their 22 testimony regarding the criminal conduct charged in the information was relevant and highly 23 probative and thus, there was no plausible basis for exclusion of said testimony. To the extent 24 Petitioner argues that counsel should have objected to the testimony of R.I., who at trial could 25 not recall having identified Petitioner in any pictures shown by the police, R.I.’s testimony and 26 his prior statements to law enforcement that Petitioner was the individual depicted in the video 27 stills from the first market and the cellular store were relevant and highly probative and thus, 1 “Competent counsel could reasonably have concluded that moving to exclude [the 2 witnesses’] testimony on the grounds [Petitioner] now suggests would have seemed frivolous,” 3 Zapien v. Davis, 849 F.3d 787, 796 (9th Cir. 2015), and under the “doubly deferential” AEDPA 4 review of ineffective assistance of counsel claims, the state court’s denial was not contrary to, or 5 an unreasonable application of, clearly established federal law, nor was it based on an 6 unreasonable determination of fact. The decision was not “so lacking in justification that there 7 was an error well understood and comprehended in existing law beyond any possibility for 8 fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to 9 habeas relief for ineffective assistance of counsel on the ground that trial counsel failed to object 10 to the testimony of witnesses who could not or did not identify Petitioner. 11 iii. Law Enforcement Witnesses 12 Third, Petitioner argues that defense counsel should have objected to the testimony of the 13 police officers on the basis that said officers were subjective and not objective observers. (ECF 14 No. 1 at 29–30). As Petitioner provides no factual allegations10 and the record does not reflect 15 that the law enforcement witnesses harbored any improper bias, the fact that the witnesses were 16 law enforcement officers, without more, is not a basis for objecting to or moving to exclude said 17 witnesses’ testimony. “[T]rial counsel cannot have been ineffective for failing to raise a meritless 18 objection.” Juan H., 408 F.3d at 1273. 19 Petitioner has not overcome the “strong presumption that counsel’s conduct falls within 20 the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, and under the 21 “doubly deferential” AEDPA review of ineffective assistance of counsel claims, the state court’s 22 denial was not contrary to, or an unreasonable application of, clearly established federal law, nor 23 was it based on an unreasonable determination of fact. The decision was not “so lacking in 24 justification that there was an error well understood and comprehended in existing law beyond 25 any possibility for fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is 26 not entitled to habeas relief for ineffective assistance of counsel on the ground that trial counsel 27 failed to object to the testimony of law enforcement witnesses. 1 d. Failure to File Motion for New Trial 2 Petitioner asserts that trial counsel was ineffective for failing to file a motion for a new 3 trial. (ECF No. 1 at 30). “Generally, a defendant claiming ineffective assistance of counsel for 4 failure to file a particular motion must not only demonstrate a likelihood of prevailing on the 5 motion, but also a reasonable probability that the granting of the motion would have resulted in a 6 more favorable outcome in the entire case.” Styers, 547 F.3d at 1030 n.5. 7 California Penal Code section 1181 provides in pertinent part that “[w]hen a verdict has 8 been rendered or a finding made against the defendant, the court may, upon his application, grant 9 a new trial . . . [w]hen the verdict or finding is contrary to law or evidence[.]” Cal. Penal Code 10 §§ 1181(6), 1181(7). As set forth in section IV(B), supra, Petitioner does not provide any factual 11 allegations and nothing in the record indicates that the identification procedures were unduly 12 suggestive, and in light of the verdict, the jury necessarily found J.S. and M.M.’s testimony and 13 their identifications of Petitioner to be credible and R.I.’s failure to recall his pretrial 14 identifications of Petitioner in the pictures shown by the police and of Petitioner’s vehicle as a 15 silver or gray Nissan Altima to be not credible. Viewing the record in the light most favorable to 16 the prosecution, a rational trier of fact could have found true beyond a reasonable doubt that 17 Petitioner committed the offenses. Therefore, Petitioner has not established that there is “a 18 reasonable probability that . . . the result of the proceeding would have been different” had 19 defense counsel filed a motion for a new trial. 20 Based on the foregoing, Petitioner has not overcome the “strong presumption that 21 counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 22 466 U.S. at 689, and under the “doubly deferential” AEDPA review of ineffective assistance of 23 counsel claims, the state court’s denial was not contrary to, or an unreasonable application of, 24 clearly established federal law, nor was it based on an unreasonable determination of fact. The 25 decision was not “so lacking in justification that there was an error well understood and 26 comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 27 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief for ineffective assistance of 1 e. Failure to Object to Sentence 2 Petitioner asserts that trial counsel was ineffective for failing to object when the court 3 “erred in sentencing Petitioner to the aggravated term in Count 4 and the firearm allegation to a 4 term of 5 years and 20 years respectively.” (ECF No. 1 at 34). As set forth in section IV(C), 5 supra, the imposition of the aggravated term on count 4 and the enhanced penalty from the 6 firearm allegation did not violate the Constitution or federal law. “[T]rial counsel cannot have 7 been ineffective for failing to raise a meritless objection.” Juan H., 408 F.3d at 1273. 8 Therefore, under the “doubly deferential” AEDPA review of ineffective assistance of 9 counsel claims, the state court’s denial of this ineffective assistance of counsel claim was not 10 contrary to, or an unreasonable application of, clearly established federal law, nor was it based 11 on an unreasonable determination of fact. The decision was not “so lacking in justification that 12 there was an error well understood and comprehended in existing law beyond any possibility for 13 fairminded disagreement.” Richter, 562 U.S. at 103. Accordingly, Petitioner is not entitled to 14 habeas relief for ineffective assistance of counsel on the ground that trial counsel failed to object 15 to the sentence imposed. 16 3. Appellate Counsel 17 In his first claim for relief, Petitioner asserts that appellate counsel was ineffective for 18 failing to raise the claims presented in the instant federal habeas petition on direct appeal. (ECF 19 No. 1 at 26–27). As noted in section IV(B), supra, Petitioner’s appointed counsel filed a Wende 20 brief on appeal. In affirming the judgment, the California Court of Appeal stated that “[a]fter 21 independently reviewing the entire record, we have concluded there are no reasonably arguable 22 legal or factual issues.” Ortiz, 2020 WL 634411, at *3. Thereafter, Petitioner raised his 23 ineffective assistance of appellate counsel claim in his petition for review in the California 24 Supreme Court, which summarily denied the petition for review. The Court presumes that the 25 state court adjudicated the claim on the merits. See Richter, 562 U.S. at 99. Accordingly, 26 AEDPA’s deferential standard of review applies, and as there is no reasoned state court decision 27 on this claim, the Court “must determine what arguments or theories ... could have supported, the 1 disagree that those arguments or theories are inconsistent with the holding in a prior decision of 2 [the Supreme] Court.” Richter, 562 U.S. at 102. 3 Appellate counsel does not have a constitutional obligation to raise every nonfrivolous 4 issue on appeal. Jones v. Barnes, 463 U.S. 745, 754 (1983). As set forth in sections IV(B)– 5 (D)(2), supra, the state court’s denials of Petitioner’s sufficiency of the evidence, sentencing 6 error, and ineffective assistance of trial counsel claims were not objectively unreasonable. 7 Therefore, the California Supreme Court could have reasonably determined that Petitioner’s 8 appellate counsel did not perform deficiently by filing a Wende brief. See Mena v. Ndoh, 770 F. 9 App’x 339, 342 (9th Cir.) (holding that “it was not objectively unreasonable for the California 10 Supreme Court to determine that [petitioner]’s appellate counsel did not perform deficiently by 11 filing a Wende brief” when the state court could have reasonably determined that petitioner’s 12 claims did not constitute “viable appellate issue[s]”), cert. denied, 140 S. Ct. 376 (2019). 13 Based on the foregoing, Petitioner has not overcome the “strong presumption that 14 counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 15 466 U.S. at 689, and under the “doubly deferential” AEDPA review of ineffective assistance of 16 counsel claims, the state court’s denial was not contrary to, or an unreasonable application of, 17 clearly established federal law, nor was it based on an unreasonable determination of fact. The 18 decision was not “so lacking in justification that there was an error well understood and 19 comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 20 U.S. at 103. Accordingly, Petitioner is not entitled to habeas relief for ineffective assistance of 21 counsel on the ground that appellate counsel filed a Wende brief. 22 V. 23 RECOMMENDATION & ORDER 24 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 25 habeas corpus be DENIED. 26 Further, IT IS HEREBY ORDERED that Petitioner’s request for appointment of counsel 27 (ECF No. 16) is DENIED. 1 This Findings and Recommendation is submitted to the assigned United States District 2 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 3 | Rules of Practice for the United States District Court, Eastern District of California. Within 4 | THIRTY (30) days after service of the Findings and Recommendation, any party may file 5 | written objections with the court and serve a copy on all parties. Such a document should be 6 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 7 | objections shall be served and filed within fourteen (14) days after service of the objections. The 8 | assigned United States District Court Judge will then review the Magistrate Judge’s ruling 9 | pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within 10 | the specified time may waive the right to appeal the District Court’s order. Wilkerson v. 11 | Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 12 | Cir. 1991)). 13 4 IT IS SO ORDERED. 15| Dated: _May 21, 2021 [sf ey — 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28