(HC) Spillers v. Hill

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH D. SPILLERS, No. 2:19-cv-567-TLN-EFB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 RICK HILL, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding without counsel, brings an application for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner attacks the sufficiency of evidence 19 underlying a car-jacking conviction (Penal Code § 215) obtained against him in 2018 and in the 20 Sacramento County Superior Court. Respondent has filed an answer (ECF No. 21) and petitioner 21 has filed a traverse (ECF No. 23). 22 For the reasons stated hereafter, the petition should be denied. 23 FACTUAL BACKGROUND 24 The court has reviewed the state appellate court’s summation of the relevant facts. 25 Having determined that it is consistent with the record, it is reproduced here: 26 While the victim and defendant were in a relationship in 2015 and 2016, defendant beat her many times and threatened to destroy her 27 property. 28 ///// 1 In September 2016, the victim would drive her mother's BMW X5 and would park it in front of her apartment. Defendant was not 2 allowed to use the car and did not have a key to it, and when he asked the victim to allow him to drive the car, she declined, making 3 defendant angry. One day, after the victim drove and parked the car and returned to her apartment, she heard the blinds of an upstairs 4 window fall. The victim saw the blinds on the ground and saw defendant standing three feet from the open window. 5 Defendant and the victim both looked at her purse, where the car keys 6 were visible. The victim reached for the purse, but defendant struck her hand with a BB gun. Defendant ran off with her purse and the car 7 keys, jumped in the car, and took off, screaming something like, “that’s what you get.” The victim believed defendant returned the car 8 to her mother’s house a week or two after taking it. It is unclear how long it took the victim to inform her mother that defendant took the 9 car, but defendant returned the car to the victim’s mother a day after the victim told her mother that defendant took it. 10 Months later, in February 2017, defendant texted the victim that he 11 was in her apartment and would break everything if she did not come there. The victim drove to her apartment and saw that her bedroom 12 window was open. Seeking to avoid defendant, the victim kept driving, but defendant caught up with her at a red light and got into 13 her car. Defendant hit the victim in the face with a water bottle. When the victim got out of the car, defendant moved to the driver’s seat and 14 drove off. The victim went to her apartment and found that everything within had been destroyed. 15 Defendant used Craigslist to trade the BMW for a Cadillac. The 16 record also contains evidence of additional conduct by defendant not relevant to his contention on appeal, including possession of heroin. 17 Testifying on his own behalf, defendant said the victim would let him 18 drive the BMW and gave him a key to her apartment. One day they got into an argument and defendant asked her for a ride home. The 19 victim refused, which caused defendant to get upset, grab her purse, and walk to the car where he waited for the victim to give him a ride. 20 After waiting 10 minutes, defendant drove away. He did not intend to steal the car when he drove off. 21 Regarding the February 2017 incident, defendant said he went to the 22 victim’s apartment to eat. When he saw the victim’s car from the living room window, he walked up to it and got into the passenger 23 seat as it was stopped at a red light. Defendant and the victim started to argue, and defendant threw water from a water bottle on her. He 24 did not remember whether he hit the victim in the head with the water bottle. After the victim got out of the car, defendant moved to the 25 driver’s seat and drove off. He traded the BMW for a Cadillac, but according to defendant, the victim was with him when he made the 26 trade. She later told defendant her mother wanted the car back. 27 ///// 28 ///// 1 The jury convicted defendant of robbery (Pen. Code, § 211),1 carjacking (§ 215, subd. (a)), three counts of felony unlawfully 2 driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), two counts of receiving a stolen vehicle (§ 496d, subd. (a)), theft by false 3 pretenses (§ 532, subd. (a)), domestic violence with a prior domestic violence conviction (§ 273.5, subds. (a), (f)(1)), and possession of 4 heroin (Health & Saf. Code, § 11350, subd. (a)), a misdemeanor. The trial court imposed a 12-year 4-month state prison term. 5 6 ECF No. 13-3 at 1-3 (Lodg. Doc No. 3). 7 STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA 8 I. Applicable Statutory Provisions 9 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 10 1996 (“AEDPA”), provides in relevant part as follows: 11 (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 12 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - 13 (1) resulted in a decision that was contrary to, or involved 14 an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 15 States; or 16 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented 17 in the State court proceeding. 18 Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a 19 state prisoner’s application for a writ of habeas corpus.” (Terry) Williams v. Taylor, 529 U.S. 20 362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review,” or 21 “by definition preclude relief.” Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong 22 (d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of 23 constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc). 24 The statute applies whenever the state court has denied a federal claim on its merits, 25 whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99-100 26 (2011). State court rejection of a federal claim will be presumed to have been on the merits 27

28 1[footnote in original text] Undesignated statutory references are to the Penal Code. 1 absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing 2 Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is 3 unclear whether a decision appearing to rest on federal grounds was decided on another basis)). 4 “The presumption may be overcome when there is reason to think some other explanation for the 5 state court’s decision is more likely.” Id. at 785. 6 A. “Clearly Established Federal Law” 7 The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing 8 legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade, 9 538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute “clearly established 10 Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in 11 issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64 12 (2013). 13 B. “Contrary To” Or “Unreasonable Application Of” Clearly Established Federal Law 14 15 Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and 16 mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two 17 clauses of § 2254(d)(1) create two distinct exceptions to AEDPA’s limitation on relief. Williams, 18 529 U.S. at 404-05 (the “contrary to” and “unreasonable application” clauses of (d)(1) must be 19 given independent effect, and create two categories of cases in which habeas relief remains 20 available). 21 A state court decision is “contrary to” clearly established federal law if the decision 22 “contradicts the governing law set forth in [the Supreme Court’s] cases.” Id. at 405. This 23 includes use of the wrong legal rule or analytical framework. “The addition, deletion, or 24 alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply 25 controlling Supreme Court law under the ‘contrary to’ clause of the AEDPA.” Benn v. Lambert, 26 283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia 27 ///// 28 1 Supreme Court’s ineffective assistance of counsel analysis “contrary to” Strickland2 because it 2 added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir. 3 2010) (California Supreme Court’s Batson3 analysis “contrary to” federal law because it set a 4 higher bar for a prima facie case of discrimination than established in Batson itself); Frantz, 533 5 F.3d at 734 35 (Arizona court’s application of harmless error rule to Faretta4 violation was 6 contrary to U.S. Supreme Court holding that such error is structural). A state court also acts 7 contrary to clearly established federal law when it reaches a different result from a Supreme Court 8 case despite materially indistinguishable facts. Williams, 529 U.S. at 406, 412 13; Ramdass v. 9 Angelone, 530 U.S. 156, 165-66 (2000) (plurality op’n). 10 A state court decision “unreasonably applies” federal law “if the state court identifies the 11 correct rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the 12 particular state prisoner’s case.” Williams, 529 U.S. at 407 08. It is not enough that the state 13 court was incorrect in the view of the federal habeas court; the state court decision must be 14 objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 21 (2003). This does not mean, 15 however, that the § (d)(1) exception is limited to applications of federal law that “reasonable 16 jurists would all agree is unreasonable.” Williams, 529 U.S. at 409 (rejecting Fourth Circuit’s 17 overly restrictive interpretation of “unreasonable application” clause). State court decisions can 18 be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when 19 they fail to give appropriate consideration and weight to the full body of available evidence, and 20 when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins, 21 539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388 909 (2005); Porter v. 22 McCollum, 558 U.S. 30, 42 (2009). 23 The “unreasonable application” clause permits habeas relief based on the application of a 24 governing principle to a set of facts different from those of the case in which the principle was 25

26 2 Strickland v. Washington, 466 U.S. 668 (1984).

27 3 Batson v. Kentucky, 476 U.S. 79 (1986).

28 4 Faretta v. California, 422 U.S. 806 (1975). 1 announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern 2 before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a 3 general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA 4 deference does not apply to the federal court’s adjudication of the claim. Id. at 948. 5 Review under § 2254(d) is limited to the record that was before the state court. Cullen v. 6 Pinholster, 563 U.S. 170, 180-81 (2011). The question at this stage is whether the state court 7 reasonably applied clearly established federal law to the facts before it. Id. In other words, the 8 focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399. 9 Where the state court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review 10 is confined to “the state court’s actual reasoning” and “actual analysis.” Frantz, 533 F.3d at 738 11 (emphasis in original). A different rule applies where the state court rejects claims summarily, 12 without a reasoned opinion. In Harrington, supra, the Supreme Court held that when a state court 13 denies a claim on the merits but without a reasoned opinion, the federal habeas court must 14 determine what arguments or theories may have supported the state court’s decision, and subject 15 those arguments or theories to § 2254(d) scrutiny. Harrington, 562 U.S. at 101-102. 16 C. “Unreasonable Determination of The Facts” 17 Relief is also available under AEDPA where the state court predicated its adjudication of 18 a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly 19 limits this inquiry to the evidence that was before the state court. 20 Even factual determinations that are generally accorded heightened deference, such as 21 credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). For 22 example, in Miller El v. Dretke, 545 U.S. 231 (2005), the Supreme Court ordered habeas relief 23 where the Texas court had based its denial of a Batson claim on a factual finding that the 24 prosecutor’s asserted race neutral reasons for striking African American jurors were true. 25 Miller El, 545 U.S. at 240. 26 An unreasonable determination of facts exists where, among other circumstances, the 27 state court made its findings according to a flawed process – for example, under an incorrect 28 legal standard, or where necessary findings were not made at all, or where the state court failed to 1 consider and weigh relevant evidence that was properly presented to it. See Taylor v. Maddox, 2 366 F.3d 992, 999 1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if “a state 3 court makes evidentiary findings without holding a hearing and giving petitioner an opportunity 4 to present evidence, such findings clearly result in a ‘unreasonable determination’ of the facts” 5 within the meaning of § 2254(d)(2). Id. at 1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055 6 (9th Cir. 2003) (state court’s factual findings must be deemed unreasonable under section 7 2254(d)(2) because “state court . . . refused Nunes an evidentiary hearing” and findings 8 consequently “were made without . . . a hearing”), cert. denied, 543 U.S. 1038 (2004); Killian v. 9 Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (“state courts could not have made a proper 10 determination” of facts because state courts “refused Killian an evidentiary hearing on the 11 matter”), cert. denied, 537 U.S. 1179 (2003). 12 A state court factual conclusion can also be substantively unreasonable where it is not 13 fairly supported by the evidence presented in the state proceeding. See, e.g., Wiggins, 539 U.S. 14 at 528 (state court’s “clear factual error” regarding contents of social service records constitutes 15 unreasonable determination of fact); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (state 16 court’s finding that the prosecutor’s strike was not racially motivated was unreasonable in light 17 of the record before that court); Bradley v. Duncan, 315 F.3d 1091, 1096 98 (9th Cir. 2002) (state 18 court unreasonably found that evidence of police entrapment was insufficient to require an 19 entrapment instruction), cert. denied, 540 U.S. 963 (2003). 20 II. The Relationship Of § 2254(d) To Final Merits Adjudication 21 To prevail in federal habeas proceedings, a petitioner must establish the applicability of 22 one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional 23 invalidity of his custody under pre AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 24 2008) (en banc). There is no single prescribed order in which these two inquiries must be 25 conducted. Id. at 736 37. The AEDPA does not require the federal habeas court to adopt any one 26 methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 27 In many cases, § 2254(d) analysis and direct merits evaluation will substantially overlap. 28 ///// 1 Accordingly, “[a] holding on habeas review that a state court error meets the § 2254(d) standard 2 will often simultaneously constitute a holding that the [substantive standard for habeas relief] is 3 satisfied as well, so no second inquiry will be necessary.” Frantz, 533 F.3d at 736. In such cases, 4 relief may be granted without further proceedings. See, e.g., Goldyn v. Hayes, 444 F.3d 1062, 5 1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court's conclusion 6 that the state had proved all elements of the crime, and granting petition); Lewis v. Lewis, 321 7 F.3d 824, 835 (9th Cir. 2003) (finding § 2254(d)(1) unreasonableness in the state court’s failure 8 to conduct a constitutionally sufficient inquiry into a defendant’s jury selection challenge, and 9 granting petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) (finding § 2254(d)(1) 10 unreasonableness in the state court’s refusal to consider drug addiction as a mitigating factor at 11 capital sentencing, and granting penalty phase relief). 12 In other cases, a petitioner’s entitlement to relief will turn on legal or factual questions 13 beyond the scope of the § 2254(d) analysis. In such cases, the substantive claim(s) must be 14 separately evaluated under a de novo standard. Frantz, 533 F.3d at 737. If the facts are in dispute 15 or the existence of constitutional error depends on facts outside the existing record, an evidentiary 16 hearing may be necessary. Id. at 745; see also Earp, 431 F.3d 1158 (remanding for evidentiary 17 hearing after finding § 2254(d) satisfied). 18 DISCUSSION 19 Petitioner, as noted supra, argues insufficient evidence supports his car-jacking 20 conviction. 21 I. State Court Decision 22 The state court of appeal rejected this claim on direct review: 23 Defendant contends there is insufficient evidence to support the carjacking conviction. We disagree. 24 In determining the sufficiency of the evidence, we ask whether “ 25 ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential 26 elements of the crime beyond a reasonable doubt.’ ” (People v. Hatch (2000) 22 Cal.4th 260, 272, italics omitted.) We resolve neither 27 credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) 28 “Moreover, unless the testimony is physically impossible or 1 inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]” (People v. Young (2005) 34 Cal.4th 2 1149, 1181.) “ ‘ “ ‘If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the 3 circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.’ ” ’ [Citation.]” 4 (People v. Casares (2016) 62 Cal.4th 808, 823-824.) Thus, reversal is not warranted unless there is no hypothesis on which there exists 5 substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) 6 “A conviction for carjacking requires proof that (1) the defendant 7 took a vehicle that was not his or hers (2) from the immediate presence of a person who possessed the vehicle or was a passenger 8 in the vehicle (3) against that person’s will (4) by using force or fear and (5) with the intent of temporarily or permanently depriving the 9 person of possession of the vehicle. [Citations.]” (People v. Magallanes (2009) 173 Cal.App.4th 529, 534.) 10 Defendant's carjacking conviction is based on the September 29, 11 2016 incident in which he entered the victim's apartment through the window, hit her in the hand with a BB gun, took her purse and keys, 12 and drove off with the BMW. Defendant claims he occasionally drove the car and there was conflicting evidence as to whether he was 13 allowed to drive it by himself. He argues he could have reasonably believed there was an understanding that he could drive the car, and 14 he points to his testimony that he waited 10 minutes for the victim before he drove off, and he eventually returned the car to the victim’s 15 mother. Under the circumstances, he claims the evidence does not support a finding that he intended to deprive the victim of possession 16 of the vehicle. 17 But defendant is focusing only on his version of events. The victim testified that although she did not let defendant drive the car, he 18 struck her with a BB gun, took her purse and keys, and drove off in the car, returning it a week later. The victim's testimony, which 19 appears to have been credited by the jury, is sufficient to establish defendant's intent to deprive the victim of possession of the vehicle, 20 at least temporarily. 21 Defendant essentially asks us to credit his testimony over the victim’s testimony, but we will not usurp the jury's function. 22 Substantial evidence supports the carjacking conviction. 23 ECF No. 13-3 at 3-5 (Lodg. Doc. No. 3). Petitioner presented this same claim to the California 24 Supreme Court (ECF No. 13-4 at 6) (Lodg. Doc. No. 4) and it was summarily denied (ECF No. 25 13-5) (Lodg. Doc. No. 5). 26 II. Legal Standards 27 The Due Process Clause “protects the accused against conviction except upon proof 28 beyond a reasonable doubt of every fact necessary to constitute the crime with which he is 1 charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a 2 conviction if, “after viewing the evidence in the light most favorable to the prosecution, any 3 rational trier of fact could have found the essential elements of the crime beyond a reasonable 4 doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive question under 5 Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond a 6 reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443 7 U.S. at 318). Put another way, “a reviewing court may set aside the jury’s verdict on the ground 8 of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos 9 v. Smith, 565 U.S. 1, 2 (2011). Sufficiency of the evidence claims in federal habeas proceedings 10 must be measured with reference to substantive elements of the criminal offense as defined by 11 state law. Jackson, 443 U.S. at 324 n.16. 12 In conducting federal habeas review of a claim of insufficient evidence, “all evidence 13 must be considered in the light most favorable to the prosecution.” Ngo v. Giurbino, 651 F.3d 14 1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in deciding what inferences 15 to draw from the evidence presented at trial,” and it requires only that they draw “‘reasonable 16 inferences from basic facts to ultimate facts.’” Coleman v. Johnson, 566 U.S. 650, 655 (2012) 17 (per curiam ) (citation omitted). “‘Circumstantial evidence and inferences drawn from it may be 18 sufficient to sustain a conviction.’” Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir. 1995) 19 (citation omitted). 20 If the record supports conflicting inferences, the reviewing court “must presume — even 21 if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts 22 in favor of the prosecution, and must defer to that resolution.” McDaniel v. Brown, 558 U.S. 120, 23 133 (2010) (per curiam) (quoting Jackson, 443 U.S. at 326). And juries have broad discretion in 24 deciding what inferences to draw from the evidence presented at trial. This court may not 25 “impinge[ ] on the jury's role as factfinder,” or engage in “fine-grained factual parsing.” 26 Coleman, 566 U.S. at 655. Under Jackson, the court need not find that the conclusion of guilt 27 was compelled, only that it rationally could have been reached. Drayden v. White, 232 F.3d 704, 28 709-10 (9th Cir. 2000). 1 “A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging 2 the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.” 3 Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). Because this case is governed by the Anti- 4 Terrorism and Effective Death Penalty Act, this court owes a “double dose of deference” to the 5 decision of the state court. Long v. Johnson, 736 F.3d 891, 896 (9th Cir. 2013) (quoting Boyer v. 6 Belleque, 659 F.3d 957, 960 (9th Cir. 2011)). See also Coleman, 566 U.S. at 651 (“Jackson 7 claims face a high bar in federal habeas proceedings because they are subject to two layers of 8 judicial deference.”); Kyzar v. Ryan, 780 F.3d 940, 943 (9th Cir. 2015) (same). 9 III. Analysis 10 The court finds that this claim must be denied because sufficient evidence supports the 11 car-jacking conviction and, thus, a fair-minded jurist could conclude that the state court of 12 appeal’s decision was correct. As noted by the court of appeal, Iriadna testified that petitioner 13 used force – fighting and ultimately striking her with a BB gun – to gain control of her car keys. 14 ECF No. 22-2 at 53-56 (Lodg. Doc. No. 7). She further testified that, immediately after obtaining 15 control of her keys, petitioner jumped in her car and drove away while screaming at her. Id. at 16 56-58. Iriadna explicitly testified that she had not given petitioner permission to enter her home 17 or take her vehicle. Id. at 58-59. Thus, there was sufficient evidence for a jury, crediting her 18 testimony, to convict petitioner of car-jacking. See Bruce v. Terhune, 376 F.3d 950, 957-58 (9th 19 Cir. 2004) (per curiam) (testimony of a single witness is sufficient evidence to sustain a 20 conviction). 21 CONCLUSION 22 For the reasons explained above, the state courts’ denial of petitioner’s claim was not 23 objectively unreasonable within the meaning of 28 U.S.C. § 2254(d). Accordingly, IT IS 24 HEREBY RECOMMENDED that the petition for writ of habeas corpus be denied. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned wOOe 2 LUV VEY PORN EY MMU, or PO eerie FAY 40 VI Ae

1 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 2 | shall be served and filed within fourteen days after service of the objections. Failure to file 3 || objections within the specified time may waive the right to appeal the District Court’s order. 4 | Turner vy. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 5 || 1991). In his objections petitioner may address whether a certificate of appealability should issue 6 || in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 7 | 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 8 | final order adverse to the applicant). 9 | DATED: September 22, 2020. > 10 / EDMUND F. BRENNAN 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12