Johnny William Johnson, III v. Nethanjah Breitenbach

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 JOHNNY WILLIAM JOHNSON, III, Case No. 2:22-cv-00462-APG-EJY

4 Petitioner, Order Denying First-Amended Petition 5 v. Under 28 U.S.C. § 2254

6 NETHANJAH BREITENBACH, [ECF No. 35]

7 Respondent.

9 Petitioner Johnny William Johnson, III has filed a counseled First-Amended Petition for 10 Writ of Habeas Corpus under 28 U.S.C. § 2254. ECF No. 35. Johnson asserts that his trial 11 counsel failed to investigate his innocence and that he is innocent of the crimes for which he has 12 been convicted. For the reasons discussed below, I deny the First-Amended Petition and a 13 Certificate of Appealability. 14 I. BACKGROUND 15 A. Factual Background1 16 Officer Michael David Cruz of the Las Vegas Metropolitan Police Department testified 17 that on April 20, 2012, he heard gunshots around 8:53 in the evening while on patrol. ECF No. 18 48-33 at 44–45. After finding the residence where the shots had been fired, Officer Cruz 19 “proceeded into the front yard of the residence, [and] there were two black males and another 20 black female, and then another black female [who had been shot and] was slumped over in the 21 doorway of that residence.” Id. at 47. Dr. Deborah Kuhls, a trauma surgeon at University 22

1 I make no credibility findings or other factual findings regarding the truth or falsity of the 23 evidence from the state court. My summary is merely a backdrop to my consideration of the issues presented in the case. 1 Medical Center, testified that she treated Monique Traylor, the woman who had been shot. Id. at 2 66. Traylor suffered from a bullet wound in the abdomen, resulting in her spleen and left kidney 3 being removed and her colon being reconstructed. Id. at 78. 4 Traylor testified that her boyfriend, Allen Griffin, got in an argument with Johnson on the

5 afternoon of April 20, 2012 about money owed for drugs. ECF No. 48-33 at 227, 252. Later that 6 day, around 8:30 to 8:50 p.m., Johnson returned, “pull[ed] out a gun, and he start[ed] shooting.” 7 Id. at 231. 8 Griffin testified that on April 20, 2012 he had been drinking alcohol and smoking 9 marijuana and PCP. ECF No. 48-33 at 167. That afternoon, Griffin “got[ ] into some words 10 with” Johnson’s brother while Johnson was present. Id. at 165, 170, 175, 177. Then, at about 11 8:50 p.m. that evening, Griffin, Traylor, and Traylor’s cousin were outside when Griffin heard 12 three or four gunshots, resulting in Traylor getting shot. Id. at 84, 88, 93–94. Traylor’s daughter, 13 D.T., who was 13-years old, was inside the house at the time of the shooting. Id. at 98. 14 Immediately following the shooting, Griffin was shown a potential suspect and positively

15 identified that suspect as the shooter. ECF No. 48-33 at 117. However, police later exonerated 16 that man. Id. Several months later, on August 31, 2012, Griffin identified Johnson from a 17 photographic lineup; however, at trial he testified that he pointed out a different individual in that 18 photographic lineup but that the detectives pointed to Johnson and “demanded” that Griffin 19 identify Johnson instead. Id. at 151–52, 171, 178, 182. At the trial, Griffin testified that he did 20 not know who shot Traylor. Id. at 175. The State implied that Griffin did not want to incriminate 21 Johnson at trial due to Griffin’s gang membership and hesitancy to “snitch” on others. Id. at 156– 22 158. 23 1 Traylor was shown three photographic lineups containing Johnson at different times 2 following the shooting, but she identified Johnson only during the third photographic lineup 3 conducted on August 31, 2012. ECF No. 48-33 at 247. Traylor and D.T. both identified Johnson 4 as the shooter at trial. Id.; ECF No. 48-34 at 156. Marquet Polk, Traylor’s cousin, testified that

5 he could not identify the shooter. ECF No. 48-34 at 50, 52, 56. 6 Other than the photographic and trial identifications, there was no “physical proof that 7 [Johnson] was actually present during that shooting.” ECF No. 48-35 at 219. However, a 8 detective testified that (1) Mitchell Johnson (hereinafter Mitchell), Johnson’s brother, told 9 detectives that Johnson told him to “just go over there and talk to them, . . . tell them it was an 10 accident” and (2) Johnson requested that his mother call Traylor. ECF No. 48-35 at 202, 211. 11 Additionally, a firearms examiner determined that the eight cartridge casings found at the crime 12 scene were fired by the same firearm as three cartridge casings that were found at an apartment 13 associated with Johnson. ECF Nos. 48-34 at 164, 170–71; 48-36 at 68. 14 B. Procedural Background

15 A jury found Johnson guilty of two counts of attempted murder with the use of a deadly 16 weapon, battery with the use of a deadly weapon resulting in substantial bodily harm, assault 17 with a deadly weapon, discharging a firearm, carrying a concealed firearm, and possession of a 18 firearm by an ex-felon. ECF No. 48-44. Johnson was sentenced to an aggregate term of 30 to 75 19 years in prison. Id. He appealed, and the Nevada Court of Appeals affirmed on January 21, 20 2015. ECF No. 49-27. 21 Johnson filed a petition for writ of habeas corpus in state court on May 26, 2015. ECF 22 No. 49-41. The state court granted counsel for Johnson, and he filed a counseled supplemental 23 memorandum in support of his petition. ECF No. 50-16. The state court denied the petition on 1 December 6, 2016. ECF No. 50-21. Johnson appealed, and the Nevada Court of Appeals 2 affirmed on July 17, 2018. ECF No. 50-45. 3 Johnson filed a motion for modification of his sentence on December 19, 2019. ECF No. 4 50-50. The state court denied the motion on February 4, 2020. ECF No. 51-2. On July 17, 2020,

5 Johnson filed a motion to submit new evidence and a second state habeas petition. ECF Nos. 51- 6 3, 51-5. The state court denied the second habeas petition on October 8, 2020, and denied the 7 motion to submit new evidence on March 2, 2021. ECF Nos. 51-7, 51-24. Johnson appealed the 8 denial of his second state habeas petition, and the Nevada Court of Appeals affirmed on June 28, 9 2021. ECF No. 51-31. 10 Johnson commenced this action on March 14, 2022. ECF No. 1. I appointed counsel for 11 Johnson, and Johnson filed his counseled First-Amended Petition on March 14, 2024. ECF Nos. 12 19, 24, 35. In his First-Amended Petition, Johnson raised the following grounds for relief: 13 (1) his trial counsel failed to investigate his innocence and the possibility that Mitchell was the 14 shooter and (2) he is factually innocent of the crimes. ECF No. 35. The respondent moved to

15 dismiss the First-Amended Petition. ECF No. 55. I denied the motion to dismiss without 16 prejudice. ECF No. 63. The respondent answered the First-Amended Petition on August 15, 17 2025. ECF No. 73. Johnson replied on November 14, 2025. ECF No. 76. 18 II. GOVERNING STANDARD OF REVIEW 19 The Antiterrorism and Effective Death Penalty Act (AEDPA) sets forth the standard of 20 review generally applicable in habeas corpus cases: 21 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 22 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— 23 1 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly 2 established Federal law, as determined by the Supreme Court of the United States; or 3 (2) resulted in a decision that was based on an 4 unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 5

6 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established Supreme Court 7 precedent, within the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that 8 contradicts the governing law set forth in [the Supreme Court’s] cases” or “if the state court 9 confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] 10 Court.” Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 11 405–06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). A state court decision is an 12 unreasonable application of clearly established Supreme Court precedent within the meaning of 13 28 U.S.C. § 2254(d) “if the state court identifies the correct governing legal principle from [the 14 Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s 15 case.” Id. at 75 (quoting Williams, 529 U.S. at 413). “The ‘unreasonable application’ clause 16 requires the state court decision to be more than incorrect or erroneous. The state court’s 17 application of clearly established law must be objectively unreasonable.” Id. (quoting Williams, 18 529 U.S. at 409–10) (internal citation omitted). 19 “A state court’s determination that a claim lacks merit precludes federal habeas relief so 20 long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” 21 Harrington v. Richter, 562 U.S. 86, 101 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 22 664 (2004)). The Supreme Court has stated “that even a strong case for relief does not mean the 23 state court’s contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer, 538 U.S. at 75); 1 see also Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (describing the standard as a “difficult to 2 meet” and “highly deferential standard for evaluating state-court rulings, which demands that 3 state-court decisions be given the benefit of the doubt” (internal quotation marks and citations 4 omitted)).

5 III. DISCUSSION 6 In ground 1, Johnson alleges that his trial counsel failed to investigate his innocence and 7 the possibility that Mitchell was the shooter, denying him his right to effective assistance of trial 8 counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States 9 Constitution. ECF No. 35 at 11. In ground 2, Johnson alleges that he is factually innocent of the 10 crimes and is imprisoned in violation of his right to due process under the Fifth and Fourteenth 11 Amendments. Id. at 21. 12 The respondent previously argued that ground 1 was untimely or, alternatively, was 13 procedurally defaulted. ECF No. 55 at 6, 12. Johnson agreed but argued that he is entitled to an 14 equitable exception to the one-year limitation period and to his procedural default being excused

15 because he is innocent. ECF No. 59 at 2. I deferred consideration of the actual-innocence 16 gateway until my merits review of the First-Amended Petition. ECF No. 63 at 5. Because the 17 actual-innocence gateway for ground 1 is linked to the claim for relief raised in ground 2, I 18 analyze grounds 1 and 2 in tandem. 19 A. Actual Innocence Factual Background 20 During Johnson’s second state habeas proceedings, he submitted a declaration by 21 Michael McNair, Johnson’s other brother. ECF No. 51-3 at 4–5. In that declaration, which was 22 written while McNair was an inmate at Ely State Prison, McNair declared that “Mitchell D. 23 Johnson told [him] how he was able to commit this crime, blame it on [Johnson], and get away 1 with it because of how much they look just alike and [Johnson] has a violent record already.” Id. 2 at 4. According to McNair, Mitchell told him that he bought drugs from Griffin but that the 3 drugs “did not weigh up right.” Id. Mitchell went back to Griffin’s residence, but Griffin “didn’t 4 make it right.” Id. Later, “just before night fall,” Mitchell “went back to [Griffin’s residence],

5 saw him, and opened fire” before returning home “and call[ing] 9-1-1 [to] come up with a story 6 about people running around his house with guns.” Id. Mitchell later “called the crime stoppers 7 hotline as a CI and stated that [Johnson] did the shooting . . . to make sure they didn’t come after 8 him.” Id. McNair did not come forward with this information sooner because he “was told by 9 Mitchell that [Johnson] took a deal because he wouldn’t snitch on Mitchell,” but he later learned 10 that Johnson never took a deal. Id. 11 B. Legal Standard 12 “[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass 13 whether the impediment is a procedural bar [or] expiration of the statute of limitations.” 14 McQuiggin v. Perkins, 569 U.S. 383, 386 (2013). In this regard, “actual innocence” means

15 actual factual innocence, not mere legal insufficiency. Sawyer v. Whitley, 505 U.S. 333, 339 16 (1992). However, “where post-conviction evidence casts doubt on the conviction by 17 undercutting the reliability of the proof of guilt, but not by affirmatively proving innocence, that 18 can be enough to pass through the . . . gateway to allow consideration of otherwise barred 19 claims.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (en banc) (internal quotation 20 omitted). Nevertheless, the Supreme Court has emphasized that “tenable actual innocence 21 gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he 22 persuades the district court that, in light of the new evidence, no juror, acting reasonably, would 23 1 have voted to find him guilty beyond a reasonable doubt.’” McQuiggin, 569 U.S. at 386 (quoting 2 Schlup v. Delo, 513 U.S. 298, 329 (1995)). 3 “To be credible, [an actual innocence] claim requires petitioner to support his allegations 4 of constitutional error with new reliable evidence—whether it be exculpatory scientific evidence,

5 trustworthy eyewitness accounts, or critical physical evidence—that was not presented at trial.” 6 Schlup, 513 U.S. at 324 (emphasis added). To be “new” for purposes of an actual innocence 7 claim, the evidence need only be “newly presented,” i.e., reliable evidence “that was not 8 presented at trial,” as opposed to “newly discovered” and thus previously unavailable. Griffin v. 9 Johnson, 350 F.3d 956, 961-63 (9th Cir. 2003). Actual innocence review incorporates “all 10 evidence,” including (1) evidence alleged to have been improperly admitted (but with due regard 11 to its questionable reliability), (2) evidence tenably claimed to have been wrongfully excluded by 12 the trial court, (3) evidence the defense did not present to the jury at trial, or (5) evidence that 13 became available only after the trial. Id. (citing Schlup, 513 U.S. at 327-28). 14 Newly presented evidence may call into question the credibility of trial witnesses,

15 potentially requiring credibility assessments on federal habeas review. See Schlup, 513 U.S. at 16 330. However, a Schlup claim attempting to discredit prosecution witnesses provides less 17 support for actual innocence than affirmatively presenting new exculpatory evidence. See Lee, 18 653 F.3d at 94345 (holding that a reasonable juror may have rejected an expert’s speculation 19 and, even assuming a police report constituted new evidence, jurors may still have convicted the 20 petitioner given all they heard at trial); Sistrunk v. Armenakis, 292 F.3d 669, 675-76 (9th Cir. 21 2002) (en banc) (finding that excluded evidence had “some impeachment value” but was “far 22 from conclusive,” and therefore did not undermine confidence in the conviction). 23 1 The Supreme Court has not yet recognized a freestanding “actual innocence” claim as a 2 constitutional claim. See, e.g., McQuiggin, 569 U.S. at 392. However, if a freestanding actual 3 innocence claim is cognizable, to be successful on such a claim, a petitioner would be required to 4 show “a truly persuasive demonstration of ‘actual innocence.’” Herrera v. Collins, 506 U.S. 390,

5 417 (1993). 6 C. State Court Determination 7 The Nevada Court of Appeals addressed and denied Johnson’s actual innocence claim: 8 Johnson appeared to assert that his claims should be reviewed on their merits because he is actually innocent. Johnson based his 9 actual-innocence claim upon an assertion that he has information indicating that another person was responsible for the shooting. 10 However, the record reveals that several witnesses identified Johnson as the shooter. Police officers subsequently searched an 11 apartment associated with Johnson and discovered ammunition consistent with the bullet casings recovered from the crime scene 12 and clothing consistent with the type that the shooter had been wearing during the incident. In light of the strong evidence of 13 Johnson’s guilt presented at trial, he did not demonstrate actual innocence because he failed to show that “it is more likely than not 14 that no reasonable juror would have convicted him in light of the new evidence.” Calderon v. Thompson, 523 U.S. 538, 559 (1998) 15 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)); see also Pellegrini v. State, 117 Nev. 860, 887, 34 P.3d 519, 537 (2001), 16 abrogated on other grounds by Rippo v. State, 134 Nev. 411, 423 n.12, 423 P.3d 1084, 1097 n.12 (2018). We therefore conclude the 17 district court did not err by denying Johnson’s petition without conducting an evidentiary hearing. 18 19 ECF No. 51-34 at 4–5. 20 D. Analysis 21 The Nevada Court of Appeals reasonably determined that Johnson fails to demonstrate 22 his innocence. 23 The evidence of Johnson’s guilt at trial can be summarized as follows: 1 (1) Griffin’s identification of Johnson during a photographic lineup, 2 (2) Traylor’s identification of Johnson during a photographic lineup and at trial, 3 (3) D.T.’s identification of Johnson at trial, 4 (4) evidence that Johnson asked his family to contact Traylor, and

5 (5) the cartridge casings found at the crime scene being fired by the same firearm as three 6 cartridge casings that were found at an apartment Johnson was associated with. 7 I acknowledge that each of these pieces of evidence has flaws: 8 (1) Griffin previously identified the wrong person and testified that the police pressured 9 him to pick Johnson from the lineup, 10 (2) Traylor did not pick out Johnson from two other lineups and may have been 11 influenced to pick Johnson based on her cousin telling her that Johnson had been the shooter, 12 (3) D.T. previously told the police that she could not identify the shooter, 13 (4) Johnson’s request to contact Traylor did not admit guilt, and 14 (5) someone else could have hidden the cartridge casings in the apartment.

15 Nonetheless, I am not convinced that no juror, acting reasonably, would have voted to 16 find Johnson guilty beyond a reasonable doubt had McNair’s testimony been presented at trial. 17 First, McNair’s declaration lacks indicia of reliability. McNair is Johnson’s brother, meaning his 18 testimony could have been viewed by the jury as being biased. McNair was also in prison at the 19 time he made his declaration, meaning his testimony could also have been viewed by the jury as 20 untrustworthy. Second, in weighing McNair’s declaration with the evidence that was presented 21 at trial, I am far from confident that the jury would have viewed this case through a different 22 lens. Indeed, for the jury to have credited McNair’s declaration, they would have necessarily had 23 to have discredited Traylor’s testimony. Given that Traylor lacked any type of motivation to lie 1 about who shot her, given that she was an innocent bystander, it is beyond belief that the jury 2 would have rejected the victim’s testimony and instead trusted an unconnected and potentially 3 partial witness. For these reasons, even if a freestanding actual-innocence claim is cognizable in 4 non-capital habeas proceedings, Johnson fails to meet the extraordinarily high threshold of

5 showing his actual innocence. See House v. Bell, 547 U.S. 518, 555 (2006) (rejecting 6 freestanding actual innocence claim even though the petitioner had “cast considerable doubt on 7 his guilt”); Jackson v. Calderon, 211 F.3d 1148, 1165 (9th Cir. 2000) (rejecting a freestanding 8 actual innocence claim even though the petitioner’s new evidence “certainly cast doubt on his 9 conviction”). 10 Further, even if I were to find that Johnson has presented doubt sufficient to satisfy the 11 less convincing proof of innocence under the Schlup gateway for ground 1, Johnson fails to 12 demonstrate that his trial counsel was ineffective. In Strickland v. Washington, the Supreme 13 Court propounded a two-prong test for analysis of claims of ineffective assistance of counsel 14 requiring the petitioner to demonstrate (1) that the attorney’s “representation fell below an

15 objective standard of reasonableness,” and (2) that the attorney’s deficient performance 16 prejudiced the defendant such that “there is a reasonable probability that, but for counsel’s 17 unprofessional errors, the result of the proceeding would have been different.” 466 U.S. 668, 18 688, 694 (1984). A court considering a claim of ineffective assistance of counsel must apply a 19 “strong presumption that counsel’s conduct falls within the wide range of reasonable 20 professional assistance.” Id. at 689. The petitioner’s burden is to show “that counsel made errors 21 so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 22 Sixth Amendment.” Id. at 687. To establish prejudice under Strickland, it is not enough for the 23 habeas petitioner “to show that the errors had some conceivable effect on the outcome of the 1 proceeding.” Id. at 693. Rather, the errors must be “so serious as to deprive the defendant of a 2 fair trial, a trial whose result is reliable.” Id. at 687. 3 Defense counsel has a “duty to make reasonable investigations or to make a reasonable 4 decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. “In any

5 ineffectiveness case, a particular decision not to investigate must be directly assessed for 6 reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s 7 judgments.” Id. This investigatory duty includes investigating the defendant’s “most important 8 defense.” Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994). It also includes investigating 9 and introducing evidence that demonstrates factual innocence or evidence that raises sufficient 10 doubt about the defendant’s innocence. Hart v. Gomez, 174 F.3d 1067, 1070 (9th Cir. 1999). In 11 assessing counsel’s investigation, the court must conduct an objective review of counsel’s 12 performance, measured for “reasonableness under prevailing professional norms.” Strickland, 13 466 U.S. at 688. This includes a context-dependent consideration of the challenged conduct as 14 seen “from counsel’s perspective at the time.” Id. at 689; see also Wiggins v. Smith, 539 U.S.

15 510, 523 (2003). 16 Johnson fails to demonstrate that his trial counsel acted ineffectively in conducting his 17 investigative duties. Mitchell testified as a prosecution witness at Johnson’s trial. ECF No. 48- 18 35 at 100–101. Outside the presence of the jury, following direct examination, the parties were 19 discussing Johnson’s trial counsel’s cross-examination of Mitchell. Id. at 118. The trial court 20 asked whether Mitchell was present at the shooting, and Johnson responded, “[n]ot that the 21 witness was present, that he gave me a ride from the spot” that was not near the crime scene. Id. 22 Given that Johnson did not inform his trial counsel that his brother could have been present at the 23 shooting, Johnson’s trial counsel was not put on notice that Mitchell needed to be investigated as 1 the shooter. See Babbitt v. Calderon, 151 F.3d 1170, 1174 (9th Cir. 1998) (“[C]ounsel is not 2 deficient for failing to find mitigating evidence if, after a reasonable investigation, nothing has 3 put the counsel on notice of the existence of that evidence.”). This lack of notice belies the 4 contention that Johnson’s trial counsel’s investigation into Mitchell was unreasonable.

5 Moreover, outside the presence of the jury, Johnson’s trial counsel stated that Mitchell “hung up 6 the phone on [his] investigator” and “refused to answer [his] investigator’s calls.” ECF No. 48- 7 35 at 127. As such, even if Johnson’s trial counsel had known about Mitchell’s supposed 8 connection to the shooting, it is not readily apparent that interviewing him would have provided 9 any information, much less any fruitful information. Finally, as discussed previously, it is 10 merely speculation that the jury would have credited McNair’s testimony that Mitchell was the 11 shooter over Traylor’s testimony that Johnson was the shooter. See Djerf v. Ryan, 931 F.3d 870, 12 881 (9th Cir. 2019) (“Strickland prejudice is not established by mere speculation.”). 13 Consequently, Johnson fails to demonstrate that his trial counsel’s representation fell below an 14 objective standard of reasonableness.

15 I deny Johnson federal habeas relief. 16 IV. CERTIFICATE OF APPEALABILITY 17 This is a final order adverse to Johnson. Rule 11 of the Rules Governing Section 2254 18 Cases requires me to issue or deny a certificate of appealability (COA). I have sua sponte 19 evaluated the claims within the amended petition for suitability for the issuance of a COA. See 20 28 U.S.C. § 2253(c); Turner v. Calderon, 281 F.3d 851, 864–65 (9th Cir. 2002). A COA may 21 issue only when the petitioner “has made a substantial showing of the denial of a constitutional 22 right.” 28 U.S.C. § 2253(c)(2). With respect to claims rejected on the merits, a petitioner “must 23 demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citing Barefoot v. 2|| Estelle, 463 U.S. 880, 893 & n.4 (1983)). Applying these standards, I find that a certificate of 3] appealability is unwarranted. CONCLUSION 5 I THEREFORE ORDER that the First-Amended Petition [ECF No. 35] is denied. 6 I FURTHER ORDER that a certificate of appealability is denied. 7 I FURTHER ORDER the Clerk of Court to enter judgment accordingly and close this case. 9 Dated: April 23, 2026 10 GA ANDREW P. GORDON 11 CHIEF UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23