Jones v. Shinn

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Dennis Jones, No. CV-19-05505-PHX-MTL

10 Petitioner, ORDER

11 v.

12 Charles L Ryan, et al.,

13 Respondents. 14 15 Before the Court is Magistrate Judge Camille D. Bibles’ Report and 16 Recommendation (“R&R”) (Doc. 18), recommending that the Petition for Writ of Habeas 17 Corpus (the “Petition”) (Doc. 1) be denied. The Court has reviewed the Petition (Doc. 1), 18 Respondents’ Response to the Petition (Doc. 11), Petitioner’s Reply to the Response 19 (Doc. 14), the R&R (Doc. 18), Petitioner’s Objection to the R&R (Doc. 23), and 20 Respondents’ Reply to Petitioner’s Objection (Doc. 27). Petitioner also filed a Motion for 21 Alternative Dispute Resolution for Remedial Settlement and a Motion for Discovery 22 (Docs. 25, 30). He then filed a supplemental objection, to which Respondents moved to 23 strike. (Docs. 33, 34.) For the reasons expressed below, the Court overrules Petitioner’s 24 objections and adopts the R&R. 25 I. BACKGROUND 26 A Maricopa County grand jury charged Petitioner as an accomplice to two counts 27 of armed robbery, class-two felonies (Counts 11 and 12); two counts of aggravated 28 assault, class-three felonies (Counts 13 and 14); and misconduct with weapons, a class- 1 four felony (Count 15).1 (Doc. 11-1 at 4–8.) Petitioner went to trial on these counts, but 2 the jury could not reach a verdict which led to a mistrial. (Id. at 10–12.) After a new trial, 3 the jury found Petitioner guilty on all counts. (Id. at 191–96.) The jury also found four 4 aggravating circumstances as to each count: the offense (1) “caused physical injury, 5 emotional or financial harm to the victim,” (2) “involved an accomplice,” (3) was 6 “committed for pecuniary gain,” and (4) “involved multiple victims in a single incident.” 7 (Id. at 181–89.) The superior court sentenced Petitioner to five concurrent terms in 8 prison, totaling 18 years. (Id. at 191–94.) 9 Petitioner, represented by counsel, appealed his convictions and sentences. (Id. at 10 200–02.) The Arizona Court of Appeals affirmed. See State v. Jones, No. 1 CA-CR 15- 11 0579, 2016 WL 4698919 (Ariz. App. Sept. 8, 2016). The Arizona Supreme Court denied 12 review. (Doc. 11-2 at 67.) Petitioner then filed a timely notice of post-conviction relief 13 requesting court-appointed counsel. (Id. at 75–76.) The trial court appointed counsel, who 14 ultimately filed a Notice of Completion stating that he could not find any “colorable legal 15 issue that is not frivolous.” (Id. at 78–79.) Petitioner proceed pro per and filed several 16 post-conviction relief pleadings. (Id. at 81–106, 121–47, 224; Doc. 11-3 at 27–93, 118– 17 64; Doc. 11-4 at 60–101.) After considering all the relevant pleadings, the superior court 18 denied relief on all claims. (Doc. 11-5 at 29–30, 32–36.) The Arizona Court of Appeals 19 granted review but summarily denied relief. See State v. Jones, No. CA-CR 18-0682 20 PRPC, 2019 WL 273343 (Ariz. App. Jan. 22, 2019). The United States Supreme Court 21 denied a writ of certiorari. See Jones v. Arizona, 140 S. Ct. 838 (2020). Petitioner then 22 timely filed the instant habeas proceedings. (Doc. 1.) 23 II. LEGAL STANDARD 24 When reviewing a state prisoner’s habeas corpus petition under 28 U.S.C. § 2254, 25 this Court “must decide whether the petitioner is ‘in custody in violation of the 26 Constitution or laws or treaties of the United States.’” Coleman v. Thompson, 501 27 U.S. 722, 730 (1991) (quoting 28 U.S.C. § 2254). The Court only reviews de novo those

28 1 The grand jury returned a supervening indictment on the five counts mentioned above in January 2014. (See Doc. 18 at 2 n.2.) 1 portions of the report specifically objected to and “may accept, reject, or modify, in 2 whole or in part, the findings and recommendations made by the magistrate judge.” 28 3 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (“The district judge must 4 determine de novo any part of the magistrate judge’s disposition that has been properly 5 objected to.”). The Court need not “review . . . any issue that is not the subject of an 6 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985). A proper objection to a magistrate 7 judge’s R&R requires “specific written objections to the proposed findings and 8 recommendations.” Fed. R. Civ. P. 72(b)(2). If a petitioner raises a general objection, 9 “the Court is relieved of any obligation to review it.” Martin v. Ryan, No. CV-13-00381- 10 ROS, 2014 WL 5432133, at *2 (D. Ariz. Oct. 24, 2014). 11 III. DISCUSSION 12 The Petition raises fifteen claims challenging his convictions and sentences: 13 (1) there was insufficient evidence to convict on the element of intent; (2) Petitioner was 14 denied counsel at a “critical stage of the proceeding”; (3) the jury convicted him based on 15 an unconstitutionally suggestive identification procedure; (4) juror bias; (5) the State 16 erred in amending the indictment and he was not put on notice of the allegations of 17 aggravating factors or prior felony convictions; (6) ineffective assistance of counsel for 18 failing to request a jury instruction on lesser-included crimes; (7) Petitioner’s conviction 19 was the “result of a pattern of prosecutorial misconduct, and ineffective assistance of 20 counsel”; (8 & 9) ineffective assistance of counsel because counsel “failed to inform 21 Petitioner of his right to testify and [] counsel failed to present a complete defense”; 22 (10) the prosecutor committed misconduct by using perjured testimony and his counsel 23 was ineffective for failing to impeach certain witnesses about their inconsistent 24 testimony; (11) Petitioner was denied the “right to a unanimous verdict on each element 25 of each offense, and effective assistance of counsel”; (12) counsel was ineffective 26 because counsel “failed to file intentional preaccusation [sic] delay. Speedy trial 27 violation, and time barred indictment violation”; (13) Petitioner was denied the effective 28 assistance of counsel and subjected to prosecutorial misconduct because the prosecutor 1 “derailed the grand jury from being [independent] and informed by suppressing 2 evidence”; (14) counsel was ineffective for stipulating that Petitioner had a prior 3 conviction and he was denied a fair trial because the court did not perform a colloquy on 4 whether Petitioner stipulated to the prior felony conviction; (15) counsel was ineffective 5 for failing “to challenge the arrest and subsequent evidence as fruits of a poisonous tree 6 [due] to illegal search and seizure.” (Doc. 1.) The R&R recommends that the Petition be 7 denied. (Doc. 18.) The R&R concludes that several claims are procedurally defaulted, 8 and others fail on their merits. (Id. at 24–50.) Petitioner uses much of his Objection to 9 restate his arguments that he is entitled to relief, but the Court will focus on the specific 10 objections that he asserts to the R&R. (Doc. 23.) 11 A. Grounds 5–11, 14, and 15 12 Petitioner does not make any specific objections to the R&R’s conclusions on 13 Grounds 5–11, 14, and 15. (Doc. 23.) At most, Petitioner reargues his claims generally 14 and contends he is entitled to relief. (Id.) As mentioned above, under Rule 72, objections 15 must be “specific . . . to the proposed findings and recommendations” of the magistrate 16 judge. Fed. R. Civ. P. 72(b)(2). Given that Petitioner has not provided any specific 17 objections to these grounds, the Court need not review them. United States v. Reyna- 18 Tapia, 328 F.3d 1114, 1121–22 (9th Cir. 2003). Even if this Court treats any statements 19 in the Petition as general objections, this Court is still not obligated to review those 20 objections. “An obvious purpose for this requirement is judicial economy – to permit 21 magistrate judges to hear and resolve matters not objectionable to the parties. Because de 22 novo review of the entire R&R would defeat the efficiencies intended by Congress, a 23 general objection ‘has the same effect as would a failure to object.’” Quinn v. Hacker- 24 Agnew, No. CV-19-08152-PCT-DGC (CDB), 2020 WL 6680401, at *2 (D. Ariz. Nov. 9, 25 2020) (citations omitted). The Court treats a general objection the same way it would 26 treat a failure to object; the Court is under no obligation to conduct a de novo analysis. 27 See Martin, 2014 WL 5432133, at *2. Although it has no obligation to do so, the Court 28 nonetheless has considered these claims and reviewed the R&R. The Court agrees with 1 the Magistrate Judge and accepts the recommended decision. (Doc. 18.) 2 B. Ground 1 3 Petitioner objects to the Magistrate Judge’s recommendation to dismiss Ground 1. 4 (Doc. 23 at 9–11.) Petitioner reasserts his sufficiency of the evidence argument and 5 contends that an “objectively reasonable” review of the state court’s dismissal is 6 impossible because the state court offered no reasoning with its decision. (Id. at 9.) The 7 Court will address each objection in turn. 8 “A reviewing court may set aside the jury’s verdict on the ground of insufficient 9 evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. 10 Smith, 565 U.S. 1, 2 (2011). When a state court rejects a sufficiency of the evidence 11 challenge, a federal court may only overturn the decision if it was “objectively 12 unreasonable.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir. 2011). This “double dose 13 of deference . . . can rarely be surmounted.” Id. In considering a sufficiency of the 14 evidence claim, the federal habeas court must assume that the trier of fact resolved any 15 evidentiary conflicts in favor of the prosecution and must defer to such resolution. See 16 Jackson v. Virginia, 443 U.S. 307, 326 (1979). Even when the evidence is “almost 17 entirely circumstantial and relatively weak,” it may be sufficient to support conviction. 18 Jones v. Wood, 207 F.3d 557, 563 (9th Cir. 2000). 19 As the R&R notes, there is ample evidence to support the jury’s conviction. (Doc. 20 18 at 25–26.) Petitioner did not deny driving himself and his co-defendants to the parking 21 lot, parking next to the victims, being present while the crimes were committed, or 22 driving himself and his co-defendants away from the scene. (See Doc. 1 at 6; Doc. 3 at 1– 23 15; Doc. 23 at 8–11.) Though there were discrepancies in testimony, the jury was made 24 aware of such issues of credibility and chose to resolve them in the victims’ favor. See 25 Schlup v. Delo, 513 U.S. 298, 330 (1995) (noting the credibility of witnesses is generally 26 beyond the Court’s review of the sufficiency of the evidence). The Anti-Terrorism and 27 Effective Death Penalty Act of 1996 (“AEDPA”) requires a state prisoner to “show that 28 the state court’s ruling on the claim being presented in federal court was so lacking in 1 justification that there was an error . . . beyond any possibility for fairminded 2 disagreement.” Burt v. Titlow, 571 U.S. 12, 19–20 (2013) (internal quotations and 3 alterations omitted). Based on the record, Petitioner has not met, and cannot meet, this 4 burden to prove his sufficiency of the evidence claim. 5 Next, Petitioner argues that an “objectively reasonable” standard of review cannot 6 be applied if the state court fails to give explicit reasoning for its dismissal. (Doc. 23 at 7 9.) When the state court’s denial of relief fails to note the court’s reasoning for denying a 8 claim, a federal court conducts its own “independent review” of the record, as the Court 9 has done here. See, e.g., Haney v. Adams, 641 F.3d 1168, 1171 (9th Cir. 2011) (internal 10 citation omitted). On this independent review, the Court applies the AEDPA’s deferential 11 standard of review to determine itself if the state court’s denial of relief was objectively 12 unreasonable. Id. As mentioned above, an independent review of the record shows that 13 Petitioner’s claim lacks any merit. Thus, Petitioner’s argument is unpersuasive. 14 The Court agrees with the R&R that Petitioner has failed to prove the state court’s 15 denial of relief was objectively unreasonable and Petitioner’s objections are overruled. 16 Ground 1 must therefore be denied. 17 C. Ground 2 18 Petitioner next objects to the R&R on Ground 2. He argues that he was denied 19 counsel at a critical stage of the proceedings, the Dessureault hearing, violating his Sixth 20 Amendment rights.2 (Doc. 23 at 12–13.) In addition, Petitioner contends that the state 21 courts applied the incorrect standard and should have instead applied the test set forth in 22 United States v. Cronic, 466 U.S. 648 (1984). 23 First, Petitioner’s counsel’s absence from the Dessureault hearing did not violate 24 the Sixth Amendment. Counsel’s “strategic choices made after thorough investigation of 25 law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 26 U.S. at 690. His counsel informed the Superior Court that the Dessureault hearing did not

27 2 “The purpose of a Dessureault hearing is to determine if the circumstances surrounding a pretrial identification of the defendant were unduly suggestive so as to give rise to a 28 very substantial likelihood of irreparable misidentification.” State v. Smith, 123 Ariz. 243, 248 (1979). 1 apply to Petitioner. (Doc. 11-3 at 104.) Petitioner has never alleged that his counsel failed 2 to thoroughly investigate the law and facts underlying this decision. As the state habeas 3 trial court noted, “it is reasonable for counsel not to want his client exposed to the victims 4 during a hearing thereby solidifying out-of-court identification.” (Doc. 18 at 26.) Given 5 the clear strategic decision, Petitioner fails to prove a Sixth Amendment violation. For 6 these reasons, the Court overrules Petitioner’s objection. 7 Second, the state courts were correct to apply the Strickland standard. It is true 8 that, in certain circumstances, high risk of prejudice requires a presumption of 9 constitutional error. Cronic, 466 U.S. at 659. This includes cases in which a defendant is 10 “denied counsel at a critical stage of his trial.” Id. There are two reasons why the 11 Cronic’s standard does not apply. First, the Cronic standard does not apply when a 12 defendant’s counsel strategically decides not to attend a hearing, which was the case here. 13 See, e.g., Bell v. Cone, 535 U.S. 685, 696–97 (2002) (explaining that Cronic’s first prong 14 applies only to defendants who have “actually or constructively been denied counsel by 15 government action”). Second, Petitioner has pointed to no case law to support classifying 16 the Dessureault hearing as a “critical stage” of the proceedings. It was therefore proper to 17 apply the Strickland test. Petitioner has not shown, and this Court does not find, that the 18 R&R’s conclusions on this claim were contrary to, or an unreasonable application of 19 Strickland. (Doc. 18 at 26.) Ground 2 must therefore be denied. 20 D. Ground 3 21 Petitioner objects to the R&R’s conclusion that this claim was procedurally 22 defaulted, arguing the claim was in fact presented to the state habeas trial court. (Doc. 23 23 at 14.) Reviewing the record de novo, the court agrees with the R&R. (Doc. 18 at 27.) 24 Although Petitioner challenged the method of identification, this concern was not 25 asserted as an independent ground for relief. Rather, it was noted in furtherance of 26 Petitioner’s request for relief under Ground 2. (Doc. 11-4 at 88–93.) As noted in the 27 R&R, he has not shown cause or prejudice to excuse this default, especially considering 28 that he never asserts his absence from the crime scene. See Coleman, 501 U.S. at 724. 1 Even if this Court agreed with Petitioner and addressed the merits, his claim still 2 fails. In Arizona, courts apply the Biggers factors to determine likelihood of 3 misidentification. See State v. Moore, 222 Ariz. 1, 7 (2009). These factors include the 4 opportunity of the witness to view the criminal at the time of the crime, the witness’ 5 degree of attention, the accuracy of the witness’ prior description of the criminal, the 6 level of certainty demonstrated by the witness at the confrontation, and the length of time 7 between the crime and confrontation. Neil v. Biggers, 409 U.S. 188, 199 (1972). The state 8 court’s reliability determination was reasonable given the witness’ opportunity to view 9 the criminal and the minimal time that elapsed between the crime and identification. 10 Petitioner has never alleged his absence from the crime scene, and the victims testified he 11 was there. (Doc. 18 at 26.) 12 Based on a review of the record, Petitioner has not shown, and this Court does not 13 find, that the R&R’s conclusions on this claim were contrary to, or an unreasonable 14 application of federal law. (Doc. 18 at 27.) The Court therefore overrules Petitioner’s 15 objection and denies relief on Ground 3. 16 E. Ground 4 17 Petitioner objects to the R&R’s dismissal of Ground 4, arguing that despite the 18 procedural default, Petitioner has successfully established cause and prejudice. (Doc. 23 19 at 14.) Reviewing the record de novo, the Court agrees with the R&R’s conclusion that 20 Petitioner fails to establish that requirement. (Doc. 18.) 21 When a defendant has defaulted on federal claims in state court, federal review of 22 the claims is barred unless the petitioner can prove either (1) cause for the default and 23 actual prejudice, or (2) that failure to consider the claims will result in a fundamental 24 miscarriage of justice. Coleman, 501 U.S. at 724. A showing of cause “must ordinarily 25 turn on whether the prisoner can show that some objective factor external to the defense 26 impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 27 477 U.S. 478, 479 (1986). To show prejudice, a petitioner must demonstrate “that the 28 errors . . . worked to his actual and substantial disadvantage, infecting his entire 1 [proceeding] with errors of constitutional dimension.” White v. Lewis, 874 F.2d 599, 603 2 (9th Cir. 1989) (citation omitted) (emphasis in original). The burden is on the petitioner 3 to establish cause and prejudice. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998). 4 Petitioner defaulted this claim by failing to present it before the state appellate 5 court. (Doc. 18 at 27.) While Petitioner argues he has established cause and prejudice, the 6 Court finds that the record does not support that contention. Petitioner has not alleged an 7 independent constitutional violation by the performance of his Rule 32 appointed counsel 8 and mere “ignorance or inadvertence” of counsel does not qualify as “cause.” Coleman, 9 501 U.S. at 753. Although Martinez created a limited exception to this rule, the exception 10 only applies to claims of ineffective assistance of trial counsel, a claim not implicated 11 here. Martinez v. Ryan, 566 U.S. 1, 8 (2012). Because Petitioner has failed to show that 12 “some objective factor external to the defense impeded” his efforts to “comply with the 13 state procedural rule,” he fails to show excusable cause for the default. Murray, 477 U.S. 14 at 479. Moreover, the Court finds that Petitioner shows no prejudice beyond speculation, 15 much less “actual and substantial disadvantage.” White, 874 F.2d at 603. 16 There has also been no showing of a fundamental miscarriage of justice. To show 17 a fundamental miscarriage of justice, Petitioner must establish “that under the probative 18 evidence he has a colorable claim of factual innocence.” Sawyer v. Whitley, 505 U.S. 333, 19 339–40 (1992). This means the petitioner must establish by clear and convincing 20 evidence that no reasonable factfinder could have found him guilty of the charged 21 offenses. See Dretke v. Haley, 541 U.S. 386, 393 (2004). As described above, the record 22 is clear that Petitioner cannot meet that high threshold. 23 Petitioner has not shown, and this Court does not find, that the R&R’s conclusions 24 on this claim were contrary to, or an unreasonable application of Federal law. (Doc. 18 at 25 27–28.) Ground 4 must therefore be denied. 26 F. Ground 12 27 The next objection relates to a supposed constitutional violation for ineffective 28 assistance of counsel. Petitioner continues to assert a violation of procedural due process, 1 the “Federal statute of limitations protection against intentional and prejudicial 2 preaccusation delay,” and the Sixth Amendment speedy trial guarantee. (Doc. 23 at 2.) 3 The Magistrate Judge concluded that Petitioner procedurally defaulted this claim and 4 Petitioner does not object to that conclusion. (Doc. 18 at 46; Doc. 23.) The Court 5 therefore need not review the R&R’s conclusion on this point. See Thomas v. Arn, 474 6 U.S. 140, 149 (1985). The Court nonetheless has reviewed the record and agrees that 7 Petitioner procedurally defaulted on this claim. 8 The question, then, is whether there is cause and prejudice. Coleman, 501 U.S. at 9 724. As previously noted, the burden is on the petitioner to establish both cause and 10 prejudice. Correll, 137 F.3d at 1415. The Court agrees with the R&R that Petitioner has 11 failed to establish cause and prejudice or actual, factual innocence. (Doc. 18 at 28.) The 12 Court therefore overrules Petitioner’s objection on this ground and denies relief for 13 Ground 12. 14 G. Ground 13 15 Petitioner objects to the R&R’s dismissal of Ground 13, arguing that R&R’s 16 conclusions related to alleged prosecutorial misconduct at grand jury proceedings were 17 contrary to or an unreasonable application of clearly established federal law. (Doc. 23 at 18 17–21.) Petitioner’s arguments are not persuasive. 19 In Arizona, a county attorney must inform a grand jury that “the defendant has 20 requested to appear or has submitted exculpatory evidence.” Trebus v. Davis in & for 21 Cnty. of Pima, 189 Ariz. 621, 625 (1997). A county attorney, however, need not present 22 all exculpatory evidence to the grand jury if the grand jury does not so request. Id. 23 Rather, a county attorney must present “clearly exculpatory” evidence of such weight that 24 it might deter the grand jury from finding the existence of probable cause. State v. 25 Coconino Cnty. Superior Ct. (Mauro), 139 Ariz. 422, 425 (1984) (citing United States v. 26 Ciambrone, 601 F.2d 616, 623 (2d. Cir. 1979)). 27 Although Petitioner argues that his testimony would have been “clearly 28 exculpatory,” the Court need not resolve the question. As discussed in the R&R, “reversal 1 of a conviction after a trial free from reversible error cannot restore to the defendant 2 whatever benefit might have accrued to him from a trial on an indictment returned 3 [without error].” United States v. Mechanik, 475 U.S. 66, 71 (1986). Furthermore, “any 4 constitutional error in the grand jury proceedings” is thus “harmless because [defendant] 5 was ultimately convicted of the offenses charged.” Williams v. Stewart, 441 F.3d 1030, 6 1042 (9th Cir. 2006). The case law is therefore clear that Petitioner’s Ground 13 claim 7 cannot survive. The Court therefore denies this claim. 8 H. Miscellaneous Motions 9 Before the Court are also three motions. (Docs. 25, 30, 34.) Petitioner filed the 10 first two––a Motion for Alternative Dispute Resolution for Remedial Settlement and a 11 Motion for Discovery. (Docs. 25, 30.) Respondents oppose Petitioner’s motion for 12 dispute resolution. (Doc. 28.) The Court agrees with Respondents’ position that 13 Petitioner’s request for a settlement conference is untimely and futile. (Id. at 3.) This 14 request is untimely because Petitioner raises this, supposedly for the first time, after years 15 of litigation and after Magistrate Judge Bibles has issued her R&R. See 28 U.S.C. 16 § 652(a); LRCiv 83.10. The Court agrees with the Respondents’ position that any 17 settlement conference at this time would be futile given the stage of this litigation. 18 Petitioner also filed a Motion for Discovery. (Doc. 30.) The Court has reviewed the 19 Motion for Discovery and finds no basis to order discovery. The Court therefore denies 20 both of Petitioner’s motions. (Doc. 25, 30.) 21 Petitioner then filed a Supplemental Objection over two months after his original 22 objections were due. (Doc. 33.) Respondents moved to strike this supplement as 23 untimely. (Doc. 34.) Petitioner did not respond. See Currie v. Maricopa Cnty. Cmty. Coll. 24 Dist., 2008 WL 2512841, at *2 n.1 (D. Ariz. 2008) (“Plaintiff does not respond to this 25 argument, and her failure to do so serves as an independent basis upon which to grant 26 [the] motion . . . .”) (citing LRCiv 7.2(i)). The Court agrees with Respondents and grants 27 the Motion to Strike (Doc. 34). See Akinola v. Kline, No. CV-17-02975-PHX-DJH, 2018 28 WL 3094174, at *1 (D. Ariz. June 22, 2018) (striking a habeas petitioner’s supplemental 1 objection “as being non-compliant with the Local Rules”). The Court, however, notes 2 that even if it were to consider this supplement, it would not impact this Court’s decision. 3 I. Certificate of Appealability 4 Before Petitioner can appeal this Court’s judgment, a certificate of appealability 5 must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b)(1). Because this Court 6 rendered the judgment denying the Petition, the Court must either issue a certificate of 7 appealability or state why a certificate should not issue. See id. A certificate may issue 8 “only if the applicant has made a substantial showing of the denial of a constitutional 9 right.” 28 U.S.C. § 2253(c)(2). A substantial showing is made when the resolution of an 10 issue of appeal is debatable among reasonable jurists, if courts could resolve the issues 11 differently, or if the issue deserves further proceedings. See Slack v. McDaniel, 529 U.S. 12 473, 484–85 (2000). Upon its own review of the record considering the standards for 13 granting a certificate of appealability, the Court agrees with the R&R’s conclusion and 14 will not issue a certificate of appealability. 15 IV. CONCLUSION 16 Accordingly, 17 IT IS ORDERED adopting the Report and Recommendation (Doc. 18). 18 IT IS FURTHER ORDERED denying the Petition (Doc. 1) and dismissing it 19 with prejudice. 20 IT IS FURTHER ORDERED declining to issue a certificate of appealability. 21 IT IS FURTHER ORDERED denying Petitioner’s Request for Alternative 22 Dispute Resolution for Remedial Settlement (Doc. 25). 23 IT IS FURTHER ORDERED denying Petitioner’s Motion for Discovery (Doc. 24 30). 25 IT IS FURTHER ORDERED granting Respondents’ Motion to Strike (Doc. 26 34). 27 /// 28 /// 1 IT IS FINALLY ORDERED directing the Clerk of Court to enter judgment, terminating this case. 3 Dated this Ist day of July, 2021. 4 Wichal T. Hburde Michael T. Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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