Michael A Garner v. Mark Gutierrez

• Court: District Court, D. Arizona
• Decided: April 8, 2026
• Docket: 4:25-cv-00017
• Status: Unknown

Opinion

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

9 Michael A Garner, No. CV-25-00017-TUC-RM (JR)

10 Petitioner, REPORT & RECOMMENDATION

11 v.

12 Mark Gutierrez,

13 Respondent. 14 15 16 Before the Court is Petitioner Michael A Garner’s (“Petitioner”) Petition Under 17 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody (“Petition”). 18 (Doc. 1.) Respondent filed Respondent’s Return and Answer to Petition For a Writ of 19 Habeas Corpus Under 28 U.S.C. § 2241 (“Answer”). (Doc. 14.) Petitioner filed his reply. 20 (Doc. 19.) Pursuant to Local Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, 21 this matter was referred to United States Magistrate Judge Jacqueline Rateau for Report 22 and Recommendation. (Doc. 5.) 23 As more fully set forth below, the undersigned recommends that the district court, 24 after independent review of the record, dismiss the Petition. 25 I. BACKGROUND1 26 1. Court-Martial Proceedings 27 On April 26, 2008, a general court-martial with members found Petitioner guilty of

28 1 Unless otherwise indicated all factual references are taken from exhibits attached to Respondent’s Answer. 1 rape, forcible sodomy, indecent assault of his biological daughter, possessing child 2 pornography, desertion, and disobeying a no-contact order in violation of Articles 120, 3 125, 134, 85, and 90 of the Uniform Code of Military Justice (UCMJ). 10 U.S.C. §§ 920, 4 925, 934, 885, 890 (2006). (See Doc. 14-1.) Petitioner was sentenced to be reduced to the 5 grade of E-1; to forfeiture of all pay and allowances; to be confined for life; and to be 6 dishonorably discharged from the service. (See Doc. 14-11 at 4.) 7 2. Military Appeals 8 On December 16, 2010, Petitioner filed an appellant brief and Grostefon2 brief to 9 the United States Army Court of Appeals (“ACCA”). (Docs. 14-2, 14-3.) Petitioner’s 10 Grostefon brief made several claims: ineffective assistance of counsel (“IAC”) for failure 11 to thoroughly investigate and present certain witnesses, error by the trial court in admitting 12 certain testimony, and error in the court’s failure to suppress a search. (See Doc. 14-2.) 13 Petitioner’s appellant brief claimed IAC for failure to present sentencing evidence and 14 sufficiency of the evidence for Charge III pertaining to viewing or possessing child 15 pornography. (See Doc. 14-3.) 16 On November 29, 2011, the ACCA affirmed the findings with regard to the IAC 17 claims, as well as the sufficiency of Charge III, and the sentence. United States v. Garner, 18 No. ARMY 20020401, 2011 WL 6088629 (A. Ct. Crim. App. Nov. 29, 2011); see also 19 (Doc. 14-10.) 20 On June 4, 2012, Petitioner filed an appellant brief to the United States Court of 21 Appeals for the Armed Forces (“CAAF”), alleging the trial court erred by failing to give a 22 sentencing instruction upon reconsideration. (Doc. 14-6.) On January 8, 2013, the CAAF 23 affirmed the ACCA’s decision except as to the finding of guilt as to Specification 1 of 24 Charge III, Indecent Assault, which the CAAF reversed, and as to the sentence. (Doc. 14- 25 7.) The CAAF found that Specification 1 of Charge III failed to state an offense and 26 remanded the case to the ACCA for further consideration and resentencing. (Id.)

27 2 United States v. Grostefon, 12 M.J. 431, 436-37 (1982), “allows an appellant to raise matters independent of the brief filed by his counsel on his behalf but does not require 28 those matters to be briefed.” Threats v. Howard, 2023 WL 8112601, at *2 (D. Ariz. March 24, 2023). 1 On February 22, 2013, the ACCA set aside and dismissed its finding of guilt as to 2 Specification 1 of Charge III. (Doc. 14-8 at 2.) The ACCA stated, “reassessing the sentence 3 on the basis of the error noted, the entire record, and in accordance with the principles of 4 United States v. Sales, 22 M.J. 305 (C.M.A. 1986) and United States v. Moffeit, 23 M.J. 40 5 (C.A.A.F. 2006)…the court affirms the sentence.” (Id.) 6 3. 2022 Petition for Writ of Habeas Corpus 7 On January 14, 2022, Petitioner filed a Petition for Writ of Habeas Corpus in this 8 Court alleging that his sentences should be vacated based on newly discovered mitigating 9 evidence of metal illness that trial counsel withheld during the sentencing phase of the 10 court-martial. See Garner v. Colbert, 2022 WL 21747982, at *3 (D. Ariz. Oct. 20, 2022.) 11 On October 20, 2022, this Court dismissed that petition because it found Petitioner failed 12 to raise the claim in his military proceedings, and he could not establish cause and prejudice 13 excusing the waiver. Id. at *7. Petitioner appealed the dismissal to the United States Court 14 of Appeals for the Ninth Circuit. The Ninth Circuit affirmed the Court’s findings holding 15 that Petitioner waived his claim and the Court did not abuse its discretion by denying that 16 petition without an evidentiary hearing. Garner v. Colbert, 2024 WL 3311137, at *1-2 (9th 17 Cir. July 5, 2024). 18 4. Petition, Answer, and Summary of Conclusion 19 Petitioner now seeks relief on one ground, namely, that he is actually innocent of 20 the charges of which he was convicted. (Doc. 1 at 6.) Petitioner alleges that there is no 21 physical or medical evidence which would support his conviction. (Id. at 6-7.) Petitioner 22 requests the District Court find him innocent of the charges and grant him immediate 23 release. (Id. at 8.) 24 Respondent seeks dismissal of the Petition on three grounds: (1) that the Petition is 25 an abuse of writ; (2) that Petitioner’s claim is waived; and (3) that Petitioner’s claim was 26 given full and fair consideration by the military courts. (Doc. 14 at 2.) In sum, Respondent 27 argues that Petitioner does not present a claim that is reviewable by the Court and therefore 28 the Petition should be denied. (Id.) 1 As more fully set forth below, this Court finds Petitioner has failed to raise a 2 constitutional claim for which relief may be granted, the Petition is an abuse of writ, and 3 Petitioner’s claim of actual innocence is procedurally barred. 4 II. LEGAL STANDARD 5 1. District Court Review of Court-Martial Proceedings is Strictly Limited 6 The plaintiff bears the burden of establishing the propriety of the court's jurisdiction. 7 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673 (1994). 8 “Title 28 U.S.C. § 2241 ‘vests federal courts with jurisdiction over applications for habeas 9 corpus from persons confined by the military courts.’” Johnson v. Rodriguez, 2022 WL 10 2119136, at *2 (C.D. Cal. Apr. 27, 2022), report and recommendation adopted, 2022 WL 11 2866671 (C.D. Cal. July 20, 2022) (quoting Burns v. Wilson, 346 U.S. 137, 139 (1953)). 12 “Servicemen who were convicted and sentenced by courts-martial may file habeas petitions 13 in the district in which they are in custody.” Johnson, 2022 WL 2119136, at *2 (citing 14 Hubbard v. United States, 7 F.4th 1228, 1231 (9th Cir. 2021)). “Court-martials ‘are thus 15 collaterally reviewable for constitutional or jurisdictional error.’” Johnson, 2022 WL 16 2119136, at *2 (quoting Davis v. Marsh, 876 F.2d 1446, 1448 (9th Cir. 1989)). 17 Habeas review is limited, however, if the petitioner is in custody pursuant to a 18 judgment imposed by a military court-martial. Erickson v. Shartle, 2019 WL 1921596 (D. 19 Ariz. Apr. 30, 2019), affirmed, Erickson v. von Blanckensee, 2021 WL 5399871 (9th Cir. 20 Nov. 16, 2021) (citing Burns, 346 U.S. at 139-42). Military law is a separate area of 21 jurisprudence with its own specialized system of rights and procedures. Burns, 349 U.S. at 22 139-42. Civilian courts must show deference to “the fair determination of the military 23 tribunals,” whose decisions are “‘final’ and ‘binding’ upon all courts.” Id. at 142. “[W]hen 24 a military decision has dealt fully and fairly with an allegation raised in [an] application 25 [for habeas corpus], it is not open to a federal civil court to grant the writ simply to re- 26 evaluate the evidence.” Id. 27 The 10th Circuit3 has set forth four specific requirements that must be met for a

28 3 Because of the presence of the military prison in Fort Leavenworth, Kansas, considerable attention to this area of law exists in the 10th Circuit. 1 collateral attack of a military conviction to proceed on the merits in a district court: 2 (1) the asserted error is of substantial constitutional dimension; (2) the issue is one of law rather than of disputed fact already 3 determined by the military tribunal; (3) there are no military considerations that warrant different treatment of 4 constitutional claims; and (4) the military courts failed to give adequate consideration to the issues involved or failed to apply 5 proper legal standards. 6 Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993) 7 (citing Dodson v. Zelez, 917 F.2d 1250 (10th Cir. 1990)). “[Factor One] is important, 8 however, as a reminder that we will only review habeas corpus petitions from the military 9 courts that raise substantial constitutional issues.” Roberts v. Callahan, 321 F.3d 994, 997 10 (10th Cir. 2003). Petitioner must meet each of these requirements for this Court to consider 11 the merits of his case. Id. at 996-97. 12 2. Failure to Exhaust Remedies Further Limits Scope of Review 13 If a petitioner fails to raise an issue before the military courts of appeal, it is waived 14 and barred from review absent a showing of cause and prejudice. Davis, 876 F.2d at 1448. 15 Davis held, “[w]hile the analogy between the military justice system and a state court 16 system is not perfect, the two are sufficiently congruent to justify adopting an identical 17 waiver rule.” Id. at 1450. “The Wainwright-Frady-Engle4 line of cases recognizes that if 18 there is good cause for not having advanced the particular matter relied on in the federal 19 collateral habeas corpus proceeding at trial, and there is actual prejudice, then federal relief 20 may be available.” Wolff v. United States, 737 F.2d 877, 880 (10th Cir. 1984). 21 To establish cause required to overcome a procedural bar to federal habeas review, 22 a “petitioner must assert that the procedural default is due to an objective factor that is 23 external to the petitioner and that cannot fairly be attributed to him.” Manning v. Foster, 24 224 F.3d 1129, 1133 (9th Cir. 2000) (citing Coleman v. Thompson, 501 U.S. 722, 753 25 (1991)) (additional citation omitted). Cause is demonstrated when a petitioner establishes 26 that “some external impediment prevent[ed] counsel from constructing or raising the 27

28 4 Wainwright v. Sykes, 433 U.S. 72 (1977); United States v. Frady, 456 U.S. 152 (1982); Engle v. Isaac, 456 U.S. 107 (1982). 1 claim.” Murray v. Carrier, 477 U.S. 478, 479 (1986). In addition to establishing cause, a 2 petitioner must also show “‘actual prejudice’ resulting from the errors of which he 3 complains.” United States v. Frady, 456 U.S. 152, 168 (1982). This requires “a reasonable 4 probability that, absent errors, the factfinder would have had a reasonable doubt respecting 5 guilt.” Strickland v. Washington, 466 U.S. 668, 695 (1984). 6 The Supreme Court has recognized, however, that “the cause and prejudice standard 7 will be met in those cases where review of a state prisoner's claim is necessary to correct 8 ‘a fundamental miscarriage of justice.’” Coleman, 501 U.S. at 748 (quoting Engle v. Isaac, 9 456 U.S. 107, 135 (1982)). “The fundamental miscarriage of justice exception is available 10 ‘only where the prisoner supplements his constitutional claim with a colorable showing of 11 factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404 (1993) (emphasis in original) 12 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)). Thus, “‘actual innocence’ is not 13 itself a constitutional claim, but instead a gateway through which a habeas petitioner must 14 pass to have his otherwise barred constitutional claim considered on the merits.” Herrara, 15 506 U.S. at 404; see also Schlup v. Delo, 513 U.S. 298, 315 (1995). Petitioner must 16 establish new facts that “raise[ ] sufficient doubt about [his] guilt to undermine confidence 17 in the result of the trial without the assurance that that trial was untainted by constitutional 18 error.” Schlup, 513 U.S. at 317; see also Narula v. Yakubisin, 650 Fed. App'x 337 (9th Cir. 19 2016). 20 III. ANALYSIS 21 Petitioner's sole claim for relief is that he is “actually innocent” of the charges 22 against him. (Doc. 1 at 6.) As discussed in Section II, supra, habeas relief is available only 23 to those alleging a constitutional violation. Herrara, 506 U.S. at 404; see also Schlup, 513 24 U.S. at 315. Here, Petitioner has not explicitly alleged any constitutional violation in his 25 Petition (see Doc. 1) and has failed to establish new facts that “raise[ ] sufficient doubt 26 about [his] guilt to undermine confidence in the result of the trial without the assurance 27 that that trial was untainted by constitutional error.” Schlup, 513 U.S. at 317; see also 28 Narula, 650 Fed. App'x 337. As such, the Petition (Doc. 1) should be dismissed. The Court 1 will, however, give Petitioner's claims their broadest construction and address each 2 supporting argument in turn. 3 1. Petitioner does not raise a substantial constitutional issue, and his factual 4 allegations were fully and fairly considered by the military courts 5 It is the limited function of the civil courts to determine whether the military have 6 given fair consideration to each of [Petitioner's] claims.” Burns, 346 U.S. at 144, (citations 7 omitted). The Court “will entertain military prisoners’ claims if they were raised in the 8 military courts and those courts refused to consider them.” Watson v. McCotter, 782 F.2d 9 143, 145 (10th Cir. 1986). However, “when an issue is briefed and argued before a military 10 board of review, we have held that the military tribunal has given the claim fair 11 consideration[.]” Id. As such, “when a military decision has dealt fully and fairly with an 12 allegation raised in that application, it is not open to a federal civil court to grant the writ 13 simply to re-evaluate the evidence.” Burns, 346 U.S. at 142 (citing Whelchel v. McDonald, 14 340 U.S. 122, 71 S. Ct. 146, 95 L. Ed. 141 (1950)); see also Roberts, 321 F.3d at 995; Lips, 15 997 F.2d at 808, 810, 811. 16 Here, Petitioner asserts that he is actually innocent of the crimes for which he was 17 convicted, but does not argue a specific substantial constitutional error or legal issue 18 occurred as required for civil court review under Dodson, but instead makes the following 19 factual allegations: 20 1. His son “D.G.” and Petitioner’s biological daughter “S.G.,” the victim, were in 21 a sexual relationship; 22 2. D.G. and S.G. had sexual encounters on the Petitioner’s blue and white 23 comforter in Petitioner’s residence; 24 3. Semen detected on the blue and white comforter did not positively identify 25 Petitioner as the contributor; 26 4. Evidence obtained from the comforter “more likely than not” proves Petitioner’s 27 innocence; 28 5. Petitioner has never confessed to any sexual acts with S.G., while D.G. and S.G. 1 continue to engage in sexual activities per phone conversations between 2 Petitioner and D.G. as recently as 2022; 3 6. No physical or medical evidence of sexual intercourse between Petitioner and 4 S.G. exists. 5 (Id. at 6-7.) 6 Attached to the Petition is a February 25, 2008 motion in limine filed by Petitioner’s 7 trial defense counsel and the corresponding military court order titled “Supplemental 8 Findings and Ruling on Defense Motion in Limine to Introduce MRE 412 Evidence.” (Doc. 9 1-1 at 1-7.) Upon motion by Petitioner’s defense counsel, the Military Court made the 10 following findings of fact by a preponderance of the evidence: 11 a. [S.G.] and [D.G.] engaged in sexual acts including oral sex and intercourse. 12 b. At least some of the sexual acts between [S.G.] and [D.G.] 13 occurred on the blue and white comforter that was seized from [Petitioner’s] quarters. 14 c. There are five semen stains on the comforter that could be 15 derived from [Petitioner] or from [D.G.]. 16 d. It is not possible to tell from the DNA testing conducted on the comforter whether [Petitioner] or [D.G.] contributed to 17 these five semen stains as both their DNA is present in the mixed sample. 18 19 (See id. at 1-2.) 20 As such, assuming arguendo that Petitioner’s factual claims imply a constitutional 21 error, the military courts fully and fairly considered such claims by allowing Petitioner to 22 introduce evidence supporting those claims during the court martial proceedings, making 23 a finding of fact regarding those factual claims, and considering those same facts during 24 Petitioner’s appeal process. (Docs. 1-1 at 1-7, 14-2 at 8 n.3.) Accordingly, the record 25 clearly supports a finding that Petitioner “enjoyed the hallmark of full and fair 26 consideration on the issue he now brings in [the Petition].” Threats v. Howard, 2023 WL 27 8112601, at *8 (D. Ariz. Mar. 24, 2023.) 28 Therefore, the undersigned recommends that the district court dismiss the Petition 1 as the Petitioner’s claims were fully and fairly considered by the military courts. 2 2. Petitioner’s claim is unexhausted and should be rejected as procedurally 3 barred 4 In his appeal before the Army Court of Criminal Appeals, Petitioner raised two 5 issues for review. Garner, 2011 WL 6088629, at *1-3. First, Petitioner argued that “his 6 trial defense counsels’ performance was deficient in the pre-sentencing phase of his court- 7 martial because they called no witnesses and presented no documentary evidence.” Id. at 8 *1. Second, Petitioner argued that “he was convicted of possessing unlawful ‘images of 9 children’ when in fact all 59 of the charged images were of the same child.” Id. at *2. 10 Additionally, the Army Court of Criminal Appeals, sua sponte, considered whether 11 “Specification 1 of Charge III fail[ed] to specifically allege at least one of the three clauses 12 commonly referred to as the ‘terminal element’ of Article 134.” Id. (footnote omitted). 13 In his subsequent appeal to the Court of Appeals for the Armed Forces, that court 14 considered whether the military judge erred in failing to give a reconsideration instruction 15 to the members after examining the members’ completed initial sentence worksheet, 16 finding it ambiguous, and returning the members for further deliberations. United States v. 17 Garner, 71 M.J. 430, 431 (C.A.A.F. 2013). The armed forces appellate court also 18 considered whether the failure to allege the terminal element in Specification 1 of Charge 19 III was prejudicial error. Id. As mentioned above, the armed forces court of appeals 20 returned the record to the Judge Advocate General of the Army for remand to the Army 21 Court of Criminal Appeals for further consideration. Id. On remand, the Army Court of 22 Criminal Appeals set aside and dismissed the guilty finding on Specification 1 of Charge 23 III and affirmed Petitioner’s sentence. United States v. Garner, 2013 WL 777395, at *1 24 (C.A.A.F. Feb. 22, 2013). 25 In light of the foregoing, the Court finds the record is clear that the claim alleged in 26 this Petition—that Petitioner is actually innocent of the crime for which he was convicted 27 due to the sufficiency of the evidence—was not raised in the military courts below. In order 28 for this Court to have jurisdiction over the claim alleged in the instant Petition, Petitioner 1 must establish cause and actual prejudice for his failure to raise the claim below in his 2 military proceedings. Davis, 876 F.2d at 1448-50 (applying the analogous waiver doctrine 3 from habeas petitions originating in state court to those originating from a military 4 conviction). In his Reply, Petitioner fails to establish that cause and actual prejudice exist 5 such that this Court may consider the merits of his claim. Instead, Petitioner makes the 6 conclusory argument that his ongoing assertion of innocence is reason enough for this 7 Court to consider the Petition. (Doc. 19 at 8.) 8 Here, Petitioner does not allege any external impediment which might have caused 9 him from raising the immediate claim during his military appeal and therefore has failed 10 to establish the requisite cause for this Court to excuse his procedural default. Murray, 477 11 U.S. at 497. Accordingly, the undersigned recommends the district court dismiss the 12 Petition as procedurally barred. 13 3. The Petition abuses the writ 14 “The doctrine of abuse of writ defines the circumstances in which federal courts 15 decline to entertain a claim presented for the first time in a second of subsequent petition 16 for a writ of habeas corpus.” McClesky v. Zant, 499 U.S. 467, 470 (1991). While the second 17 or successive habeas petition prohibitions of 28 U.S.C. § 2244 may not apply to military 18 prisoners convicted by a general court martial such as petitioner, the Supreme Court 19 determined that “Congress did not intend § 2244(b) to foreclose application of court- 20 announced principles defining and limiting a district court’s discretion to entertain abusive 21 petitions.” Threats, 2023 WL 8112601, at *6 (quoting McClesky, 499 U.S. at 487). 22 Accordingly, “Under the common law ‘abuse of the writ’ doctrine, a court need not 23 entertain a petition that abuses the habeas process.” Esposito v. Ashcroft, 392 F.3d 549, 24 550 (2d Cir. 2004). 25 “[A] petitioner can abuse the writ by raising a claim in a subsequent petition that he 26 could have raised in his first, regardless of whether the failure to raise it earlier stemmed 27 from a deliberate choice.” McClesky, 499 U.S. at 489; see also James v. Walsh, 308 F.3d 28 162, 167 (2d Cir. 2002) (same); Esposito, 392 F.3d at 550 (“One frequently recognized 1 indicator of abusiveness is whether the petitioner could have asserted his present claims in 2 his prior petition.”); Delo v. Stokes, 495 U.S. 320, 321-22 (1990) (holding claims raised for 3 the first time in a fourth federal habeas petition abused the writ because they “could have 4 been raised” or “developed” in the first federal habeas petition); Kuhlmann, 477 U.S. at 5 444 n.6 (petition that raises grounds “available but not relied upon in a prior petition” is an 6 example of abuse of the writ); Straight v. Wainwright, 476 U.S. 1132, 1133 (1986) (Powell, 7 J., joined by three Justices, concurring in denial of stay) (new arguments in second petition 8 that “plainly could have been raised earlier” constitute abuse of the writ); Rose v. Lundy, 9 455 U.S. 509, 521 (1982) (plurality opinion) (prisoner who proceeds with exhausted claims 10 in first federal petition and deliberately sets aside his unexhausted claims risks dismissal 11 of subsequent federal petitions). 12 Here, despite the ability to do so, Petitioner failed to raise his current claim in his 13 first habeas petition to this Court. See Garner, 2022 WL 21747982. The record reflects 14 Petitioner was aware of the factual basis for his immediate Petition at the time he filed his 15 2022 habeas petition because, as discussed above, these same factual assertions were made 16 by his Counsel in front of the military court as early as February 2008, the military court 17 considered and made a factual finding regarding these assertions in 2009, and the same or 18 similar claims were brought up during his military appeal. (Docs. 1-1 at 1-7, 14-2 at 8.) 19 Accordingly, the undersigned alternatively recommends that the Petition be dismissed as 20 an abuse of the writ. 21 MOTION TO APPOINT COUNSEL 22 Indigent prisoners applying for habeas corpus relief “are not entitled to appointed 23 counsel unless the circumstances of a particular case indicate that appointed counsel is 24 necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 25 Cir. 1986). However, the Court has discretion to appoint counsel when “the interests of 26 justice so require.” 18 U.S.C. § 3006A(a)(2)(B). 27 Here, Petitioner has not shown, and nothing in the record indicates, appointment of 28 counsel will be necessary to prevent due process violations in the immediate matter, nor 1 || that the interests of justice compel the court to so order. Accordingly, the undersigned || recommends the district court deny Petitioner’s motion. 3 RECOMMENDATION 4 The Magistrate Judge RECOMMENDS that the district court, after its independent 5 || review, issue an order ADOPTING this Report and Recommendation and DENYING the || Petition (Doc. 1) and DENYING the Petitioner’s Motion to Appoint Counsel (Doc. 21). 7 Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file 8 || written objections within fourteen days of being served with a copy of the Report and 9|| Recommendation. A party may respond to the other party’s objections within fourteen || days. No reply shall be filed unless leave is granted by the district court. If objections are 11 |} nottimely filed, they may be deemed waived. Failure to file timely objections to any factual || or legal determination of the Magistrate Judge may be considered a waiver of a party's right 13 || to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 14}, 1121 (9th Cir. 2003) (en banc). If objections are filed, the parties should use the following 15} case number: CV-25-17-RM. 16 Dated this 7th day of April, 2026. 17

Hofforable Jacqueline M. Rateau 20 United States Magistrate Judge 21 22 23 24 25 26 27 28

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