Rosales v. Byrne

• Court: District Court, D. Nevada
• Decided: March 2, 2022
• Docket: 3:16-cv-00003
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 GARY CRAIG ROSALES, Case No. 3:16-cv-00003-RCJ-CSD 12 Petitioner, ORDER 13 v. 14 DWIGHT NEVEN, et al., 15 Respondents. 16 17 I. Introduction 18 This is a habeas corpus action under 28 U.S.C. § 2254. Currently before the court are 19 respondents' motion to dismiss (ECF No. 60) and petitioner's motion for leave to conduct 20 discovery (ECF No. 64). The court grants respondents' motion to dismiss in part, finding that 21 grounds 1 through 4 of the second amended petition (ECF No. 54) are procedurally defaulted and 22 that petitioner has not demonstrated cause and prejudice to overcome the defaults. The court 23 denies petitioner's motion for leave to conduct discovery because the motion is relevant only to 24 the now-dismissed grounds 1 and 2. 25 Also before the court is petitioner's unopposed motion for extension of time. ECF No. 72. 26 The court grants this motion. 27 28 1 II. Background 2 The parties are familiar with the procedural history of this case, and the court recites only 3 what is necessary for this order. Petitioner Gary Rosales filed a counseled first amended petition. 4 ECF No. 15. He noted that he had not presented the claims in grounds 1 through 4 to the Nevada 5 state courts. The court granted in part respondents' first motion to dismiss, finding that grounds 1 6 through 4 were not exhausted. ECF No. 37. See also 28 U.S.C. § 2254(b). The court then 7 granted Rosales' motion for a stay of this action while he pursued his state-court habeas corpus 8 remedies for the unexhausted grounds. ECF No. 47. Those state-court proceedings concluded 9 with the Nevada Court of Appeals determining that all four grounds were untimely, successive, 10 and abusive of the writ. Ex. 175 (ECF No. 51-12) (citing Nev. Rev. Stat. §§ 34.726(1), 11 34.810(1)(b)(2), 34.810(2)). Rosales returned to this court with a counseled second amended 12 petition. ECF No. 54. Respondents responded with their second motion to dismiss. ECF No. 60. 13 III. Legal Standard 14 A federal court will not review a claim for habeas corpus relief if the decision of the state 15 court regarding that claim rested on a state-law ground that is independent of the federal question 16 and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 730-31 (1991). 17 In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas 18 review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or 19 demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. 20 21 Id. at 750; see also Murray v. Carrier, 477 U.S. 478, 485 (1986). The grounds for dismissal upon 22 which the Nevada Supreme Court relied in this case are adequate and independent state rules. 23 Vang v. Nevada, 329 F.3d 1069, 1074 (9th Cir. 2003) (Nev. Rev. Stat. § 34.810); Loveland v. 24 Hatcher, 231 F.3d 640 (9th Cir. 2000) (Nev. Rev. Stat. § 34.726); Moran v. McDaniel, 80 F.3d 25 1261 (9th Cir. 1996) (same). 26 To demonstrate cause for a procedural default, the petitioner must "show that some 27 objective factor external to the defense impeded" his efforts to comply with the state procedural 28 rule. Carrier, 477 U.S. at 488. 1 To show prejudice, "[t]he habeas petitioner must show 'not merely that the errors at . . . 2 trial created a possibility of prejudice, but that they worked to his actual and substantial 3 disadvantage, infecting his entire trial with error of constitutional dimensions.'" Carrier, 477 U.S. 4 at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original). 5 An argument for cause and prejudice to excuse a procedural default must not itself be 6 procedurally defaulted. Edwards v. Carpenter, 529 U.S. 446, 453 (2000). 7 In Nevada, generally a person must raise claims of ineffective assistance of trial counsel 8 for the first time in a post-conviction habeas corpus petition. Gibbons v. State, 634 P.2d 1214 9 (Nev. 1981). In that circumstance, the ineffective assistance of initial state post-conviction 10 counsel may be cause to excuse the procedural default of a claim of ineffective assistance of trial 11 counsel. Martinez v. Ryan, 566 U.S. 1 (2012). The petitioner must demonstrate: 12 (1) post-conviction counsel performed deficiently; (2) there was a reasonable probability that, absent the deficient performance, the result of the post-conviction 13 proceedings would have been different; and (3) the underlying ineffective assistance of trial counsel claim is a substantial one, which is to say that the 14 prisoner must demonstrate that the claim has some merit. 15 Ramirez v. Ryan, 937 F.3d 1230, 1242 (9th Cir. 2019) (citations and quotations omitted). 16 IV. Discussion 17 A. Grounds 1 and 2 18 Grounds 1 and 2 of the second amended petition are related. In ground 1, Rosales claims 19 that the judge presiding over his trial, Patrick Flanagan, had an intolerable probability of actual 20 bias. Richard Gammick, the Washoe County District Attorney and alleged to be the victim of one 21 of the charged offenses, had endorsed Judge Flanagan in the 2006 general election.1 Ground 2 22 contains two claims of ineffective assistance of counsel. For ease of reference, the court breaks 23 ground 2 into two parts. In ground 2[a], Rosales claims that trial counsel provided ineffective 24 assistance by failing to request the recusal of Judge Flanagan. In ground 2[b], Rosales claims that 25 appellate counsel provided ineffective assistance by not raising the probability of Judge 26 Flanagan's bias on direct appeal. 27

28 1 The Washoe County District Attorney's Office did not prosecute Rosales. A special prosecutor did. 1 Ground 1 is procedurally defaulted. Rosales argues that the ineffective assistance of 2 either trial counsel or appellate counsel can excuse the procedural default of ground 1. Those 3 ineffective assistance claims, grounds 2[a] and 2[b], themselves are procedurally defaulted. 4 Rosales argues that the ineffective assistance of post-conviction counsel can excuse the 5 procedural defaults of grounds 2[a] and 2[b]. 6 The court thus turns first to whether Rosales can demonstrate cause and prejudice to 7 excuse the procedural defaults of ground 2[a] or ground 2[b]. If he can demonstrate cause and 8 prejudice to excuse the procedural default of one of those claims, then the court will determine 9 whether the ineffective-assistance claims in ground 2[a] or ground 2[b] can excuse the procedural 10 default of ground 1. 11 1. The court dismisses ground 2[b] 12 Ground 2[b] is the claim that appellate counsel provided ineffective assistance by not 13 raising the probability of Judge Flanagan's bias on direct appeal. Rosales' only argument for 14 cause and prejudice is Martinez, that post-conviction counsel provided ineffective assistance by 15 not raising the claim in his initial state post-conviction habeas corpus petition. However, 16 Martinez does not apply to procedurally defaulted claims of ineffective assistance of appellate 17 counsel. Davila v. Davis, 137 S. Ct. 2058 (2017). Rosales recognizes this and wishes to keep the 18 issue preserved for further review. ECF No. 63 at 5 n.1. The court dismisses ground 2[b]. 19 2. The court dismisses ground 2[a] 20 Ground 2[a] is the claim that trial counsel provided ineffective assistance by not seeking 21 Judge Flanagan's recusal because of a probability of actual bias. Again, Rosales' only argument 22 for cause and prejudice is Martinez, that post-conviction counsel provided ineffective assistance 23 by not raising the claim in his initial state post-conviction habeas corpus petition. Martinez can 24 apply to ground 2[a]. However, the court finds that the underlying claim is insubstantial, and thus 25 Rosales has not demonstrated cause and prejudice. 26 The court first disposes of Rosales' invocation of Caperton v. A.T. Massey Coal Co., 556 27 U.S. 868, 885 (2009). For the issue of bias, the facts of Caperton are nothing like the facts of this 28 case. 1 Caperton arose out of the West Virginia state courts. A jury awarded Caperton and co- 2 plaintiffs $50 million in damages. The trial court denied Massey's motion for a new trial. 3 Massey appealed. 4 In West Virginia judges are democratically elected. An election for a seat on the West 5 Virginia Supreme Court of Appeals was scheduled for a time before that court could consider 6 Massey's appeal. The principal officer of Massey personally donated the legal maximum to the 7 challenger, Benjamin, and he also raised in total $3 million for other organizations to support 8 Benjamin and oppose the incumbent, Justice McGraw. Benjamin won the election and became a 9 Justice of the West Virginia Supreme Court of Appeals. Justice Benjamin declined to recuse 10 himself from Massey's appeal. Massey prevailed on the appeal, 3-2. Caperton sought rehearing. 11 Caperton sought recusal of Justice Benjamin and one other justice. Massey sought recusal of a 12 third justice. The other two justices recused themselves. Justice Benjamin did not. On rehearing, 13 the West Virginia Supreme Court of Appeals, with two judges sitting by designation, affirmed its 14 earlier decision. 15 The Supreme Court of the United States granted Caperton's petition for a writ of 16 certiorari. It determined that Justice Benjamin's decision not to recuse himself created an 17 intolerable probability of actual bias that violated the Due Process Clause of the Fourteenth 18 Amendment. The Court held, "We conclude that there is a serious risk of actual bias—based on 19 objective and reasonable perceptions—when a person with a personal stake in a particular case 20 had a significant and disproportionate influence in placing the judge on the case by raising funds 21 or directing the judge's election campaign when the case was pending or imminent." Caperton, 22 556 U.S. at 884. 23 Rosales' case is nothing like Caperton. The grand jury indicted Rosales on April 20, 2005. 24 Ex. 19 (ECF No. 16-19). Rosales' case was assigned to Judge Steven R. Kosach no later than 25 May 6, 2005. See Ex. 23 (ECF No. 16-23) (transcript of arraignment). Gammick endorsed Judge 26 Flanagan in the 2006 general election. Rosales pleaded guilty before Judge Kosach on July 20, 27 2007, more than 8 months after the general election. Ex. 37 (ECF No. 17-11). Rosales appealed. 28 On March 4, 2009, the Nevada Supreme Court determined that Judge Kosach had improperly 1 participated in the plea negotiations between Rosales and the prosecution; the Nevada Supreme 2 Court reversed the judgment of conviction and remanded for the case to be assigned to a different 3 state district judge. Ex. 52 (ECF No. 17-26). The Clerk of the Second Judicial District Court 4 randomly assigned the case to Judge Flanagan on April 8, 2009. Ex. 55 (ECF No. 17-29). Judge 5 Flanagan accepted the assignment the same day. Ex. 56 (ECF No. 18) (filing date one day later 6 than signature date). All this occurred more than two years after the 2006 general election. 7 Unlike Caperton, in which Massey's primary officer donated to the campaign of a candidate, and 8 funded separate campaigns in support of that candidate, to a court which would hear Massey's 9 appeal after the election, Gammick had no way of knowing at the time of the 2006 general 10 election that Judge Flanagan would preside over Rosales' case after a guilty plea before Judge 11 Kosach, a reversal and remand by the Nevada Supreme Court, and a random assignment to Judge 12 Flanagan. Caperton is inapplicable to Rosales' case. 13 Second, in the underlying ground 1 is an argument that the prosecution and the judge 14 failed to disclose Gammick's endorsement of Judge Flanagan. As respondents correctly note, 15 Gammick's endorsement of Judge Flanagan was widely known, at the very least among the 16 Washoe County legal community. ECF No. 71 at 6 (citing ECF No. 54 at 19). This was not 17 something that anyone was hiding. The whole point of an endorsement of a candidate in an 18 election is to make it as widely known as possible, to persuade people to vote for that candidate. 19 An endorsement kept secret is no endorsement at all. 20 Third, the court agrees with respondents that trial counsel had sound reasons not to seek 21 recusal of Judge Flanagan. Even if trial counsel did raise the issue, and even if Judge Flanagan 22 did recuse himself, that success would not have resulted in the dismissal of charges against 23 Rosales.2 It only would have resulted in a trial before a different judge. 24 Rosales has taken Gammick's endorsement of Judge Flanagan out of context. It is true 25 that Gammick, the Washoe County District Attorney at the time, endorsed Judge Flanagan. Ex. 26 2 Rosales might have had that unreasonable belief. In one of his letters to post-conviction counsel Janet Bessemer, 27 Rosales seemed to think that the reversal and remand of his guilty plea should have resulted in a sentence for time already served, not a trial. Ex. 159 (ECF No. 39-2 at 3). See also Ex. 160 (ECF No. 39-3 at 2-3) (letter from 28 Bessemer to Rosales). 1 155, 156 (ECF No. 19-42, 19-43). However, among other endorsees were Dorothy Nash Holmes, 2 former Washoe County District Attorney, Jeremy Bosler, the Washoe County Public Defender at 3 the time, and Michael Specchio, former Washoe County Public Defender. Id. Judge Flanagan's 4 career included time as the Chief Deputy Washoe County Public Defender and time as an 5 Assistant Federal Public Defender. The court agrees with respondents that trial counsel 6 reasonably could have concluded that Judge Flanagan was a fair-minded judge. 7 For all these reasons, the court concludes that ground 2[a], that trial counsel provided 8 ineffective assistance by not seeking Judge Flanagan's recusal, is insubstantial. Rosales thus has 9 not demonstrated cause and prejudice to excuse the procedural default of ground 2[a], and the 10 court dismisses it. 11 3. The court dismisses ground 1 12 Ground 1 is the substantive claim underlying grounds 2[a] and 2[b], that Judge Flanagan 13 had an intolerable probability of actual bias due to Gammick's endorsement of him. Rosales' 14 arguments to excuse the procedural default of ground 1 were that trial counsel and appellate 15 counsel provided ineffective assistance by not raising the issue in the trial court or on appeal, 16 respectively. The court has determined that Rosales could not overcome the procedural defaults 17 of grounds 2[a] and 2[b], and thus those grounds cannot be cause and prejudice to overcome the 18 procedural default of ground 1. Carpenter, 529 U.S. at 453. 19 Additionally, even if ground 2[a] were not procedurally defaulted, it could not provide 20 cause and prejudice to excuse the procedural default of ground 1. The claim that Judge Flanagan 21 had an intolerable probability of actual bias is a claim that Rosales could have raised on direct 22 appeal even if he did not raise the issue in the trial court. The Nevada Supreme Court likely 23 would have conducted a plain-error analysis, but it would have ruled on the merits of the claim. 24 Consequently, the lack of a recusal motion by trial counsel could not have been the cause of the 25 procedural default of ground 1. Appellate counsel's not raising the bias issue on direct appeal is 26 the cause of the procedural default of ground 1. As the court has discussed above with respect to 27 ground 2[b], the claim of ineffective assistance of appellate counsel is procedurally defaulted, and 28 1 Rosales has no applicable argument for cause and prejudice to excuse that procedural default. 2 Consequently, there is no way that the procedural default of ground 1 can be excused. 3 For these reasons, the court dismisses ground 1. 4 B. Ground 3 5 Ground 3 concerns the way Rosales was prosecuted. Because Gammick was alleged to be 6 the victim of one of the offenses, the Washoe County District Attorney's Office recused itself due 7 to the conflict of interest. Tom Barb was the special prosecutor for Rosales' trial. Rosales alleges 8 that Barb had a similar conflict of interest because Barb had worked for Gammick at the Washoe 9 County District Attorney's Office while the offenses occurred, he used office space at the Washoe 10 County District Attorney's Office, and he used an investigator employed by the Washoe County 11 District Attorney's Office. In ground 3(a), Rosales alleges that trial counsel failed to see his 12 efforts to disqualify Barb through to completion. Trial counsel filed a motion to disqualify Barb, 13 the trial court held a hearing on the matter, the trial court denied the motion, but trial counsel 14 failed to file a petition for a writ of mandamus with the Nevada Supreme Court that raised the 15 same issue. In ground 3(b), Rosales alleges that appellate counsel did not raise the issue at all on 16 direct appeal. Both claims are procedurally defaulted. 17 1. The court dismisses ground 3(b) 18 Rosales' only argument to excuse the procedural default of ground 3(b) is the ineffective 19 assistance of post-conviction counsel, under Martinez, but Martinez does not apply to 20 procedurally defaulted claims of ineffective assistance of appellate counsel such as ground 3(b). 21 Davila v. Davis, 137 S. Ct. 2058 (2017). Rosales recognizes this and wishes to keep the issue 22 preserved for further review. ECF No. 63 at 11 n.2. The court dismisses ground 3(b). 23 2. The court dismisses ground 3(a) 24 Ground 3(a) is the claim that trial counsel failed to litigate the issue of the special 25 prosecutor's conflict of interest to its completion. Trial counsel filed a motion for disqualification 26 of the special prosecutor. Ex. 70 (ECF No. 18-14). The trial court held a hearing on the motion, 27 at which both trial counsel and the special prosecutor argued the motion. Ex. 73 (ECF No. 18- 28 17). The trial court then issued a reasoned order denying the motion for disqualification. Ex. 74 1 (ECF No. 18-18). Rosales claims that trial counsel provided ineffective assistance by not then 2 filing a petition for a writ of mandamus with the Nevada Supreme Court. 3 In Nevada, mandamus is the appropriate method to challenge an attorney-disqualification 4 ruling. See generally Collier v. Legakes, 646 P.2d 1219 (Nev. 1982), overruled on other grounds 5 by State v. Eighth Jud. Dist. Ct. (Zogheib), 321 P.3d 882 (Nev. 2014).3 "The disqualification of a 6 prosecutor's office rests with the sound discretion of the district court." Collier, 646 P.2d at 1220. 7 "[W]hile mandamus lies to enforce ministerial acts or duties and to require the exercise of 8 discretion, it will not serve to control the proper exercise of that discretion or to substitute the 9 judgment of this court for that of the lower tribunal." Id. at 1221 (citation omitted). "Mandamus 10 will not lie to control discretionary action, unless discretion is manifestly abused or is exercised 11 arbitrarily or capriciously." Round Hill General Imp. Dist. v. Newman, 637 P.2d 534, 603-04 12 (Nev. 1981). 13 Respondents argue that Martinez should not apply because it is an extraordinary form of 14 discretionary relief that a person seeks in the Nevada Supreme Court, not the trial court. Then, 15 respondents argue, Martinez is limited to procedurally defaulted claims of ineffective assistance 16 of trial counsel, i.e. at the level of the trial court. ECF No. 71 at 12. There is a similarity between 17 a petition for a writ of mandamus filed with the Nevada Supreme Court and a direct appeal; both 18 are seeking higher-court review of a trial court decision, and if Martinez does not apply to 19 counsel's actions or inactions on direct appeal, then it would appear that Martinez should not 20 apply to counsel's actions or inactions in a petition for a writ of mandamus. On the other hand, a 21 petition for a writ of mandamus regarding an attorney-disqualification ruling occurs in the middle 22 of trial-court proceedings. Despite respondents' argument that mandamus is available only if a 23 petitioner does not have a plain, speedy, and adequate remedy under normal appellate procedures, 24 it appears that the Nevada Supreme Court has accepted that mandamus is necessary for attorney- 25 disqualification errors. Respondents' argument that Martinez is inapplicable in mandamus 26 proceedings would lead to a confusing Martinez-on, Martinez-off, Martinez-on approach in the 27 3 Zogheib overruled Collier's standard for when a prosecutor's office should be disqualified, and replaced that 28 standard with a more demanding standard. However, the standard is not at issue in this case. 1 middle of a single criminal case. The court has not found any other decisions regarding whether 2 Martinez applies to mandamus proceedings in the middle of a criminal case. 3 The court will not decide this issue because the court concludes that the procedurally 4 defaulted claim of ineffective assistance of trial counsel itself is insubstantial. A comparison with 5 Collier supports this conclusion. Collier was a consolidated decision involving three separate 6 petitions for writs of mandamus following on district-court rulings that granted or denied motions 7 for disqualification of the Clark County District Attorney's Office. The Nevada Supreme Court 8 denied the petitions with respect to the two cases in which the district judges denied the motions 9 to disqualify. In those cases, the district judges considered the briefs of the parties, held hearings, 10 and issued decisions. 646 P.2d at 1221. The Nevada Supreme Court granted the petition with 11 respect to the one case in which the district judge granted the motion to disqualify. In that case, 12 the district judge granted the motion without a hearing and without hearing an argument from the 13 district attorney. The Nevada Supreme Court held that the district judge needed to hold a hearing 14 on the motion, to consider all the relevant facts, and then to determine whether the district 15 attorney's office could carry out its prosecutorial function. Id. In Rosales' case, the trial court 16 considered the briefs of the parties, held a hearing at which the parties argued at length, and then 17 issued a reasoned decision. Trial counsel reasonably could have concluded that the judge did not 18 act arbitrarily or capriciously and that a petition for a writ of mandamus would have been 19 meritless. Consequently, ground 3(a) does not present a substantial claim of ineffective 20 assistance of trial counsel, and the court dismisses it. 21 C. The court dismisses ground 4 22 Ground 4 is a claim that trial counsel should have moved for a change of venue because of 23 the pre-trial publicity surrounding this case. The claim is procedurally defaulted. Rosales argues 24 that the ineffective assistance of post-conviction counsel provides cause and prejudice to excuse 25 the procedural default. The court finds that the underlying claim is insubstantial. 26 In Nevada, a change in venue may occur only after voir dire examination. "An 27 application for removal of a criminal action shall not be granted by the court until after the voir 28 dire examination has been conducted and it is apparent to the court that the selection of a fair and 1 impartial jury cannot be had in the county where the indictment, information or complaint is 2 pending." Nev. Rev. Stat. § 174.455(2). 3 The court reporter did not transcribe the voir dire examination. ECF No. 54 at 28. The 4 court agrees with respondents. Rosales has the burden of demonstrating that he can overcome the 5 default of ground 4. If Rosales can overcome the default of ground 4, then he has the burden of 6 proving that he is entitled to relief on ground 4. He cannot ask the court to presume prejudice 7 based upon a missing record. If Rosales wanted to demonstrate prejudice and then to prove that 8 relief was warranted, then he needed to do more than simply state that the voir dire examination 9 was not transcribed. He needed to file a motion asking for a determination whether it still was 10 possible to transcribe the voir dire examination and then to ask the court to order respondents to 11 produce that transcript. He did not. Rosales even filed a motion for leave to conduct discovery, 12 which the court discusses below, but that motion contains no request for a determination whether 13 a transcript of the voir dire examination can be produced. ECF No. 64. Without that transcript, 14 Rosales cannot demonstrate that ground 4 is substantial. The court thus dismisses ground 4. 15 D. Ground 6 16 In ground 6, Rosales claims that original plea counsel should have filed a motion to 17 suppress evidence on the basis that police had unlawfully entered his mother's apartment. 18 Rosales alleges that plea counsel did file a motion to suppress, but on a different, weaker issue. 19 Rosales also claims that, after reversal of his guilty plea and remand, trial counsel should have 20 litigated the issue anew. Respondents argue that the part of ground 6 relating to plea counsel is 21 moot because the Nevada Supreme Court reversed that plea and then new counsel represented 22 Rosales for his trial. The court agrees with petitioner that this is a matter better left for a 23 determination on the merits. 24 E. The court denies the motion for leave to conduct discovery 25 Rosales asks for leave to depose Gammick regarding the circumstances of his 26 endorsement of Judge Flanagan. ECF No. 64. Rosales asks for this in support of grounds 1 and 27 2. However, the court is dismissing grounds 1 and 2 as procedurally defaulted. No reason 28 remains to conduct discovery, and the court denies the motion for leave to conduct discovery. 1 F. Motion for extension of time 2 Rosales had filed an unopposed motion for extension of time. ECF No. 72. The court 3 | grants this motion. 4] V. Conclusion 5 IT THEREFORE IS ORDERED that respondents’ motion to dismiss (ECF No. 60) is 6 | GRANTED in part. Grounds 1, 2, 3, and 4 are DISMISSED from this action because they are 7 | procedurally defaulted. In all other respects, respondents motion to dismiss (ECF No. 60) is 8 | DENIED in part. 9 IT FURTHER IS ORDERED that petitioner's motion for leave to conduct discovery (ECF 10 | No. 64) is DENIED. 11 IT FURTHER IS ORDERED that petitioner's unopposed motion for extension of time 12 | (ECF No. 72) is GRANTED. 13 IT FURTHER IS ORDERED that respondents will have 60 days from the date of entry of 14 | this order to file and serve an answer, which must comply with Rule 5 of the Rules Governing 15 | Section 2254 Cases in the United States District Courts. Petitioner will have 30 days from the 16 || date on which the answer is served to file a reply. 17 DATED: March 2, 2022.

OBERT G4JONES 19 United States District Judge 20 21 22 23 24 25 26 27 28 12