Witzig v. Shinn

• Court: District Court, D. Arizona
• Decided: March 9, 2023
• Docket: 3:21-cv-08042
• Status: Unknown

Opinion

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

9 Drew Michael Witzig, No. CV-21-08042-PCT-JAT

10 Petitioner, ORDER

11 v.

12 David Shinn,

13 Respondent. 14 15 Pending before the Court is Petitioner’s Petition for Writ of Habeas Corpus 16 (“Petition”). The Magistrate Judge to whom this case was referred issued a Report and 17 Recommendation (“R&R”) recommending that this Court deny the Petition. (Doc. 34). 18 Petitioner filed objections to the R&R. (Doc. 41). Respondent filed a Reply to the 19 Objections. (Doc. 45). 20 The R&R further recommended that this Court deny a certificate of appealability. 21 (Doc. 34). Petitioner filed a separate motion seeking a certificate of appealability. (Doc. 22 42). 23 I. Review of R&R 24 This Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 26 the district judge must review the magistrate judge’s findings and recommendations de 27 novo if objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 28 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original); Schmidt v. Johnstone, 263 1 F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that 2 de novo review of factual and legal issues is required if objections are made, ‘but not 3 otherwise.’”); Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 4 1027, 1032 (9th Cir. 2009) (the district court “must review de novo the portions of the 5 [Magistrate Judge’s] recommendations to which the parties object.”). District courts are 6 not required to conduct “any review at all . . . of any issue that is not the subject of an 7 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added); see also 28 U.S.C. 8 § 636(b)(1) (“the court shall make a de novo determination of those portions of the [report 9 and recommendation] to which objection is made.”).1 10 II. Factual and Procedural Background 11 The R&R recounted the factual and procedural background of Petitioner’s 12 conviction in state court at pages 2-4. Neither party objected to this recounting and the 13 Court hereby accepts and adopts it. In short summary, Petitioner was convicted following 14 a jury trial of possession of methamphetamine and drug paraphernalia. (Doc. 34 at 1). In 15 2016, Petitioner was sentenced to concurrent prison terms, the longest of which is 15 years. 16 (Id.). 17 III. Claims in the Petition 18 The R&R broke the Petition down into 18 separate claims. They are as follows: “1. 19 trial ineffective assistance regarding search; 2. trial ineffective assistance re uncalled 20 witnesses; 3. newly discovered material facts on motion to suppress; 4. ineffective 21 assistance re unpresented evidence at (A) trial and (B) on PCR; 5. (A) denial of continuance 22 at trial; and related ineffectiveness of (B) appellate and (C) PCR counsel; 6. (A) no 23 opportunity to reply on motion to suppress and related ineffectiveness of (B) appellate and

24 1 The Court notes that the Notes of the Advisory Committee on Rules appear to suggest a clear error standard of review under Federal Rule of Civil Procedure 72(b), citing 25 Campbell. Fed. R. Civ. P. 72(b), NOTES OF ADVISORY COMMITTEE ON RULES— 1983 citing Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974), cert. 26 denied, 419 U.S. 879 (The court “need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). The court in Campbell, 27 however, appears to delineate a standard of review specific to magistrate judge findings in the motion to suppress context. See Campbell, 501 F.2d at 206–207. Because this case is 28 not within this limited context, this Court follows the Ninth Circuit’s en banc decision in Reyna-Tapia on the standard of review. 1 (C) PCR counsel; 7. (A) exclusion of line of questioning; and related ineffectiveness of (B) 2 appellate and (C) PCR counsel; 8. ineffective assistance of (A) appellate counsel and (B) 3 PCR counsel regarding vindictive prosecution; and 9. ineffective assistance of (A) trial 4 counsel and (B) PCR counsel regarding service records on taxicab.” (Doc. 34 at 1-2). 5 IV. General Objections 6 Petitioner begins his objections by making a general, global objection. (Doc. 41 at 7 1). Specifically, Petitioner states, “Petition objects to all adverse rulings in the … R&R.” 8 (Id.). 9 Respondents correctly notes that general, global objections do not trigger de novo 10 review of the entire case. (Doc. 45 at 2 (citing Warling v. Ryan, 2013 WL 5276367, *2 (D. 11 Ariz. Sept. 19, 2013); Howard v. Sec’y of HHS, 932 F.2d 505, 509 (6th Cir. 1991); Haley 12 v. Stewart, 2006 WL 1980649, * 2 (D. Ariz. July 11, 2006)); accord Martin v. Ryan, CV- 13 13-00381-PHX-ROS, 2014 WL 5432133, *2 (D. Ariz. October 24, 2014) (“…when a 14 petitioner raises a general objection to an R&R, rather than specific objections, the Court 15 is relieved of any obligation to review it.”) (collecting cases). Thus, the Court will not 16 review this general objection. See Warling, 2013 WL 5276367, at 2 (“the Court has no 17 obligation to review Petitioner’s general objections to the R & R”) (citing Thomas v. Arn, 18 474 U.S. 140, 149 (1985)). 19 As a result of the Court not considering this general objection, several of the 20 recommendations of the R&R are unobjected to. Specifically, Petitioner does not object 21 to the R&R’s conclusion that Claim 3 is not cognizable on habeas because it is a state law 22 claim (Doc. 34 at 7), Claims 4B, 5C, 6C, 7C, 8B and 9B are not cognizable under 28 U.S.C. 23 § 2254(i) because they are all claims of ineffective assistance of post-conviction relief 24 counsel (Doc. 34 at 8), Claim 7A does not entitle Petition to relief (Doc 34 at 35-38), 7B 25 does not entitled Petitioner to relief (Doc. 34 at 40-41), and Claim 8A does not entitle 26 Petitioner to relief (Doc. 34 at 41-43). The Court hereby accepts and adopts the R&R’s 27 recommendations and conclusions as to these claims. 28 Accordingly, the Court will consider the recommendations of the R&R on the 1 following claims de novo: Claims 1, 2, 4A, 5A, 5B, 6A, 6B, and 9A. 2 V. Unexhausted Claims 3 A district court must reject a claim in a petition for writ of habeas corpus if the 4 petitioner did not exhaust state remedies for potential relief on the federal claims. Castille 5 v. Peoples, 489 U.S. 346, 349 (1989) (citing Rose v. Lundy, 455 U.S. 509 (1982)). A 6 petitioner satisfies this requirement if he “fairly presents” the federal claim to the state 7 courts. Id. at 351. Procedural default occurs when a petitioner has never presented a federal 8 claim in state court and is now barred from doing so by the state’s procedural 9 rules. See Castille, 489 U.S. at 351–52; Johnson v. Lewis, 929 F.2d 460, 462 (9th Cir. 10 1991). Procedural default also occurs when the petitioner did present a claim to the state 11 courts, but the state courts did not address the merits of the claim because the petitioner 12 failed to follow a state procedural rule, including rules regarding waiver and the preclusion 13 of claims. See, e.g., Ylst v. Nunnemaker, 501 U.S. 797, 802 (1991); Coleman v. Thompson, 14 501 U.S. 722, 727–28 (1991). 15 Respondents argued that Claims 5A, 5B, 9A and 9B were not exhausted, and are 16 now procedurally barred in the state court. (Doc. 34 at 8). The R&R disagreed with 17 Respondents as to Claims 9A and 9B and found Claims 9A and 9B were exhausted in state 18 court. (Doc. 34 at 5-15). Respondents did not object to this recommendation and the Court 19 accepts and adopts it. 20 The R&R agreed with Respondents that Claims 5A and 5B were not exhausted in 21 the state courts. The R&R found that that Claims 5A ad 5B were barred on adequate and 22 independent state law grounds and procedurally defaulted. (Doc. 34 at 10). The R&R 23 further found that Petitioner did not show cause and prejudice (Doc. 34 at 15) or actual 24 innocence (Doc. 34 ta 16) to overcome his procedural default of these claims. 25 Petitioner objects to the R&R’s conclusion that this Court cannot reach the merits 26 of Claims 5A and 5B arguing that to the extent these claims are not exhausted, it is the fault 27 of his counsel. (Doc. 41 at 7-9). 28 Generally, “cause” for a procedural default exists if the petitioner can demonstrate 1 that “some objective factor external to the defense impeded counsel’s efforts to comply 2 with the state’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). 3 “Prejudice” is actual harm resulting from the claimed constitutional error or 4 violation. Vickers v. Stewart, 144 F.3d 613, 617 (9th Cir. 1998). 5 In Martinez, the Supreme Court held that in limited circumstances, attorney error 6 may be “cause” to excuse procedural default. See Martinez v. Ryan, 566 U.S. 1 (2012). 7 The petitioner may establish cause for a procedural default of an ineffective assistance of 8 trial counsel claim “by demonstrating two things: (1) ‘counsel in the initial-review 9 collateral proceeding, where the claim should have been raised, was ineffective under the 10 standards of Strickland v. Washington, 466 U.S. 668 (1984),’ and (2) ‘the underlying 11 ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the 12 prisoner must demonstrate that the claim has some merit.’” Cook v. Ryan, 688 F.3d 598, 13 607 (9th Cir. 2012) (quoting Martinez v. Ryan, 566 U.S. 1, 14 (2012)). 14 However, in Davila, the Supreme Court held that claims of ineffective assistance of 15 appellate counsel cannot provide cause to excuse procedural default. Davila v. Davis, 137 16 S. Ct. 2058, 2066 (2017). Thus, 17 The Martinez exception to procedural default applies only to claims of ineffective assistance of trial counsel; it has not been expanded to other types 18 of claims. Pizzuto, 783 F.3d at 1177 (explaining that the Ninth Circuit has “not allowed petitioners to substantially expand the scope of Martinez 19 beyond the circumstances present in Martinez”); Hunton v. Sinclair, 732 F.3d 1124, 1126–27 (9th Cir. 2013) (noting that only the Supreme Court can 20 expand the application of Martinez to other areas); see Davila v. Davis, 137 S. Ct. 2058, 2062–63, 2065–66 (2017) (explaining that the Martinez 21 exception does not apply to claims of ineffective assistance of appellate counsel). 22 23 Hampton v. Ryan, No. CV-14-02504-PHX-ROS, 2019 WL 979896, at *4 (D. Ariz. Feb. 24 28, 2019). 25 Here, Petitioner raised his claim regarding a “denial of a trial continuance” in his 26 second post-conviction relief petition in state court. (Doc. 34 at 9). The second post- 27 conviction relief court denied the claim as barred by the state procedural rules because it 28 could have been raised in Petitioner’s direct appeal of his conviction, and/or his first post- 1 conviction relief proceeding. (Id.). 2 In his objections before this Court, Petitioner is arguing “cause” based on the 3 claimed ineffective assistance of his appellate counsel and his post-conviction relief 4 counsel for failing to raise his “denial of trial continuance” claim. But as discussed above, 5 ineffective assistance of appellate counsel and post-conviction relief counsel cannot be 6 cause to overcome procedural default of any claim other than ineffective assistance of trial 7 counsel. Further, to the extent Petitioner argues that it is unfair to bar his claims by finding 8 the state law adequate and independent (Doc. 41 at 7-9), the Court agrees with the R&R 9 that this is the law and it is properly applied to these facts (Doc. 34 at 11). 10 Thus, the Court finds Petitioner has not shown cause to excuse his procedural 11 default of these claims. Additionally, Petitioner does not object to the R&R’s conclusion 12 that Petitioner has not shown prejudice or a fundamental miscarriage of justice/actual 13 innocence to overcome his default of these claims. (Doc. 34 at 15-16). The Court accepts 14 and adopts these conclusions. For all of these reasons, the Court will not reach the merits 15 of Claims 5A and 5B and these claims will be denied and dismissed with prejudice. 16 Alternatively, this Court may deny an unexhausted claim on the merits. 28 U.S.C. 17 § 2254(b)(2). As discussed below, Claims 6A and 6B relate to Claims 5A and 5B; 18 specifically: the failure of the trial court to sua sponte grant a continuance of the 19 suppression hearing or the trial. For the reasons Claims 6A and 6B fail on the merits as 20 discussed below, Claims 5A and 5B also alternatively fail on the merits. 21 VI. Claims Exhausted Before the State Courts 22 The R&R summarizes the legal standard governing this Court’s review of claims 23 that were exhausted in the state courts at pages 16-18. Neither party objects to this 24 summary of the governing law and the Court accepts and adopts it. Generally, for the 25 claims that Petitioner exhausted before the state courts, under 28 U.S.C. §§ 2254(d)(1) and 26 (2) this Court must deny the Petition on those claims unless “a state court decision is 27 contrary to, or involved an unreasonable application of, clearly established Federal law”2 28 2 Further, in applying “Federal law” the state courts only need to act in accordance 1 or was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 2 U.S. 63, 71 (2003). 3 A. Claims Regarding Petitioner’s Reply Brief in State Court (6A and 6B) 4 The R&R summarizes Claim 6 as follows: 5 In Ground 6A, Petitioner argues that he was constructively denied counsel when the court denied the defense a continuance to allow a written reply to 6 the prosecution’s response on the motion to suppress which had been served at the hearing. [citation omitted]. Respondents argue this claim survives 7 deferential review under § 2254(d) because there is no Supreme Court authority on denial of a continuance as a constructive denial of counsel for 8 which prejudice need not be shown, the trial court permitted a recess and counsel made an oral reply, and Petitioner fails to show additional time for a 9 written reply would have had any effect. [citation omitted]. Petitioner replies that Bell v. Cone, 535 U.S. 685 (2002) recognizes that a denial of a 10 continuance can amount to a constructive denial of counsel subject to the presumed prejudice under Cronic, and the failure to allow the ordinary 10 11 days for a reply to permit research and a written response would preclude any counsel from rendering effective assistance. He further argues actual 12 prejudice is shown. … 13 In Ground 6B, Petitioner argues appellate counsel was ineffective for failing to raise the claim in Ground 6A asserting a denial of a continuance to file a 14 written reply on the motion to suppress was constructive denial of counsel. 15 (Doc. 34 at 31-21, 38). Neither party objected to this summary of the Claim and the Court 16 accepts it. 17 Claim 6A was raised in Petitioner’s second post-conviction relief petition. 18 Petitioner did not expressly make the claim as a federal claim, and the state court did not 19 expressly deny the claim on federal ground. (Doc. 34 at 32-33). The R&R concludes that 20 the state court impliedly denied the federal claim on the merits. (Id.). 21 As the R&R summarizes, Petitioner’s trial counsel never actually asked for a 22 continuance, although he did mention wanting to make a reply. (Doc. 34 at 34). Thus, the 23 R&R has recharacterized Petitioner’s Claim as an error of the trial court in failing to sua 24 sponte grant a continuance. (Id.). The R&R then concludes that the trial court’s failure to 25 sua sponte grant a continuance does not justify relief on Claim 6A (Doc. 34 at 35) and that 26 with Supreme Court case law. See Carey v. Musladin, 549 U.S. 70, 74 (2006). 27 28 1 Claim 6B fails for the same reason (Doc. 34 at 39). 2 Petitioner objects and basically argues that the state rules permit 10 days for a reply, 3 and although the trial was set to begin in less than 10 days, and the evidentiary hearing on 4 the motion to suppress was set for the day the response was filed, “due process” requires 5 that the trial court grant Petitioner the 10 days allowed by the state rules for a reply by sua 6 sponte continuing both the suppression hearing and the trial. (Doc. 41 at 9). The Court 7 agrees with Respondents that there is no Supreme Court case law directly on point which 8 says the state court must always allow the briefing schedules permitted by the state rules 9 for there to be effective assistance of counsel and/or due process. As a result of there being 10 no law on point, the state court decision is not contrary to or an unreasonable application 11 of clear established federal law (nor is there any argument the state court made an error as 12 to the facts). Thus, habeas relief on Claims 6A and 6B is denied. 13 B. Ineffective Assistance of Trial Counsel (1, 2, 4A and 9A) 14 Claims 1, 2, 4A and 9A are all theories of ineffective assistance of trial counsel 15 based on different factual predicates. These factual predicates relate to trial counsel’s 16 challenges (via a motion to suppress) to the stop of the vehicle Petitioner was traveling in 17 and the subsequent search of that vehicle. As discussed above, because these claims were 18 decided by the state court, this Court must deny relief unless the state court’s decision was 19 contrary to or an unreasonable application of clearly established federal law or was based 20 on an unreasonable determination of the facts. If the state court’s decision was deficient 21 in one of these respects, this Court then reviews the claim de novo. 22 The R&R discusses that Petitioner’s primary claim regarding the adequacy of the 23 state court decision is that, although an evidentiary hearing was held before the trial court, 24 the post-conviction relief court did not hold a second evidentiary hearing. (Doc. 34 at 22). 25 The R&R concludes that Arizona Court of Appeals court affirming the post-conviction 26 relief court even though it did not hold a second evidentiary hearing was not contrary to or 27 an unreasonable application of federal law. (Doc. 34 at 22-24). Alternatively, the R&R 28 concludes that even if this Court were to review the ineffective assistance of trial counsel 1 claims de novo, relief would still be denied. (Doc. 34 at 24). 2 Petitioner objects and seeks an evidentiary hearing before this Court. (Doc. 41 at 5- 3 7, 10-11). This Court agrees with the R&R that even taking the facts as Petitioner presents 4 them as true, an evidentiary hearing before either the post-conviction relief court, or this 5 Court, would not entitle Petitioner to relief (as discussed more fully below). (Doc. 34 at 6 24). Therefore, Petitioner’s objections specifically seeking an evidentiary hearing are 7 overruled. 8 Next, the Court will consider Petitioner’s objections as they relate to the merits of 9 these Claims. Although the R&R considers each factual predicate individually, Petitioner’s 10 objections are grouped by “objections to the reason his vehicle was stopped” and 11 “objections to the basis for the search of his vehicle” and the Court will consider the 12 objections in those groupings. 13 The R&R discusses the law governing ineffective assistance of counsel claims under 14 Strickland v. Washington, 466 U.S. 668 (1984) and its progeny at pages 19-20. Neither 15 party objected to this summary of the governing law and the Court hereby accepts and 16 adopts it. 17 1. Claims Relating to the Stop (2, 4A and 9A) 18 In his objections, Petitioner argues that the police did not have a reasonable 19 suspicion to stop the vehicle he was traveling in prior to his arrest and his counsel was 20 ineffective in failing to more thoroughly present this issue to the trial court. Specifically, 21 Petitioner claims ineffective assistance because his trial counsel failed to call taxicab 22 company witnesses Newman and Garcia at the suppression hearing, failed to impeach the 23 officer regarding the “true reason” for the stop, and failed to subpoena records related to 24 repairs (if any) to the taxicab. (Doc. 34 at 26-31). 25 The R&R concludes that the failure to call Newman and Garcia was not ineffective 26 assistance because the trial court had an affidavit from Newman and a signed statement 27 from Garcia and accepted all representations in those statements as true. (Doc. 34 at 27). 28 Therefore, calling those witnesses would not have produced any different or additional 1 facts, nor changed the outcome of the proceeding. 2 Petitioner argues that the officer’s true motive to stop the taxicab was to look for 3 Petitioner; and that the officer’s claimed reason for the stop–the inoperable license plate 4 light–was just a pretext for the stop. The R&R concludes that, legally, an officer’s true 5 motive for a stop (assuming Petitioner is correct about the true motive) is irrelevant if the 6 officer had reasonable suspicion for the stop. (Doc. 34 at 29 (citing Whren v. United States, 7 517 U.S. 806, 813 (1996)). 8 Finally, the R&R concludes that trial counsel’s failure to subpoena the taxicab 9 records regarding whether the license plate light was ever repaired (given that the license 10 plate light being inoperable was the basis for the stop) has not been shown to be ineffective 11 because what the records might have shown is speculative. (Doc. 34 at 29-31). Moreover, 12 even if there was no record of a repair, the absence of a record does not prove the light was 13 functioning at the time of the stop (i.e., that the officer was lying about the light being 14 inoperable). (Doc. 34 at 29-31, and n.10). 15 Petitioner objects to all these finding arguing that he should have had another 16 evidentiary hearing before the post-conviction relief court. (Doc. 41 at 3-6). Specifically, 17 Petitioner argues that at a hearing the officer’s credibility could have been assessed and 18 employees from the cab company could have been questioned about repairs (if any) to the 19 light. This Court agrees with the R&R that the factual results Petitioner hoped to gain from 20 a second evidentiary hearing on his suppression issues would not have changed the 21 outcome of the case. Therefore, the state appellate court’s failure to reverse the post- 22 conviction relief court for not having an evidentiary hearing was not contrary to or an 23 unreasonable application of clearly established federal law, nor was it an unreasonable 24 determination of the facts. See Hibbler v. Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012). 25 Therefore, relief on Claims 2, 4A and 9A is denied. 26 Moreover, Petitioner’s objections fail to overcome the R&R’s conclusion that, while 27 reasonable suspicion may have been necessary to stop the driver of the cab, the warrant for 28 Petitioner’s arrest justified the stop of Petitioner. (Doc. 34 at 23). And legally, Petitioner 1 cannot assert the need for reasonable suspicion for a stop to the extent that right is particular 2 to the cab driver. (Id. at 23-24). Therefore, the stop was legal, and counsel was not 3 ineffective for failing to succeed on the motion to suppress. 4 2. Claim Related to the Search (1) 5 In Claim 1, Petitioner argues his trial counsel was ineffective in failing to file a 6 suppression motion specifically on the issue of the search of the taxicab. (Doc. 41 at 3). 7 The R&R concludes that any such motion would have been futile; and counsel was not 8 ineffective for failing to file a futile motion. (Doc. 34 at 20-22 (citing Rupe v. Wood, 93 9 F.3d 1434, 1445 (9th Cir. 1996)). Specifically, the officer stated that the search of the cab 10 that revealed the prohibited items was performed based on the consent of the driver. (Doc. 11 34 at 24). The driver later filed an affidavit stating that the driver did not recall giving 12 consent. (Id.). The R&R did “not find unreasonable the state court’s decision to rely on 13 the affirmative memory of the officers rather than the lack of memory of the taxi driver.” 14 (Id.). 15 As to this finding, Petitioner objects again arguing that at an evidentiary hearing on 16 the post-conviction relief petition, a court could have found the officer was lying about 17 consent. (Doc. 41 at 6). However, this Court agrees with the R&R that given that the state 18 court accepted the taxicab driver’s lack of memory as true, an evidentiary hearing would 19 not have revealed any new or different facts or testimony. Therefore, the state appellate 20 court’s failure to reverse the post-conviction relief court for not having an evidentiary 21 hearing was not contrary to or an unreasonable application of clearly established federal 22 law, nor was it an unreasonable determination of the facts. This objection is overruled. 23 Petitioner also objects and argues that even if the driver of the cab consented to the 24 search, such consent could not legally extend to Petitioner’s section of the cab. (Doc. 41 25 at 4). The Court agrees with the R&R, and the numerous cases cited therein, that consent 26 of the driver of the cab over an area of shared authority, namely the entire vehicle, was 27 valid consent to search Petitioner’s area. (Doc. 34 at 25). Therefore, this objection is also 28 overruled and relief on Claim 1 is denied. 1 VII. Other Objections 2 At pages 10-11 of his objections, Petitioner raises some procedural issues. For 3 example, Petitioner claims that the prison would not allow him to send money to an 4 individual outside the prison. This is not a claim that is cognizable on habeas. Petitioner 5 also claims that he wanted more time in the law library. However, this Court gave 6 Petitioner extensions of time from June to October to file his objections and Petitioner filed 7 complete objections. Therefore, this additional objection is also overruled. 8 VIII. Certificate of Appealability 9 Petitioner has filed a separate motion seeking a certificate of appealability (“COA”). 10 Petitioner primarily seeks a certificate of appealability asking the Court of Appeals to direct 11 this Court to hold an evidentiary hearing on his claims. (Doc. 42 at 2-3). 12 For Petitioner to appeal, a court must issue a COA. 28 U.S.C. § 2253(c); Slack v. 13 McDaniel, 529 U.S. 473, 481-82 (2000); Valerio v. Crawford, 306 F.3d 742, 763-64 (9th 14 Cir. 2002) (en banc), cert. denied 2003 U.S. LEXIS 3190 (2003). The COA must specify 15 which issues are certified for appeal. Id. 16 A judge may issue a COA “only if the applicant has made a substantial showing of 17 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district court has 18 rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 19 is straightforward: The petitioner must demonstrate that reasonable jurists would find the 20 district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. 21 at 483-84. “When the district court denies a habeas petition on procedural grounds without 22 reaching the prisoner’s underlying constitutional claim, a COA should issue when the 23 prisoner shows, at least, that jurists of reason would find it debatable whether the petition 24 states a valid claim of the denial of a constitutional right and that jurists of reason would 25 find it debatable whether the district court was correct in its procedural ruling.” Id. at 484. 26 Here, the Court finds jurists of reason would not find this Court’s procedural rulings 27 debatable. Further, as to the claims on which the Court reached the merits, jurists of reason 28 would not find this Court’s assessment of the constitutional claims debatable. Therefore, || acertificate of appealability will not be granted. IX. Conclusion 3 Based on the foregoing, 4 IT IS ORDERED that the Report and Recommendation (Doc. 34) is accepted and 5 || adopted; the objections (Doc. 41) are overruled. The Petition is denied and dismissed with 6 || prejudice and the Clerk of the Court shall enter judgment accordingly. 7 IT IS FURTHER ORDERED that Petitioner’s request for a certificate of 8 || appealability (Doc. 42) is denied. 9 Dated this 7th day of March, 2023. 10 11 A 12 James A. Teilborg 13 Senior United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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