Opinion
No. CV-19-01979-PHX-GMS (DMF)
04-23-2020
Cornell Wilson, Jr., Petitioner, v. David Shinn, et al., Respondents.
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
This matter is on referral pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (Doc. 4 at 4) Cornell Wilson, Jr. ("Petitioner") filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") on March 22, 2019, challenging his convictions in the Maricopa County Superior Court. (Doc. 1 at 1) Respondents filed a limited answer in July 2019 (Doc. 9), and Petitioner subsequently replied in August 2019 (Doc. 10). For the reasons set forth below, the undersigned Magistrate Judge recommends the Petition be dismissed with prejudice.
The Petition was docketed by the Clerk of Court on March 25, 2019 (Doc. 1). The Petition contains Petitioner's declaration indicating that he placed the Petition in the prison mailing system on March 22, 2019 (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used March 22, 2019, as the filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) ("A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.").
Citations to the record indicate documents as displayed in the official electronic document filing system maintained by the District of Arizona under Case Number CV-19-01979-PHX-GMS (DMF).
I. BACKGROUND
A. Petitioner's trial, conviction, and sentence
On October 21, 2014, Petitioner was charged with aggravated driving on a suspended license while under the influence of intoxicating liquor, a class 4 felony (Count 1); aggravated driving on a suspended license while there was an alcohol concentration of .08 or more in his body within two hours of the time of driving, a class 4 felony (Count 2); aggravated driving on a suspended license while under the influence of intoxicating liquor (with 2 previous violations within 84 months), a class 4 felony (Count 3); and aggravated driving on a suspended license while there was an alcohol concentration of .08 or more in his body within two hours of the time of driving (with 2 previous violations within 84 months), a class 4 felony (Count 4). (Doc. 9-1 at 3-5)
The facts underlying Petitioner's convictions and sentence were set forth by the Arizona Court of Appeals in its August 30, 2016, opinion on his direct appeal.
The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) ("In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct."); Runningeagle v. Ryan, 686 F.3d 758, 763, n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
Department of Public Safety Trooper L, on duty around the I-17 and milepost 227, observed a vehicle being driven erratically and after following it for several miles, activated his emergency lights and siren. The vehicle responded slowly, went past an exit, and abruptly stopped in the middle of the road, so Trooper L told the driver to pull over onto the nearby frontage road. Trooper T arrived at the scene soon after Trooper L made contact with the vehicle and observed the subsequent events.
Trooper L walked up to the car, noticed the windows were tinted extremely dark, and knocked on the back window. The driver opened the front door and Trooper L smelled a strong odor of alcohol coming from inside the
vehicle. He identified [Petitioner] as the driver and noticed [Petitioner] was disoriented and fumbled with his keys; moments later [Petitioner] locked his keys in the vehicle.(Id. at 139-140)
Trooper L noticed [Petitioner]'s slurred speech and bloodshot, red, and watery eyes—both signs of impairment. He told [Petitioner] the reason he pulled him over, and smelled alcohol on [Petitioner]'s breath. [Petitioner] told Trooper L that he was going to Phoenix; however, he was traveling northbound toward Flagstaff. Then, [Petitioner] told Trooper L: "We both know I shouldn't be driving. My license is suspended. Just take me to jail." Trooper L asked [Petitioner] for his driver's license, and [Petitioner] handed him an Arizona Identification Card. [Petitioner] knew his license was suspended. Trooper L also asked [Petitioner] if he consumed any alcoholic beverages and [Petitioner] replied that he had consumed four to five beers thirty minutes prior.
Trooper L then administered standardized field sobriety tests. First he administered the Horizontal Gaze Nystagmus, and received all six clues of nystagmus on [Petitioner]. [Petitioner] refused to do the other two standardized field sobriety tests and exclaimed: "Just, look, just arrest me, man. We both know I'm drunk." Trooper L then arrested [Petitioner] and transported him to the Sheriff's Office at Anthem.
At the Sheriff's Office, Trooper L told [Petitioner] that Arizona law required him to submit to a breath or blood test, but he refused. Trooper L. then obtained a warrant and Trooper T, a phlebotomist, drew [Petitioner]'s blood. Trooper T attempted to draw two vials of blood; one vial for testing and one to provide to the defendant for his own testing. Trooper T was able to draw one full vial of blood and only a flash of blood in the second vial. Trooper T understood that under DPS guidelines, he should not draw any more blood after two unsuccessful attempts. He sealed the blood that he was able to draw in a blood kit box. Trooper L then read [Petitioner] his Miranda 1 rights. The blood testing showed that [Petitioner] had a BAC of 0.150.2 Using retrograde analysis, the evidence showed that within two hours of driving, [Petitioner]'s BAC was most likely in the range of 0.172 to 0.217.
The jury returned a guilty verdict on all four counts. At sentencing, the superior court found that the State's allegations of four prior felony convictions were proven. The court sentenced [Petitioner] to presumptive, concurrent sentences of ten years of imprisonment for each count, with seventy-six days of presentence incarceration credit.
B. Direct appeal
On direct appeal, Petitioner's counsel asserted two arguments alleging Petitioner's due process rights were violated. (Doc. 9-1 at 91, 95) First, Petitioner argued the superior court abused its discretion by denying Petitioner's motion to suppress blood alcohol content evidence because "law enforcement interfered with [his] ability to obtain an independent test and compounded that by failing to inform him of his right to obtain that test." (Doc. 9-1 at 90-94) Second, Petitioner contended his convictions and sentences should be set aside as a result of prosecutorial misconduct when "the prosecutor improperly vouched for the State's witnesses and repeatedly denigrated the defense." (Id. at 90, 94-102) The Arizona Court of Appeals declared that it had "consistently held that police are not obliged to inform DUI suspects of their right to independent testing[,]" and that the inability of the police officer in Petitioner's case to draw a second vial of blood for Petitioner's use provided no exception to the absence of a requirement to inform. (Id. at 142-144) The court of appeals found "no prosecutorial misconduct in the form of vouching" or impugnment of defense counsel at Petitioner's trial. (Id. at 144-148)
Petitioner timely filed a petition for review with the Arizona Supreme Court (Doc. 1-2 at 3-6) which that court summarily denied on March 6, 2017 (Id. at 8). Petitioner did not file a petition for writ of certiorari with the United States Supreme Court. (Doc. 1 at 3)
C. Post-conviction relief ("PCR") actions
On September 12, 2016, Petitioner filed a notice of Post-Conviction Relief ("PCR") to the superior court, alleging ineffective assistance of both trial and appellate counsel. (Doc. 9-1 at 152-154) Appointed counsel filed a notice of completion of post-conviction review pursuant to Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) and requested additional time for Petitioner to file a pro per supplemental PCR petition. (Id. at 156-157) Petitioner timely filed his PCR Petition on February 10, 2017, asserting ineffectiveness of pre-trial, trial, and appellate counsel. (Id. at 159-164) In an order filed on August 2, 2017, the superior court held that Petitioner had failed to satisfy either prong required by Strickland v. Washington, 466 U.S. 668 (1984) on his claims of ineffective assistance of counsel and dismissed his petition. (Id. at 180-183)
On August 10, 2017, Petitioner filed in the superior court a "Notice of Motion to Proceed Propria Persona Regards to Rule 32" together with a Notice of Post-Conviction Relief in which he alleged ineffectiveness by his PCR counsel. (Id. at 185-191) Petitioner alleged that his PCR counsel was ineffective for "refusing to find any colorable claims" and that he and PCR counsel had an "actual irreconcilable conflict of interest." (Id. at 186) The superior court assigned this PCR proceeding for decision by order dated September 5, 2017. (Id. at 193) In a November 27, 2017, letter addressed to the clerk of the superior court, Petitioner requested a status update on his August 10, 2017, petition and asked whether the assigned judge had ruled on his proceeding and whether Petitioner had exhausted all of his remedies in the superior court. (Id. at 195) On March 5, 2018, Petitioner filed a "request for status" with the judge assigned his Rule 32 petition and advised the court that no ruling had been made on his request for new PCR counsel. (Id. at 198) On June 9, 2018, Petitioner again wrote a letter to the superior court, this time addressed to the judge who had assigned his August 2017 PCR action, requesting to know the status of the proceeding so that he could "know about moving forward on [his] case." (Id. at 200)
In an order dated April 30, 2018, but not filed until June 28, 2018, the superior court judge assigned to Petitioner's Rule 32 proceeding ordered the proceeding dismissed as untimely and successive. (Id. at 202-203) The superior court determined that Petitioner's claim of ineffective assistance of trial counsel was precluded because it was raised, or could have been raised, in his initial PCR proceeding. (Id. at 203) The superior court rejected Petitioner's claim of IAC by his PCR counsel, stating that because did not plead guilty and instead went to trial, his initial PCR proceeding was not of right, and he therefore was not "entitled to Rule 32 relief against Rule 32 counsel." (Id.) There is no record that Petitioner petitioned for review by the Arizona Court of Appeals.
In an order filed on July 2, 2018, the superior court notified Petitioner that it had reviewed his November 2017 letter, his March 2018 motion for request for status, and his June 9, 2018, letter. (Id. at 205) The court advised Petitioner that the court would not address these communications because Petitioner had failed to "endorse counsel for the State on any of these submissions." (Id.)
D. Petitioner's habeas claims
Petitioner raises two grounds for relief in his Petition. (Doc. 1 at 6-7) He asserts: that he was denied equal protection under the law and his right to a fair and impartial trial was violated when the arresting officers failed to obtain two blood samples to test his blood alcohol content, and when the trial court denied his motion to suppress the blood sample evidence (Ground One); and that he was denied due process when the trial court rejected his motion to suppress evidence of his blood alcohol content (Ground Two). (Id.)
Respondents assert that the Petition was untimely filed and that Petitioner's claims are Fourth Amendment claims, which are not cognizable in habeas proceedings. (Doc. 9)
II. DISCUSSION
A. Petitioner's claims are time-barred
A threshold issue for the Court is whether the habeas petition is barred by the statute of limitations. The time-bar issue must be resolved before considering other procedural issues or the merits of any habeas claim. See White v. Klitzkie, 281 F.3d 920, 921-22 (9th Cir. 2002). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs Petitioner's habeas petition because he filed it after April 24, 1996, the effective date of the AEDPA. Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001) (citing Smith v. Robbins, 528 U.S. 259, 267 n.3 (2000)).
1. Limitations period
The AEDPA provides for a one-year statute of limitations for all applications for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254. The limitations period generally begins to run on "the date on which the judgment became final by conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Here, Petitioner timely filed a direct appeal of his convictions and sentences, which appeal was complete for state court purposes after the Arizona Supreme Court denied Petitioner's petition for review on March 6, 2017. (Doc. 9-1 at 8) For the purposes of commencement of the AEDPA limitations period, Petitioner's conviction became final 90 days after March 6, 2017, when the period during which Petitioner could have filed a petition for writ of certiorari with the United States Supreme Court ended and he had not filed such a petition. See Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir. 2003) ("The period of 'direct review' after which the state conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) includes the 90-day period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, even if the petitioner does not actually file such a petition.). Petitioner did not file a petition for certiorari in the United States Supreme Court. (Doc. 1 at 3) Accordingly, the AEDPA one-year limitations period began to run 90 days after March 6, 2017, which was June 5, 2017.
2. Statutory Tolling
The AEDPA provides for tolling of the limitations period when a "properly filed application for State post-conviction or other collateral relief with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). As discussed, Petitioner filed his initial notice of PCR on September 12, 2016, which was well before the conclusion of his direct appeal process. (Doc. 9-1 at 152-154) Respondents assert that Petitioner's AEDPA limitations period was tolled while his initial PCR proceeding was ongoing from June 5, 2017, to July 31, 2017, when the superior court dismissed the proceeding and Petitioner failed to challenge the superior court's dismissal of the proceeding. (Doc. 9 at 8) Although the superior court dated its order dismissing Petitioner's initial PCR proceeding on July 31, 2017, the order was not filed by the clerk of court until August 2, 2017. (Doc. 9-1 at 180) Thus, statutory tolling of the AEDPA limitations period resulting from Petitioner's initial PCR action ran until at least August 2, 2017.
Regarding whether statutory tolling from Petitioner's initial PCR action extended beyond August 2, 2017, Petitioner claims that he, "with the aid of a lay person, attempted to file a petition for review [of the superior court's dismissal of his initial PCR petition], which due to Petitioner's unfamiliarity with the law and procedure, was taken as another notice of Rule 32 and dismissed." (Doc. 1 at 11) Petitioner's claim is not credible. Petitioner used a "Notice of Post-Conviction Relief form, which cautions in bold print that "NO ISSUE WHICH HAS ALREADY BEEN RAISED AND DECIDED ON APPEAL OR IN A PREVIOUS PETITION MAY BE USED AS A BASIS FOR A SUCCESSIVE PETITION." (Doc. 9-1 at 189) Petitioner filed this form with the superior court, and not with the Arizona Court of Appeals, the court to which a petition for review must be directed. Petitioner's initial PCR petition asserted claims of IAC against his trial and appellate counsel. (Id. at 163-164) In contrast, his August 2017 notice of PCR argument was that appointed PCR counsel was ineffective for failure to find any colorable claims, thus forcing Petitioner "into involuntary, unknowing, and unintelligent self-representation on the Rule 32 PCR." (Id. at 186) Moreover, although Petitioner repeatedly wrote to the superior court to ascertain the status of his PCR proceeding (Id. at 195-200), he made no attempt to correct the superior court when the court determined that Petitioner's "notice of motion" and notice of PCR (Doc. 9-1 at 185-191) was considered by the court to be a new PCR proceeding, and not a petition for review (Id. at 193). Accordingly, the evidence demonstrates that Petitioner intended his August 2017 notice of PCR not as a petition of review of the superior court's dismissal of his initial PCR action, but instead as a vehicle to assert claims against his PCR counsel in a separate PCR proceeding.
Petitioner is entitled to no statutory tolling beyond August 2, 2017, with regard to his initial PCR petition because he failed to file a petition for review of the superior court's dismissal. See Gildon v. Bowen, 384 F.3d 883, 886 (7th Cir. 2004) (rejecting a habeas petitioner's argument that statutory tolling applied during the period in time in which he could have filed a petition for certiorari review in the U.S. Supreme Court regarding state court's denial of post-conviction relief; stating that "[b]ecause [petitioner] never filed a petition for certiorari review in the Supreme Court, his potential certiorari petition was never 'properly filed.'") (quoting Gutierrez v. Schomig, 233 F.3d 490, 492 (7th Cir. 2000)); Gold v. Hennessy, CV 04-1252-PHX-JAT, 2006 WL 1516009, at *4 (D. Ariz. May 30, 2006) ("It follows that if a petition [for review] is not timely filed, then the interval is not tolled.... Thus, an appeal that is never filed cannot be considered timely; Petitioner cannot reap the benefit of AEDPA's tolling mechanism without actually filing her petition for review of the PCR denial.").
Because Petitioner did not file a petition for review of the superior court's dismissal of his initial PCR petition, statutory tolling of the AEDPA limitations period associated with the initial PCR proceeding ended on August 2, 2017, and the one-year AEDPA limitations period began to run on August 3, 2017. Without further statutory tolling and in the absence of equitable tolling, the AEDPA limitations period expired on August 2, 2018.
In Arizona, notices for PCR (other than in "of-right" or capital proceedings) "must be filed within ninety days after the entry of judgment and sentence or within thirty days after the issuance of the order and mandate in the direct appeal, whichever is the later." Ariz. R. Crim. P. 32.4(a). If a notice is not timely filed, Rule 32.2(b) of the Arizona Rules of Criminal Procedure sets forth conditions for filing, which if met, exclude the claims contained in the untimely notice from preclusion. See Pace, 544 U.S. at 413-14 (comparing conditions of filing with conditions of relief). Rule 32.2(b) may permit an untimely or successive petition if a petitioner can establish that: (1) he "is being held in custody after the sentence imposed has expired"; (2) "[n]ewly discovered material facts probably exist and such facts probably would have changed the verdict or sentence"; (3) his "failure to file a notice of post-conviction relief of-right or notice of appeal within the prescribed time was without fault on the defendant's part"; (4) "[t]here has been a significant change in the law that if determined to apply to defendant's case would probably overturn the defendant's conviction or sentence"; or (5) "[t]he defendant demonstrates by clear and convincing evidence that the facts underlying the claim would be sufficient to establish that no reasonable fact-finder would have found defendant guilty of the underlying offense beyond a reasonable doubt." Ariz. R. Crim. P. 32.1(d-h). "[T]he notice of post-conviction relief must set forth the substance of the specific exception and the reasons for not raising the claim in the previous petition or in a timely manner." Ariz. R. Crim. P. 32.2(b).
Although Petitioner's August 10, 2017, PCR notice was filed before the AEDPA limitations period expired on August 2, 2018, it did not toll the statute of limitations because the superior court specifically found that Petitioner's claims were untimely and precluded because they were or could have been raised in a previous PCR proceeding, and because he had no cognizable claim against prior Rule 32 counsel in a proceeding that was not of right. (Doc. 9-1 at 202-203); see Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005) (an untimely petition is not "properly filed" and does not toll the running of the statute). The superior court held that Petitioner was only able to raise claims against trial counsel in an untimely and successive Rule 32 proceeding pursuant to Rule 32.1(d), (e), (f), (g), or (h). (Id. at 203) The superior court necessarily found that the August 2017 PCR notice was untimely and precluded because Petitioner's claims did not satisfy any exception to the time limit for filing. See Ariz. R. Crim. P. 32.2(b) ("If the specific exception and meritorious reasons do not appear substantiating the claim and indicating why the claim was not stated in the previous petition or in a timely manner, the notice shall be summarily dismissed."). Accordingly, because the August 2017 notice was not "properly filed" it does not toll the limitations period under § 2244(d)(2).
Given the above, absent equitable tolling, the statute of limitations ran uninterrupted from August 3, 2017, until it expired on August 2, 2018, making Petitioner's March 22, 2019, Petition untimely.
3. Equitable tolling
The AEDPA limitations period may be equitably tolled because it is a statute of limitations, not a jurisdictional bar. See Holland v. Florida, 560 U.S. 631, 645-46 (2010). However, for equitable tolling to apply, a petitioner must show "(1) that he has been pursuing his rights diligently and (2) that some extraordinary circumstances stood in his way" to prevent him from timely filing a federal habeas petition. Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). "The diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Holland, 560 U.S. at 653 (internal citations and quotations omitted).
Whether to apply the doctrine of equitable tolling "'is highly fact-dependent,' and [the petitioner] 'bears the burden of showing that equitable tolling is appropriate.'" Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005) (internal citations omitted); see also Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (stating that equitable tolling is "unavailable in most cases," and "the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule") (citations and internal emphasis omitted). Petitioner must also establish a "causal connection" between the extraordinary circumstance and his failure to file a timely petition. See Bryant v. Arizona Attorney General, 499 F.3d 1056, 1060 (9th Cir. 2007).
A petitioner's pro se status, indigence, limited legal resources, ignorance of the law, or lack of representation during the applicable filing period do not constitute extraordinary circumstances justifying equitable tolling. See, e.g., Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) ("[A] pro se petitioner's lack of legal sophistication is not, by itself, an extraordinary circumstance warranting equitable tolling."); see also Ballesteros v. Schriro, CIV-06-675-PHX-EHC (MEA), 2007 WL 666927, at *5 (D. Ariz. Feb. 26, 2007) (a petitioner's pro se status, ignorance of the law, lack of representation during the applicable filing period, and temporary incapacity do not constitute extraordinary circumstances). Further, a prisoner's "proceeding pro se is not a 'rare and exceptional' circumstance because it is typical of those bringing a § 2254 claim." Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000).
Petitioner does not expressly assert or argue any grounds for the application of equitable tolling to excuse his untimely Petition. In his reply, Petitioner objects to denial of the Petition because he is proceeding pro per and because he inquired about the status of his untimely PCR notice and unsuccessfully "sought information as to the status of his case and how to proceed." (Doc. 10 at 2) Petitioner's pro per status and ignorance of the law do not establish extraordinary circumstances. Rasberry, 448 F.3d at 1154. Petitioner's correspondence to the superior court inquiring about the status of his untimely August 2017 PCR proceeding without a response from the court does not establish either that he diligently pursued his rights or that some extraordinary circumstances prevented him from timely filing a federal habeas petition. As of September 2017, Petitioner knew that his August 2017 notice of PCR had been assigned to a superior court judge for decision as a second PCR proceeding. (Doc. 9-1 at 193) Petitioner has failed to meet his burden of showing extraordinary circumstances or reasonable diligence that would justify equitable tolling, nor does the Petition or the record set forth grounds that would justify equitable tolling.
If a district court finds that a federal habeas petition is untimely, the untimeliness may be excused in rare instances by an equitable exception to AEDPA's statute of limitations. In McQuiggin v. Perkins, 569 U.S. 383, 391-396 (2013), the Supreme Court held that the "actual innocence gateway" to federal habeas review that applies to procedural bars in Schlup v. Delo, 513 U.S. 298, 327 (1995), and House v. Bell, 547 U.S. 518 (2006), extends to petitions that are time-barred under AEDPA. See Schlup v. Delo, 513 U.S. 298, 329 (1995) (petitioner must make a credible showing of "actual innocence" by "persuad[ing] the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt."). However, Petitioner does not argue, let alone meet, this excuse for untimeliness of the Petition.
Equitable tolling does not apply. AEDPA's statute of limitations expired on August 2, 2018, but the Petition here was untimely filed on March 22, 2019.
B. Respondents' Other Affirmative Defense
Because the Petition is untimely under the ADEPA and equitable tolling is not justified, the Court does not address Respondents' argument that both of Petitioner's grounds are Fourth Amendment claims and are thus are not cognizable in federal habeas proceedings pursuant to Stone v. Powell, 428 U.S. 465 (1976).
III. CONCLUSION
Based on the above analysis, undersigned finds the Petition is untimely by over seven months and recommends that the Petition (Doc. 1) be dismissed with prejudice. Because of the untimeliness finding, undersigned did not reach the other affirmative defense raised by Respondents. Assuming the recommendations herein are followed in the District Judge's judgment, the District Judge's decision will be on procedural grounds. Under the reasoning set forth herein, reasonable jurists would not find it debatable whether the District Judge was correct in its procedural ruling. Accordingly, to the extent the District Judge adopts this Report and Recommendation regarding the Petition, a certificate of appealability should be denied.
IT IS THEREFORE RECOMMENDED that Cornell Wilson, Jr.'s Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty) (Doc. 1) be dismissed with prejudice.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 23rd day of April, 2020.
/s/_________
Honorable Deborah M. Fine
United States Magistrate Judge