Lopez v. Ryan et al

Filing 27

ORDER denying and dismissing with prejudice 1 Petition for Writ of Habeas Corpus. The Clerk of Court is directed to enter judgment and terminate this case. ORDER that the R&R 23 is ACCEPTED. ORDER that a Certificate of Appealability and leave to proceed in forma pauperis on appeal is DENIED. The Clerk of Court is directed to enter judgment on this matter. Signed by Judge G Murray Snow on 8/2/13. (TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Robert Sanchez Lopez, Petitioner, 10 11 ORDER v. 12 No. CV-11-1755-PHX-GMS (LOA) Charles L. Ryan, et al., Respondents. 13 14 Pending before this Court is a Petition for Writ of Habeas Corpus filed by 15 Petitioner Robert Sanchez Lopez. (Doc. 1.) Magistrate Judge Lawrence O. Anderson 16 filed a Report and Recommendation (R&R), in which he recommended that the Court 17 deny the petition with prejudice; Lopez has objected to the R&R. (Docs. 23, 24.) Because 18 objections have been filed, the Court will review the petition de novo. See United States 19 v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). For the following 20 reasons, the Court accepts the R&R and denies the petition. BACKGROUND1 21 22 On September 11, 2009, a grand jury indicted Lopez on one count each of 23 marijuana possession and forgery. (Doc. 20-1, Ex. A.) After the grand jury returned the 24 indictment, the State further alleged historical non-dangerous felony convictions, felony 25 committed while on release, multiple offenses not committed on the same occasion, and 26 other aggravating circumstances. (Id., Exs. B–E.) On January 29, 2010, Lopez moved to 27 28 1 The R&R sheds greater light on the background of this case. That discussion is incorporated by reference here. 1 represent himself at trial. (Id., Ex. F.) He filled out a formal waiver form, and the trial 2 court determined on February 2 that Lopez “knowingly, intelligently, and voluntarily 3 waive[d] his right to counsel and desire[d] to proceed Pro Per.” (Id., Exs. G, H.) The 4 court retained advisory counsel for Lopez. (Id.) Trial began on February 10, 2010, and 5 the jury returned a verdict of guilty on both counts on February 17. (Id., Exs. I, J.) 6 Around one month later, the trial court sentenced Lopez to three years’ incarceration for 7 the marijuana offense and five years for the forgery offense, to be served concurrently. 8 (Id., Ex. K.) 9 Lopez appealed. His attorney filed an Anders brief on August 26, 2010, and stated 10 that he found no arguable question of law that is not frivolous. (Id., Ex. L.) The Arizona 11 Court of Appeals allowed Lopez to file a supplemental brief. (Id., M.) On November 30, 12 2010, the Court of Appeals affirmed the conviction and rejected all of Lopez’s 13 arguments. (Doc. 20-2, Ex. N.) It also denied Lopez’s subsequent Motion for 14 Reconsideration. (Id., Exs. O, P.) Lopez petitioned for review in the Arizona Supreme 15 Court and was denied. (Id., Exs. Q, R.) 16 Lopez filed a petition for post-conviction relief on August 22, 2011. (Id., Ex. S.) 17 Once again, counsel filed a Notice in which he asserted that he found no colorable claim 18 for relief. (Id., Ex. T.) Lopez filed his supplemental brief, and the court denied his 19 petition on March 12, 2012. (Id., Exs. U, V.) He has not appealed that denial. 20 Lopez filed the instant petition on September 6, 2011. (Doc. 1.) He cites four 21 grounds for relief: (1) “Constructive Fraud . . . [,] willful misrepresentation of the facts in 22 drafting the indictment”; (2) “The Jury considered improper evidence[.] The written Jury 23 instruction leaving out Subsection B”; (3) “The two Judges unfairly invoked an 24 adversarial role rather than a neutral role”; and (4) prosecutorial misconduct. (Id. at 6–9.) 25 Lopez, however, supplements each of these claims with subparts that can be construed as 26 separate grounds for relief. Magistrate Judge Anderson issued an R&R on May 15, 2013, 27 in which he recommended denial of the petition. (Doc. 23.) Lopez timely filed his 28 objections on May 21, 2013. (Doc. 24.) -2- DISCUSSION 1 2 I. LEGAL STANDARD 3 By statute, the writ of habeas corpus affords relief to persons only when they are 4 in custody in violation of the Constitution, laws, or treaties of the United States. 28 5 U.S.C. § 2241(c)(3). The writ may be granted by “the Supreme Court, any justice thereof, 6 the district courts and any circuit judge within their respective jurisdictions.” Id. 7 § 2241(a). Review of Petitions for Habeas Corpus is governed by the Antiterrorism and 8 Effective Death Penalty Act of 1996 (AEDPA). Id. § 2244 et seq. 9 Under AEDPA, the Court may not grant habeas relief unless it concludes that the 10 state’s adjudication of the claim (1) resulted in a decision that was contrary to, or 11 involved an unreasonable application of, clearly established federal law, as determined by 12 the Supreme Court of the United States, or (2) resulted in a decision that was based on an 13 unreasonable determination of the facts in light of the evidence presented in the state 14 court proceeding. Id. § 2254(d)(1)–(2). Neither can the Court grant habeas relief under 15 AEDPA if the petitioner has failed to exhaust his claim in state court. 16 Id. § 2254(b)(1)(A); see O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999). 17 A court reviewing a petition alleging that a state court violated a constitutional 18 rule2 can grant relief only if the state court decision was “contrary to, or involved an 19 unreasonable application of” clearly established law. Williams v. Taylor, 529 U.S. 362, 20 391 (2000). A state court’s decision is “contrary to” clearly established precedent if (1) 21 “the state court applies a rule that contradicts the governing law set forth in [Supreme 22 Court] cases,” or (2) “if the state court confronts a set of facts that are materially 23 indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a 24 result different from [its] precedent.” Id. at 405–06. “Clearly established Federal law” in 25 § 2254(d)(1) refers to the Supreme Court’s precedents in effect at the time the state court 26 renders its decision. Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003); Greene v. Fisher, 27 28 2 None of the rules that Lopez relies upon qualify as “new” under Teague v. Lane, 489 U.S. 288 (1989). -3- 1 132 S. Ct. 38, 44 (2011). “A legal principle is ‘clearly established’ within the meaning of 2 this provision only when it is embodied in a holding of this Court.” Thaler v. Haynes, 559 3 U.S. 43, 47 (2010). In applying these standards, the federal habeas court reviews the last 4 reasoned decision by the state court. Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 5 2005). 6 A state court’s decision is an unreasonable application of clearly established 7 federal law “if the state court identifies the correct governing legal principle . . . but 8 unreasonably applies that principle to the facts of the prisoner’s case.” Lockyer, 538 U.S. 9 at 75. The “unreasonable application” clause requires the state court’s application of 10 Supreme Court law to be more than incorrect or erroneous in the eyes of the reviewing 11 court; it must be objectively unreasonable. Id. Habeas is not granted merely when a 12 federal court disagrees with a state court’s constitutional interpretation: “the most 13 important point is that an unreasonable application of federal law is different than an 14 incorrect application of federal law.” Williams, 529 U.S. at 410. 15 II. 16 17 ANALYSIS Magistrate Judge Anderson correctly concluded that Lopez’s claims are either not cognizable on federal habeas review or lack merit. 18 A. Ground One 19 Lopez styles his first ground for relief as “Constructive Fraud,” but his filings 20 make clear that he challenges the state court’s subject matter jurisdiction to hear the 21 criminal case. Lopez reasons that because the state was not injured and he did not commit 22 the crime, the government was not injured and therefore did not have standing to bring a 23 criminal case. Arizona’s constitution vests the superior court with “original jurisdiction of 24 . . . [c]riminal cases amounting to a felony, and cases of misdemeanor not otherwise 25 provided for by law.” Ariz. Const. art. VI § 14. The Arizona legislature has also generally 26 endowed Arizona courts with “jurisdiction over an offense that a person commits by his 27 own conduct . . . if . . . [c]onduct constituting any element of the offense or a result of 28 such conduct occurs within this state . . . .” Ariz. Rev. Stat. § 13-108(A). -4- 1 Insofar as Lopez challenges whether the Arizona Constitution and statutes 2 properly assign jurisdiction to hear criminal cases to the superior court, he has not shown 3 a violation of federal law. See Jones v. Attorney Gen. of Cal., 280 F. App’x 646, 647 (9th 4 Cir. 2008); Wright v. Angelone, 151 F.3d 151, 157 (4th Cir. 1998) (“Because Wright’s 5 claim, when pared down to its core, rests solely upon an interpretation of Virginia’s case 6 law and statutes, it is simply not cognizable on federal habeas review.”); Poe v. Caspari, 7 39 F.3d 204, 207 (8th Cir. 1994) (“The question of whether the Missouri courts had 8 jurisdiction to sentence Poe was one solely of state law and is therefore not properly 9 before this court.”); U.S. ex rel. Roche v. Scully, 739 F.2d 739, 741–42 (2d Cir. 1984) 10 (“[T]he jurisdictional argument must be rejected because it fails to raise an issue of 11 federal law, which is an essential prerequisite to habeas relief. . . . The State of New York 12 clearly has jurisdiction over the offenses charged. A violation of its laws allocating that 13 jurisdiction among its various counties does not create a federal constitutional issue.”); 14 Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976) (“Determination of whether a state 15 court is vested with jurisdiction under state law is a function of the state courts, not the 16 federal judiciary.”). But see Ex parte Siebold, 100 U.S. 371, 375 (1879) (addressing the 17 federal constitution and stating in dicta that “[t]he only ground on which this court, or any 18 court, without some special statute authorizing it, will give relief on habeas corpus to a 19 prisoner under conviction and sentence of another court is the want of jurisdiction in such 20 court over the person or the cause, or some other matter rendering its proceedings void.”). 21 Attaching the phrase “due process violation” to the claim, without a specific federal 22 theory, does not “transform a state-law issue into a federal one . . . .” Langford v. Day, 23 110 F.3d 1380, 1389 (9th Cir. 1996). 24 To the extent his jurisdictional argument is that the state lacks standing to 25 prosecute criminal cases, that argument is incorrect. State governments always have 26 standing under the federal constitution to bring criminal prosecutions. The state 27 proscribes certain conduct through legislative and executive enactments and it naturally 28 has standing to enforce those proscriptions. That is the very essence of the way the -5- 1 criminal prosecution system functions in our system of government. As for Lopez’s claim 2 that he did not commit the crime, he does not present any evidence to support his claim. 3 His jurisdictional argument therefore fails.3 4 B. 5 Lopez’s second claim for relief centers on two alleged errors: (1) the trial court 6 erred by failing to give a certain jury instruction relating to the forgery charge and (2) the 7 state failed to produce sufficient evidence that Lopez possessed the marijuana. The 8 applicable forgery provision is found at Ariz. Rev. Stat. § 13-2002. Subsection A of that 9 statute lays out the elements of the offense of forgery. Subsection B reads “The 10 possession of five or more forged instruments may give rise to an inference that the 11 instruments are possessed with an intent to defraud.” § 13-2002(B). Lopez claims the 12 state trial court erred by failing to instruct the jury that the statute allows for a negative 13 inference, namely that possession of less than five forged instruments should not give rise 14 to an inference of intent to defraud. 15 16 17 18 19 20 21 22 23 Ground Two The Arizona Court of Appeals squarely addressed and rejected this claim on direct review: Lopez argues the judge improperly instructed the jury by failing to tell them subsection B of A.R.S. § 13-2002 (2010) essentially negates any inference of intent to defraud if a person possesses fewer than five forged instruments. We disagree. Although the statute gives rise to an inference of intent with five or more forged instruments, it cannot reasonably be construed to allow the negative inference—that there is no inference of intent if the person possessed fewer than five forged instruments. The court, therefore, properly instructed the jury on the elements of possessing a forged instrument with the intent to defraud. (Doc. 20, Ex. N at 7–8 (footnote omitted).) 24 Once again, Lopez’s argument is concerned solely with state law—he disagrees 25 with the analysis of the Court of Appeals of the relevant statute. Jury instructions and 26 3 27 28 Because the Court agrees with the conclusions in the R&R, it does not address the state’s alternative argument that Lopez procedurally defaulted his claim. See 28 U.S.C. § 2254(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”). -6- 1 potential errors therein are not federal constitutional problems, except for the rare 2 instance where “the ailing instruction by itself so infected the entire trial that the resulting 3 conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 71–72 (1991) (internal 4 quotation marks omitted). Lopez has not made such a showing. He has not demonstrated 5 that the failure to give an instruction on a questionable negative inference of a particular 6 statutory provision contaminated the verdict in his case. 7 Lopez also makes general assertions that the state failed to produce sufficient 8 evidence. He claims that the state failed to produce sufficient evidence of possession and 9 that it relied too much on presumption and hearsay. “A due process claim based on 10 insufficiency of the evidence can only succeed when, viewing all the evidence in the light 11 most favorable to the prosecution, no rational trier of fact could have found the essential 12 elements of the crime beyond a reasonable doubt.” Emery v. Clark, 643 F.3d 1210, 1213– 13 14 (9th Cir. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 319, 324 (1979)). But 14 habeas review under ADEPA is even more constrained and asks “only whether the state 15 court’s decision was contrary to or reflected an unreasonable application of Jackson to 16 the facts of a particular case.” Id. 17 The Arizona Court of Appeals addressed the sufficiency of the evidence. It 18 “reviewed the entire record” and found “ample evidence [that] supports Lopez’s 19 conviction and each count.” (Doc. 20-2, Ex. N at 4–6.) Lopez makes only general 20 objections and assertions and has not shown how the state court’s decision was an 21 unreasonable application of the principles discussed in Jackson. The claims raised in 22 Ground Two provide no basis for relief. 23 C. Ground Three 24 Lopez describes Ground Three as “[t]he two Judges unfairly invoked an 25 adversarial role rather than a neutral role.” (Doc. 1 at 8.) To support that claim, he then 26 lists a series of rulings and actions by the trial court: (1) denying his motions, (2) giving 27 improper jury instructions, (3) not allowing Lopez to interview government witnesses 28 prior to trial, (4) allowing witnesses to hear each other’s testimony, (5) failing to strike -7- 1 certain jurors and improperly striking others, (6) making an invalid sentence 2 enhancement, and (7) allowing the prosecutor to coach the witnesses. 3 Lopez does not specify which motions were denied and on what basis. The Court 4 is therefore unable to entertain that claim. And, as discussed above, jury instructions are a 5 matter of state law and objections to them are not cognizable upon habeas review. Nor 6 does Lopez have a constitutional right to interview witnesses prior to trial. “There is no 7 constitutional right to discover evidence favorable to the state in a criminal case, so the 8 inability of a defendant to interview witnesses is a constitutional problem only if the state 9 artificially restricted the defendant’s ability to obtain evidence.” U.S. ex rel. Jones v. 10 DeRobertis, 766 F.2d 270, 274 (7th Cir. 1985) (citing Wardius v. Oregon, 412 U.S. 470, 11 474 (1973)). Lopez has not shown that the state actually restricted his ability to obtain 12 evidence for himself. 13 As for how the trial judge conducted the trial in his courtroom, e.g., allowing 14 witnesses to be present, this Court does not exercise “supervisory authority over criminal 15 proceedings in state courts.” Duckett v. Godinez, 67 F.3d 734, 741 (9th Cir. 1995). The 16 trial court can conduct the proceedings as it sees fit so long as those proceedings comport 17 with due process. Even with regard to the trial court’s striking/failure to strike certain 18 potential jurors, Lopez has not shown how that violated a constitutional right. That 19 certain jurors were related to law enforcement officers does not automatically pollute the 20 jury pool to the extent that the verdict resulted from a denial of due process. Nor has 21 Lopez specified which evidentiary rulings he contests. Even if Lopez had described his 22 challenges to the trial court’s actions with the requisite specificity, and even assuming 23 there were errors, Lopez has failed to show that such errors were so fundamental and so 24 pervasive that a court of another sovereign can declare that the proceeding lacked due 25 process. Merely invoking the due process clause does not make it so. A petitioner is not 26 denied due process every time the court makes an error. Little v. Crawford, 449 F.3d 27 1075, 1082 (9th Cir. 2006). 28 It is not clear what the basis is for Lopez’s claim that the trial judge made an -8- 1 invalid sentence enhancement. If he disputes the trial court’s application of Arizona 2 sentencing statutes, his challenge is a matter of state law that is not cognizable on federal 3 habeas review. In addition, the Arizona Court of Appeals affirmed the trial court’s 4 enhancement. (Doc. 20-2, Ex. N at 8–9.) If, as his Objection to the R&R indicates, he is 5 challenging the trial court’s sentence under Blakely v. Washington, 542 U.S. 296 (2004), 6 that claim is defaulted. He did not raise this federal claim on direct appeal or in his post- 7 conviction petition. He has therefore failed to exhaust his claim in state court. 28 U.S.C. 8 § 2254(b)(1)(A). If a petitioner has failed to “fairly present” his federal claims to the state 9 courts—and has therefore failed to fulfill AEDPA’s exhaustion requirement—the habeas 10 court must determine whether state remedies are still available for the petitioner; if not, 11 those claims are procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 735 12 n.1 (1991). Rule 32.2(a) of the Arizona Rules of Criminal Procedure sharply limits the 13 availability of claims in a post-conviction relief proceeding. Specifically, “[a] defendant 14 shall be precluded from relief under this rule based upon any ground: (1) Raisable on 15 direct appeal under Rule 31 or on a post-trial motion under Rule 24; (2) Finally 16 adjudicated on the merits on appeal or in any previous collateral proceeding; (3) That has 17 been waived at trial, on appeal, or in any previous collateral proceeding.” Lopez’s 18 Blakely claim qualifies as a claim that should have been raised on direct appeal, which 19 means that it would be denied on any post-conviction review. He therefore defaulted the 20 claim and has not shown cause or prejudice to excuse the default. 21 D. Ground Four 22 Lopez’s final claim for relief involves multiple allegations of prosecutorial 23 misconduct. He claims the prosecutor used false evidence, violated Brady v. Maryland by 24 intentionally withholding evidence, relied on evidence from an illegal search of the home 25 of Lopez’s in-laws, and violated his Sixth Amendment right to counsel when the public 26 defender office instructed Lopez’s attorney to not assist him during trial and sentencing. 27 A prosecutor’s actions run afoul of the federal constitution only when those 28 actions “so infected the trial with unfairness as to make the resulting conviction a denial -9- 1 of due process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (internal quotation 2 marks omitted). “On habeas review, constitutional errors of the ‘trial type,’ including 3 prosecutorial misconduct, warrant relief only if they ‘had substantial and injurious effect 4 or influence in determining the jury’s verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th 5 Cir. 2012) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637–38 (1993)). 6 Lopez alleges that the prosecution introduced false evidence regarding the 7 authorship of a police report and certain items that were seized during a search. A 8 prosecutor’s knowing use of false testimony to get a conviction violates due process. 9 Napue v. Illinois, 360 U.S. 264, 269 (1959). Nevertheless, a petitioner must show “that 10 (1) the testimony (or evidence) was actually false, (2) the prosecution knew or should 11 have known that the testimony was actually false, and (3) . . . the false testimony was 12 material.” United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003). While Lopez 13 does provide more specific allegations regarding the alleged misconduct surrounding the 14 police report than at other points in his Objection, the Arizona Court of Appeals 15 addressed Lopez’s arguments regarding false evidence and rejected them. (Doc. 20-2, Ex. 16 O at 6–7.) Lopez does not advance any argument for why that decision was not in 17 accordance with Napue or otherwise contravened federal law. That is the inquiry 18 mandated by AEDPA. His claim of false evidence therefore fails. 19 An allegation that the prosecution failed to disclose material evidence is governed 20 by Brady v. Maryland, 373 U.S. 83, 87 (1963). Under Brady, “[t]he government violates 21 its constitutional duty to disclose material exculpatory evidence where (1) the evidence in 22 question is favorable to the accused in that it is exculpatory or impeachment evidence, (2) 23 the government willfully or inadvertently suppresses this evidence, and (3) prejudice 24 ensues from the suppression (i.e., the evidence is ‘material’).” Silva v. Brown, 416 F.3d 25 980, 985 (9th Cir. 2005). Once again, the Arizona Court of Appeals addressed Lopez’s 26 claim of failure to disclose and rejected it on the merits. (Doc. 20-2, Ex. O at 6–7.) Lopez 27 does not present a case for why that decision runs contrary to established federal law. The 28 Court must therefore reject his Brady claim. - 10 - 1 The R&R does not address Lopez’s argument that prosecutors used evidence that 2 was illegally seized. (Doc. 1 at 9.) Nevertheless, the Arizona Court of Appeals directly 3 addressed this question: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Lopez argues the marijuana was the fruit of an illegal search for two separate reasons. First, he argues the search warrant was deficient because the statement forming the basis of the warrant was obtained in violation of his Miranda rights. Miranda, however, does not require exclusion of the physical fruits of a defendant’s voluntary, unwarned statement, United States v. Patane, 542 U.S. 630, 641–42, 644–45, 124 S. Ct. 2620, 2629, 2631, 159 L. Ed. 2d 667 (2004) (plurality opinion), which was the case here. Thus, because the court found based on ample evidence Lopez’s statements were voluntary, albeit obtained in violation of Miranda, the police properly could use Lopez’s statement in the affidavit and the items seized did not need to be excluded. Second, Lopez argues the police improperly entered the house before obtaining the search warrant. The record reveals Lopez’s in-laws invited the officers into the house before the judicial officer issued the search warrant while the officers were securing the house. Thus, the officers did not enter the house improperly, and the court properly admitted the marijuana into evidence. (Doc. 20-2, Ex. O at 6.) Lopez has not shown how this decision contravened federal law. Finally, Lopez asserts an ineffective assistance of counsel claim. Yet Lopez knowingly and voluntarily sought to represent himself at trial. (Doc. 20-1, Exs. F, G, H.) It is true that the court retained advisory counsel for him, but advisory counsel has very limited duties and involvement in the case. (Id., Ex. H.) Lopez argues that counsel did not assist him at trial, but he waived his right to counsel before the trial court and does not contest that waiver. See Faretta v. California, 422 U.S. 806, 807 (1975) (holding that a defendant in a state criminal trial has the right to proceed without counsel if found to have voluntarily and intelligently elected to do so). Nor does he offer how his advisory counsel was deficient. The emails he cites appear to describe to the appropriate instructions that limit the involvement of his advisory counsel in the defense, as Lopez himself wished. (Id., Ex. M.) On these facts, Lopez has not shown a violation of his Sixth Amendment right to counsel.4 28 4 To the extent Lopez’s Objection contains additional claims for relief, the Court - 11 - CONCLUSION 1 2 Lopez’s claims are either not cognizable on federal habeas review or lack merit. 3 IT IS THEREFORE ORDERED that Lopez’s Petition for Writ of Habeas 4 Corpus (Doc. 1) is denied and dismissed with prejudice. The Clerk of Court is directed 5 to enter judgment and terminate this case. 6 7 IT IS FURTHER ORDERED that Magistrate Judge Anderson’s R&R (Doc. 23) is ACCEPTED. 8 IT IS FURTHER ORDERED that a Certificate of Appealability and leave to 9 proceed in forma pauperis on appeal is DENIED because Lopez has not made a 10 substantial showing of the denial of a constitutional right. The Clerk of Court is directed 11 to enter judgment on this matter. 12 Dated this 2nd day of August, 2013. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has not considered them because they were not included in his Petition. Furthermore, any amendment would be untimely. - 12 -

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