Zanzot #092657 v. Ryan et al

Filing 27

REPORT AND RECOMMENDATION: IT IS THEREFORE RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) be DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER RECOMMENDED that a Certificate of Ap pealability and leave to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Magistrate Judge Michelle H Burns on 12/07/2015. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Joseph Zanzot,

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Petitioner,

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vs.

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Charles L. Ryan, et al.,
Respondents.

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CIV 15-0485-PHX-DJH (MHB)
REPORT AND RECOMMENDATION

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TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT COURT:
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Petitioner James Joseph Zanzot, who is confined in the Arizona State Prison Complex,
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filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1).
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Respondents filed an Answer (Doc. 16), and Petitioner filed a Reply (Doc. 25).
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BACKGROUND1

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On June 18, 2008, Petitioner was indicted on one count of burglary in the third degree,
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a class 4 felony, and 22 counts of voyeurism, class 5 felonies. (Exh. A.) Pursuant to a plea
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agreement, Petitioner was thereafter convicted in Maricopa County Superior Court, of
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burglary with sexual motivation and two counts of voyeurism, class 4 felonies and was
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subsequently sentenced to a cumulative 12.5-year term of imprisonment. (Exhs. A-D.)
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Petitioner thereafter filed a “of-right” notice of post-conviction relief (“PCR”). (Exh.
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E.) Petitioner’s appointed counsel filed a notice of completion of PCR review, avowing that,
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Unless otherwise noted, the following facts are derived from the exhibits submitted
with Doc. 16 – Respondents’ Answer.

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after reviewing the record, she was unable to find any colorable claims for relief. (Exh. F.)

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Petitioner thereafter filed a pro per PCR petition in the state trial court relief raising the

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following claims: (1) the state’s grand jury proceedings were conducted without Petitioner’s

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presence; (2) the prosecutor engaged in misconduct during the grand jury proceedings by,

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(a) misrepresenting evidence, and (b) suborning perjury; (3) there was insufficient evidence

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regarding the burglary count; (4) there was insufficient evidence of sexual motivation; (5)

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the trial court erred in imposing aggravated and consecutive sentences; (6) because the state

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failed to present sufficient evidence that the offenses involved a sexual motivation, the trial

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court erred in requiring Petitioner to register as a sex offender; (7) the plea agreement was

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invalid because there was an insufficient factual basis to support the burglary and voyeurism

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charges, defense counsel did not inform Petitioner regarding the consequences of the plea,

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and the state violated the terms of the plea agreement; (8) the state’s DNA testing procedures

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were flawed; and (9) trial counsel rendered ineffective assistance by failing to, (a) raise an

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argument regarding prosecutorial misconduct and misrepresentation of evidence, (b) conduct

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a sufficient pretrial investigation or file motions regard the grand jury, (c) present mitigating

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factors at sentencing, and (d) challenge the imposition of aggravated and consecutive

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sentences. (Exh. G.)

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On December 3, 2012, the state court dismissed the PCR petition, finding that
Petitioner had failed to state a colorable claim for relief. (Exh. J.)

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Petitioner thereafter filed a petition for review in the Arizona Court of Appeals raising

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the following claims: (1) defense counsel rendered ineffective assistance by failing to, (a)

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challenge a change to the offense date during the change of plea hearing, and (b) adequately

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convey the consequences of accepting the plea agreement; (2) the prosecutor engaged in

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misconduct by, (a) amending the dates of the offenses during the change of plea hearing, and

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(b) violating the terms of the plea agreement during sentencing; (3) the trial court erred in

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finding that Petitioner knowingly, intelligently, and voluntarily entered into the plea

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agreement; (4) the trial court erred by imposing consecutive sentences; (5) the trial court

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erred by imposing aggravated consecutive sentences; and (6) the trial court failed to give

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Petitioner the correct amount of pre-incarceration credit. (Exh. K.)

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On March 18, 2014, the Arizona Court of Appeals granted review, but denied relief.

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(Exh. M.) The court found that Petitioner had only properly presented two issues for review:

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(1) a challenge to the grand jury proceedings; and (2) the trial court could not consider his

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prior convictions as an aggravating factor for sentencing purposes. (Id.) The court, however,

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rejected the claims finding that: (1) by pleading guilty, Petitioner had waived his right to

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challenge the grand jury proceedings; and (2) regarding the consideration of Petitioner’s prior

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convictions of aggravating factors, the plea agreement stated that the state would not allege

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the prior convictions for purposes of enhancement (not aggravation), with the exception of

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burglary, which Petitioner expressly agreed to plead guilty to with one historical felony

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conviction for enhancement purposes. (Id.) The court further found that Petitioner’s

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remaining claims were precluded, stating that:
While some of the issues may be similar to issues he presented below,
[Petitioner] presents these issues in new contexts he did not present below
and/or supports these issues with new arguments he did not present below. A
petition for review may not present issues and arguments not first presented to
the trial court.

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(Id.) Petitioner did not seek review in the Arizona Supreme Court.

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On March 16, 2015, Petitioner filed a petition for writ of habeas corpus in this Court.

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(Doc. 1.) Petitioner raises four grounds for relief. In Ground One, Petitioner alleges that the

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state breached the plea agreement in violation of the Fifth and Fourteenth Amendments. (Id.)

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In Ground Two, Petitioner alleges that the prosecutors committed misconduct, in violation

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of the Fifth and Fourteenth Amendments. (Id.) In Ground Three, Petitioner alleges that

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defense counsel rendered ineffective assistance by failing to object to the imposition of

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aggravated and consecutive sentences. (Id.) In Ground Four, Petitioner alleges that the trial

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court erred when it imposed an aggravated sentence. (Id.)

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DISCUSSION

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In their Answer, Respondents contend that Grounds One through Four are

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procedurally defaulted. As such, Respondents request that the Court deny and dismiss

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Petitioner’s habeas petition with prejudice.

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A state prisoner must exhaust his remedies in state court before petitioning for a writ

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of habeas corpus in federal court. See 28 U.S.C. § 2254(b)(1) and (c); Duncan v. Henry, 513

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U.S. 364, 365-66 (1995); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). To

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properly exhaust state remedies, a petitioner must fairly present his claims to the state’s

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highest court in a procedurally appropriate manner. See O’Sullivan v. Boerckel, 526 U.S.

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838, 839-46 (1999). In Arizona, a petitioner must fairly present his claims to the Arizona

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Court of Appeals by properly pursuing them through the state’s direct appeal process or

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through appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th

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Cir. 1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).

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Proper exhaustion requires a petitioner to have “fairly presented” to the state courts

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the exact federal claim he raises on habeas by describing the operative facts and federal legal

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theory upon which the claim is based. See, e.g., Picard v. Connor, 404 U.S. 270, 275-78

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(1971) (“[W]e have required a state prisoner to present the state courts with the same claim

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he urges upon the federal courts.”). A claim is only “fairly presented” to the state courts

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when a petitioner has “alert[ed] the state courts to the fact that [he] was asserting a claim

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under the United States Constitution.” Shumway v. Payne, 223 F.3d 982, 987 (9th Cir. 2000)

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(quotations omitted); see Johnson v. Zenon, 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner

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fails to alert the state court to the fact that he is raising a federal constitutional claim, his

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federal claim is unexhausted regardless of its similarity to the issues raised in state court.”).

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A “general appeal to a constitutional guarantee,” such as due process, is insufficient

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to achieve fair presentation. Shumway, 223 F.3d at 987 (quoting Gray v. Netherland, 518

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U.S. 152, 163 (1996)); see Castillo v. McFadden, 399 F.3d 993, 1003 (9th Cir. 2005)

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(“Exhaustion demands more than drive-by citation, detached from any articulation of an

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underlying federal legal theory.”). Similarly, a federal claim is not exhausted merely because

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its factual basis was presented to the state courts on state law grounds – a “mere similarity

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between a claim of state and federal error is insufficient to establish exhaustion.” Shumway,

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223 F.3d at 988 (quotations omitted); see Picard, 404 U.S. at 275-77.

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Even when a claim’s federal basis is “self-evident,” or the claim would have been

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decided on the same considerations under state or federal law, a petitioner must still present

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the federal claim to the state courts explicitly, “either by citing federal law or the decisions

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of federal courts.” Lyons v. Crawford, 232 F.3d 666, 668 (9th Cir. 2000) (quotations omitted),

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amended by 247 F.3d 904 (9th Cir. 2001); see Baldwin v. Reese, 541 U.S. 27, 32 (2004)

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(claim not fairly presented when state court “must read beyond a petition or a brief ... that

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does not alert it to the presence of a federal claim” to discover implicit federal claim).

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Additionally, under the independent state grounds principle, a federal habeas court

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generally may not review a claim if the state court’s denial of relief rests upon an

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independent and adequate state ground. See Coleman v. Thompson, 501 U.S. 722, 731-32

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(1991). The United States Supreme Court has explained:

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In the habeas context, the application of the independent and adequate state
ground doctrine is grounded in concerns of comity and federalism. Without the
rule, a federal district court would be able to do in habeas what this Court
could not do on direct review; habeas would offer state prisoners whose
custody was supported by independent and adequate state grounds an end run
around the limits of this Court’s jurisdiction and a means to undermine the
State’s interest in enforcing its laws.

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Id. at 730-31. A petitioner who fails to follow a state’s procedural requirements for

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presenting a valid claim deprives the state court of an opportunity to address the claim in

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much the same manner as a petitioner who fails to exhaust his state remedies. Thus, in order

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to prevent a petitioner from subverting the exhaustion requirement by failing to follow state

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procedures, a claim not presented to the state courts in a procedurally correct manner is

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deemed procedurally defaulted, and is generally barred from habeas relief. See id. at 731-32.

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Claims may be procedurally barred from federal habeas review based upon a variety

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of factual circumstances. If a state court expressly applied a procedural bar when a petitioner

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attempted to raise the claim in state court, and that state procedural bar is both

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“independent”2 and “adequate”3 – review of the merits of the claim by a federal habeas court

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is barred. See Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) (“When a state-law default

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prevents the state court from reaching the merits of a federal claim, that claim can ordinarily

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not be reviewed in federal court.”) (citing Wainwright v. Sykes, 433 U.S. 72, 87-88 (1977)

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and Murray v. Carrier, 477 U.S. 478, 485-492 (1986)).

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Moreover, if a state court applies a procedural bar, but goes on to alternatively address

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the merits of the federal claim, the claim is still barred from federal review. See Harris v.

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Reed, 489 U.S. 255, 264 n.10 (1989) (“[A] state court need not fear reaching the merits of

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a federal claim in an alternative holding. By its very definition, the adequate and independent

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state ground doctrine requires the federal court to honor a state holding that is a sufficient

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basis for the state court’s judgment, even when the state court also relies on federal law. ...

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In this way, a state court may reach a federal question without sacrificing its interests in

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finality, federalism, and comity.”) (citations omitted); Bennett v. Mueller, 322 F.3d 573, 580

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(9th Cir. 2003) (“A state court’s application of a procedural rule is not undermined where, as

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here, the state court simultaneously rejects the merits of the claim.”) (citing Harris, 489 U.S.

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at 264 n.10).

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A procedural bar may also be applied to unexhausted claims where state procedural

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rules make a return to state court futile. See Coleman, 501 U.S. at 735 n.1 (claims are barred

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from habeas review when not first raised before state courts and those courts “would now

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find the claims procedurally barred”); Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir.

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2002) (“[T]he procedural default rule barring consideration of a federal claim ‘applies only

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A state procedural default rule is “independent” if it does not depend upon a federal
constitutional ruling on the merits. See Stewart v. Smith, 536 U.S. 856, 860 (2002).
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A state procedural default rule is “adequate” if it is “strictly or regularly followed.”
Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (quoting Hathorn v. Lovorn, 457 U.S. 255,
262-53 (1982)).

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when a state court has been presented with the federal claim,’ but declined to reach the issue

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for procedural reasons, or ‘if it is clear that the state court would hold the claim procedurally

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barred.’”) (quoting Harris, 489 U.S. at 263 n.9).

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In Arizona, claims not previously presented to the state courts via either direct appeal

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or collateral review are generally barred from federal review because an attempt to return to

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state court to present them is futile unless the claims fit in a narrow category of claims for

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which a successive petition is permitted. See Ariz.R.Crim.P. 32.1(d)-(h), 32.2(a) (precluding

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claims not raised on appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar),

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32.9(c) (petition for review must be filed within thirty days of trial court’s decision). Arizona

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courts have consistently applied Arizona’s procedural rules to bar further review of claims

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that were not raised on direct appeal or in prior Rule 32 post-conviction proceedings. See,

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e.g., Stewart, 536 U.S. at 860 (determinations made under Arizona’s procedural default rule

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are “independent” of federal law); Smith v. Stewart, 241 F.3d 1191, 1195 n.2 (9th Cir. 2001)

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(“We have held that Arizona’s procedural default rule is regularly followed [“adequate”] in

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several cases.”) (citations omitted), reversed on other grounds, Stewart v. Smith, 536 U.S.

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856 (2002); see also Ortiz v. Stewart, 149 F.3d 923, 931-32 (rejecting argument that Arizona

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courts have not “strictly or regularly followed” Rule 32 of the Arizona Rules of Criminal

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Procedure); State v. Mata, 185 Ariz. 319, 334-36, 916 P.2d 1035, 1050-52 (Ariz. 1996)

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(waiver and preclusion rules strictly applied in post-conviction proceedings).

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The federal court will not consider the merits of a procedurally defaulted claim unless

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a petitioner can demonstrate that a miscarriage of justice would result, or establish cause for

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his noncompliance and actual prejudice. See Schlup v. Delo, 513 U.S. 298, 321 (1995);

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Coleman, 501 U.S. at 750-51; Murray, 477 U.S. at 495-96. Pursuant to the “cause and

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prejudice” test, a petitioner must point to some external cause that prevented him from

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following the procedural rules of the state court and fairly presenting his claim. “A showing

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of cause must ordinarily turn on whether the prisoner can show that some objective factor

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external to the defense impeded [the prisoner’s] efforts to comply with the State’s procedural

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rule. Thus, cause is an external impediment such as government interference or reasonable

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unavailability of a claim’s factual basis.” Robinson v. Ignacio, 360 F.3d 1044, 1052 (9th Cir.

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2004) (citations and internal quotations omitted). Ignorance of the State’s procedural rules

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or other forms of general inadvertence or lack of legal training and a petitioner’s mental

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condition do not constitute legally cognizable “cause” for a petitioner’s failure to fairly

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present his claim. Regarding the “miscarriage of justice,” the Supreme Court has made clear

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that a fundamental miscarriage of justice exists when a Constitutional violation has resulted

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in the conviction of one who is actually innocent. See Murray, 477 U.S. at 495-96.

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In Ground One, Petitioner argues that the state breached the plea agreement during

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sentencing by alleging, as an aggravating factor, that Petitioner was on probation when he

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committed the offenses. (Doc. 1 at 6.) In Ground Two, Petitioner argues that the prosecutor

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engaged in misconduct during the grand jury proceedings by misrepresenting evidence and

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by presenting false testimony. (Doc. 1 at 7.) In Ground Four, Petitioner argues that the trial

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court erred by: (a) considering, as an aggravating factor, that Petitioner was on probation at

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the time of the offenses; (b) not considering Petitioner’s waiver of probation as a mitigating

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factor; and (c) requiring that Petitioner register as a sex offender. (Doc. 1 at 9.)

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Although Petitioner arguably raised these issues in his PCR petition in the state court,

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when Petitioner subsequently sought relief in the Arizona Court of Appeals, the appellate

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court concluded that Petitioner had properly presented only two issues - neither of which he

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currently raises in his habeas petition: (1) a challenge to the grand jury proceeding; and (2)

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the trial court erred in considering Petitioner’s prior conviction as an aggravating factor for

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sentencing purposes. (Exh. M.) As to the remaining claims set forth in the petition for review,

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the appellate court found that Petitioner failed to raise “those same issues in the petition for

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post-conviction relief he filed below. While some of these issues may be similar to issues he

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presented below, [Petitioner] presents these issues in new contexts he did not present below

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and/or supports these issues with new arguments he did not present below. A petition for

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review may not present issues and arguments not first presented to the trial court.” (Id.) Thus,

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Petitioner did not properly exhaust Grounds One, Two, and Four in state court. See Castillo,

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399 F.3d at 999 (“To exhaust his Arizona remedies, Castillo had to give the Arizona courts

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a ‘fair opportunity’ to act on his federal due process claim before presenting it to the federal

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courts. ... We consider Castillo’s briefing to the Arizona Court of Appeals to determine

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whether he fairly presented his federal due process claim to the Arizona courts.”) (citations

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omitted); Swoopes, 196 F.3d at 1011 (except in cases in which life sentences or the death

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penalty has been imposed, Arizona state prisoners properly exhaust their claims for the

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purpose of federal habeas corpus by presenting them to the Arizona Court of Appeals). And,

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any return to state court to properly exhaust these claims would be futile. See Ariz.R.Crim.P.

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32.2(a) (precluding claims not raised on appeal or in prior petitions for post-conviction

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relief), 32.4(a) (time bar). Accordingly, Grounds One, Two, and Four are procedurally

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defaulted.

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In Ground Three, Petitioner argues that trial defense counsel rendered ineffective

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assistance by failing to object at sentencing when the state allegedly violated the plea

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agreement by alleging, as an aggravating factor, that Petitioner was on probation at the time

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of the offense. (Doc. 1 at 8.)

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Petitioner never presented this claim to the state trial or appellate courts. (Exhs. G, K.)

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Although the record reflects that, in his PCR petition, Petitioner alleged that defense counsel

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rendered ineffective assistance by “not ... objecting to aggravated consecutive sentences,”

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he provided no specific grounds on which defense counsel should have objected. Similarly,

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although Petitioner raised an ineffective assistance of counsel claim in his petition for review

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to the Arizona Court of Appeals, he never argued that defense counsel rendered ineffective

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assistance by failing to object when the state allegedly violated the plea agreement by

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alleging, as an aggravating factor, that Petitioner was on probation at the time of the offense.

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As such, Petitioner failed to properly present this claim to the state courts. See Castillo, 399

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F.3d at 999; Swoopes, 196 F.3d at 1011. And, any return to state court to properly present

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Ground Three would be futile. See Ariz.R.Crim.P. 32.2(a) (precluding claims not raised on

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appeal or in prior petitions for post-conviction relief), 32.4(a) (time bar). Accordingly,

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Ground Three is procedurally defaulted.

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Petitioner has also not established grounds to excuse the procedural default of

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Grounds One through Four by a showing of cause and prejudice, and he has not argued a

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fundamental miscarriage of justice. And, as stated previously, ignorance of the State’s

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procedural rules or other forms of general inadvertence or lack of legal training and a

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petitioner’s mental condition do not constitute legally cognizable “cause” for a petitioner’s

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failure to fairly present his claims.

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Moreover, although “[i]nadequate assistance of counsel at initial-review collateral

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proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective

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assistance at trial,” Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309, 1315 (2012), Petitioner

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fails to argue “cause” for his default of Ground Three pursuant to Martinez.4 In any event,

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the Court notes that Martinez has no application to Ground Three.

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Determining whether an ineffective assistance of counsel claim is “substantial”

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requires a district court to examine the claim under the standards of Strickland v.

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Washington, 466 U.S. 668 (1984). To establish a Sixth Amendment claim of ineffective

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counsel, a petitioner must show that counsel’s performance was objectively deficient and that

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counsel’s deficient performance prejudiced the petitioner. See id. at 687. To be deficient,

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counsel’s performance must fall “outside the wide range of professionally competent

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assistance.” Id. at 690. When reviewing counsel’s performance, the court engages a strong

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presumption that counsel rendered adequate assistance and exercised reasonable professional

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“Cause” is established under Martinez when: (1) the claim of “ineffective assistance
of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no
counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the
state collateral review proceeding was the “initial” review proceeding in respect to the
“ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective
assistance of trial counsel [claim] ... be raised in an initial-review collateral review
proceeding.” Trevino v. Thaler, ___ U.S. ___, 133 S.Ct. 1911, 1918 (2013) (citing Martinez,
132 S.Ct. at 1318-19, 1320-21).

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judgment. See id. “A fair assessment of attorney performance requires that every effort be

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made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of

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counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the

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time.” Id. at 689. Review of counsel’s performance is extremely limited. Acts or omissions

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that “might be considered sound trial strategy” do not constitute ineffective assistance of

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counsel. Id.

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To establish a Sixth Amendment violation, a petitioner must also establish that he

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suffered prejudice as a result of counsel’s deficient performance. See id. at 691-92. To show

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prejudice, a petitioner must demonstrate a “reasonable probability that, but for counsel’s

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unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The

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court need not address both Strickland requirements if the petitioner makes an insufficient

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showing on one. See id. at 697 (explaining that “[i]f it is easier to dispose of an

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ineffectiveness claim on the ground of lack of sufficient prejudice, ... that course should be

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followed”).

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Even assuming deficient performance, other than mere speculation regarding

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“withdraw[ing] from the plea agreement and go[ing] to trial,” Petitioner has failed to

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establish that but for the alleged inadequate representation, he would have received a lesser

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sentence had he gone to trial. See, e.g., Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir.

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2011) (“cursory and vague [ ineffective assistance of counsel claim] cannot support habeas

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relief.”); Jones v. Gomez, 66 F.3d 199, 205 (9th Cir. 1995) (stating that conclusory allegations

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with no reference to the record or other evidence do not warrant habeas relief); James v.

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Borg, 24 F.3d 20, 26 (9th Cir. 1994) (holding that conclusory allegations may be summarily

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rejected). Moreover, the record reflects that had Petitioner gone to trial, he was potentially

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facing 20 additional counts; he had 10 prior felony convictions; he was only released 9 days

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earlier from prison; and he was in prison for similar violations. Because the underlying IAC

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claim is without merit, Petitioner’s PCR counsel was not ineffective for failing to raise it. See

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Martinez, 132 S.Ct. at 1319. And, thus, Petitioner cannot show his IAC claim is a

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“substantial claim” in order to satisfy his burden under Martinez.

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Petitioner, therefore, has failed to present reasons to excuse his procedural defaults.
The Court will recommend that Grounds One through Four be denied and dismissed.
CONCLUSION

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Having determined that Grounds One through Four are procedurally defaulted, the

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Court will recommend that Petitioner’s Petition for Writ of Habeas Corpus be denied and

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dismissed with prejudice.

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IT IS THEREFORE RECOMMENDED that Petitioner’s Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH

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PREJUDICE.

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IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave

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to proceed in forma pauperis on appeal be DENIED because the dismissal of the Petition is

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justified by a plain procedural bar and jurists of reason would not find the procedural ruling

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debatable.

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This recommendation is not an order that is immediately appealable to the Ninth

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Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of

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Appellate Procedure, should not be filed until entry of the district court’s judgment. The

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parties shall have fourteen days from the date of service of a copy of this recommendation

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within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1);

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Rules 72, 6(a), 6(b), Federal Rules of Civil Procedure. Thereafter, the parties have fourteen

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days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of

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Civil Procedure for the United States District Court for the District of Arizona, objections

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to the Report and Recommendation may not exceed seventeen (17) pages in length. Failure

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timely to file objections to the Magistrate Judge’s Report and Recommendation may result

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in the acceptance of the Report and Recommendation by the district court without further

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review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure

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timely to file objections to any factual determinations of the Magistrate Judge will be

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considered a waiver of a party’s right to appellate review of the findings of fact in an order

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or judgment entered pursuant to the Magistrate Judge’s recommendation. See Rule 72,

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Federal Rules of Civil Procedure.

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DATED this 7th day of December, 2015.

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