Hipskind #250823 v. Ryan et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 20 ). The petition for writ of habeas corpus (Doc. 1 ) is denied. A certificate of appealability and leave to proceed in forma pauperis on appeal are denied. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 03/06/2018. (KAS)

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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 Dennis Alan Hipskind, No. CV-16-01713-PHX-DGC Petitioner, 10 11 v. 12 ORDER Charles L Ryan, et al., 13 Respondents. 14 15 16 Petitioner Dennis Hipskind filed a pro se petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. Doc. 1. The Court referred the petition to Magistrate 18 Judge Michelle H. Burns. Doc. 3. Respondents filed a response (Doc. 15), and Petitioner 19 filed a reply (Doc. 19). 20 suggesting that the Court deny the petition. Doc. 20. Petitioner filed objections to the 21 R&R (Doc. 23) and Respondents replied (Doc. 26). The Court will deny the objections 22 and adopt Judge Burns’s recommendation. 23 I. Judge Burns issued a report and recommendation (R&R), Background. 24 Petitioner was convicted by a jury in Maricopa County Superior Court of two 25 counts of sexual abuse, three counts of molestation of a child, and four counts of sexual 26 conduct with a minor. He was sentenced to multiple consecutive terms of imprisonment, 27 the longest of which was life with a possibility of parole after 35 years. He appealed, 28 raising three evidentiary issues and one alleged disclosure violation. Doc. 15-1 1 at 4-29, 101. On June 16, 2011, the Arizona Court of Appeals affirmed, finding no 2 reversible error. Doc. 15-1 at 100-14. The Arizona Supreme Court denied review on 3 February 16, 2012. Doc. 15-1 at 116-26; Doc. 15-2 at 2-3. 4 While the direct appeal was pending, Petitioner filed a notice of post-conviction 5 relief in Maricopa County Superior Court pursuant to Rule 32 of the Arizona Rules of 6 Criminal Procedure. Doc. 15-2 at 5-8. Petitioner’s counsel in that action notified the 7 court that he could find no claim to raise on Petitioner’s behalf. Doc. 15-2 at 10-12. 8 Petitioner filed a petition pro se, which the court denied on March 5, 2013, explaining: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court has reviewed and considered the petition, the State’s response and the defendant’s reply, and the record in this case. The Court has construed the petition liberally to account for the fact that the defendant is representing himself. Interpreted in this fashion, the petition raises the following claims: (1) newly discovered evidence exists that probably would have changed the verdict; (2) the prosecutor committed misconduct by misrepresenting the evidence in her closing argument; (3) the recorded outof court interview of one of the victims should have been excluded at trial pursuant to A.R.S. section 13-4252(A)(8); (4) the Court erred, and the prosecutor committed misconduct, when the State called witnesses for the purpose of asking about incriminating statements by Mr. Hipskind that the State knew the witnesses would deny, intending then to impeach the denials; (5) Count 9 was duplicitous as a result of a jury instruction concerning proof of the date of the offense; and (6) the defendant received ineffective assistance of appellate counsel because appellate counsel failed to raise the duplicity issue and an issue concerning the Court’s rulings on evidence surrounding the State’s decision not to file charges in 1995. There is no “newly discovered evidence” within the meaning of Rule 32. The evidence at issue relates to information conveyed by the mother of the two older children to the person who conducted the recorded interview of the younger one, concerning the stories that the older children had told some years before. Defendant concedes that this information was disclosed to the jury via impeachment of the witnesses. The defendant has waived the prosecutorial misconduct, evidence and jury instruction issues (issues 2, 3, 4 and 5). See Ariz. R. Crim. P. 32.2(a). The issue of impeachment with Mr. Hipskind’s incriminating out-of-court statements was raised on appeal. The other issues could have been raised but were not. -2- 1 The ineffective assistance claims have no merit. The issue of ineffective appellate assistance was not even raised until the reply brief. In any event, the petition does not show that appellate counsel’s decision not to raise the duplicity issue was anything other than a reasonable tactical choice. Even if the defendant had prevailed on this issue he would still be subject to multiple sentences of life imprisonment or the equivalent. As to the rulings on evidence of the 1995 investigation, the petition does not specify the rulings alleged to be incorrect. 2 3 4 5 6 Mostly the defendant’s petition reargues the facts of the case. This Court cannot redetermine the facts. The jury’s decision on the facts is final. 7 8 9 10 Doc. 15-2 at 42-43; Doc. 20 at 2-3. Petitioner filed a petition for review by the Arizona Court of Appeals, which granted review but denied relief. Doc. 15-2 at 87-88. The Court of Appeals issued its mandate on February 11, 2015. 11 Id. at 90. 12 Petitioner’s counsel – the same attorney who found no grounds for post-conviction relief 13 – asked the court to recall the mandate because he had not received a copy and had not 14 advised Petitioner of his right to appeal. Id. at 92. The Court of Appeals granted the 15 request and recalled the mandate on March 19, 2015, giving Petitioner until April 20, 16 2015, to file a petition for review with the Arizona Supreme Court. Id. at 97. Petitioner 17 filed no petition for review, and the Court of Appeals issued its final mandate on 18 June 11, 2015. Doc. 15-2 at 99. Petitioner filed his habeas corpus petition with this 19 Court on May 31, 2016. Doc. 1. 20 II. The Petition and the R&R. 21 Petitioner seeks habeas relief on seven grounds: (1) violation of his due process, 22 equal protection, and Sixth Amendment rights by the introduction of certain testimony at 23 trial; (2) violation of his Sixth Amendment rights by the admission of a transcript of a 24 victim’s interview; (3) violation of his due process and Sixth Amendment rights by a 25 “duplicitous cause conviction”; (4) violation of a prior decision by the State not to 26 prosecute him; (5) violation of his Sixth Amendment rights because the jury did not 27 decide whether one of his sexual conduct convictions was for a first- or second-degree 28 offense; (6) ineffective assistance of counsel at the appellate and post-conviction stages -3- 1 of his case; and (7) violation of his due process rights by a movement among Arizona 2 judges and justices aimed at diminishing the writ of habeas corpus “until it has been 3 effectively eliminated as a tool for challenging convictions.” Doc. 1. 4 Judge Burns found that Petitioner’s claims were barred by the one-year statute of 5 limitations under the Anti-Terrorism and Effective Death Penalty Act of 1996 6 (“AEDPA”). Doc. 20. Judge Burns found that equitable tolling should not be applied 7 and that Petitioner had not shown actual innocence. Id. Alternatively, Judge Burns 8 concluded that each of Petitioner’s claims was procedurally defaulted and that he failed 9 to show cause for the default or actual innocence. Id. 10 III. Petitioner’s Objections and Legal Standard. 11 Petitioner argues that his claims are not barred by the statute of limitations and 12 that application of Arizona’s procedural default rule in this case leads to an impermissible 13 waiver of his constitutional rights. Doc. 23 at 3-13. Petitioner also generally objects to 14 the R&R’s analysis of “the record below,” “the material facts,” and Arizona law, and to 15 its “conclusions of law” and alleged mischaracterizations of Petitioner’s arguments. Id. 16 at 2-3. Petitioner also reargues the merits of his seven grounds for relief. Id. at 13-41. 17 The Court must undertake de novo review of those portions of the R&R to which 18 specific objections are made. See Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1); Thomas 19 v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 20 (9th Cir. 2003). The portions of the R&R to which Petitioner does not specifically object 21 will be adopted without further discussion. Id. The Court will not review Petitioner’s 22 generalized objections, nor undertake a global reevaluation of the merits of Petitioner’s 23 grounds for relief. 24 5276367, at *2 (D. Ariz. Sept. 19, 2013); Reyna-Tapia, 328 F.3d at 1121. 25 IV. See Warling v. Ryan, No. CV 12-01396-PHX-DGC, 2013 WL Analysis. 26 A. 27 The AEDPA establishes a one-year statute of limitations for habeas petitions filed 28 by state prisoners. 28 U.S.C. § 2244(d)(1). The limitation period generally begins to run Statute of Limitations. -4- 1 when the state conviction becomes final “by the conclusion of direct review or the 2 expiration of the time for seeking such review.” § 2244(d)(1)(A). Statutory tolling of the 3 limitation period is available for “[t]he time during which a properly filed application for 4 State post-conviction or other collateral review with respect to the pertinent judgment or 5 claim is pending.” § 2244(d)(2). 6 Judge Burns found that the statute of limitations expired on May 16, 2016. 7 Doc. 20 at 7. This date is calculated by starting the clock on February 12, 2015, the day 8 after the Court of Appeals issued its initial mandate; pausing the clock on March 12, 9 2015, when Petitioner filed the motion to recall the initial mandate; restarting the clock 10 on June 12, 2015, the day after the Court of Appeals issued its final mandate; and adding 11 two days because the one-year date falls on a Saturday. See id. Because this action was 12 not filed until May 31, 2016, Judge Burns found it untimely. Id. 13 Petitioner argues that the 28 days between issuance of the initial mandate and 14 filing of his motion to recall the mandate should be tolled because “the first issued 15 mandate was rendered null and void by that revocation, as a matter of” Arizona law. 16 Doc. 23 at 3. Petitioner asserts that this “unusual situation” is unlike the situation where 17 there is a gap between successive post-conviction relief proceedings. Id. In those cases, 18 the mandate issued at the end of the first proceeding “is still lawfully intact when the 19 defendant initiates his successive” proceeding. Id. Here, he argues, the first mandate 20 “bec[ame] a nullity, as if it had never happened,” once it was recalled. Id. Although 21 Petitioner asserts that this result is directed by Arizona law, he cites no law in support. 22 Respondents argue that Judge Burns correctly found that the limitation period 23 began to run upon issuance of the initial mandate and continued to run until Petitioner 24 filed the motion to recall 28 days later. Doc. 26 at 2 (citing Baker v. Ryan, No. CV 12- 25 0140-TUC-BGM, 2015 WL 997801, at *8 (D. Ariz. Mar. 6, 2015) (where the petitioner 26 did not seek review by the Arizona Supreme Court, his post-conviction proceeding was 27 no longer “pending” under § 2244(d)(2) “as of the date the Arizona Court of Appeals 28 issued its mandate regarding its grant of review but denial of relief”); Bishop v. Dormire, -5- 1 526 F.3d 382, 383 (8th Cir. 2008) (holding that in Missouri, “a properly filed motion to 2 recall the [appellate court’s] mandate tolls the AEDPA statute of limitations”)). The 3 Court agrees with Respondents and Judge Burns. 4 During the 28 days after the initial mandate issued, no other petition or motion 5 was “pending” to toll the limitations period. Petitioner’s counsel filed the motion to 6 recall the mandate for one reason – to extend the time for Petitioner to seek review from 7 the Arizona Supreme Court. Federal courts have held that nothing is “pending” under 8 § 2244(d)(2) between the time when the period to file a timely appeal expires and the 9 filing of a petition for belated appeal, even where the petition to file a belated appeal is 10 ultimately granted. See McMillan v. Sec’y for Dep’t of Corr., 257 F. App’x 249, 252 11 (11th Cir. 2007) (agreeing with the Fifth, Seventh, and Tenth Circuits and citing 12 Melancon v. Kaylo, 259 F.3d 401, 407 (5th Cir. 2001); Gibson v. Klinger, 232 F.3d 799, 13 807 (10th Cir. 2000); Fernandez v. Sternes, 227 F.3d 977, 979 (7th Cir. 2000)); see also 14 Allen v. Mitchell, 276 F.3d 183, 186 (4th Cir. 2001) (agreeing with the majority position 15 that “that nothing is ‘pending’ for purposes of § 2244(d)(2) when the time for seeking 16 review has elapsed and there is no application under consideration by the state court”). 17 As the McMillan court explained: 18 19 20 21 22 While McMillan’s [post-conviction] proceedings were pending until the 30day period to file a timely appeal expired on March 15, 2002 . . . McMillan did not have anything filed in state court for the next 95 days until he filed his petition for belated appeal on June 18, 2002. Regardless of the state court’s later actions granting McMillan’s petition for belated appeal and stating its order should be filed as a new notice of appeal, there was nothing filed in state court during this 95-day period. Thus, there was nothing “pending” for these 95 days under § 2244(d)(2). 23 257 F. App’x at 252. The Court agrees with this reasoning, and finds it consistent with 24 the Supreme Court’s holding in Carey v. Saffold that in “typical ‘appeal’ states,” a 25 petitioner’s application for state collateral review remains “pending” for purposes of the 26 AEDPA only until the state’s prescribed period for filing an appeal expires and no such 27 appeal has been filed. 536 U.S. 214, 219-21 (2002); see also Pace v. DiGuglielmo, 544 28 U.S. 408, 414 (2005) (“When a postconviction petition is untimely under state law, ‘that -6- 1 [is] the end of the matter’ for purposes of § 2244(d)(2).”); Evans v. Chavis, 546 U.S. 189, 2 197 (2006) (“[O]nly a timely appeal tolls AEDPA’s 1-year limitations period for the time 3 between the lower court’s adverse decision and the filing of a notice of appeal in the 4 higher court[.]”). 5 Because Judge Burns correctly found that the limitation period was not tolled 6 during the 28 days between the issuance of the initial mandate and Petitioner’s filing of a 7 motion to recall the mandate, the Court will reject Petitioner’s first objection. Petitioner 8 does not otherwise object to Judge Burns’s findings regarding the statute of limitations. 9 B. Exhaustion and Procedural Default. 10 The AEDPA prohibits a federal court from reviewing a petition for writ of habeas 11 corpus filed “on behalf of a person in custody pursuant to the judgment of a State court” 12 unless the petitioner has “exhausted the remedies available in the courts of the 13 State[.]” 28 U.S.C. § 2254(b)(1)(A); see O’Sullivan v. Boerckel, 526 U.S. 838, 842 14 (1999) (“Before a federal court may grant habeas relief to a state prisoner, the prisoner 15 must exhaust his remedies in state court.”); Kyzar v. Ryan, 780 F.3d 940, 946 (9th Cir. 16 2015) (same). “[T]he exhaustion doctrine is designed to give the state courts a full and 17 fair opportunity to resolve federal constitutional claims before those claims are presented 18 to the federal courts[.]” O’Sullivan, 526 U.S. at 845. 19 To “fairly present” his federal claim in state court, a petitioner must provide the 20 factual and legal basis of the claim. Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009). 21 He must also “make the federal basis of the claim explicit either by specifying particular 22 provisions of the federal Constitution or statutes, or by citing to federal case law.” 23 Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005). 24 If the state court denies relief for “noncompliance with a state procedural rule, the 25 federal claim is procedurally defaulted and a federal court cannot grant relief unless 26 petitioner shows cause for the default and prejudice resulting from the alleged 27 constitutional violation.” Smith v. Or. Bd. of Parole & Post-Prison Supervision, 736 F.3d 28 857, 862 (9th Cir. 2013) (citing Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977)). “For -7- 1 the procedural default rule to apply, ‘the application of the state procedural rule must 2 provide an adequate and independent state law basis on which the state court can deny 3 relief.’” Hurles v. Ryan, 752 F.3d 768, 780 (9th Cir. 2014) (quoting Bennett v. Mueller, 4 322 F.3d 573, 580 (9th Cir. 2003)). 5 “The exhaustion doctrine applies when the state court has never been presented 6 with an opportunity to consider a petitioner’s claims and that opportunity may still be 7 available to the petitioner under state law.” Franklin v. Johnson, 290 F.3d 1223, 1230 8 (9th Cir. 2002). 9 presented with the federal claim,’ but declined to reach the issue for procedural reasons, 10 or ‘if it is clear that the state court would hold the claim procedurally barred.’” Id. 11 at 1230-31 (quoting Harris v. Reed, 489 U.S. 255, 263 & n.9 (1989)); see also Bailey v. 12 Nagle, 172 F.3d 1299, 1302-03 (11th Cir. 1999) (“[P]rocedural default can arise in two 13 ways. First, where the state court correctly applies a procedural default principle of state 14 law to arrive at the conclusion that the petitioner’s federal claims are barred . . . . Second, 15 if the petitioner simply never raised a claim in state court, and it is obvious that the 16 unexhausted claim would now be procedurally barred due to a state-law procedural 17 default[.]”). 18 1. The procedural default rule applies “when a state court has been The R&R’s Findings. 19 Judge Burns found that Grounds One, Two, and Three were not presented in 20 Petitioner’s direct appeal and were procedurally barred in his state post-conviction 21 proceeding under Rule 32.2(a) because Petitioner could have raised them on direct 22 appeal. Doc. 20 at 13-17. The R&R also found that the procedural bar was independent 23 and adequate, and that Petitioner had not argued or shown cause, prejudice, or a 24 fundamental miscarriage of justice. Id. at 14, 16-17. 25 Judge Burns found that Grounds Four, Five, and Seven were never presented in 26 state court and thus were not exhausted. Doc. 20 at 17, 22. The R&R further found that 27 this failure resulted in procedural default because Petitioner will now be barred from 28 raising the claims in a state post-conviction relief proceeding under Rule 32.2(a). Id. -8- 1 The R&R found that the procedural bar was independent and adequate, and that 2 Petitioner had not argued or shown cause, prejudice, or a fundamental miscarriage of 3 justice. Id. at 17-18, 22. 4 Judge Burns found that Ground Six – Petitioner’s claim for ineffective assistance 5 of appellate/post-conviction proceeding counsel – was presented for the first time in 6 Petitioner’s reply in support of his petition for post-conviction relief, and Petitioner failed 7 to raise it with the Arizona Court of Appeals in his petition for review. Doc. 20 at 18. 8 Thus, the R&R found that the claim was not fairly presented in state court and is now 9 procedurally defaulted because Petitioner would be barred from raising it under 10 Rule 32.2(a). Id. Judge Burns rejected Petitioner’s claim that cause for the default could 11 be established under Martinez v. Ryan, 566 U.S. 1 (2012), because Petitioner did not 12 demonstrate that his ineffective assistance claim is “substantial.” Doc. 20 at 18-21 (citing 13 Trevino v. Thaler, 569 U.S. 413, 423 (2013) (cause may be established when, among 14 other requirements, “the claim of ‘ineffective assistance of trial counsel’ was a 15 ‘substantial’ claim”); Ha Van Nguyen v. Curry, 736 F.3d 1287 (9th Cir. 2013) (expanding 16 the Martinez/Trevino test to cases “where the underlying [ineffective assistance of 17 counsel] is by appellate counsel rather than trial counsel”)). 18 2. Petitioner’s Objections. 19 Petitioner argues that the R&R and the state courts applied a “constructive waiver” 20 of the constitutional rights he seeks to assert, and that such a waiver “blatantly 21 contravene[s] many federal cases” which require waivers to be knowing, voluntary, and 22 intelligent. Doc. 23 at 4-13. Petitioner also argues that “a waiver of a constitutional right 23 is a substantive rule of law, not a mere procedural rule,” and therefore the R&R was 24 incorrect to find that his claims had been procedurally defaulted in state court. Id. at 7. 25 Petitioner seems to assert that Arizona’s Rule 32.2, which generally requires a petitioner 26 to assert his claims on appeal or else waive them, violates the federal Constitution to the 27 extent it limits the vindication of his substantive rights. The Court does not agree. 28 -9- 1 Rule 32.2(a) does not require a substantive evaluation of constitutional claims. 2 The Supreme Court has held that “Rule 32.2(a)(3) determinations are independent of 3 federal law because they do not depend upon a federal constitutional ruling on the 4 merits.” Stewart v. Smith, 536 U.S. 856, 860 (2002). And it is clear from the record that 5 the state court did not evaluate the merits of claims it found procedurally barred. See 6 Doc. 15-2 at 88 (“We deny relief. Hipskind could have raised all of these issues on direct 7 appeal. Any claim a defendant could have raised on direct appeal is precluded. Ariz. R. 8 Crim. P. 32.2(a).”). 9 Under Rule 32.2(a)(3), claims of “sufficient constitutional magnitude” are not 10 barred unless they have been knowingly, voluntarily, and intelligently waived. State v. 11 Espinosa, 29 P.3d 278, 280 (Ariz. Ct. App. 2001) (“If an asserted claim is of sufficient 12 constitutional magnitude, the state must show that the defendant ‘knowingly, voluntarily 13 and intelligently’ waived the claim.”) (quoting former Ariz. R. Crim. P. 32.2(a)(3) cmt.). 14 This rule applies to fundamental constitutional rights – such as the right to a jury trial or 15 the right to counsel – that can be waived only by the defendant personally and only 16 knowingly, voluntarily, and intelligently. See Stewart v. Smith, 46 P.3d 1067, 1070 17 (Ariz. 2002) (“‘Almost without exception, the requirement of a knowing and intelligent 18 waiver has been applied only to those rights which the Constitution guarantees to a 19 criminal defendant in order to preserve a fair trial.’”) (quoting Schneckloth v. 20 Bustamonte, 412 U.S. 218, 237 (1973)). Petitioner does not allege that he was denied 21 such basic constitutional guarantees. He suggests that his various claims amount to major 22 constitutional violations, but they all focus on trial errors – the kinds of errors that can be 23 waived by failing to raise them in previous proceedings. Id. (“For most claims of trial 24 error, the state may simply show that the defendant did not raise the error at trial, on 25 appeal, or in a previous collateral proceeding, and that would be sufficient to show that 26 the defendant has waived the claim.”) (quotation marks and citations omitted).1 27 1 28 Petitioner does argue that Ground Five raises a claim for denial of his right to a jury trial. Doc. 23 at 27-31. But even if Petitioner is correct and this claim would not be procedurally defaulted by an Arizona court under Rule 32.2(a)(3), it would nonetheless - 10 - 1 Petitioner also states that he did present his federal constitutional claims in the 2 state post-conviction proceedings, but the superior court “carefully avoid[ed]” addressing 3 them and dismissed them “on procedural grounds, claiming that a default had occurred.” 4 Doc. 23 at 4-6. To the extent Petitioner is arguing that his citation of Arizona cases that 5 happened to involve federal constitutional issues in his direct appeal was sufficient to 6 explicitly raise his federal claims, Petitioner is incorrect. See Castillo v. McFadden, 399 7 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by citation, 8 detached from any articulation of an underlying federal legal theory.”); Johnson v. Zenon, 9 88 F.3d 828, 830 (9th Cir. 1996) (“If a petitioner fails to alert the state court to the fact 10 that he is raising a federal constitutional claim, his federal claim is unexhausted 11 regardless of its similarity to the issues raised in state court.”). 12 With respect to Ground Six, Petitioner argues that this claim was properly 13 presented and decided by the superior and appellate courts in his post-conviction review 14 proceeding. See Doc. 23 at 32. This assertion is contradicted by the record. The 15 superior court stated: “The issue of ineffective appellate assistance was not even raised 16 until the reply brief. In any event, the petition does not show that appellate counsel’s 17 decision not to raise the duplicity issue was anything other than a reasonable tactical 18 choice.” Doc. 15-2 at 43. And the appellate court’s decision did not address ineffective 19 assistance of counsel at all. See Doc. 15-2 at 88. Given this record, the R&R correctly 20 found that Petitioner’s ineffective assistance of counsel claim was not fairly presented to 21 the state courts. 22 Judge Burns correctly concluded that each of Petitioner’s claims was unexhausted 23 or procedurally defaulted. Petitioner does not challenge the R&R’s findings with respect 24 to the lack of cause, prejudice, or a fundamental miscarriage of justice. Petitioner’s 25 26 27 28 be procedurally defaulted as time barred. See Ariz. R. Crim. P. 32.4. Petitioner does not argue that Rule 32.4 is subject to an exception for claims of sufficient constitutional magnitude. And in any event, Petitioner does not dispute the R&R’s finding that he failed to exhaust this claim. - 11 - 1 remaining objections are nonspecific or simply reargue the merits of his grounds for 2 relief. 3 IT IS ORDERED: 4 1. Magistrate Judge Michelle H. Burns’s R&R (Doc. 20) is accepted. 5 2. The petition for writ of habeas corpus (Doc. 1) is denied. 6 3. A certificate of appealability and leave to proceed in forma pauperis on 7 appeal are denied. 8 4. 9 Dated this 6th day of March, 2018. The Clerk is directed to terminate this action. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -

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