Ferguson v. Fizer, et al

Filing 24

REPORT AND RECOMMENDATIONS re 5 Amended Petition for Writ of Habeas Corpus. Written objections due within 10 days and should be filed under case number CV05-1295-PCT-FJM. Signed by Magistrate Judge Jacqueline J Marshall on 2/7/08. (CKM, )

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Ferguson v. Fizer, et al Doc. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Unless otherwise noted, all referenced exhibits are those attached to Respondent's Answer to Petition for Writ of Habeas Corpus. 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) Petitioner, ) ) v. ) ) Warden Fizer, et al., ) ) Respondents. ) _________________________________) Ronald Gene Ferguson, Case No. CV 05-1295-PCT-FJM (JM) REPORT AND RECOMMENDATION Pending before the Court is Petitioner's Amended Petition for Writ of Habeas Corpus [Docket No. 5], filed pursuant to 28 U.S.C. 2254. In accordance with the Rules of Practice of the United States District Court for the District of Arizona and 28 U.S.C. 636(b)(1), this matter was referred to the Magistrate Judge for report and recommendation. As explained below, the Magistrate Judge recommends that the District Court, after an independent review of the record, dismiss the Petition with prejudice. I. FACTUAL AND PROCEDURAL BACKGROUND On March 28, 2002, the State of Arizona indicted Petitioner on one count of unlawful flight from a law enforcement vehicle, a class 5 felony; two counts of aggravated assault, class 2 felonies, and one count of criminal damage, a class 5 felony. (Ex. B.)1 Pursuant to Rule 13.5(a), Arizona Rules of Criminal Procedure, the State also alleged a number of prior convictions. (Ex. C.) The Arizona Court of Appeals summarized the facts underlying the indictment as follows: Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 Officer Stolz [of the Arizona Department of Public Safety] noticed [Petitioner] in a pickup truck parked at a truck stop on the night of January 10, 2001. After determining that the license plate on the truck was registered to another vehicle, Officer Stolz parked his patrol car perpendicular to the driver's side of the truck, with his headlights illuminating the cab area of the truck, and approached [Petitioner]. . . . Officer Stolz questioned [Petitioner] and was able to observe him for approximately four minutes before defendant fled. . . . [D.P.S.] Officer Kern was called to assist after [Petitioner] fled from Officer Stolz in the truck. Officer Kern pursued [Petitioner] in his patrol car. After temporarily losing [Petitioner], Officer Kern got into an unmarked police car driven by Lieutenant Tibbets. Officer Kern and Lieutenant Tibbets encountered the pickup truck head-on in the same area where it was last seen by a police helicopter. Lieutenant Tibbets opened the door of his police car and the interior light came on. [Petitioner] rammed into the police car with both officers still inside. The officers jumped out of the police car before [Petitioner] hit it a second time. Officer Kern drew his weapon, aimed at defendant, and commanded him to stop. (Ex. M, pp. 4-5.) At that point, the truck backed-up several hundred yards, and Petitioner 13 ditched the truck and ran off. (Ex. J, p. 4.) Petitioner was arrested in California several 14 months later. (Id., p. 5.) 15 Petitioner's jury trial on the charges commenced on August 14, 2002. (Ex. D.) On 16 August 20, 2002, after a four-day trial, the jury found Petitioner guilty on all four counts of 17 the indictment. (Ex. D & E.) The jury found the two counts of aggravated assault to be 18 dangerous offenses. (Ex. E.) 19 At sentencing, the trial court found two historical felony convictions and sentenced 20 Petitioner to an aggravated term of 6 years' imprisonment for Count I (Unlawful Flight from 21 Pursuing Law Enforcement Vehicle); 20 years' imprisonment on Count II (Aggravated 22 Assault on a Peace Officer), to be served consecutive to the sentence in Count I; an 23 aggravated sentence of 21 years' imprisonment on Count III (Aggravated Assault on a Peace 24 Officer), to be served consecutive to the sentence for Count I but concurrent with the 25 sentence imposed in Count II; and an aggravated term of 6 years' imprisonment on Count IV 26 (Criminal Damage), to be served consecutive to Count I and concurrently with Counts II and 27 III. (Ex. H.) 28 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner filed a timely notice of appeal, and raised one issue in his opening brief in the Arizona Court of Appeals: whether the trial court erred by failing to find the pre-trial identification procedures unduly suggestive after two police officers viewed a wanted poster for several months prior to identifying Petitioner as the suspect, thus tainting their in-court identifications. (Exs. I, J & L.) The State responded, arguing that the pre-trial identification procedures were not unduly suggestive. (Ex. K.) On November 20, 2003, the Arizona Court of Appeals rejected Petitioner's arguments in a memorandum decision affirming his convictions and sentences. (Ex. M.) No motion for reconsideration or petition for review was filed and the Order and Mandate was issued on February 27, 2004. (Ex. N.) On February 23, 2004, Petitioner filed a pro per Petition for Post Conviction Relief. (Ex. P.) Petitioner raised one claim alleging that the trial court improperly admitted into evidence a copy of an "alleged" "driver's license" on which his identification was based. (Id.) In a Minute Entry Order dated March 22, 2004, the trial court stated: An Order and Mandate issued on February 27, 2004 affirming the trial court. On February 23, 2004 the Defendant filed a Petition for Post Conviction Relief. The Court construes this filing as a Notice of Post Conviction Relief. The Court further pragmatically considers the filing now timely. (Ex. Q.) In the same order, the trial court also granted Petitioner's request for the appointment of counsel. (Id.) On October 4, 2004, Petitioner's attorney filed a petition for post-conviction relief alleging that the trial court violated Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New Jersey, 530 U.S. 466 (2000) by sentencing Petitioner to aggravated terms of imprisonment. (Ex. R.) The petition also raised a claim of "newly discovered evidence" from an inmate Petitioner met in prison who allegedly witnessed the crimes for which Petitioner was convicted and who was willing to testify to Petitioner's innocence. (Id.) On November 10, 2004, the State responded to the petition, arguing that Petitioner was not entitled to relief on his Blakely claim because his convictions were final before Blakely was decided and because, even if Blakely did apply, Petitioner's prior convictions fell outside the jury trial requirement and allowed the sentencing within the aggravated range. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Ex. S.) The State also argued that Petitioner's claim of newly discovered evidence was logically implausible. (Id.) On January 24, 2005, the trial court issued its order denying and dismissing the petition for post-conviction relief. (Ex. T.) The court concluded that "[t]he Blakely issue is resolved by State v. Martinez, ___ Ariz. ___, 2004 WL 2474976," and that "[t]he newly discovered evidence cannot be reasonably believed as either newly discovered or truthful. See State v. Green, 167 Ariz. 373." (Id.) Thereafter, on February 8, 2005, counsel for Petitioner filed a motion for rehearing of the Blakely issue. (Ex. U.) On February 23, 2005, the trial court denied the motion for rehearing. (Ex. V.) On March 16, 2005, Petitioner submitted for mailing his pro per petition for review in the Arizona Court of Appeals alleging that the trial court erred when it denied his Blakely claim. (Ex. W.) On April 4, 2005, Petitioner filed a "Motion to Amend Petition to review Post Conviction Relief Decision to Include Issues Appointed Counsel failed to present." (Ex. X.) On April 18, 2005, the Arizona Court of Appeals issued an order denying the motion to amend and stating "that any issue not first presented to the trial court and properly preserved in the original petition for review may not be considered by this court. See Arizona Rules of Criminal Procedure, 32.9(c) and State v. Bortz, 169 Ariz. 575, 821 P.2d 235 (App. 1991)." (Ex. Y.) On May 2, 2005, Petitioner field a notice and petition for post-conviction relief in the trial court, raising numerous grounds for relief and alleging that those grounds should be considered as Petitioner wanted them to be raised in the original petition for post-conviction relief filed by his appointed counsel. (Ex. Z.) On July 11, 2005, the trial court entered an order noting the `successive" nature of the petition and finding that the claims were "precluded by Rule 32.2(b) Arizona Rules of Criminal Procedure." (Ex. AA.) The court also noted that Petitioner's petition for review from his first PCR proceedings was still pending in the court of appeals. (Id.) Thus, the court found no colorable claim presented, denied relief "in its entirety," and dismissed the successive petition. (Id.) On January 27, 2006, the Arizona Court of Appeals denied review of Petitioner's -4- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 petition for review from his first post-conviction relief denial. (Ex. BB.) On April 28, 2005, Petitioner instituted this action for writ of habeas corpus, and on June 9, 2005, Petitioner filed the now pending amended petition for writ of habeas corpus. Petitioner alleges four grounds for relief: Ineffective Assistance of Counsel (Ground I); evidence admitted in violation of the rules of criminal procedure (Ground II); right to new counsel or to proceed pro se (Ground III); and denial of the right to a jury determination of aggravating factors under Blakely v. Washington (Ground IV). II. LEGAL DISCUSSION A. Timeliness under the AEDPA Respondents concede that the Petition was filed with the AEDPA's time limits. 28 U.S.C. 2244. The Court, therefore, will not address this issue further. B. Exhaustion of State Remedies A state prisoner must exhaust the available state remedies before a federal court may consider the merits of his habeas corpus petition. See 28 U.S.C. 2254(b)(1)(A); Nino v. Galaza, 183 F.3d 1003, 1004 (9th Cir.1999). Exhaustion occurs either when a claim has been fairly presented to the highest state court, Picard v. Connor, 404 U.S. 270, 275 (1971), or by establishing that a claim has been procedurally defaulted and that no state remedies remain available, Reed v. Ross, 468 U.S. 1, 11 (1984). Exhaustion requires that a habeas petitioner present the substance of his claims to the state courts in order to give them a "fair opportunity to act" upon these claims. See O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A claim has been "fairly presented" if the petitioner has described the operative facts and legal theories on which the claim is based. Picard v. Connor, 404 U.S. 270, 277-78 (1971); Rice v. Wood, 44 F.3d 1396, 1403 (9th Cir. 1995). The operative facts must be presented in the appropriate context to satisfy the exhaustion requirement. The fair presentation requirement is not satisfied, for example, when a claim is presented in state court in a procedural context in which its merits will not be considered in the absence of special circumstances. Castille, 489 U.S. at 351. An exact correlation of the claims in both state and federal court is not required. Rice, 44 F.3d at 1403. -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The substance of the federal claim, however, must have been fairly presented to the state courts. Chacon v. Wood, 36 F.3d 1459, 1467 (9th Cir. 1994) (citations omitted). A petitioner may also exhaust his claims by either showing that a state court found his claims defaulted on procedural grounds or, if he never presented his claims in any forum, that no state remedies remain available to him. See Jackson v. Cupp, 693 F.2d 867, 869 (9th Cir. 1982). "To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32," Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994), and then present his claims to the Arizona Court of Appeals. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). 1. Petitioner concedes that Grounds I, II and III were not properly exhausted and are subject to dismissal. Respondents contend that Grounds I and III, alleging ineffective assistance of counsel and the violation of Petitioner's right to new counsel and to proceed pro se, were not supported by the citation to a federal basis for the claims in the State courts or in the amended petition for writ of habeas corpus, and that they are procedurally defaulted because the State court found them to be precluded under the Arizona Rules of Criminal Procedure. Answer, pp. 10-11. Respondents also assert that Ground II, that evidence was admitted in violation of the Arizona Rules of Criminal Procedure, is not a claim that is cognizable under 28 U.S.C. 2254. Id. at pp. 11-12. In his reply, Petitioner does not dispute Respondents' arguments on these claims and "agrees these issues may be dismissed." Accordingly, these claims should be dismissed and will not be addressed further herein. 2. Claim IV With regard to Ground IV, that under Blakely Petitioner was denied the right to a jury determination of factors that support an aggravated sentence, Respondents argue that Petitioner did not exhaust the claim because he never sought review from the Arizona Supreme Court. Answer, pp. 15-16. In Swoopes v. Sublett, 196 F.3d 1008 (9th Cir. 1999), -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the Ninth Circuit held that, in cases not carrying a life sentence or the death penalty, "claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them." Swoopes, 196 F.3d at 1010. There is no dispute that Petitioner met the exhaustion requirements, at least insofar as the claims raised in his respective appeals, described in Swoopes by appealing the trial court's adverse ruling on his PCR petition to the Arizona Court of Appeals. However, Respondents submit that this was insufficient under the United States Supreme Court's decision in Baldwin v. Reese, 541 U.S. 27 (2004). In Baldwin, which was a case appealed from the Ninth Circuit, the Supreme Court addressed the question of what constitutes notice of the federal nature of a claim sufficient to satisfy the fair presentment requirement found in 28 U.S.C. 2254(b)(1). In laying the groundwork for its decision, the Supreme Court stated that "[t]o provide the State with the necessary 'opportunity,' the prisoner must 'fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." 541 U.S. at 29 (citations omitted). Apparently seizing on this general statement of the law of exhaustion, Respondents contend Baldwin supports a finding that Swoopes, at least insofar as it addresses the need for habeas petitioners to seek review in a the highest state court, is no longer valid. However, an examination of the rationale employed in the Swoopes decision readily distinguishes that case from the general statement of law cited by the Respondents. Swoopes was decided on remand to the Ninth Circuit for consideration in light of the Supreme Court's decision in O'Sullivan v. Boerckel, 526 U.S. 838 (1999). In Swoopes, the Ninth Circuit, just like the Baldwin court, began by reiterating the general rule stated in O'Sullivan that, "in order to satisfy the exhaustion requirement for federal habeas relief, state prisoners must file for discretionary review in a state supreme court when that review is part of ordinary appellate review." Swoopes, 196 F.3d at 1009, citing O'Sullivan, 526 U.S. at 847. The court recognized, however, that the Supreme Court in O'Sullivan had "acknowledged an exception to the exhaustion requirement," by making it clear the "'the creation of a -7- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discretionary review system does not, without more, make review' in a state supreme court 'unavailable.'" Swoopes, 196 F.3d at 1009, quoting O'Sullivan, 526 U.S. at 848 (emphasis added in Swoopes). The Ninth Circuit proceeded to review Arizona's discretionary review system and found considerations that compelled a finding that, in other than capital cases, appeal to the Arizona Supreme Court was unnecessary. Specifically, the court found that two Arizona cases, State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984), and State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989), made it clear that, "in cases not carrying a life sentence or the death penalty, review need not be sought before the Arizona Supreme Court in order to exhaust state remedies." Swoopes, 196 Ariz. at 1010. Thus, the court concluded, "postconviction review before the Arizona Supreme Court is a remedy that is 'unavailable' within the meaning of O'Sullivan. There is nothing in Baldwin that suggests, implicitly or explicitly, that this analysis is flawed or that the holding has been overruled. Also strongly suggestive of the continued vitality of Swoopes is that the Ninth Circuit continues to cite the case for the very proposition Respondents suggest was overruled. In Castillo v. McFadden, 399 F.3d 993 (9th Cir. 2005), the court stated as a matter of fact that "[i]n cases not carrying a life sentence or the death penalty, 'claims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.'" Id. at 998 n. 3, quoting Swoopes, 196 Ariz. at 1010. At least one other circuit has also cited Swoopes for this proposition without questioning its continuing validity. See Lambert v. Blackwell, 387 F.3d 210 (3rd Cir. 2004). These considerations make clear that Respondents' interpretation of Baldwin is incorrect. However, as discussed below, Petitioner's remaining claim is meritless and, even if exhausted, subject to dismissal. D. Merits Under the AEDPA, a federal court "shall not" grant habeas relief with respect to "any claim that was adjudicated on the merits in State court proceedings" unless the state decision was (1) contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. -8- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U.S.C. 2254(d). See Williams v. Taylor, 120 S.Ct. 1495 (2000). A state court's decision can be "contrary to" federal law either (1) if it fails to apply the correct controlling authority, or (2) if it applies the controlling authority to a case involving facts "materially indistinguishable" from those in a controlling case, but nonetheless reaches a different result. Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000). In determining whether a state court decision is contrary to federal law, the court must examine the last reasoned decision of a state court and the basis of the state court's judgment. Packer v. Hill, 277 F.3d 1092, 1101 (9th Cir. 2002). A state court's decision can be an unreasonable application of federal law either (1) if it correctly identifies the governing legal principle but applies it to a new set of facts in a way that is objectively unreasonable, or (2) if it extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Hernandez v. Small, 282 F.3d 1132 (9th Cir. 2002). Although, in his appeal of the trial court's denial of post-conviction relief, Petitioner argued to the Arizona Court of Appeals that the trial court erred in denying his Blakely claim (Ex. W.), the Court did not address the substance of the claim, but determined only that "any issue not first presented to the trial court and properly preserved in the original petition for review may not be considered by this court. See Arizona Rules of Criminal Procedure, 32.9(c) and State v. Bortz, 169 Ariz. 575, 821 P.2d 235 (App. 1991)." (Ex. Y.) Because the Court of Appeals did not evaluate this claim, the last reasoned decision on the claim is that of the trial court. In his PCR petition filed in the trial court, Petitioner argued that: The unconstitutionality of the [Arizona] sentencing scheme is evident in this case when [Petitioner] was sentenced the factfinding and weighing was mandated to occur without any admission by the [Petitioner that the fact was true and without any presentation of the facts to a jury. And, the fact-finding and weighing occurred without any determination by a jury, or even the trial court, that the facts are true beyond a reasonable doubt. Because Defendant was sentenced pursuant to a sentencing scheme that is wholly unconstitutional, his sentence must be vacated. (Ex. R., p. 6.) Petitioner also argued that the trial court erred by making factual findings that 28 -9- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 exposed Petitioner to a "greater-than-presumptive sentence based on the parameters of A.R.S. 13-702." (Id., p. 7.) Specifically, Petitioner contended that it was error for the court to characterize his unlawful flight as an "event that was of great danger to the community," and by noting that Petitioner was on felony release when the events underlying his conviction occurred. (Id.) In response, relying on State v. Martinez, 209 Ariz. 280 (2004), the State argued that no error had occurred because the aggravated sentencing range was available because Petitioner had admitted numerous prior convictions during the trial, and because the trial court had found six historical priors which it was permitted to do under Blakely. (Ex. S, pp. 1-2.) The State also argued that Blakely had no impact because Petitioner's case was final when Blakely was decided and the case could not be applied retroactively. (Id. at p. 2.) On January 24, 2005, the trial court issued its order denying and dismissing the petition for post-conviction relief. (Ex. T.) The court did not address the retroactivity argument raised by the State, but concluded that "[t]he Blakely issue is resolved by State v. Martinez, ___ Ariz. ___, 2004 WL 2474976 . . . ." (Id.; see also Ex. V (trial court denying motion for rehearing on Blakely issue).) As discussed below, however, relief under Blakely was not available to Petitioner because, as the State argued, his case was final before Blakely was decided. Blakely may not be applied retroactively to cases on collateral review if they were final at the time Blakely was decided by the United States Supreme Court. See Schardt v. Payne, 414 F.3d 1025, 1027 (9th Cir. 2005). In Beard v. Banks, 542 U.S. 406 (2004), the Supreme Court concluded that the rule of non-retroactivity applied in federal habeas actions even if the state court addressed the merits of the claim at issue. Id. at 412-413. A state conviction becomes "final," for purposes of the Teague rule of non-retroactivity of new decisions of constitutional criminal procedure on habeas review, when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied. Teague v. Lane, 489 U.S. 288 (1989); Beard, 542 U.S. at 411. - 10 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. Here, Petitioner's last direct review proceeding, his appeal to the Arizona Court of Appeals, was decided on November 20, 2003. (Exs. M & N.) Petitioner then had 30 days to seek review by the Arizona Supreme Court. Ariz.R.Crim.P. 31.19(a). Because he did not seek such review, his judgment became final on the expiration of that time, on December 31, 2003. Blakely was decided on June 24, 2004, and therefore does not apply to Petitioner's case. Moreover, Petitioner has presented nothing in his petition for habeas relief that would allow the Court to conclude that this analysis involved either an unreasonable application of clearly established federal law or an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. In Martinez, the Arizona Court of Appeals concluded "that the existence of one aggravating factor . . . expanded the sentencing range and the scope of the trial court's sentencing discretion." 209 Ariz. 280. This statement is consistent with the requirements of Blakely, where the Supreme Court stated that "the `statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. Here, Petitioner admitted a number of prior felony convictions while testifying. (Ex. G (Minute Order listing 12 prior convictions).) Under Arizona's statutory sentencing scheme, any of these prior convictions are sufficient aggravating factors to allow Petitioner's sentence to be aggravated. See A.R.S. 13-702(C). In sum, there is nothing in the record that suggests the trial court's finding was anything but reasonable. RECOMMENDATION For all of the above reasons, THE MAGISTRATE JUDGE RECOMMENDS that the District Court, after its independent review, DISMISS WITH PREJUDICE Petitioner's Amended Petition for Writ of Habeas Corpus filed June 9, 2005 (Docket No. 5). This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment. - 11 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have ten (10) days within which to file a response to the objections. If any objections are filed, this action should be designated case number: CV 05-1295-PCTFJM. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). DATED this 7th day of February, 2008. - 12 -

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