Reel # 244286 v. Ryan et al

Filing 19

ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 15 , the Objections 17 are overruled, the Petition 1 is denied, with prejudice; the Clerk of the Court shall enter judgment accordingly. ORDER the Court denies issuance of a certificate of appealability. Signed by Senior Judge James A Teilborg on 5/22/13. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shawn Christian Reel,
Petitioner,

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ORDER

v.

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CV 12-8084-PCT-JAT (JFM)

Charles L. Ryan, et al.,
Respondents.

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Pending before the Court is Petitioner Shawn Reel’s (“Petitioner”) Petition for

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Writ of Habeas Corpus (the “Petition”). (Doc. 1). Respondents filed an Answer to the

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Petition. (Doc. 11). Petitioner filed a Reply. (Doc. 14). The case was assigned to a

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Magistrate Judge and he issued a Report and Recommendation (“R & R”),

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recommending that this Court deny the Petition and the certificate of appealability.

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(Doc. 15 at 1, 25). Petitioner filed objections (“Objections”) to the R & R. (Doc. 17).

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The Court now reviews Petitioner’s Objections, and rules on the Petition and the

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request for certificate of appealability.

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I.

Factual and Procedural Background

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The R & R summarized the factual and procedural history, and Petitioner did

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not object to this history. (Doc. 15 at 1-5; Doc. 17). The Court adopts the R & R’s

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history in this case. For ease of reference, that history is as follows:

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Facts: Petitioner was enlisted by D.M. to supervise her 14 year old
daughter, K.M., every Wednesday night while the mother worked the grave

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yard shift. Over the course of the next month or so, Petitioner engaged in
sexual intercourse with K.M. approximately 30 to 40 times, as well as oral
sex on each occasion. A suggestive email between Petitioner and K.M. was
discovered, an investigation ensued, the victim described the conduct,
Petitioner made incriminating remarks in a phone confrontation with the
victim, incriminating physical evidence was recovered, and Petitioner
admitted to the conduct. [Doc. 14 at 3-4].
Proceedings at Trial: Petitioner was indicted in Yavapai County Superior
Court on a 17 count indictment alleging “sexual intercourse or oral sexual
contact” between Petitioner and the victim on dates ranging from December
17, 2008 through February 5, 2009. [Doc. 11-1 at 21-23]. An Addendum
was filed alleging the crimes were “dangerous crimes against children”
under the Arizona statues. [Id. at 25-26].
Subsequently counsel filed a Motion to remand the matter to the grand jury
for a new finding of probable cause, arguing that: (1) testimony before the
grand jury about statements by Petitioner’s wife violated the marital
privilege under Arizona law; (2) there was improper testimony about
potential punishment; and (3) the testifying office mischaracterized the
evidence about Petitioner’s motivation and that the emails were sexually
suggestive. [Id. at 28-40]. The motion was apparently not ruled upon.
On June 9, 2009, Petitioner entered into a written Plea Agreement, wherein
Petitioner agreed to plead guilty to one count of sexual conduct with a
minor, and three counts of attempted sexual conduct with a minor, with the
stipulation of a minimum sentence of [twenty] years on the first charge, and
lifetime probation on the remaining charges, and that all prison terms would
be flat time. [Id. at 51-58]. In exchange, the remaining charges were
dismissed, and a cap was placed on restitution. [Id.]
Petitioner entered his guilty plea on the same date. In the course of
eliciting a factual basis, the Court inquired about Petitioner’s conduct with
the minor:

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THE COURT: And in the time frame December 17th to
23rd, 2008, did you engage in sexual intercourse or oral
sexual conduct with [K.M.]?

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THE DEFENDANT [aka “Petitioner”]: Yes, sir.

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THE COURT: Which was it? Both of those or –

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THE DEFENDANT: Both, sir.

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THE COURT: Okay. So oral sex as well as vaginal sex?

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THE DEFENDANT: Yes, sir.

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THE COURT: On the time frame December -- Christmas
Eve, December 24th to December 30th, 2008, did you have
sex with her in the same fashion or attempt to have sex with
her in the same fashion?

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THE DEFENDANT: Yes, sir.

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THE COURT: Which was it? Did you in fact engage in oral
sex?

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THE DEFENDANT: I think it was vaginal sex.
THE COURT: Vaginal sex. And for Count V, talking about
attempted sexual conduct with a minor, also. December 31st,
so New Year’s Eve 2008 to January 6th, the first week of
2009, did you again have sex with [K.M.]?

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THE DEFENDANT: Yes, sir.

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THE COURT: Vaginal sex?

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THE DEFENDANT: Yes, sir.

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THE COURT: And then finally, February 5th, 2009, did you
have vaginal sex with [K.M.] on that occasion?

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THE DEFENDANT: Yes, sir.

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[Id. at 92-93]. The Court then asked for additions to the factual basis from
the prosecution and defense counsel. Defense counsel replied:

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MR. GUNDACKER: Judge, for clarification, I think my
client answered he believed on one of the counts that it was
sexual intercourse. And I think the reason for that answer is - the indictment is charged the way it is because I think the
victim stated that they had sex at least twice a week during
the certain course of a period of time, and that’s the way the
indictment is charged. And that is why, I think, the plea
agreement alternates counts that he is pleading to, if you just
plead to one count per week. And I think that’s what my
client is basically saying.

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If you are asking him to recall specifically a date, he can’t,
but he certainly can admit that once a week throughout that
time frame he had sexual intercourse with the victim. Is that
correct?

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THE DEFENDANT: Yes, sir.

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THE COURT: That was how you were answering my
question, Mr. Reel?

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THE DEFENDANT: Yes, sir.
[Id. at 93-94]. The Court accepted the plea, and set sentencing. Petitioner
appeared for sentencing on July 6, 2009 and was sentenced to the
presumptive sentence of [twenty] years flat time on the completed sexual
conduct charge, and to a suspended sentence and lifetime probation on the
remaining counts. [Id. at 99-113, 115-18].
Proceedings on Direct Appeal: Petitioner did not file a direct appeal.
[Doc. 1].
Proceedings on Post-Conviction Relief [“PCR”]: On September 28,
2009, Petitioner filed a [PCR Notice]. [Doc. 11-1 at 120-24]. Petitioner
then (with the assistance of advisory counsel) filed a pro per [PCR
Petition], raising arguments that: (1) the court lacked subject matter
jurisdiction as a result of a fatally flawed indictment; (2) the plea was not
voluntarily and intelligently made; and (3) counsel was ineffective. [Id. at
126-44].
The PCR court found that none of the claims were colorable and summarily
denied the petition. [Id. at 146-47].
Petitioner then filed a Petition for Review, raising the same issues. [Id. at
149-61]. The Arizona Court of Appeals summarily denied review on
March 28, 2012. [Id. at 165].

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Present Federal Habeas Proceedings:
Petition - Petitioner commenced the current case by filing his Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 30, 2012.
[Doc. 1]. Petitioner’s Petition asserts the following three grounds for relief:
(1) the trial court lacked subject matter jurisdiction because the indictment
was “fatally flawed” in violation of the Fifth Amendment;
(2) [Petitioner] did not enter his plea knowingly and voluntarily in violation
of the Fourteenth Amendment; and

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(3) [Petitioner] received the ineffective assistance of counsel in violation of
his Sixth Amendment rights. [Id.].

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Response - On August 30, 2012, Respondents filed their Response
(“Answer”). [Doc. 11]. Respondents argue that Ground [one, jurisdiction]
is a state law claim and is not cognizable in a federal habeas proceeding.
[Id.]. Respondents concede exhaustion of and argue the meritlessness of
Grounds [two and three]. [Id.].

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Reply - On September 11, 2012, Petitioner filed a Reply. [Doc. 14].
Petitioner argues that Ground [one] is cognizable because the underlying
flaws in the indictment rendered the proceeding fundamentally unfair, that
challenges to subject matter jurisdiction can be raised at any time, and [that]
his plea cannot foreclose his [challenge] to the indictment. [Id.]. Petitioner
further argues the merits of his Grounds 2 and 3. [Id.].

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II.

Review of Report and Recommendation

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On December 10, 2012, the Magistrate Judge filed an R & R recommending that

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the Petition be denied. (Doc. 15). This Court “may accept, reject, or modify, in whole

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or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §

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636(b)(1)(C).
On December 20, 2012, Petitioner filed his Objections to the R & R. (Doc. 17).
“The court shall make a de novo determination of those portions of the [R & R] to
which objection is made.” 28 U.S.C. § 636(b)(1)(C). “[T]he district judge must review
the magistrate judge’s findings and recommendations de novo if objection is made, but
not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (emphasis in original); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D.
Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of
factual and legal issues is required if objections are made, ‘but not otherwise.’”);

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Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032

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(9th Cir. 2009) (the district court “must review de novo the portions of the [Magistrate

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Judge’s] recommendations to which the parties object.”).

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required to conduct “any review at all . . . of any issue that is not the subject of an
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District courts are not

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985) (emphasis added).

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The R & R recommends that this Court deny the Petition on each ground

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asserted by Petitioner. (Doc. 15). Petitioner objected to the recommendation on each

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ground. (Doc. 17). Therefore, this Court will review the claims for relief de novo.

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III.

Review of a State Court Judgment

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Petitioner filed his Petition under the Antiterrorism and Effective Death Penalty

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Act of 1996 (“AEDPA”). (Doc. 1 at 1); see 28 U.S.C. § 2254. In this case, Petitioner is

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in custody pursuant to a state court judgment. (Doc. 11-1 at 21, 51).

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An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the State
court proceeding.

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28 U.S.C. § 2254(d). Additionally, “[a]n application for a writ of habeas corpus may be

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denied on the merits, notwithstanding the failure of the applicant to exhaust the

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remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2).

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To apply the standards of 28 U.S.C. § 2254, a “federal court should review the

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‘last reasoned decision’ by a state court,” which is difficult “when the state court

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provided no rationale for its decision on the merits.” Robinson v. Ignacio, 360 F.3d

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1044, 1055 (9th Cir. 2004). If the state court provides no rationale for its decision, the

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federal court independently reviews the record to assess whether the state court decision

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was objectively unreasonable under controlling federal law. Himes v. Thompson, 336

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F.3d 848, 853 (9th Cir. 2003); see also Harrington v. Richter, 131 S.Ct 770, 784-85

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(2011) (holding that a state court decision that did not provide reasons is still on the

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merits and entitled to AEDPA deference). Thus, although the record is reviewed

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independently, the federal court nevertheless defers to the state court’s ultimate

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decision. Himes, 336 F.3d at 853.

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Here, the state superior court denied Petitioner’s Petition for Post-Conviction

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Relief (“PCR”). (Doc. 11-1 at 146-47). The court held that there were “no claims

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presenting a material issue of fact or law which would entitle the Defendant to relief

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under Rule 32 and no purpose would be served by any further proceedings.” (Doc. 11-

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1 at 146). The court concluded that Petitioner failed to “present a colorable claim for

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relief,” and dismissed the PCR Petition. (Id. at 146-47). The Arizona Court of Appeals

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summarily denied review of the superior court’s decision. (Id. at 165).

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IV.

Claims in the Petition
A.

Ground One—Jurisdiction

Petitioner originally argued in his Petition that the state court lacked jurisdiction
because his charges came from a fatally-flawed indictment. (Doc. 1 at 6). Petitioner
alleged that the indictment was flawed because it lacked sufficient facts for him to
know the charges against him. (Id.). Petitioner argued that the indictment lacked
sufficient facts because it included date ranges rather than specific dates and did not
differentiate between sex acts. (Id.).
Respondent answered and argued that a guilty plea precludes a constitutional
challenge of pre-pleading issues in a federal habeas proceeding. (Doc. 11 at 9-10)
(citing Mabry v. Johnson, 467 U.S. 504, 508 (1984) (if advised by competent counsel, a
defendant’s voluntary and intelligent plea of guilty may not be collaterally attacked in a
federal habeas proceeding) (overruled in part on other grounds by Puckett v. United
States, 556 U.S. 129 (2009)); United States v. Broce, 488 U.S. 563, 573 (1989) (a guilty
plea forecloses a collateral challenge); United States v. Lopez-Armenta, 400 F.3d 1173,
1175 (9th Cir. 2005) (“[I]t is well-settled that an unconditional guilty plea constitutes a
waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all
antecedent constitutional defects.”); Hill v. Lockhart, 474 U.S. 52, 56-57 (1985) (when

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a defendant pleads guilty upon the advice of counsel, he may only attack the voluntary

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and intelligent character of the guilty plea)).

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The Magistrate Judge recommended that this Court deny relief on Ground One

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for two reasons. First, this Court should deny relief because errors of state law,

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generally, cannot form the basis for habeas relief. And, second, this Court should deny

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relief because, under Tollett v. Henderson,1 Petitioner’s properly-entered guilty plea

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was a break in the chain of events that precluded any further challenges to the

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indictment. (Doc. 15 at 7-9). Petitioner objected arguing: (1) jurisdiction can be raised

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at any time, and (2) a guilty plea does not waive a jurisdictional challenge. (Doc. 17 at

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2-3).

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Habeas relief is not available based on state law errors

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Petitioner objects to the conclusion in the R & R that this Court cannot review

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the issue of whether the state court had jurisdiction. (Doc. 17 at 2-3) (citing Rojas v.

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Kimble, 361 P.2d 403, 406 (Ariz. 1961) (“jurisdiction may not be waived and can be

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raised at any stage of the proceedings”)). Under Estelle v. McGuire, 502 U.S. 62, 67-68

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(1991), a federal habeas court cannot reexamine state court determinations of state law

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questions.

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This Court agrees with the R & R that this Court cannot review the state law

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issue of whether the state court had jurisdiction. (Doc. 15 at 7). This Court reaches this

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In Tollett v. Henderson, 411 U.S. 258, 267 (1973), the Supreme Court stated:
[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. When a criminal defendant has
solemnly admitted in open court that he is in fact guilty of the offense
with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to
the entry of the guilty plea. He may only attack the voluntary and
intelligent character of the guilty plea by showing that the advice he
received from counsel was not within the standards set forth in McMann
[v. Richardson, 397 U.S. 759, 770 (1970)].

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conclusion because, by denying relief on Petitioner’s PCR petition, the state PCR courts

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effectively concluded that the state trial court had jurisdiction. This Court cannot

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review the state court’s decision regarding state law. Accordingly, the R & R is

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accepted and relief on Ground One is denied.

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2.

Guilty plea waiver of jurisdictional challenge

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As discussed above, this Court has already determined that it generally cannot

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review a question of state law in the habeas context. Petitioner argues, however, that he

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may raise a challenge to jurisdiction at any time. (Doc. 17 at 2). In Wright v. Angelone,

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151 F.3d 151, 158 (4th Cir. 1998), the Fourth Circuit Court of Appeals suggested that an

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error of state procedural law might be a basis for habeas review if such error resulted in

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a defect in the indictment that resulted in a “complete miscarriage of justice” arising

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from, “a violation of the defendant’s most fundamental rights.” Any such exception

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would not apply in this case because Petitioner waived any defects in the indictment by

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pleading guilty.

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As discussed above, in Tollett, the United States Supreme Court held that a

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guilty plea is a break in the chain of events that precludes a subsequent constitutional

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challenge. 411 U.S. at 267. As a result, the only available basis for habeas relief in

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Petitioner’s situation would be for Petitioner to show his counsel was ineffective, and

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that as a result of that ineffectiveness, Petitioner’s plea was not voluntarily and

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intelligently entered. Id.

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Petitioner argues he never specifically waived a challenge to the indictment in

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his plea agreement. (Doc. 17 at 2). Nonetheless, the waiver was inherent to the entry

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of the plea. See Tollett, 411 U.S. at 267. Under Tollett, Petitioner broke the chain of

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events by pleading guilty and cannot now make claims based on defects in the
indictment. Accordingly, for this alternative reason, the Court will deny Petitioner’s
request for habeas relief on his theory that the state court lacked jurisdiction over his
case.

To the extent Petitioner has argued that his plea was not voluntarily and

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intelligently entered, the Court will address that argument below in Ground Two.

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B.

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Petitioner alleged in the Petition that he did not enter his plea voluntarily and

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intelligently for two reasons: (1) because the indictment and plea agreement were not

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clear about the crimes committed; and (2) because the plea agreement did not protect

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him from double jeopardy. (Doc. 1 at 7). The Magistrate Judge recommended that this

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Court deny relief on Ground Two because, although Petitioner claimed he did not enter

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his plea voluntarily and intelligently, Petitioner failed to claim that this was due to

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Ground Two—Knowing and Voluntary Plea

ineffective assistance of counsel. (Doc. 15 at 10). The Magistrate Judge relied on Hill
v Lockhart, 474 U.S. 52, 56-57 (1985), which held that a defendant who pleads guilty
with advice of counsel may only attack the knowing and intelligent character of the plea
by showing ineffective advice from that counsel. (Doc. 15 at 9).
Petitioner objects to the denial of Ground Two, arguing he did not voluntarily
and intelligently enter his plea because no one at the plea hearing understood the
charges and because the State did not prove the victim’s age before relying on it for
sentencing. (Doc. 17 at 3-4). Consistent with Hill, this Court accepts and adopts the
recommendation of the R & R that this Court cannot consider a direct claim that the
plea was not voluntarily and intelligently entered when such a claim is not brought as
an ineffective assistance of counsel claim. To the extend in Ground Three Petitioner
argues in his objections that his plea was not voluntary and intelligent due to ineffective
assistance of counsel, the Court will address that claim below.
C.

Ground Three—Ineffective Assistance of Counsel

Petitioner argues in his Petition that his counsel failed to subject the prosecution
to meaningful challenge and failed to perform discovery. (Doc. 1 at 8-9). The R & R
recommends this Court deny relief on these theories. (Doc. 15 at 12-19). The R &R
makes this recommendation because these challenges (counsel’s failure to move to
remand to the grand jury, failure to file a motion to suppress, failure to conduct pretrial

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discovery, failure to discuss strategy, and failure to challenge the sufficiency of the

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indictment) were all waived when Petitioner pled guilty. (Doc. 15 at 13 (citing Moran

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v. Godinez, 57 F.3d 690, 700 (9th Cir. 1994) (pre-plea ineffective assistance of counsel

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unrelated to the plea itself is waived by a guilty plea))). Petitioner does not reassert

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these theories of relief in his Objections. (Doc. 17 at 5-6). The Court hereby adopts

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and accepts the recommendation in the R & R that this Court deny relief on these

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theories.

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In his Objections, Petitioner argues that the ineffectiveness of his counsel caused
his plea to not be voluntarily and intelligently entered. (Doc. 17 at 7). Petitioner
reiterates that in the plea agreement and at the plea hearing, it was impossible to
establish which crime occurred during what specific time period. (Doc. 17 at 6).
Petitioner argues that he, his counsel, and the court “merely guess[ed]” to correlate a
crime to an indictment count, making his plea neither voluntary nor intelligent. (Id.).
Under Strickland v. Washington, 466 U.S. 668 (1984) and its progeny, “[a]n

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ineffective assistance claim has two components: A petitioner must show that counsel’s
performance was deficient, and that the deficiency prejudiced the defense. To establish
deficient performance, a petitioner must demonstrate that counsel’s representation fell

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below an objective standard of reasonableness.” Wiggins v. Smith, 539 U.S. 510, 521

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(2003) (internal citations and quotations omitted).

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In his objections, Petitioner acknowledges that generally one must analyze an

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ineffective assistance claim under Strickland. However, Petitioner argues Missouri v.

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Frye, 132 S. Ct. 1399, 1405 (2012), extended the requirement of effective assistance of

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counsel to the plea negotiation stage of the case; and claims that analyzing his claim

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under only Strickland is error. (Doc. 17 at 6). Unlike this case, Frye involved an

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attorney who failed to inform his client of a plea offer. Id. at 1405. Here, Petitioner

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accepted a plea offer, so clearly his counsel communicated the plea to him. (Doc. 11-1

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at 57).
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Moreover, in Frye, the Supreme Court held that “ineffective assistance of

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counsel in the plea bargain context [is] governed by the two-part test set forth in

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Strickland.” Id. at 1405 (citing Hill, 474 U.S. at 57). Thus, this Court must analyze

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Petitioner’s claims of ineffective assistance of counsel under this two-part test, which,

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as discussed above, requires Petitioner to prove that: (1) counsel’s performance was

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deficient, and (2) that deficient performance prejudiced the defense. Strickland, 466

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U.S. at 687.

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Deficient Performance

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To establish deficient performance, Petitioner must show that counsel’s

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representation “fell below an objective standard of reasonableness,” and was “outside

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the wide range of professionally competent assistance.” Wiggins v. Smith, 539 U.S. at

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521 (citation omitted); Strickland, 466 U.S. at 690. Petitioner argues that his counsel
failed to challenge the lack of specificity regarding the sexual acts and dates of
occurrence in the charges to which Petitioner pled guilty. (Doc. 17 at 5-6). Petitioner
contends that under United State v. Bradley, 381 F.3d 641 (7th Cir. 2004), a plea is not
intelligent if everyone involved misunderstood the nature of the charges. (Doc. 17 at

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7). However, in Bradley the prosecutor misstated what was required to prove the
offense charged. 381 F.3d at 646. Here, unlike Bradley, the plea agreement and
discussion on the record at the plea hearing were accurate. (Doc. 11-1 at 51, 64).
Additionally, Frye affirmed cases holding that the court and counsel can
establish a defendant’s understanding of the plea by making a record at the plea
hearing. 132 S. Ct. at 1406. Accordingly, the record made at the time of the plea

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hearing in this case is evidence that Petitioner voluntarily and intelligently entered his

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guilty plea.

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Specifically, at the plea hearing, Petitioner’s attorney addressed the court about

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the range of dates and types of sexual acts in the indictment and plea agreement, and the

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judge questioned Petitioner regarding the factual basis of his plea. (Doc. 11-1 at 93- 12 -

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94). The judge questioned Petitioner as to whether he had sexual activity with the

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minor during those periods of time; and, Petitioner acknowledged on the record that he

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did. (Id. at 94). This record from the plea hearing establishes that Petitioner’s counsel

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acted reasonably and that Petitioner voluntarily and intelligently entered his plea.

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Accordingly, Petitioner has failed to establish deficient performance by his counsel.

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2.

Prejudice

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To establish prejudice, a petitioner must show a reasonable probability that the

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outcome would have been different without the alleged deficient performance of

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counsel. Strickland, 466 U.S. at 694. A reasonable probability is one that undermines
confidence in the outcome. Id. In the case of a petitioner who pled guilty, Petitioner
must establish reasonable probability that he would not have pled guilty and would
have insisted on going to trial if his counsel had provided effective assistance. Hill, 474
U.S. at 60.
Petitioner alleges in his Objections that his counsel committed unprofessional
errors. (Doc. 17 at 5). He argues that but for those errors, he would not have entered
the guilty plea and would have gone to trial. (Id.). As the R & R notes, Petitioner enter
a plea with a sentencing range of 13 to 27 years, and Petitioner received a sentence of
20 years. (Doc. 15 at 23). However, if Petitioner had gone to trial, he faced a minimum
sentence 221 years and a maximum sentence of 459 years. (Id.). Additionally, there
was overwhelming evidence of Petitioner’s guilt including the physical evidence and
Petitioner’s own admissions.
Petitioner still fails to offer any factual defense to the charges against him.
Instead, Petitioner simply claims he would have gone to trial because he did not
understand his plea.2 Given how favorable Petitioner’s plea was in the face of the
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follows:

Specifically, Petitioner’s argument that he would have gone to trial is as

It’s like a fortuneteller trying to quote scripture to a Christian. In fact,
speaking of “fortunetelling,” the [Magistrate Judge] merely denies the
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evidence against Petitioner and the potential sentence Petitioner was facing, even if

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Petitioner’s counsel’s performance was deficient, Petitioner was not prejudiced.

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Accordingly, relief on this claim will be denied.

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V.

Certificate of Appealability (“COA”)

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A judge may issue a COA “only if the applicant has made a substantial showing

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of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standards for

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granting a COA are the same for petitions under § 2254 and § 2255. See United States

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v. Martin, 226 F.3d 1042, 1046 n.4 (9th Cir. 2000). “Where a district court has rejected

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the constitutional claims on the merits, the showing required to satisfy § 2253(c) is

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straightforward: The petitioner must demonstrate that reasonable jurists would find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 483-84 (2000).

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“When the district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. at 484.

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In this case, as to Petitioner’s first two Grounds, the Court finds that jurists of

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reason would not find this Court’s procedural ruling debatable. As to Petitioner’s third

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Ground, the Court finds that Petitioner has not made a substantial showing of the denial

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of a constitutional right. Therefore, the Court will deny Petitioner’s request for a COA.

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Petitioner relief because somehow the Petitioner did not use his psychic
powers in order to see into the future to determine that, “The defendant
must show [] that but for counsel’s errors, he would have gone to trial or
received a better plea bargain.” If even the Petitioner were able to
accurately predict the outcome, would not this Court then accuse the
Petitioner of being a “witch”? …

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(Doc. 17 at 5).

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VI.

Conclusion

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IT IS ORDERED that the R & R (Doc. 15) is accepted and adopted, the

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Objections (Doc. 17) are overruled, the Petition (Doc. 1) is denied, with prejudice; the

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Clerk of the Court shall enter judgment accordingly.

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IT IS FURTHER ORDERED that pursuant to Rule 11 of the Rules Governing

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Section 2254 Cases, in the event Petitioner files an appeal, the Court denies issuance of

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a certificate of appealability.

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Dated this 22nd day of May, 2013.

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