Sanders v. Attorney General of the State of Arizona

Filing 63

ORDER denying 49 Motion to Dismiss Case; denying 50 Motion to Dismiss; denying 55 Motion for New Trial; denying 56 Motion to Appoint Counsel ; granting in part and denying in part 57 Motion for Case Status. Clerk to send copy of the do cket sheet to Petitioner; denying 58 Motion for New Trial; denying 59 Motion to Appoint Counsel ; denying 61 Motion for New Trial; denying 62 Motion to Appoint Counsel. Petitioner's Second Amended Petition (Doc 24 ) is Denied. This matter is dismissed with prejudice. A certificate of appealabiltiy is Denied. Clerk of the Court will enter judgment. Signed by Magistrate Judge Bruce G Macdonald on 9/11/14.(SMBE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Edward John Sanders,

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Petitioner,

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vs.

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Charles L. Ryan, et al.
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Respondents.
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No. CV-11-551-TUC-BGM

ORDER

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Currently pending before the Court is Petitioner Edward John Sanders’s Second
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Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State
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Custody (“Petition”) (Doc. 24). Respondents have filed a Limited Answer to Petitioner for
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Writ of Habeas Corpus (“Answer”) (Doc. 30) and Petitioner has filed a Response to
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Respondent’s [sic] Limited Answer to Petition for Writ of Habeas Corpus (“Reply”) (Doc.
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31). Also pending are Petitioner’s Motion to Dismiss Cases (Doc. 49), Motion to Dismiss
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Case on Error D-N-A Results (Doc. 50), Motion for a New Trial (Doc. 55), Motion for to
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[sic] Appoint New Counsel (Doc. 56), Motion for Case Status Acknowledge Back To
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Petitioner (Doc. 57), Motion for a New Trial (Doc. 58), Motion for to [sic] Appoint New
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Counsel (Doc. 59), Motion for a New Trial (Doc. 61), Motion for to [sic] Appoint New
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Counsel (Doc. 62).
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...
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...
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I.

FACTUAL AND PROCEDURAL BACKGROUND

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The Arizona Superior Court, Pima County stated the facts1 as follows:

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On July 23, 2000, Irene Johnson, an eighty-eight year old, asked her
neighbor to pick up some items at the grocery story [sic]. When the neighbor
attempted to deliver the groceries the next day, Ms. Johnson did not answer the
door. In the evening of July 24, the neighbor used his key to enter Ms.
Johnson’s apartment, where he found Ms. Johnson dead on the ground in her
bedroom doorway.

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The suspect gained entry to the house by cutting through a screen on a
kitchen window. Ms. Johnson suffered severe head trauma, had bruising over
her arms, chest, and breasts, and blood was found on a pair of underwear. Ms.
Johnson also had bruising on her sternum and marks showing that she may
have been strangled, and defensive wounds were found on her body. The
sternum bruising had a distinctive flower pattern in it. The cause of death was
determined to be primarily from the strangulation with the blunt force injuries
as a secondary factor.
Detectives thought the bruising on Ms. Johnson’s breasts may have
been made by the suspect’s teeth. Saliva was taken from the bruises on Ms.
Johnson’s breasts. After further investigation, detectives believed the
Petitioner may have killed Ms. Johnson. Samples of the Petitioner’s head and
pubic hair were taken, as well as his clothing. Investigation further revealed
that the Petitioner was in possession of a black belt that had a buckle with a
flower pattern on it. The Petitioner also had two pairs of gloves and a cutting
tool.

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The crime lab determined that the DNA in the saliva sample found on
Ms. Johnson’s breast matched the Petitioner’s DNA, although no fingerprints
were found in the home. An unknown hair sample found in Ms. Johnson’s
home was not a match to any available DNA sample. Based primarily on this
evidence, a jury found the Petitioner guilty of the murder and rape of Ms.
Johnson. The Petitioner was sentenced to consecutive natural life and life
sentences of imprisonment.

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Petition (Doc. 24) at 37-38; Answer (Doc. 30), In Chambers Ruling, Re: Petition for Post
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Conviction Relief 2/10/2011 (Exh. “K”) at 1-2.
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A jury convicted Edward John Sanders of one count each of first degree murder,
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burglary in the second degree committed with sexual motivation, sexual assault with serious
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As these state court findings are entitled to a presumption of correctness and
Petitioner has failed to show by clear and convincing evidence that the findings are
erroneous, the Court hereby adopts these factual findings. 28 U.S.C. § 2254(e)(1); Schriro
v. Landrigan, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940, 167 L.Ed.2d 836 (2007);
Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844, 853, 83 L.Ed.2d 841 (1985); Cf. Rose
v. Lundy, 455 U.S. 509, 519, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982).
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physical injury, sexual abuse, and kidnapping.

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Imprisonment 8/18/2005 (Exh. “C”). Petitioner was sentenced natural life for first degree

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murder, with concurrent sentences of 3.5 years for second degree burglary, 1.5 years for

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sexual abuse, and 5 years for kidnapping. Id. Petitioner was also sentenced to life

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imprisonment to run consecutively with the natural life sentence for sexual assault with

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serious physical injury. Id.

See Answer (Doc. 30), Sentence of

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A.

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Petitioner appealed his convictions to the Arizona Court of Appeals, raising the single

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claim that the trial court erred “in finding that the Y-STR technology and the ReliaGene kit

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were generally accepted in the relevant scientific community for forensic analysis.” Answer

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(Doc. 30), Appellant’s Opening Brief (Exh. “D”) at 1.

Direct Appeal

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On December 26, 2006, the Arizona Court of Appeals affirmed Petitioner’s

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convictions. See Answer (Doc. 30), Arizona Court of Appeals Mem. Decision 12/26/2006

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(Exh. “A”). The Arizona Court of Appeals found as an initial matter that Petitioner had

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waived any argument regarding whether the Y-STR typing method “passed muster under

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Frye[.]” Answer (Doc. 30), Exh. “A” at 3. The court noted that the Frye test did not apply

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to a “commercially manufactured kit[,]” but rather to the scientific methodologies. Id. at 4.

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Because “the trial court expressly found that Y-STR typing had been widely accepted by the

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scientific community based on evidence it had been used significantly in United States courts

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in paternity determinations and the science behind that methodology ‘is identical to that of

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PCR,’ a methodology [the Arizona] supreme court specifically accepted . . . [the court of

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appeals found] no error in the trial court’s admission of Reliagene’s DNA test results.” Id.

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at 4-5. Furthermore, the court found that “Reliagene’s test results were merely cumulative

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to the police crime laboratory test results[.]” Id.

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On May 22, 2007, Petitioner’s petition for review with the Arizona Supreme Court

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was denied without comment.

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B.

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“On November 6, 2009, the Petitioner’s Rule 32 counsel filed a brief pursuant to

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Montgomery v. Sheldon, 181 Ariz. 256, 889 P.2d 614 (1995), stating that he could not find

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any colorable claims under Rule 32 of the Arizona Rules of Criminal Procedure and asked

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for time for the Petitioner to file a petition pro se.” Answer (Doc. 30), Exh. “K” at 2. On

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January 28, 2010, Petitioner filed his pro se petition for post-conviction relief (“PCR”).

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Petition (Doc. 24) at 7; Answer (Doc. 30), Exh. “L.” Petitioner claimed, inter alia, “1) actual

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innocence; 2) the admission of DNA testing using unproven methods; 3) speedy trial

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violations; 4) that police planted evidence; 5) that a similar crime was committed in the

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community since the Petitioner’s trial; 6) that he was mauled by a police dog when he was

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arrested; 7) use of his juvenile record; 8) that news coverage may have influenced jurors and

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that a juror harassed him; 9) that police harassed his friends; 10) that he was harassed by a

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juror and by other inmates at the Arizona State Hospital while being restored to competency;

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11) Miranda violations; and 12) ineffective assistance of counsel, including claims that Mr.

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Higgins flirted with the prosecutor, that Mr. Mussman confused him, that Mr. Higgins gave

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him money, and a failure to investigate DNA issues.” Answer (Doc. 30), Exh. “K” at 2;

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Petition (Doc. 1) at 7-36; see also Answer (Doc. 30), Exh. “L.”

Post-Conviction Relief Proceeding

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On February 10, 2011, the trial court dismissed Petitioner’s post-conviction relief

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petition. See Answer (Doc. 30), Exh. “K.” The court carefully analyzed each of the claims

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presented, and denied relief because “Petitioner ha[d] failed to present a material issue of fact

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or law that would entitle him to an evidentiary hearing and failed to state a colorable claim

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for relief on any basis.” Id. at 7. The trial court analyzed Petitioner’s claims under state law,

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with the exception of the alleged Miranda violations and ineffective assistance of counsel.

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See id. Regarding Miranda, the court noted that “Petitioner does not show which statements

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were presented in violation of Miranda, the Petitioner never raised the issue at trial on or

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appeal, and the Petitioner has failed to provide the Court with a legal basis for granting relief

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on this issue.” Id. at 5. The court analyzed Petitioner’s ineffective assistance of counsel

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claim pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984) and state law. Id. In
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addition to finding that “[n]one of the[] accusations are backed up with any sort of evidence

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that would give the Court reason to grant Rule 32 relief.” Answer (Doc. 30), Exh. “K” at 6.

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The court further stated that “[t]hese claims would not have caused the Petitioner to suffer

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actual prejudice, nor does he claim as much.” Id. Finally, the court noted that “DNA was

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a central element at this case and was heavily litigated in court, at trial, and on appeal.

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[Therefore,] [i]f there were any potential DNA issues that were missed, they would have been

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so minuscule and remote as to preclude any defense attorney from being ineffective for

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failing to follow through.” Id.

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On March 10, 2011, Petitioner filed a petition for review by the Arizona Court of

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Appeals. Answer (Doc. 30), Pet. for Review 3/11/2010 (Exh. “N”). On June 28, 2011, the

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Arizona Court of Appeals granted review, but denied relief. Answer (Doc. 30), Mem.

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Decision 6/28/2011 (Exh. “O”). Upon review of the trial court’s minute entry, the court of

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appeals approved and adopted the trial court’s “detailed and thorough minute entry order[.]”

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Id. at 3. Petitioner did not seek review with the Arizona Supreme Court. On September 22,

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2011, the Arizona Court of Appeals issued its mandate. Answer (Doc. 30), Mandate

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9/22/2011 (Exh. “P”).

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C.

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On September 1, 2011, Petitioner filed his Petition Under 28 U.S.C. § 2254 for a Writ

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of Habeas Corpus by a Person in State Custody (Doc. 1). On October 5, 2011, the Court

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dismissed Petitioner’s petition with leave to amend for lack of personal jurisdiction. Order

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10/5/2011 (Doc. 9). On November 7, 2011, Petitioner filed an Amended Petition Under 28

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U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 14). On

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January 11, 2012, the Court again dismissed Petitioner’s petition with leave to amend for

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failure to state a claim “that he is in custody in violation of the Constitution or the laws or

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treaties of the United States.” Order 1/11/2012 (Doc. 20). On February 27, 2012, Petitioner

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filed his Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by

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a Person in State Custody (Doc. 24). Petitioner claims three (3) grounds for relief. First,

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Petitioner asserts a claim for a “[d]enial of due process and equal protection under the laws

The Instant Habeas Proceeding

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as per U.S. Constitution Fourteenth Amendment[,] . . . [regarding the denial of his] request

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for DNA testing of fingernail scrapings from deceased victim[.]” Petition (Doc. 24) at 47

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(emphasis in original). Second, Petitioner asserts the denial of due process and equal

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protection regarding his “request for re-testing Body Fluid Evidence from deceased victim

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. . . even though the [sic] were admissions by State’s witnesses that the technical equipment

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used to test the body fluid evidence was apparently not operating properly.” Id. at 48

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(emphasis in original). Third, Petitioner claims “[i]neffective assistance of counsel in

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violation of the Sixth and Fourteenth Amendments of the U.S. Constitution[,] [for] fail[ure]

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to raise at trial, the fact that the ‘310 machine’ which analyzes DNA samples, was not

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working properly.” Id. at 50. Respondents filed their Limited Answer to Petition for Writ

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of Habeas Corpus (Doc. 30), and Petitioner replied (Doc. 31).

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Additionally, Petitioner has filed several untitled, supplemental pleadings with the

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Court. See Docs. 41, 42, 43, 44, 45, 46, 47, 48 & 52. These documents contain previous

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court filings, documents apparently contained within his attorneys’ files, and Petitioner’s

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continued stream of consciousness proclamations of innocence. See id. Petitioner continues

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to accuse Tucson Police Department (“TPD”) Officer Taylor of lying and planting evidence;

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question the DNA evidence; and assert “new evidence” in the form of sheer speculation

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regarding the sufficiency of the evidence presented in the state courts. See id.

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II.

STANDARD OF REVIEW

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A.

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The federal courts shall “entertain an application for a writ of habeas corpus in behalf

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of a person in custody pursuant to the judgment of a State court only on the ground that he

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is in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a) (emphasis added). Moreover, a petition for habeas corpus by a person in

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state custody:

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In General

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
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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); see also Cullen v. Pinholster, — U.S. — , 131 S.Ct. 1388, 1398, 179
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L.Ed.2d 557 (2011). Correcting errors of state law is not the province of federal habeas
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corpus relief. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d 385
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(1991). Ultimately, “[t]he statute’s design is to ‘further the principles of comity, finality, and
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federalism.’” Panetti v. Quarterman, 551 U.S. 930, 945, 127 S.Ct. 2842, 2854, 168 L.Ed.2d
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662 (2007) (quoting Miller-El v. Cockrell, 537 U.S. 322, 337, 123 S.Ct. 1029, 154 L.Ed.2d
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931 (2003)). Furthermore, this standard is difficult to meet and highly deferential “for
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evaluating state-court rulings, [and] which demands that state-court decisions be given the
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benefit of the doubt.” Pinholster, 131 S.Ct. at 1398 (citations and internal quotation marks
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omitted).
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The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat.
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1214, mandates the standards for federal habeas review. See 28 U.S.C. § 2254. “AEDPA
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erects a formidable barrier to federal habeas relief for prisoners whose claims have been
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adjudicated in state court.” Burt v. Titlow, — U.S. —, 134 S.Ct. 10, 16, 187 L.Ed.2d 348
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(2013). Federal courts reviewing a petition for habeas corpus must “presume the correctness
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of state courts’ factual findings unless applicants rebut this presumption with ‘clear and
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convincing evidence.’” Schriro v. Landrigen, 550 U.S. 465, 473-74, 127 S.Ct. 1933, 1940,
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167 L.Ed.2d 836 (2007) (citing 28 U.S.C. § 2254(e)(1)). Moreover, on habeas review, the
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federal courts must consider whether the state court’s determination was unreasonable, not
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merely incorrect. Id., 550 U.S. at —, 127 S.Ct. at 1939; Gulbrandson v. Ryan, 738 F.3d 976,
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987 (9th Cir. 2013). Such a determination is unreasonable where a state court properly
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identifies the governing legal principles delineated by the Supreme Court, but when the court
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applies the principles to the facts before it, arrives at a different result. See Harrington v.
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Richter, — U.S. —, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011); Williams v. Taylor, 529 U.S.
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362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); see also Casey v. Moore, 386 F.3d 896, 905
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(9th Cir. 2004). “AEDPA requires ‘a state prisoner [to] show that the state court’s ruling on

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the claim being presented in federal court was so lacking in justification that there was an

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error . . . beyond any possibility for fairminded disagreement.’” Burt, 134 S.Ct. at 10

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(quoting Harrington, 562 U.S. at —, 131 S.Ct. at 786-87) (alterations in original).

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B.

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Prior to application for a writ of habeas corpus, a person in state custody must exhaust

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all of the remedies available in the State courts. 28 U.S.C. § 2254(b)(1)(A). This “provides

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a simple and clear instruction to potential litigants: before you bring any claims to federal

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court, be sure that you first have taken each one to state court.” Rose v. Lundy, 455 U.S. 509,

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520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982). As such, the exhaustion doctrine gives

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the State “the opportunity to pass upon and correct alleged violations of its prisoners’ federal

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rights.” Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 1349, 158 L.Ed.2d 64 (2004)

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(internal quotations omitted). Moreover, “[t]he exhaustion doctrine is principally designed

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to protect the state courts’ role in the enforcement of federal law and prevent disruption of

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state judicial proceedings.” Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203 (internal

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citations omitted). This upholds the doctrine of comity which “teaches that one court should

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defer action on causes properly within its jurisdiction until the courts of another sovereignty

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with concurrent powers, and already cognizant of the litigation, have had an opportunity to

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pass upon the matter.” Id. (quoting Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 590,

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94 L.Ed. 761 (1950)).

Exhaustion of State Remedies

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Section 2254(c) provides that claims “shall not be deemed . . . exhausted” so long as

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the applicant “has the right under the law of the State to raise, by any available procedure the

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question presented.” 28 U.S.C. § 2254(c). “[O]nce the federal claim has been fairly

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presented to the state courts, the exhaustion requirement is satisfied.” Picard v. Connor, 404

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U.S. 270, 275, 92 S.Ct. 509, 512, 30 L.Ed.2d 438 (1971). The fair presentation requirement

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mandates that a state prisoner must alert the state court “to the presence of a federal claim”

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in his petition, simply labeling a claim “federal” or expecting the state court to read beyond

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the four corners of the petition is insufficient. Baldwin v. Reese, 541 U.S. 27, 33, 124 S.Ct.
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1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s assertion that his claim had been

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“fairly presented” because his brief in the state appeals court did not indicate that “he was

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complaining about a violation of federal law” and the justices having the opportunity to read

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a lower court decision addressing the federal claims was not fair presentation); Hiivala v.

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Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner failed to exhaust federal due

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process issue in state court because petitioner presented claim in state court only on state

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grounds). Furthermore, in order to “fairly present” one’s claims, the prisoner must do so “in

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each appropriate state court.” Baldwin, 541 U.S. at 29, 124 S.Ct. at 1349. “Generally, a

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petitioner satisfies the exhaustion requirement if he properly pursues a claim (1) throughout

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the entire direct appellate process of the state, or (2) throughout one entire judicial

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postconviction process available in the state.” Casey v. Moore, 386 F.3d 896, 916 (9th Cir.

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2004) (quoting Liebman & Hertz, Federal Habeas Corpus Practice and Procedure, §23.3b

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(4th ed. 1998)).

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In Arizona, however, for “cases not carrying a life sentence or the death penalty,

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review need not be sought before the Arizona Supreme Court in order to exhaust state

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remedies.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); see also Moreno v.

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Gonzalez, 192 Ariz. 131, 962 P.2d 205 (1998). Additionally, the Supreme Court has further

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interpreted § 2254(c) to recognize that once the state courts have ruled upon a claim, it is not

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necessary for an applicant to seek collateral relief for the same issues already decided upon

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direct review. Castille v. Peoples, 489 U.S. 346, 350, 109 S.Ct. 1056, 1060, 103 L.Ed.2d 380

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(1989).

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C.

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“A habeas petitioner who has defaulted his federal claims in state court meets the

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technical requirements for exhaustion; there are no state remedies any longer ‘available’ to

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him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 2555, 115 L.Ed.2d 640

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(1991). Moreover, federal courts “will not review a question of federal law decided by a

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state court if the decision of that court rests on a state law ground that is independent of the

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federal question and adequate to support the judgment.” Id., 501 U.S. at 728, 111 S.Ct. at

Procedural Default

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2554. This is true whether the state law basis is substantive or procedural. Id. (citations

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omitted). Such claims are considered procedurally barred from review. See Wainwright v.

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Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

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The Ninth Circuit explained the difference between exhaustion and procedural default
as follows:
The exhaustion doctrine applies when the state court has never been presented
with an opportunity to consider a petitioner’s claims and that opportunity may
still be available to the petitioner under state law. In contrast, the procedural
default rule barring consideration of a federal claim applies only when a state
court has been presented with the federal claim, but declined to reach the issue
for procedural reasons, or if it is clear that the state court would hold the claim
procedurally barred. Franklin v. Johnson, 290 F.3d 1223, 1230 (9th Cir. 2002)
(internal quotation marks and citations omitted). Thus, in some circumstances,
a petitioner’s failure to exhaust a federal claim in state court may cause a
procedural default. See Sandgathe v. Maass, 314 F.3d 371, 376 (9th Cir.
2002); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002) (“A claim is
procedurally defaulted ‘if the petitioner failed to exhaust state remedies and the
court to which the petitioner would be required to present his claims in order
to meet the exhaustion requirement would now find the claims procedurally
barred.’” (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct.
2546, 115 L.Ed.2d 640 (1991))).

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Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir. 2005). Thus, a prisoner’s habeas petition
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may be precluded from federal review due to procedural default in two ways. First, where
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the petitioner presented his claims to the state court, which denied relief based on
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independent and adequate state grounds. Coleman, 501 at 728, 111 S.Ct. at 2254. Federal
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courts are prohibited from review in such cases because they have “no power to review a
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state law determination that is sufficient to support the judgment, resolution of any
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independent federal ground for the decision could not affect the judgment and would
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therefore be advisory.” Id. Second, where a “petitioner failed to exhaust state remedies and
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the court to which the petitioner would be required to present his claims in order to meet the
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exhaustion requirement would now find the claims procedurally barred.” Id. at 735 n.1, 111
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S.Ct. at 2557 n.1 (citations omitted). Thus, the federal court “must consider whether the
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claim could be pursued by any presently available state remedy.” Cassett, 406 F.3d at 621
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n.6 (quoting Ortiz v. Stewart, 149 F.3d 923, 931 (9th Cir. 1998) (emphasis in original).
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Where a habeas petitioner’s claims have been procedurally defaulted, the federal

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courts are prohibited from subsequent review unless the petitioner can show cause and actual

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prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d

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334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal

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habeas review unless petitioner demonstrated cause and prejudice); see also Smith v. Murray,

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477 U.S. 527, 534, 106 S.Ct. 2661, 2666, 91 L.Ed.2d 434 (1986) (recognizing “that a federal

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habeas court must evaluate appellate defaults under the same standards that apply when a

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defendant fails to preserve a claim at trial.”). “[T]he existence of cause for a procedural

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

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external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”

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Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986); see also

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Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996) (petitioner failed to offer any

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cause “for procedurally defaulting his claims of ineffective assistance of counsel, [as such]

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there is no basis on which to address the merits of his claims.”). In addition to cause, a

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habeas petitioner must show actual prejudice, meaning that he “must show not merely that

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the errors . . . created a possibility of prejudice, but that they worked to his actual and

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substantial disadvantage, infecting his entire trial with error of constitutional dimensions.”

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Murray, 477 U.S. at 494, 106 S.Ct. at 2648 (emphasis in original) (internal quotations

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omitted). Without a showing of both cause and prejudice, a habeas petitioner cannot

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overcome the procedural default and gain review by the federal courts. Id., 106 S.Ct. at

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2649.

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The Supreme Court has recognized, however, that “the cause and prejudice standard

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will be met in those cases where review of a state prisoner’s claim is necessary to correct ‘a

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fundamental miscarriage of justice.’” Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546,

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115 L.Ed.2d 640 (1991) (quoting Engle v. Isaac 456 U.S. 107, 135, 102 S.Ct. 1558, 1572-73,

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71 L.Ed.2d 783 (1982)). “The fundamental miscarriage of justice exception is available

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‘only where the prisoner supplements his constitutional claim with a colorable showing of

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factual innocence.’” Herrara v. Collins, 506 U.S. 390, 404, 113 S.Ct. 853, 862, 122 L.Ed.2d
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203 (1993) (emphasis in original) (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454, 106 S.Ct.

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2616, 2627, 91 L.Ed.2d 364 (1986)). Thus, “‘actual innocence’ is not itself a constitutional

3

claim, but instead a gateway through which a habeas petitioner must pass to have his

4

otherwise barred constitutional claim considered on the merits.” Herrara, 506 U.S. at 404,

5

113 S.Ct. at 862. Further, in order to demonstrate a fundamental miscarriage of justice, a

6

habeas petitioner must “establish by clear and convincing evidence that but for the

7

constitutional error, no reasonable factfinder would have found [him] guilty of the underlying

8

offense.” 28 U.S.C. § 2254(e)(2)(B).

9

In Arizona, a petitioner’s claim may be procedurally defaulted where he has waived

10

his right to present his claim to the state court “at trial, on appeal or in any previous collateral

11

proceeding.” Ariz. R. Crim. P. 32.2(a)(3). “If an asserted claim is of sufficient constitutional

12

magnitude, the state must show that the defendant ‘knowingly, voluntarily and intelligently’

13

waived the claim.” Id., 2002 cmt. Neither Rule 32.2 nor the Arizona Supreme Court has

14

defined claims of “sufficient constitutional magnitude” requiring personal knowledge before

15

waiver. See id.; See also Stewart v. Smith, 202 Ariz. 446, 46 P.3d 1067 (2002). The Ninth

16

Circuit recognized that this assessment “often involves a fact-intensive inquiry” and the

17

“Arizona state courts are better suited to make these determinations.” Cassett, 406 F.3d at

18

622.

19
20

III.

STATUTE OF LIMITATIONS

21

The AEDPA mandates that a one-year statute of limitations applies to applications for

22

a writ of habeas corpus by a person in state custody. 28 U.S.C. § 2244(d)(1). Generally, the

23

limitation period begins to run from “the date on which the judgment became final by the

24

conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.

25

§ 2244(d)(1)(A). Section 2244(d)(1) mandates that the one year limitation period shall run

26

from the latest of:

27

(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review;

28
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1

(B) the date on which the impediment to filing an application created by State
action in violation of the Constitution or laws of the United States is removed,
if the applicant was prevented from filing by such State action;

2
3

(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or

4
5

(D) the date on which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due diligence.

6
28 U.S.C. § 2244(d)(1); Shannon v. Newland, 410 F.3d 1083, 1086 (9th Cir. 2005). “The
7
time during which a properly filed application for State post-conviction or other collateral
8
review with respect to the pertinent judgment or claim is pending shall not be counted toward
9
any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Respondents do not
10
dispute the timeliness of Sanders’s Petition. The Court has independently reviewed the
11
record and finds that the Petition is timely pursuant to 28 U.S.C. § 2244(d)(1)(A).
12
13
IV.

ANALYSIS

14
A.

Ground One: DNA Testing of Fingernail Scrapings

15
Petitioner asserts that his request for DNA testing of fingernail scrapings from the
16
deceased victim was denied, “even though there was evidence of defensive wounds on [the]
17
victim, and DNA evidence could have provided exculpatory evidence.” Petition (Doc. 24)
18
at 47. Petitioner further states that the trial court judge noted that there were no defensive
19
wounds on the victim in contravention to the medical examiner’s testimony. Id. Petitioner
20
alleges that based in part upon this conclusion, the trial court judge found that it was
21
“unlikely that fingernail scrapings would yield exculpatory evidence.” Answer (Doc. 30),
22
Under Advisement Ruling Re: Motion for Order Directing Retesting and for Release of
23
Evidence for Examination and Testing (Exh. “J”) at 2.
24
A petition for habeas corpus by a person in state custody:
25
26
27

shall not be granted unless it appears that – (A) the applicant has exhausted the
remedies available in the courts of the State; or (B)(i) there is an absence of
available State corrective process; or (ii) circumstances exist that render such
process ineffective to protect the rights of the applicant.

28
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1

28 U.S.C. § 2254(b)(1). The exhaustion requirement cautions petitioners “before you bring

2

any claims to federal court, be sure that you first have taken each one to state court.” Rose

3

v. Lundy, 455 U.S. 509, 520, 102 S.Ct. 1198, 1204, 71 L.Ed.2d 379 (1982); see also 28

4

U.S.C. § 2254(b)(1)(A). “Generally, a petitioner satisfies the exhaustion requirement if he

5

properly pursues a claim (1) throughout the entire direct appellate process of the state, or (2)

6

throughout one entire judicial postconviction process available in the state.” Casey v. Moore,

7

386 F.3d 896, 916 (9th Cir. 2004) (quoting Liebman & Hertz, Federal Habeas Corpus

8

Practice and Procedure, §23.3b (4th ed. 1998)). “Whether a claim is exhausted through a

9

direct appellate procedure, a postconviction procedure, or both, the claim should be raised

10

at all appellate stages afforded under state law as of right by that procedure.” Id. (citations

11

omitted).

12

As Respondents point out, Petitioner failed to raise this claim at any time before the

13

state courts through either appellate or postconviction procedure. See Answer (Doc. 30) at

14

5. Although Petitioner filed a pro se request for DNA testing pursuant to A.R.S. § 13-4240,

15

he did not raise it through Arizona’s appellate or postconviction procedures. See Answer

16

(Doc. 30) at 3, Pet.’s Petition Post-Conviction Deoxyribonucleic Acid Testing (Exh. “H”),

17

Resps.’ Opposition to Post-Conviction Order for Retesting of DNA Evidence/Motion for

18

Reconsideration (Exh. “I”) & Under Advisement Ruling Re: Motion for Order Directing

19

Retesting and for Release of Evidence for Examination and Testing (Exh. “J”). As such, it

20

is not exhausted. Further, the Arizona rules preclude Petitioner from obtaining relief for this

21

claim in the state courts now, absent an applicable exception, which Petitioner does not

22

assert. See Ariz. R. Crim. P. 32.1(d)-(h), 32.2(a)(3), 32.4. Therefore, Petitioner’s claim

23

regarding DNA testing of fingernail scrapings is unexhausted and procedurally defaulted.

24

Coleman, 501 at 735 n.1, 111 S.Ct. at 2557 n.1 (citations omitted) (recognizing that where

25

a “petitioner failed to exhaust state remedies and the court to which the petitioner would be

26

required to present his claims in order to meet the exhaustion requirement would now find

27

the claims procedurally barred”).

28
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1

Where a habeas petitioner’s claim has been procedurally defaulted, the federal courts

2

are prohibited from subsequent review unless the petitioner can show cause and actual

3

prejudice as a result. Teague v. Lane, 489 U.S. 288, 298, 109 S.Ct. 1060, 1068, 103 L.Ed.2d

4

334 (1989) (holding that failure to raise claims in state appellate proceeding barred federal

5

habeas review unless petitioner demonstrated cause and prejudice). Petitioner has failed to

6

show cause or demonstrate any actual prejudice, and as such the Court will not consider the

7

merits of this claim.

8

B.

9

Petitioner asserts a claim for relief based upon alleged due process and equal

10

protection violations stemming from the denial of his request for “re-testing Body Fluid

11

Evidence from deceased victim . . . even though the [sic] were admissions by State’s

12

witnesses that the technical equipment used to test the body fluid evidence was apparently

13

not operating properly.” Petition (Doc. 24) at 48 (emphasis in original). Petitioner relies on

14

an e-mail from “a DNA scientist” to his attorney that “there are some examples of samples

15

being tested several times over and I just noticed something in the data which indicates that

16

lab may have been having a problem with the 310 machine.” Id. (emphasis added).

Ground Two: Re-testing of Body Fluid Evidence

17

Petitioner sought DNA retesting of the bodily fluids in both his PCR petition and his

18

petition for review to the Arizona Court of Appeals. Answer (Doc. 30) at 6, Exh. “K” at 2-3,

19

Exh. “L” at 15-17, 23-27, Exh. “N” at 2-3; Petition (Doc. 24) at 21-23, 31-35. Petitioner’s

20

claim and the state courts’ analysis were based upon state law. See Answer (Doc. 30) at 6,

21

Exh. “K” at 2-3, Exh. “L” at 15-17, 23-27, Exh. “N” at 2-3, Mem. Decision 6/28/2011 (Exh.

22

“O”) at 2-3; Petition (Doc. 24) at 21-23, 31-35. Although Petitioner refers to the phrase

23

“Due Process” once in his PCR petition, there are no facts or argument to delineate what this

24

claim might be. Answer (Doc. 30), Exh. “L” at 6, Petition (Doc. 24) at 12. The fair

25

presentation requirement mandates that a state prisoner must alert the state court “to the

26

presence of a federal claim” in his petition, simply labeling a claim “federal” or expecting

27

the state court to read beyond the four corners of the petition is insufficient. Baldwin v.

28

Reese, 541 U.S. 27, 33, 124 S.Ct. 1347, 1351, 158 L.Ed.2d 64 (2004) (rejecting petitioner’s
- 15 -

1

assertion that his claim had been “fairly presented” because his brief in the state appeals court

2

did not indicate that “he was complaining about a violation of federal law” and the justices

3

having the opportunity to read a lower court decision addressing the federal claims was not

4

fair presentation); Hiivala v. Wood, 195 F.3d 1098 (9th Cir. 1999) (holding that petitioner

5

failed to exhaust federal due process issue in state court because petitioner presented claim

6

in state court only on state grounds). Therefore, Petitioner’s due process and equal protection

7

claim regarding the retesting of bodily fluid evidence is not exhausted. Castillo v.

8

McFadden, 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by

9

citation, detached from any articulation of an underlying federal legal theory”).

10

Moreover, the state court appropriately addressed this issue on state law grounds. As

11

such, Petitioner’s claim is procedurally barred from habeas review and the Court will not

12

consider the merits of this claim. Coleman v. Thompson, 501 U.S. 722, 728, 111 S.Ct. 2546,

13

2554, 115 L.Ed.2d 640 (1991) (recognizing federal courts “will not review a question of

14

federal law decided by a State court if the decision of that court rests on a state law ground

15

that is independent of the federal question and adequate to support the judgment”); see also

16

Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

17

C.

18

Petitioner asserts a claim for “[i]neffective assistance of counsel in violation of the

19

Sixth and Fourteenth Amendments of the U.S. Constitution.” Petition (Doc. 24) at 50.

20

Petitioner contends that “[d]efense [c]ounsel failed to raise, at trial, the fact that the ‘310

21

machine’ which analyzes DNA samples, was not working properly.” Id. Petitioner’s

22

suspicion regarding the “310 machine” is based on an e-mail from “a DNA scientist” to his

23

attorney that “there are some examples of samples being tested several times over and I just

24

noticed something in the data which indicates that lab may have been having a problem with

25

the 310 machine.” Petition (Doc. 24) at 48 (emphasis added).

Ground Three: Ineffective Assistance of Counsel

26

Petitioner initially raised a claim for ineffective assistance of counsel in his petition

27

for post-conviction relief. Petition (Doc. 24) at 11; Answer (Doc. 30), Exh. “L” at 5.

28

Petitioner’s PCR petition asserted that his trial counsel flirted with the county attorney and
- 16 -

1

failed to properly investigate the DNA evidence, a previous attorney yelled at him and

2

threatened him, and yet another attorney confused him. Id. at 11, 29-30; Answer (Doc. 30),

3

Exh. “L” at 5, 21-22. In consideration of that petition, the trial court analyzed Petitioner’s

4

claims pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984). Answer (Doc. 30),

5

Exh. “K” at 6. Relevant to Petitioner’s claims before this Court, the trial court found that

6

“DNA was a central element at this case and was heavily litigated in court, at trial, and on

7

appeal.” Id. Furthermore, “[i]f there were any potential DNA issues that were missed, they

8

would have been so minuscule and remote as to preclude any defense attorney from being

9

ineffective for failing to follow through.” Id. Accordingly, the trial court held that “[t]he

10

Petitioner has wholly failed to meet his burden of showing ineffective assistance of counsel.”

11

Id. On review by the Arizona Court of Appeals, the court recognized Petitioner’s assertion

12

of ineffective assistance of counsel, but relied on the trial court’s “detailed and thorough

13

minute entry order that clearly identified each of Sanders’s arguments and correctly ruled on

14

them.” Answer (Doc. 30), Exh. “O” at 3. The appellate court went on to “approve and adopt

15

the court’s ruling and s[aw] no need to reiterate it[.]” Id. This Court finds that Petitioner has

16

fairly presented his claim for ineffective assistance of counsel regarding a failure to raise an

17

alleged problem with the “310 machine” which analyzed the DNA evidence. As such, this

18

claim is exhausted.

19

For cases which have been fairly presented to the State court, the Supreme Court

20

elucidated a two part test for determining whether a defendant could prevail on a claim of

21

ineffective assistance of counsel sufficient to overturn his conviction. See Strickland v.

22

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, Petitioner must

23

show that counsel’s performance was deficient. Id. at 687, 104 S.Ct. at 2064. “This requires

24

showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’

25

guaranteed the defendant by the Sixth Amendment.” Id. Second, Petitioner must show that

26

this performance prejudiced his defense. Id. Prejudice “requires showing that counsel’s

27

errors were so serious as to deprive the defendant of a fair trial whose result is reliable.” Id.

28

Ultimately, whether or not counsel’s performance was effective hinges on its reasonableness
- 17 -

1

under prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2065; see also

2

State v. Carver, 160 Ariz. 167, 771 P.2d 1382 (1989) (adopting Strickland two-part test for

3

ineffective assistance of counsel claims). The Sixth Amendment’s guarantee of effective

4

assistance is not meant to “improve the quality of legal representation,” rather it is to ensure

5

the fairness of trial. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. “Thus, ‘[t]he benchmark

6

for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined

7

the proper functioning of the adversarial process that the trial cannot be relied on as having

8

produced a just result.’” Pinholster, — U.S. at —, 131 S.Ct. at 1403 (quoting Strickland, 466

9

at 686) (emphasis and alteration in original).

10

Furthermore, a petition for habeas corpus by a person in state custody:

11

14

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.

15

28 U.S.C. § 2254(d); see also Cullen v. Pinholster, — U.S. — , 131 S.Ct. 1388, 1398, 179

16

L.Ed.2d 557 (2011). “By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on

17

the merits’ in state court, subject only to the exceptions in 2254(d)(1) and (d)(2).”

18

Harrington, – U.S. at –, 131 S.Ct. at 784. “The standards created by Strickland and §

19

2254(d) are both ‘highly deferential,’ . . . and when the two apply in tandem, review is

20

‘doubly’ so[.]” Harrington, — U.S. at —, 131 S.Ct. at 788 (citations omitted). Judging

21

counsel’s performance must be made without the influence of hindsight. See Strickland, 466

22

U.S. at 689, 104 S.Ct. at 2065. As such, “the defendant must overcome the presumption that,

23

under the circumstances, the challenged action ‘might be considered sound trial strategy.’”

24

Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955).

25

Without the requisite showing of either “deficient performance” or “sufficient prejudice,”

26

Petitioner cannot prevail on his ineffectiveness claim. Strickland, 466 U.S. at 700, 104 S.Ct.

27

at 2071. “[T]he question is not whether counsel’s actions were reasonable. The question is

28

whether there is any reasonable argument that counsel satisfied Strickland’s deferential

12
13

- 18 -

1

standard.” Gentry v. Sinclair, – F.3d 705 F.3d 884, 899 (9th Cir. 2013) (quoting Harrington

2

v. Richter, – U.S. – , – , 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011)) (alterations in original).

3

“The challenger’s burden is to show ‘that counsel made errors so serious that counsel was

4

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.’”

5

Harrington, — U.S. at —, 131 S.Ct. at 787 (citations omitted). Accordingly, “[w]e apply

6

the doubly deferential standard to review the state court’s ‘last reasoned decision.’” Vega v.

7

Ryan, — F.3d —, 2014 WL 2019294 (9th Cir. 2014) (citations omitted).

8

After careful review of the record, the state court reasonably held that the DNA

9

evidence “was heavily litigated in court, at trial, and on appeal . . . [and] [i]f there were any

10

potential DNA issues that were missed, they would have been so minuscule and remote as

11

to preclude any defense attorney from being ineffective for failing to follow through.”

12

Answer (Doc. 30), Exh. “K” at 6. Moreover, the state courts stated the proper standard under

13

Strickland. See id., Exh. “K” at 5-6, Exh. “O” at 2-3. As such, the Arizona courts did not

14

unreasonably apply clearly established Federal law. See Gulbrandson, 738 F.3d at 991.

15

Further, there is no evidence before this Court to suggest that trial counsel functioned

16

deficiently in litigating the DNA evidence. Therefore, Petitioner’s ineffective assistance of

17

counsel claim regarding a failure to raise an alleged problem with the “310 machine” which

18

analyzed the DNA evidence must fail. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

19

D.

20

The Supreme Court of the United States has held “that review under § 2254(d)(1) is

21

limited to the record that was before the state court that adjudicated the claim on the merits.”

22

Pinholster, — U.S. at —, 131 S.Ct. at 1398. Furthermore, Section 2254(e)(2) provides:

23
24
25
26
27

Additional Filings

If the applicant has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on the claim unless
the applicant shows that –
(A) the claim relies on –
(i) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was previously
unavailable; or

28
- 19 -

1

(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and

2
(B) the facts underlying the claim would be sufficient to establish by
clear and convincing evidence that but for constitutional error, no
reasonable fact-finder would have found the applicant guilty of the
underlying offense.

3
4
5

28 U.S.C. § 2254(e)(2). The Court has reviewed all of the documents filed by Petitioner in

6

this case. None of the additional documents provide support for Petitioner’s claims of actual

7

innocence or a breakdown of the trial process before the state court.

8
9

V.

OTHER PENDING MOTIONS

10

A.

11

Petitioner seeks to dismiss the criminal case underlying the instant cause of action

12

based upon allegations that the DNA testing did not meet the Frye standard. See Pet.’s Mot.

13

to Dismiss Cases (Doc. 49); Pet.’s Mot. to Dismiss Case on Error D-N-A Results (Doc. 50).

14

“It is not the province of a federal habeas court to reexamine state-court determinations on

15

state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 480, 116 L.Ed.2d

16

385 (1991). Moreover, this Court lacks jurisdiction over the Arizona state criminal

17

proceeding. As the Supreme Court of the United States has recognized:

18

Motions to Dismiss

20

[T]he notion of ‘comity,’ that is, a proper respect for state functions, a
recognition of the fact that the entire country is made up of a Union of separate
state governments, and a continuance of the belief that the National
Government will fare best if the States and their institutions are left free to
perform their separate functions in their separate ways.

21

Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750, 27 L.Ed.2d 669 (1971). Accordingly,

22

Petitioner’s motions to dismiss will be denied.

19

23

B.

24

Petitioner moves this Court for a new trial in his state criminal case alleging that he

25

did not get a fair trial. Pet.’s Mot. for a New Trial (Docs. 55, 58, 61). As discussed above,

26

this Court lacks jurisdiction over the Arizona state criminal proceeding, and this request

27

exceeds the scope of habeas review. Accordingly, Petitioner’s motions for new trial will be

28

denied.

Motions for New Trial

- 20 -

1

C.

2

Petitioner seeks the appointment of new counsel in this case. Pet.’s Mot. for to [sic]

3

Appoint New Counsel (Doc. 56, 59, 62). “Indigent state prisoners applying for habeas

4

corpus relief are not entitled to appointed counsel unless the circumstances of a particular

5

case indicate that appointed counsel is necessary to prevent due process violations.” Chaney

6

v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (citing Kreiling v. Field, 431 F.2d 638, 640

7

(9th Cir. 1970) (per curiam). The record before the Court does not support Petitioner’s

8

claims that he is entitled to either appointed counsel or an evidentiary hearing. Furthermore,

9

to the extent that Petition is seeking new counsel in his state court criminal proceeding, this

10

Court lacks jurisdiction. See discussion Section V.A., supra. As such, Petitioner’s motion

11

for new counsel will be denied.

Motions for Appointment of Counsel

12

D.

13

Petitioner has filed a Motion for Case Status Acknowledge Back To Petitioner (Doc.

14

57). To the extent this document request a ruling and a copy of the docket sheet, it will be

15

granted. It will be denied as to any other request for relief.

Case Status

16
17
18
19
20
21
22
23

VI.

CONCLUSION
Based upon the foregoing, the Court will deny Petitioner’s petition. Accordingly, IT

IS HEREBY ORDERED:
1. Petitioner’s Second Amended Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody (Doc. 24) is DENIED;
2. Petitioner’s Motion to Dismiss Cases (Doc. 49) and Motion to Dismiss Case on
Error D-N-A Results (Doc. 50) are DENIED.

24

3. Petitioner’s Motion[s] for a New Trial (Docs. 55, 58, 61) are DENIED.

25

4. Petitioner’s Motion[s] for to [sic] Appoint New Counsel (Doc. 56, 59, 62) are

26
27
28

DENIED.
5. Petitioner’s Motion for Case Status Acknowledge Back To Petitioner (Doc. 57),
is GRANTED in part and DENIED in part;
- 21 -

1
2

6. The Clerk of the Court shall send a copy of the docket sheet in this case to
Petitioner;

3

7. This matter is DISMISSED with prejudice;

4

8. A certificate of appealability is DENIED. See 28 U.S.C. § 2253. Reasonable

5
6
7
8

jurists would not find the Court’s ruling debatable; and
9. The Clerk of the Court shall enter judgment and shall then close its file in this
matter.
DATED this 11th day of September, 2014.

9
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