Franklin Larance Forch v. Daniel Paramo et al

Filing 47

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Andrew J. Guilford. The Court accepts and adopts the Magistrate Judge's Report and Recommendation. It is Ordered that Judgment be entered denying and dismissing the Petition with prejudice. (Attachments: # 1 R&R) (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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FRANKLIN LARANCE FORCH,

) NO. CV 12-8554-AG(E)
)
Petitioner,
)
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v.
) REPORT AND RECOMMENDATION OF
)
DANIEL PARAMO, ET AL.,
) UNITED STATES MAGISTRATE JUDGE
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Respondents.
)
______________________________)

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This Report and Recommendation is submitted to the Honorable

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Andrew J. Guilford, United States District Judge, pursuant to 28

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U.S.C. section 636 and General Order 05-07 of the United States

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District Court for the Central District of California.

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PROCEEDINGS

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On September 26, 2012, Petitioner, a state prisoner, filed a

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“Petition for Writ of Habeas Corpus” in the United States District

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Court for the Southern District of California.

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the United States District Court for the Southern District of

On October 1, 2012,

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California transferred the action to this Court.

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The Petition originally alleged four “Grounds.”

On February 1,

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2013, Respondent filed an Answer, contending inter alia that Grounds

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One, Three and Four of the Petition were unexhausted.

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filed a “Motion for Traverse” on February 27, 2013.

Petitioner

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On July 31, 2013, the Court issued an “Order Re Exhaustion

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Issues,” ruling that certain of Petitioner’s claims were unexhausted

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and ordering Petitioner to file:

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intent to delete Petitioner’s unexhausted claims; (2) a document

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requesting dismissal of this entire proceeding without prejudice; or

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(3) a motion for a stay pursuant to Rhines v. Weber, 544 U.S. 269,

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273-74 (1995) (“Rhines”) and/or Kelly v. Small, 315 F.3d 1063 (9th

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Cir.), cert. denied, 548 U.S. 1042 (2003), overruled on other grounds,

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Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007) (“Kelly”).

(1) a document stating Petitioner’s

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On August 30, 2013, Petitioner filed a “Motion for a Stay of

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Ruling of Habeas Corpus.”

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“Order Denying Motion for Stay,” ruling that Petitioner was not

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entitled to a stay under either Rhines or Kelly.

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Petitioner to dismiss the Petition in its entirety or to dismiss all

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of the unexhausted claims (“Order Denying Motion for Stay” at 6-8).

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Petitioner failed to comply with this Order within the allotted time.

On September 25, 2013, the Court issued an

The Court ordered

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On November 19, 2013, the Magistrate Judge filed a “Report and

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Recommendation of United States Magistrate Judge” (“the prior

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report”).

The prior report recommended that the Petition be denied
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and dismissed without prejudice for failure to comply with the Court’s

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September 25, 2013 Order.

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On December 4, 2013, Petitioner filed a “Written Statement of

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Objection to Report and Recommendation” (“the prior objection”).

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Court construed the prior objection as Petitioner’s belated notice of

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voluntary dismissal of Petitioner’s unexhausted claims.

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Order filed December 9, 2013.

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withdrawn, and the Court ordered supplemental briefing on Ground Two

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The

See Minute

The prior report therefore was

of the Petition, Petitioner’s only remaining Ground (id.).1

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Respondent filed a Supplemental Answer on January 7, 2014.

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Petitioner filed an “Answer Supplemental to Habeus [sic] Corpus” on

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January 22, 2014.

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BACKGROUND

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Pursuant to a plea of no contest, Petitioner was convicted of

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second degree murder (Lodged Documents 1 and 2).

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denied Petitioner’s request for a certificate of probable cause

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(Lodged Document 3 at n.1).

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The Superior Court

Petitioner’s appellate counsel filed a

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Because the pages of the Petition containing
Petitioner’s grounds for relief appear to be out of order, the
numbering of the grounds is somewhat confusing. See “Order re
Exhaustion of Issues,” filed July 31, 2013, at n.2. Petitioner’s
only remaining Ground is the Ground referenced in Respondent’s
Answer as “Ground Two,” which is the Ground set forth on page “8
of 140" of the Petition as scanned into ECF.
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Wende2 brief (id. at 4; Lodged Document 9).

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letters with the California Court of Appeal, and received several

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extensions of time within which to file a supplemental brief (Lodged

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Document 3 at 5).

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of Appeal denied Petitioner’s requests for a further extension, the

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Court of Appeal affirmed the conviction in a reasoned decision (id.).

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The Court of Appeal stated, inter alia:

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record and considered the contents of defendant’s letters, we are

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satisfied that defendant’s appellate counsel has fully complied with

Petitioner filed several

After these extensions expired, and after the Court

“Having examined the entire

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his responsibilities and that no arguable issues exist” (id. at 5).

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Petitioner did not file a petition for review in the California

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Supreme Court.3

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Petitioner subsequently filed several habeas corpus petitions in

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the California Supreme Court.

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July 31, 2013, at 2-3.

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these petitions.

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See “Order re Exhaustion Issues,” filed

The California Supreme Court summarily denied

See id.

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See People v. Wende, 25 Cal. 3d 436, 158 Cal. Rptr.
839, 600 P.2d 1071 (1979) (appellate counsel may file a brief
raising no specific issues and calling upon the court to review
the entire record to determine for itself whether there exist any
arguable appellate issues).

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The Court takes judicial notice of the California
Supreme Court’s docket, available on the California courts’
website at www.courts.ca.gov. See Porter v. Ollison, 620 F.3d
952, 954-55 n.1 (9th Cir. 2010) (taking judicial notice of state
court dockets). The docket shows no person named Franklin Forch
ever filed a petition for review in that court. Although
Petitioner appears to allege he filed a petition for review, he
references only his two California Supreme Court habeas petitions
(see Petition, p. 2).
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In Ground Two, Petitioner’s only remaining Ground, Petitioner

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contends:

(1) appellate counsel allegedly rendered ineffective

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assistance by failing to show “just cause” for a “new trial” and by

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failing to prove Petitioner’s supposed innocence; and (2) the actions

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of prison staff in allegedly harassing and intimidating Petitioner,

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confining Petitioner in administrative segregation and denying

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Petitioner library access, assertedly hindered Petitioner from filing

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a pro se brief in the California Court of Appeal.

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STANDARD OF REVIEW

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Under the “Antiterrorism and Effective Death Penalty Act of 1996"

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(“AEDPA”), a federal court may not grant an application for writ of

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habeas corpus on behalf of a person in state custody with respect to

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any claim that was adjudicated on the merits in state court

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proceedings unless the adjudication of the claim:

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decision that was contrary to, or involved an unreasonable application

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of, clearly established Federal law, as determined by the Supreme

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Court of the United States”; or (2) “resulted in a decision that was

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based on an unreasonable determination of the facts in light of the

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evidence presented in the State court proceeding.”

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2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v.

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Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09

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(2000).

(1) “resulted in a

28 U.S.C. §

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“Clearly established Federal law” refers to the governing legal

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principle or principles set forth by the Supreme Court at the time the

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state court renders its decision on the merits.
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Greene v. Fisher, 132

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S. Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

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A state court’s decision is “contrary to” clearly established Federal

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law if:

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Court law; or (2) it “confronts a set of facts . . . materially

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indistinguishable” from a decision of the Supreme Court but reaches a

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different result.

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omitted); Williams v. Taylor, 529 U.S. at 405-06.

(1) it applies a rule that contradicts governing Supreme

See Early v. Packer, 537 U.S. at 8 (citation

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Under the “unreasonable application prong” of section 2254(d)(1),

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a federal court may grant habeas relief “based on the application of a

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governing legal principle to a set of facts different from those of

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the case in which the principle was announced.”

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538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537

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U.S. at 24-26 (state court decision “involves an unreasonable

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application” of clearly established federal law if it identifies the

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correct governing Supreme Court law but unreasonably applies the law

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to the facts).

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application of [Supreme Court] precedent if the state court either

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unreasonably extends a legal principle from [Supreme Court] precedent

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to a new context where it should not apply, or unreasonably refuses to

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extend that principle to a new context where it should apply.”

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Williams v. Taylor, 529 U.S. at 407 (citation omitted).

Lockyer v. Andrade,

A state court’s decision “involves an unreasonable

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“In order for a federal court to find a state court’s application

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of [Supreme Court] precedent ‘unreasonable,’ the state court’s

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decision must have been more than incorrect or erroneous.”

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Smith, 539 U.S. 510, 520 (2003) (citation omitted).

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court’s application must have been ‘objectively unreasonable.’”
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Wiggins v.

“The state
Id.

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at 520-21 (citation omitted); see also Waddington v. Sarausad, 555

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U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th

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Cir. 2004), cert. dism’d, 545 U.S. 1165 (2005).

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habeas court must determine what arguments or theories supported,

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. . . or could have supported, the state court’s decision; and then it

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must ask whether it is possible fairminded jurists could disagree that

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those arguments or theories are inconsistent with the holding in a

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prior decision of this Court.”

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786 (2011).

“Under § 2254(d), a

Harrington v. Richter, 131 S. Ct. 770,

This is “the only question that matters under §

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2254(d)(1).”

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relief may not issue unless “there is no possibility fairminded

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jurists could disagree that the state court’s decision conflicts with

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[the United States Supreme Court’s] precedents.”

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condition for obtaining habeas corpus from a federal court, a state

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prisoner must show that the state court’s ruling on the claim being

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presented in federal court was so lacking in justification that there

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was an error well understood and comprehended in existing law beyond

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any possibility for fairminded disagreement.”).

Id. (citation and internal quotations omitted).

Habeas

Id. at 786-87 (“As a

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In applying these standards, the Court looks to the last reasoned

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state court decision.

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(9th Cir. 2008).

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state court summarily denies a claim, “[a] habeas court must determine

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what arguments or theories . . . could have supported the state

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court’s decision; and then it must ask whether it is possible

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fairminded jurists could disagree that those arguments or theories are

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inconsistent with the holding in a prior decision of this Court.”

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Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (citation,

See Delgadillo v. Woodford, 527 F.3d 919, 925

Where no reasoned decision exists, as where the

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quotations and brackets omitted).

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Additionally, federal habeas corpus relief may be granted “only

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on the ground that [Petitioner] is in custody in violation of the

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Constitution or laws or treaties of the United States.”

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2254(a).

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of whether the petition satisfies section 2254(a) prior to, or in lieu

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of, applying the standard of review set forth in section 2254(d).

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Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

28 U.S.C. §

In conducting habeas review, a court may determine the issue

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DISCUSSION

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For the reasons discussed below, the Petition should be denied
and dismissed with prejudice.4

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I.

Alleged Ineffective Assistance of Appellate Counsel

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To establish ineffective assistance of counsel, Petitioner must

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prove:

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of reasonableness; and (2) there is a reasonable probability that, but

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for counsel’s errors, the result of the proceeding would have been

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different.

(1) counsel’s representation fell below an objective standard

Strickland v. Washington, 466 U.S. 668, 688, 694, 697

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The Court assumes arguendo the timeliness of
Petitioner’s claims. See Van Buskirk v. Baldwin, 255 F.3d 974,
976 (9th Cir.), amended and superseded on other grounds, 265 F.3d
1080 (9th Cir. 2001), cert. denied, 535 U.S. 950 (2002)
(declining to address statute of limitations issue where habeas
petition lacked merit); see also Trussel v. Bowersox, 447 F.3d
588, 590 (8th Cir.), cert. denied, 549 U.S. 1034 (2006)
(addressing merits rather than limitations issue in the interest
of judicial economy).
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(1984) (“Strickland”).

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“is a probability sufficient to undermine confidence in the outcome.”

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Id. at 694.

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counsel’s performance was reasonable or the claimed error was not

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prejudicial.

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(9th Cir.), cert. denied, 134 S. Ct. 726 (2013) (“[f]ailure to meet

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either [Strickland] prong is fatal to a claim”); Rios v. Rocha, 299

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F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the

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Strickland test obviates the need to consider the other.”) (citation

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A reasonable probability of a different result

The court may reject the claim upon finding either that

Id. at 697; see Gentry v. Sinclair, 705 F.3d 884, 889

omitted).

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Review of counsel’s performance is “highly deferential” and there

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is a “strong presumption” that counsel rendered adequate assistance

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and exercised reasonable professional judgment.

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384 F.3d 567, 610 (9th Cir. 2004), cert. denied, 546 U.S. 934 (2005)

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(quoting Strickland, 466 U.S. at 689).

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reasonableness of counsel’s conduct “on the facts of the particular

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case, viewed as of the time of counsel’s conduct.”

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U.S. at 690.

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nor apply the fabled twenty-twenty vision of hindsight. . . .”

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Matylinsky v. Budge, 577 F.3d 1083, 1091 (9th Cir. 2009), cert.

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denied, 558 U.S. 1154 (2010) (citation and quotations omitted); see

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Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth Amendment

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guarantees reasonable competence, not perfect advocacy judged with the

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benefit of hindsight.”) (citations omitted).

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burden to show that “counsel made errors so serious that counsel was

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not functioning as the counsel guaranteed the defendant by the Sixth

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Amendment.”

Williams v. Woodford,

The court must judge the

Strickland, 466

The court may “neither second-guess counsel’s decisions,

Petitioner bears the

Harrington v. Richter, 131 S. Ct. at 787 (citation and
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internal quotations omitted); see Strickland, 466 U.S. at 689.

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A state court’s decision rejecting a Strickland claim is entitled

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to “a deference and latitude that are not in operation when the case

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involves review under the Strickland standard itself.”

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Richter, 131 S. Ct. at 785.

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not whether counsel’s actions were reasonable.

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whether there is any reasonable argument that counsel satisfied

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Strickland’s deferential standard.”

Harrington v.

“When § 2254(d) applies, the question is
The question is

Id. at 788.

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“In assessing prejudice under Strickland, the question is not

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whether a court can be certain counsel’s performance had no effect on

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the outcome. . . .”

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issue is whether, in the absence of counsel’s alleged error, it is

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“‘reasonably likely’” that the result would have been different.

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at 792 (quoting Strickland, 466 U.S. at 696).

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different result must be substantial, not just conceivable.”

Id. at 791-92 (citations omitted).

Rather, the

Id.

“The likelihood of a
Id.

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The standards applicable to claims of ineffective assistance of

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trial counsel apply equally to claims of ineffective assistance of

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appellate counsel.

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(“Smith”); Alford v. Rolfs, 867 F.2d 1216, 1220 (9th Cir. 1989).

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Under Strickland, appellate counsel has no constitutional obligation

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to raise all nonfrivolous issues on appeal.

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F.3d 1430, 1435 (9th Cir. 1997).

Smith v. Robbins, 528 U.S. 259, 285-86 (2000)

Pollard v. White, 119

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To succeed on his claim of ineffective assistance of appellate
counsel in the present case, Petitioner must show:
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(1) counsel's

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decision to file a Wende brief was objectively unreasonable; and

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(2) but for counsel's failure to discover appellate issues and to file

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a brief discussing the merits of those issues, Petitioner would have

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prevailed on appeal.

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466 U.S. at 694.

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not shown that appellate counsel "unreasonably failed to discover

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nonfrivolous issues."

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that appellate counsel filed a Wende brief after counsel reviewed the

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record and found no arguable issues on appeal.

Smith, 528 U.S. at 285-86; see also Strickland,

Petitioner has made neither showing.

Smith, 528 U.S. at 285-86.

Petitioner has

The record shows

The Court of Appeal

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also reviewed the entire record and reasonably concluded that

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“appellate counsel has fully complied with his responsibilities and

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. . . no arguable issues exist.”

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appellate counsel did not act unreasonably by filing a Wende brief.

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See Pollard v. White, 119 F.3d at 1437 (appellate counsel not

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deficient for failing to present claims with no likelihood of

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success).

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counsel’s failure to raise any specific issues on appeal.

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528 U.S. at 285-86 (to prevail, a petitioner "must show a reasonable

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probability that, but for his counsel's unreasonable failure to file a

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merits brief, he would have prevailed on his appeal").

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extremely conclusory allegations that counsel should have shown “just

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cause” for a “new trial” and should have proven Petitioner’s supposed

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innocence cannot support habeas relief.

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199, 205 (9th Cir. 1995), cert. denied, 517 U.S. 1143 (1996) (“It is

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well settled that conclusory allegations which are not supported by a

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statement of specific facts do not warrant habeas relief") citations

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and quotations omitted).

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Because no arguable issues existed,

For the same reason, Petitioner was not prejudiced by

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See Smith,

Petitioner's

See Jones v. Gomez, 66 F.3d

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Furthermore, several legal obstacles would have discouraged any

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reasonable appellate counsel from attempting to prove Petitioner’s

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supposed innocence.

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obstacle.

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court that he is in fact guilty of the offense with which he is

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charged, he may not thereafter raise independent claims relating to

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the deprivation of constitutional rights that occurred prior to the

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entry of the guilty plea.”

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(1973); see also United States v. Cazares, 121 F.3d 1241, 1246-48 (9th

Petitioner’s plea presented the first such

“When a criminal defendant has solemnly admitted in open

Tollett v. Henderson, 411 U.S. 258, 267

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Cir. 1997) (guilty plea admits all facts essential to the validity of

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the conviction).

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pleas as well as to guilty pleas.

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3930348, at *10 n.7 (C.D. Cal. Aug. 3, 2012), adopted, 2012 WL 3930345

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(C.D. Cal. Sept. 6, 2012) (“Under California law, the legal effect of

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Petitioner’s no contest plea was the same as the effect accorded to a

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plea of guilty”) (citations omitted).

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amply refutes his conclusory claim of actual innocence.

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v. Mancinas-Flores, 588 F.3d 677, 681 (9th Cir. 2009) (“a guilty plea

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is an admission of all the elements of a formal criminal charge”)

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(citation omitted); United States v. Benboe, 157 F.3d 1181, 1184 (9th

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Cir. 1998) (“Any attempt to contradict the factual basis of a valid

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plea must fail”) (citation and internal quotations omitted); see also

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United States v. Dungee, 228 Fed. App’x 298, 303 (4th Cir. 2007) (“A

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knowing and voluntary guilty plea ‘conclusively establishes the

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elements of the offense and the material facts necessary to support

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the conviction,’ and ‘constitutes a waiver of all nonjurisdictional

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defects,’ such as claims of actual innocence.”) (citations omitted);

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Hernandez v. Mendoza-Powers, 2005 WL 2089807, at *5 (E.D. Cal.

In California, this principle applies to no contest
Rosenfeld v. Warden, 2012 WL

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Accordingly, Petitioner’s plea
United States

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Aug. 29, 2005) (“Petitioner’s claim of actual innocence is a pre-plea

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matter which is barred by Tollet[t]”); People v. McNabb, 228 Cal. App.

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3d 462, 470-71, 279 Cal. Rptr. 11, 16 (1991) (“the issue of guilt or

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innocence is waived by a guilty plea”); see also In re Chavez, 30 Cal.

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4th 643, 649, 134 Cal. Rptr. 2d 54, 68 P.2d 347 (2003) (in California,

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“when a defendant pleads guilty or no contest and is convicted without

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a trial, only limited issues are cognizable on appeal”).

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Second, the denial of the certificate of probable cause prevented

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Petitioner’s appellate counsel from raising any issues Petitioner now

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suggests, including Petitioner’s supposed innocence.

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law, the denial of a certificate of probable cause limits the scope of

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any direct appeal to the pre-plea denial of a motion to suppress

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evidence or grounds arising post-plea that do not challenge the plea’s

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validity.

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Petitioner has not suggested any issues that could have been appealed

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in the absence of a certificate of probable cause.

Under California

See Cal. Penal Code § 1237.5; Cal. R. Ct. 8.304(b).

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19

A third separate obstacle also would have prevented Petitioner’s

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counsel from attempting to prove Petitioner’s “innocence” on direct

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appeal.

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outside the appellate record.

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confined in its review to the proceedings that took place in the court

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below and are brought up for review in a properly prepared record on

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appeal.”

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see Brosterhous v. State Bar, 12 Cal. 4th 315, 325, 48 Cal. Rptr. 2d

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87, 93, 906 P.2d 1242, 1248 (1995).

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appellate record regarding Petitioner’s guilt or innocence consisted

Any such attempt would have required recourse to matters
The appellate court “is ordinarily

9 Witkin, Cal. Proc., Appeal § 334 (5th ed. 2008);

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The only evidence in the

1

of Petitioner’s no contest plea and the preliminary hearing

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transcript, both of which reflected Petitioner’s guilt.5

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4

In sum, Petitioner has failed to demonstrate that any action or

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inaction by appellate counsel was unreasonable or prejudicial.

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Moormann v. Ryan, 628 F.3d 1102, 1109 (9th Cir. 2010), cert. denied,

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132 S. Ct. 346 (2011) (counsel is not required to raise a meritless

8

issue on appeal); Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir.

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2001) (appellate counsel’s failure to raise an issue on direct appeal

See

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cannot constitute ineffective assistance when “the appeal would not

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have provided grounds for reversal.”) (citation omitted).

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II.

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Alleged Interference with Petitioner’s Filing of a Pro Se
Supplemental Brief on Appeal

15
16

Federal habeas corpus relief may be granted “only on the ground

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that [Petitioner] is in custody in violation of the Constitution or

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laws or treaties of the United States.”

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errors in the application of state law are not cognizable on federal

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habeas review.

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(“it is not the province of a federal habeas corpus court to reexamine

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state-court determinations on state-law questions”); accord Pulley v.

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Harris, 465 U.S. 37, 41 (1984).

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///

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///

28 U.S.C. § 2254(a).

Mere

Id.; Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

26
27
28

5

See Lodged Document 1 (plea transcript) and Lodged
Document 8 (Clerk’s Transcript containing the preliminary hearing
transcript at pages 3 through 37).
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1

Petitioner’s complaints regarding the treatment he assertedly

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received in prison during his direct appeal, including the alleged

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interference with his ability to file a pro se supplemental brief,

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fail to raise any issue of federal law cognizable on habeas corpus.

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The Wende procedures followed by the California Court of Appeal

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satisfied federal constitutional requirements.

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266.

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the course of proceedings on appeal.

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528 U.S. 152 (2000) (criminal defendant has no constitutional right to

See Smith, 528 U.S. at

A criminal defendant has no constitutional entitlement to direct
See Martinez v. Court of Appeal,

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represent himself or herself on appeal); Jones v. Barnes, 463 U.S.

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745, 754 (1983) (criminal defendant has no constitutional right to

12

have appellate counsel raise every non-frivolous issue that the

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defendant seeks to raise); Smith v. Cox, 435 F.2d 453, 458-59 (4th

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Cir. 1970), vacated on other grounds, 404 U.S. 53 (1971) (“however

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desirable” it may be that appellate counsel “consult with his client

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at least once to ascertain his client’s desires with regard to the

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alleged trial errors which the appellant wishes to press,” it is not

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constitutionally required).

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permits the filing of a pro se supplemental brief when counsel has

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filed a Wende brief, Petitioner had no federal constitutional right to

21

file such a brief.

22

Cir. 2000), cert. denied, 532 U.S. 958 (2001); Nelson v. Lackner, 2013

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WL 6178544, at *12-13 (E.D. Cal. Nov. 22, 2013).

Although California state law generally

See McMeans v. Brigano, 228 F.3d 674, 684 (6th

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25

To the extent the state post-conviction review procedures

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violated any non-constitutional standards, such violation would not be

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cognizable in habeas corpus.

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available to redress alleged procedural errors in state post-

“[F]ederal habeas relief is not

15

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conviction proceedings.”

Ortiz v. Stewart, 149 F.3d 923, 939 (9th

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Cir. 1998), cert. denied, 526 U.S. 1123 (1999); Franzen v. Brinkman,

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877 F.2d 26, 26 (9th Cir.), cert. denied, 493 U.S. 1012 (1989) (“a

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petition alleging errors in the state post-conviction review process

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is not addressable through habeas corpus proceedings”).

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applies to alleged procedural errors in the state appeals process.

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See Madrid v. Marshall, 1995 WL 91329, *2 (N.D. Cal. Jan. 30, 1995),

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aff’d, 99 F.3d 1146 (9th Cir. 1996) (unpublished table opinion), cert.

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denied, 519 U.S. 1130 (1997) (“Petitioner alleges that the California

This rule

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Court of Appeal erred in striking his supplemental brief contesting

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issues his appellate counsel would not raise.

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assertions of error in the state post-conviction review process do not

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represent an attack on his detention, they are not addressable through

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habeas corpus proceedings”) (citing Franzen v. Brinkman).

Because Petitioner’s

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RECOMMENDATION

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For all of the foregoing reasons, IT IS RECOMMENDED that the

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Court issue an Order:

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Recommendation; and (2) directing that Judgment be entered denying and

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dismissing the Petition with prejudice.

(1) accepting and adopting this Report and

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DATED: January 31, 2014.
_____________/S/_______________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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NOTICE
Reports and Recommendations are not appealable to the Court of

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Appeals, but may be subject to the right of any party to file

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objections as provided in the Local Rules Governing the Duties of

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Magistrate Judges and review by the District Judge whose initials

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appear in the docket number.

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Federal Rules of Appellate Procedure should be filed until entry of

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the judgment of the District Court.

No notice of appeal pursuant to the

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If the District Judge enters judgment adverse to Petitioner, the

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District Judge will, at the same time, issue or deny a certificate of

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appealability.

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and Recommendation, the parties may file written arguments regarding

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whether a certificate of appealability should issue.

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Within twenty (20) days of the filing of this Report