Martinez v. Hartley
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 7/29/2011 recommending to dismiss without leave to amend claims based on State Law and State's post-conviction process re 9 Amended Petition for Writ of Habeas Corpus and to refer remaining claims back to Magistrate Judge. Referred to Judge Oliver W. Wanger; Objections to F&R due by 9/6/2011. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ISAAC MARTINEZ,
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Petitioner,
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v.
JAMES D. HARTLEY,
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Respondent.
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1:11-cv—00215-OWW-SKO-HC
FINDINGS AND RECOMMENDATIONS
TO DISMISS WITHOUT LEAVE TO AMEND
PETITIONER’S CLAIMS IN THE FIRST
AMENDED PETITION BASED ON STATE
LAW AND CONCERNING THE STATE
POST-CONVICTION PROCESS (DOC. 9)
FINDINGS AND RECOMMENDATIONS
TO REFER THE REMAINING CLAIMS
BACK TO THE MAGISTRATE JUDGE
OBJECTIONS DEADLINE:
THIRTY (30) DAYS
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Petitioner is a state prisoner proceeding pro se and in
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forma pauperis with a petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254.
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
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Rules 302 and 304.
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petition (FAP), which was filed on April 25, 2011.
The matter has been referred to the
Pending before the Court is the first amended
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I.
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Rule 4 of the Rules Governing § 2254 Cases in the United
Screening the Petition
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States District Courts (Habeas Rules) requires the Court to make
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a preliminary review of each petition for writ of habeas corpus.
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The Court must summarily dismiss a petition "[i]f it plainly
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appears from the petition and any attached exhibits that the
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petitioner is not entitled to relief in the district court....”
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Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir.
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1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir.
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1990).
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grounds of relief available to the Petitioner; 2) state the facts
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supporting each ground; and 3) state the relief requested.
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Notice pleading is not sufficient; rather, the petition must
Habeas Rule 2(c) requires that a petition 1) specify all
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state facts that point to a real possibility of constitutional
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error.
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O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v.
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Allison, 431 U.S. 63, 75 n.7 (1977)).
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that are vague, conclusory, or palpably incredible are subject to
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summary dismissal.
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Cir. 1990).
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Rule 4, Advisory Committee Notes, 1976 Adoption;
Allegations in a petition
Hendricks v. Vasquez, 908 F.2d 490, 491 (9th
Further, the Court may dismiss a petition for writ of habeas
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corpus either on its own motion under Habeas Rule 4, pursuant to
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the respondent's motion to dismiss, or after an answer to the
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petition has been filed.
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8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43
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(9th Cir. 2001).
Advisory Committee Notes to Habeas Rule
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II.
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Here, Petitioner alleges that he is an inmate of the
Allegations of the First Amended Petition
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California State Prison at Avenal, California, serving a sentence
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of ten (10) years to life imposed in 1993 by the Los Angeles
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Superior Court in case number VAO24361.
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challenges his sentence as well as the Superior Court’s handling
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(FAP 7.)
Petitioner
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of a petition for writ of habeas corpus filed by Petitioner in
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that court in 2009.
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claims:
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Amendment protection against double jeopardy as well as the
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constitution of California; and 2) his rights under federal law
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and unspecified portions of the Constitution were violated by the
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California Superior Court’s failure to respond in a timely manner
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to Petitioner’s habeas petition in 2009.
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III.
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(Id.)
Petitioner raises the following
his conviction and sentence violated his Fifth
(Id.)
Failure to State a Cognizable Double Jeopardy Claim
Based on the California Constitution
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Petitioner argues that his sentence to life plus ten years
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for kidnaping for the purpose of robbery, and the enhancement of
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his sentence for a prior conviction, prior prison term, arming,
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and for use of a handgun violated both federal and state
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constitutional provisions concerning double jeopardy.
(FAP 7,
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11.)
Petitioner contends that the enhancement of his sentence
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constituted punishment for the same offense because the
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enhancements constituted lesser offenses that were necessarily
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included in the offense of kidnaping for robbery.
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Because the petition was filed after April 24, 1996, the
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effective date of the Antiterrorism and Effective Death Penalty
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Act of 1996 (AEDPA), the AEDPA applies in this proceeding.
Lindh
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v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008
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(1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999).
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To the extent that Petitioner relies on the constitution of
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the state of California, Petitioner has failed to state a claim
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cognizable in a proceeding pursuant to 28 U.S.C. § 2254.
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///
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Federal habeas relief is available to state prisoners only
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to correct violations of the United States Constitution, federal
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laws, or treaties of the United States.
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Federal habeas relief is not available to retry a state issue
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that does not rise to the level of a federal constitutional
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violation.
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(2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
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errors in the application of state law are not cognizable in
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federal habeas corpus.
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28 U.S.C. § 2254(a).
Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16
Alleged
Souch v. Schaivo, 289 F.3d 616, 623 (9th
Cir. 2002).
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A petition for habeas corpus should not be dismissed without
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leave to amend unless it appears that no tenable claim for relief
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can be pleaded were such leave granted.
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F.2d 13, 14 (9th Cir. 1971).
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Jarvis v. Nelson, 440
Here, Petitioner’s claim is deficient not from the absence
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of facts, but rather because violations of the constitution of
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the state of California are not subject to this Court’s review
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under 28 U.S.C. § 2254.
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court concludes that granting further leave to amend would be
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futile.
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dismissed without leave to amend.
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IV.
Given the nature of the defect, the
Accordingly, it will be recommended that the claim be
Failure to State a Cognizable Claim concerning
California’s Post-Conviction Processes
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Petitioner alleges that after filing a petition for writ of
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habeas corpus in the Superior Court concerning denial of a parole
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release date, the court failed to respond to the petition in a
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timely manner because the petition remained pending for five
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months.
(FAP 7.)
Petitioner argues that his constitutional
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rights under state and federal law to appeal the denial of parole
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were violated.
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As set forth above, to the extent that Petitioner bases his
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claim on state law, Petitioner has failed to state facts that
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would entitle him to relief in this proceeding because violations
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of state law are not in themselves cognizable in a proceeding
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pursuant to 28 U.S.C. § 2254.
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Further, to the extent that Petitioner bases his claim on
the Federal Constitution, federal habeas relief is not available
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to redress procedural errors in the state collateral review
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process.
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(claim concerning the alleged bias of a judge in a second post-
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conviction proceeding for relief); Carriger v. Stewart, 95 F.3d
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755, 763 (9th Cir. 1996), vacated on other grounds, Carriger v.
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Stewart, 132 F.3d 463 (1997) (Brady claim in post-conviction
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proceedings); Franzen v. Brinkman, 877 F.2d 26, 26 (9th Cir.
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1989) (claim that a state court’s delay in deciding a petition
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for post-conviction relief violated due process rights).
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Further, there is no clearly established federal law, as
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determined by the Supreme Court of the United States, recognizing
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a due process right to a speedy appeal.
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500, 523 (9th Cir. 2011).
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Ortiz v. Stewart, 149 F.3d 923, 939 (9th Cir. 1998)
Hayes v. Ayers, 632 F.3d
Accordingly, Petitioner’s claim concerning the five-month
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delay by the state court in processing Petitioner’s habeas
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petition is not cognizable in this proceeding.
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of a cognizable claim results from the nature of the claim, and
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not from the absence of factual allegations, granting leave to
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amend the claim would be futile.
Because the lack
It will, therefore, be
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recommended that the claim be dismissed without leave to amend.
In summary, Petitioner’s claims that are based on state law
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and that concern the state post-conviction process are not
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cognizable in this proceeding and must be dismissed without leave
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to amend.
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petition, it will be recommended that upon the District Judge’s
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disposition of these findings and recommendations, the action be
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referred back to the Magistrate Judge for further proceedings.
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V.
With respect to the remaining claim or claims in the
Recommendations
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Accordingly, it is RECOMMENDED that:
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1)
Petitioner’s claims based on state law and his claim
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concerning delay in the post-conviction processes of the state
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court be DISMISSED without leave to amend; and
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2)
Upon dismissal of the claims that are not cognizable,
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the proceeding be REFERRED back to the Magistrate Judge for
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further proceedings.
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These findings and recommendations are submitted to the
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United States District Court Judge assigned to the case, pursuant
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to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
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the Local Rules of Practice for the United States District Court,
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Eastern District of California.
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being served with a copy, any party may file written objections
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with the Court and serve a copy on all parties.
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should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.”
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and filed within fourteen (14) days (plus three (3) days if
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served by mail) after service of the objections.
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then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. §
Within thirty (30) days after
Such a document
Replies to the objections shall be served
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The Court will
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636 (b)(1)(C).
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objections within the specified time may waive the right to
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appeal the District Court’s order.
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1153 (9th Cir. 1991).
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
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IT IS SO ORDERED.
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Dated:
ie14hj
July 29, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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