Hickman v. Hedgepeth

Filing 45

ORDER Substituting Warden William Muniz as Respondent; FINDINGS and RECOMMENDATIONS to Deny 1 Petition for Writ of Habeas Corpus, Deny Petitioner's Motion for an Evidentiary Hearing, and Direct Entry of Judgment for Respondent; FINDINGS and RECOMMENDATIONS to Decline to Issue a Certificate of Appealability, signed by Magistrate Judge Sheila K. Oberto on 5/19/15. Referred to Judge O'Neill; 30-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MICHAEL D. HICKMAN,

Case No. 1:12-cv-00547-LJO-SKO-HC

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ORDER SUBSTITUTING WARDEN WILLIAM
MUNIZ AS RESPONDENT

Petitioner,

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FINDINGS AND RECOMMENDATIONS TO
DENY THE PETITION FOR WRIT OF
HABEAS CORPUS (DOC. 1), DENY
PETITIONER’S MOTION FOR AN
EVIDENTIARY HEARING (DOCS. 1, 32,
39), AND DIRECT THE ENTRY OF
JUDGMENT FOR RESPONDENT

v.

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WILLIAM MUNIZ, Warden,
Respondent.

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OBJECTIONS DEADLINE:
THIRTY (30) DAYS

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FINDINGS AND RECOMMENDATIONS TO
DECLINE TO ISSUE A CERTIFICATE OF
APPEALABILITY

Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

The matter has been referred to the Magistrate Judge

pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304.
Pending before the Court are the petition and Petitioner’s motion
for an evidentiary hearing.
I.

Procedural Background

In the petition filed on April 9, 2012, Petitioner challenges
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1 his conviction of possession of a weapon by an inmate with prior
2 convictions, which he sustained in the Kings County Superior Court
3 (KCSC), on grounds of 1) ineffective assistance of counsel (IAC) at
4 both the trial and appellate levels, and 2) bias of the trial judge
5 based on the judge’s ruling on a motion to disqualify the judge.
6 (Doc. 1.)
7 15.)

Petitioner also requests an evidentiary hearing.

(Id. at

Respondent’s answer addresses the merits of the petition to

8 the extent that Petitioner fairly presented his IAC claims to the
9 state courts.

On July 31, 2012, Petitioner filed a memorandum in

10 support of his petition; the Court deemed a later application to
11 constitute a request for an extension of time to file a traverse,
12 which the Court granted.

Petitioner filed his traverse on November

13 20, 2012, and a supplement thereto less than a week later.
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In supplemental materials filed on December 9, 2013, and April

15 14, 2014, Petitioner addressed three claims: 1) error on the part of
16 the trial court in admitting, and ineffective assistance of counsel
17 for failing to seek to exclude, allegedly tainted evidence handled
18 by Officer Agostini; 2) a violation of the prosecution’s due process
19 duty to disclose evidence with respect to the testimony of Officer
20 Moreno, and related ineffective assistance of counsel in failing to
21 exclude hearsay evidence of Petitioner’s alleged admission of
22 ownership made to law enforcement officers; and 3) an abuse of
23 discretion and statutory violation under state law as well as cruel
24 and unusual punishment resulting from petitioner’s sentence, which
25 was based on prior convictions.
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(Docs. 32, 38.)

In response to Petitioner’s supplemental submissions,

27 Respondent conceded that the first and second claims do not expand
28 Petitioner’s first and second claims as stated in the petition and
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1 as addressed in Respondent’s answer.

(Doc. 34, 1-2.)

However, with

2 respect to Petitioner’s third claim or claims concerning his
3 sentence, this Court determined that Petitioner did not raise his
4 sentencing claim or claims before the California Supreme Court
5 (CSC), and thus, as to any sentencing claim, Petitioner had not
6 shown that state court remedies had been exhausted.

This Court

7 concluded that in any event, the new sentencing claim/s were
8 untimely, and thus the Court disregarded Petitioner’s supplemental
9 materials concerning an excessive sentence.

(Docs. 40, 42.)

Thus,

10 the Court considers the petition and a supplement thereto (docs. 1 &
11 19), the answer, the traverse (doc. 30 in full), and supplements to
12 the traverse (docs. 32 & 39) except insofar as they raise sentencing
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13 issues.

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II.

Jurisdiction and Order Substituting Respondent

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Because the petition was filed after April 24, 1996, the

16 effective date of the Antiterrorism and Effective Death Penalty Act
17 of 1996 (AEDPA), the AEDPA applies in this proceeding.

Lindh v.

18 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
19 1004 (9th Cir. 1999).
The challenged judgment was rendered by the KCSC, which is

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21 located within the jurisdiction of this Court.
22 2254(a), 2241(a), (d).

28 U.S.C. §§ 84(b),

Petitioner claims that in the course of the

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The Court further notes that Petitioner attempts to raise new claims in the
traverse and supplements, including being deprived of a disciplinary hearing in
prison with respect to his possession of the weapon, insufficiency of the evidence
to support his conviction in violation of the Due Process Clause based on the
unreliability of the correctional officer’s evidence, and denial of his motion to
substitute counsel with a resulting denial of Petitioner’s right to the effective
assistance of counsel. Petitioner makes no attempt formally to amend the petition
to raise these claims, and he makes no showing that he has exhausted these claims
or that they would be timely. The Court exercises its discretion to decline to
consider these claims to the extent that they are beyond the pleadings.

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1 proceedings resulting in his conviction, he suffered violations of
2 his constitutional rights.

The Court concludes it has subject

3 matter jurisdiction over the action pursuant to 28 U.S.C. §§ 2254(a)
4 and 2241(c)(3), which authorize a district court to entertain a
5 petition for a writ of habeas corpus by a person in custody pursuant
6 to the judgment of a state court only on the ground that the custody
7 is in violation of the Constitution, laws, or treaties of the United
8 States.

Williams v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v.

9 Corcoran, 562 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam).
An answer was filed on behalf of Respondent Warden Anthony

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11 Hedgepeth who had custody of Petitioner at Salinas Valley State
12 Prison (SVSP), his institution of confinement.

(Doc. 17.)

13 Petitioner thus named as Respondent a person who had custody of
14 Petitioner within the meaning of 28 U.S.C. § 2242 and Rule 2(a) of
15 the Rules Governing Section 2254 Cases in the District Courts
16 (Habeas Rules).

See Stanley v. California Supreme Court, 21 F.3d

17 359, 360 (9th Cir. 1994).
Accordingly, the Court concludes that it has jurisdiction over

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19 the person of the Respondent.

However, in view of the fact that the

20 warden at SVSP is now William Muniz, it is ORDERED that Warden
21 William Muniz be SUBSTITUTED as Respondent pursuant to Fed. R. Civ.
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22 P. 25.

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Fed. R. Civ. P. 25(d) provides that when a public officer who is a party to a
civil action in an official capacity dies, resigns, or otherwise ceases to hold
office while the action is pending, the officer’s successor is automatically
substituted as a party. It further provides that the Court may order substitution
at any time, but the absence of such an order does not affect the substitution.
The Court takes judicial notice of the identity of the warden from the official
website of the California Department of Corrections and Rehabilitation (CDCR),
http://www.cdcr.ca.gov. The Court may take judicial notice of facts that are
capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned, including undisputed information posted on

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III.

Factual Background

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In a habeas proceeding brought by a person in custody pursuant

3 to a judgment of a state court, a determination of a factual issue
4 made by a state court shall be presumed to be correct; the
5 petitioner has the burden of producing clear and convincing evidence
6 to rebut the presumption of correctness.

28 U.S.C. § 2254(e)(1);

7 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).

This

8 presumption applies to a statement of facts drawn from a state
9 appellate court’s decision.
10 (9th Cir. 2009).

Moses v. Payne, 555 F.3d 742, 746 n.1

The following statement of facts is taken from the

11 opinion of the Court of Appeal of the State of California, Fifth
12 Appellate District (CCA) in People v. Hickkman, case number F059091,
13 filed on December 9, 2010.
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Facts

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At approximately 1:00 p.m., on September 14, 2008
(September 14), Correctional Officer Cecilia Agostini, who
was employed at Corcoran State Prison (CSP), was informed
that appellant, an inmate at CSP, was going to be placed
in administrative segregation (AS).FN4 The AS placement
had been ordered based on a complaint Officer Agostini had
made earlier that day that appellant had been “over
familiar[ ]” with her. She made this complaint “right
after [appellant] gave [her] a letter.” He had never given
her a letter before and she had not had any “problem” or
“issues” with appellant prior to September 14.

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FN4. Except as otherwise indicated, our factual
statement is taken from Officer Agostini's
testimony.

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26 official websites.
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Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d
331, 333 (9th Cir. 1993); Daniels-Hall v. National Education Association, 629 F.3d
992, 999 (9th Cir. 2010).

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Officer Agostini was instructed to conduct an inventory of
appellant's property. She went to the cell appellant
shared with his cellmate, Ronald Davis; appellant was
removed from the cell; and Officer Agostini directed Davis
to place appellant's personal property in “state bags.”
Davis did so, at which point Officer Agostini took
appellant's property to the dining area where she
inventoried the items.
Among appellant's property was a television set. It had
appellant's name and “CDC number” engraved on it, and it
appeared to have been tampered with. Specifically, it “had
some missing screws.” Officer Agostini “opened up the
television” and inside found a metal screw, approximately
four and one-half inches long, that had been sharpened to
a point and “attached to a plastic melted brown state
cup.” The officer identified the object as an “inmatemanufactured weapon.”
Correctional Sergeant Robert Moreno testified to the
following: He was on duty at CSP when, at some time after
1:00 p.m. on September 14, he went to the “holding cell
area.” Appellant and Davis were in separate holding cells.
Sergeant Moreno told them they were going to be placed in
AS. In response to a question from Davis, the sergeant
told Davis he was being taken to AS “[f]or possession of
an inmate-manufactured weapon.” At that point, appellant
“stated that the weapon that was found in the TV belonged
to him.” Appellant stated further that he had the
television when he had been confined in another
institution, and the weapon had been inside the television
since he had transferred from that institution.
Ronald Davis testified to the following: While he was in a
holding cell, Sergeant Moreno informed him that he was
going to be “moved” because “they found a knife in a
television.” Appellant and another officer were also
“present” at the time. Davis heard a “conversation[ ]
between [appellant] and Sergeant Moreno,” and at no time
did appellant admit that the weapon was his.

25 People v. Hickkman, no. F059091, 2010 WL 4996611, at *1-*2 (Dec. 9,
26 2010).
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IV.

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Title 28 U.S.C. § 2254 provides in pertinent part:

Standard of Decision and Scope of Review

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

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(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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Clearly established federal law refers to the holdings, as

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12 opposed to the dicta, of the decisions of the Supreme Court as of
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the time of the relevant state court decision.

Cullen v.

Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.

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Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,

17 412 (2000).

A state court’s decision contravenes clearly

18 established Supreme Court precedent if it reaches a legal conclusion
19 opposite to, or substantially different from, the Supreme Court's or
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concludes differently on a materially indistinguishable set of

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facts.

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

A state court unreasonably applies clearly established federal

24 law if it either 1) correctly identifies the governing rule but then
25 applies it to a new set of facts in an objectively unreasonable
26 manner, or 2) extends or fails to extend a clearly established legal
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principle to a new context in an objectively unreasonable manner.
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1 Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002); see,
2 Williams, 529 U.S. at 407.
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An application of clearly established

federal law is unreasonable only if it is objectively unreasonable;
an incorrect or inaccurate application is not necessarily
unreasonable.

Williams, 529 U.S. at 410.

A state court’s

7 determination that a claim lacks merit precludes federal habeas
8 relief as long as fairminded jurists could disagree on the
9 correctness of the state court’s decision.
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562 U.S. -, 131 S.Ct. 770, 786 (2011).

Harrington v. Richter,

Even a strong case for

relief does not render the state court’s conclusions unreasonable.
Id.

To obtain federal habeas relief, a state prisoner must show

14 that the state court’s ruling on a claim was “so lacking in
15 justification that there was an error well understood and
16 comprehended in existing law beyond any possibility for fairminded
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disagreement.” Id. at 786-87.
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The standards set by § 2254(d) are “highly deferential
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20 standard[s] for evaluating state-court rulings” which require that
21 state court decisions be given the benefit of the doubt, and the
22 Petitioner bear the burden of proof.
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S.Ct. at 1398.

Cullen v. Pinholster, 131

Habeas relief is also not appropriate unless each

ground supporting the state court decision is examined and found to
be unreasonable under the AEDPA.

Wetzel v. Lambert, -–U.S.--, 132

27 S.Ct. 1195, 1199 (2012).
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In assessing under section 2254(d)(1) whether the state court’s

2 legal conclusion was contrary to or an unreasonable application of
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federal law, “review... is limited to the record that was before the
state court that adjudicated the claim on the merits.”
Pinholster, 131 S.Ct. at 1398.

Cullen v.

Evidence introduced in federal court

7 has no bearing on review pursuant to § 2254(d)(1).

Id. at 1400.

8 Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding
9 brought by a person in custody pursuant to a judgment of a state
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court, a determination of a factual issue made by a state court
shall be presumed to be correct; the petitioner has the burden of
producing clear and convincing evidence to rebut the presumption of

14 correctness.

A state court decision on the merits based on a

15 factual determination will not be overturned on factual grounds
16 unless it was objectively unreasonable in light of the evidence
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presented in the state proceedings. Miller-El v. Cockrell, 537 U.S.
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322, 340 (2003).
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With respect to each claim raised by a petitioner, the last
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21 reasoned decision must be identified to analyze the state court
22 decision pursuant to 28 U.S.C. § 2254(d)(1). Barker v. Fleming, 423
23 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107,
24 1112-13 (9th Cir. 2003). Pursuant to § 2254(d)(2), a habeas
25 petition may be granted only if the state court’s conclusion was
26 based on an unreasonable determination of the facts in light of the
27 evidence presented in the state court proceeding. Taylor v. Maddox,
28 366 F.3d 992, 999-1001 (9th Cir. 2004). A federal habeas court must
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1 find that the trial court’s factual determination was such that a
2 reasonable fact finder could not have made the finding; that
3 reasonable minds might disagree with the determination or have a
4 basis to question the finding is not sufficient.

Rice v. Collins,

5 546 U.S. 333, 340-42 (2006).
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The deferential standard of § 2254(d) applies only to claims

7 the state court resolved on the merits; de novo review applies to
8 claims that have not been adjudicated on the merits.

Lambert v.

9 Blodgett, 393 F.3d 943, 965 (9th Cir. 2004); Lewis v. Mayle, 391
10 F.3d 989, 996 (9th Cir. 2004).
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V.

Ineffective Assistance of Counsel

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Petitioner alleges his right to the effective assistance of

13 counsel protected by the Sixth and Fourteenth Amendments was
14 violated by various omissions of his trial counsel and by his
15 appellate counsel’s failures to raise the same issues.
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A.

Legal Standards

The law governing claims concerning ineffective assistance of

18 counsel is clearly established for the purposes of the AEDPA
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deference standard set forth in 28 U.S.C. § 2254(d).

Premo v.

Moore, - U.S. -, 131 S.Ct. 733, 737-38 (2011); Canales v. Roe, 151
F.3d 1226, 1229 n.2 (9th Cir. 1998).
To demonstrate ineffective assistance of counsel in violation

24 of the Sixth and Fourteenth Amendments, a convicted defendant must
25 show that 1) counsel’s representation fell below an objective
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standard of reasonableness under prevailing professional norms in
light of all the circumstances of the particular case; and 2) unless
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1 prejudice is presumed, it is reasonably probable that, but for
2 counsel’s errors, the result of the proceeding would have been
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different.

Strickland v. Washington, 466 U.S. 668, 687-94 (1984);

Lowry v. Lewis, 21 F.3d 344, 346 (9th Cir. 1994).
With respect to this Court’s review of a state court’s decision

7 concerning a claim of ineffective assistance of counsel, the Supreme
8 Court has set forth the standard of decision as follows:
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To establish ineffective assistance of counsel “a
defendant must show both deficient performance by counsel
and prejudice.” Knowles v. Mirzayance, 556 U.S. ––,––,129
S.Ct. 1411, 1419, 173 L.Ed.2d 251 (2009). In addressing
this standard and its relationship to AEDPA, the Court
today in Richter, –– U.S., at –– – ––, 131 S.Ct. 770,
gives the following explanation:
“To establish deficient performance, a person
challenging a conviction must show that
‘counsel's representation fell below an
objective standard of reasonableness.’
[Strickland,] 466 U.S., at 688 [104 S.Ct. 2052].
A court considering a claim of ineffective
assistance must apply a ‘strong presumption’
that counsel's representation was within the
‘wide range’ of reasonable professional
assistance. Id., at 689 [104 S.Ct. 2052]. The
challenger's burden is to show ‘that counsel
made errors so serious that counsel was not
functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment.’ Id., at 687
[104 S.Ct. 2052].
“With respect to prejudice, a challenger must
demonstrate ‘a reasonable probability that, but
for counsel's unprofessional errors, the result
of the proceeding would have been different.’
...
“ ‘Surmounting Strickland’s high bar is never an
easy task.’ Padilla v. Kentucky, 559 U.S. ––, ––
[130 S.Ct. 1473, 1485, 176 L.Ed.2d 284] (2010).
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An ineffective-assistance claim can function as
a way to escape rules of waiver and forfeiture
and raise issues not presented at trial [or in
pretrial proceedings], and so the Strickland
standard must be applied with scrupulous care,
lest ‘intrusive post-trial inquiry’ threaten the
integrity of the very adversary process the
right to counsel is meant to serve. Strickland,
466 U.S., at 689–690 [104 S.Ct. 2052]. Even
under de novo review, the standard for judging
counsel's representation is a most deferential
one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew
of materials outside the record, and interacted
with the client, with opposing counsel, and with
the judge. It is ‘all too tempting’ to ‘secondguess counsel's assistance after conviction or
adverse sentence.’ Id., at 689 [104 S.Ct. 2052];
see also Bell v. Cone, 535 U.S. 685, 702, 122
S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockhart v.
Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122
L.Ed.2d 180 (1993). The question is whether an
attorney's representation amounted to
incompetence under ‘prevailing professional
norms,’ not whether it deviated from best
practices or most common custom. Strickland, 466
U.S., at 690, 104 S.Ct. 2052.
“Establishing that a state court's application
of Strickland was unreasonable under § 2254(d)
is all the more difficult. The standards created
by Strickland and § 2254(d) are both ‘highly
deferential,’ id., at 689 [104 S.Ct. 2052];
Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117
S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the
two apply in tandem, review is ‘doubly’ so,
Knowles, 556 U.S., at ––––, 129 S.Ct., at 1420.
The Strickland standard is a general one, so the
range of reasonable applications is substantial.
556 U.S., at –––– [129 S.Ct., at 1420]. Federal
habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's
actions were reasonable. The question is whether
there is any reasonable argument that counsel
satisfied Strickland's deferential standard.”
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Premo v. Moore, 131 S.Ct. at 739-40 (quoting Harrington v. Richter,
131 S.Ct. 770 (2011)).
B.

Failure to Move to Dismiss the Charge and Present
a Viable Defense

Petitioner contends his right to the effective assistance of
counsel was violated in two respects by his trial counsel in
connection with the television set.

Petitioner alleges that counsel

unreasonably failed to move to dismiss the charge of possession of a
weapon on the ground that the television set in which the weapon was
found was issued to Petitioner by the CDCR and was of a type that
regulations prohibited prisoners from possessing.

Further, counsel

presented a defense that the television was not Petitioner’s even
though a receipt signed by Petitioner documented Petitioner’s
receipt of the television set.

(Pet., doc. 1, 5-7.)

Respondent

contends that Petitioner failed to exhaust this claim in the state
courts, and thus this Court may dismiss the claim.
Generally a habeas petitioner will not be afforded relief in
the courts unless he has exhausted available state judicial and
administrative remedies.
(1973).

Preiser v. Rodriguez, 411 U.S. 475, 494-95

However, a court may reach the merits of a claim even in

the absence of exhaustion where it is clear that the claim is not
colorable.

28 U.S.C. § 2254(b)(2) (an application for a writ of

habeas corpus may be denied on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the state); Granberry v. Greer, 481 U.S. 129, 134-35
(1987); Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).

In

accordance with these authorities, Respondent alternatively contends
that Petitioner’s new IAC claims are groundless even under de novo
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1 review.

In the interest of a complete disposition of the case, the

2 Court will consider this claim and a related claim concerning
3 failure to move to exclude Officer Moreno’s report.
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Petitioner contends he was given the television set after his

5 original set was destroyed.

The CDCR gave him a television set that

6 was black and thus violated its own regulations.

The regulation

7 cited provides that inmates who are ordering new or replacement
8 televisions are to obtain “clear-case appliances, as they become
9 available.”

(Pet., doc. 1, 17.)

It is unclear whether this

10 regulation was in effect on September 14, 2008, the date of the
11 incident.

Officer Agostini testified at trial that at the time

12 Petitioner possessed the black television, inmates were allowed to
13 possess black televisions; however, inmates were later prohibited
14 from possessing sets that were all black.

(LD 2, 49.)

However,

15 even if it the rule prohibiting black sets had been in effect at the
16 time of the offense, the rule does not require either complete or
17 immediate compliance, but rather depends upon availability, a matter
18 not reflected in the record.
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Further, Petitioner has not shown how the nature of the

20 television set would have provided a legal basis for dismissal of
21 the charge of possession of a weapon.

Thus, Petitioner cannot show

22 that the motion would have been granted by the trial court or that
23 the outcome of his trial would have been more favorable had defense
24 counsel filed the motion.

Petitioner has not shown that counsel’s

25 failure to move for dismissal was either unreasonable or
26 prejudicial.
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Cf. James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994).

In sum, Petitioner has failed to show that defense counsel was

28 ineffective for filing a motion to dismiss on the basis of the
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1 nature of the television or its source.

Petitioner has not met the

2 showing required by the Strickland standard.

Accordingly, it will

3 be recommended that the Court deny Petitioner’s claim concerning
4 counsel’s failure to move to dismiss the charges because Petitioner
5 had a black television set.
6

Respondent does not address Petitioner’s subclaim that defense

7 counsel failed to present a viable defense concerning Petitioner’s
8 ownership or possession of the weapon or television set.

The record

9 reflects that defense counsel conducted vigorous cross-examination
10 of all prosecution witnesses; counsel focused on anomalies and
11 inconsistencies in the prison records, the procedures followed in
12 inventorying the cell and creating the photographic record of the
13 discovery of the weapon, and the bases for bias on the part of
14 Davis, Agostini, and other law enforcement witnesses.

Defense

15 counsel called Davis to the stand to contradict the correctional
16 officers’ testimony that Petitioner admitted possessing both the
17 television and the weapon.
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Counsel’s closing argument stressed the unreliability of

19 admissions that were not contemporaneously recorded.

Counsel

20 outlined the significant benefit Davis would have reaped by 1)
21 selecting the television set containing the concealed weapon during
22 the inventory and falsely asserting that it was Petitioner’s, and 2)
23 asserting falsely in disciplinary proceedings that Petitioner had
24 acknowledged that the weapon was his.

Counsel also emphasized

25 Davis’s poor credibility in light of his prior conviction of first
26 degree murder.

The defense challenged the reliability of not only

27 the prison records of Petitioner’s possession of the television set,
28 but also the procedures used to inventory the cell, segregate the
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1 evidence, create photographic evidence of the weapon in the
2 television set, and document the inmates’ admissions.

He emphasized

3 the absence of any direct evidence that Petitioner either knew of
4 the presence of, or knowingly possessed, the weapon.

He emphasized

5 that Agostini’s report of overfamiliarity reflected that Agostini
6 was biased against Petitioner.

Further, because Petitioner had

7 written Agostini a letter, he would have known that he was subject
8 to a charge of overfamiliarity and thus was vulnerable to a property
9 inventory.

It was therefore unreasonable to think that Petitioner

10 would have risked discovery of a weapon in a television set bearing
11 indicia of his ownership or possession.
12

(LD 2, 2 RT 412-24.)

The record reflects that counsel mounted a strong defense, and

13 contradicts Petitioner’s assertions that counsel failed to present a
14 viable defense.

Petitioner has not shown that counsel engaged in

15 objectively unreasonable acts or omissions, or that any failings or
16 actions of counsel resulted in prejudice to Petitioner.

Thus, it

17 will be recommended that the Court deny Petitioner’s claim
18 concerning counsel’s alleged failure to mount a viable defense.
19
20

C.

Failure to Attempt to Exclude a Report and Testimony

Petitioner argues trial counsel should have moved, apparently

21 at the preliminary hearing and at trial, to exclude evidence in the
22 form of testimony from, and a report authored by, Sergeant Moreno,
23 that purported to establish that on the day of the incident,
24 Petitioner admitted he possessed the weapon in the presence of
25 Moreno and Ronald Davis, Petitioner’s former cellmate.

Petitioner

26 denies having admitted that he possessed the weapon; he asserts he
27 admitted having received the television from the CDCR.

He argues

28 that the report that he admitted possessing the weapon was based on
16

1 a misunderstanding, was uncorroborated hearsay, was untimely under
2 state law, and was not disclosed by the prosecution until March
3 2009, some six months after the incident, in violation of the
4 prosecution’s Brady duty of disclosure.

Petitioner contends that

5 admission of Moreno’s evidence was prejudicial because it was the
6 last item of evidence the jury requested to see before returning its
7 verdict.
8

(Pet., doc. 1, 7-9.)

During the preliminary hearing, Sergeant Moreno testified that

9 on September 14, 2008, the day of the incident, he documented
10 Petitioner’s admission on a “128B informational chrono” on the
11 prison’s computer.

(LD 1, CT 36-37.)

Moreno testified that about

12 six months later, in March 2009, another officer asked him to write
13 a report documenting Petitioner’s admission.

(Id. at 37-38.)

At

14 the preliminary hearing held on April 16, 2009, Moreno recalled
15 Petitioner’s exact words from September 14, 2008, namely, that
16 Petitioner said, “The weapon is mine.”
17

(Id. at 39.)

At trial, Moreno testified there was no doubt in his mind that

18 Petitioner admitted to owning the weapon as well as the television.
19 (LD 2, 1 RT 104-05.)

He testified that on the day of the incident,

20 he prepared a 128B report on the computer.

That report was an

21 informational “chrono” that provided information about Petitioner’s
22 admission.

(Id. at 88-89.)

23 a 837C incident crime report.

In March 2009, Sergeant Moreno prepared
(Id. at 89-90.)

When the prosecutor

24 asked him why he prepared the incident crime report, Moreno
25 testified that defense counsel had asked for it.

(Id. at 90.)

26 Moreno did not realize he was the only officer to hear Petitioner’s
27 confession, and he was not aware that an incident report needed to
28 be prepared.

(Id. at 92-93, 100.)
17

1

Inmate Davis testified that he heard the conversation between

2 Petitioner and Moreno, but he did not hear Petitioner admit to
3 possessing the weapon; rather, he heard Petitioner admit only to
4 owning the television.
5

(LD 2, 2 RT 348-49.)

The record thus contains specific testimony regarding the

6 history of documenting Petitioner’s admission as well as Moreno’s
7 personal knowledge of the circumstances surrounding, and the
8 substance of, the statements constituting the admission.

Contrary

9 to Petitioner’s assertions, Moreno testified he made a record of the
10 admission on the day of the incident; he also recalled the incident
11 at the time of trial.

In view of all this evidence, the fact that

12 Petitioner’s cellmate did not recall hearing Petitioner admit that
13 the weapon was his does not render Moreno’s evidence unreliable or
14 warrant an attempt to exclude it.

Further, because the later report

15 was written well in advance of trial, there does not appear to be a
16 showing of prejudice from any delay.
17

In sum, it does not appear that the report of Petitioner’s

18 admission was untimely in any sense that fatally undermines the
19 reliability of the officer’s independent testimony of his
20 recollection of Petitioner’s inculpatory statement.
21 not shown a constitutional violation.

Petitioner has

With respect to the admission

22 of relevant evidence contended to be unreliable, the primary federal
23 safeguards are provided by the Sixth Amendment=s rights to counsel,
24 compulsory process to obtain defense witnesses, and confrontation
25 and cross-examination of prosecution witnesses; otherwise, admission
26 of evidence in state trials is ordinarily governed by state law.
27 Perry v. New Hampshire, - U.S. -, 132 S.Ct. 716, 723 (2012)
28 (determining that the Due Process Clause does not require a trial
18

1 judge to conduct a preliminary assessment of the reliability of
2 eyewitness identification made under suggestive circumstances not
3 arranged by the police).

The reliability of relevant testimony

4 typically falls within the province of the jury to determine.
5 at 728-29.

Id.

Absent improper police conduct or other state action, it

6 is sufficient to test the reliability of evidence through the normal
7 procedures, including the right to counsel and cross-examination,
8 protective rules of evidence, the requirement of proof of guilt
9 beyond a reasonable doubt, and jury instructions.
10

Id.

Moreno’s testimony provided an ample foundation not only for

11 admitting the reports, but also for concluding that Petitioner made
12 the admission documented in the reports.

It was therefore

13 reasonable for counsel to seek not to exclude the evidence, but
14 rather to undermine it or limit its impact, such as by extensive and
15 vigorous cross-examination of Moreno during trial concerning the
16 veracity of the officer’s testimony and report (LD 2, 1 RT 90-103,
17 105-06), and by calling Petitioner’s cellmate, Ronald Davis, to
18 testify on Petitioner’s behalf concerning his participation in the
19 collection and removal of Petitioner’s property from his cell as
20 well as his knowledge of statements made by Petitioner to Moreno (LD
21 2, 2 RT 334-51, 357-60).

Cf. Matylinsky v. Budge, 577 F.3d 1083,

22 1094 (9th. Cir. 2009) (counsel’s failure to object to a prosecution
23 witness’s testimony on hearsay grounds was not ineffective
24 assistance under Strickland where the objection would have been
25 properly overruled (citing Miller v. Keeney, 882 F.2d 1428, 1434
26 (9th Cir. 1989)).

There is also no showing Petitioner was

27 prejudiced by counsel’s failure to move to exclude Moreno’s
28 testimony and report, which were admissible.
19

Petitioner has not

1 shown how any unfairness or prejudicial effect resulted from
2 counsel’s omission.
In sum, even if evaluated under a de novo standard of review,

3

4 Petitioner’s IAC claim based on counsel’s failure to attempt to
5 exclude Moreno’s testimony or report is not meritorious.
6 Accordingly, it will be recommended that the Court deny Petitioner’s
7 claim.
D.

8
9

Petitioner’s next IAC claim relates to trial counsel’s

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Failure to Impeach Officer Agostini and to Move to
Suppress Photographic Evidence

treatment of a chief prosecution witness, Correctional Officer
Cecelia Agostini.

Petitioner alleges Agostini admitted at trial

that she staged the photographic evidence by taking the weapon out
of her pocket, replacing it in the television, and taking the
picture.

Although Agostini testified the photograph represented the

subject precisely as she had discovered it, Petitioner contends that
Agostini was unreliable because she made a false allegation of overfamiliarity against Petitioner.

Petitioner alleges that counsel

should have moved to suppress the photographic evidence.
doc. 1, 11-13.)

(Pet.,

Petitioner alleges that Agostini testified she did

not know why she did that, but she also testified that it was
standard operating procedure.

Agostini did not mention this in

institutional incident reports or in testimony at the preliminary
hearing.

Petitioner alleges counsel was ineffective in failing to

subpoena Agostini’s superior officers to testify that her mode of
collection of evidence was not standard operating procedure.
at 9-11.)
///
20

(Id.

1

The KCSC denied this claim and stated, “In [regard] to his

2 claim of ineffective assistance of counsel, Petitioner has failed to
3 demonstrate first, that his counsel’s performance was deficient, and
4 second, that he was prejudiced by that deficiency. (Strickland v.
5 Washington (1984) 466 U.S. 668, 687.)”

(LD 6, ord. on petn. at 2.)

6 The CCA and the CSC summarily denied this claim without any
7 statement of reasoning or citation of authority.

(LD 7-8.)

It will

8 thus be presumed that the CSC’s denial of the claim was based on the
9 same reasons given by the KCSC.
10

Although the view of the location of the weapon was

11 reconstructed, the photographs were authenticated as reconstructed
12 images representing the facts as observed by Agostini at the time
13 she discovered the weapon during her inventory of Petitioner’s
14 property.

(LD 2, 1 RT 29-30, 56-58, 76.)

Thus, it appears that the

15 evidence was not irrelevant or entirely without demonstrative value.
16 Although Petitioner asserts that Officer Agostini was unreliable
17 because she made a false assertion of over-familiarity, Petitioner
18 admits that the report came in reaction to Petitioner’s having given
19 Officer Agostini a letter.

The circumstances do not compel or even

20 suggest a conclusion that Agostini was biased or interested in a way
21 that would destroy the probative value of her report or testimony.
22 There is also no clearly established federal law extending to a
23 prisoner Fourth Amendment protection from a cell search.

See Hudson

24 v. Palmer, 468 U.S. 517, 522-30 (1984).
25

Because no legal basis appears for excluding the evidence,

26 Petitioner has not shown that counsel’s failure to do so was
27 objectively unreasonable.

The failure to make a motion which would

28 not have been successful or was otherwise futile does not constitute
21

1 ineffective assistance of counsel.
2 (9th Cir. 1994).

James v. Borg, 24 F.3d 20, 27

Further, in light of the lack of a legal basis to

3 exclude the evidence, and considering the strong circumstantial
4 evidence from multiple reliable sources that supported a conclusion
5 that Petitioner possessed the weapon, there was no prejudice.
6 v. Borg, 24 F.3d at 27.

James

Accordingly, it will be recommended that

7 Petitioner’s claim concerning a failure to seek to exclude the
8 photographic evidence be denied.
9

In sum, Petitioner has failed to show that counsel performed in

10 an objectively unreasonable manner, that his conduct undermined
11 confidence in the outcome of the proceeding, or that his conduct
12 caused prejudice to Petitioner.

It will therefore be recommended

13 that Petitioner’s IAC claims against his trial counsel be denied.
E.

14
15

Ineffective Assistance of Appellate Counsel

Petitioner alleges his right to the effective assistance of

16 counsel guaranteed by the Sixth and Fourteenth Amendments was
17 violated by appellate counsel’s failure to raise the foregoing
18 issues on appeal.

(Pet., doc. 1, 13.)

Because there was no merit

19 to Petitioner’s claims that trial counsel was ineffective, there is
20 no basis for a claim that appellate counsel was ineffective in
21 failing to raise the foregoing issues.
22

Accordingly, it will be recommended that Petitioner’s claim of

23 ineffective assistance of appellate counsel be denied.
24

VI.

Denial of the Right to Impartial Tribunal

25

Petitioner alleges he suffered a denial of his right to an

26 impartial tribunal when Petitioner challenged the trial judge and
27 moved to disqualify him from presiding over Petitioner’s motions,
28 for a new trial, and for discharge and substitution of appointed
22

1 counsel (“Marsden motion”).

Petitioner alleges the trial judge was

2 biased because he had ruled against Petitioner during the trial by
3 providing counsel to Ronald Davis before Davis testified and by
4 failing to exclude evidence from Agostini; further, the judge
5 improperly determined the recusal motion himself.

(Pet., doc. 1 at

6 4, 14-15.)
A.

7
8

The State Court’s Decision

The KCSC rendered the last reasoned decision on this issue as

9 follows:
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Petitioner, MICHAEL D. HICKMAN (Petitioner) filed a
petition for writ of habeas corpus on March 21, 2011
(petition). Petitioner complains that in connection with
Kings County Superior Court Case No. 09CM7019, Timothy
Buckley, Judge Retired, conducted the hearing involving
Petitioner’s disqualification motion of the same judicial
officer. [. . . .]
Petitioner appealed from his conviction in Case No.
09CM7019. An Opinion as (sic) filed on December 9, 2010
and a remittitur issued. The judgment was affirmed. The
sole issued (sic) addressed on appeal was the trial
court’s denial of Petitioner’s Marsden Motion.
It appears from the record that on or about October 26,
2009, Petitioner forwarded to the court a Motion for Trial
Court to Set Aside Guilty Verdict and Request for Hearing.
Along with the Motion, Petitioner included a Motion for
Disqualification for Cause of Judge Buckley. The Motion
for Disqualification was not filed by the clerk as the
Motion was presented by Petitioner in pro per, at time
during which he was represented by counsel. (See, October
15, 2009 Correspondence.) On October 27, 2009, Judge
Buckley caused the Motion for Trial Court to Set Aside
Guilty Verdict to be filed and the hearing on the same,
along with a Marsden Motion, continued to November 6,
2009. On November 6, 2009 Petitioner’s Marsden Motion and
Motion for Trial Court to Set Aside Guilty Verdict was
denied. It does not appear that the Motion for
Disqualification was reasserted by defense counsel prior
to the trial court’s ruling on the Motion for Trial Court
to Set Aside Guilty Plea.
23

1
2
3
4
5
6
7

IT IS HEREBY ORDERED, the petition is denied. (People v.
Duvall (1995) 9 Cal.4th 464, 474.) The Motion for
Disqualification (made after the completion of a trial
over which Judge Buckley presided) was untimely. (Cal.
Code of Civ. Proc. § 170.6(a)(2).) The Motion was never
actually filed nor orally asserted by defense counsel
during the pendency of the case. Petitioner also did not
pursue the issue on appeal and a writ of habeas corpus
cannot serve as a substitute for an appeal. (In re Clark
(1959) 51 Cal.2d 838, 840.)

8 (LD 6, at 1-2.)
9

The California Court of Appeal and California Supreme Court

10 denied this claim without comment. (Lod. Docs. 7 & 8.) Check cites
11
12

B.

Analysis

A fair trial in a fair tribunal is a basic requirement of due

13 process.

In re Murchison, 349 U.S. 133, 136 (1955); see Arizona v.

14 Fulminante, 499 U.S. 279, 309-10 (1991).

Fairness requires an

15 absence of actual bias and of the probability of unfairness.
16 Murchison, 349 U.S. at 136.

In re

Bias may be actual, or it may consist

17 of the appearance of partiality in the absence of actual bias.
18 Stivers v. Pierce, 71 F.3d 732, 741 (9th Cir. 1995).

A showing that

19 the adjudicator has prejudged, or reasonably appears to have
20 prejudged, an issue, is sufficient.

Kenneally v. Lungren, 967 F.2d

21 329, 333 (9th Cir. 1992).
22

However, there is a presumption of honesty and integrity on the

23 part of decision makers.
24 (1975).

Withrow v. Larkin, 421 U.S. 35, 46-47

Opinions formed by a judge on the basis of facts introduced

25 or events occurring in the course of the current proceedings do not
26 constitute a basis for a bias or partiality motion unless they
27 display a deep-seated favoritism or antagonism that would make fair
28 judgment impossible.

Liteky v. United States, 510 U.S. 540, 555
24

1 (1994).

Thus, stern and even short-tempered efforts at courtroom

2 administration, and judicial remarks during the course of a trial
3 that are critical, disapproving, or even hostile to counsel, the
4 parties, or their cases, ordinarily do not support a bias or
5 partiality challenge.

Id. at 555-56.

Likewise, Aexpressions of

6 impatience, dissatisfaction, annoyance, and even anger, that are
7 within the bounds of what imperfect men and women... sometimes
8 display@ do not establish bias.
9

Id.

Here, the state court denied Petitioner’s due process claim

10 based on state law concerning the timeliness of motions and the
11 legal effect of a motion brought pro se by a defendant while he is
12 represented by counsel.

However, federal habeas relief is available

13 to state prisoners only to correct violations of the United States
14 Constitution, federal laws, or treaties of the United States.
15 U.S.C. ' 2254(a).

28

Federal habeas relief is not available to retry a

16 state issue that does not rise to the level of a federal
17 constitutional violation.

Wilson v. Corcoran, 131 S.Ct. at 16;

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

Alleged errors in

19 the application of state law are not cognizable in federal habeas
20 corpus.

Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).

21 Court accepts a state court's interpretation of state law.
22 v. Day, 110 F.3d 1180, 1389 (9th Cir. 1996).

The

Langford

In a habeas corpus

23 proceeding, this Court is bound by the California Supreme Court=s
24 interpretation of California law unless it is determined that the
25 interpretation is untenable or a veiled attempt to avoid review of
26 federal questions.

Murtishaw v. Woodford, 255 F.3d 926, 964 (9th

27 Cir. 2001).
28
25

Here, the record reflects regular proceedings.

1

There is no

2 indication that the state court’s interpretation of state law was
3 associated with an attempt to avoid review of federal questions.
4 Thus, this Court is bound by the state court’s interpretation and
5 application of state law.
To establish that the judge was biased, Petitioner relies on

6

7 the judge’s rulings against Petitioner in the course of the case and
8 the judge’s extending procedural protections, such as the assistance
9 of counsel, to a witness.
10 and do not reflect bias.

Here, the judge’s rulings were routine
Similarly, advising Davis of his rights,

11 including the privilege against self-incrimination and entitlement
12 to the appointment of counsel in connection with testifying, did not
13 reflect bias.

Testifying arguably exposed Davis to a risk of

14 prosecution for perjury as well as possession of the weapon.

In

15 such circumstances, the state court was required to proceed as it
3
16 did.

These routine events in the course of trial proceedings do not

17 suffice to overcome the presumption of propriety.

Whether the claim

18 is judged under the deferential standard of § 2254(d) or under the
19 more demanding standard of de novo review, Petitioner has not shown
20 a violation of his right to a fair and impartial tribunal.

Cf.

21 Knowles v. Mirzayance, 556 U.S. 111, 123-24 (2009).
22
23
24
3

25
26
27
28

California Rules of Court, Rule 5.548 provides as follows:
If a person is called as a witness and it appears to the court that the
testimony or other evidence being sought may tend to incriminate the
witness, the court must advise the witness of the privilege against selfincrimination and of the possible consequences of testifying. The court
must also inform the witness of the right to representation by counsel and,
if indigent, of the right to have counsel appointed.

26

1

Accordingly, it will be recommended that Petitioner’s claim

2 concerning the trial judge’s consideration and denial of the motion
3 for recusal be denied.
4

VII.

Request for an Evidentiary Hearing

5

Petitioner requests an evidentiary hearing with respect to his

6 claims.
7

The decision to grant an evidentiary hearing is generally a

8 matter left to the sound discretion of the district courts.

28

9 U.S.C. ' 2254; Habeas Rule 8(a); Schriro v. Landrigan, 550 U.S. 465,
10 473 (2007).

To obtain an evidentiary hearing in federal court under

11 the AEDPA, a petitioner must allege a colorable claim by alleging
12 disputed facts which, if proved, would entitle him to relief.
13 Schriro v. Landrigan, 550 U.S. at 474.
14

An evidentiary hearing is not required where the state court

15 record resolves the issues, refutes the application=s factual
16 allegations, or otherwise precludes habeas relief.
17 Landrigan, 550 U.S. at 474.

No evidentiary hearing is required for

18 claims based on conclusory allegations.
19 662, 679 (9th Cir. 1994).

Schriro v.

Campbell v. Wood, 18 F.3d

Likewise, an evidentiary hearing is not

20 required if the claim presents a purely legal question, there are no
21 disputed facts, or the state court has reliably found the relevant
22 facts.

Beardslee v. Woodford, 358 F.3d 560, 585-86 (9th Cir. 2004);

23 Hendricks v. Vasquez, 974 F.2d 1099, 1103 (9th Cir. 1992).
24

Here, Petitioner has not alleged a colorable claim or claims by

25 alleging disputed facts which, if proved, would entitle him to
26 relief.

As previously set forth, the state court record resolves

27 the issues, refutes the application=s factual allegations, and
28
27

1 otherwise precludes habeas relief.

See Schriro v. Landrigan, 550

2 U.S. at 474.
3

Accordingly, it will be recommended that the Court deny

4 Petitioner’s request for an evidentiary hearing.
5

VIII.

Certificate of Appealability

6

Unless a circuit justice or judge issues a certificate of

7 appealability, an appeal may not be taken to the Court of Appeals
8 from the final order in a habeas proceeding in which the detention
9 complained of arises out of process issued by a state court.

28

10 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
11 (2003).

A district court must issue or deny a certificate of

12 appealability when it enters a final order adverse to the applicant.
13 Habeas Rule 11(a).
14

A certificate of appealability may issue only if the applicant

15 makes a substantial showing of the denial of a constitutional right.
16 ' 2253(c)(2).

Under this standard, a petitioner must show that

17 reasonable jurists could debate whether the petition should have
18 been resolved in a different manner or that the issues presented
19 were adequate to deserve encouragement to proceed further.

Miller-

20 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
21 473, 484 (2000)).

A certificate should issue if the Petitioner

22 shows that jurists of reason would find it debatable whether: (1)
23 the petition states a valid claim of the denial of a constitutional
24 right, and (2) the district court was correct in any procedural
25 ruling.
26

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

In determining this issue, a court conducts an overview of the

27 claims in the habeas petition, generally assesses their merits, and
28 determines whether the resolution was debatable among jurists of
28

1 reason or wrong.

Id.

An applicant must show more than an absence

2 of frivolity or the existence of mere good faith; however, the
3 applicant need not show that the appeal will succeed.

Miller-El v.

4 Cockrell, 537 U.S. at 338.
5

Here, it does not appear that reasonable jurists could debate

6 whether the petition should have been resolved in a different
7 manner.

Petitioner has not made a substantial showing of the denial

8 of a constitutional right.

Accordingly, it will be recommended that

9 the Court decline to issue a certificate of appealability.
10

IX.

Recommendations

11

Based on the foregoing analysis, it is RECOMMENDED that:

12

1) The petition for writ of habeas corpus be DENIED;

13

2) Petitioner’s motion for an evidentiary hearing be DENIED;

14

3) Judgment be ENTERED for Respondent; and

15

4) The Court DECLINE to issue a certificate of appealability.

16

These findings and recommendations are submitted to the United

17 States District Court Judge assigned to the case, pursuant to the
18 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local
19 Rules of Practice for the United States District Court, Eastern
20 District of California.

Within thirty (30) days after being served

21 with a copy, any party may file written objections with the Court
22 and serve a copy on all parties.

Such a document should be

23 captioned AObjections to Magistrate Judge=s Findings and
24 Recommendations.@

Replies to the objections shall be served and

25 filed within fourteen (14) days (plus three (3) days if served by
26 mail) after service of the objections.

The Court will then review

27 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C).
28
29

1 The parties are advised that failure to file objections within the
2 specified time may result in the waiver of rights on appeal.
3 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing
4 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
5
6 IT IS SO ORDERED.
7
8

Dated:

May 19, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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