Cole v. United States of America
Filing
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Order directing Clerk of Court to assign district judge. Case randomly assigned to Chief Judge Lawrence J. O'Neill. FINDINGS and RECOMMENDATIONS to dismiss 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Jennifer L. Thurston on 6/5/2018. Referred to Judge Lawrence J. O'Neill; Objections to F&R's due within 21-Days. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JAMES COLE,
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Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Case No.: 1:18-cv-00731-JLT (HC)
ORDER DIRECTING CLERK OF COURT TO
ASSIGN DISTRICT JUDGE
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS
[21-DAY OBJECTION DEADLINE]
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Petitioner is in custody of the Bureau of Prisons at the United States Penitentiary in Atwater,
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California. He filed the instant federal petition on May 24, 2018, challenging his conviction and
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seeking to vacate his sentence. Petitioner styles his pleading as a motion to reconsider or vacate
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pursuant to Federal Rules of Civil Procedure Rules 57 and 60(b)(4),(6), and as a petition for a writ
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under 28 U.S.C. § 1654, the All Writs Act. Because the Court is without jurisdiction, the Court will
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recommend that the instant petition be DISMISSED.
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BACKGROUND
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On February 24, 2010, Petitioner was convicted by jury trial in the United States District
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Court for the Northern District of Texas of: 1) conspiracy to distribute and possess with intent to
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distribute five kilograms or more of cocaine, and 100 kilograms or more of marijuana (21 U.S.C. §§
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846, 841(a)(1), (b)(1)(A)(ii), and 18 U.S.C. § 2); and 2) two counts of using and carrying a firearm to
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commit murder during and in relation to a drug trafficking crime, and aiding and abetting (18 U.S.C.
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§§ 2, 924(j)). See United States v. Cole, Case No. 5:09-CV-004-10-C.1 Petitioner appealed to the
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Fifth Circuit Court of Appeal, and the judgment was affirmed on April 28, 2011. Id. Petitioner did
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not file a motion to vacate pursuant to 28 U.S.C. § 2255, claiming he was unable to meet time
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deadlines since his requests to his attorneys for records were ignored. (Doc. 1, p. 3.)
On May 24, 2018, Petitioner filed the instant initial case pleading entitled “Petition to Vacate.”
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(Doc. 1.) He seeks reconsideration pursuant to Federal Rules of Civil Procedure, Rule 60(b)(4),(6).
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He also seeks to vacate his sentence under the All Writs Act, 28 U.S.C. § 1654.
DISCUSSION
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I.
Motion for Reconsideration
Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of a district
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court. Rule 60(b) permits a district court to relieve a party from a final order or judgment on grounds
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of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence . . .; (3)
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fraud . . . of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied . . . or (6)
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any other reason justifying relief from the operation of the judgment.” Fed. R. Civ. P. 60(b). A
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motion under Rule 60(b) must be made within a reasonable time, in any event “not more than one year
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after the judgment, order, or proceeding was entered or taken.” Id.
However, a motion for reconsideration must be made in the district court that entered the order
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or judgment challenged. In this case, that court is the United States District Court for the Northern
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District of Texas. This Court is without jurisdiction to reconsider a final order or judgment of another
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district court.
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II.
All Writs Act and Habeas Corpus
Petitioner also seeks to bring his claims under the All Writs Act, 28 U.S.C. § 1654. “[T]he All
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Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute.
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Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All
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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. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333
(9th Cir. 1993). Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1
(N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir.).
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Writs Act, that is controlling.” Carlisle v. United States, 517 U.S. 416, 429 (1996). The Supreme
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Court has instructed that this source of federal power must only be used in “extraordinary
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circumstances.” Kerr v. U.S. Dist. Court for the Northern Dist. of California, 426 U.S. 394, 403
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(1976).
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In this case, Petitioner is a federal prisoner challenging his conviction and sentence. A federal
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prisoner who wishes to challenge the validity or constitutionality of his federal conviction or sentence
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must do so by way of a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255.
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Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.1988); see also Stephens v. Herrera, 464 F.3d 895,
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897 (9th Cir.2006), cert. denied, 549 U.S. 1313 (2007). In such cases, only the sentencing court has
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jurisdiction. Tripati, 843 F.2d at 1163. Thus, in this case, it is § 2255 and not the All Writs Act that is
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controlling.
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The § 2255 motion, however, is not a petition for writ of habeas corpus, United States v.
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Hayman, 342 U.S. 205, 220 (1952), and federal prisoners are generally precluded from challenging
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their convictions and sentences by way of habeas corpus, 28 U.S.C. § 2255(e). The Supreme Court
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has explained that § 2255 “replaced traditional habeas corpus for federal prisoners (at least in the first
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instance) with a process that allowed the prisoner to file a motion with the sentencing court on the
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ground that his sentence was, inter alia, ‘imposed in violation of the Constitution or laws of the United
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States.’” Boumediene v. Cush, 553 U.S. 723, 774-75 (2008) (citing Hayman, 342 U.S. at 207 n.1).
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Section 2255 “directed claims not to the court that had territorial jurisdiction over the place of the
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petitioner’s confinement but to the sentencing court, a court already familiar with the facts of the
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case.” Id. at 775. Accordingly, in this case Petitioner’s avenue for relief lies with a § 2255 motion in
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the United States District Court for the Northern District of Texas.
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Nevertheless, an exception exists by which a federal prisoner may seek relief under § 2241 if
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he can demonstrate the remedy available under § 2255 to be "inadequate or ineffective to test the
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validity of his detention." United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997) (quoting 28 U.S.C.
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§ 2255); see Hernandez, 204 F.3d at 864-65. The Ninth Circuit has recognized that it is a very narrow
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exception. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003). The remedy under § 2255 usually
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will not be deemed inadequate or ineffective merely because a prior § 2255 motion was denied, or
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because a remedy under that section is procedurally barred. See Aronson v. May, 85 S.Ct. 3, 5 (1964)
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(a court’s denial of a prior § 2255 motion is insufficient to render § 2255 inadequate.); Tripati, 843
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F.2d at 1162-63 (a petitioner's fears of bias or unequal treatment do not render a § 2255 petition
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inadequate).
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The Ninth Circuit has held that Section 2255 provides an ‘inadequate and ineffective’ remedy
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(and thus that the petitioner may proceed under Section 2241) when the petitioner: (1) makes a claim
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of actual innocence; and, (2) has never had an ‘unobstructed procedural shot’ at presenting the claim.
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Stephens, 464 F.3d at 898. The burden is on the petitioner to show that the remedy is inadequate or
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ineffective. Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).
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In this case, Petitioner is challenging the validity and constitutionality of his conviction and
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sentence as imposed by the United States District Court for the Northern District of Texas, rather than
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an error in the administration of his sentence. Therefore, as noted above, the appropriate procedure
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would be to file a motion pursuant to § 2255 in the Northern District of Texas, not a habeas petition
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pursuant to § 2241 in this Court. Petitioner argues the remedy under § 2255 is unavailable because he
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failed to meet the time deadlines for filing said motion. Petitioner’s argument is unavailing, because
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he has not demonstrated that he has not had an unobstructed procedural opportunity to present his
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claim, and he does not present a claim of actual innocence.
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First, as previously discussed, the fact that a remedy under § 2255 may be procedurally barred
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does not render the remedy inadequate or ineffective. Aronson, 85 S.Ct. at 5. Petitioner makes no
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showing that his effort to file a § 2255 motion was obstructed. Rather, it appears he chose not to file a
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motion because he was not in possession of certain records. This argument is meritless because
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movants are not entitled to copies of transcripts prior to filing a § 2255 motion. United States v.
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Horvath, 157 F.3d 131 (2d Cir. 1998); Walker v. United States, 424 F.2d 278 (5th Cir. 1970).
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Moreover, the foundation for his claim, i.e., that the affidavit attached to the complaint contained the
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wrong date and address for the crimes, was known or should have been known to Petitioner at the time
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of trial. Thus, Petitioner has not shown that he was precluded from presenting his claims in a timely §
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2255 motion, and therefore, he has failed to demonstrate that he has not had an unobstructed
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procedural opportunity to present his claims.
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In addition, Petitioner has failed to demonstrate that his claims qualify under the savings clause
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of Section 2255 because his claims are not proper claims of “actual innocence.” In the Ninth Circuit, a
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claim of actual innocence for purposes of the Section 2255 savings clause is tested by the standard
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articulated by the United States Supreme Court in Bousley v. United States, 523 U.S. 614 (1998).
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Stephens, 464 U.S. at 898. In Bousley, the Supreme Court explained that, “[t]o establish actual
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innocence, petitioner must demonstrate that, in light of all the evidence, it is more likely than not that
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no reasonable juror would have convicted him.” Bousley, 523 U.S. at 623 (internal quotation marks
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omitted). Petitioner bears the burden of proof on this issue by a preponderance of the evidence, and he
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must show not just that the evidence against him was weak, but that it was so weak that “no reasonable
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juror” would have convicted him. Lorentsen, 223 F.3d at 954. In this case, Petitioner makes no claim
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of being actually innocent of the crimes. Rather, he takes issue with the affidavit that was initially
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attached to the complaint. He complains that it contains an incorrect address of where the offense
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occurred, “East Street, Big Spring, Texas” versus “E. Sixteenth Street, Big Spring, Texas.” (Doc. 1 at
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pp. 6-7.) He also complains that the initial affidavit stated an incorrect date for the date of the crimes,
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to wit, “5-5-08” versus “5-4-08.” (Doc. 1 at p. 7.) Neither argument meets the standard for
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establishing actual innocence of the crime.
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Therefore, even if the Court were to construe his pleading as a § 2241 petition, he fails to
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invoke the escape hatch exception of § 2255. Richardson v. United States, 526 U.S. 813, 119 (1999).
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Accordingly, the Court concludes that Petitioner has not demonstrated that Section 2255 constitutes an
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“inadequate or ineffective” remedy for raising his claims, and Section 2241 is not the proper statute
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for raising Petitioner's claims. Whatever Petitioner styles his pleading as, be it a motion for
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reconsideration under Federal Rules of Civil Procedure Rule 60(b), a motion to vacate under Section
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2255, or a petition for writ of habeas corpus under Section 2241, this Court is without jurisdiction and
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the case should be dismissed.
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ORDER
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the Court ORDERS that the Clerk of the Court is DIRECTED to assign a United States
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District Judge to this case.
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RECOMMENDATION
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Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be
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DISMISSED for lack of jurisdiction.
This Findings and Recommendation is submitted to the United States District Court Judge
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assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California. Within
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twenty-one days after being served with a copy of this Findings and Recommendation, Petitioner may
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file written objections with the Court. Such a document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate
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Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file
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objections within the specified time may waive the right to appeal the Order of the District Court.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
June 5, 2018
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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