Cowan v. Sullivan

Filing 22

MEMORANDUM and ORDER signed by Senior Judge James K. Singleton on 6/26/2015 ORDERING that the petition for writ of habeas corpus is DENIED. The Court DECLINES to issue a Certificate of Appealability. CASE CLOSED. (Zignago, K.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
JUBA JAMIL COWAN,
No. 2:12-cv-02025-JKS
Petitioner,
MEMORANDUM DECISION
vs.
SUZANNE M. PEERY, Acting Warden,
High Desert State Prison,1
Respondent.

Juba Jamil Cowan, a state prisoner represented by counsel, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Cowan is in the custody of the
California Department of Corrections and Rehabilitation and incarcerated at High Desert State
Prison. Respondent has answered, and Cowan has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On November 24, 2008, Cowan was charged with assault with a deadly weapon and
making criminal threats. The information further alleged that Cowan had served two prior prison
terms, suffered a prior strike offense within the meaning of the Three Strikes Law, CAL. PENAL
CODE § 1170.12, and had been convicted of a prior serious felony. On direct appeal of his
conviction, the California Court of Appeal recounted the following facts underlying the charges
against Cowan:
In November 2008, [Cowan] and his girlfriend, Stacie B., were engaged in a
heated argument over finances at their house on Leland Avenue in Redding. At some
point, [Cowan] decided to abandon the argument and started to get dressed to leave the
1

Suzanne M. Peery, Acting Warden, High Desert State Prison, is substituted for
W.J. Sullivan, former Warden, California State Prison, Los Angeles County. FED. R. CIV. P.
25(c).

house. While [Cowan] was getting dressed, Stacie picked up their infant daughter and
left the house to take a walk around the neighborhood. They reached the corner of
Leland Avenue and Fell Street when it started to rain. [Cowan], now dressed and in a
green Ford Expedition, pulled up alongside Stacie, rolled down the window, and yelled at
her to either take the baby back to the house or “get the ‘F’ in the vehicle right now.”
When Stacie declined and tried to continue on her walk, [Cowan] got out of the
Expedition and the two yelled at each other on the sidewalk.
The commotion drew the attention of several neighbors, including Janice Pearson,
who lived on Fell Street, one house away from the intersection where the argument was
taking place. Pearson grabbed her phone and walked to the end of her driveway to
investigate. She became worried when she saw that the woman involved in the argument
was carrying a baby, and dialed 911.
While Pearson was on the phone with emergency services, [Cowan] returned to
the Expedition and noticed Pearson on the phone. [Cowan] then yelled to Pearson: “You
nosy, F-ing bitch neighbor, I’ll run your F-ing ass over.” [Cowan] got in the Expedition,
which was facing away from Pearson’s house, made a sweeping turn in the middle of the
intersection, and drove the vehicle at a speed of 10 to 15 miles per hour directly at
Pearson. Pearson ran into her house. As she ran, she looked behind her and saw
[Cowan’s] Expedition drive over the curb in front of her house, across a grassy median
separating the curb from the sidewalk, and across the driveway where she had previously
been standing.
Stopping in front of Pearson’s house, [Cowan] yelled profanities at her, again
called her “an F-ing nosy bitch,” and told her that “if he wanted to run [her] over, he
could drive his vehicle right through [her] house.” Still on the phone with emergency
services, Pearson informed the operator that [Cowan] had just tried to run her over. She
then provided the Expedition’s license plate number and reported that [Cowan] was also
threatening her. [Cowan] drove away, only to return a few minutes later to hurl further
profanities in her direction. Pearson told him her “only concern was the child,” to which
[Cowan] responded, “That’s my F-ing child, you F-ing bitch.” [Cowan] again departed.
When police arrived in the neighborhood, they immediately came upon
[Cowan’s] Expedition and followed it to his house. When [Cowan] got out of the
vehicle, he said: “I know, I know, I’ve got to go to jail because I tried to run some lady
over.”
People v. Cowan, Nos. C061895, 2011 WL 683892, at *1-2 (Cal. Ct. App. Feb. 28, 2011).
Cowan proceeded to jury trial on March 10, 2009. On March 18, 2009, the jury found
Cowan guilty of assault with a deadly weapon but not guilty of making a criminal threat. After
Cowan waived his right to a jury trial as to the truth of his prior convictions, the trial court found
the prior conviction allegations true. The trial court subsequently imposed the upper term of 4

2

years’ imprisonment, doubled to 8 years pursuant to the Three Strikes Law, on the assault with a
deadly weapon conviction. The court also imposed a concurrent term of 5 years’ imprisonment
for the current and prior serious felony convictions for an aggregate imprisonment term of 13
years.
Through counsel, Cowan appealed his conviction, arguing that: 1) the prosecution
presented legally insufficient evidence that Cowan assaulted Pearson with a deadly weapon; and
2) the trial court erred by denying Cowan’s motion to strike a prior conviction pursuant to
People v. Superior Court (Romero), 917 P.2d 628 (Cal. 1996).2 The Court of Appeal affirmed
the conviction against Cowan in a reasoned, unpublished opinion issued on February 28, 2011.
Cowan, 2011 WL 683892, at *5. Counsel petitioned for review in the California Supreme Court,
raising the same claims Cowan unsuccessfully raised in the Court of Appeal. The California
Supreme Court summarily denied the petition on May 11, 2011.
Proceeding through different counsel, Cowan filed a petition for a writ of habeas corpus
in the Shasta County Superior Court. In that petition, Cowan argued that: 1) his conviction was
based in material part on false evidence by eyewitness Daniel Roberts; and 2) his trial counsel
was ineffective for failing to properly investigate where Roberts was standing at the time of the
incident to assess the accuracy of his testimony. The superior court denied the petition in a
reasoned, unpublished opinion issued on September 10, 2012. Cowan then raised the same

2

Under California Penal Law § 1385, a California court may dismiss a defendant’s
“strike” conviction for purposes of sentencing under the state’s Three Strikes law; a motion for
such dismissal is referred to as a “Romero” motion based on the state supreme court’s decision in
that case. Romero, 917 P.2d at 632. A trial court’s failure to dismiss or strike a prior conviction
is reviewed for abuse of discretion. People v. Carmony, 92 P.3d 369, 374 (Cal. 2004). “[A] trial
court does not abuse its discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.” Id. at 377.
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claims in a counseled habeas petition in the California Court of Appeal, which was denied
without comment on October 4, 2012. Cowan sought review in the California Supreme Court,
which was summarily denied on November 12, 2012.
Again proceeding through counsel, Cowan filed a timely pro se Petition for a Writ of
Habeas Corpus to this Court on August 1, 2012.
II. GROUNDS/CLAIMS
In his counseled Petition, Cowan raises three grounds for relief. First, Cowan argues that
there was insufficient evidence that he assaulted Pearson with a deadly weapon. He next claims
that his conviction must be reversed because it is based in material part on false evidence.
Finally, Cowan contends that his trial counsel’s failure to investigate constituted ineffective
assistance of counsel.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).

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The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). Under the AEDPA, the state court’s
findings of fact are presumed to be correct unless the petitioner rebuts this presumption by clear

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and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003).
IV. DISCUSSION
Claim 1.

Insufficiency of the Evidence

Cowan first argues that there was insufficient evidence to support his assault with a
deadly weapon conviction because, “[w]hile [Cowan] may have wanted to scare Pearson, there
was no evidence that he intent [sic] to hit her with his car.”
As articulated by the Supreme Court in Jackson, the federal constitutional standard for
sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in the
original); see McDaniel v. Brown, 558 U.S. 120, 132-33 (2010) (reaffirming this standard). This
Court must therefore determine whether the California court unreasonably applied Jackson. In
making this determination, this Court may not usurp the role of the finder of fact by considering
how it would have resolved any conflicts in the evidence, made the inferences, or considered the
evidence at trial. Jackson, 443 U.S. at 318-19. Rather, when “faced with a record of historical
facts that supports conflicting inferences,” this Court “must presume–even if it does not
affirmatively appear in the record–that the trier of fact resolved any such conflicts in favor of the
prosecution, and defer to that resolution.” Id. at 326.
It is a fundamental precept of dual federalism that the States possess primary authority
for defining and enforcing the criminal law. See Engle v. Isaac, 456 U.S. 107, 128 (1982).
Consequently, although the sufficiency of the evidence review by this Court is grounded in the

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Fourteenth Amendment, it must take its inquiry by reference to the elements of the crime as set
forth in state law. Jackson, 443 U.S. at 324 n.16. A fundamental principle of our federal system
is “that a state court’s interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v. Richey, 546
U.S. 74, 76 (2005); see West v. AT&T, 311 U.S. 223, 236 (1940) (“[T]he highest court of the
state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be
accepted by federal courts as defining state law . . . .”). “Federal courts hold no supervisory
authority over state judicial proceedings and may intervene only to correct wrongs of
constitutional dimension.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith
v. Philips, 455 U.S. 209, 221 (1982)) (internal quotation marks omitted)
Under California law, assault is defined as “an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.” CAL. PENAL CODE § 240.
“[A]ssault does not require a specific intent to injure the victim.” People v. Williams, 29 P.3d
197, 203 (Cal. 2001). Instead, it “is a general intent crime, established upon proof the defendant
wilfully committed an act that by its nature will probably and directly result in injury to
another.” People v. Chance, 189 P.3d 971, 974 (Cal. 2008) (quotation marks omitted). At the
time of Cowan’s 2009 conviction, California Penal Code § 245(a)(1) punished assaults
committed “with a deadly weapon or instrument other than a firearm” or by “any force likely to
produce great bodily injury.” CAL. PENAL CODE § 245(a)(1). Whether the victim is injured is
irrelevant “because the statute focuses on the use of a deadly weapon or instrument or,
alternatively, on force likely to produce great bodily injury.” People v. Aguilar, 945 P.2d 1204,
1212 n.9 (Cal. 1997). “[A] deadly weapon is any object, instrument, or weapon which is used in

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such a manner as to be capable of producing and likely to produce, death or great bodily injury.”
Id. at 1207 (citation and internal quotation marks omitted).
Cowan argues that the evidence was insufficient to support his conviction because he did
not commit an act that was likely to produce great bodily injury. He recounts the following
facts:
Petitioner never got close to Pearson. Pearson estimated that she was 15 feet from
her front door whether Petition[er] drove towards her at 10 to 15 miles per hour after
making a wide turn and coming in her direction. Pearson herself testified that she did not
give Petitioner the opportunity to come close to her. Petitioner never sped up in order to
close the distance to her. Although the tire marks indicated that Petitioner’s car ended up
where Pearson had initially been standing, by the time Petitioner reached that point,
Pearson was already in her house.
Cowan argues that these circumstances establish that Cowan did not intend to cause a
collision, and there was no assault with a deadly weapon since a collision was easily avoidable.
Under Jackson, this Court’s role is simply to determine whether there is any evidence, if
accepted as credible by the trier of fact, sufficient to sustain conviction. Schlup, 513 U.S. at 330.
The United States Supreme Court has recently even further limited a federal court’s scope of
review under Jackson, holding that “a reviewing court may set aside the jury’s verdict on the
ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.”
Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam). Jackson “makes clear that it is the
responsibility of the jury—not the court—to decide what conclusions should be drawn from
evidence admitted at trial.” Id. at 3-4. Under Cavazos, “a federal court may not overturn a state
court decision rejecting a sufficiency of the evidence challenge simply because the federal court
disagrees with the state court. The federal court instead may do so only if the state court

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decision was ‘objectively unreasonable.’” Id. at 4 (quoting Renico v. Lett, 559 U.S. 766, 773
(2010)).
Pearson testified that Cowan announced his intent to hit her with his car immediately
before he chased her into her house. From this testimony, a reasonable trier of fact could readily
conclude that Cowan intentionally drove his car in a manner that would probably cause injury to
Pearson. As the Court of Appeal stated in rejecting Cowan’s claim:
Here, after announcing that he was going to run Pearson over, [Cowan] drove his
Expedition directly at her as she ran into her house. Then, when he was contacted by
police, he admitted that he “tried to run some lady over.” Driving a vehicle directly at
another person, even at the relatively low speed of 10 to 15 miles per hour, is certainly an
intentional act that by its nature will probably and directly result in the application of
physical force against another. And there can be no doubt that striking a person with an
Expedition would likely exert enough force upon the person to produce great bodily
injury. . . . The fact that she outran the Expedition does not make this any less of an
assault with a deadly weapon.
Cowan, 2011 WL 683892, at *2-3.
Although it might have been possible to draw a different inference from the totality of the
evidence, this Court is required to resolve that conflict in favor of the prosecution. See Jackson,
443 U.S. at 326. For the reasons enumerated by the Court of Appeal and viewing the evidence in
the light most favorable to the verdict, the record does not compel the conclusion that no rational
trier of fact could have found proof that Cowan intentionally drove his car in a manner that
would probably cause injury to Pearson. Thus, considering the deference owed under Jackson,
Cavazos, and the AEDPA, this Court should conclude that there was sufficient evidence
introduced at trial from which a rational trier of fact could have found beyond a reasonable doubt
that Cowan was guilty of assault with a deadly weapon. Accordingly, Pearson is not entitled to
relief on his insufficiency of the evidence claim.

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Claim 2.

False Evidence

Cowan next argues that he was convicted in material part based on the false testimony of
eyewitness Daniel Roberts. Cowan alleges that “new evidence demonstrates that it would have
been impossible for Roberts to have seen Pearson standing in her driveway or running towards
her house[] from his porch.” Cowan’s claim is based on California Penal Code § 1473(b)(1),
which provides that “[a] writ of habeas corpus may be prosecuted for . . . [f]alse evidence that is
substantially material or probative on the issue of guilt or punishment [that] was introduced
against a person at a hearing or trial relating to his or her incarceration.” CAL. PENAL CODE
§ 1473(b)(1).
Respondent urges this Court to dismiss Cowan’s claim as unexhausted. This Court may
not consider claims that have not been fairly presented to the state courts. 28 U.S.C.
§ 2254(b)(1); see Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing cases). Exhaustion of state
remedies requires the petition to fairly present federal claims to the state courts in order to give
the state the opportunity to pass upon and correct alleged violations of its prisoners’ federal
rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). A petitioner must alert the state courts to
the fact that he is asserting a federal claim in order to fairly present the legal basis of the claim.
Id. at 365-66.
In his Traverse, Cowan concedes that his claim differs from a federal false evidence
claim. While the United States Supreme Court has held that the presentation of false evidence
may be a violation of federal due process, a federal false evidence claim requires, in addition to
the requirements under California law that the evidence be false and material, that “the
prosecution knew or should have known that the testimony was actually false.” Sivak v.

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Hardison, 658 F.3d 989, 908-09 (9th Cir. 2011) (citing Napue v. Illinois, 360 U.S. 264, 269
(1959)); see also United States v. Agurs, 427 U.S. 97, 103 (1976) (stating that “the Court has
consistently held that a conviction obtained by the knowing use of perjured testimony is
fundamentally unfair”). Cowan does not contend, nor did he contend on direct appeal, that the
prosecution either knew or should have known that Roberts’ testimony was false.
Cowan nonetheless argues that he fully exhausted his claim by alleging that, “[u]nder the
Federal Constitution, even if the government unwittingly presents false evidence, it violates due
process and a defendant is entitled to a new trial if he can show prejudice.” In support of his
contention, Cowan cites the Ninth Circuit’s decision in United States v. Young, 17 F.3d 1201
(9th Cir. 1994). The Ninth Circuit has indeed allowed habeas relief based on false testimony
regardless of the knowledge of its falsity. See Maxwell v. Roe, 628 F.3d 486, 499-500 (9th Cir.
2010); Killian v. Poole, 282 F.3d 1204, 1209 (9th Cir. 2002). The Ninth Circuit has held upon
direct appeal of a federal conviction:
[A] government’s assurances that false evidence was presented in good faith are
little comfort to a criminal defendant wrongly convicted on the basis of such evidence. A
conviction based in part on false evidence presented in good faith, hardly comports with
fundamental fairness. Thus, even if the government unwittingly presents false evidence,
a defendant is entitled to a new trial “if there is a reasonable probability that [without the
evidence] the result of the proceeding would have been different.
Young, 17 F.3d at 1203-04.
Assuming, without deciding, that this Ninth Circuit case law supports a finding that
Cowan raised a federal claim before the state courts, Cowan is nonetheless not entitled to relief
on it. “AEDPA permits habeas relief only if a state court’s decision is ‘contrary to, or involved
an unreasonable application of, clearly established Federal law’ as determined by [the Supreme]
Court, not by the courts of appeals.” Lopez v. Smith, 135 S. Ct. 1, 4 (2014). Because the
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Supreme Court requires the knowing presentation of false evidence, Cowan’s claim does not
contravene or unreasonably apply Supreme Court precedent. Moreover, as discussed in
connection with his related ineffective assistance of counsel claim, Cowan’s false evidence claim
is without merit. Accordingly, Cowan cannot prevail on this claim in any event.
Claim 3.

Ineffective Assistance of Trial Counsel

Finally, Cowan faults trial court for failing to undertake an investigation into where
Roberts was standing at the time of the incident and whether he could have seen the events as he
described them.
To demonstrate ineffective assistance of counsel under Strickland v. Washington, a
defendant must show both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. 466 U.S. 668, 687 (1984). A deficient performance is one
in which “counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Id.
The Supreme Court has explained that, if there is a reasonable probability that the
outcome might have been different as a result of a legal error, the defendant has established
prejudice and is entitled to relief. Lafler v. Cooper, 132 S. Ct. 1376, 1385-86 (2012); Glover v.
United States, 531 U.S. 198, 203-04 (2001); Williams, 529 U.S. at 393-95. Where a habeas
petition governed by AEDPA alleges ineffective assistance of counsel, the Strickland prejudice
standard is applied and federal courts do not engage in a separate analysis applying the
harmlessness standard of Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). Avila v. Galaza,
297 F.3d 911, 918, n.7 (9th Cir. 2002); see also Musalin v. Lamarque, 555 F.3d 830, 834 (9th

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Cir. 2009). Under this rubric, in reviewing ineffective assistance of counsel claims in a federal
habeas proceeding:
The question “is not whether a federal court believes the state court’s
determination” under the Strickland standard “was incorrect but whether that
determination was unreasonable—a substantially higher threshold.” And, because the
Strickland standard is a general standard, a state court has even more latitude to
reasonably determine that a defendant has not satisfied that standard.
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citations omitted); see also Runningeagle v.
Ryan, 686 F.3d 758, 775 (9th Cir. 2012).
Thus, Cowan must show that defense counsel’s representation was not within the range
of competence demanded of attorneys in criminal cases, and there is a reasonable probability
that, but for counsel’s ineffectiveness, the result would have been different. See Hill v. Lockhart,
474 U.S. 52, 57 (1985). An ineffective assistance of counsel claim should be denied if the
petitioner fails to make a sufficient showing under either of the Strickland prongs. See
Strickland, 466 U.S. at 697 (courts may consider either prong of the test first and need not
address both prongs if the defendant fails on one).
In support of his claim, Cowan alleges:
In the instant case, counsel failed to properly investigate where Roberts was
standing at the time of the incident and whether he could have seen the events as he
described them or whether he was merely repeating the events as he had heard them from
Pearson. While trial counsel sent defense investigator Hicks to interview Roberts and
while Roberts told Hicks that he was standing on his porch viewing the incident, Hicks,
who interviewed Roberts on his driveway, failed to note in his report that it would have
been impossible for Roberts to have seen Pearson’s driveway from his porch. As pictures
presented at trial demonstrated that Robert’s [sic] house was behind Pearson’s house and
there were bushes between his porch and Pearson’s driveway, counsel should have
clarified where exactly Roberts was standing and whether it was possible to have seen
Pearson standing near the tree, running to her house, or Petitioner going over the curb.

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But as the superior court found in rejecting Cowan’s state habeas petition, Cowan failed
to establish that Roberts’ testimony was false and thus does not show that further investigation
by trial counsel would have uncovered its falsity. Cowan therefore fails to demonstrate that trial
counsel’s performance was deficient. The superior court additionally determined that “[Cowan]
has not demonstrated that he would have experienced a more favorable outcome absent counsel’s
alleged ineffective assistance because the evidence of [his] guilt was overwhelming.” This Court
cannot say that the decision of the state court, which is fully supported by the record,
contravened or unreasonably applied federal law. Accordingly, Cowan is not entitled to relief on
his ineffective assistance of counsel claim.
V. CONCLUSION AND ORDER
Cowan is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of
Appealability. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705 (2004) (“To obtain
a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.’” (quoting Miller-El,

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537 U.S. at 327)). Any further request for a Certificate of Appealability must be addressed to the
Ninth Circuit Court of Appeals. See FED. R. APP. P. 22(b); 9TH CIR. R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: June 26, 2015.
/s/James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge

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