Drakeford v. Lizaraga

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 2/28/2019 RECOMMENDING petitioner's 1 petition for writ of habeas corpus be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL DRAKEFORD,

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No. 2:17-cv-1571 KJM DB P

Petitioner,

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v.

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J. LIZARAGA,

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FINDINGS AND RECOMMENDATIONS

Respondent.

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Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for a

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writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is serving a sentence of seven years to

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life imposed by the Sacramento County Superior Court in 1985 for convictions on two counts of

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attempted kidnapping to commit robbery, robbery, and use of a firearm. He challenges a

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California Board of Parole Hearings’ (“Board”) decision finding him unsuitable for parole and

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resulting in a period of incarceration of, at this point, over thirty years. Petitioner alleges that

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decision resulted in a sentence disproportionate to his crimes in violation of the Eighth

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Amendment. For the reasons set forth below, this court will recommend the petition be denied.
BACKGROUND

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In 1984, petitioner plead guilty, and was convicted of, two counts of attempted kidnapping

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for the purpose of robbery in violation of Cal. Penal Code §§664 and 209(b) and robbery in

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violation of Penal Code § 211. (See ECF No. 20 at 22.1) After application of a sentence

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enhancement for use of a firearm, petitioner was sentenced to seven years to life in prison. (Id. at

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23.) Petitioner states that he has been considered for parole eight times. Each time he was found

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not suitable.

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In 2015, petitioner had his most recent hearing before the Board to determine his

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suitability for parole. (See Trscrpt. of Oct. 7, 2015 Bd. Hrg. (ECF No. 20 at 26-106).) The Board

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recognized that petitioner’s “minimum eligible parole date” was March 23, 1996. (Id. at 95.)

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The Board found that petitioner posed “an unreasonable risk of danger to society or a threat to

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public safety” and was, therefore, “not eligible for parole.” (Id. at 96.) It determined that

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petitioner’s eligibility should be considered again in ten years. (Id. at 101.)

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In 2016, petitioner filed a habeas petition in the Sacramento County Superior Court in

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which he contended that his incarceration violated the proportionality principles in the Eighth

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Amendment and in the California Constitution. (ECF No. 20 at 9.) On January 10, 2017, the

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superior court denied the petition in a reasoned opinion. (Id. at 112.)

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Petitioner raised the same claim in the California Court of Appeal on February 8, 2017.

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(ECF No. 20 at 115.) That court denied the petition without comment. (Id. at 157.) He then

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petitioned the California Supreme Court on March 27, 2017. (Id. at 139.) The California

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Supreme Court denied the petition “without prejudice to any relief to which petitioner may be

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entitled after this court decides Butler on Habeas Corpus, S237014.2 (ECF No. 1 at 21.)

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Petitioner filed the § 2254 petition here on July 28, 2017. (ECF No. 1.) After the court

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denied respondent’s motion to dismiss, respondent filed an answer on April 13, 2018. (ECF Nos.

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15, 18, 20.) Petitioner filed a traverse on May 4, 2018. (ECF No. 21.)

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Respondent attached relevant portions of the state court record to his answer. (See ECF No. 20.)

The California Supreme Court has now decided In re Butler, 4 Cal. 5th 728 (2018). One of the
questions in Butler was the role of “base terms,” which were used to calculate the earliest possible
release date for a prisoner with an indeterminate sentence. The California Supreme Court held
that statutory changes made the base term calculations unnecessary to avoid unconstitutionally
long terms of incarceration. Id. at 747.
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STANDARDS OF REVIEW APPLICABLE TO HABEAS CORPUS CLAIMS

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An application for a writ of habeas corpus by a person in custody under a judgment of a

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state court can be granted only for violations of the Constitution or laws of the United States. 28

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U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

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application of state law. See Wilson v. Corcoran, 562 U.S. 1, 5 (2010); Estelle v. McGuire, 502

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U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:

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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 –

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(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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For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

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holdings of the United States Supreme Court at the time of the last reasoned state court decision.

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Greene v. Fisher, 565 U.S. 34, 37 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011)

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(citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent “‘may be

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persuasive in determining what law is clearly established and whether a state court applied that

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law unreasonably.’” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th

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Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general principle

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of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not

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announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (citing Parker v. Matthews, 567 U.S.

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37 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely

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accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be

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accepted as correct.” Id. at 1451. Further, where courts of appeals have diverged in their

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treatment of an issue, it cannot be said that there is “clearly established Federal law” governing

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that issue. Carey v. Musladin, 549 U.S. 70, 76-77 (2006).

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A state court decision is “contrary to” clearly established federal law if it applies a rule

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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003)

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(quoting Williams, 529 U.S. at 405-06). “Under the ‘unreasonable application’ clause of §

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2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct

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governing legal principle from th[e] [Supreme] Court's decisions, but unreasonably applies that

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principle to the facts of the prisoner's case.’” Lockyer v. Andrade, 538 U.S. 63, 75 (2003)

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(quoting Williams, 529 U.S. at 413); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). “[A]

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federal habeas court may not issue the writ simply because that court concludes in its independent

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judgment that the relevant state-court decision applied clearly established federal law erroneously

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or incorrectly. Rather, that application must also be unreasonable.” Williams, 529 U.S. at 411;

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see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Andrade, 538 U.S. at 75 (“It is not

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enough that a federal habeas court, in its independent review of the legal question, is left with a

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firm conviction that the state court was erroneous.” (Internal citations and quotation marks

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omitted.)). “A state court's determination that a claim lacks merit precludes federal habeas relief

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so long as ‘fairminded jurists could disagree’ on the correctness of the state court's decision.”

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Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652,

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664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a

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state prisoner must show that the state court's ruling on the claim being presented in federal court

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was so lacking in justification that there was an error well understood and comprehended in

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existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.

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There are two ways a petitioner may satisfy subsection (d)(2). Hibbler v. Benedetti, 693

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F.3d 1140, 1146 (9th Cir. 2012). He may show the state court’s findings of fact “were not

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supported by substantial evidence in the state court record” or he may “challenge the fact-finding

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process itself on the ground it was deficient in some material way.” Id. (citing Taylor v. Maddox,

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366 F.3d 992, 999-1001 (9th Cir. 2004)); see also Hurles v. Ryan, 752 F.3d 768, 790-91 (9th Cir.
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2014) (If a state court makes factual findings without an opportunity for the petitioner to present

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evidence, the fact-finding process may be deficient and the state court opinion may not be entitled

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to deference.). Under the “substantial evidence” test, the court asks whether “an appellate panel,

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applying the normal standards of appellate review,” could reasonably conclude that the finding is

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supported by the record. Hibbler, 693 F.3d at 1146 (9th Cir. 2012).

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The second test, whether the state court’s fact-finding process is insufficient, requires the

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federal court to “be satisfied that any appellate court to whom the defect [in the state court’s fact-

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finding process] is pointed out would be unreasonable in holding that the state court’s fact-finding

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process was adequate.” Hibbler, 693 F.3d at 1146-47 (quoting Lambert v. Blodgett, 393 F.3d

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943, 972 (9th Cir. 2004)). The state court’s failure to hold an evidentiary hearing does not

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automatically render its fact finding process unreasonable. Id. at 1147. Further, a state court may

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make factual findings without an evidentiary hearing if “the record conclusively establishes a fact

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or where petitioner’s factual allegations are entirely without credibility.” Perez v. Rosario, 459

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F.3d 943, 951 (9th Cir. 2006) (citing Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003)).

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If a petitioner overcomes one of the hurdles posed by section 2254(d), this court reviews

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the merits of the claim de novo. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see

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also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) (“[I]t is now clear both that we

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may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error,

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we must decide the habeas petition by considering de novo the constitutional issues raised.”). For

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the claims upon which petitioner seeks to present evidence, petitioner must meet the standards of

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28 U.S.C. § 2254(e)(2) by showing that he has not “failed to develop the factual basis of [the]

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claim in State court proceedings” and by meeting the federal case law standards for the

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presentation of evidence in a federal habeas proceeding. See Cullen v. Pinholster, 563 U.S. 170,

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186 (2011).

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The court looks to the last reasoned state court decision as the basis for the state court

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judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

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“[I]f the last reasoned state court decision adopts or substantially incorporates the reasoning from

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a previous state court decision, [this court] may consider both decisions to ‘fully ascertain the
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reasoning of the last decision.’” Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en

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banc) (quoting Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir. 2005)). “When a federal claim

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has been presented to a state court and the state court has denied relief, it may be presumed that

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the state court adjudicated the claim on the merits in the absence of any indication or state-law

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procedural principles to the contrary.” Richter, 562 U.S. at 99. This presumption may be

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overcome by showing “there is reason to think some other explanation for the state court's

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decision is more likely.” Id. at 99-100 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

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Similarly, when a state court decision on a petitioner's claims rejects some claims but does not

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expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that

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the federal claim was adjudicated on the merits. Johnson v. Williams, 568 U.S. 289, 293 (2013).

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When it is clear, that a state court has not reached the merits of a petitioner's claim, the deferential

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standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review

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the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir.

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2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

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ANALYSIS
Petitioner argues his incarceration for over thirty years is grossly disproportionate to his

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crimes in violation of the Eighth Amendment. Initially, this court notes that petitioner

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misconstrues the focus of the Eighth Amendment analysis. The Board’s decision, while

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lengthening his physical term of confinement, does not change his original sentence. As

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petitioner is serving an indeterminate sentence, it is possible that he may be paroled, but it is also

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possible that he shall remain incarcerated for the entire life term. The question, then, is whether

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the sentence imposed, seven years to life, was so disproportionate to petitioner’s crimes that it

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violates the Eighth Amendment.

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To the extent petitioner is challenging the Board’s decision, this court notes that “[t]here is

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no right under the Federal Constitution to be conditionally released before the expiration of a

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valid sentence, and the States are under no duty to offer parole to their prisoners.” Swarthout v.

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Cooke, 562 U.S. 216, 220 (2011); see also Harris v. Long, No. CV 12–1349–VBF (PLA), 2012

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WL 2061698, at *8 (C.D. Cal. May 10, 2012) (“[T]he Court is unaware of any United States
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Supreme Court case holding that either the denial of parole and continued confinement of a

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prisoner pursuant to a valid indeterminate life sentence, ... constitutes cruel and unusual

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punishment in violation of the Eighth Amendment.”), rep. and reco. adopted, 2012 WL 2061695

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(C.D. Cal. June 6, 2012); Prellwitz v. Sisto, No. Civ S-07-0046 JAM EFB P, 2012 WL 1594153,

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at *6 (E.D. Cal. May 4, 2012) (rejecting a similar Eighth Amendment claim and holding that

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“[w]hile petitioner might have hoped or expected to be released sooner, the Board’s decision to

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deny him a parole release date has not enhanced his punishment or sentence.”), rep. and reco.

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adopted, No. CIV S-07-0046 JAM EFB (E.D. Cal. July 27, 2012); Rosales v. Carey, No. CIV S–

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03–0230 JAM DAD (TEMP) P, 2011 WL 3319576, at *8 (E.D. Cal. Aug.1, 2011) (“[T]he Ninth

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Circuit has said that any emotional trauma from dashed expectations concerning parole ‘does not

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offend the standards of decency in modern society.’”) (quoting Baumann v. Arizona Dept. of

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Corrections, 754 F.2d 841 (9th Cir.1985)), rep. and reco. adopted, No. CIV S-03-0230 JAM DAD

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(E.D. Cal. Sept. 29, 2011).

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I.

Eighth Amendment Standards
The Eighth Amendment to the United States Constitution proscribes “cruel and unusual

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punishments.” U.S. Const. amend. VIII. The United States Supreme Court has held that the

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Eighth Amendment includes a “narrow proportionality principle” that applies to terms of

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imprisonment. See Graham v. Florida, 560 U.S. 48, 60 (2010); Harmelin v. Michigan, 501 U.S.

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957, 996, (1991) (Kennedy, J., concurring); see also Taylor v. Lewis, 460 F.3d 1093, 1097 (9th

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Cir. 2006). However, the precise contours of this principle are unclear, and successful challenges

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in federal court to the proportionality of particular sentences are “exceedingly rare.” Solem v.

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Helm, 463 U.S. 277, 289-90 (1983); see also Ramirez v. Castro, 365 F.3d 755, 775 (9th Cir.

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2004). “The Eighth Amendment does not require strict proportionality between crime and

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sentence. Rather, it forbids only extreme sentences that are ‘grossly disproportionate’ to the

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crime.” Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring) (citing Solem, 463 U.S. at 288,

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303).

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In assessing the compliance of a non-capital sentence with the proportionality principle, a

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reviewing court must consider “objective factors” to the extent possible. Solem, 463 U.S. at 290.
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Foremost among these factors are the severity of the penalty imposed and the gravity of the

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offense. “Comparisons among offenses can be made in light of, among other things, the harm

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caused or threatened to the victim or society, the culpability of the offender, and the absolute

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magnitude of the crime.” Taylor, 460 F.3d at 1098.

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The following decisions of the United States Supreme Court illustrate these principles. In

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Harmelin, the Supreme Court upheld a life sentence without the possibility of parole for a first-

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time offender convicted of possessing 672 grams of cocaine. Harmelin, 501 U.S. at 961. In

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Andrade, the Supreme Court held that it was not an unreasonable application of clearly

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established federal law for the California Court of Appeal to affirm a “Three Strikes” sentence of

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two consecutive 25-year-to-life imprisonment terms for a petty theft with a prior conviction

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involving theft of $150.00 worth of videotapes. Andrade, 538 U.S. at 75. In Ewing, the Supreme

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Court held that a “Three Strikes” sentence of 25 years to life in prison imposed on a grand theft

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conviction involving the theft of three golf clubs from a pro shop was not grossly disproportionate

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and did not violate the Eighth Amendment. 538 U.S. at 29. In Hutto v. Davis, 454 U.S. 370

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(1982), the Supreme Court upheld the defendant’s sentence of 40 years in prison after his

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conviction for possession of nine ounces of marijuana and drug paraphernalia. Finally, in

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Rummel v. Estelle, 445 U.S. 263 (1980), the Supreme Court upheld a sentence of life with the

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possibility of parole for a defendant’s third nonviolent felony: obtaining money by false

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pretenses.

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II.

State Court Decision

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Because the California Supreme Court and Court of Appeal denied petitioner’s claim

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without analysis, the opinion of the Superior Court is the “last reasoned decision” of the state

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court for purposes of determining the reasonableness of the state court decision under § 2254(d).

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See Stanley, 633 F.3d at 859. The Superior Court cited case law for the proposition that a

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“prisoner cannot be held for a period of time grossly disproportionate to his or her individual

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culpability for the commitment offense.” However, the court did not then appear to consider

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disproportionality. Rather, the court noted that the Board’s decision was based on petitioner’s

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“74 disciplinary findings” while in prison, some of which were for violent actions, and concluded
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that “[t]here is nothing about proportionality that requires the Board of Parole Hearings to release

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an inmate who is currently dangerous.” (ECF No. 20 at 112.)
It is unclear from the Superior Court’s opinion if it considered whether petitioner’s seven-

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years-to-life sentence is grossly disproportionate to his crimes, as required by the Eighth

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Amendment. However, this court need not determine just whether the Superior Court did, or can

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be considered to have, conducted that analysis. This court’s recommendation is the same

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regardless of whether the Superior Court correctly applied federal legal standards. If the court did

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so, then, for the reasons set forth in the following section, its decision was not objectively

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unreasonably under 28 U.S.C. § 2254(d). If the court failed to consider petitioner’s claim under

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the applicable federal law, then this court should consider petitioner’s claim de novo. See

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Delgadillo, 527 F.3d at 925. Below, this court conducts that de novo review to find petitioner’s

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Eighth Amendment claim should fail.

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III.

Does Petitioner’s Sentence Violate the Eighth Amendment?
Pursuant to the authorities cited above, the sentence imposed on petitioner, while certainly

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harsh, is not grossly disproportionate to his crimes of conviction. Petitioner plead to, and was

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convicted of, two counts of attempted kidnapping for the purpose of robbery and one count of

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robbery. Petitioner also plead guilty to using a gun during the kidnappings. The transcript of

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petitioner’s most recent parole hearing shows that his kidnapping crimes involved two incidents

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of entering a car with a female driver, pointing a gun at the driver, ordering her to drive, and

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robbing her. In addition, petitioner struck one of the victims in the head with his pistol, which

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discharged into the car as he was striking the victim, and stole her car. He ordered the second

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victim to unzip her pants and reached his hand into her pants to, he informed the Board,

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determine if she was hiding any drugs or other valuables there. (See ECF No. 20 at 35-48.)

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Petitioner’s current crimes are far more serious than the petty theft convictions before the

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court in Andrade, the shoplifting conviction in Ewing, the conviction for obtaining money under

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false pretenses at issue in Rummel, and the conviction for possession of .036 grams of cocaine in

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Taylor, all of which involved the imposition of lengthy sentences which were upheld against an

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Eighth Amendment challenge. Moreover, the California legislature has authorized long terms of
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incarceration to punish petitioner’s crimes, which involved violence, and petitioner has pointed to

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no clearly established Supreme Court precedent that “forecloses that legislative choice.” See

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Ewing, 538 U.S. at 30 n. 2; see also Belgarde v. Montana, 123 F.3d 1210, 1215 (9th Cir.1997)

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(“Generally, so long as the sentence imposed does not exceed the statutory maximum, it will not

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be overturned on eighth amendment grounds.”).

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This court notes that cases in which courts found lengthy sentences violated the Eighth

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Amendment vary significantly from petitioner’s conviction for two serious and violent felonies.

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In Solem, the petitioner was sentenced to life without parole for “one of the most passive felonies

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a person could commit” - writing a $100 bad check. 463 U.S. at 296. Further, while he had prior

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felonies, each was “relatively minor” and the Court noted that the petitioner was “not a

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professional criminal.” Id. at 297 & n. 22. The Court determined that the petitioner’s sentence

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was “significantly disproportionate to his crime” and violated the Eighth Amendment. Id. at 303.
In Ramirez, the Ninth Circuit considered the petitioner’s 25-years-to-life sentence on a

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conviction for petty theft, a wobbler offense. 365 F.3d at 768. The petitioner had just two prior

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robbery convictions, also for shoplifting. The court found this sentence to be one of the

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“exceedingly rare” case in which the sentence imposed is grossly disproportionate to the crimes.

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Id. at 770. In particular, the court noted that petitioner Ramirez’s criminal history “pales in

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comparison to the lengthy recidivist histories discussed [] in Solem, Ewing, and Andrade. Id. at

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769.

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In Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008), the Ninth Circuit considered a three

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strikes sentence of 28 years to life imposed for the “passive” and “harmless” offense of failing to

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update a sex offender registration within the prescribed time. While the petitioner had significant

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prior convictions for cocaine possession, committing a lewd act with a child under 14 years of

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age, attempted rape by force, and second-degree robbery, the court found the “technical” nature

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of the petitioner’s crime and the fact that his current offense was not the type that the anti-

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recidivism statute was designed to punish, to conclude the petitioner’s sentence was grossly

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disproportionate.

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Courts have held that sentences of life without the possibility of parole (“LWOP”), a

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sentence far more severe than petitioner’s, are not disproportionate to a variety of offenses. The

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United States Supreme Court held that an LWOP sentence was not disproportionate to a first

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felony conviction for possession of a large amount of cocaine. Harmelin, 501 U.S. at 995. The

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Ninth Circuit has held that LWOP was not disproportionate for: (1) a conviction for felony

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burglary with a lengthy history of convictions for burglary, attempted grand larceny, and felon in

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possession of a firearm, Carpenter v. Neven, 735 F. App’x 379 (9th Cir. 2018); (2) a conviction

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for first degree child molestation with a criminal history of child molestation, Norris, 622 F.3d at

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1296; and (3) convictions for possession of cocaine with intent to distribute and felon in

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possession of a firearm with three prior felony drug convictions, United States v. Van Winrow,

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951 F. 2d 1069 (9th Cir. 1991). See also Voight v. Gipson, No. SACV 12-1231-AG(DTB), 2014

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WL 1779816, at *18-24 (C.D. Cal. Apr. 30, 2014) (390-years-to-life sentence for convictions on

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five counts of lewd act upon a child under the age of 14 did not violate Eighth Amendment).

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For the reasons explained above, this is not a case where “a threshold comparison of the

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crime committed and the sentence imposed leads to an inference of gross disproportionality.”

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Solem, 463 U.S. at 1004–05. Petitioner cites a few decisions of the United States Supreme Court

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for the general proposition that the Eighth Amendment bars sentences that are disproportionate to

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the crime committed. However, he cites no federal case law, much less any holdings of the

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United States Supreme Court, supporting his argument that his sentence is disproportionate.

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Because this court finds petitioner does not raise an inference of gross disproportionality, the

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undersigned need not compare petitioner’s sentence to the sentences of other defendants.

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Harmelin, 501 U.S. at 1005; United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (“[I]n

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the rare case in which a threshold comparison [of the crime committed and the sentence imposed]

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leads to an inference of gross disproportionality, we then compare the sentence at issue with

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sentences imposed for analogous crimes in the same and other jurisdictions.”).

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For the reasons set forth above, this court finds petitioner’s sentence is not one of the

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“exceedingly rare” instances of a sentence that is so disproportionate to the crimes that it violates

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the Eighth Amendment. See Hung Duong Nguon v. Virga, No. 2:12-cv-1913 MCE CMK P,
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2014 WL 996215, at *2 (E.D. Cal. Mar. 13, 2014) (life sentence not disproportionate to

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convictions for kidnapping and robbery with use of a firearm), rep. and reco. adopted, No. 2:12-

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cv-1913 MCE CMK P (E.D. Cal. Mar. 28, 2014).

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CONCLUSION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s petition
for a writ of habeas corpus be denied.
These findings and recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. The document should be captioned

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“Objections to Magistrate Judge's Findings and Recommendations.” Any response to the

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objections shall be filed and served within seven days after service of the objections. The parties

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are advised that failure to file objections within the specified time may result in waiver of the

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right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In the

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objections, the party may address whether a certificate of appealability should issue in the event

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an appeal of the judgment in this case is filed. See Rule 11, Rules Governing § 2254 Cases (the

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district court must issue or deny a certificate of appealability when it enters a final order adverse

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to the applicant).

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Dated: February 28, 2019

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DLB:9
DB/prisoner-habeas/drak1571.fr

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