Dean v. Robertson
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 4/20/21 RECOMMENDING that petitioner's first amended habeas petition 29 be denied; and the District Court decline to issue a certificate of appealability. Referred to Judge Troy L. Nunley. Objections due within 21 days.(Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DE’SHAWN DEKKERIO DEAN,
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No. 2:18-cv-01287 TLN GGH P
Petitioner,
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v.
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J. ROBERTSON,
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FINDINGS AND RECOMMENDATIONS
Respondent.
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Introduction and Summary
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. The matter was referred to the United States Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302(c).
Petitioner is convinced that the state courts erred in finding his sentence correctly imposed
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due to his belief that the upper term (six years) was imposed without sufficient aggravating
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circumstances. ECF No. 29 (First Amended Petition; Claim 1). He may also be contending that
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the upper term was imposed without an appropriate jury finding. After a stay granted by this court
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pursuant to Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003), 1 petitioner added an ineffective
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Overruled on other grounds, Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007).
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assistance of counsel claim asserting that counsel did not contest the legality of the aggravating
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circumstances used to impose the upper term; Claim 2.
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For the reasons stated herein, Claim 1 is a matter of state law not appropriately reviewed
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in federal habeas corpus. To the extent Claim 1 is based upon Cunningham v. California, 549
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U.S. 270 (2007), petitioner’s plea, as opposed to trial, precludes such an issue. Moreover, Claim
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2 is barred by the AEDPA 2 limitations statute.
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Factual Background
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Petitioner pled no contest and guilty 3 respectively to first degree robbery and assault likely
to produce great bodily injury and was sentenced in January 2017. ECF No. 11-2 at 10. The
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parties stipulated that the factual basis for the plea could be taken from the probation report, and
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according to the California Court of Appeal, Third Appellate District (“Court of Appeal”),
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stipulated to a maximum total incarceration of seven years. ECF No. 11-4 at 3. He was sentenced
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to the upper term of six years for the robbery and a consecutive one year for the assault. ECF No.
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11-1 at 144. The upper term was imposed on the robbery charge because of the presence of
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aggravating factors. Id. at 142. Defense counsel filed a Wende brief , 4 and on September 18,
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2017, the Court of Appeal found no arguable issue on appeal. ECF No. 11-4. No petition for
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review was filed with the California Supreme Court.
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A state habeas petition was filed in Butte County Superior Court on September 5, 2017.
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The one issue raised involved petitioner’s belief that the facts constituting aggravating
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circumstances were otherwise insufficient and/or had never been proved beyond a reasonable
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doubt. ECF No. 11-5 at 4. On September 26, 2017, the petition was denied on procedural grounds
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because the appeal was then pending, and the issue was susceptible of being raised on appeal.
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ECF No. 11-6. The next petition in the Court of Appeal was filed on January 8, 2018 and raised
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the same issue. ECF No. 11-7 at 4. The petition was summarily denied on January 11, 2018. ECF
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On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). Pursuant to 28 U.S.C. § 2244(d)(1), AEDPA imposes a one-year statute of
limitations for federal habeas corpus petitions.
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For purposes of the issue presented here, the type of “guilty” plea entered is
inconsequential.
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People v. Wende, 25 Cal. 3d 436 (1979).
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No. 11-8. On February 5, 2018, a petition was filed with the California Supreme Court, raising
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the lack of sufficient aggravating facts. ECF No. 11-9. The California Supreme Court summarily
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denied the petition on April 18, 2018. ECF No. 11-10.
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Soon, thereafter, on May 14, 2018, the federal petition was filed raising the lack of
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sufficient aggravating factors issue, and also a new ineffective assistance of counsel claim related
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to the lack of objection to the dearth of aggravating circumstances. ECF No. 1. Respondent’s
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Answer contested the exhaustion of all claims, but Claim 1, although perhaps procedurally
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defaulted, had been exhausted in the state supreme court habeas petition. ECF No. 10. The
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traverse, filed on October 2, 2018, generally contested respondent’s exhaustion assertions. ECF
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No. 14.
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On April 18, 2019, the undersigned ordered petitioner to file a request for stay, or, file an
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exhausted claim only petition. See ECF No. 16. The court’s April 18, 2019 order affirmed the fact
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that Claim 1 had been exhausted, but Claim 2 (ineffective assistance of counsel) was not. The
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undersigned advised petitioner of both the Rhines stay 5 and prerequisites, as well as the less
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rigorous Kelly stay. Petitioner was specifically advised, however, that a Kelly stay might be
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ineffective if the to-be-exhausted claim was violative of the AEDPA statute of limitations.
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Petitioner filed a tardy response to the court order on May 28, 2019 in which he requested
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a Kelly stay. ECF No. 19. Petitioner had also filed the exhausted claim only in his First Amended
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Petition on that same day. ECF No. 20. After Findings and Recommendations were filed
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recommending the stay, ECF No. 21, the district judge authorized the stay on August 2, 2019,
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ECF No. 23. After exhaustion, a “new” First Amended Petition was filed on September 25, 2020
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adding the now exhausted ineffective assistance claim. ECF No. 29. A new Answer was filed on
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December 28, 2020. ECF No. 34.
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Rhines v. Weber, 544 U.S. 269 (2005).
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Discussion
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Claim One
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Claim 1, asserting that the aggravating circumstances were insufficient and/or should have
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been found by a jury fails for two reasons: (1) federal courts reviewing habeas claims do not
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review compliance with state sentencing law; and (2) one cannot complain about the lack of a
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jury trial for sentencing issues when one pleads guilty without a trial pursuant to a plea
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arrangement, and stipulates to a factual basis in the probation report.
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“[A] state court's interpretation of its statute does not raise a federal question.” Sturm v.
California Adult Auth., 395 F.2d 446, 448 (9th Cir. 1967). This claim only presents a state
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sentencing error that is not a federal cognizable claim. “[I]t is not the province of a federal habeas
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court to reexamine state-court determinations on state-law questions. In conducting habeas
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review, a federal court is limited to deciding whether a conviction violated the Constitution, laws,
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or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). To state a
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cognizable federal habeas claim based on an alleged error in state sentencing, a petitioner must
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show that the error was “so arbitrary or capricious as to constitute an independent due process or
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Eighth Amendment violation.” Richmond v. Lewis, 506 U.S. 40, 50, (1992) (internal quotation
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marks omitted). “ ‘A mere error of state law,’ we have noted, ‘is not a denial of due process.’ ”
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Rivera v. Illinois, 556 U.S. 148, 158, (2009) (quoting Engle v. Isaac, 456 U.S. 107, 121, n.21,
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(1982)).
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Applying these principles in federal habeas proceedings, the Ninth Circuit Court of
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Appeals has specifically refused to consider alleged errors in the application of state sentencing
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law. See e.g., Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989). In Miller, the court refused to
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examine the state court's determination that a defendant's prior conviction was for a “serious
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felony” within the meaning of the state statutes governing sentence enhancements. Id. at 1118–
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19. The court did not reach the merits of the petitioner's claim, stating that federal habeas relief is
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not available for alleged errors in interpreting and applying state law.
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To the extent petitioner claims that the aggravating circumstances had to be tried to a jury
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(even after he accepted a plea offer), petitioner’s claim satisfies neither AEDPA law nor common
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sense. Cunningham v. California, 549 U.S. 270 (2007), has not been held by the U.S. Supreme
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Court to apply to sentences given because of the plea process. See Presley v. Johnson, No. 2:20-
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cv-01917 PA (GJS) (C.D. Cal. Apr.2, 2020); Morales v. Hartley, No. C 12-5311 PJH (PR), 2013
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WL 5799997 (N.D. Cal. Oct. 28, 2013). It is not a viable claim under state law. People v. Stamps,
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9 Cal. 5th 685, 700-701 (2020). Also, holding that one can waive a jury trial and agree to a plea
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arrangement which includes sentencing provisions, and then complain that the sentencing was not
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performed by a jury is quintessentially a non sequitur.
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Accordingly, the undersigned recommends that petitioner’s Claim 1 should be denied.
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Claim Two
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Claim 2 involves the assertion that counsel was ineffective because counsel did not object
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(enough) to the finding of aggravating circumstances which had the effect of having petitioner
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sentenced to the upper term on the primary offense (as was envisioned as a possibility in the plea
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agreement). Respondent claims that due to the nature of the Kelly stay, the present ineffective
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assistance claim is untimely. Respondent is correct.
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There need be no long dissertation on the fact that a one-year statute of limitations applies
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to federal habeas petitions, calculated from the finality of the state court decision as defined by
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AEDPA. See 28 U.S.C. § 2244(d)(1)(A). 6
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As the facts set forth above demonstrate, Petitioner’s case was final for AEDPA purposes
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40 days after the decision of the Court of Appeal on September 18, 2017, making the case final
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on October 30, 2017. 7 See 28 U.S.C. § 2244(d)(1)(A); Cal. Rules of Court 8.264(b)(1) (Court of
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Appeals decision is final 30 days after filing); Cal. Rules of Court 8.500(e)(1) (Petition for review
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with the California Supreme Court must be served and filed 10 days after the Court of Appeal’s
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decision is final). Ordinarily, the above one-year period is tolled during the pendency of state
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habeas petitions. 28 U.S.C. § 2244 (d)(2).
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Three other trigger dates apply to the commencement of the one-year limitations period.
See 28 U.S.C. § 2244(d)(1)(B), (C), (D). However, these trigger dates have no applicability here.
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The fortieth day is a Saturday. However, because the last day ended on a Saturday, the
period continues to run to the next day that is not a Saturday or Sunday. See Fed. R. Civ. P.
6(a)(1)(C).
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Petitioner commenced his state habeas petitions prior to the finality of his direct appeal.
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The final state habeas petition was decided on April 18, 2018. The federal petition in this case
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was filed May 14, 2018. Therefore, assuming the state habeas petitions were properly filed, and
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gap tolling would apply, the state petitions precluded any commencement of the AEDPA
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limitations period but for approximately a month. However, the ineffective assistance claim here
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was not exhausted, and the nature of a Kelly stay does not permit the timeliness of the filing of
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Claim 2 in the initial petition to be calculated from the date of the petition filing. That is, in order
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to qualify for the Kelly stay, Claim 2 had to be deleted from the case when the “exhausted claims
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only” petition was filed, May 28, 2019, ECF No. 20, i.e., it was if as Claim 2 had never been filed
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in the initial petition.
Therefore, the AEDPA limitation period for Claim 2 started on the finality date of the first
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state habeas process, April 18, 2018. Although the Kelly stay was approved by the district judge
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on August 2, 2019, Claim 2 was not reincorporated into this case until the filing of the (second)
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First Amended Petition—September 25, 2020. Claim 2 was therefore filed nearly two and one-
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half years from the date the one-year statute of limitations began to run. Although statutory
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tolling would ordinarily commence when the first state habeas petition seeking to exhaust Claim
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2 was filed, the tolling was ineffective in light of the dismissal of the unexhausted claim—the
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statute had already expired. Consequently, Claim 2 is barred by the AEDPA limitations period.
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Petitioner might argue that the issuance of the Kelly stay was an illusory event in that
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dismissal of Claim 2 was pre-ordained because of its belated inclusion in this federal litigation.
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And in this case, such might be true. However, petitioner had the opportunity to request a Rhines
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“good cause” stay and/or equitable tolling, and his silence after respondent’s answer is telling that
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no such good cause/tolling could be justified.
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Accordingly, the undersigned recommends that petitioner’s Claim 2 should be denied.
Conclusion
Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must
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issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A
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certificate of appealability may issue only “if the applicant has made a substantial showing of the
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denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings
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and recommendations, a substantial showing of the denial of a constitutional right has not been
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made in this case.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1. Petitioner’s first amended habeas petition (ECF No. 29) be denied; and
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2. The District Court decline to issue a certificate of appealability.
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These Findings and Recommendations are 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 twenty-one 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. Such a 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 fourteen days after service of the objections. The
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parties are advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: April 20, 2021
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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
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