Fletcher v. Blades

Filing 126

MEMORANDUM DECISION AND ORDER. IT IS ORDERED: The Amended Petition for Writ of Habeas Corpus (Dkt. 53 ) is DENIED IN PART and DISMISSED IN PART, and this entire action is DISMISSED with prejudice. The Court does not find its resolution of this habea s matter to be reasonably debatable, and a certificate of appealability will not issue. If Petitioner wishes to appeal, he must file a timely notice of appeal with the Clerk of Court. Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a request in that court. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

WILLIAM FLETCHER,
Case No. 1:15-cv-00166-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
RANDY BLADES,
Respondent.

Pending before the Court is an Amended Petition for Writ of Habeas Corpus (Dkt.
53), filed by Idaho state prisoner William Fletcher (“Petitioner” or “Fletcher”),
challenging Petitioner’s Ada County conviction of felony injury to a child. The Court
previously dismissed, as procedurally defaulted, all of the claims in the Amended Petition
with the exception of Claim 4(e). (Dkt. 78.) That claim is now fully briefed on the merits
and ripe for adjudication. (See Dkt. 87, 88.) The Court takes judicial notice of the records
from Petitioner’s state court proceedings, which have been lodged by Respondent. (Dkt.
13, 55.) See Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir.
2006).
All parties have consented to the jurisdiction of a United States Magistrate Judge
to conduct all proceedings in this case in accordance with 28 U.S.C. § 636(c) and Federal
Rule of Civil Procedure 73. (Dkt. 25.) Having carefully reviewed the record in this
matter, including the state court record, the Court concludes that oral argument is
MEMORANDUM DECISION AND ORDER - 1

unnecessary. See D. Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following
Order denying habeas corpus relief on Claim 4(e).
1.

Background
Petitioner was initially charged with two counts of lewd conduct with a minor

under the age of sixteen. (State’s Lodging A-1 at 6-7.) Pursuant to a binding plea
agreement, Petitioner entered an Alford plea to a single reduced charge of felony injury to
a child, based on Petitioner’s “rubbing the vaginal opening” of the minor victim. (Id. at
74, 75-84.) Petitioner was sentenced to ten years in prison with three years fixed but was
placed on a rider. After an unsuccessful period of retained jurisdiction, the trial court
relinquished jurisdiction and ordered execution of Petitioner’s sentence. (See Dkt. 78 at
2.) The state appellate court affirmed.
Petitioner pursued post-conviction relief and filed numerous motions in his
underlying criminal case, but the trial court dismissed the post-conviction petition and
denied the motions. Again, the state appellate court affirmed. Petitioner has since been
released on parole.
In the instant habeas case, only Claim 4(e) remains for adjudication on the merits.
In that claim, Petitioner asserts that his attorney rendered ineffective assistance by
allegedly leading Petitioner to believe that “local racial prejudice would make trying to
put on a defense a futile gesture.” Petitioner claims that as a result of this advice, his plea
of guilty was invalid. (Dkt. 53 at 10.)

MEMORANDUM DECISION AND ORDER - 2

2.

Habeas Corpus Standard of Law
Federal habeas corpus relief may be granted when a federal court determines that

the petitioner “is in custody in violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). If the state court has adjudicated a claim on the
merits, habeas relief is further limited by § 2254(d), as amended by the Anti-terrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal habeas
relief may be granted only where the state court’s adjudication of the petitioner’s claim:
(1)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or

(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.

28 U.S.C. § 2254(d). “Deciding whether a state court’s decision involved an
unreasonable application of federal law or was based on an unreasonable determination
of fact requires the federal habeas court to train its attention on the particular reasons—
both legal and factual—why state courts rejected a state prisoner’s federal claims and to
give appropriate deference to that decision.” Wilson v. Sellers, 138 S. Ct. 1188, 1191-92
(2018) (internal quotation marks and citations omitted).
When a party contests the state court’s legal conclusions, including application of
the law to the facts, § 2254(d)(1) governs. That section consists of two alternative tests:
the “contrary to” test and the “unreasonable application” test.

MEMORANDUM DECISION AND ORDER - 3

Under the first test, a state court’s decision is “contrary to” clearly established
federal law “if the state court applies a rule different from the governing law set forth in
[the Supreme Court’s] cases, or if it decides a case differently than [the Supreme Court]
[has] done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685, 694
(2002). Under the second test, to satisfy the “unreasonable application” clause of
§ 2254(d)(1), the petitioner must show that the state court—although identifying “the
correct governing legal rule” from Supreme Court precedent—nonetheless “unreasonably
applie[d] it to the facts of the particular state prisoner’s case.” Williams (Terry) v. Taylor,
529 U.S. 362, 407 (2000). “Section 2254(d)(1) provides a remedy for instances in which
a state court unreasonably applies [Supreme Court] precedent; it does not require state
courts to extend that precedent or license federal courts to treat the failure to do so as
error.” White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (emphasis omitted).
A federal court cannot grant habeas relief simply because it concludes in its
independent judgment that the decision is incorrect or wrong; rather, the state court’s
application of federal law must be objectively unreasonable to warrant relief. Lockyer v.
Andrade, 538 U.S. 63, 75 (2003); Bell, 535 U.S. at 694. If there is any possibility that
fair-minded jurists could disagree on the correctness of the state court’s decision, then
relief is not warranted under § 2254(d)(1). Harrington v. Richter, 562 U.S. 86, 102
(2011). The Supreme Court has emphasized that “even a strong case for relief does not
mean the state court’s contrary conclusion was unreasonable.” Id. To be entitled to
habeas relief under § 2254(d)(1), “a state prisoner must show that the state court’s ruling
on the claim being presented in federal court was so lacking in justification that there was
MEMORANDUM DECISION AND ORDER - 4

an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
Though the source of clearly established federal law must come only from the
holdings of the United States Supreme Court, circuit precedent may be persuasive
authority for determining whether a state court decision is an unreasonable application of
Supreme Court precedent. Duhaime v. Ducharme, 200 F.3d 597, 600-01 (9th Cir. 2000).
However, circuit law may not be used “to refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule that th[e] Court has not
announced.” Marshall v. Rodgers, 569 U.S. 58, 64 (2013).
“[R]eview under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 180
(2011). This means that evidence not presented to the state court may not be introduced
on federal habeas review if a claim was adjudicated on the merits in state court and if the
underlying factual determinations of the state court were reasonable. See Murray v.
Schriro, 745 F.3d 984, 999-1000 (9th Cir. 2014); (“After Pinholster, a federal habeas
court may consider new evidence only on de novo review, subject to the limitations of
§ 2254(e)(2).”); Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014) (“If we determine,
considering only the evidence before the state court, that the adjudication of a claim on
the merits ... was based on an unreasonable determination of the facts, we evaluate the
claim de novo, and we may consider evidence properly presented for the first time in
federal court.”).

MEMORANDUM DECISION AND ORDER - 5

To be eligible for relief under § 2254(d)(2), a petitioner must show that the state
court decision was based upon factual determinations that were “unreasonable ... in light
of the evidence presented in the State court proceeding.” A “state-court factual
determination is not unreasonable merely because the federal habeas court would have
reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301
(2010); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under
AEDPA is not whether a federal court believes the state court’s determination was
incorrect but whether that determination was unreasonable—a substantially higher
threshold.”). State court factual findings are presumed to be correct and are binding on
the federal court unless the petitioner rebuts this presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
If a petitioner satisfies § 2254(d)—either by showing that the state court’s
adjudication of the claim was contrary to, or an unreasonable application of Supreme
Court precedent or by establishing that the state court’s factual findings were
unreasonable—then the federal habeas court must review the petitioner’s claim de novo,
meaning without deference to the state court’s decision. Hurles, 752 F.3d at 778. De novo
review is also required where the state appellate court did not decide a properly-asserted
claim or where an adequate excuse for the procedural default of a claim exists. Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Dickens v. Ryan, 740 F.3d 1302, 1321 (9th
Cir. 2014) (en banc).
Generally, even if a petitioner succeeds in demonstrating a constitutional error in
his conviction, he is entitled to federal habeas relief only if the petitioner “can establish
MEMORANDUM DECISION AND ORDER - 6

that [the error] resulted in ‘actual prejudice.’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993). Under the Brecht standard, an error is not harmless, and habeas relief must be
granted, only if the federal court has “grave doubt about whether a trial error of federal
law had substantial and injurious effect or influence in determining the jury’s verdict.”
O’Neal v. McAninch, 513 U.S. 432, 436 (1995) (internal quotation marks omitted).
However, some types of claims “are analyzed under their own harmless error standards,
which can render Brecht analysis unnecessary.” Jackson v. Brown, 513 F.3d 1057, 1070
(9th Cir. 2008). Claims of ineffective assistance of counsel are included in this category.
Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009) (“[W]here a habeas petition
governed by AEDPA alleges ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), we apply
Strickland’s prejudice standard and do not engage in a separate analysis applying the
Brecht standard.”).
3.

Discussion
Claim 4(e) asserts that trial counsel rendered ineffective assistance by advising

Petitioner that he should plead guilty because he would be automatically convicted if he
went to trial.
A.

Relevant Facts

According to Petitioner, he told his attorney multiple times that he was innocent
and that he did not want to plead guilty; Petitioner also rejected multiple plea offers. On
September 28, 2013, defense counsel informed Petitioner that “the state was given [sic]
him one last opportunity to accept [the] previously rejected plea of felony injury to a
MEMORANDUM DECISION AND ORDER - 7

child.” (Dkt. 88 at 5.) Petitioner again refused. However, counsel then told Petitioner that,
even though there was no evidence against him, “It will be the victim’s word ... against
yours, and no jury would believe your testimony or evidence. You will be convicted
automatically if you go to trial.” (Id.)
Petitioner asked how that was possible, as he would have to be found guilty
beyond a reasonable doubt. His attorney then told him “to look around where you are, it’s
Idaho and it happens that way; so it’s either [a] plea offer or [an] automatic life
sentence.” (Id.)
Petitioner “took all this from trial counsel as a racial comment and their [sic] was
no way he would receive a fair trial.” (Id.) After counsel again advised Petitioner to take
the plea offer, Petitioner agreed. Petitioner states that, when counsel left the jail,
Petitioner understood the plea agreement as follows:
Original charges of lewd conduct with a minor under 16
dropped[.] Plea Alford type plea not admitting guilt to injury
to a child felony for only causing mental suffering to victim
unintentionally[.] 1 year fixed 4 years indeterminated [sic],
probation, mental health court/veteran court.
(Id. at 6.) Petitioner later learned that the amended information still contained a sexual
component, even though the crime of felony injury to a child is not necessarily
considered a sex offense, and that the agreed-upon sentence was longer than he had
believed. (Id.) However, Petitioner entered the Alford plea nonetheless.
Petitioner claims that counsel’s statements intimated to him “that local racial
prejudice would make putting on a defense a futile gesture,” that this advice constituted

MEMORANDUM DECISION AND ORDER - 8

ineffective assistance of counsel, and that his guilty plea was therefore not knowing,
intelligent, and voluntary. (Id.)
B.

Clearly-Established Law

The Sixth Amendment to the United States Constitution provides that a criminal
defendant has a right to the effective assistance of counsel in his defense. The standard
for ineffective assistance of counsel claims was set forth by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). A petitioner asserting ineffective
assistance of counsel (“IAC”) must show that (1) “counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and (2) those errors “deprive[d] the defendant of a fair trial, a trial whose
result is reliable.” Id. at 687. A petitioner must establish both deficient performance and
prejudice to warrant relief on an IAC claim. Id. at 697. On habeas review, the court may
consider either prong of the Strickland test first, or it may address both prongs, even if
one prong is not satisfied and would compel denial of the IAC claim. Id.
Whether an attorney’s performance was deficient is judged against an objective
standard of reasonableness. Id. at 687-88. A reviewing court’s inquiry into the
“reasonableness” of counsel’s actions must not rely on hindsight:
Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to secondguess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to
conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance
requires that every effort be made to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
MEMORANDUM DECISION AND ORDER - 9

counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance;
that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy. There are countless ways to
provide effective assistance in any given case. Even the best
criminal defense attorneys would not defend a particular
client in the same way.
Id. at 689 (internal citations and quotation marks omitted).
If a petitioner shows that counsel’s performance was deficient, the next step is the
prejudice analysis. “An error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if the error had no effect on
the judgment.” Strickland, 466 U.S. at 691. To satisfy the prejudice standard, a petitioner
“must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Id. at 694. As the
Strickland Court instructed:
In making this determination, a court hearing an
ineffectiveness claim must consider the totality of the
evidence before the judge or jury. Some of the factual
findings will have been unaffected by the errors, and factual
findings that were affected will have been affected in
different ways. Some errors will have had a pervasive effect
on the inferences to be drawn from the evidence, altering the
entire evidentiary picture, and some will have had an isolated,
trivial effect. Moreover, a verdict or conclusion only weakly
supported by the record is more likely to have been affected
by errors than one with overwhelming record support. Taking
the unaffected findings as a given, and taking due account of
the effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant has

MEMORANDUM DECISION AND ORDER - 10

met the burden of showing that the decision reached would
reasonably likely have been different absent the errors.
Id. at 695-96. To constitute Strickland prejudice, “[t]he likelihood of a different result
must be substantial, not just conceivable.” Richter, 562 U.S. 86 at 112. To show prejudice
based on deficient performance of counsel in a case where, as here, the petitioner pleaded
guilty, the petitioner “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
The foregoing standard, giving deference to counsel’s decision-making, is the de
novo standard of review. Another layer of deference—to the state court decision—is
afforded under AEDPA. In giving guidance to district courts reviewing Strickland claims
on habeas corpus review, the United States Supreme Court explained:
The pivotal question is whether the state court’s application
of the Strickland standard was unreasonable. This is different
from asking whether defense counsel’s performance fell
below Strickland’s standard. Were that the inquiry, the
analysis would be no different than if, for example, this Court
were adjudicating a Strickland claim on direct review of a
criminal conviction in a United States district court. Under
AEDPA, though, it is a necessary premise that the two
questions are different. For purposes of § 2254(d)(1), “an
unreasonable application of federal law is different from an
incorrect application of federal law.” Williams, supra, at 410,
120 S. Ct. 1495. A state court must be granted a deference
and latitude that are not in operation when the case involves
review under the Strickland standard itself.
Richter, 562 U.S. at 101. That is, when evaluating an IAC claim under § 2254(d), this
Court’s review of that claim must be “doubly deferential.” Pinholster, 563 U.S. at 190
(internal quotation marks omitted).
MEMORANDUM DECISION AND ORDER - 11

C.

State Court Decision

The Idaho Court of Appeals framed Claim 4(e) as follows, which corresponds to
how Petitioner has framed the claim in the Amended Petition:
On appeal, Fletcher ... contends that he raised the
possibility of a valid claim by alleging that his attorney
advised him that he would be automatically convicted if he
went to trial based on where he was, which he interpreted to
mean that he, an African-American man, could not get a fair
trial in Idaho due to racial prejudice....
....
Fletcher contends that his trial counsel’s implication
that racial prejudice would determine a jury verdict is
sufficient to prevent his guilty plea from being knowing,
intelligent, and voluntary.... According to Fletcher, he asked
counsel why he should take the plea offered by the state
despite his claim of innocence, to which his counsel allegedly
responded that Fletcher was looking at a life sentence, that the
jury would usually believe what the child says, that it had
happened before, and that he was in Idaho.... Fletcher claims
his trial counsel told Fletcher he would be automatically
convicted if he went to trial. When he asked why, Fletcher’s
attorney allegedly told him to look at where he was—Idaho.
He interpreted these comments to mean that he could not
receive a fair trial due to purported racial prejudice in the
local community.
(State’s Lodging C-6 at 3, 5.)
The court of appeals assumed, without deciding, that Petitioner’s counsel in fact
said what Petitioner alleged. The court also stated, in a footnote, that Petitioner’s
interpretation of counsel’s comments faced a “significant difficulty.” (Id. at 5 n.3.)
Instead of being aimed at Petitioner’s race,
... the comments could be interpreted to mean that the
surrounding community, based on prevailing moral views,
MEMORANDUM DECISION AND ORDER - 12

has a low tolerance for claims of sexual abuse of minor
children, making a trial unwise. Such advice would not
constitute ineffective assistance of counsel or otherwise
render a guilty plea unknowing, unintelligent, or involuntary.
(Id.) The court went on to conclude that Petitioner had not shown “that his interpretation
of [counsel’s] vague comments and reliance thereon was reasonable.” (Id. at 6.)
Noting that comments about local racial prejudice could, in some circumstances,
constitute ineffective assistance and render a guilty plea invalid, the court held that the
comments by Petitioner’s counsel were “insufficient on [their] own to show that [the]
guilty plea was not knowing, intelligent, and voluntary.” (Id. at 6.) In doing so, the court
distinguished Thomas v. Lockhart, 738 F.2d 304 (8th Cir. 1984), an Eighth Circuit
decision upon which Petitioner had relied:
In Thomas, the Eighth Circuit Court of Appeals affirmed a
district court’s conclusion in a habeas corpus proceeding that
the petitioner had been denied effective assistance of counsel
because, among other things, counsel gave the defendant (an
African-American man) and his family the impression that his
trial would be futile because of racial prejudice. That case is
readily distinguishable from the circumstances alleged here.
The Thomas Court noted the extensive and explicit statements
regarding racial prejudice, including that the petitioner would
have to prove his innocence and that a jury would never
believe an African-American man’s testimony over that of a
Caucasian victim. Here, the alleged comments were neither
extensive nor explicit.
(State’s Lodging C-6 at 5 (citations omitted).) The Idaho Court of Appeals noted that “the
context in which [the comments by Petitioner’s attorney] were made differs substantially
from the time and circumstances of 1984 Arkansas in Thomas”:
Indeed, Fletcher has provided no factual or legal basis
to suggest that his interpretation of the advice prevented his
MEMORANDUM DECISION AND ORDER - 13

guilty plea from being knowing, intelligent, and voluntary. He
has also not alleged that his trial counsel repeatedly pressured
and persuaded Fletcher to plead guilty on the basis of
pervasive racial prejudice in the community, nor was there
any indication that Fletcher’s trial counsel held any racial bias
against Fletcher or minorities in general, both of which were
critical to the Eighth Circuit's holding in Thomas.
(Id. at 6.)
The court also held that Petitioner’s claim—that his plea was not knowing,
voluntary, and intelligent because of his reliance of counsel’s comments—was
“contradicted by the record”:
Prior to the change of plea hearing, Fletcher filled out a guilty
plea advisory form in which he acknowledged, among other
things, that his counsel had done everything he asked her to
do. At the change of plea hearing, Fletcher stated that he
understood the charge against him, the nature of the plea
agreement, the penalty he faced, and the rights he was
forfeiting. He further acknowledged that he was satisfied with
his attorney’s representation. We conclude that, under the
circumstances present in this case, a reasonable person with
adequate means would not be willing to retain counsel at his
or her own expense to conduct a further investigation into this
claim. Even with the assistance of counsel, there is no
possibility that Fletcher’s vague assertion could be developed
into a valid claim.
(Id.) For these reasons, the Idaho Court of Appeals affirmed the dismissal of Claim 4(e).
D.

Petitioner Is Not Entitled to Relief on Claim 4(e)

The Idaho Court of Appeals appropriately cited Strickland as the standard
governing IAC claims. (Id. at 4.) Thus, its decision was not contrary to clearlyestablished federal law under § 2254(d)(1).

MEMORANDUM DECISION AND ORDER - 14

Nor was the state court’s rejection of Claim 4(e) an unreasonable application of
clearly-established Supreme Court precedent. Even if the court had misapplied Thomas—
which it did not—Thomas is an Eighth Circuit case and, therefore, does not constitute
clearly-established federal law under AEDPA. Marshall, 569 U.S. at 64. Moreover, the
court of appeals reasonably considered the competing potential interpretations of
counsel’s comments and concluded that Petitioner had presented only “an unsupported,
bare claim that trial counsel made veiled and unsubstantiated allusions to the prevalence
of racial prejudice in the community.” (Id. at 6.) The court also reasonably relied on
Petitioner’s own statements in his guilty plea advisory form and at the change-of-plea
hearing to find that Petitioner understood his situation, was satisfied with his attorney,
and had knowingly decided to plead guilty. Petitioner has not rebutted the presumption of
correctness of that finding under § 2254(e)(1).
Finally, this Court would conclude, even on de novo review, that Petitioner has not
demonstrated Strickland prejudice from counsel’s comments. Petitioner was facing two
counts of lewd conduct with a child under the age of sixteen, each of which carried a
potential sentence of life without parole. See Idaho Code § 18-1508 (stating the
punishment for lewd conduct as “imprison[ment] in the state prison for a term of not
more than life”). The plea agreement limited Petitioner’s maximum sentence to ten years,
and he was eligible for parole after three. Petitioner’s own, self-serving statements that he
would not have pleaded guilty simply do not establish a reasonable probability that he
“would have insisted on going to trial” but for his counsel’s comments. Hill, 474 U.S. at
59.
MEMORANDUM DECISION AND ORDER - 15

4.

Conclusion
The Idaho Court of Appeals’ rejection of Claim 4(e) was not objectively

unreasonable under AEDPA and, therefore, must be denied. Because all of Petitioner’s
other claims have already been dismissed, final judgment will be entered in favor of
Respondent.
ORDER
IT IS ORDERED:
1.

The Amended Petition for Writ of Habeas Corpus (Dkt. 53) is DENIED IN
PART and DISMISSED IN PART, and this entire action is DISMISSED
with prejudice.

2.

The Court does not find its resolution of this habeas matter to be reasonably
debatable, and a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c); Rule 11 of the Rules Governing Section 2254 Cases. If
Petitioner wishes to appeal, he must file a timely notice of appeal with the
Clerk of Court. Petitioner may seek a certificate of appealability from the
Ninth Circuit by filing a request in that court.

DATED: January 2, 2019
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 16