Davis v. Hill

Filing 49

FINDINGS & RECOMMENDATION: The Petition for Writ of Habeas Corpus (# 1 ) should be denied, and a judgment should be entered dismissing this case with prejudice. This recommendation is not an order that is immediately appealable to the N inth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections. Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de n ovo consideration of the factual issue, and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. Signed on July 2nd, 2009 by Magistrate Judge John Jelderks. (eo)

IN THE UNITED STATES DISTRICT COURT FOR WAYNE DAVIS, C i v i l No. 0 6 - 1 4 9 7 - J E Petitioner, v. JEAN H I L L , FINDINGS AND RECOMMENDATION Respondent. T h o m a s J . H e s t e r , OS3 No. 9 3 1 8 4 Assistant Federal PUJlic Defender 1 0 1 S.W. M a i n S t r e e t . S u i t e 1 7 0 0 Portland, Oregon 972)4 Attorney for Pe:itioner J o h n R. K r o g e r Attorney General K r i s t e n E. B o y d # 0 0 2 L 0 2 Assistant Attorney G,!neral Department of Justico! 1 1 6 2 C o u r t S t r e e t NE Salem, Oregon 97310 Attorneys for R,!spondent
T~.E

DISTRICT OF OREGON

1 - FINDINGS AND RE':OMMENDATION

JELDERKS, M a g i s t r a t e J u d g " . Peti tioner brings t1is habeas corpus case pursuant to 28

U . S . C . § 2 2 5 4 . He c h a l l e n ' J e s t h e l e g a l i t y o f h i s u n d e r l y i n g s t a t e court convictions on the bases and that: (2) (1) trial counsel was

consti tutionally ineffective;

the consecutive sentences judge and not a

were unlawfully based on facts determined by a

jury. For the reasons which follow, the Petition for Writ of Habeas Corpus (#1) should be den.ied.
BACKGROUND

The victim of p e t i t i , ) n e r ' s offenses was "JT," a sixteen year o l d g i r l who r a n a w a y f r o m a d r u g t r e a t m e n t p r o g r a m i n S e a t t l e a n d met petitioner and his co.lleague at a Greyhound station while she panhandled for a bus ric.e to h e r m o t h e r ' s home in Bellingham.

Respondent's Exhibit 104, p. 21-28. The three planned to t r a v e l to California together.

Id. a t 27. To buy a used c a r for the t r i p JT Id. at 35-36. In
and petitioner

prostituted herself under petitioner's guidance.

mid-November 1998 the group traveled to Portland,

directed JT to commit f u r : h e r a c t s of p r o s t i t u t i o n . Id. a t 34-38. In her testimony JT detililed s i x encounters with customers in

Portland, as well as p e t i t i o n e r ' s demands t h a t she earn more money on the s t r e e t s .

I d . a t 3 8 - 3 9 , 4 5 - 4 7 . On N o v e m b e r 1 3 , 1 9 9 8 J T w a s
leading to the arrest of

arrested by a Portland police officer,

petitioner and his co1leaques. Id. at 53-54.

2 - FINDINGS AND RECOMMENDATION

Based o n t h e s e

facts,

a

jury convicted p e t i t i o n e r on

six

counts each of Compelling Prostitution and Promoting Prostitution, and one count each of D',li very of a Controlled Substance to a Minor, Contributing to the Sexual Delinquency of a Minor and

C r i m i n a l C o n s p i r a c y t o Pr<Jmote P r o s t i t u t i o n . R e s p o n d e n t ' s E x h i b i t 101, p. 1-2 and Exhibit 105, p. 52-54. The t r i a l court sentenced

p e t i t i o n e r t o 7 0 m o n t h s or. t h e f i r s t t w o c o n v i c t i o n s o f C o m p e l l i n g Prosti tution and 4 0
month~;

on the t h i r d , with a l l sentences to run

consecutively. Respondent's Exhibit 105, p. 82-85. Peti tioner consecuti ve established a took a direct ',ere appeal where he because argued that the the

sentences

unlawful

evidence

single instance of Compelling

Prostitution under

Or.Rev.Stat. § 167.017(1) (b). Respondent's Exhibit 108, p. 14-15. Specifically, he theorhed that Or.Rev.Stat.
§

167.017(1) (b)

criminalizes continuing ccnduct, not discrete events. rd. at 13-14. The Court of Appeals r e j e c t e d t h i s argument and affirmed the t r i a l court's decision without opinion, denied review. State v. Davis, and the Oregon Supreme Court 127, P.3d 228, rev.

181 Or.App.

d e n i e d , 334 Or. 288, 49 P . 3 d 797.
P e t i t i o n e r l a t e r f i l e d for post-conviction r e l i e f ("PCR") in Malheur County raising
se~~ral

claims of ineffective assistance of

c o u n s e l . T h e PCR t r i a l c o u r t d e n i e d r e l i e f . R e s p o n d e n t ' s E x h i b i t 120, p. 1 4 . On a p p e a l p e t i t i o n e r r a i s e d t h e c l a i m f o r t h e f i r s t

time that the t r i a l courl:' s imposition of consecutive sentences

3 - FINDINGS AND RECOMMENDATION

violated h i s S i x t h A m e n d m e n t r i g h t t o t r i a l b y j u r y , b e c a u s e t h e trial judge himself found the facts necessary to support the

Compelling Prostitution sentences. Respondent's Exhibit 122, p. 1920. The Oregon Court of A:}peals affirmed the lower court decision wi thout opinion, and the ('regon Supreme Court denied review. Davis
v. Hill,

205 Or.App. 568, 135 P.3d 859, rev. denied,

341 Or. 244,

142 P.3d 72. Petitioner filed for habeas relief on October 23, 2006,

raising two grounds for r,=lief: 1. P e t i t i o n e r was denied e f f e c t i v e a s s i s t a n c e of t r i a l counsel when counsel f a i l e d ':0: a. Obj e c t to the s u f f i c i e n c y of the evidence to s u s t a i n convictions f,n multiple counts of Compelling Prostitution ani Promoting Prostitution, rather than a single merged c')unt; Object to the lack of a proper foundation to the charge of Delivery of a Controlled Substance to a Minor; and R e q u e s t a j u r y i~struction r a i s i n g a n a f f i r m a t i v e d e f e n s e as to peti tione::' s belief about the victim's age.

b. c. 2.

The t r i a l court unla''ifully imposed consecutive sentences for Compelling Prostitution without submitting the supporting facts for each sentence to a jury. Respondent asks thi" Court to deny r e l i e f on the Petition

because:

(1) Grounds l(b) and l ( c ) are unargued and unsupported by ( 2 ) G r o u n d Tw<) w a s n o t f a i r l y p r e s e n t e d t o t h e O r e g o n

the record;

s t a t e c o u r t s a n d i s now p : : o c e d u r a l l y d e f a u l t e d ; a n d ( 3 ) t h e s t a t e c o u r t d e c i s i o n s d e n y i n g n , l i e f o n G r o u n d s O n e a n d Two a r e e n t i t l e d

4 - FINDINGS AND RECOMMENDATION

to d e f e r e n c e

and were U.S.

n2ither

"contrary to"

nor

"unreasonable

applications of"

Sup~eme

Court precedent.

DISCUSSION I. Standard of Review.

Habeas

relief

will

only

be

granted

when

the

state

court

decision was "contrary to, or involved an unreasonable application of, clearly established
F~deral

law, as determined by the Supreme
§

Court of the United S t a t e s . " 28 U.S.C.

2254 (d) (1).

Under the

" c o n t r a r y t o " s t a n d a r d , a f e d e r a l c o u r t may g r a n t h a b e a s r e l i e f i f a state court "applies a rule that contradicts the governing law set forth" or i f the fact! are "materially indistinguishable from a decision of [the Supreme]
it

Court

and

[the

state

court]

nevertheless arrives at

result different from

[Supreme Court]

precedent." Williams v. Taylor,

529 U.S. 362, 406 (2000).

Under the "unreasonable application" standard, habeas r e l i e f may b e g r a n t e d " i f t h e s t a " : e c o u r t i d e n t i f i e s t h e c o r r e c t g o v e r n i n g legal principle from :the Supreme] Court's decisions but

unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. In other words, the s t a t e court's decision must be objectively unreasonable, not merely incorrect, erroneous, or

o t h e r w i s e f a l l i n g s h o r t 0:: a " r e a s o n a b l e j u r i s t " s t a n d a r d . I d . a t
409-11.

When t h e s t a t e c o u r t d e c i s i o n p r o v i d e s n o r e a s o n i n g t o s u p p o r t its conclusion, the fejeral habeas court must conduct an

5 - FINDINGS AND RECOMMENDATION

independent r e v i e w o f t h e r e c o r d t o d e t e r m i n e w h e t h e r t h e d e c i s i o n was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In such an instance, this Court still lends

deference to the s t a t e c o u r t ' s decision. P i r t l e v. Morgan, 313 F.3d 1 1 6 0 , 1 1 6 7 ( 9 t h C i r . 2 0 0 2 ) . B e c a u s e t h e PCR t r i a l c o u r t p r o v i d e d n o reasoning for i t s decision, t h i s court shall conduct an independent review of the record.

II.

Unargued Claims
P e t i t i o n e r ' s Support:.ng Memorandum (#42) p r e s e n t s no argument

to support Grounds l(b} and l(c}, nor does he attempt to challenge the S t a t e ' s arguments in the Response t h a t those claims do not e n t i t l e him to r e l i e f . This court has nevertheless considered these unargued claims and finds t h a t they do not e n t i t l e p e t i t i o n e r to r e l i e f . See 28 U.S.C. § 2248 ( " [ t ] h e a l l e g a t i o n s of a r e t u r n t o the writ of habeas corpus or of an answer to an order t o show cause i n a habeas corpus proceedinq, i f not traversed, shall be accepted as true except to the extent that the judge finds from the evidence that they are not true").

III. Exhaustion and Procedural Default
Before petitioning for federal habeas relief, a petitioner

must properly exhaust his federal constitutional claims by " f a i r l y presenting" them to the s : a t e ' s highest court on d i r e c t appeal or

c o l l a t e r a l proceedings. Rc,se v. Lundy, 455 U.S. 509, 515-19 (1982); 28 U.S.C.
§

2 2 5 4 ( b ) ( 1 ) (AI

and

(c).

The p e t i t i o n e r must provide

6 - FINDINGS AND RE':OMMENDATION

state c o u r t s w i t h " o n e f l . l l o p p o r t u n i t y t o r e s o l v e a n y [ f e d e r a l ] constitutional issues by invoking one complete round of the S t a t e ' s established appellate rev:.ew process." 0 ' S u l l i van v. Boerckel, 526 U.S. 838, 845 (1999);

Ca:;ey v. Moore,

386 F.3d 896,

915-16

(9th

C i r . 2 0 0 4 ) . To f a i r l y p r e s , m t a f e d e r a l c l a i m t o a s t a t e c o u r t , t h e claim must explicitly refer to the federal constitutional guarantee and relevant case law, along with the facts entitling petitioner to r e l i e f . Baldwin v. Reese, 541 U.S. 27, 33 (2004). P e t i t i o n e r must also present the claim to the state courts in a procedural context where i t s merits w i l l be considered. C a s t i l l e v. Peoples, 489 U.S. 346, 351 (1989). Claims not fairly procedurally defaulted. (2000). A federal
p.~esented

to the s t a t e court are deemed Carpenter, not 529 U.S. 446, 451

Edwards v.
court Jnless to

habeas claim

will

review a

procedurally "cause and the state

defaulted federal prejudice" for

the p e t i t i o n e r shows present the claim to

his

failing

courts, or the p e t i t i o n e r can show t h a t f a i l u r e t o review the claim will result in a "fundamental miscarriage of justice." Id. In t h i s case p e t i tiorler f i r s t raised his due process claim on PCR a p p e a l , Oregon law, n o t o n d i r e c : r e v i e w o r i n h i s PCR p e t i t i o n . a petitioner waives any claim on appeal Under he

that

reasonably could have raised a t sentencing, on direct review, or in h i s PCR p e t i t i o n .

Palmer v.

State,

318 Or.

352,

355-56

(1994);

Makinson v. Lambert, 199

O~.App

418, 420-21 (2005). Petitioner thus

7 - FINDINGS AND RECOMMENDATION

waived h i s d u e p r o c e s s c : a i m o n p e R a p p e a l . review to the Oregon Supreme Court, G r o u n d Two c l a i m w a s proper procedural follows state not

In his petition for

petitioner admitted that his the state courts 122, p. in the 16. It

presented to Respondent's

context.

Exhibit

t h a t G r o u n d Two The
§

"as not also

f a i r l y presented to the Oregon procedurally defaulted because

courts.

claim is

Or.Rev.Stat.

138.550(2) bars petitioner from resubmitting this 971 F.2d 329, 333-34

claim to the state court. Carriger v. Lewis, (9th Cir. 1992). Finally. petitioner has

not attempted to show nor does he allege

"cause and prejudice" to excuse the default, that the convictions res Jl ted in a

"fundamental miscarriage of

j u s t i c e . " Carpenter, 529 (I.S. a t 451. For a l l these reasons Ground Two i s i n e l i g i b l e f o r a r " v i e w o n i t s m e r i t s . 1
IV. The I n e f f e c t i v e Assi:3tance o f Counsel Claim

In Ground l ( a ) p e t i t i o n e r argues t h a t his t r i a l attorney was constitutionally ineffective e v i d e ~ce t o by failing to object to the of

sufficiency of the

sustain multiple

convictions

Compelling Prostitution. ,:pecifically, he argues that he compelled JT to enter a l i f e of p r c s t i t u t i o n a single time, and should not

have been convicted of six counts of Compelling Prostitution for

' E v e n i f G r o u n d Two w e r e e l i g i b l e f o r r e v i e w , t h e c l a i m w o u l d fail because State of Jregon v. Ice, 129 S.Ct. 711 (2009) e s t a b l i s h e s t h a t the Sixth Amendment does not p r o h i b i t the s t a t e s from assigning the fact-finding responsibility for consecutive sentences to judges rathe:c than juries. 8 - F I N D I N G S AND RE<:OMMENDATION

each

of

JT' s

sexual

en,;ounters,

thereby

leading

to

multiple

punishments. The Ninth C i r c u i t hcs held t h a t a habeas p e t i t i o n e r cannot prevail on an ineffective assistance of counsel claim arising out of a non-capital sentencir,g proceeding because there i s no c l e a r l y established federal law cn the issue. 1155, 1158 (9th Cir.2006J;
Davis v. v. Grigas,

443 F.3d 397 F.3d

Cooper-Smith

Palmateer,

1236, 1244 (9th Cir.2005), But even i f t h i s court assumes t h a t the constitutional right to effective assistance of counsel applies to non-capital sentencing proceedings, petitioner's claim fails. In Strickland v. Washington the U.S. Supreme Court established a two-part test to determine whether a petitioner has suffered i n e f f e c t i v e a s s i s t a n c e of counsel. F i r s t the p e t i t i o n e r must show that counsel's
performanc~

did not meet an objective standard of

competency. Strickland v. Washington, 466 U.S. 668, 686-687 (1984). The Court urged t h a t must be highly
"ju~icial

scrutiny of counsel's performance with the a "strong wide presumption of that

deferent:.al," falls

counsel's

conduct

within

range

reasonable

professional assistance," counsel's performance
Id.

because of the unreasonable Performance

temptation to condemn their be defense was from

as
68~1.

when must

unsuccessful.

at

evaluated

counsel's perspective a t ':he time of the alleged e r r o r . Kimmelman
v. Morrison,

477

U.S.

365,

381

(1986).

The

burden

is

on

the

9 - FINDINGS AND RE':OMMENDATION

petitioner t o r e b u t t h i s p r e s u m p t i o n o f c o m p e t e n c y . S t r i c k l a n d , 4 6 6

u.s.

at 689. Second, the p e t i t i o n e r must show t h a t counsel's performance "that there is a reasonable probability

prejudiced his defense, that,

but for counsel's unprofessional errors the result of the would have been different."
Id.

proceeding

at

694.

The

Court

defines a reasonable prot ability as "a probability sufficient to undermine confidence i n t:1e outcome." Id. In this case petitioner claims trial counsel was

constitutionally

ineffect~.ve

for failing to recognize the allegedly

unlawful consecutive sent'onces for Compelling Prostitution and to argue for merger. The peR t r i a l court rej ected this both at argument, and on the

stating appeal,

that on

"representaj:ion of the and appella:e they

counsel, were test

trial

level, the
14.

reasonable of the

under

circumstances

meet

authorities."

Respondent's Exhibit 120, p.

T h e PCR j u d g m e n t r e p e a t e d t h a t

"representation of t r i a l and a p p e l l a t e counsel was reasonable under the circumstances." Respo:1dent' s Exhibit 121. The t h r u s t of p e t i t i o n e r ' s argument i s t h a t Or.Rev.Stat.
§

167.017(1) (b)

was unlaˇ"fully applied against him for a l l

six

instances of the v i c t i m ' s a c t s of p r o s t i t u t i o n , when the s t a t u t e only punishes the ini tia.l engagement in, or the enterprise of,

10 -

FINDINGS AND ReCOMMENDATION

prosti t u t i o n .

2

Respondent's Exhibit 122,

p.

12.

Under the f i r s t

Strickland element, petit:.oner suggests that counsel fell short of
the objective standard by failing to advance t h i s interpretation of Or.Rev.Stat. § 167.017(1) (b). Petitioner bases his argument on the l e g i s l a t i v e history of Or.Rev.Stat. § 167.017(1) (b). Respondent's Exhibit 115, p. 12-13. The Commentary to the Prop:>sed Oregon Criminal Code notes t h a t "the harmful effects of a life of prostitution an early age are cumulative reform and and

progressive;

involvement

at

makes

r e h a b i l i t a t i o n more d i f f i c u l t . " Proposed Oregon Criminal Code, 224

Commentary § 252

(1970).

P e t i t i o n e r i n t e r p r e t s the Commentary to

suggest that the legislat.ure intended to punish a defendant for inducing or causing a minc,r into a p a t t e r n of p r o s t i t u t i o n , rather than each i n d i v i d u a l a c t . P e t i t i o n e r ' s Supporting Memorandum (#42) . However, the l e g i s l a t . u r e s t a t e s t h a t § 167.017 (1) (b) "affirms certain public policies," and preventing "the harmful effects of a life of prostitution" minors from i s but one of these, along with protecting offenses, and allowing minors'

sexually mot.ivated

natural resistance to encage in prostitution to develop as they mature. Commentary § 252. There i s no evidence t h a t the provision was intended to i n s u l a t e from prosecution any additional a c t s of

'Or. Rev. Stat. § 167.(117(1) (b) provides i n relevant p a r t , "(1) A person commits the crime of compelling prostitution i f the person knowingly: (b) IndU<;es o r causes a person under 18 years of age to engage in prostituˇ:ion." 1 1 - FINDINGS AND RlcCOMMENDATION

Compelling P r o s t i t u t i o n b 3 y o n d t h e f i r s t a c t . I n k e e p i n g w i t h t h e l e g i s l a t i v e purpose of pl'otecting minors from sexually motivated offenses, the s t a t u t e more e f f e c t i v e l y deters criminals by applying every time t h a t a defendant induces a minor t o corrunit an a c t of prostitution, rather than by punishing only the f i r s t inducement. P e t i t i o n e r r e l i e s o n O r e g o n v . Wood t o s u p p o r t h i s r e a d i n g o f the legislative history. In language l i f t e d from the legislative

h i s t o r y , t h e Wood c o u r t e m p h a s i z e d t h a t " t h e p u r p o s e o f [ § 1 6 7 . 0 1 7 ] is to provide maximum p::otection for minors from the harmful,

c u m u l a t i v e e f f e c t s o f a l i f e o f p r o s t i t u t i o n . " Wood, 3 4 O r . A p p 5 6 9 , 573 (1978). But t h i s passsge c o n s t i t u t e s d i c t a . The legal issue in

Wood c o n c e r n e d w h e t h e r a

jury instruction correctly disregarded a

minor's consent as a defense under Or.Rev.Stat. § 167.017(1) (b).

Wood d o e s
consecutive

not

speak dire ctly to the sentences for

issue of the propriety of counts of Compelling

multiple

Prostitution. There Respondent is also a textual that argument against
§

petitioner. 167.017(1) (b)

correctly

notes

Or.Rev.Stat.

punishes the act of "pros':itution," which the legislature defines at Or.Rev.Stat. § 167.007, in relevant part: (1) A person corrunit:; the crime o f p r o s t i t u t i o n i f : (a) The person engages in or o f f e r s or agrees to engage in sexual c:onduct or sexual contact in return for a fee .

1 2 - F I N D I N G S AND Rl;COMMENDATION

Taken t o g e t h e r , O r . R e v . S t 3 t . § 1 6 7 . 0 0 7 a n d O r . R e v . S t a t . § 1 6 7 . 0 1 7 punish a person f o r Compelling P r o s t i t u t i o n who knowingly induces or causes a person unde:: 18 years of age to engage in sexual

conduct or sexual contact in return for a fee. For a single victim, the defendant faces as many s e p a r a t e l y punishable offenses as there are violations of Or.Rev.Stat. § 167.017. Each violation must be separated "by a suffici"nt pause in the defendant's criminal

conduct to afford the defendant

an opportunity to renounce the

criminal intent." Or.Rev.3tat. § 161.067(3). A "sufficient pause" has been recognized to be as short as five minutes.

Sta te v.

Stafford, 157 Or.App. 445, 460 (1998). Generally i t i s the minimum
amount of time in which
th~

defendant has the "opportunity to pause

and r e f l e c t on his conduc:." Id. These statutory provLsions present a strong textual argument a g a i n s t p e t i t i o n e r . He c o r l c e d e s t h a t " c r e d i t i n g J T ' s t e s t i m o n y , h e induced or caused her tc Supporting
§

engage p.

in prostitution." 11. By applying it

Petitioner's Or. Rev. S t a t . follows that

Memorandum and
§

(#42), to

167.007

167.01'/

this

statement,

p e t i t i o n e r induced or cau"ed JT t o engage in six d i s c r e t e a c t s of p r o s t i t u t i o n . As f o r t h e " " u f f i c i e n t pause" element o f Or. Rev. S t a t .
§

167.017,

the to

trial stop

court

found or

that

"there JT

was to

plenty engage

of in are

opportunities prostitution] appropriate."

[inducing th"refore,

causing

and,

consecutive 107, p.

sentences 82.

Respondent's

Exhibit

Accordingly,

1 3 - F I N D I N G S AND RICCOMMENDATION

peti t i o n e r w a s c o r r e c t l y c h a r g e d w i t h s i x c o u n t s o f C o m p e l l i n g Prostitution. In sum, Or. Rev. Stilt. § 167.017 i s unambiguous in t h a t i t in every

punishes discrete instances of Compelling Prostitution,

instance when a defendant induces or causes the victim to engage in prosti tution. Oregon case Petitioner is unable to direct this court to any which conclL.des
singl~ cas'~.

that

the

legislature

intended the

statute to impose a

conviction for Compelling Prostitution Because there i s no basis to believe

on the facts of t h i s

t h a t such an objection wOlld have prevailed, counsel was under no obligation to raise i t . Accordingly, upon an independent review of the record, the PCR trLal court did not unreasonably apply

Strickland t o the f a c t s of p e t i t i o n e r ' s case when i t denied r e l i e f

on t h i s claim.
CONCLUSION

For the reasons dis,;ussed above, Habeas Corpus (#1) shoulj be denied,

the Petition for Writ of and a judgment should be

entered dismissing t h i s C'lse with prejudice.
SCHEDULING ORDER

This

recommendation

is

not

an

order

that

is

immediately

a p p e a l a b l e t o t h e N i n t h C i r c u i t C o u r t o f A p p e a l s . Any n o t i c e o f appeal pursuant to Rule 4(a) (1), Federal Rules of Appellate

Procedure, should not be filed until entry of the d i s t r i c t court's judgment or appealable
orc~r.

The p a r t i e s s h a l l have ten (10) days

14 - FINDINGS AND

RI~COMMENDATION

from t h e d a t e o f s e r v i c e o f a c o p y o f t h i s r e c o m m e n d a t i o n w i t h i n which to f i l e specific written objections. Failure to timely f i l e objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo

consideration of the factlal issue, and will constitute a waiver of a party's right to order or judgment
appell~te

review of the findings of fact in an pursuant to the Magistrate Judge's

enter"d

recommendation. DATED t h i s 2 n d d a y o f J u l y , 2 0 0 9 .

Magistrate Judge

1 5 - FINDINGS AND RECOMMENDATION