Gonzalez v. Stephens
Filing
19
MEMORANDUM OPINION AND ORDER. Signed by Judge David C Guaderrama. (mc4)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
FREDDY GONZALEZ,
O
§
§
§
TDCJ # 1702969,
Petitioner,
§
V.
§
§
WILLIAM STEPHENS,
Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.
EP-14-CV-431-DCG
§
§
§
§
§
MEMORANDUM OPINION AND ORDER
In a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, Petitioner Freddy
Gonzalez challenges Respondent William Stephens's custody of him pursuant to a
thirty-five-year sentence imposed by the 120th Judicial District Court of El Paso County, Texas,
Gonzalez asserts the trial court erred when it instructed
after a jury found him guilty of murder.'
the jury on the law of self-defense2 and admitted evidence of his bad character.3
contends Gonzalez's "claim lacks
merit."4
Stephens
After carefully reviewing the record, and for the
reasons discussed below, the Court finds Gonzalez is not entitled to § 2254 relief.
The Court
will accordingly deny his petition and decline to certify his issues for appeal.
Case No. 20100D03505 (120th Dist. Ct., El Paso Cnty., Tex. Feb. 11, 2011),
No. 08-1 1-00147-CR, 2012 WL 4101900 (Tex. App.-El Paso Sept. 19, 2012, pet. ref'd).
State
aff'd,
2
v.
Gonzalez,
Pet'r's Pet. 4, Feb. 24, 2015, ECF No.
10. "ECF No." in this context refers to the Electronic
Case Filing number for documents docketed in the instant case. Where a discrepancy exists
between page numbers on filed documents and page numbers assigned by the ECF system, the
Court will use the latter page numbers.
Pet'r's Suppi. Pet. 2, June 12, 2015, ECF No. 15-1.
'
Resp't's Answer l,June 19, 2015, ECFNo.
16.
-1-
BACKGROUND AND PROCEDURAL HISTORY
On July 4, 2009, Gonzalez gathered with other family members to drink beer and enjoy the
holiday at his parents' home in El Paso, Texas. Late in the afternoon, Gonzalez began arguing
with his brother-in-law, Hector Cifuentes, over who would pay for more beer. The argument
degenerated into a fistfight, and several witnesses observed Gonzalez reach to his side and make a
forward motion toward Cifuentes with his hand. When the witnesses separated the two men, they
saw Gonzalez holding a bloody knife and Cifuentes bleeding profusely from his chest. Gonzalez
fled to Mexico. A doctor pronounced Cifuentes dead upon his arrival at a local hospital.
Gonzalez returned to the United States that evening and surrendered to El Paso police officers. A
medical examiner later determined that a stab wound to Cifuentes's chest, which penetrated his
heart, caused his death.
Indicted and tried for murder, Gonzalez testified he did not know how Cifuentes sustained
the chest wound, but suggested "that it must have occurred when Cifuentes was pulling Gonzalez's
knife from his right-front pocket while they both struggled for its
control."5
Gonzalez's
"testimony was uncorroborated, and, more importantly, was contradicted by evidence the State
developed at trial."6 Specifically, a next-door neighbor testified that while he observed Gonzalez
and Cifuentes boxing in the backyard, he did not see them struggling over a knife, as Gonzalez
testified.7
Likewise, one of Gonzalez's friends testified that he saw Gonzalez and Cifuentes come
to blows after arguing, but did not suggest that they struggled over a knife, as Gonzalez
Gonzalez v. State, No. 08-1 1-00147-CR, 2012 WL 4101900, at *1 (Tex. App.-El Paso Sept. 19,
2012, pet. ref'd).
6
Id. at *3
71d.
-2-
maintained. 8
The abstract portion of the trial court's charge contained the following instruction on the
law of self-defense and the use of deadly force in self-defense:
Self-defense: ... a person is justified in using force against
another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the
other's use or attempted use of unlawful force. The actor's belief
that the force was immediately necessary ... is presumed to be
reasonable if the actor:
Did not provoke the person against whom the force was used
and.
Was not otherwise engaged in criminal activity, other than a
Class C misdemeanor that is a violation of a law or ordinance
regulating traffic at the time the force was used.
A person is justified in using deadly force against another:
If the actor would be justified in using force to defend
himself, self-defense; and
When and to the degree the actor reasonably believed that
the deadly force is immediately necessary:
To protect the actor against the other's use or attempted use
of unlawful deadly force, or
To prevent the other's imminent commission of murder.9
The application paragraphs in the charge concerning the law of self-defense read:
But [ifl you further find from the evidence or have a
reasonable doubt thereof that the defendant, Freddy Gonzalez,
reasonably believed or is presumed to have reasonably believed as
viewed from his standpoint alone that deadly force when and to the
degree used, if it was, was immediately necessary to protect himself
against the use or attempted use of unlawful deadly force by the said
Hector Saul Cifuentes, you will acquit the defendant, Freddy
Gonzalez, and say by your verdict not guilty.
And sign Verdict Form D.
81d
8Tr.R. 12-14, June
8, 2015,
ECFNo. 14-18.
-3-
You are further instructed, however, that if you believe from
the evidence beyond a reasonable doubt that at the time and place in
question, ... Cifuentes was not using or attempting to use unlawful
force on the Defendant, or if you believe beyond a reasonable doubt
that the State has proven that the facts giving rise to the presumption
of reasonable belief that force was immediately necessary do not
exist, then you will find against the Defendant on his plea of
self-defense, and say by your verdict guilty.
And sign Verdict Form A.
And not consider any other charges below)0
"Although Gonzalez objected to other parts of the charge, he did not object to the [application]
paragraph[s]" at trial.''
The jury convicted Gonzalez of murder and the trial court sentenced him to thirty-five
years' imprisonment. Gonzalez appealed.
In his first issue on appeal, Gonzalez maintained the second application paragraph
erroneously instructed the jury to convict him without first finding that he had not acted in
self-defense. The Eighth Court of Appeals rejected this argument, explaining that "[c]onsidering
the relationship between the abstract portion of the charge and all of its application paragraphs, the
jury charge ameliorated the purportedly erroneous application paragraph of which Gonzalez
complains and did not, as a whole, misinform the jury on the law of self-defense."12 Furthermore,
the appellate court added, "[t]he weight of the probative evidence that the State developed at trial
refuting Gonzalez's claim of self-defense was such that ... the jury could have found beyond a
'°
Id
17-18.
'
Gonzalezv. State, No. 08-11-00147-CR, 2012 WL 4101900, at *1 (Tex. App.-El Paso Sept. 19,
2012, pet. ref d).
12
Id.
at *2
reasonable doubt that Gonzalez did not have a reasonable belief that deadly force was required."3
In his second issue on appeal, Gonzalez asserted the trial court erred by admitting, over his
objections, evidence of his unrelated bad conduct when he had not placed his reputation at issue.
Specifically, he complained "of the admission of evidence that: (1) he assaulted his wife once and
threatened her with a knife on another occasion; (2) pulled a handgun on a woman and asked her if
she wanted to die; and (3) destroyed a friend's satellite
dish."4
The Eighth Court of Appeals
rejected this argument, reasoning "any error the trial court committed by admitting the
extraneous-offense evidence during the State's case-in-chief was cured when [his brother] testified
that Gonzalez was mellow and peaceful."5
Gonzalez argued in his state application for a writ of habeas corpus that the trial court erred
by failing to instruct the jury that "as an affirmative defense that applicant reasonably believed that
deadly force was immediately necessary during a struggle over a knife to protect himself against
the deceased's unlawful use of deadly force as was raised by the evidence
."'
of Criminal Appeals rejected the argument and denied relief without a written
The Texas Court
order.'7
In his instant petition, Gonzalez claims that the trial court denied him due process and
equal protection when it failed to instruct the jury on the "affirmative defense that [he] reasonably
believed that deadly force was immediately necessary during a struggle over a knife to protect
'
Id.
14
Id. at *4
'
Id. at *6.
16
State Writ App!. 33, WR-82,621-01, at 33, June 8, 2015, ECF No. 14-25.
'
State Writ App!., Action Taken, WR-82,621-01, June 8, 2016, ECF No. 14-23.
-5-
[himself] against the deceased's unlawful use of deadly
force."8
Gonzalez argues the Eighth
Court of Appeals, which issued the last reasoned opinion on the matter, "misapplied" Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985), when it failed "to analyze the harmfulness of
the jury charge
error,"19
In a supplement to his petition, Gonzalez adds the trial court erred when
it allowed the State to introduce evidence
of his prior bad conduct.2°
APPLICABLE LAW
"[C]ollateral review is different from direct review,"21 and the writ of habeas corpus is
"an extraordinary remedy"22 reserved for those petitioners whom "society has grievously
It "is designed to guard against extreme malfunctions in the state criminal justice
wronged."23
system."24
18
It provides an important, but limited, examination of an inmate's conviction and
Pet'r's Pet. 6, Feb. 24, 2015, ECF No.
10.
' Id. at 3. The standard of review differs depending on whether defendant made a timely
objection at trial. Bluitt v. State, 137 S.W.3d 51, 53 (Tex. Crim. App. 2004). If the error was the
subject of a timely objection, reversal is required if there is some harm to defendant as a result of
the error. Tex. Code Crim. Proc. Ann. art. 36.19; Ovalle v. State, 13 S.W .3d 774, 786 (Tex.
Crim. App. 2000); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
If no proper objection was made at trial, reversal is required only if the error is so egregious that the
defendant was denied a fair and impartial trial. Ovalle, 13 S.W.3d at 786; Almanza, 686 S.W.2d
at 171. Errors that result in egregious harm are those that affect the very basis of the case, deprive
the defendant of a valuable right, or vitally affect a defensive theory. Id. at 172. The degree of
harm is determined in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole. Id. at 171.
20
Pet'r's Suppl. Pet. 2, June
21
Brecht v. Abrahamson, 507 U.S. 619, 633 (1993).
22
Id.
23
Id. at 634.
24
Id. (citing Justice
12, 2015, ECF No. 15-1.
Stevens's concurrence in Jackson
v.
Virginia, 443 U.S. 307, 332 n.5 (1979)).
Accordingly, the federal habeas courts' role in reviewing state prisoner petitions is
sentence.25
exceedingly narrow.
"Indeed, federal courts do not sit as courts of appeal and error for state
court
They must generally defer to state court decisions on the
convictions."26
procedural
grounds.28
merits27
and on
They may not grant relief to correct errors of state constitutional,
statutory, or procedural law, unless a federal issue is also present.29
A federal court may grant relief only if "the state court's adjudication of the merits was
'contrary to, or involved an unreasonable application of, clearly established Federal
law,"3°
or
"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."3'
The focus of this well-developed
standard "is not whether a federal court believes the state court's determination was incorrect but
whether that determination was unreasonablea substantially higher threshold."32
Moreover, the federal court's focus is on the state court's ultimate legal conclusion, not
Harrington v. Richter, 562 U.S. 86, 103 (2011) ("[S]tate courts are the principal forum for
asserting constitutional challenges to state convictions.").
25
26
Dillardv. Blackburn, 780 F.2d 509, 513 (5th Cir. 1986).
27
Moore
28
Coleman
v.
Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
v.
Thompson, 501 U.S. 722, 729-30 (1991); Munizv. Johnson, 132 F.3d 214, 220 (5th
Cir. 1998).
29
Estelle
v.
McGuire, 502 U.S. 62, 67-68 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir.
1996).
30
Berghuis v. Thompkins, 560 U.S. 370, 378 (2010) (quoting 28 U.S.C. § 2254(d)(1)).
31
28 U.S.C. § 2254(d)(2) (2012).
32
Schriro
v.
Landrigan, 550 U.S. 465, 473 (2007).
-7-
whether the state court considered and discussed every angle of the
courts are presumed to know and follow the
law."34
evidence.33
Indeed, "state
Factual findings, including credibility
choices, are entitled to the statutory presumption, so long as they are not unreasonable "in light
of the evidence presented in the State court proceeding."35
Further, factual determinations
made by a state court enjoy a presumption of correctness which the petitioner can rebut only by
clear and convincing
evidence.36
The presumption of correctness applies not only to express
findings of fact, but also to "unarticulated findings which are necessary to the state court's
conclusions of mixed law and fact."37
In sum, the federal writ serves as a "guard against extreme malfunctions in the state
criminal justice systems,' not a substitute for ordinary error correction through
this standard is difficult to meet, that is because it was meant to
appeal."38
"If
be."39
ANALYSIS
A.
Jury Instructions
Neal v. Puckett, 286 F.3d 230, 246 (5th Cir. 2002) (en banc); see also Catalan v. Cockrell, 315
F.3d 491, 493 (5th Cir. 2002) ("we review only the state court's decision, not its reasoning or
written opinion").
Woodfordv. Visciotti, 537 U.S. 19,24(2002).
28 U.S.C. § 2254(d)(2).
28 U.S.C. § 2254(e)(1); see Clark v. Quarterman, 457 F.3d 441, 444 (5th Cir. 2006) (noting that
a state court's determination under § 2254(d)(2) is a question of fact).
36
Valdez v. Cockrell, 274 F.3d 941, 948 n.h (5th Cir. 2001).
Harrington v. Richter, 562 U.S. 86, 102-03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307,
332, n.5 (1979) (Stevens, J., concurring in judgment)).
38
Id.
Gonzalez first contends that the trial court erred by failing to properly instruct the jury on
the issue of self-defense. Gonzalez maintains the state trial court denied him due process and
equal protection when it failed to instruct the jury on the "affirmative defense that [he] reasonably
believed that deadly force was immediately necessary during a struggle over a knife to protect
[himself] against the deceased's unlawful use of deadly
force."4°
Because the Eighth Court of Appeals issued "the last reasoned opinion" on this issue, the
Court will review that appellate court's decision to determine whether the denial of this claim was
contrary to or an unreasonable application of federal law.4'
A jury instruction violates due process if it fails to give effect to the requirement that the
State must prove every element of the alleged offense.42 "Nonetheless, not every ambiguity,
inconsistency, or deficiency in a jury instruction rises to the level of a due process violation."43 In
examining a jury instruction, a court must evaluate "whether the ailing instruction ... so infected
the entire trial that the resulting conviction violates due process."44 Furthermore, "'a single
instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of
the overall
charge."45
The Eighth Court of Appeals reviewed the self-defense instruction in the context of the
°
Pet'r's Pet. 6, Feb. 24, 2015, ECF No.
10.
41
Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).
42
Sandstrom v. Montana, 442 U.S. 510, 520-521 (1979).
"
Middleton
i" Estelle
(1973)).
v.
v.
McNeil, 541 U.S. 433, 437 (2004).
McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp
v.
Naughten, 414 U.S. 141, 147
Boyde v. California, 494 U.S. 370, 378 (1990) (quoting Cupp, supra, at 146-147).
-9-
entire record and concluded that, even assuming that the trial court failed to properly apply the law
of self-defense, Gonzalez did not suffer any harm:
Considering the jury charge, the weight of the contested evidence,
arguments of counsel, and voir dire, we hold that Gonzalez has
failed to show that he was egregiously harmed as a result of the
alleged jury-charge error. Accordingly, we overrule his first
issue.46
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall
'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a
direction that all persons similarly situated should be treated
alike."47
In this case, Gonzalez
presents no evidence that he received treatment different from any other criminal defendant.
"Conclusory allegations which are not supported by a statement of specific facts do not warrant
habeas relief."48
Gonzalez has not shown a due process or equal protection violation here. Thus, Gonzalez
has not met his burden of showing the state court's denial of relief with regard to this claim was
contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme
Court.49
In addition, Gonzalez has not shown that the state court's
decision was based on an unreasonable determination of the facts in light of the evidence presented
*4 (Tex. App.-El Paso Sept. 19,
Gonzalez v. State, No. 08-1 1-00147-CR, 2012 WL 4101900, at
2012, pet. ref'd).
46
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe,
457 U.S. 202, 216 (1982)).
Beardv. Clarke, 18 F. App'x 530, 531 (9th Cir. 2001) (quoting James v. Borg, 24 F.3d 20,26
(9th Cir.1994)).
28 U.S.C. § 2254(d).
48
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in the state court proceedings.5° He is not entitled to
§
2254 relief on this claim.
B. Evidence of Prior Bad Conduct
Gonzalez next claims the trial court erred when it allowed the State to introduce evidence
of his prior bad conduct during the cross-examination of his brother.51 This, according to
Gonzalez, allowed "the State to show the jury that petitioner [was] a criminal in general," but
never required it to "produce evidence from any other offenses."52
In order to obtain relief, Gonzalez must show the trial court's error had a "substantial and
injurious effect or influence in determining the jury's verdict."53 In determining harm, a court
should consider a host of factors, including:
the importance of the witness'[s] testimony in the prosecution's
case, whether the testimony was cumulative, the presence or
absence of evidence corroborating or contradicting the testimony of
the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the
prosecution's
case.54
The Court will review the Eighth Court of Appeals' "last reasoned opinion" on this issue to
determine whether the denial of this claim was contrary to or an unreasonable application of
federal
law.55
The appellate court noted that Gonzalez's brother testified during direct
50
Id.
51
Pet'r's Suppl. Pet. 2, June
52
Id.
12, 2015,
ECFNo. 15-1.
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
Sherman v. Scott, 62 F.3d 136, 142 n.6 (5th Cir. 1995).
Ylstv. Nunnemaker, 501 U.S. 797, 803 (1991),
-11-
examination by defense counsel that Gonzalez had a "mellower and more peaceful disposition
than his brothers."56 It explained that "[b]y doing so, [the brother] left a false impression with the
jury that invited the State to respond," as the testimony placed "Gonzalez's character for being
law-abiding and peaceful ... in debate."57 The Eighth Court of Appeals accordingly rejected
Gonzalez's argument that the trial court erred, holding "that the trial court did not abuse its
discretion by admitting the evidence of extraneous misconduct Gonzalez complains of on
appeal."58
The State had a strong case against Gonzalez with multiple witnesses willing to testify
about the altercation between Gonzalez and Cifuentes. The testimony from Gonzalez's brother,
introduced by defense counsel, opened the door to questions concerning Gonzalez's extraneous
offenses. Gonzalez did not contradict the evidence, elicited on cross-examination, that his
brother was not aware that Gonzalez had previously been arrested for assaulting his wife,
threatening his wife with a knife, pulling a handgun on a woman and asking her if she wanted to
die, and destroying a friend's satellite dish.59 The testimony was not critical to the prosecution's
*5 (Tex. App.-El Paso Sept. 19,
Gonzalez v. State, No. 08-11-00147-CR, 2012 WL 4101900, at
2012, pet. ref'd).
56
Id. at *6 (citing Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008) (holding an
argument that the defendant was a pastor and minister and "the real deal" and the "genuine" article
opened the door to questioning about his extraneous offenses); Harrison v. State, 241 S.W.3d 23,
27-28 (Tex. Crim. App. 2007) (holding testimony that the defendant was a "good" and "sweet"
boy opened the door to questioning about his extraneous offenses); Fuentes v. State, 991 S.W.2d
267, 280 (Tex. Crim. App. 1999) (holding answers to questions as to whether the witness had ever
seen a person misbehave or cause trouble clearly raised questions about the person's character)).
58
Id.
Id. at *4
-12-
case.
Under these circumstances Gonzalez has not met his burden of showing that the trial court
erred in permitting the cross-examination of his brother concerning his prior conduct, or that the
evidence had a substantial and injurious effect or influence in determining the jury's verdict.
Thus, Gonzalez has not met his burden of showing the state court's denial of relief with regard to
this claim was contrary to, or involved an unreasonable application of, clearly established federal
law as determined by the Supreme
Court.6°
In addition, Gonzalez has not shown that the state
court's decision was based on an unreasonable determination of the facts in light of the evidence
presented in the state court
proceedings.61
He is not entitled to
§
2254 relief on this claim.
EVIDENTIARY HEARING
A court will hold an evidentiary hearing on a § 2254 petition only when the petitioner
shows either (1) the claim relies on a new, retroactive rule of constitutional law that was previously
unavailable or (2) a factual basis that could not have been previously discovered by the exercise of
due diligence and the facts underlying the claim show by clear and convincing evidence that, but
for the constitutional error, no reasonable jury would have convicted the petitioner.
Gonzalez
does not assert that either prerequisite for a hearing exists in his case. The record is adequate to
dispose fully and fairly of Gonzalez's claim. The Court need inquire no further on collateral
review and an evidentiary hearing is not necessary.
CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a habeas corpus proceeding "[u]nless a circuit
60
61
28 U.S.C.
§
2254(d).
Id.
1-,
-1.)-
justice or judge issues a certificate of appealability."62 Further, appellate review of a habeas
petition is limited to the issues on which a certificate of appealability is granted.63 Although
Gonzalez has not yet filed a notice of appeal, this Court nonetheless must address whether he is
entitled to a certificate of appealability.64
A certificate of appealability "may issue.
showing of the denial of a constitutional
.
right."65
.
only if the applicant has made a substantial
In cases where a district court rejects a
petitioner's constitutional claims on the merits, "{t]he petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong."66
To warrant a grant of the certificate as to claims that the district court rejects solely on
procedural grounds, the petitioner must show both that "jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural
ruling."67
Here, Gonzalez is not entitled to a certificate of appealability because reasonable jurists would not
find debatable the Court's conclusions that he has not made a substantial showing of the denial of
62
Id. §
2253(c)(l)(B) (2012).
See Lackey v. Johnson, 116 F.3d 149, 151(5th Cir. 1997) (holding that, in regard to the denial of
relief in habeas corpus actions, the scope of appellate review is limited to the issues on which a
certificate of appealability is granted).
63
"
See 28 U.S.C. foll. § 2254 Rule 11(a) ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").
28 U.S.C. § 2253(c)(2).
Slackv. McDaniel, 529 U.S. 473,484 (2000); see also United States v. Jones, 287 F.3d 325, 329
(5th Cir. 2002) (applying Slack to a certificate of appealability determination in the context of §
2255 proceedings).
66
67
Slack, 529 U.S. at 484.
-14-
a constitutional right. Accordingly, the Court finds that it should deny Gonzalez a certificate
of
appealability.
CONCLUSION AND ORDERS
The Court concludes that Gonzalez is not entitled to § 2254 relief The Court further concludes
that Gonzalez is not entitled to a certificate of appealability. Accordingly, the Court enters the
following orders:
IT IS ORDERED that Gonzalez's original petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 (ECF No. 10) and supplemental petition (ECF No. 15-1) are DENIED, and his
cause is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Gonzalez is DENIED a certificate of appealability.
IT IS ALSO ORDERED that all pending motions are DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this case.
SO ORDERED.
SIGNED this
Zt
day of February, 201
DAVID C. GUADERRAMA
UNITED STATES DISTRICT JUDGE
-15-
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