Opinion
CV-19-04897-PHX-DJH (DMF)
02-05-2021
DeWayne Brian Wheeler, Petitioner, v. David Shinn, et al., Respondents.
TO THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
DEBORAH M FINE, UNITED STATES MAGISTRATE JUDGE
This matter is on referral to the undersigned pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. (Doc. 5 at 3) DeWayne Brian Wheeler (“Petitioner”) filed his Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (“Petition”) on August 1, 2019. (Doc. 1 at 11) On March 11, 2020, the Court adopted the report and recommendation filed by undersigned, granted Petitioner's motion for stay and abeyance, and ordered the parties to notify the Court on completion of litigation regarding Petitioner's state post-conviction relief (“PCR”) petition. (Doc. 16) After Respondents advised the Court that Petitioner's state PCR action had been closed, Respondents were ordered to file their answer. (Docs. 17, 18) Respondents timely filed their Answer on June 5, 2020 (Doc. 22), and Petitioner timely filed his Reply in July 2020 (Doc. 25). For the reasons set forth below, the undersigned Magistrate Judge recommends that Ground One of the Petition be denied and that Ground Two of the Petition be dismissed with prejudice, that Petitioner's request for an evidentiary hearing be denied, and that a certificate of appealability be denied.
Citation to the record indicates documents as displayed in the official Court electronic document filing system maintained by the District of Arizona under Case No. CV-19-04897-PHX-DJH (DMF).
The Petition was docketed by the Clerk of Court on August 5, 2019 (Doc. 1). The Petition contains a certificate of service indicating that Petitioner placed the Petition in the prison mailing system on August 1, 2019 (Doc. 1 at 11). Pursuant to the prison mailbox rule, the undersigned has used August 1, 2019, as the filing date. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“A petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing.”).
I. BACKGROUND
A. Petitioner's Indictment, Trial, and Sentence
On Petitioner's direct appeal of his conviction and sentence, the Arizona Court of Appeals detailed the following background:
This summary of the allegations against Petitioner is derived from the Arizona Court of Appeals' statement of facts in its memorandum decision in Petitioner's direct appeal of his convictions and sentence. (Doc. 22-1 at 4-5) The appellate court's stated facts are entitled to the presumption of correctness. See 28 U.S.C. § 2254(e)(1); Purkett v. Elem, 514 U.S. 765, 769 (1995) (per curiam) (“In habeas proceedings in federal court, the factual findings of state courts are presumed to be correct.”); Runningeagle v. Ryan, 686 F.3d 758, 763, n.1 (9th Cir. 2012) (rejecting argument that the statement of facts in an Arizona Supreme Court opinion should not be afforded the presumption of correctness).
[Petitioner] approached an undercover officer at a gas station and asked whether he “knew anywhere to get some G.” Based on the officer's training and experience, he knew that “G” meant methamphetamine. The officer told [Petitioner] he was waiting for his dealer. After some time passed, the officer stated his dealer “wasn't going to show up, ” and [Petitioner] responded, “let me see what I can do.” [Petitioner] then got on his phone and told the officer to “come walk.”
The two men left the gas station and walked to an apartment complex. En route, [Petitioner] asked the officer how much G he wanted, and the officer said $20 worth. As the men approached their destination, a marked police car entered the complex. [Petitioner] and the undercover officer waited for the vehicle to leave. The officer then gave [Petitioner] $20, and [Petitioner] went into the complex for approximately ten minutes before returning with a brown bag containing methamphetamine.
[Petitioner] was indicted for sale or transportation of dangerous drugs. After a three-day jury trial, jurors found him guilty as charged and found that the
State had proven that the crime was committed while [Petitioner] was on probation for a felony offense-an aggravating circumstance. [Petitioner] was sentenced to 15.75 years in prison and received presentence incarceration credit of 279 days.(Doc. 22-1 at 4-5, ¶¶ 2-4) Petitioner was given the minimum allowable sentence on this single charge in light of the circumstance that he was on probation when he committed the offense. (Id. at 15, 27)
B. Direct Appeal
On direct appeal, Petitioner's appointed counsel advised the Arizona Court of Appeals that counsel had identified no arguable claim and requested that court to review the record for reversible error. (Doc. 22-1 at 4, 46-52) The court noted that Petitioner was permitted to file a pro per supplemental brief but had not done so. (Id.) In its memorandum decision filed on March 9, 2017, the court of appeals concluded that Petitioner's conviction was supported by substantial evidence and explained that the:
State was required to prove beyond a reasonable doubt that [Petitioner] knowingly sold methamphetamine, a dangerous drug, and that the substance was in fact a dangerous drug. A.R.S. § 13-3407(A)(7). The undercover officer identified [Petitioner] at trial and testified regarding the facts . . . . In addition, the State presented a forensic scientist who tested the substance in the bag and determined it was a usable quantity of methamphetamine.(Id. at 5) Petitioner filed a pro per petition for review with the Arizona Supreme Court on April 5, 2017. (Id. at 58-81) He raised an issue that was not earlier presented to the court of appeals -- that the trial court had impermissibly permitted evidence relating to a claim of misconduct involving weapons involving Petitioner. (Id. at 61, 71-79) The Arizona Supreme Court denied the petition without comment. (Id. at 83)
C. Rule 32 PCR Actions
In November 2016, Petitioner filed identical copies of a PCR notice in the Maricopa County Superior Court. (Doc. 22-1 at 33-41) In July 2017, Petitioner's appointed counsel filed a notice of completion of post-conviction review advising the superior court that counsel had been unable to identify a colorable claim for relief. (Id. at 85-86) Counsel requested an extension of time for Petitioner to file a pro per petition for PCR. (Id.) Petitioner later requested a stay of his PCR action until his direct appeal became final (Id. at 91-93), which the superior court granted, permitting him until 30 days after the court of appeals issued its mandate to file his pro per PCR petition (Id. at 96). Petitioner timely filed his pro per PCR petition in December 2017. (Id. at 107-145)
Petitioner argued that his trial counsel was constitutionally ineffective for allegedly urging Petitioner not to accept a plea offer for a sentence of imprisonment of 5 years. (Id. at 112) Petitioner contended his trial counsel “brainwashed” him into believing he could prevail at trial based on mistaken identity and Petitioner's innocence of the crime, despite his identification as the drug dealer by three police officers. (Id. at 111-112) Petitioner stated that his trial counsel's arguments for mistaken identity lacked any supporting evidence, such as videotaped surveillance filmed at the gas station/convenience store where the drug transaction was initiated. (Id. at 116-118) Additionally, Petitioner asserted that his trial counsel failed to properly discuss with him the merits of his case or provide Petitioner with an adequate risk-benefit analysis regarding whether to accept the plea offer. (Id. at 113-116) Petitioner explained that he had given defense counsel mitigating evidence that resulted in a favorable plea offer and concluded this demonstrated his desire to plead guilty. (Id. at 116)
The superior court dismissed Petitioner's PCR petition in April 2018. (Id. at 167170) First, the superior court rejected Petitioner's claim that defense counsel was ineffective for failing to obtain surveillance videotapes on the day of Petitioner's offense because there was no evidence that any such videotapes existed or were preserved when defense counsel was appointed eight months following the date of the offense. (Id. at 168) The superior court then concluded that defense counsel was not ineffective for advancing the theory of mistaken identity, because the evidence against Petitioner was overwhelming. (Id. at 168) Instead, the court noted it was “impressed with [counsel's] efforts on [Petitioner's] behalf. Having sat through this trial, the Court does not see how any other attorney could have done more on behalf of [Petitioner]-[Petitioner] simply had a lousy case.” (Id. at 168-169)
Addressing Petitioner's argument that his trial counsel had brainwashed him with irrational “assurances of victory, ” the PCR court deemed this claim was “entirely implausible and contradicted by [Petitioner's] previous statements.” (Id. at 169) The court noted that Petitioner was “sophisticated” about criminal defense, given Petitioner's previous charges, and had stated at his sentencing hearing that he had not accepted the plea offer because he did not do the crime and his criminal history did not include any charges for selling drugs. (Id.) The superior court observed that this explanation was not that he had received deficient advice from trial counsel. (Id. at 170) The court also indicated that Petitioner had denied at sentencing spending any time pre-trial with defense counsel and instead had stated that “not once has counsel come to see me prior to my trial for the purposes of collaborating a defense strategy.” (Id. at 169-170) The PCR court concluded Petitioner had failed to establish a material issue of fact or law entitling him to relief under Rule 32. (Id. at 170)
Petitioner filed a petition for review by the Arizona Court of Appeals. (Id. at 172194) In an order filed on August 18, 2018, the court of appeals granted review and denied relief, finding Petitioner failed to demonstrate the superior court had abused its discretion. (Doc. 22-2 at 4-5) Petitioner did not file a petition for review in the Arizona Supreme Court. (Doc. 1 at 5)
Petitioner filed a second PCR notice and a second PCR petition in February 2019. (Id. at 11-25) Citing State v. Pruett, 185 Ariz. 128, 912 P.2d 1357 (App. 1995), Petitioner explained he was pursuing a second PCR action because he was entitled to assert a claim of ineffectiveness of PCR counsel. (Id. at 9) He also argued claims that: (1) appellate and initial PCR counsel were ineffective for not contending that Petitioner's right to a fair trial was violated when a prosecution witness gave prejudicial testimony of Petitioner's prior bad acts and when defense counsel declined to ask for a curative instruction (Id. at 13-20); (2) Martinez v. Ryan, 566 U.S. 1 (2012) applied to prevent preclusion of his claim of ineffectiveness of PCR counsel (Id. at 20-22); and (3) preclusion did not apply because Petitioner was “constructively denied” counsel in his initial PCR action (Id. at 22-24).
In April 2019, the superior court dismissed Petitioner's second PCR action. (Id. at 39-41) The court disagreed that Pruett applied to Petitioner's circumstances because in Pruett the defendant had pled guilty and was challenging the effectiveness of his counsel in his first of-right appeal, which was his initial PCR action. (Id. at 40) The superior court noted that Petitioner was given a trial, that he had appealed his conviction and sentence, and that his initial PCR action was not of-right so that Pruett did not apply. (Id.) The superior court further concluded that Petitioner's claims were precluded pursuant to then-effective Arizona Rules of Criminal Procedure 32.1(a), 32.4(a)(2)(A), and 32.2(a)(2) and (3). Addressing Petitioner's Martinez argument, the superior court explained that Martinez “may permit [Petitioner] to seek relief in federal court concerning his trial counsel but does not entitle him to raise state court claims in an untimely fashion.” (Id. at 41) The superior court found that Petitioner had failed to meet his burden to allege substantial claims and to explain why the claims were untimely. (Id.) The court accordingly dismissed Petitioner's second PCR action. (Id.)
Petitioner filed a petition for review in the Arizona Court of Appeals in May 2019. (Id. at 46-55) The court of appeals granted review and denied relief, concluding that Petitioner had not established the superior court had abused its discretion in dismissing his second PCR action. (Id. at 43-44) Petitioner did not file a petition for review of the court of appeals' disposition. (Doc. 1 at 5)
D. Petitioner's Habeas Claims
Petitioner raises two grounds for relief in the Petition. Under Ground One, Petitioner argues his trial counsel was constitutionally ineffective during plea negotiations to Petitioner's prejudice in violation of the Fifth, Sixth, and Fourteenth Amendments. (Doc. 1 at 6) Petitioner's Ground Two claim is that his appellate and PCR counsel provided ineffective assistance of counsel (“IAC”) by failing to argue that “prejudicial testimony of [Petitioner's] prior bad acts were used in trial, ” that the superior court failed to request a curative instruction, and that Petitioner had been constructively denied effective counsel in his first PCR action. (Id. at 7)
Respondents contend that while Petitioner has exhausted his Ground One claim, his Ground Two claim is procedurally defaulted without excuse. (Doc. 22 at 14-17) Respondents argue that Petitioner's Ground One claim fails on the merits. (Id. at 17-27)
II. LEGAL FRAMEWORK
A. Exhaustion of Remedies and Procedural Default
A state prisoner must properly exhaust all state court remedies before this Court may grant an application for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1), (c); Duncan v. Henry, 513 U.S. 364, 365 (1995); Coleman v. Thompson, 501 U.S. 722, 731 (1991). Arizona prisoners properly exhaust state remedies by fairly presenting claims to the Arizona Court of Appeals in a procedurally appropriate manner. O'Sullivan v. Boerckel, 526 U.S. 838, 843-45 (1999); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999). Arizona's “established appellate review processes” consist of a direct appeal and a PCR proceeding. See Ariz. R. Crim. P. 31, et. seq. and Rule 32, et. seq.; see also Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (“To exhaust one's state court remedies in Arizona, a petitioner must first raise the claim in a direct appeal or collaterally attack his conviction in a petition for post-conviction relief pursuant to Rule 32.”).
To be fairly presented, a claim must include a statement of the operative facts and the specific federal legal theory. Baldwin v. Reese, 541 U.S. 27, 32-33 (2004); Gray v. Netherland, 518 U.S. 152, 162-63 (1996); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (“The mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”). A claim can also be subject to an express or implied procedural bar. Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). An express procedural bar exists if the state court denies or dismisses a claim based on a procedural bar “that is both ‘independent' of the merits of the federal claim and an ‘adequate' basis for the court's decision.” Harris v. Reed, 489 U.S. 255, 260 (1989); Stewart v. Smith, 536 U.S. 856, 860 (2002) (Arizona's “Rule 32.2(a)(3) determinations are independent of federal law because they do not depend upon a federal constitutional ruling on the merits”); Johnson v. Mississippi, 486 U.S. 578, 587 (1988) (“adequate” grounds exist when a state strictly or regularly follows its procedural rule). An implied procedural bar exists if a claim was not fairly presented in state court and no state remedies remain available to the petitioner. Teague v. Lane, 489 U.S. 288, 298-99 (1989); Rose v. Lundy, 455 U.S. 509, 519-20 (1982); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002).
This Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. Schlup v. Delo, 513 U.S. 298, 321 (1995); Coleman, 501 U.S. at 750; Murray v. Carrier, 477 U.S. 478, 495-96 (1986). “Cause” is something that “cannot be fairly attributable” to a petitioner, and a petitioner must show that this “objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule.” Coleman, 501 U.S. at 753 (citation and internal quotation marks omitted). To establish prejudice a “habeas petitioner must show ‘not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.'” Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original). “Such a showing of pervasive actual prejudice can hardly be thought to constitute anything other than a showing that the prisoner was denied ‘fundamental fairness' at trial.” Id.
The miscarriage of justice exception to procedural default “is limited to those extraordinary cases where the petitioner asserts his [actual] innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008) (emphasis in original). To pass through the actual innocence/Schlup gateway, a petitioner must establish his or her factual innocence of the crime and not mere legal insufficiency. See Bousley v. U.S., 523 U.S. 614, 623 (1998); Jaramillo v. Stewart, 340 F.3d 877, 882-83 (9th Cir. 2003). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin v. Perkins, 569 U.S. 383, 399 (2013) (quoting Schlup, 513 U.S. at 327). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Lee v. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (2013) (explaining the significance of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
B. Ineffective Assistance of Counsel
Under clearly established federal law on IAC, a petitioner must show that his counsel's performance was both (a) objectively deficient and (b) caused him prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). Under federal habeas review, this results in a “doubly deferential” review of counsel's performance. Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (explaining that in a 28 U.S.C. § 2254 case, deference is due both to defense counsel's performance and to the state court's ruling). The Court has discretion to determine which Strickland prong to apply first. LaGrand v. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998). A habeas court reviewing a claim of ineffective assistance of counsel must determine “whether there is a reasonable argument that counsel satisfied Strickland's deferential standard, such that the state court's rejection of the IAC claim was not an unreasonable application of Strickland. Relief is warranted only if no reasonable jurist could disagree that the state court erred.” Murray v. Schriro, 746 F.3d 418, 465-66 (9th Cir. 2014) (internal citations and quotations omitted).
C. 28 U.S.C. § 2254 - Legal Standard of Review
On habeas review of claims adjudicated on the merits in a state court proceeding, this Court can only grant relief if the petitioner demonstrates prejudice because the adjudication of the claim either “(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). This is a “‘highly deferential standard for evaluating state court rulings' which demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997)).
Under the “unreasonable application” prong of § 2254(d)(1), a federal habeas court may grant relief where a state court “identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular ... case” or “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407 (2000). For a federal court to find a state court's application of Supreme Court precedent “unreasonable” under § 2254(d)(1), the petitioner must show that the state court's decision was not merely incorrect or erroneous, but “objectively unreasonable.” Id. at 409.
To make a determination pursuant to § 2254(d)(1), the Court first identifies the “clearly established Federal law, ” if any, that governs the sufficiency of the claims on habeas review. “Clearly established” federal law consists of the holdings of the United States Supreme Court which existed at the time the petitioner's state court conviction became final. Id. at 412. The Supreme Court has emphasized that “an unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410 (emphasis in original). Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011). Accordingly, to obtain habeas relief from this Court, Petitioner “must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.
With respect to § 2254(d)(2), a state court decision “based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 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). As the Ninth Circuit has explained, to find that a factual determination is unreasonable under § 2254(d)(2), the court must be “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir. 2004), abrogated on other grounds by Murray v. Schriro, 745 F.3d 984, 1000 (9th Cir. 2014). “This is a daunting standard-one that will be satisfied in relatively few cases.” Id.
The prisoner bears the burden of rebutting the state court's factual findings “by clear and convincing evidence.” § 2254(e)(1). The Supreme Court has not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), but has clarified “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” See Burt v. Titlow, 571 U.S. 12, 18 (2013) (citing Wood, 558 U.S. at 293, 301).
III. DISCUSSION
A. Petitioner's Ground Two Claim is Procedurally Defaulted Without Excuse
The Court may review a procedurally defaulted claim if the petitioner can demonstrate either: (1) cause for the default and actual prejudice to excuse the default, or (2) a miscarriage of justice/actual innocence. Schlup, 513 U.S. at 321; Coleman, 501 U.S. at 750. For the reasons explained below, Petitioner has not established either cause and prejudice or actual innocence to excuse default of his Ground Two claim. ...
1. Petitioner's Ground Two was subject to an express procedural default
Petitioner asserts that his appellate and PCR counsel were “ineffective in failing to raise the issue that prejudicial testimony of prior bad acts [was] used in trial and the Court's failure to request a curative instruction.” (Doc. 1 at 16 (citing the Fifth, Sixth, and Fourteenth Amendments, Martinez, 566 U.S. 1, and Smith v. Robbins, 528 U.S. 259 (2000))). Petitioner claims his appellate counsel and appointed PCR counsel both missed a “strong [Rule] 404(b) issue.” (Id.) The prejudicial testimony Petitioner cites involved the prosecution's examination of Phoenix Police Officer Anton Diefert, who witnessed Petitioner selling methamphetamine to undercover Detective Williams and then observed Petitioner a couple of hours later in the same vicinity riding a bicycle and carrying a machete when Petitioner was stopped by an Officer Podea. (Doc. 22-2 at 62, 64, R.T. 06/29/2016) The prosecutor asked Officer Diefert if he had written a report and what the report addressed. (Id. at 64) Officer Diefert answered that the report was regarding “misconduct involving weapons” and only had to do with the machete. (Id.)
Arizona Rule of Evidence 404(b) provides generally that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”
Shortly after this testimony and without the jury present, Petitioner's counsel moved for a mistrial based on Officer Diefert's mention of misconduct involving weapons, arguing that this mention could significantly prejudice Petitioner and his right to a fair trial. (Id. at 69-70) Defense counsel explained he did not immediately object to the officer's testimony because he did not wish to draw the jury's attention to the officer's improper mention of a weapons charge. (Id. at 70) While the prosecutor noted he had instructed Officer Diefert “not to go into that” and that counsel and the court had “talked about it previously with [a] motion in limine[, ]” he argued a mistrial would not be appropriate and that a curative instruction could be given. (Id. at 70-71) Petitioner's counsel objected to a curative instruction because it would direct the jury's attention to Officer Diefert's comment and could alert jurors to the fact that Petitioner had a prior conviction, particularly because Petitioner did not intend to testify. (Id. at 71)
The superior court judge advised the parties he would not grant a mistrial on this ground and was inclined to offer a curative instruction. (Id. at 73) Defense counsel stated he was not comfortable with the court giving a curative instruction. The following discussion ensued:
THE COURT: Well, I understand you're not comfortable with it, but I think that will cure it if you're willing to accept it. If you would rather just leave it be, we can do that too. And I'll give you a chance to think about it.
COUNSEL: I don't need to think about it any longer. I appreciate the offer, but I - I would rather nothing be said at this point then.
THE COURT: All right. Then nothing more will be said about it. All right.
COUNSEL: Thank you.(Id. at 73)
Petitioner failed to raise this claim in his pro per initial PCR proceeding. (Doc. 22 1 at 107-120) Instead, Petitioner first raised the Ground Two argument in his second PCR action. (Doc. 22-2 at 13) As noted, the superior court found this claim was precluded pursuant to Arizona Rules of Criminal Procedure 32.2(a) and 32.4(a)(2) and did not qualify under the preclusion-avoiding exceptions set forth in Rule 32.1(d) through (h). (Id. at 40) The Arizona Court of Appeals found no abuse of discretion by the superior court. (Id. at 44) Thus, Petitioner's Ground Two claim was expressly precluded by the Arizona courts.
Under the version of Rule 32.1(d) through (h) then effective, a claim could be excepted from preclusion if: (d) the defendant was in custody after his sentence had expired; (e) it was probable that newly-discovered evidence existed and would have changed the verdict or sentence; (f) failure to file a timely claim was not the defendant's fault; (g) a significant change in law applicable to the defendant's case that would likely have overturned his conviction or sentence; and (h) the defendant could demonstrate by clear and convincing evidence that the underlying facts would be sufficient to show that a reasonable fact-finder would not have found the defendant guilty beyond a reasonable doubt.
Petitioner recognizes that the superior court denied his Ground Two argument as untimely and precluded. (Doc. 1 at 7) He contends the claim was nonetheless properly raised in his second PCR action. (Id.) Petitioner cites Martinez v. Ryan as cause for preclusion of this claim. (Id. at 16, 19)
2. Petitioner fails to establish cause for his procedural default of his Ground Two claim
In Martinez v. Ryan, 566 U.S. 1 (2012), the United States Supreme Court determined that in states such as Arizona where a defendant's first opportunity under the state's procedural law to assert a claim of ineffectiveness of trial counsel was during his initial state collateral review proceeding, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17. Specifically, the Supreme Court instructed:
[w]e consequently read Coleman as containing an exception, allowing a federal habeas court to find “cause, ” thereby excusing a defendant's procedural default, where (1) the claim of “ineffective assistance of trial counsel” was a “substantial” claim; (2) the “cause” consisted of there being “no counsel” or only “ineffective” counsel during the state collateral review proceeding; (3) the state collateral review proceeding was the “initial” review proceeding in respect to the “ineffective-assistance-of-trial-counsel claim”; and (4) state law requires that an “ineffective assistance of trial counsel [claim] ... be raised in an initial-review collateral proceeding.”Trevino v. Thaler, 569 U.S. 413, 423 (2013) (quoting Martinez, 566 U.S. at 14-15). Martinez recognized a narrow set of circumstances in which the procedural default of a claim of ineffective assistance of trial counsel can be excused because of the ineffectiveness of counsel in PCR proceedings. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012). See also Davila v. Davis, __ U.S.__, 137 S.Ct. 2058, 2062-63 (2017) (stating that Martinez applies “in a single context-where the State effectively requires a defendant to bring [an ineffective assistance of trial counsel] claim in state postconviction proceedings rather than on direct appeal.”).
Martinez does not apply here because Petitioner's Ground Two argument does not involve a claim of IAC by trial counsel. Instead, he argues that his appellate counsel and counsel in his initial PCR action themselves were “ineffective in failing to raise prejudicial testimony regarding the Petitioner's prior acts and prior bad acts, prejudicial evidence under 404(b).” Petitioner noted that his trial attorney had “requested a mistrial on this issue but PCR and Appellate Counsel failed to raise this claim so the Petitioner filed a second Notice of PCR and filed an actual merits brief regarding this issue.” (Doc. 1 at 7) In each discussion of Ground Two in his Petition and Reply, Petitioner asserts only the ineffectiveness of his appellate counsel and PCR counsel for their own failures to raise the Rule 404(b) issue relating to Officer Diefert's mention of misconduct involving weapons. (Doc. 1 at 16, 17, 19; Doc. 25 at 1-2, 9, 12) The Supreme Court has expressly recognized that Martinez's “narrow exception to Coleman's general rule . . . treats ineffective assistance by a prisoner's state postconviction counsel as cause to overcome the default of a single claim-ineffective assistance of trial counsel . . . .” Davila, U.S. at, 137 S.Ct. at 2062. Accordingly, Petitioner fails to establish that Martinez provides cause for default of his Ground Two claim. Although both cause and prejudice must be shown to excuse a procedural default, the Court need not examine the existence of prejudice if the petitioner fails to establish cause. See Smith v. Murray, 477 U.S. 527, 533 (1986).
3. Petitioner does not establish he is actually innocent
In his Reply, Petitioner states that “[b]ased on the record it is obvious that [Petitioner] is actually innocent of the charge since police described a completely different person during the course of the alleged drug transaction someone with a “drooping eye, ” a very distinct feature.” (Doc. 25 at 5-6)
To establish actual innocence and gain entry through the Schlup gateway, Petitioner is required to demonstrate his factual innocence of the crimes rather than mere legal insufficiency, and that ‘“in light of all the evidence, '” ‘“it is more likely than not that no reasonable juror would have convicted him.'” Bousley, 523 U.S. at 623 (quoting Schlup, 523 at 327-28 (citation and internal quotation marks omitted)). A petitioner “must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327)). “To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence.” Schlup, 513 U.S. at 324. See also Leev. Lampert, 653 F.3d 929, 945 (9th Cir. 2011); McQuiggin, 569 U.S. at 399 (explaining the significance of an “[u]nexplained delay in presenting new evidence”). Because of “the rarity of such evidence, in virtually every case, the allegation of actual innocence has been summarily rejected.” Shumway v. Payne, 223 F.3d 982, 990 (9th Cir. 2000) (citing Calderon v. Thompson, 523 U.S. 538, 559 (1998)).
Petitioner does not provide this Court with any new reliable evidence. He asserts only that police officer testimony described the individual participating in the drug transaction as having a drooping eye. (Doc. 25 at 5) Petitioner states he does not have a drooping eye. (Id. at 5-6) This evidence is not new. In the superior court's order dismissing Petitioner's initial PCR action, the court discussed Petitioner's appearance, explaining that Petitioner was “well aware of his appearance. He does indeed have a unique appearance, complete with a droopy eye. It is not the worst droopy eye the Court has ever seen (which is presumably why [defense counsel] argued the police must be thinking of someone else), but it is droopy.” (Doc. 22-1 at 169)
Moreover, even if this evidence were new, Petitioner's own arguments to the superior court in his December 2017 initial pro per PCR petition forcefully support the conclusion that based on the State's evidence it isn't “more likely than not that no reasonable juror would have convicted him.” (Id. at 111-118) In his first PCR proceedings, Petitioner argued that his trial counsel was ineffective in taking Petitioner's case to trial on a theory of mistaken identity. (Id.) Among Petitioner's arguments were that: (1) his counsel did not have or present any evidence raising an inference of reasonable doubt; (2) three police officers with more than incidental or minimum contact with Petitioner testified that Petitioner was the individual who participated in the sale of methamphetamine to Detective Williams; (3) it was unreasonable to conclude that the police officers would perjure themselves on the stand just to falsely convict Petitioner; (4) Detective Williams' testimony indicated he had close and ongoing contact with Petitioner during the drug sale and his full attention was on Petitioner; and (5) the state's evidence included that Petitioner identified himself at the time he was arrested with a date of birth, and that driver's license records, a color photograph, and the fact that Petitioner wore the same clothes at the time of the drug deal and when he was encountered by police officers two hours later in the same vicinity together allowed the State to “establish 100% reliability that [Petitioner] was guilty.” (Id.) These arguments drawn from the evidence in Petitioner's case severely undercut Petitioner's argument that he is actually innocent of his charges and prevent a showing that it is more likely than not that no reasonable juror would have convicted him.
For the reasons set forth above, undersigned recommends the Court find that Petitioner's Ground Two claim is precluded from habeas review as procedurally defaulted without excuse.
B. Ground One Fails on the Merits
Petitioner asserts under Ground One that his trial counsel was constitutionally ineffective for advising Petitioner to reject a favorable plea offer of five years' imprisonment and to instead proceed to trial where Petitioner was found guilty and was subsequently sentenced to a mandatory minimum term of 15.75 years' imprisonment. (Doc. 1 at 6) Petitioner further contends that trial counsel failed to review the evidence with Petitioner and did not provide a “true risk-benefit analysis with respect to the 5-year plea bargain.” (Id.) Petitioner alleges there is no question that he was prejudiced by trial counsel's representation in this regard. (Id. at 15)
Petitioner asserted his Ground One claim in his initial pro per petition. (Doc. 22-1 at 112, 115) The superior court rejected Petitioner's argument. (Id. at 169) The court emphasized that Petitioner's claim was not credible for several reasons, including Petitioner's sophistication about criminal defense due to his previous charges and, importantly, because of Petitioner's testimony at sentencing that he rejected the plea offer because he did not commit the crime and he had no criminal history of selling drugs. (Id. at 169-170) Petitioner asserted the claim again in his petition for review in the Arizona Court of Appeals. (Id. at 186-187, 188-189) The court of appeals concluded the superior court's decision was not an abuse of discretion. (Doc. 22-2 at 4-5)
As noted in Section II(B) above, the clearly established federal law on IAC is set forth in Strickland. Under Strickland, a petitioner must show that his counsel's performance was both objectively deficient (the performance prong), and the deficient performance caused him prejudice (the prejudice prong). Strickland, 466 U.S. at 687. Federal habeas review provides a “doubly deferential” review of counsel's performance, Pinholster, 563 U.S. at 190, and relief may be obtained “only if no reasonable jurist could disagree that the state court erred.” Murray, 746 F.3d at 465-66.
Petitioner cited to Strickland and Lafler v. Cooper, 566 U.S. 156, 160 (2012) in his initial PCR action to support his argument of IAC by his trial counsel. (Doc. 22-1 at 113, 119) The state also cited these cases in its responsive arguments. (Id. at 152-155) In addressing Petitioner's claims of IAC, the superior court did not cite to Strickland or any other federal or state case. (Id. at 167-170) The superior court found the evidence did not support Petitioner's contentions that his trial counsel's representation was deficient: (1) by not obtaining any videotape footage showing his encounters with the police; (2) at trial, including by urging a theory of mistaken identity; and (3) by allegedly counseling Petitioner to go to trial. (Id.) The superior court concluded that Petitioner failed to assert a “claim presenting a material issue of fact or law that would entitle [Petitioner] to relief under Rule 32.” (Id. at 170) The superior court's decision was the last reasoned decision on Petitioner's claim, as the Arizona Court of Appeals granted review and denied relief based on its summary finding that Petitioner had not established the superior court abused its discretion. (Doc. 22-2 at 5)
Petitioner's citation to Lafler does not assist his argument. As in Petitioner's case, Lafler involved a claim of IAC by a defendant whose trial counsel advised him to not accept a plea offer and “further proceedings led to a less favorable outcome.” Lafler, 566 U.S. at 160. However, unlike Petitioner's case, the parties in Lafler conceded defense counsel's ineffectiveness under Strickland's performance prong and the Supreme Court decided only the prejudice prong. Here, undersigned recommends the Court hold the state courts' decisions on the merits of Petitioner's Ground One claim do not entitle him to relief because Petitioner fails to establish he is entitled to relief under Strickland's performance prong.
If the state court has already denied the claims of ineffective assistance of counsel, a federal habeas court may grant relief only if it finds the state court's decision was contrary to, or an unreasonable application of the Strickland standards. See Yarborough v. Gentry, 540 U.S. 1, 5 (2003). The Court's evaluation of counsel's performance must be “highly deferential” and must avoid “the distorting effects of hindsight” by analyzing the challenged decision from counsel's perspective at the time. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable assistance. Id.
The record reflects that, although the superior court did not cite Strickland, it applied the principles of that decision to Petitioner's claims of IAC. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (holding that the AEDPA does not require a state court to cite relevant Supreme Court decisions in resolving constitutional claims and, it “does not even require awareness of [them], so long as neither the reasoning nor the result of the statecourt decision contradicts them.”). The superior court explained it was not convinced that defense counsel had urged Petitioner to reject the plea offer and go to trial, primarily because Petitioner himself had advised the court at sentencing why he had not taken a plea, which was that he avowed that he did not commit the crime. (Doc. 22-1 at 169)
The record supports the superior court's position. The transcript of Petitioner's post-trial sentencing hearing indicates that Petitioner claimed he had never seen Detective Williams until Williams appeared in court on the first day of Petitioner's trial. (Id. at 18 (R.T. 08/025/2016)) Instead of denouncing the unsuccessful defense trial strategy of mistaken identity in his personal statement to the superior court, Petitioner embraced the strategy. (Id. at 18-26) He argued that surveillance videotape from either of the gas stations/convenience stores where he encountered police officers on the day of the drug deal would have established that he was not the drug dealer. (Id. at 19-20) Petitioner told the superior court, “I was informally offered five years and I didn't take it simply because I didn't do the crime, nor was there anything in my criminal history that had anything to do with selling drugs. I have had absolutely no affiliations with methamphetamine nor people who use it.” (Id. at 22) Similarly, Petitioner's probation violation report includes Petitioner's statement that he did not deal in drugs, his identification as a drug dealer was not correct, he did not have a droopy eye, and the police had “lied about it all.” (Doc. 222 at 77)
The superior court addressed Petitioner's “sole claim for relief' which was “based on the allegation that his counsel was deficient” and specifically concluded that counsel was not ineffective for failing to obtain surveillance videotapes, that counsel's trial performance was not deficient, and the record was “simply incompatible with [Petitioner's] claim that he was brainwashed into not accepting a plea.” (Doc. 22-1 at 168-170) The superior court did not expressly address prejudice resulting from Petitioner's allegations of deficient performance. However, the court mentioned that the surveillance videotape evidence generally was “of relatively poor quality, and even if it existed, there is no reason to believe that it would have materially affected the jury's determination in the circumstances of this case (which included numerous eye-witness identifications).”
The superior court further indicated that Petitioner had contradicted his own PCR argument that defense counsel had urged him to reject the plea offer and instead pursue a mistaken identity defense. (Id. at 169) The court noted that Petitioner's statement at his sentencing that while he had anxiously awaited his trial, his counsel never came to see him to collaborate with him on a defense strategy. (Id. (citing Doc. 22-1 at 22-23))
Noteworthy is that the defense strategy employed at trial, mistaken identity, was consistent with Petitioner's other sentencing hearing statements strenuously denying that he was the person whom the police had encountered.
“A court considering a claim of ineffective assistance must apply a ‘strong presumption' that counsel's representation was within the ‘wide range' of reasonable professional assistance.” Harrington, 562 U.S. at 104 (quoting Strickland, 466 U.S. at 689). “The challenger's burden is to show ‘that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Id. (quoting Strickland, 466 U.S. at 687). Additionally, under AEDPA review “[a] state court's determination that a claim lacks merit precludes habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Given Petitioner's statements after trial relied on by the superior court, including Petitioner's statements at sentencing that he did not accept the plea offer because he was innocent, undersigned concludes Petitioner has failed to show that his trial counsel's performance was objectively deficient under Strickland's performance prong.
A claim for IAC under Strickland requires a showing both that counsel's performance was objectively deficient and that the deficient performance caused him prejudice. Strickland, 466 U.S. at 687. The Supreme Court instructed that although in Strickland it discussed the performance prong before addressing the prejudice prong, “there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697. See also LaGrandv. Stewart, 133 F.3d 1253, 1270 (9th Cir. 1998) (“a court need not determine whether defendant was prejudiced by counsel's alleged deficiencies if it determines that counsel's performance was not deficient.”).
Having concluded that Petitioner's trial counsel did not provide objectively deficient performance, the superior court did not need to discuss prejudice to establish that Petitioner's counsel was not constitutionally ineffective under Strickland. Similarly, undersigned further recommends the Court need not address Strickland's prejudice prong regarding Petitioner's Ground One claim.
For the reasons discussed above, undersigned recommends the Court find that Petitioner has not established the superior court's decision on Ground One was contrary to or involved “an unreasonable application of' Strickland, or that the decision “was based on an unreasonable determination of the facts” given the “evidence presented in [Petitioner's] State court proceedings.” 28 U.S.C. § 2254(d). ... ...
C. Petitioner's Request for an Evidentiary Hearing
With respect to Ground One, Petitioner states that the superior court “did not conduct an evidentiary hearing on this claim so the [Petitioner could develop a factual record of this issue; so the [P]etitioner was denied an opportunity to argue this claim in an evidentiary hearing forum.” (Doc. 1 at 13) Additionally, Petitioner asserts that the superior court “unreasonably rejected the [Petitioner's claim without first conducting an evidentiary hearing on the disputed facts regarding the ineffective assistance of counsel during the plea negotiation stage[]” and requests the Court to grant and conduct an evidentiary hearing on his Ground One claim. (Id. at 15) In his Reply, Petitioner requests an evidentiary hearing on both Grounds One and Two. (Doc. 25 at 2) He asserts that “[s]ince the State courts denied [Petitioner] an evidentiary hearing, he was unable to develop more elaborate facts on his constitutional claims to be able to call his trial attorney to the stand and question him regarding his performance and handling of [Petitioner's] case.” (Id. at 5) He further states that as to Ground One an evidentiary hearing is warranted because “the State court's decision to reject this claim was clearly unreasonable.” (Id. at 8) Petitioner, however, declares that “the issue that appellate and PCR missed [under Ground Two] regarding 404(b) prejudicial testimony was clearly on the record and both counsel failed to raise the issue via direct appeal and [Petitioner's] first PCR proceedings.” (Id. at 12)
AEDPA imposes “an express limitation on the power of a federal court to grant an evidentiary hearing and [has] reduced considerably the degree of the district court's discretion.” Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999) (internal quotation marks and citation omitted). Title 28 U.S.C. § 2254(e)(2) provides that if a habeas petitioner “has failed to develop the factual basis of a claim in State court proceedings, ” no evidentiary hearing on the claim will be held in federal court unless the petitioner shows that:
(A) the claim relies on--(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.28 U.S.C. § 2254(e)(2). Federal courts have clarified that review under § 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster, 563 U.S. at 181 (holding that “review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits”); Gulbrandson v. Ryan, 738 F.3d 976, 993 n.6 (9th Cir. 2013) (stating that Pinholster and the statutory text make clear that the limitation on evidentiary hearings applies to § 2254(d)(2) claims as well as § 2254(d)(1) claims).
In Gulbrandson, the Ninth Circuit Court of Appeals held that a federal district court did not abuse its discretion in denying a habeas petitioner's request for an evidentiary hearing regarding the petitioner's ineffective assistance of counsel claims. The Court explained that “the state court's rejections of these claims were neither contrary to, nor involved unreasonable applications, of Strickland. Thus, Pinholster bars a habeas court from any further factual development on these claims.” Gulbrandson, 738 F.3d at 994; see also Stokley v. Ryan, 659 F.3d 802, 807 (9th Cir. 2011) (finding a habeas petitioner was not entitled to an evidentiary hearing because the petitioner failed to present a colorable ineffective assistance of counsel claim). Further, “if the record refutes the [habeas] applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007) (a hearing is not required if the allegations would not entitle the petitioner to relief under § 2254(d)).
Undersigned finds the record regarding Petitioner's Ground One claim must be limited to the record that was before the superior court because that court adjudicated the claim on the merits. Pinholster, 563 U.S. at 181. Undersigned further concludes that the record in Petitioner's case is adequately developed with respect to Ground Two, a conclusion that is supported by Petitioner's statement that the record clearly presents the Rule 404(b) issue that Petitioner asserts his appellate and PCR counsel “missed.” (Doc. 25 at 12) Further, Petitioner failed to suggest what additional relevant evidence would be adduced at an evidentiary hearing that would enable him to prove the petition's factual allegations. Undersigned finds that the Ground Two issue is readily resolved based on the state court record. Landrigan, 550 U.S. at 474 (“if the record . . . precludes habeas relief, a district court is not required to hold an evidentiary hearing). See Section III(A) above, finding that Petitioner's Ground Two claim is precluded, without excuse.
Accordingly, it is recommended that the Court deny Petitioner's request for an evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (finding “a district court is not obligated to hold evidentiary hearings to further develop the factual record” when the record is “amply developed” and explaining that “[d]istrict courts have limited resources (especially time), and to require them to conduct further evidentiary hearings when there is already sufficient evidence in the record to make the relevant determination is needlessly wasteful”).
IV. CONCLUSION
For the reasons set forth above, undersigned concludes that Petitioner procedurally defaulted Ground Two of the Petition without excuse and that Petitioner has failed to establish that habeas relief is warranted on the merits of Ground One. The undersigned therefore recommends that Ground One of the Petition be denied and that Ground Two be dismissed with prejudice. Undersigned further recommends the Court deny Petitioner's request for an evidentiary hearing.
Assuming the recommendations herein are followed in the District Judge's judgment, undersigned recommends that a certificate of appealability be denied because reasonable jurists would not find it debatable whether the District Judge was correct in her procedural ruling on Ground Two, and because Petitioner has not “made a substantial showing of the denial of a constitutional right, ” 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's assessment of Petitioner's Ground One claim rejected on constitutional grounds to be “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). To the extent the District Judge adopts this Report and Recommendation regarding the Petition, a certificate of appealability should be denied.
Accordingly, IT IS THEREFORE RECOMMENDED that DeWayne Brian Wheeler's Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody (Doc. 1) be denied as to Ground One and dismissed with prejudice as to Ground Two.
IT IS FURTHER RECOMMENDED that the Court deny Petitioner's request for an evidentiary hearing.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability be denied because dismissal of Ground Two of the Petition is justified by a plain procedural bar and reasonable jurists would not find the procedural ruling debatable, and because as to denial of Ground One, Petitioner has not “made a substantial showing of the denial of a constitutional right, ” 28 U.S.C. § 2253(c)(2), and jurists of reason would not find the Court's assessment of Petitioner's constitutional claim “debatable or wrong, ” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual ... ... ... determination of the Magistrate Judge may be considered 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. See Fed.R.Civ.P. 72.