Smith
v.
Yates

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIAOct 3, 2011
NO. ED CV 11-163-ABC(E) (C.D. Cal. Oct. 3, 2011)

NO. ED CV 11-163-ABC(E)

10-03-2011

JEFFREY YUSUF SMITH, Petitioner, v. JAMES A. YATES, Warden, Respondent.


ORDER ADOPTING FINDINGS,

CONCLUSIONS AND RECOMMENDATIONS OF

UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Report and Recommendation of United States Magistrate Judge. The Court approves and adopts the Magistrate Judge's Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Report and Recommendation and the Judgment herein on Petitioner, and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

AUDREY B. COLLINS


UNITED STATES DISTRICT JUDGE

JEFFREY YUSUF SMITH, Petitioner,

v.

JAMES A. YATES, Warden, Respondent.

NO. ED CV 11-163-ABC(E)

REPORT AND RECOMMENDATION OF

UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable Audrey B. Collins, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on January 26, 2011. Respondent filed an Answer on May 16, 2011, contending, inter alia, that the Petition is untimely. Petitioner filed a Reply on August 10, 2011.

BACKGROUND

On December 14, 2005, in San Bernardino Superior Court case number FSB-33594, Petitioner pled guilty to one count of evading a peace officer in violation of California Vehicle Code section 2800.2(a), and admitted suffering two prior convictions qualifying as strikes under California's Three Strikes Law, California Penal Code sections 667(b) - (i) and 1170.12(a) - (d) (Answer, Ex. A, pp. 2-4, 18-19; Reporter's Transcript, Respondent's Lodgment 1 ["R.T."], pp. 14-15). On January 11, 2006, the court sentenced Petitioner to a term of twenty-five years to life (Answer, Ex. A, pp. 16-17; R.T. 19-20).

The Three Strikes Law consists of two nearly identical statutory schemes. The earlier provision, enacted by the Legislature, was passed as an urgency measure, and is codified as California Penal Code §§ 667(b) - (i) (eff. March 7, 1994). The later provision, an initiative statute, is embodied in California Penal Code § 1170.12 (eff. Nov. 9, 1994). See generally People v. Superior Court (Romero), 13 Cal. 4th 497, 504-05, 53 Cal. Rptr. 2d 789, 917 P.2d 628 (1996). Petitioner was sentenced under both versions (see Answer, Ex. A, p. 16).

Petitioner did not appeal. On May 15, 2007, Petitioner filed his first habeas corpus petition in the San Bernardino Superior Court, bearing a signature date of January 4, 2007 (Respondent's Lodgment 2). The Superior Court denied the petition on August 16, 2007 (Respondent's Lodgment 3). On June 1, 2009, Petitioner filed a habeas corpus petition in the California Supreme Court, bearing a signature date of May 26, 2009 (Respondent's Lodgment 4). The California Supreme Court denied the petition on October 14, 2009.

Although the Petition states that Petitioner filed an appeal, the Petition references only two habeas petitions filed in the San Bernardino Superior Court, not an appeal filed in the Court of Appeal (see Petition, p. 2). The Court takes judicial notice of the dockets of the California Courts of Appeal, which do not show that any person named Jeffrey Smith filed an appeal in case number FSB-33594. See Porter v. Ollison, 620 F.3d 952, 954-55 n.l (9th Cir. 2010) (taking judicial notice of state court dockets).

The record does not contain a copy of the California Supreme Court's denial order. The Court takes judicial notice of the California Supreme Court's docket in In re Jeffrey Y. Smith, case number S173337, available on the California Supreme Court's website at www.courts.ca.gov . (attached). See Porter v. Ollison, 620 F.3d at 954-55 n.l. The docket shows that the California Supreme Court denied the petition on October 14, 2009 (Lodgment 5).

FACTUAL BACKGROUND

The State charged Petitioner with burglary, evading an officer and receiving stolen property, and alleged that Petitioner had suffered two prior strikes (Answer, Ex. A, p. 106; Reporter's Transcript, Respondent's Lodgment 1 ["R.T."], p. 2). The charges allegedly arose out of an incident in which a sheriff's deputy, in full uniform and driving a marked patrol car, observed Petitioner, wearing a mask, enter a car in the parking lot of a restaurant (R.T. 6). A vehicle pursuit ensued, during which Petitioner drove in excess of 80 miles an hour, weaving between lanes (R.T. 6). When the chase ended, the deputy arrested Petitioner (R.T. 6). Petitioner was photographed at the scene (id., p. 7). Petitioner's car contained masks, gloves, a crowbar, a cash register, money drawers, and a medicine bottle bearing the name of the restaurant owner (R.T. 7-9). At the restaurant, deputies found shattered windows and doors, broken glass, and a cash register and spilled money on the floor (R.T. 8).

The summary of the evidence is taken from the prosecutor's description of the evidence at the change of plea hearing (R.T. 6-9).

On October 10, 2002, the court found Petitioner incompetent to stand trial (Answer, Ex. A, p. 90). On November 14, 2002, the court committed Petitioner to the Patton State Hospital until his competence could be restored (Answer, Ex. A, p. 88). On February 10, 2003, the court found Petitioner competent to stand trial (Answer, Ex. A, p. 85).

Petitioner alleges that a doctor at the Patton State Hospital said that Petitioner would not be at Patton long because Petitioner was "nothing but a three striker trying to play mentally ill" (Reply, p. 2).

On March 14, 2003, Petitioner entered a plea of not guilty by reason of insanity (Answer, Ex. A, p. 83). On October 20, 2005, the court informed Petitioner that the prosecutor was offering a plea agreement whereby Petitioner would plead guilty to one count and receive a sentence of twenty-five years to life (Answer, Ex. A, p. 23). On December 14, 2005, the court reiterated the offer (R.T. 2). The court said: "It would be a three strike admitted two strikes and pleading [sic] to one count for 25-to-life" (R.T. 2). In a discussion with Petitioner, the court stated:

You need to know if convicted, it looks to me like you would probably end up with in excess of 50 years to life. The district attorney is offering half of that. That's abig reduction.

(R.T. 3). The court also said it was willing to recommend the post-sentencing housing placement requested by Petitioner's counsel (R.T. 3-4). The court said that if Petitioner declined the offer, Petitioner could "receive easily 50 years to life, two separate 25-to-life sentences" (R.T. 4).

The court viewed the burglary and the evading counts as two separate crimes warranting consecutive sentencing (R.T. 4).

Petitioner said: "I'll sign it. I'll sign it" (R.T. 4). Petitioner said that he "had no choice" and was "running on fear" (R.T. 4). The court told Petitioner that, if Petitioner were convicted, the law would require "very, very serious and high sentencing" (R.T. 4). Petitioner then conferred with his counsel (R.T. 5).

Thereafter, the prosecutor described the prosecution's evidence against Petitioner (R.T. 6-9). The court told Petitioner that the court "could easily envision a scenario where a jury or trier of fact might convict you" (R.T. 9). Petitioner said he wanted to enter the plea (R.T. 9).

Following another discussion between Petitioner and his counsel, the court showed Petitioner a change of plea form indicating that Petitioner would plead guilty to evading an officer and would admit the two strikes (R.T. 10). The court said the sentence on the evading charge "would ordinarily carry 16 months, two years or three years," but that the strikes would elevate the sentence to twenty-five years to life (R.T. 10). Petitioner corrected his date of birth on the form, and confirmed that the form bore Petitioner's signature and initials (R.T. 10-11). Petitioner said he had no questions concerning the form, his rights, or his sentencing, and said he had resolved all questions in consultation with his attorney (R.T. 11). The court advised Petitioner of his constitutional rights, and Petitioner said he understood those rights (R.T. 11-12). Petitioner said that no one had made any other promises or representations to Petitioner in exchange for his plea, and that no one had threatened or forced Petitioner to enter the plea (R.T. 12-13). Petitioner confirmed that he had had sufficient time to consult with counsel regarding his rights, his potential defenses, and the possible penalties, punishments and consequences of the plea (R.T. 13). Petitioner's counsel acknowledged that counsel had reviewed the plea agreement with Petitioner and that counsel believed Petitioner understood his rights (R.T. 14). The court found that Petitioner knowingly, freely and voluntarily waived his constitutional rights (R.T. 14).

Petitioner then pled guilty to the evading charge and admitted the two strike allegations (R.T. 15). On January 11, 2006, the court sentenced Petitioner to a term of twenty-five years to life (R.T. 19-20).

PETITIONER'S CONTENTIONS

Petitioner contends:

1. The court sentenced Petitioner to a term of twenty-five years to life to which Petitioner assertedly never agreed; the attorneys and the judge allegedly should have known that Petitioner suffered from purported mental health problems allegedly rendering him unable to understand some of the proceedings or the meaning of words such as "recommend"; and

2. The prosecutor allegedly pled guilty for Petitioner, and, prior to sentencing, Petitioner's counsel assertedly told Petitioner that the court would send Petitioner back to the Patton State Hospital.

DISCUSSION

The "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), signed into law April 24, 1996, amended 28 U.S.C. section 2244 to provide a one-year statute of limitations governing habeas petitions filed by state prisoners:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.


Because Petitioner did not appeal, his conviction became final on March 13, 2006, sixty days from the date of sentencing. See Mendoza v. Carey, 449 F.3d 1065, 1067 (9th Cir. 2006); People v. Knauer, 206 Cal. App. 3d 1124, 1127 & n.2, 253 Cal. Rptr. 910 (1988); former Cal. Ct. R. 30.1(a). Therefore, the statute of limitations commenced running on March 14, 2006, unless subsections B, C or D of 28 U.S.C. section 2244(d)(1) apply in the present case. See 28 U.S.C. § 2244(d)(1)(A); Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (AEDPA statute of limitations is not tolled between the conviction's finality and the filing of the first state collateral challenge).

Effective January 1, 2007, California Rule of Court 8.308(a) superseded former California Rule of Court 30.1 with regard to appeals in criminal cases.

Subsection B of section 2244(d)(1)(B) is inapplicable. Petitioner has failed to demonstrate that any illegal conduct by the state or those acting for the state "made it impossible for him to file a timely § 2254 petition in federal court." See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).

Subsection C of section 2244(d)(1) is also inapplicable. Petitioner does not assert any claim based on a constitutional right "newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See Dodd v. United States, 545 U.S. 353, 360 (2005) (construing identical language in section 2255 as expressing "clear" congressional intent that delayed accrual inapplicable unless the United States Supreme Court itself has made the new rule retroactive); Tyler v. Cain, 533 U.S. 656, 664-68 (2001) (for purposes of second or successive motions under 28 U.S.C. section 2255, a new rule is made retroactive to cases on collateral review only if the Supreme Court itself holds the new rule to be retroactive); Peterson v. Cain, 302 F.3d 508, 511-15 (5th Cir. 2002), cert. denied, 537 U.S. 1118 (2003) (applying anti-retroactivity principles of Teacrue v. Lane, 489 U.S. 288 (1989) to analysis of delayed accrual rule contained in 28 U.S.C. section 2244(d)(1)(C)).

Petitioner does not argue, and the record does not show, that section 2244(d)(1)(D) furnishes an accrual date later than March 14, 2006 for Petitioner's claims. Under section 2244(d)(1)(D), "[t]ime begins when the prisoner knows (or through diligence could discover) the important facts, not when the prisoner recognizes their legal significance." Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001) (citation and internal quotations omitted); see United States v. Pollard, 416 F.3d 48, 55 (D.D.C. 2005), cert. denied, 547 U.S. 1021 (2006) (habeas petitioner's alleged "ignorance of the law until an illuminating conversation with an attorney or fellow prisoner" does not satisfy the requirements of section 2244(b)(1)(D)). Petitioner plainly knew or should have known, by March 14, 2006, the "important facts" on which he bases his claims concerning his plea agreement, the plea proceedings and Petitioner's sentence.

Therefore, the statute of limitations began running on March 14, 2006, and, absent tolling, would have expired on March 13, 2007. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.), cert. denied, 534 U.S. 978 (2001). Petitioner constructively filed the present Petition on December 16, 2010. Absent sufficient tolling, the Petition is untimely.

See Porter v. Ollison, 620 F.3d at 958 (prison mailbox rule applies to federal habeas petitions).

Section 2244(d)(2) tolls the statute of limitations during the pendency of "a properly filed application for State post-conviction or other collateral review." Petitioner is not entitled to statutory tolling between the date his conviction became final and the date he filed his Superior Court petition. See Nino v. Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999), cert. denied, 529 U.S. 1104 (2000). The statute of limitations thus ran for 297 days until January 4, 2007, when Petitioner filed his Superior Court petition, and was tolled until the Superior Court denied the petition on August 16, 2007. As of August 16, 2007, 68 days remained in the limitations period.

The Court assumes arguendo that Petitioner filed his Superior Court petition on its signature date, January 4, 2007. See Porter v. Ollison, 62 0 F.3d at 958 (prison mailbox rule applies to state habeas petitions); Stillman v. LaMarque, 319 F.3d 1199, 1201-02 (9th Cir. 2003) (same).

Petitioner waited almost two years before filing his California Supreme Court petition on May 26, 2009. In certain circumstances a habeas petitioner may be entitled to "gap tolling" between the denial of a state habeas petition and the filing of a "properly filed" habeas petition in a higher state court. See Carey v. Saffold, 53 6 U.S. 214, 219-21 (2002). However, an untimely state habeas petition is not a "properly filed" petition for purposes of statutory tolling under section 2244(d)(2). Pace v. DiGualielmo, 544 U.S. 408, 412-13 (2005); see also Allen v. Siebert, 552 U.S. 3, 6-7 (2007); Carey v. Saffold, 536 U.S. at 225 (California state habeas petition filed after unreasonable delay not "pending" for purposes of section 2244(d)(2)); see also Evans v. Chavis, 546 U.S. 189, 191 (2006) ("The time that an application for state postconviction review is 'pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law") (citation omitted).

The Court assumes arguendo that Petitioner filed his California Supreme Court petition on its signature date, May 26, 2009. See Porter v. Ollison, 620 F.3d at 958 (prison mailbox rule applies to state habeas petitions); Stillman v. LaMarque, 319 F.3d 1199, 1201-02 (9th Cir. 2003) (same).
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The California Supreme Court denied Petitioner's petition without comment. Where, as here, a state court denies a habeas petition without a "clear indication" that the petition was timely or untimely, a federal habeas court "must itself examine the delay in each case and determine what the state courts would have held in respect to timeliness." Evans v. Chavis, 546 U.S. at 198; see also Banjo v. Ayers, 614 F.3d 964, 969 (9th Cir. 2010), cert. denied, ___ U.S. ___, 2011 WL 2437057 (2011) ("We cannot infer from a decision on the merits, or a decision without explanation, that the California court concluded that the petition was timely.") (citation omitted).

In California, a petition is timely if filed within a "reasonable time" after the petitioner learns of the grounds for relief. Carey v. Saffold, 536 U.S. at 235 (citations omitted). In Evans v. Chavis, the petitioner delayed over three years before filing his California Supreme Court habeas petition, and failed to provide justification for six months of this delay. Evans v. Chavis, 546 U.S. at 192, 201. The Supreme Court deemed the petition untimely, finding "no authority suggesting, . . . [or] any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay 'reasonable.'" Id. at 201.

The Ninth Circuit has held unreasonable gaps much shorter than the gap in the present case. See Velasquez v. Kirkland. 63 9 F.3d 964, 968 (9th Cir. 2011) (unjustified gaps of 91 and 81 days unreasonable); Banjo v. Ayers, 614 F.3d at 970 (unexplained gap of 146 days unreasonable); Chaffer v. Prosper. 592 F.3d 1046, 1048 (9th Cir. 2010) (unjustified gaps of 115 and 101 days unreasonable). In accordance with these authorities, Petitioner is not entitled to gap tolling in the present case.

Petitioner's subsequently-filed California Supreme Court petition cannot revive the expired statute. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir.), cert. denied, 540 U.S. 924 (2003) ("section 2244(d) does not permit the reinitiation of the limitations period that has ended before the state petition was filed"); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001), cert. denied, 538 U.S. 949 (2003) (filing of state habeas petition "well after the AEDPA statute of limitations ended" does not affect the limitations bar); Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.), cert. denied, 531 U.S. 991 (2000) ("[a] state-court petition . . . that is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled").

Therefore, absent equitable tolling, the limitations period expired on October 23, 2007 and the present Petition is untimely. As discussed below, equitable tolling is unavailable.

AEDPA's statute of limitations is subject to equitable tolling "in appropriate cases." Holland v. Florida, 130 S. Ct. 2549, 2560 (2010) (citations omitted). "[A] 'petitioner' is entitled to 'equitable tolling' only if he shows '(1) that he has been pursuing his claims diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 2562 (quoting Pace v. DiGualielmo, 544 U.S. 408, 418 (2005)); see also Lawrence v. Florida, 549 U.S. 327, 336 (2007).

In Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit held that eligibility for equitable tolling due to mental impairment requires a habeas petitioner to meet a two-part test:

(1) First, a petitioner must show his tor her] mental impairment was an "extraordinary circumstance" beyond his tor her] control, see Holland, 13 0 S. Ct. at 2562, by demonstrating the impairment was so severe that either

(a) petitioner was unable rationally or factually to personally understand the need to timely file, or
(b) petitioner's mental state rendered him [or her] unable personally to prepare a habeas petition and effectuate its filing.

(2) Second, the petitioner must show diligence in pursuing the claims to the extent he [or she] could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance. See id.
To reiterate: the "extraordinary circumstance" of mental impairment can cause an untimely habeas petition at different stages in the process of filing by preventing petitioner from understanding the need to file, effectuating a filing on his [or her] own, or finding and utilizing assistance to file. The "totality of the circumstances" inquiry in the second prong considers whether the petitioner's impairment was a but-for cause of any delay. Thus, a petitioner's mental impairment might justify equitable tolling if it interferes with the ability to understand the need for assistance, the ability to secure it, or the ability to cooperate with or monitor assistance the petitioner does secure. The petitioner therefore always remains accountable for diligence in pursuing his or her rights.

Bills v. Clark
, 628 F.3d at 1099-1100 (footnote omitted).

Petitioner contends that he suffers from unspecified mental problems allegedly as the result of a gunshot wound to the skull suffered in the early 1990s (Reply, p. 2). Petitioner asserts that he received inadequate treatment at the Patton State Hospital during the period of his alleged incompetence to stand trial, and that he assertedly still suffers from a "mental illness" (Reply, pp. 2, 4-5).

Petitioner's conclusory allegations that some unidentified mental problems prevented Petitioner from filing a timely petition do not suffice to show an entitlement to equitable tolling. See George v. Horel, 2011 WL 3359560, at *5 (CD. Cal. June 14, 2011), adopted 2011 WL 3349828 (CD. Cal. July 31, 2011) (rejecting tolling based on alleged mental illness where petitioner did not provide any details concerning his diagnosis, medication or side effects, or how his alleged mental problems "affected his specific decision to file [a petition] in federal court rather than exhaust his state court remedy"); Stanfield v. Allison, 2011 WL 1253893, at *3 (E.D. Cal. Mar. 31, 2011) ("vague and conclusory" allegations regarding petitioner's asserted mental limitations insufficient to warrant equitable tolling); see generally San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011), pet. for cert. filed (No. 10-10678) (May 20, 2011) ("Mere conclusory allegations are insufficient to raise the issue of equitable tolling.") (citations omitted). Additionally, Petitioner's demonstrated ability to prepare and file his Superior Court petition and his California Supreme Court petition in 2007 and 2009, respectively, proves that his alleged mental illness did not render him "unable rationally or factually to personally understand the need to timely file" or unable "personally to prepare a habeas petition and effectuate its filing." See Bills v. Clark, 628 F.3d at 1099-1100 (footnote omitted); see also Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010), pet. for cert. filed (No. 11-5243) (July 8, 2 011) (equitable tolling on account of alleged mental illness unavailable where petitioner "managed to file several petitions for post-conviction relief in state court during the time for which [petitioner sought] equitable tolling").

Nor has Petitioner shown that he acted diligently. To be entitled to equitable tolling, "[a] petitioner must show that his [or her] untimeliness was caused by an external impediment and not by his [or her] own lack of diligence." Bryant v. Arizona Attorney General, 499 F.3d 1056, 1062 (9th Cir. 2007) (citation omitted). Petitioner "must diligently seek assistance and exploit whatever assistance is reasonably available." Bills v. Clark, 628 F.3d at 1100. "The court should examine whether the petitioner's mental impairment prevented him [or her] from locating assistance or communicating with or sufficiently supervising any assistance actually found." Id. Petitioner has not alleged any facts showing that he attempted to obtain assistance in order to file a timely petition, or that his alleged mental problems prevented him from locating or communicating with others for assistance. Hence, Petitioner has not shown he acted diligently to file a timely petition.

Finally, Petitioner's contention that his counsel failed to perfect an appeal (see Reply, p. 5) also does not warrant equitable tolling. See Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir.), cert. denied, 131 S. Ct. 474 (2010) (counsel's failure to perfect appeal and incorrect advice regarding state filing deadlines did not prevent petitioner from filing a timely federal petition).

For the foregoing reasons, Petitioner is not entitled to equitable tolling. The Petition is untimely.

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.

DATED: August 23, 2011.

CHARLES F. EICK


UNITED STATES MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (2 0) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.