Brydie v. Gila County Superior Court ( 2023 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Steven James Brydie, No. CV-21-02136-PHX-MTL 10 Petitioner, ORDER 11 v. 12 Gila County Superior Court, et al., 13 Respondents. 14 Pending before the Court is Magistrate Judge Camille D. Bibles’ Report and 15 Recommendation (“R & R”) (Doc. 17), recommending the denial of Petitioner Steven 16 James Brydie’s Amended Petition for Writ of Habeas Corpus (Doc. 6). Brydie filed 17 objections to the R & R. (Doc. 22.) Brydie also filed a Motion to Stay Proceedings under 18 Federal Rule of Civil Procedure 62(a). (Doc. 18.) After considering the Petition (Doc. 6), 19 Respondents’ Limited Answer to the Petition (Doc. 15), Brydie’s Reply to the Limited 20 Answer (Doc. 16), Magistrate Judge Bible’s R & R (Doc. 17), Brydie’s Objections to the 21 R&R (Doc. 22), and Respondents’ request to strike the Objections as untimely (Doc. 23), 22 the Court adopts the R & R’s recommendation and denies the Petition for habeas relief.1 23 The Court also denies Brydie’s Motion to Stay as futile. 24 I. BACKGROUND 25 The Arizona Court of Appeals summarized the facts of this case as follows: 26 /// 27 1 After the Court granted Mr. Brydie an extension to file his Objections to the R & R, (Doc. 28 21), Respondents argued that Brydie’s Objections were untimely (Doc. 23 at 2). The Court does not address this issue because it denies the Petition. 1 In the predawn hours of July 28, 2018, Brydie, his girlfriend [Kaylee Brown], his friend [Michael Whitis], and [Michael 2 Roberts], a physically disabled man who [Brown] assisted, 3 drove to nearby ancient ruins to view the sunrise. [Brown] drove, Brydie sat in the passenger seat, [Whitis] sat behind 4 [Brown], and [Roberts] sat behind Brydie. During the trip, 5 Brydie pulled a gun out of his waistband and held it in his lap. The gun belonged to [Roberts], and Brydie had removed it 6 from [Roberts’] lift chair earlier when he helped [him] get into 7 the vehicle. When they arrived at the ruins, [Brown] told Brydie to put the gun away, but he did not do so. Instead, he 8 began pointing it at the others, threatening to kill everyone in 9 the vehicle. As Brydie pointed the gun at [Roberts] and began cocking the hammer, [Roberts] reached out to push the gun 10 away and it discharged. The bullet struck [Whitis], killing him. 11 12 State v. Brydie, 2021 WL 922441, at *1 (Ariz. Ct. App. Mar. 10, 2021). Absent clear and 13 convincing evidence, the Court presumes that the state court’s factual determinations are 14 correct. See 28 U.S.C.A. § 2254(e)(1). 15 The state charged Brydie with second-degree murder and two counts of aggravated 16 assault. (Id. at 3.) A jury found him not guilty of these three counts but found him guilty of 17 negligent homicide—a lesser included offense of second-degree murder. (Id.) On appeal, 18 Brydie asserted that cumulative prosecutorial misconduct, among other claims, denied him 19 a fair trial. (Id.) In denying relief, the Arizona Court of Appeals reasoned that despite the 20 prosecutor making improper comments at trial, Brydie failed to show that the prosecutor’s 21 misconduct rendered the trial unfair. (Id. at 4-9 (citing Brydie, 2021 WL 922441, at *3-7).) 22 Brydie sought review by the Arizona Supreme Court. (Id. at 9.) The Arizona Supreme 23 Court denied review and “Brydie did not seek state post-conviction relief.” (Id.) 24 II. LEGAL STANDARD 25 This Court “may accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). It is “clear that 27 the district judge must review the magistrate judge’s findings and recommendations de 28 novo if an objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1 1114, 1121 (9th Cir. 2003) (en banc); Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 2 (D. Ariz. 2003) (“Following Reyna-Tapia, this Court concludes that de novo review of 3 factual and legal issues is required if objections are made, ‘but not otherwise.’”); Klamath 4 Siskiyou Wildlands Ctr. v. U.S. Bureau of Land Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) 5 (the district court “must review de novo the portions of the [Magistrate Judge’s] 6 recommendations to which the parties object”). District courts are not required to conduct 7 “any review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 8 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1) (“[T]he court shall make a de 9 novo determination of those portions of the [report and recommendation] to which 10 objection is made.”). General objections are insufficient to require the Court to conduct a 11 de novo review of an R & R. Neufeld v. Shinn, No. CV-20-08155-PCT-JAT, 2021 WL 12 3046904, at *2 (D. Ariz. July 20, 2021). The Court need only review specific objections. 13 Id. “To be ‘specific,’ the objection must, with particularity, identify the portions of the 14 proposed findings, recommendations, or report to which it has an objection and the basis 15 for the objection.” Id. Accordingly, the Court will review the portions of the R&R de novo 16 to which there is a specific objection. 17 III. ANALYSIS 18 In his Petition, Brydie asserts that (1) the trial court’s jury instructions regarding the 19 lesser-included offense, negligent homicide, violated his due process rights; (2) cumulative 20 prosecutorial misconduct during his trial violated his due process rights; and (3) the 21 prosecutor’s use of perjured witness testimony at trial violated his due process and equal 22 protection rights. (Id.) Respondents argued, and the Magistrate Judge agreed (Id. at 14-21), 23 that the Court must deny Brydie’s second claim on its merits, and that his first and third 24 claims are procedurally defaulted. (Id. at 10.) Brydie filed an Objection to the R & R (Doc. 25 22) as discussed below. 26 A. Exhausted and Procedurally Defaulted Claims 27 The Court may only grant federal habeas relief on properly exhausted claims. See, 28 e.g., O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 1 722, 729-30 (1991). A petitioner must fairly present the claim to the state’s “highest” court 2 in a “procedurally correct manner.” E.g., Castille v. Peoples, 489 U.S. 346, 351 (1989). 3 For non-capital cases in Arizona, a habeas petitioner presents his claim to the “highest- 4 court” by presenting it to the Arizona Court of Appeals in his direct appeal, a properly filed 5 state action, or post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th 6 Cir. 1999); Date v. Schriro, 619 F. Supp. 2d 736, 762-63 (D. Ariz. 2008). To exhaust a 7 claim, a petitioner must present to the state courts the substantial equivalent of the claim 8 later presented in federal courts. Pickard v. Connor, 404 U.S. 270, 278 (1971); Libberton 9 v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). The petitioner must also present the same 10 facts and same legal theory to the state court for proper exhaustion. See, e.g., Duncan v. 11 Henry, 513 U.S. U.S. 364, 366 (1995). 12 Where a state court relied on a state procedural rule to deny or dismiss a claim, an 13 express procedural bar prevents a petitioner from raising that claim in federal court. 14 Robinson v. Schriro, 595 F.3d 1086, 1100 (9th Cir. 2010). Similarly, an implied procedural 15 bar prevents a petitioner from raising an unexhausted claim in federal court where a state’s 16 procedural rules make a return to state court futile. Coleman, 501 U.S. at 735 n.1; Franklin 17 v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002). Arizona’s state procedural rules 18 regarding timeliness, waiver, and preclusion of the claims prevent Brydie from returning 19 to state court to exhaust any previously unpresented claim. Thus, any of Brydie’s 20 unexhausted claims are impliedly procedurally defaulted. 21 To overcome a procedural default, it is the petitioner’s burden to establish cause and 22 prejudice for the court to consider an unexhausted claim on its merits. See Ellis v. 23 Armenakis, 222 F.3d 627, 632 (9th Cir. 2000); see also Correll v. Stewart, 137 F.3d 1404, 24 1415 (9th Cir. 1998) (noting it is the petitioner’s burden to prove “cause” and “prejudice”). 25 “Cause” requires establishing a legitimate excuse outside of the petitioner’s control. 26 Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). “Prejudice” is actual harm resulting 27 from the constitutional violation. Id. To establish prejudice, the petitioner must establish 28 the state court error “worked to his actual and substantial disadvantage, infecting his entire 1 trial with error of constitutional dimensions.” Id. 2 The Court may also consider the merits of a procedurally defaulted claim if the 3 failure to do so will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 4 750. This exception is limited to extraordinary cases where the petitioner asserts actual 5 innocence and establishes “that the court cannot have confidence in the contrary finding of 6 guilt.” Johnson v. Knowles, 541 F.3d 933, 937 (9th Cir. 2008). 7 1. Lesser Included Offense 8 Brydie claims that the trial court violated his due process rights by instructing the 9 jury on the lesser-included offenses of second-degree murder. (Doc. 16 at 2.) Brydie argues 10 that this led to his conviction of a crime “separate from crime alleged in [the] indictment[,]” 11 and that the jury convicted him of an offense he was “not tried for.” (Id.) Brydie reasons 12 that the jury instruction on lesser-included offenses constituted a “constructive 13 amendment” to his indictment as he was “indicted for intentional murder but convicted of 14 wanton murder.” (Id. at 3.) Brydie, however, does not dispute that this claim is procedurally 15 defaulted. Instead, he asserts that he did not raise the claim before the Arizona Court of 16 Appeals because of his “lack of understanding.” (Doc. 22 at 3.) Brydie does not establish 17 any rule now entitling him to state court review and does not dispute that Arizona’s 18 procedural rules regarding timeliness, waiver, and the preclusion of claims would make his 19 return to state court futile. Thus, this claim is impliedly procedurally defaulted. 20 Without proving cause and prejudice for the procedurally defaulted claim, Brydie is 21 not entitled to a review of the claim on the merits. Brydie contends in his Objection that 22 his “lack of understanding” establishes cause. (Doc. 22 at 3.) But a petitioner’s ignorance 23 of the legal process does not establish cause for procedural default. See Hughes v. Idaho 24 Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986). Even if the Court construes Brydie’s 25 “lack of knowledge” objection to include his ineffective assistance of appellate counsel 26 assertion in his Petition (see Doc. 6 at 6), he made no attempt to exhaust the ineffective 27 assistance of appellate counsel claim in a state action for post-conviction relief. The 28 ineffective assistance of appellate counsel claim is therefore also procedurally defaulted— 1 preventing the Court from reaching the merits of the claim. See Strickland v. Washington, 2 466 U.S. 668 (1984); see also Murray v. Carrier, 477 U.S. 478, 488 (1986) (requiring a 3 petitioner to raise an ineffective assistance of counsel claim in state court as an independent 4 claim before he can use it to establish cause for a procedural default).2 Thus, Brydie failed 5 to establish cause. 6 Regarding prejudice, Brydie objected to the R & R and argues that the trial court’s 7 inclusion of the lesser-included offense jury instruction violated his right to a fair trial and 8 precluded the jury from finding each fact necessary to convict him. (Doc. 22 at 3.) Aside 9 from Brydie’s conclusory allegations, he has not provided any evidence that a jury would 10 find him not guilty of the lesser-included offense of negligent homicide or that the lesser- 11 included jury instructions were deficient in any way. Brydie has not established that the 12 jury instructions “worked to his actual and substantial disadvantage, infecting his entire 13 trial with error of constitutional dimensions.” See, e.g., Cooper, 641 F.3d at 327. Thus, he 14 failed to establish prejudice. 15 For otherwise procedurally barred claims, the “fundamental miscarriage of justice 16 exception” allows the Court to consider the merits of the claim when a petitioner shows 17 “actual innocence.” Herrera v. Collins, 506 U.S. 390, 404, 416 (1993). “[A]ctual innocence 18 means factual innocence.” Bousley v. United States, 523 U.S. 614, 623 (1998). The 19 petitioner must establish through clear and convincing evidence that no reasonable 20 factfinder could have found him guilty. See Dretke v. Haley, 541 U.S. 386, 393 (2004). 21 Brydie has not done so. He has offered no new evidence and has not established how the 22 existing facts prove his innocence. Therefore, Brydie has failed to establish a fundamental 23 miscarriage of justice to overcome the procedural default. 24 2 The ineffective assistance of appellate counsel claim would likely fail on the merits. Brydie argued in his Petition that he did not raise the jury instruction claim in state court 25 because his appellate counsel found other argument garnered more merit. (Doc. 6 at 6.) Appellate counsel’s performance is not deficient for failing to raise a colorable claim. See 26 Jones v. Barnes, 463 U.S. 745, 754 (1983) (holding that appellate counsel is not under “a duty to raise every ‘colorable’ claim suggested by a client”); Miller v. Kenney, 882 F.2d 27 1428, 1434 (9th Cir. 1989); Wood v. Ryan, 268 F. Supp. 3d 297, 300 (D. Mass. 2017) (finding appellate counsel’s performance was not ineffective for “good cause” purposes 28 where omission of a “colorable” claim was not objectively unreasonable under deference afforded to counsel’s judgment). 1 2. Witness Testimony 2 Brydie contends that the prosecutor’s use of perjured witness testimony from Ms. 3 Brown and Ms. Roberts violated his due process rights. (Doc. 22 at 5-6.) Brydie again does 4 not object to the R & R’s finding that his perjured witness testimony claim is procedurally 5 defaulted. Instead, he asserts that the claim should be excused from the procedural default 6 because “the culpability of the state[’]s use of perjured witnesses [and] testimony cannot 7 go unchecked” and that his conviction was “primarily” due to this false testimony. (Id.) 8 Brydie also asserts that failure to address the merits of his claim would result in a 9 fundamental miscarriage of justice. (Id.) 10 In Brydie’s Objection, he contends that the cause for the procedural default on this 11 claim was because he needed to collect substantial evidence to present a thorough claim. 12 (Id.). The Court finds this argument unpersuasive. Cause requires asserting “that the 13 procedural default is due to an ‘objective factor’ that is ‘external’ to the petitioner and that 14 ‘cannot fairly be attributed to him.’” Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir. 15 2000) (quoting Coleman, 501 U.S. at 753). Brydie’s assertion that he needed to accumulate 16 substantial evidence to support his claim does not meet this standard. Brydie has not 17 established an impediment attributable to any cause beyond his own diligence. And the 18 Court has not found an impediment that otherwise allows Brydie to bring a procedurally 19 defaulted claim when he could have raised this claim on appeal or in post-conviction 20 proceedings. 21 Brydie also fails to establish prejudice. See Cooper, 641 F.3d at 327. While he 22 claims the witnesses were material to his conviction, (Doc. 22 at 5), Brydie does not 23 provide any specific facts about how the witness testimony led to his conviction. He does 24 point to two witnesses’ testimony where they admitted to changing their stories. (Id. at 5- 25 6.) But as the Magistrate Judge noted, the issue of the witnesses changing their statements 26 was thoroughly explored during trial. (Doc. 17 at 21.) As the fact finder, it is the jury’s 27 exclusive role to determine the credibility of witness testimony. In evaluating the evidence 28 and ambiguities in witness testimony, the jury determined Brydie was guilty of the lesser- 1 included offense rather than second-degree murder. It is reasonable to infer that the jury 2 may have found Brydie guilty of the lesser-included offense due to these credibility 3 concerns. Brydie further failed to prove or provide any evidence that the prosecutor knew 4 or should have known the witness planned to perjure themselves. Thus, Brydie failed to 5 establish prejudice. 6 Since Brydie failed to establish cause and prejudice, the Court will only review the 7 merits of the claim if in denying review, a fundamental miscarriage of justice would result. 8 See Herrera, 506 U.S. at 416 (requiring the petitioner to establish actual innocence). Brydie 9 has not provided any new evidence, nor has he pointed to any evidence in the record that 10 establishes his actual innocence. Thus, Brydie failed to establish a fundamental miscarriage 11 of justice to overcome the procedural default. 12 B. Exhausted Claims 13 Under 28 U.S.C. § 2254(d)(1), a federal court cannot grant habeas corpus relief to 14 a petitioner on an exhausted claim unless the petitioner establishes the state court’s decision 15 denying the claim “was contrary to” or an “unreasonable application” of federal law as 16 clearly established in Supreme Court precedent at the time of the state court decision. This 17 standard is “difficult to meet.” Harrington v. Richter, 562 U.S. 86, 102 (2011). It is a 18 “highly deferential standard for evaluating state court rulings, which demands that state 19 court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 20 (2002) (citation and internal quotation marks omitted). Federal courts presume the factual 21 findings of state courts, including state appellate courts, are correct. See 28 U.S.C. 22 § 2254(e)(1); Sumner v. Mata, 455 U.S. 591, 593 (1982). In habeas cases when evaluating 23 state court decisions, federal courts look through summary or unexplained higher state 24 court opinion to the last reasoned decision on the claim. E.g., Wilson v. Sellers, —U.S.—, 25 138 S. Ct. 1188, 1192 (2018). 26 1. Prosecutorial Misconduct 27 Brydie argues that cumulative prosecutorial misconduct during his trial violated his 28 due process rights. Brydie exhausted this claim in state courts. See Brydie, 2021 WL 1 922441, at *4. A state court decision contains an “unreasonable application of” federal law 2 if the court identifies the correct legal rule, but unreasonably applies that rule to the facts 3 of a particular case. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Lockyer v. 4 Andrade, 538 U.S. 63, 71 (2003); Morris v. Ryan, No. CV-18-08054-PCT-JAT, 2019 WL 5 1123240, at *1 (D. Ariz. Mar. 12, 2019). An unreasonable application of federal law is 6 different from an incorrect one, it must be objectively unreasonable. See Harrington, 562 7 U.S. at 101; White v. Woodall, 572 U.S. 415, 419 (2014); Renico v. Lett, 559 U.S. 766, 773 8 (2010). 9 Brydie contends that the prosecutor’s “racial remarks to [the] jury, degrading 10 defense counsel (however expressed) in court, bickering with [the] tribunal on defense[’]s 11 objections to morally offensive language” prejudiced and harmed the integrity of the trial. 12 (Doc. 22 at 4.) Brydie also asserts that the prosecutor’s use of a perjured witness was 13 “material” to the case and violated prosecutorial ethical duties. (Id.)3 Brydie does not detail 14 specific objections to the Magistrate Judge’s findings in the R & R, he simply reasserts the 15 claims he raised in his Petition. While the Court need not address these generalized 16 objections, it nevertheless concludes that the claim fails on the merits. 17 “[T]he relevant question is whether the prosecutors’ comments ‘so infected the trial 18 with unfairness as to make the resulting conviction a denial of due process.’” Darden v. 19 Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 20 642 (1974)). In habeas cases, “constitutional errors of the ‘trial type,’ including 21 prosecutorial misconduct, warrant relief only if they ‘had substantial and injurious effect 22 or influence in determining the jury’s verdict.’” Wood v. Ryan, 693 F.3d 1104, 1113 (9th 23 Cir. 2012) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637-38, (1993)). It is settled law 24 that “the Court must consider the probable effect the prosecutor’s response would have on 25 3 Brydie raised the ethical duties and perjured witness issues for the first time in his Habeas 26 Petition. These objections appear as an attempt to bring in otherwise procedurally defaulted claims. The Court finds the perjured witness argument is indistinguishable from the 27 perjured witness claim discussed above and procedurally defaulted because Brydie failed to exhaust the claim in state courts. (See Doc. 22 at 3-6.) Similarly, Brydie has not raised 28 the issue of whether the prosecutor violated his ethical duties in state court. Thus, these assertions are unexhausted and procedurally defaulted. 1 the jury’s ability to judge the evidence fairly.” United States v. Young, 470 U.S. 1, 12 2 (1985). 3 The state court’s ruling was not contrary to, or an unreasonable application of, 4 federal law. The Arizona Court of Appeals correctly analyzed the claim. It analyzed each 5 instance of alleged misconduct, the trial court’s curative instructions, and considered the 6 cumulative effect of the misconduct on the fairness of the trial. See Brydie, 2021 WL 7 922441, at *4; see also Darden, 477 U.S. at 181-82 (1986) (weighing the evidence of 8 misconduct, its potential impact on the jury, and the weight of evidence supporting the 9 defendant’s guilt). 10 Regarding the racial remarks during the prosecutor’s closing arguments, the 11 prosecutor insinuated that defense counsel asked if any of the jurors were racists during 12 voir dire, when in fact defense counsel asked if the defendant’s race would impact any of 13 the jurors’ abilities to be fair and impartial. Brydie, 2021 WL 922441, at *6. While this 14 comment had the potential to inflame the jury, the trial court sustained defense counsel’s 15 objection in the presence of the jury and struck the remarks from the record. Id. The trial 16 court also included a jury instruction to disregard matters stricken from the record. Id. 17 Under these circumstances, the trial court remedied the comment’s inflammatory effect on 18 the jury’s ability to render a fair verdict. 19 Brydie also contends that the prosecutor’s comments “degrad[ed] defense counsel 20 (however expressed) in court [and] bickering with [the] tribunal on defense[’]s objections 21 to morally offensive language” impacted the fairness of his trial. The evidence in the record 22 indicates that the prosecutor made various comments during closing arguments and trial 23 that called into question defense counsel’s character and credibility. Id. at *4-6. Some of 24 these comments did not or may not have occurred in the presence of the jury. Id. And as 25 the appellate court noted, the record does not support the claim that the other comments 26 influenced the verdict. Id. at *6-7. “In every instance of prosecutorial error or misconduct 27 . . . the trial court sustained Brydie’s objection[s] and struck the improper remarks from the 28 record, and appropriately instructed the jury to disregard stricken material.” Id. at *7. 1 Brydie has not established how the prosecutor’s comments amount to cumulative 2 prosecutorial misconduct resulting in a constitutional violation. Brydie also failed to 3 discuss how the comments influenced the jury or made the trial unfair. 4 The weight of the evidence against Brydie also supports finding the jury’s verdict 5 was reasonable. Arizona’s negligent homicide statute imposes liability if a person, with 6 criminal negligence, causes the death of another person. Ariz. Rev. Stat. Ann. § 13-1102 7 (2022). Criminal negligence is a failure to perceive a substantial and unjustifiable risk that 8 a result will occur. Id. § 13–105(6)(d). The facts of this case indicate that Brydie was in a 9 vehicle with the victim, proceeded to point a firearm at the other passengers, and began 10 cocking the firearm’s hammer when it discharged killing the victim. Brydie, 2021 WL 11 922441, at *1. Brydie failed to perceive the substantial and unjustifiable risk that pointing 12 and preparing the firearm to shoot posed to the lives of the vehicle occupants, including 13 the victim. Brydie has not established how the cumulative prosecutorial misconduct created 14 an atmosphere at trial so unfair that it denied him due process. Even with the evidence of 15 potentially inflammatory remarks, there is strong evidence supporting Brydie’s guilt and 16 the verdict. Thus, even though the Court is not required to review generalized objections, 17 these general objections fail on the merits. 18 IV. CONCLUSION 19 Accordingly, IT IS ORDERED as follows: 20 1. The Report and Recommendation (Doc. 17) is ACCEPTED and the 21 objections (Doc. 22) are OVERRULED; 22 2. Petitioner’s Rule 62(a) Motion to Stay is DENIED; 23 3. Petitioner’s Petition (Doc. 6) is DENIED and DISMISSED WITH 24 PREJUDICE and the Clerk of the Court shall enter judgment accordingly; and 25 4. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, in the event 26 Petitioner files and appeal, the Court DENIES issuance of a certificate of appealability 27 because dismissal of the petition is partly based on a plain procedural bar and jurists of 28 reason would not find this Court’s procedural ruling debatable, see Slack v. McDaniel, 529 1|| U.S. 473, 484 (2000), and Petitioner has not made a substantial showing of the denial of a 2|| constitutional right, see 28 U.S.C. § 2253(c)(2). 3 Dated this 9th day of February, 2023. 4 Wichacl T. hurdle Michael T, Liburdi 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -12-