(HC) Scott v. Macomber ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS SCOTT, No. 2:15-cv-1292 KJM AC P 12 Petitioner, 13 v. SUPPLEMENTAL FINDINGS AND RECOMMENDATIONS 14 JEFF MACOMBER, 15 Respondent. 16 17 Petitioner is a California state prisoner seeking habeas relief under 28 U.S.C. § 2254. On 18 review of the previously issued Findings and Recommendations, ECF No. 23, the assigned 19 district judge referred this case back to the undersigned for further consideration of the Batson 20 issue. ECF No. 27. Having reviewed the pertinent legal authority and the state court record in 21 this case, the undersigned resubmits the initial Findings and Recommendations as supplemented 22 herein. 23 I. Procedural Posture 24 The facts of petitioner’s underlying criminal case and direct appeal, and the facts related 25 to his habeas claims, have been set forth in the previously issued Findings and Recommendations 26 on the merits of the petition, and need not be repeated here. The undersigned recommended 27 denial of petitioner’s claim that his equal protection rights were violated when the trial court 28 failed to follow proper procedures in responding to his motion under Batson v. Kentucky, 476 1 U.S. 79 (1986). ECF No. 23 at 8-22. The undersigned found first that both the trial court and the 2 California Court of Appeal had unreasonably applied Batson within the meaning of 28 U.S.C. § 3 2254(d), entitling petitioner to de novo review of the claim in this court. ECF No. 23 at 17-19. 4 The undersigned then conducted de novo review, and found that petitioner had not satisfied his 5 burden of identifying a prima facie case of racial discrimination at Step One of the three-part 6 Batson analysis. Id. at 19-22.1 A prima facie case was found lacking because, in sum, petitioner 7 had not identified circumstances that raised an inference of racial motivation. Petitioner had 8 presented no evidence regarding the racial composition of the venire, nor statistical data regarding 9 the impact of the two challenged strikes on the composition of the jury. Moreover, several 10 circumstances outweighed any inference of discrimination that might otherwise arise from the 11 bare fact that two African Americans had been excused. Those circumstances were the defense 12 strike of an African American juror who was acceptable to the prosecution, and the several 13 characteristics of prospective jurors P.M. and S.R. that have been recognized by the Ninth Circuit 14 as legitimate and race-neutral bases for peremptory strikes. The undersigned found that 15 petitioner’s characterization of P.M. and S.R. as “pro-prosecution” was inconsistent with the 16 record. Id. 17 After noting petitioner’s scant prima facie showing, and before independently evaluating 18 the totality of the circumstances to see whether they raised an inference of racial motivation, the 19 undersigned noted that neither the fact of an all-white jury nor the fact a prospective juror of color 20 is excused is enough, standing alone and out of context, to support an inference of discrimination: 21 Even assuming that the disputed strikes resulted in a jury with no African American members, that fact would not create a prima facie 22 case. The Ninth Circuit has noted that a “prosecutor’s use of a peremptory strike against the only African-American prospective 23 24 1 If a defendant identifies circumstances raising a prima facie case of discrimination, then the burden shifts to the prosecutor to put forward legitimate and race-neutral reasons for the strike(s). 25 If the prosecutor meets this burden at Step Two, the trial court must determine whether the 26 defendant has met his ultimate burden of proving purposeful racial discrimination. See Johnson v. California, 545 U.S. 162, 168 (2005). Accordingly, the Step Three inquiry asks whether the 27 prosecutor’s proffered race-neutral reasons were the actual reasons for the strike. Purkett v. Elem, 514 U.S. at 765, 768 (1995). In this case, the state courts failed to follow this sequential 28 process. See ECF No. 23 at 17-19. 1 juror is a relevant consideration,” but “it does not by itself raise an inference of discrimination.” Crittenden v. Ayers, 624 F.3d 943, 2 955 (9th Cir. 2010); see also Boyd v. Newland, 393 F.3d 1008, 1013 (9th Cir. 2004) (“Even the use of two peremptory strikes 3 against members of a cognizable minority group does not necessarily suffice to constitute a prima facie showing of bias.”). 4 5 ECF No. 23 at 20. 6 The undersigned also cited Boyd I, 393 F.3d at 1013, for the proposition that “[e]vidence 7 in the record of objective reasons to strike a juror implies that racial bias did not motivate the 8 prosecutor.” ECF No. 23 at 21. 9 On review of the Findings and Recommendations, the district judge noted these two 10 citations to Boyd and stated as follows: 11 The opinion in Boyd was amended on denial of petitions for rehearing and rehearing en banc, see Boyd v. Newland, 455 F.3d 12 897 (9th Cir. 2006), and the latter opinion was amended and superseded by Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2006). 13 Good cause appearing, this matter is referred back to the assigned magistrate judge for consideration of what effect, if any, the 14 subsequent history of Boyd has on the pending findings and recommendations. 15 16 ECF No. 27 at 1-2. 17 II. Boyd v. Newland and Related Batson Jurisprudence 18 Like the instant case, the Boyd litigation involved Batson’s first step: whether the totality 19 of the circumstances surrounding a strike raises an inference of racial discrimination. In Boyd I, a 20 panel of the Ninth Circuit Court of Appeals first rejected the petitioner’s arguments that (1) the 21 state courts had applied a legal standard contrary to Batson, and (2) the state courts had 22 unreasonably applied Batson when they found that there was no prima facie case of 23 discrimination. Boyd I, 393 F.3d at 1012-13. The latter discussion was the source of the two 24 citations in the Findings and Recommendations in this case. The Court of Appeal went on to 25 reject Boyd’s argument that the California Court of Appeal had violated his rights by denying his 26 requests for a free transcript of the entire voir dire, for purposes of conducting comparative juror 27 analysis. Boyd I, 393 F.3d at 1014-16. 28 Shortly after this opinion issued, the Supreme Court decided two landmark Batson cases. 1 In Johnson v. California, 545 U.S. 162 (2005), the Court held that Batson does not require a 2 defendant to demonstrate at Step One that a strike was more likely than not the product of 3 purposeful discrimination, as the California courts had held. Rather, “a defendant satisfies the 4 requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to 5 draw an inference that discrimination has occurred.” Johnson, 545 U.S. at 170. In Miller-El v. 6 Dretke, 545 U.S. 231 (2005) (Miller-El II), the Court used comparative juror analysis to 7 determine whether a prosecutor had treated similar jurors differently on the basis of their race. 8 The Boyd court then reconsidered its disposition of the case before it, in light of Johnson 9 and Miller-El II. The panel concluded that it had erred on the voir dire transcript issue, and held 10 “that the California appellate courts violated clearly established federal law by denying 11 Petitioner’s habeas petition because, without an entire voir dire transcript, those courts could not 12 evaluate the relevant circumstances surrounding the contested strike, as Batson requires.” Boyd 13 II, 455 F.3d 897, 900 (9th Cir. 2006). The panel ordered that the federal habeas petition be 14 granted on that basis, without making a determination whether or not petitioner had established a 15 prima face of discrimination. Id. at 909, 910. 16 In Boyd III, the panel reiterated its Boyd II holding that the state courts’ denial of voir dire 17 transcripts and failure to conduct comparative juror analysis on appeal was unreasonable under 18 Batson and progeny, and further noted that this conclusion was consistent with Kesser v. Cambra, 19 465 F.3d 351 (9th Cir. 2006) (en banc). Boyd III, 467 F.3d 1139, 1151 (9th Cir. 2006), cert. 20 denied, 550 U.S. 933 (2007). The panel modified the terms of remand, instructing the district 21 court to enter “a conditional writ of habeas corpus, ordering [petitioner’s] release unless the State 22 provides to him, without charge, a complete voir dire transcript within a reasonable period of 23 time, after which he may renew his Batson claim in the district court.” Id. at 1152. 24 III. Supplemental Analysis of Petitioner’s Batson Claim 25 A. The Principles for Which Boyd I Was Cited Remain Good Law 26 The undersigned erred in citing a portion of Boyd I that was dropped from Boyd II and 27 28 1 Boyd III.2 However, the cited propositions were not abrogated holdings of Boyd I, but well- 2 established principles of Ninth Circuit Batson jurisprudence. 3 Boyd I cited Fernandez v. Roe, 286 F.3d 1073, 1078 (9th Cir. 2002), and United States v. 4 Chinchilla, 874 F.2d 695, 698 (9th Cir. 1989), for the proposition that “[e]ven the use of two 5 peremptory strikes against members of a cognizable minority group does not necessarily suffice 6 to constitute a prima facie showing of bias.” Boyd I, 393 F.3d at 1013. In Fernandez, the court 7 had noted that “[b]ecause the numbers are so small (and, hence, potentially unreliable), two such 8 challenges, standing alone, may not be sufficient to support an inference of discrimination.” 286 9 F.3d at 1078. As the Ninth Circuit put it in a later case, “the prosecutor’s use of a peremptory 10 strike against the only African-American prospective juror is a relevant consideration, although it 11 does not by itself raise an inference of discrimination.” Crittenden v. Ayers, 624 F.3d 943, 955 12 (9th Cir. 2010). In any event, the undersigned did not merely rely on this general principle to find 13 that there was no prima facie case—rather, the court noted that the defense strike of a different 14 African American, a prospective juror who was acceptable to the prosecution, weighed against 15 any inference of bias otherwise arising from the fact that two prosecution strikes were exercised 16 against African Americans. ECF No. 23 at 20. 17 Boyd I also cited authority for the second position for which it was quoted in the previous 18 Findings and Recommendations: 19 Evidence in the record of objective reasons to strike a juror implies that racial bias did not motivate the prosecutor. See Paulino v. 20 Castro, 371 F.3d 1083, 1091-92 (9th Cir. 2004) (“While we may consider whether the record contains entirely plausible reasons, 21 independent of race, why a prosecutor may have exercised peremptories, such reasons have usually helped persuade us that 22 defendant made no prima facie showing where defendant challenged the excusal of just one juror.” (emphasis added) (citation 23 and internal quotation marks omitted)); Wade [v. Terhune], 202 F.3d [1190,] 1198 [(9th Cir. 2000)] (noting that “entirely plausible 24 reasons, independent of race,” for striking a juror support a finding that the prosecutor did not act based on racial bias). In the 25 circumstances, the state court did not apply federal law 26 2 Because the Boyd panel walked back its holding that the petitioner had not established a prima 27 facie case of discrimination, on grounds that the existence vel non of a prima facie case could not be determined without review of the voir dire transcript as a whole, the Boyd I discussion of other 28 circumstances relevant to the Step One inquiry became moot. 1 unreasonably when it held that Petitioner had failed to make a prima facie showing under Batson. 2 3 Boyd I, 393 F.3d at 1013. Paulino and Wade remain good law. 4 Accordingly, the Findings and Recommendations at ECF No. 23 are corrected to the 5 extent that the above-referenced citations to Fernandez, Chinchilla, Paulino and Wade are 6 substituted for the citations to Boyd I at pages 20 and 21. 7 B. Comparative Juror Analysis Does Not Give Rise to a Prima Facie Case 8 Batson directs courts to consider at Step One the “totality of the relevant facts” and “all 9 relevant circumstances” surrounding the peremptory strike(s). Batson, 476 U.S. at 94, 96. Boyd 10 III accordingly instructs that when a petitioner raises a plausible Batson claim, as petitioner has 11 done here, contextual analysis is necessary to determine whether an inference of discrimination 12 arises from the facts and circumstances surrounding the challenged strikes. Boyd III, 467 F.3d at 13 1146-47. Comparative juror analysis is a critical part of such contextual analysis. Id. at 1148. 14 Because comparative juror analysis was not previously conducted as part of this court’s de novo 15 review at Step One, the undersigned now undertakes that task notwithstanding petitioner’s failure 16 to make a comparative juror argument. The question is whether the prosecutor treated P.M. and 17 S.R. differently than prospective jurors with similar backgrounds who were not African 18 American, giving rise to an inference that the strikes of P.M. and S.R. were racially motivated. 19 See United States v. Collins, 551 F.3d 914, 922 (9th Cir. 2009) (“An inference of discrimination 20 may arise when two or more potential jurors share the same relevant attributes but the prosecutor 21 has challenged only the minority juror.”). Having carefully reviewed the prospective juror 22 questionnaires and transcripts of jury selection from petitioner’s trial,3 the court finds as follows. 23 All prospective jurors were questioned about their own and family members’ criminal 24 histories: the questionnaires inquired into the matter, and follow-up questions were asked of all 25 prospective jurors who had answered in the affirmative. P.M. reported that her brother was 26 27 3 The questionnaires are found in Lodged Item 7: Aug. CT, volume 2 (“2 Aug. CT”). The transcript of jury selection is found in Lodged Item 18: Reporter’s Augmented Transcript on 28 Appeal (“Aug. RT”), volume 1. 1 serving a sentence of over 100 years for a third strike offense; the trial court considered this to be 2 a legitimate reason to excuse her. 1 RT 82-83 (trial judge’s findings), 84 (prosecutor’s agreement 3 that this was the basis for the strike). No other prospective juror reported a family member 4 serving a life sentence, and none reported a family member or close friend serving a lengthy 5 prison term. A significant number of prospective and seated jurors had family members with 6 DUI arrests or convictions; some had such convictions themselves. See, e.g., Aug. RT at 81 7 (Juror No. 7, whose mother had a DUI decades previously), and at 90-91 (Juror No. 9, who had a 8 DUI conviction him/herself). Additionally, several prospective jurors had family members with 9 past arrests or convictions for various other misdemeanors and lesser crimes. One seated juror 10 acknowledged having been arrested 25 years earlier for writing bad checks. Aug. RT at 95-96 11 (Juror No. 1). None of these matters involved a lengthy prison term, however. For this reason, 12 these jurors are not comparable to P.M. The strike of the only prospective juror with a family 13 member serving a life sentence does not give rise to an inference of racial bias. 14 One other prospective juror had a family member who had been charged with a major 15 felony and thus was likely facing a lengthy prison sentence: Prospective Juror Campbell, whose 16 cousin had been charged with murder. Aug. RT at 208-209. The cousin’s case was pending in 17 Sacramento County at the time of jury selection, id., and so the cousin was presumably in the 18 County Jail at the time, like S.R.’s brother. Like P.M. and S.R., Prospective Juror Campbell 19 stated that he could be a fair and impartial juror and would not be affected by his family 20 member’s case. The prosecutor exercised a peremptory challenge against Campbell. Aug. RT at 21 237. The fact that Campbell was also subjected to a strike weighs against the finding of a prima 22 facie case of discrimination as to P.M. and S.R. 23 S.R. had a master’s degree in social work, and professional experience in both law 24 enforcement and social services contexts. No other prospective juror had a degree in social work 25 or job experience in social services. The seated juror with the most analogous professional 26 experience was Alternate Juror No. 2, a school psychologist. 2 Aug. CT at 14. This juror’s work 27 involved special education assessments, Aug. RT at 306-307 & 317, not counseling or services. 28 Alternate Juror No. 2 was the only member of the venire whose occupation was in the field of 1 psychology, which might be considered adjacent to social work notwithstanding significant 2 differences between the disciplines. Alternate No. 5 was an analyst with the California 3 Department of Health Care Services, who had studied psychology as an undergraduate but had 4 never done clinical work. 2 Aug. CT at 17; Aug. RT at 317. The educational and professional 5 backgrounds of both these seated alternates are sufficiently different from S.R.’s that the 6 prosecutor’s failure to strike them does not support a prima facie case of discrimination as to S.R. 7 Moreover, even if the fields of social work and psychology are sufficiently similar in the 8 abstract to be considered comparable occupations, neither Alternate Juror No. 2 nor Alternate 9 Juror No. 5 had a family member facing serious criminal charges in Sacramento County, where 10 petitioner’s trial was taking place, or incarcerated at the Sacramento County Jail at the time of 11 petitioner’s trial, while petitioner was housed there. See 2 Aug. Ct at 14 & 17. Accordingly, 12 these two alternates are not similar overall to S.R., and the prosecutor’s failure to strike them on 13 grounds of their backgrounds in psychology does not reasonably support an inference of bias as to 14 S.R. 15 Finally, the trial judge noted that S.R. had “made an excuse” for her brother’s criminal 16 conduct, blaming it on drugs. 1 RT 83. Neither of the seated alternate jurors with backgrounds in 17 psychology made similar statements. Only one other prospective juror expressed sympathy for a 18 relative’s substance abuse problem: prospective juror Burgos, whose nephew had struggled with 19 addiction. Aug. RT at 233. This juror was excused for cause, because sympathy for the nephew 20 might affect her judgment. Aug. RT 234. Accordingly, comparative juror analysis does not 21 support a prima facie case of discrimination against S.R. related to potential sympathy for drug 22 users. 23 C. The Totality of the Relevant Facts Does Not Support an Inference of Purposeful 24 Discrimination 25 The undersigned previously found that petitioner had not met his burden of identifying 26 circumstances that support an inference of racial discrimination at Batson’s Step One. ECF No. 27 23 at 22. Having now independently reviewed all the juror questionnaires and the entire voir dire 28 transcript, the court finds that comparison of P.M. and S.R. with the seated jurors, and 1 comparison of the questions asked of P.M. and S.R. with the questions asked of all other 2 prospective jurors questioned on voir dire, does not raise an inference of purposeful 3 discrimination. Accordingly, for the reasons stated in the previous Findings and 4 Recommendations as supplemented by the comparative juror analysis set forth above, the 5 undersigned finds that the record does not support a prima facie case of discrimination. 6 D. Even Assuming A Prima Facie Case, Petitioner Has Not Established Purposeful 7 Discrimination at Step Three 8 Assuming arguendo that the exercise of peremptory strikes against two African Americans 9 is enough to generate a prima facie case,4 the question becomes whether the race neutral reasons 10 offered by the prosecutor were her actual reasons for the strikes, or whether race was the real 11 motivation or a substantial motivating factor in the decision. See Green v. Lamarque, 532 F.3d 12 1028, 1030 (9th Cir. 2008); Cook v. Lamarque, 593 F.3d 810, 815 (9th Cir. 2010).5 The ultimate 13 question, on which the petitioner bears the burden of persuasion, is whether the strike was the 14 result of purposeful racial discrimination. Purkett v. Elem, 514 U.S. at 765, 768 (1995). The 15 court “must undertake a sensitive inquiry into such circumstantial and direct evidence of intent as 16 may be available.” Batson, 476 U.S. at 93 (internal quotation marks omitted). Such evidence 17 may include statistical data, evidence of prosecutorial jury selection practices, statements made 18 by the prosecutor regarding jury selection strategy or regarding racial issues generally, 19 comparative juror analysis, and any other facts and circumstances relevant to intent. See Miller- 20 El II, 545 U.S. at 240-241, 253, 263-264; Kesser v. Cambra, 465 F.3d 351, 360 (9th Cir. 2006) 21 (en banc). Because the state court record in this case includes the prosecutor’s professed race- 22 neutral reasons for her strikes, the questionnaires of all members of the venire, and transcripts of 23 24 4 See Chinchilla, 874 F.2d at 698 n.5 (“However, although the striking of one or two members of the same racial group may not always constitute a prima facie case, it is preferable for the court to 25 err on the side of the defendant’s rights to a fair and impartial jury.”). 26 5 The “substantial motivating factor” test comes into play where the record demonstrates that the prosecutor was motivated both by legitimate race-neutral concerns and by racial bias. Cook, 27 supra. This is not such a case. As explained more fully above and below, the record in this case does not support a finding that racial bias affected the prosecutor’s exercise of peremptory 28 challenges, either as the sole factor or as one of several motivating factors. 1 the entire voir dire, no evidentiary hearing is needed in order to conduct this inquiry.6 See 2 Crittenden v. Chappell, 804 F.3d 998 (9th Cir. 2015) (affirming district court’s disposition of 3 Batson claim, on de novo review because state court determination not entitled to AEDPA 4 deference, on the basis of the state court record). 5 Here, petitioner has never proffered statistical evidence nor extrinsic evidence of racially 6 discriminatory attitudes or practices on the part of the prosecutor or her office. Cf. Miller-El II, 7 supra. The trial record itself contains no statements or comments by the prosecutor that reflect 8 problematic racial attitudes. Cf. Kesser, 465 F.3d at 357 (purposeful discrimination evidenced by 9 racially biased statements of prosecutor). Accordingly, there is no affirmative evidence of 10 discriminatory attitudes that may have infected jury selection. 11 Even when a prosecutor’s racial biases are not explicit, however, they can manifest in the 12 differential treatment of jurors from different racial groups. Accordingly, comparative juror 13 analysis is the primary method for identifying facially race-neutral reasons for strikes that are 14 actually pretexts for discrimination. “If a prosecutor’s proffered reason for striking a black 15 panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is 16 evidence tending to prove purposeful discrimination to be considered at Batson’s third step.” 17 Miller-El II, 545 U.S. at 241. 18 The comparative juror analysis set forth above in relation to Step One applies with equal 19 force at Step Three. The prosecutor did not question P.M. or S.R. differently than she questioned 20 other prospective jurors, nor did she overlook in jurors from other racial groups the same 21 characteristics that were proffered as reasons for her strikes. Where no seated juror possessed the 22 trait that the prosecutor identified as the reason for a strike, comparative analysis supports the 23 justification proffered. Cook, 593 F.3d at 818. Here, no seated juror had a relative serving a life 24 sentence, like P.M., or a family member currently in the Sacramento County Jail, like S.R. No 25 seated juror had a background in social work like S.R., or commented about the role that drug 26 abuse can play in criminal conduct, as she did.7 As explained above, the differences between S.R. 27 6 Petitioner has made no evidentiary proffer beyond the state court record. 28 7 Occupation can be a legitimate basis for a peremptory strike. See Jamerson v. Runnels, 713 1 and Alternate Juror No. 2, a school psychologist, are greater than their arguable similarity of 2 profession. Where differences are greater than similarities, comparative juror analysis does not 3 support a finding of discrimination. See, e.g., Murray v. Schriro, 745 F.3d 984, 1008 (9th Cir. 4 2014). Because no non-Black jurors comparable to P.M. and S.R. were accepted by the 5 prosecution, there is no difference in treatment that juror race might explain. Having reviewed 6 the questionnaires and voir dire transcript, the undersigned finds no disparities that indicate 7 pretext or undermine the prosecutor’s justifications for the challenged strikes. 8 The record is not only devoid of evidence that the prosecutor purposefully discriminated, 9 it includes circumstances indicative of race-neutrality. As noted above regarding Step One, the 10 prosecutor struck a non-African American juror (Mr. Campbell) whose cousin was in the county 11 jail facing a homicide charge. The strike of Mr. Campbell suggests that the prosecutor was 12 striking, without regard to race, prospective jurors with family members incarcerated at 13 Sacramento County Jail and being prosecuted by the District Attorney’s Office at the time of 14 petitioner’s trial (like S.R.), and those with a family member facing or serving a lengthy felony 15 sentence (like P.M.). Campbell, S.R. and P.M. were the only prospective jurors who presented 16 these concerns, and all three were peremptorily challenged by the prosecutor. 17 Another relevant fact is that the prosecutor was willing to accept a third prospective 18 African American juror, who had no family members with serious criminal histories. This juror, 19 Mr. Cole, was struck by the defense. See 2 Aug. CT at 42 (Cole questionnaire); 1 Aug. RT at 211 20 (Cole voir dire, discussing son’s light rail infraction); id. at 236 (defense strike of Cole); 1 RT at 21 84 (prosecutor stating Cole was “perfectly suited for this jury” and “would have been perfectly 22 acceptable to the People”). The prosecutor’s willingness to accept Mr. Cole weighs against a 23 finding that she purposefully discriminated on the basis of race. 24 For all these reasons, the undersigned finds that even if a prima facie case of 25 discrimination exists or is assumed, petitioner has not met his burden of demonstrating that the 26 F.3d 1218, 1235 (9th Cir. 2013), cert. denied, 571 U.S. 1206 (2014). Concern that a juror might 27 have reason to sympathize or identify with the defendant, regardless of whether the identifying feature relates to the merits of the case, is also a permissible basis. See Rice v. Collins, 546 U.S. 28 333, 341 (2006); Williams v. Rhoades, 354 F.3d 1101, 1109-10 (9th Cir. 2004) MwOASe LW UV YOUNG INTE Ne RUC CO PO Ie AY te I te 1 || strikes were racially motivated. Racial discrimination in jury selection is odious and must never 2 || be tolerated—but there is no evidence of it here. 3 IV. Conclusion 4 For the reasons explained above, petitioner’s Batson claim fails on de novo review. The 5 || Findings and Recommendations at ECF No. 23 are HEREBY RESUBMITTED AS 6 | SUPPLEMENTED herein. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 9 | after being served with these findings and recommendations, any party may file written 10 | objections with the court and serve a copy on all parties. Such a document should be captioned 11 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 13 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). In 14 | his objections petitioner may address whether a certificate of appealability should issue in the 15 || event he files an appeal of the judgment in this case. See 28 U.S.C. § 2253(c)(2). 16 | DATED: May 29, 2020 ~ 17 Attten— Lhor—e_ ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 12