Sagapolu v. Kernan ( 2019 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CECIL SAGAPOLU, Case No. 18-cv-04630-HSG 8 Petitioner, ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF 9 v. HABEAS CORPUS AS UNTIMELY; DENYING CERTIFICATE OF 10 WARDEN ROBERT BURTON, APPEALABILITY 11 Respondent. Re: Dkt. No. 12 12 13 Petitioner Cecil Sagapolu, an inmate at Deuel Vocational Institution,1 in Tracy, California, 14 filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a conviction 15 and sentence from Alameda County Superior Court. Pending before the Court is respondent’s 16 Motion to Dismiss the Petition. Dkt. No. 12. Petitioner has filed an opposition, Dkt. No. 15, and 17 respondent has filed a reply, Dkt. No. 16. For the reasons set forth below, the Court GRANTS 18 respondent’s motion to dismiss. 19 BACKGROUND 20 On March 1, 2012, an Alameda County jury found Petitioner guilty of second degree 21 murder (count one) and illegal possession of a firearm by a felon (count 2). Dkt. No. 12-1 at 4. 22 The jury also found true the enhancement for personal use of a firearm. Dkt. No. 12-1 at 4. The 23 state court sentenced petitioner to an indeterminate term of fifteen years to life in prison on count 24 one, with a consecutive ten year term for the enhancement. The state court sentenced petitioner to 25 three years in prison on count two, but stayed the sentence pursuant to Cal. Penal Code § 654. 26 27 1 In accordance with Habeas Rule 2(a) and Rule 25(d)(1) of the Federal Rules of Civil Procedure, 1 Dkt. No. 12-1 at 4-5. Petitioner appealed the conviction and simultaneously filed a separate 2 petition for a writ of habeas corpus. Dkt. No. 12-1 at 5 and 16. In his appeal, petitioner alleged 3 that he was deprived of effective assistance of counsel because defense counsel (1) failed to raise 4 an objection to a question of an expert witness; (2) failed to counter the prosecutor’s argument that 5 it would have been difficult for the witness to shoot herself; and (3) failed to mention “reasonable 6 doubt” during closing argument. Dkt. No. 12-1 at 3-18. In his habeas petition, petitioner raised 7 the same issues but also sought an evidentiary hearing regarding trial counsel’s omissions. Dkt. 8 No. 12-1 at 3. On October 24, 2014, the state appellate court affirmed the conviction, denying the 9 ineffective assistance of counsel claims on the merits, and denied the state habeas petition in a 10 separate order. Dkt. No. 12-1 at 3-18. On September 2, 2014, petitioner submitted a petition for 11 review raising the same claims to the California Supreme Court, which was denied on January 14, 12 2015. Dkt. No. 12-1 at 20-38. 13 On September 9, 2015, petitioner initiated a second round of collateral proceedings in the 14 state court, filing a petition for a writ of habeas corpus in Alameda County Superior Court raising 15 the following grounds for relief: (1) trial counsel was ineffective when he failed to seek 16 suppression of petitioner’s statement to the police, failed to counter Dr. Beaver’s testimony by 17 calling an expert on the behavioral and psychological impact of methamphetamine use, failed to 18 have the jury properly instructed on causation, failed to prevent the jury from having access to 19 petitioner’s cellphone during deliberations, failed to have the jury instructed that absence of 20 provocation is an element of murder and also failed to seek a voluntary manslaughter instruction, 21 and cumulative error as a result of these deficiencies; (2) appellate counsel was ineffective when 22 he failed to raise these grounds on appeal and in the prior habeas petition; and (3) petitioner’s 23 rights to due process under the Fifth, Sixth, and Fourteenth Amendment were violated when trial 24 counsel failed to seek suppression of his statement to police, failed to correctly instruct the jury, 25 failed to prevent the jury from being exposed to his cellphone, and cumulative error. The 26 Alameda County Superior Court denied this petition on June 22, 2016, denying the claims of 27 ineffective assistance of trial counsel as untimely, citing to In re Clark, 5 Cal.4th 750, 755 (Cal. 1 (Cal. 1998), and denying these claims on the merits; denying the ineffective assistance of appellate 2 counsel claim on the merits; and denying the due process claim as procedurally barred for failure 3 to exhaust appellate remedies, citing to In re Harris, 5 Cal.4th 813, 823 (Cal. 1993) and In re 4 Dixon, 41 Cal.2d 756, 759 (Cal. 1983). Dkt. No. 12-1 at 40-62. Petitioner filed a petition for a 5 writ of habeas corpus with the California Court of Appeals, which was denied on September 1, 6 2017 as follows: A jury convicted petitioner Cecil Sagapolu of second-degree murder in 2012. We affirmed 7 his conviction and sentence in an unpublished opinion filed October 24, 2014 (A135464) and simultaneously denied his first habeas petition (A139895). In this successive petition, 8 Sagapolu raises multiple claims of ineffective assistance of counsel, some of them for the second time. 9 Having closely reviewed the petition, the Attorney General’s detailed response, and 10 petitioner’s reply, we conclude petitioner’s claims are without merit. In particular, petitioner has failed to show that the issues he claims his appellate counsel should have 11 raised, including those challenging the effectiveness of his trial counsel, are “one[s] that would have entitled the petitioner to relief had [they] been raised and adequately presented 12 in the initial petition, and that counsel’s failure to [raise and present these issues] reflects a standard of representation falling below that to be expected from an attorney engaged in 13 the representation of criminal defendants.” (In re Clark (1995) 5 Cal.4th 750, 780.) 14 The petition for writ of habeas corpus is accordingly DENIED. 15 Dkt. No. 12-1 at 64. On July 11, 2018, the California Supreme Court summarily denied the 16 petition for a writ of habeas corpus. Dkt. No. 12-1 at 65. 17 DISCUSSION 18 Respondent has filed a motion to dismiss this petition as untimely, arguing that the instant 19 petition, filed on July 16, 2018,2 is untimely because petitioner’s conviction became final on April 20 14, 2015, and petitioner’s second round of state collateral proceedings did not toll the limitations 21 period. Dkt. No. 12. Petitioner argues that the limitations period was tolled because the state 22 2 In determining when a pro se state or federal petition is filed, the “mailbox” rule applies. A 23 petition is considered to be filed on the date a prisoner hands the petition to prison officials for mailing. Ramirez v. Yates, 571 F.3d 993, 996 n.1 (9th Cir. 2009); Jenkins v. Johnson, 330 F.3d 24 1146, 1149 n.2 (9th Cir. 2003), overruled on other grounds by Pace v. DiGuglielmo, 544 U.S. 408 (2005). It is unclear from the record when petitioner handed the petition to prison officials for 25 mailing. No proof of service was submitted with the petition, and there is no record of the envelope in the docket. Although the petition was docketed by the Court on July 31, 2018, the 26 petition was signed on July 16, 2018. Dkt. No. 1 at 6. Whether the petition should be deemed filed on July 16, 2018, July 31, 2018, or a date in between does not affect the analysis regarding 27 the petition’s timeliness. Accordingly, for the purposes of this motion, the Court presumes that 1 courts addressed his second round of habeas petitions on the merits. Dkt. No. 15. 2 A. Statute of Limitations 3 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) became law on 4 April 24, 1996, and imposed for the first time on state prisoners a one-year statute of limitations 5 for filing federal petitions for a writ of habeas corpus. In relevant part, Section 2244(d)(1)(A) 6 requires state prisoners challenging non-capital state convictions or sentences to file their habeas 7 petitions within one year of the latest of the date on which the judgment became final after the 8 conclusion of direct review or the time passed for seeking direct review. 28 U.S.C. 9 § 2244(d)(1)(A).3 The one-year period generally will run from “the date on which the judgment 10 became final by the conclusion of direct review or the expiration of the time for seeking such 11 review.” 28 U.S.C. § 2244(d)(1)(A). “Direct review” concludes upon the United States Supreme 12 Court’s denial of certiorari review of a state court conviction, or upon the expiration of the time 13 for filing a petition for certiorari review in the United States Supreme Court. Bowen v. Roe, 188 14 F.3d 1157, 1159 (9th Cir. 1999); see also Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) 15 (where petitioner did not file petition for certiorari, his conviction became final 90 days after the 16 California Supreme Court denied review); Bowen, 188 F.3d at 1159 (same). 17 The one-year statute of limitations is tolled under Section 2244(d)(2) for the “time during 18 which a properly filed application for State post-conviction or other collateral review with respect 19 to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). A state habeas petition 20 filed before AEDPA’s statute of limitations begins to run tolls the limitations period. Jiminez v. 21 Rice, 276 F.3d 478, 482 (9th Cir. 2001). A state habeas petition filed after AEDPA’s statute of 22 limitations ended cannot toll the limitations period. See Ferguson v. Palmateer, 321 F.3d 820, 23 823 (9th Cir. 2003) (“[S]ection 2244(d) does not permit the reinitiation of the limitations period 24 3 Section 2244(d)(1)(B)-(D) also provides for the delayed commencement of the AEDPA one-year 25 limitations period in three circumstances. Where applicable, the limitations period may start from (1) the date when an impediment to filing an application created by unconstitutional state action 26 was removed, if such action prevented the petitioner from filing; (2) the date a constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme 27 Court and made retroactive to cases on collateral review; or (3) the date the factual predicate of the 1 that has ended before the state petition was filed,” even if the state petition was timely filed); 2 Jiminez, 276 F.3d at 482 (same). 3 An application for collateral review is “pending” in state court for “all of the time during 4 which a state prisoner is attempting, through proper use of state court procedures, to exhaust state 5 court remedies with regard to a particular post-conviction application.” Nino v. Galaza, 183 F.3d 6 1003, 1006 (9th Cir. 1999). If the time to file a federal petition has not already expired when a 7 second round of properly filed California habeas petitions begins, the second round of petitions 8 can toll the § 2244(d)(1) period. See Dils v. Small, 260 F.3d 984, 986 (9th Cir. 2001). 9 The second round of habeas petitions tolls the AEDPA statute of limitations period only if 10 the petition is properly filed. In Artuz v. Bennett, 531 U.S. 4 (2000), Carey v. Saffold, 536 U.S. 11 214 (2002), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), the United States Supreme Court 12 addressed what “properly filed” means for purposes of Section 2244(d)(2) tolling. In Artuz, the 13 United States Supreme Court determined that “an application is ‘properly filed’ when its delivery 14 and acceptance are in compliance with the applicable laws and rules governing filings.” Artuz, 15 531 U.S. at 8. Subsequently, in Carey, the United States Supreme Court held that a petition was 16 not properly filed if the state court issued a clear ruling that the petition was untimely even if the 17 state court also considered the petition on the merits. Specifically, the Carey court considered 18 whether Section 2244(d)(2) required tolling where the California Supreme Court denied the 19 petition both “on the merits and for lack of diligence.” Carey, 536 U.S. at 225. Although the 20 Carey court found that the California Supreme Court’s order was unclear and remanded the case 21 to the Ninth Circuit to determine why the California Supreme Court would have considered the 22 merits of the petition if it considered the petition untimely, the Carey court explained that, if the 23 California Supreme Court had clearly ruled that Saffold’s four-and-a-half month delay was 24 “unreasonable,” i.e., untimely, “that would be the end of the matter, regardless of whether [the 25 California Supreme Court] also addressed the merits of the claim, or whether its timeliness ruling 26 was ‘entangled’ with the merits.” Id. at 226. 27 Three years later, in Pace, the Supreme Court clarified: “When a postconviction petition is 1 554 U.S. at 414. A state’s “time limits, no matter their form, are ‘filing’ conditions.” Id. at 417. 2 If the state court rejects a state habeas petition as untimely, it was not “properly filed” and the 3 petitioner is not entitled to statutory tolling under Section 2244(d)(2). Id. Accordingly, for tolling 4 to be applied based on a second round of California habeas petitions, that second habeas petition 5 cannot have been denied as untimely. See, e.g., Townsend v. Knowles, 562 F.3d 1200, 1205 (9th 6 Cir. 2009), abrogated by Walker v. Martin, 562 U.S. 307 (2011) (applying Pace and Bonner v. 7 Carey, 425 F.3d 1145 (9th Cir. 2005) and finding that, where state court denied state habeas 8 petition as untimely and on the merits, petition was not properly filed within the meaning of 9 Section 2244(d)(2)); Bonner v. Carey, 425 F.3d 1145, 1148–49 (9th Cir. 2005) (observing that 10 “[t]he fact that California provides exceptions to its timely filing requirement” and “the fact that 11 the superior court also denied [] petition on the merits” do not alter the conclusion that an untimely 12 state filing is not properly filed within the meaning of Section 2244(d)(2)), opin. amended on 13 other grounds, 439 F.3d 993 (9th Cir. 2006). 14 Additionally, a successive petition in California is not “properly filed” for AEDPA tolling 15 purposes. Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“For tolling to be applied based on 16 a second round, the petition cannot be untimely or an improper successive petition.”) (citing 17 Townsend, 562 F.3d at 1205).4 18 4 There is a split in our district as to whether Porter’s statement regarding successive petitions is 19 binding Ninth Circuit precedent. In Rogers v. Swarthout, No. C-14-3087 EMC (PR), 2015 WL 493842 (N.D. Cal. Feb. 4, 20 2015), the Rogers court reasoned that the statement in Porter regarding successive petitions “was dicta rather than the holding because the case involved a state petition rejected as untimely rather 21 than as successive” and the Rogers court relied on Townsend v. Knowles, 562 F.3d 1200 (9th Cir. 2009), overruled on other grounds by Walker v. Martin, 562 U.S. 307 (2011), which did not 22 concern a successive petition. The Rogers court instead found that Artuz v. Bennett, 531 U.S. 4 (2000), was controlling; that Artuz held that a petition rejected by the state court as a successive 23 petition could nonetheless be a properly filed petition; and that Artuz remained good law after Pace v. DiGuglielmo, 544 U.S. 408 (2005). 24 In contrast, in Polk v. Hughes, No. 12-CV-05986-VC (PR), 2015 WL 1322304 (N.D. Cal. Mar. 24, 2015), aff’d sub nom. Polk v. Hill, 700 F. App’x 688 (9th Cir. 2017), the Polk court 25 reasoned that Pace had explained that Artuz held that “time limits on post-conviction petitions are conditions to filing such that an untimely petition would not be ‘properly filed,’” and that under 26 California law a successive petition is a delayed petition, and therefore successive petitions are not properly filed within the meaning of § 2244(d)(2). Id. at *3. 27 This Court has carefully considered the relevant caselaw and defers to the Ninth Circuit’s 1 In addition, if there is any gap between the completion of one round of review and the 2 commencement of another round of state habeas review, the petitioner is not entitled to tolling 3 during the gap.5 See Biggs v. Duncan, 339 F.3d 1045, 1046-48, 1048 (9th Cir. 2003) (finding that 4 petitioner was not entitled to tolling of the 129 day period before he began a second round of 5 habeas petitions because his first round of collateral review, which fully exhausted the claims 6 raised in the first petition, was complete when the California Supreme Court denied the first 7 petition); Smith v. Duncan, 297 F.3d 809, 814-15 (9th Cir. 2002) (when calculating tolling period, 8 excluding gap between first set of state habeas petitions (superior court, court of appeal and 9 supreme court) and second set of state habeas petitions (superior court, court of appeal and 10 supreme court)); Dils, 260 F.3d at 986 (no tolling limitations period during gap between 11 successive state habeas petitions filed in the state’s highest court). 12 B. Analysis 13 The following facts are undisputed. 14 Petitioner’s first round of state collateral proceedings commenced when he filed a habeas 15 petition along with his appeal, and was completed on January 14, 2015 when the California 16 Supreme Court denied his petition. Petitioner’s conviction became final on April 14, 2015, ninety 17 days after the California Supreme Court denied petitioner’s petition for review on January 14, 18 2015. 19 On September 9, 2015, petitioner commenced his second round of state collateral 20 proceedings when he filed his second habeas petition in Alameda County Superior Court. 21 Petitioner’s second round of state collateral proceedings was completed on July 11, 2018, when 22 “properly filed” within the meaning of Section 2244(d)(2). Townsend, 562 F.3d at 1205. In 23 Porter, the Ninth Circuit interpreted the holding in Townsend as holding that successive petitions, because they are untimely, would also not be “properly filed” within the meaning of Section 24 2244(d)(2). Although Townsend does not mention successive petitions or concern a successive petition, this Court is bound by the Ninth Circuit’s interpretation of its own circuit law. 25 5 In two circumstances, tolling is available for the time period between the two petitions. Where the successive petition is limited to an elaboration of the facts relating to the claims in the first 26 petition and where the successive petition attempts to correct deficiencies of the initial petition, the petitioner is then still making “proper use of state court procedures” and the time period between 27 the two petitions is tolled. King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003). This exception is 1 the California Supreme Court denied his second habeas petition. 2 On or about July 16, 2018, petitioner filed the instant petition. 3 The one-year AEDPA statute of limitations period for the underlying conviction began to 4 run on April 14, 2015, when petitioner’s conviction became final. As of that date, petitioner had 5 completed one round of state collateral proceedings. One hundred and forty-eight (148) days later, 6 on September 9, 2015, petitioner commenced his second round of collateral proceedings. Because 7 the second habeas petition raised new claims and was not an attempt to correct deficiencies in the 8 initial petition, petitioner is not entitled to tolling for the time period between the two rounds of 9 state collateral proceedings. See King, 340 F.3d at 823; Biggs, 339 F.3d at 1046-48. 10 The question before the Court is whether petitioner’s second habeas petition was properly 11 filed within the meaning of Section 2244(d)(2), thereby entitling him to statutory tolling for the 12 time period during which his second habeas petition was pending (September 9, 2015 to July 11, 13 2018). If petitioner is entitled to statutory tolling for that time period, the instant federal habeas 14 petition is timely filed. If petitioner is not entitled to statutory tolling for that time period, the 15 limitations period expired on April 14, 2016, and the instant petition is untimely by approximately 16 two years and three months. 17 Respondent argues that the second habeas petition was not properly filed within the 18 meaning of § 2244(d)(2) because the state court denied the petition as successive. Petitioner 19 argues that it was decided on the merits, making it properly filed for Section 2244(d)(2) purposes. 20 Petitioner also argues that the state court referenced In re Clark, 5 Cal. 4th 570 (1995), only to 21 address the merits of petitioner’s federal ineffective assistance of counsel claims, as evidenced by 22 the pin citation and quotation used, and is not an indication that the state court relied on other 23 aspects of Clark to deny his petition. Petitioner further argues that the state court’s denial turned 24 solely on federal law and did not evaluate petitioner’s compliance with state procedural rules. 25 Dkt. No. 15 at 2. 26 The Court agrees with respondent. As discussed above, where a state court denies a 27 petition both on the merits and as untimely, the petition is considered untimely and is not properly 1 414-17; Townsend, 562 F.3d at 1205; Bonner, 425 F.3d at 1148–49. The Court therefore turns to 2 the language used by the state court in denying the petition to determine whether the petition was 3 denied as successive. Because the California Supreme Court denied petitioner’s second state 4 habeas petition without any reasoning, the Court looks to the California Court of Appeal’s 5 decision denying the second state habeas petition as the last reasoned state court decision. 6 Martinez v. Garcia, 379 F.3d 1034, 1037 n.2 (9th Cir. 2004). 7 The California Court of Appeal clearly identified the second habeas petition as successive, 8 stating: “In this successive petition, Sagapolu raises multiple claims of ineffective assistance of 9 counsel, some of them for the second time.” Dkt. No. 12-1 at 64 (emphasis added). The 10 California Court of Appeal then summarily denied all the claims on the merits, and followed this 11 summary denial by discussing the merits of the ineffective assistance of appellate counsel claims 12 and quoting In re Clark, 5 Cal. 4th 750, 780 (1995). Dkt. No. 12-1 at 64. 13 The Court agrees with petitioner that this pinpoint citation to In re Clark cannot be 14 interpreted as incorporating all of Clark. However, the Court disagrees with petitioner’s claim that 15 this pinpoint citation “informs us only that the particular [quotation] was lifted from that page” 16 and that the quoted passage denies the ineffective assistance of appellate counsel by applying the 17 Strickland standard. Dkt. No. 15 at 2. The petitioner in Clark did not allege ineffective assistance 18 of appellate counsel, and the quoted language cannot reasonably be read to be applying or 19 referencing Strickland. Rather, the Court agrees with respondent that, by quoting this passage, the 20 California Court of Appeal emphasized that its denial on the merits of the ineffective assistance of 21 appellate counsel claims also preemptively denied any implied arguments that the alleged 22 ineffective assistance of appellate counsel constituted cause to excuse petitioner’s procedural 23 default which, in this case, was the failure to raise all his claims in the initial petition. 24 If, therefore, counsel failed to afford adequate representation in a prior habeas corpus application, that failure may be offered in explanation and justification of the need to file 25 another petition. The petitioner must, however, allege with specificity the facts underlying the claim that the inadequate presentation of an issue or omission of any issue reflects 26 incompetence of counsel, i.e., that the issue is one which would have entitled the petitioner to relief had it been raised and adequately presented in the initial petition, and that 27 counsel’s failure to do so reflects a standard of representation falling below that to be potential significance, he may not fault counsel for failing to pursue that theory of relief if 1 the petitioner failed to advise counsel of those facts. 2 Moreover, mere omission of a claim “developed” by new counsel does not raise a presumption that prior habeas corpus counsel was incompetent, or warrant consideration of 3 the merits of a successive petition. Nor will the court consider on the merits successive petitions attacking the competence of trial or prior habeas corpus counsel which reflect 4 nothing more than the ability of present counsel with the benefit of hindsight, additional time and investigative services, and newly retained experts, to demonstrate that a different 5 or better defense could have been mounted had trial counsel or prior habeas corpus counsel had similar advantages. 6 In re Clark, 5 Cal. 4th at 780 (emphasis added). The quotation, read in context, explains when 7 ineffective assistance of appellate counsel can constitute cause to excuse the filing of a petition 8 that is untimely because it is successive. 9 The Court finds that the California Court of Appeal’s order denied the second habeas 10 petition on the merits and as successive. Accordingly, the second habeas petition was not 11 “properly filed” within the meaning of Section 2244(d)(2), and petitioner is not entitled to 12 statutory tolling for September 9, 2015 to July 11, 2018. See Porter, 620 F.3d at 957; see also 13 Hughes v. Paramo, C No. CV 17-154-FMO (PJW), 2018 WL 3238585, at *4 and n.4 (C.D. Cal. 14 Jun. 25, 2018) (finding that state habeas petition rejected as successive was not properly filed and 15 collecting cases; rejecting Rogers’ holding that Porter was dicta); Silva v. Cate, C No. 12–CV– 16 1314 LAB (NLS), 2013 WL 3353845, at *4 n.3 (S.D. Cal. Jul. 3, 2013) (“A successive state 17 habeas petition is not considered ‘properly filed’ under § 2244(d), and therefore cannot be used 18 when calculating statutory tolling.”). 19 CERTIFICATE OF APPEALABILITY 20 The federal rules governing habeas cases brought by state prisoners require a district court 21 that issues an order denying a habeas petition to either grant or deny therein a certificate of 22 appealability. See Rules Governing Habeas Corpus Cases Under Section 2254, Rule 11(a). 23 A judge shall grant a certificate of appealability “only if the applicant has made a 24 substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), and the 25 certificate must indicate which issues satisfy this standard, id. § 2253(c)(3). “Where a district 26 court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) 27 is straightforward: [t]he petitioner must demonstrate that reasonable jurists would find the district 1 court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 2 || 473, 484 (2000). 3 Here, petitioner has not made such a showing, and, accordingly, a certificate of 4 appealability will be denied. 5 CONCLUSION 6 For the reasons stated above, respondent’s motion to dismiss the petition as untimely is 7 GRANTED. The petition for a writ of habeas corpus is DENIED as untimely, and a certificate of 8 appealability is DENIED. 9 The Clerk shall enter judgment in favor of respondent and close the file. 10 This order terminates Dkt. No. 12. 11 IT IS SO ORDERED. 12 || Dated: 12/2/2019 4 HAYWOOD S. GILLIAM, JR. United States District Judge 2 16 18 19 20 21 22 23 24 25 26 27 28