(HC) Lino Manuel Perez v. State of California, No. 1:2008cv01701 - Document 24 (E.D. Cal. 2010)
Court Description: ORDER DENYING PETITION for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Enter Judgment; ORDER DECLINING to Issue Certificate of Appealability, signed by Magistrate Judge John M. Dixon, Jr on 3/1/2010. CASE CLOSED. (Jessen, A)
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(HC) Lino Manuel Perez v. State of California Doc. 24 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 9 10 11 12 LINO MANUEL PEREZ, ) ) Petitioner, ) ) v. ) ) THE STATE OF CALIFORNIA, ) ) Respondent. ) _________________________________) 1:08-CV-01701 JMD HC ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF COURT TO ENTER JUDGEMENT ORDER DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 13 14 15 16 Petitioner Lino Manuel Perez (“Petitioner”) is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. PROCEDURAL HISTORY 17 Petitioner is currently in custody pursuant to a judgement of the Fresno County Superior 18 Court. (Pet. at 2; Answer at 1). Petitioner was convicted by a jury of attempted second degree 19 murder with personal infliction of great bodily injury (Cal. Penal Code §§ 187(a), 664, 12022.7(a)), 20 assault with a deadly weapon with personal infliction of great bodily injury (Cal. Penal Code §§ 21 245(a)(1), 12022.7(a)), criminal threats with personal use of a deadly weapon ((Cal. Penal Code §§ 22 422, 12022(b)(1)), battery with infliction of serious bodily injury (Cal. Penal Code §§ 243(d)(4), 23 willful infliction of corporate injury on a former cohabitant with personal infliction of great bodily 24 injury (Cal. Penal Code §§ 273.5(a), 12022.7(a)), 664, 12022.7(a)), two counts of misdemeanor child 25 abuse (Cal. Penal Code §§ 273a(a), 664, 12022.7(a)), and misdemeanor battery ((Cal. Penal Code § 26 242). (Pet. Ex. A at 2). The trial court imposed a term of twelve years, consisting of a nine year 27 aggravated term for the attempted second degree murder and three years for infliction of great bodily 28 injury, while staying the terms on the remaining felony convictions and imposing concurrent six U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 2 month terms on the misdemeanor child abuse conviction. (Answer at 2; Pet. Ex. A at 2-3). Petitioner appealed his conviction to the California Court of Appeal, Fifth Appellate District, 3 which issued a reasoned opinion on December 20, 2007, affirming the decision except as to one 4 count of misdemeanor child abuse. (See Pet. Ex. A). 5 6 7 Petitioner filed a petition for review with the California Supreme Court, which issued an order denying review on March 12, 2008. (Lod. Docs. 2, 3). On November 7, 2008, Petitioner filed the instant federal petition for writ of habeas corpus 8 with this court. On April 3, 2009, Respondent filed a response to the petition. 9 Consent to Magistrate Judge Jurisdiction 10 On December 1, 2008, Petitioner consented, pursuant to Title 18 U.S.C. section 636(c)(1), to 11 have a magistrate judge conduct all further proceedings, including the entry of final judgment. 12 (Court Doc. 7). Respondent consented to the jurisdiction of a magistrate judge on February 4, 2009. 13 (Court Doc. 13). On February 19, 2010, the case was reassigned to the undersigned for all further 14 proceedings. (Court Doc. 23). FACTUAL BACKGROUND1 15 16 17 18 19 20 21 22 23 24 On April 21, 2006, appellant Lino Manuel Pérez's former live-in girlfriend María and her four-year-old granddaughter Gabrielle went to a school softball game to watch María's eight-year-old granddaughter Monique play. Just after the game began, María's daughter Janette arrived from work and joined María and Gabrielle in the stands. After the game, María and Gabrielle walked hand-in-hand to the parking lot and, as María opened the door of her van to put Gabrielle inside, she suddenly saw Pérez right in front of her. He asked her, “Don't you think you punished me long enough already by keeping me away from you?” He grabbed María by the hair, punched her in the eye, and pulled out a knife from inside his jacket. He stabbed her, time after time, inflicting deep gashes to her face, throat, chest, and hands, as he angrily told her, over and over, “You're going to die.” Falling to the ground, María managed to grab the knife from Pérez's hand. Janette struggled to keep him away from María. One of Monique's coaches tackled him and stayed on top of him until Janette, an off-duty district attorney's office 25 1 26 27 28 These facts are derived from the California Court of Appeal’s opinion issued on December 20, 2007. (See Pet. Ex. A). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a determination of fact by the state court is presumed to be correct unless Petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004); see also Sanders v. Lamarque, 357 F.3d 943, 948 (9th Cir. 2004). Here, Petitioner has not presented evidence that would permit the Court to set aside the presumption of correctness that has attached to the State court’s factual findings. U .S. D istrict C ourt E. D . C alifornia 2 1 2 investigator, handcuffed him. (Pet. Ex. A, Opinion of the California Court of Appeal, Fifth Appellate District, at 1-2). 3 4 DISCUSSION I. 5 Jurisdiction and Venue A person in custody pursuant to a state court judgment may petition a district court for relief 6 by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or treaties of 7 the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 8 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by the U.S. 9 Constitution. As Petitioner’s custody arose from a conviction in the Fresno County Superior Court, 10 the Court has jurisdiction over Petitioner’s application for writ of habeas corpus. See 28 U.S.C. § 11 84(b) (listing as part of this Court’s judicial district Fresno County); see also U.S.C. § 2241(d) 12 (vesting concurrent jurisdiction for an application for writ of habeas corpus to the district court 13 where the petitioner “is in custody or in the district court for the district within which the State court 14 was held which convicted and sentenced him” if the State “contains two or more Federal judicial 15 districts”). 16 II. 17 ADEPA Standard of Review On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 18 1996 (“AEDPA”), which applies to all petitions for a writ of habeas corpus filed after the statute’s 19 enactment. Lindh v. Murphy, 521 U.S. 320, 326-327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 20 (9th Cir. 1997), cert. denied, 522 U.S. 1008, 118 S.Ct. 586 (1997) (quoting Drinkard v. Johnson, 97 21 F.3d 751, 769 (5th Cir. 1996), cert. denied, 520 U.S. 1107 (1997), overruled on other grounds by 22 Lindh, 521 U.S. 320 (holding AEDPA only applicable to cases filed after statute’s enactment)). As 23 the instant petition was filed in 2008, AEDPA’s provisions governs the Court’s adjudication of the 24 petition. Lockyer v. Andrade, 538 U.S. 63, 70 (2003); see also Sass v. California Board of Prison 25 Terms, 461 F.3d 1123, 1126-1127 (9th Cir. 2006) (quoting White v. Lambert, 370 F.3d 1002, 1006 26 (9th Cir. 2004) in holding that, “[s]ection 2254 ‘is the exclusive vehicle for a habeas petition by a 27 state prisoner in custody pursuant to a state court judgment, even when the petitioner is not 28 challenging his underlying state court conviction’”). Consequently, the petition for habeas corpus U .S. D istrict C ourt E. D . C alifornia 3 1 “may be granted only if he demonstrates that the state court decision denying relief was ‘contrary to, 2 or involved an unreasonable application of, clearly established Federal law, as determined by the 3 Supreme Court of the United States.’” Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 2007) (quoting 28 4 U.S.C. § 2254(d)(1)); see Lockyer, 538 U.S. at 70-71. 5 As a threshold matter, this Court must “first decide what constitutes ‘clearly established 6 Federal law, as determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71 7 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal law,” this 8 Court must look to the “holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of 9 the time of the relevant state-court decision.” Id. (quoting Williams, 592 U.S. at 412). “In other 10 words, ‘clearly established Federal law’ under § 2254(d)(1) is the governing legal principle or 11 principles set forth by the Supreme Court at the time the state court renders its decision.” Id. 12 Finally, this Court must consider whether the state court’s decision was “contrary to, or 13 involved an unreasonable application of, clearly established Federal law.” Lockyer, 538 U.S. at 72, 14 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant 15 the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 16 question of law or if the state court decides a case differently than [the] Court has on a set of 17 materially indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. 18 “Under the ‘unreasonable application clause,’ a federal habeas court may grant the writ if the state 19 court identifies the correct governing legal principle from [the] Court's decisions but unreasonably 20 applies that principle to the facts of the prisoner's case.” Williams, 529 U.S. at 413. “[A] federal 21 court may not issue the writ simply because the court concludes in its independent judgment that the 22 relevant state court decision applied clearly established federal law erroneously or incorrectly. 23 Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making the 24 “unreasonable application” inquiry should ask whether the State court's application of clearly 25 established federal law was “objectively unreasonable.” Id. at 409. 26 \\\ 27 \\\ 28 \\\ U .S. D istrict C ourt E. D . C alifornia 4 1 Petitioner bears the burden of establishing that the state court’s decision is contrary to or 2 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 3 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth 4 Circuit precedent remains relevant persuasive authority in determining whether a state court decision 5 is objectively unreasonable. See Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003); Duhaime v. 6 Ducharme, 200 F.3d 597, 600-01 (9th Cir. 1999). Furthermore, AEDPA requires that we give 7 considerable deference to state court decisions. The state court's factual findings are presumed 8 correct. 28 U.S.C. § 2254(e)(1). We are bound by a state's interpretation of its own laws. Souch v. 9 Schaivo, 289 F.3d 616, 621 (9th Cir. 2002). 10 The initial step in applying AEDPA’s standards requires a federal habeas court to “identify 11 the state court decision that is appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 12 (9th Cir. 2005). Where more than one State court has adjudicated Petitioner’s claims, the Court 13 analyzes the last reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) for the 14 presumption that later unexplained orders, upholding a judgment or rejecting the same claim, rests 15 upon the same ground as the prior order). Thus, a federal habeas court looks through ambiguous or 16 unexplained state court decisions to the last reasoned decision in order to determine whether that 17 decision was contrary to or an unreasonable application of clearly established federal law. Bailey v. 18 Rae, 339 F.3d 1107, 1112-1113 (9th Cir. 2003). Here, the California Court of Appeal and the 19 California Supreme Court were the only courts to have adjudicated Petitioner’s claim. As the 20 California Supreme Court summarily denied Petitioner’s claims, the Court looks through those 21 decisions to the last reasoned decision; namely, that of the California Court of Appeal. See Ylst v. 22 Nunnemaker, 501 U.S. at 804. 23 III. 24 Review of Petitioner’s Claim The instant petition for writ of habeas corpus seemingly contains two grounds for 25 relief2–specifically, Petitioner contends that the trial court’s imposition of the upper term and the trial 26 court’s issuance of CALCRIM Nos. 103 and 220 violated his constitutional rights. 27 2 28 In the areas marked grounds for relief, Petitioner references the attached memorandum (Court Doc. 2), which contains the two grounds for relief discussed herein. U .S. D istrict C ourt E. D . C alifornia 5 1 A. 2 The trial court imposed a sentence consisting in part of an upper term of nine years for the Imposition of Upper Term 3 principal offense and remaining felony counts. Petitioner argues that the trial court’s actions violated 4 clearly established federal law, as stated by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 5 466 (2000) and its progeny. In Apprendi, the United States Supreme Court overturned a state 6 sentencing scheme as violative of a criminal defendant’s right to have a jury verdict based on proof 7 beyond a reasonable doubt. The sentencing scheme permitted a trial judge to enhance a defendant’s 8 penalty beyond the prescribed statutory maximum upon a finding by a preponderance of the evidence 9 that the defendant committed the crime with racial animus. Id. at 469. The Supreme Court held that 10 the Sixth Amendment right to a jury trial required that “any fact that increases the penalty for a crime 11 beyond the prescribed statutory maximum must be submitted to jury, and proved beyond a 12 reasonable doubt.” Id. at 490. In Blakely v. Washington, 542 U.S. 296, 303-304 (2004), the high 13 court explained that the “statutory maximum” is the maximum sentence a judge may impose based 14 exclusively on the facts reflected in the jury verdict or admitted by the defendant and not the 15 maximum sentence a judge may impose after finding additional facts. 16 The United States Supreme Court subsequently found that the imposition of upper terms, as 17 delineated in California’s Determinate Sentencing Law, based on facts found by a judge violated a 18 criminal defendant’s constitutional rights. See Cunningham v. California, 549 U.S. 270, 293 (2007) 19 (overruling People v. Black, 35 Cal.4th 1238 (2005)). The Cunningham court noted that the middle 20 term specified in California’s statutes was the relevant statutory maximum for the purpose of 21 applying Blakely and Apprendi. The high court thus concluded that the imposition of the upper term 22 based solely upon a trial judge’s fact finding violated the defendant’s Sixth and Fourteenth 23 Amendment rights because it “assigns to the trial judge, not the jury, authority to find facts that 24 expose a defendant to an elevated ‘upper term’ sentence.” Id. at 274. 25 “[T]he relevant question is not what the trial court would have done, but what it legally could 26 have done.” Butler v. Curry, 528 F.3d 624, 648-649 (9th Cir. 2008) (emphasis in original). Only one 27 aggravating factor need to be proven for imposition of the upper term in California. See. Black II, 41 28 Cal.4th at 806; Butler, 528 F.3d at 642-643. As noted by the California Court of Appeals in U .S. D istrict C ourt E. D . C alifornia 6 1 Petitioner’s case, the Supreme Court’s holding in Cunningham contained an exception permitting a 2 trial court to use a prior conviction to impose the upper term. (Pet. Ex. A at 9-10). The appellate 3 court recognized that the trial court found “no circumstances in mitigation and found as 4 circumstances in aggravation, inter alia, that the victim was particularly vulnerable, that he took 5 advantage of a position of trust and confidence, that his prior convictions as an adult were 6 numerous, that he was on probation at the time of the crime, and that his prior performance on 7 probation was unsatisfactory.” (Id. at 9) (emphasis added). 8 The appellate court was correct that clearly established Supreme Court precedents permit the 9 imposition of a term beyond the prescribed statutory maximum based on a judge finding’s of a prior 10 conviction. See Almendarez-Torres v. United States, 523 U.S. 224, 244 (1998) (holding that fact of 11 prior conviction need not be pleaded in an indictment or proved beyond a reasonable doubt).3 As 12 one of the factors relied upon by the trial court in imposing the upper term was Petitioner’s prior 13 convictions and only one factor is required to impose the upper term, the State court’s finding was 14 not an objectively unreasonable application of clearly established federal law. Petitioner is not 15 entitled to relief based on this ground. 16 B. 17 Petitioner contends that the issuance of CALCRIM Nos. 103 and 220 was erroneous as they 18 Instructional Error did not adequately convey the concept of proof beyond a reasonable doubt. 19 Generally, claims based on instructional error under state law are not cognizable on habeas 20 corpus review. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (citing Marshall v. Lonberger, 459 21 U.S. 422, 438 n. 6 (1983)). To obtain federal collateral relief for errors in the jury charge, a 22 petitioner must show that the error so infected the entire trial that the resulting conviction violates 23 due process. Estelle, 502 U.S. at 72; see Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting 24 25 26 27 28 3 Here, the trial court also relied upon Petitioner’s probationary status at the time of the arrest. The Ninth Circuit in Butler, 528 F.3d at 645, questioned extending the prior conviction exception to facts not apparent on the face of the conviction and ultimately concluded that the exception does not apply to probationary status. However, the Ninth Circuit has also recognized that a state court’s reliance on probationary status is not an objectively unreasonable application of clearly established federal law. See Kessee v. Mendoza-Powers, 574 F.3d 675, 678-679 (9th Cir. 2009) (noting that a number of other courts had reached a different conclusion, thereby making the state court’s finding that the prior conviction exception included probationary status not an objectively unreasonable application of clearly established federal law). U .S. D istrict C ourt E. D . C alifornia 7 1 Cupp v. Naughten, 414 U.S. 141, 146-47 (1973) in finding that a habeas court must not merely 2 consider whether an “instruction is undesirable, erroneous, or even universally condemned” but must 3 instead determine“‘whether the ailing instruction by itself so infected the entire trial that the resulting 4 conviction violates due process’”). An erroneous jury instruction “directed toward an element of the 5 offense may rise to the level of a constitutional defect.” Byrd, 566 F.3d at 862 (citing Neder v. 6 United States, 527 U.S. 1, 9-10 (1999)). “Due process requires that jury instructions in criminal 7 trials give effect to the prosecutor’s burden of proving every element of the crime charged beyond a 8 reasonable doubt. [Citation] ‘Nonetheless, not every ambiguity, inconsistency, or deficiency in a jury 9 instruction rises to the level of a due process violation.’” Townsend v. Knowles, 562 F.3d 1200, 1209 10 (9th Cir. 2009) (quoting Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam)). 11 Additionally, “[t]he jury instruction may not be judged in artificial isolation, but must be considered 12 in the context of the instructions as a whole and the trial record.” Id. (citation and internal quotation 13 marks omitted). “If the charge as a whole is ambiguous, the question is whether there is a reasonable 14 likelihood that the jury has applied the challenged instruction in a way that violates the 15 Constitution.” Middleton, 541 U.S. at 437. 16 Petitioner is challenging the issuance of CALCRIM No. 103, which states: 17 I will now explain the presumption of innocence and the People's burden of proof. The defendant has pleaded not guilty to the charges. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. 18 19 20 21 22 23 24 25 (CT at 223; 224; RT at 907-908) 26 Petitioner also challenges the trial court’s issuance of CALCRIM No. 220, which states: 27 28 The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just U .S. D istrict C ourt E. D . C alifornia 8 1 because he has been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. 2 3 4 5 6 7 8 (CT at 237-238; RT at 2996-2997). 9 Petitioner contends that the use of the phrase “abiding conviction” alone in those two jury 10 instructions fails to convey the “subjective certitude” required to define proof beyond a reasonable 11 doubt. (Pet. Mem. P. & A. at 8). In sum, Petitioner argues that the use of this phrase lead to a 12 lessened burden of proof being imposed upon the prosecution and consequently resulted in a 13 violation of his constitutional rights. The State appellate court rejected this argument, noting that 14 “numerous [California] Court of Appeal opinions have rebuffed challenges to the use of the term” 15 and finding that Petitioner failed to establish that there was a reasonable likelihood that the jury 16 understand those instructions to permit a conviction based on a lesser standard. The Court finds the 17 State appellate court’s reasoning to be an objectively reasonable application of Supreme Court 18 precedent as the term “abiding conviction,” standing alone, properly conveys the prosecution’s 19 burden of proof. See Lisenbee v. Henry, 166 F.3d 997, 1000 (9th Cir. 1999) (citing to Victor v. 20 Nebraska, 511 U.S. 1, 14-15 (1994) and Ramirez v. Hatcher, 136 F.3d 1209, 1214 (9th Cir. 1998) in 21 concluding that “no reason to depart from established precedent expressly affirming jury instructions 22 cast in terms of abiding conviction”); see also Martinez v. McDonald, 2010 WL 144863, *3 (E.D. 23 Cal. 2010) (rejecting this very argument against CALCRIM No. 220); Newton v. Clark, 2008 WL 24 256742, *4 (E.D. Cal. 2009) (rejecting same argument raised against both CALCRIM Nos. 220 and 25 103). Thus, the Court finds Petitioner cannot obtain habeas corpus relief on this ground. 26 \\\ 27 \\\ 28 \\\ U .S. D istrict C ourt E. D . C alifornia 9 1 IV. 2 Certificate of Appealability A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 3 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller- 4 El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining whether to issue 5 a certificate of appealability is 28 U.S.C. § 2253, which provides that a circuit judge or judge may 6 issue a certificate of appealability where “the applicant has made a substantial showing of the denial 7 of a constitutional right.” Where the court denies a habeas petition, the court may only issue a 8 certificate of appealability “if jurists of reason could disagree with the district court’s resolution of 9 his constitutional claims or that jurists could conclude the issues presented are adequate to deserve 10 encouragement to proceed further.” Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel, 529 U.S. 473, 11 484 (2000). While the petitioner is not required to prove the merits of his case, he must demonstrate 12 “something more than the absence of frivolity or the existence of mere good faith on his . . . part.” 13 Miller-El, 123 S.Ct. at 1040. 14 In the present case, the Court finds that reasonable jurists would not find the Court’s 15 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or 16 deserving of encouragement to proceed further. Petitioner has not made the required substantial 17 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a 18 certificate of appealability. 19 ORDER 20 Accordingly, IT IS HEREBY ORDERED that: 21 1. The Petition for Writ of Habeas Corpus is DENIED with prejudice; 22 2. The Clerk of Court is DIRECTED to enter judgment; and 23 3. The Court DECLINES to issue a certificate of appealability. 24 25 IT IS SO ORDERED. 26 Dated: hlked6 March 1, 2010 /s/ John M. Dixon UNITED STATES MAGISTRATE JUDGE 27 28 U .S. D istrict C ourt E. D . C alifornia 10
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