(HC) Burgoon v. Haviland, No. 2:2009cv02712 - Document 12 (E.D. Cal. 2010)
Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 7/12/2010 ORDERING that the Clerk of the Court is directed to randomly assign this case to a District Judge. Respondent's 7 January 11, 2010 motion to dismiss the habeas petition as untimely be granted and this action be closed. Objections due within 21 days after being served with these findings and recommendations. (Duong, D)
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(HC) Burgoon v. Haviland Doc. 12 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 LARRY LEE BURGOON, 11 Petitioner, 12 13 No. CIV S-09-2712 DAD P vs. J. HAVILAND, 14 ORDER AND Respondent. 15 FINDINGS AND RECOMMENDATIONS / 16 Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. Therein, petitioner challenges the July 20, 2006 decision of 18 the California Board of Parole Hearings finding him unsuitable for release on parole. Before the 19 court is respondent’s motion to dismiss the petition as untimely. Petitioner has filed an 20 opposition to the motion. 21 PROCEDURAL BACKGROUND 22 On March 22, 2006, the California Board of Parole Hearings (hereinafter 23 “Board”) conducted a subsequent parole consideration hearing to determine petitioner’s 24 suitability for parole. (Mot. to Dismiss (Doc. No. 7), Ex. 1 at 1.) On July 20, 2006, the Board’s 25 decision denying parole became final. (Id., Ex. 1 at 84.) 26 ///// 1 Dockets.Justia.com 1 On December 12, 2006, petitioner signed a petition for writ of habeas corpus and 2 filed it on December 19, 2006, with the Orange County Superior Court. (Id., Ex. 2.) On 3 November 19, 2007, that habeas petition was denied on the merits in a reasoned order. (Id., Ex. 4 3.) On July 3, 2008, petitioner filed a habeas petition with the California Court of Appeal for the, 5 Fourth Appellate District. (Id., Ex. 4.) On July 24, 2008, the petition was denied. (Id.) On 6 October 9, 2008, petitioner filed a habeas petition with the California Supreme Court. (Id., Ex. 7 5.) On April 15, 2009, the petition was denied. (Id.) 8 9 On September 25, 2009, petitioner signed his federal habeas petition now pending before this court. (Doc. No. 1.) The petition was filed with this court on September 28, 2009. 10 THE ARGUMENTS OF THE PARTIES 11 Respondent moves to dismiss the pending federal petition, arguing that it is 12 untimely because of petitioner’s delay in seeking habeas relief in both the state courts and before 13 this court. Specifically, respondent argues that petitioner is not entitled to statutory tolling of the 14 applicable one-year statute of limitations for the filing of a federal habeas petition during the 15 following gaps of time: (1) the four months following the date the Board’s decision to deny 16 parole became final and the filing of petitioner’s first state habeas petition; (2) the eight month 17 period following the Orange County Superior Court’s denial of petitioner’s first state habeas 18 petition and his filing of the habeas petition with the California Court of Appeal; and (3) the five 19 month period following the denial of his habeas petition by the California Supreme Court and the 20 filing of his federal habeas petition. According to respondent, those gap periods during which 21 petitioner was not entitled to statutory tolling of the one-year statute of limitations total almost 22 eighteen months. Therefore, respondent contends in summary fashion, petitioner’s federal 23 habeas petition was filed approximately six months after the statute of limitations for doing so 24 had expired. 25 26 Petitioner opposes the motion to dismiss, asserting that his state habeas petitions were properly filed within a reasonable period of time and with all due diligence. With respect to 2 1 his diligence, petitioner states that his habeas petition filed in the Orange County Superior Court 2 was prepared on his behalf by a jailhouse lawyer, that his petition filed in the California Court of 3 Appeal was prepared by a State Public Defender, and that his habeas petition to the California 4 Supreme Court was also prepared by a jailhouse lawyer. Petitioner notes that the longest delay 5 between petitions filed in state court was following the Superior Court’s denial of relief. 6 However, petitioner argues that during that period the State Public Defender was working on the 7 petition for filing with the California Court of Appeal and he had “absolutely no control” over 8 the attorney. (Opp’n at 3.) Finally, petitioner argues that he is entitled to statutory tolling of the 9 applicable limitations period for one complete round of review in state court which covers the 10 period from the date the parole decision became final to the date the California Supreme Court 11 filed its decision denying habeas relief. Petitioner argues that under this calculation his federal 12 habeas petition was timely filed. 13 STATUTE OF LIMITATIONS UNDER THE AEDPA 14 Because this action was filed after April 26, 1996, the provisions of the 15 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are applicable. See Lindh v. 16 Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). The 17 AEDPA imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 18 28 U.S.C. § 2244 provides as follows: 19 (d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 20 21 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 22 23 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 24 25 26 ///// 3 1 2 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 3 4 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 5 7 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 8 The statute of limitations for habeas petitions challenging parole suitability 6 9 hearings is based on § 2244(d)(1)(D): the date on which the factual predicate of the claim or 10 claims could have been discovered through the exercise of due diligence. See Redd v. McGrath, 11 343 F.3d 1077, 1079 (9th Cir. 2003). “Courts ordinarily deem the factual predicate to have been 12 discovered the day the decision becomes final, i.e., 120 days after the Board finds a petitioner not 13 suitable for parole.” Wilson v. Sisto, No. Civ. S-07-0733 MCE EFB P, 2008 WL 4218487, at *2 14 (E.D. Cal. Sept. 5, 2008) (citing Nelson v. Clark, No. 1:08-cv-00114 OWW SMS HC, 2008 WL 15 2509509, at *4 (E.D. Cal. June 23, 2009)). See also Stotts v. Sisto, No. CIV. S-08-1178-MCE- 16 CMK P, 2009 WL 2591029, at *4 (E.D. Cal. Aug. 20, 2009); Van Houton v. Davison, No. CV 17 07-05256 AG (AN), 2009 WL 811596, at *9 (C.D. Cal. March 26, 2009); Woods v. Salazar, No. 18 CV 07-7197 GW (CW), 2009 WL 2246237, at *5 & n.9 (C.D. Cal. Mar. 23, 2009) (citing cases); 19 Perez v. Sisto, No. Civ. S-07-0544 LKK DAD P, 2007 WL 3046006, at *4 (E.D. Cal. Oct.18, 20 2007); Cal. Code Regs., tit. 15, § 2041(h) (Board decisions are final 120 days after the hearing); 21 Cal. Penal Code § 3041(b) (same). Contra McGuire v. Mendoza-Powers, No. 1:07-CV-00086 22 OWW GSA HC, 2008 WL 1704089, at *10 (E.D. Cal. April 10, 2008) (deeming factual 23 predicate to have been discovered on the date of the Board decision). Following the majority of 24 district courts to have considered this issue, and in keeping with respondent’s position here, the 25 undersigned concludes that the factual predicate of petitioner’s claims was “discovered” when 26 the Board’s decision denying petitioner parole became final on July 20, 2006. 4 1 The AEDPA statute of limitations is tolled during the time a properly filed 2 application for post-conviction relief is pending in state court. 28 U.S.C. § 2244(d)(2). A state 3 court application for post-conviction relief is “pending” during the entire time the petitioner is 4 attempting, through proper use of state court procedures, to present his claims. See Nino v. 5 Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999). A petition is not “pending” during an unreasonable 6 delay between state court applications. Carey v. Saffold, 536 U.S. 214, 225 (2002). 7 In California, a prisoner seeking collateral review must file a habeas petition 8 within a reasonable time. Saffold, 536 U.S. at 222-23. However, there has never been an 9 explanation from the California Supreme Court as to the meaning of “reasonable time” in this 10 context. See Chaffer v. Prosper, 592 F.3d 1046, 1048 n.1 (9th Cir. 2010). The United States 11 Supreme Court has now held that federal courts must “examine the delay in each case and 12 determine what the state courts would have held in respect to timeliness.” Evans v. Chavis, 546 13 U.S. 189, 198 (2006). Thus, if the state court does not explicitly deny a post-conviction 14 application as untimely1, the federal court must independently determine whether there was 15 unreasonable delay between state court applications that would render the federal application for 16 habeas relief untimely. Saffold, 536 U.S. at 226-27.2 17 18 19 20 21 22 23 24 25 26 1 When a state habeas petition is determined to be untimely by a state court, that is the end of the matter for purposes of § 2244(d)(2). Bonner v. Carey, 425 F.3d 1145, 1148 (9th Cir. 2005) (citing Pace v. DiGuglielmo, 544 U.S. 408 , 414 (2005)); see also Carey, 536 U.S. at 226. 2 In what can fairly be characterized as a profound understatement, the Supreme Court recognized that “[g]iven the uncertain scope of California’s ‘reasonable time’ standard, it may not be easy for the [lower federal courts] to decide in each such case whether the petitioner’s state-court review petition was timely.” Chavis, 546 U.S. at 199. In Bonner v. Carey, the Ninth Circuit noted that it was ironic that the complicated procedure necessitated under the Supreme Court’s decision in Pace v. DiGuglielmo, 544 U.S. 408 (2005) derives from the AEDPA a statute purportedly designed to streamline and simplify the complicated habeas process. 425 F.3d 1145, 1149 n.20 (9th Cir. 2005). As this court has noted before, the same observation is applicable to the case-by-case analysis that federal courts in California must now engage in under Evans v. Chavis to determine whether state habeas petitions were filed within what California courts would have deemed to be a “reasonable time” had they elected to consider the issue. See Thomas v. Scribner, No. CIV S-04-0733 MCE DAD P, 2006 WL 2711667, *6, n.14 (E.D. Cal. Sept. 21, 2006). All the while it becomes more and more clear that the most streamlined way to 5 1 2 ANALYSIS Petitioner seeks statutory tolling of the applicable one-year statute of limitations 3 for the entire period from the date the Board’s decision became final (July 20, 2006) until the 4 California Supreme Court denied him habeas relief on April 15, 2009. Petitioner’s claim in this 5 regard is unsupported and unpersuasive. As noted above, the AEDPA statute of limitations is not 6 subject to tolling for the period from the date the Board’s decision became final until a 7 petitioner’s first state habeas petition attacking that decision is filed because “there is no case 8 ‘pending’ during that interval.” Nino, 183 F.3d at 1006. Thus, in this case the statute of 9 limitations for the filing of a federal habeas petition began to run on the day after the parole 10 decision became final (July 21, 2006) and continued to run until petitioner filed his first state 11 habeas petition with the Orange County Superior Court on December 12, 2006. Thus, the statute 12 of limitations ran for 144 days or for approximately 4-1/2 months. 13 It also cannot be disputed that the statute of limitations ran once again following 14 the California Supreme Court’s decision denying petitioner habeas relief. Thus, the statute of 15 limitations in this case ran another 162 days from the date of that decision on April 16, 2009 to 16 September 25, 2009, when petitioner signed his federal habeas petition for filing. Between these 17 two periods that are undisputedly not subject to statutory tolling, 306 days of the one-year statute 18 of limitations had expired. 19 A critical question for purposes of resolving the pending motion to dismiss is 20 whether petitioner is entitled to statutory tolling for the entire period of time between the Orange 21 County Superior Court’s denial of habeas relief and the filing of his next state habeas petition 22 with the California Court of Appeals. That period spanned 226 days, or approximately seven and 23 24 25 26 resolve the vast majority of federal habeas petitions would be to address them on the merits merits. Indeed, the reason that the meaning of “reasonable time” remains unaddressed under California law is because the California Court of Appeals and California Supreme Court elect to address the merits in resolving the habeas petitions which come before those courts instead of being side-tracked into analysis of whether any delay in bringing them was reasonable. 6 1 a half months3. If this interval of time between the ruling on one petition and the filing of the 2 next in state court is not properly subject to statutory tolling, petitioner’s federal habeas petition 3 pending before this court would be rendered untimely. 4 Under California’s unusual system of independent collateral review, a prisoner seeks review of a lower court’s denial of relief by filing an original petition for habeas corpus in the reviewing court. Chavis, 546 U.S. at 192-93; Waldrip, 548 F.3d at 734. The period between a California lower court’s denial of review and the filing of an original petition in a higher court is tolled-because it is part of a single round of habeas relief - so long as the filing is timely under California law. Chavis, 546 U.S. at 191-93; Waldrip, 548 F.3d at 734. 5 6 7 8 9 Banjo v. Ayers, ___F.3d___, ___, 2010 WL 2403751, at *2 (9th Cir. June 17, 2010). 10 In Evans v. Chavis, the Supreme Court considered whether a three-year interval 11 between the California Court of Appeal’s denial of habeas relief and the filing of a habeas 12 petition with the California Supreme Court was reasonable under California law. The Supreme 13 Court concluded that in “viewing every disputed issue most favorably to Chavis, there remains a 14 totally unexplained, hence unjustified, delay of at least six months.” 546 U.S. at 201. In that 15 context, the Supreme Court stated as follows: 16 Six months is far longer than the “short period[s] of time,” 30 to 60 days, that most States provide for filing an appeal to the state supreme court. Saffold, supra, at 219, 122 S. Ct. 2134. It is far longer than the 10-day period California gives a losing party to file a notice of appeal in the California Supreme Court, see Cal. App. Ct. Rule 28(e)(1) (2004). We have found no authority suggesting, nor found any convincing reason to believe, that California would consider an unjustified or unexplained 6-month filing delay “reasonable.” Nor do we see how an unexplained delay of this magnitude could fall within the scope of the federal statutory word “pending” as interpreted in Saffold. 17 18 19 20 21 22 3 23 24 25 26 Neither party has provided this court with a copy of the habeas petition filed by petitioner with the California Court of Appeal. Therefore the court has not been able to determine the date that petition was filed by applying the mailbox rule announced in Houston v. Lack, 487 U.S. 266, 276 (1988). However, even if the mailbox rule was applied and petitioner delivered the petition to prison officials for mailing a few days, or even a month, before the petition was received by the court, petitioner’s federal habeas petition would still be untimely because of the lengthy five-month delay between the California Supreme Court’s decision and the filing of the federal habeas petition with this court. 7 1 Id. 2 Thus, “Evans made clear that an unexplained delay of six months between the 3 denial of one California state court and a new filing in a higher California court was too long to 4 permit tolling of the federal limitations period on the ground that state court proceedings were 5 ‘pending.’” Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008) (concluding that an unexplained 6 delay of eight months during interval between a lower court’s denial of relief and the filing of a 7 notice of appeal could not be reasonable under state law). See also Chaffer, 592 F.3d at 1048 8 (unexplained delays of 101 and 115 days between denial of relief in lower court in filing of 9 petition in next highest court found to be not subject to statutory tolling). However, “whether an 10 unexcused delay, of greater than 30 to 60 days . . . in filing a California state habeas petition 11 would be considered ‘reasonable’ by the California court has been left to the lower federal courts 12 to determine on habeas review.” Sigmon v. Kernan, No. CV 06-5807 AHM (JWJ), 2009 WL 13 1514700 at *5 (C.D. Cal. May 27, 2009).4 14 In this case, the delay between state petitions was greater than six months, 226 15 days to be exact. Therefore, the court must consider whether petitioner has provided a sufficient 16 explanation to justify tolling of the statute of limitations. Petitioner explains that the delay was 17 unavoidable because he had no control over the attorney who was preparing the habeas petition 18 for submission to the California Court of Appeal. This is made difficult by the fact that there are 19 no standards for determining what factors provide a sufficient justification for a delay in filing 20 for habeas relief at each rung up the ladder of state courts. See Jordan v. Horel, No. EDCV 08- 21 00490-MMM (MAN), 2009 WL 3712716, at *4 (C.D. Cal. Oct. 30, 2009) (noting that although a 22 4 23 24 25 26 One district court has determined that the following two-step analysis should be used to determine if a California petition is timely filed and entitled to gap tolling: “First, when the delay is between sixty days and six months, the court should ask whether an unexcused delay of the given duration is reasonable under California law. Second, if the court concludes that the delay is unreasonable, then the federal court must go on to decide whether the petitioner has a good excuse for the delay.” Gutierrez v. Dexter, No. CV 07-00122-MMM (MLG), 2008 WL 4822867 at *6 (C.D. Cal. Oct. 30, 2008). See also Sigmon v. Kernan, No. CV 06-5807 AHM (JWJ), 2009 WL 1514700 at *5 (C.D. Cal. May 27, 2009). 8 1 habeas petitioner in California must justify a significant or substantial delay, “[t]here are no 2 standards for determining what period of time or factors constitute ‘substantial delay’ in 3 noncapital cases,” and “[t]here also are no standards for determining what factors justify any 4 particular length of delay.”) (quoting King v. Lamarque, 455 F.3d 1040, 1043 (9th Cir. 2006)). 5 Nevertheless, the Ninth Circuit has held that a petitioner is not entitled to statutory 6 tolling “absent sufficient justification [for his substantial filing delay] based on unique facts 7 pertaining to the individual petitioner. . . .” Waldrip, 548 F.3d at 731. In that same case the 8 court rejected claims of attorney’s negligence, miscalculation of the statute of limitations, or 9 heavy workload as providing a sufficient explanation for an eight-month interval delay. Waldrip, 10 548 F.3d at 736-37; see also Reyes v. Small, No. CV 09-00669 RGK (RZ), 2009 WL 5113756, at 11 *5 (C.D. Cal. Dec. 18, 2009) (no statutory tolling where the only reason for delay was that 12 petitioner’s attorney was unable to devote the necessary time to petitioner’s case because of work 13 on other cases, and where state petition contained only one new claim which was presented in 14 brief form); Thompson v. Tilton, No. CV 07-04742-GHK (VBK), 2009 WL 596605, at *8 (C.D. 15 Cal. March 6, 2009) (holding that “an appellate counsel’s mistake or negligence regarding habeas 16 corpus statute of limitations does not warrant equitable tolling and has not been grounds to find 17 interval tolling[;]” in addition, “[a]n interval of nine months for an attorney to prepare a habeas 18 petition which addresses a lower court’s decision following an evidentiary hearing is not 19 reasonable.”). But see Moore v. Clark, No. CIV S-07-0423 LKK EFB P, 2008 WL 449706, at *3 20 (E.D. Cal. Feb. 15, 2008) (applying statutory tolling for six-month delay where petitioner was 21 seeking transcripts from an evidentiary hearing and counsel needed time to review, research, and 22 prepare a new petition). 23 Here, petitioner argues that the seven-and-a-half month delay between the 24 Superior Court’s denial of habeas relief and the filing of his petition with the California Court of 25 Appeal should be subject to statutory tolling solely because he had no control over how long his 26 State Public Defender took to prepare and file the petition. Under the Ninth Circuit’s decision in 9 1 Waldrip this is an insufficient explanation for the 7-1/2 month delay and this court is therefore 2 precluded from finding that period subject to statutory tolling. 3 Although petitioner opposes the pending motion to dismiss primarily on the 4 ground that he had no control over how long his State Public Defender took to file his habeas 5 petition with the California Court of Appeal, he also mentions obstacles to his seeking habeas 6 relief such as prison lockdowns and the fact that his work assignment prevented access to the law 7 library. To the extent that these references could be construed as an argument that the statute of 8 limitations should be subject to equitable tolling, the court finds them unpersuasive. 9 In order to be entitled to equitable tolling, a petitioner has the burden of 10 establishing (1) that he has been pursuing his rights diligently, and (2) that some extraordinary 11 circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The Ninth 12 Circuit has stated that “the purpose of equitable tolling ‘is to soften the harsh impact of technical 13 rules which might otherwise prevent a good faith litigant from having a day in court.” Harris v. 14 Carter, 515 F.3d 1051, 1055 (9th Cir. 2008). Nonetheless, equitable tolling of the AEDPA 15 statute of limitations will be unavailable in most cases. See Corjasso v. Ayers, 278 F.3d 874, 877 16 (9th Cir. 2002); Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999). Moreover, a habeas 17 petitioner seeking equitable tolling must show that the extraordinary circumstances alleged were 18 the “but for” and proximate cause of the untimely filing of his federal habeas petition. Bryant v. 19 Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007); Allen v. Lewis, 255 F.3d 798, 800-01 (9th 20 Cir. 2001). Here, petitioner has not presented any evidence that he was pursuing his rights 21 diligently. 22 Moreover, an attorney’s negligence, miscalculation of the AEDPA statute of 23 limitations and heavy workload have been rejected as sufficient grounds for equitable tolling. 24 See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (“Attorney miscalculation is simply not 25 sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners 26 have no constitutional right to counsel [citation].”); Stillman v. LaMarque, 319 F.3d 1199, 1203 10 1 (9th Cir. 2003) (“[R]outine instances of attorney negligence do not constitute an ‘extraordinary 2 circumstance’ that requires equitable tolling.”) Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 3 2001) (“We conclude that the miscalculation of the limitations period by Frye’s counsel and 4 negligence in general do not constitute extraordinary circumstances sufficient to warrant 5 equitable tolling); see also Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cor. 2007) (denying 6 equitable tolling for a prisoner whose lawyer was “overburdened by a busy docket”). 7 Finally, lockdowns and resulting restricted access to the prison law library are not, 8 by themselves, extraordinary circumstances for prisoners. See e.g. Frye, 273 F.3d at 1146 (lack 9 of access to library material does not automatically qualify as grounds for equitable tolling); 10 Rosati v. Kernan, 417 F. Supp.2d 1128, 1132 (C.D. Cal. 2006) ([P]etitioner’s complaints about 11 limited access to the law library and legal materials at various state prisons and occasional prison 12 lockdowns do not warrant equitable tolling since petitioner has not shown any causal connection 13 between these events and his failure to timely file his habeas corpus petition.); United States v. 14 Van Poyck, 980 F. Supp. 1108, 1111 (C.D. Cal.1997) (absent evidence of petitioner’s diligence, 15 lockdowns at prison allegedly eliminating access to law library were not extraordinary 16 circumstances warranting equitable tolling); see also Corrigan v. Barbery, 371 F. Supp.2d 325, 17 330 (W.D.N.Y. 2005) (In general, the difficulties attendant on prison life such as transfers 18 between facilities, solitary confinement, lockdowns, restricted access to the law library, and an 19 inability to secure court documents, do not by themselves qualify as extraordinary 20 circumstances.). 21 Here, petitioner has failed to explain how any lockdowns or limited access to the 22 prison law library constituted extraordinary circumstances that prevented him from timely filing 23 his habeas petitions, particularly since they were being prepared by jailhouse lawyers or 24 counsel. Accordingly, he is not entitled to equitable tolling of the AEDPA statute of limitations. 25 ///// 26 ///// 11 1 CONCLUSION 2 3 For the reasons set forth above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to randomly assign this case to a District Judge. 4 In addition, IT IS HEREBY RECOMMENDED that: 5 1. Respondent’s January 11, 2010 motion to dismiss the habeas petition as 6 untimely (Doc. No. 7) be granted; and 7 2. This action be closed. 8 These findings and recommendations are submitted to the United States District 9 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 10 one days after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 13 shall be served and filed within fourteen days after service of the objections. The parties are 14 advised that failure to file objections within the specified time may waive the right to appeal the 15 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: July 12, 2010. 17 18 19 20 DAD:4 burg2712.mtd 21 22 23 24 25 26 12
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