Sands v. Lewis et al, No. 4:2010cv05315 - Document 8 (N.D. Cal. 2011)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS. Signed by Judge Claudia Wilken on 11/23/2011. (ndr, COURT STAFF) (Filed on 11/23/2011)
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Sands v. Lewis et al Doc. 8 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 PHILIP LEO SANDS, 5 6 7 8 9 United States District Court For the Northern District of California 10 11 No. C 10-5315 CW Petitioner, ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS v. GREG LEWIS, Acting Warden, and THE ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents. ________________________________/ Philip Leo Sands petitions the Court for a writ of habeas 12 corpus on the grounds that his constitutional rights were violated 13 due to the admission of illegally obtained wiretap evidence, 14 prosecutorial misconduct and ineffective assistance of counsel at 15 trial. 16 petition. For the reasons discussed below, the Court DENIES the 17 18 BACKGROUND On October 11, 2005, the San Francisco District Attorney 19 charged Petitioner with crimes arising from two separate 20 incidents. 21 All facts are taken from the appellate record. On September 14, 2001, Robin Clarke was stabbed twice in the 22 abdomen during an altercation with a group of men, causing life 23 threatening injuries to his liver. 24 trial, Clarke identified Petitioner as the person who stabbed him. 25 A few days later, and again at Petitioner was arrested and charged in San Francisco 26 Superior Court with assault on Clarke. 27 and remained out on bail in August 2003. He posted $100,000 bail The court records 28 Dockets.Justia.com 1 indicated that Robert Ramirez was ordered to return to court to 2 testify as a witness in the assault case. 3 Numerous witnesses testified at trial that after the stabbing 4 the relationship between Petitioner and Robert Ramirez changed. 5 Robert Ramirez's brother Michael testified that Petitioner had 6 questioned Robert Ramirez stating, "Someone snitched. 7 snitched. 8 testified that, when asked directly whether he stabbed Clarke, 9 Petitioner failed to deny it. United States District Court For the Northern District of California 10 What did you say? What did you say?” Someone Another witness On the evening of July 11, 2003, Ryan Crowley testified that 11 he was driving from North Beach to Daly City with Brendan Burke 12 and Robert Ramirez in his car around 1:30 or 2:00 a.m. 13 testified that Burke was “practically incapacitated” and passed 14 out in the car on the way to Daly City. Crowley 15 While on the freeway, Crowley's car ran out of gas and he and 16 Robert Ramirez pushed it onto the Ocean Avenue off ramp and parked 17 it on the right side of the road. 18 and when he returned Robert Ramirez told him that Michael 19 Debergerac's vehicle had driven by, and that Petitioner was with 20 Debergerac. 21 changed and that it seemed that “he wanted to get out of there.” 22 After refilling the gas tank, the men got back into the car and 23 proceeded westbound on the Ocean Avenue exit. 24 Crowley left to buy gasoline Crowley testified that Robert Ramirez's attitude had Crowley drove through a red light and was stopped by a 25 California Highway Patrol (CHP) officer. 26 Crowley for drunken driving and gave Robert Ramirez the keys to 27 Crowley's Oldsmobile, instructing him to drive the car into the 28 nearby City College parking lot. The officer arrested The CHP officers told Robert 2 1 Ramirez not to drive the car away, and at 3:33 a.m. the officers 2 left to take Crowley to jail. 3 That same evening, Debergerac was driving a friend home and 4 took the Ocean Avenue exit. 5 Ramirez standing next to a car pulled over on the shoulder. 6 Debergerac testified that he called Petitioner on his cell phone 7 and reported that he had seen “Rob on the freeway stuck” on the 8 Ocean Avenue off ramp. 9 home. United States District Court For the Northern District of California 10 While on the off ramp, he saw Robert Debergerac testified that he then went Michael Ramirez received a call from Robert Ramirez asking 11 for a ride home from the City College campus. 12 two other friends, to pick him up. 13 got out of the car and saw that the driver's side window of 14 Crowley's Oldsmobile was broken. 15 that there was “blood everywhere.” 16 He went, along with Upon arrival, Michael Ramirez He opened the door and noticed At 3:48 a.m., the San Francisco Emergency Communications 17 Department received a 911 call from a person at the City College 18 parking lot reporting an emergency. 19 scene and officers recovered spent bullet casings from the 20 driver's side of the Oldsmobile. 21 the ground, and three expended bullets were recovered from the 22 inside of the car. 23 the front passenger compartment door. 24 examiner, Robert Ramirez's death was caused by twenty-two gunshot 25 wounds to the body and a total of thirty-three gunshot injuries. 26 The death was ruled a homicide. 27 28 The police responded to the Thirty bullet casings were on The police later retrieved five bullets from According to the medical Petitioner's brother-in-law, Daniel DeVera, testified that during the first week of August 2003, Petitioner came to his home 3 1 with a “green bag, pouch” and asked DeVera to “keep it” for him. 2 When DeVera asked what it was, Petitioner told DeVera that it was 3 a gun. DeVera placed the gun and bag in a closet. 4 In October 2003, the San Francisco District Attorney obtained 5 a court order allowing a thirty-day interception of communications 6 to and from a number of “target telephones,” including 7 Petitioner's home and cell phones. 8 on October 6, 2003. 9 and played for the jury. Monitoring of the calls began An October 7, 2003 telephone call was taped The taped call was a message from United States District Court For the Northern District of California 10 Petitioner asking “Daniel” to “hold on to that . . . for me for a 11 while for safekeeping.” 12 Petitioner were also played for the jury. 13 Several calls between Debergerac and On October 15, 2003, DeVera consented to a search of his 14 home, during which he led the police to another house he owned, 15 where they seized the gun. 16 Cobray model SGM11-2A .380-caliber firearm with three magazines 17 that was missing its barrel. 18 thirty casings from the scene of Robert Ramirez's murder were 19 discharged by the Cobray firearm, though the missing barrel made 20 it difficult to determine whether the slugs recovered at the crime 21 scene also came from the weapon. 22 holding two guns, the firearms expert testified that the weapon 23 held in his left hand was consistent with a Cobray-type M10 or M11 24 firearm. 25 The weapon seized from DeVera was a The firearms expert opined that all Shown a photograph of Petitioner Mark Nikolov and Michael Hurley testified that they had seen 26 a “Uzi" type weapon in Petitioner's bedroom years earlier. 27 trial, both were shown a photograph of Petitioner holding a weapon 28 4 At 1 and said that it looked like the one they had seen in Petitioner's 2 bedroom. 3 A Sprint/Nextel engineer, qualified as an expert in the 4 field of designing and maintaining wireless networks for his 5 employer, plotted a map showing the “footprints” of the different 6 cell sites triggered by Petitioner and Debergerac's cell phones on 7 the night of the murder. 8 of the City College parking lot was serviced by the Glen Park cell 9 site. United States District Court For the Northern District of California 10 The engineer testified that the location The cell phone records showed that Debergerac called 11 Petitioner from within the Glen Park cell site a number of times 12 just prior to 3:00 a.m. on July 12, 2003. 13 triggered the Skyline cell site at 2:57 a.m. and triggered the 14 same cell site one minute later. 15 between them, at 3:23 a.m., Petitioner's cell phone triggered the 16 Glen Park cell site and called Debergerac's phone, which triggered 17 the Kezar cell site. 18 triggered the Glen Park cell site. 19 information regarding certain other calls made on Petitioner's 20 cell phone later that day. 21 Petitioner's cell phone After several other calls At 3:37 a.m., Petitioner's cell phone again The records provided further Petitioner was charged in an amended information filed on 22 October 11, 2005. 23 conclusion of trial, the jury found Petitioner guilty as charged. 24 On December 20, 2005, Petitioner filed a motion for new trial, 25 which the trial court denied on December 30, 2005. 26 court sentenced Petitioner to imprisonment for thirty-four years 27 to life without the possibility of parole, plus an additional 28 twenty-five years to life. A jury trial began the following day. 5 At the The trial 1 Petitioner filed a timely appeal on January 5, 2006. On 2 October 31, 2008 the California Court of Appeal affirmed the 3 judgment in an unpublished opinion. 4 California Supreme Court denied two separate, pro se, petitions 5 for writ of habeas corpus. 6 Supreme Court denied the petition for review of the direct appeal. 7 On November 10, 2010, the California Supreme Court denied a 8 petition for writ of habeas corpus. 9 Petitioner filed a petition for writ of habeas corpus in this United States District Court For the Northern District of California 10 Court. 11 On March 19, 2008, the On February 11, 2009, the California On November 23, 2010, Cause. On December 1, 2010, this Court issued the Order to Show 12 13 LEGAL STANDARD This petition is brought under 28 U.S.C. § 2254(d), the 14 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 15 Under AEDPA, a district court may not grant a petition challenging 16 a state conviction or sentence on the basis of a claim that was 17 reviewed on the merits in state court unless the state court's 18 adjudication of the claim: 19 contrary to, or involved an unreasonable application of, clearly 20 established Federal law, as determined by the Supreme Court of the 21 United States; or (2) resulted in a decision that was based on an 22 unreasonable determination of the facts in light of the evidence 23 presented in the state court proceeding." 24 decision constitutes an unreasonable application of Supreme Court 25 law if the state court's application of the law to the facts was 26 not merely erroneous, but "objectively unreasonable." 27 Andrade, 538 U.S. 63, 75 (2003). "(1) resulted in a decision that was 28 6 28 U.S.C. § 2254(d). A Lockyer v. 1 Moreover, habeas relief is warranted only if the 2 constitutional error at issue is structural error or had a 3 "substantial and injurious effect or influence in determining the 4 jury's verdict." 5 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). Penry v. Johnson, 532 U.S. 782, 796 (2001) 6 7 8 9 DISCUSSION I. Exhaustion Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their United States District Court For the Northern District of California 10 confinement are required first to exhaust state judicial remedies, 11 either on direct appeal or through collateral proceedings, by 12 presenting the highest state court available with a fair 13 opportunity to rule on the merits of each and every claim they 14 seek to raise in federal court. 15 There appear to be claims that are unexhausted in this petition, 16 although Respondents do not raise this issue in their answer. 17 See 28 U.S.C. § 2254(b), (c). To comply with the fair presentation requirement, a claim 18 must be raised at every level of appellate review; raising a claim 19 for the first time on discretionary review to the state's highest 20 court is insufficient. 21 Cir. 2004). 22 the petition for writ of habeas corpus before the California 23 Supreme Court: 24 the claim for violation of due process based on the alleged 25 failure of law enforcement to seal the wiretap communications. 26 The general rule is that a federal district court must dismiss a 27 federal habeas petition containing any claim as to which state 28 remedies have not been exhausted. Casey v. Moore, 386 F.3d 896, 918 (9th Here, two claims were raised for the first time in the ineffective assistance of counsel claim and See Rose v. Lundy, 455 U.S. 7 1 509, 522 (1982). 2 district court may deny it even if it includes unexhausted claims. 3 See 28 U.S.C. § 2254(b)(2). 4 5 II. However, if the petition is without merit the The Wiretap Petitioner claims that the trial court committed prejudicial 6 error when it allowed illegally intercepted phone calls made by 7 Petitioner to be introduced into evidence, thus violating his due 8 process rights. 9 intercepting his phone calls did not conform with the federal Petitioner argues that the procedures followed in United States District Court For the Northern District of California 10 wiretapping statute, Title III of the Omnibus Crime Control and 11 Safe Streets Act of 1968, 18 U.S.C. §§ 2510, et seq. (1976), and 12 therefore admission of this evidence violated his right to due 13 process under the Fifth and Fourteenth Amendments. 14 contends that law enforcement officials failed to demonstrate the 15 requisite necessity to obtain a warrant for the wiretaps. 16 Petitioner claims that the state court record fails to demonstrate 17 that the tapes of the intercepted calls were sealed pursuant to 18 state and federal statutes. 19 First, he Second The federal wiretapping statute applies to intercepted 20 communications used against defendants in state court. 21 Llamas-Almaguer v. Wainwright, 666 F.2d 191, 193-94 (5th Cir. 22 1982); Hussong v. Warden, 623 F.2d 1185, 1187-91 (7th Cir. 1980). 23 However, there is no clearly established Supreme Court precedent 24 holding that a violation of the Act may result in a due process 25 claim cognizable in federal habeas corpus. 26 § 2254(d); see also Key v. Walker, 2009 WL 3878070 (N.D. Cal.)(not 27 reported). 28 question presented,’ the state court’s decision cannot be an See See 28 U.S.C. “If Supreme Court cases ‘give no clear answer to the 8 1 unreasonable application of clearly established federal law.” 2 Ponce v. Felker, 606 F.3d 596, 604 (9th Cir. 2010) (quoting Wright 3 v. Van Patten, 552 U.S. 120, 126 (2008)). 4 Petitioner cites United States v. Giordano, which upheld the 5 suppression of wiretap evidence where the district court 6 determined that law enforcement did not comply with the Act. 7 U.S. 505, 512 (1974). 8 constitutional violation, much less a due process violation. 9 decision of the trial court to admit the wiretap evidence in this 416 However, that case does not identify a The United States District Court For the Northern District of California 10 case was not contrary to or an unreasonable application of 11 applicable federal law as determined by the United States Supreme 12 Court. 13 14 III. Prosecutorial Misconduct Petitioner contends that pervasive misconduct by the 15 prosecutor denied him a fair trial. 16 attacked defense counsel's integrity and questioned Petitioner on 17 inadmissible matters. 18 nothing improper, but even if she had, Petitioner was not 19 prejudiced by it. 20 He claims that the prosecutor Respondents argue that the prosecutor did Prosecutorial misconduct is cognizable in federal habeas 21 corpus. 22 due process and not the broad exercise of supervisory power. 23 Darden v. Wainwright, 477 U.S. 168, 181 (1986). 24 process is violated when a prosecutor's misconduct renders a trial 25 "fundamentally unfair." 26 219 (1982) ("the touchstone of due process analysis in cases of 27 alleged prosecutorial misconduct is the fairness of the trial, not 28 the culpability of the prosecutor"). The appropriate standard of review is the narrow one of See The right to due See id.; Smith v. Phillips, 455 U.S. 209, 9 1 The first factor in determining whether misconduct amounts to 2 a violation of due process is whether the trial court issued a 3 curative instruction. 4 weight of evidence of guilt. 5 U.S. 1, 19 (1985) (finding "overwhelming" evidence of guilt) with 6 United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987) (in 7 light of prior hung jury and lack of curative instruction, new 8 trial required after prosecutor's reference to defendant's 9 courtroom demeanor). The court may also take into account the Compare United States v. Young, 470 Another factor is whether the misconduct was United States District Court For the Northern District of California 10 isolated or part of an ongoing pattern. 11 F.2d 805, 809 (9th Cir. 1987). 12 whether the misconduct relates to a critical part of the case. 13 See Giglio v. United States, 405 U.S. 150, 154 (1972). 14 the court may look at whether a prosecutor's comment misstates or 15 manipulates the evidence. 16 17 18 See Lincoln v. Sunn, 807 The court may also consider Finally, See Darden, 477 U.S. at 182. A. Alleged disparagement of Defense Counsel During rebuttal in closing arguments the prosecutor made the following remarks, 19 20 21 22 23 24 25 26 27 “Defense counsel is a compelling speaker. All the more compelling when he's able to ignore evidence, when he's able to fabricate evidence.” “Defense counsel says there's no evidence that [Petitioner] carries a knife. That's true, there was no evidence presented. Sometimes evidence does not come in at trial. “You're right, you don't. You know why? Because defense counsel objected to [C]larke saying it. He doesn't get the benefit of implying things that he kept you from hearing. That's not fair. That's not justice." 28 10 1 Respondents' Ex. B at 8-9 Petitioner contends that these remarks constituted misconduct. 2 However, defense counsel failed to object timely, waiting until 3 the next day to raise the issue with the trial judge. The judge 4 found that no admonition was warranted but did add an instruction 5 reminding the jury that statements made by counsel during closing 6 arguments were not evidence. 7 B. Questioning on Inadmissible Matters 8 Petitioner alleges that the prosecutor continually attempted 9 impermissibly to introduce evidence of prior convictions. In one United States District Court For the Northern District of California 10 example the prosecutor asked Petitioner why he ran from the police 11 if he did not know that he was a suspect in Clarke's stabbing, 12 implying he had other cause to run from law enforcement. Defense 13 counsel objected to the questioning as irrelevant, prejudicial and 14 misconduct. While the trial court sustained the objection, 15 defense counsel did not request an admonishment. 16 Petitioner also alleges that the prosecutor questioned him 17 about booking photos in order to insinuate an inadmissible prior 18 arrests. Here again defense counsel failed to raise a 19 prosecutorial misconduct objection. Moreover, only Petitioner saw 20 the photos, which were shown to him for the purpose of answering 21 questions about how his looks had changed over the years. These 22 pictures were never shown to the jury and, as the appellate court 23 noted, it was Petitioner, not the prosecutor, who referred to the 24 pictures as "booking photos." 25 Finally Petitioner argues that the prosecutor asked him 26 whether he had ever used a weapon in or after a fight. After 27 Petitioner replied in the negative, she asked, "You have backed up 28 11 1 Robert Ramirez after he's gotten into a fight by going home and 2 getting a gun; haven't you?" 3 the admissibility of the line of questioning, and the objection 4 was sustained. 5 6 Here, defense counsel objected to C. Procedural Default The state appellate court found that the claims of prosecutorial misconduct were procedurally defaulted. 8 court will not review questions of federal law decided by a state 9 court if the decision also rests on a state law ground that is 10 United States District Court For the Northern District of California 7 independent of the federal question and adequate to support the 11 judgment. 12 Ninth Circuit has recognized and applied the California 13 contemporaneous objection rule in affirming denial of a federal 14 petition on grounds of procedural default where there was a 15 complete failure to object at trial. 16 F.3d 1055, 1058 (9th Cir. 2005); Paulino v. Castro, 371 F.3d 1083, 17 1092-93 (9th Cir. 2004); Vansickel v. White, 166 F.3d 953, 957-58 18 (9th Cir. 1999). 19 A federal Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). The Inthavong v. Lamarque, 420 In cases in which a state prisoner has defaulted his federal 20 claims in state court pursuant to an independent and adequate 21 state procedural rule, federal habeas review of the claims is 22 barred unless the prisoner can demonstrate cause for the default 23 and actual prejudice as a result of the alleged violation of 24 federal law, or demonstrate that failure to consider the claims 25 will result in a fundamental miscarriage of justice. 26 U.S. at 750. 27 counsel claim to show cause for the procedural default, and argues 28 that counsel's failure to object prejudiced him. Coleman, 501 Petitioner raises an ineffective assistance of 12 These claims 1 will be discussed below, and are denied. 2 the grounds of prosecutorial misconduct is denied. 3 4 IV. The claim for relief on Ineffective Assistance of Counsel Petitioner argues that his counsel was ineffective and this 5 resulted in both the cause for the default of his claims of 6 prosecutorial misconduct and an independent claim for habeas 7 relief. 8 establishing constitutionally ineffective assistance of counsel, 9 but attorney error short of constitutionally ineffective A petitioner may show cause for a procedural default by United States District Court For the Northern District of California 10 assistance of counsel does not constitute cause. 11 White, 166 F.3d 953, 958 (9th Cir. 1999)(quoting Murray v. 12 Carrier, 477 U.S. 478, 488 (1986)). 13 Vansickel v. To establish ineffective assistance of counsel, a petitioner 14 must show that (1) counsel made errors so serious that counsel was 15 not functioning as the counsel guaranteed the defendant by the 16 Sixth Amendment, and (2) the deficient performance prejudiced the 17 defense such that "there is a reasonable probability that, but for 18 counsel's unprofessional errors, the result of the proceeding 19 would have been different." 20 668, 694 (1984). 21 sufficient to undermine confidence in the outcome. 22 Hatcher, 231 F.3d 640, 644 (9th Cir. 2000)(quoting Strickland, 466 23 U.S. at 687). 24 Strickland v. Washington, 466 U.S. A reasonable probability is a probability Loveland v. Petitioner's ineffective assistance claim is based on his 25 counsel's failure to make contemporaneous objections to the 26 alleged prosecutorial misconduct or request appropriate curative 27 admonitions, thus prejudicing him at trial and forfeiting those 28 claims for appeal. Defense counsel supports this argument in an 13 1 affidavit where he asserts that these omissions were not tactical 2 decisions at trial, but rather inadvertent errors. 3 counsel's failure to raise the objection of prosecutorial 4 misconduct and request relevant curative admonitions may have been 5 an error in hindsight, his conduct did not fall outside of the 6 "wide range of reasonable professional assistance." 7 Strickland, 466 U.S. at 689; Wildman v. Johnson, 261 F.3d 832, 838 8 (9th Cir. 2001). 9 Although See Even if counsel made errors, in order to prevail on a claim United States District Court For the Northern District of California 10 of constitutionally ineffective assistance and meet the prejudice 11 requirement for overcoming procedural default Petitioner must show 12 that the deficient performance harmed the defense such that "there 13 is a reasonable probability that, but for counsel's unprofessional 14 errors, the result of the proceeding would have been different." 15 Strickland, 466 U.S. at 694. 16 Even if the prosecutor did err in all of the instances cited 17 by Petitioner, it would still be insufficient to result in a trial 18 that was fundamentally unfair, so as to violate Petitioner's right 19 to due process. 20 There was substantial evidence against Petitioner, including 21 cell phone records showing him moving to the scene of the crime 22 during the critical fifteen minute period when the murder 23 occurred, testimony as to motive from numerous witnesses, and 24 testimony, along with a corroborating recorded conversation, from 25 Petitioner's brother-in-law that Petitioner asked him to hold a 26 gun, which an expert witness opined fired all thirty bullet 27 casings found at the scene of the murder. 28 was able to present a coherent defense, and testified on his own 14 Moreover, Petitioner 1 behalf. 2 by attorneys during closing argument were not evidence to be 3 considered. 4 was fundamentally fair, despite the insinuations made by the 5 prosecutor. The jury was instructed that questions and comments made The appellate court reasonably found that the trial 6 In light of the evidence presented at trial it is not 7 probable that, had counsel objected to the alleged prosecutorial 8 misconduct and requested curative admonitions, there would have 9 been a different decision in this case. For these reasons, the United States District Court For the Northern District of California 10 claim for ineffective assistance of counsel, as well as the claim 11 of prosecutorial misconduct, is denied. 12 13 14 15 CONCLUSION For the forgoing reasons, the petition for habeas relief is DENIED. The Court must rule on a certificate of appealability. See 16 Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. 17 § 2254 (requiring district court to rule on certificate of 18 appealability in same order that denies petition). 19 of appealability should be granted "only if the applicant has made 20 a substantial showing of the denial of a constitutional right." 21 28 U.S.C. § 2253(c)(2). A certificate 22 "Where a district court has rejected the constitutional 23 claims on the merits, the showing required to satisfy § 2253(c) is 24 straightforward: the petitioner must demonstrate that reasonable 25 jurists would find the district court's assessment of the 26 constitutional claims debatable or wrong." 27 U.S. 473, 484 (2000). 28 the habeas petition and a general assessment of their merits. Slack v. McDaniel, 529 This requires an overview of the claims in 15 It 1 does not require full consideration of the factual or legal bases 2 adduced in support of the claims. 3 322, 336 (2003). 4 will succeed. 5 1025 (9th Cir. 2000)(issuance of COA is not precluded merely 6 because petitioner cannot meet standard for actually obtaining 7 habeas relief). 8 underlying constitutional claim, not the resolution of that 9 debate. United States District Court For the Northern District of California 10 Miller-El v. Cockrell, 537 U.S. Nor does it require a showing that the appeal Id.; accord Lambright v. Stewart, 220 F.3d 1022, The question is the debatability of the Miller-El, 537 U.S. at 342. The Court finds that reasonable jurists viewing the record 11 could find the Court's assessment of the claims both of 12 prosecutorial misconduct and ineffective assistance of counsel 13 "debatable or wrong." 14 motion for a certificate of appealability is GRANTED with respect 15 to these two claims. Slack, 529 U.S. at 484. Accordingly, the 16 17 IT IS SO ORDERED. 18 19 20 Dated: 11/23/2011 CLAUDIA WILKEN United States District Judge 21 22 23 24 25 26 27 28 16
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