Moor v. Baca et al, No. 3:2010cv00401 - Document 35 (D. Nev. 2015)
Court Description: ORDER denying in its entirety 14 Amended Petition; directing Clerk to enter judgment accordingly and close the case; denying a certificate of appealability. Signed by Judge Robert C. Jones on 4/30/2015. (Copies have been distributed pursuant to the NEF - KR)
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Moor v. Baca et al Doc. 35 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 MARK MOOR, Case No. 3:10-cv-00401-RCJ-WGC 9 Petitioner, 10 11 ORDER vs. 12 JAMES BACA, et al., 13 Respondents. 14 15 This is a counseled amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 16 (ECF #14). Now before the court is respondents’ answer to the amended petition (ECF #28). Petitioner 17 filed a reply to the answer (ECF #33). 18 I. Procedural History and Background 19 In March 1994, pursuant to a guilty plea, petitioner was sentenced to five years to life in prison 20 for violating NRS 207.710, which prohibits the use of a minor in the production of pornography. Exh. 21 1.1 See also Moor v. Palmer, 603 F.3d 658, 660 (9th Cir. 2010) (“Moor I”). 22 In 1997, the Nevada Legislature amended the Psychological Review Panel (“psych panel”) 23 requirements for parole, with the result that petitioner was included in the expanded categories of 24 offenders who were required to receive a psych panel certification that they are not at a high risk to 25 reoffend in order to be considered for parole by the Nevada Board of Parole Commissioners (“parole 26 27 1 28 Exhibits 1-10 are exhibits to petitioner’s amended petition (ECF #14) and may be found at ECF #15. Dockets.Justia.com 1 board”). Cf. 1997 Nev. Stat., ch. 524, § 10, at 2506; id. § 22, at 2513 with NRS 213.1214; Moor I, 603 2 F.3d at 662. In 1999, pursuant to the new requirements, the psych panel certified petitioner, and the 3 parole board granted petitioner parole. Id. at 660, 663. Petitioner was released on parole in April 2000 4 (ECF #14, p. 2; Moor I, 603 F.3d at 660). On April 2, 2002, petitioner was arrested for violating terms 5 and conditions of his parole. Id. In June 2002, the parole board found petitioner guilty of parole 6 violations and revoked his parole. Id. 7 The psych panel declined to certify petitioner as not a high risk to reoffend in late 2004, and the 8 parole board denied him parole in early 2005. Id. In state and federal postconviction petitions, 9 petitioner challenged the 2005 denial of parole on the basis that the psych panel requirement violated 10 the Ex Post Facto Clause. Moor I , 603 F.3d at 663-664. Ultimately, the Ninth Circuit Court of 11 Appeals held that there was no ex post facto violation. Id. at 664, 666. The Court concluded that while 12 NRS 213.1214 was retroactively applied to petitioner, the psych panel requirement did not pose a 13 significant risk of increased punishment. Id. at 664, 666. 14 In 2008, the psych panel found petitioner to pose a high risk to reoffend, and the parole board 15 denied him parole (ECF #14, p. 2; Exh. 8). On March 16, 2009, petitioner filed a state habeas petition 16 challenging the 2008 denial of parole. Exh. 1. The state district court denied the petition. Exh. 4. The 17 Nevada Supreme Court affirmed the denial, and remittitur issued on December 1, 2009. Exhs. 6, 7. 18 On June 29, 2010, petitioner dispatched his original federal habeas petition for filing (ECF #3). 19 Before the court is petitioner’s counseled first amended petition (ECF #14), which respondents have 20 answered (ECF #28). 21 II. Legal Standard - The Antiterrorism and Effective Death Penalty Act 22 23 24 25 26 27 28 U.S.C. § 2254(d), a provision of the Antiterrorism and Effective Death Penalty Act (AEDPA), provides the legal standards for this court’s consideration of the petition in this case: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 28 -2- 1 2 3 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). 4 The AEDPA “modified a federal habeas court’s role in reviewing state prisoner applications in 5 order to prevent federal habeas ‘retrials’ and to ensure that state-court convictions are given effect to 6 the extent possible under law.” Bell v. Cone, 535 U.S. 685, 693-694 (2002). A state court decision is 7 contrary to clearly established Supreme Court precedent, within the meaning of 28 U.S.C. § 2254, “if 8 the state court applies a rule that contradicts the governing law set forth in [the Supreme Court’s] cases” 9 or “if the state court confronts a set of facts that are materially indistinguishable from a decision of [the 10 Supreme Court] and nevertheless arrives at a result different from [the Supreme Court’s] precedent.” 11 Lockyer v. Andrade, 538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000) 12 and citing Bell v. Cone, 535 U.S. 685, 694 (2002)). This court’s ability to grant a writ is limited to cases 13 where “there is no possibility fair-minded jurists could disagree that the state court’s decision conflicts 14 with [Supreme Court] precedents.” Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 786 (2011). 15 A state court decision is contrary to clearly established Supreme Court precedent, within 16 the meaning of 28 U.S.C. § 2254, “if the state court applies a rule that contradicts the governing law 17 set forth in [the Supreme Court’s] cases” or “if the state court confronts a set of facts that are materially 18 indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different 19 from [the Supreme Court’s] precedent.” Lockyer v. Andrade, 538 U.S. 63 (2003) (quoting Williams v. 20 Taylor, 529 U.S. 362, 405-06 (2000), and citing Bell v. Cone, 535 U.S. 685, 694 (2002). 21 A state court decision is an unreasonable application of clearly established Supreme Court 22 precedent, within the meaning of 28 U.S.C. § 2254(d), “if the state court identifies the correct governing 23 legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts 24 of the prisoner’s case.” Andrade, 538 U.S. at 74 (quoting Williams, 529 U.S. at 413). The 25 “unreasonable application” clause requires the state court decision to be more than incorrect or 26 erroneous; the state court’s application of clearly established law must be objectively unreasonable. Id. 27 (quoting Williams, 529 U.S. at 409). 28 -3- 1 In determining whether a state court decision is contrary to federal law, this court looks to the 2 state courts’ last reasoned decision. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Shackleford 3 v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). Further, “a determination of a factual issue made 4 by a state court shall be presumed to be correct,” and the petitioner “shall have the burden of rebutting 5 the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). 6 III. Analysis 7 In 2008, the psych panel did not certify petitioner as a low risk to reoffend, and the parole board 8 denied him parole (ECF #14, p. 4). Petitioner in his current federal petition argues that the psych panel 9 certification requirement, applied retroactively in his case, created at least a “significant risk” of 10 increased incarceration, both on its face and as applied to the 2008 hearing. Id. He contends that the 11 parole board’s own records show that the board likely would have released petitioner but for the 12 imposition of this certification requirement. Id. 13 Previously, NRS 200.375 required that persons convicted of sexual assault or attempted sexual 14 assault be reviewed by the psych panel. In 1997, the state legislature repealed NRS 200.375 and enacted 15 NRS 213.1214, requiring persons convicted of several enumerated offenses, including offenses 16 “involving pornography and a minor pursuant to NRS 200.710 to 200.730, inclusive” to be reviewed 17 by the psych panel. In 2001, the state legislature altered the language of the statute to require 18 certification by the psych panel that the prisoner “does not represent a high risk to reoffend.” The 19 decision to grant parole is at the discretion of the parole board. NRS 213.1099. 20 The Ex Post Facto Clause, Article I, section 10 of the United States Constitution, prohibits laws 21 that retroactively increase the penalty for a crime. Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 22 (1995). “A law violates the Ex Post Facto Clause if it is 1) retroactive-‘it applies to events occurring 23 before its enactment;’ and 2) detrimental-it ‘produces a sufficient risk of increasing the measure of 24 punishment attached to the covered crimes.’” Brown v. Palmateer, 379 F.3d 1089, 1093 (9th Cir.2004) 25 (quoting Weaver v. Graham, 450 U.S. 24, 29 (1981) and Morales, 514 U.S. at 509, respectively). The 26 Supreme Court has not adopted “a single formula for identifying which legislative adjustments, in 27 matters bearing on parole, would survive an ex post facto challenge.” Garner v. Jones, 529 U.S. 244, 28 252 (2000). Instead, “[t]he question is whether the amended [rule] creates a significant risk of -4- 1 prolonging [the prisoner’s] incarceration” and there is no constitutional violation where the legislative 2 change produces “only the most speculative and attenuated possibility of producing the prohibited 3 effect.” Id. at 251 (citing Morales, 514 U.S. at 509). “[T]he focus of the ex post facto inquiry is not 4 on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ nor . . . on whether 5 an amendment affects a prisoner’s opportunity to take advantage of provisions for early release.” 6 Morales, 514 U.S. at 506 n. 3 (internal quotation marks omitted). “[T]he question of what legislative 7 adjustments will be held to be of sufficient moment . . . must be a matter of degree.” Id. at 509. 8 A. Challenge to 2005 Parole Denial 9 In Moor I, the Ninth Circuit held that NRS 213.1214 was applied retroactively to petitioner 10 because he pleaded guilty in 1994 and his eligibility for parole was clearly impacted by the law’s 11 amendment in 1997. 603 F.3d at 664. The Ninth Circuit determined that the Nevada Supreme Court’s 12 rejection of petitioner’s challenge of the 2005 parole denial was not contrary to clearly established 13 federal law. Id. at 664. 14 In Moor I, the Nevada Supreme Court reasoned: 15 [Petitioner] claimed that the requirement that he be certified pursuant to NRS 213.1214 before he was eligible for release on parole was an ex post facto violation as his offense, use of a minor in production of pornography, was not subject to the certification requirement when it was committed in 1994.[FN 7] 16 17 18 19 20 21 22 23 NRS 213.1214(1) specifically provides that the Parole Board shall not release a prisoner convicted of certain enumerated offenses on parole unless the prisoner is certified by a psych panel that he does not represent a high risk to reoffend. [Petitioner] is subject to the certification requirement.[FN 8] The Ex Post Facto Clause “is aimed at laws that retroactively alter the definition of crimes or increase the punishment for criminal acts.”[FN 9] There is no ex post facto violation when the law merely alters the method of imposing a penalty and does not change the quantum of punishment.[FN 10] In the instant case, requiring [petitioner] to be certified before release on parole does not constitute an additional punishment.[FN 11] Again, to the extent that [petitioner] challenged the Parole Board’s decision to deny parole, that challenge was without merit as a prisoner has no constitutional right to parole.[FN 12] Therefore, we conclude that the district court did not err in denying this claim. 24 27 [FN 7] The offenses required to be presented to a psych panel were expanded in 1997. Compare 1991 Nev. Stat. ch. 16, § 1, at 18 (providing that a person convicted of sexual assault may not be paroled unless a board certifies that the person is not a menace to the health, safety or morals of others) (NRS 200.375 repealed and replaced by NRS 213.1214) to 1997 Nev. Stat. ch. 524, §10, at 2506-07 (NRS 213.1214). 28 [FN 8] See NRS 213.1214(5)(e). 25 26 -5- 1 2 [FN 9] California Dept. of Corrections v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)); see also Stevens v. Warden, 114 Nev. 1217, 969 P.2d 945 (1998). 3 4 [FN 10] See Land v. Lawrence, 815 F.Supp. 1351 (D. Nev. 1993) (rejecting a prisoner’s ex post facto challenge to the certification requirement of NRS 200.375). 5 6 Case No. 3:07-cv-00151-BES-RAM, ECF #4, pp. 27-28. 7 In affirming, the Ninth Circuit explained: 8 [W]e conclude that the Nevada courts’ denial of habeas relief in this case did not result in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as embodied in Supreme Court precedent. The Nevada Supreme Court rejected [petitioner’s] ex post facto claim, reasoning that “[t]here is no ex post facto violation when the law merely alters the method of imposing a penalty and does not change the quantum of punishment,” and that “requiring [petitioner] to be certified before release on parole does not constitute an additional punishment.” The court did not explicitly set out the “controlling inquiry” of “whether retroactive application of the change . . . created ‘a sufficient risk of increasing the measure of punishment.’ ” Garner, 529 U.S. at 250, 120 S.Ct. 1362, citing Morales, 514 U.S. at 509, 115 S.Ct. 1597. Nevertheless, the Nevada Supreme Court did cite Morales, suggesting that it identified the governing rule, or at least did not apply a rule that contradicted the Morales rule. 9 10 11 12 13 14 15 Moor I, 603 F.3d at 664. 16 The Ninth Circuit further determined that it was not an unreasonable application of Supreme 17 Court precedent to conclude that applying the psych panel requirement to petitioner would not create 18 a sufficient risk that he would serve more prison time than if he was evaluated under the standard 19 applicable at the time of his conviction. Id. at 665. The Ninth Circuit considered petitioner’s argument 20 that the psych panel constitutes a “high hurdle” to be cleared before the parole board may exercise its 21 discretion, similar to the hurdle found unconstitutional in Miller v. Florida, 482 U.S. 423, 435 (1987). 22 Id. In Miller, the U.S. Supreme Court held that a law that retroactively revised sentencing guidelines 23 and required a judge departing from the guidelines to set forth clear and convincing reasons violated 24 the ex post facto prohibition. Miller, 482 U.S. at 435. The Ninth Circuit responded: 25 26 27 However, the “hurdle” represented by the [psych] panel here is not particularly onerous; the [psych] panel need only certify that the inmate does not pose a high risk of reoffending. Moreover, it is even less likely that the procedures would pose a significant risk of prolonging incarceration for prisoners who, like [petitioner] have already violated the terms of their parole once before. 28 -6- 1 Moor I, 603 F.3d at 665. 2 Petitioner also asserted that the psych panel review was similar to that in Brown v. Palmateer, 3 379 F.3d 1089 (9th Cir. 2004), which also involved two sets of parole decisionmakers applying two 4 different sets of standards. Id. at 665-666. In Brown, the new parole law allowed the board to postpone 5 a parole date if the board thought the prisoner suffered from a mental or emotional disturbance that 6 made him or her a danger to the community, regardless of whether the prisoner had a professional 7 diagnosis one way or the other and even if the disturbance was not severe. Brown, 379 F.3d at 1095. 8 The Ninth Circuit concluded that the impermissible change in law in Brown 9 10 11 12 represented a far greater threat of increased incarceration. . . . under [NRS] 213.1214, the board retains the same basic discretion to grant or deny parole; the legislature simply requires a specialized panel (including a psychologist or psychiatrist) to first make a threshold inquiry of whether the inmate poses a “high risk to reoffend,” which would be relevant to the board’s [NRS] 213.1099 analysis anyway. Moor I, 603 F.3d at 666. 13 Accordingly, the Ninth Circuit held that the psych panel review does not create a significant risk 14 of increased punishment on its face and that petitioner expressly argued that further fact finding was 15 unnecessary and thus chose to rest his ex post facto claim on a facial challenge to the statute. Id. The 16 Court further concluded that the Nevada Supreme Court’s denial of habeas relief did not result in a 17 decision that was contrary to, or involved an unreasonable application of, clearly established federal 18 law. Id.; 28 U.S.C. §2254(d). 19 B. Challenge to 2008 Parole Denial 20 After the psych panel did not certify petitioner as a low risk to reoffend, and the parole board 21 denied him parole in 2008, petitioner filed a second state postconviction petition. Exh. 1. He now 22 claims in the instant federal petition, inter alia, that in rejecting his challenge to the 2008 parole denial, 23 the Nevada Supreme Court applied the wrong legal standard (ECF #14, p. 4). As such, he argues that 24 the deferential standard of federal review under § 2254 (d)(1) does not apply. 25 The Nevada Supreme Court affirmed the denial of his claim as follows: 26 In his petition, [petitioner] claimed that the certification requirement of NRS 213.1214 for purposes of parole eligibility constituted an ex post facto violation. 27 28 Based upon our review of the record on appeal, we conclude that [petitioner’s] claim for relief lacked merit. Parole is an act of grace of the state, and there is no cause -7- 1 2 3 4 5 6 of action permitted when parole has been denied. See NRS 213.10705; Niergarth v. Warden, 105 Nev. 26, 768 P.2d 882 (1989). NRS 213.1214 requires a sex offender to be certified by a Psych Panel prior to being eligible for release on parole. [Petitioner] acknowledged that his conviction involved the use of a minor in the production of pornography in violation of NRS 200.710. Thus, [petitioner] was subject to the certification requirements pursuant to NRS 213.1214(5)(e). There was no ex post facto violation because the certification requirement does not change the quantum of punishment, but merely alters the method of imposing the penalty. See Land v. Lawrence, 815 F.Supp. 1351 (D. Nev. 1993) (rejecting a prisoner’s ex post facto challenge to the certification requirement of former NRS 200.375 (codified in 1997 as 213.1214)). Therefore, we affirm the order of the district court denying the petition. 7 Exh. 6 at 1-2. 8 Petitioner argues here that the Nevada Supreme Court did not apply or cite Morales or any other 9 U.S. Supreme Court decision (ECF #14, p. 7). Petitioner acknowledges that the fact that the state 10 supreme court did not cite relevant U.S. Supreme Court authority does not make the decision “contrary 11 to” clearly established federal law. Early v. Packer, 537 U.S. 3, 8 (2002). However, he claims that: 12 “the state court relied on an outdated and patently incorrect ex post facto analysis. The court’s analysis 13 was ‘contrary to,’ or at least an ‘unreasonable application of’ the clearly established ‘sufficient risk’ 14 standard of Morales” (ECF #14, pp. 7-8). 15 In the context of adjudicating respondents’ motion to dismiss, this court previously concluded 16 that, in his amended petition, petitioner failed to demonstrate that the Supreme Court of Nevada’s 17 decision regarding the 2008 parole denial was contrary to clearly established federal law (ECF #27, p. 18 17). Having carefully considered petitioner’s arguments set forth in his reply to the answer, this court 19 remains unpersuaded. 20 As this court explained in its previous order, in both Nevada Supreme Court decisions, the court 21 referenced the background principle that a prisoner has no constitutional right to parole because parole 22 is an act of grace in the state of Nevada. This is a correct statement of law, and it does not indicate that 23 the state supreme court applied the wrong legal analysis or decided the ex post facto claim on that basis. 24 Petitioner argued in his state postconviction petition challenging the 2008 parole denial that he was 25 denied due process of law and that he had a protected liberty interest under due process in his right to 26 apply for parole. Exh. 1 at 7. In affirming the denial of his claims, the Nevada Supreme Court merely 27 clarified that a prisoner has no constitutional right to parole. 28 -8- 1 The Nevada Supreme Court also stated in both decisions that no ex post facto violation exists 2 when the law merely alters the method of imposing a penalty and does not change the quantum of 3 punishment. Case No. 3:07-cv-00151-BES-RAM, ECF #4, pp. 27-28; Exh. 6 at 1-2. The state supreme 4 court cites to Land v. Lawrence, 815 F.Supp. 1351 (D. Nev. 1993), for this proposition in its decision 5 rejecting the 2008 claim at issue here. Exh. 6 at 1-2. In Land, this court considered a civil rights 6 complaint filed pursuant to 42 U.S.C. § 1983 in which a Nevada state prisoner presented essentially the 7 same challenge to the state law as is presented here. 815 F.Supp. at 1352. In Land, the plaintiff was 8 convicted of attempted sexual assault in 1985. Id. In 1991, then-NRS 200.375 was amended to require 9 that inmates convicted of attempted sexual assault–previously the statute had only applied to inmates 10 convicted of sexual assault–also be certified by the psych panel as at a low risk to reoffend in order to 11 be considered for parole by the parole board. Id. This court in Land inquired as to whether the law 12 changed the quantum of punishment (citing Dobbert v. Florida, 432 U.S. 282, 293-94 (1977)), and 13 concluded that it did not “‘increase the punishment for which [plaintiff was] eligible’ as a result of his 14 conviction.” Id. at 1353, quoting Collins v. Youngblood, 497 U.S. 37, 44 (1990). 15 Contrary to petitioner’s assertion, the U.S. Supreme Court emphasized this same core principle 16 in Morales and in Garner. In Morales, the Court stated: “After Collins, the focus of the ex post facto 17 inquiry is . . . whether any such change . . . increases the penalty by which a crime is punishable.” 18 Morales, 514 U.S. at 506 n.3. The Court held that the California law in question in Morales created 19 “only the most speculative and attenuated risk of increasing the measure of punishment attached to the 20 covered crimes.” Id. at 514. The Court in Garner reached a similar conclusion regarding a Georgia 21 statute on its face and remanded because in that instance the petitioner had argued that he had not been 22 permitted sufficient discovery to prove his as-applied challenge. 529 U.S. at 257. Nothing in Morales 23 or Garner diminishes the core principle that the Nevada Supreme Court invoked; in Morales and 24 Garcia the U.S. Supreme Court applied that same core principle to the contexts presented. 25 In sum, the Ninth Circuit has already considered the same language in the Nevada Supreme 26 Court’s decision in Moor I and found it not contrary to clearly established federal law as embodied in 27 Supreme Court precedent. The Nevada Supreme Court considered materially indistinguishable facts 28 with respect to the 2008 parole denial, and petitioner has failed to demonstrate that the lack of citation -9- 1 to Morales renders the Nevada Supreme Court’s decision contrary to clearly established federal law. 2 Morales and Garner in fact reaffirm the core focus of the ex post facto analysis cited by the Nevada 3 Supreme Court. 4 Finally, the court notes that petitioner also argues that, while Moor I was expressly a facial 5 challenge to the statute, he now challenges the law “as applied.” This court however, is unconvinced 6 that the Ninth Circuit’s analysis in Moor I is fairly viewed as purely a facial determination. While the 7 Court found NRS 213.1214 was not, on its face, an ex post facto violation, the Court further found the 8 Nevada Supreme Court’s decision was not objectively unreasonable when it concluded that application 9 of the rule to petitioner would not create a more substantial risk of more prison time than if he had been 10 evaluated under the earlier parole standards. Moor I, 603 F.3d at 665. The Court further concluded that 11 it was even less likely that the procedures posed a significant risk of prolonging incarceration for 12 prisoners who, like petitioner, had previously violated the terms of their parole. Id. This court agrees 13 with respondents that the fact that petitioner did not present additional facts to the Ninth Circuit or seek 14 remand for further factual development does not necessarily limit the Ninth Circuit’s analysis to a facial 15 determination. Instead, it meant that the Ninth Circuit had no basis to remand and simply rejected the 16 ex post facto challenge outright. 17 Moreover, in mounting an alleged as-applied challenge now, petitioner adds little to his previous 18 arguments. He asserts that, with respect to his 2008 parole hearing, the psych panel determined that 19 petitioner’s risk of reoffending was high and that he should not be certified for release. Exh. 8. He 20 argues that the parole board’s independent risk assessment, however, found his risk level to be low. Id. 21 Thus, the parole board did not have the option to exercise its discretion to grant parole. The court notes 22 that while the parole board cited petitioner’s prison program participation and that he had been 23 disciplinary-infraction-free for two years as mitigating factors, it also cited several aggravating factors: 24 the increasing severity of petitioner’s offenses; that his prior prison term did not deter criminal activity; 25 that his crime was targeted against a child or vulnerable person; repetitive criminal conduct; and his 26 prior sex and/or violent conviction. Id. This court does not minimize the effect on petitioner of the 27 2008 parole denial, but views the 2008 denial and the potential that the parole board might have reached 28 a different conclusion as scant additional evidence that the statute in question created a significant risk -10- 1 of increased punishment as applied to petitioner. Petitioner has not demonstrated more than a 2 “speculative and attenuated risk of increasing the measure of punishment attached to the covered 3 crimes.” Morales at 514. 4 5 Accordingly, the petition is denied. IV. Certificate of Appealability 6 In order to proceed with an appeal, petitioner must receive a certificate of appealability. 28 7 U.S.C. § 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-51 (9th 8 Cir. 2006); see also United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a 9 petitioner must make “a substantial showing of the denial of a constitutional right” to warrant a 10 certificate of appealability. Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 11 (2000). “The petitioner must demonstrate that reasonable jurists would find the district court’s 12 assessment of the constitutional claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In 13 order to meet this threshold inquiry, the petitioner has the burden of demonstrating that the issues are 14 debatable among jurists of reason; that a court could resolve the issues differently; or that the questions 15 are adequate to deserve encouragement to proceed further. Id. This court has considered the issues 16 raised by petitioner, with respect to whether they satisfy the standard for issuance of a certificate of 17 appealability, and determines that none meet that standard. The court will therefore deny petitioner a 18 certificate of appealability. 19 V. Conclusion 20 21 22 23 24 25 26 IT IS THEREFORE ORDERED that the amended petition for a writ of habeas corpus (ECF #14) is DENIED IN ITS ENTIRETY. IT IS FURTHER ORDERED that the clerk SHALL ENTER JUDGMENT accordingly and close this case. IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF APPEALABILITY. Dated this 30th day of of April, 2015. Dated this ______ day April, 2015. 27 28 UNITED STATES DISTRICT JUDGE -11-
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