(HC) Martinez v. Warden, Avenal State Prison, No. 1:2009cv01291 - Document 15 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that the Petition for Writ of Habeas Corpus 1 be DENIED WITH PREJUDICE and Clerk of Court be Directed to Enter Judgment for Respondent, signed by Magistrate Judge John M. Dixon, Jr on 8/16/2010, referred to Judge Ishii. Objections to F&R due by 9/20/2010. (Marrujo, C)
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(HC) Martinez v. Warden, Avenal State Prison Doc. 15 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ROMAN CAMACHO MARTINEZ, 9 10 11 Petitioner, v. WARDEN, AVENAL STATE PRISON, 12 Respondent. ) ) ) ) ) ) ) ) ) ) 1:09-CV-01291 AWI JMD HC FINDINGS AND RECOMMENDATIONS REGARDING PETITION FOR WRIT OF HABEAS CORPUS OBJECTIONS DUE WITHIN THIRTY (30) DAYS 13 14 15 Roman Camacho Martinez (hereinafter “Petitioner”) is a prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. 28 U.S.C. § 2254. 16 PROCEDURAL HISTORY 17 Petitioner is currently in the custody of the California Department of Corrections and 18 Rehabilitation pursuant to a 1985 conviction for second degree murder. The trial court sentenced 19 Petitioner to a prison term of sixteen years to life. Petitioner’s current petition for writ of habeas 20 corpus does not involve his conviction; rather, the instant petition challenges the decision by the 21 California Board of Parole Hearings (the “Board”) to deny Petitioner parole. Petitioner appeared 22 before the Board on April 22, 2008. 23 On November 17, 2008, Petitioner filed a petition for writ of habeas corpus with the Los 24 Angeles County Superior Court challenging the Board’s decision. (See Resp’t Answer Ex. 1.) The 25 Superior Court issued a reasoned opinion denying the petition on January 21, 2009. (See Resp’t 26 Answer Ex. 2.) 27 28 Petitioner also filed petitions for writ of habeas corpus with the California Court of Appeal and the California Supreme Court. (Resp’t Answer Exs. 3, 5.) The California Court of Appeal U .S. D istrict C our E. D . C alifornia 1 Dockets.Justia.com 1 denied the petition with a citation to In re Lawrence, 44 Cal. 4th 1181, 1212, 1228 (2008) and In re 2 Shaputis, 44 Cal. 4th 1241, 1254-61 (2008). (Resp’t Answer Ex. 4.) The California Supreme Court 3 issued a summary denial of the petition. (See Resp’t Answer Ex. 6.) 4 On July 24, 2009, Petitioner filed the instant federal petition for writ of habeas corpus. 5 Respondent filed a response to the petition on January 11, 2010, to which Petitioner filed a traverse 6 on February 1, 2010. 7 FACTUAL BACKGROUND 8 Petitioner was convicted of second degree murder stemming from the stabbing of a rival gang 9 member, John Ruiz. The facts, as summarized by the Los Angeles Superior Court, were that: 10 The record reflects that the commitment offense occurred on November 14, 1984. Petitioner has his friends, who were all gang members, were walking to a store when they encountered the victim and two companions, whom they believed to be members of a rival gang. One of the victims lived next door to the store. When they arrived at the store, the victim’s female companion went to the pay phone near where petitioner was standing. Petitioner claims that he believed that she was trying to call other gang members to fight. He told her to hang up the phone and then attempted to grab it from her hands. She hung up and went into the house next door. According to court testimony, she told the men with her that petitioner had threatened her with a knife. One of the men came out of the house confront petitioner. They began fighting. Petitioner’s friends came to his aid so the victim fled to his house next door. Petitioner believed the man went inside to get a weapon, so he armed himself with two bottles he found in the ally behind the store. When the victims came out of the house again, petitioner threw the bottles at them. Petitioner friends join in the fight and began beating and kicking the victim. According to the witness, petitioner stabbed the victim, which resulted in his death. Petitioner admits throwing the bottles and kicking the victim, but denies the stabbing. 11 12 13 14 15 16 17 18 19 (Resp’t Answer Ex. 2 at 1.)1 20 Petitioner’s account of the events is consistent with the facts as stated by the Los Angeles 21 Superior Court. (Tr. Parole Hearing at 11-16.) However, Petitioner denies stabbing Ruiz, claiming 22 that one of his friends stabbed Ruiz with a buck knife. (Id. at 16.) 23 \\\ 24 \\\ 25 \\\ 26 1 27 28 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); Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 2009). U .S. D istrict C our E. D . C alifornia 2 1 2 DISCUSSION I. 3 Jurisdiction A person in custody pursuant to the judgment of a State court may petition a district court for 4 relief by way of a writ of habeas corpus if the custody is in violation of the Constitution, laws, or 5 treaties of the United States. 28 U.S.C. § 2254(a); 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 6 U.S. 362, 375 n.7 (2000). Petitioner asserts that he suffered violations of his rights as guaranteed by 7 the United States Constitution. Petitioner is currently incarcerated at Avenal State Prison, which is 8 located in Kings County. As Kings County falls within this judicial district, 28 U.S.C. § 84(b), the 9 Court has jurisdiction over Petitioner’s application for writ of habeas corpus. See 28 U.S.C. § 10 2241(d) (vesting concurrent jurisdiction over application for writ of habeas corpus to the district 11 court where the petitioner is currently in custody or the district court in which a State court convicted 12 and sentenced Petitioner if the State “contains two or more Federal judicial districts”). 13 II. 14 AEDPA Standard of Review On April 24, 1996, Congress enacted the Anti-terrorism and Effective Death Penalty Act of 15 1996 (“AEDPA”), which applies to all petitions for a writ of habeas corpus filed after the statute’s 16 enactment. Lindh v. Murphy, 521 U.S. 320, 326-327 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499 17 (9th Cir. 1997). The instant petition was filed after the enactment of AEDPA and is consequently 18 governed by its provisions. See Lockyer v. Andrade, 538 U.S. 63, 70 (2003). Thus, the petition 19 “may be granted only if [Petitioner] demonstrates that the state court decision denying relief was 20 ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as 21 determined by the Supreme Court of the United States.’” Irons v. Carey, 505 F.3d 846, 850 (9th Cir. 22 2007) (quoting 28 U.S.C. § 2254(d)(1)), overruled in part on other grounds, Hayward v. Marshall, 23 603 F.3d 546, 555 (9th Cir. 2010) (en banc); see Lockyer, 538 U.S. at 70-71. 24 Title 28 of the United States Code, section 2254 remains the exclusive vehicle for 25 Petitioner’s habeas petition as Petitioner is in the custody of the California Department of 26 Corrections and Rehabilitation pursuant to a state court judgment. See Sass v. California Board of 27 Prison Terms, 461 F.3d 1123, 1126-1127 (9th Cir. 2006) overruled in part on other grounds, 28 Hayward, 603 F.3d at 555. As a threshold matter, this Court must “first decide what constitutes U .S. D istrict C our E. D . C alifornia 3 1 ‘clearly established Federal law, as determined by the Supreme Court of the United States.’” 2 Lockyer, 538 U.S. at 71 (quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly 3 established Federal law,” this Court must look to the “holdings, as opposed to the dicta, of [the 4 Supreme Court’s] decisions as of the time of the relevant state-court decision.” Id. (quoting 5 Williams, 592 U.S. at 412). “In other words, ‘clearly established Federal law’ under § 2254(d)(1) is 6 the governing legal principle or principles set forth by the Supreme Court at the time the state court 7 renders its decision.” Id. Finally, this Court must consider whether the state court’s decision was 8 “contrary to, or involved an unreasonable application of, clearly established Federal law.” Id. at 72 9 (quoting 28 U.S.C. § 2254(d)(1)). “Under the ‘contrary to’ clause, a federal habeas court may grant 10 the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a 11 question of law or if the state court decides a case differently than [the] Court has on a set of 12 materially indistinguishable facts.” Williams, 529 U.S. at 413; see also Lockyer, 538 U.S. at 72. 13 “Under the ‘unreasonable application clause,’ a federal habeas court may grant the writ if the state 14 court identifies the correct governing legal principle from [the] Court's decisions but unreasonably 15 applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. “[A] federal 16 court may not issue the writ simply because the court concludes in its independent judgment that the 17 relevant state court decision applied clearly established federal law erroneously or incorrectly. 18 Rather, that application must also be unreasonable.” Id. at 411. A federal habeas court making the 19 “unreasonable application” inquiry should ask whether the State court's application of clearly 20 established federal law was “objectively unreasonable.” Id. at 409. 21 Petitioner bears the burden of establishing that the state court’s decision is contrary to or 22 involved an unreasonable application of United States Supreme Court precedent. Baylor v. Estelle, 23 94 F.3d 1321, 1325 (9th Cir. 1996). Although only Supreme Court law is binding on the states, Ninth 24 Circuit precedent remains relevant persuasive authority in determining whether a state court decision 25 is objectively unreasonable. Clark v. Murphy, 331 F.3d 1062, 1072 (9th Cir. 2003) (“While only the 26 Supreme Court’s precedents are binding on the Arizona court, and only those precedents need be 27 reasonably applied, we may look for guidance to circuit precedents.”); Duhaime v. Ducharme, 200 28 F.3d 597, 600-01 (9th Cir. 1999) (“because of the 1996 AEDPA amendments, it can no longer U .S. D istrict C our E. D . C alifornia 4 1 reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on 2 a federal Constitutional issue....This does not mean that Ninth Circuit caselaw is never relevant to a 3 habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining 4 whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and 5 also may help us determine what law is ‘clearly established.’”). Furthermore, the AEDPA requires 6 that the Court give considerable deference to state court decisions. The state court’s factual findings 7 are presumed correct. 28 U.S.C. § 2254(e)(1). A federal habeas court is bound by a state’s 8 interpretation of its own laws. Souch v. Schaivo, 289 F.3d 616, 621 (9th Cir. 2002). 9 The initial step in applying AEDPA’s standards is to “identify the state court decision that is 10 appropriate for our review.” Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). Where more 11 than one State court has adjudicated Petitioner’s claims, a federal habeas court analyzes the last 12 reasoned decision. Id. (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) for the presumption that 13 later unexplained orders, upholding a judgment or rejecting the same claim, rests upon the same 14 ground as the prior order). Thus, a federal habeas court looks through ambiguous or unexplained 15 state court decisions to the last reasoned decision to determine whether that decision was contrary to 16 or an unreasonable application of clearly established federal law. Bailey v. Rae, 339 F.3d 1107, 17 1112-1113 (9th Cir. 2003). Here, the Los Angeles County Superior Court, the California Court of 18 Appeal, and the California Supreme Court reached the merits of Petitioner’s claims. The California 19 Supreme Court’s decision was a summary denial. As the California Court of Appeal’s decision 20 merely cited to In re Lawrence and In re Shaputis in denying the petition, the Court finds the state 21 appellate court’s decision to be an ambiguous state court decision. Thus, the Court looks through the 22 decisions by the California Supreme Court and the California Court of Appeal to the last reasoned 23 decision; namely, that of the Los Angeles County Superior Court. See Nunnemaker, 501 U.S. at 804. 24 III. 25 Review of Petitioner’s Claims The petition for writ of habeas corpus sets forth three ground for relief. In his first ground for 26 relief, Petitioner contends that there was no evidence to support the Board’s finding that Petitioner 27 posed an unreasonable risk of danger to the public safety. Petitioner’s second ground for relief 28 contends that the Board failed to give him individualized consideration, thereby depriving Petitioner U .S. D istrict C our E. D . C alifornia 5 1 of his right to due process of the law. Lastly, Petitioner contends that the Board’s reliance on 2 immutable factors to deny him parole violated his constitutional rights. As all three claims center on 3 the same issue, whether Petitioner’s due process rights were violated by the denial of parole, the 4 Court addresses these claims in the same section. 5 The Court analyzes Petitioner’s due process claims in two steps: “the first asks whether there 6 exists a liberty or property interest which has been interfered with by the State; the second examines 7 whether the procedures attendant upon that deprivation were constitutionally sufficient.’” Sass, 461 8 F.3d at 1127 (quoting Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989), 9 partially overruled on other grounds by Sandin v. Conner, 515 U.S. 472 (1995)). The United States 10 Constitution does not, by itself, create a protected liberty interest in a parole date. Jago v. Van 11 Curen, 454 U.S. 14, 17-21 (1981). Respondent argues that Petitioner does not have a federally 12 protected liberty interest in parole. (Resp’t Answer at 3.) Respondent further contends that even if 13 Petitioner has a liberty interest in parole that is protect by federal law, he was provided all the 14 protections required under Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. at, 16 15 (1979). (Id.) 16 The Ninth Circuit Court of Appeals has recognized that “[i]f there is any right to be release 17 on parole, or to release in the absence of some evidence of future dangerousness, it has to arise from 18 substantive state law creating a right to release.” Hayward, 603 F.3d at 555. The Ninth Circuit 19 further recognized that “[t]here is no general federal constitutional ‘some evidence’ requirement for 20 denial of parole, in the absence of state law creating an enforceable right to parole.” Id. at 559. The 21 Hayward court’s finding, that there exists no free standing federal due process right to parole or the 22 federal right to some evidence of current dangerousness, contained the consistent and continual 23 caveat that state law may in fact give rise to federal protection for those rights. As the Ninth Circuit 24 later reiterated, “state created rights may give rise to liberty interests that may be enforced as a matter 25 of federal law.” Pearson v. Muntz, 606 F.3d 606, 609 (9th Cir. 2010) (per curiam) (citing Wilkinson 26 v. Austin, 545 U.S. 209, 221 (2005)). The Pearson court found that, “Hayward necessarily held that 27 compliance with state requirement is mandated by federal law, specifically the Due Process Clause” 28 as “[t]he principle that state law gives rise to liberty interests that may be enforced as a matter of U .S. D istrict C our E. D . C alifornia 6 1 federal law is long-established.” Id. 2 The next question is whether California’s parole scheme gives rise to a liberty interest 3 enforced as a matter of federal law. The Ninth Circuit has definitively concluded that “California 4 has created a parole system that independently requires the enforcement of certain procedural and 5 substantive rights, including the right to parole absent ‘some evidence’ of current dangerousness.” 6 Id. at 611 (citing Hayward, 603 F.3d at 562); see also Cooke v. Solis, 606 F.3d 1206, 1213 (9th Cir. 7 2010) (noting that “California’s ‘some evidence’ requirement is a component of the liberty interest 8 created by the parole system of that state.”). Consequently, the inquiry that a federal habeas court 9 must undertake in determining whether the denial of parole comports with the requirement of federal 10 due process is “whether the California judicial decision approving the governor’s [or parole board’s] 11 decision rejecting parole was an ‘unreasonable application’ of the California ‘some evidence’ 12 requirement, or was ‘based on an unreasonable determination of the facts in light of the evidence.’” 13 Hayward, 603 F.3d at 563 (quoting 28 U.S.C. § 2254(d)(1)-(2)) (footnotes omitted). 14 The Court now examines whether the Los Angeles County Superior Court’s decision was an 15 unreasonable application of the California some evidence standard. The Superior Court found that 16 the Board’s decision was based on several factors, including the commitment offense and 17 Petitioner’s disciplinary record, and that some evidence supported the Board’s decision to deny 18 parole. (Resp’t Answer Ex. 2 at 2-3.) The Superior Court articulated two reasons why the 19 commitment offense was probative of current dangerousness. First, the State court observed that 20 “[i]n some cases, ‘the nature of the prisoner’s offense, alone, can constitute a sufficient basis for 21 denying parole.’” (Id. at 2) (quoting In re Lawrence, 44 Cal. 4th at 1207. The Superior Court 22 proceeded to discuss the heinous nature of the commitment offense, finding that the offense was 23 committed in a more aggravated and violent fashion than ordinarily shown. Alternatively, the 24 Superior Court concluded that the commitment offense was rendered probative towards current 25 dangerousness by Petitioner’s prison disciplinary record. 26 \\\ 27 \\\ 28 \\\ U .S. D istrict C our E. D . C alifornia 7 1 The Court initially notes that the Los Angeles County Superior Court applied the correct 2 standard of review in focusing on whether there was evidence of current dangerousness. The 3 California Supreme Court held in Lawrence that, “[t]he relevant determination for the Board and the 4 Governor is, and always has been, an individualized assessment of the continuing danger and risk to 5 public safety posed by the inmate.”2 In re Lawrence, 44 Cal. 4th. at 1227 (noting that “mere 6 recitation of the circumstances of the commitment offense, absent articulation of a rational nexus 7 between those facts and current dangerousness, fails to provide the required “modicum of evidence” 8 of unsuitability.”). The Ninth Circuit reiterated this principle, stating that “a reviewing court must 9 consider ‘whether the identified facts are probative to the central issue of current dangerousness 10 when considered in light of the full record before the Board or the Governor.’” Cooke, 606 F.3d at 11 1214 (emphasis in original) (quoting In re Lawrence, 44 Cal. 4th at 1221). As the Ninth Circuit 12 observed in Cooke: 13 14 15 Under California law, “the paramount consideration for both the Board and the Governor” must be “whether the inmate currently poses a threat to public safety and thus may not be released on parole,”[citation], and “the facts relied upon by the Board or the Governor [must] support the ultimate decision that the inmate remains a threat to public safety. 16 Id. (quoting In re Lawrence, 44 Cal. 4th at 1210, 1213); see also Cal. Code Regs. tit. 15, § 2402(a) 17 (“[I]f in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if 18 released from prison,” the prisoner must be found unsuitable and denied parole). 19 In relying on the commitment offense as evidence of current dangerousness, the Los Angeles 20 Superior Court applied the California Supreme Court’s holding in Lawrence “that certain conviction 21 offenses may be so ‘heinous, atrocious or cruel’ that an inmate’s due process rights would not be 22 violated if he or she were to be denied parole on the basis that the gravity of the conviction offense 23 establishes current dangerousness.” Id. at 1227. The Superior Court’s reliance on this portion of 24 25 26 27 28 2 Petitioner contends that he was deprived of an individualized consideration by the Board, faulting the Board for not giving due consideration to his age at the time of offense, his discipline free record, and personal gains in prison. Petitioner further contends that the Board failed to consider the period of stress he was under. The Court notes that this factor was not mentioned by Petitioner at the hearing. Furthermore, the Court finds that this contention is not supported by the record as the Board discussed Petitioner’s post-incarceration gains, including his discipline record (Tr. Parol Hearing at 2627), his vocational upgrades (Tr. Parole Hearing at 27-28) and his participation in self-help programs (Tr. Parole Hearing at 30-33). In sum, there is no evidence, the Board failed to give Petitioner individualized consideration. U .S. D istrict C our E. D . C alifornia 8 1 Lawrence is objectively unreasonable as the Lawrence court noted that this holding only applies to 2 rare instances. See In re Lawrence, 44 Cal. 4th at 1211 (“the underlying circumstances of the 3 commitment offense alone rarely will provide a valid basis for denying parole when there is strong 4 evidence of rehabilitation and no other evidence of current dangerousness.”). The Superior Court’s 5 discussion of the nature of Petitioner’s commitment offense illustrates that this is not one of those 6 instances where the commitment offense by itself could constitute some evidence of current 7 dangerousness. As noted by the state court’s summary of the facts, the commitment offense began as 8 a fight between two groups belonging to rival gangs. The victim was physically beaten and then 9 stabbed during this fight. The Court does not find that these circumstances to be so heinous, 10 atrocious or cruel such that the remoteness of time is unable render the crime less predictive of 11 current dangerousness. See In re Rozzo, 172 Cal. App. 4th 40, 59 (2009). Such a finding would lead 12 to almost every commitment offense being probative of current dangerousness and would render 13 meaningless the rest of the California Supreme Court’s holding in Lawrence. Thus, the Court finds 14 the Superior Court’s findings to be an unreasonable application of Lawrence. 15 16 17 18 19 20 21 22 23 24 However, the Superior Court also found that the commitment offense was rendered probative by Petitioner’s disciplinary infractions. The Superior Court stated that: the relevant inquiry is not simple whether the crime was especially heinous, but whether the heinousness of the crime indicates that petitioner continues to pose an unreasonable risk fo danger to society. (In re Shaputis (2008) 44 Cal. 4th 1241, 1254.) There must also be a ‘rational nexus’ between the heinousness of the commitment offense and the inmate’s current risk of danger. (Lawrence, supra, 44 Cal 4th at 1213.) There is some evidence that petitioner is an unreasonable risk of danger to society due to his serious misconduct while in prison. (Cal. Code Regs., tit. 15, § 2402, sub. (c)(6).) Although petitioner has not had any CDC 115s since 1994, he has been disciplined for violent behavior in the past, including the stabbing of an inmate, force and violence, and weapons possession. The stabbing incident is significant given the fact that his original crime was also a stabbing. (Resp’t Answer Ex. 2 at 2.) The Court notes that the disciplinary infractions on which the Superior Court rely on are at 25 least fourteen years old. While the Ninth Circuit found that disciplinary infractions occurring a 26 decade earlier were not evidence of current dangerousness, Cooke v. Solis, 606 F.3d at 1215, the 27 Court finds this situation distinct from Cooke. Unlike Cooke, the disciplinary infractions here are 28 not minor as they involve CDC 115s. In re Gray, 151 Cal.App.4th 379, 389 (2007) (noting that U .S. D istrict C our E. D . C alifornia 9 1 CDC 115 documents misconduct believed to be a violation of law or otherwise not minor in nature); 2 Cal. Code Regs. tit. 15, § 3312(a)(3). California regulations specifically mandate consideration of 3 serious disciplinary infractions as a circumstance tending to show unsuitability for release. Cal. 4 Code Regs. tit. 15, § 2402(c)(6). Additionally, the use of disciplinary infractions here is distinct 5 from that disapproved of by the Ninth Circuit in Cooke. In Cooke, the disciplinary infraction was 6 itself considered as evidence of current dangerousness by the Board. Here, the Superior Court found 7 that the disciplinary infraction rendered the commitment offense probative towards current 8 dangerousness. This approach is consistent with the holding of the Lawrence court, which stated: 9 10 11 12 13 14 15 [W]e conclude that although the Board and the Governor may rely upon the aggravated circumstances of the commitment offense as a basis for a decision denying parole, the aggravated nature of the crime does not in and of itself provide some evidence of current dangerousness to the public unless the record also establishes that something in the prisoner’s pre- or post-incarceration history, or his or her current demeanor and mental state, indicates that the implications regarding the prisoner’s dangerousness that derive from his or her commission of the commitment offense remain probative to the statutory determination of a continuing threat to public safety. In re Lawrence, 44 Cal. 4th at 1214 (emphasis added). Thus, the Court does not find the Superior Court’s decision to be an objectively unreasonable 16 application of the California some evidence standard. As the Superior Court’s decision was not 17 objectively unreasonable, Petitioner is not entitled to habeas corpus relief. 18 RECOMMENDATION 19 Accordingly, the Court RECOMMENDS that the petition for writ of habeas corpus be 20 DENIED WITH PREJUDICE and the Clerk of Court be DIRECTED to enter judgment for 21 Respondent. 22 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United 23 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of 24 the Local Rules of Practice for the United States District Court, Eastern District of California. 25 Within thirty (30) days after being served with a copy, any party may file written objections with the 26 court and serve a copy on all parties. Such a document should be captioned “Objections to 27 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served and 28 filed within ten (10) court days (plus three days if served by mail) after service of the objections. U .S. D istrict C our E. D . C alifornia 10 1 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The 2 parties are advised that failure to file objections within the specified time may waive the right to 3 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 5 IT IS SO ORDERED. 6 Dated: hlked6 August 16, 2010 /s/ John M. Dixon UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C our E. D . C alifornia 11
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