(HC) Rivera v. Hartley, No. 1:2010cv01320 - Document 17 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petitioner's Due Process Claim Without Leave to Amend 1 ; Findings and Recommendations to Deny Petitioner's First Amendment Claim 1 ; Findings and Recommendations to Decline to Issue Certificate of Appealability and to Direct the Entry of Judgment for Respondent, signed by Magistrate Judge Sandra M. Snyder on 5/9/11. Referred to Judge O'Neill. Objections Deadline: Thirty (30) Days (Gonzalez, R)
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(HC) Rivera v. Hartley Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 FRANK RIVERA, 11 Petitioner, 12 v. 13 JAMES D. HARTLEY, Warden, 14 Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv—01320-LJO-SMS-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER’S DUE PROCESS CLAIM WITHOUT LEAVE TO AMEND (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DENY PETITIONER’S FIRST AMENDMENT CLAIM (Doc. 1) FINDINGS AND RECOMMENDATIONS TO DECLINE TO ISSUE A CERTIFICATE OF APPEALABILITY AND TO DIRECT THE ENTRY OF JUDGMENT FOR RESPONDENT 18 OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 20 Petitioner is a state prisoner proceeding pro se and in 21 forma pauperis with a petition for writ of habeas corpus pursuant 22 to 28 U.S.C. § 2254. The matter has been referred to the 23 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 24 Rules 302 and 304. Pending before the Court is the petition 25 filed on July 22, 2010, Respondent filed an answer to the 26 petition on November 12, 2010, and Petitioner filed a traverse on 27 December 30, 2010. 28 1 Dockets.Justia.com 1 I. 2 Rule 4 of the Rules Governing § 2254 Cases in the United Consideration of Dismissal of the Petition 3 States District Courts (Habeas Rules) requires the Court to make 4 a preliminary review of each petition for writ of habeas corpus. 5 The Court must summarily dismiss a petition "[i]f it plainly 6 appears from the petition and any attached exhibits that the 7 petitioner is not entitled to relief in the district court....” 8 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 9 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 10 1990). 11 grounds of relief available to the Petitioner; 2) state the facts 12 supporting each ground; and 3) state the relief requested. 13 Notice pleading is not sufficient; rather, the petition must 14 state facts that point to a real possibility of constitutional 15 error. 16 O’Bremski v. Maass, 915 F.2d at 420 (quoting Blackledge v. 17 Allison, 431 U.S. 63, 75 n.7 (1977)). 18 that are vague, conclusory, or palpably incredible are subject to 19 summary dismissal. 20 Cir. 1990). 21 Habeas Rule 2(c) requires that a petition 1) specify all Rule 4, Advisory Committee Notes, 1976 Adoption; Allegations in a petition Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Further, the Court may dismiss a petition for writ of habeas 22 corpus either on its own motion under Habeas Rule 4, pursuant to 23 the respondent's motion to dismiss, or after an answer to the 24 petition has been filed. 25 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 26 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 27 Here, after Respondent and Petitioner filed the answer and 28 traverse, respectively, the United States Supreme Court decided 2 1 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 2 Because Swarthout appears to apply in the instant case, and 3 because no motion to dismiss any claims in the petition has been 4 filed, the Court proceeds to consider whether the petition states 5 a cognizable claim for relief. 6 II. 7 Petitioner alleges that he is an inmate of Avenal State Background 8 Prison who is serving a sentence of fifteen (15) years to life 9 plus five (5) years imposed by the Los Angeles County Superior 10 Court in June 1989 upon Petitioner’s conviction for second degree 11 murder with an enhancement for a prior serious felony conviction 12 in violation of Cal. Pen. Code §§ 187 and 667. 13 (Pet. 2.) Petitioner challenges the decision of California’s Board of 14 Parole Hearings (BPH) made after a hearing held on March 25, 15 2008, finding Petitioner unsuitable for release on parole, which 16 was upheld in the state courts. 17 the following claims in the petition: 18 due process of law was violated by the BPH’s decision that he was 19 unsuitable for parole because the decision was not supported by 20 some evidence that Petitioner would present a continuing, 21 unreasonable risk of danger to society if released; and 2) the 22 BPH violated Petitioner’s rights under the Establishment Clause 23 of the First Amendment by relying on Petitioner’s lack of 24 participation in AA or NA programs as a basis for concluding that 25 Petitioner would pose an unreasonable danger to public safety if 26 released. 27 28 (Pet. 9-11.) 1) Petitioner raises Petitioner’s right to In connection with the answer, Respondent submitted a transcript of the BPH hearing held on March 25, 2008. 3 (Ans., 1 doc. 13-1, 46-80, doc. 13-2, 2-32.) 2 reflects that Petitioner attended the hearing with counsel, who 3 submitted documents and advocated on Petitioner’s behalf. 4 13-1, 46, 48, 58, 61-62; doc. 13-2, 22-23.) 5 opportunity to speak to the BPH regarding numerous suitability 6 factors (doc. 13-1 at 61-80; doc. 13-2, 2-20) and make a 7 statement personally to the board in support of his application 8 for parole (doc. 13-2, 23-25). Review of the transcript (Doc. Petitioner had an 9 Further, the transcript reflects that Petitioner was present 10 when the BPH stated its reasons for finding Petitioner unsuitable 11 for parole, which included the commitment offense, Petitioner’s 12 history of prior convictions and failures on probation, 13 Petitioner’s failure to upgrade vocationally or participate in 14 beneficial self-help and therapy programming, an inconclusive 15 psychological evaluation, lack of viable residential and 16 employment plans for parole, and the District Attorney’s 17 opposition to parole. 18 GED, a long and favorable work record, and only one disciplinary 19 violation. Petitioner was commended for having his (Doc. 13-2, 26-32.) 20 III. 21 The Supreme Court has characterized as reasonable the Failure to State a Cognizable Due Process Claim 22 decision of the Court of Appeals for the Ninth Circuit that 23 California law creates a liberty interest in parole protected by 24 the Fourteenth Amendment Due Process Clause, which in turn 25 requires fair procedures with respect to the liberty interest. 26 Swarthout v. Cooke, 562 U.S. –, 131 S.Ct. 859, 861-62 (2011). 27 28 However, the procedures required for a parole determination are the minimal requirements set forth in Greenholtz v. Inmates 4 1 of Neb. Penal and Correctional Complex, 442 U.S. 1, 12 (1979).1 2 Swarthout v. Cooke, 131 S.Ct. 859, 862. 3 rejected inmates’ claims that they were denied a liberty interest 4 because there was an absence of “some evidence” to support the 5 decision to deny parole. 6 7 8 9 10 11 12 13 In Swarthout, the Court The Court stated: There is no right under the Federal Constitution to be conditionally released before the expiration of a valid sentence, and the States are under no duty to offer parole to their prisoners. (Citation omitted.) When, however, a State creates a liberty interest, the Due Process Clause requires fair procedures for its vindication–and federal courts will review the application of those constitutionally required procedures. In the context of parole, we have held that the procedures required are minimal. In Greenholtz, we found that a prisoner subject to a parole statute similar to California’s received adequate process when he was allowed an opportunity to be heard and was provided a statement of the reasons why parole was denied. (Citation omitted.) 14 Swarthout, 131 S.Ct. 859, 862. 15 petitioners had received the process that was due as follows: 16 17 The Court concluded that the They were allowed to speak at their parole hearings and to contest the evidence against them, were afforded access to their records in advance, and were notified as to the reasons why parole was denied.... 18 19 That should have been the beginning and the end of the federal habeas courts’ inquiry into whether 20 1 21 22 23 24 25 26 27 28 In Greenholtz, the Court held that a formal hearing is not required with respect to a decision concerning granting or denying discretionary parole; it is sufficient to permit the inmate to have an opportunity to be heard and to be given a statement of reasons for the decision made. Id. at 16. The decision maker is not required to state the evidence relied upon in coming to the decision. Id. at 15-16. The Court reasoned that because there is no constitutional or inherent right of a convicted person to be released conditionally before expiration of a valid sentence, the liberty interest in discretionary parole is only conditional and thus differs from the liberty interest of a parolee. Id. at 9. Further, the discretionary decision to release one on parole does not involve restrospective factual determinations, as in disciplinary proceedings in prison; instead, it is generally more discretionary and predictive, and thus procedures designed to elicit specific facts are unnecessary. Id. at 13. In Greenholtz, the Court held that due process was satisfied where the inmate received a statement of reasons for the decision and had an effective opportunity to insure that the records being considered were his records, and to present any special considerations demonstrating why he was an appropriate candidate for parole. Id. at 15. 5 1 [the petitioners] received due process. 2 Swarthout, 131 S.Ct. at 862. 3 noted that California’s “some evidence” rule is not a substantive 4 federal requirement, and correct application of California’s 5 “some evidence” standard is not required by the Federal Due 6 Process Clause. 7 The Court in Swarthout expressly Id. at 862-63. Here, Petitioner challenges the application of California’s 8 “some evidence” standard in his first claim. 9 complains of the board’s weighing of various items of evidence Petitioner 10 concerning Petitioner’s parole suitability, and he asserts that 11 the board improperly relied upon his commitment offense. 12 Petitioner also argues that the board erroneously applied 13 applicable state law concerning parole suitability. 14 Petitioner’s contentions concerning his due process claim 15 boil down to arguments that the board improperly applied the 16 “some evidence” standard or that there was an absence of some 17 evidence to support the finding that Petitioner was not suitable. 18 In this respect, Petitioner asks this Court to engage in the very 19 type of analysis foreclosed by Swarthout. 20 state facts that point to a real possibility of constitutional 21 error or that otherwise would entitle Petitioner to habeas relief 22 because California’s “some evidence” requirement is not a 23 substantive federal requirement. 24 evidence” to support the denial of parole is not within the scope 25 of this Court’s habeas review under 28 U.S.C. § 2254. 26 Petitioner does not Review of the record for “some Petitioner cites state law concerning procedures and factors 27 of parole suitability and the appropriate weight to be given to 28 evidence. To the extent that Petitioner’s claim or claims rest 6 1 on state law, they are not cognizable on federal habeas corpus. 2 Federal habeas relief is not available to retry a state issue 3 that does not rise to the level of a federal constitutional 4 violation. 5 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). 6 errors in the application of state law are not cognizable in 7 federal habeas corpus. 8 Cir. 2002). Wilson v. Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 Alleged Souch v. Schiavo, 289 F.3d 616, 623 (9th 9 A petition for habeas corpus should not be dismissed without 10 leave to amend unless it appears that no tenable claim for relief 11 can be pleaded were such leave granted. 12 F.2d 13, 14 (9th Cir. 1971). 13 Jarvis v. Nelson, 440 Here, it is clear from the allegations in the petition that 14 Petitioner attended the parole suitability hearing, made 15 statements to the BPH, and received a statement of reasons for 16 the decisions of the BPH. 17 establish that Petitioner had an opportunity to be heard and 18 received a statement of reasons for the decisions in question. 19 It therefore does not appear that Petitioner could state a 20 tenable due process claim. 21 Thus, the undisputed facts of record Accordingly, it will be recommended that with respect to 22 Petitioner’s first claim that the unsuitability finding violated 23 his right under the Fourteenth Amendment to due process of law, 24 the petition be dismissed without leave to amend. 25 IV. 26 Petitioner argues that his rights under the First and First Amendment 27 Fourteenth Amendments were violated by the board’s coercive 28 requirement that he participate in religious-based, self-help 7 1 programs to qualify for parole release, and by the board’s having 2 punished him by finding him unsuitable for parole because he 3 failed to attend NA or AA. 4 5 A. (Pet. 17-19.) Background At the hearing, Petitioner explained that it was God and not 6 Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) that had 7 helped him stay out of trouble in prison. 8 Presiding Commissioner Davis questioned Petitioner concerning his 9 compliance with the recommendation of the BPH made at a preceding (Ans., doc. 13-2, 4.) 10 parole hearing that Petitioner avail himself of self-help 11 programs. 12 institution had AA and NA but did not have the type of self-help 13 he needed; further, it was illegal to force an inmate to 14 participate in AA or NA. 15 attorney present then noted that at the previous hearing the 16 board had recommended that Petitioner read some books and write 17 up some book reports, and the prosecutor asked if Petitioner had 18 done that. 19 reports were not mandated by the board’s rules, which were not 20 otherwise identified by Petitioner. 21 (Id. at 18.) (Id. at 19.) Petitioner responded that the (Id. at 18-19.) A deputy district Petitioner responded that the book (Id.) In explaining why it found Petitioner unsuitable for release 22 on parole, the board mentioned that Petitioner had not 23 “sufficiently participated in beneficial self-help.” 24 13-2, 27.) 25 years, the following was stated in pertinent part by Presiding 26 Commissioner Davis with respect to Petitioner’s self-help 27 programming: 28 (Ans., doc. In explaining why parole would be denied for two You have not sufficiently participated in beneficial 8 1 2 3 4 5 self-help. .... [It is recommended] [a]s available, that you participate in self-help, and certainly independent reading is an option for you. Read self-help books that applies (sic) to you and your situation. Prepare a short report, two or three paragraphs, indicating an understanding of what you read and how it applies to you, and the Panel will certainly look at that as part of your programming. 6 (Doc. 13-2, 30-31.) 7 On February 20, 2009, the Los Angeles Superior Court denied 8 petitioner’s petition for writ of habeas corpus, concluding that 9 the board’s reliance on the commitment offense and Petitioner’s 10 violent criminal history was supported by some evidence, and that 11 the board’s reliance on Petitioner’s failure to participate in 12 any self-help programs, including any substance abuse programs, 13 was proper and based on relevant concerns. (Ans., Ex. 2, doc. 14 13-3, 3-4.) The California Court of Appeal, Second Appellate 15 District and the California Supreme Court denied petitions for 16 habeas corpus summarily on April 28, 2009, and December 2, 2009, 17 respectively. (Ans., Exs. 4, 6, docs. 3-6 and 3-9.) 18 B. Legal Standards 19 1. Habeas Corpus Review 20 Title 28 U.S.C. § 2254 provides: 21 22 23 24 25 26 (d) 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 27 28 (2) resulted in a decision that was based on an unreasonable determination of the facts in light 9 1 of the evidence presented in the State court proceeding. 2 3 4 5 (e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption or correctness by clear and convincing evidence. 6 The petitioner bears the burden of establishing that the 7 decision of the state court was contrary to, or involved an 8 unreasonable application of, the precedents of the United States 9 Supreme Court. Lambert v. Blodgett, 393 F.3d 943, 970 n.16 (9th 10 Cir. 2004); Baylor v.Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996). 11 A state court’s decision contravenes clearly established 12 Supreme Court precedent if it reaches a legal conclusion opposite 13 to the Supreme Court's or concludes differently on an 14 indistinguishable set of facts. Williams v. Taylor, 529 U.S. 15 362, 405-06 (2000). The state court need not have cited Supreme 16 Court precedent or have been aware of it, "so long as neither the 17 reasoning nor the result of the state-court decision contradicts 18 [it]." Early v. Packer, 537 U.S. 3, 8 (2002). The state court 19 unreasonably applies clearly established federal law if it either 20 1) correctly identifies the governing rule but then applies it to 21 a new set of facts in a way that is objectively unreasonable, or 22 2) extends or fails to extend a clearly established legal 23 principle to a new context in a way that is objectively 24 unreasonable. Hernandez v. Small, 282 F.3d 1132, 1142 (9th 25 Cir.2002); see, Williams, 529 U.S. at 408-09. An application of 26 law is unreasonable if it is objectively unreasonable; an 27 incorrect or inaccurate application of federal law is not 28 10 1 2 necessarily unreasonable. Williams, 529 U.S. at 410. Respondent correctly assumes that there is clearly 3 established precedent from the United States Supreme Court 4 governing Petitioner’s claim as is required by 28 U.S.C. 5 § 2254(d)(1) in order for Petitioner to be entitled to relief. 6 Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir. 2007) (holding that 7 a state official’s requiring attendance as a condition of parole 8 in drug treatment programs (AA and NA) rooted in a regard for a 9 higher power was not protected by qualified immunity because the 10 law was clearly established based on consistent articulation of 11 the principle that the government may not coerce anyone to 12 support or participate in religion or its exercise, or punish 13 anyone for not so participating, and citing Everson v. Board of 14 Education of Ewing Township, 330 U.S. 1 (1947) and Lee v. 15 Weisman, 505 U.S. 577, 587 (1992)). 16 noted that the basic test for Establishment Clause violations 17 remains that stated in Lemon v. Kurtzman, 403 U.S. 602, 613 18 (1971), namely, that the government acts 1) have a secular 19 legislative purpose, 2) not have a principal or primary effect 20 which either advances or inhibits religion, and 3) not foster an 21 excessive government entanglement with religion. 22 The court concluded that recommending revocation of parole for a 23 parolee’s failure to attend the programs after an order to 24 participate was given was unconstitutionally coercive. 25 713-14. 26 only on lower court decisions but also in part on the decisions 27 of the United States Supreme Court and the absence of any Supreme 28 Court case upholding government-mandated participation in The court in Inouye further Id. at 713 n.7. Id. at In finding the law clear, the court in Inouye relied not 11 1 2 religious activity in any context. Id. at 715. Further, in Turner v. Hickman, 342 F.Supp.2d 887 (E.D.Cal. 3 2004), a Christian inmate alleged that parole authorities 4 expressly conditioned the plaintiff’s eligibility for release on 5 parole in part upon participation in NA. 6 concluded that by repeated application of the “coercion” test set 7 forth in Lee v. Weisman, 505 U.S. 577, 587 (1992), the Supreme 8 Court had made the law clear. 9 expressly telling the plaintiff he needed to participate in NA in Id. at 890. This Court Turner, 342 F.Supp.2d at 894. By 10 order to be eligible for parole, the state had acted coercively 11 to require participation in a program in which the evidence 12 showed that belief in “God” was a fundamental requirement of 13 participation. 14 prohibited the requirement. 15 Id. at 895-96. Accordingly, the First Amendment Id. at 896-99. However, even if the Court proceeds on an understanding that 16 there is clearly established federal law as determined by the 17 Supreme Court of the United States that prohibits punishing an 18 inmate for failing to participate in AA or NA, or coercing an 19 inmate to participate in NA or AA religious activities, it 20 nevertheless does not appear that Petitioner is entitled to 21 relief. 22 Review of the transcript of the parole hearing supports a 23 conclusion that at the hearing, the board considered not 24 Petitioner’s failure to attend NA or AA, but rather Petitioner’s 25 failure to engage in an alternative regimen of reading pertinent 26 self-help books and reporting on them and their applicability to 27 Petitioner’s situation. 28 considered and accepted Petitioner’s assertion that it would be It appears that the board had previously 12 1 improper to punish Petitioner for failing to participate in 2 programs such as NA or AA, which involve reliance on a higher 3 power. 4 recommended that Petitioner engage in the specific, alternative 5 form of self-help of independently reading pertinent self-help 6 resources and reporting on them. 7 to do so because he perceived that it was not required in the 8 board’s own rules. 9 was not coerced into attending such programs, and he was not Further, the record shows that the board had previously However, Petitioner had failed Thus, the record establishes that Petitioner 10 punished for failure to attend such programs. 11 board had recommended an alternate form of programming, 12 Petitioner declined to participate because he felt is was not 13 “required.” 14 faith-based program nor punished Petitioner for not having 15 attended such a program, Petitioner has not established that he 16 suffered any improper coercion, punishment, or other violation of 17 his First and Fourteenth Amendment rights. Instead, when the Because the board neither required attendance at any 18 In light of these facts, and considering Petitioner’s 19 failure to engage in any self-help programming despite a lengthy 20 history of criminal behavior and abuse of drugs and alcohol, a 21 state court determination that Petitioner had not shown that he 22 had suffered a violation of the Establishment Clause would not 23 have constituted a decision that was contrary to, or involved an 24 unreasonable application of, clearly established federal law, as 25 determined by the Supreme Court of the United States. 26 such a decision would not have been based on an unreasonable 27 determination of the facts in light of the evidence presented in 28 the State court proceeding. 13 Further, 1 Therefore, the Court concludes that Petitioner did not show 2 entitlement to relief with respect to his claim of a violation of 3 the Establishment Clause. 4 5 Accordingly, it will be recommended that Petitioner’s second claim concerning the Establishment Clause be denied. 6 V. 7 Unless a circuit justice or judge issues a certificate of Certificate of Appealability 8 appealability, an appeal may not be taken to the Court of Appeals 9 from the final order in a habeas proceeding in which the 10 detention complained of arises out of process issued by a state 11 court. 12 U.S. 322, 336 (2003). 13 only if the applicant makes a substantial showing of the denial 14 of a constitutional right. 15 petitioner must show that reasonable jurists could debate whether 16 the petition should have been resolved in a different manner or 17 that the issues presented were adequate to deserve encouragement 18 to proceed further. 19 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). 20 certificate should issue if the Petitioner shows that jurists of 21 reason would find it debatable whether the petition states a 22 valid claim of the denial of a constitutional right and that 23 jurists of reason would find it debatable whether the district 24 court was correct in any procedural ruling. 25 529 U.S. 473, 483-84 (2000). 26 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 A certificate of appealability may issue § 2253(c)(2). Under this standard, a Miller-El v. Cockrell, 537 U.S. at 336 A Slack v. McDaniel, In determining this issue, a court conducts an overview of 27 the claims in the habeas petition, generally assesses their 28 merits, and determines whether the resolution was debatable among 14 1 jurists of reason or wrong. 2 applicant to show more than an absence of frivolity or the 3 existence of mere good faith; however, it is not necessary for an 4 applicant to show that the appeal will succeed. 5 Cockrell, 537 U.S. at 338. Id. It is necessary for an Miller-El v. 6 A district court must issue or deny a certificate of 7 appealability when it enters a final order adverse to the 8 applicant. 9 Rule 11(a) of the Rules Governing Section 2254 Cases. Here, it does not appear that reasonable jurists could 10 debate whether the petition should have been resolved in a 11 different manner. 12 of the denial of a constitutional right. 13 14 Petitioner has not made a substantial showing Therefore, it will be recommended that the Court decline to issue a certificate of appealability. 15 VI. 16 Accordingly, it is RECOMMENDED that: 17 1) Recommendations Petitioner’s first claim concerning a denial of due 18 process caused by the absence of some evidence to support a 19 finding of unsuitability for parole be DISMISSED without leave to 20 amend for failure to state a claim entitling Petitioner to relief 21 pursuant to 28 U.S.C. § 2254; and 22 23 24 25 2) Petitioner’s second claim concerning a denial of Petitioner’s First and Fourteenth Amendment rights be DENIED; and 3) The Court DECLINE to issue a certificate of appealability; and 26 4) 27 These findings and recommendations are submitted to the 28 United States District Court Judge assigned to the case, pursuant Judgment be ENTERED for the Respondent. 15 1 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 2 the Local Rules of Practice for the United States District Court, 3 Eastern District of California. 4 being served with a copy, any party may file written objections 5 with the Court and serve a copy on all parties. 6 should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendations.” 8 and filed within fourteen (14) days (plus three (3) days if 9 served by mail) after service of the objections. Within thirty (30) days after Such a document Replies to the objections shall be served The Court will 10 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 11 636 (b)(1)(C). 12 objections within the specified time may waive the right to 13 appeal the District Court’s order. 14 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 15 16 IT IS SO ORDERED. 17 Dated: icido3 May 9, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 16