(HC) Field v. Sisto, No. 2:2006cv02562 - Document 20 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS, recommending that the 18 Stay be lifted and the 1 Petition be denied, signed by Magistrate Judge James P. Hutton on 10/7/2010. Any party may object to proposed F/Rs within 14 days following servie with a copy thereof. (Marciel, M)
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(HC) Field v. Sisto Doc. 20 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 MARSHALL LEE FIELD Jr., 5 6 Plaintiff, v. 7 8 9 D.K. SISTO, ) ) ) ) ) ) ) ) ) ) ) NO. CV-06-2562-RHW JPH REPORT AND RECOMMENDATION TO TERMINATE STAY AND TO DENY HABEAS CORPUS PETITION Defendant. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 THIS MATTER comes before the Court on Petition For Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Ct. Rec. 1). Petitioner, Marshall Field, is proceeding pro se. Respondent is represented by Kasey Jones, a Deputy Attorney General for the State of California. BACKGROUND Field is a state prisoner currently in the California Department of Corrections and Rehabilitation, incarcerated at the California Men’s Colony in San Luis Obispo, CA. After entering a guilty plea Field was found guilty of second degree murder and sentenced on February 20, 1980 in Santa Clara County Superior Court to fifteen years to life plus a three year enhancement. (Ex. 1, Abstract of Judgment) Field does not challenge his conviction and sentence in these proceedings. On August 23, 2004, Field attended a parole consideration hearing. The Board of Prison Terms (“BPT”) denied him parole. Field timely filed a petition for habeas corpus relief in the 28 REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 1 Dockets.Justia.com 1 Santa Clara County Superior Court. The Superior Court denied 2 Field’s petition, finding that the record before the Board fully 3 supported their findings and conclusions. The court cited In re 4 Dannenburg, 34 Cal. 4th 1061 (2005), and In re DeLuna, 126 Cal. 5 App. 4th 585 (2005) in support of its decision. (Ex. 3, Santa 6 Clara Superior Ct. Order dated March 28,2005.) 7 After receiving the Superior Court’s denial, Field filed a 8 petition in the California First District Court of Appeal. It was 9 summarily denied. (Ex. 4, First Appellate District Order dated 10 July 12, 2005.) 11 Field then filed a petition in the California Supreme Court. 12 The Court denied the petition citing In re Rosenkrantz, 29 Cal. 13 4th 616 (2002) and In re Dannenburg, 34 Cal. 4th 1061(2005). (Ex. 14 5, Supreme Ct. Den. of Habeas Corpus Pet. dated June 21, 2006.) 15 Field timely filed this petition on September 15, 2006. This 16 matter was stayed by the Court pending the issuance of the mandate 17 by the en banc panel of U.S. Court of Appeals for the Ninth 18 Circuit in Hayward v. Marshall, 603 F.3d. 546 (9th Cir. 2010) Ct. 19 Rec. 14. The Court of Appeals has rendered its decision in 20 Hayward. The Court now terminates its stay and decides the case. 21 The transcript of the record made before the Board reflects 22 that the facts underlying the commitment offense and admitted by 23 Petitioner are: On November 15, 1979, Field confronted his 24 girlfriend, Sarah Preditt, when she went with a friend to pick up 25 her final paycheck. 26 “[Preditt] was confronted by Field who engaged in a brief conversation with the victim. Field stated that he was going to 27 kill himself. The victim got into the car to leave when Field 28 asked her to remove the key from the ignition, which she did. REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 2 1 Field then removed a 30 aught six caliber rifle from his vehicle and at gunpoint motioned for the victim to get out of the car. The 2 victim ran into the middle of the parking lot and attempted to 3 wave down a passing car. However, the car continued on as Field motioned with his rifle for the vehicle to keep moving. The victim 4 did approach Field and stated, if you’re going to shoot me go ahead. Field then shot the victim in the chest. He shot her again 5 in the chest and she fell to the ground. Field then got into his 6 vehicle and left the scene. 7 “...“That’s pretty much the Statement of Facts. Did you 8 commit this crime, sir?” 9 Inmate Field: “Yes, sir.” ISSUES RAISED/ DEFENSES 10 11 Hearing Transcript p. 12-13 Field challenges the Board’s determination that he was 12 unsuitable for parole. Field alleges four grounds in support of 13 the Petition: 14 1. The implementation of a uniform determinate sentencing law 15 limits the Board’s discretion and creates a liberty interest and 16 expectation of a parole release date being granted as protected by 17 due process under the state constitution and the 14th Amendment. 18 2. Petitioner was prejudiced at the 2004 Board hearing by a 19 pattern and practice developed over the past 30 years of pro forma 20 board hearings resulting in a deprivation of state and federal due 21 process and equal protection of law. 22 3. That the State breached its contract with the Petitioner 23 formed when Petitioner pled guilty in a negotiated plea agreement. 24 4. That the cumulative effect of the State’s failure to abide 25 by the terms of the plea agreement and the State’s reliance on the 26 commitment offense to prove a current risk to public safety leads 27 to objectively unreasonable results in a manner that deprives 28 petitioner of due process of law. REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 3 1 Respondent admits that Field’s Petition is timely and that he 2 has exhausted his state judicial remedies as to the Board’s 2004 3 denial of parole. Respondent denies that Field has exhausted any 4 claims more broadly interpreted to challenge California’s parole 5 scheme. Respondent denies that Field is entitled to federal habeas 6 relief under 28 U.S.C. s 2254 because the state court decision is 7 neither contrary to, nor an unreasonable application of, clearly 8 established federal law as determined by the U.S. Supreme Court. 9 10 STANDARD OF REVIEW Under the Antiterrorism and Effective Death Penalty Act of 11 1996 (“AEDPA”), 28 U.S.C.§ 2254(d), this court cannot grant relief 12 unless the decision of the state court was “contrary to, or 13 involved an unreasonable application of, clearly established 14 Federal law, as determined by the Supreme Court of the United 15 States” at the time the state court renders its decision or “was 16 based on an unreasonable determination of the facts in light of 17 the evidence presented in the State court proceeding.”1 The 18 Supreme Court has explained that “clearly established Federal law” 19 in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, 20 of [the Supreme Court] as of the time of the relevant state-court 21 decision.”2 The holding must also be intended to be binding upon 22 the states; that is, the decision must be based upon 23 constitutional grounds, not on the supervisory power of the 24 25 26 1 27 28 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 404-06 (2000); see also Lockyer v.Andrade, 538 U.S. 63, 70-75 (2003) (explaining this standard). 2 Williams, 529 U.S. at 412. REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 4 1 Supreme Court over federal courts.3 Thus, where holdings of the 2 Supreme Court regarding the issue presented on habeas review are 3 lacking, “it cannot be said that the state court ‘unreasonabl[y] 4 appli[ed] clearly established Federal law.’”4 When a claim falls 5 under the “unreasonable application” prong, a state court’s 6 application of Supreme Court precedent must be objectively 7 unreasonable, not just incorrect or erroneous.5 The Supreme Court 8 has made clear that the objectively unreasonable standard is a 9 substantially higher threshold than simply believing that the 10 state court determination was incorrect.6 “[A]bsent a specific 11 constitutional violation, federal habeas corpus review of trial 12 error is limited to whether the error ‘so infected the trial with 13 unfairness as to make the resulting conviction a denial of due 14 process.’”7 In a federal habeas proceeding, the standard under 15 which this court must assess the prejudicial impact of 16 constitutional error in a state court criminal proceeding is 17 whether the error had a substantial and injurious effect or 18 19 20 3 21 4 22 23 24 Early v. Packer, 537 U.S. 3, 10 (2002). Carey v. Musladin, 549 U.S. 70, 77 (2006) (alterations by the Court); see Wright v. Van Patten,552 U.S. 120, 127 (2008) (per curiam); Kessee v. Mendoza-Powers, 574 F.3d 675, 678-79 (9th Cir.2009); Moses v. Payne, 555 F.3d 742, 753-54 (9th Cir. 2009) (explaining the difference between principles enunciated by the Supreme Court that are directly applicable to the case and principles that must be modified in order to be applied to the case; the former are clearly established precedent for purposes of § 2254(d)(1), the latter are not) 25 5 26 Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (internal quotation marks and citations omitted). 27 6 28 7 Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,643 (1974)). REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 5 1 influence in determining the outcome.8 Because state court 2 judgments of conviction and sentence carry a presumption of 3 finality and legality, Field has the burden of showing by a 4 preponderance of the evidence that he merits habeas relief.9 In 5 applying this standard, this court reviews the last reasoned 6 decision by the state court.10 Under AEDPA, the state court’s 7 findings of fact are presumed to be correct unless the petitioner 8 rebuts this presumption by clear and convincing evidence.11 This 9 presumption applies to state trial courts and appellate courts 10 alike.12 DISCUSSION 11 12 At bottom, Field’s argument centers around his contention 13 that the BPT solely relied on the commitment offense and pre14 commitment crimes and ignored other factors that would auger in 15 favor of setting a parole date. 16 Secondly, he argues that the BPT had an unlawful bias and 17 invoked an “underground policy” of the State of California to deny 18 setting parole release dates. His third argument is that the BPT 19 20 21 22 23 24 8 Fry v. Pliler, 551 U.S. 112, 121 (2007) (adopting the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)). 9 Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002); see Wood v. Bartholomew, 516 U.S. 1, 8(1995) (per curiam) (stating that a federal court cannot grant “habeas relief on the basis of little more than speculation with slight support”). 25 10 26 27 28 Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991); Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). 11 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 12 Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004). REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 6 1 ignored the “true facts” of the crime to which he pled guilty and 2 inferred a pre-meditated, execution style overtone to the killing. 3 In this case, the BPT found Field unsuitable for parole and a 4 subsequent parole consideration hearing was delayed for four 5 years. Hearing transcript at 77. 6 1. Commitment Offense and Other Factors 7 The Board found Field’s actions with regard to the offense to 8 be carried out in an especially cruel and callous manner, showing 9 no regard for the life of another human being. (Id. at 69-70.) It 10 also noted that the motive for the crime was inexplicable and very 11 trivial in relationship to the crime. (Id. at 70.) The Board also 12 noted that Field had an escalating pattern of criminal violence. 13 (Id.) He failed prior grants of parole and probation and failed to 14 profit from society’s attempt to correct his criminality. (Id. at 15 71.) The Board also found that Field had a history of unstable and 16 tumultuous relationships with others, specifically women. (Id.) 17 Before the crime at issue, Field took a loaded gun onto school 18 grounds and attempted to shoot an ex-girlfriend, but the weapon he 19 was using misfired. (Id. at 70.) 20 Based on these facts, the Board indicated that it was 21 concerned that Field would be unable to avoid criminality. (Id. at 22 71.) Field’s prison record was also considered. The Board found no 23 positive change in Field since his last appearance before the 24 Board. (Id.) It noted that Field received six serious prison 25 disciplinaries since his previous parole hearing; four for 26 delaying a peace officer in the performance of his duties, one for 27 refusing a direct order, and one for attempting to manipulate 28 staff. REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 7 1 Based on these actions, the Board found that Field did not 2 demonstrate that he wanted to change his conduct and become a good 3 citizen. (Id. at 72.) Field argues that the BPT ignored the 4 positive changes he had made, but the Board’s discussion of his 5 record belies that. The Board considered the psychological report 6 Field relied on and found it wanting because it did not address 7 whether he would be a danger to the community at large 8 notwithstanding it found he was a low risk to re-offend within the 9 prison population. The BPT acknowledged Field had family support, 10 a place to stay if released and help in finding a job. Id at 73. 11 The Board also noted opposition to release by the Deputy District 12 Attorney from Santa Clara County based primarily on the victim’s 13 family having concern or fear of the petitioner’s release from 14 custody. Thus, the record is clear that the BPT considered more 15 than the commitment offense and any prior behavior in determining 16 not to set a parole date. 17 The factors that the BPT may consider are set forth in Title 18 15, section 2402 of the California Code of Regulations. Among the 19 factors which may demonstrate unsuitability for release are “ 20 ...(3) a history of unstable or tumultuous relationships with 21 others...and (6) [t]he prisoner has engaged in serious misconduct 22 in prison or jail.” 23 A state prisoner’s right to release on parole or to release 24 in the absence of some evidence of future dangerousness arises 25 from substantive state law creating a right to release and not 26 from any federal constitutional right. Hayward v. Marshall, 603 27 F.3d 546, 555 (9th Cir. 2010). The California Supreme Court has 28 established that “some evidence” of future dangerousness is an REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 8 1 essential condition for parole denial. In re: Lawrence, 44 Cal. 2 4th 1181, 1205, 82 Cal. Rptr. 169, 185 (2008). Federal courts 3 reviewing a due process challenge to the denial of parole in 4 California decide whether parole rejection was an unreasonable 5 application of California’s “some evidence” of dangerousness 6 requirement or based on an unreasonable determination of the facts 7 in light of the evidence. Hayward at 563. 8 In In re: Shaputis,44 Cal.4th 1241 (2008),the California 9 Supreme Court held: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “[T]he precise manner in which the specified factors relevant to parole suitability are considered and balanced lies within the discretion of the [Board]......It is irrelevant that a court might determine that evidence in the record tending to establish suitability for parole far outweighs evidence demonstrating unsuitability for parole. As long as the [Board’s] decision reflects due consideration of the specified factors as applied to the individual prisoner in accordance with applicable legal standards, the court’s review is limited to ascertaining whether there is some evidence in the record that supports the [Board’s] decision. This court does not re-weigh the evidence or substitute its discretion for that of the Board. Under California law, judicial review of a decision denying parole is “extremely deferential.” In re: Rosenkrantz, 59 P. 3d 174, 222 (Cal. 2002) It is through this doubly deferential lens that this court reviews the decision of the Santa Clara County Superior Court. Based upon the record before it, applying Rosenkrantz, Dannenberg, Lawrence, and Shaputis, this court cannot say that the decision of the Santa Clara County Superior Court affirming denial of parole, finding multiple unsuitable factors in addition to the underlying commitment offense, was contrary to, or involved an REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 9 1 unreasonable application of California law or was based on an 2 unreasonable determination of the facts in light of the evidence. 3 2. Sub rosa “policy” to deny parole. 4 First, Field asserts that an evidentiary hearing is necessary 5 to determine if such a policy exists. An evidentiary hearing is 6 not necessary if the claims can be resolved on the existing state 7 record. Baja v. Ducharme, 187 F.3d 1075, 1078 (9th Cir. 1999). A 8 district court may still deny a petitioner an evidentiary hearing 9 if he has failed to avail himself of the opportunity to develop 10 the factual basis of a claim during his state court proceedings. 11 See 28 U.S.C. s. 2245(e)(2); Bragg v. Galaza, 242 F.3d 1082, 1090 12 n.5 (9th Cir. 2001). 13 Field cites Martin v. Marshall, 431 F.Supp.2d 1038 (N.D. 14 Cal.,2006), for the proposition that the State BPT and Governors 15 Wilson and Davis adopted a “no parole” policy for murderers and 16 that such policy is per se invalid, because the petitioner in that 17 case was denied his constitutional right to be heard by an 18 impartial decision maker. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 19 1456, 43 L.Ed. 712 (1975). 20 Respondent denies that Field has exhausted any claims more 21 broadly interpreted to challenge California’s parole scheme. Ct. 22 Rec. 6 at p. 3. Respondent does not address this argument in its 23 answer to the petition. Ct. Rec. 6. The Santa Clara County 24 Superior Court did note there that Field’s principal claim is that 25 there has been a violation of his plea agreement. Ct. Rec. 1, Ex. 26 H. 27 Although presumptively unexhausted, the Court may nonetheless 28 deny a claim when, as alleged, it is clear no colorable federal REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 10 1 claim is presented. Cassett v. Stewart, 406 F. 3d 614, 624 (9th 2 Cir. 2005).) 3 Field supports this argument with Ct.Rec. 1,Exs. Q, R and S. 4 These documents consist of a declaration of a former member and 5 chair of the BPT, a report of Law and Criminal Justice Committee 6 (2000-2001) discussing said policy and a copy of the California 7 Lifer Newsletter. 8 The Court does not need to reach the issue of exhaustion here 9 and assumes Field did raise at least a colorable federal claim in 10 the state habeas case. Significantly, Field does not produce any 11 evidence that the BPT relied on this “sub rosa” policy in denying 12 him a release date at the August, 2004 hearing. 13 Also significantly, the facts relied upon by the BPT here are 14 remarkably dissimilar from those in Martin. In Martin, the 15 petitioner had no prison write-ups for at least eight (8) years 16 before his release date was established. Here, Field had six 17 serious prison disciplinaries within a year of his parole hearing. 18 Additionally, the petitioner in Martin had literally no criminal 19 history in addition to the commitment offense. Field had a similar 20 offense in which the same tragic result would have obtained except 21 the firearm misfired. 22 The Court is cognizant of the decision in Hayward which holds 23 that this Court “need only decide whether the California judicial 24 decision approving [a] decision rejecting parole was an 25 “unreasonable application” of the California “some evidence” 26 requirement...” Hayward, at 562-63(citing 28 U.S.C. s. 2254(d)(2). 27 Respondent disagrees that this is the standard and that this 28 Court’s inquiry is controlled by Greenholtz v. Inmates of Neb. REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 11 1 Penal & Correctional Complex, 442 U.S. 1,(1979)-the only Supreme 2 Court jurisprudence directly addressing the process due in the 3 parole context. But even if the Court reviews the reasonableness 4 of the state court decision, Field is not entitled to relief. 5 Field presented all of his claims to the state courts. The Santa 6 Clara Superior Court found “some evidence” in support of the BPT’s 7 decision. 8 3. Breach of Plea Agreement and Due Process 9 The Court will consider the third and fourth grounds of the 10 petition together. 11 Field argues that the BPT inferred facts not in evidence to 12 “aggravate” his commitment crime to first-degree homicide. He 13 argues that the BPT’s statement, “And we know that you were 14 convicted of second degree murder, but certainly this crime had 15 the overtones of an execution style murder...” must have breached 16 the plea agreement requiring a plea only to second degree murder. 17 That a plea agreement is a contract that must be honored by 18 the state is well settled. Santobello v. New York, 404 U.S. 257, 19 262–63 (1971). The proper interpretation and effect of the 20 agreement between the State of California and Field in this case 21 is a matter governed by California contract law. What Field 22 received in exchange for his guilty plea was a sentence of 15 23 years to life, with a possibility of parole at some point after he 24 had served his minimum term. Field does not allege that there was 25 any promise, actual or implied, of when or under what terms or 26 conditions he might be given parole, or, for that matter, that he 27 would be granted parole at all at any time. He simply argues that 28 the passage of 25 years establishes a breach. REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 12 1 Nor does Field argue that any such agreement, if one did 2 exist, which is doubtful,13 would be enforceable under California 3 law. Under California law, the Board “may credit evidence 4 suggesting the inmate committed a greater degree of the offense 5 than his or her conviction evidences.”14 To the extent that Field 6 may be relying on Apprendi and its progeny,15 suffice it to say 7 that the Supreme Court has never held that the principle in 8 Apprendi applies in the parole context. “[A]bsent a specific 9 constitutional violation, federal habeas corpus review of [state 10 proceedings] is limited to whether the error ‘so infected the 11 trial with unfairness as to make the resulting conviction a denial 12 of due process.’”16 “‘Federal courts hold no supervisory authority 13 over state judicial proceedings and may intervene only to correct 14 wrongs of constitutional dimension.’”17 15 Having failed to raise an issue of constitutional dimension, 16 Field is not entitled to relief on this ground. 17 18 19 20 21 13 In re Lowe, 31 Cal. Rptr.3d 1, 13 (Cal. App. 2005) (holding that when a defendant enters a guilty plea, he has no reasonable expectation regarding the identity of the person or persons who would exercise discretion in evaluating his suitability for parole, or that the person or persons would not change over time, citing Rosenkrantz, 59 P.3d at 193). 22 14 23 24 In re Dannenberg, 104 P.3d 783, 803 (Cal. 2005) (citing In re Rosenkrantz, 59 P.3d 174, 219(Cal. 2002)). 15 Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004). 25 16 26 27 28 Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (quoting Donnelly v. DeChristoforo, 416 U.S. 637,643 (1974)). 17 Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006) (quoting Smith v. Philips, 455 U.S. 209, 221 (1982)); see Wainwright v. Goode, 464 U.S. 78, 86 (1983) (per curiam). REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 13 1 IT IS RECOMMENDED, for the reasons stated, that the Stay 2 should be LIFTED and the Petition should be DENIED. 3 IT IS FURTHER RECOMMENDED that the District Court decline to 4 issue a Certificate of Appealability.18 Any further request for a 5 COA must be addressed to the Court of Appeals.19 6 7 OBJECTIONS Any party may object to the magistrate judge’s proposed 8 findings, recommendations or report within fourteen (14) days 9 following service with a copy thereof. Such party shall file with 10 the Clerk of the Court all written objections, specifically 11 identifying the portions to which objection is being made, and the 12 basis therefore. Attention is directed to Fed. R. Civ. P. 6(e), 13 which adds another three (3) days from the date of mailing if 14 service is by mail. A district judge will make a de novo 15 determination of those portions to which objection is made and may 16 accept, reject, or modify the magistrate judge’s determination. 17 The district judge need not conduct a new hearing or hear 18 arguments and may consider the magistrate judge’s record and make 19 an independent determination thereon. The district judge may also 20 receive further evidence or recommit the matter to the magistrate 21 judge with instructions. 22 23 24 25 26 27 28 18 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a COA should be granted where the applicant has made “a substantial showing of the denial of a constitutional right,” i.e., when “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.”) (internal quotation marks and citations omitted). 19 See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1. REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 14 1 See 28 U.S.C. § 636 (b) (1) (C) , Fed. R. Civ. P. 73, and LMR 2 4, Local Rules for the Eastern District of California. 3 A magistrate judge’s recommendation cannot be appealed to a 4 court of appeals; only the district judge’s order or judgment can 5 be appealed. 6 The District Court Executive SHALL FILE this report and 7 recommendation and serve copies of it on the referring judge and 8 the parties. 9 DATED this 7th day of October, 2010. 10 11 12 s/James P. Hutton JAMES P. HUTTON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPORT AND RECOMMENDATION TO DENY HABEAS CORPUS PETITION - 15