(HC) Jacquett v. Sisto, et al, No. 2:2006cv02938 - Document 32 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge James P. Hutton on 9/7/2010 RECOMMENDING that the Petition for Writ of Habeas Corpus be denied; FURTHER RECOMMENDED that the District Court decline to issue a Certificate of Appealability; any further request for a COA must be addressed to the Court of Appeals; Objections due 14 days after being served with these F & R's. Referred 1 to Judge Robert H. Whaley. (Reader, L)
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(HC) Jacquett v. Sisto, et al Doc. 32 1 2 3 4 5 6 IN THE 7 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 STEPHEN JACQUETT, Petitioner, 10 11 12 13 v. D. K. SISTO Respondent. 14 ) ) No. CV-06-2938 RHW JPH ) ) REPORT AND RECOMMENDATION TO ) DENY WRIT OF HABEAS CORPUS ) ) ) ) ) ) ) 15 16 BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for 17 Writ of Habeas Corpus by a person in state custody (Ct. Rec. 1), 18 Respondent’s Answer (Ct. Rec. 8), and Petitioner’s Traverse (Ct. 19 Rec. 9). Respondent is represented by Deputy Attorney General 20 Kasey E. Jones. Petitioner appears in propria persona. This matter 21 was heard without oral argument. 22 consideration of the pleadings submitted, it is recommended that 23 the Petition for Writ of Habeas Corpus be denied. 24 After careful review and At the time his petition was filed, Petitioner was in custody 25 of the California Department of Corrections and Rehabilitation, 26 pursuant to his 1974 San Diego County conviction for murder in the 27 first degree with an enhancement for use of a firearm. (Ct. Rec. 1 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 1 Dockets.Justia.com 1 at 1; Penal Code sections 187, 189, 12022.5). Petitioner, 2 represented by counsel, pleaded not guilty to the charge, but was 3 convicted to life imprisonment plus five years with eligibility 4 for parole after seven years on December 4, 1974. Id. Petitioner 5 challenges the Board of Prison Terms’s (now the Board of Parole 6 Hearings) decision to deny him parole at his 2004 parole 7 consideration hearing. 8 I. BACKGROUND 9 A. Factual History 10 On July 19, 2004, the Board of Prison Terms (“the Board”) 11 decided that Petitioner was not suitable for parole because he 12 posed a danger to public safety. During the parole consideration 13 hearing, Petitioner took responsibility for the crime described by 14 the Board’s Statement of Facts: 15 16 17 18 19 20 21 22 23 24 25 26 27 Presiding Commissioner Daly: ‘This was a crime that occurred on May 19th of 1974, at about 5:30 p.m., and the victim was Kenneth Riser. He was 21 years of age. He was sitting on the grass in Moutainview Park in San Diego with a group of friends. And he was approached by two black males, one of them being you, and they said something to the victim, and the friends did not understand. And then one of the defendants produced a pistol and commenced firing. Riser jumped to his feet and began running with two men in pursuit shooting as they ran, and the victim discarded his jacket. He then disappeared on the crest of the hill, and the gunman picked up the jacket and two men entered an automobile and sped away, and the victim collapsed nearby. And enroute to the hospital he said that he had been shot by Stephen Jacquett, and he died soon after reaching the hospital and was found to have three .32 caliber wounds in his back and his thigh, and the cause of death was hemorrhage due to a perforated aorta.’ And witnesses also identified you as the gunman. And when the officers searched your room, they found clothing that was similar to what had been described as being worn by the person who did the shooting. And it just indicates that you and the victim had known each other for several years. Is this a true kind of, a true reflection of what happened 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 2 - 1 5 that day? Inmate Jacquett: The circumstances, yes. The only disputed fact is he was shot in the back, because if you’ll read the legal documents from the District Attorney’s Office, they say he was shot three times in the chest and once in the thigh. Presiding Commissioner Daly: Okay. So do you take responsibility for this crime? Inmate Jacquett: Yes, Ma’am. 6 (Ct. Rec. 1 at 80-82.) 7 Petitioner claimed that the reason for shooting the victim 2 3 4 8 were previous threats the victim made against his family. (Ct. 9 Rec. 1 at 83.) However, there was also evidence that Petitioner 10 may have been motivated by two recent altercations with the 11 victim, which the victim had won. (Ct. Rec. 1 at 131.) Petitioner 12 also claimed that he entered the park intending to shoot the 13 victim, but did not consider that he would kill him. (Ct. Rec. 1 14 at 84.) 15 The Board found that Petitioner was not yet suitable for 16 parole because he would “pose an unreasonable risk of danger to 17 society or a threat to public safety if released from prison.” 18 (Ct. Rec. 1 at 130.) The Board based this finding on several 19 factors. First, in regard to the nature of the original crime, the 20 Board found that the offense was “carried out in a very callous 21 manner” and “in quite a calculated manner” because Petitioner 22 brought a firearm with him when he saw the victim and got out of 23 his car. (Ct. Rec. 1 at 130.) The Board also found that the 24 offense demonstrated “a total disregard for human suffering” 25 because Petitioner shot the victim multiple times, and continued 26 shooting though the victim was “running for his life.” (Ct. Rec. 1 27 at 130). Finally, the board found that the motive for the crime 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 3 - 1 was “very trivial in relation to the offense.” (Ct. Rec. 1 at 2 130.) 3 The Board also found that there were reasons to deny parole 4 that did not relate to the original offense. First, the Board 5 pointed to Petitioner’s record of assaultive behavior including 6 battery on a police officer and resisting arrest. (Ct. Rec. 1 at 7 132.) Petitioner had also been charged with marijuana possession, 8 burglary, loitering, possession of firearms on campus, and 9 possession of narcotics. (Ct. Rec. 1 at 132.) Second, the Board 10 found that Petitioner had an unstable social history. Petitioner 11 admits to using alcohol and marijuana and trying Benzedrine and 12 Seconal. (Ct. Rec. 1 at 132.) Third, the Board was concerned by 13 Petitioner’s institutional behavior. Petitioner had recently 14 (March 2004) had a 115 disciplinary report for disobeying a direct 15 order as well as three previous 115s in 1994-1995. (Ct. Rec. 1 at 16 132.) The Board referred to the psychological report created for 17 the parole hearing that indicated that Petitioner was “somewhat 18 hesitant to take full responsibility for his actions” in receiving 19 the 115s. (Ct. Rec. 1 at 132.) The Board was also concerned that 20 the report says that Petitioner has avoided Alcoholics Anonymous. 21 (Ct. Rec. 1 at 132, 136.) The report concluded that Petitioner 22 posed a moderate degree of threat at the time of the hearing. (Ct. 23 Rec. 1 at 134). 24 The Board did find some factors in Petitioner’s favor. 25 Petitioner’s parole plans were found to be valid and Petitioner 26 has family dedicated to his success if released. (Ct. Rec. 1 at 27 134.) The Board was also pleased with Petitioner’s progress toward 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 4 - 1 furthering his education, learning vocational skills, and his 2 involvement with prison programs such as being Chair of the Men’s 3 Advisory Council. (Ct. Rec. 1 at 134-135). However, the Board 4 concluded that the positive factors did not outweigh factors of 5 unsuitability. (Ct. Rec. 1 at 136.) 6 B. 7 Procedural History On January 3, 2005 Petitioner filed his first Petition for 8 Writ of Habeas Corpus with the Superior Court for the State of 9 California, which was denied February 25, 2005. (Ct. Rec. 2; Ct. 10 Rec. 8 Ex. 3.) The court acknowledged that the Board’s discretion 11 is very broad and that due process is satisfied “as long as there 12 is ‘some evidence’ to support the findings made at the hearing” 13 that Petitioner poses a danger to the public (Ct. Rec. 8 Ex. 3 at 14 3.) The court found that the Board’s finding regarding the 15 commitment offense were adequately supported by there being some 16 evidence in the record that the offense was carried out in a 17 callous and calculated manner, the offense was carried out in a 18 manner which demonstrates a total disregard for human suffering, 19 and the motive for the crime was very trivial in relation to the 20 offense. (Ct. Rec. 8 Ex. 3 at 4.) The court found these three 21 factors to justify the Board’s decision under California Penal 22 Code section 3041(b), which requires that a release date be set 23 unless the gravity of the commitment offense requires the prisoner 24 to stay incarcerated for public safety reasons. (Ct. Rec. 8 Ex. 3 25 at 4-5.) 26 Though the court states that parole could have been denied on 27 the basis of the commitment offense alone, it went on to state the 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 5 - 1 other reasons for the Board’s finding of current danger to the 2 public: Petitioner’s “assaultive behavior, his prior criminal 3 record, his prior unstable social history,” his “admission of drug 4 use,” his 115s, and his failure to take advantage of self-help 5 until recently. (Ct. Rec. 8 Ex. 3 at 5.) 6 Petitioner next appealed his petition to the California Court 7 of Appeal. (Ct. Rec. 8 Ex. 4.) The court denied the petition on 8 May 17, 2005 noting that there was “some evidence” to support the 9 Board’s decision to deny parole. (Ct. Rec. 8 Ex. 4 at 3.) 10 Petitioner appealed again to the Supreme Court of California. 11 (Ct. Rec. 2 at 51.) The court considered the petition en banc and 12 denied March 22, 2006 based on In re Miller (1941) 17 Cal.2d 13 734,735, In re Rosenkrantz (2002) 29 Cal. 4th 616, and In re 14 Dannenberg (2005) 34 Cal.4th 1061. 15 Petitioner filed this petition with the U.S. District Court 16 for the Eastern District of California on December 29, 2006. He 17 did not request an evidentiary hearing. 18 II. EXHAUSTION OF STATE REMEDIES 19 As a preliminary issue, Petitioner must have exhausted his 20 state remedies before seeking habeas review. 21 are not to grant a Writ of Habeas Corpus brought by a person in 22 state custody pursuant to a state court judgment unless “the 23 applicant has exhausted the remedies available in the courts of 24 the State.” Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 25 2008), citing 28 U.S.C. §2254(b)(1)(A). 26 requirement is ‘grounded in principles of comity’ as it gives 27 states ‘the first opportunity to address and correct alleged 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 6 - The federal courts “This exhaustion 1 violations of state prisoner’s federal rights.’” Id., citing 2 Coleman v. Thompson, 501 U.S. 722, 731 (1991). 3 In order to exhaust state remedies, a petitioner must have 4 raised the claim in state court as a federal claim, not merely as 5 a state law equivalent of that claim. 6 U.S. 364, 365-66 (1995). 7 alerted to and given the opportunity to correct specific alleged 8 violations of its prisoners’ federal rights. 9 1023, citing Picard v. Connor, 404 U.S. 270, 275 (1971). See Duncan v. Henry, 513 The state’s highest court must be Wooten, 540 F.3d at To 10 properly exhaust a federal claim, the petitioner is required to 11 have presented the claim to the state’s highest court based on the 12 same federal legal theory and the same factual basis as is 13 subsequently asserted in federal court. 14 2d 826, 829-30 (9th Cir. 1982), cert. denied, 461 U. S. 916 15 (1983). 16 Hudson v. Rushen, 686 F. Respondent may waive the exhaustion requirement. See 28 17 U.S.C. § 2254 (b)(3) (“A state shall not be deemed to have waived 18 the exhaustion requirement or be estopped from reliance on the 19 requirement unless the state, through counsel, expressly waives 20 the requirement.”) Respondent’s answer to the petition states 21 “Respondent admits that Petitioner has exhausted his state 22 judicial remedies as to the Board’s 2004 denial of parole,” but 23 denies that he has exhausted “any claims more broadly interpreted 24 to challenge California’s parole scheme.” (Ct. Rec. 8 at 4 p 12.) 25 This clearly constitutes an express waiver by counsel of the 26 exhaustion requirement of the petitioner’s claim regarding the 27 parole decision. See Dorsey v. Chapman, 262 F. 3d 1181, 1187 at 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 7 - 1 n. 8 (11th Cir. 2001). Generally, a habeas court may, in its 2 discretion reach the merits of a habeas claim or may insist on 3 exhaustion of state remedies despite a State’s waiver of the See Boyd v. Thompson, 147 F. 3d 1124, 1127 (9th Cir. 4 defense. 5 1998). The court’s discretion should be exercised to further the 6 interests of comity, federalism, and judicial efficiency. 7 See id. It appears to advance the interests of the parties and 8 judicial efficiency (without unduly offending the interests of 9 either comity or federalism) for the Court to decide petitioner’s 10 claim is exhausted and may, unless otherwise barred, be considered 11 on the merits. Respondent concedes that because Petitioner has 12 properly exhausted his state habeas claim, the court should 13 consider the claims but dismiss them on the merits. (Ct. Rec. 8 14 at 4.) 15 16 III. AEDPA STATUTE OF LIMITATIONS The current federal petition was filed December 29, 2006. 17 (Ct. Rec. 1 at 1.) Its disposition is therefore governed by the 18 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 19 effective April 24, 1996. According to 28 U.S.C. § 2244 (d)(1)(A) 20 A 1-year period of limitation applies for filing a Writ of Habeas 21 Corpus that runs from “the date on which the judgment became final 22 by the conclusion of direct review or the expiration of the time 23 for seeking such review” if no later date from (B)-(D) applies. 24 The Supreme Court of California denied Petitioner’s Writ of 25 Habeas Corpus on March 22, 2006 (Ct. Rec. 2 at 51.) Petitioner 26 filed this petition within a year of that denial on December 29, 27 2006. Respondent admits that Petitioner was timely in filing his 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 8 - 1 Writ. (Ct. Rec. 8 at 4 p 13.) 2 IV. MERITS 3 Under AEDPA, a federal court may grant habeas relief if a 4 state court adjudication resulted in a decision that was contrary 5 to, or involved an unreasonable application of clearly established 6 federal law, as determined by the Supreme Court of the United 7 States, or resulted in a decision that was based upon an 8 unreasonable determination of the facts in light of the evidence. 9 28 U.S.C. § 2254 (d). “AEDPA does not require a federal habeas 10 court to adopt any one methodology in deciding the only question 11 that matters under § 2254(d)(1) - whether a state court decision 12 is contrary to, or involved an unreasonable application of, 13 clearly established federal law.” 14 63, 71 (2003), referring to 15 237 (2000). 16 addresses” an issue or provides a “categorical answer” to the 17 question before the state court, § 2254(d)(1) bars relief. 18 v. Payne, 543 F. 3d 1090, 1098 (9th Cir. 2008), relying on Wright 19 v. Van Patten, 552 U.S. 120, 128 S. Ct. 743, 746 (2008); Carey v. 20 Musladin, 549 U.S. 70 (2006). 21 Lockyer v. Andrade, 538 U.S. Weeks v. Angelone, 528 U.S. 225 at Where no decision of the Supreme Court “squarely Moses In the time since this petition was filed, the Ninth Circuit 22 considered Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) en 23 banc to determine issues similar to those presented in this case. 24 First, the court stated that to the extent its prior decisions 25 could be interpreted to recognize a federal constitutional right 26 to parole independent of entitlements given by state law, they 27 were overruled. Id. at 555; see Biggs v. Terhune, 334 F.3d 910, 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 9 - 1 Sass v. California Board of Prison Terms, 461 F.3d 1123, and Irons 2 v. Carey, 505 F.3d 846. Because there is no federally created 3 right to parole, there is also no federal or constitutional “some 4 evidence” requirement. Hayward, 603 F.3d at 559. In support of 5 this view, the court discusses Greenholtz v. Inmates of Nebraska 6 Penal and Correctional Complex, 442 U.S. 1, 7 (1979), which 7 states, “There is no constitutional or inherent right of a 8 convicted person to be conditionally released before the 9 expiration of a valid sentence.” 10 Though federal law does not entitle a prisoner to parole 11 without “some evidence” of dangerousness, state law may create 12 that entitlement under the Due Process Clause. Hayward, 603 F.3d 13 at 560. Under California’s law, a prisoner has a right to parole 14 once the Board determines the prisoner does not pose an 15 “unreasonable risk of danger to society if released from prison.” 16 Cal. Admin. Code tit. 15, § 2281(a) (2004). If the prisoner does 17 pose an unreasonable risk of danger, the Board will find the 18 prisoner unsuitable for parole and the prisoner is not entitled to 19 a set date for release. Id. The Board must take all information 20 into consideration when determining whether the prisoner meets 21 this standard: 22 23 24 25 26 27 Such information shall include the circumstances of the prisoner's: social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 10 - 1 Cal. Admin. Code tit. 15, § 2281(b) (2004). 2 Circumstances that tend to show that a prisoner is unsuitable 3 for parole include a commitment offense committed in an especially 4 heinous or cruel manner (including, inter alia, calculation, an 5 exceptionally callous disregard for human suffering, and trivial 6 motive in relation to the offense), a previous record of violence, 7 an unstable social history, and problematic institutional 8 behavior. Cal. Admin. Code tit. 15, § 2281(c). 9 In California, an “indeterminate sentence is in legal effect 10 a sentence for the maximum term, subject only to the ameliorative 11 power of the [parole authority] to set a lesser term.” Hayward, 12 603 F.3d at 561, citing People v. Wingo, 534 P.2d 1001, 1011 13 (1975). The Board does have broad discretion, but denial of parole 14 must be supported by “some evidence of future dangerousness.” 15 Hayward, 603 F.3d at 562, citing 59 In re Lawrence, 190 P.3d 535, 16 549 (2008); In re Shaputis, 190 P.3d 573, 582 (2008). Because the 17 original reason for incarceration is unchanging, and the concept 18 of parole allows for rehabilitation, a decision to deny parole 19 must be based on more than just the original offense, there must 20 also be “something in the prisoner’s pre- or post-incarceration 21 history, or his or her current demeanor and mental state that 22 supports the inference of dangerousness.” Id. 23 Because there is no federal right to parole our task is to 24 determine whether California’s judicial decision was an 25 “unreasonable application” of California’s some evidence of future 26 dangerousness requirement or was “based on an unreasonable 27 determination of the facts in light of the evidence.” Hayward, 603 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 11 - 1 F.3d at 563; 28 U.S.C. § 2254 (d)(1). California’s Superior Court 2 found that the Board had some evidence of future dangerousness 3 based on not only Petitioner’s commitment offense, but also his 4 criminal history, unstable social history, and his incarceration 5 history. (Ct. Rec. 8 Ex. 3 at 5.) 6 Though a determination of Petitioner’s future dangerousness 7 to the public cannot be entirely based on his commitment offense, 8 it was not unreasonable for California’s Superior Court to find 9 that the Board had some evidence of future dangerousness based on 10 the commitment offense. There is some evidence that the offense 11 was committed in a callous, calculated manner, that there was a 12 disregard for human suffering, and that the provocation was very 13 trivial in relation to the offense. Petitioner brought a gun with 14 him when he exited his car after seeing the victim. (Ct. Rec. 1 at 15 81.) The Petitioner also continued to fire shots at his victim, 16 though the victim had already been hit and was running away. Id. 17 Finally, whether Petitioner’s motivation for shooting his victim 18 was threats to Petitioner’s family or recently losing altercations 19 to the victim, it is not unreasonable to consider these trivial 20 offenses compared to Petitioner’s behavior. Id. at 82. 21 California’s Superior Court also reasonably found that the 22 Board also had some evidence of future dangerousness from sources 23 other than the commitment offense. First, the Petitioner has a 24 record of assaultive behavior including battery on a police 25 officer and resisting arrest. (Ct. Rec. 1 at 132.) Petitioner was 26 also charged with marijuana possession, burglary, loitering, 27 possession of firearms on campus, and possession of narcotics. 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 12 - 1 (Ct. Rec. 1 at 132.) Second, there is evidence to support that 2 Petitioner has an unstable social history. Petitioner admitted to 3 using alcohol and marijuana and trying Benzedrine and Seconal, but 4 has not availed himself of any substance abuse classes. (Ct. Rec. 5 1 at 132, 136.) Third, the Board had reason to be concerned about 6 Petitioner’s institutional behavior because Petitioner had 7 recently (March 2004) had a 115 disciplinary report for disobeying 8 a direct order as well as three previous 115s in 1994-1995. (Ct. 9 Rec. 1 at 132.) The psychological report created for the parole 10 hearing concluded that Petitioner posed a moderate degree of 11 threat to the public. (Ct. Rec. 1 at 134). This Court finds that there is no federally protected liberty 12 13 interest to parole. Therefore, any right to parole Petitioner may 14 have must arise from California’s statutory and constitutional 15 parole scheme. California has determined that prisoners shall be 16 granted parole unless the Board finds some evidence that the 17 prisoner poses a danger to the public. California’s judicial 18 decision was not an “unreasonable application” of California’s 19 some evidence of dangerousness requirement and was not “based on 20 an unreasonable determination of the facts in light of the 21 evidence.” Accordingly, Petitioner’s claim is without merit. 22 23 24 V. CONCLUSION For the reasons stated above, IT IS RECOMMENDED the Petition for Writ of Habeas Corpus (Ct. Rec. 1) be DENIED. 25 26 27 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 13 - 1 IT IS FURTHER RECOMMENDED that the District Court decline to 2 issue a Certificate of Appealability.1/ Any further request for a 3 COA must be addressed to the Court of Appeals.2/ 4 OBJECTIONS 5 Any party may object to the magistrate judge’s proposed 6 findings, recommendations or report within fourteen (14) days 7 following service with a copy thereof. 8 with the Clerk of the Court all written objections, specifically 9 identifying the portions to which objection is being made, and Such party shall file 10 the basis therefore. Attention is directed to Fed. R. Civ. P. 11 6(e), which adds another three (3) days from the date of mailing 12 if service is by mail. 13 determination of those portions to which objection is made and 14 may accept, reject, or modify the magistrate judge’s 15 determination. 16 or hear arguments and may consider the magistrate judge’s record 17 and make an independent determination thereon. 18 judge may also receive further evidence or recommit the matter to 19 the magistrate judge with instructions. 20 _____________________________ 21 1/ A district judge will make a de novo The district judge need not conduct a new hearing The district 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (a COA should be granted 22 where the applicant has made “a substantial showing of the denial of a constitutional right,” i.e., when 23 “reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been 24 resolved in a different manner or that the issues presented were adequate to deserve encouragement to 25 proceed further.”) (internal quotation marks and citations omitted). 26 2/ See Fed. R. App. P. 22(b); Ninth Circuit R. 22-1. 27 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 14 - 1 2 3 See 28 U.S.C. § 636 (b) (1) (C) , Fed. R. Civ. P. 73, and LMR 4, Local Rules for the Eastern District of California. 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 7 The District Court Executive SHALL FILE this report and 8 recommendation and serve copies of it on the referring judge and 9 the parties. 10 DATED this 7th day of September, 2010. 11 12 13 14 s/James P. Hutton JAMES P. HUTTON UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 REPORT AND RECOMMENDATION TO DENY WRIT OF HABEAS CORPUS - 15 -