(HC) Wyatt v. McDonald, No. 2:2009cv02122 - Document 49 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 12/06/11 recommending that petitioner's motion to amend 45 be denied. MOTION to AMEND 45 referred to Judge Kimberly J. Mueller. Objections due within 21 days. (Plummer, M)
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(HC) Wyatt v. McDonald Doc. 49 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 VICTOR H. WYATT, Petitioner, 11 vs. 12 13 No. CIV S-09-2122 KJM DAD P MICHAEL McDONALD, Respondent. 14 FINDINGS AND RECOMMENDATIONS / 15 Petitioner is a state prisoner proceeding through counsel with a petition for writ of 16 17 habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner’s motion to amend his habeas petition 18 came on regularly for hearing on November 18, 2011. Counsel for petitioner did not appear at 19 the hearing.1 Deputy Attorney General Jeffrey Grant appeared for respondent. At that time 20 petitioner’s motion to amend was submitted for decision without argument. Upon review of the 21 motion and the documents in support and opposition thereto, and for the following reasons, the 22 court recommends that petitioner’s motion to amend be denied. 23 ///// 24 Petitioner’s counsel failed to appear at the hearing despite the fact that she had filed an amended notice, specifically setting the motion for hearing before the undersigned on the date and time in question. In light of the amended notice, the court trailed the matter on its calendar, believing that counsel might merely be delayed. However, petitioner’s counsel failed to appear. 1 25 26 1 Dockets.Justia.com 1 I. Background On July 31, 2009, petitioner, proceeding without counsel at that time, filed a 2 3 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this court. (Doc. No. 1.) 4 That petition raised one jury instruction claim: that the giving of CALJIC No. 220 at petitioner’s 5 trial violated his right to due process because that instruction erroneously instructed the jury with 6 respect to the burden of proof and the presumption of innocence. (Id.) Respondent filed an 7 answer on September 1, 2010. (Doc. No. 24.) On January 25, 2011, this court issued findings 8 and recommendations recommending that the habeas petition be denied. (Doc. No. 28.) Those 9 findings and recommendations are still pending before the assigned District Judge. On February 15, 2011, counsel filed objections to the January 25, 2011 findings 10 11 and recommendations on behalf of petitioner.2 (Doc. No. 29.) The objections did not address the 12 substance of those findings and recommendations but instead explained that petitioner wished to 13 pursue additional habeas claims. Along with the objections, petitioner filed an “amended 14 petition for writ of habeas corpus.” (Doc. No. 30.) The amended petition raises five claims of 15 ineffective assistance of trial counsel, one claim of ineffective assistance of appellate counsel, 16 one claim of racial discrimination in the “jury selection process” in the trial proceedings before 17 the Butte County Superior Court, one claim of “unreasonable search and seizure,” and one claim 18 of “prosecutorial and police misconduct.” (Id.) By order dated March 1, 2011, the amended petition was stricken because it did 19 20 not comply with the Federal Rules of Civil Procedure. (Doc. No. 31.) Petitioner was advised 21 that if he wished to file a motion to amend his petition for writ of habeas corpus, he should do so 22 within thirty days. Petitioner was further advised that any such motion should address whether 23 the claims contained in the proposed amended petition were properly exhausted and timely filed. 24 On September 13, 2011, petitioner filed the motion to amend which is currently before the court. 25 Counsel was not properly substituted in as petitioner’s counsel of record, however, until June 24, 2011. See Doc. No. 42; see also Doc. Nos. 31, 35 & 38. 2 26 2 1 (Doc. No. 45.) Respondent filed an opposition to the motion to amend on October 4, 2011. 2 (Doc. No. 47.) 3 II. Motion to Amend On February 13, 2007, petitioner was convicted after a jury trial in the Butte 4 5 County Superior Court of petty theft from a Wal-Mart store, in violation of California Penal 6 Code § 484. (Doc. No. 24-1, at 2.) In his pending motion to amend, petitioner argues that he 7 was arrested at Wal-Mart for retaliatory reasons and that he “suffered multiple instances of 8 violation of his constitutional rights and was denied due process at all stages of the subject 9 prosecution.” (Doc. No. 45 at 2.) Petitioner informs this court that his motion “is based upon 10 Petitioner’s factual innocence of the crime charged and a conviction arising primarily from the 11 incompetence and ineffectiveness of counsel and prosecutorial misconduct all of which deprived 12 petitioner of due process and a fair trial.” (Id. at 1.) Petitioner further states that he was “the 13 victim of prosecutorial and police misconduct and unreasonable search and seizure.” (Id.) He 14 claims that “critical exculpatory evidence was removed and denied him when the officer making 15 the citizen’s arrest for the Wal-Mart employee was permitted to maintain possession of the 16 subject ink cartridges the store employee claimed he was shoplifting and he claimed were empty 17 ones he brought into the store.” (Id.) The motion to amend incorporates by reference the 18 previously stricken amended habeas petition which, as noted, raises claims of ineffective 19 assistance of trial and appellate counsel, racial discrimination in the jury selection process in the 20 Butte County Superior Court, unreasonable search and seizure and prosecutorial and police 21 misconduct. 22 Petitioner argues that he exhausted his state remedies “in regard to all the claims 23 raised in the proposed amended petition in that an appeal was filed on his behalf and denied.” 24 (Id.) Despite this assertion, petitioner also acknowledges, however, that his state court appeal did 25 not raise the issues he now seeks to add to his federal habeas petition, but he contends that this 26 was because his previous counsel “failed to see or address them.” (Id. at 3-4.) Petitioner states 3 1 that he asked his trial counsel to challenge the jury selection process on the grounds of “racial 2 discrimination” but that his trial counsel failed to do so. (Id. at 3.) According to petitioner, his 3 counsel also “ignored” petitioner’s input with regard to possible appellate issues, and “did not act 4 upon his suggestions/requests.” (Id.) Petitioner also argues that, because his claims of 5 ineffective assistance of counsel were not raised on appeal, they are waived and “thus, there 6 remains no other remedy to redress those wrongs.” (Id. at 4.) Petitioner states in conclusory 7 fashion and without elaboration, that the factual predicate for his proposed new claims “could not 8 have been discovered previously through the exercise of due diligence,” and that the facts 9 underlying his claims “when proven and viewed in the light of the evidence as a whole, would be 10 sufficient to establish by clear and convincing evidence, but for the constitutional errors, no 11 reasonable fact finder would have found [petitioner] guilty of shoplifting those ink cartridges.” 12 (Id.) 13 Petitioner explains that he was unaware of his new claims because he didn’t have 14 counsel, but that once he obtained counsel “in mid 2010” those new claims were discovered and 15 submitted to this court within the one-year statute of limitations period. (Id.) Petitioner also 16 argues that the statute of limitations was tolled during the time he was pursuing habeas petitions 17 in state court. (Id.) In the end, petitioner changes course, stating that his “factual innocence 18 remains the most important aspect of this motion.” (Id.) In the opposition to the motion to amend, respondent contends that petitioner’s 19 20 motion “is futile because the claims he seeks to add are untimely, do not relate back to the 21 original habeas petition, and are unexhausted.” (Doc. No. 47 at 5.) Respondent also argues that 22 petitioner has failed to demonstrate that he falls within any “actual innocence” exception to the 23 AEDPA statute of limitations. (Id. at 9-10.) 24 ///// 25 ///// 26 ///// 4 1 III. Discussion A. Applicable Legal Standards 2 Under Federal Rule of Civil Procedure 15(a), a habeas petitioner may amend his 3 4 pleadings once as a matter of course before a responsive pleading is served and may seek leave of 5 court to amend his pleading at any time during the proceeding. Mayle v. Felix, 545 U.S. 644, 6 654 (2005); see also In re Morris, 363 F.3d 891, 893 (9th Cir. 2004) (Rule 15(a) applies to 7 habeas actions with the same force that it applies to other civil cases). Although leave of court 8 should be given freely, a court may deny a motion to amend if the motion is made in bad faith, 9 there would be prejudice to the opposing party, the amendment would be futile or would delay 10 the action, or if the party acted in a dilatory fashion in seeking to amend. Foman v. Davis, 371 11 U.S. 178, 182 (1962); Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004) (applying these 12 factors with respect to a motion to amend in a habeas case); Bonin v. Calderon, 59 F.3d 815, 845 13 (9th Cir. 1995) (same). Prejudice to the opposing party is the most important factor in assessing 14 a motion to amend. Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990). 15 Bad faith may be shown when a party seeks to amend late in the litigation process 16 with claims which were, or should have been, apparent early. Bonin, 59 F.3d at 846.3 A motion 17 to amend a pleading is addressed to the sound discretion of the court and must be decided upon 18 the facts and circumstances of each particular case. Sackett v. Beaman, 399 F.2d 884, 889 (9th 19 Cir. 1968). B. Timeliness 20 Respondent argues that the claims petitioner seeks to add in his proposed 21 22 amended habeas petition are untimely and, therefore, amendment of the petition to add these 23 claims would be futile. (Doc. No. 47 at 5-9.) The court will address this argument below. 24 ///// 25 These facts might also support a finding that the moving party acted in a dilatory fashion when seeking leave to amend. Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999). 3 26 5 As described above, petitioner challenges a judgment of conviction for petty theft 1 2 entered against him in the Butte County Superior Court on February 13, 2007. (Doc. No. 24-1, at 3 2.) On September 5, 2007, petitioner filed an appeal from his conviction in the California Court 4 of Appeal for the Third Appellate District. (Resp’t’s Lod. Doc. 1.) The state appellate court 5 affirmed petitioner’s judgment of conviction on April 8, 2008. (Doc. No. 24-1 at 2.) On April 15, 2008, petitioner filed a petition for review in the California Supreme 6 7 Court. (Resp’t’s Lod. Doc. 3.) On June 11, 2008, the Supreme Court denied the petition for 8 review. (Resp’t’s Lod. Doc. 4.) On July 31, 2009, petitioner filed his federal habeas petition in this court. (Doc. 9 10 No. 1.) Thereafter, on January 4, 2010, petitioner filed a petition for writ of habeas corpus 11 12 in the Butte County Superior Court. (Resp’t’s Lod. Doc. No. 5.) That petition was denied on 13 March 22, 2010. (Resp’t’s Lod. Doc. 6.) On September 28, 2010, petitioner filed a petition for 14 writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Doc. 15 No. 47-1 at 1.) That petition was denied on October 7, 2010. (Id.) It does not appear that 16 petitioner filed a habeas petition with the California Supreme Court. Because this action was filed after April 26, 1996, the provisions of the 17 18 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are applicable. See Lindh v. 19 Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003), 20 overruled in part on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003). The AEDPA 21 imposed a one-year statute of limitations on the filing of federal habeas petitions. Title 28 U.S.C. 22 § 2244 provides as follows: (d) (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of – 23 24 25 ///// 26 ///// 6 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 1 2 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 3 4 5 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 6 7 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 8 9 (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 10 11 12 For most prisoners, the limitation period for the filing of a federal habeas petition 13 14 begins to run on the date on which the judgment of conviction becomes final by the conclusion of 15 direct review or the expiration of the time for seeking such review. 28 U.S.C. § 2244(d)(1)(A). 16 As explained above, the California Supreme Court denied review of petitioner’s judgment of 17 conviction on June 11, 2008. The ninety-day period during which petitioner could have filed a 18 petition for writ of certiorari in the United States Supreme Court therefore expired on September 19 9, 2008. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir. 1999). Accordingly, petitioner’s 20 judgment of conviction became final for purposes of § 2244(d)(1)(A) on September 9, 2008. 21 (Id.) The AEDPA statute of limitations for petitioner’s filing of a federal habeas petition began 22 to run on September 10, 2008, and continued to run for 365 days until it expired on September 9, 23 2009. 24 Petitioner’s timely original federal habeas petition was filed on July 31, 2009, but 25 set forth only his jury instruction claim and did not operate to toll the AEDPA statute of 26 limitations with respect to any other claims. See Duncan v. Walker, 533 U.S. 167, 180 (2001) 7 1 (the tolling provision of section 2244(d)(2) applies only to state post-conviction review but not 2 during the pendency of applications for federal review); King v. Ryan, 564 F.3d 1133, 1141 (9th 3 Cir. 2009). Nor was the AEDPA statute of limitations tolled by petitioner’s state habeas 4 petitions filed in the Butte County Superior Court or the California Court of Appeal. Those 5 petitions were filed on January 4, 2010, and September 28, 2010, respectively, after the statute of 6 limitations for the filing of a federal habeas petition had already expired. See Ferguson v. 7 Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (state petitions filed after the limitations period has 8 expired do not toll the AEDPA statute of limitations). 9 A petitioner’s amendments made after the statute of limitations has run will relate 10 back to the date of his original pleading only if the new claims arose out of the conduct, 11 transaction, or occurrence set forth or attempted to be set forth in the original pleading. See 12 Mayle, 545 U.S. 644; Fed. R. Civ. P. 15(c) (a petitioner’s amendments made after the statute of 13 limitations has run will relate back to the date of his original pleading only if the new claims 14 arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the 15 original pleading); see also Rule 11, Fed. R. Governing § 2254 Cases (providing that the Federal 16 Rules of Civil Procedure may be applied in habeas corpus proceedings to the extent that the rules 17 of civil procedure are not inconsistent with any statutory provision or with the rules governing 18 habeas cases). One of the central policies of the relation back doctrine under Rule 15(c) is to 19 “ensur[e] that the non-moving party has sufficient notice of the facts and claims giving rise to the 20 proposed amendment.” Anthony v. Cambra, 236 F.3d 568, 576 (9th Cir. 2000). 21 In Mayle, the Supreme Court explained that “[t]he ‘original pleading’ to which 22 Rule 15 refers is the complaint in an ordinary civil case, and the petition in a habeas proceeding.” 23 545 U.S. at 655. The Court observed that the complaint in an ordinary civil case need only 24 provide fair notice of the plaintiff’s claim and the grounds on which the claim rests, while a 25 habeas petition is required to specify all grounds for relief available to the petitioner and state the 26 facts supporting each ground. Id. Because of this difference between civil complaints and 8 1 habeas petitions, the relation back of new habeas claims “depends on the existence of a common 2 ‘core of operative facts’ uniting the original and newly asserted claims.” Id. at 659. After a review of petitioner’s pleadings, this court concludes that petitioner’s 3 4 proposed new claims of ineffective assistance of trial and appellate counsel, racial discrimination 5 in the “jury selection process,” “unreasonable search and seizure,” and “prosecutorial and police 6 misconduct” do not arise out of the conduct, transaction, or occurrence set forth in the jury 7 instruction claim contained in his original petition, nor do they share a common core of operative 8 facts with that sole, timely submitted claim. Mayle, 545 U.S. at 656; King, 564 F.3d at 1141 9 (“[A] new claim does not ‘relate back’ to the filing of an exhausted petition simply because it 10 arises from ‘the same trial, conviction, or sentence’”); Hebner v. McGrath, 543 F.3d 1133, 1138 11 (9th Cir. 2008) (admission of evidence during a trial and the instructions given to the jury after 12 the close of evidence are two discrete occurrences that do not share a common core of operative 13 fact). Rather, petitioner’s proposed new claims are based on independent facts, different in both 14 time and type from petitioner’s jury instruction claim. Indeed, petitioner has not even attempted 15 to explain how or whether his proposed new claims share a common core of facts with his 16 original claim of jury instruction error. Accordingly, petitioner’s new claims for habeas relief do 17 not relate back to his timely filed federal habeas petition and are barred by 28 U.S.C. § 18 2244(d)(1)(A). 19 Although he does not provide specific factual allegations in support thereof, 20 petitioner also appears to argue that the statute of limitations should not start to run with respect 21 to his proposed new claims until “mid 2010,” when he obtained new counsel and allegedly 22 discovered the existence of those claims. 28 U.S.C. § 2244(d)(1)(D) provides that the limitations 23 period may begin to run on “the date on which the factual predicate of the claims or claims 24 presented could have been discovered through the exercise of due diligence.” See Redd v. 25 McGrath, 343 F.3d 1077, 1083 (9th Cir. 2003) (the date of the “factual predicate” for purposes of 26 § 2244(d)(1)(D) is dependent on when the petitioner “could have learned of the factual basis for 9 1 his claim through the exercise of due diligence.”). Under § 2244(d)(1)(D) the statute of 2 limitations for the filing of a federal habeas petition runs from the date a petitioner is put on 3 notice of the facts which would support a claim for habeas relief, not from the date on which he 4 has in his possession evidence to support such a claim. See, e.g., Flanagan v. Johnson, 154 F.3d 5 196, 198 (5th Cir. 1998) (“[Petitioner] is confusing his knowledge of the factual predicate of his 6 claim with the time permitted for gathering evidence in support of that claim.”); see also Brown v 7 Cate, Civil No. 10cv2302 LAB (NLS), 2011 WL 4479048, at *4 (S.D. Cal. July 28, 2011) 8 (“These facts constitute additional evidence as opposed to new evidence that could trigger the 9 later start date of the statute of limitations.”); Stringer v. Marshall, No. Civ. S-09-2980 GEB EFB 10 P, 2011 WL 666897, at *4 (E.D. Cal. Feb. 11, 2011) (finding that petitioner “knew the important 11 facts undergirding his general claim” and discovery of additional evidence does neither changes 12 the contour of the claim nor constitutes “a new factual predicate justifying a later start date under 13 § 2244(d)(1)(D).”) 14 All of petitioner’s proposed new federal habeas claims arose during his arrest, 15 trial, or direct appeal proceedings. Thus, the factual predicate of these claims would have been 16 known to petitioner at that time, well before the statute of limitations for the seeking of federal 17 habeas relief began to run. Indeed, petitioner admits in his motion to amend that he was aware of 18 his potential claim based upon alleged discrimination in the jury selection process during his 19 state court trial proceedings and that he suggested that and other possible appellate issues to his 20 counsel in connection with his direct appeal. (Doc. No. 45 at 3.) From the record before this 21 court, it appears that petitioner would have discovered, by exercising due diligence, the factual 22 predicate of all of his proposed new federal habeas claims in sufficient time to submit them to 23 this court in a timely manner. In the absence of any specific argument by petitioner as to when 24 he could have or did in fact discover the factual basis for his proposed new habeas claims, or 25 whether he conducted any investigation into learning of the basis for his proposed new claims, 26 this court cannot find that petitioner could not have learned of these claims within the limitations 10 1 period had he exercised reasonable care. See Hasan v. Galaza, 254 F.3d 1150, 1155 (9th Cir. 2 2001) (noting that the statute of limitations begins when a petitioner has “discovered (or with . . . 3 due diligence could have discovered)” the factual predicate of a claim, and not when the prisoner 4 recognizes their legal significance). Moreover, petitioner has cited no case authority in support 5 of his argument that the statute of limitations for the seeking of federal habeas relief begins to run 6 under § 2244(d)(1)(D) when a petitioner’s counsel decides that facts already known to the 7 petitioner constitute valid habeas claims that should be pursued. 8 9 Nor may petitioner’s late-filed petition be excused under any actual innocence claim exception to the statute of limitations. In Lee v. Lampert, 653 F.3d 929 (9th Cir. 2011), the 10 Ninth Circuit Court of Appeals concluded that a credible showing of “actual innocence” under 11 Schlup v. Delo, 513 U.S. 298 (1995), excuses the AEDPA statute of limitations period. 12 Specifically, the court held that “a credible claim of actual innocence constitutes an equitable 13 exception to AEDPA’s limitations period, and a petitioner who makes such a showing may pass 14 through the Schlup gateway and have his otherwise time-barred claims heard on the merits.” Id. 15 at 932. In order to fall within this exception to the statute of limitations, however, “a petitioner 16 must produce sufficient proof of his actual innocence to bring him “within the ‘narrow class of 17 cases . . . implicating a fundamental miscarriage of justice.’” Id. at 937 (quoting Schlup, 513 18 U.S. at 314–15). In addition, “[t]he evidence of innocence must be ‘so strong that a court cannot 19 have confidence in the outcome of the trial unless the court is also satisfied that the trial was free 20 of nonharmless constitutional error.’” Id. at 937-38 (quoting Schlup, 513 U.S. at 316). “To pass 21 through the Schlup gateway, a ‘petitioner must show that it is more likely than not that no 22 reasonable juror would have convicted him in the light of the new evidence.’” Id. at 938 23 (quoting Schlup, 513 U.S. at 327). 24 In this case, notwithstanding petitioner’s cursory and unsupported assertion that 25 the facts underlying his proposed new claims, “when proven” would establish his actual 26 innocence, petitioner has failed to show, or even to attempt to show, that in light of all the 11 1 evidence it is more likely than not that no reasonable juror would have found him guilty beyond a 2 reasonable doubt. Nor has petitioner demonstrated that a court could not have confidence in the 3 outcome of his trial. See id.; Majoy v. Roe, 296 F.3d 770, 776 (9th Cir. 2002). 4 For all of these reasons, petitioner is also not entitled to the equitable tolling of the 5 AEDPA statute of limitations. His proposed new claims are therefore time barred. Accordingly, 6 petitioner’s motion to amend his habeas petition to add these new claims would be futile and 7 prejudicial to the respondent at this late date, and should therefore be denied.4 8 C. Exhaustion Respondent also argues that the proposed new claims petitioner seeks to raise 9 10 have not been exhausted in state court. (Doc. No. 47 at 9.) The exhaustion of state court remedies is a prerequisite to the granting of a 11 12 petition for writ of habeas corpus. 28 U.S.C. § 2254(b)(1); Harbison v. Bell, 556 U.S. 180, ___, 13 129 S. Ct. 1481, 1489 (2009) (“Petitioners must exhaust their claims in state court before seeking 14 federal habeas relief.”). A state prisoner satisfies the exhaustion requirement by fairly presenting 15 his claim to the appropriate state courts at all appellate stages afforded under state law. Baldwin 16 v. Reese, 541 U.S. 27, 29 (2004); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state 17 prisoners must give the state courts one full opportunity to resolve any constitutional issues by 18 invoking one complete round of the State’s established appellate review process”); Picard v. 19 Connor, 404 U.S. 270, 276 (1971): Casey v. Moore, 386 F.3d 896, 915-16 (9th Cir. 2004); 20 Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1986) . Petitioner admittedly has not presented any of his proposed new claims to the 21 22 California Supreme Court and they are therefore unexhausted. Accordingly, petitioner’s motion 23 to amend to add these new claims to his pending federal habeas petition would be futile. 24 25 Petitioner does not claim entitlement to equitable tolling of the statute of limitations on any other grounds and there is no basis for such a finding in the record before this court. 4 26 12 CONCLUSION 1 For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s 2 3 motion to amend (Doc. No. 45) be denied. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty- 6 one days after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 9 shall be served and filed within ten days after service of the objections. The parties are advised 10 that failure to file objections within the specified time may waive the right to appeal the District 11 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may 12 address whether a certificate of appealability should issue in the event he files an appeal of the 13 judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district 14 court must issue or deny a certificate of appealability when it enters a final order adverse to the 15 applicant). 16 DATED: December 6, 2011. 17 18 19 20 DAD:8 wyatt2122.mta 21 22 23 24 25 26 13