(HC)Kakowski v. Pollard

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 BRIAN KAKOWSKI, No. 2:20-cv-00549 KJM GGH P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 MARCUS POLLARD, WARDEN 15 Respondent. [17] 18 Introduction and Summary 19 Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254 . The matter was referred to the United States Magistrate Judge 21 pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 302(c). 22 Petitioner was convicted of robbery and because of his previous criminal record, he was 23 sentenced to 25 years to life with three consecutive five-year term enhancements on account of 24 the prior convictions. As petitioner was still serving a 16-year sentence on another conviction, 25 the sentence in this case was imposed consecutively with the 16-year sentence. Neither party 26 contests that the sentence here, when considered in tandem with the 16-year sentence, is 27 equivalent to life without the possibility of parole given petitioner’s age (mid-forties) and the 28 length of the sentences. 1 Petitioner believes he is entitled to relief because the trial court did not sua sponte instruct 2 on the lesser offense of grand theft/larceny, and because his counsel expressly demurred to giving 3 the lesser included offense instruction. Petitioner also believes that his sentence exceeds the 4 bounds of the Eighth Amendment. 5 The entire premise of petitioner’s lesser included offense instruction is that the jury 6 would have opted for this lesser offense because it found that petitioner committed the robbery 7 without personal use of a firearm as defined by California law. First, petitioner has no 8 constitutional right to a lesser included offense instruction in a non-capital case. Moreover, 9 because the premise of petitioner’s argument is incorrect, his conclusion fails as well with respect 10 to his ineffective assistance of counsel claim. Finally, the bounds of the Eighth Amendment were 11 not exceeded in this case. Accordingly, the undersigned recommends the petition should be 12 denied. 13 Background Facts 14 The background facts are mostly taken from the opinion of the California Court of Appeal 15 Third Appellate District (“Court of Appeal”). The undersigned includes additional facts to clarify 16 that no actually used firearm was found or introduced at trial. 17 Store clerk, K.G., worked with K.J. at an electronics store. One evening, defendant entered the store and K.G. assisted him for 18 approximately an hour. Defendant was interested in a police scanner, headphones, and a backpack. K.G. rang up the items, and 19 defendant asked her to put them in the backpack instead of using a store bag. [20] Defendant left the store to get something from his car. When he 21 returned, K.G. asked him if he wanted a protection plan for his electronics and then noticed that defendant was pointing what she 22 believed to be a gun at her. He demanded all the money from the register. K.G. was terrified and panicked, giving defendant 23 everything he wanted. Defendant took the money and the backpack, telling K.G. not to call the police for a few minutes. [24] After defendant left, K.J. locked the front door, and both clerks 25 retreated to the back room to call 911. A recording of this call was played for the jury. K.G. said she was inexperienced regarding 26 guns, but nevertheless told authorities the gun was black and looked like a “police” or “cop” gun. [27] Officer Mel Cuckovich took K.G.’s statement on the day of the 28 crime. She was “very scared and startled” and her actions were 1 consistent with other victims of theft or robbery. Nothing in K.G.’s demeanor suggested she was not a legitimate victim of robbery. 2 Officer Cuckovich and another officer both testified to the difficulty of distinguishing between replica and real guns. [3] Sergeant Dan Bloomfield testified regarding defendant’s previous 4 robbery of a drug store, which was caught on surveillance tape. Defendant took some shirts to the clerk at the front register, who 5 scanned them. While that clerk had her back turned getting cigarettes, defendant pulled out a semi-automatic handgun and 6 placed the muzzle of the gun on the counter, pointing it at the clerk. When the clerk turned back around, she removed the money from 7 the cash register and handed it to defendant, who then left the store. The gun in this video was similar to the semi-automatic handgun 8 depicted in People’s Exhibit 5, which the victim said was consistent with her description of the kind of gun that was used during the 9 robbery. 10 Defendant called a single witness, Detective Rodrick Guerra. Detective Guerra testified concerning K.G.’s statements and that 11 “some replica guns can look a lot like real guns.” He further testified that, to his knowledge, no gun or stolen merchandise had 12 been recovered in the case. 13 Following the jury’s guilty verdict regarding the robbery, the jury was presented evidence relevant to the People’s allegations of three 14 prior criminal convictions. Deputy District Attorney Brad Ng testified as an expert in prior criminal convictions, including 15 California Department of Corrections and Rehabilitation (CDCR) records and his review of defendant’s CDCR records for the three 16 alleged priors. Based upon that review, Deputy Ng opined defendant had suffered: (1) a first degree burglary conviction on 17 April 8, 1992; (2) a first degree burglary conviction on July 25, 1994; and (3) a terrorist or criminal threats conviction on August 4, 18 2000. 19 People v. Kakowski, No. C086377, 2019 WL 5485119 , at *1-2 (Cal. Ct. App. Oct. 25, 2019). 20 The undersigned has reviewed the entire transcript of the trial. It is evident, that although 21 the clerk/robbery victim believed that the gun used in the robbery looked real, there was not an 22 actually used firearm introduced into evidence. See ECF No. 20-3 at 53-54 (referring to People’s 23 Exhibits 5 and 6 containing pictures of a generic semi-automatic weapon along with a revolver). 24 See also ECF No. 20-3 at 124 (referring again to People’s Exhibits 5 and 6 as generic weapons). 25 Finally, see the final arguments of both trial counsel. 26 //// 27 //// 28 //// 1 Issues Presented 2 Petitioner presents the following three issues in his first amended petition: 3 1. Whether the Trial Court Had a Sua Sponte Duty to Instruct on the Lesser Included 4 Offense of Grand Theft/Larceny; 5 2. Whether Counsel was Ineffective for Foregoing the Lesser Included Offense 6 Instruction; and 7 3. Whether Petitioner’s Sentence Exceeded the Bounds of the Eighth Amendment. 8 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) Standards 9 For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings 10 of the United States Supreme Court at the time of the last reasoned state court decision. 11 Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, 565 U.S. 34 , 12 39 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 13 U.S. 362 , 405-406 (2000)). Circuit precedent may not be “used to refine or sharpen a general 14 principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has 15 not announced.” Marshall v. Rodgers, 569 U.S. 58, 63-64 (2013) (citing Parker v. Matthews, 567 16 U.S. 37, 48 (2012)). Nor may it be used to “determine whether a particular rule of law is so 17 widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, 18 be accepted as correct. Id. 19 A state court decision is “contrary to” clearly established federal law if it applies a rule 20 contradicting a holding of the Supreme Court or reaches a result different from Supreme Court 21 precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003). 22 Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the 23 writ if the state court identifies the correct governing legal principle from the Supreme Court’s 24 decisions, but unreasonably applies that principle to the facts of the prisoner’s case. Lockyer v. 25 Andrade, 538 U.S. 63, 75 (2003); Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this 26 regard, a federal habeas court “may not issue the writ simply because that court concludes in its 27 independent judgment that the relevant state-court decision applied clearly established federal law 28 erroneously or incorrectly. Rather, that application must also be unreasonable.” Williams, supra, 1 529 U.S. at 412. See also Lockyer, supra, 538 U.S. at 75 (it is “not enough that a federal habeas 2 court, ‘in its independent review of the legal question,’ is left with a ‘firm conviction’ that the 3 state court was ‘erroneous.’ ”) “A state court’s determination that a claim lacks merit precludes 4 federal habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the state 5 court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. 6 Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus 7 from a federal court, a state prisoner must show that the state court’s ruling on the claim being 8 presented in federal court was so lacking in justification that there was an error well understood 9 and comprehended in existing law beyond any possibility for fairminded disagreement.” 10 Harrington, 562 U.S. at 103. 11 Discussion 12 A. Whether Pursuant to AEDPA the Failure of a Trial Court to Instruct on a Lesser 13 Included Offense States a Federal Offense 14 Grand theft is a lesser included offense of robbery as grand theft can occur in the absence 15 of force or fear, and robbery requires that element.1 See, e.g., People v. Burns, 172 Cal.App.4th 16 1251, 1259 (2009); People v. Guzman, 45 Cal.App.4th 1023, 1028 (1996). Petitioner asserts that 17 the trial court should have instructed the jury on grand theft and not just robbery. 18 The California Court of Appeal in this case, in explicating California law, and petitioner 19 herein, focus on the strong theme in California law that a trial court should generally instruct, 20 //// 21 //// [22] 1 Cal. Penal Code Sec. 211: “Robbery is the felonious taking of personal property in the [23] possession of another, from his person or immediate presence, and against his will, accomplished 24 by means of force or fear.” Grand theft is defined pursuant to Cal. Penal Code Sec. 484 as: “(a) Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of [25] another, or who shall fraudulently appropriate property which has been entrusted to him or her, or 26 who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property…. is guilty of theft….” In [27] addition, Cal. Penal Code Sec. 487 provides: “Grand theft is theft committed in any of the 28 following cases: […] (c) When the property is taken from the person of another.” 1 even sua sponte, on a lesser included offense. While this law may have bearing on the 2 ineffectiveness of counsel issue, see below, it has no bearing on whether the federal Constitution 3 requires such a sua sponte instruction.2 4 In Beck v. Alabama, 447 U.S. 625 (1980), the Supreme Court held that due process is violated in a capital case “when the jury was not 5 permitted to consider a verdict of guilt of a lesser included noncapital offense, and when the evidence would have supported such 6 a verdict.” 447 U.S. at 627 . Beck expressly declined to decide whether due process would require giving a lesser included offense 7 instruction in non-capital cases. Id. at 638 n.14. The Ninth Circuit has declined to extend Beck to non-capital cases, and “[u]nder the 8 law of this circuit, the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a 9 federal constitutional question.” Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998). [10] 11 Oquita v. Diaz, No. 1:19-cv-00670-AWI-SAB-HC, 2019 WL 5813392 , at *13 (E.D. Cal. 12 Nov. 7, 2019). 13 That is the end of the federal issue whether the trial court should have sua sponte 14 instructed on lesser offenses. Accordingly, the undersigned recommends this claim be denied. 15 B. Whether Counsel Was Ineffective for not Requesting a Lesser Included Offense 16 Instruction 17 In this case, counsel expressly demurred on the giving of a lesser included offense 18 instruction. ECF No. 20-3 at 142. The Court of Appeal denied this ineffective assistance claim on 19 the merits. Because the reasoning of the denial of the ineffectiveness claim rested on the reasons 20 why (under state law) no sua sponte lesser offense instruction was necessary, the undersigned will 21 set forth the entire reasoning of the Court of Appeal: 22 Grand theft is a lesser included offense of robbery, lacking the additional element of force or fear. (§ 487; People v. Ramkeesoon 23 (1985) 39 Cal.3d 346, 351 .) However, instructions on grand theft were only required here if there was “substantial evidence” in the 24 record from which a reasonable jury could have determined “the lesser offense, but not the greater, was committed.” (Breverman, 25 supra, 19 Cal.4th at p. 162.) Here, the uncontroverted evidence presented was that K.G. was terrified when she acquiesced to [26] 27 2 Respondent’s counsel also spends some effort on whether under California law, a sua sponte instruction was necessary. However, the undersigned has determined not to discuss this “what if” 28 argument when it is clear that no federal claim presently exists. 1 defendant’s demand, providing him the money and the merchandise. Her terror was reinforced by the fact that, after all, 2 she had what she believed was a handgun pointed at her just a short distance away. There was no evidence that K.G. was not frightened 3 during the theft, but nonetheless turned over the items. Rather, defendant’s theory, which was based primarily on unreasonable 4 inferences from circumstantial evidence elicited during the People’s case, was that he did not steal anything and that K.G. made up the 5 robbery to conceal her own thievery. 6 Therefore, even though grand theft can be a lesser included offense to robbery, (People v. Ramkeesoon, supra, 39 Cal.3d at p. 351), 7 here there was not substantial evidence from which a reasonable jury could have reasonably concluded that defendant committed 8 grand theft, but not robbery. (See People v. Brew (1991) 2 Cal.App.4th 99, 105 [no error in failing to instruct on grand theft 9 where if any crime was committed, it was robbery].) There was no evidence presented that defendant stole the items but did not use 10 force or fear to accomplish the crime. Under these circumstances, there is no basis other than “an unexplainable rejection of the 11 prosecution’s evidence” upon which the jury could find that the lesser offense of grand theft, but not the greater offense of robbery 12 had occurred. (See People v. Kraft, supra, 23 Cal.4th at p. 1063.) 13 The jury’s rejection of the firearm enhancement does not alter this conclusion. Contrary to the uncontroverted evidence concerning 14 K.G.’s fear arising from defendant’s use of what she believed was a gun, the defense elicited evidence raising doubt over whether 15 defendant had used a real gun, as opposed to a replica or fake gun. Nonetheless, as conceded by defendant’s closing argument, whether 16 defendant committed robbery was not dependent on defendant’s use of a real firearm, but rather his creation of the fear of unlawful 17 injury to K.G. (See §§ 211, 212; People v. Bordelon (2008) 162 Cal.App.4th 1311, 1320 [victim’s prior training did not constitute 18 substantial evidence from which a jury could find the victim was not afraid after defendant pushed a customer aside and made 19 escalating demands for the money despite the lack of weapon or verbal threats].) Thus, the jury’s rejection of the firearm 20 enhancement was in all likelihood based upon K.G.’s uncertainty whether defendant’s gun was real as opposed to a replica. The 21 jury’s rejection of the firearm use allegation does not indicate substantial evidence from which a jury could have also inferred that 22 K.G. was not terrified as a result of defendant wielding what she believed was a real gun. [23] B. Ineffective Assistance of Counsel [24] Having concluded that the trial court did not err in failing to instruct 25 on grand theft because there was not substantial evidence in the record supporting that instruction, we reject defendant’s argument 26 that his counsel was ineffective for failing to request the grand theft instruction. Because a request for a lesser included instruction of 27 theft on this evidence would fail, defendant’s attorney cannot be 28 //// 1 ineffective for not requesting it. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836 [counsel not ineffective in failing to request 2 instructions not supported by evidence].) 3 People v. Kakowski, supra, 2019 WL 5485119 , at *3-4. 4 In federal habeas, on an ineffective assistance claim, petitioner must overcome not only 5 the deferential standards of Strickland v. Washington, 466 U.S. 668 (1984), but AEDPA 6 deference as well. 7 Clearly established federal law for ineffective assistance of counsel claims is found in 8 Strickland v. Washington, supra. To succeed on a Strickland claim, a defendant/petitioner must 9 show that (1) his counsel's performance was deficient and that (2) the “deficient performance 10 prejudiced the defense.” Id. at 687 . Counsel is constitutionally deficient if his or her 11 representation “fell below an objective standard of reasonableness” such that it was outside “the 12 range of competence demanded of attorneys in criminal cases.” Id. at 687–88 (internal quotation 13 marks omitted). “Counsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a 14 trial whose result is reliable.’ ” Harrington, supra, 562 U.S. at 104 (quoting Strickland, 466 U.S. 15 at 687). A reviewing court is required to make every effort “to eliminate the distorting effects of 16 hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the 17 conduct from counsel's perspective at the time.” Strickland, 466 U.S. at 669 . Reviewing courts 18 must “indulge a strong presumption that counsel's conduct falls within the wide range of 19 reasonable professional assistance.” Strickland, 466 U.S. at 689 . There is, in addition, a strong 20 presumption that counsel “exercised acceptable professional judgment in all significant decisions 21 made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citing Strickland, 466 U.S. at 689 ). 22 This presumption of reasonableness means that the court must “give the attorneys the benefit of 23 the doubt,” and must also “affirmatively entertain the range of possible reasons [defense] counsel 24 may have had for proceeding as they did.” Cullen v. Pinholster, 563 U.S. 170, 198 (2011) 25 (internal quotation marks and alterations omitted). 26 Moreover, defense counsel has a “duty to make reasonable investigations or to make a 27 reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 28 691. A reviewing court must “examine the reasonableness of counsel's conduct ‘as of the time of 1 counsel's conduct.’ ” United States v. Chambers, 918 F.2d 1455, 1461 (9th Cir. 1990) (quoting 2 Strickland, 466 U.S. at 690 ). See also Rhoades v. Henry, 638 F.3d 1027, 1036 (9th Cir. 2011) 3 (counsel did not render ineffective assistance in failing to investigate or raise an argument on 4 appeal where “neither would have gone anywhere”). Prejudice is found where “there is a 5 reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding 6 would have been different.” Strickland, 466 U.S. at 694 . A reasonable probability is “a 7 probability sufficient to undermine confidence in the outcome.” Id. “The likelihood of a different 8 result must be substantial, not just conceivable.” Harrington, 562 U.S. at 112 . Under AEDPA, 9 “[t]he pivotal question is whether the state court's application of the Strickland standard was 10 unreasonable.” Id. at 101 . “[B]ecause the Strickland standard is a general standard, a state court 11 has even more latitude to reasonably determine that a defendant has not satisfied that standard.” 12 Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). 13 In this case, petitioner (attaching his appellate court briefs) claims that the jury was 14 looking to have him convicted of the lesser offense, but only chose the greater offense because it 15 had no choice. Petitioner points to the fact that the jury could not find that the weapon used in the 16 robbery was “real,” and that the defense pointed out the “coolness under fire” of the store clerk, 17 i.e., the tone her later call to police dispatch did not show that she was very fearful. Petitioner’s 18 speculative postulations do not rise to the level where one could say that the Court of Appeal’s 19 opinion was unreasonable. 20 Firstly, petitioner’s conclusion is quintessential speculation. The jury in this case was 21 attentive to the facts of the case. The weapon used in the robbery was evidently not recovered, but 22 the clerk in this case testified that the picture showing the semi-automatic handgun was like the 23 one she saw on the robbery day. And, one does not have to dissolve into a puddle of wet mush 24 with quasi-incoherent speech to be considered sufficiently “fearful” for purposes of the robbery 25 definition. Rather, any reasonable person in a store clerk position, upon seeing what appeared to 26 be a real gun, associated with demands for the store’s money, would be sufficiently fearful for 27 their life simply because of that fact. The clerk in this case did testify that she was “terrified,” 28 “panicked” in this robbery situation, ECF No. 20-3 at 49, and her later ability to talk coherently 1 with police personnel, even though she was still very nervous and in shock, does not detract from 2 that fearfulness in the least. See also ECF No. 20-3 at 51, 58. 3 Secondly, there is no requirement in the robbery definition that the firearm utilized 4 actually be a “real gun,” nor does a robbery victim have to accomplish a split-second weapon’s 5 analysis to determine whether the gun could just be a facsimile. There is no evidence that the gun 6 in this case looked clownish, or simply like a child’s plaything. There is evidence that the gun 7 looked real and may well have been. 3 The fact that the jury could not find beyond a reasonable 8 doubt that the firearm in question here was real (because that firearm was not produced into 9 evidence), does not detract from its finding that the store clerk, having seen what she thought was 10 a real gun, was fearful of petitioner in the robbery situation. 11 While petitioner can argue the Court of Appeal’s conclusion that there was no substantial 12 evidence showing lack of fear in the robbery situation, and indeed, that was the thrust of the 13 defense, that is a far cry from finding that the appellate court’s conclusion was AEDPA 14 unreasonable. It is not. Accordingly, the ineffective assistance of counsel claim should be 15 denied.4 16 C. Petitioner’s Effective Life Without the Possibility of Parole Sentence Does Not 17 Violate the Eighth Amendment and AEDPA Deference Requires That It Be Upheld 18 Petitioner was sentenced on his bank robbery to an indeterminate Three Strikes sentence 19 of 25 years to life. Each of the strikes also caused a determinate enhancement to be made of 5 20 years for each strike to run first, with the indeterminate term consecutive to the running of the 21 determinate term. Petitioner’s entire sentence was to run consecutive to the sentence petitioner 22 was serving for Southern California crimes. ECF No. 20-3 at 286-287. No one contests the fact [23] 3 Moreover, evidence was introduced that petitioner had used a real semi-automatic weapon just 24 prior to the robbery at issue here. 4 It may well have been the defense strategy to put the jury in the position of an “all-or-nothing” [25] conviction scenario given the lack of actual weapon utilized. It is doubtlful, however, that the 26 jury would have opted for the lesser offense because the direct evidence of petitioner’s fear was uncontradicted. The inferential counterevidence was not strong at all. However, the undersigned 27 need not relay on this theory as there is no evidence in the record that the all-or-nothing strategy was an actual, purposeful strategy, and the Court of Appeal’s no substantial evidence of lack of 28 fear conclusion was AEDPA unreasonable. 1 that there is no realistic possibility of parole before petitioner’s life will have expired. 2 Clearly, the consecutive nature of the sentences in this case was based on petitioner’s 3 lengthy criminal history. Petitioner had been convicted 15 times prior to this sentence for crimes 4 which included burglaries, robberies and criminal threats; the convictions spanned from 1992 to 5 2016. ECF No. 20-1 at 281-282. The crime of conviction here was an armed robbery. Petitioner 6 was not a minor at the time of this conviction and sentence, far from it at 44 years old at the time 7 of sentencing, ECF No. 20-1 at 278, and the undersigned is not aware of any United States 8 Supreme Court case which finds the imposition of a “without parole” sentence to be 9 constitutionally prohibited in circumstances close to the present case. Compare Solem v. Helm, [10] 463 U.S. 277 (1983) (non-violent conviction with “relatively minor” and few prior convictions 11 would not allow a “without parole” sentence), with Harmelin v. Michigan, 501 U.S. 957 (1991) 12 (life without parole sentence for possession of 672 grams of cocaine, without prior felony 13 convictions is not constitutionally prohibited). See also Lockyer, supra, 538 U.S. 63 (affirming 14 the imposition of consecutive 25 years to life sentences for two counts of petty theft with a prior 15 and a record similar to petitioner’s); Norris v. Morgan, 622 F.3d 1276 (9th Cir. 2010) (life 16 without parole sentence for a second child molestation conviction does not violate the Eighth 17 Amendment). Compare Rios v. Garcia, 390 F.3d 1082 (9th Cir. 2004), with Ramirez v. Castro, [18] 365 F.3d 755 (2004). 19 In this case, the California Court of Appeal found that petitioner’s prior record combined 20 with the conviction for armed robbery did not violate the Eighth Amendment. People v. 21 Kakowski, supra, 2019 WL 5485119 , at *4-5. The undersigned is unable to find any established 22 United States Supreme Court authority holding that fair-minded jurists could not possibly uphold 23 the sentence in this case. Accordingly, the undersigned recommends petitioner’s third claim 24 should be denied. 25 Certificate of Appealability 26 Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must 27 issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A 28 certificate of appealability may issue only “if the applicant has made a substantial showing of the 1 denial of a constitutional right.” 28 U.S.C. § 2253 (c)(2). For the reasons set forth in these 2 findings and recommendations, a substantial showing of the denial of a constitutional right has 3 not been made in this case. 4 Conclusion 5 Accordingly, IT IS HEREBY RECOMMENDED that: 6 1. Petitioner’s first amended petition (ECF No. 13) should be denied on its merits; and 7 2. The District Court decline to issue a certificate of appealability. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(l). Within twenty-one days 10 after being served with these findings and recommendations, any party may file written 11 objections with the court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections 13 shall be served and filed within fourteen days after service of the objections. The parties are 14 advised that failure to file objections within the specified time may waive the right to appeal the 15 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 DATED: November 30, 2020 /s/ Gregory G. Hollows [17] UNITED STATES MAGISTRATE JUDGE