1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID JOHNSON, Case No.: 19cv1673-LAB(KSC)

12 Petitioner, REPORT AND RECOMMENDA- 13 v. TION RE FIRST AMENDED PETITION FOR WRIT OF HABEAS 14 KATHLEEN ALLISON, Secretary, CORPUS [Doc. No. 29.] 15 Respondent. 16 17 Petitioner David Johnson, a state prisoner proceeding pro se, filed a Petition for 18 Writ of Habeas Corpus [Doc. No. 1] and a First Amended Petition [Doc. No. 29], 19 challenging his sentence in San Diego Superior Court Case No. SCD 237392. [Doc. Nos. 20 1, 29.] The First Amended Petition raises one claim—whether there was sufficient 21 evidence to establish that petitioner’s two prior convictions for assault with a deadly 22 weapon qualify as serious violent felonies and strikes under California’s Three Strikes 23 Law. [Doc. No. 29. at pp. 14-27.] Respondent has filed an Answer and Response to the 24 First Amended Petition. [Doc. No. 35.] 25 This Court has carefully reviewed the First Amended Petition (“Petition”) and its 26 supporting documents and Respondent’s Answer and its supporting documents. For the 27 reasons outlined below, IT IS HEREBY RECOMMENDED that the District Court 28 DENY the Petition. 1 PROCEDURAL HISTORY 2 After a retrial, Petitioner was convicted by a jury in case No. SCD 2737392 of the 3 following offenses: (1) first degree robbery with personal use of a knife; (2) first degree 4 burglary with personal use of a knife; (3) assault with a deadly weapon by means likely to 5 produce great bodily injury and with personal use of a knife; and (4) felony false 6 imprisonment with personal use of a knife. [Doc. No. 12-11, at p. 2; Doc. No. 12-2, at 7 pp. 152-155.] Petitioner waived his right to a jury trial on prior conviction allegations. 8 At a bench trial, the trial court found petitioner had two prior convictions that qualified as 9 strikes and serious felonies and had served four prior prison terms. [Doc. No. 12-11, at 10 p. 13; Doc. No. 12-6, at pp. 159-168; Doc. No. 29, at p. 14.] As a result, petitioner was 11 sentenced to “a Three Strikes term” of 25 years to life plus 17 years in prison “consisting 12 of a 25-year-to-life sentence on count 1, 10 years for the two serious felony prior 13 convictions, four years for the prior prison terms, one year for the knife-use enhancement, 14 and two years for the on-bail enhancement.” [Doc. No. 12-11, at pp. 2, 13; Doc. No. 29, 15 at p. 14.] 16 Petitioner appealed to the California Court of Appeal raising four arguments, 17 including the argument there was insufficient evidence to establish that his prior 18 convictions for assault with a deadly weapon qualified as strikes and serious violent 19 felonies. [Doc. No. 12-8, at pp. 49-59.] In an unpublished opinion, the California Court 20 of Appeal rejected petitioner’s argument that the trial court’s findings on the prior strikes 21 and serious felonies were not supported by substantial evidence. [Doc. 12-11, at p. 13- 22 25.] However, the California Court of Appeal reversed the true finding on petitioner’s 23 first prior prison conviction and remanded for the limited purpose of clarifying whether 24 his 1995 conviction for possession of a controlled substance qualified as a prison prior 25 under state law. [Doc. 12-11, at pp. 27, 29.] In all other respects, the judgment was 26 affirmed. [Doc. 12-11, at p. 29.] 27 Petitioner then filed a petition for review in the California Supreme Court raising 28 two arguments, including the argument there was insufficient evidence to establish that 1 his prior convictions for assault qualified as serious felony priors and strikes under 2 California’s Three Strikes Law. [Doc. No. 12-12, at pp. 25-38.] The California Supreme 3 Court granted review but deferred consideration pending the disposition of People v. 4 Gallardo,

(2017). However, the California Supreme Court ultimately 5 dismissed the petition on August 29, 2018. [See Doc. No. 12-13.] 6 Petitioner then filed a petition for writ of certiorari in the United States Supreme 7 Court. [Doc. No. 12-14, at p. 1.] This petition was denied on February 19, 2019. [Doc. 8 No. 12-14, at p. 2.] 9 On January 8, 2019, petitioner filed his first Petition for Writ of Habeas Corpus in 10 San Diego Superior Court. [Doc. No. 12-15.] Petitioner raised two arguments, one of 11 which requested a modification of his sentence. In this regard, petitioner cited California 12 Senate Bill No. 1393, and argued that the trial judge should modify his sentence by 13 striking or dismissing prior serious felony enhancements. [Doc. 12-15, at p. 3.] On this 14 issue, the San Diego Superior Court determined that Senate Bill No. 1393 was 15 inapplicable because petitioner’s case was final before the bill went into effect. [Doc. 16 No. 12-16, at pp. 5-6.] The San Diego Superior Court denied the Petition. Id. at 8. 17 Subsequently, on April 29, 2019, Petitioner filed his second Petition for Writ of 18 Habeas Corpus (hereafter “Second State Petition”) in San Diego Superior Court. [Doc. 19 No. 12-17.] This time petitioner argued that he qualified for a modification of his 20 sentence under Senate Bill No. 1393, because his case was not yet final when the bill 21 went into effect since there was no judgment on his Petition in the Supreme Court of the 22 United States. Id. at 4, 6. On September 16, 2019, the San Diego Superior Court granted 23 petitioner’s request for reconsideration of his sentence “to the extent permitted under 24 Senate Bill 1392” and scheduled a hearing for October 7, 2019. [Doc. No. 12-22, at pp. 25 2, 8.] 26 On August 30, 2019, while petitioner was still awaiting a ruling on his Second 27 State Petition, he filed his first Federal Petition for Writ of Habeas Corpus in this Court. 28 [Doc. No. 1.] In his original Federal Petition, Petitioner raised only two claims. The first 1 claim involved an alleged instructional error by the trial court. [Doc. No. 1, at pp, 18-33.] 2 The second claim in the original Federal Petition challenged the sufficiency of the 3 evidence to establish that his prior convictions for assault qualified as strikes and serious 4 felonies under California law. [Doc. No. 1, at pp. 35-48.] Respondent then moved to 5 dismiss the original Federal Petition under the Doctrine of Abstention, arguing that 6 petitioner’s conviction was not yet final, because he was still waiting for the San Diego 7 Superior Court to reconsider his sentence. [Doc. No. 11-1.] In an Order filed on June 8, 8 2020, the District Court agreed with respondent and dismissed the original Federal 9 Petition without prejudice to petitioner refiling a new petition with exhausted claims after 10 the judgment in state court was final and before the expiration of the one-year statute of 11 limitations. [Doc. No. 21, at p. 2.] 12 On September 3, 2019, after he filed his original Federal Petition and while he was 13 awaiting a hearing and final ruling on his Second State Petition, petitioner filed a third 14 Petition for Writ of Habeas Corpus (“Third State Petition”) in San Diego Superior Court. 15 [Doc. No. 12-21.] Once again, petitioner argued in this Third State Petition that there 16 was insufficient evidence to establish that his prior convictions for assault qualified as 17 strikes and serious violent felonies under California law. [Doc. No. 12-21, at p. 3.] On 18 September 26, 2019, the San Diego Superior Court denied this Third State Petition citing 19 two reasons. [Doc. No. 12-23, at p. 11.] First, the same claim was rejected on direct 20 appeal and there were no material changes or special circumstances that would permit 21 petitioner to raise the claim again. [Doc. No. 23, at p. 10.] Second, even if petitioner 22 could justify re-litigation of this claim, it would fail on the merits, because there was 23 sufficient evidence to find that petitioner’s prior convictions were strikes and serious 24 felonies. [Doc. No. 23, at p. 11.] 25 On October 14, 2021, petitioner filed his First Amended Federal Petition. ]Doc. 26 No. 29.] The First Amended Federal Petition includes only one claim: whether there 27 was sufficient evidence to establish that petitioner’s two prior convictions for assault with 28 a deadly weapon qualify as strikes and serious violent felonies under California law. In 1 support of this contention, petitioner cites the Supreme Court’s decision in Descamps v. 2 United States,

(2013). He argues that the trial court’s determination on 3 these two prior convictions is inconsistent with Descamps, because it involved “judicial 4 fact-finding beyond the elements of the actual prior conviction[s].” [Doc. No. 29, at 14- 5 27.] Respondent filed an Answer to the First Amended Federal Petition, along with a 6 Memorandum of Points and Authorities arguing that the District Court should dismiss the 7 Petition for failure to state a claim and for lack of merit. [Doc. No. 35-1.] 8 FACTUAL BACKGROUND 9 Based on a summary of the facts set forth in the California Court of Appeal’s 10 unpublished decision of October 28, 2016, petitioner entered the hotel room of Lindsey 11 Gardini with his friend, Samantha, during a September night in 2011. [Doc. No. 12-11, 12 at 4]. While Samantha went through Gardini’s belongings, petitioner held Gardini down, 13 choked her, forced a knife down her throat, and threatened to inject her with a drug and 14 leave her to die.

Gardini was able to briefly escape, but petitioner and Samantha 15 caught her.

Petitioner and Samantha then hog tied Gardini and left her gagged under 16 a blanket.

Gardini eventually freed herself and reported the incident to the manager. 17 Id. at 5. Shortly after, the incident was reported to the police. Id. Four days into the 18 investigation, the police found petitioner in a hotel room with Gardini’s belongings. Id. 19 Discussion 20 I. Standard of Review. 21 Federal habeas corpus relief is available only to those who are in custody in 22 violation of the Constitution or laws of the United States.

(a). “A 23 federal court may not issue the writ on the basis of a perceived error of state law.” Pulley 24 v. Harris,

(1984). “[A] mere error of state law is not a denial of due 25 process.” Engle v. Isaac,

, 121 n.21 (1982) (internal quotations omitted). 26 This Petition is governed by the provisions of the Antiterrorism and Effective 27 Death Penalty Act of 1996 (“AEDPA”). Lindh v. Murphy,

(1997). 28 AEDPA imposes a “highly deferential standard for evaluating state-court rulings, which 1 demands that state-court decisions be given the benefit of the doubt.” Woodford v. 2 Visciotti,

(2002) (internal citations and quotations omitted). Under 3 Section 2254(d) of AEDPA, a habeas petition “on behalf of a person in custody pursuant 4 to the judgment of a State court shall not be granted with respect to any claim that was 5 adjudicated on the merits in State court proceedings unless the adjudication of the claim- 6 - (1) resulted in a decision that was contrary to, or involved an unreasonable application 7 of, clearly established Federal law, as determined by the Supreme Court of the United 8 States; or (2) resulted in a decision that was based on an unreasonable determination of 9 the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. 10 § 2254(d)(l) &(2). 11 For purposes of Section 2254(d)(l), “clearly established Federal law” means “the 12 governing legal principle or principles set forth by the Supreme Court at the time the state 13 court renders its decision.” Lockyer v. Andrade,

(2003). Therefore, a 14 lack of controlling Supreme Court precedent can preclude habeas corpus relief. Wright v. 15 Van Patten,

(2008) (concluding that the state court’s decision did not 16 unreasonably apply clearly established Supreme Court law, because the relevant cases 17 provided “no clear answer to the question presented”). 18 The AEDPA standard is highly deferential and “difficult to meet.” Harrington v. 19 Richter,

(2011). Federal habeas relief may be granted under the 20 “contrary to” clause of Section 2254 if the state court applied a rule different from the 21 governing law set forth in Supreme Court cases, or if it decided a case differently than the 22 Supreme Court “on a set of materially indistinguishable facts.” Bell v. Cone,

685, 694 (2002). The focus of inquiry under the “contrary to” clause is “whether the state 24 court’s application of clearly established federal law is objectively unreasonable.” Id. 25 “[A]n unreasonable application is different from an incorrect one.” Id. In other words, 26 Federal habeas relief cannot be granted simply because a reviewing court concludes 27 based on its own independent judgment that the state court decision is erroneous or 28 incorrect. Id. Habeas relief is only available under Section 2254(d)(l) “where there is no 1 possibility fair minded jurists could disagree that the state court’s decision conflicts” with 2 Supreme Court precedent. Harrington v. Richter,

. In addition, “review 3 under§ 2254(d)(l) is limited to the record that was before the state court that adjudicated 4 the claim on the merits.” Cullen v. Pinholster,

(2011). 5 To be objectively reasonable, a state court’s decision need not specifically cite or 6 rely on Supreme Court precedent. “[S]o long as neither the reasoning nor the result of 7 the state-court decision contradicts [Supreme Court precedent],” the state court’s decision 8 will not be “contrary to clearly established Federal law.” Early v. Packer,

, 8 9 (2002). 10 Where, as here, there is no reasoned decision from the California Supreme Court, 11 this Court “looks through” to the underlying appellate court decision and presumes it 12 provides the basis for the higher court’s denial of a claim or claims. Ylst v. Nunnemaker, 13

(1991). 14 II. Petitioner’s Sentencing Error Claim. 15 Petitioner contends that “as a matter of existing California law,” the prosecution 16 presented evidence that was inadequate for the trial court to conclude that his two prior 17 assault convictions qualify as prior strikes and serious felonies. [Doc. No. 29, at p. 14.] 18 Petitioner also contends that the trial court’s determination on these two prior assault 19 convictions involved “judicial fact-finding beyond the elements of the actual prior 20 conviction[s]” that is inconsistent with the Supreme Court’s decision in Descamps v. 21 United States,

. [Doc. No. 29, at pp. 14-27.] 22 Respondent argues that the Petition should be “summarily rejected,” because it 23 only involves a matter of state sentencing law and does not raise a cognizable claim on 24 Federal habeas review. [Doc. No. 35-1, at p. 6.] Respondent also argues that the trial 25 court relied on sufficient evidence to conclude that petitioner incurred the prior strikes 26 and serious felonies and did not engage in any improper “fact-finding” that violates or is 27 inconsistent with Descamps,

, or the Sixth Amendment right to a jury 28 trial. [Doc. No. 35-1, at pp. 5-8.] 1 The record shows that the trial court advised petitioner he had a right to have the 2 jury decide the allegations regarding his prior convictions, and petitioner responded that 3 he intended to “give up” that right and to have a bench trial on the priors. [Doc. No. 12- 4 6, at p. 134-135; Doc. No. 29, at p. 19.] At the bench trial on the priors, the prosecution 5 presented identification evidence in the form of fingerprints, as well as court records, to 6 support the allegations that petitioner’s prior assault convictions qualify as strikes and 7 serious felonies. [Doc. No. 12-6, at pp. 149-168; Doc. No. 12-11, at pp. 13-25.] Based 8 on this evidence, the trial court concluded that petitioner had indeed incurred the prior 9 strike convictions and two serious felony convictions. [Doc. No. 12-6, at p.157; Doc. No. 10 12-11, at p. 13.] 11 On direct appeal, petitioner challenged the sufficiency of the evidence to support 12 the prior strikes and serious felony convictions from Case Nos. TA040857 and TA05809. 13 [Doc. No. 12-11, at p. 13.] The California Court of Appeal reviewed the evidence 14 presented to the trial court by the prosecution and concluded the trial court’s findings on 15 these prior convictions were supported by substantial evidence. [Doc. No. 12-11, at pp. 16 13-25.] In a footnote, the California Court of Appeal also concluded petitioner forfeited 17 an argument made for the first time in his reply brief – that the trial court’s use of 18 “comments at the sentencing hearing in Case No. TA065809” to establish the “serious 19 felony” nature of the prior conviction violated his rights under the Sixth Amendment 20 based on Descamps v. U.S.,

. [Doc. No. 12-11, at p. 22.] 21 To the extent petitioner contends he was sentenced in violation of “existing 22 California law,” his claim is not cognizable on Federal habeas review. As noted above, 23 Federal Courts may “entertain an application for a writ of habeas corpus in behalf of a 24 person in custody pursuant to the judgment of a State court only on the ground that he is 25 in custody in violation of the Constitution or laws or treaties of the United States.” 26

(emphasis added). “Absent a showing of fundamental unfairness, a state 27 court’s misapplication of its own sentencing laws does not justify federal habeas relief.” 28 1 Christian v. Rhode,

(9th Cir. 1994). In this regard, petitioner has failed 2 to state a claim for which Federal habeas relief could be granted. 3 Additionally, based on a review of the record, it is this Court’s view that the 4 California Court of Appeal reasonably rejected petitioner’s sentencing error claim to the 5 extent it is based on Federal law as set forth by the Supreme Court in Descamps, 570 U.S 6 at 254. First, Descamps, for the most part, does not apply in this case, because it involves 7 a matter of statutory construction that arises when a Federal defendant who has incurred 8 prior convictions is sentenced in Federal Court under a Federal law known as the Armed 9 Career Criminal Act (ACCA). Id. at 257-258. 10 Similar to California’a Three Strikes Law, the ACCA “increases the sentence of a 11 defendant who has three ‘previous convictions’ for a violent felony. . . .” Id. at 267. 12 Under the ACCA, for example, a prior conviction for burglary can be used to increase a 13 sentence if “the elements of the statute forming the basis of the defendant’s [prior] 14 conviction . . . are the same as, or narrower than “the elements of the ‘generic’ crime” of 15 burglary as it is commonly understood. Id. at 257. Sometimes this determination is 16 complicated by a “divisible statute” that “sets out one or more elements of the offense in 17 the alternative—for example, stating that burglary involves entry into a building or an 18 automobile.” Id. at 257 (emphasis in original). Under these circumstances, “[a] later 19 sentencing court cannot tell, without reviewing something more, if the defendant’s 20 conviction was for the generic (building) or non-generic (automobile) form of burglary.” 21 Id. at 262. Therefore, to determine whether a defendant has a qualifying prior conviction, 22 Federal sentencing courts apply what the Supreme Court calls the “modified categorical 23 approach,” which allows a sentencing court “to consult a limited class of documents, to 24 determine which alternative formed the basis of the defendant’s [prior] conviction.”1 Id. 25

26 27 1 This “limited class of documents” includes but is not limited to charging documents, indictments, jury instructions, jury verdicts, plea agreements, and transcripts 28 1 Based on these additional documents, “[t]he court can then do what the categorical 2 approach demands: compare the elements of the crime of conviction . . . with the 3 elements of the generic crime,” so that the sentencing court can “determine which 4 statutory phrase was the basis for the conviction.” Id. at 257, 263. Then, if the prior 5 conviction is based on burglary of a building, the defendant’s sentence can be enhanced 6 under the ACCA. Id. 7 The defendant in Descamps had a prior conviction for burglary based on a guilty 8 plea to California Penal Code Section 459, which, in contrast to the “generic” form of 9 burglary recognized under the ACCA, did not require proof on the elements of “breaking 10 and entering.” Id. at 260. To determine whether the defendant’s prior burglary 11 conviction qualified as a “violent felony” under the ACCA, the trial court reviewed the 12 transcript of the plea hearing to find out whether the defendant “admitted the elements of 13 a generic burglary.” Id. On the record during the plea hearing, the prosecutor stated on 14 the record that the crime involved “breaking and entering” into a store, and the defendant 15 did not object to the statement, so it was not clear whether he was pleading guilty to the 16 “generic (building) or non-generic (automobile) form of burglary.” Id. Based on the 17 prosecutor’s statement and the defendant’s failure to object, the sentencing court 18 concluded the burglary qualified as a “violent felony” under the ACCA despite the 19 difference in the elements of burglary under Section 459 and “generic” burglary under 20 the ACCA. Id. The Supreme Court disagreed, concluding that a conviction for burglary 21 under California’s Section 459 “is never for generic burglary” under the ACCA, because 22 it does not require proof of the elements of breaking and entering, so the defendant’s 23 sentence should not have been enhanced under the ACCA. Id. at 277-278. According to 24 the Supreme Court, it was error to “look behind” the defendant’s underlying conviction 25 using a “facts-based inquiry” to find evidence that he committed the generic offense of 26 burglary. Id. at 278. 27 Although Descamps mainly involves statutory interpretation of the ACCA, the 28 Supreme Court did acknowledge in a single paragraph the “Sixth Amendment 1 underpinnings” of its “categorical approach.” Id. at 269. In this regard, the Supreme 2 Court cited its decision in Apprendi v. New Jersey,

(2000), which held as 3 follows: “Other than the fact of a prior conviction, any fact that increases the penalty for 4 a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a 5 reasonable doubt.”

Because the ACCA “indisputably increases the maximum 6 penalty,” the Supreme Court indicated that the “facts-based inquiry” taken in Descamps 7 “would (at the least) raise serious Sixth Amendment concerns if it went beyond merely 8 identifying a prior conviction.”

In other words, these concerns “counsel against 9 allowing a sentencing court to ‘make a disputed’ determination ‘about what the defendant 10 and state judge must have understood as the factual basis of the prior plea,’ or what the 11 jury in a prior trial must have accepted as the theory of the crime.”

12 Here, based on a review of the transcript of the hearing on petitioner’s prior 13 convictions, as well as the analysis included in the California Court of Appeal’s opinion, 14 there is nothing to indicate the trial court’s findings on the challenged prior strikes and 15 serious felonies is contrary to the Supreme Court’s decision in Descamps,

254. The trial court did not engage in a “facts-based inquiry” to determine whether 17 petitioner’s prior convictions were indeed assaults with a deadly weapon, which qualify 18 as strikes and serious felonies, rather than assaults committed “by means likely to 19 produce great bodily injury,” which do not.

. Rather, the trial court relied on 20 certified transcripts and other court records which clearly show petitioner incurred the 21 challenged prior serious felonies and strikes.2 [Doc. No. 12-6, at pp. 159-168; Doc. No. 22 12-11, at pp. 13-25.] 23

24 25 2 In fact, the trial court even acknowledged on the record that it could not consider evidence on disputed facts to make its finding. In this regard, the trial court stated as 26 follows during the trial on the priors: “[B]ut the inquiry on these prior situations is 27 you’re only limited to the court records. You couldn’t call a witness in to say, no, it didn’t happen that way, it happened this way. The case law is pretty clear on that.” 28 1 In Case No. TA040857, court records, including “the plea records” and “a 2 sentencing transcript,” indicated petitioner “pled to an Information, not a Complaint,” and 3 had been charged with “the crime of assault, great bodily injury, and with a deadly 4 weapon, in violation of 245(a)(1) . . . , namely, a baseball bat.” [Doc. No. 12-6, at 5 pp. 159, 161-165 (emphasis added).] The transcript of the plea hearing indicates 6 petitioner entered a “no contest plea” to Count 1 of the Information – “an assault with a 7 deadly weapon, a violation of 245(a).” [Doc. No. 12-6, at p. 165.] 8 In Case No. TA065809, which “went to trial,” the prosecutor presented the 9 complaint, verdict, court minutes, an abstract of judgment, and a sentencing transcript 10 indicating it was undisputed that petitioner committed an assault with a deadly weapon 11 “using a tire iron.” [Doc. No. 12-6, at pp. 160-161, 166-167; Doc. No. 12-11, at p. 19.] 12 The complaint alleged that petitioner assaulted the victim “with a deadly weapon, to wit, 13 a tire iron,” a serious felony, and the jury found petitioner guilty of “assault with deadly 14 weapon or by means likely to produce great bodily injury” upon the victim. During the 15 sentencing hearing, defense counsel stated in colloquy that “the jury’s verdict was such 16 that they found that a tire iron was used.” [Doc. No. 12-11, at p. 19-20.] In addition, the 17 abstract of judgment stated that petitioner was convicted of “ASLT DEADLY 18 WEAPN/INST.” [Doc. No. 12-11, at p. 21.] 19 For the reasons outlined above, IT IS RECOMMENDED that the District Court 20 DENY petitioner’s claim that the trial court relied on insufficient evidence in reaching its 21 conclusion that petitioner had two prior convictions for assault with a deadly weapon that 22 qualify as strikes and serious felonies under California law. To the extent petitioner 23 contends that the trial court’s determination of the two prior assault convictions violates 24 California law, his claim is not cognizable on Federal habeas review, because “a state 25 court’s misapplication of its own sentencing laws does not justify federal habeas relief.” 26 Christian v Rhode,

. In addition, to the extent petitioner’s claim is based 27 on the Supreme Court’s decision in Descamps, 470 U.S. at 254, there is nothing to 28 indicate the Court of Appeal’s rejection of this claim is based on an unreasonable | determination of the facts or is contrary to or an unreasonable application of clearly 2 || established Supreme Court law under Section 2254(d) of AEDPA. 3 Conclusion 4 Based on the foregoing, IT IS RECOMMENDED that the District Court DENY 5 || petitioner’s sentencing error claim and DISMISS the Amended Petition. [Doc. No. 29.] 6 || Petitioner’s allegations of sentencing error fail to state a claim, lack merit, and were 7 reasonably rejected by the California Court of Appeal. 8 This Report and Recommendation is submitted to the assigned United States 9 || District Judge pursuant to Title

(b), and Civil Local 10 Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of 11 || California. 12 IT IS HEREBY ORDERED that no later than May 25, 2022 any party to this 13 action may file and serve written objections to this Report and Recommendation. The 14 document should be captioned “Objection to Report and Recommendation.” 15 IT IS FURTHER ORDERED that any reply to the objection shall be filed and 16 ||served no later than June 8, 2022. The parties are advised that failure to file objections 17 || within the specified time may waive the right to raise those objections on appeal of this 18 Court order. Martinez v. Yist,

(9th Cir. 1991). 19 IT IS SO ORDERED. 20 ||Dated: April 26, 2022 A /; ) 21 WU LA SSS Hori. Karen S. Crawford United States Magistrate Judge 23 24 25 26 27 28

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