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ABARCA v. RYAN

United States District Court, S.D. California


September 20, 2005.

JOSE ABARCA, Petitioner,
v.
STUART J. RYAN, Warden, Respondent.

The opinion of the court was delivered by: BARBARA MAJOR, Magistrate Judge

REPORT AND RECOMMENDATION FOR ORDER GRANTING MOTION TO DISMISS HABEAS PETITION WITH PREJUDICE
This Report and Recommendation is submitted to Chief United States District Judge Irma E. Gonzalez pursuant to 28 U.S.C. § 636(b) and Local Civil Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California.

On January 4, 2005, Jose Abarca ("Petitioner" or "Abarca"), a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus ("Petition") challenging his conviction pursuant to 28 U.S.C. § 2254. Respondent filed an Answer on February 24, 2005, and Petitioner filed a Traverse on March 11, 2005. On May 12, 2005, the Court ordered Respondent to submit a supplemental brief and lodgments. On May 27, 2005, Respondent moved to dismiss the Petition as unexhausted and procedurally defaulted. On June 13, 2005, Petitioner opposed Respondent's motion. For the reasons set forth below, this Court recommends that Respondent's motion be GRANTED and the instant Petition dismissed.

  FACTUAL AND PROCEDURAL BACKGROUND

  A. Conviction

  On March 30, 2001, Petitioner and Rosalino Guadarrama ("Guadarrama"), both armed with handguns, held up a restaurant. Lodgment 5 at 2. A kitchen employee, Luis Santa ("Santa");*fn1 another employee, Maria Puentes ("Puentes"); and two customers, Beatrice Sacay ("Sacay") and Jose Leon ("Leon"), were among those present. Id. When Guadarrama pointed a gun at Puentes, she showed him that the restaurant's money was hidden inside a coffee can and he took the money. Id. Guadarrama also pointed the gun at Santa, who heard a click, though the weapon did not fire. Id. Puentes escaped, and Abarca and Guadarrama ordered everyone else into a restroom. Id. Sacay complied, leaving behind her purse, which contained a check belonging to Leon. Id. Guadarrama and Abarca took both the purse and the check. Id. Police pursued and arrested Abarca and Guadarrama as they fled in a vehicle driven by Abarca. Id. at 2-3.

  On November 21, 2001, the San Diego County District Attorney filed an amended information charging Petitioner and Guadarrama with nine crimes related to the hold up. Lodgment 1 at 1-2. On December 12, 2001, Petitioner waived his right to a jury trial and submitted the matter to the court on the preliminary hearing transcripts and exhibits. Id. at 102. On December 14, 2001, the trial court found Petitioner guilty of the lesser included offense of assault with a firearm (Cal. Pen. Code § 245(a) (2)), reckless driving to evade arrest (Cal. Veh. Code § 2800.2(a)), four counts of robbery while personally armed with a firearm (Cal. Pen. Code §§ 211, 12022.53(b)), and two counts of false imprisonment (Cal. Pen. Code §§ 236-37(a)). Lodgment 1 at 104. Petitioner and Guadarrama were specifically convicted of robbing Santa in Count 3 and Leon in Count 7. Id. at 3-4. The court sentenced both Petitioner and Guadarrama to three-year prison terms for Count 3, consecutive one-year terms for another robbery count, and two consecutive ten-year enhancements for firearm use, for a total of twenty-four years in prison each.*fn2 Lodgment 5 at 2.

  B. Direct Review

  Both Petitioner and Guadarrama appealed the consecutive sentence enhancements. Id. Guadarrama also appealed his robbery convictions on charged in Counts 3 and 7, claiming insufficiency of the evidence. Id. Regarding Count 3, Guadarrama claimed that there was no evidence that he took property from Santa because Santa was not responsible for handling money at the restaurant. Id. Regarding Count 7, Guadarrama argued that there was no evidence that he took property from Leon because Leon's check was taken from Sacay's unattended purse. Id. at 4. Petitioner did not join Guadarrama in these insufficiency of the evidence claims, despite their joint appeal.*fn3 Id. at 3. On May 29, 2003, the California Court of Appeal, Fourth Appellate District, issued an opinion addressing both Petitioner and Guadarrama's appellate claims. Id. at 1-2. The court reduced Petitioner and Guadarrama's consecutive enhanced sentences, modifying their sentences to a total of seventeen years and four months each. Id. at 5. The court also affirmed Guadarrama's convictions on robbery Counts 3 and 7. Id.

  Petitioner did not seek direct review in the California Supreme Court. Pet. Writ Habeas Corpus at 2 ("Pet."); Lodgment 8 at 5; Lodgment 10 at 5. However, Guadarrama filed a petition for review in the California Supreme Court on July 9, 2003. Lodgment 6 at 1. The California Supreme Court denied Guadarrama's petition, but in doing so it captioned the case "THE PEOPLE, Plaintiff and Respondent, v. JOSE ABARCA et al., Defendants and Appellants." Lodgment 7.

  Petitioner did not file a petition for certiorari in the United States Supreme Court. Pet. at 3.

  C. State Collateral Review

  On January 14, 2004, Petitioner filed a Petition for a Writ of Habeas Corpus in the California Court of Appeal. Lodgment 8 at 1. In that petition, Petitioner raised the same insufficiency of the evidence claim regarding the robbery as charged in Counts 3 and 7 that Guadarrama raised on direct review and that the California Court of Appeal rejected. Id. at 3; Lodgment 9. The court took judicial notice of its earlier decision on direct review and found that Petitioner's habeas claim was identical to Guadarrama's appellate claim. Lodgment 9. The court denied the petition, citing In re Harris, 5 Cal. 4th 813, 829 (claims "actually raised and rejected on appeal cannot be renewed in a petition for a writ of habeas corpus"). Lodgment 9. On February 5, 2004, Petitioner filed a Petition for a Writ of Habeas Corpus in the California Supreme Court. Lodgment 10 at 1. This petition repeated the insufficiency of the evidence claim Petitioner raised in the Court of Appeal. Compare Lodgment 8 at 3, 7-11 with Lodgment 10 at 3, 7-11. On December 1, 2004, the California Supreme Court summarily denied the petition citing In re Lindley, 29 Cal. 2d 709 (1947) and In re Dixon, 41 Cal. 2d 756 (1953). Lodgment 11.

  D. Federal Review

  Petitioner filed the instant Petition on January 4, 2005. Pet. at 1. In this Petition, Petitioner raises the same insufficiency of the evidence claim regarding the robbery as charged in Counts 3 and 7 that he asserted on state habeas appeal. Compare id. at 6, 10-14 with Lodgment 8 at 3, 7-11, and Lodgment 10 at 3, 7-11. Respondent answered on February 24, 2005. Doc. No. 5 at 1 ("Answer"). Petitioner filed a Traverse on March 11, 2005. Doc. No. 9 at 1 ("Traverse"). In the Traverse, Petitioner asserts for the first time that the lack of sufficient evidence regarding Counts 3 and 7 resulted in a federal due process violation. Id. at 3.

  Also on February 24, 2005, Respondent mistakenly lodged the confusingly-captioned California Supreme Court decision in Guadarrama's appeal, see "Direct Review" section supra, in support of Respondent's conclusion that Petitioner had exhausted his state court remedies. See Answer at 4; Lodgment 7; Pet. at 2; Lodgment 8 at 5; Lodgment 10 at 5. On May 12, 2005, this Court found that Respondent had not

 

provided an adequate record to support his conclusion that Petitioner (1) fairly presented a federal claim to the state supreme court, (2) exhausted his claim, and (3) raised his claim on direct appeal such that this Court need not consider the procedural bar imposed by the California Supreme Court on habeas review. Doc. 11 at 7. The Court, therefore, ordered Respondent to submit a supplemental brief and lodgments. Id.
  Instead, Respondent filed the instant motion to dismiss the Petition on May 27, 2005. Doc. No. 12 ("Mot. to Dismiss"). Respondent submits that, although Petitioner's claim of insufficient evidence only alleges a violation of state law, when liberally construed it raises a federal constitutional question cognizable on federal habeas. Doc. No. 13 ("Supp. Mem."). However, Respondent further contends that, because Petitioner has not presented this federal aspect to the California Supreme Court, Petitioner's claim is unexhausted. Id. at 2-4. In addition, Respondent contends that Petitioner's claim is procedurally defaulted for failure to raise it on direct review. Id. at 4-8.

  On June 13, 2005, Petitioner filed a document entitled "Opposition to Respondent's Supplemental Briefing," which the Court construes as an opposition to Respondent's motion to dismiss. Doc. No. 15 at 1 ("Pet'r Opp'n"). Therein, Petitioner asserts that his insufficiency of the evidence claim raises a federal, constitutional question and that the possibility of a fundamental miscarriage of justice excuses his procedural default. See Pet'r Opp'n at 3.

  DISCUSSION

  A. Standard of Review

  Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a) (West 2000). B. Cognizibility of Petitioner's Claim

  As a preliminary matter, the Court first addresses the question of whether Petitioner has asserted a claim for which federal habeas relief is available. For the Court to consider Petitioner's claim, Petitioner must allege that he is in custody "in violation of the Constitution or laws or treaties of the United States." Id. Petitioner may do so by citing "provisions of the federal Constitution or . . . either federal or state case law that engages in a federal constitutional analysis." Fields v. Waddington, 401 F.3d 1018, 1021 (9th Cir. 2005). In the Petition, though Petitioner claims insufficiency of the evidence regarding Counts 3 and 7, he fails to cite any provisions of the Constitution or federal case law which would support a habeas claim. Pet. at 10-13. In the Traverse, however, Petitioner cites Jackson v. Virginia, 443 U.S. 307 (1979), Estelle v. McGuire, 502 U.S. 62 (1991), and United States v. Dixon, 509 U.S. 688 (1993), to assert that the trial court violated Petitioner's due process rights when it convicted him based on insufficient evidence. Traverse at 3. Due process violations stemming from insufficiency of the evidence are cognizable federal habeas claims. Mitchell v. Prunty, 107 F.3d 1337, 1340 n. 3 (9th Cir. 1997), overruled on other grounds by Santamaria v. Horsely, 133 F.3d 1242, 1248 (9th Cir. 1998) (en banc). The fact that Petitioner failed to raise the federal aspect of his claim until he filed the Traverse may preclude the Court from considering the claim if Respondent has not been afforded the opportunity to address it. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994) (holding that additional grounds for relief introduced in a traverse denied the respondent the opportunity to address them and, therefore, were neither properly before the district court nor cognizable on appeal); but see Boardman v. Estelle, 957 F.2d 1523, 1525 (9th Cir. 1992) (holding that the district court erred in failing to address claims made in a traverse). Here, because Respondent's instant motion specifically addresses this federal claim, the Court finds no prejudice to Respondent. Consequently, despite Petitioner's failure to initially state a federal claim in the Petition, the Court finds that Petitioner has alleged a federal violation sufficient to enable the Court to entertain the Petition.

  C. Exhaustion

  Petitioner not only failed to initially present his federal claim to this Court, he also failed to present it to the California courts. Lodgment 8 at 7-10; Lodgment 10 at 7-10. Respondent asserts that, as a result, Petitioner's federal claim is unexhausted and subject to dismissal. Mot. to Dismiss at 1.

  Federal habeas relief is only available to Petitioner if he "has exhausted the remedies available in the [state] courts. . . ." 28 U.S.C. § 2254(b)(1)(A). Generally, to meet this requirement, Petitioner must have already fairly presented his federal claim to the California Supreme Court. See Johnson v. Zenon, 88 F.3d 828, 829 (9th Cir. 1996). Here, when Petitioner petitioned the California Supreme Court for habeas review, Petitioner neglected to reference either the federal Constitution, federal law, or any federal cases. Lodgment 10 at 7-11. Therefore, Petitioner did not fairly present his claim to the California Supreme Court.

  However, when a procedural bar prevents the petitioner from seeking further relief in the state courts the petitioner is considered to have exhausted all available state remedies, regardless of whether the petitioner's claims were ever presented to the state supreme court. Gray v. Netherland, 518 U.S. 152, 161-162 (1996) (the requirement to present the claim only applies to remedies currently available). Here, as explained below, because Petitioner has procedurally defaulted on his claim, he is prohibited from seeking further post-conviction relief on this basis in the California courts. Consequently, this Court finds that he has exhausted his state court remedies regarding this claim.

  D. Procedural Default

  The same procedural default that exhausts Petitioner's state court remedies may, however, also prevent this Court from reaching the merits of the claim. Gray, 518 U.S. at 162. Respondent contends that Petitioner procedurally defaulted on his claim by failing to present it to the California courts on direct review. Supp. Mem. at 4-8. For this reason, Respondent asserts that the Court must dismiss the Petition. Id. at 4.

  A procedural default is a failure to comply with a state rule of procedure. Trest v. Cain, 522 U.S. 87 (1997). When that rule constitutes an adequate and independent state ground for reaching a decision concerning a petitioner's claims, a federal court may not address the claims unless the petitioner can show cause and prejudice or actual innocence. Wells v. Maass, 28 F.3d 1005, 1008 (9th Cir. 1994). "Once the state has adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner." Bennett v. Mueller, 322 F.3d 573, 586 (9th Cir. 2003). Here, Respondent asserts that two adequate and independent state procedural bars prevent this Court from hearing Petitioner's claims. Supp. Mem. at 6-8. Therefore, unless Petitioner successfully demonstrates that these procedural bars are not adequate or independent, this Court cannot reach the merits of his claim. See Wells, 28 F.3d at 1008. Alternately, if Petitioner demonstrates either cause and prejudice or actual innocence, the Court can excuse Petitioner's procedural default and review his claim. See id.

  1. The Lindley Bar

  First, Respondent argues that the California Supreme Court imposed a procedural bar when it cited Ex parte Lindley, 29 Cal. 2d 709 (1947). Supp. Mem. at 4, 6-7. Under Lindley, habeas review is not available for a claim of insufficient evidence; such a claim may only be raised on direct review. Lindley, 29 Cal. 2d at 723, 726; Carter v. Giurbino, 385 F.3d 1194, 1197 (9th Cir. 2004) (holding that "[a] petitioner who fails to exhaust sufficiency of the evidence claims in his direct appeal and raises them instead in a subsequent state habeas petition has procedurally defaulted those claims as a matter of California law). Here, Petitioner failed to raise his insufficiency of the evidence claim on direct review and instead raised it on habeas review. Lodgment 5 at 3-4; Lodgment 8 at 3; Lodgment 10 at 3. Since Petitioner cannot raise a claim of insufficiency of the evidence on habeas review, Petitioner procedurally defaulted on the claim when he failed to raise it on direct review, and the California courts were procedurally barred from hearing it in Petitioner's subsequent habeas petition.

  Petitioner also failed to present the federal aspects of his insufficiency of the evidence claim to the California courts. Since the Lindley bar prohibits Petitioner from bringing a claim of insufficiency of the evidence on habeas review, Petitioner also cannot return to state court to raise the federal aspects of this claim. Accordingly, the Court finds that Petitioner has defaulted on both the insufficiency of the evidence claim Petitioner actually brought and the federal aspect of the claim that he raises in the Traverse but failed to present to the California courts.

  Respondent further asserts that the Lindley bar provided an adequate and independent state ground for the California Supreme Court to have denied Petitioner's claim. The Ninth Circuit has held the Lindley bar to be adequate and independent state grounds for the California Supreme Court to deny a habeas claim. Carter, 385 F.3d at 1196. Because Petitioner has plead the existence of an adequate and independent state procedural bar, this Court may not review the claim unless Petitioner demonstrates either that the Lindley bar is not an adequate and independent state ground or that the Court may excuse the default. See Wells v. Maas, 28 F.3d 1005, 1008 (9th Cir. 1994).

  2. The Dixon Bar

  Respondent also contends that the California Supreme Court imposed a second procedural bar when it cited Ex parte Dixon, 41 Cal. 2d 756 (1953), in its denial of Petitioner's claim. Supp. Mem. at 7-8; Lodgment 11. The Dixon bar prevents a California court from hearing a claim in a habeas petition that could have been but was not raised on direct review.*fn4 See Dixon, 41 Cal. 2d at 759.

 

The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. Id. In this case, though Petitioner and Guadarrama jointly appealed their convictions, Petitioner did not join Guadarrama's claim of insufficiency of the evidence regarding Counts 3 and 7. Because Petitioner and Guadarrama appeared before the Court of Appeal together, the claim was plainly available to Petitioner as well. Indeed, it was Petitioner's lawyer who initially preserved this claim at trial by arguing that the persons robbed in Counts 3 and 7 were not in possession of the property stolen. Lodgment 2 at 23-27. Since Petitioner cannot raise a claim in state habeas that was available but not raised on direct review, Petitioner procedurally defaulted on his claim of insufficiency of the evidence and the California courts were procedurally barred from hearing it.
  Here, again, Petitioner failed to present the federal aspect of his claim to the California courts. The Court finds nothing in the record to indicate that the federal aspects of Petitioner's claim were not available when Petitioner submitted his appeal. In fact, all of the federal cases that Petitioner cites in support of his claim were decided by the Supreme Court at least a decade before Petitioner's direct review. See Traverse at 3. Since the Dixon bar prohibits Petitioner from raising a claim on habeas review that was available but not raised on direct review, it also bars Petitioner from raising this claim in federal court. Accordingly, the Court finds that Petitioner has defaulted on both the insufficiency of the evidence claim Petitioner actually brought and the federal aspects of the claim that he raised in the Traverse but failed to present to the California courts.

  Respondent further asserts that the Dixon bar is an adequate and independent state ground for the California Supreme Court to deny Petitioner's claim, which, therefore, bars this Court from reviewing Petitioner's claim. Supp. Mem. at 7-8. This Court has already held the Dixon bar to be adequate and independent state grounds for the California Supreme Court to deny a habeas claim. Protsman v. Pliler, 318 F. Supp. 2d 1004, 1013-14 (S.D. Cal. 2004) (Whelan). Because Petitioner has plead that the California Supreme Court imposed an adequate and independent state procedural bar to deny Petitioner's claim, this Court may not review the claim unless Petitioner demonstrates either that the Dixon bar is not an adequate and independent state ground or that the Court may excuse the default. See Wells, 28 F.3d at 1008.

  E. Overcoming Procedural Default

  Since Respondent has plead the existence of two adequate and independent procedural bars, Lindley and Dixon, the burden now shifts to Petitioner to demonstrate that these procedural bars should not apply. Bennett, 322 F.3d at 586. Petitioner may do so by challenging the adequacy or independence of the procedural bars. Wells, 28 F.3d at 1008. Alternatively, Petitioner can overcome the procedural default altogether by demonstrating cause and prejudice or actual innocence. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Wells, 28 F.3d at 1008.

  1. Independence and Adequacy of the Lindley and Dixon Bars

  Petitioner may challenge either the adequacy or the independence of the Lindley and Dixon bars to demonstrate that they should not prevent this Court from reaching the merits of his claim. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). To challenge the adequacy, Petitioner must assert "specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule." Bennett, 322 F.3d at 586. Here, Petitioner neither argues that the Lindley and Dixon procedural bars are not consistently applied, nor supplies any facts or law to support such arguments. Furthermore, nothing in the record or briefing suggests that these procedural bars are inconsistently applied. Consequently, Petitioner has failed to demonstrate the inadequacy of the Lindley and Dixon procedural bars.

  Petitioner also has failed to demonstrate that these procedural bars are not independent. "For a state procedural rule to be `independent,' the state law basis of the decision must not be interwoven with federal law." La Crosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001) citing Michigan v. Long, 463 U.S. 1032, 1040-41 (1983). Again, Petitioner has failed to claim that the Lindley and Dixon bars are not independent of federal law, to state facts supporting such arguments, or to cite any authority stating that these bars are interwoven with federal law. Also, nothing in the record or briefing indicates that the application of these bars was interwoven with federal law. As a result, Petitioner has failed to show that the Lindley and Dixon bars are not independent.

  Because Petitioner has failed to demonstrate that the Lindley and Dixon bars are inadequate or dependent upon federal law, he has not carried his burden of demonstrating that his federal claims are not procedurally barred by Lindley and Dixon. Accordingly, the Court finds that the Lindley and Dixon bars are each adequate and independent, that Petitioner procedurally defaulted his insufficiency of the evidence claim when he failed to raise it on direct appeal, and that Petitioner's procedural default bars this Court from reviewing his claim in the absence of excuse. 2. Cause and Prejudice or Actual Innocence

  Since Petitioner's claim is procedurally defaulted, the Court may only reach the merits if Petitioner can demonstrate either cause and prejudice or actual innocence. Wells, 28 F.3d at 1009.

  a. Cause and Prejudice

  The Court may excuse Petitioner's default if Petitioner can demonstrate a cause for his procedural default. Id. "`Cause' under the cause and prejudice test must be something external to the petitioner, something that cannot fairly be attributed to him. . . ." Coleman, 501 U.S. at 753 (emphasis in original). Petitioner makes no reference to any external factor which caused him to default on his claim. However, Petitioner's habeas petitions to the California Court of Appeal and the California Supreme Court both imply that ineffective assistance of counsel may be the cause. Lodgment 8 at 5; Lodgment 10 at 5. Regardless, Petitioner does not state any facts or law to support this implied argument, nor does the Court find any in the record. Because Petitioner fails to make any argument for an external cause for his procedural default, the Court finds that Petitioner has failed to establish cause sufficient to excuse his default and that the Court, therefore, need not address prejudice.*fn5 Engle v. Isaac, 456 U.S. 107, 134 (1982). b. Actual Innocence

  The Court may also reach the merits of Petitioner's claim if Petitioner can demonstrate that the Court's failure to do so would result in a fundamental miscarriage of justice. Wells, 28 F.3d at 1009. To demonstrate a miscarriage of justice, Petitioner must offer new, reliable evidence of an alleged constitutional error that probably resulted in the conviction of an innocent person. Schlup v. Delo, 513 U.S. 298, 324, 327 (1995). This evidence must be factual and indicate actual innocence, "as opposed to legal innocence as a result of legal error." Gandarela v. Johnson, 286 F.3d 1080, 1085 (9th Cir. 2001) citing Schlup, 513 U.S. at 321. Here Petitioner offers no factual evidence that was not presented at his trial. Nor does the Court find anything in the record to indicate that such evidence exists. Instead, Petitioner asserts that the trial court misapplied the law regarding the taking required for robbery in Counts 3 and 7 of his conviction. Pet. Opp'n at 2. Because Petitioner merely asserts a legal error and does not present new evidence the Court finds that Petitioner has not adequately demonstrated a fundamental miscarriage of justice that would excuse his procedural default.

  CONCLUSION

  In sum, the Court finds that Petitioner raised a cognizable federal claim by citing to Jackson v. Virginia, 443 U.S. 307 (1979), Estelle v. McGuire, 502 U.S. 62 (1991), and United States v. Dixon, 509 U.S. 688 (1993), in his traverse. The Court also finds that this claim is procedurally defaulted under the Lindley and Dixon bars and that the claim is exhausted. Furthermore, the Court finds that the Lindley and Dixon bars are adequate and independent state grounds for the California Supreme Court to deny Petitioner's claim and, therefore, bar this Court from hearing the claim. Finally, the Court finds that Petitioner has not demonstrated either cause and prejudice or actual innocence to excuse his procedural default. Because the Court finds that Petitioner has procedurally defaulted his claim and has failed to demonstrate either cause and prejudice or actual innocence to excuse the default, the Court recommends granting Respondent's Motion to Dismiss the Petition.

  RECOMMENDATION

  For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that the Court issue an Order: (1) approving and adopting this Report and Recommendation; (2) granting Respondent's Motion to Dismiss the Petition; and (3) dismissing this action in its entirety with prejudice.

  IT IS ORDERED that no later than October 20, 2005, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."

  IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than November 20, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998).

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