CAMILLE D. BIBLES, Magistrate Judge.
Petitioner Alex Sernas, proceeding pro se, filed a petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 28, 2018. Sernas has paid the filing fee in this matter. (ECF No. 6). Respondents docketed an answer to the petition for habeas corpus relief on October 11, 2018 (ECF No. 15 "Answer"), and Sernas docketed a reply to the Answer on December 12, 2018. (ECF No. 18).
A Yavapai County grand jury indictment charged Sernas with one count of transporting methamphetamine for sale and one count of possession of methamphetamine paraphernalia. (ECF No. 15-1 at 13).
The Arizona Court of Appeals summarized Sernas' criminal proceedings as follows:
State v. Sernas, 2012 WL 2470009, at *1 (Ariz. Ct. App. 2012). As noted, Sernas admitted his possession of the methamphetamine and argued a defense of entrapment at trial and after his conviction, including in his statements to the probation officer preparing the presentence report. (ECF No. 15-1 at 73, 75).
Sernas timely appealed his conviction and sentence, asserting the warrantless search leading to the discovery of the incriminating evidence violated the Fourth Amendment. Sernas, 2012 WL 2470009, at *1. "He also raise[d] arguments related to the [trial] court's reliance on his prior felony convictions and other aggravating circumstances for sentencing purposes," and challenge the jury instructions. Id. The Arizona Court of Appeals affirmed Sernas' conviction and sentence in a decision issued June 19, 2012. Id. at *5.
Inter alia, the appellate court stated:
Id. "Without deciding whether the trial court's reasoning [in denying the motion to suppress] was correct," the appellate court determined the search did not violate Sernas' Fourth Amendment rights because, it concluded, he was under arrest at the time of the search and there was probable cause for his arrest prior to the search. Id. at *1-2. Sernas was denied a writ of certiorari. Sernas v. Arizona, 571 U.S. 917 (2013).
Sernas filed a notice of state post-conviction relief pursuant to Rule 32, Arizona Rules of Criminal Procedure. (ECF No. 15-1 at 170-71). He asserted his trial counsel was ineffective for failing to challenge the reliability of the canine search in the suppression proceedings, citing State v. Sweeney, 227 P.3d 868 (Ariz. Ct. App. 2010). (ECF No. 15-1 at 171). The habeas trial court appointed counsel, but Sernas' Rule 32 petition was filed pro se. (ECF No. 15-1 at 174, 179-86). In his Rule 32 petition Sernas asserted there was no probable cause for the search of the vehicle or his person; his arrest violated his Fourth Amendment rights; and his trial counsel's performance was unconstitutionally ineffective, inter alia because counsel failed to argue Sernas was not read his Miranda rights "on-scene." (ECF No. 15-1 at 179-86). He further alleged his appellate counsel was ineffective. (Id.).
The state habeas trial court, which was also the convicting court, found "[a]ny issue regarding the trial Court's ruling regarding the Motion to Suppress" precluded by Rule 32.2 of the Arizona Rules of Criminal Procedure, because Sernas either raised the issue or could have raised the issue in his appeal. (ECF No. 15-1 at 204). The habeas trial court denied Sernas' ineffective assistance of counsel claims on the merits. (ECF No. 15-1 at 206). In denying Sernas' claim that his appellate counsel was ineffective for failing to raise the issue "of the K-9 reliability and records," the trial court stated: "Defendant admitted to the elements of the crimes, which was necessary to his original and continuing claim of entrapment. The reliability and training records of the K-9 are irrelevant to an entrapment defense." (Id.). The court also concluded appellate counsel's performance was not deficient nor prejudicial because counsel did not file a reply brief, determining a reply brief "would have served no function." (Id.).
Sernas sought review of the habeas trial court's decision. (ECF No. 15-1 at 211). The Arizona Court of Appeals granted review but denied relief, stating: ". . . the superior court issued a ruling that clearly identified, fully addressed, and correctly resolved the claims." State v. Sernas, 2016 WL 6962074, at *1 (Ariz. Ct. App. 2016). Sernas sought a writ of certiorari, which was denied on January 8, 2018. Sernas v. Arizona, 138 S.Ct. 676 (2018).
In his federal habeas petition Sernas asserts there was no probable cause to arrest him because the MI's information was unreliable. He further argues the arresting officers had time to obtain a search warrant, but nonetheless effected a pretextual canine search and a warrantless strip search, in violation of his constitutional rights. (ECF No. 1 at 6-12). He contends he was denied counsel at the time of his arrest and was not provided his Miranda warnings prior to a "functional interrogation," in violation of his right to due process. (ECF No. 1 at 13). Sernas also asserts a claim pursuant to Brady v. Maryland. (ECF No. 1 at 14-15). He further argues he was denied his right to the effective assistance of counsel throughout his trial, appellate, and post-conviction proceedings. (ECF No. 1 at 16).
Respondent allows the petition is timely and asserts Sernas's claims are "either not cognizable, unexhausted and procedurally defaulted without excuse, meritless, or waived and abandoned." (ECF No. 15 at 2).
The Court may not grant a writ of habeas corpus to a state prisoner on a claim adjudicated on the merits in state court unless the state court's decision denying the claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Harrington v. Richter, 562 U.S. 86, 98 (2011), quoting 28 U.S.C. § 2254(d). See also Lafler v. Cooper, 566 U.S. 166, 172-73 (2012). A state court decision is contrary to federal law if it applied a rule contradicting the governing law established by United States Supreme Court opinions, or if it reaches a different result from that of the Supreme Court on a set of materially indistinguishable facts. See, e.g., Brown v. Payton, 544 U.S. 133, 141 (2005); Yarborough v. Alvarado, 541 U.S. 652, 663 (2004). The state court's decision constitutes an unreasonable application of clearly established federal law only if it is objectively unreasonable. See, e.g., Renico v. Lett, 559 U.S. 766, 773 (2010); Runningeagle v. Ryan, 686 F.3d 758, 785 (9th Cir. 2012). An unreasonable application of federal law is different from an incorrect one. See Harrington, 562 U.S. at 101. "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision." Id. (internal quotations omitted). See also Sexton v. Beaudreaux, 138 S.Ct. 2555, 2558-59 (2018).
When a state appellate court issues a summary decision denying relief on a claim then raised in a federal habeas petition, the reviewing federal court must "look through" the appellate court's decision to the "last related state-court decision that does provide a relevant rationale" for denying the claim. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018). In the absence of any evidence or argument that the appellate court relied on different grounds for denying relief than the trial court, the federal habeas court presumes the appellate court adopted the same reasoning proffered by the trial court. Id. Additionally, the factual findings of a state court are presumed to be correct and can be reversed by a federal habeas court only when the federal court is presented with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Wood v. Allen, 558 U.S. 290, 293 (2010); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). Furthermore, with regard to claims adjudicated on the merits in the state courts, the federal habeas court's review is limited to the record that was before the state court. E.g., Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
Absent specific circumstances, the Court may only grant federal habeas relief on the merits of a claim which has been "properly" exhausted in the state courts. See O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); Coleman v. Thompson, 501 U.S. 722, 729-30 (1991). To properly exhaust a claim the petitioner must "fairly present" it to the state's "highest" court in a procedurally correct manner. See, e.g., Castille v. Peoples, 489 U.S. 346, 351 (1989); Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir. 2005). The Ninth Circuit Court of Appeals has concluded that, in non-capital cases arising in Arizona, the "highest court" test of the exhaustion requirement is satisfied if the habeas petitioner presented his claim to the Arizona Court of Appeals, either in a direct appeal or in a petition for state post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); Date v. Schriro, 619 F.Supp.2d 736, 762-63 (D. Ariz. 2008); Crowell v. Knowles, 483 F.Supp.2d 925, 932 (D. Ariz. 2007). Moreover, if the petitioner failed to exhaust state remedies and the state court to which they would be required to present their claim in order to meet the exhaustion requirement would now find the claims procedurally barred, the claim is considered procedurally defaulted and, absent specific circumstances, the federal court must dismiss the petition. E.g., Whaley v. Belleque, 520 F.3d 997, 1003-04 (9th Cir. 2008).
If a prisoner has defaulted a federal habeas claim in the state courts he is not entitled to a review of the merits of the claim absent a showing of cause and prejudice. E.g., Ellis v. Armenakis, 222 F.3d 627, 632 (9th Cir. 2000). The Court may also consider the merits of a procedurally defaulted claim if the failure to do so will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Atwood v. Ryan, 870 F.3d 1033, 1059 (9th Cir. 2017); Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011). It is the petitioner's burden to establish cause and prejudice with regard to their procedural default of a federal habeas claim in the state courts. Correll v. Stewart, 137 F.3d 1404, 1415 (9th Cir. 1998). "Cause" is a legitimate excuse for the petitioner's procedural default of the claim, i.e., an objective factor outside of his control, and "prejudice" is actual harm resulting from the alleged constitutional violation. Cooper, 641 F.3d at 327. To establish prejudice, the petitioner must show that the alleged error "worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. A petitioner meets the "fundamental miscarriage of justice" exception by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer v. Whitley, 505 U.S. 333. 339 (1992) (internal quotation marks omitted).
Sernas asserts there was no probable cause to arrest him because the MI's information was unreliable and he also asserts the arresting officers had time to obtain a search warrant but nonetheless effected a pretextual canine search and a warrantless strip search. (ECF No. 1 at 6-12).
"If the state has provided a state prisoner an opportunity for full and fair litigation of his Fourth Amendment claim, [a District Court] cannot grant federal habeas relief on the Fourth Amendment issue." Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005), citing Stone v. Powell, 428 U.S. 465, 494 (1976) ("[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."). Whether the state court correctly decided the Fourth Amendment claim is irrelevant. See Newman v. Wengler, 790 F.3d 876, 880-81 (9th Cir. 2015) ("All Stone v. Powell requires is the initial opportunity for a fair hearing. Such an opportunity for a fair hearing forecloses this court's inquiry, upon habeas corpus petition, into the trial court's subsequent course of action, including whether or not the trial court has made express findings of fact." (internal quotations omitted)); Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) ("The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided.").
Prior to his trial Sernas fully litigated his claim that the officers had no probable cause to arrest him and the legitimacy of the warrantless search; Sernas raised these claims in a motion to suppress which was denied at the conclusion of an evidentiary hearing. The Arizona Court of Appeals considered and rejected Sernas' Fourth Amendment claims on appeal. Sernas, 2012 WL 2470009, at *1-4. Because Sernas had a full and fair opportunity to litigate his Fourth Amendment claims in the state courts, relief on these claims must be denied pursuant to the doctrine of Stone v. Powell.
Sernas asserts he was denied counsel at the time of his arrest and that he was not provided his Miranda warnings prior to a "functional interrogation," in violation of his right to due process of law. (ECF No. 1 at 13). Respondent asserts this claim for relief was not properly exhausted in the state courts and the record shows Sernas did not raise a Miranda claim in his appeal. In his Rule 32 action Sernas vaguely asserted his trial counsel was ineffective for failing to assert his post-arrest statements should be suppressed, alleging: "I told my lawyer NO Miranda rights were read on-scene, not until arriving the police substation." (ECF No. 15-1 at 185).
To fairly present a claim in the state courts the petitioner must present the "substantial equivalent" of the claim presented in the federal court. Picard v. Connor, 404 U.S. 270, 278 (1971); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009). Full and fair presentation requires a petitioner to present the substance of his federal habeas claim to the state courts, including a reference to the operative federal constitutional guarantee relied on by the petitioner and a statement of facts that entitle the petitioner to relief. See Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 2009); Lopez v. Schriro, 491 F.3d 1029, 1040 (9th Cir. 2007). Although a habeas petitioner need not recite "book and verse on the federal constitution" to fairly present a claim to the state courts, Picard, 404 U.S. at 277-78, they must do more than present the facts necessary to support the federal claim. See Anderson v. Harless, 459 U.S. 4, 6 (1982). A claim is only "fairly presented" when a petitioner "clearly state[s] the federal basis and federal nature of the claim, along with relevant facts" to the state court. Cooper, 641 F.3d at 327.
Sernas did not properly exhaust a freestanding Miranda claim in the state courts. In his Rule 32 action he only vaguely asserted an ineffective assistance of counsel claim based on the detective's alleged failure to Mirandize him "on-scene," which did not adequately apprise the state court of either the relevant facts or the operative constitutional guarantee on which his federal habeas claim is predicated. See Gray v. Netherland, 518 U.S. 152, 163-64 (1996) (rejecting a claim premised on an identical constitutional provision because the claim was based on different and unrelated lines of precedent); Wooten v. Kirkland, 540 F.3d 1019, 1026 (9th Cir. 2008); Solis v. Garcia, 219 F.3d 922, 930 (9th Cir. 2000). Accordingly, absent a showing of cause and prejudice, the Court need not consider the merits of the claim and it may not grant relief on the claim.
With regard to Respondents' allegation that this claim was not properly exhausted, Sernas asserts he "utilized all procedures available under state law to raise the claim for habeas relief." (ECF No. 18 at 25-26). He also contends "that combined actions against him by the state" were not only unconstitutional but "worked to his actual and substantial disadvantage, injecting his entire trial with error of Constitutional dimensions." (ECF No. 18 at 26). Sernas fails to show cause for his procedural default of his Miranda claim. Nor has he established prejudice arising from his procedural default of this claim, because his Miranda claim is without merit.
The United States Supreme Court's opinion in Miranda v. Arizona prohibits the admission into evidence of statements given by a suspect during a "custodial interrogation," unless the suspect has received certain warnings. 384 U.S. 436, 444-45 (1966). The record in this matter indicates that, even if Detective Direen did not Mirandize Sernas at the time of his arrest at Sunset Point, the detective read Sernas his Miranda rights prior to interrogating him and prior to Sernas' admission regarding his possession of the methamphetamine.
Because Sernas has failed to show cause and prejudice regarding his procedural default of the claim, and he does not claim factual innocence, relief on Sernas' freestanding Miranda claim is precluded.
Sernas also argues the state intentionally withheld exculpatory evidence from the defense in violation of the doctrine of Brady v. Maryland, 373 U.S. 83 (1963). (ECF No. 1 at 14-15). He contends the State failed to disclose that the particular K-9 involved in his case, "Aros," was determined to be unreliable in State v. Wright, 2009 WL 2411298 (Ariz. Ct. App. 2009). (ECF No. 1 at 14).
Sernas did not raise a Brady claim in his direct appeal or in his state post-conviction action, nor did he provide the operative facts of a Brady claim to the state courts in his appeal or Rule 32 action. In his Rule 32 action Sernas did raise claims of ineffective assistance of trial and appellate counsel, asserting counsel did not adequately challenge the K-9's reliability, but he did not cite Wright or Brady or provide requisite supporting facts with regard to this claim. (ECF No. 15-1 at 171, 184-85, 205, 220, 224-26).
Sernas contends he was denied his right to the effective assistance of counsel throughout his trial, appellate, and post-conviction proceedings. (ECF No. 1 at 16). He asserts his trial counsel was ineffective because he did not properly argue the motion to suppress, i.e., counsel did not contest the validity of the canine search and otherwise show there was no probable cause for the search of his person and his arrest.
To prevail on an ineffective assistance of counsel claim a habeas petitioner must show his attorney's performance was deficient and that the deficiency prejudiced the outcome of his criminal proceedings. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance will be found deficient only if counsel's actions "fell below an objective standard of reasonableness," as measured by "prevailing professional norms." Id. at 688. See also Cheney v. Washington, 614 F.3d 987, 994 (9th Cir. 2010). Strickland's "deficient performance" prong requires a defendant to show that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." 466 U.S. at 687-88. When evaluating defense counsel's performance, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (internal quotations omitted). See also Ayala v. Chappell, 829 F.3d 1081, 1096 (9th Cir. 2016), cert. denied sub nom. Ayala v. Davis, 138 S.Ct. 244 (2017). To establish prejudice the petitioner must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
On federal habeas review Strickland claims are reviewed under a "doubly deferential" standard. Atwood, 870 F.3d at 1057. The question for a court applying Strickland in a federal habeas action is whether there is a "reasonable argument that counsel satisfied Strickland's deferential standard . . ." Harrington, 562 U.S. at 788. Even if the Court could conclude on de novo review that the petitioner might satisfy both prongs of the Strickland test, the "AEDPA requires that a federal court find the state court's contrary conclusions . . . objectively unreasonable before granting habeas relief." Woods v. Sinclair, 764 F.3d 1109, 1132 (9th Cir. 2014) (emphasis added). See also Ayala, 829 F.3d at 1096-97. With regard to an ineffective assistance of appellate counsel claim in a case wherein appellate counsel filed a merits brief, the habeas petitioner must show that the claims counsel did not raise were clearly stronger than those counsel did raise, i.e., that but for counsel's alleged error there was a reasonable probability of success on appeal. See Smith v. Robbins, 528 U.S. 259, 288 (2000); Moormann v. Ryan, 628 F.3d 1102, 1006 (9th Cir. 2010).
In his state post-conviction action Sernas alleged his trial counsel was ineffective because counsel inadequately argued the lack of probable cause to search Sernas and the vehicle. He also alleged his trial and appellate counsel were ineffective because they did not question the K-9's training. Sernas also argued his appellate counsel was ineffective because counsel did not file a reply to the State's appellate brief. Accordingly, these are the only ineffective assistance of counsel claims properly exhausted in the state courts.
In denying relief on these claims the state habeas trial court found and concluded:
A. Trial Counsel
B. Appellate Counsel
(ECF No. 15-1 at 233-34). The Court of Appeals adopted these findings and conclusions when denying relief on the merits in Sernas' Rule 32 action. Sernas, 2016 WL 6962074, at *1.
The state court reasonably concluded that both trial and appellate counsel adequately and ably presented Sernas' claims regarding probable cause. Having thoroughly reviewed the record presented for review in this matter and the parties' pleadings, Sernas has not rebutted any finding of fact determined by the state court on this issue by clear and convincing evidence. Sernas has not met his burden of establishing that the motion to suppress would have been granted or his conviction would have been reversed on appeal but for his attorneys' alleged failures. Accordingly, the state court's denial of relief on the issue of counsel's alleged ineffectiveness in arguing Sernas' Fourth Amendment claims was not clearly contrary to federal law.
Sernas' claim that counsel was ineffective for failing to challenge the K-9's reliability when alerting to the vehicle is predicated on State v. Wright, 2009 WL 2411298 (Ariz. Ct. App. 2009), a decision issued August 6, 2009, six months prior to the date of Sernas' arrest.
The state habeas trial court noted that prior to the suppression hearing Sernas' counsel obtained records regarding Aros' reliability and presumably made a strategic decision to not assert the K-9 alert was unreliable as a matter of law. Given the deference to counsel's strategic decisions required by Strickland, the state court did not unreasonably apply controlling federal law when deciding counsel's strategy with respect to this issue was not deficient performance. Atwood, 870 F.3d at 1057; Zapien v. Davis, 849 F.3d 787, 798 (9th Cir. 2015). Counsel's "carefully considered, deliberately undertaken strategy[ies]" are not to be "second-guess[ed]" on federal habeas review. Ayala, 829 F.3d at 1097. The Ninth Circuit Court of Appeals very recently reiterated that counsel's "`strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable. . . .'" Washington v. Ryan, ___ F.3d ___, 2019 WL 1645980, at *5 (9th Cir. 2019), quoting Strickland, 466 U.S. at 690.
Sernas presents no evidence indicating his counsel's decision to not challenge Aros' reliability was below prevailing professional norms or prejudicial. Furthermore, given the "totality of the evidence" presented at the suppression hearing on the issue of probable cause, including the MI's statements and the detective's observations of Sernas prior to the time he traveled to Sunset Point, the state court could reasonably determine there was no "reasonable probability" that, but for counsel's alleged error, the result of the suppression hearing would have been different. Strickland, 466 U.S. at 694-95; Atwood, 870 F.3d at 1058.
Nor has Sernas shown that his appellate counsel failed to raise a claim that would have prevailed on appeal, i.e., the issue of the K-9's reliability. See Moormann v. Ryan, 628 F.3d at 1109-10; Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989) ("the weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy"). Although the trial court and the appellate court found Aros' positive alert to the vehicle contributed to the finding of probable cause, this was not the sole reason either the trial court or the appellate court determined the totality of the circumstances supported a finding of probable cause. And, as noted by the state habeas trial court, appellate counsel's alleged failure to file a reply brief was neither deficient performance, as Arizona law does not require such a pleading, or prejudicial, because Sernas fails to establish that the responsive pleading required a reply.
With regard to Sernas' allegation that he was denied the effective assistance of counsel in his Rule 32 action, a state defendant does not have a right to counsel in a post-conviction proceeding. Atwood, 870 F.3d at 1059, citing Davila v. Davis, 137 S.Ct. 2058, 2062 (2017) ("a prisoner does not have a constitutional right to counsel in state postconviction proceedings. . ."). Accordingly, the freestanding allegation that Sernas was denied his right to the effective assistance of post-conviction counsel does not state a claim for federal habeas relief.
Relief on Sernas' Fourth Amendment claims is precluded by the doctrine of Stone v. Powell. Sernas defaulted his freestanding Miranda and Brady claims by failing to fairly present them to the state appellate court in a procedurally correct manner and he has not shown cause for or prejudice arising from his procedural default of these claims. The state court's application of Strickland to Sernas' ineffective assistance of counsel claims was neither unreasonable nor clearly contrary to federal law.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed seventeen (17) pages in length.
Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will constitute a waiver of a party's right to appellate review of the findings of fact and conclusions of law in an order or judgment entered pursuant to the recommendation of the Magistrate Judge.
Pursuant to 28 U.S.C. foll. § 2254, R. 11, the District Court must "issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The undersigned recommends that, should the Report and Recommendation be adopted and, should Sernas seek a certificate of appealability, a certificate of appealability should be denied because he has not made a substantial showing of the denial of a constitutional right.
(ECF No. 15-1 at 133).
