ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

S. JAMES OTERO, District Judge.

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Revised Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of the Revised Report and Recommendation in light of Petitioner's objections thereto. The Court also has considered the "Motion of Petitioner Raymond Z. Ozuna for Leave to Amend, etc." ("the Motion"), filed August 23, 2017. The Motion is denied because, as indicated in the Magistrate Judge's Revised Report and Recommendation, the proposed eleventh hour amendment of the Petition would be futile. The Court accepts and adopts the Magistrate Judge's Revised Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Revised Report and Recommendation and the Judgment herein on Petitioner, and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REVISED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Revised Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on October 20, 2016. Respondent filed an Answer on July 5, 2017. Petitioner filed a Reply on July 19, 2017.

BACKGROUND

A jury found Petitioner guilty of possession of methamphetamine for sale, possession of a firearm by a felon and "false compartment activity." People v. Cangas, 2015 WL 1893763, at *1 (Cal. App. Apr. 24, 2015). The jury also found Petitioner committed the crimes for the benefit of a criminal street gang. Id.

Petitioner previously had been convicted as an adult for second degree robbery, drunk driving, two assaults with deadly weapons, and willful infliction of corporal injury. Id. at *12. Petitioner previously had received two separate lengthy prison sentences. Id.; see also Confidential Probation Report, filed July 5, 2017. As a juvenile, Petitioner had committed two burglaries, two vehicle thefts, grand theft, vandalism, receiving stolen property, possession of burglary tools and throwing a substance at a vehicle. People v. Cangas, 2015 WL 1893763, at *12, n.10; Confidential Probation Report.

Petitioner received a "Three Strikes" sentence of 28 years to life. Id. at *1. The California Court of Appeal affirmed in a reasoned decision. Id. The California Supreme Court denied review summarily (Lodged Document 4).

PETITIONER'S CLAIM

The Petition alleges a single claim: "Sentence of 28 years to life pursuant to California's Three Strikes Reform Act of 2012 is unconstitutional, cruel and unusual punishment, and violative of the 8th Amendment to the United States Constitution" (Attachment A to Petition).

STANDARD OF REVIEW

Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States"; or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).

"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003) ("Andrade"). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.

Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts).

"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 562 U.S. 86, 101 (2011). This is "the only question that matters under § 2254(d)(1)." Id. at 102 (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103.

In applying these standards, the Court usually looks to the last reasoned state court decision. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). The Court generally presumes that a reasoned state court decision adjudicated all of the petitioner's federal claims, even if the decision did not specifically address all such claims. See Johnson v. Williams, 568 U.S. 289, 133 S.Ct. 1088, 1096 (2013). Where no reasoned decision exists, as where the state court summarily denies a claim, "[a] habeas court must determine what arguments or theories . . . could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Cullen v. Pinholster, 563 U.S. 170, 188 (2011) (citation, quotations and brackets omitted).

Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).

DISCUSSION

Petitioner's claim fails as a matter of law under Eighth Amendment precedents from the United States Supreme Court and the Ninth Circuit Court of Appeals.

In Rummel v. Estelle, 445 U.S. 263, 265-66, 284-85 (1980) ("Rummel"), the Supreme Court upheld a recidivist sentence of life with the possibility of parole for the crime of obtaining $120.75 by false pretenses, following prior convictions for fraudulent use of a credit card to obtain $80 worth of goods and services and passing a forged check for $28.36. In Solem v. Helm, 463 U.S. 277, 289-90, 296 (1983) ("Solem"), the Court struck down a recidivist sentence of life without the possibility of parole for uttering a "no account" check for $100, "one of the most passive felonies a person could commit," where the petitioner had three prior third-degree burglary convictions and convictions for obtaining money by false pretenses, grand larceny and driving while intoxicated. In Harmelin v. Michigan, 501 U.S. 957 (1991) ("Harmelin"), five Justices, although in disagreement regarding the rationale, upheld a sentence of life without the possibility of parole for a first offense of possession of more than 650 grams of cocaine. In a concurring opinion, Justice Kennedy, joined by Justices O'Connor and Souter, opined that a non-capital sentence could violate the Eighth Amendment if it were grossly disproportionate to the crime. Id. at 996-1009. The Ninth Circuit subsequently recognized Justice Kennedy's concurring opinion as the "rule" of Harmelin. See United States v. Bland, 961 F.2d 123, 128-29 (9th Cir.), cert. denied, 506 U.S. 858 (1992).

In 2003, the United States Supreme Court decided two cases involving the constitutionality of sentences imposed under California's Three Strikes Law. In Ewing v. California, 538 U.S. 11 (2003) ("Ewing"), the Court upheld a sentence of twenty-five years to life for felony grand theft consisting of the non-violent theft of three golf clubs, where the defendant's prior offenses included convictions for robbery, theft, grand theft auto, petty theft with a prior, battery, multiple burglaries, possession of drug paraphernalia, appropriation of lost property, unlawful possession of a firearm and trespassing. In Andrade, the Court upheld, under the standard of review set forth in 28 U.S.C. § 2254(d), the California Court of Appeal's determination that a total sentence of fifty years to life for two convictions of petty theft with a prior theft-related conviction was not unconstitutional. The petty thefts involved two non-violent incidents in which the petitioner shoplifted videotapes. The petitioner in Andrade had prior convictions for theft, residential burglary, transportation of marijuana, and escape. Andrade, 538 U.S. at 66-67.

In Andrade, the United States Supreme Court acknowledged that, "in determining whether a particular sentence for a term of years can violate the Eighth Amendment, we have not established a clear or consistent path for courts to follow." Andrade, 538 U.S. at 72. However, the Court observed that "one governing legal principle emerges as `clearly established' under [28 U.S.C.] § 2254(d)(1): A gross disproportionality principle is applicable to sentences for terms of years." Id.

Thus, "[t]he threshold determination in the eighth amendment proportionality analysis is whether [Petitioner's] sentence was one of the rare cases in which a . . . comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." United States v. Bland, 961 F.2d at 129 (citations and quotations omitted); see Andrade, 538 U.S. at 73 (gross disproportionality "applicable only in the `exceedingly rare' and `extreme' case"; citations omitted); Harmelin, 501 U.S. at 1001 (1991) (Kennedy, J., concurring) ("The Eighth Amendment does not require strict proportionality between crime and sentence"); see also Cocio v. Bramlett, 872 F.2d 889, 892 (9th Cir. 1989) ("we are required to defer to the power of a state legislature to determine the appropriate punishment for violation of its laws based on principles of federalism, unless we are confronted with a rare case of a grossly disproportionate sentence"). Petitioner's claim fails at this threshold level.

In determining whether to infer gross disproportionality, the federal habeas court examines the gravity of the current offense and the petitioner's criminal history. See Ramirez v. Castro, 365 F.3d 755, 768 (9th Cir. 2004). The Ninth Circuit has suggested that a Three Strikes sentence may not survive constitutional attack where both the current offense and the petitioner's prior convictions were relatively minor and non-violent. See id. at 767-73 (holding unconstitutional a Three Strikes sentence for one count of petty theft with a prior (the theft of a VCR worth $199), where the petitioner's prior criminal history consisted solely of two 1991 convictions for second-degree robbery obtained through a guilty plea, for which the petitioner's total sentence had been one year in county jail and three years' probation);1 Reyes v. Brown, 399 F.3d 964, 969-70 (9th Cir. 2005), cert. denied, 547 U.S. 1218 (2006) (petitioner received a Three Strikes sentence for the felony offense of perjury on a driver's license application, and his strikes consisted of a non-violent juvenile residential burglary conviction and a conviction for armed robbery; Ninth Circuit remanded to the district court for an evidentiary hearing on the issue of whether the armed robbery conviction was a "crime against a person" or involved violence).2

However, the Ninth Circuit has upheld Three Strikes sentences imposed for the offense of petty theft with a prior where the petitioner had a significant criminal record including a prior conviction involving violence. In Rios v. Garcia, 390 F.3d 1082 (9th Cir. 2004), cert. denied, 546 U.S. 827 (2005), the Ninth Circuit upheld a Three Strikes sentence for petty theft with a prior, distinguishing Ramirez v. Castro because the petitioner in Rios had struggled with a store loss prevention officer while committing the triggering offense. Rios v. Garcia, 390 F.3d at 1086. The Court further distinguished Ramirez v. Castro because the petitioner in Rios had a prior robbery strike that "involved the threat of violence, because his cohort used a knife." Id. Moreover, the petitioner in Rios had a "lengthy criminal history and [had] been incarcerated several times." Id. Similarly, in Nunes v. Ramirez-Palmer, 485 F.3d 432, 439 (9th Cir.), cert. denied, 552 U.S. 962 (2007), the Ninth Circuit upheld a Three Strikes sentence for petty theft with a prior where the petitioner's prior convictions included rape, burglary, theft and robbery. In Taylor v. Lewis, 460 F.3d 1093, 1100-01 (9th Cir. 2006), the Ninth Circuit upheld a Three Strikes sentence for possession of .036 grams of cocaine where the petitioner's prior convictions included second degree burglary, vehicle theft, voluntary manslaughter with a weapon-use enhancement, robbery with the use of a firearm, and several misdemeanor convictions.

In Gonzalez v. Duncan, 551 F.3d 875 (9th Cir. 2008), the Ninth Circuit deemed unconstitutional a Three Strikes sentence for failing to update the petitioner's annual sex offender registration within five working days of his birthday, where the petitioner's prior convictions were for cocaine possession, commission of a lewd act on a child under the age of fourteen, attempted rape by force, and second-degree robbery. Gonzalez v. Duncan suggests that a Three Strikes sentence for a victimless, technical and non-dangerous3 offense may violate the Constitution even though the petitioner's criminal history may not be completely devoid of violence, at least where the current offense is "based on a violation of a technical regulatory requirement that resulted in no social harm and to which little or no moral culpability attaches," and "does not reveal any propensity to recidivate." Id. at 887.

In the present case, Petitioner's offense of possession of methamphetamine for sale (with or without a gang connection) is not a "technical" offense involving no social harm and no propensity to recidivate. In Cruz v. Knowles, 2005 WL 2008994, at *9 (E.D. Cal. Aug. 22, 2005), the federal habeas corpus court quoted with apparent approval the California Court of Appeal's view that "possession for sale of methamphetamine, a criminal commodity for which demand is constant, draws others into the vortex of the underworld, induces others to commit crime, and impairs the public health and safety." In Taylor v. Lewis, 460 F.3d at 1099, the Ninth Circuit indicated that California "was entitled to the view that possession, use, and distribution of illegal drugs represents one of the greatest problems affecting the health and welfare of our population" (citations and quotations omitted). In Harmelin, in which the Supreme Court upheld a sentence of life without the possibility of parole for a first offense of possession of cocaine, Justice Kennedy commented upon the perceived connection between illegal drugs and other crime:

Id. at 1002-03.

To be sure, the amount of cocaine in Harmelin was much greater than the amount of drugs apparently involved here.4 This fact does not aid Petitioner, however. In Hutto v. Davis, 454 U.S. 370, 370-71, 375 (1982) ("Hutto"), the Supreme Court rejected an Eighth Amendment challenge to a 40-year sentence for possession of less than nine ounces of marijuana.5 The Hutto Court indicated that the district court had erred by focusing on the relatively small amount of the marijuana possessed. The Court stated that such focus involves an analysis "implicitly rejected by our conclusion in Rummel6 that the small amount of money taken was inapposite, because to acknowledge that the State could have given Rummel a life sentence for stealing some amount of money is virtually to concede that the lines to be drawn are indeed subjective, and therefore properly within the province of legislatures, not courts." Id. at 373-74, n.2 (citation and internal quotations omitted; original emphasis); see also Franklin v. Lewis, 2002 WL 552333 (N.D. Cal. 2002) (upholding Three Strikes sentences for third offenses of second degree burglary and possession of .49 grams of cocaine).

The fact that the instant offense may have been nonviolent is not dispositive. The offenses in Andrade and Ewing were nonviolent. In Hutto, the Supreme Court disapproved the district court's reliance on the allegedly nonviolent nature of the petitioner's drug offense, pointing out that "[i]n Rummel, however, we noted that `the presence or absence of violence does not always affect the strength of society's interest in deterring a particular crime or in punishing a particular criminal.'" Hutto, 454 U.S. at 373-74 n.2 (citation omitted).

Furthermore, in assessing the constitutionality of Petitioner's sentence, the Court must consider the principle that legislatures may punish recidivists more severely than first-time offenders. See Ewing, 123 S. Ct. at 1189-90 (court must consider state's interest in punishing not merely the "triggering" offense but also the state's interest in "dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law"; citations and internal quotations omitted). Petitioner has an extensive criminal record, which includes multiple violent crimes and two lengthy prison sentences.

Given the nature of Petitioner's crimes and criminal history, Petitioner's sentence cannot properly be deemed grossly disproportionate. The Ninth Circuit, this Court, and other federal courts in California routinely have upheld against Eighth Amendment challenge life sentences imposed on recidivists who committed drug crimes. See Taylor v. Lewis, 460 F.3d at 1100-01 (possession of .036 grams of cocaine); Mitchell v. Soto, 2015 WL 1119683, at *7 (E.D. Cal. March 11, 2015) (possession of cocaine base in prison); Williamson v. McDonald, 2012 WL 2872805, at *6 (E.D. Cal. July 12, 2012) (possession for sale of 26.4 grams of methamphetamine); Jacobs v. Cates, 2012 WL 909217, at *16-17 (C.D. Cal. Feb. 9, 2012), adopted, 2012 WL 909212 (C.D. Cal. Mar. 15, 2012) (possession of cocaine); Echols v. Pliler, 2010 WL 4179665, at *16 (C.D. Cal. June 2, 2010) (possession of cocaine base); Moore v. Chrones, 687 F.Supp.2d 1005, 1044-45 (C.D. Cal. 2010) (possession of less than a gram of heroin); Fryman v. Duncan, 2010 WL 145010, at *12 (N.D. Cal. Jan. 8, 2010), aff'd, 427 Fed. App'x 615 (9th Cir. 2011) (possession of 1.2 grams of cocaine base); Cruz v. Knowles, 2005 WL 2008994, at *10 (possession for sale of methamphetamine); Dang v. Almeida, 2005 WL 14884, at *5 (N.D. Cal. Jan. 3, 2005) (possession for sale of $240 worth of cocaine base); Knight v. Henry, 1997 WL 564053, at *2 (N.D. Cal. Aug. 25, 1997) (possession of 3 grams of methamphetamine).

With respect to the sentencing of adult offenders who are not mentally retarded, the United States Supreme Court has recognized only three instances of gross disproportionality rising to the level of an Eighth Amendment violation. As the Sixth Circuit recounted: "[t]hese [instances] involved condemning a man to death for a non-homicide crime [Coker v. Georgia, 433 U.S. 584 (1976); see also Kennedy v. Louisiana, 554 U.S. 407 (2008)], imposing life without parole for a nonviolent recidivist who passed a bad check for $100 [Solem], and sentencing a man in the Philippines to 15 years hard labor for falsifying a government form [United States v. Weems, 217 U.S. 349 (1909)]." United States v. Levy, 904 F.2d 1026, 1034 (6th Cir. 1990), cert. denied, 498 U.S. 1091 (1991) (citations and quotations omitted). Petitioner's circumstance does not approach any of these three instances of gross disproportionality previously recognized by the United States Supreme Court. Petitioner's circumstance plainly does not entail an "inference of gross disproportionality."

Because a comparison of Petitioner's crime and his sentence does not lead to an "inference of gross disproportionality," the Court need not compare Petitioner's sentence with sentences available for other California crimes or sentences available in other jurisdictions for the crime committed by Petitioner. See United States v. Harris, 154 F.3d 1082, 1084 (9th Cir. 1998), cert. denied, 528 U.S. 830 (1999) ("Comparative analyses of sentences for other crimes is only appropriate in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality"; citation and quotations omitted).7

Petitioner appears to direct much of his argument toward attempting to demonstrate that the state courts erred in finding a sufficient gang-related basis for Three Strikes sentencing under current California state law. Federal habeas relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Wilson v. Corcoran, 562 U.S. 1, 5 (2010) (per curiam) ("it is only noncompliance with federal law that renders a State's criminal judgment susceptible to collateral attack in the federal courts") (original emphasis); Hendricks v. Vasquez, 974 F.2d 1099, 1105 (9th Cir. 1992) ("Federal habeas will not lie for errors of state law"). Thus, any alleged errors in the interpretation and application of California state sentencing law cannot justify habeas relief. See id. The federal habeas court may not properly question the correctness of state courts' rulings on issues of state law. See Waddington v. Sarausad, 555 U.S. 179, 192 n.5 (2009); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); see also Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) ("state courts are the ultimate expositors of state law").

In his Reply, Petitioner also appears to question the persuasiveness of some of the prosecution's trial evidence. However, the only claim contained in the Petition is an Eighth Amendment claim. The Petition does not allege any due process claim that the trial evidence supposedly was constitutionally insufficient to support the jury's verdicts. Given the trial record (which this Court has reviewed), any due process challenge to the constitutional sufficiency of the evidence necessarily would fail (Lodged Documents 5, 6, 10). See Jackson v. Virginia, 443 U.S. 307, 317 (1979) (evidence is constitutionally sufficient unless, after resolving all conflicts in the evidence in favor of the prosecution, no rational trier of fact so viewing the evidence could have found guilt beyond a reasonable doubt); accord United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010).

Petitioner appears to believe that the California Three Strikes Reform Act of 2012 ("the Reform Act")8 somehow has changed federal Eighth Amendment law. Any such belief is misguided. The Reform Act "diluted the three strikes law by reserving the life sentence for cases where the current crime is a serious or violent felony or where the prosecution has pled and proved an enumerated disqualifying factor. . . ." People v. Yearwood, 213 Cal. App. 4th at 167-68. Thus, as a change in state law, California has decided to stop imprisoning for life most recidivists whose latest felony was a relatively minor offense. California's decision does not materially alter the federal Eighth Amendment analysis, however. As previously discussed, the Eighth Amendment jurisprudence of the United States Supreme Court and the Ninth Circuit Court of Appeals allows the states extremely wide latitude in sentencing recidivists. California's decision no longer to press so frequently the outer limits of this constitutional latitude does not constrict the latitude itself (in California or in any other state). Cf. Herrera v. Ducart, 2016 WL 4051295, at *3-11 n.6 (C.D. Cal. July 8, 2016), adopted, 2016 WL 4059157 (C.D. Cal. July 26, 2016) (the petitioner claimed that the Reform Act "change[d] the [Eighth Amendment] cruel and unusual punishment analysis for Three Strikes Law sentences" and rendered unconstitutional his life sentence for residential burglary; on de novo review, the federal habeas court ruled that the petitioner's claim "clearly fails on the merits") (quotations omitted).

CONCLUSION AND RECOMMENDATION

Petitioner's claim fails as a matter of law, whether reviewed de novo or under 28 U.S.C. section 2254(d). As Judge Patel of the Northern District of California stated in denying relief to a habeas petitioner who had been sentenced to 25 years to life for possession of a small amount of cocaine base:

Fryman v. Duncan, 2010 WL 145010, at *12.

Petitioner's sentence is severe and perhaps unwise. Under controlling federal case law, however, the sentence is plainly not unconstitutional.

IT IS THEREFORE RECOMMENDED that the Court issue an order: (1) accepting and adopting this Revised Report and Recommendation; and (2) denying and dismissing the Petition with prejudice.9

NOTICE

Revised Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Revised Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.

ORDER ACCEPTING FINDINGS, CONCLUSIONS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

Pursuant to 28 U.S.C. section 636, the Court has reviewed the Petition, all of the records herein and the attached Revised Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Revised Report and Recommendation to which any objections have been made. The Court accepts and adopts the Magistrate Judge's Revised Report and Recommendation.

IT IS ORDERED that Judgment be entered denying and dismissing the Petition with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Magistrate Judge's Revised Report and Recommendation and the Judgment herein on Petitioner, counsel for Petitioner, and counsel for Respondent.

LET JUDGMENT BE ENTERED ACCORDINGLY.