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 In a previous appeal, petitioner challenged the 10-year upper term for the firearm use

1

enhancement, on the ground that the court misapplied the aggravating factor that the firearm use

was premeditated. (Resp’t’s Lodged Documents (“LD”) 4 at 2.) The appellate court found trial

counsel ineffective and vacated the 10-year upper term for the enhancement and remanded the

matter for re-sentencing. (Id.) On remand, the trial court imposed a 10-year upper term

enhancement based on the finding that petitioner discharged his firearm “intentionally multiple

times.” (Id.)

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DAVID GATHINGS,

Petitioner, Case No. 2:04-cv-2210 MCE KJN P

vs.

GEORGE J. GIURBINO, Warden,

Respondent. FINDINGS AND RECOMMENDATIONS

 /

Petitioner is a state prisoner proceeding without counsel with an application for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2001 conviction on

charges of voluntary manslaughter, with an enhancement for use of a firearm. Petitioner was

ultimately sentenced to the six year middle term, plus a consecutive ten-year upper term for the

firearm enhancement. Petitioner raises one claim in his amended petition, filed July 29, 2005, 1

that his prison sentence violates the Constitution. 

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 The facts are taken from the opinion of the California Court of Appeal for the Third 2

Appellate District in People v. Gathings, No.C037753 (January 26, 2002), a copy of which is

included in the Clerk’s Transcript (“CT”) at 3-23. 

2

FACTS2

 On the evening of May 31, 2000, victim Brian Bower,

accompanied by his good friend John Duran and two other men,

Steve (whose surname is unknown) and David Morie, drove to Ed

Ruiz’s rural home to look at some drugs. [Petitioner], who spent a

lot of time at Ruiz’s place, was there when the four men arrived. 

Ruiz was also present. [Petitioner] was surprised to see Morie with

the other men since Morie usually came by himself. Ruiz was

familiar with Morie, and [petitioner] knew Morie from other drug

deals conducted in the preceding week. Neither [petitioner] nor

Ruiz knew the victim, Duran, or Steve.

 Morie was trying to get the victim some methamphetamine and

thought [petitioner] would have some. He said the victim wanted

to buy an ounce of methamphetamine. As it happened, [petitioner]

had about three-quarters ounce of methamphetamine with him that

night, which he had bought for $400. Morie suggested, and

[petitioner] agreed, that they cut one-half ounce of the

methamphetamine with an equal amount of filler provided by

Morie and sell it to the victim.

 [Petitioner] combined and bagged the drugs and filler. 

[Petitioner] then weighed the mixture in the baggie on the scale

while the victim looked on. The victim then smoked a sample of

the mixture and pronounced it “good.” The victim paid

[petitioner] $370 for the drugs. [Petitioner] then departed in his

truck. A detective testified that $370 was a very low price for one

ounce of methamphetamine.

 Later, Duran suggested the victim had been shorted. The victim,

Duran, and Steve returned to Ruiz’s place one to two hours later, at

about 2:00 a.m. on June 1, looking for [petitioner]. With Ruiz’s

help, the victim tried to page [petitioner] for about 15 minutes,

without success.

 Next the victim, Duran, and Steve had Ruiz go with them to

point out [petitioner’s] home and then returned Ruiz to his home. 

At least twice between about 2:30 a.m. and 7:30 a.m. on June 1,

the victim and his two friends went to [petitioner’s] home and

knocked on the door. [Petitioner] was inside, but at his direction,

his fiancee told the men he was not there. The men told her to

have [petitioner] contact the victim. On one of their visits, the men

argued with the fiancee’s mother but made no threats against

[petitioner]. The three men stayed up all night looking for

[petitioner]. The victim and Duran then did some drugs before the

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victim started work at about 8:15 a.m.

 Duran visited the victim at work at about noon on June 1 to see

whether the problem with [petitioner] had been resolved. While

there, Duran overheard the victim’s phone conversation with

[petitioner], wherein the two men agreed to meet at Ruiz’s place

after the victim got off work. The victim asked Duran to go there

with him, and Duran agreed to do so because the victim did not

know anyone who had been there the previous night and Duran

wanted to make sure nothing bad happened to the victim.

 Duran returned to the victim’s workplace at 4:30 p.m. and

brought along two other men: his best friend David Champion and

his long-time friend Brian Davis. Neither Davis nor Champion had

met the victim before, nor did they know each other. Duran asked

Davis to go with him to Ruiz’s place because the victim had a

problem with someone and was going to meet the person there to

discuss it. Duran told him the problem related to a bad drug deal

and a confrontation, both of which had occurred the previous night. 

The victim was dissatisfied with the quality and the quantity of the

drugs he had purchased. Duran wanted to be there because things

might get out of hand. Davis was there to protect Duran.

 Duran and his two friends departed for the Ruiz residence in

Duran’s truck. The victim went in his own truck and along the

way picked up Chris Ortega and Steve. Then all six men went to

Ruiz’s place, arriving at about the same time. There were many

other people, mostly men, in Ruiz’s front yard when the six men

arrived. Ruiz was present. Duran and the victim parked their

trucks near the house and garage, where at least one other vehicle

was located.

 About an hour earlier, Jennifer Ornellas, the victim’s friend, had

arrived at Ruiz’s place with Toby Pitts and Pitts’s friend David,

who went by the nickname “Capone.” Ornellas testified that going

to Ruiz’s house was Pitts’s idea even though Pitts did not know

anyone there. Pitts had been a good friend of the victim for a long

time. Ornellas knew some of the men who arrived with the victim. 

In sum, there were at least 12 to 15 people present, including a

number inside the crowded house. Duran later told a detective

there were 20 to 25 people there.

 After the victim and Champion exchanged small talk with

Ornellas in the front yard for a few minutes, the victim and the five

men with him filed into the garage. Ortega and Steve brought

methamphetamine, and they and some of the other men smoked

some in the garage with a pipe. Others only drank beer. None of

the men in the garage had a gun, knife, or any other weapon.

 The one-car garage had one large door (for a vehicle), which

remained closed, and two small front and back doors, which were

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open. The inside of the garage was fairly dark; it was still daylight,

and the only illumination was the natural light entering through the

small doors.

 After the six men were inside the garage, [petitioner] drove up. 

At some point the victim came out of the garage and spoke with

[petitioner] in the front yard. The victim then re-entered the garage

through the front door, followed by [petitioner]. The two of them

went to the back of the garage and began discussing the drug deal

the victim was upset about. Duran was closest to the two men,

about two feet away, between them and the back door.

 The victim was dissatisfied with what he bought the night before

and he wanted [petitioner] to make good on it. At first the victim

was not angry or yelling, but soon the volume of the men’s voices

increased. The victim had the baggie of methamphetamine he

bought the night before and tried to give it to [petitioner], who at

first refused to take it, angering the victim. The victim claimed the

drugs were “no good” and said he wanted his money back. 

Eventually [petitioner] accepted the baggie and asked for a pipe so

he could test the quality of the methamphetamine; the victim then

called out for a pipe. None was provided. The baggie was passed

back and forth several times.

 Duran interjected that there was no “need to check it out, it was

garbage.” From that point on, Duran played a part in what became

a three-way discussion. Duran said that [petitioner] “needed to

make it right,” to which [petitioner] responded that he had neither

money nor drugs to give to the victim.

 As he had discussed previously with the victim, Duran next

suggested that [petitioner] could compensate the victim by giving

him the “pink slip” to [petitioner’s] truck. [Petitioner] responded

negatively, asking Duran, “‘And who is going to make me?’” 

Duran believed [petitioner] had addressed him as if he believed

Duran was going to become involved in the dispute “in some form

of physical manner.” Duran then said, “He will,” indicating the

victim. The conversation became more heated, and the victim’s

body language and words indicated he was becoming more upset

and angry. The victim and [petitioner] were roughly the same

height, but the 236-pound victim outweighed [petitioner] by at

least 40 pounds (petitioner claimed he weighed 150 pounds at the

time). 

 [Petitioner] told the victim, “‘tough shit, I’m leaving,’” and

started to move toward the door, but the victim put his hands on

[petitioner’s] chest and pushed him to stop him from leaving. The

victim said, “‘Well, wait a minute, what are we going to do about

this?’” [Petitioner ] backed up a step but the victim kept coming

toward him. [Petitioner] told the victim, “‘Well, I guess you’re just

fucked.’”

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 The victim said “‘bullshit,’” and when [petitioner] turned and

tried to leave a second time, the victim again stopped him. This

time the victim grabbed [petitioner’s] upper body and pushed him

backwards. The second push was harder than the first and made

[petitioner] stagger. The victim was forcing [petitioner] back into

a corner near a bench next to a wall. [Petitioner] reached back and

grabbed the bench to catch his fall and to keep himself from being

pushed over or falling onto the bench. No one intervened or

verbally threatened [petitioner]. By this time, both men were

yelling at each other.

 While the victim was pushing [petitioner] the second time, and

while [petitioner’s] back was arched backward over the bench,

[petitioner[ used his right hand to pull a .25-caliber pistol from his

waistband. The victim immediately grabbed [petitioner’s] gun

hand wrist with his left hand and gripped [petitioner’s] throat with

his right hand. The first shot went off right after [petitioner] pulled

out the gun, while it was still pointed directly at the ground, and

missed the victim.

 While the victim and [petitioner] struggled, [petitioner] raised the

gun in a sweeping motion toward the victim. A second shot was

fired while the gun muzzle was nearly touching the victim’s right

arm, which broke the victim’s upper arm bone in two. 

 Next, the victim lowered his head and lunged into [petitioner],

forcing [petitioner] back onto the bench. The larger victim pushed

with his whole body against the smaller [petitioner]. As

[petitioner] was losing his balance, the victim thrust up

[petitioner’s] right hand and tried to push him over. As

[petitioner’s] arm was pushed up, he twisted his wrist so that the

gun was pointed straight down at the victim’s head. The third shot

was fired with the gun muzzle pressed against the victim’s scalp. 

The bullet traveled straight down into the victim’s head and killed

him instantly.

 The victim dropped to the floor. All three shots were fired

within about 10 seconds. [Petitioner] was in the garage for about

10 minutes before shots were fired.

 [Petitioner] picked up the methamphetamine baggie from the

floor, pointed the gun at Duran, Champion, and Davis, and then

left the garage. Other men then ran out of the garage, screaming

and tripping over each other. Someone said that the victim was

dead.

 [Petitioner] ran to his truck, which was parked across the street. 

He was by Pitts, who had heard the gun shots. Pitts did not want

[petitioner] to leave until he found out what was going on and

whether [petitioner] was at fault. [Petitioner] beat Pitts to the truck

and got inside, but he and Pitts struggled through the open window

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for about 45 seconds. Pitts was trying to choke [petitioner] and

take away his gun.

 [Petitioner] then sped away. He later ditched his truck in an

irrigation canal, took off his shirt to keep from being recognized,

and hitchhiked to his grandfather’s home in Kern County. Later in

June [petitioner] was found hiding in his grandfather’s closet and

was arrested.

(People v. Gathings, slip op. at 6-22.)

PROCEDURAL HISTORY

Petitioner appealed to the California Court of Appeal, Third Appellate District. 

The Third District Court of Appeal affirmed petitioner’s conviction and sentence on July 22,

2003. (Resp’t’s Lodged Document (“LD”) 4.) Petitioner filed a petition for review in the

California Supreme Court. (LD 5.) The California Supreme Court denied the petition on

October 15, 2003. (LD 6.) Petitioner did not seek habeas relief in the state courts. 

ANALYSIS

I. Standards for a Writ of Habeas Corpus

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of

some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860,

861 (9th Cir. 1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citation omitted) 

A federal writ is not available for alleged error in the interpretation or application of state law. 

See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th

Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be used to try state issues de

novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972). 

This action is governed by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d

1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting

habeas corpus relief:

 An application for a writ of habeas corpus on behalf of a person

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in custody pursuant to the judgment of a State court shall not be

granted 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). See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. 

Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

Under section 2254(d)(1), a state court decision is “contrary to” clearly

established United States Supreme Court precedents if it applies a rule that contradicts the

governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different

result. Early v. Packer, 537 U.S. 3, 7 (2002) (citation omitted).

Under the “unreasonable application” clause of section 2254(d)(1), a federal

habeas court may grant the writ if the state court identifies the correct governing legal principle

from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the

prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ

simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75

(2003) (it is “not enough that a federal habeas court, in its independent review of the legal

question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”)

The court looks to the last reasoned state court decision as the basis for the state

court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). Where the state

court reaches a decision on the merits but provides no reasoning to support its conclusion, a

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federal habeas court independently reviews the record to determine whether habeas corpus relief

is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003);

Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (“Independent review of the record is not de

novo review of the constitutional issue, but rather, the only method by which we can determine

whether a silent state court decision is objectively unreasonable.”); accord Pirtle v. Morgan, 313

F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of

a petitioner’s claim, or has denied the claim on procedural grounds, the AEDPA’s deferential

standard does not apply and a federal habeas court must review the claim de novo. Nulph v.

Cook, 333 F.3d 1052, 1056 (9th Cir. 2003); Pirtle, 313 F.3d at 1167.

II. Abuse of Discretion - Enhancement

Petitioner claims that the trial court abused its discretion by imposing the upperterm enhancement. (Dkt. No. 10 at 4.) Petitioner argues that a sentencing departure above the

middle term must be supported by proper factors in aggravation rather than arbitrary or irrational

reasons. (Id.) Petitioner contends the trial court’s statements expressly rejecting the jury’s

verdict suggest improper factors in reaching the aggravating term. (Id.)

Respondent counters that petitioner’s claim fails because it is a state law

sentencing claim. (Dkt. No. 13 at 9.) Respondent points out that petitioner failed to allege the

sentence violated the Constitution or to provide any supporting factual or legal discussion

supporting such a federal claim. (Dkt. No. 13 at 11.) In any event, petitioner failed to raise any

federal claim regarding sentencing in the state courts, so any such claim is unexhausted. (Id.)

The last reasoned rejection of this claim is the decision of the California Court of

Appeal for the Third Appellate District on petitioner’s direct appeal. The state court rejected this

claim as follows: 

 In this appeal, [petitioner] contends the trial court abused its

discretion in imposing the upper term for the firearm use

enhancement. According to [petitioner], in light of the jury’s

verdict, it was improper for the trial court to find [petitioner]

intentionally fired his weapon. [Petitioner] also claims the court

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erred in allegedly relying on his use of a firearm in the drug

business to impose the aggravated term. [Petitioner] argues the

single aggravating factor cited by the court is insufficient by itself

to justify imposition of the upper term. Finally, in his reply brief,

[petitioner] urges this court to reject the suggestion by the People

that even if the trial court erred, any error was harmless in light of

the existence in the record of other aggravating factors not relied

on by the court.

 As [petitioner] acknowledges, a single factor in aggravation is

sufficient to justify imposition of the upper term. [Citation

omitted.] Moreover, the sentencing court has broad discretion in

weighing aggravating and mitigating circumstances, and that court

may balance them in qualitative and quantitative terms. [Citations

omitted.] Absent a clear showing the court’s sentencing choice

was irrational or arbitrary, the appellate court must affirm that

choice. [Citation omitted.]

 In this case, doubtless as a consequence of the remand, the trial

court was careful to explain the precise basis for its conclusion that

the aggravated term for the enhancement was the appropriate

sentence for [petitioner]. By its statements, the court also took

pains to make clear what it was not relying on. In the court’s

words, “I think [petitioner] did well by the jury. I’ll say that at

least it seemed to me that that was at least second degree murder, at

least. But I’m not – I don’t want to use that circumstance because

or rely upon [sic] that I don’t want to really feel the Court’s

misunderstanding me because I failed to articulate some

circumstance. I know another circumstance which I could use but

will not is the fact that he carried a gun in his drug business. This

was how he did business.”

 The trial court also recognized and assessed mitigating

circumstances relating to [petitioner]. For example, at one point

the court commented as follows: “. . . [Y]ou know on [sic]

[petitioner’s] good behavior in a prison and his efforts to

rehabilitate himself may justify that decision about the poor

judgment of youth, which will be cured by the wisdom of age. [¶] 

But finally to view the choices I have to make about mitigation and

aggregation [sic] very, very narrowly the Court doesn’t say that I

must do this, but they do suggest it a bit when he talks about a

manner in which the gun is used. If we look at it that way, I did

hear the case and I made two observation [sic] the first is that the

medical expert that testified indicated that after the arm was shot

there would be very little strength in [the victim’s] hand. [¶] 

That being the case, [petitioner] would have been in a position to

understand that he had weakened his intent. [Sic.] Second, while

it is an open question about whether the first shot was intentional

or not, it may well have been accidental. I really think there is

insufficient evidence upon which to make a judgment in that

regard. [¶] I am satisfied that the second and third shots were

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intentional. And so viewing it very narrowly, the Court find [sic]

that the gun was fired intentionally multiple times and for that

reason selects the aggravated term of ten years for the

enhancement.” 

 Finally, the trial court articulated the linchpin of its analysis: 

 “ . . . I’m going to focus and choose to focus very clearly on how 

the gun was used.”

 On the record before it, we conclude the trial court’s decision to

impose the aggravated term for the firearm use enhancement was

well within its discretion. As we have suggested, and contrary to

[petitioner’s] claim, the record reflects the court’s determination

not to be influenced by circumstances such as its belief [petitioner]

carried a firearm because he was in the drug business, or that he

merited conviction for murder rather than manslaughter. 

Moreover, we discern no misapplication by the court of the criteria

relating to imposition of the aggravated term.

 [Petitioner] argues the trial court’s finding of an intentional

shooting is inconsistent with the jury’s verdict. [Petitioner] errs. 

Although voluntary manslaughter does not require an intent to kill

(citation omitted), it does require the doing of an intentional act. 

Moreover, the personal use of a firearm requires a showing the

[petitioner] intentionally displayed or fired it. (Citation omitted.) 

Here, although it rejected a verdict of second degree murder and its

accompanying firearm discharge enhancement, the jury found

[petitioner] personally used a firearm. Accordingly, cases cited by

[petitioner] such as People v. Spencer (1996) 51 Cal.App.4th 1208,

which considered the use of various factors by the trial court that

were inconsistent with the findings by the jury, are inapposite.

 [Petitioner] acknowledges that the firing of multiple shots

“arguably is a proper aggravating factor. Indeed it is. (Cal. Rules

of Court, rule 4.421(a)(1).) Firing multiple times, especially when

the victim already is wounded, is a cruel and vicious act within the

meaning of the rule. But [petitioner] also asserts the court failed to

assign that factor sufficient qualitative weight so that it was shown

to be greater than the mitigating circumstances present in the case.

 The record belies [petitioner’s] assertion. It shows the trial court

recognized [petitioner’s] mitigating factors but found that the

extreme manner of the use of the firearm under the circumstances

faced by [petitioner] outweighed the circumstances in mitigation,

justifying the aggravated term. Such a finding was well within the

broad exercise of the court’s discretion.

 We find no abuse of discretion in the sentencing determination

made by the trial court. Our review of both the record and of the

comments made by the court persuades us that the decision to

impose the upper term was not an arbitrary or irrational one. 

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(Citation omitted.) In light of our disposition, we need not

consider the assertion by the People that any error was harmless

due to the presence of other valid aggravating factors not

considered by the trial court.

(LD at 2-6.)

Petitioner’s claims of sentencing error are not cognizable in this federal habeas

corpus proceeding. Habeas corpus relief is unavailable for alleged errors in the interpretation or

application of state sentencing laws by either a state trial court or a state appellate court. 

Hendricks v. Zenon, 993 F.2d 664, 674 (9th Cir. 1993). So long as a state sentence “is not based

on any proscribed federal grounds such as being cruel and unusual, racially or ethnically

motivated, or enhanced by indigency, the penalties for violation of state statutes are matters of

state concern.” Makal v. State of Arizona, 544 F.2d 1030, 1035 (9th Cir. 1976). The Ninth

Circuit has specifically refused to consider state law errors in the application of state sentencing

law. See, e.g., Miller v. Vasquez, 868 F.2d 1116 (9th Cir. 1989). In Miller, the court refused to

examine the state court’s determination that a defendant’s prior conviction was for a “serious

felony” within the meaning of the state statutes governing sentence enhancements. Id. at 1118-

19. The court did not reach the merits of the Miller petitioner’s claim, stating that federal habeas 

relief is not available for alleged errors in interpreting and applying state law. Id. (quoting

Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985)).

In Estelle v. McGuire, 502 U.S. 62 (1991), the Supreme Court reiterated the

standard of review for a federal habeas court. It held that “it is not the province of a federal

habeas court to reexamine state court determinations on state law questions.” Id. at 65. The

Court emphasized that “federal habeas corpus relief does not lie for error in state law.” Id.

(citing Lewis v. Jeffers, 497 U.S. 764 (1990), and Pulley v. Harris, 465 U.S. 37, 41 (1984)). The

court further noted that the standard of review for a federal habeas court “is limited to deciding

whether a conviction violated the Constitution, laws, or treaties of the United States (citations

omitted).” Estelle, 502 U.S. at 67. Because petitioner has not shown that his sentence was

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 Petitioner cited Apprendi v. New Jersey, 530 U.S. 466 (2000) in his petition for review

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to the California Supreme Court. (LD 5 at 17-18.) However, “[a]s a policy matter, on petition

for review the Supreme Court normally will not consider an issue that the petitioner failed to

timely raise in the Court of Appeal.” Cal. Rules of Court, rule 28(c)(1). Petitioner did not raise a

federal claim in the state appellate court. See LD 1 and 3. Moreover, even assuming that

petitioner intended to raise a federal claim, he has failed to demonstrate that the trial court’s

calculation of the enhancement violated the Eighth Amendment. “It is well-settled that

[c]onclusory allegations which are not supported by a statement of specific facts do not warrant

habeas relief." Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995) (quoting James v. Borg, 24

F.3d 20, 26 (9th Cir. 1994)). Petitioner provided no argument or citation to case law or the

record in support of any federal claim. Without more, a suggestion of a federal claim is

conclusory and does not meet the specificity requirement.

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fundamentally unfair, this claim is not cognizable on federal review. See Christian v. Rhode, 41

F.3d 461, 469 (9th Cir. 1994). 

Petitioner’s claim of sentencing error does not state a federal claim. Accordingly,

this claim should be denied.3

IT IS HEREBY RECOMMENDED that petitioner's application for a writ of

habeas corpus be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twentyone days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

objections shall be filed and served within fourteen days after service of the objections. The

parties are advised that failure to file objections within the specified time may waive the right to

appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: August 6, 2010

_____________________________________

KENDALL J. NEWMAN

UNITED STATES MAGISTRATE JUDGE

 

gath2210.157

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