FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFRED COPELAND,

AKA Charles Alfred Copeland

Petitioner-Appellee,

v.

CHARLES L. RYAN; ATTORNEY

GENERAL OF THE STATE OF

ARIZONA,

Respondents-Appellants.

No. 16-15849

D.C. No.

2:13-cv-02278-

PGR

OPINION

Appeal from the United States District Court

for the District of Arizona

Paul G. Rosenblatt, Senior District Judge, Presiding

Argued and Submitted February 15, 2017

San Francisco, California

Filed March 28, 2017

Before: Marsha S. Berzon and Richard R. Clifton, Circuit

Judges, and Marvin J. Garbis,* District Judge.

Opinion by Judge Clifton;

Concurrence by Judge Berzon

*The Honorable Marvin J. Garbis, United States District Judge for the

District of Maryland, sitting by designation.
2 COPELAND V. RYAN

SUMMARY**

Habeas Corpus

The panel reversed the district court’s orders requiring an

Arizona state corrections official to reimburse a petitioner

for deposition expenses incurred in his pending habeas

proceeding under 28 U.S.C. § 2254.

The panel had interlocutory jurisdiction under the

collateral order doctrine, and held that a district court cannot

order a state to reimburse an indigent habeas petitioner for

deposition expenses in a § 2254 habeas proceeding when, as

here, the state did not request the deposition.

The panel remanded for further proceedings to determine

whether the petitioner may obtain reimbursement from the

federal government under the Criminal Justice Act.

Concurring in full, Judge Berzon noted that the Supreme

Court has significantly limited the applicability of the

collateral order doctrine in recent years, but that this court’s

precedents are not clearly irreconcilable with Supreme Court

law.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
COPELAND V. RYAN 3

COUNSEL

Kristina Reeves (argued), Assistant Attorney General; Lacey

Stover Gard, Chief Counsel; John R. Lopez, IV, Solicitor

General; Mark Brnovich, Attorney General; Capital

Litigation Section, Office of the Attorney General, Phoenix,

Arizona; for Respondents-Appellants.

Emma Isakson (argued) and Lee Stein, Mitchell Stein Carey

PC, Phoenix, Arizona, for Petitioner-Appellee.

OPINION

CLIFTON, Circuit Judge:

Respondent Charles L. Ryan, as Director of the Arizona

Department of Corrections, appeals the district court’s

interlocutory orders requiring him to reimburse Petitioner

Alfred Copeland for deposition expenses incurred in

Copeland’s pending habeas proceeding under 28 U.S.C.

§ 2254. We have interlocutory jurisdiction under the

collateral order doctrine. We conclude that a district court

cannot order a state to reimburse an indigent habeas petitioner

for deposition expenses in a § 2254 habeas proceeding when,

as here, the state did not request the deposition. We reverse

the relevant orders and remand for further proceedings to

determine whether Copeland may obtain reimbursement from

the federal government under the Criminal Justice Act (CJA),

18 U.S.C. § 3006A.
4 COPELAND V. RYAN

I. Background

Following a jury trial in an Arizona state court, Copeland

was convicted in February 2002 on ten different state

criminal charges. The state court sentenced Copeland to a

total of 118 years’ imprisonment.

Eleven years later, in November 2013, Copeland filed in

federal court a pro se petition for habeas corpus under

28 U.S.C. § 2254 challenging his state convictions. To

overcome § 2254’s one-year statute of limitations, Copeland

alleged “actual innocence” on several counts of the

underlying indictment.1 The district court held that Copeland

had failed to establish actual innocence on all but two of the

counts of the indictment, and ordered an evidentiary hearing

on the remaining two counts. In light of the evidentiary

hearing and Copeland’s indigent status, the district court

ordered the appointment of counsel for Copeland under the

CJA, 18 U.S.C. § 3006A(a)(1)(2)(B), and Rule 8(c) of the

Rules Governing Section 2254 Cases.

Prior to the evidentiary hearing, the parties contacted two

of Copeland’s alleged victims, who had been identified as

potential fact witnesses. Both victims indicated that they no

longer lived in Arizona and were unwilling to travel to

Arizona to participate in the hearing. At the suggestion of

Copeland’s appointed counsel, the district court excused the

1 The Antiterrorismand Effective Death Penalty Act of 1996 imposes

a one-year statute of limitations on § 2254 habeas petitions. 28 U.S.C.

§ 2244(d). As an exception to this general rule, courts can consider

untimely federal habeas petitions if the petitioner shows “actual

innocence” on the challenged convictions. Schlup v. Delo, 513 U.S. 298,

318–23 (1995).
COPELAND V. RYAN 5

victims from appearing in person at the evidentiary hearing,

and instead subpoenaed them to testify via video depositions

to be taken near their respective homes outside Arizona. The

district court ordered both parties’ counsel to attend the

depositions.

After the depositions were scheduled, Copeland’s

appointed counsel filed two ex parte motions requesting that

the State reimburse Copeland for certain expenses incurred in

connection with the out-of-state depositions.2 The district

court granted both applications under Federal Rule of

Criminal Procedure 15(d), and ordered the State to reimburse

Copeland for (1) “the expenses incurred in the taking of video

depositions of [both witnesses]”; (2) “the reasonable travel

and subsistence expenses incident to the attendance of

[Copeland’s] counsel at the depositions,” including airfare,

lodging, rental cars, and meals; and (3) “the costs of

attendance of [both witnesses] at the depositions.”

After the district court summarily denied the State’s

motion for reconsideration of the reimbursement orders, the

State timely filed this interlocutory appeal.

2 Specifically, Copeland sought reimbursement against Respondent

Charles L. Ryan in his official capacity as the Director of the Arizona

Department of Corrections. See Rule 2(a), Rules Governing Section 2254

Cases (requiring petitioner in state custody to “name as respondent the

state officer who has custody”). For simplicity, we refer to Ryan as the

“State.” See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989) (“[A] suit against a state official in his or her official capacity is not

a suit against the official but rather is a suit against the official’s office. 

As such, it is no different from a suit against the State itself.” (citation

omitted)).
6 COPELAND V. RYAN

II. Jurisdiction

Under the final judgment rule, appellate jurisdiction is

customarily limited to “final decisions” of the district courts. 

28 U.S.C. § 1291. Copeland’s habeas petition is still pending

before the district court, so there is no final judgment in his

case yet. The State contends that we nevertheless have

jurisdiction in this instance under the collateral order

doctrine. We agree that there is collateral order jurisdiction

here.3

The collateral order doctrine provides a narrow exception

to the final judgment rule. Under the collateral order

doctrine, an appellate court may exercise jurisdiction over an

interlocutory ruling when the following three conditions are

met: (1) the ruling constitutes a final ruling on the relevant

issue; (2) the ruling resolves “important questions separate

from the merits”; and (3) the ruling is “effectively

unreviewable on appeal from the final judgment in the

underlying action.” Swint v. Chambers Cty. Comm’n,

514 U.S. 35, 42 (1995). Regarding the third condition, “the

decisive consideration is whether delaying review until the

entry of final judgment ‘would imperil a substantial public

interest’ or ‘some particular value of a high order.’” Mohawk

Indus., Inc. v. Carpenter, 558 U.S. 100, 107 (2009) (quoting

Will v. Hallock, 546 U.S. 345, 352–53 (2006)). “In making

this determination, we do not engage in an ‘individualized

jurisdictional inquiry.’” Id. (quoting Coopers & Lybrand v.

Livesay, 437 U.S. 463, 473 (1978)). Rather, we must focus

on “the entire category to which a claim belongs,” and

3 Because we have jurisdiction under the collateral order doctrine, we

need not consider the State’s alternative request that we issue a writ of

mandamus. See Jackson v. Vasquez, 1 F.3d 885, 888 n.1 (9th Cir. 1993).
COPELAND V. RYAN 7

determine whether “the class of claims, taken as a whole, can

be adequately vindicated by other means.” Id. (internal

quotation marks omitted).

All three conditions are met here. As we have previously

held, this court has collateral order jurisdiction to review

interlocutory orders requiring a government litigant to pay for

litigation expenses incurred by the opposing party. For

example, in United States v. Baker, 603 F.2d 759, 761–62

(9th Cir. 1979), we exercised jurisdiction under the collateral

order doctrine to review a district court order requiring the

federal government to pay, under Federal Rule of Criminal

Procedure 15, the defendant’s attorney’s fees for expenses

incurred in connection with depositions held outside the

United States. Similarly, in Wiggins v. Alameda County,

717 F.2d 466, 467–68 (9th Cir. 1983), we exercised

jurisdiction to review a district court’s order requiring state

prison officials to pay expenses associated with producing

and guarding a state prisoner during the duration of his

federal civil rights trial. In exercising jurisdiction under the

collateral order doctrine in Wiggins, we explained that

collateral order review was appropriate because the order

“resolved finally the State’s efforts to avoid the costs

associated with securing [the plaintiff’s] presence at the trial

of his civil rights action,” and that “[s]uch an allocation of

costs to the State was completely collateral to the issues

raised in the underlying civil rights suit.” Id. at 468.4

4 Our approach is consistent with that of other circuits. See United

States v. Horn, 29 F.3d 754, 768–69 (1st Cir. 1994) (exercising

jurisdiction to review a district court order requiring the government to

pay attorney’s fees as a sanction for discovery misconduct); United States

v. Rogalsky, 575 F.2d 457, 459 (3d Cir. 1978) (exercising jurisdiction to

review a district court order requiring the government to pay under the

CJA expenses incurred in connection with the psychiatric examination of
8 COPELAND V. RYAN

There is no reason to deviate from these authorities here. 

As in Baker and Wiggins, the State challenges only the

district court’s orders requiring the State to reimburse

Copeland for his deposition expenses. As required for

collateral order review, the district court’s reimbursement

orders constituted the final ruling on Copeland’s right to seek

reimbursement from the State, the orders were separate from

the merits of Copeland’s habeas petition, and the orders

would be effectively unreviewable on appeal from a final

judgment on Copeland’s habeas petition. See Swint, 514 U.S.

at 42.

Further, when viewing the State’s claim as belonging to

a “class of claims, taken as a whole,” it is clear that this

category of claims cannot be “adequately vindicated by other

means.” Mohawk Industries, 558 U.S. at 107. In this appeal,

the State challenges orders by the district court requiring the

expenditure of public funds to reimburse an indigent habeas

petitioner for certain litigation expenses. If review of the

reimbursement orders were delayed until after final judgment,

the State would be unable to collect from the petitioner the

amounts it already paid out, even if the orders were reversed

on appeal. The premise of the orders was that Copeland is

indigent and does not currently have the money to make the

payments. He is a prisoner, so it cannot be assumed that he

would in the meantime come into funds sufficient to

reimburse the State for the expenses. Thus, as a practical

matter, delaying review until after final judgment would leave

the State with essentially no recourse to vindicate its

“substantial public interest” in protecting the state fisc against

the unauthorized expenditure of public funds. Will, 546 U.S.

an indigent defendant).
COPELAND V. RYAN 9

at 353. Collateral order jurisdiction is therefore appropriate

here.

III. Discussion

We review de novo the district court’s determination that

Copeland is entitled to reimbursement from the State under

Federal Rule of Criminal Procedure 15(d). See United States

v. Fort, 472 F.3d 1106, 1109 (9th Cir. 2007) (“We review de

novo a district court’s interpretation of the Federal Rules of

Criminal Procedure.” (citing United States v.NavarroViayra,

365 F.3d 790, 793 (9th Cir. 2004)).

On appeal, the State challenges the district court’s

reimbursement orders on two independent grounds: (1) the

reimbursement orders were unlawful because there are no

statutes or rules authorizing the district court to order the

State to reimburse Copeland for the deposition expenses, and

(2) the orders abrogated state sovereignty in violation of the

Eleventh Amendment of the U.S. Constitution. We agree

with the State on the first ground. The district court was not

authorized to order the State to pay for expenses of

depositions in a § 2254 habeas proceeding that were not

requested by the State. Applying the principle of

constitutional avoidance, we decline to consider whether the

reimbursement orders violated the Eleventh Amendment. 

Overstreet v. United Bhd. of Carpenters & Joiners of Am.,

Loc. Union No. 1506, 409 F.3d 1199, 1211 (9th Cir. 2005).

A. The district court cannot order reimbursement by the

State.

As a general rule, federal courts do not have authority to

order one party in civil litigation to pay the expenses of the
10 COPELAND V. RYAN

other party. See Carbonell v. INS, 429 F.3d 894, 897–98 (9th

Cir. 2005) (“[L]itigants ordinarily are required to bear the

expenses of their litigation unless a statute or private

agreement provides otherwise.”); see also Doe v. United

States, 112 F.R.D. 183, 184 (S.D.N.Y. 1986) (“Litigants

generally bear their own deposition expenses initially. The

exceptions to this rule are few.”). Copeland argues that the

district court was authorized to issue the reimbursement

orders under both Federal Rule of Criminal Procedure 15(d)

and the Rule 6(c) of the Rules Governing Section 2254 Cases. 

We disagree.

1. Federal Rule of Criminal Procedure 15(d)

Federal Rule of Criminal Procedure 15 concerns

depositions in federal criminal proceedings. Rule 15(d),

entitled “Expenses,” provides:

If the deposition was requested by the

government, the court may – or if the

defendant is unable to bear the deposition

expenses, the court must – order the

government to pay:

(1) any reasonable travel and

subsistence expenses of the defendant

and the defendant’s attorney to attend

the deposition; and

(2) the costs of the deposition

transcript.

Copeland argues that because the Federal Rules of Criminal

Procedure apply to § 2254 habeas proceedings, he may
COPELAND V. RYAN 11

recover his deposition expenses from the State under Rule

15(d). That argument fails on multiple grounds.

To begin with, the Federal Rules of Criminal Procedure

do not apply to habeas proceedings brought by state prisoners

under 28 U.S.C. § 2254. Although habeas actions are filed by

persons previously convicted of criminal offenses to

challenge those convictions (orthe effects of the convictions),

habeas corpus proceedings are “civil in nature,” not

“criminal.” Mayle v. Felix, 545 U.S. 644, 654 n.4 (2005). 

Federal habeas actions brought by state prisoners are brought

under 28 U.S.C. § 2254 and are governed by a discrete set of

rules, namely the Rules Governing Section 2254 Cases in the

United States District Courts. Id. at 654. A different statute,

28 U.S.C. § 2255, pertains to habeas proceedings brought by

persons convicted of federal crimes, and those cases are

governed by a different set of rules, the Rules Governing

Section 2255 Cases in the United States District Courts.

When a petitioner challenges a federal conviction under

§ 2255, discovery may be governed by both the Federal Rules

of Civil Procedure and the Federal Rules of Criminal

Procedure. See Rule 6(a), Rules Governing Section 2255

Cases (“A judge may, for good cause, authorize a party to

conduct discovery under the Federal Rules of Criminal

Procedure or Civil Procedure, or in accordance with the

practices and principles of law.”); see also Rule 12, Rules

Governing Section 2255 Cases (“The Federal Rules of Civil

Procedure and the Federal Rules of Criminal Procedure, to

the extent that they are not inconsistent with any statutory

provisions or these rules, may be applied to a proceeding

under these rules.”).
12 COPELAND V. RYAN

By contrast, when the petitioner challenges a state

conviction under § 2254, discovery is instead governed by the

Federal Rules of Civil Procedure. See Rule 6(a), Rules

Governing Section 2254 Cases (“A judge may, for good

cause, authorize a party to conduct discovery under the

Federal Rules of Civil Procedure . . . .”); Rule 6(a), Rules

Governing Section 2254 Cases, advisory committee’s note to

1976 adoption (“This rule prescribes the procedures

governing discovery in habeas corpus cases. Subdivision (a)

provides that any party may utilize the processes of discovery

available under the Federal Rules of Civil Procedure . . . if,

and to the extent that, the judge allows.”); see also Rule 12,

Rules Governing Section 2254 Cases (“The Federal Rules of

Civil Procedure, to the extent that they are not inconsistent

with any statutory provisions or these rules, may be applied

to a proceeding under these rules.”).

Copeland is a state prisoner, so his habeas action was

brought under § 2254. Under the plain language of the Rules

Governing Section 2254 Cases, only the Federal Rules of

Civil Procedure apply to § 2254 habeas proceedings. The

Federal Rules of Criminal Procedure do not apply to § 2254

habeas proceedings.

Copeland raises several arguments in response, all of

which are based on the same premise: because there are no

authorities expressly providing that the Federal Rules of

Criminal Procedure do not apply to § 2254 habeas

proceedings, the Federal Rules of Criminal Procedure apply

here. This argument conflicts with a basic principle of

statutory interpretation. Under the maxim of expressio unius

est exclusio alterius, there is a presumption “that when a

statute designates certain persons, things, or manners of

operation, all omissions should be understood as exclusions.” 
COPELAND V. RYAN 13

Boudette v. Barnette, 923 F.2d 754, 756–57 (9th Cir. 1991);

see Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 107-111 (2012) (identifying this

as the “Negative-Implication Canon”). Here, Rule 6(a) and

Rule 12 of the Rules Governing Section 2254 Cases provide

only that the Federal Rules of Civil Procedure govern

discovery in § 2254 habeas proceedings. Applying this

principle of statutory interpretation, we must presume that the

Federal Rules of Criminal Procedure do not apply to § 2254

habeas proceedings.

This presumption is confirmed by the fact, as detailed

above, that Rule 6(a) and Rule 12 of the Rules Governing

Section 2255 Cases expressly provide that both the Federal

Rules of Civil Procedure and the Federal Rules of Criminal

Procedure apply in § 2255 habeas proceedings. The

difference between the two sets of rules cannot be shrugged

off as an accident or oversight. Copeland has provided no

reason why we should not apply this presumption that the

Federal Rules of Criminal Procedure do not apply to § 2254

habeas proceedings, and we see none. See United States v.

Bert, 292 F.3d 649, 652 n.12 (9th Cir. 2002) (declining to

apply presumption when “the mechanical application of

expressio unius is contrary to both logic and legislative

purpose”).

That the Federal Rules of Criminal Procedure do not

apply to this case is fatal to Copeland’s argument that they

authorize the district court’s orders. Copeland does not argue
14 COPELAND V. RYAN

that there is anything in the Federal Rules of Civil Procedure

that supports the district court’s orders here.5

It would, moreover, take a strained interpretation of

Federal Rule of Criminal Procedure 15(d) to support the order

in this case, even if that rule did apply. Rule 15(d) refers to

“the government,” but within the Federal Rules of Criminal

Procedure that term necessarily refers to the federal

government, as those rules apply only to criminal

prosecutions brought by the federal government. See Fed. R.

Crim. P. 1(a)(1). Copeland has provided no reason why we

should conclude that these rules were ever intended to apply

to a state in circumstances like the one here, and we can see

none.

Rule 15(d) is also by its express terms applicable when

“the deposition was requested by the government.” That was

not the case here. As we discuss in connection with Rule 6(c)

of the Rules Governing Section 2254 Cases, immediately

below, that makes a difference.

2. Rule 6(c) of the Rules Governing Section 2254 Cases

Copeland argues that the district court was also authorized

to issue the reimbursement orders under Rule 6(c) of the

Rules Governing Section 2254 Cases. The language of the

rule says otherwise.

5 The only provision in the Federal Rules of Civil Procedure expressly

authorizing the recovery of deposition expenses is Rule 30(g), which

allows a party to recover certain deposition expenses when the party

noticing the deposition either failed to attend the deposition or failed to

subpoena a nonparty deponent who in turn failed to attend the deposition. 

That authorization does not apply here.
COPELAND V. RYAN 15

Rule 6(c), entitled “Deposition Expenses,” provides as

follows:

If the respondent is granted leave to take a

deposition, the judge may require the

respondent to pay the travel expenses,

subsistence expenses, and fees of the

petitioner’s attorney to attend the deposition.

The “petitioner” in a habeas case under § 2254 is the prisoner

challenging his conviction or confinement, in this case,

Copeland. The “respondent” is the state or its agent, such as

the warden of the prison where petitioner is held. Rule 2(a),

Rules Governing Section 2254 Cases. Here, the respondents

are the Director of the Arizona Department of Corrections

and the Arizona Attorney General.

The rule says in so many words that the State (or its

agent) may be required to pay deposition expenses “[i]f the

respondent [i.e., the State] is granted leave to take a

deposition.” In that sense, Rule 6(c) of the Rules Governing

Section 2254 Cases is similar to Federal Rule of Criminal

Procedure 15(d), discussed above, in that both authorize the

court to order the government to pay deposition expenses

when the government requests the deposition.

But the State did not request the depositions at issue here. 

After the two witnesses declined to travel to Arizona to

testify, it was Copeland’s counsel who suggested that video

depositions be taken instead. The district court’s orders recite

that they are in response to Copeland’s ex parte motion

seeking permission to travel outside Arizona for depositions. 

The district court made no finding that the State sought leave

to take the depositions, and Copeland does not contend that
16 COPELAND V. RYAN

it did. It appears that the testimony of these witnesses was

sought by Copeland to support his claim of actual innocence

on certain charges, and the burden of establishing innocence

in this proceeding lies with Copeland.

Rule 6(c) authorizes the court to require the State to pay

the expenses “if” the deposition is requested by the State. 

Rule 6(c), Rules Governing Section 2254 Cases. The

interpretation urged by Copeland would eliminate that

condition. If the rule were intended to permit the court to

require the State to pay for the deposition regardless of which

party sought the deposition, then the first ten words would not

have been included in the rule. We are not at liberty to edit

them out. The maxim expressio unius est exclusio alterius,

discussed above, at 12–13, applies here as well. The

omission of authority to order the State to pay deposition

expenses when the deposition was requested by a party other

than the State should be understood to exclude that authority.

B. The district court may consider whether Copeland’s

deposition expenses are reimbursable by the federal

government.

Although we disagree with Copeland that his deposition

expenses were reimbursable by the State, his deposition

expenses nevertheless appear reimbursable by the federal

government under the CJA. The district court ordered the

appointment of habeas counsel under the CJA to represent

Copeland in connection with the evidentiary hearing on his

“actual innocence” claims. District courts can order the

federal government to reimburse an indigent habeas

petitioner’s deposition expenses when the petitioner qualifies

for the appointment of habeas counsel under the CJA. See

18 U.S.C. § 3006A(a)(2)(B) (providing for the appointment
COPELAND V. RYAN 17

of counsel “for any financially eligible person who . . . is

seeking relief under section . . . 2254 . . . of title 28”); id.

§§ 3006A(d)(1), (4) (“Attorneys may be reimbursed for

expenses reasonably incurred” as determined by “[t]he United

States magistrate or the court . . . .”); Guidelines for

Administering the Criminal Justice Act §§ 320.40.20(a), (d)

(providing for reimbursement by the U.S. Department of

Justice of “[e]xpenses incurred in the taking of fact witness

depositions” and “reasonable travel and subsistence expenses

incident to attendance of counsel and the defendant at the

deposition”). On remand, the district court should consider

whether Copeland qualifies for reimbursement from the

federal government under the CJA.

IV. Conclusion

There are no statutes or rules authorizing the district court

to order the State to reimburse Copeland, as an indigent

habeas petitioner, for deposition expenses in his § 2254

habeas proceeding when, as here, the State did not request the

depositions. Accordingly, we reverse the district court’s

orders and remand for further proceedings.

REVERSED AND REMANDED.

BERZON, Circuit Judge, concurring:

I join Judge Clifton’s opinion. I write separately to note

that although our conclusion regarding the collateral order

doctrine is correct under our precedents, see Wiggins v.

Alameda County, 717 F.2d 466, 467–68 (9th Cir. 1983) and

United States v. Baker, 603 F.2d 759, 761–62 (9th Cir. 1979),
18 COPELAND V. RYAN

the Supreme Court has significantly limited the applicability

of the collateral order doctrine in recent years. For example,

the Court has held that an order of sanctions under Federal

Rule of Civil Procedure 37(a) is not immediately appealable. 

See Cunningham v. Hamilton Cty., 527 U.S. 198, 210 (1999). 

The Court has also so held with respect to a disclosure order

adverse to the attorney-client privilege. See Mohawk Indus.,

Inc. v. Carpenter, 558 U.S. 100, 112–13 (2009).

I am not sanguine that the collateral order doctrine still

permits interlocutory review of a district court’s award of

discovery costs, given the direction the Supreme Court has

taken. But there is no direct conflict between any Supreme

Court case and our precedents, Wiggins and Baker, such that

those cases are “clearly irreconcilable” with Supreme Court

law. A three-judge panel would therefore not be justified in

departing from those precedents. See Miller v. Gammie,

335 F.3d 889, 900 (9th Cir. 2003).

With these observations, I concur in the opinion in full.