Cardwell #198222 v. Thornell

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Jeremy Cardwell,
Petitioner,
v.
Ryan Thornell, et al.,
Respondents.
No. CV-24-02789-PHX-SPL (MTM)
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT
JUDGE:
On October 15, 2024, Petitioner Jeremy Cardwell, who is confined in the Arizona
State Prison Complex-Yuma, filed a pro se Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254 (Doc. 1).
I. SUMMARY OF CONCLUSION
Petitioner was convicted in Maricopa County Superior Court, case #CR2013-
101774, of first-degree murder and second-degree burglary. He was sentenced to a natural
life term of imprisonment for the murder charge and a 15-year term of imprisonment for
the burglary charge. In his Petition, Petitioner raises nine grounds for relief. Because his
claims are either non-cognizable, procedurally defaulted without excuse, or without merit,
the Court will recommend his Petition for Writ of Habeas Corpus be denied and dismissed
with prejudice.
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II. BACKGROUND
A. Facts
The Arizona Court of Appeals found the following facts and procedural history as
true:1
After the victim and her husband, Michael Mors, divorced in 2009,
the victim continued to reside in the couple’s home (“the Home”). The
divorce had been contentious, and although the family court had ordered the
victim to sell the Home and pay Mors his share of any potential sale proceeds,
a downturn in the local housing market prevented the victim from doing so
immediately. The victim obtained an order of protection against Mors,
prohibiting him from contacting her or coming to the Home.
Mors and Appellant were close friends and roommates. In January
2012, they moved into a bedroom in a home owned by a couple they had
recently met, after explaining to the couple that “they needed somewhere to
stay until their house became available.” They each paid $200 per month in
rent.
Between 5:55 p.m. and 6:18 p.m. on February 25, 2012, the victim’s
boyfriend went to the Home, where he discovered the victim’s “cold” lifeless
body. She had been strangled sometime after approximately 11:00 a.m., and
pennies covered her eyes. The subsequent police investigation revealed that,
although the victim’s credit and debit cards and a meat slicer were apparently
missing, the Home had been “staged” to appear as if it had been burglarized.
Mors’ fingerprints were discovered on a mirror on a closet door in the Home.
In March 2012, Mors “got the keys to the house,” and Appellant
moved into the Home the same day. Sometime thereafter, Appellant was
placed in jail on unrelated charges. In May 2012, Mors sold the Home. Mors
received $172,196.14 from the proceeds, and he moved to another state in
June 2012.
Initially, Mors was a suspect in the victim’s murder, but his DNA did
not match the DNA collected from underneath the victim’s fingernails.
Appellant’s DNA, however, was found to be a contributor to the DNA
mixture under the victim’s left fingernails.
Based on information gleaned from cell phone towers in the area,
1 The Arizona Court of Appeals’ recitation of the facts is presumed correct. See 28 U.S.C.
§ 2254(d)(2), (e)(1); Runningeagle v. Ryan, 686 F.3d 758, 763 n.1 (9th Cir. 2012) (rejecting
argument that statement of facts in state appellate court’s opinion should not be afforded
the presumption of correctness).
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police determined Appellant’s cell phone and, presumably, Appellant, were
near the Home at approximately the time the victim was killed, but Mors’
phone was not. Police also obtained a postcard (“the Postcard”) written by
Appellant while he was in jail after the victim’s murder. The Postcard was
addressed to Mors at the Home’s address and delivered to the Home in July
2012 when its new owners—who purchased the Home from Mors—resided
there. The message on the Postcard indicates Appellant believed he had
satisfied his obligations pursuant to a “deal” between him and Mors, and
Appellant wanted “to know where we stand.”
A grand jury issued an indictment, charging Appellant with Count I,
first degree murder, a class one felony, and Count II, burglary in the second
degree, a class three felony.
State v. Cardwell, 2016 WL 1375770, at *1-2 (Ariz. Ct. App. April 7, 2016) (footnotes
omitted).
Following trial, Petitioner was convicted as noted above. (Doc. 11-2 at 10; Exh.
BB.) On June 13, 2014, the court sentenced Petitioner to natural life for Count I and to a
concurrent 15-year prison term for Count II. (Doc. 11-2 at 27; Exh. CC.)
B. Direct Appeal
Petitioner timely appealed his convictions and sentences, arguing the trial court
erred in three evidentiary rulings, in denying his request for a third-party culpability jury
instruction, and in considering pecuniary gain as an aggravating factor for sentencing
purposes. Cardwell, 2016 WL 1375770, at *1. On April 7, 2016, the Arizona Court of
Appeals affirmed the trial court’s decision. Id. On September 15, 2016, the Arizona
Supreme Court denied review, and the mandate issued on October 19, 2016. (Doc. 11-2 at
148, 150; Exhs. GG, HH.)
C. Post-Conviction Relief Proceedings
On September 22, 2016, Petitioner filed a timely notice of post-conviction relief in
the trial court. (Doc. 11-2 at 154; Exh. II.) On January 17, 2017, appointed counsel filed a
notice of completion stating that after reviewing the record, he believed that no basis in
fact or law existed for post-conviction relief. (Doc. 11-2 at 161; Exh. KK.) The trial court
then granted Petitioner additional time to file a pro per PCR petition. (Doc. 11-2 at 166;
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Exh. LL.) After numerous other extension requests were granted, Petitioner filed his PCR
petition on June 19, 2021, raising five grounds for relief. (Doc. 11-2 at 175; Exh. OO.)
On April 12, 2022, the trial court dismissed Petitioner’s PCR petition, finding
Petitioner failed to present any material issue of fact or law entitling him to relief. (Doc.
11-5 at 17; Exh. RR.) The Arizona Court of Appeals denied Petitioner’s petition for review
of the trial court’s decision on October 16, 2023. State v. Cardwell, 2023 WL 6807186
(Ariz. Ct. App. Oct. 16, 2023). Petitioner did not seek further review of the Court of
Appeal’s decision and the mandate issued on January 2, 2024. (Doc. 11-5 at 174; Exh.
YY.)
On May 27, 2022, Petitioner filed a successive notice of post-conviction relief
claiming newly discovered material facts support relief pursuant to Ariz. R. Crim. P.
32.1(e). (Doc. 11-5 at 178; Exh. ZZ.) On August 24, 2022, the trial court dismissed
Petitioner’s notice for failing to state a claim for which relief can be granted in a second
PCR proceeding. (Doc. 11-6 at 4; Exh. BBB.)
On August 31, 2022, Petitioner filed another successive notice of post-conviction
relief again claiming newly discovered material facts support relief pursuant to Ariz. R.
Crim. P. 32.1(e). (Doc. 11-6 at 7; Exh. CCC.) On October 25, 2022, the trial court
dismissed Petitioner’s notice for failing to state a claim for which relief can be granted in
a successive PCR proceeding. (Doc. 11-6 at 31; Exh. FFF.) The court further stated that
under Rule 32.2(b), Petitioner failed to explain the reasons for the untimely assertion of his
claims. (Doc. 11-6 at 31; Exh. FFF.) Lastly, the court found because Petitioner could have
raised his claims on direct appeal, relief was precluded under Rule 32.2(a)(3). (Doc. 11-6
at 31; Exh. FFF.)
On November 12, 2022, Petitioner filed a petition for review in the Arizona Court
of Appeals. (Doc. 11-6 at 35; Exh. GGG.) On April 6, 2023, the Court of Appeals granted
review but summarily denied relief. State v. Cardwell, 2023 WL 2804348 (Ariz. Ct. App.
April 6, 2023). Petitioner did not file a petition for review in the Arizona Supreme Court
and the mandate issued on June 2, 2023. (Doc. 11-6 at 44; Exh. III.)
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III. PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS
In his Petition, Petitioner raises nine grounds for relief. This Court summarized
Petitioner’s claims (Doc. 5), as follows:
• Ground One: The state courts erred in their interpretation of the law under McCoy
v. Louisiana, 584 U.S. 414 (2018);
• Ground Two: The State violated Brady v. Maryland, 373 U.S. 83 (1963);
• Ground Three: Cellphone data used against Petitioner was circumstantial and
prejudicial and violated his right to a fair trial;
• Ground Four: A postcard used against Petitioner at trial should have been excluded
because it had no evidentiary value and violated 18 U.S.C. § 702;
• Ground Five: Defense counsel erred by failing to request an instruction under State
v. Willits, 393 P.2d 274 (1964), where police destroyed Petitioner’s cellphone and
potentially exculpatory evidence;
• Ground Six: Defense counsel failed to properly impeach the State’s witnesses and
allowed perjury;
• Ground Seven: Defense counsel failed to challenge the invalid search warrant for
Petitioner’s DNA;
• Ground Eight: Defense counsel was ineffective by failing to investigate Petitioner’s
case; and
• Ground Nine: Petitioner was not given an evidentiary hearing in state post-
conviction proceedings and should be allowed one.
Respondents have filed a Limited Answer and Supplemental Answer claiming
Petitioner’s claims are either non-cognizable, procedurally defaulted without excuse, or
without merit. (Docs. 11, 14.) Petitioner has filed a Reply and Supplement. (Docs. 12, 18.)
IV. DISCUSSION
A. Non-Cognizability
A federal court may grant habeas relief “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). “[V]iolations of state law are not cognizable on federal habeas review.” Rhoades
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v. Henry, 611 F.3d 1133, 1142 (9th Cir. 2010); Lewis v. Jeffers, 497 U.S. 764, 781 (1990)
(allowing habeas review of errors of state law only where “state court’s finding was so
arbitrary or capricious as to constitute an independent [constitutional] violation”).
A habeas petitioner cannot “transform a state law issue into a federal one merely by
asserting a violation of due process,” Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999)
(quoting Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996)). “When . . . a State creates
a liberty interest, the Due Process Clause requires fair procedures for its vindication – and
federal courts will review the application of those constitutionally required procedures.”
Swarthout v. Cooke, 562 U.S. 216, 220 (2011). However, “the Due Process Clause does
not permit the federal courts to engage in a finely tuned review of the wisdom of state
evidentiary rules.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983); Estelle v.
McGuire, 502 U.S. 62, 71-72 (1991) (acknowledging that evidence admitted or a jury
instruction given in violation of state law are cognizable only if they “so infused the trial
with unfairness as to deny due process of law” (internal quotation omitted)). The Supreme
Court has “defined the category of infractions that violate ‘fundamental fairness’ very
narrowly.” Estelle, 502 U.S. at 73 (quoting Dowling v. United States, 493 U.S. 342, 352
(1990)).
Moreover, “[u]nder AEDPA, even clearly erroneous admissions of evidence that
render a trial fundamentally unfair may not permit the grant of federal habeas relief if not
forbidden by ‘clearly established Federal law,’ as laid out by the Supreme Court.” Holley
v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting 28 U.S.C. § 2254(d)). The
Supreme Court “has not yet made a clear ruling that admission of irrelevant or overtly
prejudicial evidence constitutes a due process violation sufficient to warrant issuance of
the writ.” Id.; see also Greel v. Martel, 472 F. App’x 503, 504 (9th Cir. 2012) (“There is .
. . no clearly established federal law that admitting prejudicial evidence violates due
process.”).
In Ground Nine, Petitioner claims he was not given an evidentiary hearing in state
post-conviction relief proceedings, and he argues that he should be allowed one.
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Petitioner is not entitled to habeas corpus relief on this claim because he does not
allege a violation of a federal law or the United States Constitution, as required for issuance
of a writ of habeas corpus. See 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 67 (“[F]ederal
habeas corpus does not lie for errors of state law”); Franzen v. Brinkman, 877 F.2d 26 (9th
Cir. 1989) (“[a] habeas petition must allege the petitioner’s detention violates the
constitution, a federal statute or a treaty.”). Additionally, the Ninth Circuit has clarified
that procedural errors arising during post-conviction relief proceedings are not cognizable
in habeas corpus proceedings under 28 U.S.C. § 2254 because they do not challenge a
petitioner’s detention. Franzen, 877 F.2d at 26; see also Ortiz v. Stewart, 149 F.3d 923,
939 (9th Cir. 1998) (finding that the post-convictions court’s failure to appoint petitioner
counsel in his second post-conviction proceedings did not constitute a basis for a federal
habeas claim). Accordingly, Petitioner’s challenge to the state court’s failure to hold an
evidentiary hearing during his post-conviction proceeding fails to state a cognizable claim.
B. Exhaustion and Procedural Default
Ordinarily, a federal court may not grant a petition for writ of habeas corpus unless
a petitioner has exhausted available state remedies. 28 U.S.C. § 2254(b). To exhaust state
remedies, a petitioner must afford the state courts the opportunity to rule upon the merits
of his federal claims by “fairly presenting” them to the state’s “highest” court in a
procedurally appropriate manner. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (“[t]o provide
the State with the necessary ‘opportunity,’ the prisoner must ‘fairly present’ his claim in
each appropriate state court . . . thereby alerting that court to the federal nature of the
claim”). In Arizona, a petitioner must fairly present his claims to the Arizona Court of
Appeals by properly pursuing them through the state’s direct appeal process or through
appropriate post-conviction relief. See Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir.
1999); Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994).
A claim has been fairly presented if the petitioner has described both the operative
facts and the federal legal theory on which his claim is based. See Baldwin, 541 U.S. at 33.
A “state prisoner does not ‘fairly present’ a claim to a state court if that court must read
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beyond a petition or brief . . . that does not alert it to the presence of a federal claim in order
to find material, such as a lower court opinion in the case, that does so.” Id. at 31-32. Thus,
“a petitioner fairly and fully presents a claim to the state court for purposes of satisfying
the exhaustion requirement if he presents the claim: (1) to the proper forum . . . (2) through
the proper vehicle, . . . and (3) by providing the proper factual and legal basis for the claim.”
Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir. 2005) (internal citations omitted).
A claim may be procedurally defaulted and barred from federal habeas corpus
review when a petitioner failed to present his federal claims to the state court, but returning
to state court would be “futile” because the state court’s procedural rules, such as waiver
or preclusion, would bar consideration of the previously unraised claims. See Teague v.
Lane, 489 U.S. 288, 297-99 (1989); Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir. 2002). If
no state remedies are currently available, a claim is technically exhausted, but procedurally
defaulted. Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991).
1. Ground Two
In Ground Two, Petitioner alleges that the State violated Brady v. Maryland, 373
U.S. 83 (1963) “by not disclosing to defense state agents were known liars and had criminal
records.” (Doc. 1 at 12.)
The record reflects that Petitioner never raised the claim alleged in Ground Two on
direct appeal. (Doc. 14-1 at 3; Exh. A.) However, in his third PCR proceeding, Petitioner
claimed, among other things, the State had committed “a Brady violation and prosecutorial
misconduct.” (Doc. 11-6 at 13-16; Exh. EEE.) Citing Rule 32.2(a)(3) of the Arizona Rules
of Criminal Procedure, the state court found that this claim was precluded under state law
as the claim could have been raised on direct appeal, but was not. (Doc. 11-6 at 31; Exh.
FFF.) Arizona Rule of Criminal Procedure 32.2(a) constitutes an adequate and independent
state ground for denying review. See, e.g., Simmons v. Schriro, 187 Fed. Appx. 753, 754
(9th Cir. 2006) (holding that Arizona’s procedural rules are “clear” and “well-
established”); Stewart v. Smith, 46 P.3d 1067, 1070 (Ariz. 2002) (explaining that for most
trial error, the “State may simply show that the defendant did not raise the error at trial, on
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appeal, or in a previous collateral proceeding” for preclusion under Rule 32.2(a)) (internal
quotation omitted); Stewart v. Smith, 536 U.S. 856, 860 (2002) (finding Rule 32.2(a)
determinations independent of federal law); Ortiz, 149 F.3d at 932 (finding Rule 32.2(a)
regularly followed and adequate).
Accordingly, because the state court denied the same claim alleged in Ground Two
by invoking an adequate and independent rule, Ground Two is procedurally barred.
2. Ground Three
In Ground Three, Petitioner argues cellphone data used against him was
circumstantial and prejudicial and violated his constitutional right to a fair trial. (Doc. 1 at
14.)
Petitioner never raised the claim alleged in Ground Three on direct appeal or in any
of his PCR proceedings. (Doc. 14-1 at 3, Exh. A; Doc. 11-2 at 175, Exh. OO; Doc. 11-5 at
178, Exh. ZZ; Doc. 11-6 at 7, Exh. CCC.) Rather, on direct appeal, Petitioner argued the
trial court erred in denying his motion to preclude the State’s testimony of the State’s cell
tower experts, Steve Kartz and Anthony Badalamenti, arguing the testimony provided by
them was cumulative, unnecessary, and a waste of time. (Doc. 14-1 at 3.)
Therefore, Petitioner failed to fairly present this claim. Failure to fairly present
Ground Three has resulted in the procedural default of the claim because if Petitioner were
to return to state court, it would be found waived and untimely under Rules 32.2(a)(3) and
32.4(b)(3) of the Arizona Rules of Criminal Procedure because it does not fall within an
exception to preclusion, Ariz. R. Crim. P. 32.2(b); 32.1(b)-(h). Ground Three is technically
exhausted but procedurally defaulted. See Coleman, 501 U.S. at 735 n.1.
3. Ground Four
In Ground Four, Petitioner asserts a violation of his constitutional right to fair trial
stating a postcard used against him should have been excluded because it had no
evidentiary value and violated 18 U.S.C. § 702. (Doc. 1 at 17.)
Petitioner never raised the specific claim alleged in Ground Four on direct appeal
or in any of his PCR proceedings. (Doc. 14-1 at 3, Exh. A; Doc. 11-2 at 175, Exh. OO;
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Doc. 11-5 at 178, Exh. ZZ; Doc. 11-6 at 7, Exh. CCC.) Instead, Petitioner alleged on direct
appeal that the postcard should have been precluded under the Arizona Rules of Evidence
because its probative value was substantially outweighed by the danger of unfair prejudice.
(Doc. 14-1 at 3, Exh. A.) Therefore, Petitioner failed to fairly present this claim. See
Baldwin, 541 U.S. at 33 (rejecting petitioner’s assertion that his claim had been “fairly
presented” because his brief in the state appeals court did not indicate that “he was
complaining about a violation of federal law”); Hiivala v. Wood, 195 F.3d 1098 (9th Cir.
1999) (holding that petitioner failed to exhaust federal due process issue in state court
because petitioner presented claim in state court only on state grounds).
Failure to fairly present Ground Four has resulted in the procedural default of the
claim because if Petitioner were to return to state court, it would be found waived and
untimely under Rules 32.2(a)(3) and 32.4(b)(3) of the Arizona Rules of Criminal Procedure
because it does not fall within an exception to preclusion, Ariz. R. Crim. P. 32.2(b);
32.1(b)-(h). Ground Four is technically exhausted but procedurally defaulted. See
Coleman, 501 U.S. at 735 n.1.
4. Cause and Prejudice, or Fundamental Miscarriage of Justice
A procedurally defaulted claim may not be barred from federal review “if the
petitioner can demonstrate either (1) ‘cause for the default and actual prejudice as a result
of the alleged violation of federal law,’ or (2) ‘that failure to consider the claims will result
in a fundamental miscarriage of justice.’” Jones v. Ryan, 691 F.3d 1093, 1101 (9th Cir.
2012) (quoting Coleman, 501 U.S. at 732). See also Boyd v. Thompson, 147 F.3d 1124,
1126-27 (9th Cir. 1998) (the cause and prejudice standard applies to pro se petitioners and
to those represented by counsel). To establish “cause,” a petitioner must establish that some
objective factor external to the defense impeded his efforts to comply with the state’s
procedural rules. Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008) (quoting Murray v.
Carrier, 477 U.S. 478, 488-89 (1986)). “‘[P]rejudice’ is actual harm resulting from the
constitutional violation or error.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984).
To establish prejudice, a petitioner must show that the alleged error “worked to his actual
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and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982); Thomas v. Lewis, 945 F.2d
1119, 1123 (9th Cir. 1996). Where a petitioner fails to establish either cause or prejudice,
the court need not reach the other requirement. See Hiivala, 195 F.3d at 1105 n.6; Cook,
538 F.3d at 1028 n.13.
Here, Petitioner has not established that any exception to procedural default applies.
Having filed a timely appeal and PCR proceedings raising other issues than those he now
raises in his habeas petition, the Court finds no objective factor external to the defense
impeded Petitioner’s ability to comply with Arizona’s procedural rules.
A federal court may also review the merits of a procedurally defaulted claim if the
petitioner demonstrates that failure to consider the merits of that claim will result in a
“fundamental miscarriage of justice.” Schlup v. Delo, 513 U.S. 298, 327 (1995). The
standard for establishing a Schlup procedural gateway claim is “demanding.” House v. Bell,
547 U.S. 518, 538 (2006). The petitioner must present “evidence of innocence so strong
that a court cannot have confidence in the outcome of the trial.” Schlup, 513 U.S. at 316.
Under Schlup, to overcome the procedural hurdle created by failing to properly present his
claims to the state courts, a petitioner “must demonstrate that the constitutional violations
he alleges ha[ve] probably resulted in the conviction of one who is actually innocent, such
that a federal court’s refusal to hear the defaulted claims would be a ‘miscarriage of
justice.’” House, 547 U.S. at 555-56 (quoting Schlup, 513 at 326, 327). To meet this
standard, a petitioner must present “new reliable evidence – whether it be exculpatory
scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that
was not presented at trial.” Schlup, 513 U.S. at 324. Petitioner has failed to satisfy this
standard and, therefore, cannot excuse his procedural default on this basis.
C. Merits
Pursuant to the AEDPA2, a federal court “shall not” grant habeas relief with respect
to “any claim that was adjudicated on the merits in State court proceedings” unless the state
2 Antiterrorism and Effective Death Penalty Act of 1996.
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court decision was (1) contrary to, or an unreasonable application of, clearly established
federal law as determined by the United States Supreme Court; or (2) based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 412-13 (2000)
(O’Connor, J., concurring and delivering the opinion of the Court as to the AEDPA
standard of review). This standard is “difficult to meet.” Harrington v. Richter, 562 U.S.
86, 102 (2011). It is also a “highly deferential standard for evaluating state court rulings,
which demands that state court decisions be given the benefit of the doubt.” Woodford v.
Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks
omitted). “When applying these standards, the federal court should review the ‘last
reasoned decision’ by a state court . . . .” Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th
Cir. 2004).
A state court’s decision is “contrary to” clearly established precedent if (1) “the state
court applies a rule that contradicts the governing law set forth in [Supreme Court] cases,”
or (2) “if the state court confronts a set of facts that are materially indistinguishable from a
decision of [the Supreme Court] and nevertheless arrives at a result different from [its]
precedent.” Williams, 529 U.S. at 404-05. “A state court’s decision can involve an
‘unreasonable application’ of Federal law if it either 1) correctly identifies the governing
rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2)
extends or fails to extend a clearly established legal principle to a new context in a way
that is objectively unreasonable.” Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002).
1. Ground One
In Ground One, Petitioner alleges the state courts erred in their interpretation of the
law under McCoy v. Louisiana, 584 U.S. 414 (2018). (Doc. 1 at 6.)
Construed liberally, Petitioner raised this same claim in his first PCR proceeding.
(Doc. 11-2 at 175, Exh. OO; Doc. 11-5 at 30, Exh. VV.) The Arizona Court of Appeals
denied the claim finding the following:
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Cardwell asserts his trial counsel “admit[ted Cardwell’s] guilt” by failing to
raise his unsupported claim that he was at a study group at the time of the
murder and instead acknowledging, consistent with the evidence, that
Cardwell had been “in the area” of the victim’s home. Thus, Cardwell asserts,
he is entitled to relief pursuant to McCoy v. Louisiana, 584 U.S. –––, 138 S.
Ct. 1500, 200 L.Ed.2d 821 (2018). In McCoy, the defendant “adamantly
objected to any admission of guilt,” but trial counsel, during the guilt phase
of the trial, admitted to the jury that the defendant had committed the
murders, based on counsel’s view that “confessing guilt offer[ed] the
defendant the best chance to avoid the death penalty.” 138 S. Ct. at 1505.
The Supreme Court ordered a new trial, explaining that while “[t]rial
management is the lawyer’s province,” some decisions “are reserved for the
client,” including the “[a]utonomy to decide that the objective of the defense
is to assert innocence.” Id. at 1508, 1512. The Court noted that this was not
a case of ineffective assistance of counsel “[b]ecause a client’s autonomy,
not counsel’s competence,” was at issue. Id. at 1510-11. The facts of McCoy
do not resemble the facts of this case. Counsel’s decision to reject Cardwell’s
unsupported defense and instead present a defense consistent with available
evidence is not an admission of Cardwell’s guilt.
Cardwell, 2023 WL 6807186, at *2.
The Court finds that the state court’s resolution of this claim was not contrary to, or
an unreasonable application of federal law, or based on an unreasonable determination of
the facts. McCoy is only implicated where the attorney concedes guilt “over the defendant’s
intransigent and unambiguous objection.” McCoy, 584 U.S. at 420. Thus, to obtain relief
under McCoy, the record must show that defendant’s plain objective is to maintain his
innocence and pursue an acquittal, and that trial counsel disregards that objective and
overrides his client by conceding guilt. See USA v. Gerrans, 752 F.Supp.3d 1120, 1130
(N.D. Cal. Oct. 1, 2024) (citing McCoy, 584 U.S. at 421, 424-25).
Here, unlike in McCoy, Petitioner’s counsel never admitted Petitioner’s guilt, but
rather argued at trial that the victim’s ex-husband, Michael Mors, committed the murder,
which was consistent with arguments Petitioner raised in his PCR proceeding. (See Doc.
11-1 at 691, 2309, Exhs. L, Z (opening statement and closing argument); Doc. 11-5 at 17,
Exh. RR (“Defendant’s counsel followed the same strategy that Defendant advocates here
– an argument that Michael Mors committed or caused someone else to commit the
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murder.”).) To the extent Petitioner claims that counsel admitted guilt by mentioning
certain parts of the State’s evidence during closing argument, the Court is not persuaded.
During closing, counsel simply addressed the State’s evidence suggesting that
phone records placed Petitioner near the victim’s house and distinguished that evidence
suggesting an alternative interpretation. (Doc. 11-1 at 48-51, Exh. Z.) Distinguishing
potentially harmful evidence has not been held to constitute a concession of guilt. See, e.g.,
United States v. Rosemond, 958 F.3d 111, 123 (2d Cir. 2020) (when a lawyer makes
strategic concessions in pursuit of an acquittal, there is no concession of guilt and no
McCoy violation).
Accordingly, the Court finds that Petitioner’s counsel never admitted Petitioner’s
guilt, and McCoy does not apply. The Court will recommend that Petitioner’s claim as
alleged in Ground One be denied.
2. Grounds Five through Eight
In Grounds Five through Eight, Petitioner argues the following: Ground Five –
Defense counsel erred by failing to request an instruction under State v. Willits, 393 P.2d
274 (1964), where police destroyed Petitioner’s cellphone and potentially exculpatory
evidence; Ground Six – Defense counsel failed to properly impeach the State’s witnesses
and allowed perjury; Ground Seven – Defense counsel failed to challenge the invalid search
warrant for Petitioner’s DNA; and Ground Eight – Defense counsel was ineffective by
failing to investigate Petitioner’s claims. (Doc. 1 at 21-37.)
To establish 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). It is the petitioner’s burden to demonstrate both prongs of the Strickland test.
Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Vega v. Ryan, 757 F.3d 960, 969 (9th
Cir. 2014). With regard to the performance prong of the Strickland test, the petitioner must
overcome the strong presumption that counsel’s conduct was within the range of
reasonable professional assistance required of attorneys in that circumstance. See
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Strickland, 466 U.S. at 687. It is well settled that “counsel’s tactical decisions at trial . . .
are given great deference and must [] meet only objectively reasonable standards.” Elmore
v. Sinclair, 799 F.3d 1238, 1250 (9th Cir. 2015). See also Reynoso v. Giurbino, 462 F.3d
1099, 1112 (9th Cir. 2006). 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. This
standard for assessing prejudice requires a substantial, not just “conceivable,” likelihood
of a different result. Id. at 693. A court need not consider both factors if the court
determines that a petitioner has failed to meet one factor. Id. at 697 (“If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed.”); LaGrand v. Stewart, 133 F.3d 1253,
1270 (9th Cir. 1998) (a court need not look at both deficiency and prejudice if the habeas
petitioner cannot establish one or the other).
a. Ground Five
Petitioner argues that defense counsel erred by failing to request an instruction under
State v. Willits, 393 P.2d 274 (Ariz. 1964). (Doc. 1 at 21.)
Construed liberally, Petitioner presented the claim alleged in Ground Five in his
first PCR proceeding. (Doc. 11-2 at 175, Exh. OO; Doc. 11-5 at 30, Exh. VV.) The Arizona
Court of Appeals denied the claim finding the following:
Cardwell also argues that his trial counsel should have “looked into” his two
cell phones. He asserts, as we understand his claim, that the police had used
the wrong phone number to evaluate his whereabouts on the day of the
murder because the number used to track him had not yet been transferred to
the phone he began carrying a week before the murder. He also asserts that
one of his phones was destroyed after it had been impounded and suggests
that counsel was ineffective in failing to request a jury instruction under State
v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964). A Willits instruction informs
the jury that it may draw an adverse inference against the state if “the state
loses or destroys evidence that would have been useful to the defense.” State
v. Glissendorf, 235 Ariz. 147, ¶ 7, 329 P.3d 1049 (2014). But Cardwell has
identified no evidence supporting his claim, including evidence suggesting
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the impounded phone had been destroyed or had any exculpatory value,[] or
evidence Cardwell had informed his counsel that his second phone
potentially could establish an alibi.
Cardwell, 2023 WL 6807186, at *2.
The Court finds that the state court’s finding was not contrary to, or an unreasonable
application of federal law, or based on an unreasonable determination of the facts. “A
Willits instruction is appropriate when the state destroys or loses evidence potentially
helpful to the defendant.” State v. Lopez, 786 P.2d 959, 964 (Ariz. 1990); Willits, 393 P.2d
at 277-79. Destruction or non-retention of evidence does not automatically entitle a
defendant to a Willits instruction. “[A] defendant must show (1) that the state failed to
preserve material and reasonably accessible evidence having a tendency to exonerate him,
and (2) that this failure resulted in prejudice.” State v. Henry, 863 P.2d 861, 875 (Ariz.
1993).
In support of his claim, Petitioner states that the Mesa Police Department told his
private investigator that his phone had been destroyed. (Doc. 1 at 21-23.) He also states
that the fact that his phone “was sent to the forensics dept. to learn how to bypass the pass
codes on I-Phones . . . is evident enough that the phone was destroyed.” (Id.) However,
other than his speculative, unsupported statements, Petitioner has failed to provide any
evidence demonstrating either that his impounded phone had been destroyed or that it
contained any potentially exculpatory evidence.3 Accordingly, having not established that
3 In his PCR proceedings, Petitioner presented evidence consisting of an unmarked
photograph of two phones, documents indicating the Mesa Police Department had
possession of a phone, and a receipt from a cellular service company showing two phone
numbers. Cardwell, 2023 WL 6807186, at *2. The Court of Appeals addressed this
evidence in a footnote stating:
Those documents do not show the phone had been destroyed. He attached to
his petition for review a receipt from a cellular service company showing two
phone numbers. Even if we could consider evidence not presented to the trial
court, see State v. Schackart, 190 Ariz. 238, 247, 947 P.2d 315 (1997), that
receipt is dated months after the murder and lacks any meaningful probative
value.
Id. Although in the instant proceeding Petitioner did not present and does not appear to rely
on these documents, the Court agrees and finds that the state court’s finding was not
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he was entitled to a Willits instruction, Petitioner cannot demonstrate deficient performance
because counsel cannot be considered ineffective for failing to advance a meritless
position. See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (“[T]rial counsel cannot
have been ineffective for failing to raise a meritless objection.”); Rupe v. Wood, 93 F.3d
1434, 1445 (9th Cir. 1996) (explaining that “the failure to take a futile action can never be
deficient performance”); see also Garcia v. Ryan, 2013 WL 4714370 at *3 (D. Ariz. Aug.
29, 2013) (Petitioner was not entitled to a Willits instruction as he failed to describe how
evidence would have been exculpatory and therefore, trial counsel was not ineffective for
failing to request one.).
In sum, because Petitioner has not shown that the state court’s determination was
based on an unreasonable determination of the facts, or that it was contrary to or an
unreasonable application of Strickland, the Court will recommend that Petitioner’s claim
as alleged in Ground Five be denied.
b. Ground Six
Petitioner argues that defense counsel erred by failing to impeach the State’s
witnesses. (Doc. 1 at 24.) Specifically, Petitioner discusses counsel’s cross-examination of
Detective Denning and Petitioner’s roommates, Tim and Alison Rice, identifying
inconsistencies in their testimony and providing a narrative of unsupported facts from their
statements. (Id.)
Petitioner raised the same claim in his PCR proceedings. In dismissing his PCR
petition, the trial court stated, “[t]he cross-examinations of the Rices and Detective
Denning were consistent with the strategy to mount a third-party defense centered on
Michael Mors, and the scope was reasonable. Any impeachment of these witnesses would
have either raised trivial issues or harmed other aspects of Defendant’s defense, such as the
need to rely on the Rices’ testimony to support the argument that Michael Mors did not
have an alibi for the time of Tanya Mors’ murder.” (Doc. 11-5 at 17; Exh. RR.) The Arizona
Court of Appeals also denied the claim finding, “attacking the witnesses’ credibility could
contrary to, or an unreasonable application of federal law, or based on an unreasonable
determination of the facts.
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have undermined [Petitioner’s] defense that Mors was responsible for the murder, not him.
In short, Cardwell has not established that competent counsel necessarily would have
pursued the strategy he now proposes.” Cardwell, 2023 WL 6807186, at *3.
Here, the Court finds that Petitioner fails to satisfy the first prong of Strickland.
Cross-examination and impeachment strategy of witnesses are matters of trial tactics.
United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985); Gustave v. United
States, 627 F.2d 901, 905 (9th Cir. 1980). And, a “difference of opinion with respect to
trial tactics . . . alone generally does not constitute a denial of effective assistance of
counsel.” United States v. Mayo, 646 F.2d 369, 375 (9th Cir. 1981); see Strickland, 466
U.S. at 689, 690 (acts or omissions that “might be considered sound trial strategy” do not
constitute ineffective assistance of counsel, and “[s]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable”);
Gustave, 627 F.2d at 904 (“Mere criticism of a tactic or strategy is not in itself sufficient
to support a charge of inadequate representation.” ). “Under Strickland, cross-examination
must be only objectively reasonable, not flawless or to the highest degree of skill.” Dows
v. Wood, 211 F.3d 480, 487 (9th Cir. 2000).
Although Petitioner appears to have wanted his counsel to pursue a more thorough
cross-examination – or impeachment of witnesses – that does not establish constitutionally
deficient performance. Id. (“[C]ounsel’s tactical decisions at trial, such as refraining from
cross-examining a particular witness or from asking a particular line of questions, are given
great deference and must similarly meet only objectively reasonable standards.”).
Thus, Petitioner has not shown that the state court’s determination was based on an
unreasonable determination of the facts, or that it was contrary to or an unreasonable
application of Strickland. The Court will recommend that Petitioner’s claim as alleged in
Ground Six be denied.
c. Ground Seven
Petitioner argues that defense counsel erred by failing to challenge the invalid search
warrant for Petitioner’s DNA. (Doc. 1 at 30.) Petitioner claims that since the State’s case
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“hinges on the discovery of Cardwell’s DNA found on the victim . . . [c]ounsel provided
ineffective assistance by not challenging or attempting to file motions to suppress the
evidence on 4th amendment claims.” (Id.)
Petitioner raised similar claims in his PCR proceedings. In dismissing Petitioner’s
PCR petition, the trial court stated, “[t]here was no basis to file a ‘Franks’ motion to
challenge the warrant to name every person included in the probable cause affidavit, and
the application otherwise was not defective.” (Doc. 11-5 at 17; Exh. RR.) The Arizona
Court of Appeals denied Petitioner’s subsequent appeal stating, “[Petitioner] asserts
counsel should have filed a motion to suppress based on the ‘affidavit for the warrant’
being ‘obtained by a false statement with no investigations.’ We cannot conclude that
additional investigation by police officers would have altered the issuing magistrate’s
finding of probable cause. In short, Cardwell has not identified any reasonable basis on
which counsel might have challenged the warrant.” Cardwell, 2023 WL 6807186, at *3.
Once again, the Court notes that “[m]ere criticism of a tactic or strategy is not in
itself sufficient to support a charge of inadequate representation,” Gustave, 627 F.2d at
904, and a “difference of opinion as to trial tactics . . . alone generally does not constitute
a denial of effective assistance of counsel.” Mayo, 646 F.2d at 375.
Furthermore, Petitioner fails to demonstrate that the issue he now argues should
have been raised would have successful. “When the Sixth Amendment ineffective
assistance of counsel claim is rooted in defense counsel’s failure to litigate a Fourth
Amendment issue, as it is here, petitioner must show that (1) the overlooked motion to
suppress would have been meritorious and (2) there is a reasonable probability that the jury
would have reached a different verdict absent the introduction of the unlawful evidence.”
Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1170 (9th Cir. 2003) (citing Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986)).
Here, as noted above, both the trial court and Court of Appeals found no issues with
the search warrant or the magistrate’s finding of probable cause. Thus, Petitioner cannot
establish ineffective assistance as the outcome of Petitioner’s trial would not have been
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different had a suppression motion been filed. See Bailey v. Newland, 263 F.3d 1022, 1029
(9th Cir. 2001) (“in order to show prejudice when a suppression issue provides the basis
for an ineffectiveness claim, the petitioner must show that he would have prevailed on the
suppression motion, and that there is a reasonable probability that the successful motion
would have affected the outcome”); see also Kimmelman, 477 U.S. at 375 (an omitted
action must be shown to be meritorious to support an ineffective assistance of counsel
claim); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) (“Counsel’s failure to make a futile
motion does not constitute ineffective assistance of counsel.”).
Because Petitioner has not shown that the state courts’ determination on these
claims was based on an unreasonable determination of the facts, or contrary to or an
unreasonable application of Strickland, the Court will recommend that Petitioner’s claim
as alleged in Ground Seven be denied.
d. Ground Eight
Petitioner argues that defense counsel erred by failing to investigate his case. (Doc.
1 at 34.) Specifically, Petitioner states that counsel did not investigate where he lived
previously to show he did not lie to his parole officer; did not investigate whether he owned
a car to show that he did not borrow the Rices’ vehicle the day of the murder; and did not
investigate the booking photograph after the victim’s murder showing he did not have a
scratch on his neck. (Id.) Petitioner also states that counsel never “looked into [his] phones
[claiming] they would have found evidence to exonerate him.” (Id.) Lastly, Petitioner states
that counsel did not investigate his school records to show he was at school at the time of
the murder, and did not independently test the DNA evidence and test the hairs found on
the victim’s body. (Id.)
Petitioner presented the same claims in his PCR proceedings. In dismissing
Petitioner’s PCR petition, the trial court found, in part, that had this evidence been
introduced “it would have done nothing for him at trial” and was “immaterial” to his case,
because “[w]hat was material were his phone records, DNA evidence, motive and
opportunity.” (Doc. 11-5 at 17; Exh. RR.) The Arizona Court of Appeals denied
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Petitioner’s subsequent appeal addressing each of the areas listed above and finding, that
Petitioner failed to provide any evidence or support for his claims, counsel had “strategic
reasons not to emphasize Cardwell’s criminal record,” and such evidence would not have
altered the verdicts. Cardwell, 2023 WL 6807186, at *2.
Defense counsel has a “duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S.
at 691. This includes a duty to investigate the defendant’s “most important defense,”
Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994), and a duty to adequately investigate
and introduce into evidence records that demonstrate factual innocence, or that raise
sufficient doubt on that question to undermine confidence in the verdict. Hart v. Gomez,
174 F.3d 1067, 1070 (9th Cir. 1999). However, “the duty to investigate and prepare a
defense is not limitless: it does not necessarily require that every conceivable witness be
interviewed.” Hendricks v. Calderon, 70 F.3d 1032, 1040 (9th Cir. 1995) (citations and
quotations omitted). When the record clearly shows that the lawyer was well-informed,
and the defendant fails to state what additional information would be gained by the
discovery she or he now claims was necessary, an ineffective assistance claim fails.
Eggleston v. United States, 798 F.2d 374, 376 (9th Cir. 1986).
The Court finds that Petitioner has not shown that the state court’s determination
was based on an unreasonable determination of the facts, or that it was contrary to or an
unreasonable application of Strickland. Initially, the Court notes that much of what
Petitioner complains regarding what investigations to pursue are based on counsel’s
strategic decisions. As noted above, counsel pursued a third-party culpability defense,
arguing that Mors – who had a contentious divorce with the victim and whose fingerprints
were found inside the victim’s house – committed the murder. Although Petitioner now
appears to disagree with his trial counsel’s strategy of not further investigating certain
issues related to his “unsupported [alibi] defense,” Cardwell, 2023 WL 6807186, at *2,
tactical and strategic choices made by counsel after due consideration do not constitute
ineffective assistance of counsel. See Strickland, 466 U.S. at 689. As noted above, there is
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a strong presumption that counsel’s conduct during trial was within the wide range of
reasonable professional assistance, and this Court should not scrutinize counsel’s
performance by looking at the decisions made in an after-the-fact manner. Id. at 688-89.
Furthermore, when counsel has “reason to believe that pursuing certain
investigations would be fruitless or even harmful, counsel’s failure to pursue those
investigations may not later be challenged as unreasonable.” Id. at 691. Regarding
Petitioner’s claim that counsel failed to investigate his school attendance records in support
of his alibi defense, Petitioner only speculates what such records would show and has failed
to identify any witness corroborating his attendance at any school-related activity or,
otherwise, name any other individual who attended any activity. Additionally, the Court
finds where Petitioner lived previously and whether he owned his own vehicle at the time
of the victim’s murder were immaterial to his case and unnecessary to refute the State’s
primary evidence of Petitioner’s DNA found underneath the victim’s fingernails and
information gleaned from cell phone towers that Petitioner’s cell phone was near the
victim’s residence at the time of the murder. Cardwell, 2016 WL 1375770, at *1
As to the booking photograph, the Court has reviewed the black-and-white
photograph Petitioner attached to his PCR documents and agrees with the state court that
the photograph does not show either side of Petitioner’s neck where the Rice’s testified he
had a scratch. Thus, any such evidence would have been immaterial to his case. Similarly,
regarding Petitioner’s claim that if counsel would have “looked into [his] phones” he would
have found evidence to exonerate him, including that the Mesa Police Department
destroyed his phone – Petitioner presents no evidence establishing that any phone had been
destroyed or contained any exculpatory information. A petitioner may not simply speculate
about what evidence might have been, but must adduce evidence to show what it would
have been. See Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997).
Lastly, regarding Petitioner’s claim that counsel did not independently test the DNA
evidence and test the hairs found on the victim’s body, Petitioner argues that “an
independent test on the DNA would have done no harm, but would have everything to gain
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for [Petitioner].” (Doc. 1 at 34.) First, given the DNA evidence against Petitioner, counsel
could have strategically decided not to conduct any further DNA testing as the result may
have been inculpatory. See, e.g., Harrington, 562 U.S. at 107-08 (counsel’s decision not to
call blood evidence experts reasonable, where proposed evidence “carried its own serious
risks” of demonstrating falsity of petitioner’s account of the crime); Grisby, 130 F.3d at
372-73 (counsel made reasonable strategic decision not to test blood found at crime scene
for fear the test results might inculpate petitioner).
Further, Petitioner has failed to provide any evidence to suggest that DNA testing
would have connected another individual to the murder. Petitioner’s conclusory
allegations, without more, are insufficient to warrant habeas relief. See Bragg v. Galaza,
242 F.3d 1082, 1088-89 (9th Cir. 2001) (mere speculation that further investigation might
lead to evidence helpful to petitioner was insufficient “to demonstrate ineffective assistance
of counsel for failure to investigate”); Jones v. Gomez, 66 F.3d 199, 204 (9th Cir. 1995)
(“It is well-settled that ‘[c]onclusory allegations which are not supported by a statement of
specific facts do not warrant habeas relief.’” (citation omitted)); James, 24 F.3d at 26
(rejecting ineffective assistance of counsel claim based on unsupported allegations and
noting that “[c]onclusory allegations which are not supported by a statement of specific
facts do not warrant habeas relief”).
The Court finds that the state court’s rejection of these claims was neither contrary
to, nor involved an unreasonable application of, clearly established federal law. The Court
will recommend that Petitioner’s claims as alleged in Grounds Eight be denied.
V. CONCLUSION
Based on the above analysis, the Court finds that Petitioner’s claims set forth in his
Petition for Writ of Habeas Corpus are either non-cognizable, procedurally defaulted
without excuse, or without merit. The Court will recommend his Petition for Writ of
Habeas Corpus be denied and dismissed with prejudice.
\\\
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Accordingly,
IT IS THEREFORE RECOMMENDED that the Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) be DENIED and DISMISSED WITH
PREJUDICE.
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave
to proceed in forma pauperis on appeal be DENIED because Petitioner has not made a
substantial showing of the denial of a constitutional right and because the dismissal of the
Petition is justified by a plain procedural bar and reasonable jurists would not find the
ruling debatable.
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. The
parties shall have 14 days from the date of service of a copy of this Report and
Recommendation within which to file specific written objections with the Court. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days
within which to file a response to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s Report
and Recommendation. See Fed. R. Civ. P. 72.
Dated this 23rd day of April, 2026.
Case 2:24-cv-02789-SPL Document 19 Filed 04/24/26 Page 24 of 24