James D Fox v. Kim Holland

Northern District of California, cand-4:2015-cv-02134

ORDER RE: MOTION TO DISMISS; DIRECTING PARTIES TO SUBMIT SUPPLEMENTAL BRIEFING re {{10}} MOTION to Dismiss Habeas Petition as Untimely filed by Kim Holland. Signed by Judge Yvonne Gonzalez Rogers on 5/11/16.

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1 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 JAMES DANIEL FOX, 5 Case No. 15-cv-02134 YGR Petitioner, 6 ORDER RE: MOTION TO DISMISS; v. DIRECTING PARTIES TO SUBMIT 7 SUPPLEMENTAL BRIEFING KIM HOLLAND, WARDEN, 8 Respondent. Re: Dkt. No. 10 9 10 I. INTRODUCTION 11 Petitioner James Daniel Fox filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 12 section 2254, alleging he is unlawfully imprisoned as the consequence of a time-barred Northern District of California United States District Court 13 prosecution in violation of the Ex Post Facto Clause in the Unites States Constitution. (Dkt. No. 14 1, "Pet.") Before the Court is Respondent's motion to dismiss the petition as untimely under the 15 Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. section 2244(d). 16 Petitioner opposes, asserting defenses of delayed commencement and equitable tolling. 17 Having considered the papers submitted by the parties and the pleadings in this action, and 18 for the reasons set forth below, the Court rejects Petitioner's delayed commencement argument 19 and requires additional briefing with respect to his equitable tolling argument.1 20 II. BACKGROUND 21 On April 22, 2010, Petitioner pled no contest in the Santa Clara Superior Court to three 22 counts of engaging in lewd or lascivious acts with a minor when she was 12, 13, and 14 years old. 23 (Pet., Exh. A; id., Exh. E, "Superior Court Order," at 2.) The negotiated plea permitted dismissal 24 of four additional counts. (Id. at 1.) The offenses to which Petitioner pled no contest occurred 25 between March 2000 and June 2003. (Id., Exh. E at 2.) They included violations of California 26 27 1 Pursuant to Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court 28 finds this motion appropriate for decision without oral argument. 1 1 Penal Code sections 288(a) and 288(c)(1). (Id., Exh. B.) On August 3, 2010, Petitioner was 2 sentenced to six years imprisonment. (Id. at 2.) Petitioner did not appeal his judgment, which 3 became final sixty days after his August 3, 2010 sentencing, or on October 2, 2010. 4 On August 30, 2012 – a year and ten months after Petitioner's conviction became final – 5 Petitioner filed his first state petition for a writ of habeas corpus (the "State Habeas") in Santa 6 Clara County Superior Court. (See Superior Court Order.) In support of his State Habeas, 7 Petitioner alleged that his trial lawyer provided ineffective assistance of counsel ("IAC") for 8 failing to raise a relevant statute of limitations defense with the court or in consultation with 9 Petitioner.2 (Id. at 1.) The criminal complaint in Petitioner's case was filed in December 2009, 10 nearly a decade after the earliest alleged offense took place. (Id.) After the alleged offenses, but 11 before Petitioner was charged, California legislation extended the applicable statute of limitations 12 from three years to ten years. (Id. at 2.) The State Habeas contended that the original three-year Northern District of California United States District Court 13 statute of limitations, rather than the later enacted ten-year statutory limit, applied at the time he 14 committed the offenses, rendering his prosecution time-barred – an argument his trial attorney 15 failed to raise. (Id.) The Superior Court Order denied the State Habeas, reasoning that 16 Petitioner's prosecution was not time-barred because the applicable statute of limitations "had 17 been extended before the limitations period had expired on the earliest [of Petitioner's crimes]." 18 (Id. at 2.) In the absence of an underlying violation, the court found that Petitioner's IAC claim 19 could not survive. (Id.) 20 On November 27, 2013, Petitioner filed a petition for a writ of habeas corpus in the 21 California Court of Appeal, which was denied without written opinion on June 23, 2014. (Pet., 22 Exh. D.) On November 26, 2014, Petitioner filed a petition for a writ of habeas corpus in the 23 California Supreme Court. The California Supreme Court denied the petition en banc without a 24 written opinion on March 25, 2015. (Pet., Exh. C.) 25 On May 12, 2015, Petitioner filed the present petition for writ of habeas corpus under 28 26 2 27 Petitioner additionally claimed IAC on the grounds that his attorney falsely threatened him with a life term in prison, a claim that the Superior Court also denied. (See Superior Court 28 Order.) That alternate IAC claim is irrelevant to the matter pending before this Court. 2 1 1 U.S.C. section 2254 (the "Federal Habeas"). Respondent now moves to dismiss on grounds that 2 Petitioner failed to file the Federal Habeas within the AEDPA's one-year time limit. 3 III. DISCUSSION 4 AEDPA imposes a one-year statute of limitations on habeas petitions filed by state 5 prisoners. 28 U.S.C. § 2244(d)(1). Petitions filed by prisoners challenging non-capital state 6 convictions or sentences must be filed within one year of the latest of: 7 (A) the date on which the judgment became final by the conclusion 8 of direct review or the expiration of the time for seeking such review; 9 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of 10 the United States is removed, if the applicant was prevented from filing such State action; 11 (C) the date on which the constitutional right asserted was initially 12 recognized by the Supreme Court, if the right has been newly Northern District of California recognized by the Supreme Court and made retroactively applicable United States District Court 13 to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims 14 presented could have been discovered through the exercise of due diligence. 15 28 U.S.C. § 2244(d)(1)(A)-(D). In general, the one-year period runs from the first trigger, or "the 16 date on which the judgment became final by the conclusion of direct review or the expiration of 17 the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Time during which a properly 18 filed application for state post-conviction or other collateral review is pending is excluded from 19 the one-year time limit. 28 U.S.C. § 2244(d)(2). 20 Here, the limitations period started running on October 2, 2010, i.e., the date on which 21 Petitioner's sentence became final. See 28 U.S.C. § 2244(d)(1)(A); Cal. R. Ct. 8.308(a). Thus, 22 Petitioner had one year from the time the limitations period started running – or until October 2, 23 2011 – to file a federal habeas petition under AEDPA. However, the Federal Habeas was not filed 24 until May 12, 2015, almost four years after the AEDPA limitations period had expired. The 25 Federal Habeas is thus untimely unless Petitioner can show he is entitled to relief from AEDPA's 26 one-year statute of limitations based on either (i) delayed commencement under Section 27 2244(d)(1)(C), or (ii) equitable tolling under Section 2244(d)(2). The Court addresses these two 28 3 1 1 bases for relief raised by Petitioner in turn. 2 A. Delayed Commencement of the Limitations Period 3 A petitioner may attempt to justify the untimely filing of his habeas petition by 4 demonstrating his eligibility for delayed commencement of the limitations period under 5 subheadings (B), (C) or (D) of Section 2244(d)(1). Here, Petitioner claims that the one-year 6 limitations period should run not from October 2, 2010, but from "the date on which the 7 constitutional right asserted was initially recognized by the Supreme Court," i.e. that he is entitled 8 to a delayed commencement of the limitations period under Section 2244(d)(1)(C). Specifically, 9 Petitioner asserts that a right newly recognized by the Supreme Court of the United States in 10 Peugh v. United States, 133 S.Ct. 2072 (2013), is retroactively applicable to him.3 11 To be entitled to delayed commencement under Section 2244(d)(1)(C), Petitioner must 12 assert a constitutional right that is (1) newly recognized by the Supreme Court, and (2) made Northern District of California United States District Court 13 retroactive to cases on collateral review. With respect to the first requirement, to determine 14 whether Peugh confers a newly recognized constitutional right, the Court must first place Peugh in 15 the context of jurisprudence relevant to Petitioner's claim. Petitioner's Federal Habeas alleges that 16 the "actions by the legislature to try and extend the statute of limitations of time barred claims as 17 inferred and as applied by Penal Code Sec. 801.1 [to his case] violates the Ex Post Facto Clause." 18 (Pet. at 12:7-10) (italics supplied.) According to Petitioner, legislation extending the applicable 19 statute of limitations from three years to ten years was enacted after the limitations period on the 20 earliest of his crimes had run. Thus, the Court must first ascertain the place of Peugh in the 21 Supreme Court's jurisprudence on ex post facto laws and statutes of limitations. 22 3 23 Petitioner also suggests that the timing and substance of the holding in People v. Simmons, 210 Cal.App.4th 778 (2012) bears on this question. However, as a state court case, 24 Simmons is immaterial to delayed commencement under Section 2244(d)(1)(C). The statutory language of Section 2244(d)(1)(C) specifies that "the Supreme Court" must recognize the right 25 asserted by the habeas petitioner. See Dodd v. United States, 545 U.S. 353, 357-60 (2005) ("What Congress has said. . . is clear: An applicant has one year from the date on which the right he 26 asserts was initially recognized by this Court") (emphasis supplied). Given that the United States Supreme Court did not decide Simmons, and therefore could not have conferred a new right 27 thereby, Simmons is unavailing under Section 2244(d)(1)(C). 28 4 1 1 The federal Constitution prohibits the federal government and the States from enacting ex 2 post facto laws – laws that have certain unjust retroactive effects. U.S. Const., Art. I, § 9, cl. 3 3 (federal government); Art. I, § 10, cl. 1 (states). Collectively, these clauses are referred to as the 4 "Ex Post Facto Clause." See, e.g., Stogner v. California, 539 U.S. 607, 611 (2003) (discussing the 5 history of "the Ex Post Facto Clause"). The Ex Post Facto Clause prohibits the government from 6 passing any law that (1) makes an act done before the passing of the law, which was innocent 7 when done, criminal; (2) aggravates a crime or makes it greater than it was when it was 8 committed;4 (3) changes the punishment and inflicts a greater punishment for the crime than the 9 punishment authorized by law when the crime was committed; or (4) alters the legal rules of 10 evidence and requires less or different testimony to convict the defendant than was required at the 11 time the crime was committed. Id. at 611-12 (citing Calder v. Bull, 3 U.S 386, 389 (1798)); 12 Carmell v. Texas, 529 U.S. 513, 522 (2000). Northern District of California United States District Court 13 The Ex Post Facto Clause applies to criminal statutes of limitations. Stogner, 539 U.S. at 14 610 (holding that a California law extending the statute of limitations for sex-related child abuse 15 where the prior limitations period had expired was unconstitutionally ex post facto). In some 16 circumstances, legislation that extends limitations periods for prosecutions of crimes may violate 17 the second category of laws prohibited by the Ex Post Facto Clause. Id. This second category 18 includes any law that "'inflict[s] punishments, where the party was not, by law, liable to any 19 punishment.'" Id. at 611-12 (quoting Calder, 3 U.S. at 389). Stogner is the seminal Supreme 20 Court case on this second category as it relates to the revival of expired statutes of limitations. 21 Stogner, 539 U.S. at 608 ("This Court has not previously spoken decisively on this matter."). 22 In Stogner, the Supreme Court addressed the second category of ex post facto laws and 23 held that "a law enacted after expiration of a previously applicable limitations period violates the 24 Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution." Id. at 25 632-33. Stogner confines its ruling to extensions of expired statutes of limitations. Id. at 618 26 4 27 An alternative description of this category is any law that "inflict[s] punishments, where the party was not, by law, liable to any punishment." Stogner, 539 U.S. at 611-12 (2003) (quoting 28 Calder v. Bull, 3 Dall. 386, 389 (1798)). 5 1 1 ("Even where courts have upheld extensions of unexpired statutes of limitations (extensions our 2 holding today does not affect), they have consistently distinguished situations where limitations 3 periods have expired.") (emphasis in original) (internal citation omitted); see Renderos v. Ryan, 4 469 F.3d 788, 795 (9th Cir. 2006) (a statute "enacted while the limitations periods were still 5 running" is "precisely the type of statute that Stogner expressly stated it was not striking down") 6 (emphasis in original).5 Here, Petitioner's Federal Habeas claims he was charged with a crime 7 that had an otherwise expired statute of limitations, which Stogner explicitly addressed in 2003. 8 The Court now turns to Petitioner's proffered case. In Peugh, the Supreme Court 9 addressed the third category of ex post facto prohibitions, or any law that "changes the 10 punishment, and inflicts a greater punishment, than the law annexed to the crime, when 11 committed." Peugh, 133 S.Ct. at 2081. Peugh found there is an ex post facto violation when a 12 "defendant is sentenced under Guidelines promulgated after he committed his criminal acts and Northern District of California United States District Court 13 the new version provides a higher applicable Guidelines sentencing range than the version in place 14 at the time of the offense." 133 S.Ct. at 2078. A central issue in Peugh was whether the Federal 15 Sentencing Guidelines, which are advisory and non-binding, qualify as "laws" subject to the Ex 16 Post Facto Clause. Id. at 2081, 2085. That is, do these discretionary guideposts "create[] a 17 sufficient risk of a higher sentence to constitute an ex post facto violation." Id. at 2084. The 18 Supreme Court in Peugh ruled that because such a change in the Sentencing Guidelines "presents 19 a sufficient risk of increasing the measure of punishment attached to the covered crimes," this, too, 20 is encompassed by the constitutional prohibition against ex post facto laws. Id. at 2082 (internal 21 quotations omitted). 22 Petitioner has not explained how Peugh, a case addressing Sentencing Guidelines, confers 23 5 24 Thus, extensions of unexpired statutes of limitations remain constitutionally permissible under Stogner and its progeny in the Ninth Circuit. Id.; Renderos, 469 F.3d at 795 ("There is no 25 manifest injustice here because there was no 'retroactive effect,' as the original limitations period had not yet expired."); see also United States v. Bischel, 61 F.3d 1429, 1435-36 (9th Cir. 1995) 26 (holding that a statute may apply to offenses committed prior to the statute's enactment where the conduct was already criminal without violating the Ex Post Facto clause). The Superior Court 27 Order found that Petitioner's State Habeas IAC claim failed because the ex post facto law extending the statute of limitations on the crimes for which he was charged fell under this 28 constitutionally permissible category. (See Superior Court Order at 2.) 6 1 1 a new right in the context of his own case, which concerns statutes of limitations. See Saif'ullah v. 2 Chappell, 2014 WL 5514141, at *5 (N.D.Cal. Oct. 31, 2014) ("Peugh does not apply to the 3 present case because it is a sentencing case rather than a parole case."). The requisite analysis and 4 body of case law differ between the categories of ex post facto violations. Whereas Peugh 5 addresses the third category of Ex Post Facto Clause prohibitions, which relate to length of 6 punishment, Petitioner's claim concerns the second category, or whether he could be convicted in 7 the first place. Peugh is simply inapposite. 8 Moreover, the right that Petitioner seeks to enforce is not "newly recognized," as Section 9 2244(d)(1)(C) requires. Rather, it was announced by the Supreme Court in 2003 in Stogner. 539 10 U.S. at 632-33. Stogner prohibits the revival of prosecutions that were already time-barred, which 11 is the issue at the heart of Petitioner's Federal Habeas claim. Id. The Court notes that Stogner 12 pre-dates not only Petitioner's AEDPA expiration date, but also his conviction. As discussed Northern District of California United States District Court 13 above, Peugh does not abrogate this holding, nor does it add to it to include unexpired statutes of 14 limitations, if Petitioner were to so argue. Especially in light of Stogner, the right announced in 15 Peugh cannot serve as a salve for Petitioner's untimely filing. 16 The Court therefore finds that Petitioner fails to satisfy the first predicate of a 17 2244(d)(1)(C) claim. Having found that Petitioner fails on the first predicate, it need not continue 18 further in the analysis. Accordingly, the Court rejects Petitioner's argument for delayed 19 commencement under 28 U.S.C. section 2244(d)(1)(C). 20 B. Equitable Tolling 21 AEDPA's statute of limitations, 28 U.S.C. section 2244(d), is subject to equitable tolling in 22 appropriate cases. Holland v. Florida, 560 U.S. 631, 645 (2010). "[A] petitioner is entitled to 23 equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that 24 some extraordinary circumstance stood in his way and prevented timely filing." Id. at 649 25 (internal quotations omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)); accord 26 Rasberry v. Garcia, 448 F.3d 1150, 1153 (9th Cir. 2006); Miles v. Prunty, 187 F.3d 1104, 1107 27 (9th Cir. 1999) ("When external forces, rather than a petitioner's lack of diligence, account for the 28 failure to file a timely claim, equitable tolling of the statute of limitations may be appropriate."). 7 1 1 A federal habeas petitioner "bears the burden of showing that this extraordinary exclusion 2 should apply to him." Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (quoting Miranda v. 3 Castro, 292 F.3d 1063, 1065 (9th Cir. 2002)). "Indeed, the threshold necessary to trigger 4 equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule.'" Miranda, 5 292 F.3d at 1066 (alteration in original) (internal quotation omitted) (quoting United States v. 6 Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)); accord Yeh v. Martel, 751 F.3d 1075, 1077 (9th 7 Cir. 2014) ("This is a very high bar, and is reserved for rare cases."). Where a prisoner fails to 8 show "any causal connection" between the grounds upon which he asserts a right to equitable 9 tolling and his inability to file a timely federal habeas petition, the equitable tolling claim will be 10 denied. Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), amended, 447 F.3d 1165 (9th 11 Cir. 2006). However, "[r]ather than let procedural uncertainties unreasonably snuff out a 12 constitutional claim, the issue of when grave difficulty merges literally into 'impossibility' should Northern District of California United States District Court 13 be resolved in [a petitioner's] favor." Lott v. Mueller, 304 F.3d 918, 925 (9th Cir. 2002). 14 A federal habeas petitioner does not carry a burden of persuasion at the motion to dismiss 15 stage to warrant additional investigation into his equitable tolling claim. Rather, further factual 16 development on the merits of the equitable tolling claim may be required. Laws v. Lamarque, 351 17 F.3d 919, 924 (9th Cir. 2003) (reversing grant of motion to dismiss because district court failed to 18 "develop the record" in response to petitioner's claim of mental incompetency); Whalem/Hunt v. 19 Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (remanding with instructions for district 20 court to develop facts concerning whether AEDPA materials were unavailable in the prison law 21 library and determine the legal significance of such a finding). Ninth Circuit precedent requires 22 only that there be "circumstances consistent with petitioner's petition. . . under which he would be 23 entitled to. . . equitable tolling" to trigger further factual development. Lamarque, 351 F.3d at 24 924 (citing Whalem/Hunt, 233 F.3d at 1148). A district court errs when it grants judgment against 25 a habeas petitioner in advance of developing a full record. Id. 26 Here, Petitioner vaguely asserts that prison conditions, such as limited access to the law 27 library and lockdowns, impacted his ability to file timely and entitle him to equitable tolling. 28 Respondent contends that Petitioner's claim is unavailing because it lacks any specific allegations 8 1 1 with respect to prison conditions. Moreover, even if Petitioner did make specific allegations, 2 Respondent believes the fact that Petitioner was represented by counsel during the State Habeas 3 and Federal Habeas precludes equitable tolling premised on prison conditions. 4 Prison conditions, limited access to law libraries, and lockdowns may, in certain 5 circumstances, justify untimely filing. See, e.g., Sossa v. Diaz, 729 F.3d 1225, 1235 (9th Cir. 6 2013) (holding that petitioner "sufficiently alleged that he was precluded from filing his habeas 7 petition" because of lockdowns and inability to use prison law library, and remanding for further 8 development of the record). The inquiry is highly fact-specific. Frye v. Hickman, 273 F.3d 1144, 9 1146 (9th Cir. 2001) (lack of access to library materials does not automatically qualify as grounds 10 for equitable tolling and inquiry must be "fact-specific"); Whalem/Hunt, 233 F.3d at 1148 11 (grounds for equitable tolling are "highly fact-dependent"). Typically, "the best course" is for the 12 district court to develop the record before ruling. Whalem/Hunt, 233 F.3d at 1148l; Lamarque, Northern District of California United States District Court 13 351 F.3d at 924. 14 Respondent correctly notes that the record is plainly inadequate in its current state. 15 However, Petitioner need not provide a full record the first time he asserts equitable tolling in 16 opposition to a motion to dismiss. Id. Thus, while Petitioner ultimately bears the burden of 17 demonstrating that he pursued his rights diligently and extraordinary circumstances barred him 18 from timely filing, it would be premature for the Court to grant the motion to dismiss prior to the 19 development of a factual record. See Holland, 560 U.S. at 649; Lamarque, 351 F.3d at 924. 20 Furthermore, that Petitioner benefits from the assistance of counsel today does not 21 necessarily preclude his claim of equitable tolling. Respondent's reliance on dicta in Waldrip v. 22 Hall is unavailing. 548 F.3d 729 (9th Cir. 2008). In Waldrip, the Ninth Circuit remarked that 23 because the petitioner was represented by counsel, "it is not clear that [his] personal access to a 24 law library should be significant." However, the Ninth Circuit ultimately decided the matter on 25 other grounds, namely that petitioner had access to the library by the time the Superior Court had 26 ruled on his pro se petition. Id. at 737. That petitioner's representation by counsel did not bear on 27 the need to develop a factual record with respect to the impact of prison conditions on timely 28 filing. Waldrip is thus not conclusive on this question. 9 1 1 Respondent's second proffer, the non-binding Fifth Circuit opinion in Cousin v. Lensing, 2 similarly fails to persuade. 310 F.3d 843 (5th Cir. 2002). There, the Fifth Circuit declined to 3 extend the leniency it provides pro se habeas petitioners to those represented by counsel with 4 respect to the "mailbox rule," which deems a pro se petition "filed" when handed to prison 5 authorities, rather than upon payment of the filing fee. Id. at 847. Respondent again overstates a 6 narrow holding. Cousin neither announces a broad rule that petitioners with counsel are not 7 entitled to equitable tolling, nor does it suggest the Court should not develop a factual record 8 before granting judgment. 9 The Court recognizes that petitioners represented by counsel enjoy advantages that pro se 10 inmates do not. Those with outside counsel tend to face fewer prison-related obstacles to filing 11 timely, which may weaken an equitable tolling claim on those grounds. However, Respondent 12 proffers no case law indicating that the mere fact of assistance of counsel, without more, precludes Northern District of California United States District Court 13 a habeas petitioner's prison conditions based equitable tolling claim prior to the development of a 14 factual record. Indeed, the authoritative case law on equitable tolling affords relief to petitioners 15 who retained deficient counsel at various points in their habeas process. See, e.g., Holland, 560 16 U.S. at 634-35 (petitioner's attorney's unprofessional conduct justified equitable tolling); Spitsyn, 17 345 F.3d at 801 ("The fact that the attorney retained by petitioner may have been responsible for 18 the failure to file on a timely basis does not mean that petitioner can never justify relief by 19 equitable tolling.") Furthermore, there is no evidence that Petitioner has always had counsel. 20 Hence, the Court needs a more complete record prior to judgment on the motion to dismiss. 21 Given the lack of a record, and the fact that the arguments both for and against equitable 22 tolling are too bare-boned to persuade at this juncture, the Court affords the parties an opportunity 23 for additional briefing on this issue. 24 IV. CONCLUSION 25 For the foregoing reasons, the Court ORDERS Petitioner to file a supplemental opposition 26 to Respondent's motion to dismiss containing evidence and facts germane to his equitable tolling 27 claim. The Court notes that any affidavit(s) or declaration(s) from Petitioner regarding these facts 28 must be filed under penalty of perjury. Petitioner shall file, and serve a copy on Respondent, a 10 1 1 supplemental opposition and any supporting documentation within thirty (30) days from the date 2 of this order. The Court further ORDERS Respondent to file a reply brief including any supporting 3 evidence within thirty (30) days of the date of filing of Petitioner's supplemental opposition. 4 IT IS SO ORDERED. 5 Dated: May 11, 2016 6 ______________________________________ YVONNE GONZALEZ ROGERS 7 UNITED STATES DISTRICT COURT JUDGE 8 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11