Alderman v. Glebe

Filing 16

ORDER ADOPTING IN PART AND MODIFYING IN PART 14 REPORT AND RECOMMENDATION by Judge Thomas S. Zilly. (AD)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JESSE SHANE ALDERMAN,

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Petitioner,
No. 15-cv-0618-TSZ
v.
ORDER
PATRICK GLEBE,

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Respondent.

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THIS MATTER comes before the Court on the Report and Recommendation
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(“R & R”) of the Honorable Mary Alice Theiler, United States Magistrate Judge, docket
no. 14. Having reviewed the R & R and petitioner’s objections thereto, docket no. 15, the

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Court enters the following Order:
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The only issue to which petitioner objects is the R & R’s finding that he “has not

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shown that the evidence, when viewed in the light most favorable to him, supports an
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inference that he did not have sexual intercourse, as defined by the statute, with A.Z. In
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other words, the evidence does not support the inference that only attempted rape
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occurred.” Petitioner’s Objections to the R & R, docket no. 15, at 1. In essence,

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petitioner challenges only that his trial counsel was unconstitutionally deficient by not
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requesting a lesser included instruction. Even if petitioner’s argument were correct, he

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would not be entitled to relief and thus the petition must be denied.
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ORDER - 1

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Strickland is a two-prong test, requiring that a petitioner demonstrate both

2 deficient performance and prejudice. Crace v. Herzog, 798 F.3d 840, 846 (9th Cir.
3 2015). The R & R found that petitioner failed to meet both Strickland’s performance and
4 prejudice prongs. Docket no. 14, at 16 & n.4. However, as noted above, petitioner has
5 challenged only the deficient performance finding. Assuming even that the R & R
6 incorrectly determined that counsel’s performance was not deficient, petitioner does not
7 challenge its conclusion that there was not a reasonable probability that the jury would
8 have convicted him on the lesser charge. Accordingly, the petition for writ of habeas
9 corpus must be DISMISSED.
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In light of the foregoing, the Court does not find that petitioner has made “a

11 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3).
12 Thus, no certificate of appealability shall issue.
13 Conclusion
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For the foregoing reasons, the R & R, docket no. 14, is ADOPTED in part and

15 MODIFIED in part. The Clerk is DIRECTED to enter judgment consistent with this
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IT IS SO ORDERED.

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Dated this 20th day of November, 2015.

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A

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Thomas S. Zilly
United States District Judge

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ORDER - 2