Boothe v. United States of America

Filing 17

ORDER denying 16 Motion for Certificate of Appealability (cc: USCA) signed by Judge Robert S. Lasnik.(CDA)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JONATHAN BOOTHE,

Case No. C18-331RSL

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Plaintiff,

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v.

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UNITED STATES OF AMERICA,
Defendant.

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ORDER DENYING
APPLICATION FOR
CERTIFICATE OF
APPEALABILITY

This matter comes before the Court on petitioner Jonathan Boothe’s “Application for

16 Issuance of a Certificate of Appealability.” Dkt. # 16. On August 3, 2018, the Court denied
17 petitioner’s motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Dkt.
18 # 11. In that order, the Court concluded that under 28 U.S.C. § 2253, a certificate of
19 appealability (COA) should not issue. Id. at 11. On August 20, 2018, petitioner filed a notice of
20 appeal with the Ninth Circuit Court of Appeals, which stated: “This is intended to be a Notice
21 that I plan to appeal the judgement entered in the above referrenced [sic] case, to the Ninth
22 Circuit Court of Appeals for a Certificate of Appealability.” Dkt. # 14. Petitioner then filed this
23 request seeking a COA from this Court. Dkt. # 16.
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As noted, the Court has already concluded that a COA is not warranted. See Dkt. # 11 at

25 11. The Court finds no reason to revisit that conclusion, 1 and denies petitioner’s request because
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Although a COA request is probably an exception to the presumption that “filing of a
notice of appeal . . . divests the district court of control over those aspects of the case involved in the
28 appeal,” Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985), the Court may lack
ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY - 1

1 he failed to “ma[ke] a substantial showing of the denial of a constitutional right.” 28 U.S.C
2 § 2253(b)(2). Petitioner is encouraged to submit his COA request to the Ninth Circuit as part of
3 his appeal, as the Court of Appeals is empowered to grant him a COA if it is convinced he has
4 made the requisite showing. See id. § 2253(c)(1).
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For the foregoing reasons, petitioner’s application, Dkt. # 16, is DENIED.

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DATED this 4th day of September, 2018.

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A
Robert S. Lasnik
United States District Judge

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27 jurisdiction to decide this particular COA request because petitioner has also requested one from the

Ninth Circuit, which would make it an “aspect[] of the case involved in the appeal,” id. Either way, the
28 Court concludes that a COA should not issue.
ORDER DENYING APPLICATION FOR CERTIFICATE OF APPEALABILITY - 2