Ewalan v. State of Washington

Filing 89

ORDER ADOPTING 85 REPORT AND RECOMMENDATION. The Court DENIES Mr. Ewalan's amended petition for habeas corpus (Dkt. # 13 ) and DISMISSES this action with prejudice; DENIES Mr. Ewalan's motions (a) to order Respondents to produce the c ourt of appeal transcript (Dkt. # 39 ); (b) for leave to expand the record under Rule 7 (Dkt. # 58 ); (c) to expand the record by two additional items (Dkt. # 59 ); and (d) to file a lawsuit (Dkt. # 79 ); and DENIES a certificate of appealability. Signed by Judge James L. Robart. **4 PAGE(S), PRINT ALL**(Joseph Ewalan, Prisoner ID: 392824)(LH)

Case 2:20-cv-01497-JLR Document 89 Filed 05/10/22 Page 1 of 4

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

JOSEPH LOCHUCH EWALAN,

11

v.

12
13

CASE NO. C20-1497JLR-SKV
ORDER ADOPTING REPORT
AND RECOMMENDATION

Petitioner,

DON HOLBROOK,
Respondent.

14

I.

15

INTRODUCTION

16

Before the court is United States Magistrate Judge S. Kate Vaughan’s report and

17

recommendation. (R&R (Dkt. # 85).) Magistrate Judge Vaughan recommends that this

18

court (1) deny Petitioner Joseph Lochuch Ewalan’s amended habeas corpus petition

19

(Am. Pet. (Dkt. # 13)); (2) deny multiple motions filed by Mr. Ewalan (see Mot. for

20

Transcript (Dkt. # 39); Mot. to Expand Record (Dkt. # 58); 2d Mot. to Expand Record

21

(Dkt. # 59); Mot. to File Lawsuit (Dkt. # 79)); (3) deny Mr. Ewalan’s request for an

22

evidentiary hearing; (4) dismiss this action with prejudice; and (5) deny a certificate of
ORDER - 1

Case 2:20-cv-01497-JLR Document 89 Filed 05/10/22 Page 2 of 4

1

appealability. (See generally R&R.) Mr. Ewalan, who is proceeding in forma pauperis

2

(“IFP”) and pro se in this matter, filed timely objections to the report and

3

recommendation, along with an affidavit and multiple exhibits. 1 (Obj. (Dkt. # 86); Aff.

4

(Dkt. # 87); Exs. (Dkt. # 88).) Having carefully reviewed all of the foregoing, along with

5

all other relevant documents, and the governing law, the court ADOPTS Magistrate

6

Judge Vaughan’s report and recommendation; DENIES Mr. Ewalan’s objections; and

7

DISMISSES Mr. Ewalan’s amended habeas corpus petition with prejudice.
II.

8

ANALYSIS

9

A district court has jurisdiction to review a Magistrate Judge’s report and

10

recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge must

11

determine de novo any part of the magistrate judge’s disposition that has been properly

12

objected to.” Id.; United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en

13

banc). Upon review, “[a] judge of the court may accept, reject, or modify, in whole or in

14

part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.

15

§ 636(b)(1). Because Mr. Ewalan is proceeding pro se, the court must interpret his

16

petition and objections liberally. See Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925

17

(9th Cir. 2003).

18

In her report and recommendation, Magistrate Judge Vaughan carefully reviewed

19

the fourteen grounds for relief asserted by Mr. Ewalan in his amended habeas corpus

20

petition. (See R&R at 4-6 (listing the fourteen grounds for relief); Am. Pet.) She

21
22

1

Respondent Don Holbrook has neither filed objections nor responded to Mr. Ewalan’s
objections. (See generally Dkt.)
ORDER - 2

Case 2:20-cv-01497-JLR Document 89 Filed 05/10/22 Page 3 of 4

1

recommends that the court find that grounds 2, 9, 13, and 14 are barred for failure to

2

exhaust and are procedurally defaulted (id. at 6-17) and that the remaining grounds fail

3

on the merits (id. at 17-59). She further recommends that the court deny Mr. Ewalan’s

4

multiple motions to expand the record, for an evidentiary hearing and “to file a lawsuit.”

5

(Id. at 59-67.) Finally, she recommends that the court deny a certificate of appealability

6

for failure to make “a substantial showing of the denial of a constitutional right.” (Id. at

7

67 (quoting 28 U.S.C. § 2253(c)(3)).) The court has thoroughly examined the report and

8

recommendation, Mr. Ewalan’s objections thereto, and the balance of the record before it.

9

On de novo review, the court finds Magistrate Judge Vaughan’s reasoning persuasive in

10

light of that record. Therefore, the court independently denies Mr. Ewalan’s objections

11

and motions for the same reasons set forth in Magistrate Judge Vaughan’s report and

12

recommendation.
III.

13

CONCLUSION

14

For the foregoing reasons, the court:

15

(1)

ADOPTS the Report and Recommendation (Dkt. # 85) in its entirety;

16

(2)

DENIES Mr. Ewalan’s amended petition for habeas corpus (Dkt. # 13) and

17
18

DISMISSES this action with prejudice;
(3)

DENIES Mr. Ewalan’s motions (a) to order Respondents to produce the

19

court of appeal transcript (Dkt. # 39); (b) for leave to expand the record under Rule 7

20

(Dkt. # 58); (c) to expand the record by two additional items (Dkt. # 59); and (d) to file a

21

lawsuit (Dkt. # 79); and

22

(4) DENIES a certificate of appealability.
ORDER - 3

Case 2:20-cv-01497-JLR Document 89 Filed 05/10/22 Page 4 of 4

1
2
3

The court DIRECTS the Clerk to send copies of this order to Mr. Ewalan, to
counsel for Mr. Holbrook, and to Magistrate Judge Vaughan.
Dated this 10th day of May, 2022.

4

A

5

JAMES L. ROBART
United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
ORDER - 4