Calhoun v. State of Washington

Filing 25

ORDER adopting Report and Recommendation re 24 Report and Recommendation. Signed by Judge Robert J. Bryan. (JL) Paper copy sent to petitioner @ Shelton address . Modified on 11/18/2009 (JL).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge J. Richard Creatura. Dkt. 24. The Court has considered the Report and Recommendation and the record herein. The Report and Recommendation throughly discusses the facts and law at issue here, and it should be adopted. The petitioner raises four constitutional grounds for review: first, that petitioner's right to assistance of counsel was deprived; second, that Wash. Rev. Code § 9.94A.589(3) violated the petitioner's equal protection rights; third, that the failure to give Miranda warnings at the time of the petitioner's arrest violated his Fifth and Fourteenth Amendment rights; and fourth, that the search and seizure that led to his conviction violated his Fourth Amendment rights. Dkt. 24 at 7. As to the first two grounds, the Report concludes that the petitioner exhausted his state court appeals, but that both grounds lack merit. Id. at 10-14. As to the second two grounds, the Report concludes that the petitioner has not exhausted his opportunities to appeal the issues to the state courts. Id. at 14-15. On these bases, the Report recommends denying the petitioner's writ of habeas corpus. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA ABDUL-KAHLIF CALHOUN, Case No. 09-5211-RJB-JRC Petitioner, vs. DOUG WADDINGTON, Respondent. ORDER ADOPTING REPORT AND RECOMMENDATION

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STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY The district court should grant an application for a Certificate of Appealability only if the petitioner makes a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 482-85 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). When the court denies a claim on procedural grounds, the petitioner must show that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Id. at 485. DISCUSSION The Report recommended dismissal of the first two grounds of the petition as being without merit. There is nothing in the record to suggest that reasonable jurists would debate whether the petition should have been resolved in a different manner, and the issues presented do not deserve encouragement to proceed. The Report recommended dismissal of the second two grounds of the petition as unexhausted. That portion of the petition is therefore being dismissed on procedural grounds. There is nothing in the record that would support a conclusion that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether this court is correct in its procedural ruling. The Certificate of Appealability should be denied. / / / / / /

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The Court hereby FINDS and ORDERS: (1) (2) (3) (4) The court adopts the Report and Recommendation (Dkt. 24); Petitioner's Amended Petition for Writ of Habeas Corpus (Dkt. 11) is DENIED; A Certificate of Appealability in this matter is DENIED; and The Clerk is directed to send copies of this Order to plaintiff, all attorneys of record, and to the Hon. J. Richard Creatura. DATED this 18th day of November, 2009.

A
Robert J. Bryan United States District Judge

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