Babbs v. Frakes

Filing 17

ORDER adopting the 13 Report and Recommendations; A certificate of appealability for Babbs' Bruton claim is GRANTED; the petition is DENIED; Babbs' motion 15 Motion to Appoint Appellant Counsel is DENIED; and this action is DISMISSED. Signed by Judge Benjamin H Settle.(CMG; cc to Petitioner)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 RASHAD BABBS, 9 Petitioner, 10 11 v. SCOTT FRAKES, 12 Respondent. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER ADOPTING REPORT AND RECOMMENDATION, ISSUING CERTIFICATE OF APPEALABILITY, AND DENYING MOTION TO APPOINT APPELLATE COUNSEL This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 13) and Petitioner Rashad Babbs’ motion to appoint appellate counsel (Dkt. 15). On November 4, 2010, Babbs filed a petition for writ of habeas corpus challenging his conviction in state court. Dkt. 1. Babbs argued that the conviction violated the Supreme Court cases of Batson v. Kentucky, 476 U.S. 79 (1986), and Bruton v. United States, 391 U.S. 123 (1968). On June 15, 2011, the Honorable J. Richard Creatura, United States Magistrate Judge, issued a Report and Recommendation (“R&R”). Dkt. 13. Judge Creatura recommended that the Court deny both claims and that the Court issue a Certificate of Appealability for Babbs Bruton claim. Id. Babbs did not file objections. On July 19, 2011, Babbs filed a motion to appoint appellate counsel. Dkt. 15. Babbs claims that he can no longer afford his current counsel and that the interests of justice dictate 27 28 Case No. C10-5087BHS ORDER 1 2 3 4 that the Court appoint appellate counsel to pursue his Bruton claim on appeal. Id. With regard to the R&R, the Court has reviewed the R&R and, no objections to the R&R having been filed, adopts the R&R. With regard to the request for appellate counsel, the court may request an attorney to 5 represent any person unable to afford counsel. 28 U.S.C. § 1915(e)(1). The Court finds that 6 Babbs should be able to file his appeal as well as a request to appoint counsel in the court of 7 appeal. Moreover, the appellate court will be in the best position to determine whether 8 circumstances exist to appoint counsel for Babbs. Therefore, the Court denies Babbs’ 9 motion to appoint appellate counsel. 10 The Court has considered the R&R, the remaining record, and does hereby find and 11 order as follows: 12 (1) The R&R is ADOPTED; 13 (2) A Certificate of Appealability for Babbs’ Bruton claim is GRANTED; 14 (3) The petition is DENIED; 15 (4) Babbs’ motion to appoint appellant counsel is DENIED; and 16 (5) This action is DISMISSED. 17 DATED this 27th day of July, 2011. A 18 19 20 BENJAMIN H. SETTLE United States District Judge 21 22 23 24 25 26 27 28 ORDER

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