Hernandez-Vargas v. United States of America

Filing 26

ORDER denying 23 Plaintiff's Motion for Certificate of Appealability; granting 24 Plaintiff's Motion for Leave to Appeal in forma pauperis. Signed by Judge Ronald B. Leighton.(DN) Modified on 1/14/2013 (DN). (cc to pltf)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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ANDRES HERNANDEZ VARGAS,

CASE NO. C11-5957 RBL

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Petitioner,

ORDER

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v.
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UNITED STATES OF AMERICA ,
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Respondent.
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THIS MATTER is before the Court on Petitioner’s Motion for a Certificate of

15 Appealability [Dkt. #23] and his Motion for Leave to appeal in forma pauperis [Dkt. #24].
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The district court should grant an application for a Certificate of Appealability only if the

17 petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
18 2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas
19 petitioner must make a showing that reasonable jurists could debate whether, or agree that, the
20 petition should have been resolved in a different manner or that the issues presented were
21 adequate to deserve encouragement to proceed further. Slack v. McDaniel, 120 S.Ct. 1595,
22 1603-04 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
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ORDER - 1

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The Petition raises a constitutional question, and Petitioner is correct that the warrantless

2 GPS tracking is no longer permissible. See United States v. Jones, 132 S. Ct. 945 (2012). But
3 the Supreme Court case so holding was decided after the events leading to Petitioner’s arrest.
4 The officers acted in compliance with Ninth Circuit precedent at the time they acted. See Davis
5 v. United States, 131 S. Ct. 2419, 2426 (2011) (“[T]he harsh sanction of exclusion should not be
6 applied to deter objectively reasonable law enforcement activity. Evidence obtained during a
7 search conducted in reasonable reliance on binding precedent is not subject to the exclusionary
8 rule”).
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Petitioner has not made a substantial showing of the deprivation of a constitutional right

10 in this case. This Court will not issue a Certificate of Appeal, and Petitioner’s Motion [Dkt. #23]
11 on this point is DENIED.
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A court should “deny leave to proceed in forma pauperis at the outset if it appears from

13 the face of the proposed complaint that the action is frivolous or without merit.” Tripati v. First
14 Nat’l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987) (citations omitted); see also 28 U.S.C.
15 § 1915(e)(2)(B)(i).
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While Petitioner’s claims are not viable, it cannot be said that they are frivolous, or that

17 he is acting in bad faith. Petitioner’s Motion [Dkt. #24] on this point is GRANTED. The
18 Petitioner shall be permitted to appeal in forma pauperis.
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IT IS SO ORDERD
Dated this 14th day of January, 2013.

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A

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Ronald B. Leighton
United States District Judge

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ORDER - 2