Perez-Martinez v. Gilbert

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 36 Objections to Report and Recommendation filed by Reycel Perez-Martinez. **3 PAGE(S), PRINT ALL**(Reycel Perez-Martinez, Prisoner ID: 356885)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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REYCEL PEREZ-MARTINEZ,
Petitioner,

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v.

CASE NO. C15-5950 BHS-TLF
ORDER ADOPTING REPORT
AND RECOMMENDATION

MARGARET GILBERT,

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Respondent.

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This matter comes before the Court on the Report and Recommendation (“R&R”)

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of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. 35) and

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Petitioner’s objections to the R&R (Dkt. 36).

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On July 25, 2017, Judge Fricke entered the R&R, recommending that the Court

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dismiss Petitioner’s claims based on allegations of withholding of evidence in violation

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of Brady v. State of Maryland, 373 U.S. 83 (1963) and failing to provide a proper

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interpreter. Dkt. 35. Judge Fricke based her R&R on the fact that Petitioner failed to

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exhaust these claims in state court and they are procedurally barred. Id. On August 10,

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2017, Petitioner objected to the R&R. Dkt. 36.

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ORDER - 1

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The district judge must determine de novo any part of the magistrate judge’s

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disposition that has been properly objected to. The district judge may accept, reject, or

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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Petitioner does not argue against the R&R’s conclusion that his Brady and

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interpreter-based claims were not properly raised in his motion to the Washington State

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Supreme Court for discretionary review. Dkt. 36 at 3. Instead, Petitioner argues that his

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default should be excused for cause. Id. at 3–4. However, despite recognizing that

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“cause” must be comprised of “some objective factor external to the defense,” see Dkt.

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36 at 3–4 (quoting McCleskey v. Zant, 499 U.S. 467, 493 (1991)), Petitioner does not

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identify any objective factor external to his own failure to raise these issues in his motion

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for discretionary review. Petitioner attempts to blame his default on the fact that his

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personal restraint petition and direct appeal were consolidated before the Washington

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State Court of Appeals. Dkt. 36 at 5. But this does not highlight any plausible external

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interference with his ability to properly raise all of his claims in his motion for

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discretionary review of the decision by the Court of Appeals. Accordingly, Petitioner’s

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objections are denied and the R&R is adopted.

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Additionally, the Court denies Petitioner’s request for a certificate of appealability.

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A certificate of appealability may issue only if Petitioner has made “a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2)–(3). A petitioner

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satisfies this standard “by demonstrating that jurists of reason could disagree with the

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district court’s resolution of his constitutional claims or that jurists could conclude the

ORDER - 2

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issues presented are adequate to deserve encouragement to proceed further.” Miller-El v.

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Cockrell, 537 U.S. 322, 327 (2003). Petitioner has failed to show that reasonable minds

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could differ on whether (1) he defaulted his Brady and interpreter-based claims or (2) his

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default was caused by factors external to his own neglect.

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The Court having considered the R&R, Petitioner’s objections, and the remaining
record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Petitioner’s claims based on allegations of the prosecution withholding of

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evidence in violation of Brady v. State of Maryland, 373 U.S. 83 (1963), and the State
failing to provide a proper interpreter are DISMISSED;
(3)

Petitioner’s request for a certificate of appealability on these issues is

DENIED; and
(3)

This matter is REMANDED to the Honorable Theresa L. Fricke, United

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States Magistrate Judge, to consider the appointment of counsel and Petitioner’s

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remaining claims.

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Dated this 30th day of August, 2017.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3