Maples v. Gilbert

Filing 25

ORDER ADOPTING the 24 Report and Recommendation in all respects except for the recommendation that a certificate of appealability should not issue: Petitioner's grounds for relief ARE DENIED on the merits. Further, Petitioner's ground five IS DISMISSED as unexhausted as procedurally barred; and a certificate of appealability IS ISSUED. Signed by Judge Robert J. Bryan. **3 PAGE(S), PRINT ALL**(Derik Maples, Prisoner ID: 885051)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DERIK L. MAPLES,
Petitioner,

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ORDER ON REPORT AND
RECOMMENDATION

v.
MARGARET GILBERT,
Respondent.

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CASE NO. 16-cv-5209 RJB-JRC

This matter comes before the Court on the Report and Recommendation of U.S.

17 Magistrate Judge J. Richard Creatura. Dkt. 24. The Court has considered the Report and
18 Recommendation and the remaining record.
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Petitioner challenges his state court conviction, for second-degree felony murder and first

20 degree assault both while armed with a firearm, and sentence, totaling 456 months, pursuant to
21 28 U.S.C. §2254. Dkt. 1. On January 31, 2017, the Report and Recommendation was filed,
22 recommending that Petitioner’s grounds for relief 1, 2, 3, and 4 be denied on the merits; and
23 ground five be dismissed as unexhausted and procedurally barred. Dkt. 24. In the alternative,
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ORDER ON REPORT AND
RECOMMENDATION- 1

1 the Report and Recommendation recommends that ground five be denied on the merits. Id. The
2 Report and Recommendation recommends that a certificate of appealability not issue. Id.
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Petition. The Report and Recommendation’s recommendation that grounds for relief 1,

4 2, 3, and 4 be denied on the merits should be adopted. The Report and Recommendation’s
5 recommendations that ground five be dismissed as unexhausted and procedurally barred, as well
6 as denied on the merits should also be adopted.
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Certificate of Appealability. The district court should grant an application for a

8 Certificate of Appealability only if the petitioner makes a “substantial showing of the denial of a
9 constitutional right.” 28 U.S.C. § 2253(c)(3). To obtain a Certificate of Appealability under 28
10 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could disagree
11 with the district court’s resolution of his or her constitutional claims or that jurists could agree
12 the issues presented were adequate to deserve encouragement to proceed further. Slack v.
13 McDaniel, 529 U.S. 473, 483–485 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
14 (1983)).
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A certificate of appealability should issue here. In this case, while it is questionable that

16 Petitioner has made a “substantial showing of the denial of a constitutional right,” 28 U.S.C.
17 § 2253(c)(3), his sentence is for 38 years. Jurists could agree that the issues presented were
18 adequate to deserve encouragement to proceed further. Slack, at 483-485. The Report and
19 Recommendation’s recommendation that a certificate of appealability should not issue here (Dkt.
20 22) should not be adopted.
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Accordingly, it is ORDERED that:

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The Report and Recommendation (Dkt. 24) IS ADOPTED in all respects except for the

23 recommendation that a certificate of appealability should not issue:
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ORDER ON REPORT AND
RECOMMENDATION- 2

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(1) Petitioner’s grounds for relief ARE DENIED on the merits;

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(2) Further, Petitioner’s ground five IS DISMISSED as unexhausted and procedurally

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barred; and

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(3) A certificate of appealability IS ISSUED.

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The Clerk is directed to send uncertified copies of this Order to U.S. Magistrate Judge J.

6 Ricard Creatura, all counsel of record and to any party appearing pro se at said party’s last
7 known address.
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Dated this 2nd day of March, 2017.

A

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ROBERT J. BRYAN
United States District Judge

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ORDER ON REPORT AND
RECOMMENDATION- 3