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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 DERIK L. MAPLES, Petitioner, 12 13 14 ORDER ON REPORT AND RECOMMENDATION v. MARGARET GILBERT, Respondent. 15 16 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. 19 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, 24 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. 3 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. 7 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)). 15 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. 21 Accordingly, it is ORDERED that: 22 The Report and Recommendation (Dkt. 24) IS ADOPTED in all respects except for the 23 recommendation that a certificate of appealability should not issue: 24 ORDER ON REPORT AND RECOMMENDATION- 2 1 (1) Petitioner’s grounds for relief ARE DENIED on the merits; 2 (2) Further, Petitioner’s ground five IS DISMISSED as unexhausted and procedurally 3 barred; and 4 (3) A certificate of appealability IS ISSUED. 5 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. 8 Dated this 2nd day of March, 2017. A 9 10 ROBERT J. BRYAN United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ON REPORT AND RECOMMENDATION- 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?