Maples v. Gilbert

Filing 34

ORDER: Pursuant to the Order on Remand from the Ninth Circuit Court of Appeals 33 , the Court's Order on Report and Recommendations 25 is reconsidered and the certificate of appealability IS DENIED. Signed by Judge Robert J. Bryan. **3 PAGE(S), PRINT ALL**(Derik Maples, Prisoner ID: 885051)(CMG)(CCA #17-35219: Court of Appeals ad hoc'd)

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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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CASE NO. 16-cv-5209 RJB-JRC

v.

ORDER RECONSIDERING
CERTIFICATE OF
APPEALABILITY

MARGARET GILBERT,
Respondent.
This matter comes before the Court on remand from the Ninth Circuit Court of Appeals.

17 Dkt. 33. The Court has considered the order remanding the case and the remaining record.
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Petitioner challenges his state court conviction, for second-degree felony murder and first

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

1 The Report and Recommendation recommended that a certificate of appealability not issue. Id.
2 The facts are in the Report and Recommendation and are adopted here.
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On March 2, 2017, the Report and Recommendation was adopted in part, and Petitioner’s

4 grounds for relief 1-4 were denied on the merits. Dkt. 25. Further, as recommended, ground five
5 was dismissed as unexhausted and procedurally barred, as well as denied on the merits. Id.
6 Although the Report and Recommendation recommended denying a certificate of appealability, a
7 certificate of appealability was issued. Id.
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On April 28, 2017, the Ninth Circuit Court of Appeals issued an order, remanding the

9 case for the “limited purposed of clarifying the issue(s) on which the district court granted a
10 certificate of appealability.” Dkt. 33.
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Certificate of Appealability. The district court should grant an application for a

12 Certificate of Appealability only if the petitioner makes a “substantial showing of the denial of a
13 constitutional right.” 28 U.S.C. § 2253(c)(3). To obtain a Certificate of Appealability under 28
14 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could disagree
15 with the district court’s resolution of his or her constitutional claims or that jurists could agree
16 the issues presented were adequate to deserve encouragement to proceed further. Slack v.
17 McDaniel, 529 U.S. 473, 483–485 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4
18 (1983)).
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Upon further consideration, the certificate of appealability was improvidently granted.

20 Petitioner has not made a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
21 § 2253(c)(3). Jurists could not agree that the issues presented were adequate to deserve
22 encouragement to proceed further. Slack, at 483-485. The prior order granting the certificate of
23 appealability should be reconsidered and the certificate of appealability should be denied.
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ORDER RECONSIDERING CERTIFICATE OF
APPEALABILITY- 2

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It is ORDERED that:

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The Court’s March 2, 2017 Order on Report and Recommendation (Dkt. 25) is

3 reconsidered and the certificate of appealability IS DENIED.
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The Clerk is directed to send uncertified copies of this Order to U.S. Magistrate Judge J.

5 Ricard Creatura, all counsel of record and to any party appearing pro se at said party’s last
6 known address.
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Dated this 1st day of May, 2017.

A
ROBERT J. BRYAN
United States District Judge

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ORDER RECONSIDERING CERTIFICATE OF
APPEALABILITY- 3