Crow v. Hayes

Filing 76

ORDER OF MODIFIED CERTIFICATE OF APPEALABILITY (20-35911), signed by Judge Robert J. Bryan re 75 Order of USCA/Referral Notice as to the 73 Notice of Appeal filed by Tommy Lee Crow. (cc: USCA) **3 PAGE(S), PRINT ALL**(Tommy Crow, Prisoner ID: 773446)(GMR)

Case 3:16-cv-05277-RJB Document 76 Filed 12/21/20 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. 16-5277 RJB

TOMMY LEE CROW,
Petitioner,

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v.

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ORDER OF MODIFIED
CERTIFICATE OF
APPEALABILITY

RON HAYNES,

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Respondent.

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THIS MATTER comes before the Court on the Ninth Circuit Court of Appeals order

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remanding this case to issue a modified certificate of appealability which designates which of

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Petitioner’s claims meet the standard in 28 U.S.C. § 2253(c)(3). Dkt. 75. The Court has

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considered the order and the remaining file.

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On August 20, 2020, a Report and Recommendation was filed in this case recommending

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that no evidentiary hearing be held, the Petitioner’s grounds for relief be denied, and the petition

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be dismissed. Dkt. 68. It also recommended that a certificate of appealability issue but did not

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specify which of Plaintiff’s claims met the standard. Id.

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Case 3:16-cv-05277-RJB Document 76 Filed 12/21/20 Page 2 of 3

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The Report and Recommendation was adopted over the Plaintiff’s objections. Dkts. 6970. The Plaintiff appealed that decision to the Ninth Circuit Court of Appeals.
On December 21, 2020, the Ninth Circuit Court of Appeals issued the instant order

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directing this Court to designate which of the Petitioner’s grounds for relief meet the standard

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under 28 U.S.C. § 2253(c)(3) and to issue a modified certificate of appealability.

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Standard. Under 28 U.S.C. § 2253(c)(3), a certificate of appealability shall indicate

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which issues satisfy the showing required by 28 U.S.C. § 2253(c)(2). Section 2253(c)(2), in

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turn, requires that a Petitioner make “a substantial showing of the denial of a constitutional right”

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in order for a certificate of appealability to issue. To obtain a Certificate of Appealability under

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28 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could

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disagree with the district court’s resolution of his or her constitutional claims or that jurists could

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agree the issues presented were adequate to deserve encouragement to proceed further. Slack v.

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McDaniel, 529 U.S. 473, 483–485 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4

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(1983)).

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Discussion. As pointed out in the Report and Recommendation, Petitioner’s amended

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petition presents nine claims for relief: (1) that the trial court unconstitutionally allowed evidence of

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a prior assault, (2) that his trial counsel was ineffective for failing to move to exclude the prior

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assault evidence, (3) that the trial court’s limiting instruction regarding the prior assault evidence was

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unconstitutional, (4) that his trial counsel was ineffective for failing to object to the limiting

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instruction, (5) that an accomplice liability instruction relieved the State of its burden of proof, (6)
that the prosecutor went beyond arguing inferences from the trial evidence and improperly expressed
personal opinion in the closing argument, (7) that the prosecutor failed to disclose material
exculpatory evidence and coerced a State witness to give false testimony, (8) that appellate counsel

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Case 3:16-cv-05277-RJB Document 76 Filed 12/21/20 Page 3 of 3

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was ineffective for failing to raise several arguments, and (9) that the jury’s verdict was not

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unanimous. Dkt. 68 (citing Dkt. 10).

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A certificate of appealability should issue on Petitioner’s claims one through four only.

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The Petitioner has sufficiently shown that reasonable jurists could disagree with this Court’s

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resolution of his claims one through four or that jurists could agree these issues were adequate to

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deserve encouragement to proceed further. Slack, at 483–485. A certificate of appealability

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should not issue on the Petitioner’s remaining claims.

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It is ORDERED that:


A modified certificate of appealability on Petitioner’s claims one through four
only IS GRANTED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and
to any party appearing pro se at said party’s last known address.
Dated this 21st day of December, 2020.

A
ROBERT J. BRYAN
United States District Judge

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