Corbett v. Gilbert

Filing 15

ORDER ADOPTING the 12 Report and Recommendations. The Petition for Writ of Habeas Corpus is DENIED. The issuance of a Certificate of Appealability is DENIED; and this case is DISMISSED WITH PREJUDICE. Signed by Judge Robert J. Bryan. **3 PAGE(S), PRINT ALL**(Edwin Corbett, Prisoner ID: 327972)(CMG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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EDWIN DAVID CORBETT,
Petitioner,

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v.
MARGARET GILBERT,

CASE NO. 16-5817-RJB JRC
ORDER ADOPTING REPORT AND
RECOMMENDATION, DENYING
PETITION FOR WRIT OF HABEAS
CORPUS AND CERTIFICATE OF
APPEALABILITY

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

17 Magistrate Judge J. Richard Creatura. Dkt. 12. The Court has reviewed the Report and
18 Recommendation, objections, and the remaining file.
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Petitioner filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on

20 September 23, 2016, challenging his 2007 conviction for rape of a child in the first degree. Dkt.
21 1. The Report and Recommendation recommends a denial of his petition as it is untimely and a
22 finding that there are no extraordinary circumstances that require equitable tolling. Dkt. 12. It
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ORDER ADOPTING REPORT AND
RECOMMENDATION, DENYING PETITION
FOR WRIT OF HABEAS CORPUS AND
CERTIFICATE OF APPEALABILITY- 1

1 further recommends that a Certificate of Appealability be denied. Id. Petitioner filed objections
2 to the Report and Recommendation. Dkts. 13 and 14.
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The facts and procedural history are in the Report and Recommendation (Dkt. 12, at 1-2)

4 and are adopted here.
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The Report and Recommendation (Dkt. 12) should be adopted and the petition denied as

6 untimely. Petitioner’s objections regarding the timeliness of his petition fail to provide any basis
7 to reject the Report and Recommendation. These objections are a repetition of his prior
8 arguments and are addressed in the Report and Recommendation.
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Petitioner also objects to the recommendation that a Certificate of Appealability be

10 denied. Dkts. 13 and 14.
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The district court should grant an application for a Certificate of Appealability only if the

12 petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C.
13 § 2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas
14 petitioner must make a showing that reasonable jurists could disagree with the district court’s
15 resolution of his or her constitutional claims or that jurists could agree the issues presented were
16 adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483–
17 485 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
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A Certificate of Appealability should not issue here. In this case, Petitioner has not made

19 a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). He has
20 not made a showing that reasonable jurists could disagree with this court’s resolution of his
21 constitutional claims or that jurists could agree the issues presented were adequate to deserve
22 encouragement to proceed further. Slack, at 483-485. The Report and Recommendation’s
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ORDER ADOPTING REPORT AND
RECOMMENDATION, DENYING PETITION
FOR WRIT OF HABEAS CORPUS AND
CERTIFICATE OF APPEALABILITY- 2

1 recommendation that a Certificate of Appealability should not issue here (Dkt. 12) should be
2 adopted.
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Accordingly:

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The Court ADOPTS the Report and Recommendation (Dkt. 12);

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The Petition for Writ of Habeas Corpus (Dkt. 1) is DENIED;

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The issuance of a Certificate of Appealability is DENIED; and

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This case is DISMISSED WITH PREJUDICE.

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The Clerk is directed to send uncertified copies of this Order to all counsel of record and

9 to any party appearing pro se at said party’s last known address.
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Dated this 24th day of January, 2017.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ADOPTING REPORT AND
RECOMMENDATION, DENYING PETITION
FOR WRIT OF HABEAS CORPUS AND
CERTIFICATE OF APPEALABILITY- 3