Blackmon v. Uttecht

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE JOHN PATRICK BLACKMON, Petitioner, Case No. C16-1592RSL v. 11 ORDER DENYING AMENDED JEFFREY A. UTTECHT, PETITION FOR WRIT OF HABEAS 12 CORPUS Respondent.

The Court, having reviewed Petitioner’s amended petition for writ of habeas corpus, the Report and Recommendation of the Honorable Michelle L. Peterson, United States Magistrate Judge, petitioner’s objections thereto (Dkt. # 42 and 44), and the remaining record, hereby finds and ORDERS: 19 (1) The Report and Recommendation is approved and adopted except as noted below. (2) Petitioner’s amended petition for writ of habeas corpus (Dkt. # 32) is DENIED, and the petition and this action are DISMISSED with prejudice.

ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS - 1 1 (3) Under the amended version of 28 U.S.C. § 2253(c), a petitioner may not appeal the denial of a habeas corpus petition unless the district court or the Ninth Circuit issues a certificate of appealability identifying the particular issues that may be pursued on appeal. United States v. Asrar, 116 F.3d 1268 (9th Cir. 1997). To obtain a certificate of appealability, the petitioner must make a substantial showing of the denial of a constitutional right. “Obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor.” Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983). Rather, he must demonstrate that the resolution of the habeas petition is debatable among reasonable jurists or that the issues presented were “adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

The Court finds that the dismissal of petitioner’s claims regarding whether he waived his right to testify and whether his Fifth Amendment rights were violated may be debatable among reasonable jurists and deserve to proceed further. The Court certifies those issues for appeal. The actual innocence claim is not, however, debatable and should not be the subject of an appeal. (4) The Clerk is directed to send copies of this Order to all counsel of record and to Magistrate Judge Peterson.

Dated this 11th day of October, 2019.

A ROBERT S. LASNIK 22 United States District Judge ORDER DENYING AMENDED PETITION FOR WRIT OF HABEAS CORPUS - 2