Neeley v. Uttecht

1 HONORABLE RONALD B. LEIGHTON UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA KEVIN NEELEY, CASE NO. C19-5667RBL Petitioner, ORDER 10 v. 11 JEFFREY A UTTECHT, 12 Respondent.

15 THIS MATTER is before the Court on limited remand from the Ninth Circuit [Dkt. # 22]. The Ninth Circuit’s Order asks the District Court to determine whether to grant or deny Petitioner Neeley a Certificate of Appealability under 28 U.S.C. § 2253(c).

18 The Magistrate Judge’s Report and Recommendation [Dkt. # 9] explained at pages 8 – 9 that Neeley had “not made a substantial showing of the denial of a constitutional right,” and recommended that the District Court DENY a Certificate of Appealability.

21 This Court’s Order adopting that Report and Recommendation [Dkt. # 11] declined to issue a Certificate of Appealability, for the reasons articulated in the Magistrate Judge’s Report and Recommendation: 1 (4) The Court will NOT issue a certificate of appealability under 28 U.S.C. §2253 for the reasons articulated in the Report and Recommendation; [Dkt. # 11 at 2]. The purpose of the limited remand is thus unclear to this Court. It has already denied Neeley a Certificate of Appealability.

For the reasons stated in the Report and Recommendation and this Court’s Order adopting it, the Court reiterates that Neeley has failed to exhaust his state court remedies and has failed to make a substantial showing of the denial of a constitutional right. In this Court’s view, reasonable jurists could not conclude that un-exhausted claims deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Court therefore DECLINES to issue a Certificate of Appealability.

IT IS SO ORDERED.

Dated this 29th day of January, 2020.

A 14 Ronald B. Leighton United States District Judge