Allen v. Bomkamp

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA DORCUS DEWAYNE ALLEN, CASE NO. 3:20-cv-06143-RJB-JRC Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 BRENT BOMKAMP, 14 Respondent.

This matter comes before the Court on the Report and Recommendation (“R&R”) of Magistrate Judge J. Richard Creatura (Dkt. 23) and Respondent’s Objections to the Report and Recommendation (Dkt. 24). The Court has considered the R&R, the objections, Petitioner’s Response to Respondent’s Objections (Dkt. 28), and the remaining record.

I. BACKGROUND On November 30, 2020, Petitioner Dorcus Dewayne Allen filed an application to proceed informa pauperis (“IFP”) (Dkt. 4), which was granted (Dkt. 5). On December 1, 2020, he filed a petition under 28 U.S.C. § 2241 for a writ of habeas corpus. Dkt. 7.

2 The facts are complicated and recited in detail in the R&R, so the Court will not go into detail here. See Dkt. 23. Essentially, Petitioner requests that the Court prohibit the State from retrying him on four counts of first degree murder under an accomplice liability theory based on his right to be free from double jeopardy.

6 In the R&R, the undersigned magistrate judge recommends that Mr. Allen’s petition be denied, but that he be granted a certificate of appealability (“COA”). Dkt. 23. Only Respondent objects to the R&R and only to the recommendation that Mr. Allen receive a COA. Dkt. 24.

9 II. DISCUSSION 10 A state prisoner seeking relief under 28 U.S.C. § 2241 may appeal a district court’s dismissal of the petition only after obtaining a COA from a district or circuit judge. 28 U.S.C. § 12 2253(c)(2); see Wilson v. Belleque, 554 F.3d 816, 825 (9th Cir. 2009). To be issued a COA, the applicant must make “a substantial showing of the denial of a constitutional right.” Id. A court “should not decline the application for a COA merely because it believes the applicant will not demonstrate an entitlement to relief.” Miller-El v. Cockrell, 537 U.S. 332, 337 (2003). “Thus, . .

16 . the standard for obtaining a COA is not a particularly exacting one.” Wilson, 554 F.3d at 826.

17 It demands only that “jurists of reason would find it debatable wither the petition states a valid claim of the denial of a constitutional right.” Id. 19 This case is similar to Wilson v. Belleque, both of which include complicated procedural histories, mixed verdicts by the jury, retrials, and legitimate debate about the effect of double jeopardy. See id. As in Wilson, a COA is appropriate in this case. Although this Court finds that Mr. Allen does not state a valid claim of the denial of a constitutional right, reasonable jurists could debate that decision.

1 Therefore, the Court hereby ORDERS: 2  The Court adopts the Report and Recommendation (Dkt. 23); 3  Petitioner’s federal habeas corpus petition is dismissed with prejudice; 4  A certificate of appealability is granted in this case, and petitioner’s in forma 5 pauperis status may continue in the event of any appeal.

6 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.

8 Dated this 24th day of May, 2021.

A ROBERT J. BRYAN 11 United States District Judge