Ewalan v. State of Washington

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 10 JOSEPH LOCHUCH EWALAN, CASE NO. C20-1497JLR 11 Petitioner, ORDER v. DONALD HOLBROOK, Respondent.

15 Before the court is a motion filed by pro se Petitioner Joseph Lochuch Ewalan in which he asks the Clerk to transmit to the U.S. Court of Appeals for the Ninth Circuit: (1) a transcript from Mr. Ewalan’s direct criminal appeal to Division 1 of the Washington State Court of Appeals; and (2) a pretrial statement made by Lieutenant Andrew Darrah on the night of the incident that led to Mr. Ewalan’s prosecution in state court. (See Mot.

20 (Dkt. # 93).) Mr. Ewalan purports to make his motion pursuant to Ninth Circuit Rules 10-3 and 11-4. (See id.) // 1 Circuit Rule 10-3 sets forth the applicable procedures for the parties to an appeal to determine which portions of the district court transcript, if any, are necessary to decide the issues on appeal. See 9th Cir. R. 10-3.1. Circuit Rule 11-4 provides, in relevant part, that the Clerk “shall . . . transmit any state court records lodged or filed in” habeas proceedings to the Ninth Circuit, unless those records are available on the district court’s electronic docket “or the district court determines that the notice of appeal was prematurely filed.” 9th Cir. R. 11-4.4.

8 Mr. Ewalan is not entitled to any relief with respect to the record on appeal, however, because the court previously dismissed his habeas petition with prejudice and denied a certificate of appealability. (See 5/10/22 Order (Dkt. # 89); R&R (Dkt. # 85).)

11 To date, the Ninth Circuit has not determined whether a certificate of appealability should issue. (See Docketing Letter (Dkt. # 92) (noting that “[a] briefing schedule will not be set until the court determines whether a certificate of appealability should issue”).) Thus, at present, Mr. Ewalan has no right to appeal the court’s denial of his habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (noting that “an appeal may not be taken to the court of appeals from . . . the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court”).

18 Moreover, even if the Ninth Circuit grants Mr. Ewalan a certificate of appealability, neither Circuit Rule 10-3 nor 11-4 apply to the relief he seeks. Those rules govern the transmittal of information that was before the district court. See 9th Cir. R. 10-3 (setting forth procedures for ordering transcripts of proceedings held before the district court); see also 9th Cir. R. 11-4 (setting forth requirements for retention and transmittal of state court records made part of the record before the district court). The records Mr. Ewalan wants the Clerk to transmit, however, were expressly not made part of the record before this court. (See Mot. at 1 (seeking transmittal of a transcript from the direct appeal of his underlying criminal case and Lieutenant Darrah’s pretrial statement); see also Mot. to Expand Record (Dkt. # 59) (seeking to expand the record to include the same); R&R at 59-66 (recommending denial of Mr. Ewalan’s motions to expand the record); 5/10/22 Order at 3 (adopting recommendation).) Accordingly, those records do not form part of the record on appeal and could not be transmitted by the Clerk. See Fed. R. App. P. 10(a) (describing items that constitute the record on appeal); see also Vargas v. Howell, 949 F.3d 1188, 1198 (9th Cir. 2020) (declining “to depart from the general rule that ‘documents not filed with the district court cannot be made part of the record on appeal’” (quoting Rudin v. Myles, 781 F.3d 1043, 1057 n.18 (9th Cir. 2014))).

13 For the foregoing reasons, Mr. Ewalan’s motion (Dkt. # 93) is DENIED.

14 Dated this 21st day of June, 2022.

15 A JAMES L. ROBART 17 United States District Judge