Booth v. Jackson

] UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA JOHN ALLEN BOOTH, CASE NO. €20-6264 BHS Petitioner, ORDER 9 v. || ERIC JACKSON, ll Respondent.

13 THIS MATTER comes before the Court on Petitioner Booth’s motion for a 28 || U.S.C. § 2253 Certificate of Appealability on his habeas grounds 1-4 and 9 (his || “eavesdropping” grounds”), and on his ineffective assistance of counsel ground, based on || counsel’s failure to locate or call alibi! witnesses. Dkt. 88. Booth also seeks a certificate || of appealability on his failure to provide a cell phone triangulation expert ground, which || the Court dismissed, along with grounds 5 and 6, in prior orders. See Dkts. 28 and 42. ' Booth’s initial habeas petition described as Ground 7 his ineffective assistance of || counsel claim based on the failure provide “cell phone triangulation” expert testimony, and his ineffective assistance claim based on the failure to locate alibi witnesses as Ground 8. Dkt. | at |} 16-17. The Court’s prior Order at Dkt. 42 inadvertently reversed these numbers, and the parties have since logically identified Booth’s habeas grounds by their descriptive names rather than |i ground numbers. Dkt. 89 at 3 n2.; Dkt. 91 at 1 nl. This Order will follow suit.

I After several rounds of briefing, two prior substantive orders, and an evidentiary || hearing, the Court adopted Magistrate Judge Fricke’s Report and Recommendation || (R&R), Dkt, 20, and denied Booth’s habeas petition in its entirety. Dkt. 83. The R&R recommended that the Court deny a certificate of appealability, though the Court’s order || did not expressly address that issue.

6 A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a || district court’s dismissal of his federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. A certificate of appealability may issue only || where a petitioner has made “a substantia] showing of the denial of a constitutional jJright.” See 28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by demonstrating || that jurists of reason could disagree with the district court’s resolution of his || constitutional claims or that jurists could conclude the issues presented are adequate to {| deserve encouragement to proceed further.” Miller-E/ v. Cockrell, 537 U.S. 322, 327 || (2003).

15 Booth’s motion identifies eight points upon which he contends “reasonable jurists |} could fairly debate” regarding his “eavesdropping” habeas grounds. Dkt, 88 at 3-5. As || Booth acknowledges, the Court did not find his testimony about his inability to || communicate with his defense team to be credible. Booth’s current claim that “he never | told the investigator anything that, if overheard, would be harmful,” Dkt. 88 at 5, does not || undermine the fact that he admitted he felt free to talk to the investigator in the attorney |} client booth. See Dkt. 83 at 7. The Court will not issue a certificate of appealability on 22 Booth’s “eavesdropping” grounds 1-4 and 9. l The Court does not agree that reasonable jurists could disagree about the merit of || Booth’s ineffective assistance of counsel ground, based on attorney Hunko’s alleged || failure to locate or call alibi witnesses that Booth claims must have seen him selling || drugs at the Red Barn Tavern at the time of the murders. Booth claims he knows who || actually committed the murders but did not and will not share that information due to his || “code.” He claims that although the investigator expressly told him “I need more from || you” about the alibi witnesses, Booth was free to withhold exculpatory information and || to instead put the onus on Hunko to find other alibi witnesses. There is no evidence there || were any such witnesses. The State correctly contends that it was not objectively || unreasonable for his attorney to focus on developing a defense strategy that did not rely |] on these alleged alibi witnesses where there was “overwhelming” evidence that Booth || was, in fact the shooter. Dkt. 89 at 10. The Court will not issue a certificate of || appealability on Booth’s “alibi witness” habeas ground.

14 Nor will it issue such a certificate on the cell phone triangulation ground, || dismissed prior to the evidentiary hearing. Booth’s motion for a certificate of || appealability is DENIED. His motion to broaden his motion for a certificate of || appealability, Dkt. 90, is also DENIED.

18 IT IS SO ORDERED.

19 Dated this 17th of January 2025.

BENJA' . SETTLE 21 United States District Judge