Lee v. Bennett

Opinion

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3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 LARRY J. LEE, CASE NO. 3:24-cv-05523-JNW-SKV 8 Petitioner, ORDER 9 v. 10 JASON BENNETT, 11 Respondent. 12 13 On February 14, 2025, the Court dismissed Petitioner Larry J. Lee’s habeas 14 petition without prejudice; after a de novo review, the Court adopted the Magistrate 15 Judge’s Report and Recommendation, finding that Lee incorrectly filed his Petition 16 under 28 U.S.C. § 2241, rather than 28 U.S.C. § 2254. Dkt. Nos. 16, 17; see also Dkt. 17 No. 13. Lee had two opportunities to cure his Petition before dismissal, but he failed 18 to do so. Dkt. No. 18. The Ninth Circuit Court of Appeals has asked the Court to 19 determine whether a certificate of appealability should issue. Dkt. No. 20. 20 A habeas petitioner must obtain a certificate of appealability to appeal the 21 denial of a Rule 60(b) motion. See United States v. Winkles, 795 F.3d 1134, 1143 22 (9th Cir. 2015). “A certificate of appealability should only issue on a denial of a Rule 23 1 60(b) motion if ‘[1] jurists of reason would find it debatable whether the district

9 court abused its discretion in denying the Rule 60(b) motion and [2] jurists of reason

3 would find it debatable whether the underlying [habeas] motion states a valid claim

4 of the denial of a constitutional right.” Dunsmore v. Harris, Case No.: 13-ev-1193-

5 GPC-PCL, 2022 WL 542541, at *1 (S.D. Cal. Feb. 22, 2022) (quoting Winkles, 795

G F.3d at 1143)). As that standard is not met here, a certificate of appealability will

7 issue.

8 Dated this 21st day of April, 2025.

faa — 10 amal N. Whitehead United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23