McGary v. Linquist

Opinion

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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DARNELL OTIS MCGARY, CASE NO. 3:22-cv-5809-JHC 8

ORDER 9 Petitioner, 10 v. 11 MARK LINQUIST; ROBERT W FERGUSON, 12

13 Respondents. 14

15 Petitioner, Darnell Otis McGary, filed a petition for Writ of Habeas Corpus under to 28 16 U.S.C. § 2254, challenging the requirement that he register as a sex offender. Dkt. # 1. The 17 Court adopted the Magistrate Judge’s Report and Recommendation (R&R), Dkt. # 23, and 18 dismissed the petition for lack of subject matter jurisdiction, Dkt. # 27. The Court determined 19 that Petitioner was not in “custody” as required under 28 U.S.C. § 2254(a), because the Ninth 20 Circuit has held that “the Washington sex offender law does not place [Petitioner] ‘in custody’ 21 for purposes of federal habeas corpus.” Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 22 1998). The Court declined to issue a certificate of appealability. Dkt. # 27. 23 24 1 Petitioner appealed and the Ninth Circuit denied Petitioner’s request for a certificate of 2 appealability. Dkt. # 33. The Ninth Circuit then denied Petitioner’s motion for reconsideration 3 and said: “No further filings will be entered in this closed case.” Dkt. # 34.

4 Petitioner then filed a motion for “Rule 60 Relief” with this Court. Dkt. # 35. The Court 5 denied the motion. Dkt. # 36. Petitioner appealed the Court’s denial of the motion. Dkt. # 38. 6 The Ninth Circuit remanded to the Court “for the limited purpose of granting or denying a 7 certificate of appealability at the court’s earliest convenience.” Dkt. # 39. 8 The Court would issue a certificate of appealability of its denial of Petitioner’s Rule 60(b) 9 motion if the Petitioner could show “that (1) jurists of reason would find it debatable whether the 10 district court abused its discretion in denying the Rule 60(b) motion, and (2) jurists of reason 11 would find it debatable whether the underlying section 2255 motion or section 2254 petition 12 states a valid claim of the denial of a constitutional right.” Martinez v. Shinn, 33 F.4th 1254,

13 1261 (9th Cir. 2022), cert. denied, 143 S. Ct. 584 (2023). “To meet this standard, the petitioner 14 ‘must demonstrate that the issues are debatable among jurists of reason; that a court could 15 resolve the issues in a different manner; or that the questions are adequate to deserve 16 encouragement to proceed further.’” Id. (quoting Lambright v. Stewart, 220 F.3d 1022, 1025 17 (9th Cir. 2000) (emphasis in original)). 18 In his request for a certificate of appealability, Petitioner appears to argue that the Court 19 erred in denying his Rule 60(b) motion because he is subject to more onerous sex offender 20 registration requirements in the State of New Mexico. See Dkt. # 38 at 2; Dkt. # 35 at 7 (Rule 21 60(b) Motion). Petitioner cites a case from the Third Circuit in which the court held that federal 22 sex offender registration requirements constituted “custody” for the purposes of 28 U.S.C. §

23 2254. Id.; Piasecki v. Ct. of Common Pleas, Bucks Cnty., PA, 917 F.3d 161, 173 (3d Cir. 2019). 24 l But Petitioner already advanced this argument in his first appeal, Dkt. # 30 at 1, and the Ninth 2 Circuit rejected it by denying his certificate of appealability, Dkt. # 33. 3 Petitioner has not shown any basis upon which the Court’s denial of the Rule 60(b) 4 motion may be “debatable.” Thus, the Court DECLINES to issue a certificate of appealability. 5 Dated this 9" day of July, 2024. ° CT oh 4. Chur 7 John H. Chun United States District Judge 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24