Mitchell v. Jackson

Opinion

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4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 JAMES MITCHELL, CASE NO. C20-5623JLR-JRC 11 Petitioner, ORDER OF MODIFIED v. CERTIFICATE OF 12 APPEALABILITY ERIC JACKSON, 13 Respondent. 14

15 Before the court is the Ninth Circuit Court of Appeals order remanding this case to 16 issue a modified certificate of appealability designating which of Petitioner James 17 Mitchell’s claims meet the standard in 28 U.S.C. § 2253(c)(3). (Not. (Dkt. # 20).) The 18 court has considered the Ninth Circuit’s order and the balance of the record. 19 On October 16, 2020, Magistrate Judge J. Richard Creatura filed a Report and 20 Recommendation recommending that the petition be denied and a certificate of 21 appealability be granted. (R&R at 31 (Dkt. # 11).) Petitioner did not file any objections. 22 (See Dkt.) The court adopted the Report and Recommendation on December 1, 2020, 1 and granted a certificate of appealability but did not specify which of Petitioner’s claims 2 met the 28 U.S.C. § 2253(c)(3) standard. (Order at 1 (Dkt. # 14); see Judgment (Dkt. 3 # 15).)

4 Under 28 U.S.C. § 2253(c)(3), a certificate of appealability shall indicate which 5 issues satisfy “a substantial showing of the denial of a constitutional right.” 28 U.S.C. 6 § 2253(c)(3). To obtain a certificate of appealability, the Petitioner must show that 7 reasonable jurists could disagree with the district court’s resolution of his or her 8 constitutional claims or that jurists could agree the issues presented were adequate to

9 deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-85 10 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). 11 Here, Petitioner presented four claims for relief: (1) that he was deprived of his 12 right to present a defense when the trial court excluded evidence of the “other suspect”; 13 (2) that the prosecutor engaged in misconduct during closing argument; (3) that allowing

14 police witnesses to read directly from their reports violated the Confrontation Clause; and 15 (4) that trial counsel rendered ineffective assistance in various regards. (R&R at 2 (citing 16 Pet. (Dkt. # 1)).) Jurists of reason could disagree with the resolution of Petitioner’s 17 argument that the prosecutor committed misconduct in closing arguments related to the 18 “mixed blood” argument and Petitioner’s related claim for ineffective assistance of

19 counsel in failing to object to the prosecutor’s reference to “mixed blood.” Thus, a 20 certificate of appealability should issue only on Petitioner’s claim that the prosecutor 21 committed misconduct in closing argument and the related claim of ineffective assistance 22 of counsel. 1 Accordingly, the court ORDERS that a modified certificate of appealability on 2 Petitioner’s prosecutorial misconduct claim and his related ineffective assistance claim 3 only is GRANTED.

4 Dated this 4th day of February, 2021. 5 A 6 7 JAMES L. ROBART United States District Judge 8 9 10 11 12 13 14 15 16 17 18

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