United States District Court, W.D. Washington, Seattle
ORDER ON REPORT AND RECOMMENDATION
MARSHA J. PECHMAN, Chief District Judge.
The Court, having reviewed the petition for habeas corpus (Dkt. No. 8), the Report and Recommendation of Judge Tsuchida, United States Magistrate Judge (Dkt. No. 21), and Petitioner's objections (Dkt. No. 22), finds and orders as follows:
(1) The Report and Recommendation is ADOPTED;
(2) Petitioner's § 2254 habeas petition is DENIED on the merits and DISMISSED with prejudice;
(3) Petitioner's request for an evidentiary hearing is DENIED;
(4) Petitioner is DENIED issuance of a certificate of appealability; and
(5) The Clerk shall send a copy of this Order to the parties and Judge Tsuchida.
Mr. Herod was convicted by a Washington jury of two counts of first degree robbery. (Administrative Record, Dkt. No. 16, Ex. 10 at 3.) After Navin Pai and Matthew Tundo were robbed and Mr. Pai had his car stolen, they were taken by police to the location where the alleged robber was found. (Id. at 2.) They identified the man, Mr. Herod, as the individual who robbed them. (Id.) Mr. Pai and Mr. Tundo testified at trial about this show-up identification. (Id. at 3.) Mr. Herod appealed, arguing the show-up identification was impermissibly suggestive and unreliable. (Id.) The Washington Court of Appeals affirmed the conviction, determining the identifications were reliable and properly admitted based on the factors announced in Neil v. Biggers , 409 U.S. 188, 199 (1972). (Dkt. No. 16, Ex. 10 at 9.)
Mr. Herod then filed this habeas corpus petition under 28 U.S.C. § 2254, arguing his conviction violated the Fourteenth Amendment because the identifications admitted at trial "were a product of an impermissibly suggestive show-up." (Petition, Dkt. No. 8 at 5.) He also requests a new evidentiary hearing and a certificate of appealability. (Id. at 6.)
Judge Tsuchida recommends denying the habeas petition because the Washington Court of Appeals applied the Biggers factors reasonably using the record. (Report and Recommendation, Dkt. No. 21 at 6.) He also recommends denying an evidentiary hearing because Mr. Herod failed to satisfy the requirements of 28 U.S.C. § 2254(e)(2). (Dkt. No. 21 at 8.) See 28 U.S.C. § 2254(e)(2) ("If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim."). Finally, Judge Tsuchida recommends denying a certificate of appealability ("COA") because "no reasonable jurist would disagree" that Mr. Herod's petition should be dismissed or would find that the issue deserves continued examination. (Dkt. No. 21 at 8.) See Gonzalez v. Thaler , 132 S.Ct. 641, 648 (2012).
Mr. Herod filed objections to Judge Tsuchida's Report and Recommendations, arguing his petition and a COA were wrongly denied. (Petitioner's Objections, Dkt. No. 22 at 5.) He does not object to Judge Tsuchida's recommendation to deny an evidentiary hearing. (Id.)
The district court reviews reports and recommendations by a magistrate judge de novo. 28 U.S.C. § 636(b)(1). An application for a writ of habeas corpus will not be ...