United States District Court, W.D. Washington, Tacoma
ORDER ON RESPONDENT'S MOTION TO CERTIFY AN INTERLOCUTORY APPEAL AND TO STAY PROCEEDINGS
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on the Respondent's Motion to Certify an Interlocutory Appeal and to Stay Proceedings. Dkt. 30. The Court has considered the pleadings filed regarding the motion and the remaining file.
In this 28 U.S.C. § 2254 case, Petitioner seeks habeas corpus relief from a 507 month sentence after being convicted in of first degree burglary, attempted first degree murder, second degree assault, felony harassment, and malicious mischief in connection with his attack of a girlfriend and her family in their family home. Dkt. 1. Petitioner advances two grounds for relief: (1) Trial counsel and post-conviction counsel were ineffective when they failed to properly investigate and present evidence of a diminished capacity defense, and (2) trial counsel was ineffective when he failed to object to the prosecutor's improper closing arguments. Dkt. 1.
The case was referred to U.S. Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4.
On February 18, 2015, Judge Creatura filed a Report and Recommendation. Dkt. 26. The Report and Recommendation provides the factual and procedural background, and for present purposes, is adopted here. Id., at 1-8. Petitioner's motion to expand the record was granted in the Report and Recommendation. Id., at 12. The Report and Recommendation recommended that this Court conduct an evidentiary hearing on the first ground for relief. Id, at 12-17. It recommended that the second ground for relief be denied. Id., at 17-19.
On March 17, 2015, the Report and Recommendation was adopted. Dkt. 29. In the order adopting the Report and Recommendation, the undersigned noted that:
Whether Petitioner is entitled to an evidentiary hearing is a close question, however. A motion to certify an interlocutory decision regarding this issue, pursuant to 28 U.S.C. § 1292(b), if any, should be carefully drafted and filed in accord with the statute. If no such motion is made, the parties should be ordered to file a joint status report addressing a discovery timeline, briefing schedule, and earliest possible date for hearing, on or before April 17, 2015.
Id., at 3.
Respondent now moves to certify an interlocutory appeal to the Ninth Circuit Court of Appeals and for a stay of the case. Dkt. 30. Petitioner opposes the motion. Dkt. 34. Although the motion is noted for consideration for April 10, 2015, the Respondent has filed a reply (Dkt. 36), and the matter is ripe for decision. The motion should be granted.
1. Legal Standard
Pursuant to 28 U.S.C. § 1292(b):
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
"The legislative history of § 1292 suggests that it ought to be used only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation.'" United States v. Hoyte, 2012 WL 1898926 (W.D. Wash. May 24, 2012) (citing In ...