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Rishor v. United States

United States District Court, W.D. Washington, Seattle

November 14, 2019

KIRK RISHOR, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING CERTIFICATE OF APPEALABILITY

          Marsha J. Pechman United States Senior District Judge

         On May 30, 2019, this Court denied Petitioner's 28 U.S.C. § 2254 petition for writ of habeas corpus and entered judgment. Dkt. Nos. 32 and 33. Petitioner responded by drafting a motion for relief from judgment under FRCP 60(b)(3) and (6) which was filed on July 8, 2019. Dkt. No. 34. This Court denied the motion and entered judgment thereon (Dkt. Nos. 39 and 40), and Petitioner filed a notice of appeal of that order on September 26, 2019. Dkt. No. 41.

         On November 7, 2019, this Court received an order from the Ninth Circuit Court of Appeals, remanding the matter to the District Court for the limited purpose of granting or denying a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Fed.R.App. 22(b). Dkt. No. 43. This Court was further directed to indicate either (1) its reasons for denying a certificate of appealability or (2) the issue or issues which meet the required showing for such a certificate. Id.

         Upon review of the September 18, 2019 post-judgment order, the Court rules as follows: IT IS ORDERED that a certificate of appealability is GRANTED as to the issues specified infra.

         Discussion

         “A certificate of appealability may issue… only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C § 2253.

To obtain a certificate of appealability, a petitioner must show at least that "jurists of reason would find it debatable whether the petition states a valid claim of denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). That is, it must find that reasonable jurists would find the district court's assessment of the petitioner's constitutional claims debatable or wrong or because they warrant encouragement to proceed further. Banks v. Dretke, 540 U.S. 668, 705 (2004); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

Hand v. Houk, 2014 U.S. Dist. LEXIS 623, at *3-4 (S.D. Ohio Jan. 3, 2014).

         Utilizing the above-cited standard, the Court finds the following issues meet the required showing for issuance of a certificate of appealability:

         1. Petitioner's “constitutional right to self-representation

         With the exception of the appointment of attorney Maybrown in May of 2014, Petitioner has represented himself throughout all his litigation before this Court. Petitioner argues that (a) he did not request that Maybrown be appointed to represent him, (b) the appointment was made solely for the convenience of the Court[1] and (c) that the appointment was for purposes of the single hearing on the motion for reconsideration only (i.e., when that hearing ended, Petitioner alleges that Maybrown's representation should have ended). Cumulatively, he argues that the entire process was a violation of his constitutional right to self-representation.

         As indicated in the order from which this appeal is taken, there is nothing in the record reflecting that the appointment was for a single hearing only; the order appointing Maybrown says nothing to that effect. Dkt. No. 39, Order at 5. But Petitioner is certainly correct that there is also nothing in the record reflecting that he requested appointment of counsel; i.e., the appointment was a unilateral act by this Court. (The Court notes, however, that at no point did Petitioner object to the appointment of counsel.) As has been remarked in earlier rulings, Petitioner has done a creditable job of representing himself and his ability to do that adequately has never been questioned. Based on the absence of his request for an attorney, Petitioner has a colorable constitutional claim that the unsolicited appointment of counsel in his case violated his right to represent himself.

         2. Maybrown's appointment to represent Petitioner ended at the termination of the District Court case:

         Based upon the Court's recollection of the reason why counsel was appointed for Petitioner, the Court finds that there is an argument to be made - upon which reasonable jurists could disagree - that, having been appointed without request, Maybrown's appointment should have extended no further than was necessary for the District Court's purpose; i.e., to the filing of the judgment in the habeas case. This is another facet of Petitioner's argument that his constitutional right to self-representation has been violated; i.e., that, upon the conclusion of the hearing for ...


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