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Order- 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RUDOLPH PERRY,

Petitioner,

v.

PIERCE COUNTY SUPERIOR COURT,

Respondent.

Case No. C05-5301

ORDER DENYING CERTIFICATE

OF APPEALABILITY

This matter comes before the court on the petitioner’s Notice of Appeal. Dkt. 17. The court

must consider whether to grant or deny the petitioner a Certificate of Appealability. See 28 U.S.C.

2253(c)(3). The court has reviewed the record herein.

I. PROCEDURAL HISTORY

On June 10, 2005, U.S. Magistrate Judge Karen L. Strombom issued a Report and

Recommendation, concluding that petitioner’s habeas claims were unexhausted and that the petition

should be dismissed without prejudice. Dkt. 7. On July 25, 2005, the court adopted the Report and

Recommendation and dismissed the petition without prejudice. Dkt. 11. Petitioner has now filed a

notice of appeal to the U.S. Court of Appeals for the Ninth Circuit. Dkt. 17. This notice of appeal is

construed as a petition for a certificate of appealability. Dkt. 19. The response was due on October

31, 2005, but none was filed. See id.

II. STANDARD FOR GRANTING A CERTIFICATE OF APPEALABILITY

The district court should grant an application for a Certificate of Appealability only if the

petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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Order- 2

2253(c)(3). To obtain a Certificate of Appealability under 28 U.S.C. § 2253(c), a habeas petitioner

must show that reasonable jurists could debate whether, or agree that, the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve encouragement

to proceed further. Slack v. McDaniel, 529 U.S. 473, 475 (2000) (quoting Barefoot v. Estelle, 463

U.S. 880, 893 n.4 (1983)). When the court denies a claim on procedural grounds, the petitioner must

show that jurists of reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it debatable whether the district

court was correct in its procedural ruling. Id. at 474. 

III. DISCUSSION

 This court dismissed the petition as unexhausted. The case was therefore dismissed on

procedural grounds. There is nothing in the record that would support a conclusion that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it debatable whether this court was correct

in its procedural ruling. Petitioner’s habeas claims were unexhausted in state court. Although

petitioner may ultimately be procedurally barred from presenting his claims in state court, this court

afforded him the opportunity to attempt to do so by dismissing the habeas petition without prejudice.

The Certificate of Appealability should therefore be denied.

Accordingly, it is hereby ORDERED that petitioner’s motion for a Certificate of

Appealability (Dkt. 17) is DENIED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to 

any party appearing pro se at said party’s last known address.

DATED this 3rd day of November, 2005.

ARobert J. Bryan

U.S. District Judge 

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