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26 ORDER ON REQUEST FOR

CERT OF APPEALABILITY - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ANTHONY WALLER

Petitioner,

v.

KENNETH QUINN,

Respondent.

NO. C05-1904P

ORDER ON REQUEST FOR

CERTIFICATE OF APPEALABILITY

The above-entitled Court, having received and reviewed:

1. Magistrate’s Report and Recommendation (Dkt. No. 24)

2. Petitioner’s Request for Certificate of Appealability (Dkt. No. 28)

and all exhibits and declarations attached thereto, makes the following ruling:

IT IS HEREBY ORDERED that Petitioner’s request is DENIED.

Discussion

Petitioner Anthony Waller is a Washington state prisoner who filed a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. After reviewing the briefs of the parties and the remainder of

the record, the Magistrate Judge recommended that the petition be denied with prejudice. Petitioner

failed to file any objections to the Report and Recommendation and, on November 6, 2006, this Court

adopted the Report and Recommendation and dismissed Petitioner’s writ with prejudice. Dkt. No.

25.

The Court notes at the outset that Petitioner’s failure to object to the Magistrate’s Report and

Recommendation does not preclude him from appealing the decision on his writ. “It is well-settled law

in this circuit that ‘failure to file objections [to a magistrate judge's findings] does not waive the right

to appeal the district court's conclusions of law.’” [citations omitted] Richardson v. Sunset Science

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1 Although his petition for habeas corpus cites four grounds for relief, Petitioner’s Request for Certificate of

Appealability only challenges the Court’s adoption of the Report and Recommendation on three of those grounds; this

order addresses only the three challenged grounds.

ORDER ON REQUEST FOR

CERT OF APPEALABILITY - 2

Park Credit Union, 268 F.3d 654, 658 (9th Cir. 2001). As Petitioner contests only conclusions of law,

the lack of any objections to the Magistrate’s findings is not fatal to his appeal.

However, 28 U.S.C. § 2253(c)(2) provides that a certificate of appealability may issue “only if

the applicant has made a substantial showing of the denial of a constitutional right.” To satisfy this

standard, petitioners must show “that reasonable jurists could debate whether . . . 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, 120 S.Ct. 1595, 1603-04 (2000) (quoting

Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). Petitioner has failed to make such a showing on any

of his four cited grounds for relief.1

His “First Issue” is a challenge to the exceptional sentence issued to him following his trial. 

Petitioner bases his challenge on Blakely v. Washington, 124 S.Ct. 2351 (2004), an opinion which the

Ninth Circuit has ruled has no retroactive application to cases on collateral review such as Petitioner’s.

Petitioner’s “Second Issue” is an ineffective assistance of counsel claim which is founded

primarily on his trial counsel’s failure to mount a diminished capacity defense based on evidence that

Petitioner had been drinking on the night of his crimes. This argument fails to meet the standard for

ineffective assistance claims announced in Strickland v. Washington, 466 U.S. 6688- 687-90 (1984). 

Petitioner has demonstrated neither that his counsel’s performance fell below an “objective standard of

reasonableness” under “prevailing professional norms” (Id. at 687-88) nor that he was prejudiced by

an alleged deficiencies in trial counsel’s performance. The mere fact of his intoxication is insufficient

to establish diminished capacity under Washington law (see State v. Stumpf, 64 Wash.App. 522, 526-

27 (1992)), therefore this Court cannot say that Petitioner has made a substantial showing that a

constitutional right has been denied.

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26 ORDER ON REQUEST FOR

CERT OF APPEALABILITY - 3

The “Third Issue” which Petitioner seeks to appeal is his claim that the absence of all side-bar

discussions from the trial transcript is a denial of his constitutional right to a “fair and impartial trial” as

guaranteed by the Sixth Amendment. Petitioner is unable to cite any prejudice arising from this

omission, other than his argument that “the lack of a complete transcribed record has led the petitioner

to feel prejudiced by the actions, and lack thereof of trial counsel.” Petitioner’s Request, p. 11. This

is a wholly inadequate ground on which to base a finding that Petitioner has satisfied the requirements

for issuance of a certificate of appealability.

Conclusion

Petitioner has failed to make a substantial showing of that he was denied his constitutional

rights on any of the grounds cited in his request for a certificate of appealability; that request will

therefore be denied.

The clerk is directed to provide copies of this order to all counsel of record.

Dated: January __16__, 2007

AMarsha J. Pechman

U.S. District Judge

Case 2:05-cv-01904-MJP Document 30 Filed 01/16/07 Page 3 of 3