Rose v. Guyer, No. 18-35630 (9th Cir. 2020)
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An order denying a Federal Rule of Civil Procedure 70(a) motion to enforce a conditional writ of habeas corpus pertains to the district court's adjudication of the habeas petition, and 28 U.S.C. 2253(c)(1)(A) therefore requires a habeas petitioner to obtain a certificate of appealability (COA) in order to appeal the district court's order.
The Ninth Circuit denied petitioner a COA and dismissed for lack of jurisdiction his appeal from the district court's order denying his motion under Rule 70(a) to enforce the district court's conditional writ of habeas corpus. Petitioner was convicted, after a jury trial, of aggravated kidnapping, assault with a weapon, and assault on a peace officer, and sentenced to 100 years in prison with 20 years suspended. In this case, petitioner failed to make the requisite showing that reasonable jurists would debate whether the district court abused its discretion in finding that the State complied with the conditional writ and thus in denying petitioner's Rule 70(a) motion. Consequently, petitioner failed to make a substantial showing under section 2253(c)(2) to permit the issuance of a COA.
Court Description: Habeas Corpus. The panel denied Montana state prisoner Robert Rose a certificate of appealability (COA) and dismissed for lack of jurisdiction Rose’s appeal from the district court’s order denying his motion under Fed. R. Civ. P. 70(a) to enforce the district court’s conditional writ of habeas corpus, in a case in which Rose was convicted, after a jury trial, of aggravated kidnapping, assault with a weapon, and assault on a peace officer, and sentenced to 100 years in prison with 20 years suspended. The district court granted the conditional habeas writ on Rose’s claim that his trial attorney rendered ineffective assistance by failing to inform him of the state’s plea proposal. The conditional writ required the state to reoffer Rose equivalent terms of the original plea proposal. After Rose accepted the state’s reoffered plea proposal, the state court rejected the final plea agreement. In his Rule 70(a) motion, Rose argued that the conditional writ entitled him to immediate release from an unconstitutional detention because the state did not reoffer him an equivalent plea proposal. The panel held that an order denying a Rule 70(a) motion to enforce a conditional writ of habeas corpus pertains to the district court’s adjudication of the habeas petition, and 28 U.S.C. § 2253(c)(1)(A) therefore requires a habeas ROSE V. GUYER 3 petitioner to obtain a COA in order to appeal the district court’s order. The panel denied Rose a COA because he failed to make the requisite showing under 28 U.S.C. § 2253(c)(2) that jurists of reason would find it debatable whether the district court abused its discretion in denying the Rule 70(a) motion. After taking an initial peek at the merits, the panel concluded that it is beyond reasonable debate that the district court did not abuse its discretion in concluding that the reoffered plea proposal and original plea proposal were equivalent with respect to the State’s sentencing recommendations, conditions of supervision and waiver of the right to appeal, and treatment of Rose’s status as a persistent felony offender. The panel therefore dismissed the appeal for lack of jurisdiction.
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