Ewalan v. State of Washington ( 2021 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 10 JOSEPH LOCHUCH EWALAN, CASE NO. C20-1497JLR 11 Petitioner, ORDER ADOPTING REPORT v. AND RECOMMENDATION 12 DON HOLBROOK, 13 Respondent. 14 15 This matter comes before the court on: (1) Petitioner Joseph Lochuch Ewalan’s 16 motion to expedite his release pending the resolution of his 28 U.S.C. § 2254 petition for 17 a writ of habeas corpus (Mot. (Dkt. # 44); Reply (Dkt. # 48));1 (2) Respondent Don 18 Holbrook’s response (Resp. (Dkt. # 46)); (3) the report and recommendation of United 19 States Magistrate Judge S. Kate Vaughan (R&R (Dkt. # 56)); and (4) Mr. Ewalan’s 20 // 21 1 Mr. Ewalan also made two supplemental filings in support of his motion. (See Motion Re-Reply (Dkt. # 53); Re-Reply (Dkt. # 54).) Although Dkt. # 53 is titled as a motion, it does 22 not appear to seek new or additional relief. (R&R at 1.) 1 objection thereto (Obj. (Dkt. # 57)). Having carefully reviewed those documents, the 2 relevant portions of the record, and the applicable law, the court ADOPTS the report and 3 recommendation (Dkt. # 56), DENIES Mr. Ewalan’s motion for releasing pending 4 resolution of his 28 U.S.C. § 2254 habeas petition (Dkt. # 44), and further STRIKES the 5 motion designation on Mr. Ewalan’s filing titled “motion: re-reply to respondents’ 6 answer to the motion to expedite petitioner’s release from custody” (Dkt. # 53). 7 A district court has jurisdiction to review a Magistrate Judge’s report and 8 recommendation on dispositive matters. Fed. R. Civ. P. 72(b). “The district judge must 9 determine de novo any part of the magistrate judge’s disposition that has been properly 10 objected to.” Id. The court reviews de novo those portions of the report and 11 recommendation to which specific written objection is made. United States v. 12 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). Magistrate Judge Vaughan 13 recommends denial of Mr. Ewalan’s motion because: (1) he “has not established at this 14 juncture that he is likely to succeed on the merits of his [habeas] Petition”; and (2) “even 15 if [he] could show a likelihood of success . . . , he fails to demonstrate that special 16 circumstances exist such that [he] is entitled to immediate release from custody prior to 17 resolution of his habeas petition.” (R&R at 4.) Mr. Ewalan objects to both conclusions. 18 (Obj. at 2.) 19 Magistrate Judge Vaughan also notes that Mr. Ewalan “presents no medical 20 evidence indicating the nature or severity of” the medical conditions on which he 21 partially relies in arguing for release pending disposition of his habeas petition. (R&R at 22 5.) Mr. Ewalan does not contest this finding but rather asserts that the court should “(1) 1 either order [the Department of Corrections] medical department to foreward [sic] Mr. 2 Ewalan all medical diagnosis records . . . or (2) allow more time for Mr. Ewalan to file 3 public disclosure of his medical record.”2 (Obj. at 3-4.) Magistrate Judge Vaughan, 4 however, accepted, for purposes of evaluating his motion, Mr. Ewalan’s assertions about 5 his health and vulnerability to COVID-19. (R&R at 5.) Thus, Mr. Ewalan’s suggestion, 6 even if adopted, would not alter Magistrate Judge Vaughan’s recommendation that his 7 motion be denied. 8 The court has independently reviewed Mr. Ewalan’s objections and arguments and 9 agrees with Magistrate Judge Vaughan’s analysis and conclusions stated in the report and 10 recommendation. Accordingly, the court ADOPTS the report and recommendation (Dkt. 11 # 56) in its entirety, DENIES Mr. Ewalan’s motion (Dkt. # 44), and DIRECTS the Clerk 12 to STRIKE the motion designation on Mr. Ewalan’s filing titled “motion: re-reply to 13 respondents’ answer to the motion to expedite petitioner’s release from custody” (Dkt. 14 # 53). The Clerk is further DIRECTED to send copies of this order to the parties and to 15 Magistrate Judge Vaughan. 16 Dated this 9th day of December, 2021. 17 A 18 JAMES L. ROBART 19 United States District Judge 20 2 The court declines to construe these suggestions as a motion. Mr. Ewalan has proven 21 himself capable of formulating motions to pursue evidence he feels is missing from the record. (See, e.g., Mot. to Correct Possible Incomplete Record (Dkt. # 17); Mot. to Unseal State 22 Documents (Dkt. # 20); Mot. to Produce Tr. (Dkt. # 39).)