ORDER ADOPTING REPORT AND RECOMMENDATION WITH AMENDMENT
MARSHA J. PECHMAN, Chief District Judge.
THE COURT, after careful consideration of the Report and Recommendation (Dkt. No. 47.), Petitioner's Objections (Dkt. No. 54.), and the remaining record ADOPTS Magistrate Judge Mary Alice Theiler's Report and Recommendation with amendment and DISMISSES this case.
Petitioner Richard Allan Case brings this suit under 28 U.S.C. § 2254 claiming the state court did not provide him with adequate aid to prosecute a first appeal as an indigent criminal defendant. (Dkt. No. 1-1 at 15.) He is in custody pursuant to a 2006 conviction for murder in the second degree. (Dkt. No. 4 at 1.) King County Superior Court sentenced Petitioner to 180 months confinement and he is currently in custody at Airway Heights Corrections Center. (Id.)
The Magistrate Judge addressed several of Petitioner's claims in the Report and Recommendation. (Dkt. No. 47.) The Magistrate Judge found the counsel appointed for the purpose of completing the record was effective and did not fall below an objective standard of reasonableness. (Id. at 10.) The Magistrate Judge also found no due process violations existed from the superior court's failure to rule on the 2009 post-conviction "Motion to Vacate Final Void Judgment" ("2009 post-conviction motion") because Petitioner had no right to a collateral attack on a final judgment, and the Magistrate Judge found Petitioner had no right to discovery in a habeas petition. (Dkt. No. 47 at 10, 11.)
Petitioner's objections to the Magistrate Judge's Report and Recommendation fall into four categories: (1) ineffective assistance of counsel on direct appeal because the state court did not appoint an attorney; (2) ineffective assistance of counsel for completing the record; (3) due process violations because the superior court failed to rule on his 2009 post-conviction motion; and (4) a request to be permitted to propound discovery to complete the record. (Dkt. No. 54 at 14, 11, 18, 21.)
Petitioner's first claim focuses on whether the state court should have appointed an attorney for his direct appeal. (Id. at 14.) Petitioner claims he was unaware that he had a right to an attorney on his first direct appeal. (Id.) In Petitioner's second objection, he focuses on the completion of the record and the ineffective assistance of counsel in completing the record. (Id. at 9.) The state court appointed an attorney to complete the record, recognizing it was improbable that Petitioner would be able to do so from jail. (Dkt. No. 1-1 at 17.) Petitioner took issue with the appointed attorney's thoroughness, claiming several items were missing from the record and the appointed attorney did not genuinely advocate for Petitioner. (Dkt. No. 54 at 11.) Petitioner also claims the record should be certified and signed in order to reflect the completeness and accuracy of the record. (Id. at 10.) Petitioner's third objection argues he did not have adequate access to the courts because of the state court's failure to rule on his 2009 post-conviction motion. (Id. at 18.) Petitioner finally objects to the Magistrate Judge's recommendation this Court deny Petitioner's request for discovery. (Id. at 21.)
I. Habeas standards
Federal habeas corpus relief is available only to a person "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas corpus petition may be granted with respect to any claim adjudicated on the merits in state court only if the state court's decision was contrary to or involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court. Id. at § (d)(1). In addition, a habeas corpus petition may be granted if the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Id. at § (d)(2).
In considering a habeas petition, this Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster , 131 S.Ct. 1388, 1398-1400, 1415 (2011). Also, if a habeas petitioner challenges the determination of a factual issue by a state court, such determination shall be presumed correct, and the applicant has the burden of rebutting the presumption of correctness with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
II. Ineffective assistance of counsel
Petitioner clarifies in his Objections he is bringing a separate claim for ineffective assistance of counsel with regard to his direct appeal. (Dkt. No. 54 at 14.) Petitioner did not exhaust his remedies in state court before presenting them to this Court. "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). Washington law provides criminal defendants a right to appeal. "The procedures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution." Evitts v. Lucey , 469 U.S. 387, 393 (1985).
The Magistrate Judge did not address Petitioner's ineffective assistance of counsel claim for Petitioner's direct appeal. The administrative record is silent as to whether Petitioner waived his right to counsel. This Court will not address a claim first brought in a federal habeas petition where Petitioner has not shown this issue was previously before the state court. Petitioner's ...