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Moeller v. Gilbert

United States District Court, Ninth Circuit

August 27, 2013

DAVID DOUGLAS MOELLER, Petitioner,
v.
MARGARET GILBERT, Respondent.

REPORT AND RECOMMENDATION

J. RICHARD CREATURA, Magistrate Judge.

The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge, J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner seeks relief from a state conviction. Petitioner filed the petition pursuant to 28 U.S.C. § 2254.

Respondent argues that five of the six grounds for relief that petitioner raises are procedurally barred and that the remaining ground for relief does not warrant relief. The Court has examined the motion for discretionary review that petitioner filed in the Washington State Supreme Court (ECF No. 17, Exhibit 11). The Court agrees with respondent. Petitioner did not present all of his six grounds for review in the motion for discretionary review that he filed with the Washington Supreme Court. Further, in state court petitioner presented several of his grounds for relief as state claims (ECF No. 17, Exhibit 11). All but one of petitioner's grounds are procedurally barred. Petitioner's remaining ground for relief regarding the confrontation clause does not warrant relief as the decision of the state courts does not violate clearly established federal law because petitioner was able to cross examine the witness and place testimony of her possible bias before the jury (ECF No. 17, Exhibit 2).

BASIS FOR CUSTODY

In September of 2009, a Pierce County jury found petitioner guilty of rape in the first degree, assault in the second degree and unlawful imprisonment. On October 23, 2009, the trial court sentenced petitioner to an indeterminate sentence of one hundred-forty months to life (ECF No. 17, Exhibit 1). Petitioner is currently in custody serving that sentence.

FACTS

The Washington State Court of Appeals summarized the facts surrounding the crimes as follows:

Deborah Stegner and David Moeller began dating in May 2008. Several months later, they moved in together in a Lakewood, Washington apartment. On Friday, November 14, 2008, apartment management gave the couple a three-day notice to pay or vacate. When Stegner received the notice that day, she began packing. That same evening, Moeller "backhanded" Stegner in the head, causing a black eye.
On November 15, Moeller hit Stegner in the face and strangled her. While Moeller had his arm around her neck, Stegner believed she would die. Moeller later demanded sex, stating, "Bitch, just go spread your legs." 4 Report of Proceedings (RP) (Sept. 9, 2009) at 53. To avoid further physical abuse, Stegner submitted to vaginal intercourse.
On November 16, "[i]t was, basically, the same events, being hit, being strangled, having sex." 4 RP (Sept. 9, 2008) at 54-55. Moeller also ordered Stegner to douche. She believed Moeller ordered this act to eliminate evidence. She complied with a "half-hearted effort" because she did not want to eliminate the evidence. 4 RP (Sept. 9, 2009) at 55. Stegner wanted to leave, but the apartment's small size allowed Moeller to keep her in sight and prevent her from leaving.
On November 17, Stegner woke up and saw a basket, a stack of boxes, and a piece of furniture stacked in front of the door. She could not escape without "making a bunch of noise" to move these items. 4 RP (Sept. 9, 2009) at 61. Moeller ordered her back to bed and said, "We are going to take a drive up to the mountains." This scared Stegner because Moeller previously told her that he had an ex-wife he wanted to take up to the mountains and push off a cliff. By this point, her "whole face was black and blue, " and her "neck was black and blue down to the middle of [her] chest." 4 RP (Sept. 9, 2009) at 64. Moeller then said he would leave Stegner alone if she performed oral sex on him. She complied, hoping he would fall asleep and she could escape. Moeller fell asleep, and Stegner escaped through the living room window.
Stegner ran to neighbor Jim Hettich's apartment. He refused to let her in, but he called the apartment manager and police. Hettich testified that Stegner was hysterical and "her eyes were almost completely black and blue." 6 RP (Sept. 14, 2009) at 291. "She was sobbing, bawling, scared, [and] shaking." 6 RP (Sept. 14, 2009) at 293. On cross-examination, Hettich denied that he told "Mr. Sizemore, the apartment manager, that the day before David was arrested, [he] had seen [Moeller and Stegner] in an apartment having sex." 6 RP (Sept. 14, 2009) at 297. Apartment manager Bill Sizemore contradicted this testimony, responding, "Yes" when asked, "On the day of the arrest of David Moeller, did you have a conversation with James Hettich where Mr. Hettich told you that [Moeller and Stegner] were in James Hettich's apartment the day before David's arrest having sex." 6 RP (Sept. 14, 2009) at 310.
Lakewood Police Officers Greg Richards and Jason Cannon responded to the scene. Officer Richards found Stegner hiding in the bushes outside Hettich's apartment.
Richards testified that Stegner "appeared to be badly beaten" and "was very, very upset and appeared extremely scared." 4 RP (Sept. 9, 2009) at 122. She told Officer Richards that Moeller "beat the shit out of me" and made her perform oral sex. 4 RP (Sept. 9, 2009) at 123. Cannon knocked on the couple's door, and Moeller started to move the boxes behind the door to allow Officer Cannon inside. Officer Cannon did not want to lose sight of Moeller, so he used his shoulder on the door to force entry.
Medical personnel transported Stegner to the hospital. Sexual assault nurse examiner Tara Lopez examined Stegner on November 17, 2008. Lopez observed extensive bruising, and "symptoms related to the strangulation." 5 RP (Sept. 10, 2009) at 230. Stegner told Lopez she had been slapped, choked, pushed, held down against her will, tripped, and forced to engage in sexual intercourse with Moeller. Lopez informed the emergency room physician about the bruising behind the left ear, due to concern about a basal or skull fracture. After the incident, Stegner moved to Florida.
On November 18, 2008, the State charged Moeller with first degree rape, second degree assault, and unlawful imprisonment. [footnote omitted] The State also charged three aggravating factors: deliberate cruelty, lack of remorse, and domestic violence. Trial was scheduled for January 13, 2009. On January 6, 2009, Moeller's counsel, over Moeller's objection, moved for a trial continuance because the "complexity and seriousness of the case requires proper time to investigate and adequate[ly] prepar[e]." The court granted the motion and continued the trial to April 30, 2009. On April 30, defense counsel and the prosecutor, over Moeller's objection, agreed to continue the trial to May 11 because the "assigned courtroom is in another trial" and an "out of state witness [Stegner] needs to be interviewed." On May 11, the morning of trial, defense counsel's office requested and the court granted a one-day trial continuance because "defense attorney is out ill today." On May 12, [footnote omitted] the court granted the State's requested trial continuance to fly the victim to Washington for defense interview and to accommodate defense counsel's unavailability for the month of June. The trial was continued to July 1, 2009. On July 1, defense counsel withdrew and took an extended medical leave due to serious illness. Substitute defense counsel requested a trial continuance to prepare for trial. The court continued the trial to August 31, 2009. On August 31, the court granted a joint motion by the State and defense for a one-day continuance so the prosecutor could be with his family during his father's major surgery. But the court denied defense counsel's request for a longer trial continuance to review photographs of the victim that he had not previously seen. Trial commenced on September 1, 2009.
At trial, the State called the following witnesses: Deborah Stegner, Officer Greg Richards, Officer Jason Cannon, nurse Tara Lopez, and neighbor James Hettich. Defense called apartment manager Bill Sizemore. Moeller did not testify. A jury convicted Moeller as charged on all counts. On the assault charge, the jury also answered affirmatively to three special verdict forms, finding Moeller's conduct demonstrated an egregious lack of remorse, deliberate cruelty, and the victim was a member of Moeller's family or household....

(ECF No. 17, Exhibit 2).

PROCEDURAL HISTORY

Petitioner filed a direct appeal and a contemporaneous personal restraint petition (ECF No. 17, Exhibits 3 and 6). The Washington State Court of Appeals consolidated the two actions (ECF No. 17, Exhibit 8). The Washington State Court of Appeals subsequently affirmed the conviction and denied petitioner's personal restraint petition (ECF No. 17, Exhibit 2).

Petitioner filed a motion for discretionary review in the Washington State Supreme Court where he presented the following grounds for review:

1. The defense offered documentary evidence of bias showing that the alleged victim had a history of (a) lying about Moeller's having assaulted her and (b) making false reports to the police.
(a) Did the trial court violate the confrontation clauses of the Washington Constitution article 1, section 22, and the Sixth Amendment by ...

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