United States District Court, W.D. Washington, Seattle
ORDER DISMISSING FEDERAL HABEAS PETITION
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on petitioner's federal habeas petition (Dkt. #4), petitioner's "Motion for Leave to File an Amended Petition for Writ of Habeas Corpus" (Dkt. #93), petitioner's "Motion to Expand the Record" (Dkt. #80), and respondent's "Motion to Strike" (Dkt. #76). Petitioner has identified eight grounds for relief from his state court conviction. Magistrate Judge Donohue prepared a Second Report and Recommendation (2nd R&R) addressing seven of petitioner's eight grounds along with the parties' respective motions to strike and expand the record. Judge Donohue recommended that this Court deny the petition, and grant and deny the above motions in part. The 2nd R&R did not address petitioner's motion to amend.
As explained below, the Court adopts the 2nd R&R as to grounds two, five, seven, and eight. As to the remaining grounds, this Court agrees with the 2nd R&R that the petition should be denied, but relies upon different reasoning. Further, the Court DENIES petitioner's motion to amend (Dkt. #93), DENIES respondent's motion to strike (Dkt. #76), and GRANTS petitioner's motion to expand the record (Dkt. #80).
The Washington Court of Appeals, on direct appeal, summarized the facts as follows:
Juliana married David Schubert in 1980 shortly after Schubert's divorce from his first spouse of 17 years was finalized. When they married Schubert was 40 and Juliana was 21. According to the testimony, Schubert wanted children and soon after they were married, Schubert and Juliana had two sons. Andre was born in 1981 and Nicholas was born in 1983. The family lived on a seventeen-acre, secluded piece of property in Arlington.
Juliana grew up in Arlington and her family and close friends lived in the area.
Throughout his marriage to Juliana, Schubert had his own insurance business. For a short time when he and Juliana were first married, Schubert was also employed as a police officer for the City of Arlington.
Schubert operated his insurance business out of a home office and Juliana worked with him as an insurance agent. Juliana was also the primary caretaker of the children and was very involved in her sons' lives. She took the boys to school each day, volunteered in their classrooms at school on a weekly basis, was active in the PTA, and participated in their activities outside of school. By all accounts, the two boys were the focus of Juliana's life.
After they had been married for about eight years, Juliana and Schubert were having marital problems and began talking about divorce. In the Spring of 1989, Juliana consulted an attorney, bought a do-it-yourself book on dissolutions, and took steps to prepare to leave. She stopped working at Schubert's insurance business, and on June 6, 1989, began a new job at Everett Steel. Around the same time, Juliana called a woman she knew from Schubert's insurance business about renting an apartment in Arlington but asked her not to tell anyone about their conversation. Juliana told the woman she was leaving Schubert but wanted to remain nearby so that Schubert would be able to see the children as often as he wanted.
In early June, Schubert called Theresa Wright, a close friend of Juliana's, and arranged to meet her. Theresa's spouse, Les Wright, was also a good friend of Juliana's. Schubert and Theresa met and talked for several hours. Schubert told Theresa he thought Juliana and Les were having an affair and played a tape he had surreptitiously made of one of Juliana's telephone conversations. Theresa assured him that Juliana and Les were not having an affair. Theresa testified that during their conversation Schubert was at times very angry and frustrated. At one point, Schubert told Theresa he needed to get "peace" back into his life and if Juliana did not cooperate with him, he would kill her.
On the morning of Friday June 30, 1989, Juliana stopped on her way to work to talk to Rick Jordan, a friend of Schubert's, who was working on a construction project a few miles from the Schuberts' house. When she got out of the car, Juliana was extremely upset and crying. Juliana told Jordan that Schubert had "threatened her and the kids with a gun." At about 10:00 a.m. Juliana called her friend Myron Wenrich from work. She was distraught but said she would tell him later what had happened. As she left work for the day, Juliana told her coworkers she would see them on Monday.
On the same day, Schubert made arrangements with a babysitter to take his sons away on July 3 for several hours. He told the babysitter to take them to a movie and to a restaurant for pizza. Schubert had never asked the babysitter to take the children away from the house before. Schubert also told Juliana's friend and former co-worker, Karoline Olds, not to come to work on Monday, July 3, and not to call Juliana that weekend because he was going to serve her with divorce papers.
According to Schubert, on the evening of June 30, he and Juliana had an argument about the divorce. Schubert had filled out some of the paperwork from the do-it-yourself divorce book. Juliana crumpled the papers and threw them at him. Juliana was not seen again after that evening.
Throughout the month of July, Schubert gave conflicting accounts about Juliana's whereabouts. He told various people that Juliana had gone on vacation, to the beach, was traveling back east, was in Colorado, was with her sister, and was in Arizona. Schubert told some people that she had left him because of their marital problems. He told others that she was on vacation but he did not know where. At other times he said she was in specific, different locations. Schubert did not express any concern or surprise that Juliana had not contacted the two boys, and that she left behind her car, her purse containing her wallet, money and credit cards, and all of her possessions.
In early July, Schubert told his friend John Rickard, the chief of police for the City of Arlington, that Juliana left home and did not take the children, her purse, keys, clothes, or her car. Chief Rickard advised him to file a missing person's report. But Schubert did not contact the police or report Juliana missing. He also did not call any of Juliana's friends or family members to let them know she was missing or to find out if they knew where she was.
Juliana had not said anything to her employer, friends, or family about plans to leave Arlington. Because Juliana had frequent daily contact with her friends, when they didn't hear from her in a couple of weeks they suspected something had happened to her. Around July 20, Juliana's friends, Les Wright, Myron Wenrich and Karoline Olds went to the police to report her disappearance because they were worried because Juliana had not contacted them.
When Schubert was first contacted by the police he said Juliana was traveling back east with a friend. When Arlington Police Detective Blake contacted him a few days later, Schubert said he did not know where Juliana was. Schubert said he did not know the names or telephone numbers of any of her friends or relatives, that Juliana was estranged from her family, and as far as he knew, she did not take anything with her when she left. Detective Blake contacted him again later the same day. In this conversation, Schubert told the detective Juliana had recently called him from Colorado and she was traveling with friends, but he didn't know their names and could not describe them. Schubert also gave the detective a telephone number for Juliana's grandmother in California. When the detective called the number, it was no longer in service.
Around the time Juliana disappeared, Schubert's behavior changed. He became nervous and edgy and began drinking during the daytime. When a babysitter, Darlene Johnson, came to the door in late July, Schubert was shaking and told her he was afraid the police were going to show up.
On August 11, the police served the first of several search warrants to search Schubert's home and surrounding property. They did not recover any physical evidence related to Juliana's disappearance.
The police looked for Juliana throughout the country and abroad, and found no evidence of her. She has not used her social security number, accessed any of her four bank accounts, used any credit cards, or obtained a driver's license or a passport.
In January 1994, the State charged Schubert with second degree murder. In March 1994, the court granted the State's motion to dismiss the charge without prejudice because of the medical condition of the lead detective, Detective Blake.
In October 2001, the State refiled the second degree murder charge. The information was amended before trial to charge Schubert with first degree murder. The State's theory was that Schubert had several motives to kill Juliana: he wanted her to cooperate with him with respect to the divorce and property division, he did not want her to have custody of his sons, and he was jealous of her relationships outside the marriage. After the first trial, the jury couldn't agree on a verdict and the court declared a mistrial.
At the conclusion of the second trial in August 2002, the jury convicted Schubert of second degree murder. The court sentenced him to 164 months of confinement.
Dkt. #17 Ex. 6 at 2-7.
B. Procedural History
Magistrate Judge Donohue summarized the procedural history of petitioner's federal habeas corpus petition as follows:
Petitioner originally filed this federal habeas action in April 2008. ( See Dkt. No. 1.) On January 16, 2009, this Court issued a Report and Recommendation recommending that petitioner's federal habeas petition be denied and that this action be dismissed with prejudice. ( See Dkt. No. 26.) This Court concluded therein that seven of the ten grounds for relief asserted by petitioner in his petition were procedurally barred and that the remaining three grounds for relief were without merit. ( Id. ) The Report and Recommendaction was adopted by [this Court] on April 13, 2009, and this action was dismissed with prejudice. (Dkt. No. 35.)
Petitioner appealed the order of dismissal to the United States Court of Appeals for the Ninth Circuit. (Dkt. No. 37.) The Ninth Circuit reversed the order of dismissal as to the seven claims which this Court had determined were procedurally barred and remanded the matter for this Court to consider the merits of those claims. (Dkt. No. 57.) The Ninth Circuit declined, however, to expand the certificate of appealability to include the three issues this Court had previously considered on the merits, and rejected a request by petitioner for an evidentiary hearing on his allegation that the prosecutor had suppressed transcripts of his sons' testimony in violation of Brady v. Maryland, 373 U.S. 83 (1963). ( See id. )
Following remand, this Court directed respondent to file a supplemental answer addressing petitioner's seven remaining claims. (Dkt. No. 60.) Respondent filed a timely supplemental answer and petitioner, after being granted several extensions of time, filed a response thereto. ( See Dkt. Nos. 62, 65, 67, 77 and 81.) Petitioner attached to his response a number of exhibits which were not previously before this Court. ( See Dkt. No. 81.) Respondent filed a reply memorandum in support of his answer and included in that brief a motion to strike the exhibits submitted by petitioner in support of his response. (Dkt. No. 76.) Respondent also sought to strike the portions of petitioner's responsive brief which relied upon the exhibits. ( See id. )
Petitioner thereafter filed a motion to expand the record pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts. (Dkt. No. 80.) Respondent filed a brief opposing petitioner's motion to expand the record. (Dkt. No. 83.) Petitioner's federal habeas petition ...