United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Petitioner Ernest Jack seeks 28 U.S.C. § 2254 habeas relief from his convictions on a guilty plea for two counts of rape of a child in the second degree and assault in the second degree - domestic violence. Dkt. 14. Mr. Jack contends that he was denied effective assistance of counsel. The Court recommends DENYING the claims as Mr. Jack has failed to demonstrate that the state-court adjudication of his claims was contrary to, or an unreasonable application of, established federal law, or was an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1)-(2). The Court also recommends DENYING an evidentiary hearing and issuance of a certificate of appealability.
A. Statement of Facts
The Washington Court of Appeals summarized the facts as follows:
Ernest Jack was charged in 2009 with rape of a child in the first degree, rape of a child in the second degree, rape of a child in the third degree, and sexual exploitation of a minor. According to the certification of probable cause filed along with the charges, Jack had begun having sexual intercourse with his daughter E.J. when she was 6 years old and did not stop until Jack's arrest when E.J. was 15. Jack videotaped some of the sessions and police recovered some of those tapes. In addition, investigators learned that Jack had also attempted to have intercourse with another daughter, M.J., when she was 15 or 16 years old. As part of a negotiated plea agreement, Jack ultimately entered a guilty plea to reduced charges of two counts of rape of a child in the second degree for E.J. and one count of assault in the second degree for M.J., based on a theory of assault with intent to commit incest.
Dkt. 25, Exhibit 2 at 1.
B. Statement of Procedural History
Mr. Jack filed a notice of appeal on July 1, 2010. Dkt. 25, Exhibit 3. On January 13, 2011, Mr. Jack filed a motion to withdraw his appeal. Id., Exhibit 4. The Court of Appeals granted the motion. Id., Exhibit 5. The state court issued the mandate on February 22, 2011. Id., Exhibit 6.
On February 10, 2011, Mr. Jack filed his first personal restraint petition. Id., Exhibit 7. The Washington Court of Appeals denied the petition. Id., Exhibit 2. On October 13, 2011, Mr. Jack filed a motion for discretionary review. Id., Exhibit 9. The Washington Supreme Court denied review on March 1, 2012. Id., Exhibit 10. A certificate of finality was entered on May 23, 2012. Id., Exhibit 11.
On January 27, 2012, Mr. Jack filed his second personal restraint petition. Id., Exhibit 12. On March 16, 2012, Mr. Jack filed a motion to amend and supplemental pleadings. Id., Exhibit 13. The Washington Court of Appeals denied the petition. Id., Exhibit 14. A certificate of finality was issued on August 8, 2012. Id., Exhibit 15.
On November 28, 2012, Mr. Jack filed his third personal restraint petition. Id., Exhibit 16. The Washington Court of Appeals dismissed the petition. Id., Exhibit 18. On April 11, 2013, Mr. Jack filed a motion for reconsideration. Id., Exhibit 19. The Washington Supreme Court treated the motion as a motion for discretionary review and denied review on November 26, 2013. Id., Exhibit 20. The certificate of finality was entered on February 5, 2014. Id., Exhibit 21.
The decision to hold a hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Landrigan, 550 U.S. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388 (2011). A hearing is not required if the allegations would not entitle petitioner to relief under 28 U.S.C. § 2254(d). Landrigan, 550 U.S. at 474. "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id .; see also Cullen, 131 S.Ct. 1388 (2011). The Court finds it unnecessary to hold an evidentiary hearing because Mr. Jack's claims may be resolved on the existing state court record.
Mr. Jack raised four separate grounds for relief in his petition, all based on his contention that his counsel rendered ineffective assistance when: (1) she failed to question his competency to plead guilty; (2) she failed to order an evaluation even though she knew of his mental issues; (3) she failed to investigate and present mitigating evidence; and (4) she failed to communicate with him.
Under the two-prong standard of Strickland, a petitioner must show that counsel's performance was so deficient that it "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 686 (1984). He must also show the deficient performance so prejudiced the defense that it deprived him of the right to a fair trial and caused the state court proceedings to be unreliable. Id. at 687. A petitioner must satisfy both prongs. Id. at 697.
A. Claims 1 and 2 - Failure to Request Competency Evaluation
In his first two claims, Mr. Jack alleges that his counsel was aware that he suffered from certain mental issues based on a report from the Veterans Administration (VA) and "strange letters" from him that would have made any reasonable attorney question his competency to plead guilty. Dkt. 14 at p. 5.
Mr. Jack raised the issue of his alleged incompetence in his second and third personal restraint petitions. Dkt. 25, Exhibit 12; Exhibit 16. The Washington Court of Appeals first denied this claim stating, "Jack fails to offer any adequate explanation of how an investigation into his psychological health would have affected counsel's ability to assist him in deciding whether to plead guilty to the reduced charges." Id., Exhibit 14, p. 3. In response to the second petition, the Washington Court of Appeals again denied this claim stating:
The report Jack provides in support of his petition demonstrates that he was diagnosed with major depressive disorder and post traumatic stress disorder following a 1997 psychiatric examination. The report also documents Jack's struggle [with] alcohol abuse. Nothing in this report, however, establishes that he was unable to understand the nature of the plea proceedings more than a decade later or that his plea was anything other than knowing, intelligent, and voluntary. Jack does not dispute that he signed a written plea statement and attended a formal plea hearing. These practices and procedures provide prima facie verification of voluntariness of her[sic] plea. See State v. Osborne, 102 Wn.2d 87, 97, 684 P.2d 683 (1984). "More should be required to overcome this highly persuasive' evidence of voluntariness than a mere allegation by the defendant." Osborne, 102 Wn.2d at 97.
Dkt. 25, Exhibit 18, pp. 3-4.
Mr. Jack argues that the VA report should have alerted counsel to request an evaluation and specifically mentions he suffers from memory loss and has problems following directions. Dkt. 14, p. 7. However, the VA report states: "His intelligence appears to be at least average. His memory for recent and remote events appears to be good. There is no evidence of hallucinations or delusions." Dkt. 14-1, p. 19. Mr. Jack also relies on letters he sent to defense counsel and states these "strange" ...