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Coe v. Strong

United States District Court, W.D. Washington, Tacoma

August 15, 2014

KEVIN COE, Petitioner,
v.
MARK STRONG, Respondent.

REPORT AND RECOMMENDATION

J. RICHARD CREATURA, Magistrate Judge.

The District Court has referred this 28 U.S.C. § 2254 petition for a writ of habeas corpus to United States Magistrate Judge J. Richard Creatura. The District 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 sentence.

The Court recommends denying this petition; the stated grounds of petitioner's claim do not warrant habeas corpus relief because petitioner fails to show a violation of clearly established federal law as required by 28 U.S.C. 2254(d).

BASIS FOR CUSTODY

Petitioner is in Washington state custody and is involuntarily civilly committed to the Special Commitment Center on McNeil Island, Washington. Dkt. 13, Ex. 1. Pursuant to a jury verdict, the Spokane County Superior Court entered a valid civil commitment order on October 16, 2008. Id.

FACTS

The Washington State Court of Appeals summarized the facts surrounding the crime and conviction:

Coe was originally convicted in 1981 of four counts of first degree rape. State v. Coe, 101 Wash.2d 772, 774, 684 P.2d 668 (1984) ( Coe I). But those convictions were overturned on appeal primarily because some of the victims identified Coe only after being hypnotized. Id. at 785-86, 788-89, 684 P.2d 668. At Coe's second trial in 1985, Coe was convicted of three counts of first degree rape. State v. Coe, 109 Wash.2d 832, 834, 750 P.2d 208 (1988) ( Coe II). Again, Coe appealed and this court reversed two of the three counts because of the "admission of posthypnotic identification testimony." Id. at 850, 750 P.2d 208. Ultimately, Coe's 1985 conviction for the first degree rape of Julie H. was his sole conviction, and he was sentenced to 25 years.
On August 30, 2006, the State filed a petition seeking to have Coe committed as an SVP pursuant to chapter 71.09 RCW. During the trial, the State sought to link Coe to 40 unadjudicated sexual offenses. These 40 offenses included both rapes and indecent exposure incidents. The trial court admitted 36 of these offenses after finding by a preponderance of the evidence that Coe was the offender.
The State proved these offenses through multiple sources. For example, it relied on Dr. Robert Keppel, the State's "signature analysis" expert, who linked Coe to 18 rapes, including the Julie H. rape. Additionally, it relied on statistical results from the Homicide Investigation Tracking System (HITS) database, which linked Coe to 13 rapes that were admitted at trial. Dr. Keppel corroborated his signature analysis with the HITS results but did not rely on them. The State also had several victims identified by the signature analysis and HITS results testify at the SVP trial.
Further, because the above evidence alone does not prove SVP status, see RCW 71.09.020(18), the State's psychologist, Dr. Amy Phenix, testified that Coe suffered from the following mental abnormalities: (1) paraphilia, not otherwise specified (NOS), nonconsenting females, with sadistic traits, (2) paraphilia NOS, urophilia and coprophilia, and (3) exhibitionism. Additionally, she testified that Coe had a personality disorder NOS, with narcissistic and antisocial traits. Her opinion was based on her review of over 74, 000 pages of material, which included the other offenses. She considered identifications by Coe's victims, blood typing evidence, and Coe's own admission to two offenses. She also incorporated the signature analysis and HITS results into her diagnosis. On October 15, 2008, after a month-long trial, the jury found Coe was an SVP. The trial court then ordered Coe's civil commitment. Coe appealed and the Court of Appeals affirmed the trial court. He then petitioned for review, which we granted. In re Det. of Coe, 172 Wash.2d 1001, 258 P.3d 685 (2011). Dkt. 14, Ex. 32 at 8-9.

PROCEDURAL HISTORY

Petitioner first appealed his civil commitment to the Washington Court of Appeals, Division III. He raised seven issues in his brief:

1. Petitioner's trial counsel provided ineffective assistance by not requesting a jury instruction defining the term "personality disorder;"
2. The trial court erred by admitting expert testimony about a ritualistic crime signature linking Coe to seventeen unadjudicated rapes;
3. The trial court erred by admitting evidence from the Homicide Investigation Tracking System (HITS) linking Coe to unadjudicated rapes.
4. The trial court erred by admitting victim testimony, where those victims were linked to Coe by the ritualistic signature, HITS and other evidence;
5. The trial court erred by permitting the State's expert to rely on the unadjudicated rapes in forming her opinions;
6. The trial court erred by permitting the State's expert to testify about unadjudicated sexual crimes in order to show the bases of her opinions;
7. The trial court erred by permitting the State's expert to testify about unadjudicated sexual crimes in order to show the bases of her opinions, where ...

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