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Rishor v. Ferguson

United States District Court, W.D. Washington

December 3, 2014

KIRK L RISHOR, Petitioner,
BOB FERGUSON, Respondent

Page 1079

For Kirk L Rishor, Petitioner: Todd Maybrown, LEAD ATTORNEY, ALLEN HANSEN & MAYBROWN, SEATTLE, WA.

For Bob Ferguson, Attorney General for the State of Washington, Respondent: Alex A Kostin, ATTORNEY GENERAL'S OFFICE (40116- OLY), OLYMPIA, WA.

Page 1080


Marsha J. Pechman, Chief United States District Judge.

THIS MATTER comes before the Court on Petitioner Kirk Rishor's Motion for Reconsideration (Dkt. No. 43) of the Court's Order Denying Petition for Writ of Habeas Corpus and Dismissing Action (Dkt. No. 40). Having reviewed Petitioner's Motion, Respondent's Response (Dkt. No. 49), Petitioner's pro se Reply (Dkt. No. 50), Petitioner's Reply via appointed counsel (Dkt. No. 55), Respondent's Response to the Court's order for additional briefing (Dkt. No 54), Respondent's Surreply and Motion for Oral Argument (Dkt. No. 56), Petitioner's Motion to Strike (Dkt. No. 57), Respondent's Response to Motion to Strike (Dkt. No. 58), Respondent's Supplemental Brief prior to oral argument (Dkt. No. 60), Petitioner's Supplemental Submission (Dkt. No. 61), and Exhibit 1 to the parties' oral argument (see Dkt. No. 63), and having heard oral argument on October 22, 2014, the Court hereby VACATES the previous order and judgment, DECLINES to adopt the Report and Recommendation, and GRANTS the petition for habeas corpus on both waiver of counsel and double jeopardy grounds.

Page 1081


Mr. Rishor is an experienced pro se litigant who represented himself in his first trial on four charges--first degree assault, two counts of second degree assault, and first degree unlawful possession of a firearm--in Whatcom County in 2004. (See Dkt. No. 29, Ex. 23 at 6.) Prior to that trial, the trial court engaged in what the Washington appellate court described as an " extensive colloquy" with Petitioner about his wish to represent himself. (See Dkt. No. 29, Ex. 19 at 3-4; Ex. 22.) The jury acquitted Petitioner on the formal second degree assault charges but returned a guilty verdict on the unlawful possession charge and also on second degree assault (as a lesser included offense of the first degree assault charge). (See Dkt. No. 29, Ex. 23 at 6.) The jury was silent as to the first degree assault charge, but showed no signs of deadlock. (See Dkt. No. 49 at 13.) On appeal, the Washington Court of Appeals reversed the second degree assault conviction and remanded for a new trial on that charge. (Dkt. No. 29, Ex. 23 at 2.) The three claims Petitioner asks the Court to reconsider (validity of waiver of right to counsel, double jeopardy, and certificate of appealability (see Dkt. No. 43 at 1-3)) relate to the proceedings on these matters after remand.

I. Facts Related to Waiver of the Right to Counsel

On remand, the trial court did not explicitly confirm Petitioner's previous waiver of counsel. While a trial judge stated during an early appearance that he " had [Rishor] here to reiterate his request to proceed in a pro se basis," he did not engage in a formal colloquy with Petitioner. (Dkt. No. 29, Ex. 24 at 5.) Petitioner responded to the question whether he wished to proceed on a pro se basis by asking for standby counsel rather than acknowledging the risks of representing himself. (Id.)

In a later appearance before a different judge, he was asked whether he had an attorney, and he responded, " No, I don't. I'm pro se, Your Honor." (Dkt. No. 29, Ex. 26 at 3.) He reiterated his need for standby counsel in order to have his motions noted: " I can't get stuff noted up for docket unless I have Mr. Fryer doing it because they won't do it from jail." (Id. at 7.) In a separate transcript dated the same day, Petitioner told the judge that his standby counsel did not need to be present for his arraignment. When the judge asked the prosecutor why Mr. Fryer was not present, Petitioner answered, " Because he had some other stuff to do and I could handle the arraignment by myself. I don't really need him here. That's why." (Dkt. No. 29, Ex. 16, Appx. G at 3.) The prosecutor stated, " I would think Mr. Fryer would or should have been here," and Petitioner responded, " Your Honor, that's the problem I'm having. I can show up for court and take care of most of the stuff. Mr. Fryer didn't need to be here this morning. I told him." (Id.) Petitioner was not in fact arraigned on that occasion because the judge could not find the information in his case. The judge guessed (incorrectly) that he was facing only a second-degree assault charge: " Now, the last thing in this file that I'm finding is a Judgment and Sentence where you were convicted of assault in the second degree and unlawful possession of a firearm in the first degree back in May of '04. I'm assuming that that remains the charge, that's what's been remanded. For some reason there doesn't appear to be a copy of the Information in this file [. . . .] Assuming that there hasn't been an amended charge filed, that's what you're looking at." (Id. at 5.)

Page 1082

On appeal, the Court of Appeals held that Petitioner's representations as contained in these transcripts constituted a valid waiver of the right to counsel in light of the court's formal colloquy with Petitioner two and a half years earlier. (See Dkt. No. 29, Ex. 19 at 3-4.) According to the Court of Appeals, " Rishor made no showing after remand that he no longer wished to represent himself. Rather, he requested only standby counsel and, [sic] further stated that he did not need standby counsel to be present at arraignment and that he was able to 'show up for court and take care of most of the stuff.'" (Id. at 4.) The Court of Appeals also held that under the standard of review used for personal restraint petitions in Washington, Petitioner could not show actual prejudice because his standby counsel was involved in plea negotiations. (Id.) The Washington Supreme Court then held in a ruling denying discretionary review that to the extent that this failure to secure a second waiver of counsel was constitutionally deficient, the deficiency was not prejudicial. (Dkt. No. 29, Ex. 21 at 2.)

II. Facts Related to Double Jeopardy

On remand from the Court of Appeals, Petitioner was initially charged with first degree assault again--even though his first jury had impliedly rejected that charge in convicting him of the lesser included offense. (Dkt. No. 29, Ex. 5 at 83.) He was never formally arraigned on this charge, though his standby counsel purported to waive his arraignment. (Dkt No. 29, Ex. 28.) As reflected in the transcripts, Petitioner was given varying information about the charge he was facing at different times during the pretrial and post-plea phases. (See, e.g. Dkt. No. 29, Ex. 16, Appx. G at 5 (during the pretrial phase a judge told Petitioner the judge assumed Petitioner was facing a second-degree charge); Dkt. No. 29, Ex. 24 at 10 (during the pretrial phase a prosecutor told the judge, " [T]echnically he is back here for a first appearance on the assault in the second degree" ); Dkt. No. 29, Ex. 17, Appx. C at 5 (after Petitioner's plea a prosecutor told the sentencing judge, " Of course at this point in time the State could only proceed on assault in the second degree" ); Dkt. No. 29, Ex. 30 at 3 (after Petitioner's plea Petitioner stated that he had been charged with first degree assault on remand).)

The record reflects that the Second Amended Information changing Petitioner's charge to second degree assault was filed on January 8, 2007, the same date Petitioner entered a plea of guilty to second degree assault. (Dkt. No. 61, Appx. A at 20; id., Appx. D. at 2; Dkt. No. 63.) According to an affidavit by Petititioner's standby counsel, which was filed in the state court proceedings, he had advised Petitioner during the pretrial phase of the sentencing consequences of a conviction of assault in the first degree and that " While I cannot speak to the defendant's thought process as to accepting or rejecting the plaintiff's offer to plead guilty to assault in the second degree. [sic] Presumptively, the information I provided him as to the consequences of being convicted of convicted of assault in the first degree in contrast to the consequences of pleading guilty to assault in the second degree factored into his decision to plead guilty to the amended charge." (Dkt. No. 29, Ex. 16, Appx. K at 2.) The record thus suggests Petitioner was not informed that the first degree assault charge was improper and that he was offered an amended information in exchange for a plea of guilty to second degree assault.

III. Procedural History and Exhaustion

The prior proceedings in the state courts are numerous, and the Report and

Page 1083

Recommendation summarizes most aspects of the history well. (Dkt. No. 35 at 2-7.) The Court notes the following correction: Petitioner's guilty plea was on January 8, 2007, not 2006. (See Dkt. No. 61, Appx. C at 2; Dkt. No. 35 at 2.)

Respondent has conceded that Petitioner exhausted his state remedies as least as to the three claims directly addressed by the Report and Recommendation, including waiver of the right to counsel. (Dkt. No. 27 at 10.) Counsel for Petitioner argues the double jeopardy claim was fairly presented to the state courts, while Respondent argues it was not exhausted. (Dkt. No. 49 at 12-14.) The procedural history relevant to exhaustion and second or successive petitions is described in the corresponding sections below.


I. Standards of Review

A. Motion for Reconsideration

Pursuant to Local Rule 7(h)(1), motions for reconsideration are disfavored, and will ordinarily be denied unless there is a showing of (a) manifest error in the ruling, or (b) facts or legal authority which could not have been brought to the attention of the court earlier, through reasonable diligence. The term " manifest error" is " an error that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record." Black's Law Dictionary 622 (9th ed. 2009).

B. Second or Successive Bar

Respondent argues Petitioner's Motion for Reconsideration is subject to AEDPA's second or successive claims bar. (Dkt. No. 60 at 2.) That bar provides:

(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme ...

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