United States District Court, E.D. Washington
ORDER DISMISSING HABEAS ACTION
THOMAS O. RICE, District Judge.
BEFORE THE COURT is Petitioner's First Amended Petition (ECF No. 6). Petitioner, a prisoner at the Clallam Bay Corrections Center, is proceeding pro se and in forma pauperis; Respondent has not been served. After liberally construing the First Amended Petition in the light most favorable to Petitioner, the Court finds that it fails to cure the deficiencies of the initial petition.
Petitioner challenges his Spokane County jury convictions for First Degree Burglary, First Degree Robbery, two counts of First Degree Assault, First Degree Kidnapping and Conspiracy to Commit First Degree Robbery. He was sentenced to life without parole on June 10, 2010.
PROCEDURAL HISTORY IN STATE COURT
Mr. Butler asserts that the Washington State Court of Appeals, Division III, affirmed his convictions on February 13, 2012. He did not seek further appellate review. Rather, Petitioner states that he filed a Personal Restraint Petition in the Washington State Court of Appeals, Division III, in February 2014, asserting "incomplete record, judicial abuse of discretion and ineffective assistance." It appears this date of February 2014 is a typographical error. Elsewhere in his typewritten First Amended Petition, Petitioner indicates that he filed a RAP 7.8 Motion for a New Trial in the Spokane County Superior Court on January 21, 2013, which was transferred to the Court of Appeals as a Personal Restraint Petition and denied on September 9, 2013 (ECF No. 6 at 17). The Washington State Supreme Court then denied review on June 27, 2014.
As his grounds for federal habeas relief, Petitioner asserts "incomplete record, " claiming that he was not provided a complete transcript of the trial proceedings. In his second ground for relief, Petitioner contends that he is "entitled to an evidentiary hearing to determine the facts of the incomplete record."
In support of his habeas claims, Petitioner asserts that following the testimony of a State's witness at his trial on April 13, 2010, this witness disclosed to the court that he knew one of the jurors from Church (ECF No. 6 at 17). Petitioner avers that although the judge stated he would "look into it, " the court, defense counsel and the prosecuting attorney failed to address the witness's disclosure or to further investigate the juror's ability to be fair and impartial. Petitioner asserts that the trial resumed the following day as if the disclosure had not been made (ECF No. 6 at 18). He contends that when he received his trial transcript on direct appeal, this disclosure that a State's witness was acquainted with a juror was omitted from the transcript (ECF No. 6 at 18).
Petitioner states that when he wrote to the court reporter, after his convictions were affirmed on appeal, she responded on November 13, 2012, stating, "I have re-checked my record for the date and time you reference. There is a short discussion between Judge Cozza and witness Hill just before court recessed on 04/13/2010 regarding that witness's possible recognition of one of the jurors. If that doesn't appear in the transcript, please have your appellate attorney contact me." (ECF No. 6 at 18).
Petitioner states that when he informed the court reporter by letter dated November 18, 2012, that he was acting as his own attorney, and requested the transcript of the omitted discussion between Judge Cozza and witness Hill, she did not respond. Petitioner asserts that he made several more requests for the transcript in question, but the court reporter did not respond (ECF No. 6 at 18). Ultimately, Petitioner admits that no transcript of the discussion between Judge Cozza and witness Hill exists (ECF No. 6 at 44).
Petitioner contends that the failure to provide him with a complete record on appeal denied him the opportunity to present relevant issues to the appellate court (ECF No. 6 at 19). Petitioner also complains that in the absence of a complete record, he was unable to effectively challenge issues of abuse of discretion and ineffective assistance of counsel on collateral attack (ECF No. 6 at 27). He argues that the trial court abused its discretion in failing to deal with a credible possibility of juror bias, and trial counsel provided ineffective assistance in failing to do the same (ECF No. 6 at 21). Petitioner asserts that he should be granted an evidentiary hearing to "determine the facts of the omission from the record, and if he was prejudiced by them." (ECF No. 6, at 21).
As stated in the Order to Amend Petition (ECF No. 5), "Habeas is an important safeguard whose goal is to correct real and obvious wrongs. It was never meant to be a fishing expedition for habeas petitioners to explore their case in search of its existence." Rich v. Calderon, 187 F.3d 1064, 1067 (9th Cir. 1999) ( citing Calderon v. U.S.D.C. (Nicolaus) 98 F.3d 1102, 1106 (9th Cir. 1996)).
Here, Petitioner was aware that a witness acknowledged an acquaintance with a juror at the time it occurred. Following his direct appeal, he possessed a letter from a court reporter acknowledging that such a colloquy occurred. Nevertheless, Petitioner did not raise a separate claim challenging the fairness or impartiality of a juror in an appropriate collateral proceeding in the state courts. Instead, he seeks in this habeas ...