United States District Court, W.D. Washington, at Tacoma
REPORT AND RECOMMENDATION
J. RICHARD CREATURA, Magistrate Judge.
The District Court referred this petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, to United States Magistrate Judge J. Richard Creatura. The referral is made pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4.
The Court recommends denying this petition because the superior court sentenced petitioner on a charge for which he was convicted and the fact that the jury also convicted him of lesser included offense did not deprive him of any constitutional right. The balance of petitioner's arguments were also addressed by the state courts and those rulings do not violate clearly established constitutional standards.
BASIS FOR CUSTODY
Petitioner is in custody pursuant to a state court judgment and sentence following his convictions for Attempted First Degree Murder and First Degree Assault (Dkt. 16, Exhibit 1, Judgment and Sentence, State v. Lee Pierce County Cause No. 06-1-05223-6).
FACTS AND PROCEDURAL HISTORY
The Washington State of Appeals summarized the facts as follows:
Lee and Jin Kyung Kim started dating in late 2002. In 2005, they opened a bakery in Tacoma. Because of visa restrictions, the fact that Kim's family lives in Korea, and a tumultuous relationship with Lee, Kim returned to Korea. Lee contacted Kim on several occasions and asked her to return to the United States. Kim returned for short periods. Lee became quite upset on several occasions when Kim refused to return, and he threatened to kill Kim's parents unless she did so. He also left abusive voicemail messages for Kim and her family members. Despite these threats, Kim briefly returned to help Lee open a second bakery in Tacoma.
Lee asked Kim to return to the United States to participate in a trial involving their business, promising to end the relationship and not physically hurt Kim or her family members if she would do so. Kim agreed, returning to the United States on October 31, 2006. Lee picked Kim up at the airport midday and they started to argue soon thereafter. Lee insisted that Kim stay with him during her visit, but Kim refused. Kim accompanied Lee on a series of errands, including a brief stop at the bakery, where Lee placed a cake box in the trunk of his car. Later that night, Kim and Lee attended a business dinner at a restaurant. Lee drank a bottle of Korean alcohol at dinner. When Kim and Lee left the restaurant, Kim sat in the driver's seat because she did not want to stay with Lee and she was concerned Lee would not take her to a hotel. Before they left the restaurant, Lee removed the cake box from the trunk of his car and placed it in the back seat. Lee then sat in the front passenger seat.
As Kim was driving, Lee asked Kim for her father's phone number but did not say why he wanted it. Kim refused to give it to him. An argument ensued and Lee ordered Kim to pull over to the side of the road and continued to ask for Kim's father's number. After Kim refused again, Lee grabbed a kitchen knife from the cake box on the rear passenger seat and stabbed her. Kim then relented. While making the phone call, Lee stuck the knife into a tissue box. Kim tried to grab Lee's hands, but he put his hands around her neck and choked her, asking her "Do you want me to kill you this way?" 4 Report of Proceedings (RP) at 111. After she released his hands, Lee stopped choking her and stabbed her again once or twice while waiting for the call to Kim's father to connect. Lee again stuck the knife in the tissue box and held Kim's head against the seat while he spoke to her father, asking him "Do you love your daughter?" 4 RP at 114. While Lee was on the phone, Kim escaped from the car and ran down the street. Lee chased her with the knife. Several witnesses tackled Lee and restrained him until police arrived. Emergency medical technicians treated Kim on the scene, and an ambulance took her to a hospital where doctors treated her for several knife-inflicted lacerations. Kim also had red marks on her neck consistent with choking. The State charged Lee with attempted [footnote omitted] first degree murder with a deadly weapon. [footnote omitted] The State amended the information to add the first degree assault with a deadly weapon charge. [footnote omitted]
Before trial, the State moved to admit Kim's testimony that Lee had threatened her and her family. Lee objected to this testimony. The trial court admitted this testimony under ER 404(b).
At trial, Kim testified that (1) after she tried to cut off communication with Lee, he threatened to kill her family and asked her to pick a member of her family for him to kill; (2) Lee left numerous voicemail messages-as many as 88 in one day-in which he cursed and threatened her family; (3) Lee told her that he would promise not to hurt her or her family if she agreed to come back and help with the trial related to their bakery business. She also testified that during the attack she thought Lee told her that she "needed to die" and was "someone that should die." 4 RP at 110.
Dr. Lori Thiemann, a Western State Hospital psychologist who evaluated Lee's competency before trial, testified that Lee was capable of forming intent at the time of the offense. Dr. Thiemann also testified that Lee's intoxication would not have prevented him from forming intent or the requisite premeditation.
Dr. Paul Leung, a psychiatrist, testified in Lee's defense. Leung testified that Lee could not remember the details of the events of the night in question. He explained that he believed the memory loss derived from Lee's mind rejecting the traumatic, extraordinary events of the evening. Dr. Leung testified that Lee suffered from major depression and that he took medications that would have increased side effects when mixed with alcohol. Dr. Leung testified that Lee had told him that he had consumed "quite a bit of alcohol" in the restaurant on the evening in question. 8 RP at 389. Dr. Leung did not know if that quantity of alcohol was enough to have made Lee pass out. Dr. Leung did not testify that the alcohol or medications would have caused Lee to black out or would have caused Lee's inability to remember the evening. Dr. Leung ultimately opined that Lee could not have formed intent and that he did not intend or plan to harm Kim. With regard to Lee's threats, Dr. Leung testified that, in Asian culture, people sometimes make statements that sound like threats even though they do not intend the statements as threats. On cross-examination, Dr. Leung stated that Lee engaged in "goal-directed" behavior, such as discussing with Kim which of them would drive, asking Kim for her father's phone number, and moving the cake box from the trunk area to the backseat. 8 RP at 413.
Lee did not testify on his own behalf. Lee proposed a series of jury instructions, including voluntary intoxication, diminished capacity, and to convict instructions for the inferior degree crimes of second degree and third degree assault. The trial court refused Lee's proposed instruction on voluntary intoxication, finding that Dr. Leung had been unable to offer an opinion as to intoxication that night and that the evidence presented did not reasonably connect Lee's intoxication with the inability to form the required level of culpability. The trial court issued all of Lee's remaining proposed instructions. The jury convicted Lee of attempted first degree murder and first degree assault and returned special verdicts finding that Lee was armed with a deadly weapon on each of those counts. The trial court found that the assault conviction merged with the attempted murder conviction and sentenced Lee only on the attempted murder conviction.
(Dkt. 16, Exhibit 2, Opinion (2012), State v. Lee, Court of Appeals Cause No. 37675-0-II, at 1-5).
Petitioner appealed from his judgment and sentence to the Washington State Court of Appeals (Dkt. 16, Exhibit 3, Brief of Appellant, State v. Lee, Court of Appeals Cause No. 37675-0-II). Petitioner also filed a personal restraint petition that the court consolidated with the direct appeal ( see Dkt. 16, Exhibit 6, Personal Restraint Petition, In re Lee, Court of Appeals Cause No. 38874-0-II).
The Washington State Court of Appeals initially reversed petitioner's conviction, finding that counsel was ineffective for not requesting a jury instruction on the lesser included offense of Second Degree Attempted Murder ( see Dkt. 16, Exhibit 7, Opinion, State v. Lee, Washington State Court of Appeals Cause No. 37675-0-II). The state sought review by the Washington State Supreme Court ( see Dkt. 16, Exhibit 8, Petition for Review, State v. Lee, Supreme Court Cause No. 84551-4). The Washington State Supreme Court granted review and remanded the case back to the Washington State Court of Appeals for reconsideration in light of State v. Grier, 171 Wn.2d 17, 246 P.3d 1260 (2011) (Dkt. 16, Exhibit 10, Order, State v. Lee, Supreme Court Cause No. 84551-4).
On remand, the parties submitted supplemental briefing ( see Dkt. 16, Exhibit 12, Supplemental Brief of Appellant; Exhibit 13, Supplemental Brief of Respondent). After review of the supplemental briefing, the Washington State Court of Appeals rejected petitioner's claim and affirmed the convictions ( see Dkt. 16, Exhibit 2). The court found that counsel's decision not to request a jury instruction on Second Degree Attempted Murder was not unreasonably deficient representation ( id.).
Petitioner sought review again by the Washington State Supreme Court (Dkt. 16, Exhibit 14, Petition for Review, State v. Lee, Supreme Court Cause No. 87054-3). The Washington State Supreme Court denied review on June 5, 2012 ( see Dkt. 16, Exhibit 15, Order, State v. Lee, Supreme Court Cause No. 87054-3). The Mandate issued on June 20, 2012 ( ...