United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING REPORT AND RECOMMENDATION
J. BRYAN United States District Judge.
matter comes before the Court on the Report and
Recommendation of U.S. Magistrate Judge J. Richard Creatua.
Dkt. 93. The Court has considered the Report and
Recommendation, Petitioner's objections, supplemental
objections, and “Motion for Evidentiary Hearing ie
Supplemental Argument re: Objections to Magistrates [sic]
Finding that Hearing is not Necessary” and the
remaining record. Dkts. 93, 110, 114, and 115.
brings this case pursuant to 28 U.S.C. § 2254,
challenging his conviction in state court of first degree
assault. Dkt. 1. On February 8, 2017, a 42-page Report and
Recommendation was filed, recommending that the petition be
denied on the merits and a certificate of appealability not
issue. Dkt. 93. The facts and procedural history are in the
Report and Recommendation (Dkt. 93, at 1-7) and are adopted
here by reference. Petitioner's three motions for an
extension of time to file objections were granted. Dkts. 96,
112, and 116. Petitioner has now filed multiple objections
(Dkts. 110, 114, and 115) and the matter is ripe for review.
Petitioner's objections will be addressed below, by
subject, rather than by claim because of the way he organized
Report and Recommendation recommends that Petitioner be
denied an evidentiary hearing. Dkt. 93, at 6-7. Petitioner
objects, again moves for an evidentiary hearing, asserting
that the victim (Ron Phillips), a witness Tim Bautista, and
another witness, Isabella Armour all testified falsely, that
the state was aware of their false testimony, and so, he
should be given an evidentiary hearing. Dkts. 115 and 110. He
points to variations in their testimony. Id.
Petitioner's arguments are a repeat of his prior
assertions and are addressed in the Report and
Recommendation. As stated in the Report and Recommendation,
Petitioner has not shown that he is entitled to an
evidentiary hearing. He raises issues of law, which can be
decided on the record. His motion (Dkt. 115) should be
Misconduct in Discussing “Ambiguous” First
Aggressor Jury Instruction that Relieved the State of its
objections, Petitioner again argues that the prosecutor's
misstatement regarding the first aggressor jury instruction
(that provocative words were enough to eliminate the use of a
defense of self-defense) was so prejudicial as to relieve the
state of its burden to prove every element of assault. Dkts.
110 and 114. He further asserts that the first aggressor jury
instruction was ambiguous, and so the prosecutor's
misstatements compounded the problem. Id. Petitioner
engages in an extensive discussion of his version of the
events as opposed to the victim's and other witnesses.
Id. Petitioner asserts that his “testimony
was, by far, the most credible and supported by facts,
physical evidence, and State witness testimony.” Dkt.
114, at 13. He also refers to alleged statements from members
of his jury. Dkts. 110 and 114. Petitioner then discusses his
ineffective assistance of counsel claims (both trial and
appellate) for failure to raise these issues. Id.
Report and Recommendation addresses each of Petitioner's
arguments, none of which are new. Petitioner's attacks on
the various witnesses' and victim's versions of what
happened are based on the witnesses' credibility; a
determination which is left to the jury. Even though he
focuses a great deal on the first aggressor jury instruction,
he acknowledges (as stated in the Report and Recommendation)
that he is also not entitled to a self-defense defense if the
jury finds his response to the attack was unreasonable in the
circumstances. Petitioner's objections do not provided a
basis to reject the Report and Recommendation regarding these
Knowing Use of False Testimony.
portion of his objections entitled “knowing use of
false testimony, ” Petitioner again attacks the
victim's credibility pointing to statements the victim
made in a police report (that he was initially attacked from
behind) that Petitioner asserts vary from the victim's
testimony at trial (that he was attacked from the front).
Dkt. 114. The Report and Recommendation specifically
addresses this issue, noting that the Petitioner failed to
show that the prosecutor knowingly used false testimony or
that any of the alleged false testimony affected the
jury's verdict. Dkt. 93, at 16.
Assistance of Counsel.
again asserts that trial counsel should have objected to the
prosecutor's misstatements that provocative words are
sufficient to be considered the first aggressor and should
have more completely impeached the victim's testimony and
other witnesses' testimony. Dkts. 110 and 114. Petitioner
repeats his argument that appellate counsel was deficient in
their failure to raises the issue around the prosecutor's
misstatements about the first aggressor jury instruction.
Report and Recommendation also discusses all Petitioner's
ineffective assistance of counsel claims at length. His
objections are a repetition of his prior arguments and offer
no basis to reject the Report and Recommendation.