United States District Court, W.D. Washington, Tacoma
ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable J.
Richard Creatura, United States Magistrate Judge (Dkt. 14),
and Petitioner Michael Sublett's (“Sublett”)
objections to the R&R (Dkt. 15).
March 6, 2018, Judge Creatura issued the R&R recommending
that the Court deny two of Sublett's claims on the merits
and dismiss the third claim as unexhausted and procedurally
barred. Dkt. 14. On March 19, 2018, Sublett filed objections.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
case, the Court finds that some of Sublett's objections
have merit. First, however, the Court agrees with Judge
Creatura that Sublett's ground for relief regarding his
counsel's failure to object to the prosecutor's
closing argument is unexhausted and procedurally barred. Dkt.
14 at 15. Moreover, Sublett does not object to this portion
of the R&R. Therefore, the Court adopts the R&R on
this issue and dismisses this ground for relief.
one of Sublett's other grounds for relief is whether his
right to a fair trial was violated because he was fitted for
a stun device during trial. The state court denied the claim
because Sublett failed to show prejudice. Dkt. 7, Exh. 28 at
4. The R&R recommends denying the claim because there is
no clearly established federal law on the use of stun
devices. Dkt. 14 at 9-12. Sublett objects arguing that
numerous authorities exist on the use of shackles and stun
belts. Dkt. 15 at 2-4. Although these positions raise an
interesting question as to the specificity of the relevant
rule, the Court need not address this question. The state
court adjudicated the claim on Sublett's failure to show
prejudice, and Sublett has failed to show that the decision
was unreasonable. See Dkt. 1 (petition); Dkt. 10
(traverse). Thus, the Court modifies the recommendation and
denies the claim on the basis that Sublett has failed to show
that the state court determination of no prejudice is either
contrary to or an unreasonable application of federal law.
See, e.g., Holbrook v.
Flynn, 475 U.S. 560, 572 (1986) (“if the
challenged practice is not found inherently prejudicial and
if the defendant fails to show actual prejudice, the inquiry
also argues that he is not required to show prejudice on this
issue because the stun device interfered with his right to
counsel. Dkt. 15 at 9. Sublett, however, relies on
authorities that addressed the trial court explicitly
interfering with the defendant's ability to communicate
with counsel. For example, in Geders v. United
States, 425 U.S. 80 (1976), the trial court ordered that
defendant could not consult with his counsel during an
overnight recess. The Supreme Court concluded that this
violated the defendant's right to the assistance of
counsel and required reversal without any showing of
prejudice. Id. at 91. Since Geders, the
rule has evolved such that an “actual or constructive
denial of the assistance of counsel altogether is reversible
without a showing of prejudice.” United States v.
Miguel, 111 F.3d 666, 673 (9th Cir. 1997). Under this
rule, Sublett has failed to show either an actual or
constructive denial of counsel. In fact, the trial court
found as follows:
Mr. Sublett was able to assist his counsel at trial. They
communicated regularly during the trial, during recesses, and
otherwise. He and [his counsel] testified that they were
seated approximately one foot apart at the counsel table. Mr.
Sublett wrote a number of notes to [his counsel], and
[counsel] read those notes.
Dkt. 9, Exh. 23 at 4, ¶ 4.2. In other words, the state
appellate court relied on an unchallenged finding of fact by
the state trial court. In the absence of any argument that
this finding is an unreasonable determination of the facts in
light of the record, this Court is bound by this finding as
well. 28 U.S.C. § 2254(e)(1) (“a determination of
a factual issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing
evidence.”). Therefore, Sublett's argument on this
issue misses the mark.
Sublett argues that his counsel was ineffective for failing
to object to the use of the stun device. Even if this failure
fell below a reasonable standard of representation, which
Sublett has failed to establish, Sublett has failed to show
any prejudice. See Strickland v. Washington, 466
U.S. 668, 686 (1984) (the petitioner must show that the
deficient performance prejudiced his defense so as to
“deprive the defendant of a fair trial, a trial whose
result is unreasonable.”). Therefore, the Court having
considered the R&R, Sublett's objections, and the
remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED in part and
MODIFIED in part;
(2) Sublett's claim for ineffective assistance based on
his counsel's failure to object to the prosecutor's
closing argument is DISMISSED as unexhausted and procedurally
(3) Sublett's other claims are DENIED on ...