United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING
CASE CAPTION; AND GRANTING WRIT OF HABEAS CORPUS
J. Pechman United States District Judge.
MATTER comes before the Court on Respondents' Objections
(Dkt. No. 28) to the Report and Recommendation of the
Honorable Brian A. Tsuchida, United States Magistrate Judge.
(Dkt. No. 27.) Having reviewed the Report and Recommendation,
the Objections, the Response (Dkt. No. 30) and all related
papers, the Court ADOPTS the Report and Recommendations and
GRANTS Petitioner's 28 U.S.C. § 2241 Petition.
relevant facts and procedural background are set forth in
detail in the Report and Recommendation. (Dkt. No. 27.)
Respondents raise three objections to the Report and
Recommendation: (1) Respondents object to Magistrate Judge
Tsuchida's conclusion that the state court proceedings
violated Petitioner Said Farzad's Double Jeopardy rights,
and object to the recommendation that Petitioner's habeas
corpus petition be granted; (2) Respondents object to the
inclusion of Respondents Mark Roe and Robert Ferguson in the
caption of the Proposed Order and Proposed Judgment; and (3)
Respondents contend that Petitioner is required to exhaust
state remedies. (Dkt. No. 28 at 1-2.)
Federal Rule of Civil Procedure 72, the Court must resolve de
novo any part of the Magistrate Judge's Report and
Recommendation that has been properly objected to and may
accept, reject, or modify the recommended disposition.
Fed.R.Civ.P. 72(b)(3); see also 28 U.S.C. §
object to the Report and Recommendation's finding that
Petitioner's retrial, after the jury was unable to reach
a verdict on Count I, violated Double Jeopardy. (Dkt. No. 28
Report and Recommendation indicate that, while the jury
expressly declared that they were deadlocked as to Count II,
they did not do so as to Count I. (Dkt. No. 27 at 7-8.) The
trial court did not make further inquiry or finding as to
whether the jury was deadlocked on Count I. (Id. at
8.) Respondents contend that when Petitioner rejected the
trial court's offer to do so, he “acquiesced”
in the jury's discharge and provided “implied
consent” such that retrial was permitted. (Id.
review of the Report and Recommendation and all related
papers, the Court concludes that Petitioner's retrial
violated Double Jeopardy. In Brazzel v. Washington,
the Ninth Circuit held that “[a]n implied acquittal
occurs when a jury returns a guilty verdict as to a lesser
included or lesser alternate charge, but remains silent as to
other charges, without announcing any signs of hopeless
deadlock.” 491 F.3d 976, 981 (9th Cir. 2007). That is
precisely what occurred here. Petitioner's failure to
affirmatively request that the trial court question the
jurors as to whether they were genuinely deadlocked on Count
I does not constitute “acquiescence” or
“implied consent” allowing for retrial. Further,
contrary to Respondents' suggestion, Petitioner's
agreement to the use of the “failure to agree”
instruction does not constitute “waiver” of the
implied acquittal as this is the proper instruction in
Washington. Daniels v. Pastor, No. C09-5711BHS, 2010
WL 56041, at *4 (W.D. Wash. Jan. 6, 2010) (citation omitted).
Court concludes that Petitioner's retrial on Count I
violated Double Jeopardy.
Dismissal of Mark Roe ...