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Farzad v. Snohomish County Superior Court

United States District Court, W.D. Washington, Seattle

May 3, 2018

SAID FARZAD, Petitioner,
v.
SNOHOMISH COUNTY SUPERIOR COURT, Respondent.

          ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND GRANTING WRIT OF HABEAS CORPUS

          Marsha J. Pechman United States District Judge.

         THIS 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.

         Background

         The 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.)

         Discussion

         I. Legal Standard

         Under 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. § 636(b)(1).

         II. Respondents' Objections

         A. Double Jeopardy

         Respondents 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 at 2-5.)

         The 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. at 3.)

         After 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).

         The Court concludes that Petitioner's retrial on Count I violated Double Jeopardy.

         B. Dismissal of Mark Roe ...


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