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Bowman v. Haynes

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

May 3, 2018

EARL IRA BOWMAN, Petitioner,
v.
RON HAYNES, Respondent.

          REPORT AND RECOMMENDATION

          MARY ALICE THEILER, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Petitioner, a state prisoner who has been released on community custody, seeks relief under 28 U.S.C. § 2254 from a 2016 King County judgment and sentence. Respondent has filed an answer to petitioner's habeas petition and submitted relevant portions of the state court record. Petitioner did not file a response. Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends that petitioner's habeas petition be DENIED, a certificate of appealability be DENIED, and this action be DISMISSED with prejudice.

         II. FACTUAL AND PROCEDURAL HISTORY

         The Washington State Court of Appeals (“Court of Appeals”), on direct appeal, found that petitioner's counsel accurately set forth the material facts in his brief. (Dkt. 15, Ex. 3 at 2.) Counsel's factual summary is as follows:

On October 6, 2015, the King County prosecutor charged appellant Earl Bowman with second degree robbery and second degree assault. Both charges included the allegation that the offense was a crime of domestic violence.
Bowman was arraigned on October 20, 2015. Bowman subsequently entered time for trial waivers, and numerous orders were entered continuing the case scheduling hearing.
On May 20, 2016, the court granted the state's motion to amend the information to charge second degree robbery and third degree assault, with the robbery charge to be dismissed at sentencing. That same day Bowman pled guilty to second degree assault.
The state asserted Bowman's offender score was 9 points, and the standard range 51-68 months, with 60 months as the statutory maximum. The state would recommend a 60-month sentence, with the defense free to recommend a prison-based Drug Offender Sentencing Alternative (DOSA).
Bowman entered several waivers of speedy sentencing, to July 29, 2016. On July 29, 2016, the court held a hearing and granted a motion to allow new defense counsel. Questions about Bowman's offender score had been raised.
At a hearing on November 23, 2016, Bowman's new counsel noted a potential issue regarding Bowman's offender score, regarding whether Bowman was still on community custody when the current offense was committed. Although the prosecutor had shown counsel several printouts from Department of Corrections (DOC) records, Bowman's new counsel requested a continuance so he could review additional records that Bowman had requested from the DOC. Counsel thought the issue “might be close.” After new counsel appeared, Bowman waived speedy sentencing to January 31, 2017. Bowman personally made it clear that the correct offender score was very important to him. The court granted Bowman one last continuance of sentencing.
On December 21, 2016, Bowman withdrew his initial plea based on offender score errors. The order states withdrawal was based on the ineffective assistance of Bowman's first attorney, and on the agreement of the parties.
Shortly after withdrawing the first plea, Bowman again pled guilty to second degree assault as charged in the amended information. His offender score was now 7 points, based on 6 prior felonies, with one point added because the offense was committed while Bowman was still on community custody.
Bowman's plea form and plea agreement stated he agreed with the offender score calculation. The prosecutor's colloquy with Bowman reaffirmed this agreement. Bowman also agreed to recommend a 43-month sentence at the top of the 33-43 month range, and agreed the sentence required 12 months of community custody and $600 in mandatory legal financial obligations (LFOs).
At the plea hearing, the prosecutor asked Bowman customary questions regarding the waiver of his trial rights and the voluntariness of his guilty plea. In the colloquy and his written plea statement, Bowman acknowledged and waived his rights, admitted a factual basis for the plea, and established that the offense was committed September 26, 2015. At the conclusion of this colloquy, Bowman pled guilty. The court found the plea to be knowing, intelligent, and voluntary.
Sentencing immediately followed the plea's acceptance. The prosecutor made the agreed 43-month recommendation.
Defense counsel briefly spoke and noted his meetings with Bowman and his preparation before sentencing. Counsel said Bowman “is a very smart and kind person.” Bowman was “very concerned about other people, ” including his ailing mother and others in custody with him.
Bowman also spoke. He apologized to his girlfriend, his mother, and the court. He noted he was out “drinking and drugging” because “I wasn't on my meds.” He mentioned a problem with alcohol and drugs, and homelessness. He asked for help to get structure and housing, and for his mental health issues. He asked for leniency and understanding of how hard it is to be homeless. He mentioned a mental health report, and a nephew who had recently been killed. Bowman also submitted a law review article discussing the substantial barriers people face reentering society following a prison sentence.
The court then accepted the agreed recommendation and sentenced Bowman to 43 months. The court ordered credit for time served as calculated by the King County Jail.
The court noted that Bowman would need to seek help on release, through AA, and to seek out Sound Mental Health to get his medications straightened out. The court imposed mandatory LFOs, including a $500 victim penalty assessment and a $100 DNA collection fee. The court noted that restitution would be set at a ...

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