United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
ALICE THEILER, UNITED STATES MAGISTRATE JUDGE
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.
FACTUAL AND PROCEDURAL HISTORY
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
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
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
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 ...