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Lawler v. Obenland

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

May 9, 2018

GREYCLOUD LAWLER, Petitioner,
v.
MICHAEL OBENLAND, Respondents.

         NOTED FOR: JUNE 1, 2018

          REPORT AND RECOMMENDATION

          J. Richard Creatura United States Magistrate Judge

         The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge J. Richard Creatura. The Court's authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner filed the petition pursuant to 28 U.S.C. § 2254.

         Petitioner alleges that his conviction was unlawful because a biased juror sat on his jury, he was not allowed to effectively cross-examine the state's key witness, and the prosecutor improperly commented on his demeanor in closing argument, thereby improperly swaying the jury. However, petitioner has not shown that state court unreasonably applied established federal law regarding juror bias, nor has he shown how the exclusion of marginally relevant evidence violated his right to confront a witness against him or how the single comment by the prosecutor was so substantial and injurious as to violate due process. Therefore, the Court recommends petitioner's habeas petition be denied.

         PETITIONER'S CLAIMS IN THIS HABEAS PETITION

         1. Petitioner's right to an impartial jury was violated when a biased juror was allowed to sit for his trial.

         2. Petitioner's right to confront the witnesses against him was violated when he was not allowed to present evidence of his victim's drug use.

         3. The prosecutor committed misconduct when he referenced petitioner's demeanor in his closing argument

         BASIS FOR CUSTODY AND FACTS

         Petitioner was convicted of second degree rape, second degree kidnapping, second degree assault, felony harassment, possession of a controlled substance, and interference with reporting domestic violence. He was sentenced to 283 months to life imprisonment and is currently incarcerated in the Monroe Correctional Complex.

         The Washington State Court of Appeals stated the facts of petitioner's case as follows:

Motel Incident Lawler and MDJ started dating in March 2013. On February 14, 2014, they checked into a motel in Hazel Dell. After dinner they had an argument. The argument escalated, and Lawler became violent when MDJ said she wanted to leave. Lawler covered MDJ's mouth as she tried to scream and eventually caused her to lose consciousness. When MDJ regained consciousness, Lawler strangled her again until she passed out.
The violence ultimately subsided, and Lawler and MDJ slept next to one another. Lawler slept with a knife at his side. In the middle of the night, MDJ woke up to use the bathroom. Lawler, upset by the thought of MDJ leaving the motel room, took the bedding from the bed and his knife and slept in front of the door so MDJ could not leave. Lawler threatened MDJ, telling her that she was not going home and that she was not going to see her children again.
The next morning, MDJ told Lawler that she was upset about the night before and that she did not want to leave with him. Provoked by MDJ's comments, Lawler dragged her off the bed and into the bathroom, and threatened to drown her in the toilet. When Lawler and MDJ were preparing to leave the motel, Lawler told MDJ that he had come to the room to have sexual intercourse and that they were not leaving until that happened. Lawler then forced MDJ to have intercourse. Out of fear, MDJ did not fight Lawler, although she made clear to Lawler that she did not want to have intercourse.
Eventually MDJ was able to get out of the room and down to the front desk, where she told the motel clerk that she had been assaulted and called 911. Lawler left the motel on foot before the police arrived.
Police and medical personnel arrived at the motel and noticed bruising and scrapes on MDJ's face and bruising on her arms that resembled fingerprints. The paramedics transported MDJ to the hospital, and MDJ received treatment from a sexual assault nurse examiner. MDJ reported that she had been held against her will and repeatedly assaulted and raped and that she was in pain and felt nauseous. Based on MDJ's physical condition and her complaints, the treating doctor prescribed MDJ pain and anti-nausea medications.
Police later arrested Lawler and found that he was carrying an eight-inch knife in a leather sheath, a 12-inch blade with no handle, and a balloon full of a powdery substance that later was identified as methamphetamine. The State charged Lawler with first degree rape, second degree kidnapping, second degree assault, felony harassment, possession of a controlled substance, and interference with reporting domestic violence. The State alleged that the rape, kidnapping and harassment were committed while Lawler was armed with a deadly weapon.

Dkt. 13, Ex. 11 at 1-3; State v. Lawler, 194 Wash.App. 275, 278-79 (2016) (citations to the record omitted).

         During voir dire, the prosecutor asked the venire whether any juror or close family or friends had either been victims or perpetrators of sexual assault. Dkt. 13, Ex. 3 at 18-38. Of the 35 member jury venire, 14 individuals stated they had personal experience with sexual assault or had a friend or family member with that experience. Id. Juror 23 was among these 14 potential jurors. Of the 14 jurors who acknowledged their connection to sexual assault, three stated they could remain impartial, and two stated they could not. Id. at 18-38. The remaining nine jurors were uncertain about their ability to remain impartial, stating variously that they would try to remain objective but were unsure about whether their past experiences would impede that ability. Id. Juror 23 was among this group of potential jurors.

         Indeed, the trial court noted that “we have quite a few jurors who had problems with this particular case, ” discussing both the jurors who had experienced sexual assault as well as other bias and logistics issues. Id. at 53-54. The prosecutor also noted that there were numerous jurors who were ambivalent about whether they could remain impartial and stated it was difficult to tell who was actually having issues remaining impartial, and who was using false ambivalence as an excuse to avoid jury duty. Id. at 59. In any event, defense counsel did not challenge Juror 23 for cause or remove him with a preemptory challenge.

         On direct appeal, petitioner asserted the alleged bias of Juror 23 and the Court of Appeals addressed the issue as follows:

Jury Selection
During the questioning of prospective jurors, the prosecutor asked if any of the potential jurors had a family member or friend involved in a situation of sexual assault or physical violence. Juror 23 indicated that his mother had been removed from her biological father when she was a child, that his older half-sister had been raped by her stepfather, and that his niece who was living with him had been physically and mentally abused by her previous boyfriend.
The prosecutor asked whether these experiences would make it difficult for him to be fair and impartial, and juror 23 responded, “I don't see how I could be objective with all that past experience.” When the prosecutor asked juror 23 if he could set his personal experiences aside and follow the trial court's instruction, he replied, “Honestly, I think that would be a pain in the neck, you know. I don't think I would be able to do that with all these experiences.” Neither party nor the trial court followed up on juror 23's answers.
As voir dire progressed, defense counsel questioned several jurors regarding their previously expressed concerns and apprehensions, but did not further question juror 23. When defense counsel asked the potential jurors who would be uncomfortable serving on the jury, juror 23 raised his number. Neither the parties nor the trial court followed up on this response.
The trial court was actively involved in discussions with counsel about what jurors should be dismissed for cause. The trial court noted that “[w]e had quite a number of people who had concerns that they wouldn't be able to be fair due to issues related to the case.” The trial court suggested that two jurors be dismissed, and neither party objected. Lawler challenged three other jurors for cause. However, the trial court did not mention juror 23 and Lawler did not challenge juror 23 for cause. Lawler then exercised five of his six preemptory challenges, none of which were for juror 23. And Lawler passed on the exercise of his final peremptory challenge. Juror 23 was seated on the jury.
Verdict
The jury found Lawler guilty of the lesser offense of second degree rape, second degree kidnapping, second degree assault, harassment, possession of a controlled substance, and interference with reporting domestic violence. The jury also found by special verdicts that Lawler committed the rape, kidnapping and harassment while he was armed with a deadly weapon.

Dkt. 13, Ex. 11 at 3-4; Lawler, 194 Wash.App. at 279-80 (citations to the record omitted).

         PROCEDURAL HISTORY

         Petitioner appealed his conviction, raising the three grounds for relief he raises in this habeas petition. Dkt. 13, Ex. 8. The Court of Appeals denied his appeal in an opinion that was published in part. Id. Ex. 11. Petitioner filed a petition for review with the Washington State Supreme Court, again alleging the three grounds for relief he raises in this habeas petition. Id., Ex. 12. That court denied review and petitioner did not request that that court modify the ruling. Id., Ex. 13. This timely habeas petition followed.

         STANDARD ...


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