United States District Court, W.D. Washington, Tacoma
Dated: June 1, 2018
REPORT AND RECOMMENDATION
W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE
District Court has referred this action to United States
Magistrate Judge David W. Christel. Petitioner Jesse Scott
Lake filed his federal Petition for a Writ of Habeas Corpus
(“Petition”), pursuant to 28 U.S.C. § 2254,
seeking relief from a state court conviction. Dkt. 1.
Petitioner has claimed four grounds for relief. However, one
ground is unexhausted, another is based on state, rather than
federal, law, and Petitioner has not pled constitutional
violations for the remaining two. Therefore, the Court
recommends Petitioner's Petition be denied on all
raises four grounds for relief:
1) The trial court violated his due process rights by
refusing to allow him to explain why he did not give police a
2) His due process rights were violated when the prosecutor
admitted a redacted version of his statement to police as
3) The prosecutor committed misconduct by arguing that
Petitioner's post-arrest silence was substantive evidence
of his guilt.
4) The trial court erred by ruling that two out-of-court
conversations were hearsay and inadmissible in violation of
Petitioner's right to a complete defense and right to
confront witnesses against him.
was convicted of one count of first degree child molestation
and two counts of second degree incest. He was sentenced to
89 months incarceration, followed by 24 months of community
custody. He is currently serving his community custody
Washington Court of Appeals summarized the facts of
petitioner's case on direct review:
[Petitioner] Lake is the biological father of SL and the
stepfather of AM. AM's mother, KL, began a relationship
and moved in with Lake in 1995. Shortly after KL moved in
with Lake, he began touching AM inappropriately. Lake engaged
in various acts of sexual contact with AM beginning when AM
was in first grade and continuing until AM was 18 years old.
When AM was in the tenth grade, Lake began giving her
massages that would include massaging her buttocks, breasts,
and vaginal area while she was naked. These massages would
take place nearly every day and would typically occur in
Lake's bedroom with AM lying on his bed and Lake kneeling
beside the bed. During some of these massages, Lake would
have AM face away from him, and she could hear him grab
something from out of his dresser and then feel him thrusting
into the bed. On one occasion, Lake went to the bathroom to
wash his hands and AM felt an object that she suspected was a
sex toy placed between Lake's mattress and box spring.
Sometime later, AM looked in Lake's dresser and found a
rubber vagina, a rubber mouth, and lubrication.
Lake's biological daughter, SL, had visitation with him
on the weekends. SL also lived full time with Lake for
approximately a year when she was in the fifth grade.
Starting around this time, Lake would watch SL while she was
in the shower and would follow her into her bedroom and watch
as she got dressed. SL saw Lake engage in this same behavior
with regard to AM. Lake would also rub both girls'
buttocks and breasts while they were wearing only a towel.
In October 2008, AM began secretly dating BH. About four
months into their relationship, BH became concerned that
something inappropriate was taking place at AM's home
based on AM's reaction when he tried to be intimate with
her. BH discussed his concerns with SL, who told him that
Lake was sexually abusing her and AM. The following day, BH
told his father about the allegations and then reported the
allegations to the police. The State charged Lake by third
amended information with two counts of first degree child
molestation and two counts of second degree incest for his
conduct against AM and SL.
. . .
At trial, SL testified about Lake's stated reasons for
touching her and AM as follows:
[SL]: [Lake] read in a book that girls should be touched by
their dad otherwise they're going to grow up and be
promiscuous and feel unloved and stuff like that just because
of our neglect so we need to be touched.
[State]: Okay. And did he ever tell you that if he didn't
do that, that children would grow up to be whores?
[SL]: Yes, I was trying to put it nicely but yes, we would be
sluts and whores.
[State]: We need to know exactly what he said so you're
not going to embarrass anyone here, okay?
[State]: So why don't you tell me what he said?
[SL]: Basically we would be sluts and whores if we were not
touched by our father, that the neglect would be-we would try
to find it elsewhere and the only boyfriend we needed,