United States District Court, W.D. Washington, Tacoma
Date: 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 James Philip
Douglas filed his federal habeas Amended Petition, pursuant
to 28 U.S.C. § 2254, seeking relief from state court
convictions and sentence. See Dkt. 1, 23. The Court
concludes the Honorable Benjamin H. Settle, the District
Judge assigned to this case, previously dismissed Grounds 1,
2, and 3 of the Amended Petition. See Dkt. 18. The
Court also finds the state court's adjudication of Ground
4 was not contrary to, or an unreasonable application of,
clearly established federal law. Therefore, the undersigned
recommends the Amended Petition be denied and a certificate
of appealability be denied.
was convicted of first degree arson, residential burglary,
violation of a protective order, second degree assault, and
bail jumping in the Pierce County Superior Court. See
State v. Douglas, 146 Wash.App. 1046 (2008); Dkt. 11,
Exhibit 3. The entire factual background is contained in the
Report and Recommendation filed on August 9, 2017. Dkt. 16.
Thus, the Court will only provide the facts relevant to
Ground 4 in this Report and Recommendation.
Court of Appeals of the State of Washington summarized the
relevant facts related to Petitioner's Ground 4 as
On May 26, 2010, Douglas again requested to proceed pro se.
Although the judge expressed concerns about Douglas's
ability to represent himself, she conducted a colloquy and
granted Douglas's request to be allowed to proceed pro
On June 20, 2010, the trial commenced. Because the State
alleged that Douglas's offenses were part of an ongoing
pattern of abuse, the trial court bifurcated the trial under
RCW 9.94A.537(4) to avoid unduly prejudicing the jury. On
August 17, 2010, the jury found Douglas guilty of first
degree arson, residential burglary, and felony violation of a
protection order. After the jury returned the verdicts,
Douglas requested that the trial court appoint counsel for
the aggravating factor phase of trial. The State objected,
arguing that reappointing counsel would likely require a
continuance and that the jury had already been on the case
for two months. The State also expressed concern that Douglas
would not work with counsel, resulting in another motion to
proceed pro se. After an extensive colloquy with Douglas, the
trial court determined that Douglas was not willing to give
control of the case to an attorney and refused to reappoint
counsel. At that point, Douglas refused to further
participate in the case and voluntarily absented himself from
the aggravating factor phase of his trial.
On August 19, 2010, the jury found that the arson and
residential burglary were part of an ongoing pattern of abuse
against [three victims]. The jury also found that the arson
was committed with deliberate cruelty.
State v. Douglas, 173 Wash.App. 849, 853-54, 295
P.3d 812 (2013) (internal and footnote omitted); Dkt. 11,
Exhibit 4, pp. 5-6.
challenged his Pierce County Superior Court convictions and
sentence on direct appeal. Dkt. 11, Exhibits 5, 6. The Court of
Appeals of the State of Washington reversed the arson,
burglary, and violation of a protective order convictions,
and affirmed the separate assault and bail jumping
convictions. Dkt. 11, Exhibit 3. Petitioner did not seek
review by the Washington State Supreme Court and the mandate
was issued on October 14, 2008. Dkt. 11, Exhibits 8-10.
was resentenced on the assault and bail jumping convictions
in 2009 because the reversal of the arson and burglary
convictions impacted the sentence calculation. Dkt. 11,
Exhibit 2. Petitioner was sentenced to twelve months on the
assault and bail jumping convictions. Id. Petitioner
appealed the new sentence to the Court of Appeals of the
State of Washington, which affirmed the sentence. Dkt. 11,
Exhibits 11-14. On February 8, 2012, the Washington State
Supreme Court denied Petitioner's petition for review.
Dkt. 11, Exhibits 17, 18. The Court of Appeals of the State
of Washington issued its mandate on March 5, 2012. Dkt. 11,
received a new trial on the counts of arson, burglary, and
violation of a protective order. See Dkt. 11,
Exhibit 1. He was again convicted on these three counts.
Id. Petitioner appealed the convictions and sentence
to the Court of Appeals of the State of Washington. Dkt. 11,
Exhibit 20-23. The Court of Appeals of the State of
Washington affirmed Petitioner's convictions and
sentence, and Petitioner sought review with the Washington
State Supreme Court. Dkt. 11, Exhibits 4, 24. The Washington
State Supreme Court denied review on September 4, 2013, and
the mandate was issued on September 12, 2013. Dkt. 11,
Exhibits 25, 26.
filed a personal restraint petition (“PRP”)
seeking state post-conviction relief from the assault and
bail jumping convictions and sentence on June 3, 2012. Dkt.
11, Exhibit 27. Petitioner's PRP was dismissed by the
Court of Appeals of the State of Washington. Dkt. 11, Exhibit
32. Petitioner filed a motion for reconsideration, which the
Washington State Supreme Court treated as a motion for
discretionary review. Dkt. 11, Exhibit 33, 34. The Washington
State Supreme Court denied review, and a certificate of
finality was issued on April 11, 2014. Dkt. 11, Exhibits 34,
also filed a second PRP challenging his arson, burglary, and
violation of a protective order convictions and sentence.
Dkt. 11, Exhibit 36. The Court of Appeals of the State of
Washington dismissed the second PRP. Dkt. 11, Exhibit 39.
Petitioner filed a motion for reconsideration, which was
treated as a motion for discretionary review. Dkt. 11,
Exhibit 40. The Washington State Supreme Court denied review
on April 24, 2015. Dkt. 11, Exhibit 41. The Court of Appeals
of the State of Washington issued a certificate of finality
on June 29, 2015. Dkt. 11, Exhibit 42.
also filed several post-conviction motions in the state
superior court, which were treated as a PRP and dismissed.
See Dkt. 11, Exhibits 43, 49, 51-54. At the time
Respondent filed her first Answer, Plaintiff has two
additional PRPs pending with the Court of Appeals for the
State of Washington. See Dkt. 10; Dkt. 11, Exhibit
55-57. As Respondent has conceded the grounds raised in the
Amended Petition are exhausted, the Court will not further
discuss these two PRPs. See Dkt. 10, 24.
December 29, 2016, Petitioner filed his Petition raising the
following three grounds: (1) under the Ex Post Facto Clause,
the state does not have authority to impose an exceptional
sentence if one was not imposed at the prior trial or
sentencing; (2) the original cases that were joined for trial
were both prejudiced by ineffective assistance of counsel;
and (3) upon return for retrial, a speedy trial was asked for
but was not granted violating the speedy trial rules. Dkt. 7.
filed the Answer on February 27, 2017, maintaining the state
court's adjudication of Grounds 1 through 3 was not
contrary to, or an unreasonable application of, clearly
established federal law. Dkt. 10, 15. On August 9, 2017, the
undersigned entered a Report and Recommendation
(“R&R”) recommending Petitioner's
Petition be denied. Dkt. 16. After Petitioner filed
Objections, Judge Settle adopted the R&R in part and
“Petitioner's claims for a speedy trial violation,
an ex post facto violation, and ineffective assistance of
counsel [were] dismissed.” Dkt. 18, p. 3 (emphasis
omitted). Judge Settle, however, remanded this action to the
undersigned “for further proceedings to determine
whether the petition may be amended to add the claim raised
in Petitioner's reply.” Id.
Court re-named Petitioner's Reply to “Motion to
Amend the Petition” and granted the Motion. Dkt. 19,
22. On December 14, 2017, Petitioner's Amended ...