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Douglas v. Gilbert

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

May 14, 2018

JAMES PHILIP DOUGLAS, Petitioner,
v.
MARGARET GILBERT, Respondent.

          Noting Date: June 1, 2018

          REPORT AND RECOMMENDATION

          DAVID W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE

         The 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.

         BACKGROUND

         I. Factual Background

         Petitioner 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.

         The Court of Appeals of the State of Washington summarized the relevant facts related to Petitioner's Ground 4 as follows:

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 se.
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.

         II. Procedural Background

         Petitioner challenged his Pierce County Superior Court convictions and sentence on direct appeal.[1] 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.

         Petitioner 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, Exhibit 19.

         Petitioner 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.

         Petitioner 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, 35.

         Petitioner 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.

         Petitioner 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.

         On 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.

         Respondent 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.

         The 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 ...


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