United States District Court, E.D. Washington
ORDER DENYING WRIT OF HABEAS CORPUS
O. RICE CHIEF UNITED STATES DISTRICT JUDGE
THE COURT is Richard Michael Payne's Petition for Writ of
Habeas Corpus (ECF No. 1). Respondent Donald Holbrook has
answered the petition and filed relevant portions of the
state court record. ECF Nos. 6, 7. Petitioner is represented
by Stephen T. Graham and Respondent is represented by John J.
Samson, Assistant Attorney General. The Court has reviewed
the entire record, the parties' completed briefing, and
is fully informed. For the reasons discussed below, the
Petition for Writ of Habeas Corpus (ECF No. 1) is
is in custody at the Washington State Penitentiary at Walla
Walla serving a sentence imposed by the Spokane County
Superior Court for two counts of first degree child
molestation and one count of felony indecent exposure. ECF
No. 7-1 at 2, 14. The underlying facts and procedural
history, summarized by the Washington Court of Appeals on
direct appeal, are as follows:
Around 8:00 p.m. on June 21, 2012, officers responded to a
call at Northtown Mall in Spokane regarding a male who had
exposed himself and touched A.R.H., a five year-old girl.
Officers were told the incident occurred at Bumpers arcade.
Bumpers' video surveillance captured the incident on
camera. A Bumpers employee identified Mr. Payne as the male
in the surveillance video.
Approximately two hours earlier that evening, A.R.H.,
accompanied by her 19-year-old brother and his girlfriend,
B.C., and B.C.'s 11-year-old sister K.C., went to Bumpers
while A.R.H.'s mom, Heather Holland, and K.C.'s
grandmother went shopping. A.R.H. and K.C. left their older
siblings to play a game. According to K.C.'s testimony at
trial, Mr. Payne came up to the girls and said he was going
to watch them play. K.C., believing this behavior was
“kind of stalkerish, ” told A.R.H. they should
“get away.” 5 Report of Proceedings (5 RP) at
838. The girls went to a skateboarding game; K.C. was on the
game while A.R.H. stood next to her. K.C. saw Mr. Payne
standing behind A.R.H., rubbing A.R.H.'s leg, pulling up
her skirt, and touching her buttocks while his penis was out.
K.C. was uncomfortable; she took A.R.H. and walked away. K.C.
testified while Mr. Payne touched A.R.H., A.R.H. “[got]
really pale like she was freaking out” and was
speechless. 5 RP at 841. K.C. and A.R.H. found B.C. and told
her what happened. A.R.H.'s brother noted A.R.H. was
“blank” and K.C. was shocked and scared. B.C.
noted K.C. was crying, shaking, and pale. A.R.H.'s
brother failed to find Mr. Payne before reporting the
incident to mall security.
Ms. Holland was notified of the incident. When she got to
Bumpers, she noticed K.C. was “stressed and not
herself.” 5 RP at 708. Ms. Holland watched the
surveillance video. When she first watched the video, she
thought she saw Mr. Payne pull his penis out of his pants;
this caused her to scream and cry. Upon reviewing the video,
she said she did not see Mr. Payne pull his penis out but he
did fondle himself. She maintained Mr. Payne had his hand on
A.R.H.'s backside. A.R.H.'s brother, after watching
the video, testified he saw Mr. Payne pull his penis out of
his pants. K.C. also watched the video in the presence of Ms.
Holland, A.R.H.'s brother, B.C., and her grandmother; she
noted everybody was “disgusted and crying.” 5 RP
at 849. She stated she did not see Mr. Payne's penis on
the video because he was behind a big pillar. Ms. Holland,
A.R.H.'s brother, B.C., and K.C. testified at trial.
Detective Jerry Hensley investigated the case. After
identifying the man in the surveillance video as Mr. Payne,
he and Detective Paul Lebsock went to Mr. Payne's
address. The detectives were dressed in plain clothes, but
their guns were visible. Upon arrival, Detective Hensley
walked directly to the front door and rang the doorbell;
there was no response. Detective Lebsock, thinking somebody
might be working in the backyard given the nice weather, went
to the driveway and noted the six foot vinyl fence
surrounding the backyard. He could see over the fence from
the driveway and saw a man; Detective Lebsock walked along
the side of the fence, verbally identified himself, and asked
the man to come talk to them. Mr. Payne readily came over,
exited the gate, and talked with the detectives while
standing in his driveway.
After identifying himself, Detective Hensley read Mr. Payne
his constitutional rights; Mr. Payne waived his rights and
agreed to talk. Mr. Payne was calm, cooperative, did not
appear to be under the influence of anything, and gave
appropriate and responsive answers. Payne admitted to being
at the mall on the day in question. After being told there
was a video of the incident, Mr. Payne repeatedly said,
“‘I should not have been there.'” 5 RP
at 763. After being advised witnesses said he removed his
penis from his shorts, Mr. Payne admitted to touching a girl
on the thigh and buttocks while his penis was out. He claimed
it was just a random act.
While talking with the detectives, Mr. Payne's girlfriend
arrived. The detectives introduced themselves and told her
she was welcome to stay. Mr. Payne then looked at her and
said, “‘I touched a girl.'” 5 RP at
767. In response to a direct question, Mr. Payne admitted he
did this for sexual gratification. In the CrR 3.5 hearing,
Mr. Payne argued these statements were the product of
coercion and were obtained via an illegal search and seizure.
The trial court concluded Mr. Payne's statements to the
detectives were freely and voluntarily made, legally
obtained, and could be introduced at trial. At trial, Mr.
Payne denied touching anyone or exposing his penis.
There were numerous other pre-trial proceedings. The trial
court admitted evidence of Mr. Payne's 2001 attempted
first degree child molestation conviction as a charged
element elevating count III, indecent exposure, to a felony.
The court admitted the prior conviction under ER 404(b) to
show proof of a common scheme or plan, motive or intent, and
to refute a claim of accident or mistake. At trial, the
victim of the 2001 conviction and her mother testified.
Defense counsel was found in contempt of court before trial
concerning his failure to appear at a hearing, a subject of a
separate appeal; the show cause hearing was held without Mr.
Mr. Payne was charged and convicted of two counts of first
degree child molestation and one count of felony indecent
exposure. He was sentenced as a persistent sex offender to
life in prison without the possibility of release. He
See State v. Payne, 189 Wash.App. 1014, *1-2 (2015);
ECF No. 7-1, at 31-34.
Washington Court of Appeals affirmed Petitioner's
sentence on July 28, 2015. See id. Petitioner then
moved for discretionary review in the Washington Supreme
Court. ECF No. 7-2 at Exhibit 9. On March 2, 2016, the
Washington Supreme Court denied review. Id. at
Exhibit 10. On May 3, 2016, the Washington Court of Appeals
issued its mandate to the Superior Court, certifying that the
court's July 28, 2015, opinion became the decision
terminating review on May 2, 2016. Id. at Exhibit
March 15, 2017, Petitioner filed a Personal Restraint
Petition (“PRP”) with the Washington Court of
Appeals. See id. at Exhibit 12. The Washington Court
of Appeals dismissed the PRP on January 29, 2018. See
id. at Exhibit 14. On March 8, 2018, Petitioner moved
the Washington Supreme Court for discretionary review,
see Id. at Exhibit 15, which was denied on September
14, 2018, see Id. at Exhibit 17. The Washington
Court of Appeals issued a Certificate of Finality on
September 17, 2018, certifying that the decision of the Court
of Appeals dismissing Petitioner's PRP became final on
September 14, 2018. Id.
filed this federal 28 U.S.C. § 2254 habeas petition on
August 14, 2018, alleging four grounds for relief:
(1) the trial court erred when it admitted Petitioner's
(2) trial counsel was ineffective by failing to interview the
victim of Count I and II;
(3) Petitioner was denied the assurances of fairness under
the Fourteenth Amendment when improper 404(b) evidence was
(4) a lifetime of incarceration without the possibility of
early release for child molestation in the first degree is
cruel and unusual punishment in ...