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Payne v. Holbrook

United States District Court, E.D. Washington

April 10, 2019




         BEFORE 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 DENIED.


         Petitioner 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. Payne's presence.
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 appealed.

See State v. Payne, 189 Wash.App. 1014, *1-2 (2015); ECF No. 7-1, at 31-34.

         The 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 11.

         On 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.

         Petitioner 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 confession;
(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 admitted; and
(4) a lifetime of incarceration without the possibility of early release for child molestation in the first degree is cruel and unusual punishment in ...

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