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Diltz v. Boe

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

June 25, 2019

KEVIN D. DILTZ, Petitioner,
v.
JERI BOE, Respondent.

          ORDER

          JOHN C. COUGHENOUR UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Petitioner's objections (Dkt. No. 29) to Magistrate Judge James P. Donohue's report and recommendation (“R&R”) (Dkt. No. 23). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby OVERRULES Petitioner's objections, ADOPTS Judge Donohue's R&R, and DENIES Petitioner's habeas petition for the reasons explained herein.

         I. BACKGROUND

         The facts summarized by the Washington Court of Appeals and reiterated by Judge Donohue are as follows. On April 29, 2013, Officer Jeffrey Norris pulled over a black pickup truck, driven by Petitioner, on the on-ramp to southbound Interstate 5 (“I-5”). (Dkt. No. 23 at 2.) As Officer Norris approached the truck, Petitioner began driving southbound on I-5. (Id.) Officer Norris returned to his patrol car and began following Petitioner. (Id.) After engaging in a highspeed chase on State Route 529, Petitioner exited in Everett; his truck's driveline fell off, and he crashed into a parked car. (Id.) Petitioner began running through a neighborhood, with Officer Norris in pursuit on foot. (Id.) Petitioner fired a gun at Officer Norris, and then jumped over a fence. (Id.) Officer Norris was not hit by the bullets, and he called for backup. (Id.) Other police arrived and eventually arrested Petitioner. (Id.) Upon an initial search of the area, police found Petitioner's jacket, gloves, phone, and four shell casings, but no firearm. (Id.) On May 17, 2013, Petitioner was charged in Snohomish County Superior Court with aggravated first degree assault against a police officer while armed with a firearm, and attempting to elude police while threatening others with physical injury or harm. (Id. at 3.)

         After listening to recorded calls made by Petitioner from jail, Detective Steve Brenneman returned to the scene and found a Ruger P89 pistol buried under mulch in the backyard where Petitioner's jacket was found. (Id.) Forensic testing revealed that the shell casings recovered at the scene had been fired from the recovered gun. (Id.) On July 26, 2013, Petitioner was additionally charged with possession of a stolen firearm, possession of a stolen vehicle, and unlawful possession of a firearm in the second degree. (Id.)

         The jury found Petitioner not guilty of possession of a stolen firearm, and found him guilty of first degree assault, attempting to elude a pursuing police vehicle, possession of a stolen vehicle, and second degree unlawful possession of a firearm. (Id.) The jury returned special verdicts finding that Petitioner committed first degree assault against a law enforcement officer while armed with a firearm and threatened individuals other than Petitioner and Officer Norris with physical injury or harm. (Id.)

         Upon appeal, the Washington Court of Appeals affirmed the conviction, and the Supreme Court denied review. (Id. at 4.) Petitioner filed a personal restraint petition, which was denied by both state appellate courts. (Id.) Petitioner now brings a habeas petition alleging (1) prosecutorial misconduct, (2) ineffective assistance of trial counsel, (3) ineffective assistance of appellate counsel, and (4) cumulative error. (See Dkt. No. 5 at 3-10.) Judge Donohue's R&R recommends denying Petitioner's habeas petition without an evidentiary hearing and dismissing this action with prejudice. (Dkt. No. 23 at 22.) Petitioner has filed objections to the R&R. (Dkt. No. 29.)

         II. DISCUSSION

         A. Standards of Review

         The Court reviews objections to a magistrate judge's report and recommendation de novo. 28 U.S.C. § 636(b)(1). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         The Court shall not grant a habeas petition filed by a person in custody pursuant to a state court judgment, “unless the adjudication of the claim-(1) resulted in a decision . . . contrary to . . . clearly established Federal law . . . or (2) resulted in a decision that was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d). The Court may overturn a state court's decision only if its application of the law to the facts was “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003); see also Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). The Court presumes that the state court's factual findings are proper unless the Petitioner “rebuts the ‘presumption of correctness by clear and convincing evidence.'” See Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(e)(1)).

         B. Overlength Objections

         Respondent moves to strike Petitioner's objections as overlong. (Dkt. No. 30); W.D. Wash. Local Civ. R. 72. Whether to strike all or part of an overlength pleading is within the Court's discretion. See Swanson v. U.S. Forest Service, 87 F.3d 339, 345 (9th Cir. 1996). Respondent's request to strike Petitioner's overlength objections (Dkt. No. 30) is DENIED. Petitioner's motion for leave to file overlength objections (Dkt. No. 31) is DENIED as moot.

         C. ...


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