United States District Court, W.D. Washington, Seattle
KEVIN D. DILTZ, Petitioner,
JERI BOE, Respondent.
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
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
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.)
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
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.)
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.)
Standards of Review
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.
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)).
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.