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Farrell v. Flynn

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

July 2, 2019

DALE GORDON FARRELL, Petitioner,
v.
DAVID FLYNN, Respondent.

          REPORT AND RECOMMENDATION

          Theresa L. Fricke United States Magistrate Judge.

         This matter comes before the Court on petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his 2015 conviction and sentence for two counts of Assault in the Second Degree, two counts of Felony Harassment, and one count of Obstructing a Law Enforcement Officer. Dkt. 4. Petitioner presents two grounds for habeas relief: (1) Ineffective Assistance of Counsel; and (2) Violation of Due Process under the Fourteenth Amendment. For the reasons set forth below, the undersigned recommends that the petition be DISMISSED. Also for the reasons set forth below, the undersigned recommends that issuance of the certificate of appealability (COA) be DENIED.

         BACKGROUND

         I. Statement of Facts

         The Washington Court of Appeals summarized the facts relevant to this matter as follows:

On October 3, 2014, Dori LeBouef noticed her next-door neighbor, Dale Gordon Farrell, erratically run to the property line separating her property from Farrell's. LeBoeuf had obtained a no-contact order against Farrell in May. LeBoeuf observed Farrell waiving a knife with “a good size blade on it” and yelling, “Dori, you f*cking c*nt. I'm going to kill you. Yes, you. You f*cking c*nt, I'm going to kill you.” Farrell appeared agitated, and his actions seemed unpredictable. LeBoeuf feared for her life and called 911.
While LeBouef was on the phone with the 911 operator, her other next-door neighbor, Lisa Hardy, arrived home. Hardy had also obtained a no-contact order against Farrell a few months prior. While Hardy walked across her yard to her mailbox, Farrell looked at her and yelled, “Hey, you mother f*cking c*nt, dyke b*tch, whore, I will kill all of you motherf*ckers.” While Farrell yelled at Hardy, he jabbed a knife approximately six inches in length in the air. Hardy was afraid Farrell would kill her and her neighbors, and she called 911. Farrell never left his property and he maintained a distance of at least 25 feet from both Hardy and LeBoeuf.
Officers responded and observed Farrell with a standard steak knife. Soon after, Farrell was placed under arrest. The State charged Farrell with two counts of second degree assault, with special allegations that Farrell was armed with a deadly weapon, two counts of violation of a protection order, and three additional charges.
Before trial, the State filed a motion in limine to admit Hardy's and LeBoeuf's no-contact orders into evidence under ER 404(b) because the orders were directly relevant to Farrell's violation of a protection order charges. Farrell did not object. At trial, witnesses testified to the above facts, and the no-contact orders were admitted into evidence. Farrell also testified in his defense.
Prior to closing arguments, the trial court granted Farrell and the State's joint motion to dismiss the violation of a protection order charges. Then, Farrell proposed a limiting instruction directing the jury to “disregard any and all evidence regarding any protection orders issued with respect to Lisa Hardy or Dori Leboeuf. [sic.]” The State agreed that a limiting instruction was appropriate but argued that the no-contact orders were admissible under ER 404(b) to prove Farrell's motive in the second-degree assaults and to show Hardy's and LeBoeuf's reasonable apprehension of bodily injury.
The trial court determined that the no-contact orders were admissible under ER 404(b). The trial court stated that the no-contact orders were “probative, and the prejudice does not substantial outweigh the probative value of the admission of the protection orders themselves.” The trial court declined to give Farrell's proposed limiting instruction, but it provided the following limiting instruction:
Certain evidence has been admitted in this case consisting of two protection orders …. The charges alleging that Dale Farrell violated those have been dismissed …. You may only consider this evidence, if at all, for the limited purpose of motive and/or the alleged victims' state of mind, and for no other purpose.
The trial court also instructed the jury that “[a] person commits the crime of Assault in the Second Degree when he assaults another with a deadly weapon.” The court defined a “deadly weapon” as “any weapon, device, instrument, substance, or article, which under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.” The jury returned guilty verdicts for both counts of second degree assault. Farrell appeals.

Dkt. 10-1 at 96-99.

         II. State Court Procedural History

         Petitioner appealed his conviction and sentence alleging the following grounds for relief:

         1) The state failed to prove beyond a reasonable doubt that the steak knife was a deadly weapon; 2) The state failed to prove beyond a reasonable doubt assault in the second degree; 3) Petitioner was denied his right to a fair trial when the trial court erred by admitting ER 404 propensity evidence and failed to conduct an ER 403 analysis; and 4) Trial counsel was ineffective for failing to move for a mistrial. Dkt. 10-1 at 21-48. On August 5, 2016, petitioner, acting on his own behalf, submitted a statement of additional grounds for review. Dkt. 10-1 at 92-94.

         Petitioner's additional grounds for review included: alleged prosecutorial misconduct, an invalid search warrant, witness misconduct, and ineffective assistance of counsel.[1] On January 31, 2017, in an unpublished opinion, the Washington Court of Appeals affirmed Farrell's conviction. Dkt. 10-1 96-112. On March 31, 2017, the Washington Court of Appeal issued a mandate certifying the termination of the review of petitioner's appeal. Dkt. 10-1 at 114.

         On October 23, 2017 petitioner filed a collateral personal restraint petition with the Washington Court of Appeals challenging his conviction and sentence. Dkt. 10-1 at 116-140. Petitioner identified only one ground for relief, ineffective assistance of trial counsel. Dkt. 10-1 at 119. Petitioner alleged that trial counsel was ineffective because counsel: 1) failed to call a private investigator as a witness; 2) was unprepared for trial; and 3) failed to object to purportedly false and inadmissible evidence. Dkt. 10-1 at 119, 126-139. Further, without identifying them as independent grounds for review, petitioner argued that he was prejudiced by a one-year delay in his trial and that the prosecution had failed to meet their burden of proof during his trial. Dkt. 10-1 at 119-20, 133-139.

         On January 26, 2018, the State of Washington filed a brief in response to petitioner's personal restraint petition. Dkt. 10-1 at 142-148. On February 15, 2018 petitioner filed a motion for discretionary review to the Washington Court of Appeals. Dkt. 10-1 at 184-186. Petitioner's motion for discretionary review was treated as a reply to the State of Washington's brief in response to the personal restraint petition. Dkt. 10-1 at 188. On April 17, 2018, the Washington Court of Appeals dismissed the petition as frivolous. Dkt. 10-1 at 190-191. The certificate of finality for this dismissal was issued on May 31, 2018. Dkt. 10-1 at 193.

         Petitioner filed this petition for writ of federal habeas corpus on March 20, 2019. Dkt. 1. Petitioner alleges two grounds for relief. Dkt. 4 at 7, 12. First, petitioner alleges ineffective assistance of counsel because his trial counsel: A) failed to move for mistrial, B) refused to call a private investigator as a witness and C) failed to object to inadmissible evidence. Dkt. 4 at 7-8. Second, petitioner alleges that his right to due process under the Fourteenth Amendment was violated because his attorney did not call a private investigator as a witness to testify regarding alleged police and prosecutorial misconduct. Dkt. 4 at 12.

         EVIDENTIARY HEARING

         In a proceeding instituted by the filing of a federal habeas corpus petition by a person in custody pursuant to a judgment of a state court, the “determination of a factual issue” made by that court “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” Id. Where he or she “has diligently sought to develop the factual basis of a claim for habeas relief, but has been denied the opportunity to do so by the state court, ” an evidentiary hearing is not precluded. Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir. 1999) (quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998)).

         If, however, the petitioner fails to develop “the factual basis of a claim” in the state court proceedings, an evidentiary hearing on that ...


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