United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
Theresa L. Fricke United States Magistrate Judge.
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.
Statement of Facts
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
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
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
Dkt. 10-1 at 96-99.
State Court Procedural History
appealed his conviction and sentence alleging the following
grounds for relief:
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.
additional grounds for review included: alleged prosecutorial
misconduct, an invalid search warrant, witness misconduct,
and ineffective assistance of counsel. 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.
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.
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.
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.
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
however, the petitioner fails to develop “the factual
basis of a claim” in the state court proceedings, an
evidentiary hearing on that ...