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Riojas v. Uttecht

United States District Court, E.D. Washington

July 11, 2019

DENNIS WAYNE RIOJAS, Plaintiff,
v.
JEFFERY UTTECHT, Defendant.

          ORDER DENYING PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS

          ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE

         BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by Dennis Wayne Riojas. See ECF No. 6. Having reviewed the petition, Respondent Jeffery Uttecht's Answer and Memorandum of Authorities, the state court record, and Petitioner's reply, as well as the relevant law, the Court is fully informed.

         BACKGROUND

         A. Statement of Facts

         Around 2:30 p.m. on May 31, 2013, Petitioner, driving a van, approached Jessie Collie, who was walking along a street in Othello, Washington. ECF No. 9-1 at 39. A witness heard Petitioner and Collie talking to each other. She heard Collie say something to the effect of, “I heard you were looking for me.” Id. She heard Petitioner respond with “something like[, ] ‘yes I was you mother fucker[.]'” Id. The witness saw Petitioner shoot Jessie Collie. Id. The bullet entered Collie's back and exited his chest. Id. at 40. The impact broke Collie's rib and punctured his lung. Id. Collie survived.

         B. Procedural History

         The State of Washington, in Adams County Superior Court, charged Petitioner with first degree assault, with a deadly weapon enhancement, and unlawful possession of a firearm. See ECF No. 9-1 at 5, 109, 136. After initially pleading not guilty, Petitioner entered a guilty plea to first degree assault, pursuant to a plea agreement with the State, on October 20, 2014. See Id. at 43-52. The State and Petitioner stipulated that the prosecuting attorney would recommend to the sentencing judge “an exceptional (mitigating) sentence below the standard range of eighty-nine (89) months, standard court costs and fees, no-contact with the victim, restitution to be determined, ” and further “agreed not to file Bail Jumping and/or Unlawful Possession of Firearm[.]” Id. at 46.

         At the time Petitioner changed his plea, he confirmed that he understood that the standard sentence range for his offense was 138 to 184 months. Id. at 44. Petitioner also confirmed his understanding that the court was not obligated to follow anyone's recommendation as to the sentence and was required to impose a sentence within the standard range unless, in the case of an exceptional sentence below the standard range, the court found mitigating circumstances that supported that exceptional sentence. Id. at 46.

         At the sentencing hearing on October 27, 2014, the prosecutor recommended “an exceptional sentence below the standard range for eighty-nine months” because of the mitigating factors that the State had set forth in its trial brief. ECF No. 9-1 at 175. The mitigating factors included: the victim, Collie, had a “long track record of criminal behavior”; Collie had instigated a fight with Petitioner six or seven months before the shooting that had amounted to an assault of Petitioner; and Collie was armed with metal knuckles at the time that Petitioner shot him. Id. at 176. The prosecutor further orally informed the sentencing court that the State did not agree with defense that the crime was an act of self-defense; rather the prosecutor viewed the act as revenge for the previous assault. Id. at 175.

         The sentencing court found:

Jesse . . . Collie wasn't the most sympathetic victim this Court has ever seen. But that doesn't change the fact that the defendant[, ] who was not supposed to be in possession of a firearm with prior felony convictions, and had an opportunity to avoid Mr. Collie but instead circled around the block and stopped in the middle of the road, waited for Mr. Collie to approach him and then put a bullet through his lung.
This case was attempted murder. The facts of the case show nothing less than attempted murder. I can't justify going under the range in this case. Mr. Riojas earned his points. He has multiple felony convictions. The only mitigating factor here, and I don't know if it's a proper mitigating factor, he's apparently been involved with raising a bunch of very loving, respectful, well-spoken children. And though that's not a crime-related factor it does show me that he has done something right in his life and that's the only reason I would [sic] go for the high end of the standard range in this case . . . .

         ECF No. 9-1 at 34-35.

         The court imposed a sentence of 138 months, the low end of the standard range. ECF No. 9-1 at 34-35, 155. The court also dismissed the deadly weapon ...


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