United States District Court, E.D. Washington
ORDER DENYING PETITION UNDER 28 U.S.C. § 2254
FOR WRIT OF HABEAS CORPUS
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE
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.
Statement of Facts
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.
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.
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.
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.
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 . . . .
9-1 at 34-35.
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 ...