United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.
Robert Raymond Raethke seeks 28 U.S.C. § 2254 habeas
relief from his jury conviction of second-degree assault with
sexual motivation and sentencing as a persistent offender
under Washington's Persistent Offender Accountability Act
(POAA). He contends: (1) an erroneous reasonable-doubt jury
instruction violated his due process rights; (2) his double
jeopardy rights were violated; (3) no jury finding regarding
his sentence as a persistent offender violated his Sixth
Amendment rights; and (4) the evidence at trial was
constitutionally insufficient to support his conviction. Dkt.
No. 4-1, pp. 4-21.
Court recommends the habeas petition be
denied because Petitioner has failed to
demonstrate that the state-court adjudication of his grounds
for relief was contrary to, or an unreasonable application
of, established federal law, or was an unreasonable
determination of the facts in light of the evidence
presented. See 28 U.S.C. § 2254(d)(1)-(2). The
Court also recommends denying an evidentiary
hearing and issuance of a certificate of appealability.
Washington Court of Appeals summarized the facts of
Petitioner's crime, trial, and sentencing in its opinion
on direct appeal:
On April 30, 2014, A.C. was walking her dog along the
Arlington Airport Trail when she encountered Raethke. Raethke
told A.C. that she was beautiful and asked for a hug. Raethke
grabbed A.C. in a hug and began kissing her on the neck and
cheek. Although A.C. repeatedly shoved Raethke and told him
to let her go, Raethke held on for seven to ten seconds.
After Raethke let go of her, A.C. told him she was going to
call the police and Raethke ran away. Later, A.C told Officer
Peter Barrett that she thought she was going to be raped when
Raethke was hugging and kissing her.
The State charged Raethke with second degree assault with
sexual motivation based on intent to commit indecent
liberties by forcible compulsion. The State noted that, if
convicted, Raethke would be a persistent offender under the
POAA [Persistent Offender Accountability Act] and would be
sentenced to life in prison without the possibility of
Prior to trial, the State moved to admit evidence of
Raethke's prior convictions of first degree rape and
attempted first degree rape, including testimony of his prior
victims S.C., K.D., and M.H. The trial court admitted the
prior victims' evidence under ER 404(b) on the issue of
Raethke's intent to commit indecent liberties and so that
the jury could evaluate whether the crime was sexually
At trial, S.C., M.H., and K.D. testified that Raethke had
grabbed them on wooded trails and taken them into the woods
to sexually assault them.
The jury found Raethke guilty of assault in the second
degree, and found that he committed the crime with sexual
At Raethke's sentencing, the State offered a certified
copy of his prior judgments and convictions for first degree
rape and attempted first degree rape.
The trial court sentenced Raethke to life without the
possibility of parole as a persistent offender under the
Dkt. 10, Ex. 12 (unpublished opinion), at 1-2.
does not argue Petitioner's grounds for relief are
unexhausted or untimely. Therefore, the claims are properly
before the Court and the Court need not recite the state
court procedural history.
court retains the discretion to conduct an evidentiary
hearing. Schriro v. Landrigan, 550 U.S. 465, 473
(2007). “[A] federal court must consider whether such a
hearing could enable an applicant to prove the petition's
factual allegations, which, if true, would entitle the
applicant to federal habeas relief.” Id. at
474. “It follows that if the record refutes the
applicant's factual allegations or otherwise precludes
habeas relief, a district court is not required to hold an
evidentiary hearing.” Id.
Court need not conduct an evidentiary hearing in this case as
Petitioner's habeas claims do not require further factual
development and may be resolved by a review of the record
developed by the Washington Court of Appeals in
Petitioner's direct appeal. See Cullen v.
Pinholster, 563 U.S. 170 (2011) (Court's review in
determining whether relief is available under 28 U.S.C.
§ 2254(d)(1) is limited to the state court record).
federal Court may not grant habeas relief unless the state
court decision: “(1) was contrary to clearly
established federal law as determined by the Supreme Court,
(2) involved an unreasonable application of such law, or (3)
. . . was based on an unreasonable determination of the facts
in light of the record before the state court.” See
Fairbank v. Ayers, 650 F.3d 1243, 1251 (9th Cir. 2011)
(as amended); 28 U.S.C. § 2254(d)(1)-(2).
court's decision is contrary to clearly established
federal law if it contradicts the law set forth by the United
States Supreme Court, or reaches a result different than that
reached by the Supreme Court on materially indistinguishable
facts. See Terry Williams v. Taylor, 529 U.S. 362,
405-06 (2000). A state court's decision is an
unreasonable application of clearly established federal law
when the state court identifies the correct legal rule, but
applies it to a new set of facts in a way that is objectively
unreasonable. See id. at 407.
determining whether a state court unreasonably determined the
facts, “a federal court may not second-guess a state
court's fact-finding process unless, after review of the
state-court record, it determines that the state court was
not merely wrong, but actually unreasonable.”
Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004),
overruled on other grounds by Murray v. Schriro, 745
F.3d 984, 999-1000 (9th Cir. 2014). “[A] decision
adjudicated on the merits in a state court and based on a
factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding, §
2254(d)(2).” Miller-El I, 537 U.S. 322, 340
(2010). State court factual findings are presumed correct and
this is a presumption the petitioner must overcome by clear
and convincing evidence. Davis v. Ayala, 135 S.Ct.
2187, 2199-2200 (2015) (quotation and citation omitted).
Claim 1 - Instruction 3 (Reasonable Doubt
claims that the reasonable-doubt jury instruction used at his
trial violated due process because it incorrectly defined
reasonable doubt in terms of whether the jury had “an
abiding belief in the truth of the charge.” Dkt. No.
4-1, at 4-7. Instruction 3 given to Petitioner's jury was
based on Washington Practice Pattern Jury
Instructions-Criminal (WPIC) 4.01:
The defendant has entered a plea of not guilty. That plea
puts in issue every element of each crime charged. The State
is the plaintiff and has the burden of proving each element
of each crime beyond a reasonable doubt. The defendant has no
burden of proving that a reasonable doubt exists.
A defendant is presumed innocent. This presumption continues
throughout the entire trial unless during your deliberations
you find it has been overcome by the evidence beyond a
A reasonable doubt is one for which a reason exists and may
arise from the evidence or lack of evidence. It is such a
doubt as would exist in the mind of a reasonable person after
fully, fairly and carefully considering all of the evidence
or lack of evidence. If, from such consideration, you
have an abiding ...