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Raethke v. Boe

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

September 13, 2019

ROBERT RAYMOND RAETHKE, Petitioner,
v.
JERI BOE, Respondent.

          REPORT AND RECOMMENDATION

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE.

         Petitioner 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.

         The 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.

         BACKGROUND

         The 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 parole.
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 motivated.
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 motivation.
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 POAA.

Dkt. 10, Ex. 12 (unpublished opinion), at 1-2.

         EXHAUSTION

         Respondent 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.

         EVIDENTIARY HEARING

         The 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.

         The 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).

         HABEAS REVIEW STANDARD

         A 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).

         A state 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.

         When 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).

         DISCUSSION

         A. Claim 1 - Instruction 3 (Reasonable Doubt Instruction)

         Petitioner 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 reasonable doubt.
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 ...

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