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Pena v. Uttecht

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

September 19, 2019

ROBERT D. PENA, Petitioner,


          Mary Alice Theiler United States Magistrate Judge


         Petitioner, a state prisoner who is currently confined at Airway Heights Corrections Center in Airway Heights, Washington, seeks relief under 28 U.S.C. § 2254 from a 2013 King County judgment and sentence. Respondent has filed an answer to petitioner's habeas petition and submitted relevant portions of the state court record. Petitioner did not file a response to respondent's answer.

         Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends denying petitioner's habeas petition, dismissing this action with prejudice, and denying a certificate of appealability.


         The Washington Court of Appeals (“Court of Appeals”) described the testimony that was presented at trial as follows:

In October 2011, L.L. was eight years old and lived in an apartment next door to her aunt Ashley. On the evening of October 8, Peña was at Ashley's house with his fiancé and their daughter. L.L. came over with her mother to play with her cousin. L.L.'s mother left briefly to put L.L.'s younger brother to bed, but L.L. stayed behind.
While Ashley and Peña's fiancé chatted in another room, Peña sat down next to L.L and began rubbing her leg “all the way up.” He asked her to go to the store with him but she declined. When L.L. asked what time it was, Peña told her there was a clock in the bathroom. Peña followed L.L. into the bathroom, held her against the sink, put his hand under her underwear, and rubbed her where she “go[es] to the bathroom.” While he touched her, Peña kept saying “good girl.” After a minute or so, Peña stopped and L.L. ran home. L.L. rushed into her apartment and slammed the door, looking pale and breathing heavily. She told her mother, “Mom, I'm not going back over there . . . because I'm freaked out and I'm really grossed out . . . because of that man over there.” L.L.'s mother asked her what happened. While crying and having difficulty breathing, L.L. described what Peña had done.

(Dkt. 27, Ex. 15 at 2.) The state charged petitioner with one count of first degree child molestation. (Id.) His first trial resulted in a hung jury. (Id.) After a second trial, the jury convicted him as charged. (Id.) The trial court imposed a sentence of 149-months to life. (Dkt. 27, Ex. 1.) The Court of Appeals affirmed the judgment and sentence. (Dkt. 27, Exs. 2, 8.) The Washington Supreme Court denied his petition for review. (Dkt. 27, Exs. 9, 10.) On June 1, 2015, the U.S. Supreme Court denied his petition for a writ of certiorari. Pena v. Washington, 135 S.Ct. 2387 (2015).

         In December 2015, petitioner filed a personal restraint petition in the Court of Appeals. (Dkt. 27, Ex. 12; see also id., Exs. 13, 14.) On November 15, 2016, the Court of Appeals denied all the claims but one, which alleged that petitioner's trial counsel had provided ineffective assistance in advising him whether to accept a plea offer. (Dkt. 27, Ex. 15.) The Court of Appeals remanded this claim for a reference hearing. (Dkt. 27, Exs. 16-21.) The Superior Court conducted the hearing as ordered, and the judge issued findings of fact on May 10, 2017. (Dkt. 27, Ex. 22.) After receiving the findings of fact, the Court of Appeals denied the remaining claim on June 2, 2017. (Dkt. 27, Ex. 23.)

         In December 2016, prior to the reference hearing, petitioner filed a motion in the Washington Supreme Court asking that any motion for discretionary review be due 60 days after the conclusion of the reference hearing. (Dkt. 27, Ex. 24.) The Washington Supreme Court granted the motion. (Dkt. 27, Ex. 25.) Petitioner subsequently requested and received additional extensions of time to file a motion for discretionary review. (Dkt. 27, Exs. 26, 27.) The Washington Supreme Court eventually set a firm deadline of November 21, 2017, for petitioner to file a motion for discretionary review. (Dkt. 27, Ex. 27.) After multiple requests by petitioner, the court extended the deadline to January 3, 2018. (See Dkt. 27, Exs. 28-35.) On December 26, 2017, petitioner sought an additional extension of time, but the court denied the request because he did not provide a legitimate reason for any further extension of time. (Dkt. 27, Exs. 36, 37.) The Washington Supreme Court ultimately dismissed the matter because petitioner did not file a motion for discretionary review by January 3, 2018. (Dkt. 27, Ex. 37.)

         Meanwhile, on July 17, 2017, petitioner filed a notice of appeal from the Superior Court's findings of facts after the reference hearing. (Dkt. 27 at Ex. 39.) The Commissioner dismissed the appeal on October 27, 2017. (Id.)


         Petitioner's grounds for habeas relief[1] may be stated as follows:

GROUND 1: Public trial violation based on excusing prospective jurors “outside of public eye.” (Dkt. 3 at 14.)
GROUND 2: Public trial violation based on a vanishing prospective juror. (Id. at 16.)
GROUND 3: Right to a fair trial by an impartial and unbiased jury was violated when (a) jurors were empaneled who openly admitted bias, (b) prospective jurors who requested private questioning were not questioned at all, (c) a juror with a severe hearing impairment was empaneled. (Id. at 17.)
GROUND 4: Ineffective assistance of trial counsel based on inadequate voir dire and violation of right to fair trial by impartial jurors.[2] (Id. at 18-19.)
GROUND 5: Ineffective assistance of trial counsel because counsel (a) failed to call alibi witnesses, (b) failed to relay prosecutor's plea offer to petitioner, (c) failed to perform adequate voir dire, (d) failed to object to the DVD of the child interview being allowed into jury deliberations, and (e) encouraged the court to allow the prosecutor to elicit false testimony from the alleged victim. (Id. at 20-21.)
GROUND 6: Trial counsel and prosecutorial misconduct based on joint scheme to present false testimony/tamper with the alleged victim's testimony. (Id. at 22.)
GROUND 7: Abuse of discretion when the trial court allowed the jury to re-watch the DVD of the child interview in the jury room. (Id. at 23-24.)
GROUND 8: Cumulative error. (Id. at 25-26.)
GROUND 9: Ineffective assistance of appellate counsel. (Id. at 27-28.)


         A. Exhaustion

         Before seeking federal habeas relief, a state prisoner must exhaust the remedies available in the state courts. The exhaustion requirement reflects a policy of federal-state comity, intended to afford the state courts “an initial opportunity to pass upon and correct alleged violations of its prisoners' federal rights.” Picard v. Connor, 404 U.S. 270, 275 (1971) (internal quotation and citation marks omitted).

         There are two avenues by which a petitioner may satisfy the exhaustion requirement. First, a petitioner may properly exhaust his state remedies by “fairly presenting” his claim in each appropriate state court, including the state supreme court with powers of discretionary review, thereby giving those courts the opportunity to act on his claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004); Duncan v. Henry, 513 U.S. 364, 365-66 (1995). “It has to be clear from the petition filed at each level in the state court system that the petitioner is claiming the violation of the federal constitution that the petitioner subsequently claims in the federal habeas petition.” Galvan v. Alaska Dep't of Corrections, 397 F.3d 1198, 1204 (9th Cir. 2005).

         Second, a petitioner may technically exhaust his state remedies by demonstrating that his “claims are now procedurally barred under [state] law.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (quoting Castille v. Peoples, 489 U.S. 436, 351 (1989)); see also Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (en banc). If the petitioner is procedurally barred from presenting his federal claims to the appropriate state court at the time of filing his federal habeas petition, the claims are deemed to be procedurally defaulted for purposes of federal habeas review. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). A habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion because “there are no state remedies any longer ‘available' to him.” Coleman v. Thompson, 501 U.S. 722, 732 (2007). Federal habeas review of procedurally defaulted claims is barred unless the petitioner can either demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Id. at 724.

         Respondent concedes that petitioner properly exhausted Grounds 1-4, 5(a), 5(c), and 6-8 by fairly presenting them to the Washington Supreme Court on direct review. (Dkt. 25 at 7, 11; see also Dkt. 27, Ex. 9.) Respondent contends, however, that petitioner failed to properly exhaust Grounds 5(b), 5(d), 5(e), and 9 because he did not fairly present those claims to the Washington Supreme Court. (Id.) Respondent asserts that these claims are now technically exhausted and procedurally defaulted. As discussed below, the Court agrees with respondent.

         1. Proper Exhaustion

         The only brief petitioner submitted to the Washington Supreme Court was his petition for review on direct appeal. (Dkt. 27, Ex. 9.) The Court has carefully reviewed his petition for review and agrees with respondent that petitioner did not raise Ground 5(b) (ineffective assistance for failure to relay plea deal), 5(d) (ineffective assistance for failure to object to DVD viewing), 5(e) (ineffective assistance for encouraging prosecutor to elicit false testimony), and 9 (ineffective assistance of appellate counsel). (See id.) Petitioner did not raise any issue related to a plea deal or ineffective assistance of appellate counsel. (See id.) Petitioner argued that he “was denied due process by trial counsel and the prosecutor's knowing use of false evidence or perjured testimony, ” but he did not claim that his counsel was ineffective in this regard. (See Id. at 17-18.) He also asserted that a new trial was warranted because the trial court allowed the jury unfettered access to the DVD of the child witness, but again he did not claim that counsel was ineffective for not objecting to the DVD access. (See Id. at 18-19.) Because petitioner did not claim the violation of the federal constitution that he claims here, he failed to properly exhaust these claims. See Galvan, 397 F.3d at 1204.

         2. Technical Exhaustion

         As discussed above, petitioner did not properly exhaust Grounds 5(b), 5(d), 5(e), and 9. As respondent maintains, these claims are technically exhausted because if petitioner attempted to raise them in a second personal restraint petition, the state courts would find them barred by Washington law. Under RCW 10.73.090(1), a petition for collateral attack on a judgment and sentence in a criminal case must be filed within one year after the judgment becomes final, subject to exceptions that do not apply here. See RCW 10.73.100. A judgment becomes final for purposes of state collateral review on the date that the appellate court issues its mandate disposing of a timely direct appeal. RCW 10.73.090(3)(b). Here, the state court issued its mandate well over one year ago. (See Dkt. 27, Ex. 11.) It therefore appears clear that petitioner would now be time barred from returning to the state courts to present his unexhausted claims. See RCW 10.73.090. Moreover, because petitioner has previously presented a personal restraint petition to the state courts, the state courts are unlikely to entertain another such petition. See RCW 10.73.140 (successive petition bar). Accordingly, the Court concludes that petitioner has technically exhausted, and procedurally defaulted, Grounds 5(b), 5(d), 5(e), and 9.

         3. Cause and Prejudice

         Federal habeas review of petitioner's procedurally defaulted claims is barred unless he can demonstrate cause and prejudice, or a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. To satisfy the “cause” prong of the cause and prejudice standard, petitioner must show that some objective factor external to the defense prevented him from complying with the state's procedural rule. Id. at 753; Murray v. Carrier, 477 U.S. 478, 488 (1986) (a petitioner can demonstrate “cause” if he shows constitutionally ineffective assistance of counsel, the unavailability of a factual or legal basis for a claim, or some interference by officials). To show “prejudice, ” petitioner “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphases in original). And only in a “truly extraordinary case, ” the Court may grant habeas relief without a showing of cause or prejudice to correct a “fundamental miscarriage of justice” where a constitutional violation has resulted in the conviction of a defendant who is actually innocent. Schlup v. Delo, 513 U.S. 298, 338 (1995).

         Petitioner fails to demonstrate that any factor external to the defense prevented him from complying with the state's procedural rules and, thus, he has not demonstrated cause for his procedural default. Because petitioner has not met his burden of demonstrating cause for his procedural default, the Court need not determine whether there was any actual prejudice. See Cavanaugh v. Kincheloe, 877 F.2d 1443, 1448 (9th Cir. 1989) (citing Smith v. Murray, 477 U.S. 527, 533 (1986)). In addition, petitioner makes no colorable showing of actual innocence. Petitioner thus fails to demonstrate that his procedurally defaulted claims are eligible for federal habeas review. Therefore, Grounds 5(b), 5(d), 5(e), and 9 should be DENIED.

         B. Merits review

         Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a habeas corpus petition may be granted with respect to any claim adjudicated on the merits in state court only if (1) the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or (2) the decision was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). In considering claims pursuant to § 2254(d), the Court is limited to the record before the state court that adjudicated the claim on the merits, and the petitioner carries the burden of proof. Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011); see also Gulbrandson v. Ryan, 738 F.3d 976, 993 (9th Cir. 2013). “When more than one state court has adjudicated a claim, [the Court analyzes] the last reasoned decision.” Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005) (citing Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991)).

         Under § 2254(d)(1)'s “contrary to” clause, a federal court may grant the habeas petition only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the “unreasonable application” clause, a federal habeas court may grant the writ only if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. See id. at 407-09. The Supreme Court has made clear that a state court's decision may be overturned only if the application is “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 69 (2003). The Supreme Court has further explained that “[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         Clearly established federal law, for purposes of AEDPA, means “the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.” Lockyer, 538 U.S. at 71-72. This includes the Supreme Court's holdings, not its dicta. Id. “If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (citing Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir. 2000)).

         With respect to § 2254(d)(2), a petitioner may only obtain relief by showing that the state court's conclusion was based on “an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting 28 U.S.C. § 2254(d)(2)); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“[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 proceedings.”). The Court presumes the state court's factual findings to be sound unless the petitioner rebuts “the presumption of correctness by clear and convincing evidence.” Miller-El, 545 U.S. at 240 (quoting 28 U.S.C. § 2254(e)(1)).

         With these standards in mind, the Court turns to petitioner's remaining claims.

         1. Grounds 1 and 2-Right to Public Trial

         Petitioner argues that his Sixth Amendment right to a public trial was violated because prospective jurors were excused outside of the public eye (Ground 1) and one juror was dismissed off the record (Ground 2). (Dkt. 3 at 14, 16; Dkt. 7 at 12-18.) He claims four specific instances during voir dire when his right to a public trial was violated. First, the trial court “took a session break” and then questioned six jurors on the record in open court. (Dkt. 7 at 12.) Second, after a lunch break and before officially reconvening, the trial court realized she did not swear in two privately questioned jurors and dismissed them by contacting the jury room to tell them they were excused. (Id. at 12-13.) This occurred in open court and on the record. (Id.) Third, after excusing the jury venire for a break, the trial court informed the parties that prospective juror 35 was missing and dismissed him. (Id. at 13.) Again, this occurred in open court and on the record. (Id.) Finally, petitioner claims that there is no record of prospective juror 2 being dismissed, and therefore she must have been dismissed off the record in violation of his right to a public trial and right to be present. (Id. at 13-18.)

         Respondent argues that petitioner waived these grounds for relief by failing to object at trial. (Dkt. 25 at 16-19.) Under federal law, a defendant can waive the public trial right guarantee by failing to object to closure of the voir dire proceeding. Peretz v. United States, 501 U.S. 923, 936-37 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960)); see also Momah v. Uttecht, No. 15-0536, 2016 WL 1059404 (W.D. Wash. Mar. 17, 2016), certificate of appealability granted, 2016 WL 3254994 (W.D. Wash. June 14, 2016) (granting certificate of appealability on issue of whether petitioner waived his public trial right by failing to object at trial, although issue was raised on direct and reviewed by the Washington state appellate courts), affirmed, 669 Fed.Appx. 604 (9th Cir. 2017), cert. denied, 138 S.Ct. 524 (2017). Petitioner did not object to the manner in which prospective jurors were dismissed. The Court has little difficulty concluding that he waived his public trial right claim as to the first three instances about which he complains because these events occurred in open court, on the record, and when he and his counsel were present. It is less clear, however, whether he could have waived his fourth claim because he alleges the juror was excused outside of his presence.

         Nevertheless, regardless of whether petitioner waived these claims, he fails to show that the Court of Appeals' decision was unreasonable. The Court of Appeals rejected his public trial claims because he failed to show a closure of the courtroom:

Peña filed a pro se statement of additional grounds alleging, among other things, violations of his right to a public trial. His claim is based in part on the fact that some jurors were questioned about sensitive matters outside the presence of the other jurors. However, contrary to Peña's assertions, the record does not indicate that the courtroom was ever closed. While the other jurors were not present in the courtroom at the time, there is no indication in the record that the court ordered that the public be excluded from the courtroom. A violation of the right to a public trial may occur where the questioning is done in chambers or outside the courtroom or when the courtroom was closed. See, e.g., State v. Strode, 167 Wash.2d ...

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