United States District Court, W.D. Washington, Seattle
ROBERT D. PENA, Petitioner,
JEFFREY A. UTTECHT, Respondent.
REPORT AND RECOMMENDATION
Alice Theiler United States Magistrate Judge
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.
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.
FACTUAL AND PROCEDURAL HISTORY
Washington Court of Appeals (“Court of Appeals”)
described the testimony that was presented at trial as
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.
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).
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.)
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.
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.)
GROUNDS FOR RELIEF
grounds for habeas relief 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
GROUND 4: Ineffective assistance of trial counsel based on
inadequate voir dire and violation of right to fair trial by
impartial jurors. (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.)
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).
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).
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.
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.
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.
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.
Cause and Prejudice
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,
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.
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)).
§ 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)).
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.
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)).
these standards in mind, the Court turns to petitioner's
Grounds 1 and 2-Right to Public Trial
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
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.
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 ...