United States District Court, W.D. Washington, Tacoma
Richard Creatura United States Magistrate Judge
District Court has referred this 28 U.S.C. § 2254 action
to United States Magistrate Judge J. Richard Creatura.
Petitioner Shane A. DeLorenze filed his federal habeas
petition seeking relief from a state court conviction.
See Dkt. 3. Petitioner seeks habeas relief from his
2015 conviction of second-degree rape. Dkt. 3.
respondent's original answer, he argues that petitioner
raises six grounds for relief: (1) the evidence presented at
trial in support of the elements of penetration and lack of
consent was constitutionally insufficient; (2) the prosecutor
committed misconduct in closing argument by (a) exhorting the
jury to “do its job” and find petitioner guilty
and (b) disparaging defense counsel by describing defense
counsel's closing argument as absurd; (3) defense counsel
provided ineffective assistance at trial by (a) failing to
object to the admissibility of an officer's opinion
during the police interview regarding petitioner's
veracity and guilt and (b) failing to object to the
prosecutor's closing argument; (4) the trial court erred
by admitting petitioner's statement to police because
petitioner was in an alcoholic blackout state and was
therefore incapable of voluntarily waiving his right to
remain silent under the Fifth Amendment; (5) defense counsel
provided ineffective assistance at trial by stipulating to
the admissibility of petitioner's statement to police,
failing to move to suppress the statement, and failing to
request a CrR 3.5 hearing; and (6) appellate counsel provided
ineffective assistance by failing to present claims 4 and 5,
supra, as assignments of error on direct appeal.
Dkt. 6 at 3 (citing Dkt. 3 at 16-41). Respondent argues that
petitioner has failed to show that the state court's
adjudication was an unreasonable application of federal law.
Dkt. 6. Petitioner did not file a traverse. See Dkt.
petition, petitioner also argues that the trial court abused
its discretion and that the audio recording of his statement
to the police contained prejudicial material. Dkt. 3 at 38.
Petitioner includes this claim under “Ground
Five.” Id. The Court interprets the petition
to include a second subpart to petitioner's fifth ground
for relief (“Ground Five, subpart (b)”): whether
petitioner was denied the right to a fair trial based on the
admission of petitioner's audio recorded statement to
police. Dkt. 3 at 38. See Darden v. Wainwright, 477
U.S. 168, 179-183 (1986) (When evidence is introduced that is
so unduly prejudicial that it renders the trial fundamentally
unfair, the Due Process Clause of the Fourteenth Amendment
provides a mechanism for relief.); Payne v.
Tennessee, 501 U.S. 808, 825 (1991); Kansas v.
Carr, 136 S.Ct. 633, 644 (2016) (citing Payne
for the proposition that the Due Process Clause prohibits the
introduction of unduly prejudicial evidence that would render
the trial fundamentally unfair); Alberni v.
McDaniel, 458 F.3d 860, 864 (9th Cir. 2006) (“The
Supreme Court has established a general principle that
evidence that 'is so extremely unfair that its admission
violates fundamental conceptions of justice' may violate
due process.”); See also Porter v. Ollison,
620 F.3d 952, 958 (9th Cir. 2010) (“Prisoner pro se
pleadings are given the benefit of liberal
construction.”). Respondent's answer does not
address Ground Five, subpart (b). See Dkt. 6.
to the Rules Governing Section 2254 Cases, respondent is
required to address all allegations presented in a habeas
corpus petition. While Ground Five, subpart (b) may be
unexhausted and procedurally barred, see Dkt. 7 at
Exhibits 10, 12, 13, 15, 16, 17, 19, 22, 23, petitioner was
not provided with an opportunity to respond and thus, the
Court will not sua sponte rule on that claim at this
time. See Boyd v. Thompson, 147 F.3d 1124, 1128 (9th
Cir. 1998) (If dismissing a claim as unexhausted and
procedurally defaulted, a federal habeas court must give a
petitioner notice of the procedural default and an
opportunity to respond to the argument for dismissal.).
such, the Court requests a supplemental answer addressing
Ground Five subpart (b) and whether petitioner was denied the
right to a fair trial based on the admission of
petitioner's audio recorded statement to police. The
supplemental answer shall be filed on or before November 1,
2019. Petitioner may file a supplemental traverse (response
to the supplemental answer) addressing only the new arguments
raised by respondent related to Ground 5, ...