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Zellmer v. Holbrook

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

December 17, 2019

JOEL ZELLMER, Petitioner,




         This matter is before the Court on the Report and Recommendation (“R&R”) of the Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #29. The R&R recommends that the Court deny Petitioner Joel Zellmer's 28 U.S.C. § 2254 petition for habeas relief from his 2010 jury-trial conviction. Petitioner has filed Objections to the R&R, Dkt. #30, and Respondent opposes Petitioner's Objections, Dkt. #31. For the reasons set forth below, the Court adopts the R&R and denies Petitioner's habeas petition.


         The Court incorporates by reference the background set forth in the R&R. Dkt. #29 at 2-5. In 2003, Mr. Zellmer's three-year-old stepdaughter A.M., died from drowning while under Mr. Zellmer's care. Dkt. #22-5 at 43. In 2005, two years before Mr . Zellmer was charged with murder, police officers executed a search warrant on Mr. Zellmer's home and obtained large volumes of documents. Dkt. #9 at 37. At the time of the search, officers were aware that Mr. Zellmer was involved in other judicial proceedings, including divorce and custody disputes as well as a wrongful death suit brought by A.M.'s mother. Id. at 36. To avoid breaching attorney-client confidentiality, the officers scanned and set aside potentially privileged documents without reviewing them.

         The State allowed Mr. Zellmer's attorney to review the seized items and identify any documents that were either privileged or beyond the scope of the warrant. Id. The state trial court then appointed a Special Master to review materials designated as privileged. Id. at 37-38. Investigators never reviewed the challenged documents again. Two of the seized documents included a document on Mr. Zellmer's computer titled “accident.doc” that provided an account of how A.M. had drowned, as well as a file from Mr. Zellmer's homeowner insurance carrier regarding the carrier's obligation to represent Mr. Zellmer in a wrongful death case. Id. at 37-38. The “accident.doc” file and the insurance file provided accounts of A.M.'s drowning that differed from the account Mr. Zellmer alleged in his criminal case. Both documents were deemed privileged and excluded from trial. Id. The state trial court concluded that the State had not gained any benefit from seeing the “accident.doc” document or insurance file, since the State already had other evidence demonstrating Mr. Zellmer's inconsistent versions of events that was ultimately presented at trial. Id. at 38-39.

         In 2010, a jury convicted Mr. Zellmer of second degree murder of A.M. Dkt. #1 at 1. Mr. Zellmer challenged the conviction on direct appeal and in a personal restraint petition (“PRP”) in state court, claiming that the trial court mishandled the attorney-client privileged documents. Id. at 5. The state court denied Mr. Zellmer relief on direct appeal and in his collateral attack on the conviction. While his PRP was pending, Mr. Zellmer filed a Public Records Act request for production of all documents seized during the search. Dkt. #27 at 8. This request produced records that included photographs of plainly-labeled banker boxes of litigation records taken from Mr. Zellmer's home office that were not produced to defense counsel. Id. at 9. In withholding these records, Mr. Zellmer argues, his defense trial counsel was not aware of the depth of the State's intrusion into attorney-client privileged documents. Id. at 11 (“Zellmer's trial attorneys were kept in the dark about the full extent of the seizures and dissemination of records prior to the court's appointment of a special master.”).

         The Washington state court of appeals dismissed Mr. Zellmer's PRP and declined to hold an evidentiary hearing related to the public records request documents. The court concluded that his arguments regarding the public record requests were untimely, since he raised them for the first time in his reply. Dkt. #22-5 at 23. Moreover, the court found that documents obtained from the public records requests did not undermine the court's conclusion that there was “no deliberate and egregious intrusion” by the State into Mr. Zellmer's attorney-client privilege. Id. Similarly, the Washington state supreme court commissioner denied review of his PRP on the basis that “Mr. Zellmer's assertion that the State obtained and used privileged information by way of . . . the seized documents is too speculative to justify a reference hearing.” Id. at 47-48.

         Mr. Zellmer petitions this Court for federal habeas relief on three grounds: (1) violation of his right to counsel through the seized attorney-client privileged documents; (2) violation of his right to counsel through placing him with a jailhouse informant; and (3) improper expert testimony and non-testifying expert opinions. See Dkt. #1 at 5-8. In response to the State's briefing, Mr. Zellmer only disputes the State's position on the first ground: whether he was improperly denied a full evidentiary hearing at the state-court level to examine the extent of intrusion into his attorney-client relationship. Dkt. #27 at 1-2. Mr. Zellmer acknowledges that the Special Master resolved any question as to the use of the seized documents at trial. Id. at 18. However, he contends that “it is not clear, and could not be clear on the state's record, whether state investigator[s] or attorneys obtained an impermissible benefit from their acquisition and review prior to the order appointing the special master.” Id. For that reason, he requests that this Court order the state court to undertake “an authoritative fact resolution” of the State's invasion of Mr. Zellmer's privileged communications and, or alternatively, order a federal court evidentiary hearing under 28 U.S.C. § 2254(e). Id. at 12.


         A. Legal Standards

         A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Id. “A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).

         Habeas petitions are governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244, et seq. Under AEDPA, a petitioner is entitled to federal habeas relief only if s/he can show that the state court's adjudication of his or her claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1)-(2); Greene v. Fisher, 565 U.S. 34 (2011).

         AEDPA creates a “highly deferential” standard for evaluating state court rulings and “demands that state court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam). A state court's decision is contrary to clearly established federal law if it “applies a rule that contradicts the governing law set forth in [Supreme Court] cases, ” or arrives at a different result in a case that “confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). “The state court's application of clearly established law must be objectively unreasonable, not just incorrect or erroneous.” Crittenden v. Ayers, 624 F.3d 943, 950 (9th Cir. 2010) (internal ...

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