United States District Court, W.D. Washington, Seattle
ORDER ADOPTING REPORT AND RECOMMENDATION AND
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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.
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.
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
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
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