Brown v. Boe

• Court: District Court, W.D. Washington
• Decided: March 15, 2021
• Docket: 2:19-cv-01977
• Status: Unknown

Opinion

THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 RESHAUD TODD BROWN, CASE NO. C19-1977-JCC 10 Petitioner, ORDER 11 v. 12 JERI BOE, 13 Respondent. 14

15 This matter comes before the Court on Petitioner Reshaud Todd Brown’s objections 16 (Dkt. No. 23), including supplementation (Dkt. No. 24), to the report and recommendation 17 (“R&R”) of the Honorable Michelle L. Peterson, United States Magistrate Judge (Dkt. No. 16), 18 and Mr. Brown’s motion for leave to file overlength briefs (Dkt. No. 25). Having thoroughly 19 considered Mr. Brown’s objections and the relevant record, the Court hereby finds oral argument 20 unnecessary and OVERRULES Mr. Brown’s objections, APPROVES and ADOPTS the R&R, 21 DENIES the petition for a writ of habeas corpus, DISMISSES the case with prejudice, and 22 GRANTS Mr. Brown leave to file overlength briefs for the reasons explained herein. 23 I. BACKGROUND 24 Judge Peterson’s R&R sets forth the underlying facts of this case and the Court will not 25 repeat them here except as relevant. (See Dkt. No. 16 at 2–4.) Mr. Brown brought this 28 U.S.C. 26 1 § 2254 habeas action to challenge his second-degree assault conviction.1 (See generally Dkt. No. 2 7.) Mr. Brown argued in his petition that (1) the trial court unreasonably violated due process in 3 failing to instruct the jury on third-degree assault as an inferior degree offense of second-degree 4 assault, (2) the Court of Appeals unreasonably found that the factual prong of the test for an 5 inferior third-degree assault instruction was not met by the evidence, (3) defense counsel was 6 ineffective in failing to request a third-degree assault instruction as an inferior degree offense to 7 second-degree assault, and (4) the Court of Appeals unreasonably conflated the sufficiency of the 8 evidence standard with the Strickland prejudice test in its opinion rejecting his ineffective 9 assistance of counsel claim. (Dkt. No. 7 at 5, 7, 8, 10.) Judge Peterson recommended the Court 10 deny Mr. Brown’s petition, dismiss his action with prejudice, and deny him issuance of a 11 certificate of appealability with respect to all claims. (Dkt. No. 16 at 17.) Following extensions 12 provided by the Court, Mr. Brown timely filed objections to Judge Peterson’s R&R (Dkt. Nos. 13 23, 24). 14 II. DISCUSSION 15 A. Legal Standard 16 State prisoners may collaterally attack their detention in federal court if they are being 17 held in violation of the Constitution or laws and treaties of the United States. 28 U.S.C. 18 § 2254(a). Under the standards imposed by the Antiterrorism and Effective Death Penalty Act of 19 1996, a federal court may grant a habeas corpus petition with respect to any claim adjudicated on 20 the merits in state court only if the state court’s decision (1) “was contrary to, or involved an 21 unreasonable application of, clearly established federal law, as determined by the Supreme 22 Court” or (2) “was based on an unreasonable determination of the facts in light of the evidence 23

24 1 Mr. Brown indicates that he submitted a separate § 2554 petition challenging the imposition of a mandatory life sentence pursuant to Washington’s Persistent Offender 25 Accountability Act. (See Dkt. No. 7 at 12.) Judge Peterson’s R&R did not address this issue and it is not the subject of the objections presently before the Court. (See generally Dkt. Nos. 16, 23, 26 24.) 1 presented in the state court proceedings.” 28 U.S.C. § 2254(d). The court may find constitutional 2 error only if the state court’s conclusion was “more than incorrect or erroneous. The state court’s 3 application of clearly established law must be objectively unreasonable.” Lockyer v. Andrade, 4 538 U.S. 63, 75 (2005) (internal citations omitted). A federal court may not overturn state court 5 findings of fact “absent clear and convincing evidence” that they are “objectively unreasonable.” 6 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A petitioner carries the burden of proof and the 7 Court is “limited to the record before the state court that adjudicated the claim[s] on the merits.” 8 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). This is a “highly deferential standard for 9 evaluating state-court rulings, which demands that state-court decisions be given the benefit of 10 the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal citations 11 omitted). Even if the Court finds constitutional error, a habeas petitioner is not entitled to relief 12 unless the error had a “substantial and injurious effect or influence on the” factfinder. Fry v. 13 Pliler, 551 U.S. 112, 121 (2007) (extending Brecht v. Abrahamson, 507 U.S. 619 (1993), to a 14 federal court’s collateral review of a state-court criminal judgment on a habeas petition). 15 B. Petitioner’s Objections 16 District courts review de novo those portions of an R&R to which a party properly 17 objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Specific objections are required to 18 enable the district court to “focus attention on those issues—factual and legal—that are at the 19 heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). Here, Mr. Brown lodged 20 a number of general objections to Judge Peterson’s R&R, which the Court will not address.2 See 21 Ali v. Grounds, 236 F. Supp. 3d 1241, 1249 (S.D. Cal. 2017) (citing Goney v. Clark, 749 F.2d 5, 22 7 (3d Cir. 1984) (general objections have the same effect as no objection at all since they do not 23

24 2 Mr. Brown’s general objections include the following: objection to “‘all’ of the Magistrate’s factual and/or legal findings,” objection to “the Magistrate’s characterization of 25 Petitioner’s assertion” regarding “‘various pieces of evidence in the record,’” and finally the objection to Judge Peterson’s overall conclusion recommending dismissal of the petition. (Dkt. 26 No. 23 at 1, 17.) 1 focus the Court’s attention on any specific issues for review)). He also lodged the following 2 specific objections: (1) Judge Peterson erroneously determined that it was not objectively 3 unreasonable for the Washington Court of Appeals to hold that Mr. Brown failed to establish the 4 factual prong for an inferior third-degree assault instruction, (2) Judge Peterson was incorrect in 5 concluding that Mr. Brown was not prejudiced by counsel’s failure to request an inferior degree 6 instruction, and (3) Judge Peterson’s unlawfully concluded that no certificate of appealability 7 need be issued here. 8 1. Inferior Degree Instruction 9 Under Washington law, a jury instruction on a lesser-degree offense is appropriate when, 10 “(1) the statutes for both the charged offense and the proposed inferior degree offense ‘proscribe 11 but one offense;’ (2) the information charges an offense that is divided into degrees, and the 12 proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the 13 defendant committed only the inferior offense.” State v. Peterson, 948 P.2d 381 (Wash. 1997) 14 (citing State v. Foster, 589 P.2d 789, 794 (Wash. 1979); State v. Daniels, 784 P.2d 579, 582 15 (Wash. App. 1990)). Mr. Brown argues that an inferior degree instruction, for third-degree 16 assault, should have been provided to the jury and that it was objectively unreasonable for the 17 Washington Court of Appeals to determine that that factual prong requiring the instruction had 18 not been established. (Dkt. Nos. 23 at 2–18, 24 at 1–3.) The Court disagrees. 19 As a threshold matter, the Court notes that for it to award § 2254 habeas relief based upon 20 the trial court’s failure to provide the desired jury instruction, as a matter of state law, the 21 resulting error must have “so infected the entire trial that the resulting conviction violates due 22 process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). Mr. Brown’s burden is “especially 23 heavy” in that “[a]n omission, or an incomplete instruction is less likely to be prejudicial than a 24 misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977). 25 As Judge Peterson noted, and this Court agrees, “none of the independent pieces of 26 evidence cited in [Mr. Brown’s] materials undermine the Court of Appeals’ conclusion that the 1 evidence did not show [Mr. Brown] committed only the inferior degree offense of third-degree 2 assault to the exclusion of the greater offense of second-degree assault.” (Dkt. No. 16 at 11 3 (emphasis in original).) Therefore, it was not an unreasonable determination of the facts for the 4 Court of Appeals to conclude that the inferior degree instruction was not required. See State v. 5 Brown, 5 Wash. App. 2d 1037, slip op. at 4 (Wash. App. 2018). Accordingly, Mr. Brown fails to 6 meet his burden to demonstrate that he is entitled to § 2254 habeas relief on the basis of a Due 7 Process violation. 8 Mr. Brown also takes issue with Judge Peterson’s recommendation on his ineffective 9 assistance of counsel claim, as it relates to the failure to argue for a lesser-degree instruction. The 10 Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel. 11 Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts evaluate claims of ineffective 12 assistance of counsel under the two-prong test set forth in Strickland. Under that test, a petitioner 13 must prove that (1) counsel’s performance fell below an objective standard of reasonableness 14 and (2) a reasonable probability exists that, but for counsel’s error, the result of the proceedings 15 would have been different. Id. at 687–94. 16 Mr. Brown argues that counsel’s performance at trial was ineffective in that counsel 17 asked for a lesser-included offense instruction, rather than a lesser-degree instruction for third- 18 degree assault. (Dkt. No. 23 at 18–19.) But even if the Court of Appeals’ legal decision on the 19 issue is not entitled to deference here, its factual determination is. And on this basis, Mr. 20 Brown’s § 2254 claim fails. He has not shown that he presented sufficient evidence to establish 21 the factual prerequisite for a lesser-degree instruction, as described above. Accordingly, he 22 cannot meet the second prong under Strickland to establish ineffective assistance of counsel. 23 2. Certificate of Appealability 24 A petitioner may appeal a district court’s dismissal of his federal habeas petition only 25 after obtaining a certificate of appealability (“COA”) from a district or circuit judge. A COA 26 may issue only where a petitioner has made a “substantial showing of the denial of a 1 constitutional right.” 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard “by 2 demonstrating that jurists of reason could disagree with the district court’s resolution of his 3 constitutional claims or that jurists could conclude issues presented are adequate to deserve 4 encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here, the 5 Court agrees with Judge Peterson’s recommendation. Mr. Brown has not demonstrated that 6 reasonable jurists could conclude the issues presented deserve encouragement to proceed further 7 and, accordingly, there is no basis to grant a COA. 8 C. Motion for Leave to File Overlength Briefs 9 Objections to an R&R ordinarily shall not exceed 12 pages. W.D. Wash. Local Civ. R. 10 72. However, Mr. Brown moved for leave to file briefs totaling 23 pages. (Dkt. No. 25.) While 11 the additional pages were not necessary to adequately present his objections, given that he is 12 proceeding pro se in this matter, the Court finds cause to grant leave for the additional pages 13 sought by Mr. Brown. 14 III. CONCLUSION 15 For the foregoing reasons, the Court hereby FINDS and ORDERS as follows: 16 1. Petitioner’s objections (Dkt. Nos. 23, 24) to the R&R are OVERRULED; 17 2. The Court APPROVES and ADOPTS the R&R (Dkt. No. 16); 18 3. The habeas petition (Dkt. No. 7) and this action are DISMISSED with prejudice; 19 4. Petitioner is DENIED issuance of a certificate of appealability on all claims; 20 5. Petitioner’s motion for leave to file overlength briefs (Dkt. No. 25) is GRANTED; 21 and 22 6. The Clerk is DIRECTED to send copies of this order to the parties and to Judge 23 Peterson. 24 // 25 // 26 // 1 DATED this 15th day of March 2021. A 2 3 4 John C. Coughenour 5 UNITED STATES DISTRICT JUDGE

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