THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DARREL LORNE HARRIS, CASE NO. C20-6167-JCC 10 Petitioner, ORDER ADOPTING REPORT 11 AND RECOMMENDATION v. 12 RON HAYNES, 13 Respondent. 14
15 This matter comes before the Court on Petitioner Darrel Harris’s § 2254 habeas corpus 16 petition. (Dkt. No. 1.) The Honorable J. S. Kate Vaughan, United States Magistrate Judge, issued 17 a 59-page Report and Recommendation (“R&R”) (Dkt. No. 19) exhaustively reviewing 18 Petitioner’s 14 grounds for habeas relief. She advises that the Court deny the petition. (Id.) 19 Petitioner objects to the R&R. (Dkt. No. 20.) For the reasons described below, the Court hereby 20 OVERRULES Petitioner’s objections, ADOPTS the R&R, and DENIES with prejudice the 21 petition for writ of habeas corpus. 22 I. BACKGROUND 23 Petitioner seeks relief under 28 U.S.C. § 2254 from a 2015 Pierce County Superior Court 24 judgment and sentence. (See Dkt. No. 1.) He was found guilty by jury trial for indecent liberties, 25 rape of a child, and first degree child molestation. (Dkt. No. 19 at 2, 6.) The R&R lays out the 26 relevant facts of that case, as well as the state court remedies to which Petitioner availed himself 1 before filing his federal habeas petition. (See Dkt. No. 19 at 2–7.) The Court will not repeat them 2 here. 3 II. DISCUSSION 4 A. Legal Standard 5 A district court must conduct a de novo review of those portions of a magistrate judge’s 6 R&R to which a party properly objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A party 7 properly objects when the party files “specific written objections” to the magistrate judge’s R&R 8 as required under Federal Rule of Civil Procedure 72(b)(2). In contrast, general objections or 9 summaries of arguments previously presented have the same effect as no objection at all, since 10 they do not focus the Court’s attention on any specific issues for review. Howard v. Sec’y of 11 Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). This Court’s consideration of such 12 “objections” would entail de novo review of the entire report, rendering the referral to the 13 magistrate judge useless and causing a duplication of time and effort that wastes judicial 14 resources and contradicts the purposes of the Magistrates Act. Id. Accordingly, de novo review is 15 not required when a party fails to direct the court to a specific error in the report and 16 recommendation. Strawbridge v. Sugar Mountain Resort, Inc., 243 F.Supp.2d 472, 475 17 (W.D.N.C. 2003). 18 B. Proper Exhaustion of Prosecutorial Misconduct Claims 19 Grounds 4–8 of the petition concern claims of prosecutorial misconduct. (Dkt. No. 19 at 20 8–9.) Judge Vaughan correctly concludes that Petitioner failed to properly exhaust these grounds, 21 and that the claims are now technically exhausted and procedurally barred. (Dkt. No. 19 at 11.) 22 Specifically, she concludes that Petitioner failed to present Grounds 4–8 as federal constitutional 23 violations.1 (Id.) 24 25 1 Judge Vaughan also concludes, with respect to claims 4, 5, 7, and 8, that Petitioner 26 failed to present the same bases for these claims in the Washington Supreme Court. (Dkt. No. 19 at 11.) As the court agrees that Petitioner has failed to satisfy the “fair presentation” requirement 1 The “fair presentation” requirement for exhaustion purposes cannot be satisfied unless it 2 is “clear from the petition filed at each level in the state court system that the petitioner is 3 claiming the violation of the federal constitution that the petitioner subsequently claims in the 4 federal habeas petition.” Galvan v. Alaska Dep’t of Corrections, 397 F.3d 1198, 1204 (9th Cir. 5 2005). “For a federal issue to be presented by the citation of a state decision dealing with both 6 state and federal issues relevant to the claim, the citation must be accompanied by some clear 7 indication that the case involves federal issues.” Casey v. Moore, 386 F.3d 896, 912 n.13 (9th 8 Cir. 2004). 9 Petitioner claims he preserved a federal issue because he cited to cases that relied upon 10 federal authorities in his state court petitions. (Dkt. No. 20 at 13.) He asserts “[w]hile perhaps 11 less than ideal, these authorities are sufficient to preserve the issue.” (Id.) But Judge Vaughan did 12 not overlook Petitioner’s use of these cases. Instead, she disagrees that they are sufficient, 13 pointing out that he only cited to state law cases without “clearly indicat[ing] that the state cases 14 cited involve federal issues.” (Dkt. No. 19 at 13.) Petitioner does not claim that he did so 15 indicate. 16 Accordingly, Petitioner’s objections regarding Grounds 4–8 are OVERRULED. 17 C. Ineffective Assistance of Counsel Claims 18 Petitioner’s grounds 9–14 seek habeas relief based on ineffective assistance of counsel. 19 (Dkt. No. 19 at 9.) Judge Vaughan concludes that each of these claims fails under a Strickland 20 analysis. (See Dkt. No. 19 at 43, 49, 56 (citing Strickland v. Washington, 466 U.S. 668 (1984)).) 21 Further, Judge Vaughan notes that “even if there were some question as to whether defense 22 counsel’s performance was deficient under Strickland, the Court cannot conclude that the state 23 court’s determination[s were themselves] an unreasonable application of Strickland.” (Dkt. Nos. 24 19 at 43, 49, 56.)
25 26 for exhaustion purposes, see infra, it declines to analyze Petitioner’s objection to the second means by which some of these grounds were not properly exhausted. 1 Petitioner begins his objection to the R&R’s conclusions on grounds 10–14 by stating 2 “[t]he argument is set forth in prior briefing,” but that he “would emphasize, however, the need 3 for an evidentiary hearing.” (Dkt. No. 20 at 13.) Indeed, Petitioner also argued the need for an 4 evidentiary hearing in his habeas briefing, (see Dkt. No. 15 at 22–23), and Judge Vaughan 5 addressed it in her R&R. (Dkt. No. 19 at 57–58). Petitioner’s purported objection merely 6 summarizes arguments previously presented. Accordingly, de novo review is not warranted and 7 Petitioner’s objection regarding Grounds 10–14 is OVERRULED. See Strawbridge, 243 8 F.Supp.2d at 475. 9 Petitioner’s objection regarding ground 9—that failing to object to the prosecutor’s 10 remarks constituted ineffective assistance of counsel—similarly notes “[t]he argument is set 11 forth sufficiently [in Petitioner’s] response to the State’s answer.” (Dkt. No. 20 at 13.) His sole 12 new argument is that Judge Vaughn incorrectly applied the facts of the case by relying upon 13 cases where “not objecting was ineffective because the objection was meritless or because it 14 might appear desperate or hyper-technical to the jury.” (Id. (citing Dkt. No. 19 at 35).) 15 Petitioner relies on State v. Thierry, 360 P.3d 940
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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE 9 DARREL LORNE HARRIS, CASE NO. C20-6167-JCC 10 Petitioner, ORDER ADOPTING REPORT 11 AND RECOMMENDATION v. 12 RON HAYNES, 13 Respondent. 14
15 This matter comes before the Court on Petitioner Darrel Harris’s § 2254 habeas corpus 16 petition. (Dkt. No. 1.) The Honorable J. S. Kate Vaughan, United States Magistrate Judge, issued 17 a 59-page Report and Recommendation (“R&R”) (Dkt. No. 19) exhaustively reviewing 18 Petitioner’s 14 grounds for habeas relief. She advises that the Court deny the petition. (Id.) 19 Petitioner objects to the R&R. (Dkt. No. 20.) For the reasons described below, the Court hereby 20 OVERRULES Petitioner’s objections, ADOPTS the R&R, and DENIES with prejudice the 21 petition for writ of habeas corpus. 22 I. BACKGROUND 23 Petitioner seeks relief under 28 U.S.C. § 2254 from a 2015 Pierce County Superior Court 24 judgment and sentence. (See Dkt. No. 1.) He was found guilty by jury trial for indecent liberties, 25 rape of a child, and first degree child molestation. (Dkt. No. 19 at 2, 6.) The R&R lays out the 26 relevant facts of that case, as well as the state court remedies to which Petitioner availed himself 1 before filing his federal habeas petition. (See Dkt. No. 19 at 2–7.) The Court will not repeat them 2 here. 3 II. DISCUSSION 4 A. Legal Standard 5 A district court must conduct a de novo review of those portions of a magistrate judge’s 6 R&R to which a party properly objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). A party 7 properly objects when the party files “specific written objections” to the magistrate judge’s R&R 8 as required under Federal Rule of Civil Procedure 72(b)(2). In contrast, general objections or 9 summaries of arguments previously presented have the same effect as no objection at all, since 10 they do not focus the Court’s attention on any specific issues for review. Howard v. Sec’y of 11 Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). This Court’s consideration of such 12 “objections” would entail de novo review of the entire report, rendering the referral to the 13 magistrate judge useless and causing a duplication of time and effort that wastes judicial 14 resources and contradicts the purposes of the Magistrates Act. Id. Accordingly, de novo review is 15 not required when a party fails to direct the court to a specific error in the report and 16 recommendation. Strawbridge v. Sugar Mountain Resort, Inc., 243 F.Supp.2d 472, 475 17 (W.D.N.C. 2003). 18 B. Proper Exhaustion of Prosecutorial Misconduct Claims 19 Grounds 4–8 of the petition concern claims of prosecutorial misconduct. (Dkt. No. 19 at 20 8–9.) Judge Vaughan correctly concludes that Petitioner failed to properly exhaust these grounds, 21 and that the claims are now technically exhausted and procedurally barred. (Dkt. No. 19 at 11.) 22 Specifically, she concludes that Petitioner failed to present Grounds 4–8 as federal constitutional 23 violations.1 (Id.) 24 25 1 Judge Vaughan also concludes, with respect to claims 4, 5, 7, and 8, that Petitioner 26 failed to present the same bases for these claims in the Washington Supreme Court. (Dkt. No. 19 at 11.) As the court agrees that Petitioner has failed to satisfy the “fair presentation” requirement 1 The “fair presentation” requirement for exhaustion purposes cannot be satisfied unless it 2 is “clear from the petition filed at each level in the state court system that the petitioner is 3 claiming the violation of the federal constitution that the petitioner subsequently claims in the 4 federal habeas petition.” Galvan v. Alaska Dep’t of Corrections, 397 F.3d 1198, 1204 (9th Cir. 5 2005). “For a federal issue to be presented by the citation of a state decision dealing with both 6 state and federal issues relevant to the claim, the citation must be accompanied by some clear 7 indication that the case involves federal issues.” Casey v. Moore, 386 F.3d 896, 912 n.13 (9th 8 Cir. 2004). 9 Petitioner claims he preserved a federal issue because he cited to cases that relied upon 10 federal authorities in his state court petitions. (Dkt. No. 20 at 13.) He asserts “[w]hile perhaps 11 less than ideal, these authorities are sufficient to preserve the issue.” (Id.) But Judge Vaughan did 12 not overlook Petitioner’s use of these cases. Instead, she disagrees that they are sufficient, 13 pointing out that he only cited to state law cases without “clearly indicat[ing] that the state cases 14 cited involve federal issues.” (Dkt. No. 19 at 13.) Petitioner does not claim that he did so 15 indicate. 16 Accordingly, Petitioner’s objections regarding Grounds 4–8 are OVERRULED. 17 C. Ineffective Assistance of Counsel Claims 18 Petitioner’s grounds 9–14 seek habeas relief based on ineffective assistance of counsel. 19 (Dkt. No. 19 at 9.) Judge Vaughan concludes that each of these claims fails under a Strickland 20 analysis. (See Dkt. No. 19 at 43, 49, 56 (citing Strickland v. Washington, 466 U.S. 668 (1984)).) 21 Further, Judge Vaughan notes that “even if there were some question as to whether defense 22 counsel’s performance was deficient under Strickland, the Court cannot conclude that the state 23 court’s determination[s were themselves] an unreasonable application of Strickland.” (Dkt. Nos. 24 19 at 43, 49, 56.)
25 26 for exhaustion purposes, see infra, it declines to analyze Petitioner’s objection to the second means by which some of these grounds were not properly exhausted. 1 Petitioner begins his objection to the R&R’s conclusions on grounds 10–14 by stating 2 “[t]he argument is set forth in prior briefing,” but that he “would emphasize, however, the need 3 for an evidentiary hearing.” (Dkt. No. 20 at 13.) Indeed, Petitioner also argued the need for an 4 evidentiary hearing in his habeas briefing, (see Dkt. No. 15 at 22–23), and Judge Vaughan 5 addressed it in her R&R. (Dkt. No. 19 at 57–58). Petitioner’s purported objection merely 6 summarizes arguments previously presented. Accordingly, de novo review is not warranted and 7 Petitioner’s objection regarding Grounds 10–14 is OVERRULED. See Strawbridge, 243 8 F.Supp.2d at 475. 9 Petitioner’s objection regarding ground 9—that failing to object to the prosecutor’s 10 remarks constituted ineffective assistance of counsel—similarly notes “[t]he argument is set 11 forth sufficiently [in Petitioner’s] response to the State’s answer.” (Dkt. No. 20 at 13.) His sole 12 new argument is that Judge Vaughn incorrectly applied the facts of the case by relying upon 13 cases where “not objecting was ineffective because the objection was meritless or because it 14 might appear desperate or hyper-technical to the jury.” (Id. (citing Dkt. No. 19 at 35).) 15 Petitioner relies on State v. Thierry, 360 P.3d 940 (2015), arguing the state court “has 16 already determined the type of misconduct here was prejudicial” and thus there “was no strategic 17 value in staying quiet.” (Id.) But Thierry discusses prosecutorial misconduct where the efficacy 18 of a curative instruction was not at issue because defense counsel did timely object, not 19 ineffective assistance of counsel for failure to object. 360 P.3d at 947. Petitioner acknowledges 20 that in his underlying state court case, the appellate court held “the prosecutor engaged in 21 misconduct but found that a timely objection would have been curative. As to the related 22 ineffective assistance of counsel claim, the court of appeals speculated that defense counsel may 23 have had reasons for not objecting.” (Dkt. No. 20 at 12 (discussing Dkt No. 7-1 at Ex. 2).) This 24 clearly differs from Petitioner’s conclusion that there could be “no strategic value in staying 25 quiet” in the context of an ineffective assistance of counsel claim. (Dkt. No. 20 at 13.) Judge 26 Vaughan considered this state court determination in her R&R. (Dkt. No. 19 at 41–43.) As she 1 correctly reasons, the Court cannot conclude this determination was an unreasonable application 2 of Strickland. Petitioner’s objection regarding Ground 9 is OVERRULED. 3 D. Remaining Sixth Amendment Claims 4 Petitioner’s remaining objections concern grounds 1–3. (Dkt. No. 20 at 2.) 5 1. Ground 1 and 2 6 In grounds 1 and 2, Petitioner argues that the trial court violated his Sixth Amendment 7 rights by excluding (1) video evidence of his interactions with one of the victims, and 8 (2) testimony from his investigator regarding the layout of Petitioner’s home. (See Dkt. No. 1 at 9 23–28.) 10 The video evidence in question was home security footage showing one of the victims, 11 K.M., interacting with Petitioner the morning of the assault. (Dkt. No. 20 at 6–7.) Petitioner 12 alleges in the video that K.M. signals to him to walk back from the car so that she can give him a 13 hug. (Id. at 7.) But K.M. testified at trial that she was so scared she gave Petitioner a hug so he 14 wouldn’t know anything was wrong but could not recall when asked whether she had called him 15 back before giving him the hug. (Dkt. No. 20 at 7.) Petitioner objects to Judge Vaughan’s 16 conclusion that ground 1 lacks merit. He argues Judge Vaughan mistakenly relied on case law 17 addressing whether evidence excluded under Evidence Rule 403 gives rise to a federal challenge 18 because here, the trial court concluded the evidence was not relevant under Evidence Rule 401. 19 (Dkt. No. 20 at 8.) But this ignores the state appellate court’s analysis. Reviewing the trial 20 court’s decision for abuse of discretion, the court reasoned that the footage was cumulative of 21 both Petitioner and K.M.’s testimony, meaning it was well within the trial court’s discretion to 22 exclude it. (Dkt. No. 19 at 23 (citing Dkt. No. 7-1 at Ex. 2).) 23 Thus, Judge Vaughan correctly noted that “Petitioner fails to demonstrate the state 24 appellate courts’ rejection of the claim that Petitioner’s right to present a defense was violated 25 by the state evidentiary ruling excluding the video was contrary to or an unreasonable application 26 of clearly established federal law or an unreasonable determination of the facts.” (Id. at 24 1 (emphasis added).) 2 Similarly, the trial court and appellate court in the underlying state action found the 3 investigator’s testimony cumulative of Petitioner’s testimony and the photos he took of the 4 layout of the room. (Dkt. No. 19 at 23 (citing Dkt. No 7-1 at Ex. 2).) Petitioner takes issue with 5 Judge Vaughan questioning why the jury would be more likely to believe the investigator over 6 Petitioner. (Dkt. No. 20 at 10.) This was not Judge Vaughan’s reasoning. Judge Vaughan found 7 that again, Petitioner had failed to demonstrate the state appellate courts’ rejection of his claim 8 was contrary to or an unreasonable application of clearly established federal law or an 9 unreasonable determination of the facts. (Dkt. No. 19 at 28.) This purported objection fails to 10 raise any issues specific to the R&R, rendering it no objection at all. See Strawbridge, 243 11 F.Supp.2d at 475. 12 Accordingly, Petitioner’s objections regarding grounds 1 and 2 are OVERRULED. 13 2. Ground 3 14 Ground 3 concerns the trial court’s order that Petitioner refrain from displaying emotion 15 in the courtroom after his behavior became disruptive. (Dkt. 20 at 11.) Petitioner merely objects, 16 without citation to any authority, that the court isn’t allowed to do that and that it should be 17 considered a per se violation of his rights. Again, this is not enough to trigger de novo review. 18 See Strawbridge, 243 F.Supp.2d at 475. Petitioner’s objection regarding ground 3 is 19 OVERRULED. 20 E. Certificate of Appealability 21 A petitioner may appeal dismissal of his federal habeas petition only after obtaining a 22 certificate of appealability (“COA”) from a district or circuit judge, which may issue only upon a 23 “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). A petitioner 24 satisfies this standard “by demonstrating that jurists of reason could disagree with the district 25 court’s resolution of his constitutional claims or that jurists could conclude issues presented are 26 adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 1 (2003). This Court agrees with Judge Vaughan’s recommendation to deny the issuance of a 2 COA. Petitioner has not demonstrated that reasonable jurists could conclude the issues presented 3 deserve encouragement to proceed further. 4 For the foregoing reasons, Petitioner’s objection (Dkt. No. 20) is OVERRULED. The 5 Court thus ADOPTS the R&R (Dkt. No. 19) and DISMISSES with prejudice Petitioner’s 6 petition for writ of habeas corpus (Dkt. No. 1.) A COA is DENIED. 7 8 DATED this 9th day of December 2021. 9 10 11 A 12 13 14 John C. Coughenour 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26