Jackson v. Uttecht

• Court: District Court, E.D. Washington
• Decided: July 25, 2019
• Docket: 2:18-cv-00108
• Status: Unknown

Opinion

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON 2 Jul 25, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 LYNN L. JACKSON, 9 Petitioner, NO. 2:18-cv-00108-SAB 10 v. 11 JEFFREY A. UTTECHT, ORDER DENYING PETITION 12 Respondent. FOR FEDERAL HABEAS 13 RELIEF 14 Before the Court is Lynn Jackson’s (Petitioner) Petition for Writ of Habeas 15 Corpus by a Person in State Custody, ECF No. 3. Petitioner is an inmate at Coyote 16 Ridge Correction Center, where he is serving a sentence for second-degree 17 attempted rape of a child and fourth-degree assault. Petitioner requests this Court 18 issue a writ of habeas corpus, arguing his conviction was obtained in violation of 19 state laws and the United States Constitution. For the following reasons, the Court 20 denies the petition for federal habeas relief. 21 BACKGROUND 22 The Washington Court of Appeals1 summarized the facts underlying 23 Petitioner’s conviction as follows:

24 Mr. Jackson was engaged to marry DM. She had a 13–year–old 25 daughter, MM. The charged incident occurred on March 15, 2014. 26 That day Mr. Jackson drove MM from her mother's house in Pullman to a house he owned in Clarkston. The house was one that he had 27

28 1 State v. Jackson, 191 Wash. App. 1023 (2015). 1 purchased to repair and re-sell. Only two rooms were furnished. MM 2 went in the bedroom to use the computer.

3 Mr. Jackson came in and laid down on the bed, saying that he had a 4 headache. He asked MM to join him on the bed. She got on the bed and played a game on her telephone. He started tickling her and she 5 fell off the bed to the floor. There she saw a handgun. Mr. Jackson 6 got up, locked the door to the bedroom, and picked the gun up. He threw2 the child onto the bed and put the gun next to her. He climbed 7 into the bed and started kissing her chest and put his hand under her 8 shirt. She objected and tried to push him off; he told her that he had not planned on doing anything, but he could not help himself. He then 9 asked how she would react if he raped her. MM continued to struggle. 10 Mr. Jackson started crying and got off her. He took the gun and handed it to MM, asking her to shoot him. She refused and pushed the 11 gun back at him. After both calmed down, they left the house to shop. 12 MM did not report the incident because she knew it would prevent her mother from marrying Mr. Jackson. 13

14 Mr. Jackson had set a game camera up in the bedroom to periodically 15 take pictures of activities on the bed. Much of the encounter with MM was captured by the camera and downloaded to a computer. At trial, 16 MM described what was happening in the pictures.3 17 DM, MM, and Mr. Jackson went to Las Vegas for the older couple to 18 marry on April 1. That morning, Mr. Jackson was alone with MM and 19 told her that if he married DM, he would end up raping MM and encouraged her to tell that to her mother. The child then told her 20 mother at breakfast about the threat and disclosed information about a 21 series of sexual encounters over the years. The wedding was called off and DM returned to Pullman with her daughter on April 3. Prior to 22 leaving Las Vegas, she called attorneys on the advice of her sisters. 23 One of the attorneys then arranged for the two to have a joint meeting 24 2 [Court’s footnote 1] The trial judge later described this as a “body-slam.” Report 25 of Proceedings at 265. The judge also noted that the entire incident lasted nearly 26 an hour. 27 3 [Court’s footnote 2] The camera also captured sexual encounters between Mr. Jackson and three women, one of whom was DM. None of the photographs were 28 used at trial. 1 with both Idaho and Washington detectives in Lewiston, Idaho, on 2 April 4.4

3 Present to meet with the pair were Detective Jackie Nichols of the 4 Asotin County Sheriff's Office, a victim advocate from Asotin County, and Lewiston Police Department Detective Jason Leavitt. 5 MM preferred to talk solely with the female detective, so Detective 6 Nichols interviewed her while Detective Leavitt spoke with DM. Leavitt requested that DM call Mr. Jackson to talk about the incidents 7 when MM was younger in Lewiston and record the conversation in 8 the detective's presence. Detective Nichols was advised about the plan and told DM to avoid any discussion of incidents in Washington. 9 DM and Mr. Jackson spoke with Leavitt listening in and passing 10 notes to DM suggesting questions to ask. Detective Nichols in the other room could “basically hear” what was going on. Report of 11 Proceedings (RP) at 164–165. 12 After the telephone conversation and the interview with MM were 13 complete, the two detectives went to Mr. Jackson's house in Clarkston 14 and spoke with him. He agreed to allow the interview to be recorded. 15 He told the detectives that he had fallen in love with MM and had asked her on March 15 what she would do if he attempted to rape her. 16 When she began crying, he let go of her wrists and handed her a gun 17 and asked her to shoot him. She threw it away. He also discussed earlier incidents in Washington and Idaho that MM had discussed 18 with the detective. 19 Charges of attempted second degree child rape and second degree 20 assault, both alleged to have been committed while armed with a 21 firearm, were filed in Asotin County Superior Court. Mr. Jackson waived his right to a jury trial and the matter was set for bench trial. 22 Prior to the trial, the defense filed several motions in limine. Included 23 in the motions were requests that the recording of the conversation between DM and Mr. Jackson not be played at trial because it was 24 made in violation of RCW 9.73.030 and that the State's witnesses not 25 discuss the contents of the conversation. The parties debated whether 26

27 4 [Court’s footnote 3] The disclosures indicated that some of the encounters occurred in Lewiston where the family had lived when MM was younger. Clerk’s 28 Papers at 3. 1 DM was acting as an agent of the State of Washington when she 2 placed the phone call. The court reserved its ruling on those two motions to trial, although the prosecutor indicated he would not be 3 playing the recording because it was too long. 4 DM testified at trial concerning the circumstances of the phone call 5 she made to Mr. Jackson. When the prosecutor asked for a 6 preliminary ruling that DM could testify to the contents of the conversation, the trial judge indicated not “at this time.” The State 7 then ceased its questioning of DM and did not call Detective Leavitt. 8 The contents of the conversation were not admitted at trial.

9 Detective Nichols did testify concerning her interviews of both MM 10 and Mr. Jackson. She was the third and final witness for the State. Mr. Jackson took the stand in his own defense as the sole defense 11 witness. He admitted asking the rape question of MM and pushing 12 her onto the bed, but denied that anything else occurred. When he saw that she was crying, he pulled the loaded gun out from under the 13 covers and asked her to shoot him. He also confirmed that the 14 incident ended after he realized that he just could not go forward with 15 it. “I could not hurt her.” The trial court convicted Petitioner of second-degree attempted rape of a 16 child and fourth-degree assault. The trial court sentenced Petitioner to 120 months 17 to life in prison. 18 PROCEDURAL HISTORY 19 Petitioner raised the following issues on direct appeal to the Washington 20 Court of Appeals: 21

22 1. Whether the trial court erred when it allowed the State to present 23 incriminating statements elicited by an Asotin County Sherriff’s detective immediately after intercepting a private conversation in 24 violation of the Washington Privacy Act? 25 2. Whether the trial court erred in failing to hold a CrR 3.5 hearing to determine the admissibility of Mr. Jackson’s statement to law 26 enforcement; 27 3. Whether the trial court erred when it found Mr. Jackson was “armed” with a firearm for purposes of RCW 9.94A.533(b)? 28 1 2 The Washington Court of Appeals affirmed Petitioner’s convictions on 3 November 19, 2015. State v. Jackson, 191 Wash. App. 1023 (2015). The 4 Washington Supreme Court denied Petitioner’s request for discretionary review on 5 April 27, 2016. 6 COLLATERAL PROCEEDINGS 7 Petitioner filed a Personal Restraint Petition (“PRP”) with the Washington 8 Court of Appeals on October 27, 2016. Petitioner raised the following issues in the 9 PRP: 10 1. Whether the trial judge violated WAC code of judicial conduct rule 11 2.9 ex parte communications; 12 2. Whether the investigating detectives violated the Washington Privacy 13 Act RCW 9.73.030 and RCW 9.73.060; 14 3. Invalid consent was given to be interrogated and violation of the Fifth 15 Amendment; 16 4. Prosecutor misconduct / false evidence; 17 5. Ineffective assistance of counsel. 18 The Court of Appeals dismissed Petitioner’s PRP on April 18, 2017. The 19 Washington Supreme Court denied Petitioner’s request for discretionary review on 20 October 24, 2017. The Washington Court of Appeals issued a Certificate of 21 Finality on January 9, 2018. 22 Petitioner timely5 filed a petition for federal habeas relief under 28 U.S.C. § 23 2254. 24 // 25 // 26

27 5 The parties do not dispute the timeliness of the Petition, nor are there any facts 28 that would indicate it is untimely. 1 STANDARD 2 A petition for writ of habeas corpus on behalf of a prisoner in state custody 3 is brought under 28 U.S.C. § 2254. Relief under § 2254 is limited to “violation[s] 4 of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). 5 A habeas corpus petition may be granted with respect to any claim adjudicated on 6 the merits in state court only if the state court’s decision was “contrary to,” or 7 involved an “unreasonable application of,” clearly established federal law as 8 determined by the Supreme Court, or if the decision was based on an unreasonable 9 determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d). 10 Only “clearly established Federal law, as determined by the Supreme Court 11 of the United States,” can be the basis for relief under the AEDPA. Campbell v. 12 Rice, 408 F.3d 1166, 1170 (9th Cir. 2005). “Clearly established Federal law” is the 13 “governing legal principle or principles set forth by the Supreme Court at the time 14 the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71 (2003). 15 Under the “contrary to” clause, a federal court may grant habeas relief only 16 if “the state court arrives at a conclusion opposite to that reached by the Supreme 17 Court on a question of law, or if the state court decides a case differently than the 18 Supreme Court has on a set of materially indistinguishable facts.” Williams v. 19 Taylor, 529 U.S. 362, 412-13 (2000). Under the “unreasonable application” 20 clause, a federal court may grant habeas relief only if “the state court identifies the 21 correct governing legal principle from the Supreme Court’s decision, but 22 unreasonably applies that principle to the facts of the prisoner’s case.” Id. A 23 federal court may also grant a writ of habeas corpus if a material factual finding of 24 the state court reflects “an unreasonable determination of the facts in light of the 25 evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). 26 If a habeas petitioner challenges the determination of a factual issue by a 27 state court, such determination shall be presumed correct, and the petitioner has 28 1 the burden of rebutting the presumption of correctness by clear and convincing 2 evidence. 28 U.S.C. § 2254(e)(1). 3 28 U.S.C. § 2254(d) sets forth a “highly deferential standard for evaluating 4 state-court rulings.” Lindh v. Murphy, 521 U.S. 320, 333 n. 7 (1997). “As a 5 condition for obtaining habeas corpus from a federal court, a state prisoner must 6 show that the state court’s ruling on the claim being presented in federal court was 7 so lacking in justification that there was an error well understood and 8 comprehended in existing law beyond any possibility for fair-minded 9 disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). 10 EVIDENTIARY HEARING 11 A federal habeas court’s review under 28 U.S.C. § 2254(d)(1) is limited to 12 the record that was before the state court that adjudicated the claim on the merits. 13 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). “Because the deferential standards 14 prescribed by § 2254 control whether to grant habeas relief, a federal court must 15 take into account those standards in deciding whether an evidentiary hearing is 16 appropriate.” Schriro v Landrigan, 550 U.S. 465, 474 (2007). “[A]n evidentiary 17 hearing is not required on issues that can be resolved by reference to the state 18 court record.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). Stated 19 differently, if the state court record “precludes habeas relief” under § 2254(d), “a 20 district court is ‘not required to hold an evidentiary hearing.’ ” Cullen, 563 U.S. at 21 183 (quoting Schriro, 550 U.S. at 474. 22 If a petitioner has failed to develop the factual basis of a claim in state court, 23 a federal habeas court shall not hold an evidentiary hearing on the claim unless the 24 petitioner shows: (A) the claim relies on-- 25 (i) a new rule of constitutional law, made retroactive to cases on 26 collateral review by the Supreme Court, that was previously unavailable; or 27 (ii) a factual predicate that could not have been previously discovered 28 through the exercise of due diligence; and 1 (B) the facts underlying the claim would be sufficient to establish by clear 2 and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 3 28 U.S.C. § 2254(e)(2). “[A] failure to develop the factual basis of a claim is not 4 established unless there is lack of diligence, or some greater fault, attributable to 5 the prisoner or the prisoner’s counsel.” Williams v. Taylor, 529 U.S. 420, 432 6 (2000). 7 ISSUES 8 Petitioner raises the following grounds for federal habeas relief: 9 1. RCW 9.73.030-.060; Silver Platter Doctrine, Idaho Code § 18-6702(2)(e), 10 18 U.S.C. § 2511(2)(d), and the Fourth Amendment; 11 2. Invalid Consent; 12 3. Prosecutor Misconduct – False Evidence and Testimony, Nepotism, 13 Conflict of Interest, Conspiracy to Defraud; and 14 4. Ineffective Assistance of Counsel. 15 DISCUSSION 16 1) RCW 9.73.030-.060; Silver Platter Doctrine, Idaho Code § 18- 17 6702(2)(e), 18 U.S.C. § 2511(2)(d), and the Fourth Amendment. 18 Petitioner’s first ground of relief stems from an alleged violation of the 19 Washington Privacy Act, Wash. Rev. Code § 9.73.030. Petitioner argues the 20 Washington Privacy Act was violated when Detective Nichols and Detective 21 Leavitt participated in recording a private telephone conversation between D.M. 22 and Petitioner. Petitioner claims that a violation of the Washington Privacy Act 23 resulted in a violation of the Silver Platter Doctrine; Idaho Code § 18-6702(2)(e); 24 18 U.S.C. § 2511(2)(d); and the Fourth Amendment. 25 Most of Petitioner’s claims fall outside the scope of federal habeas review 26 because they allege violations of state law. It is well established that “federal 27 habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 28 1 764, 780 (1990). Federal habeas review “is limited to deciding whether a 2 conviction violated the Constitution, laws or treaties of the United States.” Estelle 3 v. McGuire, 502 U.S. 62, 68 (1991). 4 Petitioner’s Fourth Amendment claim also fails because Petitioner was 5 given a fair opportunity to litigate the basis of his claim in state court. The United 6 States Supreme Court has instructed that “where the State has provided an 7 opportunity for full and fair litigation of a Fourth Amendment claim, the 8 Constitution does not require that a state prisoner be granted federal habeas corpus 9 relief on the ground that evidence obtained in an unconstitutional search or seizure 10 was introduced at his trial.” Stone v. Powell, 428 U.S. 465, 481 (1976). “The 11 relevant inquiry is whether petitioner had the opportunity to litigate his claim, not 12 whether he did in fact do so or even whether the claim was correctly decided.” 13 Newman v. Wengler, 790 F.3d 876, 880 (9th Cir. 2015). 14 In this case, the record shows Petitioner had a full and fair opportunity to 15 litigate his Fourth Amendment claim based on an alleged violation of the 16 Washington Privacy Act. Prior to trial, Petitioner’s trial counsel filed a motion in 17 limine requesting the trial court prohibit the prosecution from playing any 18 recorded conversation between Petitioner and D.M., and to prohibit any witness 19 from mentioning anything about the contents of the telephone call. ECF No. 7-2 at 20 16. Petitioner’s counsel also argued against the admissibility of the recording at a 21 pretrial motion hearing. ECF No. 7-4 at 115-122. While the trial court ultimately 22 did not rule on the issue, neither the recording nor the contents of the conversation 23 were ever admitted at trial. Jackson, 191 Wash. App. at *2. The Washington Court 24 of Appeals rejected Petitioner’s claim on appeal, finding no violation of the 25 Washington Privacy Act. Id. at *4. 26 Because Petitioner was afforded a full and fair opportunity to litigate the 27 basis of his Fourth Amendment claim, it falls outside the scope of federal habeas 28 review. Powell, 428 U.S. at 494. 1 2) Invalid Consent. 2 In his second ground for relief, Petitioner argues the State violated his Fifth 3 Amendment rights when the police interrogated him without first providing him 4 Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 479 (1966). 5 The Fifth Amendment provides that no person “shall be compelled in any 6 criminal case to be a witness against himself.” U.S. Const. amend. V. The 7 privilege against self-incrimination is applicable to the states through the Due 8 Process Clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 9 (1964). 10 The Supreme Court has established procedural safeguards that require 11 police to advise a criminal suspect of his rights, under the Fifth and Fourteenth 12 Amendments, prior to commencing a custodial interrogation. Miranda v. Arizona, 13 384 U.S. 436, 444 (1966). Police are required to advise criminal suspects of their 14 Miranda rights only when the person is subjected to custodial interrogation by 15 government officials. Thompson v. Keohane, 516 U.S. 99, 102 (1995). 16 An objective test is used to determine whether a suspect is “in custody” for 17 purposes of Miranda. Yarborough v. Alvarado, 541 U.S. 652, 662-63 (2004). 18 “[T]he initial determination of custody depends on the objective circumstances of 19 the interrogation, not on the subjective views harbored by either the interrogating 20 officers or the person being questioned.” Stansbury v. California, 511 U.S. 318, 21 323 (1994). Thus, to determine whether a suspect is “in custody,” federal courts 22 must examine “ ‘all of the circumstances surrounding the interrogation’ and 23 determine ‘how a reasonable person in the position of the individual being 24 questioned would gauge the breadth of his or her freedom of action.’ ” 25 Yarborough, 541 U.S. at 663 (quoting Stansbury, 511 U.S. at 322). 26 We turn now to the case before us and ask if the state court’s adjudication of 27 Petitioner’s claim was “contrary to,” or involved an “unreasonable application of,” 28 1 clearly established federal law when it concluded that Petitioner was not in 2 custody at the time of his interview with Detective Nichols and Detective Leavitt. 3 After the telephone conversation between D.M. and Petitioner, Detective 4 Nichols and Detective Leavitt went to Petitioner’s house to speak with him. When 5 they arrived at the house, Petitioner “ran over and unlocked the door” and told the 6 detectives “come on in.” ECF No. 7-4 at 304. Petitioner told the detectives that he 7 was “expecting” them. ECF No. 7-4 at 234. Petitioner agreed to speak to the 8 detectives and agreed to have their conversation recorded. ECF No. 7-4 at 304. 9 Petitioner stated that he agreed to this because he figured he did not have anything 10 to hide. Id. 11 During the interview, Petitioner told the detectives that he had fallen in love 12 with M.M. and had asked her on March 15, 2014, what she would do if he 13 attempted to rape her. Jackson, 191 Wash. App. at *2. When she began to cry, he 14 let go of her wrists and handed her a gun and asked her to shoot him. Id. She 15 pushed the gun away. Id. Petitioner also told the detectives incidents in 16 Washington and Idaho that M.M. had discussed with the detective. Id. The 17 detectives placed Petitioner in custody following the interview. ECF No. 7-4 at 18 243. 19 Petitioner did not challenge the admissibility of these statements in the trial 20 court. The statements were admitted through Detective Nichols’s testimony, ECF 21 No. 7-4 at 234-43, and Petitioner’s own testimony. ECF No. 7-4 at 303-06, 316- 22 17. 23 Petitioner challenged the admission of these statements for the first time on 24 direct appeal. Jackson, 191 Wash. App. at *3. The Washington Court of Appeals 25 found Petitioner failed to preserve the issue and failed to show that the admission 26 of these statements constituted a “manifest error affecting a constitutional right.” 27 Id. In the alternative, the Washington Court of Appeals determined Petitioner was 28 not “in custody” during his interview with the detectives because the interview 1 was conducted at Petitioner’s home at a time during which he was not under arrest. 2 Jackson, 191 Wash. App. at * 3 n.7. Consequently, the Court of Appeals found 3 Petitioner’s interview “cannot be likened to a formal arrest.” Id. 4 The record supports the Court of Appeals’ finding that that the 5 circumstances surrounding Petitioner’s interview do not rise to the level of a 6 custodial interrogation. The record shows that when the detectives arrived at his 7 home, Petitioner invited the detectives to come inside; told the detectives that he 8 was “expecting” them; agreed to the interview; and agreed to have the interview 9 recorded. Petitioner argues he was in custody during this interview because he 10 “had to ask for permission to use the restroom in his own home and was escorted 11 there by Detective Nichols.” Petitioner’s Addendum to Writ of Habeas Corpus at 12 13. Even if this allegation is true, it does not, on its own, demonstrate a restraint 13 on Petitioner’s freedom of movement to the degree associated with a formal arrest. 14 Stansbury, 511 U.S. at 32. Accordingly, Petitioner’s allegation fails to show that 15 the Court of Appeals’ decision was “contrary to” or involved an “unreasonable 16 application of” clearly established federal law. 17 3) Prosecutor Misconduct – False Evidence and Testimony, Nepotism, 18 Conflict of Interest, Conspiracy to Defraud. 19 a. False Evidence. 20 At Petitioner’s trial, the State introduced into evidence a disk containing six 21 hundred images captured by Petitioner’s game camera.6 ECF No. 7-2 at 49. The 22 photographs introduced at trial showed Petitioner picking M.M. up and throwing 23 her onto the bed, where he attempted to kiss her and touch her in various intimate 24

25 6 The game camera takes sequential still photographs every two seconds if 26 activated by motion. ECF No. 7-2 at 50. The trial court judge found the game 27 camera was specifically and intentionally positioned by Petitioner to capture any 28 action or motion occurring on the bed. Id. 1 places. ECF No. 7-2 at 50-51. The images also show Petitioner’s conduct 2 following the attack, where he can be seen hugging M.M. and placing his left hand 3 on her right buttock and cupping his hand around it. Id. He can be seen smiling in 4 the game camera photos at that time. Id. 5 Petitioner argues that at trial, the State portrayed these images to represent 6 two separate attempted rapes that occurred on the same day, two hours apart. 7 Petitioner argues the images look like they are taken on the same day because they 8 contain time/date stamps that suggest they are from the same day, and show 9 Petitioner and M.M. wearing the same set of clothing. However, Petitioner argues 10 one set of photographs was actually taken about two weeks prior to the other set of 11 photographs. 12 Petitioner argues that M.M.’s testimony at trial was completely false 13 because she changed her story to conform with the State’s theory of the case that 14 two attempted rapes happened on the same day, when in reality the images are 15 from two different days. 16 Petitioner’s claim on this issue was first raised in a PRP to the Washington 17 Court of Appeals. ECF No. 7-4 at 23-34. The Court of Appeals denied Petitioner’s 18 claim because he failed to object on this basis at trial, and that his assertions that 19 the photographs were taken on different days is “simply not supported by 20 objective evidence.” ECF No. 7-4 at 31. In its order denying discretionary review, 21 the Washington Supreme Court confirmed that Petitioner has no evidence to prove 22 the photographs depict events that took place on two different days. ECF No. 7-4 23 at 84. 24 Petitioner’s argument is that the photographs are evidence that M.M.’s 25 testimony is completely false, and the State committed misconduct in knowingly 26 presenting this false evidence at trial. 27 “[A] criminal defendant is denied due process of law when a prosecutor 28 either knowingly presents false evidence or fails to correct the record to reflect the 1 true facts when unsolicited false evidence is introduced at trial.” Hayes v. Brown, 2 399 F.3d 972, 984 (9th Cir. 2005). In Napue v. People of State of Illinois, the 3 Supreme Court held that a conviction obtained using knowingly perjured 4 testimony violates a criminal defendant’s due process, even when the testimony in 5 question was relevant only to the witness’s credibility. 360 U.S. 264, 269 (1959). 6 To succeed on a claim under Napue, a petitioner must show (1) the 7 testimony (or evidence) was actually false, (2) the prosecution knew or should 8 have known that the testimony was actually false, and (3) the false testimony was 9 material. Hayes, 399 F.3d at 984. 10 Petitioner fails to establish any of these three requirements. First, Petitioner 11 fails to offer any objective evidence to support his claim that the photographs 12 depict two incidents on two separate days. Second, Petitioner fails to show that the 13 prosecution knew or should have known that M.M.’s testimony was false. 14 Petitioner contends that because his public defender told him the photographs and 15 M.M.’s testimony was false, “it would stand to reason that the prosecutor knew as 16 well.” Petitioner’s Addendum to Writ of Habeas Corpus at 16. This is nothing 17 more than speculation. 18 Finally, Petitioner fails to show how this evidence is material. In assessing 19 materiality under Napue, the Court must determine whether there is “ ‘any 20 reasonable likelihood that the false testimony could have affected the judgment of 21 the jury.’ ” Hayes, 399 F.3d at 984 (quoting Belmontes v. Woodford, 350 F.3d 861, 22 881 (9th Cir. 2003)). Whether Petitioner attempted to rape M.M. twice on the 23 same day or on two separate occasions, it does not change the facts underlying 24 Petitioner’s conviction. Petitioner does not deny the conduct depicted in the 25 photographs, he merely challenges the State’s assertion that his conduct occurred 26 on the same date. 27 Accordingly, Petitioner’s false evidence claim is denied. 28 // 1 b. Nepotism, Conflict of Interest, Conspiracy to Defraud. 2 Petitioner requests a full investigation into an alleged conspiracy between 3 the trial judge, Asotin County Prosecutor, and detective investigating the case. 4 Petitioner’s claim consists of nothing more than speculation and is not appropriate 5 for federal habeas review. 6 4) Ineffective Assistance of Counsel. 7 The Sixth Amendment guarantees criminal defendants the right to effective 8 assistance of counsel. Yarborough v. Gentry, 540 U.S. 1, 4 (2003). To show that 9 this right was denied, a defendant must show both that “counsel’s performance 10 was deficient” and that “the deficient performance prejudiced the defense.” 11 Strickland v. Washington, 466 U.S. 668, 687 (1984). 12 To demonstrate deficient performance, a petitioner must show that counsel’s 13 “representation fell below an objective standard of reasonableness.” Strickland, 14 466 U.S. at 688. Courts apply a “strong presumption” that counsel’s performance 15 “falls within the wide range of reasonable professional assistance.” Id. at 689. 16 Courts evaluate “[t]he reasonableness of counsel’s performance … from counsel’s 17 perspective at the time of the alleged error and in light of all the circumstances.” 18 Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). 19 To demonstrate prejudice, a petitioner must show a “reasonable probability 20 that, but for counsel’s unprofessional errors, the result of the proceeding would 21 have been different.” Strickland, 466 U.S. at 694. 22 Establishing that a state court’s application of Strickland was unreasonable 23 under § 2254(d) is even more challenging. Harrington, 562 U.S. at 105. A “doubly 24 deferential” standard of review applies to federal habeas claims of ineffective 25 assistance of counsel. Knowles v Mirzayance, 556 U.S. 111, 123 (2009). “The 26 pivotal question [for a federal habeas court] is whether the state court’s application 27 of the Strickland standard was unreasonable. This is different from asking whether 28 defense counsel’s performance fell below Strickland’s standard.” Harrington, 562 1 U.S. at 101. “When § 2254(d) applies, …[t]he question is whether there is any 2 reasonable argument that counsel satisfied Strickland’s deferential standard.” Id. at 3 105. 4 Petitioner first raised his ineffective assistance of counsel claim in his PRP 5 to the Washington Court of Appeals. ECF No. 7-4 at 33. The Court of Appeals 6 found Petitioner had failed to establish both prongs of the Strickland test, 7 concluding that counsel’s “strategy at trial was to mitigate the overwhelming 8 evidence that he had attempted to sexually assault M.M. in a locked room on 9 March 15, 2014.” Id. The Court of Appeals noted that during cross examination of 10 the State’s witnesses and during direct examination of Petitioner, counsel tried to 11 establish that Petitioner was tempted to assault M.M. but resisted that temptation 12 because he did not want to harm her. Id. Petitioner’s statements to the detectives 13 supported this trial strategy. Challenging the admissibility of these statements 14 would therefore have undermined the defense. Id. Even if counsel would have 15 challenged the admissibility of these statements, the Court of Appeals found 16 Petitioner had failed to prove by a preponderance of the evidence that the 17 statements would have been excluded. Id. Consequently, the Court of Appeals 18 found defense counsel’s strategy was reasonable in the context of the admissible 19 evidence against Petitioner. 20 Petitioner argues his counsel was deficient by (1) failing to challenge the 21 admissibility of “all evidence and testimony” that was uncovered as fruit of the 22 violation of the Washington Privacy Act. Petitioner’s Addendum to Writ of 23 Habeas Corpus at 18; (2) failing to “challenge evidence and testimony that he 24 knew was false and for failing to have forensic analysis done to prove the 25 evidence to be false.” Id. at 19; (3) failing to raise the issue of nepotism and 26 conflict of interest; (4) failing to request a change of venue or ask the judge and 27 prosecutor to recuse themselves from the case; (5) failing to show Petitioner the 28 1 evidence that was going to be used against him before the commencement of trial; 2 (6) refusing to call Petitioner’s daughter as an expert witness in his case. 3 After reviewing the record, the Court finds Petitioner has failed to establish 4 either prong of the Strickland standard. More importantly, Petitioner has failed to 5 show the state court’s application of Strickland was unreasonable. Harrington, 6 562 U.S. at 101. Accordingly, Petitioner’s ineffective assistance of counsel claim 7 is also denied. 8 CERTIFICATE OF APPEALABILTY 9 A petitioner seeking post-conviction relief under § 2254 may appeal a 10 district court’s dismissal of his federal habeas petition only after obtaining a 11 certificate of appealability from a district or circuit judge. A certificate of 12 appealability may issue only where a petitioner has made “a substantial showing of 13 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). A petitioner satisfies 14 this standard when “reasonable jurists could debate whether (or, for that matter, 15 agree that) the petition should have been resolved in a different manner or that the 16 issues presented were adequate to deserve encouragement to proceed further.” 17 Boyer v. Chappell, 793 F.3d 1092, 1106 (9th Cir. 2015) (quoting Miller-El v. 18 Cockrell, 537 U.S. 322, 336 (2003)) (internal quotation marks omitted). The Court 19 finds Petitioner has not made such a showing. 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 Accordingly, IT IS HEREBY ORDERED: 1. Petitioner’s Petition for Writ of Habeas Corpus by a Person in State 3 Custody, ECF No. 3, is DISMISSED, pursuant to 28 U.S.C. § 2244(d). 2. The Certificate of Appealability is DENIED. 5 IT IS SO ORDERED. The District Court Executive is hereby directed to enter this Order, furnish copies to counsel and pro se Petitioner, enter judgment 7|| against Petitioner, and close this file. 8 DATED this 25th day of July 2019. 9 10 1] 12 Sfrelerld Eee toar 14 Stanley A. Bastian 1s United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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