UNITED STATES DISTRICT COURT AT TACOMA DENNIS MCDANIEL, CASE NO. 3:22-cv-05753-BHS Petitioner, ORDER ADOPTING REPORT v. AND RECOMMENDATION Respondent. This matter is before the Court on Magistrate Judge David W. Christel’s Report and Recommendation (R&R), Dkt. 19, which concludes Petitioner Dennis McDaniel’s grounds for relief are procedurally barred and recommends the Court dismiss his 28 U.S.C. § 2254 petition with prejudice and not issue a certificate of appealability. McDaniel objects, arguing that he meets the standard to overcome the procedural default rule due in part to various alleged errors by his trial counsel, including failing to object to his sex offender log entry, which erroneously included a prior conviction for rape of a child, and failing to object to and allegedly concealing the declaration for determination of probable cause. Dkt. 22. The Court adopts the R&R over McDaniel’s objections. Judge Christel thoroughly addresses McDaniel’s arguments and correctly determined that his claims are barred by the procedural default rule.
A jury found McDaniel guilty of one count of child molestation in the first degree in February 2011. Dkt. 11-1, Ex. 1; see also Dkt. 11-1, Ex. 2. After the state court of appeals affirmed his conviction on direct appeal, McDaniel sought varied state and federal appellate relief, including through filing a motion for discretionary review,1 personal restraint petitions (PRPs)2, and habeas filings3 before filing the instant § 2254
petition, Dkt. 1. These filings are detailed thoroughly in the R&R. Dkt. 19, at 3–6. McDaniel makes no objection to the Magistrate Judge’s overview of his appellate filings. Accordingly, the Court incorporates the overview of McDaniel’s appellate filings on pages three through six of the R&R by reference and will not repeat it at length here. McDaniel filed the instant § 2254 petition raising three grounds for relief:
1. His rights under the Fourth Amendment, Fourteenth Amendment, and Due Process were violated when the sex offender registration log erroneously showed he had a prior conviction for rape of a child, for which he registered as a sex offender; 2. His rights were violated when the declaration for determination of probable cause used for his case erroneously included a prior conviction for rape of a child; and 1 Dkt. 11-1, Exs. 21, 22 2 Dkt. 11-1, Ex. 12; Dkt. 11-1, Ex. 17; Dkt. 11-1, Ex. 26; Dkt. 11-2, Exs. 33, 34; Dkt. 11-2, Ex. 35 3 Dkt. 11-2, Ex. 44 (a federal habeas petition, challenging his conviction under the original judgment and sentence. The court denied the claims in the petition on the merits and dismissed it with prejudice. Dkt. 11-2, Exs. 45–47.). 3. His Sixth Amendment right to effective assistance of counsel was violated when trial counsel: (1) failed to challenge the errors in the sex offender registration and declaration in support of probable cause, thereby abandoning the defense based upon identity, (2) failed to challenge the lack of a timely arraignment on the amended information, and (3) instructed the prosecutor on how to include the alternative charge of child molestation in the amended information. Dkt. 5 at 5, 7, 8. Judge Christel issued an order directing the parties to address whether McDaniel had state remedies available to him at the time he filed his federal petition. Dkt. 16. The parties filed the required briefing, and Judge Christel issued the R&R recommending that the Court dismiss McDaniel’s petition with prejudice and not issue a certificate of appealability. Dkt. 19 at 22. The R&R rests on two key conclusions. First, McDaniel failed to properly exhaust his state court remedies before filing his federal petition. It concludes that McDaniel “did not present these claims in his direct appeal or in his original, timely, PRP” but instead “tried to raise these claims in subsequent collateral challenges, as either motions or successive PRPs.” Dkt. 19 at 11. Second, the procedural default rule bars McDaniel’s federal claims. Dkt. 19 at 11– 14. The procedural default rule bars consideration of a federal claim when it is clear the state court has been presented with the federal claim but declined to reach the issue for procedural reasons or it is clear the state court would hold the claim procedurally barred.
Franklin v. Johnson, 290 F.3d 1223, 1230–31 (9th Cir. 2002). The R&R concludes that McDaniel’s claims are procedurally defaulted because if he attempted to raise his claims in a subsequent PRP, the state would find the claims barred by Washington’s one-year statute of limitations on filing a PRP. Dkt. 19 at 12. It determined that the one-year limitations period began on November 20, 2013, when the court of appeals issued a mandate finalizing McDaniel’s direct appeal, not on October 18, 2021, when he was
resentenced pursuant to State v. Blake, 197 Wn.2d 170 (2021). Id. Finally, the R&R concludes that McDaniel cannot satisfy the stringent standard to overcome procedural default because he fails to “show some objective factor external to his defense prevented him from complying with the State’s procedural bar rule” and “also fails to carry his burden of establishing any alleged trial errors worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions.” Id. at 14.
McDaniel objects. He argues that he meets the standard to overcome procedural default, Dkt. 22 at 8–9; that the pretrial identity mix-up with his brother was not resolved during trial, Dkt. 22 at 2, and that although he does not present a formal actual innocence claim, such a claim is not necessary for him to obtain habeas relief. Id. at 4–5.
“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). A party properly objects when the party files “specific written objections” to the report and recommendation as
required under Federal Rule of Civil Procedure 72(b)(2). “[I]n providing for a de novo determination . . . Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations.” United States v. Raddatz, 447 U.S. 667, 676 (1980) (internal quotation marks omitted). Accordingly, when a district court adopts a magistrate judge’s recommendation, the district court is
required to merely “indicate[] that it reviewed the record de novo, found no merit to . . . [the] objections, and summarily adopt[] the magistrate judge’s analysis in [the] report and recommendation.” United States v. Ramos, 65 F.4th 427, 433 (9th Cir. 2023). In so doing, district courts are “not obligated to explicitly address [the] objections.” Id. at 437. The R&R thoroughly addresses the arguments McDaniel makes in his objections.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT AT TACOMA DENNIS MCDANIEL, CASE NO. 3:22-cv-05753-BHS Petitioner, ORDER ADOPTING REPORT v. AND RECOMMENDATION Respondent. This matter is before the Court on Magistrate Judge David W. Christel’s Report and Recommendation (R&R), Dkt. 19, which concludes Petitioner Dennis McDaniel’s grounds for relief are procedurally barred and recommends the Court dismiss his 28 U.S.C. § 2254 petition with prejudice and not issue a certificate of appealability. McDaniel objects, arguing that he meets the standard to overcome the procedural default rule due in part to various alleged errors by his trial counsel, including failing to object to his sex offender log entry, which erroneously included a prior conviction for rape of a child, and failing to object to and allegedly concealing the declaration for determination of probable cause. Dkt. 22. The Court adopts the R&R over McDaniel’s objections. Judge Christel thoroughly addresses McDaniel’s arguments and correctly determined that his claims are barred by the procedural default rule.
A jury found McDaniel guilty of one count of child molestation in the first degree in February 2011. Dkt. 11-1, Ex. 1; see also Dkt. 11-1, Ex. 2. After the state court of appeals affirmed his conviction on direct appeal, McDaniel sought varied state and federal appellate relief, including through filing a motion for discretionary review,1 personal restraint petitions (PRPs)2, and habeas filings3 before filing the instant § 2254
petition, Dkt. 1. These filings are detailed thoroughly in the R&R. Dkt. 19, at 3–6. McDaniel makes no objection to the Magistrate Judge’s overview of his appellate filings. Accordingly, the Court incorporates the overview of McDaniel’s appellate filings on pages three through six of the R&R by reference and will not repeat it at length here. McDaniel filed the instant § 2254 petition raising three grounds for relief:
1. His rights under the Fourth Amendment, Fourteenth Amendment, and Due Process were violated when the sex offender registration log erroneously showed he had a prior conviction for rape of a child, for which he registered as a sex offender; 2. His rights were violated when the declaration for determination of probable cause used for his case erroneously included a prior conviction for rape of a child; and 1 Dkt. 11-1, Exs. 21, 22 2 Dkt. 11-1, Ex. 12; Dkt. 11-1, Ex. 17; Dkt. 11-1, Ex. 26; Dkt. 11-2, Exs. 33, 34; Dkt. 11-2, Ex. 35 3 Dkt. 11-2, Ex. 44 (a federal habeas petition, challenging his conviction under the original judgment and sentence. The court denied the claims in the petition on the merits and dismissed it with prejudice. Dkt. 11-2, Exs. 45–47.). 3. His Sixth Amendment right to effective assistance of counsel was violated when trial counsel: (1) failed to challenge the errors in the sex offender registration and declaration in support of probable cause, thereby abandoning the defense based upon identity, (2) failed to challenge the lack of a timely arraignment on the amended information, and (3) instructed the prosecutor on how to include the alternative charge of child molestation in the amended information. Dkt. 5 at 5, 7, 8. Judge Christel issued an order directing the parties to address whether McDaniel had state remedies available to him at the time he filed his federal petition. Dkt. 16. The parties filed the required briefing, and Judge Christel issued the R&R recommending that the Court dismiss McDaniel’s petition with prejudice and not issue a certificate of appealability. Dkt. 19 at 22. The R&R rests on two key conclusions. First, McDaniel failed to properly exhaust his state court remedies before filing his federal petition. It concludes that McDaniel “did not present these claims in his direct appeal or in his original, timely, PRP” but instead “tried to raise these claims in subsequent collateral challenges, as either motions or successive PRPs.” Dkt. 19 at 11. Second, the procedural default rule bars McDaniel’s federal claims. Dkt. 19 at 11– 14. The procedural default rule bars consideration of a federal claim when it is clear the state court has been presented with the federal claim but declined to reach the issue for procedural reasons or it is clear the state court would hold the claim procedurally barred.
Franklin v. Johnson, 290 F.3d 1223, 1230–31 (9th Cir. 2002). The R&R concludes that McDaniel’s claims are procedurally defaulted because if he attempted to raise his claims in a subsequent PRP, the state would find the claims barred by Washington’s one-year statute of limitations on filing a PRP. Dkt. 19 at 12. It determined that the one-year limitations period began on November 20, 2013, when the court of appeals issued a mandate finalizing McDaniel’s direct appeal, not on October 18, 2021, when he was
resentenced pursuant to State v. Blake, 197 Wn.2d 170 (2021). Id. Finally, the R&R concludes that McDaniel cannot satisfy the stringent standard to overcome procedural default because he fails to “show some objective factor external to his defense prevented him from complying with the State’s procedural bar rule” and “also fails to carry his burden of establishing any alleged trial errors worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimensions.” Id. at 14.
McDaniel objects. He argues that he meets the standard to overcome procedural default, Dkt. 22 at 8–9; that the pretrial identity mix-up with his brother was not resolved during trial, Dkt. 22 at 2, and that although he does not present a formal actual innocence claim, such a claim is not necessary for him to obtain habeas relief. Id. at 4–5.
“The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). A party properly objects when the party files “specific written objections” to the report and recommendation as
required under Federal Rule of Civil Procedure 72(b)(2). “[I]n providing for a de novo determination . . . Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and recommendations.” United States v. Raddatz, 447 U.S. 667, 676 (1980) (internal quotation marks omitted). Accordingly, when a district court adopts a magistrate judge’s recommendation, the district court is
required to merely “indicate[] that it reviewed the record de novo, found no merit to . . . [the] objections, and summarily adopt[] the magistrate judge’s analysis in [the] report and recommendation.” United States v. Ramos, 65 F.4th 427, 433 (9th Cir. 2023). In so doing, district courts are “not obligated to explicitly address [the] objections.” Id. at 437. The R&R thoroughly addresses the arguments McDaniel makes in his objections.
It correctly concludes that the mix-up of identities with McDaniel’s brother Kenneth4 did not affect the outcome of his trial. Dkt. 19 at 20 n.5. There appear to be two instances where McDaniel was mistaken for his brother in the present case. First, the declaration of probable cause named Kenneth in the case title, although the declaration correctly named McDaniel in the body of the document. Dkt. 11-2. The Washington Supreme Court
correctly concluded that not only was the mistake immaterial, but this document was “plainly” available before trial and therefore cannot be “newly discovered” for purposes of overcoming RCW 10.73.100’s one-year time bar. Dkt. 11-2 at 337. Second, during McDaniel’s trial, a photographic exhibit that purported to depict McDaniel was in fact a photograph of Kenneth. Dkt. 11-2 at 337. The Washington
Supreme Court correctly concluded that this too failed to impact the outcome of trial, because “the parties addressed the matter by stipulating that the defendant in court was 4 The Court refers to Kenneth McDaniel by his first name to distinguish him from Petitioner Dennis McDaniel. No disrespect is intended. Mr. McDaniel, that the photograph in the exhibit was of Kenneth McDaniel, and that Kenneth McDaniel had no access to the alleged victim during the time period the State
alleged the crime occurred.” Dkt. 11-2 at 337. Judge Christel additionally addressed and rejected McDaniel’s arguments that he can overcome the procedural default rule: “By merely reiterating his claims made in state court regarding the information provided in the sex offender registration log and declaration in support of probable cause that related to his brother Kenneth rather than himself, a misunderstanding that was resolved prior to trial, Petitioner makes no colorable
showing of actual innocence to overcome the procedural default bar.” Id. at 20–21. The Court concludes that the instances of mistaking McDaniel for his brother Kenneth did not affect the outcome of McDaniel’s trial and adopts Judge Christel’s conclusion that McDaniel cannot overcome the procedural default bar. Finally, McDaniel objects that the R&R incorrectly assumes that he made an
actual innocence claim. Dkt. 22 at 4. The R&R’s discussion of actual innocence in the procedural default bar analysis does not change this calculous. Pro se filings frequently do not contain all necessary legal citations or terminology, and in such situations, the Court holds the pro se plaintiff’s pleadings “to less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). In other
words, at times courts may include correct legal terminology where a pro se plaintiff failed to include it. The discussion of actual innocence in the R&R does not change the Court’s conclusion that McDaniel’s claims are barred under the procedural default rule. The Court, having considered the R&R, McDaniel’s objections, and the remaining
record, orders as follows: (1) Petitioner McDaniel’s Objections are OVERRULED; (2) The R&R is ADOPTED; (3) McDaniel’s Petition, Dkt. 5, is DISMISSED with prejudice; (4) The Court will not issue a certificate of appealability. Dated this 10th day of October, 2023. A BENJAMIN H. SETTLE United States District Judge