Rook v. Holbrook

• Court: District Court, W.D. Washington
• Decided: January 21, 2020
• Docket: 2:18-cv-00233
• 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 GUY ADAM ROOK, CASE NO. C18-0233-JCC 10 Petitioner, ORDER 11 v. 12 DONALD HOLBROOK, 13 Respondent. 14

15 This matter comes before the Court on Petitioner’s objections (Dkt. No. 52) to the report 16 and recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge (Dkt. 17 No. 47). Having thoroughly considered the parties’ briefing and the relevant record, the Court 18 finds oral argument unnecessary and hereby OVERRULES Petitioner’s objections, ADOPTS the 19 report and recommendation, and DENIES Petitioner’s petition for a writ of habeas corpus for the 20 reasons explained herein. 21 I. BACKGROUND 22 Judge Tsuchida’s report and recommendation set forth the underlying facts of this case 23 and the Court will not repeat them here. (See id. at 4–7.) The report and recommendation 24 rejected Petitioner’s argument that his life-without-parole (“LWOP”) sentence for a third-strike 25 driving offense with a mens rea of recklessness is grossly disproportionate in violation of the 26 Eighth Amendment of the United States Constitution. (Id. at 14–32.) Petitioner’s counsel has 1 filed objections to the report and recommendation, asking that the Court find that 28 U.S.C. 2 § 2254(d) does not apply to his Eighth Amendment claim and grant him habeas relief. (Dkt. No. 3 52 at 1.) The Court addresses each of Petitioner’s objections to the report and recommendation in 4 turn. 5 II. DISCUSSION 6 A. Legal Standard 7 A district court reviews de novo those portions of a report and recommendation to which 8 a party objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Objections are required to 9 enable the district court to “focus attention on those issues—factual and legal—that are at the 10 heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). General objections, or 11 summaries of arguments previously presented, have the same effect as no objection at all, since 12 the court’s attention is not focused on any specific issues for review. See United States v. 13 Midgette, 478 F.3d 616, 622 (4th Cir. 2007). 14 B. Adjudication of Eighth Amendment Claim on the Merits 15 Petitioner asserts that the Washington State Court of Appeals did not adjudicate his 16 federal Eighth Amendment claim on the merits and therefore its decision is not entitled to 17 deference under 28 U.S.C. § 2254(d). (Dkt. No. 52 at 2–9.) 18 “An application for a writ of habeas corpus on behalf of a person in custody pursuant to 19 the judgment of a State court shall not be granted with respect to any claim that was adjudicated 20 on the merits in State court proceedings.” 28 U.S.C. § 2254(d). “A judgment is normally said to 21 have been rendered ‘on the merits’ only if it was ‘delivered after the court . . . heard and 22 evaluated the evidence and the parties’ substantive arguments.’” Johnson v. Williams, 568 U.S. 23 289, 302 (2013) (quoting Black’s Law Dictionary 1199 (9th ed. 2009)). But when “a line of state 24 precedent is viewed as fully incorporating a related federal constitutional right . . . a state 25 appellate court may regard its discussion of the state precedent as sufficient to cover a claim 26 based on the related federal right.” Id. at 298–99 (collecting exemplary cases). 1 A brief examination of Washington’s repeat offender statute, the federal and Washington 2 constitutional provisions at issue, and relevant Washington caselaw is warranted. Under 3 Washington’s Persistent Offender Accountability Act (“POAA”), a “persistent offender” must 4 receive an LWOP sentence. Wash. Rev. Code § 9.94A.570. The POAA defines “persistent 5 offender” as a person who, having been convicted of two “most serious offenses” or their out-of- 6 state equivalents on two prior occasions, commits a third “most serious offense.” Wash. Rev. 7 Code § 9.94A.030(38). “Most serious offense” is in turn defined as any class A felony or 8 enumerated class B felonies that are violent, sexual, or dangerous. Wash. Rev. Code § 9 9.94A.030(33).1 10 The Eighth Amendment of the United States Constitution bars “cruel and unusual 11 punishments.” U.S. Const. amend. VIII. Article I, section 14 of the Washington State 12 Constitution bars “cruel punishment.” Wash. Const. art. I, § 14. In analyzing challenges to 13 LWOP sentences imposed pursuant to the POAA, Washington courts have consistently “held 14 that [article I, section 14 of the Washington State Constitution] is more protective than the Eighth 15 Amendment.” State v. Witherspoon, 329 P.3d 888, 894 (Wash. 2014) (citing State v. Rivers, 921 16 P.2d 495, 502 (Wash. 1996)); see State v. Moretti, 446 P.3d 609, 613–14 (Wash. 2019) 17 (reviewing Washington caselaw and stating that “if it is not cruel under article I, section 14 . . . 18 then it is necessarily not cruel and unusual under the Eight Amendment”); State v. Bassett, 428 19 P.3d 343, 347–49 (Wash. 2018) (conducting Gunwall analysis and concluding that article I, 20 section 14 is more protective than the Eight Amendment in the context of juvenile sentencing); 21 State v. Ramos, 387 P.3d 650, 667 (Wash. 2017), cert. denied, 138 S. Ct. 467 (2017). 22 Washington courts have accordingly declined to analyze Eighth Amendment claims brought in 23

24 1 At trial, Petitioner was found guilty of vehicular assault under the reckless manner alternative means, a qualifying offense under the POAA. See State v. Rook, 2013 WL 3227563, 25 slip op. at 3 (Wash. Ct. App. 2013); Wash. Rev. Code § 9.94A.030(33)(p). Petitioner’s two prior qualifying convictions were for first degree robbery and first degree rape of a child, both of 26 which were committed when he was an adult. (See Dkt. No. 57 at 7, 19.) 1 parallel with article I, section 14 claims against an LWOP sentence imposed pursuant to the 2 POAA. See, e.g., Moretti, 446 P.3d at 613 (“Because we have previously held that article I, 3 section 14 offers more protection than the federal constitution in the context of sentencing both 4 recidivists and juveniles, we do not address the petitioners’ argument that [an LWOP sentence 5 imposed pursuant to the POAA] is cruel and unusual under the Eighth Amendment.”). 6 In ruling on Petitioner’s constitutional claims, the state court concluded that “[t]he state 7 constitutional prescription against ‘cruel punishment’ affords greater protection than its federal 8 counterpart. Thus, if the state constitutional provision was not violated, neither is the federal 9 provision.” State v. Rook, 2013 WL 3227563, slip op. at 6 (Wash. Ct. App. 2013) (footnotes 10 omitted) (citing State v. Fain, 617 P.2d 720, 723 (Wash. 1980); State v. Morin, 995 P.2d 113, 11 115–16 (Wash. Ct. App. 2000)). Petitioner takes issue with the state court’s analysis on a number 12 of grounds, which the Court addresses in turn. 13 First, Petitioner argues that the state court could not have adjudicated the merits of his 14 Eighth Amendment claim because it did not cite federal caselaw or compare the federal and state 15 constitutional provisions and instead decided the issue “as a matter of binding state court 16 precedent.” (Dkt. No. 52 at 3–4.) But, as discussed above, Washington courts faced with paired 17 Eighth Amendment and article I, section 14 challenges to LWOP sentences imposed pursuant to 18 the POAA have consistently declined to analyze the Eighth Amendment claims. See, e.g., 19 Moretti, 446 P.3d at 613–14. And in doing so, they generally do not extensively analyze the 20 differences in the constitutional provisions themselves or cite federal caselaw examining this 21 issue. See id.; see also State v. Roberts, 14 P.3d 713, 733 & n.11 (Wash. 2000) (“As we apply 22 established principles of state constitutional jurisprudence [regarding the protectiveness of article 23 I, section 14 and the Eighth Amendment] here, a Gunwall analysis is not required”); but see 24 Bassett, 428 P.3d 343, 347–49 (Wash. 2018) (conducting Gunwall analysis and concluding that 25 article I, section 14 is more protective than the Eight Amendment in the context of juvenile 26 sentencing). Therefore, while Petitioner takes issue with the perfunctory nature of the state 1 court’s analysis, he has not established that the state court did not adjudicate the merits of his 2 Eighth Amendment claim on this ground.2 3 Petitioner next argues that the state court did not adjudicate the merits of his Eighth 4 Amendment claim because article I, section 14 is not inherently more protective than the Eighth 5 Amendment and because Washington courts have not been incorporating developments in 6 Eighth Amendment jurisprudence such that a ruling on an article I, section 14 claim necessarily 7 resolves an Eighth Amendment challenge. (Dkt. No. 52 at 5–7.) Neither argument has merit. 8 When faced with an adult offender’s paired Eighth Amendment and article I, section 14 9 challenges to an LWOP sentence imposed pursuant to the POAA (as in Petitioner’s case), 10 Washington courts have compared the language of the two constitutional provisions and have 11 consistently concluded that article I, section 14 grants more protection. See, e.g., Witherspoon, 12 329 P.3d at 894 (citing Rivers, 921 P.2d at 502) (“The Eighth Amendment bars cruel and unusual 13 punishment while article I, section 14 bars cruel punishment. This court has held that the 14 constitutional provision is more protective than the Eighth Amendment in this context.”). 15 Petitioner cites Justice Sheryl Gordon McCloud’s dissenting opinion in State v. 16 Witherspoon, 329 P.3d 888, 901 n.6 (Wash. 2014), for the proposition that Washington courts 17 have refused “as a matter of precedent, to consider LWOP sentences to be any more severe than 18 life-with-parole sentences” in spite of the Supreme Court’s decision in Graham v. Florida, 560 19 U.S. 48 (2010). (Dkt. No. 52 at 6–7) (citing Rivers, 921 P.2d at 503; Witherspoon, 329 P.3d at 20 895)). But the Witherspoon majority analyzed both Graham and the Supreme Court’s subsequent 21 decision in Miller v. Alabama, 123 S. Ct. 2455 (2012), and rejected the petitioner’s contention 22

2 Petitioner further challenges the state court’s cited authority as either old or similarly 23 lacking in necessary analysis. (Dkt. No. 52 at 4) (citing Fain, 617 P.2d at 723; Morin, 995 P.2d 24 at 116). His challenge is unavailing. Neither decision has been overruled, and in fact both have been cited as authority in recent Washington decisions. See, e.g., Moretti, 446 P.3d at 613 (“We 25 also hold that the sentences in these cases are not grossly disproportionate to the offenses under the four Fain factors”); State v. Moen, 422 P.3d 930, 936 (Wash. Ct. App. 2018) (quoting Morin, 26 995 P.2d at 116)). 1 that those decisions dictated that LWOP sentences imposed on adult offenders pursuant to the 2 POAA violated the Eighth Amendment. See Witherspoon, 329 P.3d at 895–96; see also Miller v. 3 Alabama, 123 S. Ct. 2455, 2458 (2012) (noting that Graham “concluded that the [Eighth] 4 Amendment prohibits a sentence of life without the possibility of parole for a juvenile convicted 5 of a nonhomicide offense”). Thus, contrary to Petitioner’s assertion, Washington courts have 6 been sensitive to developments in Eighth Amendment jurisprudence but have still held that an 7 adjudication of an adult offender’s article I, section 14 claim against an LWOP sentence imposed 8 pursuant to the POAA necessarily adjudicates the offender’s Eighth Amendment challenge as 9 well. Petitioner’s disagreement with the conclusions of the Washington courts is insufficient to 10 demonstrate that the state court in this case did not adjudicate the merits of his Eighth 11 Amendment claim when it denied his article I, section 14 claim.3 12 In sum, pursuant to substantial Washington state law precedent, the state court 13 necessarily analyzed Petitioner’s Eighth Amendment claim when it addressed his claim under the 14 more protective Washington constitutional provision. See Moretti, 446 P.3d at 613; Witherspoon, 15 329 P.3d at 894; Rook, 2013 WL 3227563, slip op. at 6–8. Therefore, while the state court did 16 separately analyze Petitioner’s Eighth Amendment claim, it nonetheless considered the relevant 17 evidence and the parties’ arguments regarding Petitioner’s federal and state constitutional claims 18 and duly rendered a decision. See Johnson, 568 U.S. at 302. Therefore, Petitioner has not 19 established that the state court did not adjudicate the merits of his Eighth Amendment claim. 20 3 Petitioner also cites the Supreme Court’s analytical framework for determining whether 21 a silent state court opinion adjudicated the merits of a federal claim but acknowledges that the state court in this case was not silent as to his Eighth Amendment claim. (See Dkt. No. 52 at 7–8) 22 (citing Johnson, 568 U.S. at 301–02). Petitioner further argues that the Washington State Supreme Court has acknowledged that its jurisprudence regarding the interaction between article 23 I, section 14 and the Eighth Amendment has been inconsistent. (See id. at 8) (citing Bassett, 428 24 P.3d at 348). But this is not true as to cases involving an adult offender’s paired Eighth Amendment and article I, section 14 challenges to an LWOP sentence imposed pursuant to the 25 POAA. As recently as August 2019, the Washington State Supreme Court unequivocally reiterated that article I, section 14 is more protective in this context. See Moretti, 446 P.3d at 609 26 (citing Witherspoon, 329 P.3d at 894; Bassett, 428 P.3d at 350). 1 Petitioner’s objections are OVERRULED on this ground. 2 C. Contrary to or an Unreasonable Application of Supreme Court Precedent 3 Petitioner contends that even if the state court adjudicated his Eighth Amendment claim 4 on the merits, its adjudication was contrary to or an unreasonable application of the Supreme 5 Court’s Eighth Amendment jurisprudence. (Dkt. No. 52 at 9–11.) Petitioner first asserts that the 6 state court did not “acknowledge the unique severity” of an LWOP sentence and erroneously 7 compared his LWOP sentence with “sentences in other states that permitted discretionary life- 8 with-parole sentences,” contrary to the Supreme Court’s decisions in Solem v. Helm, 463 U.S. 9 277 (1983), Harmelin v. Michigan, 501 U.S. 957 (1991), and Graham, 560 U.S. at 48. (See Dkt. 10 No. 52 at 10–11.) 11 A federal court may grant a state prisoner’s habeas petition on a claim that was 12 adjudicated on the merits if the adjudication “resulted in a decision that was contrary to, or 13 involved an unreasonable application of, clearly established Federal law, as determined by the 14 Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). The “clearly established” phrase 15 “refers to the holdings, as opposed to the dicta, of [the Supreme Court’s] decisions as of the time 16 of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the 17 “contrary to” clause, a federal court may grant the prisoner’s habeas petition only if the state 18 court arrived at a conclusion opposite to that reached by the Supreme Court on a question of law, 19 or if the state court decided a case differently than the Supreme Court has on a set of materially 20 indistinguishable facts. See id. at 405–06 (2000). 21 In Solem, the petitioner was convicted of passing a “no account” check for $100 and, 22 having been previously convicted of six nonviolent felonies, received an LWOP under South 23 Dakota’s habitual offender statute. 463 U.S. at 279–82. In analyzing the petitioner’s Eighth 24 Amendment challenge to his sentence, the Supreme Court looked to the gravity of his offense 25 and the harshness of his sentence, the sentences imposed on other criminals in the same 26 jurisdiction, and the sentences imposed for the same crime in other jurisdictions. See id. at 290– 1 301. In evaluating these factors, the Supreme Court emphasized the nonviolent nature of the 2 petitioner’s offenses and the severity of an LWOP sentence as compared to a sentence of life 3 with the possibility of parole. Id. at 296–99. And while the Supreme Court acknowledged that 4 the petitioner could have received the same sentence for the same conduct in Nevada, it was 5 unaware of any similarly-situated offender receiving an LWOP sentence and thus found that “[i]t 6 appear[ed] that [the petitioner] was treated more severely than he would have been in any other 7 State.” Id. at 300–01. The Supreme Court accordingly concluded that the petitioner’s sentence 8 was “significantly disproportionate to his crime” and therefore violated the Eighth Amendment. 9 Id. at 303. 10 In Harmelin, the Supreme Court clarified that the Eighth Amendment “forbids only 11 extreme sentences that are ‘grossly disproportionate’ to the crime.” 501 U.S. at 1001 (Kennedy, 12 J., concurring) (collecting cases); see Graham, 560 U.S. at 60. In upholding the petitioner’s 13 mandatory LWOP sentence, imposed pursuant to Michigan law for possessing more than 650 14 grams of cocaine, the Supreme Court primarily looked to the serious nature of his underlying 15 criminal conduct. See Harmelin, 501 U.S. at 961, 1002–04 (discussing Solem, 463 at 296–99; 16 Rummel v. Estelle, 445 U.S. 263, 296 (1980)). The Supreme Court rejected the petitioner’s 17 argument that a comparative analysis was required under Solem, stating that a such an analysis 18 was properly used “to validate an initial judgment that a sentence is grossly disproportionate to 19 the crime” and that because the petitioner’s LWOP sentence did not “give rise to an inference of 20 gross disproportionality,” no comparative analysis was necessary in his case. Id. at 1005 (citing 21 Solem, 463 U.S. at 290–92, 298–300, & nn.16, 17; Rummel, 445 U.S. at 281; Weems v. United 22 States, 217 U.S. 349, 377–81 (1910)). The Supreme Court also rejected the petitioner’s argument 23 that the mandatory nature of his LWOP sentence merited additional scrutiny under the Eighth 24 Amendment, stating that the legislature was not required to grant courts discretion in sentencing 25 and distinguishing the Solem sentencing judge’s exercise of discretion to impose an LWOP 26 sentence. Id. at 1006 (citing Chapman v. United States, 500 U.S. 453, 467 (1991); Solem, 463 1 U.S. at 299 n.6)). 2 In this case, the state court addressed the serious nature of Petitioner’s LWOP sentence 3 when analyzing whether his sentence was disproportionate to his underlying criminal conduct in 4 violation of article I, section 14. See Rook, 2013 WL 3227563, slip op. at 6 (recognizing 5 Petitioner’s argument that his offense “did not warrant the imposition of the highest punishment 6 short of the death penalty”). The state court proceeded to thoroughly analyze the relevant 7 provisions of the POAA and the serious nature of Petitioner’s underlying criminal conduct, 8 concluding that he “faile[ed] to show that either the nature of the [offense] or the legislative 9 purpose warrants a less severe penalty and is therefore disproportionate in violation of the 10 constitutional prohibition against cruel punishment.” Id. at 7 (emphasis added). The state court’s 11 approach mirrors that of the Supreme Court in Harmelin, where the Supreme Court 12 acknowledged the gravity of the petitioner’s LWOP sentence but primarily analyzed the serious 13 nature of his underlying criminal conduct and the Michigan legislature’s authority to construct its 14 sentencing scheme. Compare id. at 6–7, with Harmelin, 501 U.S. at 1001–08. Thus, Petitioner 15 has not demonstrated that the state court’s decision was contrary to a decision of the Supreme 16 Court on this issue. See Williams, 529 U.S. at 405–06.4 17 The state court also conducted a comparative analysis pursuant to Washington law, 18 identified multiple other states under whose laws Petitioner would have received a similar 19 sentence for his underlying criminal conduct, and concluded that he “therefore fail[ed] to show 20 that there are no other states in which he would be subjected to a similar penalty for this 21 conduct.” Rook, 2013 WL 3227563, slip op. at 8. As a threshold matter, Petitioner has not 22 demonstrated that the state court’s comparative analysis was required under Supreme Court

23 4 To the extent that Petitioner argues that the state court failed to give due consideration 24 to the nature of Petitioner’s LWOP sentence following the Supreme Court’s decision in Graham, that argument fails for the reasons stated above. See supra Section II.B.; Miller, 123 S. Ct. at 25 2458 (noting that Graham “concluded that the [Eighth] Amendment prohibits a sentence of life without the possibility of parole for a juvenile convicted of a nonhomicide offense”) (emphasis 26 added). 1 precedent. Under Harmelin, a comparative analysis is “appropriate only in the rare case in which 2 a threshold comparison of the crime committed and the sentence imposed leads to an inference 3 of gross disproportionality” and thus should be used “to validate an initial judgment that a 4 sentence is grossly disproportionate to a crime.” 501 U.S. at 1005. In this case, the state court did 5 not find that Petitioner’s LWOP sentence raised an inference of disproportionality under either 6 the Eighth Amendment or the more protective article I, section 14, and thus no comparative 7 analysis was called for under Supreme Court precedent. See id.; Rook, 2013 WL 3227563, slip 8 op. at 7. And while Petitioner takes issue with the state court’s requirement that he show that 9 there are “no other states in which he would be subjected to a similar penalty” for his underlying 10 criminal conduct, (Dkt. No. 52 at 10–11) (citing Rook, 2013 WL 3227463, slip op. at 8; Solem, 11 463 U.S. at 297), he does not establish that this was contrary to Supreme Court precedent. In 12 Solem, the Supreme Court noted that “courts may find it useful to compare the sentences 13 imposed for commission of the same crime in other jurisdictions.” 463 U.S. at 291 (emphasis 14 added); see Harmelin, 501 U.S. at 1005. The Supreme Court found that while the petitioner 15 could have theoretically received the same sentence for the same conduct in Nevada, the lack of 16 a comparative case made “[i]t [appear] that [the petitioner] was treated more severely than he 17 would have been in any other State.” Solem, 463 U.S. at 299–300. Petitioner has not established 18 that the fact-specific inquiry undertaken by the Supreme Court in Solem is part of the holding of 19 that case or that the state court’s analysis of other states’ laws under which Petitioner could have 20 received a similar sentence for comparable or lesser conduct was contrary to any such holding. 21 See Rook, 2013 WL 3227463, slip op. at 8; (Dkt. No. 52 at 11). Thus, to the extent Solem applies 22 to Petitioner’s case, he has not demonstrated that the state court’s decision was contrary to the 23 Supreme Court’s decision in Solem. See Williams, 529 U.S. at 405–06. 24 Petitioner next contends that the state court unreasonably applied various Supreme Court 25 decisions. (See Dkt. No. 52 at 11) (citing Solem, 463 U.S. at 293, Harmelin, 501 U.S. at 1001; 26 Graham, 560 U.S. at 48; Edmund v. Florida, 458 U.S. 782, 801 (1983)). Under the 1 “unreasonable application” clause of 28 U.S.C. § 2254(d)(1), a federal court may grant a state 2 prisoner’s habeas petition if the state court identified the correct governing legal principle from 3 the Supreme Court’s decisions but unreasonably applied that principle to the facts of the 4 prisoner’s case. Williams, 529 U.S. at 407–09; see, e.g., Harrington v. Richter, 562 U.S. 86, 106– 5 10 (2011) (discussing whether California Supreme Court’s application of Strickland v. 6 Washington, 466 U.S. 668 (1984), was unreasonable under 28 U.S.C. § 2254(d)(1)); White v. 7 Woodall, 572 U.S. 415, 420–21 (2014) (discussing whether Kentucky’s Supreme Court and 8 Court of Appeals’ application of the Supreme Court’s decisions in Carter v. Kentucky, 450 U.S. 9 288 (1981), Estelle v. Smith, 451 U.S. 454 (1981), and Mitchell v. United States, 526 U.S. 314 10 (1999), was unreasonable under 28 U.S.C. § 2254(d)(1)). Petitioner has not pointed to any part of 11 the state court’s decision that identified the correct governing legal principles from the Supreme 12 Court decisions he cites before unreasonably applying those principles. (See Dkt. No. 52 at 11.) 13 In fact, as Petitioner points out earlier in his objections, the state court did not cite any of the 14 federal cases relied on by Petitioner. (See id. at 3) (“The state court of appeals declined to 15 separately analyze the Eighth Amendment argument. It also failed to cite a single federal case.”). 16 Therefore, Petitioner has not established that the state court unreasonably applied the Supreme 17 Court precedent he cites to the facts of his case. See Williams, 529 U.S. at 407–09. 18 In sum, Petitioner has not established that the state court’s decision was contrary to or an 19 unreasonable application of the Supreme Court’s Eighth Amendment jurisprudence, and his 20 objections are OVERRULED on this ground.5

21 5 Petitioner also argues that even if his Eighth Amendment claim was adjudicated on the 22 merits, the report and recommendation erred when it found that his 50-state survey of habitual offender statutes and accompanying declarations were barred under Cullen v. Pinholster, 563 23 U.S. 170 (2011). (Dkt. No. 52 at 11–13; see Dkt. Nos. 41-1–41-3.) Petitioner filed those documents primarily in support of his argument that on de novo review the Court should find that 24 his LWOP sentence was grossly disproportionate to his underlying criminal conduct in violation of the Eighth Amendment. (See Dkt. No. 41 at 12 – 24) (citing Dkt. Nos. 41-1–41-3). As the 25 Court concludes that the state court adjudicated the merits of Petitioner’s Eighth Amendment 26 claim and that the state court’s decision was not contrary to or an unreasonable application of Supreme Court precedent, Petitioner is not entitled to de novo review of his Eighth Amendment 1 D. Certificate of Appealability 2 A petitioner seeking a certificate of appealability must demonstrate a “substantial 3 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). To satisfy this standard, 4 the petitioner must demonstrate either that reasonable jurists could disagree with the district 5 court’s treatment of the constitutional claims or “the issues presented were ‘adequate to deserve 6 encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting 7 Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Judge Tsuchida concluded that Petitioner is not 8 entitled to a certificate of appealability with respect to any of his claims. (Dkt. No. 47 at 59.) In 9 his objections, Petitioner argues that a certificate of appealability is warranted because he has 10 made a substantial showing of the denial of his constitutional rights, that jurists of reason could 11 disagree with the rejection of his Eighth Amendment claim, and that “jurists could conclude the 12 issues presented’—particularly the issue of first impression regarding the application of § 13 2254(d) to the court of appeals opinion under review—‘are adequate to deserve encouragement 14 to proceed further.’” (Dkt. No. 52 at 14) (citing 28 U.S.C. § 2253(c)(3)) (quoting Miller-El, 537 15 U.S. at 327). Based on its review of the report and recommendation and analysis of Petitioner’s 16 objections thereto, the Court disagrees with Petitioner’s contentions and DENIES Petitioner’s 17 request for the issuance of a certificate of appealability. 18 E. Order Denying Permission to File Supplemental Pro Se Reply Brief 19 On October 16, 2019, Judge Tsuchida denied Petitioner’s motion to consider his pro se 20 pleadings, finding that “Petitioner does not have a right to co-litigate a federal habeas petition 21 pro se while represented by counsel.” (Dkt. No. 46 at 2) (citing W.D. Wash. Local Civ. R. 22 83.2(b)(5)). Judge Tsuchida noted that “[a]s the Court may apply the Federal Rules of Civil 23

24 claim. See 28 U.S.C. § 2254(d); Richter, 562 U.S. at 98. Therefore, the Court need not decide the issue of whether Petitioner’s survey and declarations are barred under Pinholster. For the same 25 reason, the Court declines to grant Petitioner’s renewed request that he be granted habeas relief premised on his Eighth Amendment clam. (See Dkt. No. 52 at 13) (citing Dkt. Nos. 41 at 12–23, 26 41-1–41-3). 1 Procedure to federal habeas petitions under Habeas Rule 12, the Court concludes petitioner has 2 no right to proceed pro se while represented.” (Id.) Judge Tsuchida further stated that Petitioner’s 3 professed “difficulty trusting counsel” was insufficient to merit allowing him to co-litigate his 4 case. (Id.) Nonetheless, Judge Tsuchida’s report and recommendation thoroughly addressed each 5 of Petitioner’s many asserted grounds for habeas relief. (Id. at 2–3; see generally Dkt. No. 47.) 6 Petitioner asks the Court to reverse Judge Tsuchida’s denial of his request to file a 7 supplemental pro se brief, arguing that application of the Federal Rules of Civil Procedure to 8 habeas proceedings is discretionary and that Petitioner’s distrust of counsel constitutes good 9 cause meriting suspension of the Rules in this case. (Dkt. No. 52 at 13–14.) As a threshold 10 matter, the Court is skeptical that Petitioner’s claim is properly brought in the context of 11 objections to a report and recommendation that does not address the issue. See Thomas, 474 U.S. 12 at 147. Further, Petitioner’s claim essentially asks the Court to reconsider Judge Tsuchida’s prior 13 ruling, and he has not identified a manifest error in Judge Tsuchida’s ruling or provided new 14 facts or legal authority which could not have been brought to the Court’s attention earlier with 15 reasonable diligence. See W.D. Wash. Local Civ. R. 7(h)(1); Premier Harvest LLC v. AXIS 16 Surplus Ins. Co., Case No. C17-0784-JCC, Dkt. No. 61 at 1 (W.D. Wash. 2017); (Dkt. Nos. 52 at 17 13–14, 54 at 2–3). Therefore, Petitioner’s request is DENIED. 18 III. CONCLUSION 19 For the foregoing reasons, and having reviewed the entirety of the report and 20 recommendation and finding no error, the Court hereby ORDERS that: 21 1. Petitioner’s objections to the report and recommendation (Dkt. No. 52) are 22 OVERRULED; 23 2. The report and recommendation (Dkt. No. 47) is ADOPTED and APPROVED; 24 3. Petitioner’s habeas petition (Dkt. No. 7) is DENIED and the petition is DISMISSED with 25 prejudice; 26 4. Petitioner is DENIED issuance of a certificate of appealability; and 1 5. The Clerk is DIRECTED to send copies of this order to the parties. 2 DATED this 21st day of January 2020. A 3 4 5 John C. Coughenour 6 UNITED STATES DISTRICT JUDGE

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