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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DAVID SCHLOSSER, CASE NO. 22-1112 RJB-DWC 11 Petitioner, ORDER ON REPORT AND 12 v. RECOMMENDATION 14 Respondent. 15
16 This matter comes before the Court on the Report and Recommendation of U.S. 17 Magistrate Judge David W. Christel. Dkt. 28. The Court has considered the Report and 18 Recommendation (Dkt. 28), Petitioner’s Objections to the Report and Recommendation (Dkt. 19 30), Respondent’s Response to Petitioner’s Objections to the Report and Recommendation (Dkt. 20 31), and the remaining file. It is fully advised. 21 On August 8, 2022, Petitioner, pro se, filed this habeas corpus petition pursuant to 28 22 U.S.C. § 2254 challenging his March 15, 2019 judgment and sentence after his conviction by a 23 jury for rape of a child in the first degree of his stepdaughter A.D. Dkt. 1. The Petitioner 24 1 initially raised six grounds for relief. Id. He then filed an unopposed motion to withdraw 2 Grounds 3, 5, and 6. Dkt. 25. 3 On May 18, 2023, the Report and Recommendation was filed. Dkt. 28. It recommends 4 granting the Petitioner’s unopposed motion to withdraw Grounds 3, 5, and 6. Id. The Report 5 and Recommendation recommends denial of relief on the remaining Grounds 1, 2, and 4. Id. It
6 also recommends finding that an evidentiary hearing is not necessary and that a Certificate of 7 Appealability be denied. Id. The Petitioner, through counsel, filed objections to portions of the 8 Report and Recommendation objecting to recommendations regarding the denial of an 9 evidentiary hearing, denial of relief on Ground 1 and Ground 2, and the denial of the Certificate 10 of Appealability. Dkt. 30. 11 The objections raised two separate issues under Ground 2. Dkt. 30. The petitioner 12 asserted that his rights were violated when the trial court prohibited him from questioning A.D. 13 about statements to her mental health counselor. Id. This issue is discussed below in this 14 opinion under “Ground 2.” Further, in his Ground 2 objections, the Petitioner also argued that
15 his Sixth Amendment rights were violated when the trial court prohibited him from questioning 16 A.D.’s mental health counselor about what, if any, A.D. told her counselor of Petitioner’s alleged 17 sexual abuse of A.D. Dkt. 30 at 17-19. This portion of Ground 2 was not in Petitioner’s Petition 18 (Dkt. 3 at 21) and appeared to be raised for the first time in this case in the objections. After the 19 case was re-referred to U.S. Magistrate Judge Christel for further proceedings on this claim, the 20 parties stipulated to dismissal of this claim. Dkt. 34. The claim was dismissed, the referral to the 21 magistrate judge terminated, and the parties were given an opportunity to indicate that the case 22 was not ready for decision by August 31, 2023. Id. No responses were filed. The Report and 23 Recommendation and objections are now ripe for decision. 24 2 The Report and Recommendation (Dkt. 28) should be adopted. Petitioner’s motion to 3 dismiss Grounds 3, 5, and 6 (Dkt. 25) should be granted and those claims dismissed. The 4 Petitioner did not object to the Report and Recommendation’s recommendation that Ground 4 be 5 denied on the merits. For the reasons stated in the Report and Recommendation, Ground 4
6 should be denied on the merits. The Petitioner’s objections (Dkt. 30) do not provide a basis to 7 decline to adopt the remainder of the Report and Recommendation. 8 Evidentiary Hearing. Petitioner’s assertion that an evidentiary hearing is warranted is 9 unavailing. As stated in the Report and Recommendation (Dkt. 28 at 22), the Petitioner’s 10 grounds for relief may be resolved on the existing state record. His motion for an evidentiary 11 hearing should be denied. 12 Standard of Review. Under 28 U.S.C. § 2254, a petition for writ of habeas corpus will 13 not be granted unless the state court’s decision was “contrary to, or involved an unreasonable 14 application of, clearly established Federal law, as determined by the Supreme Court of the
15 United States . . . .” 28 U.S.C. § 2254(d)(1). 16 Ground 1. As to Ground 1, Petitioner argues that the Washington courts unreasonably 17 applied clearly established federal law regarding his due process rights when they upheld the trial 18 court’s denial of Petitioner’s motion for in camera review of victim A.D.’s counseling records. 19 Dkt. 30. The Petitioner points to Pennsylvania v. Richie, 480 U.S. 39 (1987) and argues that his 20 case was “indistinguishable” from Richie. Id. 21 In Richie the Supreme Court held that the trial court’s failure to conduct in camera 22 review of Child and Youth Service’s records violated Richie’s due process rights. Richie at 56- 23 57. The Richie Court first noted that under Brady v. Maryland, 373 U.S. 83 (1963), “[i]t is well 24 1 settled that the government has the obligation to turn over evidence in its possession that is both 2 favorable to the accused and material to guilt or punishment.” The Supreme Court continued, 3 Although courts have used different terminologies to define materiality, a majority of this Court has agreed, evidence is material only if there is a reasonable 4 probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability 5 sufficient to undermine confidence in the outcome.
6 Richie at 57 (cleaned up). Relying on Richie, the Washington State Court of Appeals concluded 7 that the Petitioner failed to show that the evidence he sought from the counseling records was 8 plausibly material and favorable to the defense. Dkt. 10-1 at 25-28. 9 The Petitioner has failed to show that the Washington courts’ decision on Ground 1 was 10 “contrary to, or involved unreasonable application of,” federal law. 28 U.S.C. § 2254(d)(1). The 11 Petitioner has failed to make a plausible showing that the evidence he seeks from the counseling 12 records would have been material and/or favorable to the defense. As stated in the Report and 13 Recommendation, the record contained extensive evidence that A.D. told no one she had been 14 raped until years after her time with her counselor ended. Additional evidence would have been 15 cumulative. Contrary to Petitioner’s assertions, his case is not “indistinguishable” from Richie. 16 While both Petitioner and Richie were accused of raping their step/daughters and both girls 17 testified at the trials, Richie was convicted on all counts. Petitioner was only convicted on one of 18 three counts. Accordingly, Petitioner’s theory that the jury either believed only him or only A.D. 19 is without merit. Further, Petitioner’s contentions that there could be other exculpatory evidence 20 in the counseling records amounts to mere speculation. Speculation that undisclosed information 21 could lead to favorable evidence is not sufficient to establish a due process violation. Wood v. 22 Bartholomew, 516 U.S. 1, 6 (1995). The Report and Recommendation should be adopted as to 23 Ground 1. 24 1 Ground 2.
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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DAVID SCHLOSSER, CASE NO. 22-1112 RJB-DWC 11 Petitioner, ORDER ON REPORT AND 12 v. RECOMMENDATION 14 Respondent. 15
16 This matter comes before the Court on the Report and Recommendation of U.S. 17 Magistrate Judge David W. Christel. Dkt. 28. The Court has considered the Report and 18 Recommendation (Dkt. 28), Petitioner’s Objections to the Report and Recommendation (Dkt. 19 30), Respondent’s Response to Petitioner’s Objections to the Report and Recommendation (Dkt. 20 31), and the remaining file. It is fully advised. 21 On August 8, 2022, Petitioner, pro se, filed this habeas corpus petition pursuant to 28 22 U.S.C. § 2254 challenging his March 15, 2019 judgment and sentence after his conviction by a 23 jury for rape of a child in the first degree of his stepdaughter A.D. Dkt. 1. The Petitioner 24 1 initially raised six grounds for relief. Id. He then filed an unopposed motion to withdraw 2 Grounds 3, 5, and 6. Dkt. 25. 3 On May 18, 2023, the Report and Recommendation was filed. Dkt. 28. It recommends 4 granting the Petitioner’s unopposed motion to withdraw Grounds 3, 5, and 6. Id. The Report 5 and Recommendation recommends denial of relief on the remaining Grounds 1, 2, and 4. Id. It
6 also recommends finding that an evidentiary hearing is not necessary and that a Certificate of 7 Appealability be denied. Id. The Petitioner, through counsel, filed objections to portions of the 8 Report and Recommendation objecting to recommendations regarding the denial of an 9 evidentiary hearing, denial of relief on Ground 1 and Ground 2, and the denial of the Certificate 10 of Appealability. Dkt. 30. 11 The objections raised two separate issues under Ground 2. Dkt. 30. The petitioner 12 asserted that his rights were violated when the trial court prohibited him from questioning A.D. 13 about statements to her mental health counselor. Id. This issue is discussed below in this 14 opinion under “Ground 2.” Further, in his Ground 2 objections, the Petitioner also argued that
15 his Sixth Amendment rights were violated when the trial court prohibited him from questioning 16 A.D.’s mental health counselor about what, if any, A.D. told her counselor of Petitioner’s alleged 17 sexual abuse of A.D. Dkt. 30 at 17-19. This portion of Ground 2 was not in Petitioner’s Petition 18 (Dkt. 3 at 21) and appeared to be raised for the first time in this case in the objections. After the 19 case was re-referred to U.S. Magistrate Judge Christel for further proceedings on this claim, the 20 parties stipulated to dismissal of this claim. Dkt. 34. The claim was dismissed, the referral to the 21 magistrate judge terminated, and the parties were given an opportunity to indicate that the case 22 was not ready for decision by August 31, 2023. Id. No responses were filed. The Report and 23 Recommendation and objections are now ripe for decision. 24 2 The Report and Recommendation (Dkt. 28) should be adopted. Petitioner’s motion to 3 dismiss Grounds 3, 5, and 6 (Dkt. 25) should be granted and those claims dismissed. The 4 Petitioner did not object to the Report and Recommendation’s recommendation that Ground 4 be 5 denied on the merits. For the reasons stated in the Report and Recommendation, Ground 4
6 should be denied on the merits. The Petitioner’s objections (Dkt. 30) do not provide a basis to 7 decline to adopt the remainder of the Report and Recommendation. 8 Evidentiary Hearing. Petitioner’s assertion that an evidentiary hearing is warranted is 9 unavailing. As stated in the Report and Recommendation (Dkt. 28 at 22), the Petitioner’s 10 grounds for relief may be resolved on the existing state record. His motion for an evidentiary 11 hearing should be denied. 12 Standard of Review. Under 28 U.S.C. § 2254, a petition for writ of habeas corpus will 13 not be granted unless the state court’s decision was “contrary to, or involved an unreasonable 14 application of, clearly established Federal law, as determined by the Supreme Court of the
15 United States . . . .” 28 U.S.C. § 2254(d)(1). 16 Ground 1. As to Ground 1, Petitioner argues that the Washington courts unreasonably 17 applied clearly established federal law regarding his due process rights when they upheld the trial 18 court’s denial of Petitioner’s motion for in camera review of victim A.D.’s counseling records. 19 Dkt. 30. The Petitioner points to Pennsylvania v. Richie, 480 U.S. 39 (1987) and argues that his 20 case was “indistinguishable” from Richie. Id. 21 In Richie the Supreme Court held that the trial court’s failure to conduct in camera 22 review of Child and Youth Service’s records violated Richie’s due process rights. Richie at 56- 23 57. The Richie Court first noted that under Brady v. Maryland, 373 U.S. 83 (1963), “[i]t is well 24 1 settled that the government has the obligation to turn over evidence in its possession that is both 2 favorable to the accused and material to guilt or punishment.” The Supreme Court continued, 3 Although courts have used different terminologies to define materiality, a majority of this Court has agreed, evidence is material only if there is a reasonable 4 probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability 5 sufficient to undermine confidence in the outcome.
6 Richie at 57 (cleaned up). Relying on Richie, the Washington State Court of Appeals concluded 7 that the Petitioner failed to show that the evidence he sought from the counseling records was 8 plausibly material and favorable to the defense. Dkt. 10-1 at 25-28. 9 The Petitioner has failed to show that the Washington courts’ decision on Ground 1 was 10 “contrary to, or involved unreasonable application of,” federal law. 28 U.S.C. § 2254(d)(1). The 11 Petitioner has failed to make a plausible showing that the evidence he seeks from the counseling 12 records would have been material and/or favorable to the defense. As stated in the Report and 13 Recommendation, the record contained extensive evidence that A.D. told no one she had been 14 raped until years after her time with her counselor ended. Additional evidence would have been 15 cumulative. Contrary to Petitioner’s assertions, his case is not “indistinguishable” from Richie. 16 While both Petitioner and Richie were accused of raping their step/daughters and both girls 17 testified at the trials, Richie was convicted on all counts. Petitioner was only convicted on one of 18 three counts. Accordingly, Petitioner’s theory that the jury either believed only him or only A.D. 19 is without merit. Further, Petitioner’s contentions that there could be other exculpatory evidence 20 in the counseling records amounts to mere speculation. Speculation that undisclosed information 21 could lead to favorable evidence is not sufficient to establish a due process violation. Wood v. 22 Bartholomew, 516 U.S. 1, 6 (1995). The Report and Recommendation should be adopted as to 23 Ground 1. 24 1 Ground 2. As to Ground 2, Petitioner argues that the Washington courts unreasonably 2 applied clearly established federal law regarding his Sixth Amendment rights when they affirmed 3 the trial court’s ruling that prohibited the Petitioner from questioning A.D. about whether she 4 informed her mental health counselor that Petitioner sexually abused her. Dkt. 30. While the 5 Petitioner contends that this limit on cross examination was improper and not cumulative, he
6 failed to establish why that is so. His theory that, because A.D. saw the counselor for 7 approximately two years and must have had a relationship of “full trust” and so had to have told 8 the counselor about the abuse if it happened, is pure speculation. The trial record clearly 9 established that A.D. told no one of the sexual abuse until 2016 – well after she stopped seeing 10 her counselor. The Report and Recommendation properly concluded that the state courts’ 11 finding (that additional cross examination of A.D. focusing on her failure to disclose to her 12 counselor that she was sexually assaulted by Petitioner would be wholly cumulative) was not in 13 error. The Report and Recommendation should be adopted as to Ground 2. 14 Certificate of Appealability. The Report and Recommendation recommends the denial
15 of a certificate of appealability. Dkt. 28 at 22-23. A certificate of appealability may issue only if 16 a petitioner has made “a substantial showing of the denial of a constitutional right.” See 28 17 U.S.C. § 2253(c)(2). A petitioner satisfies this standard “by demonstrating that jurists of reason 18 could disagree with the district court's resolution of his constitutional claims or that jurists could 19 conclude the issues presented are adequate to deserve encouragement to proceed 20 further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Petitioner has not met this burden. 22 The Report and Recommendation (Dkt. 28) IS ADOPTED; 23 The Petitioner’s motion for an evidentiary hearing (Dkt. 30) IS DENIED; 24 1 The Petitioner’s grounds for relief ARE DENIED; 2 This Petition (Dkt. 3) IS DISMISSED WITH PREJUDICE; and 3 The Certificate of Appealability IS DENIED. 4 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 5 to any party appearing pro se at said party’s last known address.
6 Dated this 7th day of September, 2023. 7 A
8 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24