1 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 2 Nov 09, 2020
3 SEAN F. MCAVOY, CLERK
4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 KELLY E. SMALL, No. 2:20-cv-00043-SMJ 6 Petitioner, 7 ORDER DISMISSING PETITION v. FOR WRIT OF HABEAS CORPUS 8 JAMES KEY, 9 Respondent. 10
11 Before the Court is Petitioner Kelly E. Small’s Second Amended Petition 12 Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, 13 ECF No. 11. Relevant here, a jury convicted Small of one count of aggravated 14 murder in the first degree, one count of rape in the first degree, and one count of 15 burglary in the first degree with sexual motivation. Small presents four grounds for 16 habeas corpus relief: (1) insufficient evidence to support conviction of first degree 17 rape, (2) insufficient evidence to support conviction of premeditated murder, (3) 18 discovery violation, and (4) cumulative error. Having reviewed the petition and the 19 state court record, the Court finds Small’s habeas petition is premature, because the 20 sentencing court has not yet issued an amended judgment in accordance with the 1 state court of appeals’ ruling. As a result, the Court dismisses Small’s petition 2 without an evidentiary hearing.
3 BACKGROUND 4 A. Small’s Conviction 5 In summer 2012, a jury convicted Small of one count of first degree rape, one
6 count of burglary with sexual motivation, and one count of forgery, based on a crime 7 that occurred in 2006. ECF No. 15-1 at 2. The Okanogan County Superior Court 8 sentenced him to a total of 380 months to life (“First Conviction and Sentence”). 9 ECF No. 15-1 at 6. Small does not challenge this sentence in his habeas petition.
10 See ECF No. 11. 11 In early fall 2012, a jury convicted Small of one count of first degree 12 aggravated murder, one count of first degree rape, and one count of first degree
13 burglary with sexual motivation, based on a crime that occurred in 1998. ECF No. 14 15-1 at 38. The Okanogan County Superior Court sentenced Small to a consecutive 15 mandatory life sentence without the possibility of parole (“Second Conviction and 16 Sentence”). ECF No. 15-1 at 42. Small challenges this conviction and sentence in
17 his petition. 18 B. Direct Appeal 19 Small timely appealed his Second Conviction and Sentence to the
20 Washington State Court of Appeals on six grounds: 1 1. The exercise of peremptory challenges silently by writing violated Mr. Small’s constitutional right to a public trial. 2 2. The evidence was insufficient to support the conviction for first degree murder—premeditated. 3 3. The evidence was insufficient to support the conviction for first degree rape. 4 4. The trial court erred in imposing a sexual motivation enhancement on the first degree burglary conviction. 5 5. The record does not support the implied finding Mr. Small has the current or future ability to pay the imposed legal financial 6 obligations 6. The court erred by imposing discretionary costs. 7
8 ECF No. 15-1 at 60. The Washington Court of Appeals affirmed Small’s 9 convictions but remanded on the fourth issue. Because Wash. Rev. Code 10 9.94A.533(8)(a) only applies to offenses committed after July 1, 2006, the 11 sentencing court should not have applied the 24-month sexual motivation 12 enhancement to his burglary count, which arose from a 1998 crime. Id. at 190–91. 13 The Court of Appeals noted that “little purpose is served in modifying the smallest 14 concurrent sentence” but “it is erroneous and must be fixed since the judgment 15 would otherwise be facially invalid.” Id. at 191. The sentencing court has not yet 16 issued an amended judgment. See id. at 408, 424–426. 17 Small then petitioned for review of his Second Conviction and Sentence in 18 the Washington State Supreme Court, raising two grounds. He challenged his rape 19 conviction as violating his Fourteenth Amendment and Washington Constitution 20 right to due process because the State presented insufficient evidence of sexual 1 intercourse, and his first degree murder conviction under the same provisions 2 because the State presented insufficient evidence of premeditation. Id. at 195. The
3 supreme court summarily dismissed his petition. Id. at 252. 4 C. Personal Restraint Petition 5 Small then filed a personal restraint petition (PRP) in the Washington State
6 Court of Appeals. ECF No. 15-1 at 256. He raised five grounds for relief: (1) the 7 trial court judge erred in not recusing himself; (2) the prosecutor withheld a 2007 8 retest crime lab report in violation of Brady; (3) insufficient evidence; (4) 9 prosecutor misconduct; and (5) cumulative error. Id. at 257. The Washington State
10 Court of Appeals dismissed Small’s PRP. Id. at 403. Small did not appeal to the 11 Washington State Supreme Court. The Washington State Court of Appeals issued 12 its certificate of finality as to the PRP. Id. at 405.
13 LEGAL STANDARD 14 “An application for a writ of habeas corpus on behalf of a person in custody 15 pursuant to the judgment of a State court shall not be granted unless it appears that 16 . . . the applicant has exhausted the remedies available in the courts of the State.”
17 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement “is designed to give the 18 state courts a full and fair opportunity to resolve federal constitutional claims before 19 those claims are presented to the federal courts,” and, therefore, requires “state
20 prisoners [to] give the state courts one full opportunity to resolve any constitutional 1 issues by invoking one complete round of the State’s established appellate review 2 process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (establishing that
3 exhaustion requires presenting each claim to the state’s highest court). 4 DISCUSSION 5 A. Small’s Petition is Premature Small has not exhausted his remedies. The Washington State Court of 6 Appeals remanded Small’s case to Okanogan Superior Court, directing it to issue 7 an amended judgment because it should not have applied a sexual motivation 8 enhancement to Small’s sentence. The court of appeals noted that “little purpose is 9 served in modifying the smallest concurrent sentence imposed in this case, it is 10 erroneous and must be fixed since the judgment would otherwise be facially 11 invalid.” ECF No. 15-1 at 191. It remanded “for the trial court to either conduct a 12 new sentencing proceeding on the burglary count or enter an agreed order correcting 13 the standard range and imposing a new term within that range.” Id. The superior 14 court has not yet entered an amended judgment. See id. at 408, 424–426. 15 The procedural history in this case parallels that in United States v. 16 LaFromboise, 427 F.3d 680 (9th Cir. 2005). There, a jury in federal district court 17 convicted LaFromboise to five counts related to his involvement in a narcotics 18 trafficking scheme. Id. at 681. He appealed his conviction to the Ninth Circuit, 19 which vacated his conviction on three of his charges. Id. at 682. The Ninth Circuit 20 1 remanded those charges for a retrial, but the government eventually dismissed them. 2 Id. But the district court did not conduct a new sentencing hearing or enter an
3 amended judgment. Id.
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1 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 2 Nov 09, 2020
3 SEAN F. MCAVOY, CLERK
4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 KELLY E. SMALL, No. 2:20-cv-00043-SMJ 6 Petitioner, 7 ORDER DISMISSING PETITION v. FOR WRIT OF HABEAS CORPUS 8 JAMES KEY, 9 Respondent. 10
11 Before the Court is Petitioner Kelly E. Small’s Second Amended Petition 12 Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, 13 ECF No. 11. Relevant here, a jury convicted Small of one count of aggravated 14 murder in the first degree, one count of rape in the first degree, and one count of 15 burglary in the first degree with sexual motivation. Small presents four grounds for 16 habeas corpus relief: (1) insufficient evidence to support conviction of first degree 17 rape, (2) insufficient evidence to support conviction of premeditated murder, (3) 18 discovery violation, and (4) cumulative error. Having reviewed the petition and the 19 state court record, the Court finds Small’s habeas petition is premature, because the 20 sentencing court has not yet issued an amended judgment in accordance with the 1 state court of appeals’ ruling. As a result, the Court dismisses Small’s petition 2 without an evidentiary hearing.
3 BACKGROUND 4 A. Small’s Conviction 5 In summer 2012, a jury convicted Small of one count of first degree rape, one
6 count of burglary with sexual motivation, and one count of forgery, based on a crime 7 that occurred in 2006. ECF No. 15-1 at 2. The Okanogan County Superior Court 8 sentenced him to a total of 380 months to life (“First Conviction and Sentence”). 9 ECF No. 15-1 at 6. Small does not challenge this sentence in his habeas petition.
10 See ECF No. 11. 11 In early fall 2012, a jury convicted Small of one count of first degree 12 aggravated murder, one count of first degree rape, and one count of first degree
13 burglary with sexual motivation, based on a crime that occurred in 1998. ECF No. 14 15-1 at 38. The Okanogan County Superior Court sentenced Small to a consecutive 15 mandatory life sentence without the possibility of parole (“Second Conviction and 16 Sentence”). ECF No. 15-1 at 42. Small challenges this conviction and sentence in
17 his petition. 18 B. Direct Appeal 19 Small timely appealed his Second Conviction and Sentence to the
20 Washington State Court of Appeals on six grounds: 1 1. The exercise of peremptory challenges silently by writing violated Mr. Small’s constitutional right to a public trial. 2 2. The evidence was insufficient to support the conviction for first degree murder—premeditated. 3 3. The evidence was insufficient to support the conviction for first degree rape. 4 4. The trial court erred in imposing a sexual motivation enhancement on the first degree burglary conviction. 5 5. The record does not support the implied finding Mr. Small has the current or future ability to pay the imposed legal financial 6 obligations 6. The court erred by imposing discretionary costs. 7
8 ECF No. 15-1 at 60. The Washington Court of Appeals affirmed Small’s 9 convictions but remanded on the fourth issue. Because Wash. Rev. Code 10 9.94A.533(8)(a) only applies to offenses committed after July 1, 2006, the 11 sentencing court should not have applied the 24-month sexual motivation 12 enhancement to his burglary count, which arose from a 1998 crime. Id. at 190–91. 13 The Court of Appeals noted that “little purpose is served in modifying the smallest 14 concurrent sentence” but “it is erroneous and must be fixed since the judgment 15 would otherwise be facially invalid.” Id. at 191. The sentencing court has not yet 16 issued an amended judgment. See id. at 408, 424–426. 17 Small then petitioned for review of his Second Conviction and Sentence in 18 the Washington State Supreme Court, raising two grounds. He challenged his rape 19 conviction as violating his Fourteenth Amendment and Washington Constitution 20 right to due process because the State presented insufficient evidence of sexual 1 intercourse, and his first degree murder conviction under the same provisions 2 because the State presented insufficient evidence of premeditation. Id. at 195. The
3 supreme court summarily dismissed his petition. Id. at 252. 4 C. Personal Restraint Petition 5 Small then filed a personal restraint petition (PRP) in the Washington State
6 Court of Appeals. ECF No. 15-1 at 256. He raised five grounds for relief: (1) the 7 trial court judge erred in not recusing himself; (2) the prosecutor withheld a 2007 8 retest crime lab report in violation of Brady; (3) insufficient evidence; (4) 9 prosecutor misconduct; and (5) cumulative error. Id. at 257. The Washington State
10 Court of Appeals dismissed Small’s PRP. Id. at 403. Small did not appeal to the 11 Washington State Supreme Court. The Washington State Court of Appeals issued 12 its certificate of finality as to the PRP. Id. at 405.
13 LEGAL STANDARD 14 “An application for a writ of habeas corpus on behalf of a person in custody 15 pursuant to the judgment of a State court shall not be granted unless it appears that 16 . . . the applicant has exhausted the remedies available in the courts of the State.”
17 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement “is designed to give the 18 state courts a full and fair opportunity to resolve federal constitutional claims before 19 those claims are presented to the federal courts,” and, therefore, requires “state
20 prisoners [to] give the state courts one full opportunity to resolve any constitutional 1 issues by invoking one complete round of the State’s established appellate review 2 process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (establishing that
3 exhaustion requires presenting each claim to the state’s highest court). 4 DISCUSSION 5 A. Small’s Petition is Premature Small has not exhausted his remedies. The Washington State Court of 6 Appeals remanded Small’s case to Okanogan Superior Court, directing it to issue 7 an amended judgment because it should not have applied a sexual motivation 8 enhancement to Small’s sentence. The court of appeals noted that “little purpose is 9 served in modifying the smallest concurrent sentence imposed in this case, it is 10 erroneous and must be fixed since the judgment would otherwise be facially 11 invalid.” ECF No. 15-1 at 191. It remanded “for the trial court to either conduct a 12 new sentencing proceeding on the burglary count or enter an agreed order correcting 13 the standard range and imposing a new term within that range.” Id. The superior 14 court has not yet entered an amended judgment. See id. at 408, 424–426. 15 The procedural history in this case parallels that in United States v. 16 LaFromboise, 427 F.3d 680 (9th Cir. 2005). There, a jury in federal district court 17 convicted LaFromboise to five counts related to his involvement in a narcotics 18 trafficking scheme. Id. at 681. He appealed his conviction to the Ninth Circuit, 19 which vacated his conviction on three of his charges. Id. at 682. The Ninth Circuit 20 1 remanded those charges for a retrial, but the government eventually dismissed them. 2 Id. But the district court did not conduct a new sentencing hearing or enter an
3 amended judgment. Id. LaFramboise brought a § 2255 petition for habeas relief, 4 which the government argued was untimely because it was brought more than a 5 year after the time to appeal the Ninth Circuit’s decision (which remanded the case
6 to the district court) to the Supreme Court expired. Id. The Ninth Circuit held that 7 “[u]ntil the district court enters an amended judgment or conviction, LaFromboise’s 8 § 2255 motion is in fact premature, rather than untimely.” Id. at 686. Key to the 9 court’s decision was the availability of appeal. Id. at 684; see also United States v.
10 Colvin, 204 F.3d 1221 (9th Cir. 2000) (reasoning that judgment of conviction did 11 not become final until the time for appealing the amended judgment had passed 12 because “the key inquiry” was appealability and a bright line rule clarifies the issue
13 of finality). 14 Although LaFromboise concerned a conviction in federal court and a § 2255 15 petition for habeas relief, and Small’s conviction arose in state court and he presents 16 a § 2254 petition for relief, the underlying analysis applies. Compare id. at 682 with
17 ECF No. 11. Until the superior court resentences Small on the burglary count, enters 18 an agreed order, or enters an amended judgment and Small’s opportunity for appeal 19 of that action, if any, has passed, this habeas motion is premature under
20 LaFromboise. See also In re Pers. Restraint of Skylstad, 162 P.3d 413, 416 (Wash. 1 2007) (court of appeals mandate was not a final judgment when “more needed to 2 be done than simply executing the judgment”); State v. Harrison, 61 P.3d 1104,
3 1110 (Wash. 2003) (“finality was destroyed” where the case was remanded for 4 resentencing). Even though the court of appeals only remanded on the burglary 5 count, the judgment is not yet final as to any count until after the resentencing. See
6 LaFramboise, 427 F.3d at 684–685. 7 A federal court cannot consider a petition for habeas relief under § 2254 until 8 the underlying judgment becomes final. See 28 U.S.C. §§ 2244(d), 2254. Small has 9 not given “the state courts one full opportunity to resolve any constitutional issues
10 by invoking one complete round of the State’s established appellate review 11 process.” See O’Sullivan, 526 U.S. at 845 (emphasis added). The Court thus need 12 not reach the merits of Small’s claims.
13 B. No certificate of appealability shall issue 14 An unsuccessful habeas petitioner may appeal the district court’s adverse 15 ruling only after obtaining a “certificate of appealability” from a district or circuit 16 judge. 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability should issue only
17 when the petitioner “has made a substantial showing of the denial of a constitutional 18 right.” Id. at § 2253(c)(2). Such a showing is made when the Court determines 19 “reasonable jurists could debate whether (or, for that matter, agree that) the petition
20 should have been resolved in a different manner or that the issues presented were 1 ‘adequate to deserve encouragement to proceed further.’” Slack v. McDaniel, 529 2 U.S. 473, 475 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 894 (1983)). The
3 Court finds Small has not made such a showing and thus no certificate of 4 appealability shall issue. 5 CONCLUSION
6 Small prematurely petitioned for habeas relief. He is therefore entitled no 7 relief, and the Court dismisses the petition. The Court also cannot find that 8 reasonable jurists could debate the merits of Small’s claims on habeas review, and 9 thus no certificate of appealability shall issue.
10 Accordingly, IT IS HEREBY ORDERED: 11 1. Petitioner Kelly E. Small’s Second Amended Petition Under 28 U.S.C. 12 § 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF
13 No. 11, is DISMISSED. 14 2. No certificate of appealability shall issue because the Court finds Small 15 has not made a substantial showing of the denial of a constitutional 16 right.
17 // 18 // 19 //
20 // 1 3. The Clerk’s Office is directed to CLOSE this file. 2 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 3 || provide copies to all counsel and Petitioner. 4 DATED this 9" day of November 2020.
5 —~, fron 6 SAB VADOR MENDe eA, JR. United States District Judze 7 8 9 10 11 12 13 14 15 16 17 18 19 20