Steven Paul Kozol v. Ron Haynes

• Court: District Court, W.D. Washington
• Decided: January 15, 2026
• Docket: 2:22-cv-00760
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 STEVEN PAUL KOZOL,

9 Petitioner, Case No. 22-760-BJR-DWC

10 v. ORDER ADOPTING REPORT AND 11 RON HAYNES, RECOMMENDATION

12 Respondent.

14 I. INTRODUCTION

15 This matter comes before the Court on the Report and Recommendation (“R&R”) of U.S. 16 Magistrate Judge David W. Christel, which recommends denial of Petitioner Steven Paul Kozol’s 17 petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254. Petitioner objects to the 18 R&R. 19 Having reviewed this matter in light of Petitioner’s objections, Respondent’s response, the 20 remaining record, and the relevant legal authorities, the Court hereby adopts the R&R, denies 21 Petitioner’s § 2254 petition, and dismisses this case with prejudice. The Court also denies a 22 certificate of appealability (“COA”). The reasoning for the Court’s decision follows. 23 24 ORDER ADOPTING REPORT AND RECOMMENDATION - 1 1 II. BACKGROUND 2 The 36-page R&R contains a thorough review of the facts and procedural history of this 3 case, which the Court will not repeat here. In sum, Petitioner seeks relief under § 2254 from his 4 King County Superior Court convictions on charges of attempted murder in the first degree and

5 burglary in the first degree. R&R at 2, Dkt. No. 46. Petitioner was originally sentenced to 479 6 months in prison. Exh. 11 at 115, Dkt. No. 1-1. 7 In 2001, following a jury conviction, Petitioner filed a direct appeal. R&R at 4. The 8 Washington State Court of Appeals found no reversible error and affirmed Petitioner’s conviction. 9 Id. at 5. Petitioner sought discretionary review before the Washington Supreme Court. Id. On 10 February 4, 2004, the Washington Supreme Court denied review without comment. Id. 11 On February 16, 2005, Petitioner filed a motion for relief from judgment, which was treated 12 as his first personal restraint petition (“PRP”). Id. at 6. The State Court of Appeals dismissed the 13 2005 PRP on the merits. Id. Petitioner sought review before the Washington Supreme Court. Id. 14 The State Supreme Court denied discretionary review. Id. at 6-7.

15 In 2006, Petitioner filed a federal habeas petition. Id. at 7. The Court dismissed the 2006 16 Petition with prejudice, concluding that each of the grounds raised were unexhausted, procedurally 17 defaulted, or lacked merit. Id. Petitioner appealed. Id. at 7-8. The Ninth Circuit affirmed this 18 Court’s denial of habeas relief. Id. 19 In 2018, Petitioner filed a motion for resentencing before the Trial Court, contending the 20 offender score used at his original sentencing was incorrectly calculated. Id. at 8. The Trial Court 21 granted Petitioner’s motion. Id. On November 1, 2020, the Trial Court vacated Petitioner’s original 22 judgment and sentence and issued a new judgment and sentence, which reduced Petitioner’s term 23

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 2 1 of incarceration from 479 months to 390 months. Id. at 8-9. Petitioner initially appealed, in part, 2 the Trial Court’s decision on resentencing but later voluntarily dismissed that appeal. Id. at 9. 3 In 2022, Petitioner filed a PRP in the State Court of Appeals. Id. The 2022 PRP raised six 4 grounds for relief. Id. The State Court of Appeals concluded, among other things, that Grounds

5 One Through Five concerned aspects of Petitioner’s original judgment and sentence, and the new 6 judgment and sentence on resentencing did not reset the clock on his ability to obtain state 7 collateral review of those claims. Id. at 10. Accordingly, the State Court of Appeals dismissed 8 Grounds One through Five as untimely and barred under Revised Code of Washington (“RCW”) 9 § 10.73.090, which requires that PRPs be filed within one year after a facially valid judgment and 10 sentence becomes final. Id. at 9-10. The State Court of Appeals also concluded that Petitioner’s 11 sixth claim was without merit. Id. at 10. 12 Petitioner sought discretionary review. Id. The State Supreme Court commissioner denied 13 review, concluding, among other things, that the State Court of Appeals did not err in finding that 14 the 2022 PRP was barred under RCW § 10.73.090. Id. at 10-11.

15 In 2022, Petitioner also filed a petition for writ of habeas corpus pursuant to § 2254 in this 16 Court. Id. at 11. The Court entered a stay on September 9, 2022, so that Petitioner could attempt 17 to exhaust his remedies in the state court. Id. at 12. On September 25, 2024, the State Court of 18 Appeals issued a certificate of finality with respect to the 2022 PRP. Id. at 11. On October 23, 19 2024, this Court lifted its stay. Id. at 12. 20 Magistrate Judge Christel’s R&R recommends denial of the § 2254 petition, dismissal of 21 the action with prejudice, denial of Petitioner’s request for an evidentiary hearing, and denial of a 22 COA. Id. at 36. Petitioner filed objections, Dkt. No. 49, which the Court discusses below. 23

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 3 1 III. DISCUSSION 2 A. Standard of Review 3 In reviewing the R&R, this Court “shall make a de novo determination of those portions of 4 the report or specified proposed findings or recommendations to which objection is made.” 28

5 U.S.C. § 636(b)(1)(C). However, a district court is free to adopt those portions of a magistrate 6 judge’s report to which no specific objection is made, provided they are not clearly erroneous. 7 Thomas v. Arn, 474 U.S. 140, 149 (1985). 8 B. Petitioner’s Grounds for Relief 9 As explained by the magistrate judge, Petitioner now raises six grounds for relief: 10 (1) prosecutorial misconduct during closing argument in violation of the Sixth and Fourteenth 11 Amendments to the United States Constitution; (2) admission of improper evidence in violation of 12 the First and Fourteenth Amendments; (3) suppression of material impeachment evidence 13 regarding Detective Denny Gulla’s professional misconduct, in violation of Brady v. Maryland, 14 373 U.S. 83 (1963); (4) destruction of potentially exculpatory evidence in violation of the

15 Fourteenth Amendment; (5) ineffective assistance of trial and appellate counsel in violation of the 16 Sixth and Fourteenth Amendments; and (6) denial of access to the courts in violation of the First, 17 Fifth, and Fourteenth Amendments. R&R at 11. The magistrate judge rejected Petitioner’s grounds 18 for relief. Id. at 36. The Court addresses each objection in turn. 19 1. Petitioner Procedurally Defaulted on Grounds One through Five 20 The magistrate judge found that Petitioner procedurally defaulted on Grounds One through 21 Five of his § 2254 petition based on Washington state courts’ decision not to reach those grounds 22 in light of Petitioner’s failure to raise them within RCW § 10.73.090’s one-year filing deadline for 23 PRPs. Id. at 19-22. Petitioner asserts that there was no procedural default because RCW

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 4 1 § 10.73.090’s time bar was not “clear, consistently applied, and well-established” at the time of 2 his purported default. Pet.’s Objs. at 5-7. 3 In habeas proceedings, the procedural default rule bars consideration of a federal claim 4 when it is clear the state court has been presented with the federal claim but declined to reach the

5 issue for procedural reasons, or it is clear that the state court would hold the claim procedurally 6 barred. Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002). “Procedural default is an 7 affirmative defense, and the state has the burden of showing that the default constitutes an adequate 8 and independent ground.” Insyxiengmay v. Morgan, 403 F.3d 657, 665 (9th Cir. 2005) (emphasis 9 omitted). “[T]o constitute an adequate state ground, the procedural rule must be ‘clear, consistently 10 applied, and well-established at the time of petitioner’s purported default.’” Powell v. Lambert, 11 357 F.3d 871, 874 (9th Cir. 2004) (quoting Wells v. Maass, 28 F.3d 1005, 1010 (9th Cir. 1994)). 12 Petitioner procedurally defaulted on Grounds One through Five of his § 2254 petition by 13 failing to raise those claims within one year after his judgment and sentence became final, as 14 required by RCW § 10.73.090. As the magistrate judge noted in the R&R, the Ninth Circuit has

15 repeatedly concluded that RCW § 10.73.090 is an independent, adequate, and well-established 16 state procedural rule. R&R at 20-21. In support of his argument that § 10.73.090’s time bar was 17 not “clear, consistently applied, and well-established,” at the time of his default, Petitioner cites to 18 various Washington Supreme Court cases in which that court either extended the deadline to file 19 a PRP or excused noncompliance with the filing deadline based on intervening legal developments. 20 Pet.’s Objs. at 5-6. However, the exercise of discretion under the extraordinary circumstances 21 presented by those cases does not demonstrate that RCW § 10.73.090 was not a clearly, 22 consistently applied, and well-established state procedural rule at the time of Petitioner’s default. 23 Indeed, procedural rules need not be applied in an “utterly mechanical” fashion to bar federal

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 5 1 habeas review. Morales v. Calderon, 85 F.3d 1387, 1392-93 (9th Cir. 1996); see also Scott v. 2 Schriro, 567 F.3d 573, 580 (9th Cir. 2009) (“A state rule is considered consistently applied and 3 well-established if the state courts follow it in the ‘vast majority of cases.’” (quoting Dugger v. 4 Adams, 489 U.S. 401, 411 n.6 (1989))); Powell, 357 F.3d at 875 (observing that “[m]any aspects

5 of Washington’s rule concerning time bars for personal restraint petitions are clear, consistently 6 applied, and well-established,” and the procedural bar for untimely mixed petitions was 7 consistently applied after the law was settled in 2000). 8 2. Petitioner Has Not Established a Basis for Excusing Procedural Default

9 Petitioner argues that any finding of procedural default should be excused based on “cause 10 and prejudice,” as well as actual innocence. Pet.’s Traverse at 17-25, Dkt. No. 42. The magistrate 11 judge rejected both arguments. R&R at 23-34. For the following reasons, the Court agrees with 12 the magistrate judge’s conclusions. 13 a. Cause and Prejudice

14 Procedural default by a state prisoner may be excused where the prisoner can demonstrate 15 cause for the default and actual prejudice. Coleman v. Thompson, 501 U.S. 722, 749-50 (1991). 16 To satisfy the “cause” prong of the cause and prejudice standard, petitioner must show that some 17 objective factor external to the defense prevented him from complying with the state’s procedural 18 rule. Id. at 753. 19 i. Grounds Three and Four 20 Petitioner asserts cause arising from that the alleged suppression of material impeachment 21 evidence regarding Detective Gulla’s professional misconduct and the destruction of potentially 22 exculpatory evidence, which Petitioner claims prevented him from raising Grounds Three and Four 23 of the instant § 2254 petition in his initial PRP. Pet.’s Traverse at 17-20. The magistrate judge 24 ORDER ADOPTING REPORT AND RECOMMENDATION - 6 1 rejected this argument based on record evidence showing that Petitioner was aware of the factual 2 predicate for Grounds Three and Four for years before he initiated these proceedings but failed 3 diligently pursue those claims. R&R at 24-25. Petitioner asserts that the magistrate judge 4 incorrectly concluded that Petitioner could have known about the State’s withholding and

5 destruction of evidence prior to February 24, 2005, the deadline to file his initial PRP. Pet.’s Objs. 6 at 7-9. 7 Petitioner has not established cause to overcome procedural default of his third and fourth 8 grounds for relief. The concealment of material evidence by the government may constitute cause 9 and prejudice for overcoming procedural default. See, e.g., Strickler v. Greene, 527 U.S. 263, 264 10 (1999). This does not mean, however, that cause exists in every instance where evidence has been 11 suppressed or destroyed; “[r]ather, the state’s suppression establishes cause only when it is the 12 reason for [a petitioner’s] failure to develop facts in state court proceedings.” Henry v. Ryan, 720 13 F.3d 1073, 1082 (9th Cir. 2013). 14 As to Ground Three, record evidence shows that Petitioner obtained the prosecutor’s report

15 “in either December 2004, or February 2005, and read of Detective Gulla’s past professional 16 misconduct in a newspaper in December 2005.” R&R at 24 (quoting Memorandum Decision in 17 Kozol v. Payne, No. 08-35094 (9th Cir. May 5, 2009)). Accordingly, Petitioner could have 18 presented his claim of evidence suppression to the Washington Court of Appeals for collateral 19 review under Washington’s time limit exception for “[n]ewly discovered evidence.” RCW 20 § 10.73.100(1). And as to Ground Four, Petitioner represents—and the evidence reflects—that he 21 was aware of the existence or destruction of evidence on or before 2011. R&R at 24-25. Petitioner 22 has not identified any evidence that contradicts this timeline. Given Petitioner’s failure to 23 diligently pursue Grounds Three and Four after learning of their factual predicate, he cannot now

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 7 1 establish that the State’s alleged suppression or destruction of evidence was the reason for his 2 failure to develop Grounds Three and Four in the state court proceedings. Henry, 720 F.3d at 1082. 3 ii. Grounds One, Two, and Five 4 As to cause for his default on Grounds One, Two, and Five—prosecutorial misconduct

5 during closing argument, admission of improper evidence, and ineffective assistance of trial and 6 appellate counsel—Petitioner argues that his status as a pro se litigant prevented him from 7 presenting those claims in his initial PRP. Pet.’s Traverse at 19-20. The magistrate judge concluded 8 that Petitioner’s prior pro se status did not excuse his procedural default. R&R at 25. In reaching 9 this conclusion, the magistrate judge found that none of the grounds asserted fell within the 10 equitable exception to procedural default established by Martinez v. Ryan, 566 U.S. 1 (2012). Id. 11 Petitioner asserts that the magistrate judge incorrectly concluded that Martinez does not apply to 12 Petitioner’s claims. Pet.’s Objs. at 9-10. 13 In Martinez, the U.S. Supreme Court established “a narrow exception” to procedural 14 defaults, holding that “[i]nadequate assistance of counsel at initial-review collateral proceedings

15 may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial.” 16 Martinez, 566 U.S. at 9. The Martinez Court explained that this exception does not “extend to 17 attorney errors in any proceeding beyond the first occasion the State allows the prisoner to raise a 18 claim of ineffective assistance at trial.” Id. at 16. 19 Martinez does not apply to the instant § 2254 petition. Notably, neither Grounds One nor 20 Two concern claims of absence of trial counsel or ineffective assistance of trial counsel. R&R 21 at 11. Nor does Martinez apply to Petitioner’s claim of ineffective assistance of appellate counsel, 22 raised in Ground Five, as the U.S. Supreme Court has expressly declined to extend Martinez to 23 such claims. Davila v. Davis, 582 U.S. 521, 530 (2017).

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 8 1 As to Petitioner’s claim of ineffective assistance of trial counsel, also raised in Ground 2 Five, it is undisputed that Petitioner raised an ineffective assistance of trial counsel claim at the 3 first available opportunity. R&R at 6, 25 (noting that Petitioner raised claims of ineffective 4 assistance of trial counsel on direct appeal and on collateral review in his initial PRP). Because the

5 Martinez exception does not extend beyond this “first occasion” for raising an ineffective 6 assistance of trial counsel claim, that exception cannot be used here to excuse Petitioner’s 7 procedural default on Ground Five. Martinez, 566 U.S. at 16; see also Senior v. Gilbert, No. 8 C15-0952, 2016 WL 4992677, at *2 (W.D. Wash. Sept. 19, 2016). Petitioner, providing no other 9 basis for establishing cause, has not overcome the procedural default. See Smith v. Murray, 477 10 U.S. 527, 533 (1986) (providing that, if a petitioner fails to demonstrate cause for his 11 noncompliance with a state’s procedures, a reviewing court “need not determine whether petitioner 12 has carried his burden of showing actual prejudice”). 13 b. Actual Innocence

14 Where a petitioner cannot overcome procedural default by showing cause and prejudice, 15 courts may nevertheless grant a habeas petition in an “extraordinary case.” Murray v. Carrier, 477 16 U.S. 478, 495-96 (1986). An extraordinary case is one in which habeas review is necessary to 17 correct a “fundamental miscarriage of justice,” that is, where a constitutional violation has resulted 18 in the conviction of a defendant who is actually innocent. Id. at 496. 19 To support his claim of actual innocence, Petitioner identifies the following evidence not 20 presented at trial: (1) a declaration from Petitioner’s former neighbor purporting to establish his 21 alibi during the events in question, (2) an anonymous confession letter disclosing non-public facts 22 about the crimes underlying Petitioner’s convictions, (3) allegedly suppressed evidence of 23

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 9 1 Detective Gulla’s professional misconduct, and (4) evidence that was allegedly destroyed or not 2 retained by the State. Pet.’s Traverse at 20-25. 3 In addressing the purportedly new evidence, the magistrate judge adopted the reasoning of 4 the Washington Court of Appeals, which addressed the same evidence in response to Petitioner’s

5 2022 PRP. R&R at 26. Like the Washington Court of Appeals, the magistrate judge concluded that 6 neither the declaration from the former neighbor nor the anonymous confession letter were reliable 7 evidence of Petitioner’s innocence. Id. at 26-30. Furthermore, the magistrate judge concluded that 8 Detective Gulla’s misdeeds were not connected to Petitioner’s case, and neither those misdeeds 9 nor the evidence allegedly destroyed by the State demonstrated Petitioner’s innocence, in light of 10 the evidence presented at trial. Id. at 30-34. 11 Petitioner asserts that the magistrate judge failed to take a holistic view of the evidence, 12 which, according to Petitioner, shows that, more likely than not, any reasonable juror would have 13 reasonable doubt as to Petitioner’s guilt. Pet.’s Objs. at 10-12. Petitioner has not made a colorable 14 showing of actual innocence. A claim of actual innocence must be based on reliable evidence not

15 presented at trial; “given the rarity of such evidence, ‘in virtually every case, the allegation of 16 actual innocence has been summarily rejected.’” Calderon v. Thompson, 523 U.S. 538, 560-61 17 (1998). To prevail, Petitioner must present evidence showing, more likely than not, that he is in 18 fact innocent of the crime. Schlup v. Delo, 513 U.S. 298, 327 (1995); see also Carriger v. Stewart, 19 132 F.3d 463, 478 (9th Cir. 1997) (actual innocence shown by sworn confession of third person 20 accurately describing details of crime). 21 Contrary to Petitioner’s contention, the R&R reflects that the magistrate judge examined 22 the evidence thoroughly, providing detailed reasons for rejecting each piece of evidence and 23 considering that evidence in light of the record as a whole. See R&R at 26-34. The Court finds no

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 10 1 error in the magistrate judge’s reasoning. The Court is unpersuaded by Petitioner’s version of the 2 facts. Petitioner’s claim of actual innocence fails. 3 3. Ground Six is Not Cognizable in Federal Habeas Proceedings 4 The magistrate judge concluded that Ground Six of the instant § 2254 petition, that

5 Washington’s bar on untimely PRPs violates Petitioner’s First Amendment right of access to the 6 courts, was not cognizable in federal habeas corpus proceedings. Id. at 34-35. Petitioner argues 7 that the magistrate judge ignored the Supreme Court’s decision in Gutierrez v. Saenz, 606 U.S. 8 305, 314 (2025), which acknowledged that “‘a state-created right to postconviction procedures 9 can, in some circumstances, beget yet other rights to procedures essential to the realization of the 10 parent right.’” Pet.’s Objs. at 13. 11 The Court again finds no error in the magistrate judge’s reasoning. As the magistrate judge 12 noted, the Ninth Circuit has consistently held that claims challenging post-conviction proceedings 13 in the state courts are not cognizable in habeas corpus proceedings under § 2254 because they do 14 not challenge a petitioner’s detention. R&R at 34-35. The Supreme Court’s decision in Gutierrez

15 does not alter Ninth Circuit precedent in this regard. Indeed, the Gutierrez Court concluded that 16 an inmate had standing to bring a claim challenging Texas’s postconviction DNA testing 17 procedures pursuant to 42 U.S.C. § 1983. Gutierrez, 606 U.S. at 309. That Court did not address 18 whether a challenge to the collateral review of a state court conviction and sentence, such as the 19 access to courts claim Petitioner raises here, is cognizable in § 2254 proceedings. See generally id. 20 Petitioner’s sixth ground for relief fails. 21 IV. EVIDENTIARY HEARING 22 The magistrate judge concluded that it was unnecessary to hold an evidentiary hearing 23 because the case could be resolved on the existing state court record. R&R at 35. Petitioner

24 ORDER ADOPTING REPORT AND RECOMMENDATION - 11 1 contends that an evidentiary hearing is justified because he bears no fault in failing to develop the 2 factual record in state court. Pet.’s Objs. at 5. 3 The Court agrees that an evidentiary hearing is unnecessary in this case. The state court 4 record is adequately developed and refutes Petitioner’s allegations such that he cannot show that

5 he is entitled to relief under § 2254. Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007) (providing 6 that the decision to hold an evidentiary hearing is committed to the Court’s discretion, and “if the 7 record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district 8 court is not required to hold an evidentiary hearing”). The request for an evidentiary hearing is 9 denied. 10 V. CERTIFICATE OF APPEALABILITY 11 The magistrate judge concluded that Petitioner was not entitled to a COA because “[n]o 12 jurist of reason could disagree with this Court’s evaluation of Petitioner’s claims or would 13 conclude the issues presented in the Petition should proceed further.” R&R at 36. Petitioner asserts 14 that the Court should grant a COA because the grounds presented are not “utterly without merit.”

15 Pet.’s Objs. at 14. 16 For the reasons discussed above, the Court agrees with the magistrate judge that Petitioner 17 is not entitled to a COA. 18 VI. CONCLUSION 19 For the foregoing reasons:

20 A. Petitioner Steven Paul Kozol’s objections are OVERRULED;

21 B. The Report and Recommendation is APPROVED and ADOPTED;

22 C. Petitioner’s § 2254 petition for writ of habeas corpus, and this action, are DISMISSED with prejudice; 23 D. No certificate of appealability will issue; and 24 ORDER ADOPTING REPORT AND RECOMMENDATION - 12 1 E. The Clerk is directed to close this case and send copies of this Order to Petitioner and 2 to Magistrate Judge Christel.

3 DATED this 15th day of January 2026. 4

5 A 6 BARBARA J. ROTHSTEIN 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ADOPTING REPORT AND RECOMMENDATION - 13