Trotter v. Strange

• Court: District Court, W.D. Washington
• Decided: January 19, 2022
• Docket: 3:21-cv-05612
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 AARON WALLACE TROTTER, CASE NO. 3:21-cv-05612-DGE-JRC 11 Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 CHERYL STRANGE, 14 Respondent. 15

16 I. INTRODUCTION 17 This matter comes before the Court on the Report and Recommendation (“R & R”) of the 18 Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. No. 10), and Petitioner 19 Aaron Wallace Trotter objections to the R & R (Dkt. No. 11.) On December 6, 2021, Judge 20 Creatura recommended the Court dismiss Petitioner’s habeas petition and not issue a certificate 21 of appealability. (Dkt. No. 10.) On December 20, 2021, Petitioner filed objections. (Dkt. No. 22 11.) 23 24 1 For the reasons provided below, the R & R should be adopted, the petition denied, and no 2 certificate of appealability issued. 3 II. BACKGROUND 4 On May 31, 2015, Shantell Zimmerman went to Petitioner’s house for a barbecue. (Dkt. 5 No. 8–1 at 363.) Petitioner punched Zimmerman several times, put his arm around

6 Zimmerman’s neck, and hit Zimmerman on the back and the head with the butt of a rifle. (Id.) 7 On June 9, 2015, the State charged Petitioner by information with two counts of assault. (Id.) 8 Count I was for second degree assault by strangulation. (Id.) Count II was for second degree 9 assault with a deadly weapon. (Id.) 10 In Washington, the second degree assault statute articulates a single criminal offense and 11 currently provides seven separate subsections defining how the offense may be committed. State 12 v. Fuller, 367 P.3d 1057, 1059 (Wash. 2016); see also RCW 9A.36.021(1)(a)–(g). 13 At the first trial, the jury was provided the following instructions: 14 INSTRUCTION NO. 5

15 A separate crime is charged in each count. You must decide each count separately. Your 16 verdict on one count should not control your verdict on the other count. 17 INSTRUCTION NO. 6 18 A person commits the crime of assault in the second degree when he assaults another 19 with a deadly weapon or assaults another by strangulation. 20 INSTRUCTION NO. 9 21 To convict the defendant of the crime of assault in the second degree as charged in count 22 I, each of the following elements of the crime must be proved beyond a reasonable doubt: 23 24 1 (1) That on or about May 31, 2015, the defendant assaulted Shantell Zimmerman by 2 strangulation; and 3 (2) That this act occurred in the State of Washington. 4 INSTRUCTION NO. 15 5 To convict the defendant of the crime of assault in the second degree as charged in count

6 II, each of the following elements of the crime must be proved beyond a reasonable doubt: 7 (1) That on or about May 31, 2015, the defendant assaulted Shantell Zimmerman with a 8 deadly weapon; and 9 (2) That this act occurred in the State of Washington. 10 INSTRUCTION NO. 16 11 A firearm, whether loaded or unloaded, is a deadly weapon. 12 (Dkt. No. 8–1 at 365–367.) 13 The jury returned verdicts, finding Petitioner not guilty of second degree assault by 14 strangulation (Count I) and leaving the verdict form blank for second degree assault with a

15 deadly weapon (Count II). (Id. at 321.) The trial judge confirmed that the verdict form was left 16 blank because the jury could not come to a conclusion as to Count II. (Id. at 318–319.) As the 17 jury could not come to a conclusion on the Count II, the trial court declared a mistrial as to 18 second degree assault with a deadly weapon (Count II). (Id. at 370.) 19 Petitioner was retried on the charge of second degree assault with a deadly weapon. (Id. 20 at 368.) Petitioner's second trial ended in a mistrial after a lay witness gave expert testimony. 21 (Id.) Petitioner was retried a third time on the second degree assault with a deadly weapon and 22 the jury found him guilty. (Id. at 370.) Petitioner was sentenced to 39 months of confinement. 23 (Id.) 24 1 On July 31, 2017, the Washington Court of Appeals affirmed his conviction. Petitioner 2 then filed a Washington State petition for a writ of habeas corpus, as well as a motion to vacate 3 his judgment and sentence. (Dkt. No. 2 at 5–6.) In both the state habeas petition and motion to 4 vacate, the Petitioner argued that his conviction violated the prohibition on double jeopardy. (Id. 5 at 6.) On October 27, 2020, the Court of Appeals rejected Petitioner’s double jeopardy

6 arguments, in part by finding that the “overall offense” never ended merely because he was 7 acquitted on the assault by strangulation charge and the jury’s decision to leave the verdict form 8 on Count II blank was not an implied acquittal of Count II. (Id. at 6–7.) 9 On February 18, 2021, a Commissioner of the Supreme Court of Washington denied 10 Petitioner’s petition for review on substantially similar grounds as those before the Court of 11 Appeals. (Id. at 7.) 12 Petitioner filed the present petition on August 24, 2021, alleging two violations: 1) he 13 was denied his Fifth Amendment right to avoid double jeopardy when the State retried him for 14 assault with a deadly weapon after he had been acquitted of assault by strangulation, and 2) he

15 was prosecuted in contravention of the collateral estoppel doctrine because he was impliedly 16 acquitted on the charge of assault with a deadly weapon. (Dkt. No. 2 at 7–8.) For reasons 17 discussed below, Petitioner’s habeas petition is denied and no certificate of appealability will be 18 issued. 19 III. STANDARD OF REVIEW 20 The district judge must determine de novo any part of the magistrate judge's disposition 21 that has been properly objected to. The district judge may accept, reject, or modify the 22 recommended disposition; receive further evidence; or return the matter to the magistrate judge 23 with instructions. Fed. R. Civ. P. 72(b)(3). 24 1 IV. DISCUSSION 2 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “bars relitigation 3 of any claim ‘adjudicated on the merits’ in state court, subject only to the exceptions set forth in 4 [28 U.S.C.] §§ 2254(d)(1) and (d)(2).” Harrington v. Richter, 562 U.S. 86, 98 (2011). An 5 application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state

6 conviction cannot be granted with respect to any claim that was adjudicated on the merits in state 7 court unless the adjudication: “(1) resulted in a decision that was contrary to, or involved an 8 unreasonable application of, clearly established federal law as determined by the Supreme Court 9 of the United States; or (2) resulted in a decision that was based upon an unreasonable 10 determination of the facts in light of the evidence presented in the state court proceeding.” 28 11 U.S.C. § 2254(d). The AEDPA limits the source of law to cases decided by the United States 12 Supreme Court. Id. This Court may consider only the “clearly established” holdings, and not 13 Supreme Court dicta or lower court precedent. Williams v. Taylor, 529 U.S. 362, 412 (2000); 14 Carter v. Davis, 946 F.3d 489, 501 (9th Cir. 2019).

15 The Ninth Circuit has warned that Supreme Court precedent should not be framed at “a 16 high level of generality” such that “a lower federal court could transform even the most 17 imaginative extension of existing case law into ‘clearly established Federal law.’” Nevada v. 18 Jackson, 569 U.S. 505, 512 (2013) (citation omitted). For a State court decision to be 19 overturned, it must arrive at a conclusion “opposite to that reached by [the Supreme] Court on a 20 question of law or if the state court decides a case differently than [the Supreme] Court has on a 21 set of materially indistinguishable facts.” Williams, 529 U.S. at 413. 22 Even if a Supreme Court case addressed a similar topic or type of case, the step of 23 extending a rationale drawn from Supreme Court precedent means such rationale, “by 24 1 definition,” is not clearly established law. White v. Woodall, 572 U.S. 415, 426 (2014). Indeed, 2 invalidating a state court adjudication because the state court did not extend the Supreme Court’s 3 precedent in a manner that the Supreme Court has not yet done would severely compromise the 4 deference required under the statute. Glebe v. Frost, 574 U.S. 21, 23–25 (2014). “Section 5 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under

6 the guise of extensions to existing law.” Yarborough v. Alvarado, 541 U.S. 652, 666 (2004). 7 And an “unreasonable application of” those holdings must be “objectively unreasonable,” 8 not merely wrong; even “clear error” will not suffice. Lockyer v. Andrade, 538 U.S. 63, 75–76 9 (2003). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state 10 prisoner must show that the state court's ruling on the claim being presented in federal court was 11 so lacking in justification that there was an error well understood and comprehended in existing 12 law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 13 103 (2011). 14 A. Having Reviewed The Record De Novo, The Court Finds No Error In Judge Creatura’s Analysis of Double Jeopardy and Implied Acquittal. 15 1. Double Jeopardy. 16 The Double Jeopardy Clause protects against three distinct abuses: (1) a second 17 prosecution for the same offense after conviction; (2) a second prosecution for the same offense 18 after acquittal; and (3) multiple punishments for the same offense. Schiro v. Farley, 510 U.S. 19 222, 229 (1994) (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). 20 Petitioner contends that, because he was acquitted of second degree assault by 21 strangulation at the first trial, the successive prosecution component of the Double Jeopardy 22 Clause was violated when he was subsequently retried for second degree assault on the theory of 23 assault with a deadly weapon. 24 1 Judge Creatura, however, thoroughly analyzed this issue and the Court agrees with his 2 analysis. Though Petitioner argues that “Fuller relied heavily on case law applicable to lesser- 3 included offenses in arriving at its conclusion” (Dkt. 11 at 6), such position does not change its 4 unambiguous holding: 5 [W]hen the State charges alternative means of committing an offense in separate counts and the jury acquits on one count but deadlocks on the other, the State may 6 retry the defendant on the count on which the jury was declared hung. Retrial on that count does not violate the prohibition against double jeopardy because 7 jeopardy never terminated as to that count or as to the overall offense.

8 State v. Fuller, 367 P.3d 1057, 1063 (Wash. 2016). Fuller is indistinguishable from the present 9 matter. 10 In addition, the Court is not persuaded that State v. Villanueva-Gonzalez, 329 P.3d 78 11 (Wash. 2014) is controlling. As noted by Judge Creatura, Petitioner “did not run the risk of 12 multiple punishments for the same offense as the defendant in Villanueva-Gonzalez.” (Dkt. No. 13 10 at 9.) 14 Petitioner also argues, “The R&R failed to address the heart of the matter: that Petitioner 15 was thrice placed in double jeopardy for the same offense” and that the “Fifth Amendment of the 16 United States Constitution protects a criminal defendant against multiple punishments for the 17 same offense.” (Dkt. 11 at 5.) Petitioner’s position completely overlooks Fuller’s unambiguous 18 holding that “jeopardy never terminated as to [the second count for assault in the second degree] 19 or as to the overall offense.” Fuller, 367 P.3d at 1063 (emphasis added). Moreover, the facts do 20 not establish that Petitioner would have been subjected to multiple punishments for the same 21 offense. The facts establish only that two theories in separate counts were advanced to establish 22 assault in the second degree, which Fuller explicitly allows for. Id. Petitioner fails to present 23 any authority establishing Fuller to be contrary to clearly established federal law. 24 1 2. Implied Acquittal. 2 Petitioner asserts Judge Creatura improperly relied on “the trial court’s on-record inquiry 3 to the presiding juror regarding a potential deadlock as to County Two” (Dkt. No. 11 at 7) and 4 without analysis, cites to State v. Linton, 132 P.3d 127 (2006) for the proposition that the “trial 5 court erred by inquiring into the jury’s thinking about that count.” (Id.) (quoting Dkt. 9 at 7.)

6 Linton, however, involved a situation where a jury reached a verdict on a lesser included 7 offense. 132 P.3d at 129. The defendant was charged with first degree assault. The jury 8 ultimately found the defendant guilty of the lesser included offense of second degree assault. 9 After the verdict was announced, the trial court inquired whether the jury could reach a verdict 10 on the assault in the first degree charge if given more time. Under those facts, the trial court’s 11 inquiry was improper. Linton, 132 P.3d at 132–133 (“[G]iven the unable to agree jury 12 instruction and the verdict on the second degree assault, the trial judge erred by inquiring into the 13 jury’s thinking about the first degree assault charge.”) The present matter does not involve the 14 verdict of a lesser included offense. Linton, therefore, is not applicable and Petitioner cites to no

15 other authority supporting the position that the trial court’s interactions with the jury in this 16 matter were improper. 17 Likewise, Petitioner’s citation to Green v. United States, 355 U.S. 184 (1957) to support 18 the position that an implicit acquittal occurred is of no consequence. This is because, as 19 Petitioner notes, “a higher offense is prohibited by double jeopardy where the jury had a full 20 opportunity to return a verdict on the higher offense and was dismissed without doing so.” (Dkt. 21 No. 11 at 7) (emphasis added). The present facts do not involve a higher offense as both Counts 22 I and II in this matter were for assault in the second degree. 23 3. No Basis For Issuance of a Certificate of Appealability. 24 1 Petitioner asserts State v. Villanueva-Gonzalez, 329 P.3d 78 (Wash. 2014) is applicable 2 and therefore a certificate of appealability should issue. For reasons already stated, Villanueva- 3 Gonzalez is not applicable and the Court finds no basis to issue a certificate of appealability. 4 In short, the Court reaches the same conclusions as Judge Creatura on all issues 5 presented.

6 V. CONCLUSION 7 Accordingly, and having considered Petitioner’s petition, the briefing of the parties, and 8 the remainder of the record, and the Report and Recommendation of the Honorable J. Richard 9 Creatura, United States Magistrate Judge, the Court finds and ORDERS: 10 1. The Court ADOPTS the report and recommendation. 11 2. Petitioner’s federal habeas petition is DISMISSED with prejudice. 12 3. A certificate of appealability is DENIED in this case. 13 4. The Clerk is directed to send copies of this order to petitioner, counsel for respondent, 14 and to the Hon. J. Richard Creatura.

15 Dated this 19th day of January 2022. 16 17 A David G. Estudillo 18 United States District Judge 19 20 21 22 23 24