1 2 3 4
5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 WENDELL MAURICE CLARK, CASE NO. 3:24-cv-06036-DGE-TLF 11 Petitioner, ORDER ON REPORT AND 12 v. RECOMMENDATION (DKT. NO. 27) AND PETITIONER’S 13 SCOTT SPEER, OBJECTIONS (DKT. NO. 30) 14 Respondent. 15
16 I INTRODUCTION 17 Before the Court are Petitioner’s objections (Dkt. No. 30) to the Report and 18 Recommendation (“R&R”) of Chief United States Magistrate Judge Theresa L. Fricke (Dkt. No. 19 27), which recommends denying both Petitioner’s petition for writ of habeas corpus (Dkt. No. 5) 20 and his motion for appointment of counsel (Dkt. No. 23). For the reasons that follow, this Court 21 ADOPTS the R&R in full. 22 23 24 1 II BACKGROUND 2 A. Factual Background 3 The Court adopts Judge Fricke’s recitation of the facts (see Dkt. No. 27 at 2–5) but 4 shades them in slightly. As of the filing of his habeas petition, Petitioner is incarcerated at the
5 Stafford Creek Corrections Center in Aberdeen, Washington. (See Dkt. No. 5 at 1.) 6 Petitioner’s criminal convictions arose out of an incident in April 2018.1 (Dkt. No. 14-3 7 at 85.) On the evening of April 21, Petitioner went over to the apartment of S.V., whom he was 8 dating at the time, and her teenage daughter K.V. (Id. at 85–86.) In the early morning hours of 9 April 22, Petitioner and S.V. began engaging in consensual vaginal intercourse, but at some point 10 during the encounter, Petitioner began engaging in anal intercourse with S.V. without asking or 11 telling her. (Id. at 86.) S.V. protested that she was in pain and attempted to push Petitioner off 12 her, but he pinned her down and continued to engage in intercourse with her. (Id.) Later, once 13 Petitioner was asleep, S.V. texted her friend Katie Davis, who encouraged S.V. to contact the 14 police. (Id.) Davis also reached out to K.V. and asked her to check in on her mother. (Id.) K.V.
15 estimated it was about 1:00 a.m. when Davis contacted her. (Id.) K.V. knocked on S.V.’s door; 16 S.V. told K.V. that she was “fine” but K.V. noticed S.V. “‘was acting kind of off.’” (Id.) 17 (citation omitted). K.V. thought nothing of her mother’s demeanor until the next morning, when 18 S.V. apparently continued to “‘act[] a bit off.’” (Id.) (citation omitted). 19 Later in the afternoon of April 22, Petitioner realized his car had been towed from S.V.’s 20 apartment complex. (Id.) He was angry and insisted S.V. pay part of the towing fee; the 21 couples’ argument escalated and S.V. asked Petitioner to leave because he was scaring her. (Id.) 22
1 The narrative of the facts underlying this matter are pulled from the Washington Court of 23 Appeals’ part published opinion from June 25, 2024, regarding Petitioner’s personal restraint petition (“PRP”). (Dkt. No. 14-3 at 84–111.) 24 1 He refused. (Id.) S.V. told K.V. to go to a neighbor’s apartment and then told the neighbor to 2 call the police. (Id. at 87.) Once police arrived, S.V. told them she wanted Petitioner to leave 3 and disclosed that he had raped her the prior evening. (Id.) Petitioner was arrested and S.V. was 4 transported to the hospital for a sexual assault examination. (Id.) During the physical
5 examination, Detective Erik Anderson noticed bruising on S.V.’s body. (Id.) Petitioner told 6 Detective Anderson that she had epilepsy and her memory sometimes diminished with time; she 7 reported having a “‘foggy or fuzzy’” memory as to the sexual encounter with Petitioner. (Id.) 8 (citation omitted). 9 On May 2, 2018, Detective Anderson met with S.V. to take screenshots of the text 10 messages between S.V. and Davis. (Id.) S.V. had not initially informed the police of her texts 11 with her friend and had deleted the texts out of fear Petitioner would read them; she asked Davis 12 to save them, and Davis later took screenshots of the messages and sent them back to S.V. (Id.) 13 Nearly a year later, on April 2, 2019, Detective Anderson reached out to S.V. about the 14 messages again. (Id.) The screenshots Detective Anderson received from S.V. in May 2018
15 apparently had “portions of text that had been inadvertently cut off during a file transfer.” (Id.) 16 Because a year had passed since the messages were sent, Davis first retrieved the messages from 17 Facebook Messenger and transferred them back to her phone as screenshots, but as a result the 18 timestamps showed when Davis took the screenshots (rather than when the initial text 19 conversation between Davis and S.V. occurred). (Id. at 87–88.) One of the screenshots did 20 show a conversation timestamp of 1:13 a.m. (Id. at 88.) While speaking with Detective 21 Anderson, Davis recalled receiving a “surprise message” from S.V. at “perhaps around 10:00 22 p.m.” on April 22, 2018, regarding the incident with Petitioner. (Id.) 23
24 1 Petitioner was charged with second degree rape, fourth degree assault, and tampering 2 with a witness, all with domestic violence designations.2 (Id. at 88.) The State made a plea offer 3 of 51 months in May 2018. (Id.) At the time, Petitioner faced only a second-degree rape charge 4 with a sentencing range of 78–102 months. (Id. at 88–89.) According to Petitioner’s trial
5 counsel, he rejected the plea offer because it required him to plead guilty to a sex offense. (Id. at 6 89.) On May 1, 2019, the State contacted Petitioner’s counsel with an offer to resolve the case if 7 Petitioner pled guilty in one of three ways: “‘Rape 3 and tampering with a witness’; ‘Indecent 8 liberties without force’; or ‘Assault 3 with sexual motivation.’” (Id.) (citation omitted). 9 Petitioner apparently rejected each possibility because all three options were felony crimes that 10 would have required him to register as a sex offender. (Id.) Petitioner apparently told his lawyer 11 he would only consider a plea “‘to a misdemeanor non-sex offense.’” (Id.) (citation omitted). 12 The State made its final plea offer on May 10. (Id.) It stated Petitioner’s minimum standard 13 range, if convicted of all charges, was 86–114 months.3 (Id.) The State’s offer was for 14 Petitioner to plead guilty to third degree rape with a minimum standard range term of 6–12
15 months. (Id.) Petitioner and his counsel apparently spoke about the offer over the phone and 16 Petitioner declined the offer because he was “‘absolutely not going to plead guilty to a sex 17 crime.’” (Id. at 89–90) (citation omitted). 18 19
20 2 The State first filed an information in April 2018 charging Petitioner with only second-degree rape. (Dkt. No. 14-3 at 88 n.2.) The State filed an amended information in October 2018 and a 21 second amended information in March 2019. (Id.) The charges upon which the parties proceeded to trial were the result of a third amended information filed on May 9, 2019. (Id.) 22 3 The Washington Court of Appeals noted, “[t]he State admits that the range indicated on the final plea offer was incorrect.” (Dkt. No. 14-3 at 89 n.3.) According to the State, if Petitioner 23 had been convicted on all charges, the plea offer “should have listed a standard range of 102–136 months.” (Id.) 24 1 The case went to trial on May 13, 2019. (Id. at 90.) A Clark County jury found 2 Petitioner guilty of second-degree rape and fourth degree assault with domestic violence 3 designations but acquitted him of the tampering with a witness charge. (Id. at 92.) In June 2019, 4 he was sentenced to “the high end” of his sentencing range, which was 114 months’
5 confinement, and imposed various community custody conditions. (Id. at 92–93.) 6 B. Direct Appeal and Personal Restraint Petition 7 Petitioner appealed his sentence and judgment to the Washington Court of Appeals in 8 January 2020. (Dkt. No. 14-1 at 35.) He argued he was denied effective assistance of counsel 9 and that prosecutors engaged in misconduct during the trial. (Id. at 43.) The appellate court 10 affirmed Petitioner’s convictions on June 2, 2021. (Id. at 190.) Petitioner filed a motion to 11 reconsider on June 21 (id. at 226); it was denied by the appellate court on August 4. (Id. at 235.) 12 Petitioner then filed a petition for review with the Washington Supreme Court on 13 September 3, 2021. (Id. at 237.) On January 5, 2022, the Washington Supreme Court denied 14 review without comment. (Id. at 308.) The Washington Court of Appeals then issued its
15 mandate on January 12, making the June 2021 opinion affirming Petitioner’s conviction the 16 “decision terminating review[.]” (Id. at 310.) 17 On November 22, 2022, Petitioner filed a pro se personal restraint petition (“PRP”) in the 18 Washington Court of Appeals, again arguing ineffective assistance of counsel, prosecutorial 19 misconduct, and that his sentence was facially invalid because the court had imposed conditions 20 beyond its statutory authority. (Dkt. No. 14-2 at 2–51.) The court issued its opinion on June 25, 21 2024, and partially granted relief on Petitioner’s claim regarding community custody conditions, 22 which restricted him from “entering establishments where alcohol is the primary sale item and 23 urine and breath screening[,]” because those conditions prevented conduct that was not related to
24 1 Petitioner’s crimes. (Dkt. No. 14-3 at 106.) The court denied all other claims, including 2 Petitioner’s renewed claims of ineffective assistance of counsel and prosecutorial misconduct. 3 (Id. at 111.) 4 Following the Court of Appeals’ decision, Petitioner moved for discretionary review of
5 the PRP with the Washington Supreme Court on July 24, 2024 (id. at 113), which the court 6 denied on December 4, 2024. (Id. at 156.) 7 C. Procedural History of Habeas Petition 8 Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on 9 December 26, 2024. (Dkt. No. 5.) He raised the following seven grounds for relief: (1) trial 10 counsel rendered ineffective assistance when he misadvised Petitioner about the standard range 11 sentence he faced; (2) trial counsel rendered ineffective assistance when he “failed to interview 12 relevant witnesses, present evidence, object, or subpoena records”; (3) the prosecutor violated 13 Petitioner’s due process rights by “vouching for the approximate time” the text messages 14 between S.V. and Davis were sent without having verified or investigated when the messages
15 were actually sent; (4) the prosecutor violated Petitioner’s due process rights by vouching for a 16 witness’s credibility, expressed a personal opinion as to Petitioner’s guilt and made improper 17 implications to the jury; (5) trial counsel rendered ineffective assistance by not requesting a 18 change in venue or challenging the fact that there were no Black people in the jury pool; (6) trial 19 counsel rendered ineffective assistance by contradicting Petitioner’s testimony during closing 20 arguments; and (7) the trial court violated Petitioner’s due process rights by allowing the State to 21 present prejudicial DNA forensic evidence at trial. (Id. at 5, 7, 8, 10, 12–14.) 22 In response, Respondents argued that Petitioner failed to exhaust grounds 2, 3, 4, 6, and 7 23 because he did not present those claims to the Washington Supreme Court as federal
24 1 constitutional issues. (Dkt. No. 13 at 10.) As such, Respondents argued these unexhausted 2 claims are procedurally defaulted and barred from federal habeas review. (Id.) Respondents 3 argued that although Petitioner properly exhausted claims 1 and 5, he is not entitled to relief 4 under the deferential standard for ineffective assistance of counsel claims. (Id. at 22, 25) (citing
5 Strickland v. Washington, 466 U.S. 668, 688 (1984)). In his traverse, Petitioner conceded he did 6 not exhaust grounds 3, 6, and 7. (Dkt. No. 22 at 62, 70.) 7 On November 4, 2025, Judge Fricke issued an R&R recommending Petitioner’s habeas 8 petition be denied on all grounds. (Dkt. No. 27.) Specifically, she determined Petitioner had not 9 exhausted grounds 3, 4, 6, 7, and part of ground 2, and he had not shown that the state courts’ 10 adjudication of the ineffective assistance of counsel claims in grounds 1, 5, and part of ground 2 11 were “contrary to, or an unreasonable application of, clearly established federal law.” (Id. at 29– 12 30.) Petitioner filed objections on December 17. (Dkt. No. 30.) 13 For ground 1, Petitioner argues the R&R runs opposite of rulings made in federal and 14 state courts, because other courts have held that erroneous advice from counsel about the
15 duration of a sentence may rise to ineffective assistance. (Id. at 2–6.) He further objects to the 16 state court’s analysis on whether there was a reasonable probability a different plea offer would 17 have been accepted by Petitioner, arguing that if it were not for counsel’s deficient performance, 18 he would have accepted the State’s plea offer from May 10. 2019. (Id. at 10–11.) 19 As for ground 2, Petitioner objects to Judge Fricke’s acceptance of the determination that 20 counsel’s use of the text messages to cast doubt on S.V.’s credibility was a legitimate trial 21 strategy. (Id. at 14.) He makes various factual arguments about the messages and the various 22 ways in which he believes trial counsel’s failure to challenge the timestamps underscores his 23 position that there was no legitimate trial strategy at play. (Id. at 13–22.) Petitioner also objects
24 1 to Judge Fricke’s conclusion that he had not exhausted his ineffective assistance claims premised 2 on his counsel’s “failure to investigate” S.V.’s memory issues and to subpoena certain records. 3 (Id. at 22–25.) 4 Finally, Petitioner objects to Judge Fricke’s recommendation to deny ground 4 on
5 exhaustion grounds because Washington law does not permit criminal defendants to “repeat 6 claims they made during direct appeal in the PRP process.” (Id. at 25.) Petitioner did not submit 7 specific objections to the R&R’s determinations on grounds 3, 5, 6, and 7. (See generally Dkt. 8 No. 30.) 9 III STANDARD OF REVIEW 10 A. Review of R&Rs 11 A district court reviews de novo “those portions of the report or specified proposed 12 findings or recommendations to which [an] objection is made.” 28 U.S.C. § 636(b)(1)(C); see 13 also Fed. R. Civ. P. 72(b)(3) (“The district judge must determine de novo any part of the 14 magistrate judge’s disposition that has been properly objected to.”).
15 Objections to an R&R must be “specific.” Fed. R. Civ. P. 72(b)(2). “[M]ere 16 incorporat[ion]” of arguments from the underlying motions, without identifying “what portions 17 of the R&R” the objecting party “considers to be incorrect,” does not constitute a specific 18 objection, Amaro v. Ryan, Case No. 10–CV–48–TUC–RCC, 2012 WL 12702, at *1 (D. Ariz. 19 Jan. 4, 2012), and therefore does not give rise to a court’s obligation to conduct a de novo 20 review, Brandon v. Dep’t of Corr., Case No. C21-5417-JCC, 2021 WL 5937685, at *1 (W.D. 21 Wash. Dec. 16, 2021). “In the absence of a specific objection, the [C]ourt need only satisfy itself 22 that there is no ‘clear error’ on the face of the record before adopting the magistrate judge’s 23 recommendation.” Venson v. Jackson, Case No. 18-cv-02278-BAS-BLM, 2019 WL 1531271, at
24 1 *1 (S.D. Cal. April 8, 2019). “The district judge may accept, reject, or modify the recommended 2 disposition; receive further evidence; or return the matter to the magistrate judge with 3 instructions.” Fed. R. Civ. P. 72(b)(3). 4 B. Writ of Habeas Corpus Under 28 U.S.C. § 2254
5 A petitioner in custody pursuant to the judgment of a state court may challenge the 6 constitutionality of their confinement under 28 U.S.C. § 2254. See White v. Lambert, 370 F.3d 7 1002, 1007 (9th Cir. 2004) (§ 2254 is the “exclusive avenue for a state court prisoner to 8 challenge the constitutionality of his detention” when the prisoner is in custody pursuant to a 9 state court judgment), overruled on other grounds by Hayward v. Marshall, 603 F.3d 546 (9th 10 Cir. 2010). A state prisoner is required to exhaust all state court remedies before seeking a 11 federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1). The exhaustion requirement is a matter 12 of comity, intended to afford the state court “an initial opportunity to pass upon and correct 13 alleged violations of its prisoners’ federal rights.” Picard v. Connor, 404 U.S. 270, 275 14 (1971) (internal citations and quotation marks omitted). That “opportunity” requires a prisoner
15 to “fairly present” their claims to the appropriate state court for review, including a state supreme 16 court with powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations 17 omitted). 18 Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), a federal court 19 may not grant habeas relief on the basis of a claim adjudicated on the merits in state court unless 20 that adjudication “resulted in a decision that was contrary to, or involved an unreasonable 21 application of, clearly established Federal law, as determined by the Supreme Court of the 22 United States.” 28 U.S.C. § 2254(d)(1). A state decision is “contrary to” clearly established 23 Supreme Court precedent if the state court either “(1) arrives at a conclusion opposite to that
24 1 reached by the Supreme Court on a question of law, or (2) confronts facts ‘materially 2 indistinguishable’ from relevant Supreme Court precedent and arrives at an opposite result.” 3 Bell v. Arnold, Case No. 2:25-cv-01320-BHS-GJL, 2025 WL 3852440, at *6 (W.D. Wash. Dec. 4 22, 2025) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)), report and recommendation
5 adopted by Case No. C25-1320 BHS, 2026 WL 30055 (W.D. Wash. Jan. 5, 2026). 6 Deference is afforded to state courts under both prongs of § 2254(d). See Williams, 529 7 U.S. at 411 (a federal habeas court may not issue a writ under § 2254(d)(1) “simply because that 8 court concludes in its independent judgment that the relevant state-court decision applied clearly 9 established federal law erroneously or incorrectly[]”). The state court’s application must be 10 “unreasonable.” Id. An “unreasonable” application of Supreme Court precedent occurs if the 11 state court identifies the correct Supreme Court legal rule “but unreasonably applies it to the 12 facts of a particular state prisoner’s case[]”; it also occurs if the state court “unreasonably 13 extends” Supreme Court principles to a new context where it should not apply or “unreasonably 14 refuses” to extend a relevant principle to a new context in which it should apply. Id. at 407; see
15 also Hampton v. Shinn, 143 F.4th 1047, 1077 (9th Cir. 2025) (citation omitted) (“At bottom, the 16 ‘contrary to’ prong requires a direct and irreconcilable conflict with Supreme Court precedent.”). 17 Under 28 U.S.C. § 2254(d)(2), a petitioner can only obtain relief if they show the state 18 court’s conclusion was “based on an unreasonable determination of the facts in light of the 19 evidence presented in the State court proceeding.” The reviewing federal court should presume 20 the state court’s factual findings “to be sound” unless the petitioner rebuts the “‘presumption of 21 correctness by clear and convincing evidence.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) 22 (quoting § 2254(e)(1)). The standard is “demanding but not insatiable”; the Supreme Court has 23 cautioned that “[d]eference does not by definition preclude relief.” Id. (citation omitted).
24 1 When the requirements set forth in § 2254(d)(1) or § 2254(d)(2) are satisfied, a federal 2 court is relieved of AEDPA deference “must resolve the claim without the deference AEDPA 3 otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007). 4 IV DISCUSSION
5 A. Exhaustion and Procedural Default 6 Judge Fricke concluded Petitioner’s grounds 2,4 3, 4, 6, and 7 are unexhausted because 7 Petitioner has not fairly presented those claims as a federal constitutional issues before the 8 Washington Supreme Court. (See Dkt. No. 27 at 22–24.) She further concluded the same 9 grounds for relief are procedurally defaulted and therefore she could not review them on the 10 merits. (Id. at 27.) 11 1. Exhaustion of State Remedies 12 “[A] state prisoner must normally exhaust available state judicial remedies before a 13 federal court will entertain his petition for habeas corpus.” Picard, 404 U.S. at 275. A claim is 14 considered exhausted only after the state courts have been given a “meaningful opportunity” to
15 consider a petitioner’s claims of legal error before interference from the federal judiciary. 16 Vasquez v. Hillery, 474 U.S. 254, 257 (1986); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) 17 (state prisoners must provide the state courts “one full opportunity to resolve any constitutional 18
19 4 In the R&R, Judge Fricke noted that Petitioner “arguably raised an ineffective assistance of counsel claim” regarding his trial counsel’s failure to “present contradictions to the State’s 20 timeline and making timely objections to the use of the text message evidence between S.V. and Katie Davis.” (Dkt. No. 27 at 23.) However, she pointed out that Petitioner did not fully exhaust 21 remedies for the remainder of the allegations in ground 2; namely, that Petitioner’s trial counsel did not investigate S.V.’s memory issues and did not subpoena certain records. (Id.; see also Dkt. 22 No. 5 at 7.) Petitioner objected to this finding, claiming those challenges were indeed presented to the state courts. (See Dkt. No. 30 at 22–25.) The Court will review the ineffective assistance 23 of counsel claim related to the text message timeline in Section IV(B) infra and will address Petitioner’s objections to the remainder of Judge Fricke’s findings on ground 2 in this section. 24 1 issues” before presenting the issues to a federal court). The exhaustion requirement “refers only 2 to remedies still available at the time of the federal petition[]”; if the petitioner fails to present 3 claims in state court and can no longer raise them through a state procedure, “state remedies are 4 no longer available, and are thus exhausted.” Franklin v. Johnson, 290 F.3d 1223, 1231 (9th Cir.
5 2002) (citations omitted). 6 Full and fair presentation of claims to a state’s highest court requires the “full factual 7 development” of the claims in that forum. Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992), 8 superseded by statute 28 U.S.C. § 2254(e)(2). The petitioner must refer to a specific 9 constitutional guarantee and provide a statement of the facts entitling them to relief on those 10 grounds. Duncan v. Reese, 513 U.S. 364, 365–366 (1995); Kyzar v. Ryan, 780 F.3d 940, 947 11 (9th Cir. 2015) (citation omitted) (a habeas petitioner “fairly presents” an issue to a state court 12 when they “‘present the substance of [their] claim to the state courts, including a reference to a 13 federal constitutional guarantee and a statement of facts that entitle the petitioner to relief[]’”). A 14 petitioner “does not exhaust a federal claim by raising a state claim that is similar to the federal
15 claim: ‘mere similarity of claims is insufficient to exhaust.’” Sanders v. Ryder, 342 F.3d 991, 16 1000 (9th Cir. 2003) (quoting Duncan, 513 U.S. at 366). The petitioner bears the burden of 17 showing they have exhausted all available state remedies. 28 U.S.C. § 2254(b)(1)(A). 18 In his habeas traverse, Petitioner conceded he did not exhaust grounds 3, 6, and 7. (Dkt. 19 No. 22 at 62, 70.) In his objections to the R&R, Petitioner only addressed aspects of Judge 20 Fricke’s analysis on ground 2 and stated he “respectfully disagrees” with her assessment that 21 ground 4 was not exhausted, without discussing grounds 3, 6 and/or 7. (See Dkt. No. 30 at 22– 22 25.) Because Petitioner conceded grounds 3, 6 and 7 were unexhausted and does not challenge 23 Judge Fricke’s analysis on those claims, the Court need not review de novo and concludes there
24 1 is no clear error on the face of the record. See Fed. R. Civ. P. 72(b); Murray v. S. Ct. of Wash., 2 Case No. 3:25-cv-05074-DGE, 2025 WL 1774742, at *2 (W.D. Wash. June 27, 2025) (citing 3 Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999)). The Court reviews only the two 4 grounds that have been properly objected to.
5 a. Ground 2 6 In the R&R, Judge Fricke observed that the state courts did not have a “full and fair 7 opportunity” to determine if a federal constitutional violation occurred because Petitioner did not 8 raise counsel’s failure to investigate S.V.’s memory issues and/or the failure to subpoena certain 9 records. (Dkt. No. 27 at 23.) Therefore, according to Judge Fricke, Petitioner failed to properly 10 exhaust his ineffective assistance claim premised on these facts. (Id.) Petitioner objects, arguing 11 that he did indeed make these challenges in state court as part of his overall claim that counsel 12 failed to investigate his case properly. (Dkt. No. 30 at 22–25.) 13 Claims that are not raised on every level of direct review are considered unexhausted. 14 See Ortberg v. Moody, 961 F.2d 135, 138 (9th Cir. 1992) (dismissing five claims because they
15 were “not raised on every level of direct review, or were raised for the first time on habeas”). 16 Here, Petitioner raised his concerns about S.V.’s unreliable memory on his appeal to the 17 Washington Court of Appeals (see Dkt. No. 14-1 at 104–107), but his appeal to the Washington 18 Supreme Court did not include that claim. (See id. at 237–261.) He renewed the claims related 19 to S.V.’s memory in his PRP and at that point raised for the first time counsel’s failure to 20 “subpoena pertinent records,” including S.V.’s phone records. (Dkt. No. 14-2 at 40–49.) These 21 claims are consolidated in ground 2 of his habeas petition. (Dkt. No. 5 at 7.) 22 Petitioner’s position in his objections appears to be that the various factual bases he 23 lumped together and presented to the Washington Supreme Court as trial counsel’s “failure to
24 1 investigate [Petitioner’s] case properly” encompasses all the bases for relief raised in ground 2 of 2 his habeas petition, including S.V.’s memory and the failure to subpoena records. (Dkt. No. 30 3 at 22.) According to Petitioner, “some of the issues mentioned before the State Courts,” 4 including his challenge to the dates and times of Davis’s text messages, fall into this general
5 category. (Id. at 23.) But a petitioner who presented an ineffective assistance claim in state 6 court cannot “later add unrelated alleged instances of counsel’s ineffectiveness to [that] claim.” 7 Gulbrandson v. Ryan, 738 F.3d 976, 992 (9th Cir. 2013) (citation and quotation marks omitted); 8 see also Carriger v. Lewis, 971 F.2d 329, 333 (9th Cir. 1992) (en banc) (holding that an 9 ineffective assistance claim for failure to vigorously cross-examine a witness did not exhaust 10 ineffective assistance claims directed to other independent omissions by counsel). 11 Here, Judge Fricke acknowledged Petitioner had “arguably raised” an ineffective 12 assistance of counsel claim regarding counsel’s failure to “present contradictions to the State’s 13 timeline and making timely objections to the use of the text message evidence between S.V. and 14 Katie Davis” (Dkt. No. 27 at 23); that finding, and Petitioner’s objections to it, are addressed in
15 Section IV(B)(3) infra. Petitioner cannot bootstrap other factual bases that were not properly 16 exhausted in state court to this singular finding. Gulbrandson, 738 F.3d at 993 (“[A] petitioner 17 does not exhaust all possible claims stemming from a common set of facts merely by raising one 18 specific claim.”); see also Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005) (citation 19 omitted) (the petitioner’s claim that “‘counsel was ineffective for failing to investigate and 20 present a viable defense[]’” did not fairly present the more specific claim that counsel was 21 ineffective in “presenting the insanity defense”). The Court concludes that ground 2 of 22 Petitioner’s habeas petition has not been properly exhausted. 23
24 1 b. Ground 4 2 Judge Fricke found Petitioner failed to properly exhaust ground 4 because he did not 3 fairly present that claim in the state court system or make clear he was claiming violations of the 4 United States Constitution. (Dkt. No. 27 at 23–24.) Petitioner objects, arguing that Washington
5 state law does not allow defendants “to repeat claims they made during direct appeal in the PRP 6 process.” (Dkt. No. 30 at 25.) He states that ground 4 was properly brought “as both state and 7 federal constitutional issues during the direct appeal” in both the Washington Court of Appeal 8 and Supreme Court. (Id.) From what the Court can glean, Petitioner’s argument is that he has 9 appropriately exhausted the constitutional claim in ground 4 because he was not permitted to 10 raise the same claim in his PRP after raising it on direct appeal. 11 Petitioner is correct that Washington courts may not consider a PRP if the movant has 12 “previously brought a collateral attack on the same or substantially similar grounds.” In re 13 Becker, 20 P.3d 409, 412 (Wash. 2001) (en banc). A collateral attack includes actions such as a 14 PRP and a habeas petition. Id.; see also Wash. Rev. Code § 10.73.090(2). A PRP on a criminal
15 conviction and sentence must raise “new points of fact and law that were not or could not have 16 been raised in the principal action”; the PRP cannot be a “reiteration of issues finally resolved 17 and upon appellate review.” Becker, 20 P.3d at 412. A subsequent writ in state court is properly 18 barred as a successive collateral attack prohibited by Washington Revised Code § 10.73.140 if it 19 contains no new issues or is based on frivolous grounds. Id. at 413. 20 However, whether Petitioner was prohibited from bringing ground 4’s constitutional 21 claim in his PRP is a different question from whether Petitioner sufficiently exhausted the claim 22 at every level of direct review in state court before raising it before this Court. The inquiry, then, 23 is a straightforward one of exhaustion: whether Petitioner “fairly present[ed]” the federal
24 1 constitutional issue raised in ground 4 to each level of the state courts when he filed his direct 2 appeal. Kyzar, 780 F.3d at 947 (citations omitted). Judge Fricke, and this Court, conclude he 3 did not. 4 In ground 4, Petitioner asserts his Fourteenth Amendment due process rights were
5 violated when he “suffered harm and prejudice as a result of prosecutorial misconduct.” (Dkt. 6 No. 5 at 10.) He specifically argues the prosecutor acted improperly during closing argument by 7 “improperly vouch[ing]” for S.V.; expressing her personal opinion about Petitioner’s guilt; and 8 implying that for the jury to acquit Petitioner, it would need to find that S.V. had lied. (Id.) 9 These issues were presented to the state court of appeals as federal and state constitutional 10 violations (Dkt. No. 14-1 at 65–72) but were not specifically identified as federal constitutional 11 violations in Petitioner’s motion for discretionary review before the state supreme court. (See id. 12 at 259–261) (describing the prosecutor’s statement of personal opinion as “‘not only unethical 13 but extremely prejudicial’”) (citing State v. Case, 298 P.2d 500 (1956)). 14 To fairly present an issue to a state court, a petitioner must include a “reference to a
15 federal constitutional guarantee and a statement of facts that entitle the petitioner to relief.” 16 Gulbrandson, 738 F.3d at 992. Even in cases where a petitioner argues that an error deprived 17 them of a “‘fair trial’ or the ‘right to present a defense,’ unless the petitioner clearly alerts the 18 court that he is alleging a specific federal constitutional violation, the petitioner has not fairly 19 presented the claim.” Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004); see also Shumaway v. 20 Payne, 223 F.3d 982, 987 (9th Cir. 2000) (citation omitted) (holding that a “naked reference to 21 ‘due process’” or a “‘general appeal to a constitutional guarantee’” are insufficient to present the 22 substance of such a claim to a state court). 23
24 1 Here, Petitioner explained to the state court of appeals how “[p]rosecutorial misconduct 2 may deprive a defendant of his constitutional right to a fair trial[,]” which is a fundamental 3 liberty secured by both the Washington and United States constitutions. (Dkt. No. 14-1 at 65.) 4 He went on to describe how in his case, the prosecutor’s impermissible vouching, expression of
5 opinion, and implications to the jury on what it must do to acquit all undermined that 6 constitutional right. (Id. at 66–72.) At the Washington Supreme Court, however, Petitioner did 7 not describe how any of these actions violated his federal (or state) constitutional rights; rather, 8 the misconduct was described in terms of ethics and prejudice. (Id. at 259–261.) Therefore, 9 Petitioner’s analysis of the issue did not “fairly present” his federal claims to the Washington 10 Supreme Court. And because the constitutional issues raised in ground 4 of Petitioner’s habeas 11 petition were not raised at every level of direct review in state court, they are unexhausted and 12 therefore cannot be reviewed on the merits.5 Ortberg, 961 F.2d at 138. 13 The Court concludes, along with Judge Fricke, that Petitioner failed to exhaust grounds 2, 14 3, 4, 6, and 7 of his habeas petition.
15 2. Procedural Default 16 The procedural default doctrine bars a federal court from considering a petitioner’s 17 federal claim when it is clear the state court has been presented with the claim but declined to 18 reach the federal issue for procedural reasons, or if a state procedural rule would now preclude 19 the petitioner from raising his claim at the state level. Bell, 2025 WL 3852440, at *5 (first citing 20 Franklin, 290 F.3d at 1230–1231, then citing Coleman v. Thompson, 501 U.S. 722, 731–732 21 (1991)). This concept is rooted in the adequate and independent state grounds doctrine, which 22
5 Even if Petitioner had exhausted the constitutional claims in ground 4 in state court, this Court 23 would still not consider those claims on the merits because they are procedurally defaulted. See n.6 infra. 24 1 instructs that a federal court should not consider an issue of federal law on “direct review from a 2 judgment of a state court if that judgment rests on a state-law ground that is both ‘independent’ 3 of the merits of the federal claim and an ‘adequate’ basis for the court’s decision.” Harris v. 4 Reed, 489 U.S. 255, 260 (1989) (citation omitted). Procedural default is conceptually distinct
5 from exhaustion in the habeas context. See Franklin, 290 F.3d at 1230–1231 (citation omitted) 6 (comparing exhaustion, “when the state court has never been presented with an opportunity to 7 consider a petitioner’s claims and that opportunity may still be available . . . under state law” 8 with procedural default, when the state court has been presented with the federal claim “but 9 declined to reach the issue for procedural reasons[]” or because it was “‘clear that the state court 10 would hold the claim procedurally barred[]’”). Claims that are procedurally defaulted may not 11 be reviewed on the merits by a federal court. Bell, 2025 WL 3852440, at *5 (citation omitted). 12 Judge Fricke determined that grounds 2, 3, 4, 6, and 7 were procedurally defaulted 13 because a Washington court would find the claims barred by Washington’s applicable statute of 14 limitations if Petitioner attempted to present those claims in a subsequent PRP.6 (Dkt. No. 27 at
15 25.) Petitioner does not challenge this finding on statute of limitations grounds, nor does he 16 present facts to establish good cause as to why he did not raise grounds 2, 3, 4, 6, and/or 7 at 17 each step of his PRP. (See generally Dkt. No. 30); see also Wash. Rev. Code § 10.73.140. The 18 Court reviews only for clear error. Fed. R. Civ. P. 72(b); Venson, 2019 WL 1531271, at *1. 19 20
21 6 The Washington Court of Appeals issued a mandate finalizing Petitioner’s direct appeal on January 12, 2022, after the Washington Supreme Court denied discretionary review. (Dkt. No. 22 14-1 at 310.) The one-year statute of limitations for Petitioner’s PRP or other post-conviction relief tolled in January 2023. Wash. Rev. Code § 10.73.090(1). Petitioner is therefore time- 23 barred from filing a subsequent PRP in state court. Id. § 10.73.090(2); see also Shumway, 223 F.3d at 988 n.22 (holding that § 10.73.090 is an “adequate [] bar to federal habeas review”). 24 1 Having found none, it concludes these grounds in the habeas petition are subject to an implied 2 procedural bar. 3 3. Overcoming Procedural Default 4 Procedural default will be excused and a petitioner is entitled to federal habeas review if
5 they “‘can demonstrate cause for the default and actual prejudice as a result of the alleged 6 violation of federal law, or demonstrate that failure to consider the claims will result in a 7 fundamental miscarriage of justice.’” Boyd. v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998) 8 (citing Coleman, 501 U.S. at 750). “Cause” must be something “external to the petitioner,” i.e., 9 “something that cannot fairly be attributed to him[.]” Coleman, 501 U.S. at 753. A showing of 10 “prejudice” is a demonstration that the errors at trial “worked to [the petitioner’s] actual and 11 substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” 12 United States v. Frady, 456 U.S. 152, 170 (1982). Only in extraordinary circumstances (such as 13 where a constitutional violation has resulted in the conviction of a defendant who is actually 14 innocent) can a federal court grant a writ of habeas corpus without a showing of cause and
15 prejudice. Murray v. Carrier, 477 U.S. 478, 496 (1986). 16 Here, Judge Fricke concluded Petitioner would be unable to overcome procedural default 17 on grounds 2, 3, 4, 6, and 7 because he could not demonstrate an external cause for the default, 18 nor actual prejudice as a result of the alleged constitutional violation or any new evidence 19 showing he is actually innocent. (Dkt. No. 27 at 27.) Petitioner does not refute this finding. 20 (See Dkt. No. 30.) Having found no clear error, see Venson, 2019 WL 1531271, at *1, the Court 21 agrees with Judge Fricke that a federal court cannot review these grounds of Petitioner’s habeas 22 petition on the merits. (See Dkt. No. 27 at 27.) 23
24 1 To conclude, Petitioner conceded in his traverse that he did not exhaust grounds 3, 6, and 2 7. (Dkt. No. 22 at 62, 70.) The Court rejects his objections to Judge Fricke’s analysis on ground 3 2, because he cannot add new factual bases for an ineffective assistance claim that have not been 4 properly exhausted (Dkt. No. 30 at 22–25); and on ground 4, because he did not fairly present the
5 constitutional claim in ground 4 to the Washington Supreme Court in his motion for 6 discretionary review (id. at 25). Further, Petitioner did not challenge Judge Fricke’s 7 determination that grounds 2, 3, 4, 6, and 7 are procedurally defaulted. (See generally id.) As 8 Petitioner has not put forth facts to overcome procedural default, the Court hereby DENIES 9 grounds 2, 3, 4, 6, and 7 of Petitioner’s habeas petition with prejudice.7 10 B. Merits Review of Exhausted Claims 11 Judge Fricke determined that grounds 1, 2 (limited to the allegations related to the 12 timeline of Davis’s text messages, see n.4 supra), and 5 had been properly exhausted. (Dkt. No. 13 27 at 5.) However, she concluded that at each phase of Petitioner’s proceedings, the state courts’ 14 determination on Petitioner’s ineffective assistance of counsel claims was not unreasonable or
15 contrary to an application of clearly established Supreme Court precedent. (Id. at 14, 15, 17.) 16 Therefore, Judge Fricke recommended denying Petitioner’s grounds 1, 2, and 5 on the merits. 17 1. Ineffective Assistance of Counsel Claims 18 The Sixth Amendment of the Constitution guarantees a criminal defendant the right to 19 effective assistance of counsel. Strickland, 466 U.S. at 686; U.S. CONST. amend. VI. Ineffective 20
7 When a petitioner’s claims are unexhausted, the district court can dismiss without prejudice “to 21 give the prisoner a chance to return to state court to litigate his unexhausted claims before he can have the federal court consider his claims.” Franklin, 290 F.3d at 1231. However, if a 22 petitioner’s claims are procedurally barred and the petitioner cannot overcome the default, the district court must dismiss with prejudice because there is no further recourse for the petitioner in 23 state court. Id. Here, the Court concludes Petitioner’s grounds 2, 3, 4, 6, and 7 are both unexhausted and procedurally defaulted; accordingly, they are dismissed with prejudice. 24 1 assistance of counsel claims are evaluated under the two-prong test from Strickland: the 2 defendant must prove that (1) counsel’s performance was deficient and (2) the deficient 3 performance prejudiced the defense. 466 U.S. at 687. A reviewing court need not address both 4 prongs of the inquiry if the defendant makes an insufficient showing on one prong. Id. at 697.
5 Under the first prong, the defendant must show that counsel’s performance fell below an 6 objective standard of reasonableness. Id. at 688. “Judicial scrutiny of counsel’s performance 7 must be highly deferential,” and courts should be careful to “eliminate the distorting effects of 8 hindsight[.]” Id. at 689. To satisfy prong one, a defendant must overcome the presumption that 9 the challenged action “might be considered sound trial strategy.” Id. (citation omitted). 10 The second prong requires a showing of actual prejudice. Id. at 694. In order to establish 11 actual prejudice, the defendant must show “there is a reasonable probability that, but for 12 counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. A 13 “reasonable probability” is one that is sufficient, under an objective standard, to “undermine 14 confidence in the outcome.” Id.
15 In a case such as this one, where a court considers an ineffective assistance of counsel 16 claim on federal habeas review, the “pivotal question is whether the state court’s application of 17 the Strickland standard was unreasonable”—a different question than whether defense counsel’s 18 performance fell below the Strickland standard on direct review. Harrington v. Richter, 562 19 U.S. 86, 101 (2011); Knowles v. Mirzayance, 556 U.S. 111, 123 (review of ineffective assistance 20 claims under § 2254(d)(1) is “doubly deferential”). Accordingly, a state court’s determination 21 that a claim lacks merit “precludes federal habeas relief so long as ‘fairminded jurists could 22 disagree’ on the correctness of the state court’s decision.” Richter, 562 U.S. at 101 (quoting 23 Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Put simply, AEDPA “demands more” than
24 1 a straightforward Strickland analysis. Id. at 102. The state prisoner must show that “the state 2 court’s ruling on the claim being presented in federal court was so lacking in justification that 3 there was an error well understood and comprehended in existing law beyond any possibility for 4 fairminded disagreement.”8 Id. at 103.
5 2. Ground 1 6 Judge Fricke reviewed the state court record and concluded the state court’s application 7 of the standards from Strickland and Lafler v. Cooper, 556 U.S. 156 (2012), was not 8 unreasonable when analyzing Petitioner’s claim that he was prejudiced when his counsel did not 9 properly inform him of the sentencing range he potentially faced. (Dkt. No. 27 at 10–14.) 10 Though difficult to parse, Petitioner’s specific objections to the R&R’s analysis appear to be 11 premised on Judge Fricke’s agreement with the Washington Court of Appeals’ conclusion that 12 Petitioner would only accept a plea deal that did not include a sex offense charge. (Dkt. No. 30 13 at 2.) He argues this finding runs against federal and state court precedent. (See id. at 2–5) 14 (citing Baker v. United States, 109 F.4th 187 (3d Cir. 2024) and State v. Drath, 431 P.3d 1098
15 (Wash. Ct. App. 2018)). 16 There are two issues with Petitioner’s objections on these grounds. First, Petitioner relies 17 heavily on the Third Circuit’s analysis in Baker to support his position that the Washington 18 Court of Appeals gave too much weight to the fact Petitioner sought a plea offer without a sex 19 charge in its ultimate conclusion that he would not accept any plea offer presented by the State. 20 (Dkt. No. 30 at 3–4.) But Petitioner does not identify aspects of the state court’s analysis that 21
22 8 There is arguably a third layer of deference at play here, as this Court is reviewing Judge Fricke’s R&R and it reviews de novo only those parts of the R&R that have been properly 23 objected to. Fed. R. Civ. P. 72(b). Otherwise, it will review for clear error in Judge Fricke’s findings and recommendations. Venson, 2019 WL 1531271, at *1. 24 1 were so unreasonable or contrary to Supreme Court precedent that no reasonable jurist could 2 agree with the state court.9 Richter, 562 U.S. at 101. Petitioner also does not contend with 3 Judge Fricke’s substantive review of the state court’s analysis. See Riley v. Plaintiffs or D.A., 4 Case No.: 21-CV-1805 TWR (LR), 2024 WL 6843625, at *2 (S.D. Cal. June 12, 2024) (rejecting
5 a habeas petitioner’s objections that “barely acknowledge[d]” the R&R and instead “speculate[d] 6 as to an alternative version of the events” surrounding the crime he committed). In the R&R, 7 Judge Fricke carefully considered the following: 8 • The Washington Court of Appeals determined the record showed trial counsel contacted 9 Petitioner to discuss the State’s May 10, 2019 plea offer and Petitioner “‘steadfastly 10 refused to plead guilty to any form of a sex offense, regardless of the potential sentencing 11 ranges’”; 12 • In trial counsel’s response to the bar complaint Petitioner filed in 2020, counsel explained 13 Petitioner was offered three plea deals, all of which required Petitioner to plead guilty to 14 a felony sex crime, and Petitioner “always maintained he was innocent”;
15 • Trial counsel told Petitioner that if he accepted the “last offer from the State,” he would 16 have had to plead guilty to third-degree rape and domestic violence with a potential 17 sentencing range of 6–12 months; Petitioner was apparently “not interested in any of the 18 State’s offers because every offer required him to plead guilty to a felony” and the only 19 type of plea he would consider was “‘a misdemeanor non-sex offense’”; 20 • Petitioner’s claim that he would have accepted the May 10, 2019 plea offer is 21 “contradicted” by his statements where he claimed: 22
9 Petitioner’s citation to Baker is of limited effect for the additional reason that it is not binding 23 on this Court. See Int’l Chem. Workers Union Council v. NLRB, 467 F.3d 742, 748 n.3 (9th Cir. 2006) (“out-of-circuit authority” is “not binding on us”). 24 1 o “‘I was especially adamant about not raping the plaintiff, and the removal of any 2 and all sex offense charges were the most important thing to me’”; and 3 o “‘I would be willing to plead guilty and accept the year in county jail, if the state 4 dropped the third degree rape or any type of sex offense charges’”; and
5 • During sentencing, the trial court determined “fourth degree assault with domestic 6 violence counted as a point for criminal history,” leading to an assessment that the 7 standard sentencing range for second-degree rape and fourth-degree assault, both with 8 domestic violence designations, would be 86–114 months. 9 (Dkt. No. 27 at 12–13) (citing Dkt. Nos. 14-2 at 285, 287, 288–289, 296, 300; 14-3 at 29, 58, 98– 10 99) (documents reviewed included trial counsel’s written repose to the bar complaint filed by 11 Petitioner, the May 10, 2019 settlement offer with trial counsel’s handwritten notes, Petitioner’s 12 reply in support of his PRP, and the Washington Court of Appeals’ unpublished opinion on 13 Petitioner’s PRP). Based on the foregoing, Judge Fricke concluded the state court’s ruling was 14 not “so lacking in justification that there was an error well understood and comprehended in
15 existing law beyond any possibility for fairminded disagreement.” (Dkt. No. 27 at 14) (citing 16 Richter, 562 U.S. at 103). 17 Upon a de novo review, this Court cannot say that Judge Fricke erroneously concluded 18 the Washington state courts’ application of Strickland and Lafler was objectively reasonable. 19 (See Dkt. No. 27 at 14); accord. Cannedy v. Adams, 706 F.3d 1148, 1157 (9th Cir. 2013) 20 (citations omitted) (even if the reviewing habeas court making the “unreasonable application” 21 inquiry determines the state court arrived at “what [it] think[s] to be an incorrect result,” the 22 court must uphold the result in the state court unless the state court’s application of clearly 23 established federal law was objectively unreasonable).
24 1 Second, though couched as objections to Judge Fricke’s analysis of the state court’s 2 findings, Petitioner uses the opportunity to rehash arguments regarding his plea deal and 3 counsel’s communication about the sentence he faced. (See Dkt. No. 30 at 7–13.) He reasserts 4 his central claim that had he known he faced a “potential life, or indeterminate sentence, he
5 would have readily accepted the plea deal requiring him to plead guilty to rape 3, and a 6–12 6 month sentence (offered on May 10, 2019).” (Id. at 9.) But he provides no basis in the record 7 for this statement. See Lee v. United States, 582 U.S. 357, 369 (2017) (“Courts should not upset 8 a plea solely because of post hoc assertions from a defendant about how he would have pleaded 9 but for his attorney’s deficiencies.”). In any event, objections to an R&R are not a vehicle to 10 relitigate claims that have already been considered and dismissed. Hagberg v. Astrue, Case No. 11 CV–09–01–BLG–RFC–CSO, 2009 WL 3386595, at *1 (D. Mont. Oct. 14, 2009) (objections to a 12 Magistrate Judge’s R&R “are not a vehicle for the losing party to relitigate its case[]”); Williams 13 v. Navarro, Case No. 18-cv-1581, 2022 WL 16758479, at *2 (S.D. Cal. Nov. 8, 2022) (General 14 objections “that seek to relitigate the entire matter by repeating the same arguments made to [the]
15 Magistrate Judge . . . are overruled.”), aff’d, 2024 WL 1875007 (9th Cir. Apr. 30, 2024). Even if 16 the Court were to consider Petitioner’s improperly made objections, the arguments he makes fail 17 to address the question of whether the state court’s application of the Strickland standard was 18 unreasonable—a separate question from “whether defense counsel’s performance fell below 19 Strickland’s standard.” Richter, 562 U.S. at 101. The Court concurs with Judge Fricke’s 20 analysis and concludes that ground 1 of Petitioner’s habeas petition is DENIED. 21 3. Ground 2 22 Judge Fricke found the state court’s conclusion that counsel’s strategic choices related to 23 the timeline and reliability of the text messages between S.V. and Davis was not contrary to or
24 1 an unreasonable application of clearly established Supreme Court law, nor was it based on an 2 unreasonable determination of facts of record. (Dkt. No. 27 at 15.) Petitioner objects and 3 presents various reasons he believes trial counsel should have challenged the time stamps or 4 reliability of the text messages. (Dkt. No. 30 at 13–22.)
5 Many of the arguments Petitioner asserts in his objections were already presented to 6 either Judge Fricke or the state courts. For example, he argues counsel should not be permitted 7 to use the label “trial strategy” as a “shield” for the failure to point out the “discrepancies” in the 8 timeline of the text messages between S.V. and Davis. (Id. at 15.) Petitioner goes on to describe 9 the apparent discrepancies himself. (Id. at 15–19.) As Judge Fricke pointed out, the Washington 10 Court of Appeals considered these same arguments when considering Petitioner’s PRP and 11 concluded trial counsel “believed at least some of the text messages ‘cast doubt on [S.V.’s] 12 credibility’” and had identified certain text messages he would have sought to offer into evidence 13 had the prosecution not planned to introduce the messages. (Dkt. Nos. 14-3 at 108; 27 at 14.) 14 Further, the state court pointed out evidence from the record that contradicted some of
15 Petitioner’s assertions about the timeline of the text messages. (Dkt. No. 14-3 at 109) (stating 16 the jury did in fact hear that S.V. did not immediately produce the messages to law enforcement 17 and that the full message chain was retrieved a year later, despite Petitioner’s insistence that the 18 jury did not hear this information). Judge Fricke concluded the state court properly considered 19 Petitioner’s claims when it concluded trial counsel’s actions did not run afoul of Strickland. 20 (Dkt. No. 27 at 14–15.) That conclusion is amplified by the deference afforded to state courts 21 under § 2254(d). See Richter, 562 U.S. at 102 (AEDPA “preserves authority to issue the writ in 22 cases where there is no possibility fairminded jurists could disagree that the state court’s decision 23 conflicts” with Supreme Court precedent, but “[it] goes no further[]”).
24 1 In sum, because the objections on ground 2 amount to nothing more than Petitioner’s 2 disagreement with the R&R’s (and the state courts’) conclusions regarding the effectiveness of 3 counsel’s treatment of the text messages, the objections are insufficiently specific to trigger this 4 Court’s obligation to review de novo. E.g., Williams v. Navarro, 2022 WL 16758479, at *2
5 (General objections “that seek to relitigate the entire matter by repeating the same arguments 6 made to [the] Magistrate Judge . . . are overruled.”), aff’d, 2024 WL 1875007 (9th Cir. Apr. 30, 7 2024). The Court finds no clear error on the record before it. Ground 2 of Petitioner’s habeas 8 petition is DENIED. 9 4. Ground 5 10 Judge Fricke concluded Petitioner failed to show that trial counsel’s decision not to move 11 for a change of venue based on the lack of Black jurors in the jury pool did not violate either 12 prong of Strickland. (Dkt. No. 27 at 17.) She agreed with the state court of appeals’ conclusion 13 that counsel’s attempts to address racial concerns in Petitioner’s case through voir dire and not 14 through a change of venue was a legitimate trial strategy that did not amount to deficient
15 performance. (Id.) Based on this, Judge Fricke concurred that the state court reasonably 16 determined counsel had acted effectively. (Id.) Petitioner does not object to this conclusion. 17 (See Dkt. No. 30.) This Court reviews and finds no clear error. Fed. R. Civ. P. 72(b); Venson, 18 2019 WL 1531271, at *1. Ground 5 of Petitioner’s habeas petition is accordingly DENIED. 19 C. Evidentiary Hearing 20 Judge Fricke recommended this Court not hold an evidentiary hearing because 21 “Petitioner’s claim may be resolved on the existing state court record.” (Dkt. No. 27 at 29.) 22 Petitioner does not object to this recommendation. (See Dkt. No. 30.) 23
24 1 The decision to hold an evidentiary hearing is within this Court’s discretion, though the 2 Court must consider the standards prescribed in § 2254 in deciding whether a hearing is 3 appropriate. Schriro v. Landrigan, 550 U.S. 465, 468 (2007). “It follows that if the record 4 refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is
5 not required to hold an evidentiary hearing.” Id. at 474. A reviewing federal court may not 6 consider any facts beyond the record presented to the state post-conviction relief court (here, the 7 Washington Court of Appeals on Petitioner’s PRP) unless one of the limited exceptions in 8 § 2254(e)(2) applies. Shinn v. Ramirez, 596 U.S. 366, 382 (2022). 9 Here, the Court agrees with Judge Fricke that this case can be resolved on the existing 10 state court record. As discussed, grounds, 3, 4, 6, 7, and part of ground 2 are both unexhausted 11 and procedurally defaulted. See Section IV(A) supra. And though grounds 1, 5, and part of 12 ground 2 were properly exhausted, this Court agrees with Judge Fricke that the Washington state 13 courts’ analysis and conclusions on the issues raised by Petitioner here were not contrary to, or 14 an unreasonable application of, clearly established federal law. (Dkt. No. 27 at 29–30); see also
15 Section IV(B) supra. 16 Because the Court finds that Petitioner’s claims can be resolved on the existing state 17 court record and none of the exceptions under § 2254(e)(2) apply, the Court DENIES 18 Petitioner’s motion to appoint counsel (Dkt. No. 23).10 19 20 21
22 10 The Court also agrees with Judge Fricke’s assessment that a certificate of appealability should be denied because Petitioner has not made a “substantial showing of the denial of a constitutional 23 right.” (Dkt. No. 27 at 29) (citing 28 U.S.C. § 2253(c)(2)); see also Wilson v. Belleque, 554 F.3d 816, 825 (9th Cir. 2009). 24 1 V CONCLUSION 2 The Court has reviewed Petitioner’s objections (Dkt. No. 30), Judge Fricke’s R&R (Dkt. 3 No. 27), Petitioner’s petition for writ of habeas corpus and motion to appoint counsel (Dkt. Nos. 4 5; 23), and the entire record de novo. The Court ADOPTS in full Judge Fricke’s R&R and
5 ORDERS: 6 1. Petitioner’s petition for writ of habeas corpus (Dkt. No. 5) is DENIED with prejudice 7 pursuant to §§ 28 U.S.C. 2254(d)(1) and 2254(d)(2); 8 2. Petitioner’s motion to appoint counsel (Dkt. No. 23) is DENIED; and 9 3. A Certificate of Appealability is DENIED. 10 The Clerk is directed to send a copy of this order to Petitioner. 11 12 Dated this 13th day of April 2026. 13 a 14 David G. Estudillo 15 United States District Judge
16 17 18 19 20 21 22 23 24