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Full Opinion
1 Jun 11, 2025
SEAN F. MCAVOY, CLERK
2
3
4
5 UNITED STATES DISTRICT COURT
6 EASTERN DISTRICT OF WASHINGTON
7 WILLIAM FLETCHER, No. 2:23-CV-00157-MKD
8 Petitioner,
ORDER DISMISSING AMENDED
9 vs. HABEAS PETITION
10 JEFFREY PERKINS, ECF No. 20
11 Respondent.
Before the Court is Petitioner William Fletcher’s pro se First Amended
12
Petition under 28 U.S.C. § 2254, ECF No. 20. The Court has reviewed the briefing
13
and the record and is fully informed. For the following reasons, the Court
14
dismisses the petition with prejudice.
15
BACKGROUND
16
A. Procedural History
17
The State of Washington charged Petitioner with one count of first-degree
18
assault for the January 7, 2019, assault of L.R. ECF No. 35-2 at 47-48. In an
19
amended information, the State alleged two aggravating circumstances: (1)
20
1 Petitioner exhibited “deliberate cruelty” toward L.R. and (2) L.R. was “particularly
2 vulnerable or incapable of resistance.” Id. at 48.
3 Defense counsel successfully moved for a psychiatric evaluation of
4 Petitioner for this assault case, as well as a prior pending assault case. ECF No.
5 35-1 at 250-51; see also ECF No. 35-2 at 31-41. Jameson C. Lontz, Ph.D.
6 evaluated Petitioner (the “2019 Evaluation”) and found that “at the time of alleged
7 offenses occurring on or around [January 7, 2019], [Petitioner] did not experience
8 reduced mental status as a result of mental disorder, notwithstanding substance
9 dependence.” ECF No. 35-2 at 32. After receiving the Dr. Lontz’s 2019
10 Evaluation, defense counsel decided not to present expert testimony or a
11 diminished capacity defense at trial. Id. at 227-29.
12 During her opening statement, defense counsel stated, “Early in the day,
13 [Petitioner] took a pill because he was not feeling well.” Id. at 252. The State later
14 called L.R. and elicited testimony from her about Petitioner’s drug and alcohol use,
15 including that he asked her for alcohol and drugs. Id. at 339-45. The trial court
16 sustained two of defense counsel’s objections to this line of inquiry. Id. at 339,
17 341.
18 After the State rested, it motioned, based on defense counsel’s mention of a
19 pill during her opening statement, “to disallow any discussion of a voluntary or
20 involuntary intoxication defense based on the fact that yesterday morning is the
1 first time any of us have ever heard about it or discussed it.” Id. at 416, 420-21.
2 The State argued that it had been led to believe that defense counsel was pursuing a
3 diminished capacity defense based on Petitioner’s alleged seizures. Id. at 420.
4 Defense counsel responded:
5 [DEFENSE COUNSEL]: Sorry, Your Honor.
Okay. And Your Honor, I guess I just didn’t realize when
6 I had made that statement and talked about him having
taken a pill that that would be considered involuntary
7 intoxication. It seems obvious that that was not where I
was going or where Defense was going in this case. Our
8 entire time my entire defense has been . . . . It’s always
been that he doesn’t remember. And so when I mentioned
9 in opening that [Petitioner] had taken a pill it was not my
intent to bring up any involuntary intoxication defense.
10 My -- it was just to go towards perhaps reasons why he
doesn’t remember. And if that would be something, I
11 guess, the jury would have to then weigh the evidence.
12 Id. at 422-23.
13 The court stated, “It does go toward intent, okay.” Id. at 423. To which
14 defense counsel replied, “Yes.” Id. The court construed the State’s motion as a
15 motion in limine based on lack of proper notice and limited defense counsel’s
16 questions regarding voluntary intoxication. Id.
17 An unnamed senior attorney appearing as a supervisor for defense counsel,
18 argued that the State had opened to the door to Petitioner being high based on
19 L.R.’s “allegations of changed behavior,” and asked that the defense be allowed to
20 address this. Id. at 425-28. The Court responded:
1 THE COURT: No, the Court will not do that. The
Defense has not put forward that defense. They have not
2 called an expert in regards to voluntary/involuntary
intoxication. So, at this time, I do not find the Defense one
3 is timely, nor is it prepared to be put forward in any fashion
at this time. If I had a choice of continuing or the trial --
4 continuing this trial and doing it again, I decline to do
neither. At this time, I’m going to direct the Defense to
5 limit that questioning.
6 Id. at 428.
7 Petitioner testified later that day. Id. at 434. He stated that on the morning
8 of January 7, 2019, he was feeling “[a] little different, not [himself].” Id. at 435.
9 Petitioner further stated that he remembered going to L.R.’s house and speaking
10 with her. Id. at 435-36. According to Petitioner he was thinking about grabbing
11 the Swiffer to start cleaning the floors when he began “feeling weird” and
12 experienced an “auras feeling.” Id. at 436. “The next thing [he] kn[e]w,” he was
13 being awoken by a deputy across the street from L.R.’s house. Id.
14 At the close of trial, the trial court struck defense counsel’s instruction for a
15 diminished capacity defense, “[a]s it would not be based on the evidence before the
16 [c]ourt.” Id. at 455-56. The court provided jury instructions on the aggravating
17 factors of deliberate cruelty and a victim who was particularly vulnerable or
18 incapable of resistance. Id. at 467-68.
19 The jury found Petitioner guilty of assault in the first degree and returned
20 special verdicts finding that “[Petitioner]’s conduct during the commission of the
1 crime manifest[ed] deliberate cruelty to the victim” and that “[Petitioner] kn[e]w or
2 should . . . have known that the victim was particularly vulnerable or incapable of
3 resistance.” Id. at 504.
4 At sentencing, Petitioner’s sentencing range was calculated at 178 to 236
5 months. Id. at 535. The court imposed an above-range sentence of 396 months
6 based in part on the aggravating factors of deliberate cruelty and a victim
7 particularly vulnerable or incapable of resistance. Id. at 540.
8 B. Direct Appeal
9 Petitioner, through counsel, appealed his convictions to the Washington
10 State Court of Appeals (“Court of Appeals”), asserting: (1) “[t]here was
11 insufficient evidence to support the aggravating factor of deliberate cruelty,” (2)
12 “[t]here was insufficient evidence to support the aggravating factor of particular
13 vulnerability,” (3) “[t]he trial court incorrectly believed the voluntary intoxication
14 defense was an affirmative defense,” and (4) “[t]he State’s interest in excluding
15 voluntary intoxication evidence did not outweigh [Petitioner]’s constitutional right
16 to present a defense.” ECF No. 35-1 at 24. The Court of Appeals rejected
17 Petitioner’s arguments and affirmed his conviction for first degree assault with
18 aggravating factors. Id. at 110-23.
19 Petitioner sought discretionary review by the Washington State Supreme
20 Court, raising the following issues:
1 1. Assault in the first degree necessarily
contemplates violent and traumatic conduct that creates a
2 probability of death, or which causes significant serious
permanent disfigurement, or which causes a significant
3 permanent loss or impairment of the function of any bodily
part or organ. Does the first degree assault statute
4 necessarily contemplate all pain from no pain to the most
pain up to death?
5
2. Application of the deliberate cruelty aggravator
6 requires the State to demonstrate the defendant’s criminal
conduct exceeds what is normally associated with or
7 inherent within the charged crime. Does the Court of
Appeals incorrectly hold [Petitioner]’s criminal conduct
8 was deliberately cruel when he had a demonic look and
used a blunt object, striking the victim repeatedly, with
9 enough force to constitute first degree assault?
10 3. Application of the deliberate cruelty aggravator
requires the State to demonstrate the victim’s pain
11 exceeded what is normally associated with or inherent
within the charged crime. Does the Court of Appeals
12 incorrectly hold there is sufficient evidence the victim’s
pain exceeded what is contemplated by or inherent within
13 the first degree statute, without articulating what the
victim’s pain was; and when the victim in this case
14 testified her pain was an 8-9 on a scale of ten; and her
injuries were severe but non-life threatening?
15
Id. at 131-32. The Washington State Supreme Court unanimously denied the
16
petition for review, id. at 267, and the Court of Appeals issued its mandate on
17
August 16, 2022. Id. at 269.
18
C. Personal Restraint Petition
19
On June 28, 2022, while his petition for direct appeal was still pending with
20
the Washington State Supreme Court, Petitioner filed a pro se Personal Restraint
1 Petition with the Court of Appeals. Id. at 203-65. Petitioner asserted the following
2 grounds of relief: (1) “abuse of discretion by the trial court when it denied
3 evidence of a seizure disorder based on [Dr. Lontz’s 2019 Evaluation] which the
4 court admitted it did not read,” and (2) “ineffective assistance of counsel by failing
5 to investigate Dr. Lontz’s [2019 Evaluation]. This deficient performance caused
6 prejudice to the defendant by evidence of his seizure disorder not being allowed to
7 be presented to the jury.” Id. at 205, 206. Pursuant to the Court of Appeals’ order,
8 the State supplemented the record with Petitioner’s 2019 Evaluation. Id. at 371-
9 74; see also ECF No. 35-2 at 31-41 (the 2019 Evaluation). Brett Pearce, the
10 assigned special deputy prosecutor, also filed a declaration regarding the
11 evaluation. ECF No. 35-2 at 2-43.1 The Court of Appeals issued an opinion in
12 which it rejected all three of Petitioner’s grounds for relief. Id. at 45-59.
13 Petitioner sought discretionary review by the Washington State Supreme
14 Court presenting the following issues: (1) “Does this Court’s opinion in State v.
15 Clark, 187 Wn.2d 641 (2017) cover all illness related defenses not amounting to
16
1 The Court of Appeals ordered the 2019 Evaluation submitted, as it was not filed
17
with the trial court or included in the record on direct appeal. Id. at 50. The
18
evaluation regarding Petitioner’s 2018 assault (the “2018 Evaluation”) was
19
included in the record. ECF No. 35-1 at 239-48.
20
1 insanity that attack the actus reus, and biproxy, the mens rea of the State’s case in
2 chief?” and (2) “Did the Appellate Court Commissioner commit error when
3 dismissing the Personal Restraint Petition . . . as frivolous under Rules of Appellate
4 Procedure (RAP) 16.11(b)?” Id. at 68. The Washington State Supreme Court
5 denied Petitioner’s motion for discretionary review. Id. at 86-87. Petitioner then
6 filed a Motion for Leave to Supplement Motion for Discretionary Review with
7 Medical Records, id. at 89-91, and a motion to modify the ruling, id. at 93-213.
8 The Washington State Supreme Court denied Petitioner’s motions, id. at 215, and
9 the Court of Appeals issued a Certificate of Finality on January 4, 2024, id. at 217.
10 D. The Instant Petition
11 On May 26, 2023, Petitioner filed a pro se petition under 28 U.S.C. § 2254.
12 See generally ECF No. 1. This case was reassigned to this judicial officer, and the
13 Court ordered Petitioner to file an Amended Petition. ECF No. 10. Petitioner filed
14 an Amended Petition, ECF No. 20, the State answered, ECF No. 34, and Petitioner
15 replied, ECF No. 42.
16 On February 7, 2025, Petitioner filed a “Motion in Letter” stating that he had
17 not received the State’s Answer. ECF No. 43. The Court ordered the State to
18 serve Petitioner with a copy of the Answer and allowed Petitioner thirty days after
19 service of the Answer to file a Supplemental Reply, which Petitioner did. ECF
20 Nos. 44, 46.
1 LEGAL STANDARD
2 Under Section 2254, “a district court shall entertain an application for a writ
3 of habeas corpus on behalf of a person in custody pursuant to the judgment of a
4 State court only on the ground that he is in custody in violation of the Constitution
5 or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Relief may only be
6 granted on a claim that was adjudicated on the merits in state court proceedings if
7 the adjudication of the claim: “(1) resulted in a decision that was contrary to, or
8 involved an unreasonable application of, clearly established Federal law, as
9 determined by the Supreme Court of the United States; or (2) resulted in a decision
10 that was based on an unreasonable determination of the facts in light of the
11 evidence presented in the State court proceeding.” Id. § 2254(d).
12 “‘[C]learly established Federal law’ under § 2254(d)(1) is the governing
13 legal principle or principles set forth by the Supreme Court at the time the
14 state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)
15 (citations omitted). “[A] federal habeas court may overturn a state court’s
16 application of federal law only if it is so erroneous that ‘there is no possibility fair[-
17 ]minded jurists could disagree that the state court’s decision conflicts with [the
18 Supreme] Court’s precedents.’” Nevada v. Jackson, 569 U.S. 505, 508-09 (2013)
19 (quoting Harrington v. Richter, 562 U.S. 86, 102 (2011)). A factual determination
20 by a state court is presumed to be correct. 28 U.S.C. § 2254(e)(1). The applicant
1 bears “the burden of rebutting the presumption of correctness by clear and
2 convincing evidence.” Id. A court may grant habeas relief only if the challenged
3 error caused “actual prejudice” or had “substantial and injurious effect or
4 influence” on the outcome of the case. Brecht v. Abrahamson, 507 U.S. 619, 637
5 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see also
6 Brown v. Davenport, 596 U.S. 118, 122 (2022) (“When a state court has ruled on
7 the merits of a state prisoner’s claim, a federal court cannot grant relief without
8 first applying both the test [the Supreme] Court outlined in Brecht and the one
9 Congress prescribed in AEDPA.”).
10 DISCUSSION
11 Petitioner raises four claims in his petition:
12 1. The State failed to present sufficient evidence for a rational trier of fact to
13 find beyond a reasonable doubt that his conduct during the assault of L.R.
14 manifested deliberate cruelty, in violation of his rights under the Due
15 Process Clause of the Fourteenth Amendment. ECF No. 20 at 5; ECF
16 No. 20-1 at 4-8.
17 2. Petitioner received ineffective assistance of counsel in violation of the
18 Sixth Amendment when his trial counsel:
19 a. Failed to adequately investigate and present evidence of
20 Petitioner’s seizure disorder as a potential defense;
1 b. Failed to call expert witnesses to present a diminished capacity
2 defense; and
3 c. Failed to properly challenge that State’s motion in limine to
4 exclude evidence of Petitioner’s medical conditions. ECF No. 20
5 at 5; ECF No. 20-1 at 4, 6, 8-9.
6 3. The State violated Petitioner’s Fourteenth Amendment right to due
7 process by:
8 a. Using an unqualified psychologist to testify about Petitioner’s
9 neurological issues;
10 b. Failing to conduct a proper investigation into Petitioner’s alleged
11 seizure disorder; and
12 c. Filing a motion in limine to prevent consideration of valid medical
13 records and witness testimony. ECF No. 20 at 5; ECF No. 20-1 at
14 7.
15 4. The trial court violated Petitioner’s Sixth and Fourteenth Amendment
16 rights to present a defense and to due process when it granted the State’s
17 motion in limine to exclude evidence of Petitioner’s seizure disorder and
18 other medical conditions, which were relevant to his ability to form the
19 requisite intent for the charged offense. ECF No. 20-1 at 4-6, 8-11.
20
1 A. Exhaustion and Procedural Default
2 The State asserts that Petitioner has failed to exhaust Claims 1, 2(c), 3(a),
3 3(b), 3(c), and 4, and that these claims are now procedurally defaulted. ECF No.
4 34 at 13-14.
5 1. Exhaustion
6 A court may not grant an application for a writ of habeas corpus “unless it
7 appears that—(A) the applicant has exhausted the remedies available in the courts
8 of the State; or (B)(i) there is an absence of available State corrective process; or
9 (ii) circumstances exist that render such process ineffective to protect the rights of
10 the applicant.” 28 U.S.C. § 2254(b)(1). A petitioner has not exhausted a claim for
11 relief “if he has the right under the law of the State to raise, by any available
12 procedure, the question presented.” 28 U.S.C. § 2254(c).
13 To meet the exhaustion requirement, the petitioner must have “‘fairly
14 present[ed]’ his claim in each appropriate state court (including a state supreme
15 court with powers of discretionary review), thereby alerting that court to the
16 federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citing
17 Duncan v. Henry, 513 U.S. 364, 365-66 (1995); O’Sullivan v. Boerckel, 526 U.S.
18 838, 845 (1999)). “The mere similarity between a claim of state and federal error
19 is insufficient to establish exhaustion.” Hiivala v. Wood, 195 F.3d 1098, 1106 (9th
20 Cir. 1999) (citing Duncan, 513 U.S. at 366). “Moreover, general appeals to broad
1 constitutional principles, such as due process, equal protection, and the right to a
2 fair trial, are insufficient to establish exhaustion.” Id. (citing Gray v.
3 Netherland, 518 U.S. 152, 162-63 (1996)).
4 a. Claim 1 – Fourteenth Amendment
5 The State contends that Petitioner did not exhaust Claim 1 regarding the
6 State failing to present sufficient evidence that his conduct manifested deliberate
7 cruelty, because he did not “fairly present” this claim to the Washington State
8 Supreme Court as a federal constitutional claim. ECF No. 34 at 13.
9 On direct appeal, Petitioner did not alert the Court of Appeals to a federal
10 constitutional claim regarding the insufficiency of the evidence to support the
11 deliberate cruelty aggravator. See ECF No. 35-1 at 38-41. Rather, Petitioner
12 focused on RCW 9A.36.011(1), which defines assault in the first degree, and state
13 court cases. See id. (citing State v. Serrano, 977 P.2d 47, 54 (Wash. Ct. App.
14 1999); State v. Stubbs, 240 P.3d 143, 148-49 (Wash. 2010); State v. Baird, 922
15 P.2d 157, 162-63 (Wash. Ct. App. 1996)) (other citations omitted). Petitioner did
16 cite to State v. Zigan, 270 P.3d 625, 601-02 (Wash. Ct. App. 2012) for a standard
17 similar to that used to analyze federal due process claims. Id. at 37; compare
18 Zigan, 270 P.3d at 601-02 (“[W]e review the evidence in the light most favorable
19 to the State to determine whether any rational trier of fact could have found the
20 presence of the aggravating circumstances beyond a reasonable doubt.”), with
1 Jackson v. Virginia, 443 U.S. 307, 319 (1979) (“[T]he relevant question is
2 whether, after viewing the evidence in the light most favorable to the
3 prosecution, any rational trier of fact could have found the essential elements of the
4 crime beyond a reasonable doubt.”). However, Petitioner merely cited to Zigan
5 without propounding a federal constitutional theory. The Court of Appeals also
6 focused on state law with respect to its decision regarding the deliberate cruelty
7 aggravator. See ECF No. 35-1 at 117-19 (“[Petitioner]’s actions went beyond what
8 is contemplated by RCW 9A.36.011(1).”).
9 Petitioner’s discretionary review arguments to the Washington State
10 Supreme Court again focused on state law. Id. at 139-45 (citing RCW
11 9A.36.011(1); RCW 9A.04.110(4)(c); Serrano, 977 P.2d at 54; Stubbs, 240 P.3d at
12 148-49; Baird, 922 P.2d at 162-63) (other citations omitted).
13 Citing to state cases focused on state law does not provide fair notice to a
14 state court that a petitioner is asserting a specific federal claim. Anderson v.
15 Harless, 459 U.S. 4, 6 (1982) (“28 U.S.C. § 2254 requires a federal habeas
16 petitioner to provide the state courts with a ‘fair opportunity’ to apply controlling
17 legal principles to the facts bearing upon his constitutional claim. . . . It is not
18 enough that all the facts necessary to support the federal claim were before the
19 state courts, . . . or that a somewhat similar state-law claim was made.”) (citations
20 omitted). Petitioner did not articulate to the state courts a Fourteenth Amendment
1 Due Process claim that the State failed to present sufficient evidence for a rational
2 trier of fact to find beyond a reasonable doubt that Petitioner acted with deliberate
3 cruelty in his assault of L.R.
4 Thus, Petitioner did not properly exhaust his Fourteenth Amendment Due
5 Process claim.
6 b. Claim 2(c) – Sixth Amendment
7 The State contends that Petitioner did not exhaust Claim 2(c) regarding his
8 trial counsel failing to properly challenge the State’s motion in limine to exclude
9 evidence of his medical conditions. ECF No. 34 at 13.
10 Petitioner did not raise the claim of ineffective assistance of counsel for
11 failing to challenge the State’s motion in limine in his direct appeal to the Court of
12 Appeals, see ECF No. 35-1 at 19-55, or when seeking discretionary review with
13 the Washington State Supreme Court, see ECF No. 35-2 at 67-79. Instead, in his
14 Motion for Discretionary Review, Petitioner asserted two other ineffective
15 assistance of counsel claims: (1) [c]ounsel failed to adequately investigate and
16 present evidence of Petitioner’s seizure disorder as a potential defense; and (2)
17 [c]ounsel failed to call expert witnesses to present a diminished capacity defense.
18 Id. at 73-75.
19 In his Personal Restraint Petition to the Court of Appeals, Petitioner asserted
20 the trial court abused its discretion by excluding evidence of a seizure disorder.
1 ECF No. 35-1 at 205. While Petitioner addressed the motion in limine with respect
2 to the trial court’s ruling, he did not assert a Sixth Amendment ineffective
3 assistance of counsel claim regarding counsel’s failure to object to the motion in
4 limine. Petitioner’s subsequent Motion for Discretionary Review also did not
5 allege ineffective assistance of counsel due to counsel’s failure to challenge the
6 State’s motion in limine. ECF No. 35-2 at 67-79, 81-84.
7 In sum, Petitioner did not articulate in state court a Sixth Amendment claim
8 regarding counsel’s failure to challenge the State’s motion in limine to exclude
9 evidence of his medical conditions by articulating other Sixth Amendment
10 ineffective assistance of counsel claims—Claims 2(a) and 2(c), see Poyson v.
11 Ryan, 879 F.3d 875, 896 (9th Cir. 2018) (dismissing petitioner’s ineffective
12 assistance of counsel claim as procedurally defaulted where petitioner presented “a
13 fundamentally new theory of counsel’s ineffectiveness” that the state court did not
14 have an opportunity to consider), or by arguing that the trial court abused its
15 discretion under state law.
16 Petitioner did not properly exhaust this Sixth Amendment ineffective
17 assistance of counsel claim.
18 c. Claims 3(a), 3(b), 3(c) – Fourteenth Amendment
19 The State contends that Petitioner failed to exhaust his prosecutorial
20 misconduct claims—Claims 3(a), 3(b), 3(c). ECF No. 34 at 13.
1 Petitioner did not raise claims of prosecutorial misconduct in his direct
2 appeal to the Court of Appeals. Rather, Petitioner asserted that the trial court erred
3 in barring him from presenting evidence of involuntary intoxication. ECF No. 35-
4 1 at 44-52. However, Petitioner’s argument was framed as a challenge to the trial
5 court’s evidentiary rulings—Petitioner did not assert that the State committed
6 prosecutorial misconduct. See id.; see also Hiivala, 195 F.3d at 1106 (“The mere
7 similarity between a claim of state and federal error is insufficient to establish
8 exhaustion.”) (citing Duncan, 513 U.S. at 366). Nor did Petitioner assert that the
9 State committed prosecutorial misconduct in his Motion for Discretionary Review,
10 which instead focused on deliberate cruelty aggravating factor. See ECF No. 35-1
11 at 128-45.
12 Petitioner’s Personal Restraint Petition to the Court of Appeals, also did not
13 raise claims of prosecutorial misconduct. Id. at 203-09. Petitioner’s subsequent
14 Motion for Discretionary Review included an Affidavit in which Petitioner
15 asserted that “[t]he [State] committed misconduct when [it] violated the motion in
16 limine by stating in closing arguments that [it] believed petitioner faked his
17 seizure.” ECF No. 35-2 at 77. However, Petitioner did not include this assertion
18 in his Motion for Discretionary Review itself. A petitioner “does not ‘fairly
19 present’ a claim to a state court if that court must read beyond a petition or a brief
20 (or a similar document) that does not alert it to the presence of a federal claim in
1 order to find material.” Baldwin, 541 U.S. at 32. Furthermore, a petitioner may
2 not raise a new claim for the first time when seeking discretionary review. Castille
3 v. Peoples, 489 U.S. 346, 351 (1989) (holding “that the submission of a new claim
4 to a State’s highest court on discretionary review” did not “constitute[] a fair
5 presentation”).
6 In sum, Petitioner did not properly exhaust his Fourteenth Amendment
7 claims of prosecutorial misconduct.
8 d. Claim 4 – Sixth and Fourteenth Amendments
9 The State contends that Petitioner did not exhaust his claim that the trial
10 court violated his constitutional rights by granting the State’s motion in limine to
11 exclude evidence of his medical conditions, because he did not “fairly present[]”
12 this claim to the Washington State Supreme Court as a federal constitutional claim.
13 ECF No. 34 at 13.
14 In his direct appeal to the Court of Appeals, Petitioner asserted:
15 The court improperly granted the State’s motion to
bar [Petitioner] from presenting or eliciting any evidence
16 or discussion related to his prior and current substance
abuse. Specifically, the trial court ruled as a matter of law
17 the voluntary intoxication defense required prior notice
and expert witness testimony. This error violated
18 [Petitioner]’s Sixth Amendment right to present a defense.
19 ECF No. 35-1 at 44. However, the mere mention of the Sixth Amendment is
20 insufficient to put the state on notice of a federal claim. See Castillo v. McFadden,
1 399 F.3d 993, 1003 (9th Cir. 2005) (“Exhaustion demands more than drive-by
2 citation, detached from any articulation of an underlying federal legal theory.”);
3 Casey v. Moore, 386 F.3d 896, 913 (9th Cir. 2004) (“We are not persuaded that . . .
4 a vague appeal, bolstered only by state law cases that focused on state procedural
5 or state constitutional error, can be said to have fairly presented federal
6 constitutional issues.”). Petitioner also abandoned this claim in his Motion for
7 Discretionary Review, which instead focused on deliberate cruelty aggravating
8 factor. See id. at 128-145.
9 Petitioner’s Personal Restraint Petition to the Court of Appeals, raised the
10 claim of abuse of discretion by the trial court in barring evidence of a seizure
11 disorder, but focused solely on the state law abuse of discretion standard. Id. at
12 205 (citing State v. Powell, 893 P.2d 615, 624 (Wash. 1995); State v. Darden, 41
13 P.3d 1189, 1192 (Wash. 2002)). In sum, Petitioner did not signify a federal claim
14 to the Court of Appeals, which also focused on state law in its decision regarding
15 the trial court excluding evidence of Petitioner’s seizure disorder. See ECF No.
16 35-2 at 52-55. Petitioner’s Motion for Discretionary Review to the Washington
17 State Supreme Court also framed the issue of the trial court barring evidence of a
18 seizure disorder in terms of state law. Id. at 72-73; see also Hiivala, 195 F.3d at
19 1106.
20
1 Thus, Petitioner did not exhaust Claim 4 that the trial court violated his Sixth
2 and Fourteenth Amendment rights when it granted the State’s motion in limine to
3 exclude evidence of his seizure disorder and other medical conditions with the
4 Washington State Supreme Court.
5 2. Procedural Default
6 Petitioner has not properly exhausted Claim 1, Claim 2(c), Claims 3(a), 3(b),
7 3(c), or Claim 4 and two separate Washington laws bar Petitioner from now
8 presenting these claims to the Washington State Supreme Court.
9 Under RCW 10.73.090(1), “[n]o petition or motion for collateral attack on a
10 judgment and sentence in a criminal case may be filed more than one year after the
11 judgment becomes final if the judgment and sentence is valid on its face and was
12 rendered by a court of competent jurisdiction.” A judgment becomes final on the
13 last of the following dates:
14 (a) The date it is filed with the clerk of the trial court;
(b) The date that an appellate court issues its mandate
15 disposing of a timely direct appeal from the conviction; or
(c) The date that the United States Supreme Court denies
16 a timely petition for certiorari to review a decision
affirming the conviction on direct appeal. The filing of a
17 motion to reconsider denial of certiorari does not prevent
a judgment from becoming final.
18
RCW 10.73.090(3); see also RCW 10.73.100 (listing when the one-year limit is
19
not applicable).
20
1 Petitioner was sentenced on October 21, 2020. ECF No. 35-1 at 2.
2 Petitioner filed a direct appeal with the Court of Appeals on April 22, 2021. Id. at
3 19. The Court of Appeals subsequently issued its mandate on August 16, 2022.
4 Id. at 269. As detailed above, Petitioner has not properly exhausted Claim 1,
5 Claim 2(c), Claims 3(a), 3(b), 3(c), or Claim 4 and cannot now do so as it has been
6 more than one year since the Court of Appeals issued its mandate. Petitioner’s
7 claims are thus procedurally defaulted.
8 Additionally, under RCW 10.73.140, “[i]f a person has previously filed a
9 petition for personal restraint, the court of appeals will not consider the petition
10 unless the person certifies that he or she has not filed a previous petition on similar
11 grounds, and shows good cause why the petitioner did not raise the new grounds in
12 the previous petition.” See also RAP 16.4(d). Thus, Petitioner cannot file a
13 successive collateral challenge.
14 Petitioner procedurally defaulted on his claims by not presenting them to the
15 Washington State Supreme Court. A habeas petitioner who procedurally defaults
16 on a federal claim in state court is barred from federal habeas review unless: (1)
17 “the prisoner can demonstrate cause for the default and actual prejudice as a result
18 of the alleged violation of federal law,” or (2) “demonstrate that failure to consider
19 the claims will result in a fundamental miscarriage of justice.” Coleman v.
20 Thompson, 501 U.S. 722, 750 (1991). To show “cause” for a procedural default, a
1 petitioner must ordinarily demonstrate that some objective factor external to the
2 defense impeded his or his counsel’s efforts to comply with the state procedural
3 rule at issue. Murray v. Carrier, 477 U.S. 478, 488 (1986). To show “prejudice,”
4 a petitioner “must shoulder the burden of showing, not merely that the errors at his
5 trial created a possibility of prejudice, but that they worked to his actual and
6 substantial disadvantage, infecting his entire trial with error of constitutional
7 dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphases in
8 original).
9 The “miscarriage of justice” exception is limited to habeas petitioners who
10 can show that “a constitutional violation has probably resulted in the conviction of
11 one who is actually innocent.” Murray, 477 U.S. at 496. The petitioner must
12 present new evidence and show that, based upon this new evidence, “it is more
13 likely than not that no reasonable juror would have found petitioner guilty beyond
14 a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 327 (1995).
15 Additionally, in Martinez v. Ryan, the Supreme Court established a narrow
16 equitable exception to the general Coleman standard for procedurally defaulted
17 claims of ineffective assistance of counsel. 566 U.S. 1, 8-9 (2012). Under
18 Martinez, “[i]nadequate assistance of counsel at initial-review collateral
19 proceedings may establish cause for a prisoner’s procedural default of a claim of
20
1 ineffective assistance at trial.” Id. at 9. To establish cause, the petitioner must
2 show that :
3 (1) the underlying ineffective assistance of trial counsel
claim is “substantial”; (2) the petitioner was not
4 represented or had ineffective counsel during the [post-
conviction relief (“PCR”)] proceeding; (3) the state PCR
5 proceeding was the initial review proceeding; and (4) state
law required (or forced as a practical matter) the petitioner
6 to bring the claim in the initial review collateral
proceeding.
7
Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (en banc) (quoting Trevino
8
v. Thaler, 569 U.S. 413, 423 (2013)). An ineffective assistance of trial counsel
9
claim is “substantial” if “the claim has some merit.” Martinez, 566 U.S. at 14
10
(citation omitted).
11
Here, Petitioner has not alleged any external factor, which prevented him
12
from properly exhausting Claim 1, Claim 2(c), Claims 3(a), 3(b), 3(c), or Claim 4
13
in state court. Nor has Petitioner presented new evidence that creates a colorable
14
claim of actual innocence of the charge for which he is incarcerated. See Franklin
15
v. Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002) (“When a petitioner’s claims are
16
procedurally barred and a petitioner cannot show cause and prejudice for the
17
default, however, the district court dismisses the petition because the petitioner has
18
no further recourse in state court.”) (citing Reed v. Ross, 468 U.S. 1, 9 (1984)).
19
Furthermore, the Martinez exception does not excuse Petitioner’s default of
20
Claim 2(c). Regarding the third and fourth prongs, Washington is a state where a
1 claim of ineffective assistance of counsel, as a practical matter, must be brought
2 during post-conviction proceedings. See Woods v. Sinclair, 764 F.3d 1109, 1137
3 (9th Cir. 2014). As to the second prong, Petitioner was not represented in his
4 Personal Restraint Petition (the initial-review collateral proceeding) in the Court of
5 Appeals. However, Petitioner has not shown that his ineffective assistance of
6 counsel claim based on trial counsel failing to challenge the State’s motion in
7 limine to exclude evidence of his medical conditions is “substantial.”
8 The Sixth Amendment guarantees a criminal defendant the right to effective
9 assistance of counsel. See Strickland v. Washington, 466 U.S. 668 (1984). Under
10 Strickland, a defendant must show that: (1) “counsel’s performance was deficient”
11 and (2) “the deficient performance prejudiced the defense.” Id. at 687. To prove
12 counsel’s performance was deficient, “the defendant must show that counsel’s
13 representation fell below an objective standard of reasonableness.” Id. at 688. To
14 prove prejudice, “[t]he defendant must show that there is a reasonable probability
15 that, but for counsel’s unprofessional errors, the result of the proceeding would
16 have been different.” Id. at 694.
17 Petitioner alleges his trial counsel was ineffective by failing to challenge the
18 State’s motion in limine to exclude evidence of his medical condition. ECF No. 20
19 at 5; ECF No. 20-1 at 4, 6, 8-9. However, based on the record, counsel’s decision
20 not to object to the motion in limine did not fall “below an objective standard of
1 reasonableness.” Strickland, 466 U.S. at 688. As noted by the Court of Appeals,
2 Dr. Lontz’s 2019 Evaluation concluded that Petitioner was not experiencing
3 reduced mental status “as a result of mental disorder” at the time of the alleged
4 assault of L.R. ECF No. 35-2 at 54. Because the 2019 Evaluation did not support
5 a mental defense, counsel’s decision not to more vigorously challenge the motion
6 in limine to exclude evidence of a medical condition was not deficient. Further,
7 while the trial court did not allow testimony regarding a seizure disorder, the court
8 did allow testimony as to “present sense impression as far as what they observed
9 and it can be argued for mental state at the time of . . . the alleged offense.” Id. at
10 231.
11 Even if this failure constituted deficient performance by counsel, Petitioner
12 cannot demonstrate prejudice. The Court of Appeals found that the trial court
13 properly excluded evidence of Petitioner’s medical conditions as it was “not
14 relevant to [Petitioner’s] ability to form intent” and “would have the tendency to
15 mislead the jury.” Id. at 54-55. In sum, Petitioner has failed to demonstrate
16 “cause” to excuse the procedural default of his ineffective assistance of trial
17 counsel claim.
18 Accordingly, the Court dismisses Petitioner’s Claim 1, Claim 2(c), Claims
19 3(a), 3(b), 3(c), and Claim 4, as procedurally defaulted.
20
1 B. The State Courts’ Denial of Petitioner’s Unexhausted Claims2
2 Even if Petitioner could excuse procedural default on Claim 1, Claim 2(c),
3 or Claim 4, Petitioner has not established that the state courts’ decisions were
4 “based on an unreasonable determination of the facts in light of the evidence
5 presented in the State court proceeding[s]” or that they were “contrary to, or
6 involved an unreasonable application of, clearly established Federal law.” 28
7 U.S.C. § 2254(d)(1), (2).
8 1. Claim 1 – Fourteenth Amendment Due Process
9 The Court of Appeals denied Claim 1, in which Petitioner asserted his due
10 process rights were violated by the State failing to present sufficient evidence for a
11 rational trier of fact to find beyond a reasonable doubt that his assault of L.R.
12 manifested deliberate cruelty. ECF No. 20 at 5; ECF No. 20-1 at 4-8.
13 “[T]he Due Process Clause protects the accused against conviction except
14 upon proof beyond a reasonable doubt of every fact necessary to constitute the
15 crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). When
16 evaluating whether the evidence is sufficient to support a conviction, “a reviewing
17 court makes a limited inquiry tailored to ensure that a defendant receives the
18
2 As Petitioner did not present Claims 3(a), 3(b), or 3(c) to the Court of Appeals,
19
these claims are not addressed here.
20
1 minimum that due process requires: a ‘meaningful opportunity to defend’ against
2 the charge against him and a jury finding of guilt ‘beyond a reasonable doubt.’”
3 Musacchio v. United States, 577 U.S. 237, 243 (2016) (quoting Jackson, 443 U.S.
4 at 314-15). “The reviewing court considers only the ‘legal’ question ‘whether,
5 after viewing the evidence in the light most favorable to the prosecution, any
6 rational trier of fact could have found the essential elements of the crime beyond a
7 reasonable doubt.’” Id. (quoting Jackson, 443 U.S. at 319). “That limited review
8 does not intrude on the jury’s role ‘to resolve conflicts in the testimony, to weigh
9 the evidence, and to draw reasonable inferences from basic facts to ultimate
10 facts.’” Id. (quoting Jackson, 443 U.S. at 319).
11 In denying Claim 1, the Court of Appeals explained that, under
12 Washington law, “[t]he focus of the deliberate cruelty aggravator is not the
13 extent of the victim’s injuries; it is instead the infliction of psychological and
14 emotional pain.” ECF No. 35-1 at 118 (citing State v. Tili, 60 P.3d 1192,
15 1202 (Wash. 2003)). The Court of Appeals found that the jury’s verdict on
16 this aggravating circumstance was justified as:
17 . . . [Petitioner] did not simply attack [L.R.] in a way
sufficiently serious to cause great bodily harm. He
18 brutalized [L.R.] so that she experienced severe pain and
psychological trauma. [Petitioner] terrorized [L.R.] by
19 beginning his attack with a demonic look. He then
knocked the phone out of [L.R.’s] hands when she tried to
20 call 911 for help. [Petitioner] did not end his attack until
the candlestick shattered. [Petitioner’s] actions were
1 indicative of someone intent on inflicting not just physical
injuries, but gratuitous pain and suffering. [Petitioner]’s
2 actions went beyond what is contemplated by RCW
9A.36.011(1). He was deliberately cruel. The jury’s
3 verdict on this measure was justified.
4 Id. at 118-19.
5 The Court of Appeals reasoning is supported by the trial court record, which
6 shows that L.R. was frightened when Petitioner picked up the candlestick but
7 unable to stand. ECF No. 35-2 at 361-62. L.R. testified that she tried to avoid
8 falling unconscious because she thought that if she “became unconscious he would
9 kill [her].” Id. at 362. L.R. also testified that she counted 14 blows before she
10 stopped counting, and that Petitioner only stopped hitting her when the candlestick
11 broke over her head. Id. at 362-64. The trial court record also shows the
12 consequences of Petitioner’s actions on L.R. Namely, L.R.’s vision never fully
13 returned, she lost her sense of smell, her teeth were broken or knocked out, and she
14 suffered hearing loss and now requires hearing aids. Id. at 370-76. She also no
15 longer felt safe living in her house and moved. Id. at 375.
16 In sum, the Court of Appeals’ ruling that the evidence was sufficient to
17 support the jury’s finding of a deliberate cruelty aggravating circumstance did not
18 amount to a violation of clearly established federal law. See id. § 2254(d)(1).
19 Petitioner is therefore not entitled to relief on Claim 1 regarding whether the State
20 failed to present sufficient evidence for a rational trier of fact to find beyond a
1 reasonable doubt that his conduct during the assault of L.R. manifested deliberate
2 cruelty.
3 2. Claim 2(c) – Sixth Amendment
4 The Court of Appeals denied Claim 2(c), in which Petitioner asserted his
5 trial counsel was ineffective for failing to properly challenge that State’s motion in
6 limine to exclude evidence of Petitioner’s medical conditions. ECF No. 20 at 5;
7 ECF No. 20-1 at 4, 6, 8-9.
8 As detailed above, Petitioner cannot demonstrate that his trial counsel’s
9 performance was deficient or that he was prejudiced. See Strickland, 466 U.S. at
10 687. Counsel’s decision not to vigorously oppose the motion in limine did not fall
11 “below an objective standard of reasonableness,” id. at 688, given Dr. Lontz’s
12 2019 Evaluation, which found that Petitioner did not have a mental defense. Nor is
13 the likelihood of a different result “substantial” when the Court of Appeals found
14 that the trial court properly excluded such evidence based on state rules of
15 evidence. See ECF No. 35-2 at 54-55. In sum, the Court of Appeals’ ruling was
16 not an unreasonable application of clearly established federal law. See 28 U.S.C. §
17 2254(d)(1).
18 Thus, Petitioner is not entitled to relief on Claim 2(c) regarding ineffective
19 assistance of counsel.
20
1 3. Claim 4 – Sixth and Fourteenth Amendments
2 The Court of Appeals denied Claim 4, in which Petitioner asserted the trial
3 court improperly denied his defense by granting the State’s motion in limine to
4 exclude evidence of Petitioner’s medical conditions. ECF No. 20-1 at 4-6, 8-11.
5 “[T]he Constitution guarantees criminal defendants ‘a meaningful
6 opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683,
7 690 (1986) (quoting California v. Trombetta, 467 U.S. 469, 485 (1984) (other
8 citation omitted). “The Supreme Court has indicated that a defendant’s right to
9 present a defense stems both from the right to due process provided by the
10 Fourteenth Amendment . . . and from the right ‘to have compulsory process for
11 obtaining witnesses in his favor’ provided by the Sixth Amendment . . . .” Moses
12 v. Payne, 555 F.3d 742, 757 (9th Cir. 2009) (citing Chambers v. Mississippi, 410
13 U.S. 284, 294 (1973); Washington v. Texas, 388 U.S. 14, 23 (1967)).
14 “A defendant’s right to present relevant evidence is not unlimited, but rather
15 is subject to reasonable restrictions[,]” such as evidentiary rules. United States v.
16 Scheffer, 523 U.S. 303, 308 (1998) (citations omitted); see also Moses v. Payne,
17 555 F.3d 742, 757 (9th Cir. 2009). “[The Supreme Court] ha[s] found the
18 exclusion of evidence to be unconstitutionally arbitrary or disproportionate only
19 where it has infringed upon a weighty interest of the accused.” Scheffer, 523 U.S.
20 at 308 (citations omitted); see also Chambers v. Mississippi, 410 U.S. 284, 302
1 (1973) (“[T]he accused . . . must comply with established rules of procedure and
2 evidence designed to assure both fairness and reliability in the ascertainment of
3 guilt and innocence.”).
4 In denying Claim 4, the Court of Appeals found that based on both Dr.
5 Lontz’s 2018 and 2019 Evaluations, “[Petitioner]’s seizure disorder was not
6 relevant to his ability to form intent and it was properly excluded under ER 401.”
7 ECF No. 35-2 at 53-54. The Court of Appeals further found that “even if it could
8 be said that evidence of [Petitioner]’s seizure disorder was relevant, the trial court
9 properly excluded evidence of the seizure disorder under ER 403 because it would
10 have the tendency to mislead the jury.” Id. at 55. Thus, the Court of Appeals
11 concluded, “[t]he trial court did not abuse its discretion by excluding evidence of
12 [Petitioner]’s seizure disorder.” Id.
13 The Court of Appeals’ ruling was not an unreasonable application of clearly
14 established federal law. See 28 U.S.C. § 2254(d)(1). A defendant does not have a
15 constitutional right to present evidence that is not relevant, Wood v. State of
16 Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992), and Dr. Lontz determined that
17 Petitioner “did not experience reduced mental status” at the time of the assault of
18 L.R. ECF No. 35-2 at 54. Further, the trial court in this case found that evidence
19 of a seizure disorder would mislead the jury pursuant to ER 403. ECF No. 35-2 at
20 54-55. “[T]he Supreme Court has not ‘squarely addressed’ whether an
1 ‘evidentiary rule requiring a trial court to balance factors and exercise its
2 discretion’ to exclude evidence . . . itself violates a defendant’s ‘right to present a
3 complete defense.’” Sherman v. Gittere, 92 F.4th 868, 880 (9th Cir. 2024)
4 (quoting Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009)). And Petitioner does
5 not point to any Supreme Court decisions to the contrary.3
6 Thus, Petitioner is not entitled to relief on Claim 4 regarding a denial of his
7 right to present a defense.
8
3 To the extent that Petitioner is also making a claim that the trial court denied him
9
the appointment of a defense expert to present a diminished capacity defense, this
10
claim also fails. The Supreme Court has held that “when a defendant demonstrates
11
to the trial judge that his sanity at the time of the offense is to be a significant
12
factor at trial, the State must, at a minimum, assure the defendant access to a
13
competent psychiatrist who will conduct an appropriate examination and assist in
14
evaluation, preparation, and presentation of the defense.” Ake v. Oklahoma, 470
15
U.S. 68, 83 (1985); see also McWilliams v. Dunn, 582 U.S. 183, 187 (2017).
16
However, the Supreme Court has not clearly established the right to an expert to
17
present a diminished capacity defense and, as detailed above, Petitioner did not
18
“demonstrate[] to the trial judge that his sanity at the time of the offense [wa]s to
19
be a significant factor at trial.” Ake, 470 U.S. at 83.
20
1 C. Claims 2(a) and 2(b) – Exhausted Sixth Amendment Ineffective
Assistance of Counsel Claims
2
In Petitioner’s properly exhausted Sixth Amendment claims of ineffective
3
assistance of counsel, he contends that his counsel failed to pursue a seizure
4
disorder defense and that his counsel failed to call an expert witness to present a
5
dismissed capacity defense. ECF No. 20 at 5; ECF No. 20-1 at 4, 6, 8-9. The State
6
asserts that the Court of Appeals’ rejection of these claims was not unreasonable.
7
ECF No. 34 at 57-62.
8
As noted above, to establish an ineffective assistance of counsel claim, a
9
defendant must show: (1) “counsel’s performance was deficient” and (2) “the
10
deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687.
11
However, in the context of a Strickland claim evaluated under the “doubly
12
deferential” Section 2254(d)(1) standard, the court does not ask “whether a federal
13
court believes the state court’s determination under the Strickland standard was
14
incorrect but whether that determination was unreasonable—a substantially higher
15
threshold.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (quoting Schriro v.
16
Landrigan, 550 U.S. 465, 473 (2007)) (quotation marks omitted). “And,
17
because the Strickland standard is a general standard, a state court has even more
18
latitude to reasonably determine that a defendant has not satisfied that standard.”
19
Id. (citation omitted).
20
1 1. Claim 2(a)
2 Petitioner contends that counsel was ineffective for failing to pursue a
3 defense based on a seizure discover. ECF No. 20 at 5; ECF No. 20-1 at 4, 6, 8-9.
4 In denying Claim 2(a) in Petitioner’s Personal Restraint Petition, the Court
5 of Appeals determined that “[Petitioner]’s failure to investigate argument
6 appear[ed] to be based on the fact that the 2019 [Evaluation] was not filed with the
7 trial court and he seem[ed] to assume trial counsel based her decision to forgo a
8 diminished capacity defense based solely on the 2018 [Evaluation].” ECF No. 35-
9 2 at 56. The Court of Appeals found this assertion “factually incorrect . . . [b]ased
10 on information supplied by the State, [which showed Petitioner’s] defense counsel
11 reviewed a draft copy of the 2019 [Evaluation] sometime before May 8, 2019.” Id.
12 Further, in both evaluations, as well as emails to defense counsel, “Dr. Lontz
13 opined that [Petitioner] had no mental health defense available.” Id. Thus, the
14 Court of Appeals concluded, “[Petitioner’s] trial counsel did, in fact, investigate
15 [Petitioner’s] seizure disorder and mental status. She reviewed the [evaluations]
16 prepared by Dr. Lontz and proceeded accordingly.” Id. The Washington State
17 Supreme Court reached the same conclusion in denying Petitioner’s request for
18 discretionary review. Id. at 86 (“[C]ounsel engaged a psychological expert who
19 opined that [Petitioner] did not suffer a reduced mental state as a result of a mental
20 disorder at the time of the offense.”).
1 The State courts rulings were not “contrary to or an unreasonable application
2 of clearly established federal law.” 28 U.S.C. § 2254(d)(1). Rather, the record
3 demonstrates that counsel made a “strategic choice” not to pursue a diminished
4 capacity defense in light of Dr. Lontz’s 2019 Evaluation. Strickland, 466 U.S. at
5 681 (“Because advocacy is an art and not a science, and because the adversary
6 system requires deference to counsel's informed decisions, strategic choices must
7 be respected in these circumstances if they are based on professional judgment.”)
8 (citation omitted). Nor has Petitioner established that he was prejudiced by his
9 counsel not pursuing a defense that was not supported by the evidence. Strickland,
10 466 U.S. at 687; see also Brecht, 507 U.S. at 637.
11 Petitioner is thus not entitled to relief on his Sixth Amendment claim of
12 ineffective assistance of counsel due to counsel’s failure to pursue a defense based
13 on a seizure disorder.
14 2. Claim 2(b)
15 Petitioner contends that counsel was ineffective for failing to call expert
16 witnesses to present a diminished capacity defense. ECF No. 20 at 5; ECF No. 20-
17 1 at 4, 6, 8-9.
18 In denying Claim 2(b) in Petitioner’s Personal Restraint Petition, the Court
19 of Appeals determined that “[Petitioner]’s trial counsel noted a possible defense,
20 secured funding from the court, and hired Dr. Lontz to conduct a psychological
1 evaluation of [Petitioner].” ECF No. 35-2 at 57-58. It was only after “Dr. Lontz
2 opined a diminished capacity defense was not available to [Petitioner that] defense
3 counsel reasonably abandoned the defense.” Id. at 58. In denying Petitioner’s
4 request for discretionary review, the Washington State Supreme Court also noted
5 that Petitioner’s counsel “engaged a psychological expert” who did not find
6 Petitioner “suffer[ed] a reduced mental state as a result of a mental disorder at the
7 time of the offense.” Id. at 86
8 The State courts’ decisions were not “contrary to or an unreasonable
9 application of clearly established federal law.” 28 U.S.C. § 2254(d)(1). As
10 detailed above, defense counsel made a “strategic choice” not to pursue a defense
11 that an expert had already deemed inapplicable, and Petitioner has not established
12 that he was prejudiced by this choice.
13 Petitioner is thus not entitled to relief on his Sixth Amendment claim of
14 ineffective assistance of counsel due to counsel’s failure to call an expert witness
15 to present a diminished capacity defense.
16 E. Certificate of Appealability
17 Rule 11(a) of the Rules Governing Section 2254 Cases requires that a
18 district court “issue or deny a certificate of appealability when it enters a final
19 order adverse to the applicant.” See also Fed. R. App. P. 22(b). “A certificate of
20 appealability may issue . . . only if the applicant has made a substantial showing of
1 the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In weighing a
2 certificate of appealability, “the only question is whether the applicant has shown
3 that ‘jurists of reason could disagree with the district court’s resolution of his
4 constitutional claims or that jurists could conclude the issues presented are
5 adequate to deserve encouragement to proceed further.” Buck v. Davis, 580 U.S.
6 100, 115 (2017) (quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).
7 As explained above, Petitioner has not articulated any principle of clearly
8 established federal law that the state courts’ decisions arguably contradicted or
9 applied unreasonably. It is therefore implausible that reasonable jurists could
10 disagree as to the sufficiency of Petitioner’s constitutional claims or eligibility for
11 habeas relief. In other words, Petitioner has not made a prima facie showing, much
12 less a substantial showing, of the denial of a constitutional right. See 28 U.S.C. §
13 2253(c)(2).
14 Accordingly, the Court denies Petitioner a certificate of appealability.
15 CONCLUSION
16 For the reasons stated herein, Petitioner’s Section 2254 Petition for Writ of
17 Habeas Corpus is denied.
18 Accordingly, IT IS HEREBY ORDERED:
19 1. Petitioner’s First Amended Petition under 28 U.S.C. § 2254, ECF No.
20 20, is DISMISSED with prejudice.
1 2. A certificate of appealability is DENIED.
2 IT IS SO ORDERED. The Clerk of Court is directed to file this Order and
3 provide copies to counsel and Petitioner, enter judgment of dismissal with
4 prejudice, and CLOSE the file.
5 DATED June 11, 2025.
6 s/Mary K. Dimke
MARY K. DIMKE
7 UNITED STATES DISTRICT JUDGE
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20 Case Information
- Court
- E.D. Wash.
- Decision Date
- June 11, 2025
- Status
- Precedential