MARY ALICE THEILER, Magistrate Judge.
Petitioner Milord Gelin is a state prisoner who is currently confined at the Washington Corrections Center in Shelton, Washington. He seeks relief under 28 U.S.C. § 2254 from a 2010 King County Superior Court judgment and sentence. Respondent has filed an answer responding to petitioner's federal habeas claim, and has submitted relevant portions of the state court record.
The Washington Court of Appeals, on direct appeal, summarized the facts of petitioner's crimes as follows:
(Dkt. 25, Ex. 2 at 2.)
The trial court imposed a sentence of nine months on the theft of a motor vehicle charge, and exceptional sentences of 82 months on the burglary charge and 252 months on the assault charge, those terms to be served concurrently. (See id., Ex. 1 at 4.) The trial court also imposed two 24 month deadly weapon enhancements, those terms to be served consecutive to each other and to the term imposed on the substantive counts, for a total sentence of 300 months. (See id.)
Petitioner appealed his conviction and sentence to the Washington Court of Appeals. Petitioner, through counsel, argued that the jury instructions failed to make the unanimity requirement for the jury's findings on the special verdict forms manifestly clear and that the sentence enhancements must therefore be reversed. (Id., Ex. 3.) In a statement of additional grounds, petitioner asserted claims of ineffective assistance of trial and appellate counsel. (See Dkt. 25, Ex. 5.) On September 17, 2012, the Washington Court of Appeals issued an unpublished opinion affirming petitioner's judgment and sentence. (Id., Ex. 2.) Petitioner filed a pro se motion for reconsideration, which was denied on October 31, 2012. (Id., Exs. 7 and 8.)
Petitioner next filed a pro se petition for review in the Washington Supreme Court, arguing again that the jury instructions failed to make the unanimity requirement for the jury's findings on the special verdict forms manifestly clear. (Id., Ex. 9.) The Supreme Court denied petitioner's petition for review without comment on March 3, 2013, and the Court of Appeals issued its mandate terminating direct review on June 7, 2013. (Id., Exs. 10 and 11.) The United States Supreme Court denied petitioner's petition for a writ of certiorari on October 7, 2013. (Id., Ex. 12.)
On October 2, 2013, petitioner was resentenced, apparently in response to the state's motion to correct a scrivener's error in the original judgment and sentence. (See id., Exs. 1 and 13.) Petitioner thereafter appealed his amended judgment and sentence. (See id., Ex. 14.) On June 15, 2015, the Washington Court of Appeals issued an unpublished opinion affirming the amended judgment and sentence. (Id., Ex. 18.) Petitioner sought discretionary review by the Washington Supreme Court, and the court denied review without comment on February 16, 2016. (Id., Exs. 19 and 20.)
Petitioner filed his federal habeas petition on December 16, 2013, and the petition was ordered served on respondent. (See Dkts. 1 and 9.) Respondent thereafter moved to stay and abey petitioner's federal habeas petition after discovering that petitioner still had an appeal pending in the state courts. (Dkt. 12.) Respondent's motion was granted, and the case was stayed until August 2, 2016, when this Court issued an Order lifting the stay after being notified that petitioner's state court proceedings had concluded. (Dkts. 14 and 18.) Respondent filed his answer to petitioner's federal habeas petition on September 22, 2016. (Dkt. 23.) Petitioner elected not to file a response, and this matter is now ripe for review.
Petitioner identified a single ground for relief in his federal habeas petition:
(See Dkt. 7 at 9.)
Respondent concedes that petitioner has exhausted his state remedies with respect to the claim asserted in his petition, but argues that petitioner's challenge to the jury instructions used in his case is without merit.
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a habeas corpus petition may be granted with respect to any claim adjudicated on the merits in state court only if the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or if the decision was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).
Under the "contrary to" clause, a federal habeas court may grant the writ only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ only if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. See Williams, 529 U.S. at 407-09. "The `unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (citations omitted). A state court's decision may be overturned only if the application is "objectively unreasonable." Id.
Clearly established federal law, for purposes of AEDPA, means "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Id. at 71-72. "If no Supreme Court precedent creates clearly established federal law relating to the legal issue the habeas petitioner raised in state court, the state court's decision cannot be contrary to or an unreasonable application of clearly established federal law." Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004) (citing Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir. 2000)).
In considering a habeas petition, this Court's review "is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). If a habeas petitioner challenges the determination of a factual issue by a state court, such determination shall be presumed correct, and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
Petitioner asserts that the jury instructions in his case were erroneous because they failed to make the unanimity requirement for the jury's findings on the special verdict forms manifestly clear. Petitioner argues that when asked to make a finding on a special verdict form for a sentencing enhancement allegation, the jury must be instructed that it need not be unanimous in order to answer "no" on the form. Petitioner relies on the Washington Supreme Court's decision in State v. Bashaw, 169 Wn.2d 133 (2010), to support this argument. In Bashaw, the court held that though jury unanimity was required to find the presence of a special finding on a sentencing enhancement, jury unanimity was not required to find the absence of a special finding. Id. at 147. The court concluded that the jury instruction in that case which stated that jury unanimity was required for either determination was erroneous. Id. In reaching this conclusion, the court relied on the "nonunanimity rule" it had previously adopted in State v. Goldberg, 149 Wn.2d 888 (2003). See id. at 145-47.
Petitioner acknowledges that the trial court in his case was aware of Bashaw and attempted to accommodate it in instructing the jury with respect to the special verdict forms for the deadly weapon sentence enhancement and the domestic violence aggravator allegations. (See Dkt. 7-1 at 12.) Petitioner argues, however, that the instructions pertaining to the special verdict forms (instructions 44 and 46) did not make the nonunanimity rule "manifestly clear" because those instructions conflicted with other instructions that, in petitioner's view, suggested any decision rendered on the special verdict forms must be unanimous. (See id. at 13-14.) Petitioner contends that this lack of clarity in the instructions violated his federal constitutional rights.
The Washington Court of Appeals rejected petitioner's challenge to the jury instructions on appeal from his original judgment and sentence. The court explained its conclusion as follows:
(Dkt. 25, Ex. 2 at 3-5.)
State courts are the ultimate expositors of their own law, and their construction of state law is binding on the federal courts. Mullaney v. Wilbur, 421 U.S. 684, 691 (1975). A federal habeas court must therefore defer to the state court's interpretation of state law. Id. See also Estelle v. McGuire, 502 U.S. 62 (1991) (It is not the province of federal habeas courts to reexamine state court conclusions regarding matters of state law). Though petitioner presents his jury instruction claim as one implicating federal constitutional concerns, his argument is entirely based on an interpretation of state law that is beyond the purview of this federal habeas court. The Washington Court of Appeals' conclusion that petitioner's jury instruction challenge fails because the state law upon which it was based has been overruled is entitled to deference. Petitioner has identified no Supreme Court precedent that requires a different result. This Court is unaware of any Supreme Court precedent mandating application of the nonunanimity rule in circumstances such as those presented here and, in fact, relevant precedent appears to support the rule announced in Nuñez and applied by the Washington Court of Appeals in petitioner's case. See Jones v. United States, 527 U.S. 373, 382 (1990). For these reasons, petitioner's constitutional challenge to the jury instructions should be denied.
A petitioner seeking post-conviction relief under § 2254 may appeal a district court's dismissal of his federal habeas petition only after obtaining a certificate of appealability (COA) from a district or circuit judge. A certificate of appealability may issue only where a petitioner has made "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under this standard, this Court concludes that petitioner is not entitled to a certificate of appealability in this case.
For the reasons set forth above, this Court recommends that petitioner's petition for writ of habeas corpus be denied and that this action be dismissed with prejudice. This Court also recommends that a certificate of appealability be denied. A proposed order accompanies this Report and Recommendation.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within
