BRIAN A. TSUCHIDA, Magistrate Judge.
Petitioner Sergio Reyes-Brooks seeks 28 U.S.C. § 2254 habeas relief from his convictions of first degree murder and unlawful possession of a firearm. Dkt. 9, Exhibit 1. Mr. Reyes-Brooks presents twelve grounds for habeas relief in his petition. The Court recommends
The Washington Court of Appeals summarized the facts as follows:
Dkt. 9, Exhibit 2, at 2-3.
Mr. Reyes-Brooks appealed from his judgment and sentence to the Washington Court of Appeals. Dkt. 9, Exhibit 3 (Brief of Appellant); Exhibit 5 (Statement of Additional Grounds). The Washington Court of Appeals vacated the firearm sentencing enhancement but otherwise affirmed the convictions and the sentence. Id., Exhibit 2.
Mr. Reyes-Brooks sought review by the Washington Supreme Court of the decision to the extent it affirmed his convictions and sentence. Id., Exhibit 6. He presented three issues to the Washington Supreme Court, summarized as follows:
2) Different punishments for recidivist criminals create an arbitrary classification in violation of the Fourteenth Amendment's equal protection clause.
3) Violation of Reyes-Brooks' Sixth and Fourteenth Amendment rights when a judge, not a jury, found by a preponderance of the evidence that he had two prior most serious offenses.
Dkt. 9, Exhibit 6, at 1-3.
The prosecutor also sought review of that portion of the decision vacating the firearm sentencing enhancement. Dkt. 9, Exhibit 7. The Washington Supreme Court denied Mr. Reyes-Brooks' petition for review, granted the prosecution's petition for review, and remanded the case for reconsideration in light of State v. Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). Id., Exhibit 9. On remand, the Washington Court of Appeals affirmed the entire judgment and sentence on November 13, 2012. Id., Exhibit 10. Mr. Reyes-Brooks did not seek further review by the Washington Supreme Court. The Washington Court of Appeals issued its mandate on January 18, 2013. Id., Exhibit 11.
In January 2013, Mr. Reyes-Brooks filed a personal restraint petition in the Washington Court of Appeals. Dkt. 9, Exhibit 12. The Washington Court of Appeals denied the personal restraint petition. Id., Exhibit 15. Mr. Reyes-Brooks sought review by the Washington Supreme Court, in which he presented five issues, summarized as follows:
Dkt. 9, Exhibit 16, at 1-2.
The Washington Supreme Court denied review on July 3, 2014. Dkt. 9, Exhibit 17. The Washington Court of Appeals issued a certificate of finality on October 17, 2014. Id., Exhibit 18.
Included in the memorandum in support of his habeas petition, Mr. Reyes-Brooks sets forth twelve grounds for federal habeas review, summarized as follows:
Dkt. 3-1, at 8-11.
The decision to hold a hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Landrigan, 550 U.S. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388 (2011). A hearing is not required if the allegations would not entitle petitioner to relief under 28 U.S.C. § 2254(d). Landrigan, 550 U.S. at 474. "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id.; see also Cullen, 131 S.Ct. 1388 (2011). The Court finds it unnecessary to hold an evidentiary hearing because Mr. Reyes-Brooks' claims may be resolved on the existing state court record.
Respondent argues that Mr. Reyes-Brooks failed to properly exhaust Claims 1, 4, 5, 6, and 7 (Claims 2 and 3 in the "Grounds for Review" section and Claims 1-5 in the "Personal Restraint Petition" section of the memorandum). Respondent contends that these claims are also now procedurally barred under state law and not cognizable in federal court absent a showing of cause and prejudice, or actual innocence. Dkt. 8, p. 7. The Court agrees.
A petitioner must properly exhaust state remedies before seeking a federal writ of habeas corpus. Baldwin v. Reese, 541 U.S. 27, 29 (2004). To properly exhaust, the petitioner must give the state court a fair opportunity to correct the alleged violation of federal constitutional rights. Duncan v. Henry, 513 U.S. 364, 365 (1995). This means that the prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim. Baldwin, 541 U.S. at 29; see also Picard v. Connor, 404 U.S. 270, 276-78 (1971); O'Sullivan v. Boerckel, 526 U.S. 838 (1999). The petitioner bears the burden to prove a claim has been properly exhausted. Lambrix v. Singletary, 520 U.S. 518, 523-24 (1997).
If a petitioner fails to obey state procedural rules, the state court may decline review of a claim based on that procedural default. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). If the state court clearly and expressly states that its judgment rests on a state procedural bar, the petitioner is barred from asserting the same claim in a habeas proceeding. Harris v. Reed, 489 U.S. 255, 263 (1989); Noltie v. Peterson, 9 F.3d 802, 805 (9th Cir. 1993); Shumway v. Payne, 223 F.3d 982 (9th Cir. 2000).
Mr. Reyes-Brooks presented Claim 1 to the Washington Supreme Court in his petition for review on direct appeal as an issue of state law only. Dkt. 9, Exhibit 6. He failed to present the claim as a federal claim. Id. In addition, although Mr. Reyes-Brooks may have presented the remaining claims (Claims 4, 5, 6, and 7) to the Washington Court of Appeals, he did not raise these claims in either his petition for review on direct appeal, or in his motion for discretionary review on collateral review. Id., Exhibits 6 and 16. Therefore, Mr. Reyes-Brooks did not properly exhaust Claims 1, 4, 5, 6, or 7 because he failed to fairly present these claims as federal claims in each appropriate state court.
Washington law bars a defendant from filing a personal restraint petition more than one year after the defendant's judgment becomes final. RCW 10.73.090. Mr. Reyes-Brooks' judgment became final in January 2013, when the Washington Court of Appeals issued the mandate. Dkt. 9, Exhibit 11. Because the mandate issued more than one year ago, Mr. Reyes-Brooks is now time barred from presenting Claims 1, 4, 5, 6, and 7 to the Washington Supreme Court. Thus, the claims are now procedurally barred under state law and are not cognizable in federal court absent a showing of cause and prejudice or actual innocence.
Unless it would result in a "fundamental miscarriage of justice," a petitioner who procedurally defaults may receive review of the defaulted claims only if he demonstrates "cause" for his procedural default and "actual prejudice" stemming from the alleged errors. Coleman v. Thompson, 501 U.S. at 750. The petitioner must show an objective factor actually caused the failure to properly exhaust a claim. Interference by state officials, the unavailability of the legal or factual basis for a claim, or constitutionally ineffective assistance of counsel may constitute cause. Murray v. Carrier, 477 U.S. 478, 488 (1986). A petitioner's own inadequacies are not sufficient cause to excuse a procedural default. Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 907-09 (9th Cir. 1986); Thomas v. Lewis, 945 F.2d 1119 (9th Cir. 1991). "An evidentiary hearing is not necessary to allow a petitioner to show cause and prejudice if the court determines as a matter of law that he cannot satisfy the standard." Clark v. Lewis, 1 F.3d 814, 820 (9th Cir. 1993).
"[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Wood v. Hall, 130 F.3d 373, 379 (9th Cir. 1997) (quoting Murray v. Carrier, 477 U.S. at 496). "To meet this manifest injustice exception, [the petitioner] must demonstrate more than that `a reasonable doubt exists in the light of the new evidence.'" Wood, 130 F.3d at 379 (quoting Schlup v. Delo, 513 U.S. 298, 329 (1995)). "[T]he petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, 513 U.S. at 327. "[T]he miscarriage of justice exception is concerned with actual as compared to legal innocence." Calderon v. Thompson, 523 U.S. 538, 559 (1998) (citation omitted).
Mr. Reyes-Brooks cannot demonstrate cause and prejudice or a fundamental miscarriage of justice. He cannot show cause, i.e., an objective external factor outside his control that excused his procedural default. He also does not show prejudice, i.e., that an error of constitutional proportions infected his whole trial. Mr. Reyes-Brooks has not produced any evidence of actual innocence that would excuse his procedural default. Because he cannot excuse his procedural default, Claims 1, 4, 5, 6, and 7 are not cognizable in the habeas corpus proceeding and they should therefore be dismissed.
The superior court sentenced Mr. Reyes-Brooks to life imprisonment without parole under Washington's three strikes law based on his prior convictions. Dkt. 9, Exhibit 1. In Claims 2 and 3, Mr. Reyes-Brooks contends that his sentence violates the Sixth and Fourteenth Amendments because a jury did not find the fact of the prior convictions beyond a reasonable doubt. The Washington Court of Appeals, applying Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), rejected this argument:
Dkt. 9, Exhibit 2, at 14-15.
In Apprendi v. New Jersey, 530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 296 (2004), the Supreme Court expressly exempted the fact of a prior conviction from the facts that a jury must find beyond a reasonable doubt in order to impose a sentence above the statutory standard range. The Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. In Blakely, the Court extended Apprendi, holding for the first time that the "statutory maximum" for purposes of an Apprendi analysis includes not only the statutory maximum for an offense, but also the top end of a statutorily established standard range for the offense. Blakely, 542 U.S. at 303-04. As in Apprendi, however, the Blakely Court noted the exception for exceptional sentences based on "the fact of a prior conviction." Id. See also, Almendarez-Torres v. United States, 523 U.S. 224, 266 and 228-35 (1998) (a statute increasing the penalty for a deported alien who returns without permission based on a prior conviction does not create a separate crime and does not need to be proven to the jury beyond a reasonable doubt).
Mr. Reyes-Brooks fails to show that the state court adjudication of this issue was contrary to, or involved an unreasonable application of clearly established federal law. In addition, relief on this issue is not available because the relief requested is barred under the non-retroactivity doctrine of Teague v. Lane, 489 U.S. 288 (1989), which holds that a new rule may not be announced or applied in a habeas case (a rule is new if "the result was not dictated by precedent existing at the time the defendant's conviction became final." Caspari v. Bohlen, 510 U.S. 383, 390 (1994) (quoting Teague v. Lane, 489 U.S. at 301) (emphasis in original)).
Mr. Reyes-Brooks contends further that treating his prior convictions as sentencing factors rather than elements violated his right to equal protection. Equal protection claims concerning post-conviction sentencing are reviewed under the rational basis test. McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991); Foster v. Washington State Board of Prison Terms and Paroles, 878 F.2d 1233, 1235 (9th Cir. 1989). "Improvement in sentencing is [a] rational government purpose." McQueary, 924 F.2d at 834 (quoting Foster, 878 F.2d at 1235). Even if some offenders receive more lenient sentences, there is no equal protection violation: "A mere demonstration of inequality is not enough; the Constitution does not require identical treatment. There must be an allegation of invidiousness or illegitimacy in the statutory scheme before a cognizable claim arises: it is a `settled rule that the Fourteenth Amendment guarantees equal laws, not equal results.'" McQueary, 924 F.2d at 835 (emphasis in original) (quoting Personnel Adm'r v. Feeney, 422 U.S. 256, 273 (1979)).
In State v. Thorne, 129 Wn.2d 736, 770-72, 921 P.2d 514 (1996), the Washington Supreme Court rejected an equal protection challenge to Washington's Persistent Offender Accountability Act, finding that the classification of criminals as "persistent offenders" based on having committed three serious offenses is rationally related to the goals enunciated in the Act and that the state is justified in punishing a recidivist more severely than it punishes a first offender.)
With regard to Mr. Reyes-Brooks' equal protection claim, the Washington Court of Appeals held:
Mr. Reyes-Brooks does not show disparate treatment from similarly situated offenders. Moreover even if he could, enhancing an offender's sentence based upon the fact of prior convictions does not violate equal protection. United States v. Locke, 918 F.2d 841, 842 (9th Cir. 1990).
Mr. Reyes-Brooks fails to show that the state court adjudication of his claims was contrary to or an unreasonable application of clearly established federal law and therefore, Claims 2 and 3 should be denied.
In Claim 8, Mr. Reyes-Brooks alleges that the prosecution withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The Constitution requires that the prosecution disclose evidence that is "both favorable to the accused and `material either to guilt or to punishment.'" United States v. Bagley, 473 U.S. 667, 674 (1985) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitely, 514 U.S. 419, 433-34 (1995) (citing Bagley, 473 U.S. at 682). "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Kyles, 514 U.S. at 434 (citing Bagley, 473 U.S. at 678). The prosecution must disclose only evidence that is in the prosecutor's possession, custody or control. Kyles, 514 U.S. at 437-38. "The government has no obligation to produce information which it does not possess or of which it is unaware." Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir. 1995).
The failure to preserve "potentially useful evidence" does not constitute a denial of due process unless a criminal defendant can show bad faith on the part of police. Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988). To demonstrate a due process violation from the failure to secure and preserve evidence, the petitioner must establish: (1) that the State officials acted in bad faith; (2) that the evidence had an exculpatory value that was apparent before it was destroyed; and (3) that destruction of the evidence prejudiced the defense because the petitioner could not obtain comparable evidence by other reasonably available means. Villafuerte v. Lewis, 75 F.3d 1330, 1340 (9th Cir. 1996). The petitioner must also show prejudice by showing the evidence was material to the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). "[T]he question is whether `the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Id. at 290.
The Washington Court of Appeals rejected Mr. Reyes-Brooks' Brady claim:
Dkt. 9, Exhibit 15, at 2-4.
The Washington Supreme Court also rejected Mr. Reyes-Brooks Brady claim:
Dkt. 9, Exhibit 17, at 1-2.
Mr. Reyes-Brooks must show that the prosecution acted with bad faith and that the failure to preserve the evidence prejudiced his defense. The record reflects that Ms. Moore did not provide any information during her first interview and that her credibility was sufficiently undermined by other evidence. The state court reasonably determined that Mr. Reyes-Brooks could not show the requisite prejudice because the tape of the first interview was not material.
Mr. Reyes-Brooks fails to show that the state court adjudication of Claim 8 was an unreasonable application of clearly established federal law and Claim 8 should therefore be denied.
In Claim 9, Mr. Reyes-Brooks alleges he was denied a right to access witnesses when the prosecutor provided late discovery of information regarding the prosecution's witnesses and the trial court denied a continuance to allow defense counsel more time to prepare after receipt of discovery regarding the witnesses.
The Washington Court of Appeals rejected this claim:
Dkt. 9, Exhibit 2, at 16; see also Exhibit 15, at 4 (ruling that the court had rejected the claim on direct review, and Mr. Reyes-Brooks had not shown reason to reconsider the issue on collateral review).
A judge's decision to deny a request for a continuance will be overturned only for an abuse of discretion. Morris v. Slappy, 461 U.S. 1, 11-12 (1983); Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985). To obtain relief based upon the denial of a continuance, the petitioner must show the denial resulted in "actual prejudice". Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997); United States v. Shirley, 884 F.2d 1130 (9th Cir. 1989); United States v. Nguyen, 88 F.3d 812, 819 (9th Cir. 1996).
As explained by the Washington Court of Appeals, Mr. Reyes-Brooks failed to establish any resulting prejudice as there was an abundance of impeachment evidence and Moore's credibility was already in question. Mr. Reyes-Brooks fails to show that the state court adjudication was an unreasonable application of clearly established federal law and therefore, Claim 9 should be denied.
Mr. Reyes-Brooks alleges counsel was ineffective for not requesting a limiting instruction when the prosecution introduced evidence that Ray Porter had killed Deputy Cox.
Under the two-prong standard of Strickland, a petitioner must show that counsel's performance was so deficient that it "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 686 (1984). He must also show the deficient performance so prejudiced the defense that it deprived him of the right to a fair trial and caused the state court proceedings to be unreliable. Id. at 687. A petitioner must satisfy both prongs. Id. at 697. "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.
Applying the Strickland standard, the state courts rejected this claim:
Dkt. 9, Exhibit 15, at 4-5.
The Washington Supreme Court also rejected this claim:
Dkt. 9, Exhibit 17, at 3-4.
Mr. Reyes-Brooks fails to show that the state court adjudication was an unreasonable application of clearly established federal law and therefore, Claim 10 should be denied.
In Claim 11, Mr. Reyes-Brooks contends the state court failed to hold a Franks hearing to determine the validity of the search warrant in his case. The Court finds that this claim is barred under Stone v. Powell, 428 U.S. 465 (1976). In Stone v. Powell, the United States Supreme Court held that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Powell, 428 U.S. at 494; see also Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir.2005). This is because the United States Supreme Court has determined that while implementation of the exclusionary rule at trial and on direct appeal discourages law enforcement officials from violating the Fourth Amendment, "the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs." Powell, 428 U.S. at 492-93. Therefore, so long as the petitioner has been given a full and fair opportunity to litigate his Fourth Amendment claims in state court, federal habeas review is unavailable. Id. at 494.
The Washington Supreme Court rejected Mr. Reyes-Brooks' claim that the trial court erred in failing to grant him a Franks hearing:
Dkt. 9, Exhibit 17, at 4. Because Mr. Reyes-Brooks had a full and fair opportunity to litigate this Fourth Amendment claim in state court, Stone v. Powell bars federal habeas review of Claim 11 and it should be denied.
In Claim 12, Mr. Reyes-Brooks alleges the superior court improperly admitted evidence concerning Deputy Cox's murder because there was no evidence that he was involved in the killing.
An allegation that the evidence violated the state evidentiary rule against unduly prejudicial evidence raises a mere issue of state law. See Romano v. Oklahoma, 512 U.S. 1, 10 (1994) (not every violation of state law is a constitutional issue). "[A] federal habeas court may not prescribe evidentiary rules for the states." Swan v. Peterson, 6 F.3d 1373, 1382 (9th Cir. 1993). The alleged violation of state law, including state court rules of evidence, does not provide a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. at 67.
Moreover, even if Reyes-Brooks could show his claim rested on clearly established federal law, the state court adjudication of the claim was not unreasonable. Under pre-AEDPA Ninth Circuit case law, "[c]laims of inadmissibility of evidence are cognizable in habeas corpus proceedings only when admission of the evidence violated the defendant's due process rights by rendering the proceedings fundamentally unfair." Hamilton v. Vasquez, 17 F.3d 1149, 1159 (9th Cir. 1994); see also Gordon v. Duran, 895 F.2d 610, 613 (9th Cir. 1990) (petitioner must show evidence rendered trial fundamentally unfair); Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995) ("Thus, a federal court cannot disturb on due process grounds a state court's decision to admit prior bad acts evidence unless the admission of the evidence was so prejudicial that it rendered the trial fundamentally unfair."). Here, the state appellate courts determined there was no error because the evidence was properly admitted.
The Washington Court of Appeals rejected the claim:
Dkt. 9, Exhibit 15, at 6-7.
In denying review, the Washington Supreme Court agreed the evidence was properly admitted and did not unduly prejudice Mr. Reyes-Brooks:
Dkt. 9, Exhibit 17, at 4-5.
Mr. Reyes-Brooks fails to show that the state court adjudication of this claim was an unreasonable application of clearly established federal law and therefore, Claim 12 should be denied.
If the district court adopts the Report and Recommendation, it must determine whether a certificate of appealability ("COA") should issue. Rule 11(a), Rules Governing Section 2254 Cases in the United States District Courts ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant."). A COA may be issued 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." Reyes-Brooks-El v. Cockrell, 537 U.S. 322, 327 (2003).
The Court recommends that Mr. Reyes-Brooks not be issued a COA. No jurist of reason could disagree with this Court's evaluation of his habeas claims or would conclude that the issues presented deserve encouragement to proceed further. Mr. Reyes-Brooks should address whether a COA should issue in his written objections, if any, to this Report and Recommendation.
The Court recommends
Any objections to this Recommendation must be filed and served upon all parties no later than
