Jeffries v. Blodgett

• Decision Date: 05 September 1991
• Docket Number: No. C90-925D.,C90-925D.
• Citation: 771 F. Supp. 1520
• Parties: Patrick James JEFFRIES, Petitioner, v. James BLODGETT, Respondent.
• Court: U.S. District Court — Western District of Washington

771 F. Supp. 1520

Patrick James JEFFRIES, Petitioner, v. James BLODGETT, Respondent.

No. C90-925D.

United States District Court, W.D. Washington, at Seattle.

April 15, 1991.

On Motion For Summary Judgment September 5, 1991.

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Brian R. Phillips, Everett, Wash., Stephanie Ross, Point Roberts, Wash., for petitioner.

Linda Anne Dalton, Paul Douglas Weisser, Atty. General's Office, Corrections Div., Olympia, Wash., for respondent.

ORDER

DIMMICK, District Judge.

Petitioner, in addition to filing a memorandum in opposition to respondent's motion for summary judgment, has filed separate motions for: (1) additional discovery, (2) expansion of the record, and (3) an evidentiary hearing on certain issues raised in his request for habeas corpus relief. On March 13, 1991, the Court heard oral argument on these motions and on the question of whether certain claims made by the petitioner in his habeas corpus petition are precluded from federal court review. The Court has reviewed the memoranda and affidavits submitted by counsel on these issues and hereby grants petitioner's motions for an evidentiary hearing, for discovery, and to expand the record as outlined below. The Court declines to grant partial summary judgment in favor of the respondent on the procedural bar issue.

DISCUSSION

A. Procedural Bar

Respondent requests that the Court decline to consider certain claims raised in the habeas petition on the grounds that they are precluded from federal court review by the "procedural bar" doctrine. The essential requirements of the procedural bar doctrine are well established and undisputed by the parties. Briefly, a federal habeas corpus court may not review a federal habeas corpus petitioner's federal claims where the state court has refused to rule on the merits of the federal claims because of an independent and adequate state procedural rule — absent cause for and prejudice from default. See, e.g., Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). In order to bar federal habeas corpus review, the state procedural rule must be a "clearly announced rule that state courts apply evenhandedly to dispose of similar claims." County Court of Ulster County v. Allen, 442 U.S. 140, 154, 99 S.Ct. 2213, 2223, 60 L.Ed.2d 777 (1979); Kreck v. Spalding, 721 F.2d 1229, 1234 (9th Cir.1983).

In In re Jeffries, 114 Wash.2d 485, 789 P.2d 731 (1990) ("Jeffries IV"), the Washington State Supreme Court declined to consider five issues raised by the petitioner in his third personal restraint petition. The Supreme Court held that raising these issues constituted an "abuse of the writ" because the petitioner could have, but did not, raise those issues in a previous petition. The precluded claims were:

(6.5) Newly Discovered Evidence

(6.6) Prejudicial Testimony

(7.1) Mitigating Circumstances

(7.2) "Having in Mind the Crime"

(7.7) Waiver of Right to Counsel

At issue in the present action is whether the Supreme Court's decision not to consider these issues constituted the creation of a new procedural rule, a rule that was not "clearly announced" before.

The dispute here centers on the language of Washington Rule of Appellate Procedure 16.4(d), which states: "No more than one petition for similar relief on behalf of the same petitioner will be entertained without good cause shown." In In re Haverty, 101 Wash.2d 498, 503, 681 P.2d 835 (1984), the Washington Supreme Court explicitly adopted a new rule interpreting RAP 16.4(d). In doing so, the Court overruled the holding of a previous case, In re Haynes, 95 Wash.2d 648, 628 P.2d 809 (1981), and adopted the analysis of a federal case, Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).

The new interpretation of RAP 16.4(d), adopted by the Court in Haverty stated that:

There were only two limited instances in which successive petitions could be dismissed: (1) where the prior application had been denied on "grounds previously heard and determined"; or (2) "if there had been an abuse of the writ or motion remedy."

(quoting Sanders, 373 U.S. at 15, 17, 83 S.Ct. at 1077, 1078). The Court then defined the terms "heard and determined" — the standard for the first ground for dismissal. However, the Court neither addressed nor defined the second instance warranting dismissal — the abuse of the writ standard.

The Supreme Court did not consider this issue again until Jeffries' third personal restraint petition was filed (Jeffries IV).¹ The Supreme Court noted that Jeffries' third personal restraint petition contained a mixture of "renewed" and "new" claims. As regards the renewed claims, the Court applied the previously defined standard for dismissing "heard and determined" claims and noted that any such claims would not be considered except for good cause shown. Applying this standard, the Court dismissed four of the five renewed claims submitted by the petitioner. The one renewed claim that was considered — the proportionality review of the sentence — was dismissed on the merits.

Turning to the "new" issues raised in the personal restraint petition, the Court stated that:

As noted above, we will not consider even a "new" issue raised in a successive petition if the petitioner abuses the writ by raising that issue. In re Haverty (following Sanders v. United States).

(Footnotes omitted.) The Court went on to say:

We hold only that, if the petitioner was represented by counsel throughout the post conviction proceedings, it is an abuse of the writ for him or her to raise, in a successive petition, a new issue that was "available but not relied upon in a prior petition."

Applying this test, the Court dismissed each of petitioner's five new claims as an abuse of the writ.

Thus, prior to Jeffries IV, the Supreme Court in Haverty had defined what it meant to raise a "similar" issue under RAP 16.4(d), but had not defined the effect of raising a "new" issue in a personal restraint petition. All that had been clearly stated concerning new issues was that it was improper to raise issues that "abused the writ." What constituted such abuse was unclear until the Supreme Court in Jeffries IV defined at least one aspect of abuse as failing to raise an issue that could have been raised previously.

Given this sequence of events, this Court does not believe that it is reasonable to conclude that there was a "clearly announced" procedural rule in Washington State concerning the raising of new issues in personal restraint petitions. Rather, the scope of the rule in question was defined within the context of the Court's decision not to consider certain issues raised by the petitioner.

The conclusion that there is no clearly established procedural rule interpreting RAP 16.4(d) is supported by an unpublished Order recently issued by the Washington Supreme Court in In re Campbell, No. 57406 (March 21, 1991). In that Order, the Supreme Court considered the merits of issues raised in a personal restraint petition. The State had contended that, pursuant to Haverty, Taylor, and Jeffries IV, consideration of these claims was procedurally barred. In response, the Supreme Court stated that "while the State's position may be well-taken, the court nonetheless has reviewed, and hereby rejects, each of Mr. Campbell's claims on the merits." Id. at 2.

The Supreme Court's decision in Campbell to ignore the effect of the procedural bar rule indicates either (1) that the Washington Supreme Court does not believe there is a settled procedural bar rule, or (2) that the rule is not evenly enforced — precluding review in some cases but not in others. In either case, it cannot be said that there is a clearly announced and fairly applied procedural rule concerning new issues raised in personal restraint petitions.

Because there was no clearly announced procedural rule that precluded the state court from considering the five new issues outlined above, the Court concludes that the procedural bar doctrine is not controlling in the present case. The Court will therefore consider the constitutional issues raised by the petitioner in claims 6.5, 6.6, 7.1, 7.2, and 7.7.

B. Petitioner's Motion for an Evidentiary Hearing

Petitioner requests an evidentiary hearing on the following issues: failure to change venue/jury misconduct (6.1); newly discovered evidence (6.5); prejudicial testimony — petitioner in jail (6.6); weapons unrelated to charged offense (6.7); ineffective assistance of counsel (7.6); waiver of right to counsel (7.7); trial judge report (7.10).

The respondent agrees that an evidentiary hearing is required on claim 6.1 (jury misconduct), but objects to an evidentiary hearing on the remaining claims. Respondent concedes that the decision as to whether an evidentiary hearing is appropriate is a decision for the Court.

After a preliminary review of the memoranda, affidavits, and the record of the state court proceedings, the Court concludes that an evidentiary hearing on the issues requested by petitioner is appropriate. THE COURT INTENDS THAT THIS EVIDENTIARY HEARING BE NARROWLY FOCUSED. The Court is not interested in relitigating factual issues that have been properly determined at the state court level. Any attempt by the petitioner to expand the hearing beyond the above listed collateral attacks will be denied. In addition, the restrictions on discovery — discussed below — are intended to limit extraneous material from being introduced at the hearing.

At this time, the Court is primarily interested in claims 6.1 (failure to change venue/jury misconduct); 6.5 (newly discovered evidence); and 7.7 (waiver of right to counsel). The petitioner is, of course, free to direct his energies where he believes it most fruitful.

The Court will set aside one full day for an evidentiary hearing on the above claims. Additional time will not be granted peti...