Cencich v. Miller-Stout

• Decision Date: 06 September 2012
• Docket Number: No. 10-5164 BHS/KLS,10-5164 BHS/KLS
• Court: U.S. District Court — Western District of Washington
• Parties: NICHOLAS J. CENCICH, Petitioner, v. MAGGIE MILLER-STOUT, Respondent.

NICHOLAS J. CENCICH, Petitioner,

v.MAGGIE MILLER-STOUT, Respondent.

No. 10-5164 BHS/KLS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Dated: September 6, 2012

REPORT AND RECOMMENDATION

Noted for: September 21, 2012

Petitioner Nicholas J. Cencich filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 1997 conviction for first degree assault and attempted first degree murder. ECF No. 7. Respondents filed an Answer and submitted relevant portions of the state court record. ECF Nos. 30 and 31. Having carefully considered the parties' filings and relevant record, the undersigned recommends that the petition be denied and this action dismissed with prejudice.

BACKGROUND

A. Statement of Facts

Mr. Cencich was convicted by jury verdicts of first degree assault and attempted first degree murder. ECF No. 31, Exhs 1 and 2. The Washington Court of Appeals summarized the facts surrounding Mr. Cencich's convictions as follows:

A. The Underlying Crime

John Stocks, an attorney, and Jerry Sinks, a process server, drove to Cencich's home to serve Cencich with documents requiring his appearance incourt for a back child support case. Stocks and Sinks drove in Sinks's truck, leaving Stocks's car at a nearby gas station. Stocks knew and recognized Cencich. Shortly after they arrived at Cencich's house, Cencich arrived in his car. Sinks approached Cencich and asked him if he was Nick Cencich. Cencich said no. Because he did not believe Cencich, Sinks dropped the papers in Cencich's lap and returned to the truck.

Cencich then got out of his vehicle and approached the truck, demanding that Sinks roll down the window. When Sinks refused, Cencich wadded up the papers and threw them in the back of the truck. Sinks then got out of the truck, grabbed the papers, and threw them onto Cencich's property. Cencich told Sinks and Stocks that he was calling the police. Sinks and Stocks then left Cencich's property and drove to the gas station to call 911 and explain their version of the story.

The 911 dispatcher sent a deputy to clear up the matter and told Stocks and Sinks to return to Cencich's property. Back at Cencich's property, the two waited in Stocks's car for the deputy. After a short time, Cencich drove up to Stocks's car and exchanged words with Stocks, who was sitting in the driver's seat. When Stocks turned to look at Sinks, who was sitting in the front passenger seat, he saw something out of the corner of his eye. When he looked up, Cencich had a gun pointed at his head.

As Cencich fired the gun, Stocks leaned back. The bullet missed Stocks and went in and out of Sinks's stomach, across his elbow, and into the passenger side door.

Stocks fled the scene, called 911, and drove to a nearby fire station where Sinks received medical attention. Cencich also fled the scene, drove west on State Route 101, dismantled his gun, and threw it into some mud in Puget Sound. Police arrested Cencich before he returned home.

B. Pretrial Motions and Hearings

The State initially charged Cencich with one count of first degree assault and one count of second degree assault. Thurston County Deputy Prosecutor John Jones [footnote 2 omitted] drafted a plea agreement, offering to recommend a 147-month sentence if Cencich pleaded guilty to one count of first degree assault and one count of second degree assault.

At Cencich's first arraignment, Jones served Cencich and Tim Healy, Cencich's pretrial counsel, with the State's plea offer, stating that "[t]he record should reflect I have served a copy of the State's offer and discovery on the defendant and Mr. Healy." Report of Proceedings (RP) (Oct. 3, 2003) at 34. The offer stated that, if Cencich did not accept the offer before the omnibus hearing,the State would amend the charges to first degree attempted murder and first degree assault, both with firearm enhancements.

At a bail hearing, Brett Purtzer, Cencich's trial counsel, stated that Cencich wanted to proceed to trial and argue self-defense. At the later hearing on Cencich's motion to compel the State to renew its original offer, Jones testified that the bail hearing was the first time defense counsel mentioned pursuing a self-defense strategy. Jones said that, based on his conversations with Purtzer, he understood Cencich's wish to pursue self-defense at trial as an implicit rejection of the State's plea offer. Jones testified that, after hearing Cencich wished to pursue self-defense, "[Jones] was withdrawing [the offer] at that time," even if Cencich had not rejected it. RP (Oct. 8, 2003) at 30. Jones then told the court that "if this matter was going to go to trial [,] . . . it was going to go to trial based on those charges . . . [that] probable cause [supported]." RP (Oct. 8, 2003) at 30.

Accordingly, the State amended the charges to first degree attempted murder and first degree assault, both with firearm enhancements. At the evidentiary hearing, Purtzer said that by the time of the bail hearing, he had reviewed the discovery material in light of the plea offer but he could not remember whether he discussed the offer with Cencich.

At his first trial, the jury rejected Cencich's self-defense claim and found him guilty of first degree assault and attempted first degree murder with firearm enhancements for both counts. On appeal, we remanded for a new trial on the first degree attempted murder charge because the court failed to instruct the jury on second degree attempted murder as a lesser included offense. State v. Cencich, 2001 Wn. App. LEXIS 329, 2001 WL 175688 (Feb. 23, 2001). We affirmed the first degree assault conviction.

Before his second trial, Cencich filed numerous motions, including a motion for the presentation of a plea offer the State made in 1997 that Cencich claimed his trial attorneys had failed to inform him about. [Court's footnote 3. Cencich appeared pro se in his second trial and for his motion to present the State's plea offer.] Cencich maintained that, at some time during the first appeal, he discovered a plea offer attached to a brief that nobody had shown to him. After the evidence hearing, the trial court denied Cencich's motion to compel the State to renew its original plea offer, ruling that the motion was based on a claim that counsel was ineffective and that Cencich failed to establish counsel's deficient performance or any resulting prejudice.

At Cencich's second trial, the jury again rejected his self-defense claim and convicted him of attempted first degree murder committed with a firearm....

ECF No. 31, Exh. 3 (Opinion (2006), State v. Cencich, Court of Appeals Cause No. 32532-2-II, at 2-5).

B. Statement Of Procedural History

1. Direct Appeal Following First Trial

At the first trial in 1997, the jury convicted Mr. Cencich of first degree assault and attempted first degree murder. ECF No. 31, Exh. 1. Mr. Cencich appealed to the Washington Court of Appeals. Id., Exh. 4; Exh. 5; Exh. 6. The Washington Court of Appeals affirmed the assault conviction, but reversed the conviction for attempted first degree murder and remanded for a new trial. Id., Exh. 7. The Washington Court of Appeals denied the prosecution's motion for reconsideration. Id., Exhs. 8 and 9. The Washington Supreme Court denied the prosecution's petition for review on October 2, 2001. Id., Exhs. 10 and 11. The Washington Court of Appeals issued the original mandate for the appeal on October 9, 2001. Id., Exh. 12.

After issuance of the mandate, Mr. Cencich asked the Washington Court of Appeals to clarify whether the grant of a new trial concerned only the attempted first degree murder conviction or also the first degree assault conviction. ECF No. 31, Exh. 13. The court recalled its mandate, clarified that the earlier opinion reversed only the attempted murder conviction and ordered that the mandate would automatically reissue in 30 days if no party filed a petition for review. Id., Exh. 15. The Washington Court of Appeals granted an extension of time to file a motion for reconsideration. Id., Exhs. 16 and 17. Mr. Cencich moved for reconsideration, arguing that the court had not addressed his pro se appellate claims. Id., Exh. 18. The court issued a supplemental opinion addressing the pro se claims and entered an order denying reconsideration. Id., Exhs. 19 and 20. The court reissued the mandate on March 4, 2002. Id.,Exh. 21. The court denied Mr. Cencich's subsequent motion to again recall the mandate. Id., Exh. 22.

Mr. Cencich sought review by the Washington Supreme Court. ECF No. 31, Exh. 23 (Petition); Exh. 24 (Answer); Exh. 25 (Reply); Exh. 26 (Proposed Petition). The Washington Supreme Court denied review. Id., Exh. 27. Mr. Cencich filed two motions to modify. Id., Exhs. 28 and 29. The Supreme Court denied the motions. Id., Exh. 30.

2. Direct Appeal After Second Trial

Prior to the second trial, Mr. Cencich moved to dismiss the charge based on alleged prosecutorial misconduct. The superior court denied the motions, entering detailed findings of fact and conclusions of law. ECF No. 31, Exhs. 31 (Brady Violation), 32 (Speedy Trial) and 33 (Attorney-Client Privilege). Mr. Cencich also sought to reinstate a plea offer that the prosecution had withdrawn prior to the start of the first trial, arguing that his counsel failed to inform him of the plea. The superior court denied this motion, again entering detailed findings of fact and conclusions of law. Id., Exh. 34. At the conclusion of the second trial, the jury again convicted Mr. Cencich of the crime of attempted first degree murder. Id., Exh. 2.

Mr. Cencich appealed to the Washington Court of Appeals. ECF No. 31, Exh. 35 (Brief of Appellant), Exh. 37 (Statement of Additional Grounds for Review). The Washington Court of Appeals affirmed the conviction. Id., Exh. 3. See also Exh. 39 (Motion for Reconsideration), Exh. 40 (Order Amending Opinion), Exh. 41 (Amended Motion for Reconsideration); Exh. 42 (Order Denying Motion to Reconsider). Mr. Cencich sought review by the ...