Eggum v. Holbrook

• Decision Date: 18 June 2020
• Docket Number: Civil Action No. 2:14-cv-1328-RAJ
• Parties: Marlow Todd EGGUM, Petitioner, v. Donald HOLBROOK, Respondent.
• Court: U.S. District Court — Western District of Washington

467 F.Supp.3d 968

Marlow Todd EGGUM, Petitioner,

v.Donald HOLBROOK, Respondent.

Civil Action No. 2:14-cv-1328-RAJ

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

Signed June 18, 2020

ORDER ADOPTING REPORT AND RECOMMENDATION

Richard A. Jones, United States District Judge

This matter is before the Court on Petitioner's (Dkt. # 154) and Respondent's (Dkt. # 161) Objections to the Honorable Mary Alice Theiler's Report and Recommendation partially granting Petitioner's 28 U.S.C. § 2254 petition (Dkt. # 151). Having thoroughly considered the parties’ briefing and the relevant record, the Court hereby ADOPTS the Report and Recommendation. Petitioner's habeas petition is GRANTED as to his First Amendment challenge to Washington's intimidating a public servant statute and DENIED as to his remaining claims.

I. BACKGROUND

The factual background of this case is summarized in Judge Theiler's Report and Recommendation (the "Report") and the Court will not repeat it in great detail here. See Dkt. # 151. Of particular relevance is Petitioner's Second Amended Habeas Petition ("SAP") in which he raises seven grounds for relief. See generally Dkt. # 125. These claims are summarized below:

SAP Ground 1: The First Amendment required the State to prove a "true threat" of bodily harm or death to convict petitioner of intimidating a public servant. Dkt. # 125 at 25–39.

SAP Ground 2: Petitioner received ineffective assistance of appellate counsel when his attorney failed to raise the meritorious "true threat" argument. Dkt. # 125 at 39–47.

SAP Ground 3: Insufficient evidence exists to uphold the intimidating a public servant convictions because there is no evidence petitioner made a "true threat" of bodily harm or death. Dkt. # 125 at 48–51.

SAP Ground 4: Numerous trial court evidentiary rulings prevented petitioner from presenting his defense, in violation of due process. Dkt. # 125 at 51–54.

SAP Ground 5: Petitioner's prosecution for threatening to do something he had a legal right to do—distribute pornographic videos of Ms. Gray—violated his right to due process. Dkt. # 125 at 54–55.

SAP Ground 6: The prosecutor constructively amended the information in violation of petitioner's due process rights. Dkt. # 125 at 55–57.

SAP Ground 7: There is insufficient evidence to support petitioner's conviction for stalking Ms. Gray. Dkt. # 125 at 58–59.

Judge Theiler's Report and Recommendation recommends vacating Petitioner's two intimidating a public servant convictions on the grounds that the convictions violate the First Amendment. See generally Dkt. # 151. The Report also recommends denying Petitioner's remaining claims but granting a certificate of appealability as to Petitioner's final claim that there was insufficient evidence to support his stalking conviction. Id.

II. LEGAL STANDARD

District courts review de novo those portions of a report and recommendation to which a party objects. See 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). Objections are required to enable the district court to "focus attention on those issues—factual and legal—that are at the heart of the parties’ dispute." Thomas v. Arn , 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). General objections, or summaries of arguments previously presented, have the same effect as no objection at all since the court's attention is not focused on any specific issues for review. See United States v. Midgette , 478 F.3d 616, 622 (4th Cir. 2007).

III. DISCUSSION

Respondent raises four primary objections to the Report and Recommendation: (1) the Report misstated Black's holding, (2) the Report misunderstood Black's role in the Washington Supreme Court's adjudication of Petitioner's as-applied challenge, (3) the Report erroneously extended Black's holding, and (4) the Report did not apply the "objectively unreasonable" standard to its review of the Washington Supreme Court decision. Separately, Petitioner objects to the Report's rejection of his insufficient evidence claim as to his stalking conviction. Respondent also objects to the Report's recommendation that a certificate of appealability be issued on this claim. The Court will address Respondent's objections first.

A. Respondent's Objections

Petitioner is challenging his two convictions under Washington's intimidating a public servant statute. Under RCW 9A.76.180(1) : "A person is guilty of intimidating a public servant if, by use of a threat, he or she attempts to influence a public servant's vote, opinion, decision, or other official action as a public servant." A threat is defined as: "(a) To communicate, directly or indirectly, the intent immediately to use force against any person who is present at the time; or (b) Threats as defined in RCW 9A.04.110." RCW 9A.76.180(3). Under RCW 9A.04.110, the term "threat" is broadly defined to include:

[T]o communicate, directly or indirectly, the intent:

(a) To cause bodily injury in the future to the person threatened or to any other person; or

(b) To cause physical damage to the property of a person other than the actor; or

(c) To subject the person threatened or any other person to physical confinement or restraint; or

(d) To accuse any person of a crime or cause criminal charges to be instituted against any person; or

(e) To expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or

(f) To reveal any information sought to be concealed by the person threatened; or

(g) To testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(h) To take wrongful action as an official against anyone or anything, or wrongfully withhold official action, or cause such action or withholding; or (i) To bring about or continue a strike, boycott, or other similar collective action to obtain property which is not demanded or received for the benefit of the group which the actor purports to represent; or

(j) To do any other act which is intended to harm substantially the person threatened or another with respect to his or her health, safety, business, financial condition, or personal relationships.

RCW 9A.04.110(28). At Petitioner's trial, the jury received the following instruction:

A person commits the crime of intimidating a public when he, by use of a threat, attempts to influence a public servant's opinion, decision, or other official action as a public servant.

*****

Threat means to communicate, directly or indirectly, the intent to cause bodily injury in the future to the person threatened or to any other person; or to expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule; or to reveal any information sought to be concealed by the person threatened; or to do any other act that is intended to harm substantially the person threatened or another with respect to that person's health, safety, business, financial condition, or personal relationships.

To be a threat, a statement or act must occur in a context or under such circumstances where a reasonable person, in the position of the speaker, would foresee that the statement or act would be interpreted as a serious expression of intention to carry out the threat rather than as something said in jest, idle talk, or political argument.

Dkt. # 125-5 at 10, 13. Petitioner was found guilty on both counts of intimidating a public servant. Dkt. # 125-5 at 42, 44.

In his most recent personal restraint petition, Petitioner argued that he fell within an exception to the one-year time bar for personal restraint petitions because RCW 9A.76.180 (incorporating the threat definition at RCW 9A.04.110(28) ), is unconstitutional, both facially and as-applied to his conduct, under the First Amendment. See generally Dkt. # 125-10.¹ Specifically, Petitioner argued that the statute was unconstitutional as-applied to him because his convictions were premised on threats to "distribute videos, file a lawsuit, and/or pursue a bar complaint" which do not constitute unprotected "true threats" under Virginia v. Black. See Dkt. # 125-10 at 26. In response, the State argued that Petitioner's as-applied challenge was meritless because states are permitted to regulate protected speech in certain circumstances. Dkt. # 125-10 at 80–81.

The Washington Supreme Court rejected Petitioner's as-applied challenge, holding:

Mr. Eggum argues that he falls within the exemption [to the one-year time bar] for convictions based on unconstitutional statutes. RCW 10.73.100(2). Specifically, he contends that the intimidation of a public official statute is unconstitutionally overbroad in that it allows convictions for threats other than "true threats" to kill or cause physical harm. See Elonis v. United States , 575 U.S. 723, 135 S. Ct. 2001, 2009, 192 L. Ed. 2d 1 (2015). Mr. Eggum's convictions arose out of threats made to a prosecutor and a community corrections officer that he would release pornographic videos of his former wife in her hometown unless the public officials complied with his wishes.

As relevant here, the statute of conviction defines a "threat" to include any act that communicates directly or indirectly, intent "[t]o expose a secret or publicize an asserted fact, whether true or false, tending to subject any person to hatred, contempt, or ridicule." RCW 9A.04.110(28)(e). Because Mr. Eggum fails to demonstrate that he did not make a "serious expression" of intent to subject his former wife to ridicule through publicizing the videos, he fails to show that the statute was applied unconstitutionally to his convictions. SeeVirginia v. Black , 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). We also find his facial challenge unavailing.

Dkt. # 125-10 at 1–2. As a result, the Court held that Petitioner failed to show an exception to the one-year time bar and dismissed his personal restraint petition as untimely. Id. at 2.

In his SAP, Petitioner argues that the Washington...