Gensitskiy v. Haynes

• Decision Date: 04 November 2020
• Docket Number: Case No. 3:19-cv-05355-BHS-TLF
• Court: U.S. District Court — Western District of Washington
• Parties: SERGEY V GENSITSKIY, Petitioner, v. RON HAYNES, Respondent.

SERGEY V GENSITSKIY, Petitioner, v. RON HAYNES, Respondent.

Case No. 3:19-cv-05355-BHS-TLF

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

November 4, 2020

REPORT AND RECOMMENDATION

Noted for November 20, 2020

This matter comes before the Court on petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging the legality of his conviction for the crimes of one count of Child Molestation in the First Degree, one count of Child Molestation in the Second Degree, and two counts of Child Molestation in the Third Degree. Dkt. 8, at Exh. 12. Petitioner presents four grounds for habeas relief: (1) "the State violated procedural due process by failing to provide any notice at the time it obtained an ex parte order for unilateral access to the jury list in Petitioner's case"; (2) "[t]he State violated Petitioner's right to be present by submitting an ex parte motion to a superior court judge who was not assigned to hear Petitioner's case"; (3) [t]he State violated Petitioner's right to open and public proceedings by submitting an ex parte motion to a superior court judge who was not assigned to hear Petitioner's case"; and (4) "[t]rial counsel was ineffective by failing to object to the improper testimony of C.S.G.'s counselor to the effect that she had suffered from rape trauma syndrome and post-traumatic stress disorder as a result of Petitioner's criminal conduct." Dkts. 9, 1. In addition, petitioner has requested an evidentiary hearing in this matter. Dkt. 9.

For the reasons set forth below, the undersigned recommends that the request for an evidentiary hearing be DENIED, and that the petition be DISMISSED. Also, for the reasons set forth below, the undersigned recommends that issuance of the certificate of appealability (COA) be DENIED.

BACKGROUND

I. Statement of Facts

In an unpublished opinion denying Mr. Gensitskiy's personal restraint petition (PRP), the Washington Court of Appeals summarized the facts relevant to this matter as follows:

In 2011, the State charged Gensitskiy with a total of twelve counts of sex offenses against five different victims, including CSG.¹

I. PROPOSED ORDER AUTHORIZING REVIEW OF JURY BOOK AND JURY LIST (jury book order)

On July 25, 2012, an omnibus hearing was held to address discovery and pretrial issues in Gensitskiy's case. The case was considered ready for trial the following week. Sometime after the hearing, the deputy prosecuting attorney in Gensitskiy's case, Anna Klein, sent a proposed order authorizing review of the jury book and jury list to the court for signature. As was Klein's practice, the proposed order was sent from the prosecutor's office with a runner for signature by an available judge. The prosecutor did not meet with the judge in order to obtain a signature for the proposed order.

The proposed order allowed Klein to "remove the juror book and jury list from the [c]ourt for her personal review and immediate return to the [c]ourt." Declaration of Tom Maybrown, Appx. E (Order Authorizing Review of Jury Book (Including Jury List), filed Clark County Superior Ct., July 25, 2012 (jury book order). The jury book order also stated that "no copies will be made and no other person shall be allowed to review the material and the book shall be returned to the [c]ourt within twenty four hours[.]" Maybrown Decl., Appx. E. The jury book order was signed by Judge Stahnke. Judge Stahnke was not the assigned trial judge for Gensitskiy's trial.

II. TRIAL TESTIMONY

All the victims testified at trial. Because their testimony is not relevant to the issues Gensitskiy raises in his PRP, we do not recount the details here. One of the victims recanted his prior statements. Another victim testified that at one point she believed the allegations she had made but currently questioned whether they were true.

Erin Haley is a child and family therapist. At the time of trial, Haley was seeing CSG weekly or every other week. Haley testified that the "initial concerns[CSG] came in for were related to sexual abuse." CD Proceedings, Vol. 2 at 284 (VRP). Haley testified as follows:

[STATE]: Okay. So did you ever find out from [CSG] what exactly it was that had happened to her sexually?

[HALEY]: Yes.

2 VRP at 284. Gensitskiy's counsel objected to Haley testifying as to CSG's statements, but the trial court overruled the objection.

Haley also testified,

[HALEY]: Well, I've offered a few diagnoses. Originally when I first met with her on November 3rd, 2010, I offered a diagnosis of sexual abuse of a child, which indicates she was a victim of sexual abuse. And that is how we treat children who come in through our specific sexual abuse grant.

....

[HALEY]: The diagnosis offered for [CSG] later in her treatment was posttraumatic stress disorder and also major depressive disorder.

[STATE]: And can you explain what those are, first of all?

[HALEY]: Sure. So posttraumatic stress disorder is a mental health condition that can come on after someone experiences a traumatic event. And it includes responses such as helplessness, extreme fear, anger, and those reactions are quite common to a traumatic event, though the symptoms in posttraumatic stress disorder last at least one month after the trauma and tend to either worsen or get to a level where they're interfering significantly in someone's life's functioning. So that's posttraumatic stress disorder.

2 VRP at 287-88. Gensitskiy did not object to any of the above testimony. On redirect, the following exchanges took place:

[STATE]: Okay. And what made you feel that her posttraumatic stress disorder is associated with a (sic) sexual abuse?

[HALEY]: Well, [CSG] had disclosed that she had experienced sexual abuse and that her flashbacks as part of her posttraumatic stress disorder were specific to the sexual abuse trauma.

[STATE]: And are her nightmares regarding any specific person or issue?

[HALEY]: Some of the nightmares [CSG] has endorsed are related to fearfulness about her father. They were more generalized, which is common, particularly for children. The nightmares were generally about her father hurting her, killing her, just fearful dreams about her father.

2 VRP at 308-09. Again, Gensitskiy did not object to Haley's testimony. Finally, on recross, Gensitskiy's counsel engaged in the following exchange with Haley:

[COUNSEL]: Is there any means as a counselor that you can ascertain as to whether or not the complaints of abuse are accurate?

[HALEY]: I would say that—I guess I'm having a hard time answering your question. The way I look at it is, it's not my job to investigate the allegations of the abuse. And so I take in the disclosures that individuals share with me along with some collaborative information to make my determination. But again, I'm not determining whether it's true or not. My job is to treat the individual with the symptoms that they come in for.

[COUNSEL]: So you're treating the sym—I don't want to put words in your mouth, but sounds like you're saying I'm treating the symptoms, not the allegations? [HALEY]: I guess I'm not sure how I would treat allegations, so I think that's fair to say I'm treating the symptoms.

2 VRP at 314.

Dkt. 8, at Exh. 33 (In re Gensitskiy, Washington Court of Appeals No. 49044-7-II (unpublished opinion)).

II. State Court Procedural History

A. Direct Appeal

In August 2012, Mr. Gensitskiy was convicted, after an eight-day jury trial of Child Molestation in the First Degree of his children C.S.G. and D.S.G. (counts 2, 6), Child Molestation in the Second Degree of C.S.G. and D.S.G. (counts 3, 7), two counts of Child Molestation in the Third Degree of C.S.G. (counts 4, 5), and four counts of Incest in the Second Degree of D.S.G. (counts 8, 9, 10, 11). Dkt. 8, Exh. 17 (State v. Gensitskiy, No. 71640-9-I (unpublished opinion)). Mr. Gensitskiy appealed his convictions to the Washington Court of Appeals. Id., Exhs. 13-17. Appellate counsel's brief raised a total of ten assignments of error, arguing (1) the trial court erred by allowing the State to amend the charges after the State rested, (2) & (3) the evidence was constitutionally insufficient with respect to counts 2 and 6, (4) & (5) count 7 of the information, and its to-convict instruction (Instruction No. 26), omitted an essential element and failed to charge a crime, (6) the court erred by failing to provide a limiting instruction when the witnesses were impeached with prior inconsistent statements, (7) the court erred by admitting evidence of an overheard telephone conversation, (8) the judgment and sentence erroneously described count 7 as first-degree child molestation, (9) the court erred by imposing indeterminate sentences for counts 2 and 7, and (10) applying the indeterminate sentencing law to crimes that may have occurred before its effective date violates ex post facto principles. See Dkt. 8, Exh. 13 (brief of appellant) at 1-2. The case was transferred to Division One of the Court of Appeals for decision. Id., Ex. 16 (order transferring cases).

On July 7, 2014, a three-judge panel of the Court of Appeals issued an unpublished opinion affirming in part and reversing in part. Id., Exh. 17 (State v. Gensitskiy, Washington Court of Appeals No. 71640-9-I (unpublished opinion)). The appellate court reversed the conviction for count 7, concluding the information omitted an essential element because it failed to state that the victim was over the age of twelve. Id., at 3-4. The appellate court further held that the trial court erred by allowing the State to amend the information with respect to counts 8, 9, 10, and 11, and therefore reversed those counts. Id., at 5-7. The State conceded that the evidence supporting count 6 was insufficient. Accordingly, the appellate court vacated that count. Id., at 7. The State also conceded that Mr. Gensitskiy should not have received an indeterminate sentence under Wash. Rev. Code § 9.94A.507, which concession the appellate court accepted. Id., at 13. The Court of Appeals affirmed the remaining convictions—the...