Gomez v. White
| Docket Number | C22-5897-MJP-MLP |
| Decision Date | 13 June 2023 |
| Parties | JOSE G. BARAJAS GOMEZ, Petitioner, v. DAN WHITE, Respondent. |
| Court | U.S. District Court — Western District of Washington |
REPORT AND RECOMMENDATION
Petitioner Jose Barajas Gomez is a state prisoner who is currently confined at the Monroe Correctional Complex - Twin Rivers Unit, in Monroe, Washington. Petitioner has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 seeking relief from his 2020 Thurston County Superior Court judgment and sentence. (Pet. (dkt. # 5).) Respondent filed an answer to the petition and submitted relevant portions of the state court record. (Answer (dkt. # 13); State Ct. Rec. I (dkt. # 14-1); State Ct. Rec. II (dkt. # 14-2).) Petitioner filed a response to Respondent's answer. This Court, having reviewed the petition, all briefing of the parties, and the balance of the record, concludes that Petitioner's petition for writ of habeas corpus should be denied and this action should be dismissed with prejudice.
In February 2019, the Washington State Patrol's (“WSP”) Missing and Exploited Children Task Force conducted a “Net Nanny Operation” in Thurston County, Washington. (See State Ct. Rec. II, Ex. 17 at 81-82, 114-117.) A Net Nanny Operation is an undercover operation designed to find people online who are interested in having sex with children. (See id. at 105.) The Net Nanny Operation conducted in this case involved a WSP detective who adopted an undercover persona as a 13-year-old female named Sam and created a profile for Sam on a dating app called Badoo. (Id. at 117-121.) Petitioner began communicating with Sam online by sending messages through Badoo, and they subsequently began exchanging text messages outside the Badoo app. (See id. at 117, 123, 135.)
In the early stages of Petitioner and Sam exchanging text messages, Sam indicated to Petitioner that she was 13 years old and that she was staying with a friend in Olympia.[1](State Ct. Rec. II, Ex. 17 at 142-43.) Petitioner thereafter requested a photograph of Sam, asked her if she liked older guys, and asked if she had previously had sex with an older guy. (Id. at 143-44.) Petitioner also asked Sam if she liked oral sex and was on birth control before sending her a series of sexually explicit messages. (Id. at 145-48.) Petitioner then asked Sam the age of the friend she was staying with and, when Sam indicated the friend was 12, Petitioner asked if the friend liked older guys. (Id. at 149.) Petitioner thereafter asked if both Sam and her 12-year-old friend wanted to have sex, and he described having sex with both of them. (See id. at 154-57.)
As the conversation continued, Sam and Petitioner discussed arranging a meeting at the house where Sam was staying with her 12-year-old friend. (State Ct. Rec. II, Ex. 17 at 154-57.)
Petitioner asked for an address to the house, but Sam declined to give it to him, providing an address for a store instead that she indicated was down the street from the house. (Id. at 157-58, 160-61.) Petitioner indicated he was on his way, but thereafter advised that he had had car trouble and was stuck on the freeway. (Id. at 162-66.) The planned meeting therefore never took place, but Petitioner suggested they could meet another time. (Id. at 164-66.) Petitioner also asked Sam for the phone number for Audrey, Sam's fictitious 12-year-old friend, but Sam refused to provide it. (See id. at 164-65.)
Petitioner continued texting with Sam during the ensuing days, exchanging more sexually explicit messages and trying to arrange another time to meet. (See State Ct. Rec. II, Ex. 17 at 166-79.) Petitioner also persevered in his attempts to obtain Audrey's phone number from Sam, and Sam eventually gave it to him. (Id. at 179-81.) Petitioner then began texting Audrey as well, and those conversations were also sexually explicit. (See id. at 181-82, 241, 243.) Arrangements were eventually made for Petitioner to meet both of the girls for sex, and he was again given the address of the store that was purportedly near Audrey's house. (Id. at 190-92.) Petitioner was arrested in the vicinity of the store. (See id. at 222-23.)
Petitioner was thereafter charged with two counts of communication with a minor for immoral purposes and two counts of attempted rape of a child in the second degree. (See State Ct. Rec. II, Ex. 16 at 50-51.) Petitioner proceeded to trial on those charges in late-February 2020. (See id., Ex. 16.) The state presented the testimony of six witnesses over the course of three days and the parties thereafter rested with the defense presenting no witnesses. (See id., Ex. 17 at 87-352.) The jury began its deliberations on the morning of March 3, 2020. (See id., Ex. 18.)
On the first day of deliberations, the jury sent a question to the court asking how they should proceed as they had reached agreement on two charges but were “hung” on the other two charges. (See State Ct. Rec. II, Ex. 18 at 10; see also Pet. at 61.) After discussing the matter with counsel, the court called the presiding juror into the courtroom and inquired of her whether there was “a reasonable probability of the jury reaching an agreement within a reasonable time as to all counts.” (State Ct. Rec. II, Ex. 18 at 14.) The juror responded by stating (Id.) The court then confirmed with the juror that she was “not sure.” (See id.) Once the presiding juror left the courtroom, the court again inquired of counsel. The prosecutor suggested at that time that they could bring the jury back in, accept the verdicts as to the two counts upon which they were able to agree, and declare a mistrial with respect to the remaining two counts. (Id. at 15.)
After a break was taken to allow defense counsel to confer with Petitioner, counsel represented to the court that they would prefer the jury continue to deliberate. (See State Ct. Rec. II, Ex. 18 at 16-17.) The prosecutor thereafter indicated to the court that she agreed with defense counsel that deliberations should continue. (Id. at 17.) The court then provided the jury with a written response advising that they should leave for the day and begin again the following day by re-reading the instructions and then continuing to deliberate. (See id. at 17-18; see also Pet. at 61.)
On the second day of deliberations, the jury advised the court that it had reached verdicts in the case. (State Ct. Rec. II, Ex. 18 at 22.) The jury returned to the courtroom and the court read the verdicts, which reflected guilty findings on all four charges. (See id. at 22-23.) However, when the clerk polled the jury, one of the jurors advised that the verdicts reached by the jury were not her verdicts. (See id. at 24-26.) The jury was sent out, the court conferred with counsel, and the jury was then brought back into the courtroom at which time the court advised that it was returning the instructions and verdict forms to them and that they should re-read the court's instructions and deliberate consistent with those instructions. (Id. at 26-34.)
Later that afternoon, the jury sent a question to the court asking again how they should proceed as they had reached agreement on three charges but did not have agreement on the remaining charge. (See State Ct. Rec. II, Ex. 18 at 36; see also Pet. at 63.) After conferring with counsel, the court provided the jury with a written response advising that they should complete the verdict forms for the counts upon which they agreed and write “cannot decide” on the verdict form for the count upon which they did not unanimously agree. (See State Ct. Rec. II, Ex. 18 at 37-39; see also Pet. at 63.) The jury thereafter returned to the courtroom and the verdicts were read. (See State Ct. Rec. II, Ex. 18 at 41-42.) The verdicts reflected guilty findings as to one count of attempted rape of a child in the second degree and two counts of communication with a minor for immoral purposes. (See id.) Pursuant to the stipulation of counsel, the trial court declared a mistrial as to the remaining count of attempted rape of a child in the second degree. (See id.)
On May 28, 2020, Petitioner appeared for sentencing at which time the court imposed a minimum term of 109.5 months confinement and a maximum term of life with respect to the charge of attempted rape of a child in the second degree. (See State Ct. Rec. I, Ex. 1 at 5; State Ct. Rec. II, Ex. 18 at 70-71.) The court also imposed terms of 29 months confinement on each of the two charges of communicating with a minor for immoral purposes, which were to run concurrently with each other and with the sentence imposed on the more serious charge. (See id.) Finally, the court dismissed the count upon which it had previously declared a mistrial. (See State Ct. Rec. I, Ex. 1 at 4; State Ct. Rec. II, Ex. 18 at 70.)
Petitioner appealed his sentence to the Washington Court of Appeals, but he challenged on appeal only one of the conditions of community custody imposed by the trial court. (See State Ct. Rec. I, Exs. 2-4.) The state conceded the error, and the Court of Appeals reversed with respect to the challenged condition and remanded the matter to the trial court to modify that condition. (See id., Ex. 2.). The Court of Appeals issued a mandate terminating direct review on July 1, 2021. (Id., Ex 5.)
On January 10, 2022, Petitioner filed a personal restraint petition in the Washington Court of Appeals. (See State Ct. Rec. I, Ex. 8.) Petitioner asserted therein various ineffective assistance of trial counsel claims. (See id.) Petitioner also asserted that the trial court erred when...
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