O'Haver v. Ruiz

• Decision Date: 11 February 2016
• Docket Number: CASE NO. 3:15-CV-05797-RBL-JRC
• Parties: TIMOTHY G O'HAVER, Petitioner, v. VINCENTE M RUIZ Respondent.
• Court: U.S. District Court — Western District of Washington

TIMOTHY G O'HAVER, Petitioner, v. VINCENTE M RUIZ Respondent.

CASE NO. 3:15-CV-05797-RBL-JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

February 11, 2016

REPORT AND RECOMMENDATION

NOTED FOR: MARCH 4, 2016

The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge, J. Richard Creatura. The authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner seeks relief from a state conviction, thus, the petition is filed pursuant to 28 U.S.C. § 2254.

Petitioner Timothy G. O'Haver seeks § 2254 habeas relief from his conviction of two counts of assault. Dkt. 10, Exhibit 1. Petitioner raises twelve grounds for relief: (1) denial of the right to present a defense with respect to sub-part 1 - use of perjured testimony and sub-part 2 - exclusion of evidence; (2) insufficient evidence; (3) denial of the right to a fair trial based on sub-part 1 -perjured testimony and sub-part 2 - trial court's statement related to petitioner's in- custody status; (4) violation of right to a speedy trial; (5) prejudicial jury instruction; (6) exclusion of evidence; (7) improper opinion testimony; (8) improper admission of evidence; (9) improper denial of motion for mistrial; (10) perjury during testimony related to domestic violence; (11) prosecutorial misconduct; and (12) cumulative error. Dkt. 1. Respondent argues that petitioner failed to properly exhaust grounds 1 (sub-part 1), 2, 3 (sub-part 1), 4, 5, 7, 8, 10, 11 and 12 and that grounds 1 (sub-part 2), 3 (sub-part 2), 6, and 9 fail on the merits. Dkt. 9. Petitioner filed a reply. Dkt. 11.

The Court finds that petitioner failed to properly exhaust grounds 1 (sub-part 1), 2, 3 (sub-part 1), 4, 5, 7, 8, 10, 11 and 12 because he failed to invoke one round of the state's appellate review process. Even though petitioner raised some of these claims on federal grounds in one state court, he did not do so in both courts, and although petitioner raised some of these claims on state-law grounds, he did not raise them on federal grounds. With respect to petitioner's exhausted claims, he alleges that the trial court violated his right to a fair trial. However, the record reflects that neither the exclusion of evidence nor the court's statement that petitioner contends implied he was in custody were prejudicial. Thus, the Court recommends dismissing petitioner's unexhausted claims and denying his exhausted claims as he has failed to demonstrate that the state court's adjudication of his claims was contrary to, or an unreasonable application of federal law.

Petitioner also filed a motion to appoint counsel. Dkt. 11. Because the undersigned has determined that the petition be dismissed as to his unexhausted claims and denied as to his exhausted claims, petitioner's motion to appoint counsel should also be denied as moot.

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BASIS FOR CUSTODY AND FACTS

Petitioner was convicted of one count of second degree assault and one count of fourth degree assault. Dkt. 10, Exhibit 1. He was sentenced to 41 months of confinement and 18 months of community custody. Id.

The Washington Court of Appeals summarized the facts in petitioner's case as follows:

Timothy O'Haver came home from work. He and his wife consumed several drinks of vodka and juice. After a couple hours, they began arguing. [Footnote 1. 4 Report of Proceedings (RP) at 197, 224.] During the argument, O'Haver grabbed his wife and sprayed her with the hose from the kitchen sink. She slipped on the water and fell to the floor. [Footnote 2. 4 RP at 231.] The wife ran out of the house.

The neighbor next door, and his friends John Hoover and John Humen, witnessed O'Haver chasing his wife outside. The wife either fell or O'Haver pushed her down. [Footnote 3. RP at 247, 272; 5 RP at 345.] O'Haver then struck his wife, although the accounts varied whether he did so with an open hand or a fist. [Footnote 4. 4 RP at 272; 5 RP 349.] O'Haver grabbed his wife and went back into their home, closing the door. [Footnote 5. 5 RP at 347.]

The three continued to hear screaming coming from the O'Haver house. The neighbor entered the house through a back door. [Footnote 6. 5 RP at 349.] The neighbor testified that he distracted O'Haver by insulting him in an attempt to get O'Haver to focus on him so that his wife could escape. [Footnote 7. 5 RP at 352.] The wife left and O'Haver pushed the neighbor. When O'Haver grabbed a gun, the neighbor fled to his house with O'Haver running behind him. [Footnote 8. 5 RP at 355-56.]

The neighbor called for his wife to get the "old lady," a term used by the neighbors for their gun in the event of an emergency. [Footnote 9. 5 RP at 302, 355.] The neighbor's wife retrieved the gun and gave it to her husband. [Court's footnote omitted.] O'Haver testified that he was aware of the neighbors' code for their gun and that he feared for his wife's safety. The wife told O'Haver that she was in the house on her own free will and told him to go home and sleep it off. [Footnote 11. 5 RP at 304.].

O'Haver banged on the neighbor's front door with a baseball bat trying to get inside. In the process, he broke the door. O'Haver also attempted to enter through windows around the house while shouting for his wife. [Footnote 12. 5 RP at 307.] O'Haver testified that he ran back to his house to retrieve his guns when theneighbor threatened to shoot him through the door. [Footnote 13. O'Haver owned two handguns and a shotgun. 4 RP at 197.] O'Haver reached through the broken front door hitting the neighbor with his gun. [Footnote 14. 5 RP at 359.]

The police arrived at the scene. Both parties dropped their weapons. The police arrested O'Haver. The State introduced evidence of the neighbor's broken door and the broken baseball bat.

The State charged O'Haver with four counts of assault, but a jury found him guilty of only two: second degree assault of the neighbor and a lesser included count of fourth degree assault of the wife.

Dkt. 10, Exhibit 2 at 1-3.

STATE PROCEDURAL HISTORY

Through counsel and pro se, petitioner appealed to the Washington Court of Appeals. Dkt. 10, Exhibit 3 (Brief of Appellant), Exhibit 6 (Statement of Additional Grounds). The Washington Court of Appeals affirmed the convictions and denied petitioner's appeal in an unpublished opinion. Dkt. 10, Exhibit 2.

Petitioner, through counsel, petitioned for review in the Washington Supreme Court. Dkt. 10, Exhibit 8 (Petition for Review). The Washington Supreme Court denied review without comment. Dkt. 10, Exhibit 9. The Washington Court of Appeals issued the mandate on December 19, 2014. Dkt. 10, Exhibit 10. Petitioner did not file a collateral attack of his sentence.

EVIDENTIARY HEARING

The decision to hold a hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Landrigan, 550 U.S. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388 (2011). A hearing is not required if theallegations would not entitle petitioner to relief under 28 U.S.C. § 2254(d). Landrigan, 550 U.S. at 474. "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id.; see also Cullen, 131 S. Ct. 1388 (2011). "[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998).

Petitioner's habeas claims raise only questions of law and may be resolved by a review of the existing state court record. Therefore, the Court finds it unnecessary to hold an evidentiary hearing.

DISCUSSION

A. GROUNDS FOR RELIEF

Petitioner presents the Court with twelve grounds for relief:

1. Ground One: Whether petitioner was denied the right to present a defense with respect to (1) sub-part 1 - use of perjured testimony and (2) sub-part 2 - exclusion of evidence?

2. Ground Two: Was the evidence insufficient to support defendant's convictions?

3. Ground Three: Whether petitioner was denied the right to a fair trial based on (1) sub-part 1 - perjured testimony and (2) sub-part 2 - the trial court's statement related to petitioner's in custody status?

4. Ground Four: Whether petitioner's right to a speedy trial violated?

5. Ground Five: Whether the reasonable doubt jury instruction was prejudicial by lessening the requirements of the prosecution to prove beyond a reasonable doubt petitioner's guilt?

6. Ground Six: Whether the trial court erred in excluding petitioner's testimony about incidents of violence by his wife and neighbor which caused him to fear injury?

7. Ground Seven: Whether Officer Welsh offered improper opinion testimony when he told the jury he had information crimes had been committed, including attempted murder, and that the situation was extremely dangerous and thereby denying petitioner a fair trial?

8. Ground Eight: Whether the trial court erred in admitting Officer Welsh's police report as a recorded recollection?

9. Ground Nine: Whether the trial court erred in denying petitioner's motion for a mistrial after alerting the jury to his in-custody status?

10. Ground Ten: Whether the untruthful testimony that petitioner had committed domestic violence in the past denied petitioner a fair trial?

11. Ground Eleven: Whether the prosecutor's statement that he needed to talk to the "victim advocate" indicate his opinion as to petitioner's guilt?

12. Ground Twelve: Cumulative error.

Dkt. 1-1 at 1-4.

B. EXHAUSTION

Respondent concedes that petitioner properly exhausted grounds 1 (subpart 2), 3 (subpart 2) 6 and 9. Dkt. 9 at 5. Respondent argues...