Sao v. Obenland

• Decision Date: 03 September 2014
• Docket Number: CASE NO. C13-5960 RBL-JRC
• Court: U.S. District Court — Western District of Washington
• Parties: FRANCISCO SAO, Petitioner, v. MIKE OBENLAND, Respondent.

FRANCISCO SAO, Petitioner, v. MIKE OBENLAND, Respondent.

CASE NO. C13-5960 RBL-JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

NOTED FOR: SEPTEMBER 26, 2014

September 3, 2014

REPORT AND RECOMMENDATION

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

Petitioner presents the Court with seven grounds for relief in his petition (Dkt. 13). The Court considered three of the grounds on the merits and finds that petitioner fails to show a violation of clearly established federal law as required by 28 U.S.C. § 2254 (d)(1). The Court finds petitioner's remaining grounds for relief are procedurally barred because he did not present them at every level of review in state court. The Court recommends that the petition be denied.

BASIS FOR CUSTODY AND FACTS

Petitioner is in custody pursuant to a Pierce County conviction and sentence. A jury found petitioner guilty of second degree felony murder and tampering with a witness (Dkt. 20, Exhibit 1). The jury found aggravating factors by special interrogatory and the trial court imposed an exceptional sentence of 600 months (id.). The jury also convicted petitioner of felony harassment, but the Washington State Court of Appeals reversed that conviction on collateral review because the evidence was insufficient (Dkt. 20, Exhibit 12).

The Washington State Court of Appeals set forth the facts surrounding petitioner's crimes as follows:

In July 2007, Francisco Bona Sao lived in an apartment with his girlfriend, Kathie Chung. They had two children together, L. and Trumane. At the time, L. was one year old and Trumane was three months old. Before Trumane's birth, Sao had a history of domestic violence against Chung and L. Sao and Chung also had a history of methamphetamine use: Chung, born ___, had used "off and on" since she was 14 years old. VI Verbatim Report of Proceedings (VRP) at 455. At Chung's invitation, Sao had begun "doing methamphetamine" after Trumane's birth. VI VRP at 456-57.

On July 25, 2007, Sao returned home from work, ate dinner, gave three month-old Trumane a bath, and then took Trumane into the bedroom to dress him. Although Sao had previously used methamphetamine [court's footnote. Sao had gotten "high the day before" and for a week-long period shortly before that. V VRP at 392.], he did not use it the night of July 25. But Chung believed Sao was having hallucinations that night because he appeared "moody, [and] angry," V VRP at 392, and he was "acting weird," looked at her "really weird," and "didn't look the same." VI VRP at 464-65. According to Chung, Sao was "coming down off of methamphetamines." V VRP at 392. At some point that evening, Sao and Chung had an argument, Sao threatened to "sock [Chung] and kick [her] in [her] face," V VRP at 398, and Sao retreated from the living room back to the bedroom, where Trumane was.

Sometime after Sao returned to the bedroom, Chung heard two "thumping noise[s]." V VRP at 403. She thought Sao was banging on or punching the wall. Later, she went into the bedroom and saw that Trumane "didn't look right," V VRP at 406: His stomach was "kind of swollen," V VRP at 408, his "lips were blue," his body felt "cold," and "he was having a hard time breathing." V VRP at 407-08. Sao initially explained that "[m]aybe the baby swallowed some water"

from the bath. V VRP at 408. But later that night he admitted to Chung that he had hit Trumane.

Chung wanted to take Trumane to the hospital, but Sao told her, "[N]o, not yet." V VRP at 409. Three or four more times that night, Chung suggested that they bring Trumane to the hospital, but each time Sao said, "No." V VRP at 421. When eventually Sao performed CPR on the infant, Trumane's breathing improved somewhat, but his condition ultimately worsened. While Chung ran to the car to take Trumane to the hospital, a neighbor intervened and called paramedics. Another neighbor came and gave the infant CPR. Sao fled, saying that there was a warrant out for his arrest. Before leaving, Sao told Chung, "Don't say nothing." V VRP at 420.

Paramedic Travis Smith found that Trumane was not breathing and had no pulse. Smith and other emergency responders began emergency treatment. When he began CPR, Smith discovered that "every rib below [Trumane's] armpit . . . was broken in half," injuries that were inconsistent with mere CPR. IV VRP at 208. Smith also noticed bruising on Trumane's belly around the belly button. Despite the emergency workers' efforts, they were unable to restart Trumane's breathing or to establish a pulse. Paramedics transported Trumane by ambulance to nearby St. Clare Hospital, where he was pronounced dead shortly after.

Pierce County Medical Examiner Dr. Eric Leon Kiesel conducted an autopsy. He confirmed that many of Trumane's ribs were fractured and that CPR had not caused the fractures. Dr. Kiesel also found that Trumane's stomach and liver had been lacerated in several places by "blunt force trauma." VIII VRP at 726. Dr. Kiesel discovered bruises on Trumane's abdomen "consistent with bruises that would be caused by a hand." VIII VRP at 721. These findings led Dr. Kiesel to conclude that "blunt force trauma of the abdomen" had caused Trumane's death. VIII VRP at 741.

After Trumane's death, but before fleeing to California approximately two days later, Sao met with his cousin Pawn Tekkathook. Sao told Tekkathook he was worried that Chung might contact the police and "set[ ] him up" for the murder. V VRP at 346. Sao asked if he could borrow Tekkathook's handgun, RP at 351, "to go pop [Chung] and take his daughter [L]." V VRP at 356. Tekkathook understood the phrase "pop" to mean "kill." V VRP at 356. Sao also said that he "wanted to kill the family," referring to Chung's family. V VRP at 357. Tekkathook refused to lend Sao the handgun. When Sao then offered to buy the gun for $400, Tekkathook again refused.

Police later arrested Sao in Stockton, California. Lakewood Police Detective Brent James Eggleston traveled to California to interview him. Eggleston advised Sao of his Miranda [footnote omitted] rights. Over the course of the interview, Sao eventually admitted that he had (1) spanked Trumane "real, real hard" in the bedroom, VII VRP at 661-62; (2) "punched [Trumane] one time in the stomach . . . not on purpose, it was an accident," VII VRP at 662; (3) looked at Trumane and then "punched him . . . with his right hand . . . [with] full force . . . as hard as he could . . . in the middle of his stomach" as he was yelling at Chung through the bedroom walls,

VII VRP at 664; and (4) hit Trumane "probably three times, full, hard blows . . . as hard as [he could]." VII VRP at 667.

When Eggleston asked Sao if this was the reason that he had refused to take Trumane to the hospital, Sao replied, "[B]ecause I did it, yeah . . . [as well as] because of the warrants that [I] had." VII VRP at 665. When Eggleston asked Sao why he had acted this way, Sao stated, "[I]t was because of the stress from ... [Chung]." VII VRP at 668. During this interview, Sao never claimed that he thought he had been hallucinating or that he thought he was striking the family dog when he struck Trumane. Sao was transferred back to Washington.

While Sao was in the Pierce County Jail, Eggleston learned about numerous recordings of jail phone conversations between Sao and Chung and obtained a warrant for copies of these recordings. In one phone call, Sao and Chung had agreed that "they were caught up with the wrong drug at the wrong time" and that Sao "didn't think that it would take over him, but that day it did take over him, and made him snap." IX VRP at 795. During another conversation, Sao apparently tried to induce Chung to testify falsely or to withhold relevant information from law enforcement agencies.

(Dkt. 20, Exhibit 2 pp. 2-5). The jury convicted petitioner of second degree felony murder and witness tampering and by special interrogatories found aggravating factors (Dkt. 20, Exhibit 1). The trial court sentenced petitioner to 600 months incarceration.

PROCEDURAL HISTORY

Petitioner filed a direct appeal raising the following six issues:

1. Defense counsel was ineffective for failing to propose an instruction holding the State to its burden to disprove diminished capacity beyond a reasonable doubt.

2. The trial court erred in failing to instruct the jurors regarding the constitutional presumption to be applied in determining whether aggravating circumstances had been proven.

3. The trial court erred in failing to instruct the jurors that they could not consider facts they relied upon in reaching their verdict on the underlying offense in deciding the existence of aggravating circumstances.

4. The statutory provisions on the "particularly vulnerability" aggravator is unconstitutionally vague, in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States.

5. The exceptional sentence imposed by the trial court was "clearly excessive."

6. Cumulative instructional error denied Mr. Sao a fair trial on the aggravating circumstances.

(Dkt. 20, Exhibit 4, p. 1). The Washington State Court of Appeals affirmed both the convictions and sentence (Dkt. 20, Exhibit 2). Petitioner filed a petition for discretionary review with the Washington State Supreme Court raising one issue:

Under the Sixth and Fourteenth Amendments to the United States Constitution and article 1, sections 21 and 22 of the Washington Constitution, the state must prove each essential element of the charged crime to a jury beyond a reasonable doubt. The corollary to the State's burden is the accused's constitutional right to be presumed innocent. Facts which increase the

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