Simmons v. Blodgett

• Decision Date: 10 January 1996
• Docket Number: No. C90-1751Z.,C90-1751Z.
• Citation: 910 F. Supp. 1519
• Parties: David F. SIMMONS, Petitioner, v. James BLODGETT, Superintendent, Respondent.
• Court: U.S. District Court — Western District of Washington

910 F. Supp. 1519

David F. SIMMONS, Petitioner, v. James BLODGETT, Superintendent, Respondent.

No. C90-1751Z.

United States District Court, W.D. Washington, Northern Division.

January 10, 1996.

COPYRIGHT MATERIAL OMITTED

Jonathan Stuart Solovy, Bell, O'Connor, Flegenheimer & Leong, Seattle WA, for Petitioner.

Paul Douglas Weisser, Thomas J. Young, Attorney General's Office, Corrections Division, Olympia WA, for Respondent.

ORDER

ZILLY, District Judge.

This is an extraordinary case. The petitioner has been imprisoned for more than eleven years based on a conviction that may well have been constitutionally deficient. His sole claim for habeas relief¹ rests on the admission by one juror, made eight years after trial, that prior to and during the trial she read numerous newspaper articles about the case, some of which contained prejudicial information that had been excluded from evidence. The problem is that this particular juror suffers from mild to moderate senile dementia, has impaired cognitive function as a result of brain surgery performed after the trial, is vulnerable to suggestion, and has given conflicting testimony under oath about whether she read the newspaper articles during trial. Because of the juror's condition, no one may ever know for certain whether she read the newspaper articles in question at the time they were printed. The only certainty in this case is that some of the information in those articles was extremely prejudicial and, therefore, if she did in fact read the articles, the petitioner would be entitled to habeas relief.

The state court found, after a full and fair hearing on the issue, that petitioner failed to establish by a preponderance of the evidence that the juror read the newspaper articles during trial. Because this Court is bound by the state court's findings of fact and must presume them to be correct, this Court cannot find that constitutional error occurred and cannot grant habeas relief.

I. Background

More than eleven years ago, on October 19, 1984, petitioner was convicted of two counts of aggravated murder in the first degree and one count of conspiracy to commit murder. During jury deliberations, while the jurors were discussing the possible motive for the crime, one of the jurors, Iris Leverington, commented, "well, that's not the way it was in the newspaper." The jury foreman immediately sent the trial judge a note stating that "one of the jurors read a newspaper." Before the judge could respond to the note, however, the jury reached a verdict. After the verdict, the trial judge questioned the jury foreman and Ms. Leverington. Leverington admitted she read one newspaper article, which contained photographs of the lawyers and some biographical information. She also stated that the article reported that defendant Simmons and his co-defendant Dailey had "raided a marijuana farm or something." The newspaper article that Leverington admitted to reading, however, contained no information about a marijuana farm. The trial judge, noting that evidence of the marijuana drug operation was admitted at trial, concluded that Ms. Leverington confused what she read in the newspaper with what she had heard at trial, and denied the defendants' motion for a new trial.

In his pro se state court appeals and initial habeas petition to this Court, petitioner alleged jury misconduct based on Leverington's conduct. In each case, the petitioner was denied relief. On appeal from denial of his initial habeas petition, the Ninth Circuit Court of Appeals appointed counsel for Mr. Simmons, who then hired a private investigator. In September 1992, the private investigator interviewed Ms. Leverington at her home. Ms. Leverington had had brain surgery since the trial and was somewhat impaired, but appeared competent to the investigator. Leverington told the investigator that prior to and during the trial she had read numerous Everett Herald articles about the case, and used them during the trial to clarify the testimony she heard in the courtroom. Astonishingly, Leverington also told the investigator that she had cut out and saved all of the articles about the trial. Leverington then gave the investigator the twenty articles she had saved, and signed an affidavit attesting to what she had told the investigator.

Armed with this new evidence, petitioner moved to enlarge the record to supplement his jury misconduct claim with the affidavit, investigator's report, and newspaper articles saved by the juror. On March 12, 1993, the Ninth Circuit remanded this case to this Court to consider petitioner's motion to enlarge the record. The Ninth Circuit also directed this Court to "consider whether state court remedies have been exhausted, and, if not, what further action if any should be taken as a result thereof."

By Minute Order entered September 15, 1993, docket no. 53, the Court granted the petitioner's motion to enlarge the record and scheduled oral argument on the issue of whether Simmons's state court remedies as to his juror misconduct claim had been exhausted. After hearing argument, the Court ruled that the newly discovered evidence presented by Petitioner placed his claim of jury misconduct "in a significantly different and stronger evidentiary posture than it was when the state courts considered it." See Order entered October 1, 1993, docket no. 55, at 2 (quoting Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir.1988)). As a result, the Court held that the state courts must be given an opportunity to consider the newly discovered evidence, and Petitioner had not exhausted his state court remedies. The Court stayed the case, rather than dismiss it, citing the "magnitude of petitioner's constitutional claim." Finally, the Court ordered the parties to file status reports every six months to apprise the Court of the status of the state court proceedings, and "reserved the right to lift the stay in the future in the event the petitioner's claims before the state court do not proceed in a timely manner." Id.

On October 26, 1993, Simmons filed in the Snohomish County Superior Court, before Judge Gerald Knight, the original trial judge, a motion for relief from judgment. After holding an evidentiary hearing in September 1994,² Judge Knight denied Simmons's motion for relief from judgment, making findings in open court. Subsequently, on February 15, 1995, after Simmons had filed his Notice of Appeal, Judge Knight entered written Findings of Fact and Conclusions of Law denying Simmons's motion for relief.

Judge Knight found that Leverington has, and had at the time she was interviewed by the investigator, frontal lobe dysfunction, and fairly significant impairment in cognitive functioning, memory, and comprehension. She is also very vulnerable to suggestion and hard of hearing. As a result, she was "marginally competent to testify as a witness." See Findings and Conclusions dated February 15, 1995, Ex. 6 to Petitioner's Motion for Summary Judgment. Judge Knight found that Leverington gave conflicting testimony at the hearing: sometimes she testified that she had read the newspaper articles during the trial; at other times, she testified that she had read only one article. Based on all the evidence presented, the trial judge made the following findings:

12. On considering all the evidence and the demeanor of the witness, the court cannot find by a preponderance of the evidence that Ms. Leverington committed misconduct as a juror (other than the misconduct that she admitted in 1984).

13. The Court cannot find by a preponderance of the evidence that Ms. Leverington did or did not read the newspaper articles during the trial (other than the article she admitted to reading during her post-verdict in camera testimony).

14. The court finds Ms. Leverington cut out newspapers articles, but makes no finding as to when she cut out the newspaper articles.

Id. at Findings 12-14. Because the petitioner failed to satisfy his burden to prove that Leverington committed the misconduct at issue, the trial court denied Simmons's motion for relief from judgment of conviction. Simmons appealed the judge's ruling to the state court of appeals, where it is still pending.

On May 1, 1995, Simmons filed in this Court a motion to lift stay of habeas corpus proceedings, for evidentiary hearing, and for writ of habeas corpus. At a status conference on July 7, 1995, the Court lifted the stay, citing the length of time that Mr. Simmons had been incarcerated and the strength of his constitutional claim.

The parties have now filed their cross-motions for summary judgment. The Court heard argument from counsel on December 20, 1995, and took the matter under advisement.

II. Exhaustion of State Remedies

As a preliminary matter, this Court must determine whether it should consider Mr. Simmons's habeas petition prior to exhaustion of his state appeals. The general rule is that a state prisoner must exhaust all available state remedies before a federal court may consider the merits of his habeas petition. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 516, 102 S.Ct. 1198, 1202, 71 L.Ed.2d 379 (1982). In order to satisfy the exhaustion requirement, the petitioner must fairly present his claims to the highest state court. Duncan v. Henry, ___ U.S. ___, ___, 115 S.Ct. 887, 888, 130 L.Ed.2d 865 (1995) (per curiam).

The exhaustion requirement is not jurisdictional. Hendricks v. Zenon, 993 F.2d 664, 672 (9th Cir.1993), amended, (9th Cir. 1993). It is essentially a matter of federalism and comity, and federal courts have the discretion to dispense with the rule "in rare cases where exceptional circumstances of peculiar urgency are shown to exist." Id. (quoting Granberry v. Greer, 481 U.S. 129, 134, 107 S.Ct. 1671, 1675, 95 L.Ed.2d 119 (1987)).

Under 28 U.S.C. § 2254(b), the federal courts need not defer to the state judicial process when no appropriate remedy exists at the state level or when there are circumstances rendering...