Tricomo v. Cotton

• Docket Number: 3:21-cv-05792-DGE-DWC
• Decision Date: 08 April 2022
• Parties: LIA YEAR TRICOMO, Petitioner, v. JENEVA COTTON, Respondent.
• Court: U.S. District Court — Western District of Washington

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LIA YEAR TRICOMO, Petitioner, v. JENEVA COTTON, Respondent.

No. 3:21-cv-05792-DGE-DWC

United States District Court, W.D. Washington, Tacoma

April 8, 2022

NOTED FOR: April 29, 2022

REPORT AND RECOMMENDATION

David W. Christel United States Magistrate Judge

Before the Court is Petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”). Dkt. 1. The Petition contains three grounds for relief. Id. at 5, 7-8. As discussed below, it is recommended that an evidentiary hearing be held on claim 1. It is further recommended that claims 2 and 3 be denied and that a certificate of appealability be denied on these claims. Finally, if this Report and Recommendation is adopted, the undersigned recommends consideration of appointment of counsel as provided herein.

BACKGROUND

I. State Court

The Court takes the following background partly from the opinions of Division Two of the Court of Appeals of Washington (“state court of appeals”) affirming Petitioner's conviction on direct appeal and denying her personal restraint petition (“PRP”). State v Tricomo, 193 Wash.App. 1037 (2016) [“Tricomo I”]; Matter of Tricomo, 13 Wash.App. 2d 223 (2020) [“Tricomo II”]. Because Petitioner has not challenged these findings, the Court may rely on them to rule on the Petition. See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) (citations omitted).

“In late March 2013, [Petitioner] attempted suicide and was admitted to a hospital. As part of her treatment, her doctor prescribed her Paxil, an antidepressant.” Tricomo, 13 Wash.App. 2d at 228. “At a follow-up medical appointment on April 3, her Paxil prescription was renewed.” Id. “She saw her therapist the next day, who encouraged her to stay on her antidepressants.” Id.

“On April 29, [Petitioner] brought some of her belongings to the home of her former counselor, John Alkins, to move in with him.” Id. “[Petitioner] and Alkins drank vodka together.” Id. “They had a sexual encounter in his home.” Id. “During this sexual encounter, [Petitioner] attempted to tie him up with a rope, but he stated he did not like it, so she untied him.” Id. “After untying Alkins [Petitioner] grabbed a razor blade knife she had hidden in the bedroom, and she slit his throat approximately six times.” Id. at 228-29. “Alkins walked around his house for several hours trying to stop the bleeding.” Id. at 229. “[Petitioner] followed him throughout the house to ensure he would not leave.” Id. “There was a struggle for the razor blade knife at the front door, and Alkins's wrist was cut during this struggle.” Id. “Alkins then went back upstairs.” Id. “[Petitioner] strangled Alkins with an extension cord killing him.” Id.

“The next day, [Petitioner] was arrested, and she confessed to the police.” Id. “During her interview with the police, [Petitioner] mentioned the negative effect of her medication.” Id. “Later, when [Petitioner] was in jail prior to trial, a psychiatric note said, ‘Paxil, made her want to kill people, had horrible withdrawal,' and the Paxil was discontinued.” Id.

“The State originally charged [Petitioner] with first degree attempted murder and first degree murder, but the State amended the information on November 6, 2014 as part of the plea agreement.” Id. at 229 n.1. In the amended information, “[t]he State charged [Petitioner] . . . with second degree murder, three counts of second degree assault, and second degree taking a motor vehicle without the owner's permission.” Id. at 229. “The three counts of second degree assault were based on [Petitioner's] use of a razor blade knife to inflict neck wounds, use of a razor blade knife to inflict facial wounds, and use of a razor blade knife to inflict hand wounds.” Id. “[Petitioner] pleaded guilty to the amended information.” Id.

“For the second degree murder count, the parties agreed on a standard range sentence of 257 to 357 months.” Id. “The plea agreement stated that while the State was going to recommend 357 months on the second degree murder count, the defense [was] free to argue for a lesser sentence . . .” Id. (alteration adopted) (internal quotation marks omitted). “The State's sentencing memorandum provided [that], [p]ursuant to plea agreement, [Petitioner could] argue for no less than 257 months prison which [was] the low end of the standard range.” Id. at 230 (internal quotation marks omitted).

“At the plea hearing, the trial court informed [Petitioner] that the applicable maximum term of confinement for the second degree murder charge was a life sentence, the standard range of actual confinement was 257 to 357 months, and the State would recommend a sentence of 357 months.” Tricomo I, 193 Wash.App. 1037, at *1 (internal quotation marks omitted). “[W]hen discussing that the State would recommend 357 months, the court addressed [Petitioner] and said, ‘And you understand that you are not agreeing that that is what the court should order and that, in fact, defense counsel will be able to argue that the court should impose a lesser sentence on your behalf.'” Tricomo II, 13 Wash.App 2d at 230 (alteration adopted). “[Petitioner] confirmed that she understood the parameters of her plea agreement as explained by the trial court.” Id.

“Before the sentencing hearing, both [Petitioner] and the State filed sentencing briefs.” Id. “In her brief, [Petitioner] asked the court to consider expert Dhyana Fernandez's mitigation report and the reports of Dr. David Dixon and Dr. Delton Young.” Id. “All three experts discussed the effects that the use and withdrawal from Paxil may have had on [Petitioner's] ability to form intent at the time of the crime.” Id.

“Dixon, the defense expert, and Young, the State's expert, reached contradictory conclusions regarding Paxil's effects on [Petitioner's] mental state.” Id. “Prior to pleading guilty, [Petitioner] was evaluated for diminished capacity by Dixon, a psychologist.” Id. “Dixon discussed Paxil in his report and concluded, ‘Use of and withdrawal from Paxil at the time of the alleged crime may have diminished her ability to form intent, a requisite mental state.' Paxil withdrawal exacerbated her mood disorder into a manic state with psychosis.” Id.

“The State's expert, Young, also conducted a forensic psychological evaluation.” Id. “He disagreed with Dixon about Paxil stating, ‘There was no withdrawal: she was taking the medication every day (including on April 29th) as prescribed. It is possible that the medication generated aversive side effects (e.g., feeling “nothing”); but it is more likely that the psychotic symptoms stemmed from alcohol abuse in a psychologically vulnerable individual.'” Id. at 23031 (alteration adopted).

“Fernandez wrote a mitigation report for sentencing, which included a section on Paxil.” Id. at 231. “Fernandez cited to several peer reviewed journal articles and articles from web-based sources, but the report contained no analysis.” Id. “The State objected to Fernandez's report because it did not believe Fernandez was qualified to opine about the effects of Paxil.” Id.

“At sentencing, the court said it would not consider the section on Paxil in Fernandez's report.” Id. “The court reasoned that it did not ‘find that Fernandez has any expertise in that particular area and she basically only sets forth a number of articles suggesting that they may have some relevance.'” Id. (alteration adopted). “However, the trial court did consider the expert reports from Young and Dixon, and it noted that ‘the doctors reference Paxil, both doctors, and the adverse side effects of this medication.'” Id.

“The State asked the court to sentence [Petitioner] ¶ 357 months and defense counsel asked the court to sentence [Petitioner] ¶ 257 months.” Id. “The court imposed the top of the standard range-357 months-for the murder conviction, with the other counts to run concurrently.” Id.

“[Petitioner] appealed her convictions and sentence, arguing that her convictions violated double jeopardy, that her guilty plea was not voluntary, and that the trial court erred in refusing to consider the portion of Fernandez's report regarding Paxil.” Id. (citation omitted); see also Tricomo I, 193 Wash.App. 1037, at * 6.

“On January 2, 2018, [Petitioner] filed a timely pro se PRP, arguing double jeopardy, ineffective assistance of counsel, and prosecutorial misconduct at the plea stage and trial court error for failure to consider the effects of Paxil on her mental state in rendering its sentencing decision.” Tricomo II, 13 Wash.App. 2d at 232; Dkt. 15-1 at 238.^[1] Petitioner subsequently obtained counsel who filed a supplemental PRP and reply on December 31, 2018.” Tricomo II, 13 Wash.App. 2d at 232; Dkt. 15-2 at 2. “In the supplemental PRP, [Petitioner] raised the new claim that she was deprived of effective assistance of counsel because trial counsel failed to obtain an appropriate expert on the effects of Paxil.” Tricomo II, 13 Wash.App. 2d at 232. “She argued that due to her counsel's failure to obtain a qualified expert, the trial court never received accurate information about Paxil's effects on her mental state, causing the court to sentence her to the high end of the standard range.” Id. “The supplemental PRP also contained [Petitioner's] reply in support of her timely raised argument that the trial court erred in declining to consider the effects of Paxil at sentencing.” Id.

“A commissioner of [the state court of appeals] accepted the supplemental petition for filing and ruled that [the state court of appeals] would decide whether to review the untimely claim when [it] address[ed] the merits of the timely filed pro se PRP.” Id.

The state court of appeals denied the PRP. Id. at 251. It concluded that “[t]he issue raised in [Petitioner's] supplemental petition [was] t...