Eggum v. Holbrook

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7 UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

8 AT SEATTLE

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10 MARLOW TODD EGGUM,

Civil Action No. 2:14-cv-1328-RAJ

11 Petitioner, ORDER ADOPTING REPORT AND

12 v. RECOMMENDATION

13 DONALD HOLBROOK,

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Respondent.

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16 This matter is before the Court on Petitioner’s (Dkt. # 154) and Respondent’s

17 (Dkt. # 161) Objections to the Honorable Mary Alice Theiler’s Report and

18 Recommendation partially granting Petitioner’s 28 U.S.C. § 2254 petition (Dkt. # 151).

19 Having thoroughly considered the parties’ briefing and the relevant record, the Court

20 hereby ADOPTS the Report and Recommendation. Petitioner’s habeas petition is

21 GRANTED as to his First Amendment challenge to Washington’s intimidating a public

22 servant statute and DENIED as to his remaining claims.

23 I. BACKGROUND

24 The factual background of this case is summarized in Judge Theiler’s Report and

25 Recommendation (the “Report”) and the Court will not repeat it in great detail here. See

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1 Dkt. # 151. Of particular relevance is Petitioner’s Second Amended Habeas Petition

2 (“SAP”) in which he raises seven grounds for relief. See generally Dkt. # 125. These

3 claims are summarized below:

4 SAP Ground 1: The First Amendment required the State to prove a “true

threat” of bodily harm or death to convict petitioner of intimidating a public

5 servant. Dkt. # 125 at 25–39.

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SAP Ground 2: Petitioner received ineffective assistance of appellate counsel

7 when his attorney failed to raise the meritorious “true threat” argument. Dkt. #

125 at 39–47.

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SAP Ground 3: Insufficient evidence exists to uphold the intimidating a public

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servant convictions because there is no evidence petitioner made a “true threat”

10 of bodily harm or death. Dkt. # 125 at 48–51.

11 SAP Ground 4: Numerous trial court evidentiary rulings prevented petitioner

from presenting his defense, in violation of due process. Dkt. # 125 at 51–54.

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SAP Ground 5: Petitioner’s prosecution for threatening to do something he had

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a legal right to do—distribute pornographic videos of Ms. Gray—violated his

14 right to due process. Dkt. # 125 at 54–55.

15 SAP Ground 6: The prosecutor constructively amended the information in

violation of petitioner’s due process rights. Dkt. # 125 at 55–57.

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17 SAP Ground 7: There is insufficient evidence to support petitioner’s conviction

for stalking Ms. Gray. Dkt. # 125 at 58–59.

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19 Judge Theiler’s Report and Recommendation recommends vacating Petitioner’s

20 two intimidating a public servant convictions on the grounds that the convictions violate

21 the First Amendment. See generally Dkt. # 151. The Report also recommends denying

22 Petitioner’s remaining claims but granting a certificate of appealability as to Petitioner’s

23 final claim that there was insufficient evidence to support his stalking conviction. Id.

24 II. LEGAL STANDARD

25 District courts review de novo those portions of a report and recommendation to

26 which a party objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Objections

1 are required to enable the district court to “focus attention on those issues—factual and

2 legal—that are at the heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147

3 (1985). General objections, or summaries of arguments previously presented, have the

4 same effect as no objection at all since the court’s attention is not focused on any specific

5 issues for review. See United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).

6 III. DISCUSSION

7 Respondent raises four primary objections to the Report and Recommendation: (1)

8 the Report misstated Black’s holding, (2) the Report misunderstood Black’s role in the

9 Washington Supreme Court’s adjudication of Petitioner’s as-applied challenge, (3) the

10 Report erroneously extended Black’s holding, and (4) the Report did not apply the

11 “objectively unreasonable” standard to its review of the Washington Supreme Court

12 decision. Separately, Petitioner objects to the Report’s rejection of his insufficient

13 evidence claim as to his stalking conviction. Respondent also objects to the Report’s

14 recommendation that a certificate of appealability be issued on this claim. The Court will

15 address Respondent’s objections first.

16 A. Respondent’s Objections

17 Petitioner is challenging his two convictions under Washington’s intimidating a

18 public servant statute. Under RCW 9A.76.180(1): “A person is guilty of intimidating a

19 public servant if, by use of a threat, he or she attempts to influence a public servant’s

20 vote, opinion, decision, or other official action as a public servant.” A threat is defined

21 as: “(a) To communicate, directly or indirectly, the intent immediately to use force

22 against any person who is present at the time; or (b) Threats as defined in RCW

23 9A.04.110.” RCW 9A.76.180(3). Under RCW 9A.04.110, the term “threat” is broadly

24 defined to include:

25 [T]o communicate, directly or indirectly, the intent:

26 (a) To cause bodily injury in the future to the person threatened or

1 to any other person; or

2 (b) To cause physical damage to the property of a person other than

the actor; or

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(c) To subject the person threatened or any other person to physical

4 confinement or restraint; or

5 (d) To accuse any person of a crime or cause criminal charges to

be instituted against any person; or

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(e) To expose a secret or publicize an asserted fact, whether true or

7 false, tending to subject any person to hatred, contempt, or ridicule;

or

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(f) To reveal any information sought to be concealed by the person

9 threatened; or

10 (g) To testify or provide information or withhold testimony or

information with respect to another’s legal claim or defense; or

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(h) To take wrongful action as an official against anyone or

12 anything, or wrongfully withhold official action, or cause such

13 action or withholding; or

(i) To bring about or continue a strike, boycott, or other similar

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collective action to obtain property which is not demanded or

15 received for the benefit of the group which the actor purports to

represent; or

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(j) To do any other act which is intended to harm substantially the

17 person threatened or another with respect to his or her health,

safety, business, financial condition, or personal relationships.

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19 RCW 9A.04.110(28). At Petitioner’s trial, the jury received the following instruction:

A person commits the crime of intimidating a public when he, by use of a

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threat, attempts to influence a public servant’s opinion, decision, or other

21 official action as a public servant.

22 *****

Threat means to communicate, directly or indirectly, the intent to cause

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bodily injury in the future to the person threatened or to any other person;

24 or to expose a secret or publicize an asserted fact, whether true or false,

tending to subject any person to hatred, contempt, or ridicule; or to reveal

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any information sought to be concealed by the person threatened; or to do

26 any other act that is intended to harm substantially the person threatened

1 or another with respect to that person’s health, safety, business, financial

condition, or personal relationships.

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To be a threat, a statement or act must occur in a context or under such

3 circumstances where a reasonable person, in the position of the speaker,

4 would foresee that the statement or act would be interpreted as a serious

expression of intention to carry out the threat rather than as something said

5 in jest, idle talk, or political argument.

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Dkt. # 125-5 at 10, 13. Petitioner was found guilty on both counts of intimidating a

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public servant. Dkt. # 125-5 at 42, 44.

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In his most recent personal restraint petition, Petitioner argued that he fell within

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an exception to the one-year time bar for personal restraint petitions because RCW

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9A.76.180 (incorporating the threat definition at RCW 9A.04.110(28)), is

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unconstitutional, both facially and as-applied to his conduct, under the First Amendment.

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See generally Dkt. # 125-10. 1 Specifically, Petitioner argued that the statute was

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unconstitutional as-applied to him because his convictions were premised on threats to

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“distribute videos, file a lawsuit, and/or pursue a bar complaint” which do not constitute

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unprotected “true threats” under Virginia v. Black. See Dkt. # 125-10 at 26. In response,

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the State argued that Petitioner’s as-applied challenge was meritless because states are

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permitted to regulate protected speech in certain circumstances. Dkt. # 125-10 at 80–81.

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The Washington Supreme Court rejected Petitioner’s as-applied challenge,

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holding:

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Mr. Eggum argues that he falls within the exemption [to the one-year

21 time bar] for convictions based on unconstitutional statutes. RCW

10.73.100(2). Specifically, he contends that the intimidation of a public

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official statute is unconstitutionally overbroad in that it allows

23 convictions for threats other than “true threats” to kill or cause physical

harm. See Elonis v. United States, 135 S. Ct. 2001, 2009, 192 L. Ed. 2d

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1 Petitioner asserted both a facial challenge and as-applied challenge. The Report and

Recommendation expressly declined to address Petitioner’s facial challenge, focusing on

26 the as-applied challenge.

1 1 (2015). Mr. Eggum’s convictions arose out of threats made to a

prosecutor and a community corrections officer that he would release

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pornographic videos of his former wife in her hometown unless the

3 public officials complied with his wishes.

4 As relevant here, the statute of conviction defines a “threat” to include

any act that communicates directly or indirectly, intent “[t]o expose a

5 secret or publicize an asserted fact, whether true or false, tending to

subject any person to hatred, contempt, or ridicule.” RCW

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9A.04.110(28)(e). Because Mr. Eggum fails to demonstrate that he did

7 not make a “serious expression” of intent to subject his former wife to

ridicule through publicizing the videos, he fails to show that the statute

8 was applied unconstitutionally to his convictions. See Virginia v. Black,

9 538 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). We also

find his facial challenge unavailing.

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Dkt. # 125-10 at 1–2. As a result, the Court held that Petitioner failed to show an

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exception to the one-year time bar and dismissed his personal restraint petition as

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untimely. Id. at 2.

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In his SAP, Petitioner argues that the Washington Supreme Court misapplied the

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“true threat” standard in Black when dismissing his as-applied challenge. Dkt. # 125 at

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30–31. The Report concurred, finding that “the Washington Supreme Court’s decision is

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contrary to clearly established Supreme Court precedent.” Dkt. # 151 at 18. Respondent

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objects and contends that the Report “misstated” and “erroneously extended” the holding

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in Black and the role that Black played in the Washington Supreme Court’s decision

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dismissing Petitioner’s as-applied challenge. Dkt. # 161 at 3–11.

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Under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) a habeas

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petition may be granted with respect to any claim adjudicated on the merits in state court

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if the state court’s decision was “contrary to” or involved an “unreasonable application

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of” clearly established federal law, as determined by the Supreme Court. 28 U.S.C. §

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2254(d)(1). A state court’s decision is “contrary to” clearly established federal law if: (1)

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the state court arrives at a conclusion opposite to that reached by the Supreme Court on a

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1 question of law, or (2) the state court decides a case differently than the Supreme Court

2 on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362, 405-

3 06 (2000). Under the “unreasonable application” clause, a federal habeas court may

4 grant the writ only if the state court identifies the correct governing legal principle from

5 the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the

6 petitioner’s case. See id. at 407–09. A state court’s decision may only be overturned if

7 the application is “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 69

8 (2003). “A state court’s determination that a claim lacks merit precludes federal habeas

9 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

10 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

11 Alvarado, 541 U.S. 652, 664 (2004)).

12 Clearly established federal law, for the purposes of the AEDPA, refers to “the

13 governing legal principle or principles set forth by the Supreme Court at the time the state

14 court render[ed] its decision.” Lockyer, 538 U.S. at 71-72. This includes the Supreme

15 Court’s holdings, not dicta. Id. “If no Supreme Court precedent creates clearly

16 established federal law relating to the legal issue the habeas petitioner raised in state

17 court, the state court’s decision cannot be contrary to or an unreasonable application of

18 clearly established federal law.” Brewer v. Hall, 378 F.3d 952, 955 (9th Cir. 2004)

19 (citing Dows v. Wood, 211 F.3d 480, 485–86 (9th Cir. 2000)). In considering claims

20 pursuant to § 2254(d), the Court is limited to the record before the state court that

21 adjudicated the claim on the merits, and the petitioner carries the burden of proof. Cullen

22 v. Pinholster, 563 U.S. 170, 181–82 (2011).

23 Here, the Washington Supreme Court clearly relied upon Black in dismissing

24 Petitioner’s as-applied challenge. But the substance of the citation is key—the decision

25 directly cited to Black’s definition of a “true threat.” See Dkt. # 125-10 at 1–2 (“Because

26 Mr. Eggum fails to demonstrate that he did not make a ‘serious expression’ of intent to

1 subject his former wife to ridicule through publicizing the videos, he fails to show that

2 the statute was applied unconstitutionally to his convictions. See Virginia v. Black, 538

3 U.S. 343, 359, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003)”). The problem is that the

4 Court based this conclusion on only one element of Black’s definition of a “true threat.”

5 The full quotation reads: “[t]rue threats are statements where the speaker means to

6 communicate a serious expression of an intent to commit an act of unlawful violence to a

7 particular individual or group of individuals.” Black, at 359 (emphasis added). Thus, the

8 Court’s determination that Petitioner’s convictions were permissible because Petitioner

9 made a “serious expression” of intent to ridicule his former wife was the result of a

10 mischaracterization of Black.

11 Respondent argues that the report and recommendation misinterpreted Black as

12 holding that only true threats could be prohibited. Because Black recognized that there

13 are other categories of low-value speech that may be constitutionally proscribed,

14 Respondent reasons, Petitioner’s convictions are not directly inconsistent with Black.

15 Dkt. # 161 at 9–11. This argument is misplaced. Although Respondent is correct that the

16 Supreme Court did not expressly prohibit the recognition of non-bodily threat

17 intimidation against public officials as a new category of protected speech, nothing in the

18 Washington Supreme Court’s decision suggests that the Court concluded that Petitioner’s

19 conduct qualified as a new category of low-value speech. Instead, the Court directly

20 relied on Black’s definition of a “true threat” to uphold Petitioner’s convictions. It is not

21 necessary to identify the outer limits of the Black holding to conclude that the

22 Washington Supreme Court’s decision was “contrary to” clearly established federal law.

23 The Washington Supreme Court misapplied Black in dismissing Petitioner’s as-applied

24 claim and de novo review is now appropriate.

25 Finally, Respondent objects to the Report’s supposed failure to apply the

26 “objectively unreasonable” standard. Dkt. # 161 at 12. Somewhat confusingly, however,

1 Respondent’s objection appears to be based on Petitioner’s facial challenge. Id. (“[T]he

2 R&R analysis on p. 15–18 is erroneous. It ignores the fact that, first of all, the state

3 court’s denial of the facial challenge did not cite to Black or any Supreme Court case

4 law.”). 2 But the Report expressly does not address Petitioner’s facial challenge, focusing

5 solely on the as-applied challenge. See Dkt. # 151 at 25 n.9 (“Given this conclusion, the

6 Court does not discuss petitioner’s facial challenge to the intimidating a public servant

7 statute.”). And the Washington Supreme Court very clearly did rely on Black in

8 dismissing Petitioner’s as-applied challenge. See Dkt. # 125-10 at 1–2. Thus, any

9 objections based on Petitioner’s facial challenge are misplaced. Dkt. # 151 at 14.

10 Moreover, with respect to Petitioner’s as-applied challenge, Court cannot conceive of

11 any interpretation of the Washington Supreme Court’s holding, objectively reasonable or

12 otherwise, that would be consistent with the Black decision. See Lockyer v. Andrade, 538

13 U.S. 63, 69 (2003); Harrington v. Richter, 562 U.S. 86, 101 (2011). The Court concurs

14 fully in the Report’s recommendation that RCW 9A.76.180 is unconstitutional as applied

15 to Petitioner’s convictions.

16 B. Petitioner’s Objections

17 Petitioner objects to the Report and Recommendation to the extent that it rejected

18 his claim that there was insufficient evidence to sustain his stalking conviction. See

19 generally Dkt. # 154. In the Report, Judge Theiler concluded that Petitioner’s claim

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21 2 Respondent raises this objection several times throughout the briefing. See e.g.,

Dkt. # 161 at 8 (“The state court denied Eggum’s facial challenge to the statute without

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holding that Black applies . . . The R&R misread the state court’s holding. As the state

23 court’s opinion, above, makes clear, the state court did not hold that Black’s holding

applied to Eggum’s case.”); Dkt. # 161 at 11 (“Again, contrary to the R&R’s erroneous

24 conclusion, the state court never stated that Black was controlling precedent and that

25 Eggum’s speech proscription was in any way regulated by Black. In fact, the state court

did not cite to any Supreme Court precedent in support of its rejection of Eggum’s facial

26 challenge.”).

1 failed because he did not properly exhaust the claim and it was procedurally defaulted.

2 See Dkt. # 151 at 29. Petitioner contends that the Report erred by focusing on whether

3 the State reasonably responded to Petitioner’s multiple filings in state court, rather than

4 whether Petitioner gave the state courts a “full and fair opportunity” to adjudicate his

5 claim. Dkt. # 154 at 2–3. Petitioner also claims that any procedural default was excused

6 by cause and prejudice. Id. at 5–7. The Court has reviewed the record de novo and

7 agrees that Petitioner did not properly exhaust this claim by “fairly presenting” it through

8 the “proper vehicle” and that cause and prejudice do not excuse the procedural default.

9 That said, the Court does not agree with Respondent that the Report erred in

10 granting a certificate of appealability as to this claim. See Dkt. # 161 at 15. A certificate

11 of appealability may issue only where a petitioner has made “a substantial showing of the

12 denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). A petitioner satisfies this

13 standard “by demonstrating that jurists of reason could disagree with the district court’s

14 resolution of his constitutional claims or that jurists could conclude the issues presented

15 are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

16 U.S. 322, 327 (2003). While the Court does not believe that Petitioner properly

17 exhausted this claim and it is now procedurally defaulted, Petitioner meets the standard to

18 justify a certificate of appealability.

19 C. Motion for Bail

20 As a final matter, the Court notes that on April 1, 2020, Petitioner filed a motion

21 for bail pending this Court’s final resolution of his § 2254 petition. Dkt. # 155.3

22 Because the standard for bail pending appeal of a habeas petition is different than the

23 standard for bail during the pendency of the district court proceedings, the Court cannot

24 consider it for the purposes of determining Plaintiff’s entitlement to release pending any

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3 Judge Theiler issued a report and recommendation recommending that Petitioner’s

26 motion be denied (Dkt. # 165) and Petitioner filed objections (Dkt. # 168).

1 eventual appeal. Thus, Petitioner’s motion is DENIED without prejudice to refiling if

2 this Court’s decision is appealed. The remaining related motions are TERMINATED as

3 moot. Dkt. ## 164, 168, 169, 171.

4 IV. CONCLUSION

5 The Court has reviewed the balance of the Report and Recommendation and finds

6 no error. For the foregoing reasons, the Court hereby finds and ORDERS as follows:

7 1. The Court ADOPTS the Report and Recommendation. Dkt. # 151.

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2. Petitioner’s objections to the Report and Recommendation are

9 OVERRULED. Dkt. # 154.

10 3. Respondent’s objections to the Report and Recommendation are

OVERRULED. Dkt. # 161.

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12 4. Petitioner’s Second Amended Habeas Petition is GRANTED as to SAP

Ground 1 and DENIED as to all other claims. Dkt. # 125.

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5. Petitioner’s convictions in Counts I and III are VACATED, and the State is

14 ORDERED to release petitioner unless he is resentenced on the remaining

convictions within 15 days of the date of this Order.

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16 6. Petitioner’s request for an evidentiary hearing is DENIED.

17 7. A certificate of appealability is GRANTED as to SAP Ground 7 and

DENIED as to all other claims. See 28 U.S.C. § 2253(c).

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19 The Clerk is directed to send copies of this Order to the parties and to Judge Theiler.

20 DATED this 18th day of June, 2020.

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The Honorable Richard A. Jones

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United States District Judge

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