Brown v. Boe

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

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9 RESHAUD TODD BROWN, CASE NO. C19-1977-JCC

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Petitioner, ORDER

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12 JERI BOE,

13 Respondent.

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15 This matter comes before the Court on Petitioner Reshaud Todd Brown’s objections

16 (Dkt. No. 23), including supplementation (Dkt. No. 24), to the report and recommendation

17 (“R&R”) of the Honorable Michelle L. Peterson, United States Magistrate Judge (Dkt. No. 16),

18 and Mr. Brown’s motion for leave to file overlength briefs (Dkt. No. 25). Having thoroughly

19 considered Mr. Brown’s objections and the relevant record, the Court hereby finds oral argument

20 unnecessary and OVERRULES Mr. Brown’s objections, APPROVES and ADOPTS the R&R,

21 DENIES the petition for a writ of habeas corpus, DISMISSES the case with prejudice, and

22 GRANTS Mr. Brown leave to file overlength briefs for the reasons explained herein.

23 I. BACKGROUND

24 Judge Peterson’s R&R sets forth the underlying facts of this case and the Court will not

25 repeat them here except as relevant. (See Dkt. No. 16 at 2–4.) Mr. Brown brought this 28 U.S.C.

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1 § 2254 habeas action to challenge his second-degree assault conviction.1 (See generally Dkt. No.

2 7.) Mr. Brown argued in his petition that (1) the trial court unreasonably violated due process in

3 failing to instruct the jury on third-degree assault as an inferior degree offense of second-degree

4 assault, (2) the Court of Appeals unreasonably found that the factual prong of the test for an

5 inferior third-degree assault instruction was not met by the evidence, (3) defense counsel was

6 ineffective in failing to request a third-degree assault instruction as an inferior degree offense to

7 second-degree assault, and (4) the Court of Appeals unreasonably conflated the sufficiency of the

8 evidence standard with the Strickland prejudice test in its opinion rejecting his ineffective

9 assistance of counsel claim. (Dkt. No. 7 at 5, 7, 8, 10.) Judge Peterson recommended the Court

10 deny Mr. Brown’s petition, dismiss his action with prejudice, and deny him issuance of a

11 certificate of appealability with respect to all claims. (Dkt. No. 16 at 17.) Following extensions

12 provided by the Court, Mr. Brown timely filed objections to Judge Peterson’s R&R (Dkt. Nos.

13 23, 24).

14 II. DISCUSSION

15 A. Legal Standard

16 State prisoners may collaterally attack their detention in federal court if they are being

17 held in violation of the Constitution or laws and treaties of the United States. 28 U.S.C.

18 § 2254(a). Under the standards imposed by the Antiterrorism and Effective Death Penalty Act of

19 1996, a federal court may grant a habeas corpus petition with respect to any claim adjudicated on

20 the merits in state court only if the state court’s decision (1) “was contrary to, or involved an

21 unreasonable application of, clearly established federal law, as determined by the Supreme

22 Court” or (2) “was based on an unreasonable determination of the facts in light of the evidence

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24 1 Mr. Brown indicates that he submitted a separate § 2554 petition challenging the

imposition of a mandatory life sentence pursuant to Washington’s Persistent Offender

25 Accountability Act. (See Dkt. No. 7 at 12.) Judge Peterson’s R&R did not address this issue and

it is not the subject of the objections presently before the Court. (See generally Dkt. Nos. 16, 23,

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1 presented in the state court proceedings.” 28 U.S.C. § 2254(d). The court may find constitutional

2 error only if the state court’s conclusion was “more than incorrect or erroneous. The state court’s

3 application of clearly established law must be objectively unreasonable.” Lockyer v. Andrade,

4 538 U.S. 63, 75 (2005) (internal citations omitted). A federal court may not overturn state court

5 findings of fact “absent clear and convincing evidence” that they are “objectively unreasonable.”

6 Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). A petitioner carries the burden of proof and the

7 Court is “limited to the record before the state court that adjudicated the claim[s] on the merits.”

8 Cullen v. Pinholster, 563 U.S. 170, 181 (2011). This is a “highly deferential standard for

9 evaluating state-court rulings, which demands that state-court decisions be given the benefit of

10 the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal citations

11 omitted). Even if the Court finds constitutional error, a habeas petitioner is not entitled to relief

12 unless the error had a “substantial and injurious effect or influence on the” factfinder. Fry v.

13 Pliler, 551 U.S. 112, 121 (2007) (extending Brecht v. Abrahamson, 507 U.S. 619 (1993), to a

14 federal court’s collateral review of a state-court criminal judgment on a habeas petition).

15 B. Petitioner’s Objections

16 District courts review de novo those portions of an R&R to which a party properly

17 objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Specific objections are required to

18 enable the district court to “focus attention on those issues—factual and legal—that are at the

19 heart of the parties’ dispute.” Thomas v. Arn, 474 U.S. 140, 147 (1985). Here, Mr. Brown lodged

20 a number of general objections to Judge Peterson’s R&R, which the Court will not address.2 See

21 Ali v. Grounds, 236 F. Supp. 3d 1241, 1249 (S.D. Cal. 2017) (citing Goney v. Clark, 749 F.2d 5,

22 7 (3d Cir. 1984) (general objections have the same effect as no objection at all since they do not

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24 2 Mr. Brown’s general objections include the following: objection to “‘all’ of the

Magistrate’s factual and/or legal findings,” objection to “the Magistrate’s characterization of

25 Petitioner’s assertion” regarding “‘various pieces of evidence in the record,’” and finally the

objection to Judge Peterson’s overall conclusion recommending dismissal of the petition. (Dkt.

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No. 23 at 1, 17.)

1 focus the Court’s attention on any specific issues for review)). He also lodged the following

2 specific objections: (1) Judge Peterson erroneously determined that it was not objectively

3 unreasonable for the Washington Court of Appeals to hold that Mr. Brown failed to establish the

4 factual prong for an inferior third-degree assault instruction, (2) Judge Peterson was incorrect in

5 concluding that Mr. Brown was not prejudiced by counsel’s failure to request an inferior degree

6 instruction, and (3) Judge Peterson’s unlawfully concluded that no certificate of appealability

7 need be issued here.

8 1. Inferior Degree Instruction

9 Under Washington law, a jury instruction on a lesser-degree offense is appropriate when,

10 “(1) the statutes for both the charged offense and the proposed inferior degree offense ‘proscribe

11 but one offense;’ (2) the information charges an offense that is divided into degrees, and the

12 proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the

13 defendant committed only the inferior offense.” State v. Peterson, 948 P.2d 381 (Wash. 1997)

14 (citing State v. Foster, 589 P.2d 789, 794 (Wash. 1979); State v. Daniels, 784 P.2d 579, 582

15 (Wash. App. 1990)). Mr. Brown argues that an inferior degree instruction, for third-degree

16 assault, should have been provided to the jury and that it was objectively unreasonable for the

17 Washington Court of Appeals to determine that that factual prong requiring the instruction had

18 not been established. (Dkt. Nos. 23 at 2–18, 24 at 1–3.) The Court disagrees.

19 As a threshold matter, the Court notes that for it to award § 2254 habeas relief based upon

20 the trial court’s failure to provide the desired jury instruction, as a matter of state law, the

21 resulting error must have “so infected the entire trial that the resulting conviction violates due

22 process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). Mr. Brown’s burden is “especially

23 heavy” in that “[a]n omission, or an incomplete instruction is less likely to be prejudicial than a

24 misstatement of the law.” Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

25 As Judge Peterson noted, and this Court agrees, “none of the independent pieces of

26 evidence cited in [Mr. Brown’s] materials undermine the Court of Appeals’ conclusion that the

1 evidence did not show [Mr. Brown] committed only the inferior degree offense of third-degree

2 assault to the exclusion of the greater offense of second-degree assault.” (Dkt. No. 16 at 11

3 (emphasis in original).) Therefore, it was not an unreasonable determination of the facts for the

4 Court of Appeals to conclude that the inferior degree instruction was not required. See State v.

5 Brown, 5 Wash. App. 2d 1037, slip op. at 4 (Wash. App. 2018). Accordingly, Mr. Brown fails to

6 meet his burden to demonstrate that he is entitled to § 2254 habeas relief on the basis of a Due

7 Process violation.

8 Mr. Brown also takes issue with Judge Peterson’s recommendation on his ineffective

9 assistance of counsel claim, as it relates to the failure to argue for a lesser-degree instruction. The

10 Sixth Amendment guarantees a criminal defendant the right to effective assistance of counsel.

11 Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts evaluate claims of ineffective

12 assistance of counsel under the two-prong test set forth in Strickland. Under that test, a petitioner

13 must prove that (1) counsel’s performance fell below an objective standard of reasonableness

14 and (2) a reasonable probability exists that, but for counsel’s error, the result of the proceedings

15 would have been different. Id. at 687–94.

16 Mr. Brown argues that counsel’s performance at trial was ineffective in that counsel

17 asked for a lesser-included offense instruction, rather than a lesser-degree instruction for third-

18 degree assault. (Dkt. No. 23 at 18–19.) But even if the Court of Appeals’ legal decision on the

19 issue is not entitled to deference here, its factual determination is. And on this basis, Mr.

20 Brown’s § 2254 claim fails. He has not shown that he presented sufficient evidence to establish

21 the factual prerequisite for a lesser-degree instruction, as described above. Accordingly, he

22 cannot meet the second prong under Strickland to establish ineffective assistance of counsel.

23 2. Certificate of Appealability

24 A petitioner may appeal a district court’s dismissal of his federal habeas petition only

25 after obtaining a certificate of appealability (“COA”) from a district or circuit judge. A COA

26 may issue only where a petitioner has made a “substantial showing of the denial of a

1 constitutional right.” 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard “by

2 demonstrating that jurists of reason could disagree with the district court’s resolution of his

3 constitutional claims or that jurists could conclude issues presented are adequate to deserve

4 encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Here, the

5 Court agrees with Judge Peterson’s recommendation. Mr. Brown has not demonstrated that

6 reasonable jurists could conclude the issues presented deserve encouragement to proceed further

7 and, accordingly, there is no basis to grant a COA.

8 C. Motion for Leave to File Overlength Briefs

9 Objections to an R&R ordinarily shall not exceed 12 pages. W.D. Wash. Local Civ. R.

10 72. However, Mr. Brown moved for leave to file briefs totaling 23 pages. (Dkt. No. 25.) While

11 the additional pages were not necessary to adequately present his objections, given that he is

12 proceeding pro se in this matter, the Court finds cause to grant leave for the additional pages

13 sought by Mr. Brown.

14 III. CONCLUSION

15 For the foregoing reasons, the Court hereby FINDS and ORDERS as follows:

16 1. Petitioner’s objections (Dkt. Nos. 23, 24) to the R&R are OVERRULED;

17 2. The Court APPROVES and ADOPTS the R&R (Dkt. No. 16);

18 3. The habeas petition (Dkt. No. 7) and this action are DISMISSED with prejudice;

19 4. Petitioner is DENIED issuance of a certificate of appealability on all claims;

20 5. Petitioner’s motion for leave to file overlength briefs (Dkt. No. 25) is GRANTED;

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22 6. The Clerk is DIRECTED to send copies of this order to the parties and to Judge

23 Peterson.

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1 DATED this 15th day of March 2021.

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John C. Coughenour

5 UNITED STATES DISTRICT JUDGE

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