Petition for Writ of Certiorari — Atif Ahmad Rafay, Petitioner v. Eric Jackson

Supreme Court briefDec 4, 2023

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No. 23-___

IN THE

ATIF AHMAD RAFAY,

Petitioner,

ERIC JACKSON,

Respondent.

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

SUPPLEMENTAL APPENDIX

Daniel Woofter

Counsel of Record

Kevin K. Russell

GOLDSTEIN, RUSSELL &

WOOFTER LLC

1701 Pennsylvania Ave. NW

Suite 200

Washington, DC 20006

(202) 362-0636

dw@goldsteinrussell.com

TABLE OF CONTENTS

___________________

Supplemental Appendix, Magistrate Judge’s

Report & Recommendation (Jan. 28, 2020) ........1a

APPENDIX A

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ATIF AHMAD RAFAY,

Petitioner,

Case No. C16-1215-RAJMAT

REPORT AND

MICHAEL OBENLAND, RECOMMENDATION

Respondent.

INTRUDUCTION AND SUMMARY CONCLUSION

Petitioner Atif Rafay is a Washington prisoner

who is currently confined at the Monroe Correctional

Complex. He seeks relief under 28 U.S.C. § 2254 from

a 2004 King County Superior Court judgment and

sentence. Respondent has filed an answer responding

to petitioner’s federal habeas claims and has

submitted relevant portions of the state court record.

Petitioner has filed a response to respondent’s answer.

This Court, having carefully reviewed petitioner’s

amended petition for writ of habeas corpus, all briefing

of the parties, and the state court record, concludes

that the amended petition should be denied and this

action should be dismissed with prejudice.

FACTUAL/PROCEDURAL BACKGROUND

The Washington State Court of Appeals, on direct

appeal, summarized the facts relevant to petitioner’s

conviction as follows:

At about 2:00 a.m. on Wednesday, July 13,

1994, Sebastian Burns called 911 to report

“some sort of break-in” at the Bellevue home

of [his friend] Atif Rafay’s parents. Burns

indicated there was blood all over and that

Rafay’s parents appeared to be dead. Burns

and Rafay, both Canadian citizens, had been

staying at the home since July 7.

Bellevue police responded to the call

within about five minutes and began an

extensive investigation. Inside, police found

Sultana Rafay, Rafay’s mother, on the lower

floor of the house and Tariq Rafay, Rafay’s

father, upstairs in his bed. Both had been

bludgeoned to death. They found Basma

Rafay, Rafay’s sister, gasping and still alive in

her room. She later died at the hospital from

severe head wounds.

After Burns and Rafay provided initial

statements at the scene, officers drove them

to the police station, where each gave a second

statement.

In their statements, Burns and Rafay

explained that they had left the house at

about 8 p.m. on the evening of July 12 and

gone to the Keg Restaurant in Factoria for

dinner. They then attended the 9:40 p.m.

showing of The Lion King at the Factoria

Cinema. Theater employees recalled Burns as

one of the patrons who had reported a curtain

malfunction shortly after the movie began. No

one saw Burns or Rafay at the theater after

about 10:00 p.m.

After the movie, the two drove to Steve’s

Broiler in downtown Seattle, where they

arrived about midnight. After leaving the

restaurant, Burns and Rafay tried to enter the

nearby “Weathered Wall” nightclub but

arrived too late. They returned to Steve’s

Broiler, used the restroom, and drove back to

Bellevue. Upon entering the lower level of the

house, Burns and Rafay discovered Sultana’s

body and then Tariq’s body upstairs. Rafay

heard his sister moaning in her room. He told

police that several items appeared to be

missing, including his personal stereo and

portable compact disc player and a family

videocassette recorder (VCR).

Bellevue police arranged for Burns and

Rafay to stay in a Bellevue motel on July 13.

Burns and Rafay each gave a third statement

on the afternoon of July 14. On Friday, July

15, 1994, without telling the police, Burns and

Rafay boarded a bus and returned to

Vancouver, B.C. The two did not attend the

family’s funeral on Friday afternoon at a

Northgate mosque. After staying for several

weeks with Burns’s parents, Burns and Rafay

moved into a North Vancouver house with

friends Jimmy Miyoshi and Robin Puga.

Bellevue police traveled to Vancouver a

few days after the murders but were

unsuccessful in arranging any further contact

with Burns or Rafay. Eventually, Bellevue

police asked the RCMP [Royal Canadian

Mounted Police] for assistance in obtaining

financial information about Burns and Rafay

and DNA (deoxyribonucleic acid) samples.

In January 1995, Bellevue police

detectives met with RCMP officers in

Vancouver, and the RCMP agreed to assist.

The RCMP also opened their own

investigation into whether the defendants

had been involved in a conspiracy to commit

murder while in Canada. The RCMP obtained

judicial authority to place wiretaps and audio

intercept devices in the defendants’ home and

in their car and eventually obtained more

than 4,000 hours of recordings.

In April 1995, the RCMP began an

undercover operation similar to others it used

in many Canadian cases over the years.

Dubbed “Project Estate,” undercover officers

posed as the leaders of a successful criminal

organization. Sergeant Al Haslett and

Corporal Gary Shinkaruk were the primary

undercover operators, with Haslett acting as

“Mr. Big,” the apparent head of the fictitious

organization, and Shinkaruk as his

subordinate. The operation eventually

planned and carried out the following 12

“scenarios” in an effort to secure confessions:

No. 1 April 11, 1995 For the initial

meeting, Shinkaruk staged an encounter with

Burns outside a hair salon after Burns had a

haircut. Shinkaruk told Burns that he had

locked his keys in his car and asked for a ride

back to his hotel. When Burns mentioned he

needed $200,000 for a movie he was planning,

Shinkaruk offered to introduce him to “Al” as

a possible investor. Shinkaruk accompanied

Burns to a strip club and introduced him to

Haslett. Burns expressed interest in Haslett’s

offer to earn extra money.

No. 2 April 13, 1995 Haslett contacted

Burns and directed him to drive with

Shinkaruk to Whistler, where the two met

with Haslett. When Haslett asked Burns to

drive a stolen car back to Vancouver, Burns

appeared pale and expressed concern about

the plan. Burns eventually drove what he

believed to be a stolen car back to Vancouver,

where Haslett paid him $200. Burns

repeatedly expressed his dissatisfaction with

the amount he had earned and his lack of

participation in the planning of the operation.

Burns indicated he was willing to participate

in more lucrative future operations, including

selling drugs and acting as a “hit man.”

No. 3 April 20-21, 1995 Shinkaruk left a

telephone message for Burns. Burns returned

the call and indicated his willingness to meet

with Shinkaruk in a few days.

No. 4 May 6, 1995 At the Four Seasons

Hotel, an undercover officer, dressed as a

biker, displayed two guns and delivered a

large amount of cash to Shinkaruk. Burns

watched and then helped Shinkaruk count the

money. Shinkaruk told Burns he had “fuckin’

toasted a guy,” but Haslett had made sure the

witness was unavailable for trial.

During the meeting, Burns disclosed that

he and a friend were suspects in the Bellevue

murders. Burns claimed that he now had

enough money to make his movie but

remained interested in certain future

opportunities, including money laundering

and drug sales. He also said he would not have

“any dilemma” about killing someone for the

organization and that “anything goes.” Burns

repeatedly resisted Haslett’s questions about

committing the murders but also indicated his

desire to learn more about what the Bellevue

police knew and to have evidence destroyed.

No. 5 May 29-30, 1995 Shinkaruk became

concerned that a recent newspaper article

may have compromised the operation. He

called Burns. Burns said he was glad to hear

from Shinkaruk and available to meet with

him. Shinkaruk said he would call the next

day and set up a meeting. After the call, the

electronic intercept recorded Burns singing,

“I’m a happy man.” When Shinkaruk called

the next day, he told Burns that Haslett was

busy and nothing would be scheduled that

day. Burns expressed disappointment.

No. 6 June 15-16, 1995 On June 13, 1995,

Shinkaruk called Burns and asked if he was

interested in making some money. Shinkaruk

invited Burns to bring a trusted friend and

meet him at the Royal Scott Hotel in Victoria.

Burns asked Miyoshi to join him. The two met

with Haslett and Shinkaruk in Victoria on

June 15, 1995. For two days, Burns and

Miyoshi assisted Shinkaruk with “money

laundering” by making cash deposits totaling

about $100,000 into various bank automated

teller machines. Haslett provided Burns and

Miyoshi with spending money and $2,000 at

the end of the second day.

During the course of the encounter, Burns

twice asked Haslett what he had learned

about the Bellevue investigation. Haslett said

he had someone investigating the matter and

would inform Burns what he learned. Haslett

also discussed computer skills with Burns and

Miyoshi, suggesting future employment

possibilities. After Haslett and Shinkaruk

left, Burns told Miyoshi that “[t]his has been

the coolest thing ever I couldn’t ask for

anymore [sic].”

No. 7 June 20, 1995 After calling Burns

and telling him they might visit, Haslett and

Shinkaruk appeared at the defendants’ house.

Haslett

discussed

Burns’s

computer

knowledge and system and told Burns he

would soon be hearing from a friend with

information about the Bellevue police

investigation. Burns warned Haslett that the

house was bugged.

No. 8 June 28-29, 1995 Burns and Miyoshi

returned to Victoria for a second round of

money laundering. Haslett arranged to speak

alone with Burns and told him that the

Bellevue police had him “in a pretty big

fucking way.” Haslett mentioned that the

police had evidence of Burns’s DNA, his hair

found in the shower mixed with the victims’

blood, and Burns’s fingerprints on a box.

Haslett said he needed more details in order

to help Burns.

Burns repeatedly deflected Haslett’s

attempts to elicit concrete details about the

murders but provided some veiled responses

suggesting his participation and a financial

motive. Burns also expressed concern that

Haslett was an undercover officer. Haslett

discussed computers again with Burns but did

not pay Burns or Miyoshi for their assistance.

No. 9 July 10, 1995 To avoid appearing to

focus on Burns, Haslett and Shinkaruk

arranged a money laundering operation

involving only Miyoshi. Miyoshi did not reveal

any details about the murders.

No. 10 July 18, 1995 Burns agreed to meet

with Haslett and Shinkaruk at the Ocean

Point Hotel in Victoria. At the hotel, Haslett

discussed the organization’s computer needs

with Burns. Haslett then showed him a fake

Bellevue Police Department memorandum

that indicated the police would soon call a

press conference and that charges would be

filed against Burns and Rafay once the

culturing of Burns’s DNA was completed.

Haslett told Burns that things would be

happening quickly and that the police were

“coming to lock your ass up.”

After studying the report and discussing

with Haslett the specific items of evidence

that it listed, Burns insisted that the items all

had potentially innocent explanations. Burns

eventually acknowledged, however, that he

wanted Haslett’s help. Haslett told Burns

that he could arrange for his associate to

destroy the evidence, but that he would not do

so until Burns told him the complete details of

the murders. Haslett explained that the

associate could not destroy all of the evidence

unless he knew the details of the crime.

Burns eventually told Haslett specific

details about his and Rafay’s participation in

the murders. A hidden camera recorded

Burns’s confession.

No. 11 July 19, 1995 Haslett told Burns to

call Rafay and ask him to come to Victoria.

While waiting for Rafay to arrive, Burns

accompanied Shinkaruk to Nanaimo, where

Shinkaruk staged an encounter with another

undercover officer. While Burns stood guard,

Shinkaruk appeared to rough up the man in

order to obtain more than $100,000 that he

owed to Haslett. Shinkaruk and Burns then

returned to Haslett’s hotel room, where all

three men counted the money. Burns provided

additional details about the murders to

Haslett.

Rafay arrived, and Haslett spoke at

length with him in Burns’s presence. Haslett

discussed the details of the Bellevue memo

with Rafay and repeatedly emphasized the

importance of trust. Rafay reassured him that

Burns was his best friend and that he would

never betray him. Rafay then provided details

about his participation in the murders. He

explained that he had watched Burns kill his

mother and had removed the family VCR but

had not otherwise participated in the killings.

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When asked why they had killed his parents,

Rafay responded that it was to “become richer

and more prosperous and more successful.”

Burns also added additional details about the

killing of Basma, which “took a little more bat

work” than he had expected. The RCMP also

videotaped Rafay’s confessions.

No. 12 July 26, 1995 In the final scenario,

Burns and Miyoshi met with Haslett at the

Landis Hotel in Vancouver. At Burns’s

urging, Miyoshi told Haslett that he knew

about the plan to kill Rafay’s parents about a

month in advance. He explained that he did

not go to Bellevue with the defendants

because he was too busy at work.

On July 31, 1995, Burns and Rafay were

charged in King County with three counts of

aggravated first-degree murder. On the same

day, the RCMP arrested them and charged

them as fugitives. King County requested

extradition of Burns and Rafay and refused to

waive the potential application of the death

penalty. After protracted litigation, the

Canadian Supreme Court ruled on February

15, 2001, that the defendants could not be

extradited without a waiver of the death

penalty. King County then provided the

required assurances. Burns and Rafay were

transported to Washington and arraigned on

April 6, 2001.

Miyoshi eventually told officers that he

had known about the planned murders and

discussed the plan with the defendants. When

Burns and Rafay returned to Canada after the

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murders, they told Miyoshi certain details

about the killings. Miyoshi entered into an

immunity agreement and in August 2003

participated in a videotaped preservation

deposition that was played at trial.

After a series of delays caused in part by

the need to appoint new attorneys, testimony

on the defendants’ motions to suppress their

confessions began on April 22, 2003, and

concluded on August 6, 2003. Jury selection

began on October 10, 2003, and concluded on

November 13, 2003. Opening statements

began on November 24, 2003, and closing

statements concluded on May 20, 2004. The

jury returned its verdict on May 26, 2004,

finding the defendants guilty as charged. At

sentencing on October 24, 2004, the court

imposed three terms of life imprisonment

without the possibility of parole on each

defendant.

State v. Rafay, 168 Wash. App. 734, 747-54 (2012);

see also Dkt. 52, Ex. 2 at 2-12.

Petitioner and Mr. Burns appealed their

convictions to the Washington Court of Appeals and

the appeals were consolidated for review. See Dkt. 52,

Exs. 4-10. On June 18, 2012, the Court of Appeals

issued a lengthy published opinion affirming the

convictions. Id., Ex. 2. Petitioner thereafter filed a

motion for reconsideration which was denied by the

Court of Appeals on July 24, 2012. See id., Exs. 11, 12.

Petitioner and Mr. Burns next sought discretionary

review by the Washington Supreme Court of the Court

of Appeals’ decision affirming their convictions. See

id., Exs. 13, 14. The Supreme Court denied the

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consolidated petitions for review without comment on

March 7, 2013. See id., Ex. 19. On March 19, 2013, the

Supreme Court issued an amended order denying

review in which it made clear that the defendants’

motions for permission to adopt arguments from each

other’s petitions for review had been granted. See id.,

Ex. 20. The Court of Appeals issued its mandate on

March 22, 2013, and subsequently issued an amended

mandate on September 6, 2013. Id., Exs. 21, 22.

On October 7, 2014, petitioner filed a personal

restraint petition in the Washington Supreme Court,

and the Supreme Court transferred the petition to the

Washington Court of Appeals for consideration. Id.,

Exs. 23, 24. The Court of Appeals issued an order

dismissing the petition on October 8, 2015. Id., Ex. 30.

Petitioner thereafter sought discretionary review by

the Washington Supreme Court. See id., Exs. 31, 32.

The Supreme Court Commissioner issued a ruling

denying review on September 15, 2016. Id., Ex. 33.

Petitioner moved to modify the Commissioner’s ruling

and that motion was denied by the Chief Justice of the

Supreme Court on December 7, 2016. Id., Exs. 34, 35.

The Court of Appeals issued a certificate of finality in

petitioner’s personal restraint proceedings on

December 23, 2016. Id., Ex. 36.

On April 7, 2016, while his first personal restraint

petition was still pending, petitioner filed a second

personal restraint petition in the Washington

Supreme Court. Id., Ex. 38. Petitioner’s second

petition, like his first petition, was transferred to the

Washington Court of Appeals for consideration. Id.,

Ex. 37. The Court of Appeals issued an order

dismissing petitioner’s second personal restraint

petition on June 2, 2017. Id., Ex. 41. Petitioner sought

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discretionary review by the Washington Supreme

Court, and the Supreme Court Commissioner issued a

ruling denying review on October 12, 2017. Id., Exs.

42, 43. Petitioner moved to modify the Commissioner’s

ruling and that motion was denied by the Chief Justice

of the Supreme Court on January 3, 2018. Id., Exs. 44,

45. The Court of Appeals issued a certificate of finality

in petitioner’s second personal restraint proceedings

on January 19, 2018. Id., Ex. 46.

On August 2, 2016, petitioner filed in this Court a

pro se petition for writ of habeas corpus together with

a motion to appoint counsel and a motion to stay the

federal habeas action pending completion of

petitioner’s two state court collateral review

proceedings. See Dkt. 1. The Court granted petitioner’s

motions, appointing the Federal Public Defender to

represent petitioner and staying this action pending

final resolution of petitioner’s state court proceedings.

See Dkts. 8, 9. The stay was lifted on August 6, 2018,

and petitioner was granted leave to file an amended

petition. See Dkt. 14. Petitioner’s amended petition for

writ of habeas corpus was filed February 6, 2019. Dkt.

34. Petitioner’s amended petition is the operative

petition in this action, and that petition is now ripe for

consideration.

GROUNDS FOR RELIEF

Petitioner identifies four grounds for relief in his

amended petition:

GROUND ONE: Admission of statements

gathered during Canada’s Mr. Big operation

violated Atif’s due process rights under the

Fifth and Fourteenth Amendments.

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GROUND TWO: Atif’s attorneys rendered

ineffective assistance, in violation of his rights

under the Sixth Amendment to the U.S.

Constitution, when they advised him that

testifying at the suppression hearing had no

utility because the silver platter doctrine

meant coercion only mattered if the court was

inclined to find that the Mr. Big scenarios

were a joint operation of the U.S. and

Canadian authorities rather than an

exclusively Canadian operation.

GROUND THREE: Exclusion of “other

suspect” evidence, as well as testimony from

defense experts Richard Leo and Michael

Levine, violated petitioner’s right to present a

complete defense at trial in violation of the

Sixth and Fourteenth Amendments to the

United States Constitution.

GROUND FOUR: Repeated misconduct on

the part of the prosecutor and statements by

key law enforcement witnesses offering

opinions as to guilt denied petitioner a fair

trial in violation of the Sixth Amendment to

the United States Constitution.

See Dkt. 34 at 70, 77, 82, 90.

DISCUSSION

Respondent concedes that petitioner properly

exhausted his four grounds for federal habeas relief by

properly presenting the claims to the Washington

Supreme Court for review on direct appeal and in the

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first of his two personal restraint proceedings. 1 See

Dkt. 51 at 11. Respondent argues, however, that

petitioner is not entitled to relief in this federal habeas

action with respect to any of his asserted claims. See

id. at 15-52.

Standard of Review

Under the Anti-Terrorism and Effective Death

Penalty Act (“AEDPA”), a habeas corpus petition may

be granted with respect to any claim adjudicated on

the merits in state court only if (1) the state court’s

decision was contrary to, or involved an unreasonable

application of, clearly established federal law, as

determined by the Supreme Court, or (2) the decision

was based on an unreasonable determination of the

facts in light of the evidence presented. 28 U.S.C. §

2254(d). In considering claims pursuant to § 2254(d),

the Court is limited to the record before the state court

that adjudicated the claim on the merits, and the

petitioner carries the burden of proof. Cullen v.

Pinholster, 563 U.S. 170, 181-82 (2011).

Under § 2254(d)(1)’s “contrary to” clause, a federal

court may grant the habeas petition only if the state

court arrives at a conclusion opposite to that reached

by the Supreme Court on a question of law, or if the

state court decides a case differently than the

Respondent argues with respect to a portion of petitioner’s

fourth ground for relief pertaining to alleged improper opinion

testimony by law enforcement witnesses that the claim has not

been exhausted to the extent it is being presented here as a claim

alleging prosecutorial misconduct. Dkt. 51 at 51. Petitioner

argues that this portion of his fourth ground for relief has, in fact,

been exhausted. See Dkt. 57 at 28. The Court will address the

exhaustion issue below in its analysis of petitioner’s fourth

ground for relief.

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Supreme Court has on a set of materially

indistinguishable facts. See Williams v. Taylor, 529

U.S. 362, 405-06 (2000). Under the “unreasonable

application” clause, a federal habeas court may grant

the writ only if the state court identifies the correct

governing legal principle from the Supreme Court’s

decisions, but unreasonably applies that principle to

the facts of the prisoner’s case. See id. at 407-09.

The Supreme Court has made clear that a state

court’s decision may be overturned only if the

application is “objectively unreasonable.” Lockyer v.

Andrade, 538 U.S. 63, 69 (2003). The Supreme Court

has further explained that “[a] state court’s

determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists

could disagree’ on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 88 (2011)

(quoting Yarborough v. Alvarado, 541 U.S. 652, 664

(2004)).

Clearly established federal law, for purposes of

AEDPA, means “the governing legal principle or

principles set forth by the Supreme Court at the time

the state court render[ed] its decision.” Lockyer, 538

F.3d at 71-72. This includes the Supreme Court’s

holdings, not its dicta. Id. “If no Supreme Court

precedent creates clearly established federal law

relating to the legal issue the habeas petitioner raised

in state court, the state court’s decision cannot be

contrary to or an unreasonable application of clearly

established federal law.” Brewer v. Hall, 378 F.3d 952,

955 (9th Cir. 2004) (citing Dows v. Wood, 211 F.3d 480,

485-86 (9th Cir. 2000)).

Under § 2254(d)(2), a petitioner may only obtain

relief by showing that the state court’s conclusion was

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based on “an unreasonable determination of the facts

in light of the evidence presented in the state court

proceeding.” “To show such an error occurred, the

petitioner must establish that the state court’s

decision rested on a finding of fact that is ‘objectively

unreasonable.’” Hibbler v. Benedetti, 693 F.3d 1140,

1146 (9th Cir. 2012) (quoting Lambert v. Blodgett, 393

F.3d 943, 972 (9th Cir. 2004)) (emphasis in original);

see also Lockyer, 538 U.S. at 75. “Factual findings are

objectively unreasonable if they are unsupported by

sufficient evidence in the state court record.” Tong

Xiong v. Felker, 681 F.3d 1067, 1074 (9th Cir. 2012).

In addition, the Court presumes the state court’s

factual findings to be sound unless the petitioner

rebuts “the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

Ground One: Coerced Confession

Petitioner asserts in his first ground for relief that

improper coercive techniques were used to obtain his

confession, in violation of his rights under the Fifth

and Fourteenth Amendments, and that the state

courts’ determination that his confession was

voluntary and properly admitted into evidence was an

unreasonable application of clearly established law

and was based on an unreasonable determination of

the facts. See Dkt. 34 at 70-77.

The United States Constitution requires that any

confession admitted at trial be voluntarily given.

Dickerson v. United States, 530 U.S. 428, 433 (2000).

In determining whether a confession was voluntary,

courts examine “whether a defendant’s will was

overborne by the circumstances surrounding the

giving of a confession.” Id. at 434 (citation and internal

quotation marks omitted). “The due process test takes

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into consideration ‘the totality of all the surrounding

circumstances—both the characteristics of the accused

and the details of the interrogation.’” Id. (quoting

Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973));

see also Arizona v. Fulminante, 499 U.S. 279, 285-88

(1991). “The determination ‘depend[s] on a weighing of

the circumstances of pressure against the power of

resistance of the person confessing.’” Dickerson, 530

U.S. at 434 (quoting Stein v. New York, 346 U.S. 156,

185 (1953)).

The circumstances the Supreme Court has looked

to in analyzing the totality of the circumstances

include the “crucial element of police coercion”; the

length of the interrogation, its location, and its

continuity; and, the defendant’s maturity, education,

physical condition, and mental health. Withrow v.

Williams, 507 U.S. 680, 693 (1993); see also

Schneckloth, 412 U.S. at 226. “Coercion can be mental

or physical, but to render a statement involuntary,

coercion must exist to such a degree that the

statement is not ‘the product of an essentially free and

unconstrained choice by its maker.’” Juan H. v. Allen,

408 F.3d 1262, 1273 (9th Cir. 2005) (quoting

Schneckloth, 412 U.S. at 225).

Prior to trial, petitioner and Mr. Burns moved to

suppress statements they made to undercover RCMP

officers implicating themselves in the murders of

petitioner’s family. The trial court conducted extensive

pretrial hearings after which it denied the defendants’

motions to suppress their confessions. The trial court

briefly addressed defendants’ claim that their

confessions were coerced in its oral ruling on the

motions:

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The defendants do clearly enjoy the

protections of the U.S. Constitution, the Fifth,

Sixth, and the 14th Amendment[s], insofar as

due process. Were defendants’ rights under

these laws violated? The court’s answer is no.

The statements of defendants were given . . .

in a noncustodial setting. The defendants

were free to speak or not. The defendants

were free to leave or not. The defendants were

free to consult their Canadian counsel or not,

as they chose.

The Canadian court reviewed and found no

evidence of coercion, and this court makes the

same finding. The Canadian court, in

reviewing the self same issue under Canadian

charter rights, found no duress, found nothing

under Canadian police standards that would

bring the administration of justice into

disrepute.

See Rafay, 168 Wash. App. at 756.

This portion of the trial court’s ruling was

subsequently incorporated into its written findings of

fact and conclusions of law as follows:

[Finding of Fact] 15. During the course of the

extradition proceedings in Canada, the Court

of Appeals for British Columbia found the

undercover technique used by the RCMP and

the resulting interception and recording of the

defendants’ communications did not violate

the defendants’ rights under Canada’s

Charter of Rights and Freedoms, nor did it

offend the sensibilities of the Canadian

citizenry. The Court of Appeals for British

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Columbia further found that there was no

duress or coercion employed by the RCMP

during the undercover scenarios in order to

obtain the defendants’ admissions. The

Supreme Court of Canada did not disturb this

finding. This Court agrees with the Canadian

courts and finds the same.

....

[Conclusion of Law] 6. The defendants’

statements and admissions to undercover

RCMP officers during the course of the

undercover scenarios were not the product of

coercion or duress and their admission into

evidence will not violate the defendants’ due

process rights, right to counsel or right

against self incrimination guaranteed by the

State and Federal Constitutions. The

statements at issue were made in a noncustodial setting. The defendants were free to

leave or not leave. The defendants were free

to speak or not speak. The defendants were

free to consult their Canadian counsel or not

as they chose.

Id. at 756-57 (footnote omitted).

Petitioner and Mr. Burns, on direct appeal,

challenged the trial court’s determination that their

confessions were voluntary under the Fifth and

Fourteenth Amendments. The Court of Appeals began

its analysis of this claim by articulating the totality of

the circumstances test that courts apply to determine

the voluntariness of a confession. Id. at 758 (citing,

inter alia, Arizona v. Fulminante, 499 U.S. 279, 28586 (1991)). The Court then summarized the

defendants’ arguments:

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Defendants contend that Project Estate

employed coercive techniques on an

unprecedented scale against young and naïve

suspects. Initially, the undercover operation

sought to entice defendants by projecting an

attractive lifestyle for participants in a

criminal organization. When the operation’s

initial scenarios did not persuade Burns to

confess, the officers arranged a series of

“money laundering” tasks, for which Burns

received several thousand dollars for

negligible work. Haslett also implied the

defendants could provide future computer

consulting services for the organization once

their legal troubles were eliminated.

Defendants rely primarily on evidence

that Haslett and Shinkaruk created the image

of a criminal organization that was willing to

use guns and violence if necessary to protect

its interests. During the scenario on May 6,

1995, Shinkaruk informed Burns that he had

killed someone in the past, and Haslett

suggested he had had a witness “eliminated.”

On July 19, 1995, the day after Burns’s

videotaped confession, Burns accompanied

Shinkaruk to a staged incident and stood

guard while Shinkaruk purportedly punched

someone in order to collect money. Haslett

repeatedly stressed that he valued loyalty

above all else and expressed concern that

defendants might betray the organization if

they ever went to jail. Defendants argue that

the officers’ comments and actions impliedly

threatened violence or death if the police

arrested the defendants, who would then pose

22a

some risk of revealing the organization’s

secrets to the police.

Defendants maintain that in order to

create a sense of urgency and finally persuade

them to abandon their steadfast refusal to

provide details about the murders, Haslett

confronted Burns with a fake Bellevue Police

Department memorandum and repeatedly

admonished him that arrest was imminent

unless defendants agreed to Haslett’s plan to

destroy evidence. That plan not only promised

defendants an unhindered opportunity for

future participation in the organization, it

also eliminated the possibility that they would

spend time in jail, where they posed a threat

of disclosing information about Haslett and

Shinkaruk to the police. Defendants provided

details about the murders only after Haslett’s

offer to eliminate future criminal liability.

Defendants

argue

that

these

circumstances, considered together, were so

coercive they prevented the defendants from

making a rational decision. Defendants claim

they confessed only as a direct result of this

final threat in order to avoid arrest,

prosecution, and possible death.

Id. at 758-59.

The Court of Appeals, applying the totality of the

circumstances test to evaluate whether the

confessions were voluntary, concluded as follows:

Although Haslett and Shinkaruk portrayed

their criminal organization as one that had

used violence on occasion to achieve its goals

23a

or protect its members, the record does not

indicate that they ever threatened the

defendants with physical harm or placed

them in a position suggesting they were

subject to imminent physical harm.

Moreover, the interaction between the

defendants and the undercover officers in this

case encompassed a period of several months.

As the trial court stressed, the defendants

were free to break off their contact with the

undercover officers at any time. On one

occasion, weeks passed with no contact

between the participants. Throughout the

undercover operation, defendants pursued

their normal and chosen activities with no

interference from the undercover officers.

During Project Estate, the defendants

repeatedly pursued their contacts with

Haslett and Shinkaruk, expressed their

willingness

participate

the

organization’s criminal activities, including

acts of violence, and requested Haslett’s

assistance in avoiding future prosecution.

Defendants do not identify any evidence in the

record suggesting that their age, mental

abilities, education, emotional condition, or

specific personality traits left them unusually

vulnerable to coercive measures. Nor does the

record establish that the defendants were

financially dependent on the money they

received from Haslett.

Throughout the entire undercover

operation, Burns, who essentially managed

the relationship with Haslett and Shinkaruk

24a

on behalf of the defendants, exhibited a

remarkable resilience to continued pressure.

In the earlier scenarios, Burns was not

intimidated and resisted Haslett’s repeated

attempts to extract information about the

murders. Although Burns appeared scared or

nervous during the stolen car scenario, he did

not hesitate to complain afterward about the

amount of money he had earned and his

unhappiness about not participating in the

planning of the operation. Burns clearly

attempted to leverage the incident to a more

lucrative relationship with the organization.

Even when confronted with the fake police

memo, Burns firmly and accurately

responded that the purported evidence was

equivocal and was either easily explained or

simply unrelated to the defendants’ actions

during the murders.

Although defendants claim they confessed

out of fear of physical injury, Burns expressly

raised the subject with Haslett on several

occasions, casually asserting his expectation

that the organization would shoot him if he

ever betrayed it. But Haslett repeatedly

suggested to Burns that if things did not work

out, the parties would just walk away from

one another. During the second money

laundering scenario in Victoria, Haslett

commented that Burns only had Shinkaruk’s

pager number and informed him that if

mistakes were made, the “pager will be fuckin’

thrown in the fuckin’ ocean and that’ll be the

end of it.” Near the end of the confession

recording, Burns assures Haslett that he can

25a

trust him because otherwise “some guy [would

come and] blast me in the head.” In response,

Haslett insists that he is “not a killer” and

that because he and Burns have not done

anything together at this point, either one is

free to walk away if there is a lack of trust.

Haslett also repeatedly asserts that Burns is

free to talk to his attorney. Burns’s actions

throughout suggest deliberate attempts to

impress Haslett, not fear of physical injury.

Significantly,

unlike

any

the

authorities cited on appeal, the record in this

case includes many hours of audio and video

recordings made in the defendants’ house and

during the various scenarios. Those

recordings provided a uniquely rich context

for assessing the effect of the undercover

operations on the defendants. The trial court

was therefore able to view the defendants’

demeanor and body language during the

entire confessions, including their jovial

delight in revealing certain details about the

murders and Rafay’s calm explanation that

his feelings about killing his parents and

sister were tempered by the fact that “[i]t was

necessary to . . . achieve what I wanted to

achieve in this life . . . . I think of it as a

sacrifice . . . a sort of injustice in the world that

basically, basically forced me or, and

Sebastian, to . . . have to do the thing.” This

documentation severely undermined the

defendants’ claims that the undercover

operations overcame their will to resist.

26a

Viewed

their

entirety,

the

circumstances in the case, including the

defendants’ private conversations, their

participation in the scenarios leading up to

the confessions, and their conduct and

statements

during

the

confessions

themselves, indicate that Project Estate did

not vitiate the defendants’ ability to make

independent or rational decisions or

otherwise overcome their will. Although

psychological

and

financial

factors

undoubtedly played a role in the relationship

between the defendants and the undercover

officers, the record does not indicate that

those

extrinsic

considerations

were

overwhelming. Rather, defendants made a

deliberate choice after weighing competing

options, including their long-term personal

goals, to accept the assistance of another

criminal to eliminate their legal problems. A

confession is voluntary “‘so long as that

decision is a product of the suspect’s own

balancing of competing considerations.’”2 The

evidence in the record strongly supports the

trial court’s determination that defendants’

confessions were voluntary.

Id. at 762-66.

Petitioner asserts that the Mr. Big operation

“placed overwhelming coercive pressure” on him and

on Mr. Burns “to provide fabricated confessions to

avoid their arrests and subsequent murders at the

[Court of Appeals Footnote 20] Unga, 165 Wash.2d at 102,

196 P.3d 645 (quoting Miller, 796 F.2d at 605).

27a

hands of the fake criminal organization.” Dkt. 34 at 72.

Petitioner argues that the state courts unreasonably

concluded that the confessions were not motivated by

fear that the criminal organization would kill them to

keep them quiet if their arrests became imminent. Id.

Petitioner further argues that the Court of Appeals

unreasonably applied the totality of the circumstances

test because it made an unreasonable determination

of the facts. Id. at 75. Petitioner maintains that there

was a credible threat of violence against both him and

Mr. Burns from the undercover officers and that they

provided false confessions in reaction to those threats.

Id.

Petitioner is effectively challenging the admission

of not only his own inculpatory statement to the RCMP

officers but that of Mr. Burns as well. Indeed, a

majority of the argument set forth in the amended

petition in support of this claim relates to Mr. Burns’s

interactions with the RCMP officers. This is no doubt

because, as the Court of Appeals observed, Mr. Burns

managed the relationship with the undercover officers

on behalf of defendants. Unlike Mr. Burns who had

multiple interactions with the undercover officers, and

actively participated in most of the scenarios set up by

those officers, petitioner had only a single interaction

with the undercover officers.

The issue of whether Mr. Burns’s statements to

the undercover officers were obtained through

coercion and therefore improperly admitted at trial

was previously decided in the context of Mr. Burns’s

federal habeas petition. Burns v. Warner, C14-850MJP (W.D. Wash., dismissed Dec. 16, 2015). In Mr.

Burns’s federal habeas action, the Court concluded,

based on statements Mr. Burns made to undercover

28a

officers on June 28-29, 1995, and on July 18, 1995, that

there was evidence of an implicit credible threat of

physical harm to Mr. Burns if he betrayed Haslett; i.e.,

Mr. Big. See id., Dkt. 28 at 20; Dkt. 35 at 11-12. The

Court also concluded, however, that there was

insufficient evidence to demonstrate a causal

connection between the implied threat of harm and

Mr. Burns’s confession. See id., Dkt. 28 at 22; Dkt. 35

at 12. As was explained in the Report and

Recommendation issued in Mr. Burns’s habeas case,

“a credible threat of physical harm alone is insufficient

to establish that a confession was coerced. Rather,

there must be evidence that the petitioner confessed

in response to that threat.” Id., Dkt. 28 at 20 (citing

Fulminante, 499 U.S. at 288.)

This Court will not revisit issues concerning the

admissibility of the statements made by Mr. Burns to

the undercover officers as those issues were soundly

decided in Mr. Burn’s federal habeas action. See id.,

Dkts. 28, 35, 38. This Court need only consider the

circumstances surrounding petitioner’s statement to

the undercover officers. As noted above, while Mr.

Burns met with the undercover officers on numerous

occasions, petitioner met with the officers once, on

July 19, 1995, the day he actually confessed to his

participation in the murders of his parents and his

sister.

In order for petitioner to prevail on his claim that

his confession was coerced, there must be clear and

convincing evidence in the record of (1) a credible

threat of physical harm that (2) motivated petitioner

to confess. See Fulminante, 499 U.S. at 287-88.

Nothing in the transcript of petitioner’s July 19

meeting with the undercover officers suggests that

29a

any threats were made to him during that meeting.

See Dkt. 52, Ex. 74. The audio and video recording of

that meeting, which is also a part of the record before

this Court, likewise reveals no express threats nor any

obviously threatening behavior directed toward

petitioner by the undercover officers. Id., Ex. 72. In

fact, petitioner looked relatively calm and relaxed

during the meeting. See id.

Petitioner asserts that the record contains

evidence demonstrating that the undercover officers

communicated threats to petitioner either directly or

through Mr. Burns. Dkt. 57 at 5. However, petitioner

fails to point to any evidence which actually supports

that assertion. Petitioner primarily relies on

interactions Mr. Burns had with the undercover

officers, and he invites the Court to speculate that

threats communicated to Mr. Burns during his

multiple interactions with the officers were passed

along to petitioner and that those threats resulted in

a false confession. See id. The Court declines this

invitation. Even assuming, as petitioner suggests,

that the undercover officers intended the implied

threats of harm communicated in Mr. Burns’s

presence to be passed along to petitioner, there is no

evidence that they actually were, nor is there even a

scintilla of evidence that any such threats caused

petitioner to confess. The evidence in the record before

this Court does not demonstrate that petitioner’s

confession was coerced.

The Court notes that petitioner, in his response to

respondent’s answer, spends considerable time

complaining about the reasonableness of the state

trial court’s decision regarding admission of the

confessions. Petitioner argues, in particular, that the

30a

trial court erred by reviewing the evidence with an

erroneous legal standard and improperly relying on

Canadian law. Dkt. 57 at 10-12. However, on habeas

review, this Court looks to the last reasoned decision

of the state court, which in this case is the Court of

Appeals’ decision. See Avila v. Galaza, 297 F.3d 911,

918 (9th Cir. 2002) (“In determining whether a state

court decision is contrary to federal law, we look to the

state’s last reasoned decision . . . as the basis for its

judgment.”)) (citing Ylst v. Nunnemaker, 501 U.S. 797,

803-04 (1991)).

The Washington Court of Appeals concluded that

the trial court applied the correct legal standard and

made an independent determination of voluntariness

under the Fifth and Fourteenth Amendments. Rafay,

168 Wash. App. at 766. And, as reflected above, the

Court of Appeals concluded that the record strongly

supported the trial court’s determination of

voluntariness. Id. at 765. Petitioner fails to

demonstrate that the Washington appellate court’s

decision with respect to his coerced confession claim is

contrary to, or involved an unreasonable application

of, clearly established federal law. He also fails to

demonstrate that the appellate court’s decision was

based on an unreasonable determination of the facts.

Accordingly, petitioner’s first ground for federal

habeas relief should be denied.

Ground Two: Ineffective Assistance of Counsel

Petitioner asserts in his second ground for relief

that his attorneys rendered ineffective assistance

when they advised him not to testify at the pretrial

suppression hearing based on their misunderstanding

of the applicable law. See Dkt. 34 at 77-80. Petitioner

claims that he had a strong argument for suppression;

31a

i.e., that the statements made to the Canadian

undercover officers were elicited in violation of his

rights under the Fifth Amendment, and that his

testimony was vital to establish that he and Mr. Burns

were in fear for their lives when communicating with

the undercover officers. Id. at 77-78. Petitioner

maintains that his attorneys erroneously believed

such testimony was irrelevant because, under the

silver platter doctrine, coercion was immaterial if the

Canadian authorities were acting independently of

their American counterparts.3 See id. at 78-80.

Petitioner argues that while the silver platter

doctrine is applicable to Fourth Amendment issues it

does not govern issues arising under the Fifth

Amendment pertaining to the voluntariness of his

confession. See id. at 78-79. Petitioner further argues

that there was no strategic benefit to not testifying at

the suppression hearing, and that he would have

testified had he not been misadvised by counsel that

his testimony could have no possible benefit. See id. at

77-79. Petitioner maintains that if he had testified, the

coerced confessions would have been suppressed and

there is a significant probability that the outcome of

the trial would have been different. Id. at 78-79.

The Sixth Amendment guarantees a criminal

defendant the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668 (1984). “The

essence of an ineffective-assistance claim is that

counsel’s unprofessional errors so upset the

The “silver platter” doctrine permits state courts to admit

evidence obtained from a federal or foreign jurisdiction if the

evidence was obtained legally in that jurisdiction and state police

did not assist and cooperate in the foreign investigation. See State

v. Gwinner, 59 Wash. App. 119, 124-25 (1990).

32a

adversarial balance between defense and prosecution

that the trial was rendered unfair and the verdict

rendered suspect.” Kimmelman v. Morrison, 477 U.S.

365, 374 (1986). Claims of ineffective assistance of

counsel are evaluated under the two-prong test set

forth in Strickland. Under Strickland, a defendant

must prove (1) that counsel’s performance was

deficient and, (2) that the deficient performance

prejudiced the defense. Strickland, 466 U.S. at 687.

With respect to the first prong of the Strickland

test, a petitioner must show that counsel’s

performance fell below an objective standard of

reasonableness. Id. at 688. Judicial scrutiny of

counsel’s performance must be highly deferential. Id.

at 689. “A fair assessment of attorney performance

requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the

circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the

time.” Id. at 689. In order to prevail on an ineffective

assistance of counsel claim, a petitioner must

overcome the presumption that counsel’s challenged

actions might be considered sound trial strategy. Id.

The second prong of the Strickland test requires a

showing of actual prejudice related to counsel’s

performance. In order to establish prejudice, a

petitioner “must show that there is a reasonable

probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been

different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id.

at 694. The reviewing court need not address both

components of the inquiry if an insufficient showing is

made on one component. Id. at 697.

33a

While the Supreme Court established in

Strickland the legal principles that govern claims of

ineffective assistance of counsel, it is not the role of the

federal habeas court to evaluate whether defense

counsel’s performance fell below the Strickland

standard. Harrington, 562 U.S. at 101. Rather, when

considering an ineffective assistance of counsel claim

on federal habeas review, “[t]he pivotal question is

whether the state court’s application of the Strickland

standard was unreasonable.” Id. As the Supreme

Court explained in Harrington, “[a] state court must

be granted a deference and latitude that are not in

operation when the case involves review under the

Strickland standard itself.” Id.

Petitioner presented the ineffective assistance of

counsel claim at issue here to the state courts in the

first of his two personal restraint petitions, and the

Washington appellate courts rejected the claim. See

Dkt. 52, Exs. 31, 33. The Washington Supreme Court

Commissioner, in her ruling deny petitioner’s motion

for discretionary review, first identified the standard

applicable to petitioner’s ineffective assistance of

counsel claim:

To establish ineffective assistance entitling

him to relief, Mr. Rafay must demonstrate

that counsel’s performance was professionally

deficient and that such deficiency caused him

prejudice. In re Pers. Restraint of Crace, 174

Wn.2d 835, 840-47, 280 P.3d 1102 (2012).

Counsel’s performance is viewed in light of the

entire record. State v. McFarland, 127 Wn.2d

322, 335, 899 P.2d 1251 (1995). Decisions

based on tactical and strategic reasons do not

reflect deficient performance. State v. Grief,

34a

171 Wn.2d 17, 33, 246 P.3d 1260 (2011).

Counsel is presumed competent; therefore,

Mr. Rafay must show there were no

conceivable legitimate strategic or tactical

reasons for the challenged performance. Id. at

42. And to establish prejudice, Mr. Rafay

must demonstrate that, but for the deficiency,

there is a reasonable probability the trial

result would have been different. Crace, 174

Wn.2d at 842.

Id., Ex. 33 at 3-4.

The Commissioner then went on to explain her

conclusion that petitioner had not demonstrated he

was denied effective assistance of counsel in relation

to his claim that counsel failed to properly advise him

regarding testifying at the suppression hearing:

Mr. Rafay asserts that defense counsel failed

to adequately advise him of the law as it

applied to the voluntariness of confessions

such that Mr. Rafay decided not to ask to

testify at his suppression hearing. He

contends counsel advised him that he did not

have a right to have a coerced confession

suppressed if it was independently obtained

by the RCMP. There is nothing to indicate Mr.

Rafay’s assertion of his recollection of

counsel’s advice is reliable. See In re Pers.

Restraint of Rice, 118 Wn.2d 876, 886, 828

P.2d 1086 (1992) (personal restraint

petitioner may not rely on bare assertions and

conclusory

allegations

lacking

proper

evidentiary support). Cf. United States v.

Wisniewski, 478 F.2d 274, 284 (2d Cir. 1973)

(in the absence of objective evidence of

35a

corroboratory circumstances, a defendant’s

claim after a guilty verdict that he should

have been called to testify must be viewed

with some suspicion, especially when a

supporting affidavit of an attorney has not

been submitted). Mr. Rafay indicates his

counsel advised him that his testimony at the

suppression hearing would pose the risk of

alerting the State to his defense theory. And

if Mr. Rafay did testify at the hearing, he

would have been subject to cross-examination.

CrR 3.5. Mr. Rafay has not shown that

counsel had no legitimate tactical reasons for

advising Mr. Rafay not to testify, and cannot

show deficient performance in this regard. He

also fails to show resulting prejudice. Mr.

Rafay does not show that his testimony in the

suppression hearing would have led to the

granting of the motion to suppress. He claims

that he would have testified that under the

circumstances he felt trapped and in danger

of being killed if he did not cooperate with the

undercover detectives who posed as leaders of

organized crimes. But on direct appeal the

Court of Appeals observed that the evidence

in the record included many hours of audio

and video recordings that allowed the trial

court to assess the effect of the undercover

operations on the defendants including

viewing the defendants’ demeanor and body

language during the confessions. Rafay, 168

Wn. App. at 764. The Court of Appeals found

the evidence strongly supported the trial

court’s determination that defendants’

confessions were voluntary. Id. at 765. Mr.

36a

Rafay has not demonstrated a reasonable

probability that absent the claimed deficient

performance of his attorney the result would

have been different. See Yates, 177 Wn.2d at

48.

Id., Ex. 33 at 5-6.

Petitioner fails to demonstrate that this decision

of the Washington Supreme Court is contrary to, or

involved an unreasonable application of, federal law as

decided by the United States Supreme Court, or that

it was based on an unreasonable determination of the

facts in light of the evidence presented in the state

court proceeding.

The record of the suppression hearing confirms

that the Fourth Amendment issues predominated; i.e.,

whether the private communications of defendants

intercepted by the RCMP in Canada should be

suppressed pursuant to the Fourth Amendment based

on the Bellevue Police Department’s alleged

cooperation and assistance in the Canadian

investigation. However, the suggestion that

Petitioner’s counsel misunderstood or ignored the law

regarding application of the Fifth Amendment to the

voluntariness of the confessions is refuted by the

record. Petitioner’s counsel specifically argued in

petitioner’s motion to suppress that the statements of

both defendants were coerced and involuntary in

violation of the Fifth and Fourteenth Amendments.

See Dkt. 52, Ex. 34, Appendix A at 23-26 and Appendix

B at 10-22. Petitioner’s counsel also specifically argued

during the parties’ oral arguments on the motion to

suppress that the confessions were coerced and

involuntary in violation of the Fifth and Fourteenth

Amendments. Dkt. 52, Ex. 69 at 127-134. While it

37a

appears that counsel may have, on at least one

occasion, conflated the Fourth and Fifth Amendment

issues, see id., Ex. 34, Appendix A at 26, it also appears

clear that counsel understood that the Fourth and

Fifth Amendment issues were separate and involved

the application of different standards.

Aside from an uncorroborated assertion made by

petitioner in his declaration in support of his personal

restraint petition, see id., Ex. 24, App. C at 2, nothing

in the record establishes that petitioner’s counsel

advised him against testifying because of a

misunderstanding of the applicable law. Moreover,

petitioner acknowledged in his declaration that

counsel advised him his testimony at the suppression

hearing would assist the state in various ways

including: “(1) revealing potential defense testimony

at trial; (2) providing advance notice of the ways in

which we would demonstrate that the confessions

were false contrivances; (3) explaining the cryptic

intercepted messages through which Sebastian

communicated to me certain details of the story he was

improvising.” Id., Ex. 24, App. C at 3.

The record as a whole supports the conclusion that

there were strategic reasons for counsel’s

recommendation that petitioner not testify at the

suppression hearing. The record also supports the

conclusion that petitioner’s testimony would likely not

have resulted in the suppression of his statements to

the undercover officers. In fact, one of petitioner’s trial

attorneys, Marc Stenchever, submitted a declaration

in support of petitioner’s motion to modify the

Commissioner’s ruling in his first personal restraint

proceeding and acknowledged therein that he did not

believe the trial judge would grant the motions to

38a

suppress the statements of petitioner or Mr. Burns

and did not believe that any testimony by petitioner

would have affected the outcome. Id., Ex. 34, App. E.

The state appellate courts reasonably rejected

petitioner’s ineffective assistance of counsel claim and

petitioner’s second ground for federal habeas relief

should therefore be denied.

Ground Three: Right to Present a Defense

Petitioner asserts in his third ground for relief

that his rights under the Sixth and Fourteenth

Amendments to present a complete defense were

violated when the trial court excluded “other suspect”

evidence and the testimony of two defense experts.

Dkt. 34 at 82. More specifically, petitioner complains

about the exclusion of witnesses who would have

presented an alternate suspect theory by testifying to

reports made to authorities about radical Muslim

extremists who may have been responsible for the

murders of petitioner’s family. Id. at 82-83. Petitioner

also complains about the exclusion of expert witnesses

who could have established how operations like Mr.

Big are coercive in nature and how the incriminating

statements made by petitioner and Mr. Burns lacked

reliability even if they seemed credible. Id. at 83.

“Whether rooted directly in the Due Process

Clause of the Fourteenth Amendment, or in the

Compulsory Process or Confrontation clauses of the

Sixth Amendment, the Constitution guarantees

defendants ‘a meaningful opportunity to present a

complete defense.’” Crane v. Kentucky, 476 U.S. 683,

690 (1986) (quoting California v. Trombetta, 467 U.S.

479, 485 (1984)) (internal citations omitted). However,

the right to present a defense “is not unlimited, but

rather is subject to reasonable restrictions,” such as

39a

evidentiary and procedural rules. United States v.

Scheffer, 523 U.S. 303, 308 (1998).

The Supreme Court has explained that “state and

federal rulemakers have broad latitude under the

Constitution to establish rules excluding evidence

from criminal trials.” Id. The Supreme Court has also

noted its approval of “well-established rules of

evidence [that] permit trial judges to exclude evidence

if its probative value is outweighed by certain other

factors such an unfair prejudice, confusion of the

issues, or potential to mislead the jury.” Holmes v.

South Carolina, 547 U.S. 319, 326 (2006). The right to

present a meaningful defense is implicated when

exclusionary rules “infring[e] upon a weighty interest

of the accused” and are “‘arbitrary’ or ‘disproportionate

to the purposes they are designed to serve.’” Id. at 324

(citing Scheffer, 523 U.S. at 308).

A. Other Suspect Evidence

The other suspect evidence excluded by the trial

court involved tips from sources purporting to have

information concerning violent religious groups who

may have been associated with the murders of the

Rafay family. The Washington Court of Appeals

summarized the proffered other suspect evidence as

follows:

Douglas Mohammed

Several days after the murder, Douglas

Mohammed, an FBI informant who had

apparently provided “useful” information in

the past, contacted the Bellevue Police

Department and indicated he might have

information relating to the Rafay murders.

On the afternoon of July 18, 1994, Mohammed

met with Detective Thompson and Detective

40a

Gomes. Mohammed identified an individual

he characterized as the head of a local violent

Muslim faction and claimed that the man

“had indicated that Tariq Rafay should be

killed because of [his] interpretation of the

Koran.”

Mohammed told the detectives that on the

Friday after the murders, one of the men

belonging to the local faction came to

Mohammed’s house. The man, who appeared

to be nervous and frightened, asked

Mohammed if he had seen a baseball bat that

members of the group had been carrying

around. Mohammed had heard that the Rafay

family was bludgeoned to death. He thought

there might be a connection between the bat

and the murders. His references to a bat came

at a point in the investigation when police had

not yet publicly identified the possible murder

weapon.

Detective Thompson thought Mohammed

was “crazy” and not credible based in part on

his demeanor, noting that Mohammed had

“rambled on” and had identified “dozens of

people, license numbers and telephone

numbers of all sorts of people who might be

involved in killing Mr. Rafay.” Bellevue police

spoke

with

Tariq’s

relatives

and

acquaintances, who reported that he was not

a leader in his Muslim community and not

involved in any religious conflicts. Nor were

the Bellevue police aware of any violence in

the local Muslim community. Because they

found no indication that the murders were

41a

connected with a religious conflict or dispute,

Bellevue police did not pursue Mohammed’s

information.

FUQRA

Several weeks after the murders, Seattle

Police Detective Detmar contacted the

Bellevue Police Department and said that an

Islamic terrorist group known as FUQRA was

“possibly associated” with the murders.

According to Bellevue Police Officer

Schneider,

[Detmar said FUQRA] are based out of

Toronto, and that they target Muslims

who do not practice the faith or interpret

the “Koran” as they do. Det. Detmar said

that they punish these unfaithful persons

by bombing, stabbing, and murdering

them. He said that this group is very

organized

and

they

contract

assassinations [and] never take credit

openly for its actions. . . . He elaborated by

saying that on 8/1/84 there were four

incidents associated with this “FUQRA”

group and they included the bombing of

the Seattle Trade Center, bombing in

Denver, kidnapping in Kansas, [and]

triple homicide in Tacoma.

Rafay, 168 Wash. App. at 797-99.4

The Court of Appeals summarized additional proffered

other suspect evidence pertaining to the Dosanjh Group, a

Vancouver organized crime family, and an individual named

Jesse Brar. See Rafay, 168 Wash. App. at 799. However, the trial

court admitted that evidence and, thus, it is not at issue here.

42a

The trial court excluded this proposed “other

suspect” evidence, concluding that it was too

speculative and did not meet the criteria for

admissibility under Washington law. See Dkt. 52, Ex.

82 at 61-62. The Court of Appeals rejected petitioner’s

claim that the trial court’s exclusion of the other

suspect evidence violated his right to present a

defense. The appellate court began its analysis by

setting forth the Washington rule pertaining to the

admission of such evidence:

Washington has long followed the rule that

before a defendant may present evidence

suggesting another person committed the

charged offense, the defendant must first

establish a sufficient foundation, including “‘a

train of facts or circumstances as tend clearly

to point out’” someone besides the defendant

as the guilty party. The requisite foundation

requires a clear nexus between the other

person and the crime. The proposed testimony

must show a “step taken by the third party

that indicates an intention to act” on the

motive or opportunity.

Id. at 800.

The Court of Appeals went on to conclude that

The Mohammed and FUQRA tips failed to

establish any meaningful nexus between the

alleged violent Muslim factions and the Rafay

murders. The “[m]ere evidence of motive in

another party, or motive coupled with threats

of such other person, is inadmissible unless

coupled with other evidence tending to

connect such other person with the actual

commission of the crime charged.” The other

43a

suspect evidence here was far more

speculative than that which courts have found

sufficient to satisfy the necessary foundation.

. . . Under the circumstances, the trial court

did not abuse its discretion in excluding the

Mohammed and FUQRA tips as other suspect

evidence.

Id. at 801-02 (footnotes omitted).

After concluding that the other suspect evidence

was properly excluded under Washington law, the

appellate court went on to address, and reject, the

argument that the exclusionary rule itself was

unconstitutional:

Defendants suggest that Washington’s

foundational restrictions on other suspect

evidence are unconstitutional, citing Holmes

v. South Carolina. In Holmes, the Court

addressed a South Carolina rule allowing the

exclusion of third party suspect evidence

when the evidence against the defendant was

strong, “even if that evidence, if viewed

independently, would have great probative

value and even if it would not pose an undue

risk of harassment, prejudice, or confusion of

issues. But the Holmes court noted its

approval of state rules limiting other suspect

evidence, including the rule in Washington,

when the evidence was speculative or remote

or did not tend to prove or disprove a material

fact. Holmes therefore does not support the

claim that Washington’s other suspect

limitation is unconstitutional.

Id. at 802-03 (footnotes omitted).

44a

Petitioner argues that under clearly established

federal law, a criminal defendants’ rights are violated

if the trial court erroneously excludes critical and

reliable evidence. Dkt. 34 at 83. Petitioner suggests

that the other suspect evidence at issue here

constitutes such evidence because it “would have

illustrated to the jury the likelihood that an alternate

suspect had committed the crime.” Id. Petitioner

disputes the Court of Appeals’ conclusion that the

other suspect evidence was lacking in foundation and

he argues that the testimony was integral to the

defense. See id. at 85-86.

The Ninth Circuit has observed, with respect to

Supreme Court precedent on the intersection of

constitutional rights and state evidentiary rules, that

the Supreme Court’s cases have focused on whether an

evidentiary rule, by its own terms, violates a

defendant’s right to present a defense. See Moses v.

Payne, 555 F.3d 742, 757-58 (9th Cir. 2009); see also

Brown v. Horell, 644 F.3d 969, 983 (9th Cir. 2011). As

the Washington Court of Appeals explained in its

opinion affirming petitioner’s conviction, the United

States Supreme Court, in Holmes, noted its approval

of state rules limiting other suspect evidence such as

the Washington rule. See Rafay, 168 Wash. App. at

802-03. It therefore cannot be said that the evidentiary

rule underlying the exclusion of the proffered other

suspect evidence violated petitioner’s right to present

a defense.

Notably, petitioner’s argument does not appear to

challenge the constitutionality of the exclusionary rule

itself but, instead, focuses on the trial court’s exercise

of its discretion to exclude the other suspect evidence.

As the Ninth Circuit noted in both Moses and Brown,

45a

the Supreme Court has not “squarely addressed”

whether a trial court’s exercise of discretion to exclude

evidence violates a defendant’s right to present a

complete defense, nor has it clearly established a

“controlling legal standard” for evaluating such

exclusions. See Moses, 555 F.3d at 758; Brown, 644

F.3d at 983. Petitioner therefore cannot show that the

Washington Court of Appeals’ decision upholding the

exclusion of the other suspect evidence is contrary to,

or involved an unreasonable application of, clearly

established Supreme Court precedent.

B. Expert Testimony

Petitioner also asserts that the trial court

erroneously excluded expert witness testimony

regarding false confessions and the Mr. Big sting

operation. See Dkt. 34 at 86-90. The two proposed

expert witnesses were Richard Leo and Michael

Levine. Richard Leo was an associate professor of

criminology and psychology who would have testified

about false confessions and the circumstances which

give rise to them. See id. at 86-7. Michael Levine was

a retired agent of the Drug Enforcement

Administration who would have testified about

procedures and safeguards normally utilized in

undercover operations in the United States, and how

the lack of such procedural safeguards in the RCMP’s

Mr. Big operation could lead to false confessions. See

id. Petitioner argues that the confessions to the RCMP

undercover officers were the lynchpin of the state’s

case without which the defense could have built a

strong case for reasonable doubt. Id. at 86. Petitioner

maintains that absent the prohibition on the

testimony of Dr. Leo and Mr. Levine, there is a

46a

substantial likelihood that the outcome of the trial

would have been different. Id.

After extensive argument, the trial court excluded

Dr. Leo’s testimony, concluding that it was “within the

common experience of people of ordinary experience

and knowledge that people for a variety of reasons,

limited only by the human imagination, tell lies . . .

and this jury was questioned during its selection of

that very proposition and indicated they would not at

all be surprised if people did tell lies.” Rafay, 168

Wash. App. at 783; Dkt. 52, Ex. 82 at 65. The Court

went on to explain that ultimately what Dr. Leo would

be testifying to was “that this was a coerced,

compliant, false confession, and that is the final

analysis and question for this jury to decide, number

one, if it’s a confession, and number two, was it

voluntary or was it coerced?” Id.

The trial court excluded the testimony of Mr.

Levine for similar reasons, finding that, “in the final

analysis, what he does is simply, again, invade the

province of the jury to decide whether or not in their

common experience and common sense these

statements made by these defendants to those

undercover police officers are voluntary or

involuntary, are accurate or . . . ‘or false bragging.’”

Rafay, 168 Wash. App. at 792; Dkt. 52, Ex. 82 at 66.

The trial court also concluded that there was no

evidence in the record of generally accepted standards

for undercover operations relating to murder

investigations in Canada in 1994 and 1995 when the

RCMP’s undercover investigation was ongoing, nor

was there anything in Mr. Levine’s proffered findings

indicating that there were such standards in the

47a

United States during the relevant time period. Rafay,

168 Wash. App. at 793; Dkt. 52, Ex. 82 at 67.

The Washington Court of Appeals, on direct

review of petitioner’s conviction, rejected petitioner’s

challenge to the trial court’s exclusion of the testimony

of Dr. Leo and Mr. Levine. The Court of Appeals

reviewed the trial court’s decision for an abuse of

discretion under ER 702, noting that the only factor at

issue on appeal was whether the proffered expert

testimony would be helpful to the trier of fact. See

Rafay, 168 Wash. App. at 783-84.

Following an extensive discussion of the proffered

testimony of Dr. Leo, the Court of Appeals

summarized its conclusion with respect to this

proposed expert as follows:

Leo was unable to testify about any

meaningful correlation between specific

interrogation methods and false confessions

or provide any method for the trier of fact to

analyze the effect of the general concepts on

the reliability of the defendants’ confessions.

Given the defendants’ alleged basis for their

false confessions, such limitations rendered

Leo’s

proposed

testimony

potentially

confusing and misleading. Viewed in context,

Leo’s proposed testimony that if the

confessions were false, they were coercedcompliant confessions, clearly implies an

opinion that the confessions were unreliable.

Under the circumstances, the trial court’s

determination that Leo’s proposed testimony

would not be helpful and would invade the

province of the jury was at least debatable.

The trial court’s exclusion of the proposed

48a

testimony was therefore not an abuse of

discretion.

Id. at 789-90 (footnotes omitted).

With respect to the proffered testimony of Mr.

Levine, the Court of Appeals concluded that the trial

court did not abuse its discretion in excluding the

testimony for the following reasons:

Based on his extensive “findings,”

Levine’s proposed testimony clearly suggested

his belief that the confessions were false. But

as the trial court noted, the foundation for

many of those conclusory findings is difficult

to ascertain. Nor did Levine explain

adequately his understanding of Canadian

undercover investigation standards.

Levine clearly had significant experience

with various undercover operations. But as

defendants concede, there were no formal

standards governing RCMP undercover

operations in 1995. And as the trial court

indicated, even if Levine could have testified

about the standards governing United States

undercover operations in 1995, those

standards would be relevant only if there was

evidence to support Levin’s claim that the

RCMP’s failure to follow comparable

standards resulted in a “high likelihood” that

the confessions were false or unreliable.

Levine’s offer of proof is completely silent

about the foundation for this claim.55 Without

[Court of Appeals footnote 104] The trial court indicated a

willingness to consider a Frye hearing, but neither party pursued

that possibility.

49a

such a foundation, Levine’s proposed

testimony about the inadequate undercover

investigation and its coercive effects on the

defendants would have been of no assistance

to the jury. Based on the record before it, the

trial court did not abuse its discretion in

excluding Levine’s testimony.

Id. at 794.

After concluding that the trial court did not abuse

its discretion in excluding the expert witness

testimony, the Court of Appeals turned to the question

of whether exclusion of the evidence violated

defendants’ constitutional right to present a defense.

See id. at 794-97. The appellate court determined that

it did not, and explained its conclusion as follows:

The Supreme Court has repeatedly

emphasized that the mere fact an evidentiary

rule may reasonably exclude favorable

evidence does not necessarily restrict the

defendant from presenting a defense.

Evidentiary rules impermissibly abridge a

criminal defendant’s right to present a

defense only if they are “‘arbitrary’ or

‘disproportionate’” and “infringe[ ] upon a

weighty interest of the accused.” The Supreme

Court has generally found such an

abridgement only when the evidentiary ruling

effectively

prohibited

the

substantive

testimony of the defendant on matters

relevant to the defense or the testimony of a

percipient witness.

Given the limited scope of the proposed

expert testimony, the trial court’s ruling did

50a

not significantly restrict the defendants’

ability to present a meaningful defense.

Id. at 796-97 (footnotes omitted).

Petitioner does not appear to argue that the

evidentiary rule pursuant to which the expert

testimony was excluded, by its own terms, violated his

right to present a defense. Rather, he appears to once

again focus his argument on the trial court’s

discretionary decision to exclude the evidence. As

noted above in the discussion of petitioner’s claim

challenging the exclusion of the other suspect

evidence, because the Supreme Court has not

“squarely addressed” whether a trial court’s exercise

of discretion to exclude evidence violates a defendant’s

right to present a complete defense, or clearly

established a “controlling legal standard” for

evaluating such exclusions, petitioner cannot show

that the state court’s ruling was either contrary to or

an unreasonable application of clearly established

Supreme Court precedent. See Moses, 555 F.3d at 758;

Brown, 644 F.3d at 983.

The Court notes as well that even if petitioner had

challenged the exclusionary rule itself, his claim

would still likely fail. In Moses, the Ninth Circuit

specifically distinguished Rule 702, the rule under

which the expert testimony was excluded in

petitioner’s case, from other evidentiary rules the

Supreme Court has held infringe on a defendant’s

51a

right to present a complete defense. 6 The Ninth

Circuit explained that:

Rule 702 is different in kind from the rules in

Washington, Crane, Chambers, Rock, and

Holmes. The evidentiary rules in those cases,

by their terms, required the trial court to

exclude crucial evidence that had a critical

effect on the trial, with little or no rational

justification. In general, the rules precluded a

defendant from testifying, excluded testimony

from key percipient witnesses, or excluded the

introduction of all evidence relating to a

crucial defense. In contrast, Rule 702 does not

require a trial court to exclude evidence.

Rather, it authorizes a court to admit expert

testimony “if it will assist the trier of fact to

understand the evidence or a fact in issue.”

Farr-Lenzini, 970 P.2d at 318 (internal

See, e.g., Holmes, 547 U.S. at 328-31 (evidentiary rule

preventing defendant from presenting evidence of third-party

guilt based solely on trial court’s assessment of prosecution’s

evidence violated defendant’s right to a fair trial); Rock v.

Arkansas, 483 U.S. 44, 61 (1987) (evidentiary rule barring all of

the defendant’s hypnotically refreshed testimony violated

defendant’s right to present a defense); Washington v. Texas, 388

U.S. 14, 23 (1967) (evidentiary rule precluding alleged accomplice

from testifying on defendant’s behalf violated defendant’s right to

have compulsory process for obtaining witnesses); see also Crane

v. Kentucky, 476 U.S. 683, 691 (1986) (recognizing constitutional

violation where state evidentiary rule precluded defendant from

introducing any evidence relating to the unreliability of his own

confession); Chambers v. Mississippi, 410 U.S. 284, 297-98, 302

(1973) (concluding defendant’s right to a fair trial was violated

when combined effect of two state evidentiary rules precluded

him from cross-examining witness he alleged was the actual

wrongdoer).

52a

quotation marks omitted). Accordingly, a

decision that Rule 702 itself is constitutional

would be consistent with Supreme Court

precedent.

Moses, 555 F.3d 758.

As petitioner makes no showing that the

evidentiary rules pursuant to which his proffered

evidence was excluded, by their own terms, violated

his right to present a defense, and as there is no clearly

established law governing the trial court’s

discretionary decisions to exclude the evidence,

petitioner’s third ground for federal habeas relief

should be denied.

Ground Four: Prosecutorial Misconduct

Petitioner asserts in his fourth ground for relief

that repeated misconduct on the part of the prosecutor

during closing argument, and statements by key

witnesses at trial offering opinions as to petitioner’s

guilt, denied petitioner a fair trial in violation of the

Sixth Amendment. Dkt. 34 at 90. In the first section of

his fourth ground for relief, petitioner identifies three

specific examples of prosecutorial misconduct that

occurred during closing argument and which

petitioner claims tainted his trial: (1) the prosecutor

repeatedly compared petitioner and Mr. Burns to

Middle Eastern terrorists who had recently beheaded

an American citizen and filmed the execution for

worldwide broadcast; (2) the prosecutor told jurors his

father had just died in an improper attempt to garner

sympathy and establish a shared experience with

jurors who had also suffered a recent loss; and (3) the

prosecutor improperly impeached a witness integral to

petitioner’s alibi by telling jurors she smelled of

alcohol while testifying in court. Id. at 92. Petitioner

53a

also asserts that the prosecutor improperly attacked

the defendants’ credibility by calling them deceitful

and describing their protestations of innocence as

“stories,” and that the prosecutor then improperly

argued to the jury that they had to either believe

everything Mr. Burns said or everything the

undercover officers said. Id. at 93.

In the second section of his fourth ground for

relief, petitioner asserts that key prosecution

witnesses, including Detective Jeff Gomes, Officer

Greg Neese, Officer Lisa Piculell, and Officer Stephen

Cercone, expressed improper opinions on the veracity

of the accounts given by petitioner and Mr. Burns to

the police immediately following the discovery of the

murders and on the defendants’ underlying guilt. Id.

at 96.

When a prosecutor’s conduct is placed in question,

unless the conduct impermissibly infringes on a

specific constitutional right, the standard of review is

the “narrow one of due process, and not the broad

exercise of supervisory power.” Darden v. Wainwright,

477 U.S. 168, 181-82 (1986); Donnelly v.

DeChristoforo, 416 U.S. 637, 642-43 (1974). To obtain

relief on a claim of prosecutorial misconduct, a federal

habeas petitioner must do more than show that “the

prosecutor’s remarks were undesirable or even

universally condemned.” Darden, 477 U.S. at 180- 81.

A petitioner must demonstrate that the allegedly

improper comments made by the prosecutor “so

infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Darden,

477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643).

In order to assess a claim that a prosecutor’s

comments rendered a trial so fundamentally unfair as

54a

to deny a petitioner due process, it is necessary to

examine the entire proceedings and place the

prosecutor’s statements in context. See Greer v. Miller,

483 U.S. 756, 765-66 (1987). A reviewing court must

keep in mind that during closing argument a

prosecutor has wide latitude to make reasonable

inferences based on the evidence. United States v.

Molina, 934 F.2d 1440, 1445 (9th Cir. 1991).

Prosecutorial misconduct which rises to the level

of a constitutional violation nonetheless provides a

basis for federal habeas relief only if the misconduct is

deemed prejudicial under the test announced by the

Supreme Court in Brecht. See Shaw v. Terhune, 380

F.3d 473, 478 (9th Cir. 2004). Under Brecht, habeas

relief may be granted only if an error “had substantial

and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,

637 (1993).

A. Closing Argument

Petitioner essentially identifies four instances of

alleged misconduct during closing argument, each of

which was evaluated by the Court of Appeals, on direct

appeal. The Court of Appeals began its assessment of

the asserted prosecutorial misconduct claims by

identifying the standard applicable to such claims:

defendant

alleging

prosecutorial

misconduct

bears

the

burden

demonstrating that the challenged comments

were both improper and prejudicial.

Misconduct is prejudicial if there is a

“substantial likelihood” that it affected the

jury’s verdict. We review misconduct claims in

the context of the total argument, the

55a

evidence addressed, the issues in the case,

and the jury instructions.

If a defendant fails to object, we will not

review the alleged misconduct unless it was so

flagrant and ill-intentioned that no

instruction could have cured the resulting

prejudice. If the prosecutor flagrantly or

intentionally appeals to racial bias “in a way

that undermines the defendant’s credibility or

the presumption of innocence,” a court will

vacate the conviction unless it appears beyond

a reasonable doubt that the misconduct did

not affect the jury’s verdict.

Rafay, 168 Wash. App. at 824 (footnotes omitted). The

appellate court then went on to address each of the

instances of alleged misconduct separately.

1. Comparison of Murders to Terrorist

Beheading

The first of the challenged comments involved the

comparion of the Rafay family murders to a terrorist

beheading. As the Court of Appeals noted, shortly

after the prosecutor began his closing argument he

made a series of references to the beheading of an

American citizen which had been in the news,

comparing the murders of the Rafay family to that

beheading and suggesting that defendants had

“executed” petitioner’s parents and his sister. See id.

at 825-27; Dkt. 52, Ex. 86 at 37-42. Defense counsel

objected following the prosecutor’s initial reference to

the beheading and the trial court noted the objection

but indicated it was going to allow the parties some

latitude in argument. Dkt. 52, Ex. 86 at 37. Defense

counsel later moved for a mistrial based on these

56a

comments which the trial court denied. Id., Ex. 86 at

124-25.

At the beginning of the third day of closing

argument, after the prosecutor and petitioner’s

counsel had completed their closing arguments, the

state proposed a curative instruction, noting that

there

might

have

been

“a

significant

misunderstanding” about the reference to the

beheading and explaining that the purpose of the

analogy was to demonstrate defendants’ “complete

lack of empathy.” See id., Ex. 88 at 3-7. The trial court

offered to give a curative instruction, but the defense

never requested one. See id., Ex. 88 at 8-9.

Defendants argued on appeal that the

prosecutor’s argument comparing the murders to the

beheading was an attempt to inflame the jury’s

passions and encourage a decision based on ethnic,

cultural, religious, or patriotic prejudices. The Court

of Appeals agreed that the comments were “highly

improper,” but concluded that there was no

substantial likelihood that the comments affected the

outcome of the trial. Rafay, 168 Wash. App. at 828.

The Court of Appeals explained its conclusion as

follows:

By referring to the recent, well-publicized

beheading, the prosecutor introduced matters

that were not in evidence but perhaps were

already on the minds of the jurors. The

comments invoked the disturbing images that

accompanied newspaper articles of the

beheading, as well as the Internet video itself,

and could well have engendered a strong

emotional response among jurors completely

unrelated to the facts of the charged offenses.

57a

And the circumstances surrounding the

beheading had at least the potential to

resonate with any racial, religious, or ethnic

prejudice among jurors. The State’s proposed

curative instruction clearly suggests that the

deputy prosecutors recognized this possibility.

The State claims that the deputy

prosecutor properly referred to the “horrible”

nature of the crime scene in conjunction with

the argument that the defendants’ reactions

to that crime scene were consistent with guilt.

This contention is not persuasive.

The State is not precluded from

accurately characterizing the nature of the

horrific crime. But the prosecutor also has a

duty to seek verdicts that are free from

appeals to passion or prejudice. Given the

evidence that was properly before the jury,

including images that the deputy prosecutor

projected as he spoke, the references to

current events were entirely gratuitous.

We must, however, assess the effect of the

improper comments in light of all of the

surrounding circumstances, including the

lengthy trial and the remainder of the closing

argument. Unlike the cases cited by the

defendants the improper comments here were

not an open call to convict the defendants on

the basis of racial, ethnic, or religious

prejudices.

....

Here, the improper comparisons occurred

during a minor portion of the lengthy closing

argument. The deputy prosecutor did not

58a

compare the defendants directly with the

terrorists or elaborate on the political motives

underlying the terrorists’ actions. Rather, he

continued with the general theme—the

violence of the murders—by focusing on the

evidence properly before the jury and

illustrating the arguments with photographs

of the scene. . . .

When viewed in context, the alleged

racial, religious, and ethnic connotations

ascribed to the improper comments are too

attenuated to bear the weight that defendants

accord them. . . . We conclude that under the

circumstances, there was no substantial

likelihood that the references to the

beheading affected the outcome of the trial.

Id. at 829-832 (footnotes omitted).

The Court of Appeals, consistent with United

States Supreme Court authority, evaluated the

prosecutor’s challenged comments in the context of the

record as a whole and reasonably concluded that the

comments, though improper, did not affect the

outcome of the trial. The Court of Appeals noted that

the closing argument was lengthy. In fact, closing

arguments spanned a period of three days, see Dkt. 52,

Exs. 86, 87, 88, and the prosecutor’s initial closing

argument alone lasted for over 6 hours, see id., Ex. 87

at 115. The references to the beheading were, indeed,

a minor portion of the prosecution’s closing argument.

Moreover, despite petitioner’s characterization to the

contrary, the prosecutor did not compare the

defendants directly with Middle Eastern terrorists

but, rather, compared the murders to the beheadings.

See id., Ex. 86 at 37-42. The prosecutor did so in the

59a

context of emphasizing the extreme violence involved

in the murders as he showed jurors photographs of the

crime scene and discussed other properly admitted

evidence. Id.

Finally, it is important to note that the jury was

instructed on at least three occasions that the

attorneys’ “remarks, statements, and arguments”

were not evidence and were to be disregarded if not

supported by the evidence or the law. See id., Ex. 86 at

7, 64 and Ex. 88 at 192. One of those instructions was

given a relatively short time after the prosecutor’s

references to the beheading. See id., Ex. 86 at 64.

Jurors are presumed to follow their instructions, see

Weeks v. Angelone, 528 U.S. 225, 234 (2000) (citing,

Richardson v. Marsh, 481 U.S. 200, 211 (1987)), and

nothing in the record before this Court suggests that

they did not do so in this instance

Petitioner has simply not demonstrated that the

prosecutor’s remarks regarding the beheading, when

viewed in context and in light of the argument as a

whole, “so infected the trial with unfairness as to make

the resulting conviction a denial of due process.”

Darden, 477 U.S. at 181. Thus, this portion of

petitioner’s prosecutorial misconduct claim fails.

Reference to Father’s Death

The second instance of alleged misconduct

occurred during rebuttal closing argument when the

prosecutor made reference to the recent death of his

father and encouraged jurors who had not lost a

parent “to go back there and listen to the people who

have . . . and then you attempt to make sense of the

way that these defendants laughed and giggled and

snickered at the notion of their family, that is Atif

60a

Rafay’s family, being murdered.” Dkt. 52, Ex. 88 at

181. The defense later moved for a mistrial based on

this argument, but the trial denied the motion despite

expressing concern about the remarks. Id., Ex. 88 at

204-06. The Court of Appeals agreed that this

comment constituted an improper emotional appeal

but concluded there was no reasonable likelihood the

improper comment affected the jury’s verdict because

the comment was a brief and isolated assertion, and

the prosecutor immediately moved on to asking the

jury to draw inferences based on the evidence. Rafay,

168 Wash. App. at 832.

The Court of Appeals reasonably concluded that

though the prosecutor’s reference to his father’s death

was improper, there is no reasonable likelihood that

the comment affected the jury’s verdict. The comment

was, indeed, extremely brief and was made during the

course of an hours long closing argument. Moreover,

as noted above, the jury was instructed multiple times

that the attorneys’ arguments were not evidence, and

the jury is presumed to have followed those

instructions. Petitioner fails to demonstrate that the

prosecutor’s remarks referencing his father’s death,

when viewed in context, were so egregious as to

implicate due process concerns. Thus, the second

portion of petitioner’s prosecutorial misconduct claim

fails as well.

Impeachment of Jennifer Osteen

The third instance of alleged misconduct occurred

when the prosecutor implied that a defense witness,

Jennifer Osteen, was intoxicated at the time she testified. Ms. Osteen’s testimony was relevant to the defendants’ alibi as she testified that she saw the defendants in downtown Seattle as early as midnight on the

61a

night the murders occurred. See Dkt. 34 at 92. According to petitioner, this testimony established that he

and Mr. Burns could not have left the movie theater

and committed the murders before going to the Seattle

restaurant where Ms. Osteen worked as a waitress.

See id.

The prosecutor commented during the state’s

initial closing argument that Ms. Osteen “could hardly

get up and down the stairs when she testified for you.”

Dkt. 52, Ex. 86 at 68-9. The prosecutor then reminded

the jury of the instruction allowing them to consider a

witness’s manner, memory, and demeanor while

testifying in determining the witness’s credibility, and

encouraged them “to remember the way [Osteen] had

to navigate the stairs, both, into and out of the

courtroom.” Id., Ex. 86 at 69. The defense did not

object to these comments though, during the defense

closing, petitioner’s counsel referred to the comments

as a “cheap shot” and suggested that the witness had

been “obviously terrified.” Id., Ex. 88 at 55.

The prosecutor returned to the issue during rebuttal argument, commenting as follows:

Let me tell you, last week was a challenge

when Ms. Osteen was here, and I tried to be

as polite as I could with her, but you saw the

way she went up the stairs and you saw the

way she came down, and I smelled the way

she was when she went up and down the

stairs.

Id., Ex. 88 at 150. Defense counsel objected, and the

trial court sustained the objection and instructed the

jury to disregard the remark. Id. The prosecutor then

moved on to a more evidence-based argument

62a

concerning Ms. Osteen’s credibility. Id., Ex. 88 at 151.

The trial court subsequently denied a defense request

for a mistrial based on the prosecutor’s comments

about Ms. Osteen, concluding that the curative

instruction previously given had cured any prejudice.

See id., Ex. 88 at 174-75.

Once again, the Court of Appeals concluded that

the prosecutor’s comments were improper, but did not

affect petitioner’s right to a fair trial. The appellate

court explained its conclusion as follows:

The deputy prosecutor has wide latitude

to draw reasonable inferences from the

evidence. But the prosecutor may not refer to

evidence that was not presented at trial. By

reciting his personal observations of Osteen

as she entered and left the witness stand, the

deputy prosecutor improperly introduced

evidence not presented at trial and not

properly before the jury for consideration.

Defendants argue that Osteen was a

crucial defense witness and nothing short of a

mistrial would have cured the resulting

prejudice. No one reported seeing the

defendants between about 10:00 p.m., shortly

after the movie began, and when they

appeared at Steve’s Broiler. The State

maintained that the intervening period was

sufficient for the defendants to commit the

murders and clean up. The defendants’

arrival time at the restaurant was therefore

important to both sides’ theory of the case.

Osteen testified that she saw or spoke to

the defendants “around 12:00, 12:30 [a.m.]”

She characterized their appearance as

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“grubby,” suggesting they had not cleaned up

recently, and expressed her belief that the

Bellevue police had attempted to persuade

her to change her time estimate. But the

State’s witnesses—other waitresses at the

restaurant—testified that the defendants

arrived at the restaurant sometime after

12:15 a.m. or 12:30 a.m., and as late as 12:50

a.m. Osteen’s general time estimates were

therefore not fundamentally at odds with the

testimony of the other witnesses, and the

discrepancies in the perceived arrival times

are not sufficient to completely undermine

either side’s theory of the case.

The trial court quickly sustained the

defense’s objection and directed the jury to

disregard the remark. The deputy prosecutor

immediately moved on to a proper argument.

The court also repeatedly instructed the jury

that counsel’s arguments were not evidence.

Under the circumstances, the trial court’s

curative instruction was sufficient to obviate

any potential prejudice. The improper

comments did not affect the defendants’ right

to a fair trial.

Rafay, 168 Wn. App. at 833-35 (footnotes omitted).

The Court of Appeals reasonably concluded that

the prosecutor’s improper comments regarding Ms.

Osteen did not violate petitioner’s right to a fair trial.

A review of the testimony of the three waitresses who

testified regarding the defendants’ presence at Steve’s

Broiler on the night of the murders reveals that all

three, Ms. Osteen, Karen Lundquist, and Christine

Mars testified that defendants could have been at the

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restaurant as early as midnight. See Dkt. 52, Ex. 89 at

79; Ex. 90 at 211-12; Ex. 91 at 30. Thus, as the Court

of Appeals concluded, Ms. Osteen’s time estimates

were consistent with the testimony of the other

witnesses.

Moreover, the trial court immediately sustained

the defense’s objection during rebuttal closing

argument and directed the jury to disregard the

remark. The jury was specifically instructed prior to

closing argument that it was to disregard any matters

ordered stricken by the court, see Dkt. 52, Ex. 86 at 6,

and, of course, that the attorneys’ arguments were not

evidence. The jurors are presumed to have followed

the court’s instructions and petitioner makes no

showing that they failed to do so in this instance.

Petitioner once again fails to demonstrate that the

prosecutor’s remarks prejudiced the outcome of his

trial. Thus, the third portion of petitioner’s

prosecutorial misconduct claim also fails.

4. Believing Mr. Burns or Believing the

Undercover Officers

The fourth instance of alleged misconduct cited by

petitioner in his amended petition relates to the prosecutor’s argument that in order to decide the case the

jury had to either believe everything Mr. Burns testified to at trial or everything the RCMP officer testified

to.7 Dkt. 34 at 93. This argument came near the end of

Petitioner also complains that the prosecutor repeatedly

called defendants deceitful, described their protestations of

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the prosecutor’s rebuttal argument and the defense

raised no objection to the argument. The Court of Appeals, on direct review, concluded that this portion of

the prosecution’s argument did not amount to misconduct:

[W]hen viewed in context, the comment

merely highlighted the obvious fact that the

two accounts were fundamentally and

obviously different. The remarks were

therefore analogous to those approved in State

v. Wright, where the court concluded that

when the parties present the jury “with

conflicting versions of the facts and the

credibility of witnesses is a central issue,

there is nothing misleading or unfair in

stating the obvious: that if the jury accepts

one version of the facts, it must necessarily

reject the other.” The challenged comments

were not misconduct.

Rafay, 168 Wash. App. at 837 (footnote omitted).

Petitioner makes no showing whatsoever that this

challenged comment was either improper or that it

affected the outcome of his trial. The Court of Appeals

reasonably rejected the claim on direct appeal and the

innocence as “stories,” and told jurors they could not believe

anything defendants said. Dkt. 34 at 93. These comments were

scattered throughout the prosecutor’s initial closing argument

and the defense raised no objection to any of these brief

comments. See Dkt. 52, Ex. 86 at 34, 138, 163-64; Ex. 87 at 35. It

is not clear that petitioner’s argument pertaining to these

comments was ever presented to the state appellate courts for

review but, in any event, petitioner fails to demonstrate that the

comments were improper or, in any event, that they had an affect

on the outcome of the trial.

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fourth portion of petitioner’s prosecutorial misconduct

claim therefore fails.

B. Improper Opinion Testimony

Petitioner contends that he was prejudiced by

improper statements made by multiple law

enforcement officers during their testimony at trial.

Dkt. 34 at 95. Petitioner first cites to testimony from

Bellevue Police Detective Jeff Gomes in which the

detective expressed his opinion about the veracity of

statements petitioner made to officers following the

murders. Petitioner told officers that he went into his

father’s bedroom and stood near a white bookshelf,

and that he saw a large blood splatter on the wall and

his father’s feet from that vantage point even though

it was dark. See Rafay, 168 Wash. App. at 810.

Detective Gomes returned to the Rafay home on

August 9, 1994 at approximately 11:00 p.m. in an

effort to re-create the lighting conditions in the

bedroom at the time of the murder. Id. Detective

Gomes testified that “I wanted to personally view what

he said he did and then weigh what he was saying to

me. Was it accurate or inaccurate or was it fabricated

or not.” Id. Detective Gomes went on to testify that he

stood next to the white bookshelf with only the hall

light on and that he “personally could not see the

detail that [petitioner] was talking about.” Id.

Detective Gomes, in explaining why he thought the

reenactment answered a question, stated, “I don’t

believe [petitioner] saw what he said he saw.” Id. The

trial court sustained a defense objection to this

testimony and instructed the jury to disregard the

detective’s conclusion. Id.

Petitioner cites to other instances of improper

statements by Detective Gomes as well. See Dkt. 34 at

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95. Detective Gomes testified that he urged petitioner

several times to contact extended family members

about funeral arrangements, and that petitioner

repeatedly rejected this advice. Rafay, 168 Wash. App.

at 808-09. When Detective Gomes was asked what he

observed petitioner doing instead of calling his family,

Detective Gomes testified, “You know, he was just

chillin’ with his buddy.” Id. at 809. The trial court

sustained a defense objection to this testimony and

instructed the jury to disregard the detective’s

characterization of petitioner’s behavior. Id. Later in

his testimony, again with respect to the issue of

petitioner failing to contact other relatives and help

make necessary funeral arrangements, Detective

Gomes testified, “The issue was why wasn’t he doing

it? He was watching videos, movies, he was reading.”

Id. The trial court sustained a defense objection to this

testimony and ordered that the detective’s description

of petitioner’s activities be stricken. Id.

Finally, Detective Gomes testified that the

defendants were able to recount events that occurred

in the hours before the murder in “tremendous detail”

but did not remember details about events of the

preceding days. Id. Detective Gomes then commented,

“now[,] whether they couldn’t give me information or

were not willing to give me information. . . .” The trial

court sustained a defense objection to this comment

and ordered that the detective’s response be stricken.

Id.

The Court of Appeals, in evaluating Detective

Gomes’s challenged statements, explained that the

primary issue was “whether the remarks were so

prejudicial that this court cannot presume the jury

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followed the curative instructions.” The appellate

court went on to conclude as follows:

Gomes’s editorial comments and the

expression of his personal belief about Rafay’s

ability to see the blood spatters on the wall

were clearly improper. The State does not

suggest otherwise. But Gomes testified, in

great detail and without objection, about

Rafay’s inability or unwillingness to contact

his relatives after the murders and about his

other observations of Rafay’s actions before

Burns and Rafay left for Canada. Gomes also

testified, without objection, about the purpose

of the lighting re-creation, which was to

determine whether Rafay’s description was

“inaccurate or . . . fabricated” and the fact that

he was unable to see the detail Rafay had

reported.

Because the jury had before it substantial

evidence about these matters and Gomes’s

challenged comments did not inject any new

issues or details, the potential prejudice of the

improper remarks was significantly reduced.

The defendants do not allege that the State

repeated or based any argument on the

improper comments, and the jury was also

instructed that it was the sole judge of

credibility. Under the circumstances, we are

convinced that in each instance, the jury was

able to follow the trial court’s prompt curative

instructions

and

make

its

factual

determination based solely on the evidence

properly admitted.

Id. at 810-11 (footnote omitted).

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Petitioner also claims that improper opinion

testimony by Bellevue Police Officers Greg Neese, Lisa

Piculell, and Stephen Cercone violated his right to a

fair trial. Dkt. 34 at 96. Each of these officers

responded to the 911 call from the Rafay home on the

night of the murders and each observed the

defendants outside the home. See id. Petitioner cites

to testimony by Officer Neese that Mr. Burns gave him

a “grin” that “kind of shocked” him, testimony by

Officer Piculell describing petitioner as “somewhat

robotic,” and testimony by Officer Cercone describing

petitioner as “surprised and very concerned” when he

was advised he would have to go to the station to talk

in more detail to the investigating detectives. See id.

(citing Rafay, 168 Wash. App. at 806-08).

The trial court sustained defense counsel’s

objections to each of these statements and ordered

that the challenged testimony of Officers Neese and

Cercone be stricken. See Rafay, 168 Wash. App. at 80607. The trial court responded to the challenged

testimony of Officer Piculell by asking her to describe

what she saw in words. Id. at 807. She then explained,

without objection, that petitioner “made eye contact

with me. He answered the questions directly, without

elaboration, and he seemed—and he was smoking as

he was doing that.” Id.

The Court of Appeals addressed the challenges to

the testimony of these officers as follows:

Testimony that Burns’s grin “kind of shocked”

an officer and that Rafay appeared “robotic”

and “very concerned” cannot reasonably be

construed as direct comments on the guilt or

veracity of the defendants. Rather, the

comments were primarily an attempt to

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describe

the

defendants’

demeanor.

Washington courts have repeatedly found

comparable comments admissible when based

on a proper foundation of factual observations

that directly and logically support the

witness’s conclusion. The officers here

testified, without objection, in considerable

detail about their observations of the

defendants’ demeanor. When viewed in

context, the jury would likely have viewed the

comments as a reference to the defendants’

behavior rather than as an indirect opinion on

guilt or veracity. And in any event, the

challenged comments were brief and isolated,

and the trial court immediately directed the

jury to disregard them. Under the

circumstances, the curative instruction was

sufficient to remedy any potential prejudice.

Id. at 807-08 (footnotes omitted).

Respondent argues that petitioner’s claim related

to the testimony of the law enforcement officers, as

presented in the amended petition, is unexhausted.

Dkt. 51 at 51. Respondent observes that this claim

appears to be raised in the context of petitioner’s

prosecutorial misconduct claim, noting that the only

case law cited in the portion of petitioner’s argument

related to the claim are cases which set forth the

standard for reviewing claims of prosecutorial

misconduct. Id. Respondent also observes that

petitioner argues in his amended petition that the

prosecution intentionally elicited this testimony from

the officers in order to paint a picture of petitioner and

Mr. Burns as callous individuals and “kept asking

questions designed to elicit inflammatory comments.”

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Id. Respondent asserts that petitioner argued in state

court only that the challenged testimony of the law

enforcement officers constituted improper opinion

testimony regarding the guilt and/or veracity of the

defendants, not that the prosecutor’s questioning of

these witnesses amounted to misconduct. See id.; Dkt.

52, Ex. 4 at 155-162 and Ex. 13 at 31-33, 38. Thus,

respondent argues, the claim is unexhausted.

Respondent further argues that, to the extent

petitioner is actually arguing the witnesses presented

improper opinion as to his guilt, he fails to cite any

federal law supporting his claim that the challenged

testimony violated his federal rights. Dkt. 51 at 52.

Respondent goes on to argue that there is, in fact, no

clearly established federal law that would support this

claim. Id.

Petitioner, in his response to respondent’s answer,

disputes respondent’s assertion that the claim is

unexhausted, arguing that he included these

arguments in his briefs in the Washington appellate

courts. Dkt. 57 at 28. While it is true that petitioner

challenged the police officers’ allegedly improper

statements in the state courts, it is disingenuous for

petitioner to suggest that he presented the arguments

as a part of his prosecutorial misconduct claim when

it is abundantly clear from the portions of the

appellate court briefs cited by petitioner that he did

not. See id. Petitioner’s claim that the prosecutor

committed misconduct by eliciting improper

statements from the police officers was not properly

exhausted and therefore is not properly before the

Court.

Construing the second section of petitioner’s

fourth ground for relief as presenting a challenge to

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the statements themselves, and not to the prosecutor’s

alleged role in eliciting the statements, respondent is

correct that petitioner has identified no clearly

established federal law to support his claim.

Accordingly, this section of petitioner’s fourth ground

for relief must be denied as petitioner makes no

showing that the appellate court’s resolution of the

claim is contrary to, or involved an unreasonable

application of, clearly established federal law as

determined by the United States Supreme Court.

Certificate of Appealability

A petitioner seeking post-conviction relief under §

2254 may appeal a district court's dismissal of his

federal habeas petition only after obtaining a

certificate of appealability (COA) from a district or

circuit judge. A certificate of appealability may issue

only where a petitioner has made “a substantial

showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(3). A petitioner satisfies this standard

“by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional

claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322,

327 (2003). Under this standard, this Court concludes

that petitioner is not entitled to a certificate of

appealability with respect to any of the claims

asserted in his amended petition.

CONCLUSION

Based on the foregoing, this Court recommends

that petitioner’s amended petition for writ of habeas

corpus be denied and that this action be dismissed

with prejudice. This Court also recommends that a

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certificate of appealability be denied with respect to all

claims asserted in this federal habeas action. A

proposed order accompanies this Report and

Recommendation.

OBJECTIONS

Objections to this Report and Recommendation, if

any, should be filed with the Clerk and served upon all

parties to this suit within twenty-one (21) days of

the date on which this Report and Recommendation is

signed. Failure to file objections within the specified

time may affect your right to appeal. Objections should

be noted for consideration on the District Judge’s motions calendar for the third Friday after they are filed.

Responses to objections may be filed within fourteen

(14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on February 21, 2020.

DATED this 28th day of January, 2020.

______________________________

Mary Alice Theiler

United States Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.