Petition for Writ of Certiorari — Nicolas Aaron Clark, Petitioner v. Jefferey Perkins, Mental Health Unit Supervisor, Coyote Ridge Correction Center, et al.

Supreme Court briefFeb 6, 2026

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APPENDIX A

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

NOV 20 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NICOLAS AARON CLARK,

Petitioner - Appellant,

No. 25-3392

D.C. No. 3:23-cv-06027-JNW

Western District of Washington,

Tacoma

ORDER

JEFFEREY PERKINS and MELISSA

ANDREWJESKI, Superintendent,

Respondents - Appellees.

Before:

TALLMAN and KOH, Circuit Judges.

The request for a certificate of appealability (Docket Entry Nos. 8 and 11) is

denied because appellant has not shown that “jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable_whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000);

see also 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012);

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).

Any pending motions are denied as moot.

...

DENIED. ....

......

•"...... ■

..... - --------------- •..... "'■ ■■■■ ' ------

APPENDIX B

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

NICOLAS AARON CLARK,

Petitioner,

CASE NO. C23-6027 JNW

ORDER ADOPTING REPORT AND

RECOMMENDATION

MELISSA ANDREWJESKI,

Respondent.

This matter comes before theUourt on Petitioner’s Objections foTlfeReport and'

Recommendation of Magistrate Judge Grady J. Leupold. (Dkt. No. 15.) Having reviewed the

Objections, the Report and Recommendation (R&R) (Dkt. No. 13), Respondent’s Response

(Dkt. No. 17), and all supporting materials, the Court OVERRULES the Objections and

DISMISSES Petitioner’s habeas petition.

___ BACKGROUND

Petitioner Nicolas Clark seeks habeas relief under 28 U.S.C. § 2254 for constitutional

errors he claims plagued his state conviction for sexual exploitation of a minor, child

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molestation, and possession of depictions of a minor engaged in sexually explicit conduct. Clark

contends that officers violated his Miranda rights during execution of a search warrant by

eliciting from Clark the passcode to his phone that was used to retrieve the images used in his

prosecution. Clark argues that in ruling on this personal restraint petition, the state courts erred in

rejecting his Miranda, Fourth, Fifth, Sixth, and Fourteenth Amendment claims. He also argues .

that the state court improperly rejected his ineffective assistance of trial and post-conviction

relief counsel, claims which are premised on the failure to investigate his Miranda claim.

Relevant Factual Background

After holding a bench trial, the Superior Court of Washington for Clark County found

Clark guilty of three counts of sexual exploitation of a minor, two counts of first degree child

molestation, and six counts of first degree possession of depictions of a minor engaged in

sexually explicit conduct. (Dkt. 11-1 at 2-3, Ex. 1.) As the R&R explains, Clark was identified

as uploading suspected child pornography to a website in June 2018 after Detective Chadd Nolan

obtained a search warrant to investigate the source of the photos. (R&R at 2.) The first warrant

allowed police to gather information from Verizon, which helped them identify Clark as the

~ lh^~jTKOUTce vf the~photosr(Id: at 3:y PolicFtherroFtained a second warrantTo searctrClark’s residence"

and business, including any electronic devices at these locations. (Id.) During the execution of

this warrant in early October 2018, officers found Clark in possession of an iPhone that they then

seized and on which they found a large number of sexually suggestive images of a minor. (Id.)

Officers also obtained a search warrant in December 2018 to search the Clark residence to

compare evidence in the home with the images seized from the iPhone. (Id. at 4.)

A central focus of Clark’s habeas petition is his argument that officers coerced from him

the passcode to his iPhone during execution of the second warrant without a proper Miranda

24 II

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warning. The Court reviews in some detail the facts in the record of the appeals and additional

information Clark provided with his habeas petition.

First, as the State Court of Appeals noted in ruling on Clark’s direct appeal, Clark failed

to raise the claimed Miranda violation at trial and his argument on appeal relied on facts outside

of the record. (Dkt. No. 11-1 at 37.) The Court of Appeals refused to consider the claim and there

was no consideration of the argument. (Id.)

Second, Clark raised his arguments about the validity of his provision of the passcode in

his personal restrain petition (PRP). In the PRP, Clark argued that “(1) the police exceeded the

scope of the search warrant when they asked for his cellphone password, (2) the police violated

his Fifth Amendment rights when they asked for his cellphone password after he had been

advised of his constitutional rights and had requested counsel, and (3) the police violated his

Sixth Amendment rights when they continued to question him after he had requested counsel.”

(Dkt. No. 11-1 at 43.) The Court of Appeals found that he had failed to show constitutional error,

noting:

”16-

The recording of Clark’s interview with the police demonstrates that he was not under a

custodial-interrogation. Nevertheless, the police, advised him of his constitutional rights.

■-€larkwolunteered±ismellphDne^pusswoTdrTherefOTe7tteqpuftc’e”dtomx)t“exce’ed"the"TC0pe—

of the warrant. And at no point in the recording of this interview did Clark invoke the

right to an attorney. Therefore, the police did not violate his Fifth or Sixth Amendment

rights.

(Id. at 44.)

Third, in denying discretionary review of the PRP, the Washington State Supreme Court

agreed with the Court of Appeals and denied review. The Court explained, in part, the

weaknesses in Clark’s position:'

—

[Petitioner] mainly argues that when law enforcement officers first interviewed him while

executing a search warrant at his home, they exceeded the scope of a warrant by

demanding the passcode to his cell phone w'hen the warrant only authorized officers to

access the phone biometrically (fingerprint or face recognition). But the acting chief

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judge correctly determined that [Petitioner] voluntarily provided his passcode. The

transcript of the interview shows that when an officer informed [Petitioner] that the

warrant authorized biometric access to his phone, [Petitioner] responded: “I can give you

the digital code if you like? That works Just fine too.” The officer said “Okay” and asked

what the code was. [Petitioner] at first gave four numbers, and when the officer inquired

whether it was just a four-digit code, [Petitioner] corrected himself and provided six

digits. It is evident that it was entirely [Petitioner]’s idea to give the officer the code. The

officer did not prompt him to make that offer.

[Petitioner] also argues that asking for his passcode violated his rights because the

request was made during a custodial interrogation after he had invoked his right not to

talk to officers. But the interview occurred outside [Petitioner]’s home, and the

interviewing officer expressly told [Petitioner] he was not under arrest and was free to

leave. The officer did read [Petitioner] his rights, including his right to remain silent, but

though the reading of rights is required when police conduct a custodial interrogation,

[Petitioner] cites no authority for the notion that conveying rights necessarily makes an

interview custodial. And while [Petitioner] did invoke his right to not talk to the officer,

the officer did not thereafter interrogate [Petitioner] but simply pointed out to him that the

officers had a search warrant for his phone that included authority to access the phone

biometrically. [Petitioner] subsequently volunteered his passcode without being prompted

to do so, and the officer simply followed up to clarify what the code was. A volunteered

statement of any kind is constitutionally barred, and a voluntary statement does not

become the product of unlawful interrogation because an officer simply asks the

defendant to clarify the statement. State v. Godsey, 131 Wn. App. 278, 285, 127 P.3d 11

(2006). [Petitioner] does not show that officers violated his rights.

(Dkt. 11-1 at 339^40, Ex. 17.)

Fourth, with his habeas petition, Clark provides a transcript of the encounter with

T6~ "DetertivedSl'oian^during-the^xe^utTOn^fTte^rcTOft’waTrantTltTe^dsTiffretevant'pait:

CN [Chadd Nolan]: You are free to leave, okay? You are not under arrest, but because

this is a criminal investigation as per your search warrant, I’m going to read you these,

okay?

NAC [Clark]: Okay.

CN: You have the right to remain silent, anything you say can be used against you in the

court of law. You have the right to time [sic] to talk to a lawyer and have him present

with you while you are being questioned. If you can’t afford to hire a lawyer, one will be

appointed to represent you before [being] questioned, if you wish. You can decide

anytime to exercise these rights and not answer any questions or make any statements.

Do you understand each of those rights, Sir?

NAC: I do.

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CN: And having rights [sic] in mind, do you want to talk to me?

NAC: No.

CN: Ok. Um, that’s fine.. .uh, but right now.. .uh.. .we do have a search warrant for your

residence and a search warrant for your phone, and part of that search warrant, if you

have read there [sic] yet, includes your biometric ID to unlock your cell phone, so when

we do that and after we do that, um.. .we can go ahead and move on from there, okay?

NAC: Okay.

CN: Perfect.

NAC: I can give you the digital code if you’d like? That works just fine to?

(Dkt. No. 3 at 54-55.) Clark then provided the passcode and, shortly after, the officer ended the

recording.

Habeas Petition

. Clark’s habeas petition raises six grounds for relief. (.See Dkt. No. 3 at 2; see also R&R at

7-8 (Dkt. No. 13).) First, Clark argues that he received ineffective assistance of counsel at trial

because counsel did not challenge the Miranda warning and that post-conviction counsel failed

to attack the adequacy of trial counsel’s performance oh this issue. Second, Clark argues that the

T6~ officers violated his Fourth Amendment rights by exceeding the search warrant’s scope by using

the passcode, not his biometrics to unlock the iPhone. Third, Clark argues that officers violated

his Fifth Amendment right to avoid self-incrimination by not properly giving him a Miranda

warning before giving the passcode. Fourth, Clark argues the officers violated the Sixth

Amendment by continuing the interrogate him after the Miranda warning and his stated refusal to

speak to officers. Fifth. Clark argues that the State violated his Due Process rights under the

Fourteenth Amendment by using the self-incriminating statements against him at trial. Sixth,

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Clark argues that the police violated his right to remain silent by asking for the passcode after the

Miranda warning and his stated refusal to speak further.

Report and Recommendation

In the Report and Recommendation, Judge Leupold found that none of Clark’s arguments

has merit and recommended that the Court dismiss the habeas petition, deny a request for an

evidentiary hearing, and deny issuance of a certificate of appealability. As to the first ground,

Judge Leupold found that Clark had failed to exhaust his state court remedies by failing to

present it on direct appeal or in his PRP. (R&R at 24-25.) Judge Leupold also found that the

claim was procedurally defaulted and that there were no grounds for overcoming the bar on

federal review of procedurally-defaulted claims. (R&R at 25-30.) As to grounds three through

six, Judge Leupold found that the state court’s rejection of Clark’s constitutional claims is

subject to the deferential Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

standard and that the decision was not contrary to or an unreasonable application of clearly

established federal law, or based on an unreasonable determination of the facts. (R&R at 8-9

(AEDPA standard) 10-18 (merits of grounds 3-6).) Judge Leupold recommended denial of these

1-6- -claTnTS7-Astothe-secorrd-gTOTnd;JudgeL'eupold-founft-thatCIark-liM-failedW-slrow-the-state

court’s rejection of his claim that the police exceeded the scope of the warrant was contrary to or

an unreasonable application of clearly established law, or based On an unreasonable

determination of the facts. Judge Leupold then rejected Clark’s call for an evidentiary hearing

and a request for a certificate of appealability.

_____ Clark has filed pbjections to each of Judge Leupold’s determinations and Respondent has

filed a short response.

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ANALYSIS

Legal Standard

Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the

Magistrate Judge’s Report and Recommendation that has been properly objected to and may

accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); see also 28

U.S.C. § 636(b)(1).

Under AEDPA, federal habeas relief may not be granted unless the state court’s decision

was: (1) contrary to federal law then clearly established in the holdings of the Supreme Court; (2)

involved an unreasonable application of federal law; or (3) was based on an unreasonable

determination of the facts in light of the record before the state court. See Harrington v. Richter,

562 U.S. 86, 101 (2011); 28 U.S.C. § 2254(d)(l)-(2). “[A]n unreasonable application of federal

law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U.S. 362,

410 (2000). To be an unreasonable application of federal law, “the state court’s ruling on the

claim being presented in federal court [must be] so lacking in justification that there was an error

well understood and comprehended in existing law beyond any possibility for fairminded

-16- -disagTeement:”-Harrington^'62-U7Sran~037-Iirother words, “faTstate court’s-detemiiriation-that-17

a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Id. (quoting Yarborough v. Alvarado, 541 U.S.

652, 664 (2004)). Under AEDPA’s “difficult to meet” standard, “[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, 562 U.S, at 101-02

(quoting Yarborough, 541 U.S. at 664).

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Grounds 3-6 - Claims Based on Clark’s Provision of Passcode

Judge Leupold correctly determined that Clark’s Miranda, Fourth Amendment, Fifth

Amendment, and Fourteenth Amendment claims do not warrant habeas relief. In his Objections,

Clark largely presents the same arguments that he made to Judge Leupold without identifying

any error. Judge Leupold correctly determined that the state courts reasonably applied federal

law in rejecting Clark’s Miranda-based claims and finding that Clark voluntarily provided his

passcode without any violation of Miranda. The Court adopts the R&R’s detailed analysis on this

issue and finds that Clark’s objections are without merit. The record before the Court does not

show a Miranda violation. The Court OVERRULES the Objections and ADOPTS the R&R as to

these four claims.

Ground 2 - Fourth Amendment Scope of Warrant

Clark challenges Judge Leupold’s determination that the state courts reasonably rejected

lis Fourth Amendment claim that the officers exceeded the scope of the warrant by using Clark’s

jasscode. rather than biometric data to unlock the iPhone. Judge Leupold rejected the claim

because federal relief for a Fourth Amendment claim cannot be granted where the petitioner had

1-6- -a~“ftrll'~and1au’’-opp6rtunttv-to1itigate^the~claim in state coiudrfR~&R-at1-9-211citing~Stone v~

aowell. 428 U.S. 465, 494 (1976)).) Nowhere in Clark’s objections has he explained how he was

denied such an opportunity. There are no grounds to overturn the R&R on this issue. The Court

OVERRULES the Objections and ADOPTS the R&R on this claim.

21.

Ground 1 - Ineffective Assistance of Counsel

Clark has not identified any legitimate flaw in the R&R’s rejection of his first grounds for

relief—ineffective assistance of counsel. Clark concedes that the claim is time barred, but argues

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that it is nonetheless subject to review because he can meet an excuse to procedural default under

Martinez v. Ryan, 566 U.S. 1 (2012).

As Judge Leupold correctly noted, there are narrow grounds to obtain review of a

procedurally-defaulted claim. (R&R at 26-29.) The petitioner must “demonstrate cause for the

default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that

failure to consider the claims will result in a fundamental miscarriage ofjustice[.]” Boyd v.

Thompson, 147 F.3d 1124, 126 (9th Cir. 1998). To establish “cause,” a petitioner must show

some objective factor external to the defense prevented him from complying with the state’s

procedural rule. Coleman v. Thompson, 501 U.S. 722, 753 (1991) (citing Murray v. Carrier, 477

U.S. 478, 488 (1986)). To show “prejudice,” a petitioner “must shoulder the burden of showing,

not merely that the errors at his trial created a possibility of prejudice, but that they worked to his

actual and substantial disadvantage, infecting his entire trial with error of constitutional

dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).

Clark invokes Martinez v. Ryan and Shinn v. Ramirez, 596 U.S. 366 (2022) as grounds to

excuse the procedural default of his ineffective assistance of counsel claim. As the Supreme

46- -Gourthas~explained;-thereexists-alimited_exceptionwhere~“ineffective'assistance-oTstate

postconviction counsel may constitute ‘cause’ to forgive procedural default of a trial-ineffective

assistance claim, but only if the State requires prisoners to raise such claims for the first time

during state collateral proceedings.” Shinn, 596 U.S. at 380 (citing Martinez, 566 U.S. at 9).

[T]o establish ‘cause’ to overcome procedural default under Martinez, a petitioner must show:

(1) the underlying ineffective assistance of trial counsel claim is ‘substantial.’j_(2) the petitioner

was not represented or had ineffective counsel during the [post-conviction relief (“PCR”)]

proceeding; (3) the state PCR proceeding was the initial review proceeding; and (4) state law

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required (or forced as a practical matter) the petitioner to bring the claim in the initial review

collateral proceeding.” Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014).

•3

Judge Leupold correctly determined that Clark has not shown that his trial counsel’s

performance was ineffective by failing to investigate the voluntariness of Clark’s statements to

the police after the Miranda warning. (R&R at 29.) Notably, Clark did not identify what

additional investigation would have been reasonable and what it would have shown. There is no

cogent argument presented as to how counsel could have found additional grounds to bring a

challenge to the post-Miranda statements. And, as the R&R correctly notes, on direct appeal the

state court considered the merits of the Miranda claim and found no violation. There is thus no

reasonable probability that there would have been a different outcome had counsel moved to

suppress on a Miranda violation. The Court OVERRULES the Objections and ADOPTS the

R&R’s decision on this issue.

In his objections, Clark also argues that his ineffective assistance of counsel claim is

based on his counsel’s failure to challenge the scope of the second search warrant. Although

Judge LeUpold did not address this argument, it does appear in the petition. (See Dkt. No. 3 at

1-6-

^9r)-But-Clark-has~not~articuiated~a~basis~on-which~hi's~argument''meets-the-~Martinez/Shinn

requirements. Notably absent is any basis on which to believe that the police went beyond the

scope of the warrant when it was Clark himself who volunteered the passcode. And outside of

the ineffective assistance of counsel context, Judge Leupold did consider the merits of Clark’s

Fourth Amendment claim premised on this theory and correctly held that the state court properly

rejected it. This undermines Clark’s clairn of ineffective assistance of counsel because there is no

evidence of a likelihood of different outcome had counsel made the argument.

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Nor is the Court convinced by an additional case that Clark has identified in his

Objections. (See Obi "ns at 10-11 (citing United States v. Maffei, No. 18-CR-00174-YGR-1,

2019 WL 1864712, at *4-*5 (N.D. Cal. Apr. 25, 2019)).) Maffei provides little support because

the Court there found a Fourth Amendment violation when the passcode used to unlock the

iPhone was obtained from the defendant in violation of the defendant’s Miranda rights. See

United States v. Maffei, No. 18-CR-00174-YGR-1,2019 WL 1864712, at *4-*5 (N.D. Cal. Apr.

25, 2019). Here, with no Miranda violation, this case lends no support even if the Court accepts

that there is a difference between biometric and numeric passcodes. Clark has not shown that

counsel’s failure to investigate or present this argument demonstrates ineffective assistance of

counsel or that it was substantial.

The Court OVERRULES the Objections and ADOPTS the R&R on these claims. This

applies to Clark’s attack to both his trial and appellate counsel’s performance.

Evidentiary Hearing

The Court agrees with Judge Leupold that there is no reason to hold an evidentiary

rearing. The extra-record information (the transcript of the passcode disclosure) does little to

1-6“ suggestthatanevidentiary-hearing-wouldbe-waiTanted7)TprcrductiverThe”CourtA:DOPTS-th-e

R&R’s determination that an evidentiary hearing is unwarranted.

Certificate of Appealability

The Court ADOPTS the R&R’s denial of a certificate of appealability. No jurist of reason

could disagree with this Court’s evaluation of Clark’s claims or would conclude the issues

rresented m the Petition should proceed further.

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CONCLUSION

Clark has not demonstrated any errors in the Report and Recommendation’s rejection of

his habeas petition. None of the claims warrant relief. The Court therefore OVERRULES the

Objections, ADOPTS the Report and Recommendation, and DISMISSES the Petition. The Comt

declines to issue a certificate of appealability.

The clerk is ordered to provide copies of this order to all counsel.

Dated April 16, 2025.

Marsha J. Pechman

United States Senior District Judge

-1-6-

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

NICOLAS AARON CLARK,

Petitioner,

CASE NO. 3:23-cv-06027-JNW-GJL

REPORT AND RECOMMENDATION

MELISSA ANDREWJESKI,

Noting Date: May 17, 2024

Respondent.

The District Court has referred this action to United States Magistrate Judge Grady J.

Leupold. Petitioner Nicolas Aaron Clark, proceeding pro se, has filed a federal Petition for writ

of habeas corpus (“Petition”) pursuant to 28 U.S.C. § 2254, seeking relief from his state court

convictions and sentence. Dkt. 3. Petitioner has raised six grounds for relief.

After considering the record, the Court concludes Petitioner failed to properly exhaust his

state court remedies as to one ground raised in the Petition. Because Petitioner is now barred

from pursuing state court remedies, Petitioner has procedurally defaulted on that ground raised in

the Petition. Further, the Court finds the state courts’ adjudication of the five exhausted grounds

was not contrary to, or an unreasonable application of, clearly established federal law, or was

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based on an unreasonable determination of the facts in light of the evidence presented in the state

court proceedings.

Therefore, the Court recommends the Petition be DENIED on all grounds and a

certificate of appealability not be issued.

I. BACKGROUND

Factual Background

On September 12,2019, in the Superior Court of Washington for Clark County (“trial

court”), following a bench trial Petitioner was found guilty of three counts of sexual exploitation

of a minor, two counts of first degree child molestation, and six counts of first degree possession

of depictions of a minor engaged in sexually explicit conduct. Dkt. 11-1 at 2-3, Ex. 1. The Court

of Appeals of the State of Washington (“state court of appeals”) summarized the facts of

Petitioner’s case as follows:

FACTS

I. NCMEC Tip and First Warrant

On August 30, 2018, Vancouver Police Department Sergeant Joe Graaff

assigned Detective Chadd Nolan an investigative tip from the National Center for

Missing and Exploited Children (NCMEC). The tip explained that Tumblr.com, an

electronic service provider, submitted information to the NCMEC tip line that an

image of suspected child pornography had been uploaded through its servers.

Tumblr.com reported “that on or about June 23, 2018, a subject using the Uniform

Resource Locator (URL) funrufus.tumblr.com attempted to, or did, pass an image

identified as child pornography through their servers.” Clerk’s Papers (CP) at 235.

The tip included two Internet Protocol (IP) addresses of the subject at the time of

the incident. Based on the IP addresses, police officers were able to verify that the

subject spent time in Vancouver.

Based on this tip, Detective Nolan filed an affidavit for a search warrant on

September 26, 2018. The affidavit requested subscriber information from Verizon

and Comcast related to the IP addresses, as well as information from Tumblr.com

and Yahoo related to the URL and e-mail accounts provided in the tip. Detective

Nolan included information describing his experience and training in cybercrime,

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facts about Tumblr.com and the “funrufus” account, and the IP addresses. Detective

Nolan’s affidavit described the image:

The suspect image contains a single pre-pubescent female being

directed to pose for the camera. The child is clothed in underwear.

However the child has been instructed to pull aside her underwear

exposing her vagina. The child’s legs are separated making the focal

point, of the picture the vagina area.

CP at 132. The image was not attached to the affidavit.

Based on this affidavit, the trial court granted a search warrant (September 2018

warrant) to collect subscriber information from Verizon related to the suspect IP

addresses. Verizon provided responsive data that showed accounts connected to the

IP addresses were registered to a Camas address owned by Clark and his wife, and

a business in Vancouver owned and operated by Clark. Verizon also provided a

cellular telephone number associated with the suspect cell phone that matched

Clark’s number.

II. Second Warrant and Arrest

On October 1, 2018, based on the information collected from Verizon,

police officers sought and received a second search warrant (October 2018 warrant)

to search Clark’s residence and business. The October 2018 warrant included

permission to search any electronic devices discovered at the house or business.

On October 5, 2018, one team of police officers searched Clark’s home

while another team searched his business. Police officers rang the doorbell at

Clark’s home, and Clark answered the door. Officers explained to Clark that they

had a search warrant and asked him to step outside, which he did. Clark had an

iPhone on his belt that officers seized. Officers examined the phone and determined

that the number matched the one provided by Verizon. A search of the contents of

the phone revealed more than 1,000 images depicting children engaged in sexual

conduct. The phone also contained stored accounts, including a Tumblr.com

application, with “funrufus” as the user name. Officers arrested Clark.

Subsequent analysis of other electronic devices registered to Clark and

seized from the home, revealed other caches of child pornography. On October 9,

2018, the State charged Clark with five counts of first degree possession of

depictions of a minor engaged in sexually explicit conduct and one count of second

degree possession of depiction of a minor engaged in sexually explicit conduct.

Some images found on Clark’s devices depicted a female child in a pink

nightgown touching an adult penis, and other images depicted the hand of an adult

male. By comparing bed sheets and underwear located in Clark’s house to those

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depicted in the photographs, police determined that these images were created at

Clark’s residence.

III. Third Warrant and Amended Information

On December 4, 2018, Detective Nolan requested and received a third

warrant (December 2018 warrant), based on the comparisons of the photographs,

to re-enter the Clark residence to seize clothing and bed sheets observed in the

images. Police officers also obtained photographs of Clark’s exposed body. During

the search, officers seized bed sheets and a nightgown matching those in the images.

Clark’s wife then identified a child in the images as someone she knew and was

closely associated with.

On December 6, 2018, the State filed an amended information. In addition

to the charges of possession of depictions of a minor engaged in sexually explicit

conduct, the State added one count of first degree rape of a child, three counts of

sexual exploitation of a minor, and two counts of first degree child molestation. The

State also alleged sentencing aggravators of using a position of trust or confidence

to facilitate the commission of the crimes, RCW 9.94A.535(3)(n), and the free

crime aggravator under RCW 9.94A.535(2)(c).

IV. Motion to Suppress Evidence and Fourth Warrant

On February 15, 2019, Clark filed a motion to suppress all evidence

collected during the course of the police investigation, arguing that Detective

Nolan’s affidavit in support of the September 2018 warrant failed to establish

probable cause. In response to Clark’s motion, Sergeant Graaff sought an additional

warrant (April 2019 warrant) based on an affidavit signed by Sergeant Graaff that

did not include any information gained as a result of the first warrant. Clark

stipulated that none of the evidence seized following the first warrant was used in

Sergeant Graaffs affidavit.

Sergeant Graaffs affidavit, filed in April 2019, again requested subscriber

information from Verizon. The affidavit also included information from the tip

regarding NCMEC and Tumblr.com, the information about the “funrufus” account,

and the IP address information. Sergeant Graaffs affidavit contained a more

graphic description of the image provided in the tip and did not refer to the child

being directed or instructed to pose in any particular manner. The trial court signed

the April 2019 search warrant. However, police did not serve the warrant on or seek

the information from Verizon.

The trial court held a CrR 3.6 hearing on Clark’s motion to suppress on

August 19, 2019. The State argued that both the September 2018 warrant and the

April 2019 warrant were supported by probable cause and that if the trial court

disagreed, the evidence would still be admissible under the independent source

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doctrine. The trial court agreed with the State. In its conclusions of law regarding

the September 2018 warrant’s probable cause, the trial court concluded:

3.3 The description of the image of the juvenile female in question

meets the definition of sexually explicit conduct found in RCW

9.68A.870.

3.4 The affidavit’s description that suspected child pornography had

been uploaded and that the URL funrufus.tumblr.com passed or

attempted to pass an image identified as child pornography through

their servers is a sufficient description of the defendant’s alleged

criminal activity.

3.5 While the use of the term “child pornography” may not satisfy

the particularity requirement of the Fourteenth Amendment, the

detailed description of the photograph found in the search warrant

affidavit satisfies the particularity requirement.

3.7 ... In the case at bench, the focus of the image is on a minor

female’s vagina with legs spread and underwear pulled aside. The

inference is that the child was posed for sexual stimulation.

3.8 The search warrant affidavit establishes probable cause.

CP at 235-36.

Likewise, regarding the April 2019 warrant’s probable cause, the trial court

concluded:

4.1 Washington [S]tate recognizes the independent source doctrine

as an exception to the exclusionary rule. State v. Coates, 107 Wn.2d

882, 887 (1987) (explaining that a search warrant may be upheld if

the affidavit contains sufficient facts to establish probable cause

independent of any illegally obtained information in the affidavit).

4.2 The second search warrant affidavit establishes probable cause.

CP at 236 (citation omitted).

V. Trial and Sentence

Clark waived his right to a trial by jury and the case proceeded to a bench

trial on September 10, 2019. In Clark’s waiver, he stated, “I understand that by

waiving my right to a jury trial, I am still presumed innocent but that the Judge

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alone will decide whether the State has proven my guilt beyond a reasonable

doubt.” CP at 233.

At trial, Clark’s wife identified a girl depicted in images recovered by

police, testifying that she was a child Clark’s wife knew and was closely associated

with. She testified that the child would have been eight years old or younger in the

images. Clark’s wife was also able to identify Clark’s body parts in the images.

The trial court found Clark guilty of three counts of sexual exploitation of a

minor, two counts of first degree child molestation, and six counts of first degree

possession of depictions of a minor engaged in sexually explicit conduct. The trial

court found Clark not guilty on the charge of first degree rape of a child. The trial

court also found Clark used his position of trust or confidence to facilitate the

commission of the crimes and also added the free crime aggravator under RCW

9.94A.535(2)(c). The trial court sentenced Clark to an exceptional sentence of 258

months based on the aggravating factors.

Dkt. 11-1 at 25-30, Ex. 2.

Procedural Background

Direct Appeal

On November 25, 2019, the trial court sentenced Petitioner to an exceptional sentence of

258 months based on the aggravating factors. Dkt. 11-1 at 7,15, Ex. 1. Represented by counsel,

Petitioner raised one ground for review in a challenge to his convictions and sentence. Dkt. 11-1,

Ex. 4. Petitioner also filed a pro se direct appeal brief with eight additional grounds for review.

Dkt. 11-1, Ex. 5. The state court of appeals affirmed Petitioner’s convictions on June 22, 2021.

Dkt. 11-1, Ex. 2.

Petitioner sought discretionary review by the Washington Supreme Court (“state supreme

court”). Dkt. 11-1, Ex. 8. On November 3, 2021, the state supreme court denied Petitioner’s

petition for review without comment. Dkt. 11-1, Ex. 9. The state court of appeals issued its

mandate on December 9, 2021. Dkt. 11-1, Ex. 10.

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Personal Restraint Petition

On June 21, 2022, Petitioner filed a Personal Restraint Petition (“PRP”) in the state court

of appeals. Dkt. 11-1, Ex. 11. The state court of appeals dismissed the PRP on December 28,

2022. Dkt. 11-1, Ex. 3. Petitioner sought discretionary review by the state supreme court. Dkt.

11-1, Exs. 15, 16. On April 5, 2023, the state supreme court denied Petitioner’s motion for

discretionary review. Dkt. 11-1, Ex. 17.

Federal Petition

On November 9, 2023, Petitioner filed the instant Petition raising six grounds for relief.

Dkt. 3. On February 26, 2024, Respondent filed, and served on Petitioner, an Answer. Dkt. 10.

Petitioner filed a Traverse on March 18, 2024. Dkt. 12. Thus, the Petition is ripe for

consideration.

n. DISCUSSION

In the Petition, Petitioner raises the following six grounds for relief:

1. Sixth Amendment Violation: Ineffective assistance of trial and post-conviction

relief (“PCR”) counsel because trial counsel did not raise a Miranda challenge

to Petitioner’s confession, and PCR counsel did not raise a related ineffective

assistance of trial counsel claim;

2. Fourth Amendment Violation: Police violated Petitioner’s Fourth Amendment

rights by exceeding the scope of the search warrant when the officer asked

Petitioner for the passcode to his iPhone;

3. Fifth Amendment Violation: Police violated Petitioner’s right against self

incrimination when they did not Mirandize Petitioner before asking him for the

passcode to his iPhone;

4. Sixth Amendment Violation: Police violated Petitioner’s ^osl-Miranda right to

remain silent when they continued the interrogation without the presence of

counsel or a waiver from Petitioner;

5. Fourteenth Amendment Violation: The State violated Petitioner’s due process

rights by convicting him using self-incriminating statements obtained in

violation of Petitioner’s Fifth Amendment right against self-incrimination; and

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6. Miranda Violation: Police violated Petitioner’s right to remain silent when they

asked for the passcode to his iPhone after he invoked his Fifth Amendment right

to remain silent.

Dkt. 3.

In the Answer, Respondent maintains that the state courts’ adjudication of Grounds 2

through 6 was not contrary to, or an unreasonable application of, clearly established federal law,

or was based on an unreasonable determination of the facts in light of the evidence presented at

the state court proceedings. Id. at 13-23. Additionally, Respondent asserts that Petitioner failed

to exhaust Ground 1 and this Ground is now barred from federal review. Id. at 23-28. The Court

will discuss the merits of Grounds 2 through 6 before addressing exhaustion and procedural

default as to Ground 1.

Merits Review (Grounds 2 through 6)

Respondent maintains Ground 2 through 6 of the Petition were fairly presented to the

state courts and should be denied here on the merits pursuant to 28 U.S.C. § 2254(d).

Standard ofReview

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

may not grant habeas relief on the basis of a claim adjudicated on the merits in state court unless

the adjudication “resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). In interpreting this portion of the federal habeas rules,

the Supreme Court has ruled a state decision is “contrary to” clearly established Supreme Court

precedent if the state court either (1) arrives at a conclusion opposite to that reached by the

Supreme Court on a question of law, or (2) confronts facts “materially indistinguishable” from

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relevant Supreme Court precedent and arrives at an opposite result. Williams v. Taylor, 529 U.S.

362, 405 (2000).

Moreover, under § 2254(d)(1), “a federal habeas court may not issue the writ simply

because that court concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. Rather, that application must

also be unreasonable.” Id. at 411; see Lockyer v. Andrade, 538 U.S. 63, 69 (2003). An

unreasonable application of Supreme Court precedent occurs “if the state court identifies the

correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts

of the particular state prisoner’s case.” Williams, 529 U.S. at 407. In addition, a state court

decision involves an unreasonable application of Supreme Court precedent ‘“if the state court

either unreasonably extends a legal principle from [Supreme Court] precedent to a new context

where it should not apply or unreasonably refuses to extend that principle to a new context where

it should apply.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Williams, 529

U.S. at 407).

With respect to § 2254(d)(2), a petitioner may only obtain relief by showing that the state

court’s conclusion was based on “an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.” Miller-El v. Dretke, 545 U.S. 231, 240 (2005)

(quoting 28 U.S.C. § 2254(d)(2)); see also Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (“[A]

decision adjudicated on the merits in a state court and based on a factual determination will not

be overturned on factual grounds unless objectively unreasonable in light of the evidence

presented in the state-court proceedings.”). 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.” Dretke, 545 U.S. at 240 (quoting 28 U.S.C. § 2254(e)(1)).

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Grounds 3 — 6

In Grounds 3 through 6 of the Petition, Petitioner alleges his constitutional right to

remain silent, right to counsel, and right against self-incrimination were violated during his

interactions with police during their investigation. See Dkt. 3 at 8-18. In the Answer, Respondent

maintains the state courts’ adjudication of these related Grounds was not contrary to, or an

unreasonable application of, clearly established federal law, or that the decision did not rest upon

an unreasonable determination of the facts in light of the evidence before the state court. Dkt. 10

at 13-21. Upon review, the Court agrees.

The Fifth Amendment guarantees that “[n]o person ... shall be compelled in any

criminal case to be a witness against himself.” U.S. Const, amend. V. This privilege applies in

the context of custodial interrogations, Miranda v. Arizona, 384 U.S. 436, 467 (1966), and is

binding on the states, Malloy v. Hogan, 378 U.S. 1, 6 (1964). In Miranda, the Supreme Court

identified certain procedural safeguards which must precede an in-custody interrogation.

Miranda, 384 U.S. at 478-79. In particular, a person who has been taken into custody, or

deprived of his freedom in any significant way, must be informed that he has the right to remain

silent and that he has the right to have an attorney present during questioning. Id.

The Supreme Court has explained that in the context of Miranda, the word “custody” is a

“term of art that specifies circumstances that are thought generally to present a serious danger of

coercion.” Howes v. Fields, 565 U.S. 499, 508-09 (2012). In determining whether a person is “in

custody” for purposes of Miranda, the Supreme Court has held that “[t]wo discrete inquiries are

essential: first, what are the circumstances surrounding the interrogation; and second, given those

circumstances, would a reasonable person have felt he or she was not at liberty to terminate the

interrogation and leave.” Thompson v. Keohane, 516 U.S. 99, 112 (1995). A person is not in

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custody for purposes of Miranda if there is no “formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121,

1125 (1983) (per curiam) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). The

“ultimate inquiry” is whether there was “a formal arrest or restraint on freedom of movement of

the degree associated with a formal arrest.” Id. If there was, Miranda warnings are required.

Miranda, 384 U.S. at 458 (“Unless adequate protective devices are employed to dispel the

compulsion inherent in custodial surroundings, no statement obtained from the defendant can

truly be the product of his free choice.”). On the other hand, if an individual is free to leave, then

no there is no concern their statements will be compelled by the coercive influence of a custodial

interrogation and, thus, Miranda's prophylactic remedies do not apply.

The Supreme Court has also explained that this “freedom-of-movement” inquiry requires

a reviewing court to “examine ‘all of the circumstances surrounding the interrogation.’” Howes,

565 U.S. at 509 (quoting Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam)).

Relevant factors include “the location of the questioning, its duration, statements made during

the interview, the presence or absence of physical restraints during the questioning, and the

release of the interviewee at the end of the questioning.” Id. (internal citations omitted); see also

United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002).

Determining whether an individual is in custody is only part of the applicable analysis, as

Miranda only applies to individuals subject to custodial interrogations. As the Supreme Court

explained in Rhode Island v. Innis, not every exchange between police and an individual in

custody amounts to an interrogation, 446 U.S. 291 (1980). Rather, “since the police surely

cannot be held accountable for the unforeseeable results of their words or actions, the definition

of interrogation can extend only to words or actions on the part of police officers that they should

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have known were reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at 301-

02 (emphasis in original).

Once Miranda's procedural safeguards apply, the police may interrogate the suspect,

without the presence of an attorney only if the suspect voluntarily, knowingly and intelligently

waives his rights. Miranda, 348 U.S. at 444. This waiver need not be spoken through talismanic

phrase or even communicated affirmatively—an individual may implicitly waive their rights

simply by talking with police and answering questions. Berghuis v. Thompkins, 560 U.S. 370,

383-85 (2010). Once an individual has waived their rights, the police may continue with their

interrogation unless and until the individual has “unequivocally” invoked their right to silence or

requested counsel. See Miranda, 384 U.S. at 474; Edwards v. Arizona, 451 U.S. 477, 484-85

(1981); Arizona v. Roberson, 486 U.S. 675 (1988); Minnick v. Mississippi, 498 U.S. 146 (1990).

In the face of an unequivocal invocation, any conduct reasonably anticipated to elicit an

incriminating response must halt. See Innis, 446 U.S. at 301-02. However, “Miranda and

Edwards apply only to custodial interrogation.” Bradford v. Davis, 923 F.3d 599, 617-18 (9th

Cir. 2019).

Beyond the context of a custodial interrogation, the right against self-incrimination

requires that any testimonial statement obtained by law enforcement must still be voluntary to be

admissible. A voluntary statement is one that is the product of a rational intellect and free will.

Blackbum v. Alabama, 361 U.S. 199, 208 (1960). No one factor is determinative. Instead, the

“totality of the circumstances” must be considered. Crane v. Kentucky, 476 U.S. 683 (1986).

This includes both the characteristics of the accused and the details of the interrogation.

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

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In determining whether a statement was voluntary the Court must consider whether, “the

government obtained the statement by physical or psychological coercion or by improper

inducement so that the suspect’s will was overbome.” Derrick v. Peterson, 924 F.2d 813, 817

(9th Cir. 1990), overruled in part on other grounds by United States v. Preston, 751 F.3d 1008

(9th Cir. 2014). Whether a statement is voluntary within the meaning of the Due Process Clause

“turns as much on whether the techniques for extracting the statements, as applied to this

suspect, are compatible with a system that presumes innocence and assures that a conviction will

not be secured by inquisitorial means as on whether the defendant’s will was in fact overbome.”

Miller v. Fenton, 474 U.S. 104, 116 (1985).

A state court’s subsidiary factual determinations underlying the issue of voluntariness are

entitled to a presumption of correctness and its conclusions entitled to great weight. Id., 474 U.S.

at 112. See also Derrick, 924 F.2d at 823 (“[A] state trial court’s determination that a defendant

knowingly and intelligently waived his Miranda rights is entitled to a presumption of correctness

pursuant to section 2254(d).”). However, the ultimate issue of voluntariness raises a legal

question requiring independent federal determination. Miller, 474 U.S. at 112.

Here, the state courts considered Grounds 3 through 6 in its decisions on Petitioner’s

PRP, and rejected them. Dkt. 11-1, Ex. 3. First, the state court of appeals explained its

conclusion as follows:

[Petitioner] argues that (1) the police exceeded the scope of the search warrant when

they asked for his cellphone password, (2) the police violated his Fifth Amendment

rights when they asked for his cellphone password after he had been advised of his

constitutional rights and had requested counsel, and (3) the police violated his Sixth

Amendment rights when they continued to question him after he had requested

counsel.

* * *

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The recording of [Petitioner’s] interview with the police demonstrates that he was

not under a custodial interrogation. Nevertheless, the police advised him of his

constitutional rights. [Petitioner] volunteered his cellphone password. Therefore,

the police did not exceed the scope of the warrant. And at no point in the recording

of this interview did [Petitioner] invoke the right to an attorney. Therefore, the

police did not violate his Fifth or Sixth Amendment rights.

Dkt. 11-1 at 43y-44, Ex. 3. Further, in its denial of discretionary review, the state supreme court.

provided additional findings and conclusions:

[Petitioner] mainly argues that when law enforcement officers first interviewed him

while executing a search warrant at his home, they exceeded the scope of a warrant

by demanding the passcode to his cell phone when the warrant only authorized

officers to access the phone biometrically (fingerprint or face recognition). But the

acting chief judge correctly determined that [Petitioner] voluntarily provided his

passcode. The transcript of the interview shows that when an officer informed

[Petitioner] that the warrant authorized biometric access to his phone, [Petitioner]

responded: “I can give you the digital code if you like? That works just fine too.”

The officer said “Okay” and asked what the code was. [Petitioner] at first gave four

numbers, and when the officer inquired whether it was just a four-digit code,

[Petitioner] corrected himself and provided six digits. It is evident that it was

entirely [Petitioner’s idea to give the officer the code. The officer did not prompt

him to make that offer.

[Petitioner] also argues that asking for his passcode violated his rights because the

request was made during a custodial interrogation after he had invoked his right not

to talk to officers. But the interview occurred outside [Petitioner’s home, and the

interviewing officer expressly told [Petitioner] he was not under arrest and was free

to leave. The officer did read [Petitioner] his rights, including his right to remain

silent, but though the reading of rights is required when police conduct a custodial

interrogation, [Petitioner] cites no authority for the notion that conveying rights

necessarily makes an interview custodial. And while [Petitioner] did invoke his

right to not talk to the officer, the officer did not thereafter interrogate [Petitioner]

but simply pointed out to him that the officers had a search warrant for his phone

that included authority to access the phone biometrically. [Petitioner] subsequently

volunteered his passcode without being prompted to do so, and the officer simply

followed up to clarify what the code was. A volunteered statement of any kind is

constitutionally barred, and a voluntary statement does not become the product of

unlawful interrogation because an officer simply asks the defendant to clarify the

statement. State v. Godsey, 131 Wn. App. 278,285,127 P.3d 11 (2006). [Petitioner]

does not show that officers violated his rights.

Dkt. 11-1 at 339-40, Ex. 17.

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Petitioner fails to demonstrate that the state courts’ adjudication of these Grounds was

contrary to or an unreasonable application of clearly established federal law, or that the ruling

was an unreasonable determination of the facts. The state courts applied the proper standard in

assessing whether police violated Petitioner’s rights during the interview about his cell phone

passcode and reasonably concluded that they did not.

The state courts’ conclusion is supported by the record of Petitioner’s interview.

Specifically, a review of the interview transcript shows that the interview took place outside

Petitioner’s home and that police initially said to Petitioner, “[Y]ou are free to leave, okay? You

are not under arrest, but because this is a criminal investigation as per your search warrant, I’m

going to read you these [Miranda warnings], okay?” Dkt. 3 at 54, Appx. A (Transcript of Oct. 5,

2018 Interview). Though the officer clearly advised Petitioner he was not under arrest and was

free to leave, he nonetheless informed him of his Miranda rights.

After police provided Petitioner with his Miranda warnings and Petitioner indicated his

understanding, the detective asked whether Petitioner wished to speak with police, and Petitioner

said, “No.” Id. at 54-55. The detective did not ask him any further questions, but explained to

Petitioner the circumstances of the investigation, specifically a search warrant:

Okay. Um, that’s fine . . . uh, but right now ... uh ... we do have search warrant

for your residence and a search warrant for your phone, and part of that search

warrant, if you have read there yet, includes your biometric ID to unlock your cell

phone, so when we do that and after we do that, um ... we can go ahead and move

on from there, okay?

Id. at 55. At that point, Petitioner volunteered that he could provide police with the digital

passcode to open the phone instead, stating, “I can give you the digital code if you’d like? That

works just fine too.” Id. The detective replied, “Okay, what, what is the code?” and Petitioner

then offered a four digit passcode. Id. When the detective repeated the code in order to confirm it

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and asked, “Just a four digit code?” Petitioner immediately corrected himself with a six digit

code. Id. The detective then stopped the interview. Id.

In the Answer to the Petition, Respondent assumes, without conceding, that Petitioner’s

revelation of his digital passcode qualifies as testimonial in nature for purposes of his right

against self-incrimination, and urges the Court to find Petitioner made a voluntary statement that

was not in the context of a custodial interrogation and thereby consented to the search of his cell

phone. Dkt. 10 at 18 (citing United States v. Hernandez, No. 18-cr-1888-L, 2018 WL 3862017,

at *3-5 (S.D. Cal. Aug. 13,2018) (finding the contents of a cell phone need not be suppressed as

fruits of a Miranda violation unless the digital passcode was obtained involuntarily)).1

First, the state court reasonably concluded Petitioner was not “in custody” when he

shared his passcode with police. During his conversation with law enforcement, Petitioner was at

1 In denying the defendant’s motion to suppress the results of a cell phone search, the court reasoned as follows:

The code was used to access the contents of the cell phone by Agent Creiglow during the

interrogation, and again by the forensic analyst after the Government obtained a search warrant. As

such, the contents would not have been discovered but for Defendant's demonstration of the

passcode after her invocation. Defendant contends that the contents must be suppressed because

they are the fruit of a Miranda violation. Generally, the physical fruits of a coerced statement must

be excluded when necessary to protect the privilege against self-incrimination. [United States v.

Patane, 542 U.S. 630 [(2004)]. However, “[w]here there is no evidence of coercion or a denial of

due process in elicitation of the statements, the object of the fifth amendment exclusionary rule—

assuring trustworthiness of evidence introduced at trial—is not served by barring admission of the

derivatively obtained evidence or statements.” United States v. Gonzalez-Sandoval, 894 F.2d 1043,

1048 (9th Cir. 1990). In determining the existence of coercion, the Court looks to the totality of

circumstances including: “the age of the accused, [her] intelligence, the lack of any advice to the

accused of [her] constitutional rights, the length of detention, the repeated and prolonged nature of

the questioning, and the use ofphysical punishment such as the deprivation of food or sleep.” United

States v. Haswood, 350 F.3d 1024,1027 (9th Cir. 2003).

As noted above, the conditions surrounding Defendant's interrogation do not demonstrate the kind

of psychological or physical duress needed to show involuntariness. Accordingly, the Court

concludes that Defendant's demonstration of her passcode after requesting an attorney is subject to

suppression for violation of Miranda, but the contents of the phone which were accessed by virtue

of the passcode demonstration are not subject to suppression.

Hernandez, 2018 WL 3862017, at *4-5.

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his home; he was not physically restrained nor was he told he was not free to go. Rather, at the

interview Petitioner was advised he was free to leave and was not under arrest. Dkt. 3 at 54. Both

the Supreme Court and the Ninth Circuit have “consistently recognized that such advisements

weigh strongly in favor of the view that an interviewee was not in custody.” Smith v. Clark, 612

F. App’x 418,420 (9th Cir. 2015) (collecting cases). That Petitioner was informed of his

Miranda rights is not dispositive here—to hold otherwise would be to disincentivize law

enforcement from providing such warnings when it is unclear whether an individual is in

custody. Moreover, as the state courts found, Petitioner cites no authority for the idea that the

conveying of Miranda rights necessarily means an individual is in custody. Dkt. 11-1 at 340, Ex.

17. Because Petitioner was not in custody, the officers were not required to halt their

interrogation when he invoked his right to silence.

Having concluded the challenged statement was not made in the context of a custodial

interrogation, the Court next considers whether Petitioner was nonetheless compelled to share his

passcode in violation of his right against self-incrimination. Looking to the totality of the

circumstances, Petitioner has not shown that the state court’s ruling that his statements about his

passcode were voluntary was objectively unreasonable based on the evidence presented. An

involuntary or coerced statement is one in which, under “the totality of the circumstances, the

government obtained the statement by physical or psychological coercion or by improper

inducement so that the suspect’s will was overbome.” United States v. Leon Guerrero, 847 F.2d

1363, 1366 (9th Cir. 1988) (citing Haynes v. Washington, 373 U.S. 503, 513-14 (1963)).

After he was read a Miranda advisement by the detective and stated he understood his

rights and did not want to speak, the detective simply explained the search warrant for

Petitioner’s cell phone and how police would access it biometrically. Id. at 54-55. It was then

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that Petitioner stated, without prompting or urging by the detective, “I can give you the digital

code if you’d like? That works just fine too.” Id. at 55. There are no facts demonstrating

Petitioner was forced to give this statement. Nor did Petitioner ask for a lawyer or state that he

wanted to stop the interview after the detective explained the search warrant.2 Id. Again,

Petitioner spontaneously volunteered the passcode and went on to correct himself after the

detective asked him to verify the number of digits in the code. Id. There is no evidence that

Petitioner’s will was overbome.

In sum, the state courts’ conclusion that the facts surrounding Petitioner’s interview,

when considered together, were sufficient to support a finding that Petitioner was not “in

custody” at the time of the interview, and that his statement revealing his cellphone’s digital

passcode was voluntary, was not objectively unreasonable based on the evidence presented. See

28 U.S.C. § 2254(d)(2), (e)(1). Stated otherwise, the state court’s fact-finding on these issues is

presumed correct. 28 U.S.C. § 2254(e)(1). While Petitioner insists on the viability of his own

interpretation of the evidence, see Dkts. 3, 12, he has failed to demonstrate that the state court’s

determination here was unreasonable, 28 U.S.C. § 2254(d)(2). Accordingly, the Court

recommends that federal habeas relief as to Grounds 3 through 6 be denied.

Ground 2

Petitioner contends in his second Ground for relief that police exceeded the scope of the

search warrant when they asked Petitioner for the digital passcode to his cellphone. Dkt. 3 at 7.

In the Answer, Respondent asserts that this claim, which implicates Fourth Amendment

2 The transcript of the interview clearly refutes any claim by Petitioner that he requested an attorney when he

responded affirmatively to his Miranda advisement in such a way that would require the questioning by police to

cease. Dkt. 3 at 54—55. Even if he had, as addressed above, he was not subject to a custodial interrogation at that

time and thus did not have the right to halt police questioning by requesting an attorney.

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concerns, is not cognizable in this federal habeas proceeding. Dkt. 10 at 21-23. Respondent is

correct.

“The Fourth Amendment assures the ‘right of the people to be secure in their persons,

houses, papers, and effects against unreasonable search and seizures.’” Stone v. Powell, 428 U.S.

465, 482 (1976) (quoting U.S. Cons, amend. IV). Courts will exclude evidence in order to

effectuate these rights. Powell, 428 U.S. at 482. However, the exclusionary rule itself is not a

personal constitutional right. Id. at 486. The rule is a judicially created remedial device designed

to deter Fourth Amendment violations by law enforcement personnel rather than “to redress the

injury to the privacy of the victim of the search or seizure, for any ‘[r]eparation comes too late.’”

Id. at 486 (quoting Linkletter v. Walker, 381 U.S. 618, 637 (1965)). Because of this, the Supreme

Court held that “where the State has provided an opportunity for full and fair litigation of a

Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the

ground that evidence obtained in an unconstitutional search or seizure was introduced at his

trial.” Powell, 428 U.S. at 494; see also Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir.

2005).

The federal court’s inquiry is whether the petitioner had the opportunity to litigate his

claim, not whether he did or even whether the claim was correctly decided. Ortiz-Sandoval v.

Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (citing Gordon v. Duran, 895 F.2d 610, 613 (9th Cir.

1990)); Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983). To obtain relief, a petitioner must

demonstrate that the state courts have not afforded him a full and fair opportunity to litigate his

Fourth Amendment claims. Woolery v. Arave, 8 F.3d 1325, 1328 (9th Cir. 1993). If a state

provides the processes whereby a defendant can obtain full and fair litigation of a Fourth

Amendment claim, then the petition will be denied whether or not the defendant employs those

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processes. See Gordon, 895 F.2d at 613-14 (holding that the determinative factor for the court

was that California law allowed for motion to suppress evidence, not whether defendant litigated

upon such grounds).

Here, Petitioner had an opportunity to litigate his unlawful search and seizure claim in the

state courts. “The Washington Criminal Rules for Superior Court provide for a full and fair

opportunity to litigate Fourth Amendment claims.” See Hunter v. Miller-Stout, No. 3:12-cv-

05517-RBL-KLS, 2013 WL 1966168, at *14 (W.D. Wash. Apr. 23, 2013), report and

recommendation adopted, 2013 WL 1964928 (W.D. Wash. May 10, 2013); see also Washington

State Criminal Procedure Rule CrR 3.6. Furthermore, Petitioner had an opportunity to raise

Fourth Amendment claims on direct appeal or in a PRP. Indeed, the record reflects Petitioner

filed a motion to suppress prior to trial challenging the initial search warrant and lack of probable

cause.3 See Dkt. 11-1 at 28-29, Ex. 2. Petitioner also had the opportunity to pursue his search

and seizure claims in the Washington appellate courts on post-conviction review and he did, in

fact, do so. See id. at 177, Ex. 11.

Because Petitioner had an opportunity to litigate his Fourth Amendment claim in the state

courts, his search and seizure claim is not cognizable in this federal habeas action.4 See Tisnado

v. United States, 547 F.2d 452, 456 (9th Cir. 1976) (“a federal court may not grant either § 2254

3 The fact that Petitioner pursued these Fourth Amendment claims rather than the claim presented in this Petition

does not mean that Petitioner lacked the full and fair opportunity to pursue the instant claim. The state processes by

which to pursue any Fourth Amendment claim existed for Petitioner and thus he had the opportunity to litigate this

claim in the state courts.

4 In his Traverse, Petitioner claims Stone v. Powell does not bar review of this claim because, based on the

ineffectiveness of trial counsel and post-conviction counsel, he did not have a full and fair opportunity to litigate his

claim. Dkt. 12 at 19. Petitioner cites no authority for the proposition that counsel’s ineffectiveness can deprive a

petitioner of the full and fair opportunity to litigate a Fourth Amendment claim such that it is cognizable in a § 2254

federal habeas proceeding. See id. The inquiry here is not whether counsel created a full and fair opportunity for

Petitioner to litigate his Fourth Amendment claim, but whether the state provided the processes by which Petitioner

could obtain full and fair litigation of his Fourth Amendment claim. See Gordon, 895 F.2d at 613-14. As such,

Petitioner’s argument here is misplaced.

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or § 2255 habeas corpus relief on the basis that evidence obtained in an unconstitutional search

or seizure was introduced, respectively, at a state or federal trial where the defendant was

provided an opportunity to litigate fully and fairly his fourth amendment claim before petitioning

the federal court for collateral relief’). Therefore, the Court recommends that federal habeas

relief as to Ground 2 be denied.

Exhaustion and Procedural Default - Ground 1

Respondent maintains that Petitioner failed to exhaust Ground 1 raised in the Petition and

is procedurally barred from federal review on this Ground. Dkt. 10.

(

Exhaustion

“[A] state prisoner must normally exhaust available state judicial remedies before a

federal coml will entertain his petition for habeas corpus.” Picard v. Connor, 404 U.S. 270, 275

(1971). A petitioner’s claims will be considered exhausted only after “the state courts [have been

afforded] a meaningful opportunity to consider allegations of legal error without interference

from the federal judiciary.” Vasquez v. Hillery, 474 U.S. 254, 257 (1986). “[S]tate prisoners must

give the state courts one full opportunity to resolve any constitutional issues by invoking one

complete round of the State’s established appellate review.” O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999).

A federal habeas petitioner must provide the state courts with a fair opportunity to correct

alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365 (1995); Middleton v.

Cupp, 768 F.2d 1083,1086 (9th Cir. 1985) (petitioner “fairly presented” the claim to the state

supreme court even though the state court did not reach the argument on the merits). It is not

enough if all the facts necessary to support the federal claim were before the state courts or if a

somewhat similar state law claim was made. Duncan, 513 U.S. at 365-66 (citing Picard, 404

U.S. at 275; Anderson v. Harless, 459 U.S. 4 (1982)). A petitioner must include reference to a

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specific federal constitutional guarantee, as well as a statement of the facts entitling the petitioner

to relief. Gray v. Netherland, 518 U.S. 152, 162-163 (1996); Insyxiengmay v. Morgan, 403 F.3d

657, 668 (9th Cir. 2005). A petitioner bears the burden of proving he has exhausted available

state remedies, and retains the burden to prove all facts relevant to the exhaustion requirement.

See Rosev. Lundy, 455 U.S. 509, 520 (1982); 28 U.S.C. § 2254(b)(1)(A).

Grounds Raised in State and Federal Proceedings

In his direct appeal, Petitioner raised the following claims to the state court of appeals:

Dkt. 11-1 at 24, Ex. 2. In a statement of additional grounds, Petitioner raised eight additional

issues, characterized by the state court of appeals as (1) Sixth Amendment right to face accuser;

(2) Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel; (3)

neutral and detached magistrate; (4) probable cause; (5) independent source doctrine; (6) witness

tampering: sufficiency of the evidence; (7) offender score calculation; and (8) right to jury trial

on sentencing enhancements. Id. at 35-41, Ex. 2.

Following the state court of appeals’ decision on direct appeal, Petitioner filed a petition

for discretionary review with the state supreme court raising the following grounds:

The trial court erred when it denied Petitioner’s motion to suppress evidence

seized from his electronic devices.

The affidavit in support of a search warrant was insufficient to establish

probable cause.

The independent source doctrine does not apply to another warrant police

officers later obtained to cure any defects in the first warrant.

The appellate court erred when it upheld the trial court’s decision in denying

[Petitioner’s] motion to suppress because the initial search warrant affidavit

was insufficient to establish probable cause and the independent source

doctrine does not apply to the second warrant.

Has the State erred in not requiring that police officers attach depictions of

“suspected child pornography” to the affidavit thus allowing a magistrate

full discretion in the determination of probable cause.

Dkt. 11-1 at 125, Ex. 8.

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In his PRP, Petitioner raised the following three grounds to the state court of appeals:

Fourth Amendment violation: My statement of my cellphone password, the

resulting search of my home, and all evidence subsequently derived from

that search should be suppressed and I should be granted a new trial or

released from confinement because my Fourth Amendment rights were

violated when police officers asked for my multi-digit password, instead of

just a biometric key, thus exceeding the scope of the warrant.

Fifth Amendment I Miranda violation: My statement of my cellphone

password, the resulting search of my cellphone, and all evidence

subsequently derived from that search should be suppressed and I should be

granted a new trial or released from confinement because my Fifth

Amendment rights and my Miranda rights were violated when law

enforcement asked for my multi-digit password to my cellphone after I had

been read my Miranda rights and clearly asked for a lawyer . . . , thus

illiciting [sic] incriminating testimony.

Sixth Amendment Violation: My statement of my cellphone password, the

resulting search of my cellphone, and all evidence subsequently derived

from that search should be suppressed and I should be granted a new trial

or released from confinement because my Sixth Amendment rights were

violated when law enforcement continued questioning me, after I invoked

my right to counsel, in the absence of counsel.

Dkt. 11-1 at 177, 179, 183, Ex. 11.

After the state court of appeals denied Petitioner’s PRP, Petitioner sought discretionary

review with the state supreme court, raising the following three issues:

Did the Chief Judge of the Court of Appeals, Division II, commit an obvious

error, which would render further proceedings useless when he dismissed

[Petitioner’s] personal restraint petition as frivolous, instead of referring it

to a panel of judges for determination on the merits, despite [Petitioner]

presenting an arguable basis for relief?

Did the Chief Judge of the Court of Appeals, Division II, commit a probable

error and the decision of the Court of Appeals substantially alters the status

quo when he dismissed [Petitioner’s] personal restraint petition regarding

constitutional issues, despite a prima facie showing of actual prejudice in

violation of [Petitioner’s] Fourth and Fifth Amendment rights?

Did the Chief Judge of the Court of Appeals, Division II, commit a probable

error and the decision of the Court of Appeals substantially alters the status

quo when he ruled that [Petitioner] was not under “custodial interrogation,”

despite being read his Miranda rights and limiting his freedom to the point

a reasonable person would believe he was in custody.

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Dkt. 11-1 at 294, Ex. 15. The state supreme court directly addressed and rejected these claims.

Dkt. 11-1, Ex. 17.

In the instant Petition, Petitioner raises six grounds for relief, set forth in detail above. See

supra, Part II at 7. As relevant here, Petitioner asserts the following with respect to Ground 1 :

[Petitioner’s] trial counsel disregarded the question of voluntariness of

[Petitioner’s] incriminating statements made post-Miranda and simply took the

word of the arresting officer that it was voluntary without any substantial

investigation. In both recorded interrogations of [Petitioner,] he invokes his

Miranda rights. In the first he invokes his right to remain silent and in the second

he invokes his right to counsel. This should have been a red flag for counsel to at

least look into. Post conviction counsel only parotted [sic] the defense of trial

counsel's pretrial motion to suppress without doing any investigation into any other

issues despite urging to do so from [Petitioner] as supported by [Petitioner’s]

statement of additional grounds. Post conviction relief counsel additionally did not

file for ineffective assistance of counsel.

Dkt. 3 at 5.5

Ground 1

Petitioner has not properly exhausted his state court remedies as to Ground 1 in the

federal Petition because he did not fairly present this claim to the state courts. Specifically,

Petitioner did not present this claim in his direct appeal or in his PRP. See Dkt. 11-1, Exs. 4, 11.

As Petitioner did not raise the allegations contained in Ground 1 during his direct appeal or in his

PRP, he did not give the state courts a full and fair opportunity to determine if a federal

constitutional violation occurred. See Ortberg v. Moody, 961 F.2d 135, 138 (9th Cir. 1992)

(finding claims were unexhausted when they were not raised on every level of direct review);

Casey v. Moore, 386 F.3d 896, 916-18 (9th Cir. 2004) (finding claim was not fairly presented to

the state court when the claim was raised for the first and only time upon petitioning for

5 In his Traverse, Petitioner clarifies that his ineffectiveness claim relates to his underlying Fourth, Fifth, and Sixth

Amendment claims. See Dkt. 12 at 16-17.

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discretionary review to the state supreme court); O’Haver v. Ruiz, No. 3:15-cv-05797-RBL-JRC,

2016 WL 1019264, *4 (W.D. Wash. Feb. 11,2016) (“A petitioner must properly raise a habeas

claim at every level of the state courts’ review.”). Thus, Ground 1 was not properly exhausted.

Procedural default is distinct from exhaustion in the habeas context. Franklin v. Johnson,

290 F.3d 1223, 1230 (9th Cir. 2002). The procedural default rule bars consideration of a federal

claim when it is clear the state court has been presented with the federal claim but declined to

reach the issue for procedural reasons or it is clear the state court would hold the claim

procedurally barred. Id. at 1230-31 (citations omitted). If a state procedural rule would now

preclude the petitioner from raising his claim at the state level, the claim is considered

“procedurally defaulted,” and the federal courts are barred from reviewing the petition on the

merits. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991); O’Sullivan, 526 U.S. at 845.

Procedural Default

Ground 1 raised in the Petition is procedurally defaulted because, if Petitioner attempted

to present this claim in a subsequent PRP, the state court would find the claim barred by

Washington State law. Washington State imposes a one-year statute of limitations on the filing

of a PRP or other post-conviction challenges. RCW 10.73.090. The state court of appeals issued

a mandate finalizing Petitioner’s direct appeal on December 9, 2021. Dkt. 11-1, Ex. 10. Thus, the

time to file a petition or motion for post-conviction relief expired in December 2022, one year

after Petitioner’s direct appeal became final. See RCW 10.73.090(1), (3)(b). As the one-year

statute of limitations has passed, Petitioner is barred from filing a subsequent PRP. See id. at (1);

see also Shumway v. Payne, 223 F.3d 982, 988 n.22 (9th Cir. 2000) (RCW 10.73.090 has been

found by the Ninth Circuit to be an independent and adequate state law barring federal habeas

review).

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Further, under Washington State law, the state court of appeals will not consider a second

or successive PRP unless the petitioner certifies he has not filed a previous petition on similar

grounds and shows good cause as to why he did not raise the grounds in the previous PRP. See

RCW 10.73.140. Petitioner has not presented facts which could show good cause for his failure

to raise Ground 1 at each level of his PRP. Therefore, this Ground raised in the Petition is also

subject to an implied procedural bar because the grounds would be “prohibited by an

independent, adequate, and mandatory rule of state procedure, RCW 10.73.140, making a return

to state court futile.” See Bolar v. Luna, No. 2:05-cv-02029-TSZ-JPD, 2007 WL 1103933, at *11

(W.D. Wash. April 10, 2007).

The procedural default will be excused and a petitioner will be entitled to federal habeas

corpus review if he “can demonstrate cause for the default and actual prejudice as a result of the

alleged violation of federal law, or demonstrate that failure to consider the claims will result in a

fundamental miscarriage ofjustice[.]” Boyd v. Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998)

(citing Coleman, 501 U.S. at 750)); see also Shinn v. Ramirez, 596 U.S. 366, 379 (2022) (“Out of

respect for finality, comity, and the orderly administration of justice,... federal courts may

excuse procedural default only if a prisoner can demonstrate cause for the default and actual

prejudice as a result of the alleged violation of federal law.”) (internal quotations and citations

omitted). To establish “cause,” a petitioner must show some objective factor external to the

defense prevented him from complying with the state’s procedural rule. Coleman, 501 U.S. at

753 (citing Murray v. Carrier, 477 U.S. 478,488 (1986)). To show “prejudice,” a petitioner

“must shoulder the burden of showing, not merely that the errors at his trial created a possibility

of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire

Overcoming Procedural Default

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trial with error of constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982)

(emphasis in original); see also Shinn, 596 U.S. at 379-80 (citations omitted).

Only in an “extraordinary case” may the habeas court grant the writ without a showing of

cause and prejudice to correct a “fundamental miscarriage of justice” where a constitutional

violation has resulted in the conviction of a defendant who is actually innocent. Murray, 477

U.S. at 495-96. To demonstrate he suffered a fundamental miscarriage ofjustice, viewing all the

evidence in light of new reliable evidence, the petitioner must show “it is more likely than not

that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” House v.

Bell, 547 U.S. 518, 537 (2006) (citing Schlup v. Delo, 513 U.S. 298, 327 (1995)).

Here, Petitioner fails to show some objective factor external to his defense prevented him

from complying with the State’s procedural bar rule. Petitioner also fails to carry his burden of

establishing any alleged trial errors worked to his actual and substantial disadvantage, infecting

his entire trial with errors of constitutional dimensions, and thus has not shown prejudice.

Petitioner, however, asserts claims of ineffective assistance of counsel under Martinez v.

Ryan, 566 U.S. 1 (2012) as an exception excusing the procedural default of Ground 1. Generally,

Petitioner’s, or his attorney’s, ignorance or inadvertence cannot excuse procedural default. Shinn,

596 U.S. at 380 (citing Coleman, 501 U.S. at 753). Moreover, “proceedings for which the

Constitution does not guarantee the assistance of counsel at all, attorney error cannot provide

cause to excuse a default.” Shinn, 596 U.S. at 380 (internal quotations omitted). There is,

however, a limited exception where “ineffective assistance of state postconviction counsel may

constitute ‘cause’ to forgive procedural default of a trial-ineffective-assistance claim, but only if

the State requires prisoners to raise such claims for the first time during state collateral

proceedings.” Id. (citing Martinez, 566 U.S. at 9). The Supreme Court found this “narrow

exception” also “applies if the State’s judicial system effectively forecloses direct review of trial-

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ineffective-assistance claims.” Shinn, 596 U.S. at 380; see Trevino v. Thaler, 569 U.S. 413

(2013). “Otherwise, attorney error where there is no right to counsel remains insufficient to show

cause.” Shinn, 596 U.S. at 380 (citing Martinez, 566 U.S. at 16).

“(T]o establish ‘cause’ to overcome procedural default under Martinez, a petitioner must

show: (1) the underlying ineffective assistance of trial counsel claim is ‘substantial’; (2) the

petitioner was not represented or had ineffective counsel during the [post-conviction relief

(“PCR”)] proceeding; (3) the state PCR proceeding was the initial review proceeding; and (4)

state law required (or forced as a practical matter) the petitioner to bring the claim in the initial

review collateral proceeding.” Dickens v. Ryan, 740 F.3d 1302,1319 (9th Cir. 2014) (citing

Trevino, 569 U.S. at 423). Further, while Martinez previously had been interpreted to allow

federal courts to consider new evidence under Martinez, Shinn has now “greatly restricted] the

circumstances in which a federal habeas court deciding Martinez claims may consider evidence

beyond that already contained in the state court record.” Creech v. Richardson, 40 F.4th 1013,

1028 (9th Cir. 2022).

The Court begins by addressing the first prong, wherein the petitioner must show the

underlying ineffective assistance of trial counsel claim is “substantial,” “which is to say that the

prisoner must demonstrate that the claim has some merit.”6 Martinez, 566 U.S. at 14. “An

[ineffective assistance of counsel] claim has merit where (1) counsel's performance was

unreasonable under prevailing professional standards, and (2) there is a reasonable probability

that but for counsel’s unprofessional errors, the result would have been different.” Cook v. Ryan,

688 F.3d 598, 610 (9th Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 687-91, 694

6 The parties agree that Petitioner was pro se and did not have post-conviction counsel at the time the Washington

courts considered his initial PRP. See Dkt. 3 at 13; Dkt. 10 at 26.

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(1984)). When considering the first prong of the Strickland test, judicial scrutiny must be highly

deferential. Strickland, 466 U.S. at 689. There is a strong presumption that counsel's

performance fell within the wide range of reasonably effective assistance. Id. The second prong

of the Strickland test requires a showing of actual prejudice related to counsel’s performance. Id.

The reviewing court need not address both components of the inquiry if an insufficient showing

is made on one component. Id. at 697. As to the inquiry under Martinez, “substantiality” requires

a petitioner to demonstrate that “reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Detrich v. Ryan, 740

F.3d 1237, 1245 (9th Cir. 2013) (internal citation omitted).

Here, in his claims of ineffective assistance of counsel in Ground 1, Petitioner alleges

trial counsel was ineffective for failing to independently investigate the voluntariness of

Petitioner’s post-Miranda statements to police after he invoked his rights. See Dkt. 3 at 5. In

response to this allegation, Respondent argues Petitioner’s assertions are “conclusory and

threadbare regarding what his trial counsel allegedly failed to investigate and pursue. He

provides no specifics about what additional investigation was necessary or how it would have

revealed a meritorious basis for a Miranda motion that counsel unreasonably neglected to bring.”

Dkt. 10 at 27. The Court agrees. Petitioner’s conclusory allegations here do,not show counsel’s

performance was unreasonable.

Even so, as set forth above, the Court has already concluded that the state courts

reasonably rejected Petitioner’s Miranda claims regarding the search warrant and his voluntary

statement indicating his cellphone’s digital passcode. See supra, Part II, at 8-18. The state

courts’ determination on direct appeal that no Miranda violation occurred, therefore,

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demonstrates that, at the time of the filing of the motion to suppress, trial counsel would not have

been compelled to investigate further and file additional motions. “The failure to raise a meritless

legal argument does not constitute ineffective assistance of counsel.” Baumann v. United States,

692 F.2d 565, 572 (9th Cir. 1982).

In sum, Petitioner has failed to establish deficient performance by trial counsel with

respect to Ground 1. As a result, the Court finds there is no “reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694. Notably, “[t]he likelihood of a different result must be substantial,

not just conceivable.” Apelt v. Ryan, 878 F.3d 800, 832 (9th Cir. 2017) (quoting Harrington v.

Richter, 562 U.S. 86, 112 (2011)). And here, Petitioner has not made that showing. Because he

cannot show the existence of a substantial claim of ineffectiveness, Petitioner has not met the

first prong under the Martinez analysis and has failed to establish cause to overcome procedural

default of his ineffectiveness claims in Ground 1 of the Petition. Accordingly, the Court

recommends that federal habeas relief as to Ground 1 be denied.

III. EVIDENTIARY HEARING

The decision to hold an evidentiary hearing is committed to the Court’s discretion.

Schriro v. Landrigan, 550 U.S. 465, 473 (2007). “[A] federal court must consider whether such a

hearing could enable an applicant to prove the petition’s factual allegations, which, if true, would

entitle the applicant to federal habeas relief.” Id. at 474. In determining whether relief is

available under 28 U.S.C. § 2254(d)(1), the Court’s review is limited to the record before the

state court. Cullen v. Pinholster, 563 U.S. 170, 181-82 (2011). A hearing is not required if the

allegations would not entitle Petitioner to relief under § 2254(d). Landrigan, 550 U.S. at 474. “It

follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas

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relief, a district court is not required to hold an evidentiary hearing.” Id. Further, the Supreme

Court in Shinn held that when reviewing a federal habeas petition under 28 U.S.C. § 2254, the

federal court may not consider any facts beyond the factual record presented to the state post

conviction relief court - unless one of the limited exceptions of 28 U.S.C. § 2254(e)(2) applies.

Shinn v. Ramirez, 596 U.S. 366, 382 (2022).

The Court finds it is not necessary to hold an evidentiary hearing in this case because, as

discussed in this Report and Recommendation, Petitioner’s claims may be resolved on the

existing state court record.

IV. CERTIFICATE OF APPEALABILITY

A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district

court’s dismissal of the federal habeas petition only after obtaining a certificate of appealability

from a district or circuit judge. See 28 U.S.C. § 2253(c). “A certificate of appealability may issue

... only if the [petitioner] has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). 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) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

No jurist of reason could disagree with this Court’s evaluation of Petitioner’s claims or

would conclude the issues presented in the Petition should proceed further. Therefore, the Court

concludes Petitioner is not entitled to a certificate of appealability with respect to the Petition.

V. CONCLUSION

Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), the parties

shall have fourteen (14) days from service of this report to file written objections. See also Fed.

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R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of

those objections for purposes of appeal. See Thomas v. Am, 474 U.S. 140, 142 (1985); Miranda

v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted).

Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the

matter for consideration on May 17, 2024, as noted in the caption.

Dated this 30th day of April, 2024.

Grady J. Leupold

United States Magistrate Judge

REPORT AND RECOMMENDATION- 32

Case 3:23-cv-06027-JNW

Document 13-1

Filed 04/30/24

Pagel of 1

. 3

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

NICOLAS AARON CLARK,

ORDER ADOPTING REPORT

AND RECOMMENDATION

MELISSA ANDREWJESKI,

Respondent.

CASE NO. 3:23-cv-06027-JNW-GJL

Petitioner,

The Court, having reviewed the Report and Recommendation of Magistrate Judge Grady

J. Leupold, objections to the Report and Recommendation, if any, and the remaining record, does

hereby find and ORDER:

(1)

The Court adopts the Report and Recommendation.

(2)

Petitioner’s federal habeas Petition is DENIED.

(3)

A certificate of appealability shall not issue in this case.

(4)

The Clerk is directed to send copies of this Order to Petitioner, counsel for

Respondent, and to the Hon. Grady J. Leupold.

DATED this

day of [Pick the date].

JAMAL N. WHITEHEAD

United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION - 1

Case 3:23-cv-06027-JNW

Document 13-2

Filed 04/30/24

Page 1 of 1

United States District Court

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

NICOLAS AARON CLARK,

Petitioner,

JUDGMENT IN A CIVIL CASE

Case No. 3:23-cv-06027-JNW-GJL

MELISSA ANDREWJESKI,

Respondent.

Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the

jury has rendered its verdict.

Decision by Court. This action came to consideration before the Court. The issues have been

considered and a decision has been rendered.

THE COURT HAS ORDERED THAT:

The Report and Recommendation is adopted and approved. The Petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 is DENIED. A certificate of appealability shall not issue.

Dated this

day of Pick date..

Ravi Subramanian

Clerk

Deputy Clerk

Additional material

from this filing is

available in the

Clerk's Office.

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.