Duenas v. Haynes

Full title: JONATHAN P. DUENAS, Petitioner, v. RON HAYNES, Respondent.

Court: UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Date published: Feb 13, 2020

Case No. C18-6027-RBL-TLF (W.D. Wash. Feb. 13, 2020)

Opinion

Case No. C18-6027-RBL-TLF

02-13-2020

JONATHAN P. DUENAS, Petitioner, v. RON HAYNES, Respondent.

Theresa L. Fricke United States Magistrate Judge

REPORT AND RECOMMENDATION Noted for February 28, 2020

This matter comes before the Court on petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner is in custody serving a 175-month (total confinement) sentence, including a period of post-release community supervision, for convictions of one count of first degree rape of a child, two counts of first degree child molestation, and one count of third degree child molestation, in Clark County Superior Court Cause No. 14-1-01604-2. Dkt. 9-1 at 215, 222.

Petitioner raises the following grounds:

1. Sixth Amendment violation because the children's mother made a statement about their credibility;
2. Prosecutorial misconduct during trial and in closing argument caused a due process violation;
3. Ineffective assistance of counsel for failing to object to evidentiary error and the prosecutor's alleged misconduct caused a Sixth and Fourteenth Amendment violation;
4. Cumulative error (from the errors alleged in grounds one, two and three) caused a due process violation, under the Fourteenth Amendment;
5. A condition of community supervision concerning relationships with children is void for vagueness under the Fourteenth Amendment.

Dkt. 4, Habeas Corpus Petition at 18-26; Dkt. 10, Petitioner's Response at 1-20.

The facts of the case will be discussed in the sections below; the Washington State Court of Appeals, Division II summarized the facts in its unpublished decision. Dkt. 9-1 at 216-222 (State's Ex. 2, Opinion in State v. Duenas, No. 48119-7-II, 2017 WL 2561589 (Wash. Ct. App. Aug. 8, 2017) at *1-*5) (attached to this Report and Recommendation). The trial-related facts will be discussed in the analysis section below, insofar as the trial facts are relevant to issues presented in this habeas corpus case.

I. DISCUSSION

A. EXHAUSTION OF STATE COURT REMEDIES

The State argues that petitioner failed to exhaust state remedies on two of his claims: The petitioner's first claim - alleging that the mother of the victim gave impermissible opinion testimony concerning the credibility of her daughters; and the petitioner's second claim, regarding prosecutorial misconduct. Dkt. 8, Respondent's Answer and Memorandum, at 9, 11-13. According to 28 U.S.C. § 2254(b)(1), the petitioner bears the burden of proof to show that he has exhausted state court remedies: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that - (A) the applicant has exhausted the remedies available in the courts of the State[.]"; Lambrix v. Singletary, 520 U.S. 518, 523-24 (1997).

A state prisoner must exhaust state remedies by fairly presenting the same factual and legal bases for claims of any violation of federal rights to the state courts, before including those same claims in a petition for writ of habeas corpus in federal court. 28 U.S.C. § 2254(b)(1); Picard v. Connor, 404 U.S. 270, 277-78 (1971). Exhaustion of federal claims requires the petitioner to finish "one complete round of the State's established appellate review process," up to the highest state court with powers of discretionary review. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999).

In this case, the petitioner's first ground for relief - alleging that the mother of the victims gave impermissible opinion testimony concerning the credibility of her daughters - is exhausted, because he presented the same factual claim to the Washington State Supreme Court as an issue under the Sixth Amendment to the United States Constitution. Dkt. 9-1, at 266 (Petition for Review).

Petitioner's second ground, regarding prosecutorial misconduct, is also exhausted because the same facts now raised in federal court to assert this claim were argued to the state courts as a Federal Constitutional Fourteenth Amendment due process issue. Id. at 257, 268-269 (Petition for Review).

B. PROCEDURAL BAR

The State argues that even if petitioner exhausted state remedies with respect to ground one and exhausted the portions of ground two that the Court of Appeals found to be waived (the "shivers" comment, and the emotional impact of the crime on the victims' family), the petitioner cannot raise these claims because each of these grounds is procedurally defaulted. Dkt. 8 at 14, 28-29. According to the doctrine of procedural default, "a federal court will not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural rule." Martinez v. Ryan, 566 U.S. 1, 9 (2012). Ordinarily, the federal court is required to consider procedural bar issues before reviewing any federal habeas corpus claim on the merits. See Lambrix v. Singletary, 520 U.S. 518, 524 (1997).

The state court must make a clear and express statement that it is relying on a procedural default. Koerner v. Grigas, 328 F.3d 1039 (9^th Cir. 2003). Even if the state court issues a ruling that applies a procedural bar and, in the alternative, also addresses the merits, the court reviewing the case on federal habeas corpus will nevertheless enforce the procedural bar rule. Harris v. Reed, 489 U.S. 255, 264, n.10 (1989).

The state court procedural rule must be both "independent" and "adequate". Coleman v. Thompson, 501 U.S. 722, 729-32 (1991). A state procedural rule is considered "adequate" if it was "firmly established and regularly followed" at the time of the act or omission that caused a procedural bar to be applicable. Ford v. Georgia, 498 U.S. 411, 423-25 (1991). The procedural rule under state law would be "independent" if it is not dependent on a federal constitutional ruling or interwoven with federal law. Ake v. Oklahoma, 470 U.S. 68, 75 (1985).

After the respondent asserts procedural bar, the petitioner must specifically allege reasons to show the state's rule of procedure is not adequate or independent. Bennett v. Mueller, 322 F.3d 573, 580 (9^th Cir. 2003). Procedural default will only be excused if the petitioner shows cause for the default and actual prejudice from an alleged violation of federal law, or the petitioner must demonstrate that failure to consider the claims will cause a fundamental miscarriage of justice because the petitioner is actually innocent. Schlup v. Delo, 513 U.S. 298, 329 (1995); Coleman, at 750; Rodney v. Filson, 916 F.3d 1254, 1259 (9^th Cir. 2019).

If a habeas corpus petitioner relies on ineffective assistance of counsel as a basis for showing cause and "actual and substantial prejudice," a petitioner must demonstrate that trial counsel was ineffective by failing to object and thereby preserve the error at the trial court level. Visciotti v. Martel, 862 F.3d 749, 768-69 (9^th Cir. 3013). Therefore, to establish cause and prejudice to excuse the procedural default where trial counsel failed to object at trial, the petitioner would need to show: First, that trial counsel performed deficiently; second, a reasonable probability exists that, but for the deficient performance of trial counsel, the result of the trial would have been different; and third, the underlying claim of ineffective assistance of trial counsel is a substantial one - i.e. the petitioner must show the claim of ineffective assistance of counsel has merit. Id. at 769-772; see also Lowry v. Lewis, 21 F.3d 344, 346 (9^th Cir. 1994) (trial counsel does not provide deficient representation under Strickland v. Washington, when counsel fails to pursue a motion that would be meritless; petitioner must show that if counsel had filed the motion, the motion would have been granted and there is a reasonable probability that if the motion had been granted the outcome of the trial would have been different). At the procedural default stage, the federal court reviews ineffective assistance of counsel allegations de novo; it does not apply the AEDPA deference to the state court's ruling about ineffective assistance of counsel. Visciotti, 862 F.3d at 768-69.

With respect to the actual innocence exception to the procedural bar doctrine, the petitioner is required to establish more than the existence of a reasonable doubt; petitioner must show, based on new evidence, it is more likely than not that no reasonable juror would have convicted them in light of the new evidence. Schlup, 513 U.S. at 327. This standard allows the petitioner to present "evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error." Id., at 316. The federal court does "not make an independent factual determination about what likely occurred, but rather . . . assess[es] the likely impact of the evidence on reasonable jurors." House v. Bell, 547 U.S. 518, 538 (2006).

In this case, the State argues that ground one (Dkt. 4 at 18-20), regarding the statements of the child victims' mother about the credibility of her daughters, is procedurally barred because the defense failed to object at the trial court, and the Washington State Court of Appeals refused to review it. The Court should reject this procedural bar argument.

The appellate court held that by failing to object in the trial court, Mr. Duenas waived this claim and was precluded from raising it on appeal. Dkt. 9-1 at 223-24 (State v. Duenas, 199 Wn. App. 1027 (2017) unpublished opinion at *5 -*6, attached). The Washington State Court of Appeals relied on Washington Rule of Appellate Procedure (RAP) 2.5(a)(3) as the reason it declined to review the issue that is now raised in federal habeas as ground one. Id. According to Ninth Circuit precedent, RAP 2.5 is not an independent and adequate ground for a procedural bar. Kreck v. Spalding, 721 F.2d 1229, 1235 (9^th Cir. 1983) (observing that under RAP 2.5(a), a party is allowed, on appeal, to raise a claim of manifest error affecting a constitutional right even if that party failed to bring the claim of error to the attention of the trial court). Because this procedural rule is intertwined with the analysis of "manifest error affecting a constitutional right", it is intertwined with federal law, and cannot be considered an independent state law ground. Kreck v. Spalding; see also, County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 150 (1979) (holding that New York did not have a contemporaneous objection rule that forbid a defendant from raising a federal constitutional claim for the first time on appeal).

In addition, the State argues that petitioner's ground two is procedurally defaulted because his attorney failed to object (Dkt. 4 at 22) - concerning the deputy prosecutor's remarks to the jury during closing argument, "that [details described in a statement by one of the child victims about defendant's sexual assault] should send some shivers down some of you", and the deputy prosecutor's comments about the impact on the victims' family. This Court should hold that these portions of ground two are procedurally barred; the Washington State Court of Appeals applied an independent and adequate state law waiver rule when it refused to review these portions of the prosecutorial misconduct issue. As to these portions of ground 2, the appellate court applied a different state court procedural default rule (not RAP 2.5).

With respect to the claim of prosecutorial misconduct, the Washington Court of Appeals determined that petitioner waived the alleged error because he failed to object during the prosecutor's closing argument. Dkt. 9-1 at 231 (State v. Duenas, 199 Wn. App. 1027 (2017) unpublished opinion at *9, attached). Under Washington law, a claim of prosecutorial misconduct cannot be raised for the first time on appeal unless the defendant shows the misconduct "was so flagrant and ill-intentioned that an instruction [from the trial court] could not have cured the resulting prejudice." State v. Emery, 174 Wn.2d 741, 760-61 (2012). This was the law at the time that petitioner was charged with the offenses that are the subject of this federal habeas corpus petition, and it has been consistently applied by the Washington Supreme Court. See, State v. Belgarde, 110 Wn.2d 504, 507-512 (1988); State v. Gentry, 125 Wn.2d 570, 640 (1995); State v. Thorgerson, 172 Wn.2d 438, 442 (2012); State v. Scherf, 192 Wn.2d 396 (2018).

Although he does not directly argue the cause and prejudice exception to the procedural default doctrine, petitioner argues in claim three of his petition for federal habeas corpus that defense counsel was ineffective for failure to object to any of the alleged instances of prosecutorial misconduct. Dkt. 4 at 25. In his response to the Answer, petitioner fails to assert that this state law procedural rule is not independent, or that it is inadequate. Dkt. 10. Because petitioner did not respond to the State's argument concerning procedural bar, these claims should not be reviewed by this Court.

Moreover, petitioner did not come forward with new evidence that would meet the actual innocence standard of Schlup v. Delo. Therefore, the Court has no new evidence from which it would be able to assess whether it is more likely than not that no reasonable juror would have convicted Mr. Duenas in light of any new evidence.

C. ANALYSIS

1. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal court reviews the last reasoned state-court decision. Murray v. Schriro, 745 F.3d 984, 996 (9^th Cir. 2014). The federal court defers to the state court's decision for claims that were adjudicated on the merits, except, the federal court does not defer if the state court made a decision "contrary to, or involved an unreasonable application" of "clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts in light of the evidence presented." 28 U.S.C. § 2254(d); Harrington v. Richter, 562 U.S. 86, 97-98 (2011). Any claims that are federally reviewable and were not adjudicated on the merits by the state court, are reviewed de novo in federal court. Rodney v. Filson, 916 F.3d 1254, 1260 (9^th Cir. 2019).

On habeas corpus review, the federal court presumes that the state court adjudicated the claim on the merits when "the relevant state court decision . . . fairly appear[s] to rest primarily on federal law or [is] interwoven with [federal law].", unless the state court's ruling shows (or state law procedural rules would apply and preclude a decision on the merits) the merits were not reached. Ylst v. Nunnemaker, 501 U.S. 797, 801-802 (1991) (quoting Coleman v. Thompson, 501 U.S. 722, 740 (1991)).

To be considered an adjudication on the merits, the state court's decision may be a summary adjudication that does not include an explanation of the state court's reasoning; the habeas petitioner must still show there was no reasonable basis upon which the state court denied relief. Harrington v. Richter, at 98-99. In reviewing a summary decision by a state court that appears to be a decision "on the merits", the federal court would be required to determine: First, "what arguments or theories supported or . . . could have supported . . . the state court's decision"; second, "whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 102; Cook v. Kernan, ___ F.3d ___, No. 17-17257, 2020 WL 288252 (9^th Cir. Jan. 21, 2020) at *9.

In this case, the Washington State Court of Appeals (the last reasoned decision of a state appellate court) addressed each of the petitioner's grounds on the merits, except for two contentions about prosecutorial misconduct. As discussed above, the state appellate court reviewed ground one of the petition, concerning an allegation of improper opinion testimony, under a state law procedural default rule and also on the merits. See Dkt. 9-1 at 224 (State v. Duenas, 199 Wn. App. 1027 (2017) unpublished opinion at *5 -*6, attached) (holding that in Duenas' case, the witness does not expressly give an opinion about whether they believe a victim's account of the events, and does not expressly give an opinion about the defendant's guilt; therefore no manifest constitutional error occurred). And, the Court of Appeals imposed an independent and adequate state law procedural default rule and this Court should refuse to review the two allegations of prosecutorial misconduct for which the petitioner has procedurally defaulted.

"Clearly established federal law" consists of governing legal principles established by the United States Supreme Court at the time a state court renders its decision. Lockyer v. Andrade, 538 U.S. 63 (2003). If there is no prior decision of the United States Supreme Court that would clearly entitle the petitioner to relief, "the state court's decision could not be 'contrary to' any holding from this [the United States Supreme] Court." Woods v. Donald, 575 U.S. 312, 317 (2015) (per curiam). The holding of the United States Supreme Court, not dicta, constitutes clearly established law. White v. Woodall, 572 U.S. 415, 419 (2014).

Each clause - "contrary to" and "unreasonable application" - contained in 28 U.S.C. § 2254(d)(1) has a separate and independent meaning. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court ruling is contrary to clearly established federal law if the state court either arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or decides a case differently than the Supreme Court "on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is an unreasonable application of Supreme Court precedent "if the state court identifies the correct governing principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.

To be an unreasonable application of Supreme Court precedent, the state court's decision must be objectively unreasonable. Wilson v. Sellers, 584 U.S. ___, 138 S.Ct. 1188, 1191-92 (2018); Lockyear v. Andrade, 538 U.S. 63, 69 (2003). The petitioner must show that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error. . . beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 102 (2011). This means a state court's decision must be more than "incorrect or erroneous"; if the state court simply made an error, then federal courts should refrain from re-evaluating the state court's application of federal law. Lockyer v. Andrade, 538 U.S. at 75; Cooks v. Newland, 395 F.3d 1077, 1080 (9^th Cir. 2005).

When the federal court determines whether a state court decision was based on an unreasonable determination of the facts in light of the evidence, a federal habeas court must presume that state court factual findings are correct. 28 U.S.C. § 2254(e)(1). The presumption is overcome if the petitioner presents "clear and convincing evidence" that state court findings of fact are "objectively unreasonable." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The petitioner may be entitled to relief if there is an unreasonable factual foundation for the state court's factual determination. 28 U.S.C. § 2254(e); Murray v. Schriro, 745 F.3d 984, 999 (9^th Cir. 2014).

2. Claims Raised by Petitioner

Claim One: Improper Opinion Testimony

Petitioner argues that his trial was fundamentally unfair under the Fourteenth Amendment due process protections, because the deputy prosecuting attorney elicited testimony from the mother of the two girls who were the complaining witnesses on re-direct examination that the victims, her daughters H.A. and K.L., may have told "fibs" about small matters but would not lie about a massive issue like the allegations of sexual misconduct against the defendant. Dkt. 4 at 18-20. The Washington State Court of Appeals determined that this was not an express statement by the mother of the complaining witnesses attesting to their truthfulness, nor did she expressly state that she believed that her daughters did not lie. 9-1 at 10 (attached). Moreover, the Washington State Court of Appeals determined that the mother's testimony on this point was not improper opinion testimony about the defendant's guilt. Dkt. 9-1 at 11.

Petitioner does not cite to any United States Supreme Court opinion that would be clearly established law concerning this issue. See, Burling v. Addison, 451 Fed. Appx. 761, 764 (10^th Cir. 2011). Because there is no clearly established law in the United States Supreme Court on this issue, the Washington State Court of Appeals did not interpret federal law in a manner that was either contrary to, or an unreasonable application of any United States Supreme Court holdings. Woods v. Donald, 575 U.S. 312, 317 (2015) (per curiam).

Claim Two: Prosecutorial Misconduct Allegations

Regarding the plaintiff's claims of prosecutorial misconduct, portions of this ground are procedurally barred, as discussed above. The prosecutorial misconduct claims should be rejected because the state court applied clearly established federal law in a reasonable way. Clearly established law from the United States Supreme Court holds that "[t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 77 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). If a state court applies harmless error analysis to a constitutional claim, "a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable." Davis v. Ayala, 135 S.Ct. 2187, 2199 (2015) (quoting Fry v. Piller, 551 U.S. 112, 119 (2007)) (emphasis in original); Hall v. Haws, 861 F.3d 977, 992 (9^th Cir. 2017). A state court decision will be considered reasonable under AEDPA standards as long as "fairminded jurists could disagree on [its] correctness." Davis v. Ayala, 135 S.Ct. 2187, 2199.

And, habeas corpus relief for a claim of trial error will only be appropriate if an error results in "actual prejudice". Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The federal habeas court's test for determining whether a federal constitutional error at trial caused "actual prejudice" is: Does the federal court have "grave doubt about whether a trial error of federal law had a substantial and injurious effect or influence in determining the jury's verdict." Davis v. Ayala, 135 S.Ct. at 2197-98; Hall v. Haws, 861 F.3d at 991.

When the federal court evaluates whether constitutional errors of prosecutorial misconduct occurred and whether any such errors were harmless, the court must consider the alleged errors in the context of the entire trial, including the weight of the evidence at trial, whether the state's attorney misstated evidence, whether the trial court gave a jury instruction about disregarding comments that are not evidence, whether the prosecutor's comment was invited by the defense, and whether the defense had an adequate opportunity to rebut the allegedly erroneous comment. Darden v. Wainwright, 477 U.S. at 182; Trilo v. Biter, 769 F.3d 995, 1001-02 (9^th Cir. 2014).

The allegations of the prosecutorial misconduct claims are:

• The prosecutor's remarks to the jury during closing argument, "that [details described in a statement by one of the child victims about defendant's sexual assault] should send some shivers down some of you" (Dkt. 4 at 22)

• Closing argument about the impact on the victims' family (Dkt. 4 at 22-23)

• The deputy prosecutor elicited opinion testimony from the mother of the child victim about the veracity of her daughters' allegations (Dkt. 4 at 20)

• The deputy prosecutor argued that the defendant was accusing the children of fabricating and colluding; in making this closing argument, the deputy prosecutor cast the defense itself as morally corrupt (Dkt. 4 at 21)

• The deputy prosecutor maligned counsel for the defendant by arguing in closing that the defense counsel had presented a misleading argument (Dkt. 4 at 21)

• The deputy prosecutor made a statement in closing argument that "the defendant raped and molested his soon-to-be stepchildren" yet there was no evidence that a second child was raped (Dkt. 4 at 21)

• The deputy prosecutor argued in closing that sexual abuse is committed against other children every day; this argument was not relevant to the issues in the petitioner's trial and was not based on evidence in this case (Dkt. 4 at 21)

The deputy prosecutor made a closing argument that suggested the jury could draw inferences about the defendant's state of mind, without any basis in the evidence (Dkt. 4 at 22).

Considering these remarks in the context of all the evidence, the Court should hold that petitioner's claims were resolved by the Washington Court of Appeals in a manner that was consistent with clearly established law in the United States Supreme Court. Darden v. Wainwright, 77 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974). The record shows the deputy prosecutor inquired on re-direct about whether there were times when these two children would tell a fib or a lie, and this line of questioning responded to defense counsel's cross-examination on the same topic. Dkt. 9-2 at 277-279. As the Washington Court of Appeals determined, the deputy prosecutor asked about the types of matters that H.A. and K.L. may have lied about in the past but did not ask their mother whether her daughters were telling the truth concerning their account of facts relating to the charged offenses. Dkt. 9-1 at 226 (attached). After this re-direct questioning by the deputy prosecutor, the defense neutralized the re-direct when he followed up on re-cross by asking whether the mother would believe her family - her children - over anyone else, to which she responded that yes, she would. Dkt. 9-2 at 284.

The Washington Court of Appeals reviewed all of the claims regarding the deputy prosecutor's closing argument and held that there was no misconduct, and if any misconduct occurred, it was not prejudicial. Dkt. 9-1 at 227-234 (State v. Duenas, 199 Wn. App. 1027 (2017) unpublished opinion at *6 -*10, attached). The trial transcript of the closing argument shows that the deputy prosecutor's remarks, taken in context, were not prejudicial. Dkt. 9-2 at 29-72. To the extent that the deputy prosecutor's remarks would potentially be confusing to the jury, this was resolved by the trial court's instruction that the arguments of counsel are not evidence and the jury should disregard any comment that is not supported by the evidence. Dkt. 9-2 at 213.

The Washington Court of Appeals ruling is consistent with the analysis of prosecutorial misconduct as a due process claim, Darden v. Wainwright, and is also consistent with the standard of review in Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). The petitioner's claims concerning prosecutorial misconduct should be rejected.

Ineffective Assistance of Counsel Allegations

The United States Supreme Court's decision in Strickland v. Washington, 466 U.S. 668 (1984) is clearly established federal law concerning the Sixth and Fourteenth Amendment right to effective assistance of counsel. Cullen v. Pinholster, 563 U.S. 170, 189 (2011). Avena v. Chappell, 932 F.3d 1237, 1247 (9^th Cir. 2019), certiorari petition docketed, No. 19-6562 (Nov. 6, 2019). To obtain federal habeas corpus relief on a claim that counsel was constitutionally ineffective, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness. . .. under prevailing professional norms"; and the petitioner must establish that counsel's inadequate representation cause prejudice - "that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 687, 694; Rodney v. Filson, 916 F.3d 1254, 1260 (9^th Cir. 2019). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, at 694. A federal habeas court uses a "doubly deferential" standard of review - giving the state court and the defense counsel the benefit of the doubt. Cullen v. Pinholster, at 190. Under AEDPA, the federal court does not apply the Strickland standard de novo; "[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable." Harrington v. Richter, 562 U.S. 86, 101 (2011).

In this case, the Washington State Court of Appeals applied the same standards for ineffective assistance of counsel that have been applied by the United States Supreme Court. The state appellate court found that even if counsel's performance was not adequate (assuming, without deciding the performance prong), the defendant failed to establish prejudice. Dkt. 9-1 at 234-239 (State v. Duenas, 199 Wn. App. 1027 (2017) unpublished opinion at *10- *12, attached). The Washington Court of Appeals determined that petitioner did not show that any of the evidentiary objections (that he argues his trial lawyer should have made) would have been sustained; nor did he show that even if such objections had been sustained the result of the trial would probably have been different. The Washington State Court of Appeals likewise found that the prosecutor's statements were not central to the case, and therefore defense counsel's failure to object to certain comments made by the State's counsel during closing argument could not have been prejudicial. Id.

To justify granting habeas corpus relief, this Court would be required to find that the Washington Court of Appeals decision is an objectively unreasonable application of Supreme Court precedent. Wilson v. Sellers, 584 U.S. ___, 138 S.Ct. 1188, 1191-92 (2018); Lockyear v. Andrade, 538 U.S. 63, 69 (2003). The petitioner must show that "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error. . . beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 102 (2011); Cook v. Kernan, ___ F.3d ___, No. 17-17257, 2020 WL 288252 (9^th Cir. Jan. 21, 2020) at *9. Petitioner has failed to meet this burden, and habeas corpus relief concerning ineffective assistance of counsel must be denied.

Cumulative error claim

Cumulative error warrants federal habeas corpus relief only when the combined effect of multiple errors at trial rendered the criminal trial fundamentally unfair; if the trial was so infected with unfairness as to have a "substantial and injurious effect or influence in determining the jury's verdict", this would be violation of due process under the Fourteenth Amendment. Brecht v. Abrahamson, 507 U.S. at 637; Chambers v. Mississippi, 410 U.S. 284, 302 (1973); Clark v. Chappell, 936 F.3d 944, 993-94 (9^th Cir. 2019). As the Washington Court of Appeals found, there were no prejudicial errors, and even if there were arguable errors concerning prosecutorial misconduct - those errors were brief and isolated statements that did not undermine the petitioner's convictions or his right to a fair trial. Dkt. 9-1 at 238-239 (State v. Duenas, 199 Wn. App. 1027 (2017) unpublished opinion at *13, attached). This Court should hold, as argued above, that the state appellate court reasonably applied clearly established law as announced by the United States Supreme Court as to each of the errors alleged by the petitioner, and therefore petitioner's cumulative error claim should be rejected.

Claim that community custody condition, regarding prohibition on relationships with minor persons, is void for vagueness

Respondent argues that petitioner cannot raise this claim because the United States Supreme Court has not recognized any federal habeas corpus constitutional right to a non-vague condition of supervision. Dkt. 8 at 38-39. The Court should hold that the Washington State Court of Appeals decision is not unreasonable. State v. Duenas, 199 Wn. App. 1027 (2017) unpublished opinion at *16-*17, attached. There is no clearly established law from the United States Supreme Court on this claim. Because there is no prior decision of the United States Supreme Court that would clearly entitle the petitioner to relief, "the state court's decision could not be 'contrary to' any holding from this [the United States Supreme] Court." Woods v. Donald, 575 U.S. 312, 317 (2015) (per curiam).

I. PETITIONER'S REQUEST FOR AN EVIDENTIARY HEARING

"A state court need not conduct an evidentiary hearing to resolve every disputed factual question." Gulbrandson v. Ryan, 738 F.3d 976, 987 (9^th Cir. 2013). A state court is not required to hold an evidentiary hearing if - even assuming the petitioner's allegations of fact were true - the allegations would not support relief. Hibbler v. Benedetti, 693 F.3d 1140, 1147-48 (9^th Cir. 2012). The first step in deciding whether an evidentiary hearing should be ordered in federal court is to consider whether a factual basis exists in the state court record to support the petitioner's claim. Hibbler, at 1147; Schriro v. Landrigan, 550 U.S. 465, 474 (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. Two conditions must be met: First, petitioner must allege sufficient facts that, if true, would entitle petitioner to relief; and second, petitioner must show that they did not receive a full and fair hearing in state court. Gonzalez v. Pliler, 341 F.3d 897, 903 (9^th Cir. 2003).

Where state courts adjudicated the habeas corpus claim on the merits, the federal court's review is normally limited to the record before the state court that adjudicated the claim on the merits. Cullen v. Pinholster, at181; Gulbrandson v. Ryan, 738 F.3d 976, 993 (9^th Cir. 2013). There is a strong but rebuttable presumption that the state court adjudicated a federal claim on the merits. See Johnson v. Williams, 568 U.S. 298, 300-01 (2013); Harrington v. Richter, 562 U.S. 86 (2011). If the state court applied the law in a manner that is contrary to the governing law set forth in United States Supreme Court precedent, then the federal court considers the claim without deference that AEDPA would otherwise require. Panetti v. Quarterman, 551 U.S. 930, 949, 953 (2007).

If a petitioner successfully shows that a state court based its' findings on an unreasonable determination of facts, a petitioner may be entitled to an evidentiary hearing. Hurles v. Ryan, 752 F.3d 768, 790-91 (9^th Cir. 2014). "If the factual basis for a claim is undeveloped or absent, the next inquiry is whether petitioner 'failed to develop' these facts in state court proceedings." Cook v. Kernan, ___ F.3d ___, No. 17-17257, 2020 WL 288252 (9^th Cir. Jan. 21, 2020) at *13 (quoting Insyxiengmay v. Morgan, 403 F.3d 657, 669-70 (9^th Cir. 2005)). And, under 28 U.S.C. §2254(e)(2), failure of a petitioner to develop the factual basis of the claim in state court will preclude the federal district court from granting an evidentiary hearing, unless:

(A) the claim relies on either:

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

See Cook v. Kernan, at *13.

In this case, the only claims that were not decided by the Washington State Court of Appeals on the merits of the federal legal issues are the prosecutorial misconduct claims for which petitioner defaulted, due to an independent and adequate state law procedural bar. Because the petitioner has not shown cause or prejudice that would excuse this procedural bar, nor has he alleged that the state law procedural rule was either not independent, or not adequate, nor has he shown any newly discovered evidence that would support an actual innocence claim, the Court should dismiss with prejudice the portions of ground two that are procedurally barred.

The petitioner has not shown any unreasonable application of clearly established federal law, nor any unreasonable determination of facts, nor has he shown that he failed to develop facts because the factual predicate could not have been previously discovered through due diligence. Therefore, petitioner has not made a showing that he is entitled to an evidentiary hearing in this case.

II. CERTIFICATE OF APPEALABILITY

A petitioner seeking post-conviction relief under § 2254 may appeal a district court's dismissal of his federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. A certificate of appealability may issue only where a petitioner has made "a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Under the above standard, this Court concludes that petitioner is not entitled to a certificate of appealability in this matter. This Court therefore recommends that a certificate of appealability be denied.

III. CONCLUSION

The Court should reject all of petitioner's grounds for federal habeas corpus relief and deny the petition with prejudice. Two of the sub-claims of prosecutorial misconduct are procedurally barred and should be dismissed with prejudice on that basis. All of the claims were reasonably decided by the Washington State Court of Appeals in a manner consistent with existing United States Supreme Court precedent. A proposed order accompanies this Report and Recommendation.

Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit within fourteen (14) days of the date on which this Report and Recommendation is served. Failure to file objections within the specified time may affect your right to appeal. Thomas v. Arn, 474 U.S. 140 (1985). Objections should be noted for consideration on the District Judge's motions calendar for the third Friday after they are filed.

Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on February 28 , 2020 .

Dated this 13th day of February, 2020.

/s/_________

Theresa L. Fricke

United States Magistrate Judge