Rishor v. Ferguson, No. 2:2011cv01492 - Document 65 (W.D. Wash. 2014)
Court Description: ORDER granting 43 Petitioner's Motion for Reconsideration. The Courts prior order and judgment are VACATED, and the Court DECLINES to adopt the Report and Recommendation. The Court GRANTS the Petition for Habeas Corpus on the grounds of wa iver of the right to counsel and double jeopardy and DENIES the request for a certificate of appealability as moot. Petitioners plea of guilty to second degree assault is vacated; Respondent shall release Petitioner from state custody on the secon d degree assault sentence within 90 days of the date the judgment herein becomes final, unless the State of Washington elects to prosecute Petitioner on second degree assault within 90 days of the final judgment, by Judge Marsha J. Pechman.(MD,) Modified on 12/3/2014 -mailed copy of order to petitioner at USP Lompodc, United States Penitentiary, 3901 Klein Blvd. Lompoc, CA 93436 (MD). Modified on 12/3/2014 cc: CCA via email(SA).
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Rishor v. Ferguson Doc. 65 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 KIRK L RISHOR, 11 12 13 14 CASE NO. C11-1492 MJP Petitioner, ORDER ON MOTION FOR RECONSIDERATION v. BOB FERGUSON, Respondent. 15 16 THIS MATTER comes before the Court on Petitioner Kirk Rishor’s Motion for 17 Reconsideration (Dkt. No. 43) of the Court’s Order Denying Petition for Writ of Habeas Corpus 18 and Dismissing Action (Dkt. No. 40). Having reviewed Petitioner’s Motion, Respondent’s 19 Response (Dkt. No. 49), Petitioner’s pro se Reply (Dkt. No. 50), Petitioner’s Reply via appointed 20 counsel (Dkt. No. 55), Respondent’s Response to the Court’s order for additional briefing (Dkt. 21 No 54), Respondent’s Surreply and Motion for Oral Argument (Dkt. No. 56), Petioner’s Motion 22 to Strike (Dkt. No. 57), Respondent’s Response to Motion to Strike (Dkt. No. 58), Respondent’s 23 Supplemental Brief prior to oral argument (Dkt. No. 60), Petitioner’s Supplemental Submission 24 (Dkt. No. 61), and Exhibit 1 to the parties’ oral argument (see Dkt. No. 63), and having heard ORDER ON MOTION FOR RECONSIDERATION1 Dockets.Justia.com 1 oral argument on October 22, 2014, the Court hereby VACATES the previous order and 2 judgment, DECLINES to adopt the Report and Recommendation, and GRANTS the petition for 3 habeas corpus on both waiver of counsel and double jeopardy grounds. 4 5 Background Mr. Rishor is an experienced pro se litigant who represented himself in his first trial on 6 four charges—first degree assault, two counts of second degree assault, and first degree unlawful 7 possession of a firearm—in Whatcom County in 2004. (See Dkt. No. 29, Ex. 23 at 6.) Prior to 8 that trial, the trial court engaged in what the Washington appellate court described as an 9 “extensive colloquy” with Petitioner about his wish to represent himself. (See Dkt. No. 29, Ex. 10 19 at 3-4; Ex. 22.) The jury acquitted Petitioner on the formal second degree assault charges but 11 returned a guilty verdict on the unlawful possession charge and also on second degree assault (as 12 a lesser included offense of the first degree assault charge). (See Dkt. No. 29, Ex. 23 at 6.) The 13 jury was silent as to the first degree assault charge, but showed no signs of deadlock. (See Dkt. 14 No. 49 at 13.) On appeal, the Washington Court of Appeals reversed the second degree assault 15 conviction and remanded for a new trial on that charge. (Dkt. No. 29, Ex. 23 at 2.) The three 16 claims Petitioner asks the Court to reconsider (validity of waiver of right to counsel, double 17 jeopardy, and certificate of appealability (see Dkt. No. 43 at 1–3)) relate to the proceedings on 18 these matters after remand. 19 I. 20 On remand, the trial court did not explicitly confirm Petitioner’s previous waiver of Facts Related to Waiver of the Right to Counsel 21 counsel. While a trial judge stated during an early appearance that he “had [Rishor] here to 22 reiterate his request to proceed in a pro se basis,” he did not engage in a formal colloquy with 23 Petitioner. (Dkt. No. 29, Ex. 24 at 5.) Petitioner responded to the question whether he wished to 24 ORDER ON MOTION FOR RECONSIDERATION2 1 proceed on a pro se basis by asking for standby counsel rather than acknowledging the risks of 2 representing himself. (Id.) 3 In a later appearance before a different judge, he was asked whether he had an attorney, 4 and he responded, “No, I don’t. I’m pro se, Your Honor.” (Dkt. No. 29, Ex. 26 at 3.) He 5 reiterated his need for standby counsel in order to have his motions noted: “I can’t get stuff noted 6 up for docket unless I have Mr. Fryer doing it because they won’t do it from jail.” (Id. at 7.) In a 7 separate transcript dated the same day, Petitioner told the judge that his standby counsel did not 8 need to be present for his arraignment. When the judge asked the prosecutor why Mr. Fryer was 9 not present, Petitioner answered, “Because he had some other stuff to do and I could handle the 10 arraignment by myself. I don’t really need him here. That’s why.” (Dkt. No. 29, Ex. 16, Appx. G 11 at 3.) The prosecutor stated, “I would think Mr. Fryer would or should have been here,” and 12 Petitioner responded, “Your Honor, that’s the problem I’m having. I can show up for court and 13 take care of most of the stuff. Mr. Fryer didn’t need to be here this morning. I told him.” (Id.) 14 Petitioner was not in fact arraigned on that occasion because the judge could not find the 15 information in his case. The judge guessed (incorrectly) that he was facing only a second-degree 16 assault charge: “Now, the last thing in this file that I’m finding is a Judgment and Sentence 17 where you were convicted of assault in the second degree and unlawful possession of a firearm 18 in the first degree back in May of ’04. I’m assuming that that remains the charge, that’s what’s 19 been remanded. For some reason there doesn’t appear to be a copy of the Information in this file 20 [. . . .] Assuming that there hasn’t been an amended charge filed, that’s what you’re looking at.” 21 (Id. at 5.) 22 On appeal, the Court of Appeals held that Petitioner’s representations as contained in 23 these transcripts constituted a valid waiver of the right to counsel in light of the court’s formal 24 ORDER ON MOTION FOR RECONSIDERATION3 1 colloquy with Petitioner two and a half years earlier. (See Dkt. No. 29, Ex. 19 at 3–4.) According 2 to the Court of Appeals, “Rishor made no showing after remand that he no longer wished to 3 represent himself. Rather, he requested only standby counsel and, [sic] further stated that he did 4 not need standby counsel to be present at arraignment and that he was able to ‘show up for court 5 and take care of most of the stuff.’” (Id. at 4.) The Court of Appeals also held that under the 6 standard of review used for personal restraint petitions in Washington, Petitioner could not show 7 actual prejudice because his standby counsel was involved in plea negotiations. (Id.) The 8 Washington Supreme Court then held in a ruling denying discretionary review that to the extent 9 that this failure to secure a second waiver of counsel was constitutionally deficient, the 10 deficiency was not prejudicial. (Dkt. No. 29, Ex. 21 at 2.) 11 II. 12 On remand from the Court of Appeals, Petitioner was initially charged with first degree Facts Related to Double Jeopardy 13 assault again—even though his first jury had impliedly rejected that charge in convicting him of 14 the lesser included offense. (Dkt. No. 29, Ex. 5 at 83.) He was never formally arraigned on this 15 charge, though his standby counsel purported to waive his arraignment. (Dkt No. 29, Ex. 28.) As 16 reflected in the transcripts, Petitioner was given varying information about the charge he was 17 facing at different times during the pretrial and post-plea phases. (See, e.g. Dkt. No. 29, Ex. 16, 18 Appx. G at 5 (during the pretrial phase a judge told Petitioner the judge assumed Petitioner was 19 facing a second-degree charge); Dkt. No. 29, Ex. 24 at 10 (during the pretrial phase a prosecutor 20 told the judge, “[T]echnically he is back here for a first appearance on the assault in the second 21 degree”); Dkt. No. 29, Ex. 17, Appx. C at 5 (after Petitioner’s plea a prosecutor told the 22 sentencing judge, “Of course at this point in time the State could only proceed on assault in the 23 24 ORDER ON MOTION FOR RECONSIDERATION4 1 second degree”); Dkt. No. 29, Ex. 30 at 3 (after Petitioner’s plea Petitioner stated that he had 2 been charged with first degree assault on remand).) 3 The record reflects that the Second Amended Information changing Petitioner’s charge to 4 second degree assault was filed on January 8, 2007, the same date Petitioner entered a plea of 5 guilty to second degree assault. (Dkt. No. 61, Appx. A at 20; id., Appx. D. at 2; Dkt. No. 63.) 6 According to an affidavit by Petititioner’s standby counsel, which was filed in the state court 7 proceedings, he had advised Petitioner during the pretrial phase of the sentencing consequences 8 of a conviction of assault in the first degree and that “While I cannot speak to the defendant’s 9 thought process as to accepting or rejecting the plaintiff’s offer to plead guilty to assault in the 10 second degree. [sic] Presumptively, the information I provided him as to the consequences of 11 being convicted of convicted of assault in the first degree in contrast to the consequences of 12 pleading guilty to assault in the second degree factored into his decision to plead guilty to the 13 amended charge.” (Dkt. No. 29, Ex. 16, Appx. K at 2.) The record thus suggests Petitioner was 14 not informed that the first degree assault charge was improper and that he was offered an 15 amended information in exchange for a plea of guilty to second degree assault. 16 III. 17 The prior proceedings in the state courts are numerous, and the Report and Procedural History and Exhaustion 18 Recommendation summarizes most aspects of the history well. (Dkt. No. 35 at 2–7.) The Court 19 notes the following correction: Petitioner’s guilty plea was on January 8, 2007, not 2006. (See 20 Dkt. No. 61, Appx. C at 2; Dkt. No. 35 at 2.) 21 Respondent has conceded that Petitioner exhausted his state remedies as least as to the 22 three claims directly addressed by the Report and Recommendation, including waiver of the right 23 to counsel. (Dkt. No. 27 at 10.) Counsel for Petitioner argues the double jeopardy claim was 24 ORDER ON MOTION FOR RECONSIDERATION5 1 fairly presented to the state courts, while Respondent argues it was not exhausted. (Dkt. No. 49 at 2 12–14.) The procedural history relevant to exhaustion and second or successive petitions is 3 described in the corresponding sections below. 4 Discussion 5 I. 6 A. Motion for Reconsideration 7 Pursuant to Local Rule 7(h)(1), motions for reconsideration are disfavored, and will Standards of Review 8 ordinarily be denied unless there is a showing of (a) manifest error in the ruling, or (b) facts or 9 legal authority which could not have been brought to the attention of the court earlier, through 10 reasonable diligence. The term “manifest error” is “an error that is plain and indisputable, and 11 that amounts to a complete disregard of the controlling law or the credible evidence in the 12 record.” Black’s Law Dictionary 622 (9th ed. 2009). 13 B. Second or Successive Bar 14 Respondent argues Petitioner’s Motion for Reconsideration is subject to AEDPA’s 15 second or successive claims bar. (Dkt. No. 60 at 2.) That bar provides: 16 17 18 19 20 21 22 23 (b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244. 24 ORDER ON MOTION FOR RECONSIDERATION6 1 C. AEDPA Standard 2 Finally, a federal court may not grant an application for habeas corpus 3 with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim (1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 4 5 6 28 U.S.C. § 2254(d). 7 “[C]learly established federal law” for the purpose of § 2254(d) means “holdings of the 8 Supreme Court at the time of the state court decision.” Stanley v. Cullen, 633 F.3d 852, 859 (9th 9 Cir. 2011) (citation omitted). While it is improper to derive “clearly established federal law” by 10 canvassing circuit court opinions in the absence of a Supreme Court opinion on point, this Court 11 may look to 9th Circuit case law to ascertain whether the 9th Circuit has held that the particular 12 point at issue is clearly established by Supreme Court precedent. See Marshall v. Rodgers, ––– 13 U.S. ––––, 133 S. Ct. 1446, 1450–1451 (2013) (per curiam). In applying this standard of review, 14 the Court “look[s] to the last reasoned decision in the state court system.” Collins v. Runnels, 15 603 F.3d 1127, 1130 (9th Cir. 2010) (quotation marks omitted). Once the “contrary to” prong is 16 met for a particular point of law, the Court analyzes the constitutional question without the 17 deference that AEDPA otherwise requires. See Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 18 2008) (citing Panetti v. Quarterman, 551 U.S. 930, 953 (2007)). 19 II. 20 21 22 23 Postjudgment Motions and Second or Successive Bar Respondent argues Petitioner’s Motion for Reconsideration is akin to a Federal Rule of Civil Procedure 60(b) motion for relief from a final judgment; according to Respondent, such a motion cannot evade the new claims litigation bar of AEDPA and is considered a second or successive habeas application under Gonzalez v. Crosby, 545 U.S. 524, 531 (2005) and Calderon 24 ORDER ON MOTION FOR RECONSIDERATION7 1 v. Thompson, 523 U.S. 538, 553 (1998). (Dkt. No. 60 at 2.) However, neither case cited by 2 Respondent concerns a motion for reconsideration that was timely filed in the district court. See 3 Gonzalez, 545 U.S. at 527 (Rule 60(b) motion filed nine months after a change in applicable law 4 and more than a year since the last order at the Court of Appeals); Calderon, 523 U.S. at 555 5 (recall of mandate by Court of Appeals). 6 A motion for reconsideration filed within 28 days is considered a Rule 59(e) motion 7 rather than a Rule 60(b) motion. See Am. Ironworks & Erectors, Inc. v. North Am. Constr. 8 Corp., 248 F.3d. 892, 898–99 (9th Cir. 2001). Rule 60(b)(6) is appropriate only “where 9 ‘extraordinary circumstances prevented [him] from taking timely action to prevent or correct an 10 erroneous judgment.’” Hamilton v. Newland, 374 F.3d 822, 825 (9th Cir. 2004), quoting 11 Greenawalt v. Stewart, 105 F.3d 1268, 1273 (9th Cir. 1993) (emphasis added). Here, in contrast, 12 Petitioner took prompt action to correct the judgment: the motion was filed seventeen days after 13 the Court’s order and entry of judgment and is therefore a Rule 59(e) motion. (See Dkt. Nos. 43, 14 42, 41.) 15 There is a circuit split on the question whether the Gonzalez analysis applies to Rule 16 59(e) motions. The Fifth, Eighth, Tenth, and Fourth Circuits have held or implied that it does. 17 See Williams v. Thaler, 602 F.3d 291, 303–04 (5th Cir. 2010); Ward v. Norris, 577 F.3d 925, 18 931–35 (8th Cir. 2009) (although it appears from the panel’s discussion of the facts that the 19 purported Rule 59(e) motion was filed more than 28 days after the entry of judgment and after 20 the denial of a Rule 60(b) motion); United States v. Pedraza, 466 F.3d 932, 933 (10th Cir. 2006) 21 (although there the Rule 59(e) motion was a motion for reconsideration of the district court’s 22 decision on a Rule 60(b) motion); United States v. Martin, 132 Fed.Appx. 450, 451 (4th Cir. 23 2005) (pre-Gonzalez decision in which timeliness of Rule 59(e) motion is not discussed). The 24 ORDER ON MOTION FOR RECONSIDERATION8 1 Sixth and Third Circuits have concluded that Gonzalez does not apply to timely filed Rule 59(e) 2 motions. See Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008); Blystone v. Horn, 664 3 F.3d 397, 414–45 (3d Cir. 2011). The Ninth Circuit has not yet decided the question. 4 Because a timely filed motion for reconsideration tolls the time for appeal, see Fed. R. 5 App. P. 4(a)(4)(A), and thus effectively suspends the finality of the judgment for that period, the 6 Court agrees with the Sixth and Third Circuits’ conclusions that such a motion does not 7 constitute a second or successive application for habeas corpus. See Blystone, 446, F.3d at 414 8 ([A] timely filed Rule 59(e) motion suspends the finality of the judgment by tolling the time for 9 appeal. Accordingly, we cannot logically subject a Rule 59(e) motion to the statutory limitations 10 imposed upon second or successive collateral attacks on criminal judgments because, unlike a 11 Rule 60(b) motion, it is neither a collateral attack on the initial habeas judgment, nor a new 12 collateral attack on the underlying criminal judgment—rather it is part and parcel of the 13 petitioner’s ‘one full opportunity to seek collateral review.’”) (emphasis in original) (citations 14 omitted). 15 In addition, at least with respect to the double jeopardy claim, there can be no argument 16 that Petitioner is bringing a “claim presented in a second or successive habeas corpus 17 application” that was also “presented in a prior application.” See 28 U.S.C. § 2244(b). Under 18 Gonzalez, the double jeopardy claim neither raises a “new ground for relief” (because it was 19 raised in his initial habeas petition, albeit inartfully) nor “attacks the federal court’s previous 20 resolution of a claim on the merits” (because the Court failed to recognize the claim and address 21 its merits). Cf. Gonzalez, 545 U.S. at 532 (distinguishing Rule 60(b) motions that “advance one 22 or more ‘claims’” from those that address “some defect in the integrity of the federal habeas 23 proceedings”). (See Petition (form habeas petition), Dkt. No. 4 at 6 (“no notice of charges”), 8 24 ORDER ON MOTION FOR RECONSIDERATION9 1 (“failure to arraign”); Supplemental Brief (supplemental brief filed seven days after the habeas 2 petition), Dkt. No. 5 (arguing under Grounds 1 and 2 that “The state had no legal authority to re3 file first degree assault charges against the petitioner. State v. ahluwalia, 143 Wn. 2. 527, 540– 4 41, 22 p. 3d. 1254 (2001) as demonstrated by the discussion in ahluwalia and [sic] arraignment is 5 required afther [sic] a reversal, especially where an amended information is filled [sic] and there 6 is a basis to be confused about the charges.”); Report and Recommendation, Dkt. No. 35 at 9 n.3 7 (noting but not addressing the argument that “it was improper for the state to charge him with 8 first degree assault on remand because he was found not guilty on that charge at his original 9 trial”).) 10 III. 11 Petitioner first seeks reconsideration on waiver of the right to counsel, arguing the state Waiver of the Right to Counsel 12 courts applied the wrong standard of review to the trial court’s failure, on remand, to secure a 13 waiver of the right to counsel on the new charges he was facing in the wake of acquittals and an 14 appeal. (Dkt. No. 43 at 1–2; Dkt. No. 55 at 5–6.) In this case, the “last reasoned opinion” in the 15 state courts is the Washington Supreme Court’s opinion denying discretionary review. See 16 Barker v. Fleming, 423 F.3d 1085, 1091–92 (9th Cir. 2005) (holding that a seven-page order 17 from the Washington Supreme Court denying review of a personal restraint petition and 18 examining the substance of the claim at issue was the last reasoned decision). Petitioner is 19 correct that the last reasoned opinion of the Washington courts clearly required Petitioner to 20 demonstrate prejudice on this question. (Dkt. No. 29, Ex. 21 at 2.) The more detailed Court of 21 Appeals opinion contained a similar analysis. (See Dkt. No. 29, Ex. 19 at 4.) The Report and 22 Recommendation previously adopted by this Court also relied on a prejudice finding: “In fact, 23 the record suggests that petitioner desired to represent himself on remand and that he ably did so 24 with the assistance of standby counsel.” (Dkt. No. 35 at 13.) Furthermore, in adopting that ORDER ON MOTION FOR RECONSIDERATION10 1 Report and Recommendation, this Court’s Order (Dkt. No. 40 at 2) overlooked Petitioner’s 2 citations to a relevant Supreme Court case on per se prejudice in his Objections (Dkt. No. 38 at 3 2). 4 The Court notes that the record suggests that Petitioner may well have been prejudiced by 5 the supposed assistance of his standby counsel, who purported to waive arraignment even though 6 Petitioner was not aware of the charges against him and informed Petitioner during plea 7 negotiations that he was facing a higher sentence based on a first-degree assault when double 8 jeopardy should have prevented that charge from being filed. (See Dkt No. 29, Ex. 28; id., Ex. 9 17, Appx. K.) 10 However, it would be imprecise to say that the Washington courts’ failure to recognize 11 this prejudice is contrary to federal law—because federal law does not require a showing of 12 prejudice on Sixth Amendment claims in the first place. As Petitioner pointed out in his Motion 13 for Reconsideration, the Ninth Circuit has stated unequivocally that the application of a harmless 14 error standard to a trial court’s failure to secure a Faretta waiver does not comport with the Sixth 15 Amendment. United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) (“[T]he failure to 16 meet the requirements for a valid Faretta waiver constitutes per se prejudicial error, and the 17 harmless error standard is inapplicable.”); see also United States v. Mohawk, 20 F.3d 1480, 1483 18 (9th Cir. 1994). Thus, Petitioner’s argument merited reconsideration by this Court on the grounds 19 that the Report and Recommendation and the Order adopting the Report and Recommendation 20 included a “manifest error” or “mistake.” LCR 7(h)(1); FRCP 60(b). 21 It is not clear, however, that the narrow legal principle of per se prejudice has been 22 precisely enunciated by the United States Supreme Court—a prerequisite to relief under 23 AEDPA. The Supreme Court has held that a denial of the right to self-representation under the 24 ORDER ON MOTION FOR RECONSIDERATION11 1 Sixth Amendment is per se prejudicial error. McKaskle v. Wiggins, 465 U.S. 168, 177, n.8 2 (1984). In a mirror-image case somewhat closer to the factual scenario presented here, the 3 Supreme Court also held that the denial of the right to be assisted by the counsel of one’s choice 4 is per se prejudicial error. United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (“Where 5 the right to be assisted by counsel of one’s choice is wrongly denied, therefore, it is unnecessary 6 to conduct an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation.”). 7 Together, these cases imply that the Supreme Court would, if faced with this question, hold that 8 the Washington courts were wrong to require Petitioner to demonstrate prejudice in the Sixth 9 Amendment claim he makes here. However, according to the Supreme Court, a habeas claim 10 does not merit relief under AEDPA where the state court has unreasonably failed to extend the 11 legal principles in Supreme Court precedent. White v. Woodall, 134 S. Ct. 1697, 1705–06 12 (2014). Because the precise conclusion that failure to secure a valid Faretta waiver is per se 13 prejudicial appears in Ninth Circuit but not Supreme Court precedent, this Court cannot grant 14 relief on that claim. 15 Petitioner is on more solid ground when he argues that Washington courts 16 unconstitutionally shifted the burden onto Petitioner to demonstrate a knowing and voluntary 17 waiver of counsel. (Dkt. No. 55 at 5.) According to the Supreme Court, “It is the State’s burden 18 to show that a [Sixth Amendment] waiver is knowing and voluntary.” Michigan v. Harvey, 494 19 U.S. 344, 354 (1990). Furthermore, “the right to counsel does not depend on a request from a 20 defendant . . . and courts indulge in every reasonable presumption against waiver. This strict 21 standard applies equally to an alleged waiver of the right to counsel whether at trial or at a 22 critical stage of pretrial proceedings.” Brewer v. Williams, 430 U.S. 387, 404 (1977) (citations 23 omitted). In this case, both the Court of Appeals opinion and the Supreme Court shifted the 24 ORDER ON MOTION FOR RECONSIDERATION12 1 burden to Petitioner to demonstrate that he knowingly and voluntarily waived the right to 2 counsel. (See Dkt. No. 29, Ex. 19 at 4 (“Rishor made no showing after remand that he no longer 3 wished to represent himself.”); Ex. 21 at 2 (“[T]he record indicates that Mr. Rishor was more 4 than ready to proceed pro se with the active assistance of standby counsel.”).) These conclusions 5 were contrary to clearly established federal law as established by the Supreme Court because 6 they put the burden on Petitioner to demonstrate lack of waiver and failed to apply a presumption 7 against waiver. 8 Once the “contrary to” prong is met for a particular point of law, the Court analyzes the 9 constitutional question without the deference that AEDPA otherwise requires. See Frantz v. 10 Hazey, 533 F.3d at 735. If the state prosecutes Petitioner on the second degree assault charge, the 11 Washington courts must ensure that Petitioner either is provided with counsel or “knowingly and 12 intelligently” waives the right to counsel—a standard which requires the defendant to be “aware 13 of the nature of the charges against him, the possible penalties, and the dangers and 14 disadvantages of self-representation” on those charges. See Mohawk, 20 F.3d. at 1484. The 15 question whether Petitioner is skilled at self-representation is, under Ninth Circuit precedents, 16 “irrelevant.” Id. 17 IV. 18 Petitioner also seeks the Court’s reconsideration on double jeopardy: “that Petitioner was Double Jeopardy 19 found NOT GUILTY OF FIRST DEGREE ASSAULT at Jury Trial with an implied 20 acquittal/Washington States silent doctrine.” (Dtk. No. 43 at 2.) Petitioner’s double jeopardy 21 claims merit reconsideration because the Report and Recommendation and the Order adopting it 22 acknowledged the existence of a recognizable constitutional argument without addressing it or 23 by addressing it erroneously. (See Dkt. No. 35 at 9 n.3 (“Petitioner maintains that it was 24 ORDER ON MOTION FOR RECONSIDERATION13 1 improper for the state to charge him with first-degree assault on remand because he was found 2 not guilty of that charge at his original trial.”); Dkt. No. 40 at 3 (“Although Petitioner was not 3 originally convicted on first degree assault, Petitioner was initially charged with first degree 4 assault; there is no indication there was any prosecutorial vindictiveness by bringing that same 5 charge on remand.”).) Contrary to Respondent’s characterization of the Court’s docket, 6 Petitioner first raised double jeopardy arguments in the earliest stages of this case: the 7 Supplemental Brief filed in conjunction with his Petition (“The state had no legal authority to re8 file first degree assault charges against the petitioner.” (Dkt. No. 5 at 3); “The acting chief judge 9 dismissed petitioner’s’s [sic] claim that the court re-charged him with first degree assault 10 knowing that second degree was all he could be charged with by stating he did not raise the 11 argument in the motions transferred for consideration. Petitioner has supplied theses[sic] motions 12 and his reply brief in appendix a of this motion [. . . . ] Craig chambers states second degree 13 assault was all petitioner could be charged with after remand. Two years after he re-filed the first 14 degree assault charges against petitioner.” (Dkt. No. 5 at 4) (citations omitted)) and the 15 Supplemental Brief filed after Petitioner’s 60(b) motion following the denial of his petition on 16 custody grounds (“Then the Prosecution Re-Filed FIRST DEGREE ASSAULT CHARGES 17 against the Petitioner on November 6th 2006. Petitioner was found NOT GUILTY BY JURY on 18 these charges at his original trial, the Peititoner was never given notice, or arraigned on this new 19 filing either, and this is what they used to COERCE the guilty plea [ . . . .] [The Washington 20 Supreme Court] LEAVE[S] OUT THE FACT that I was unconstitutionally recharged with First 21 Degree Assault that I was previously found NOT GUILTY BY JURY.” (Dkt. No. 23 at 4)). 22 As Respondent acknowledged in its Response to the Court’s order requesting additional 23 briefing, Petitioner was in fact charged with first-degree assault on remand even though he had 24 ORDER ON MOTION FOR RECONSIDERATION14 1 been impliedly acquitted of that charge at his first trial. (See Dkt. No. 49 at 13.) Respondent’s 2 description of this problem in its Response (“subsequent prosecution on the charge the jury 3 implicitly acquits is a double jeopardy violation,” Dkt. No. 49 at 13) led the Court to characterize 4 Respondent’s position as an “admission that Petitioner was prosecuted in violation of the Double 5 Jeopardy Clause.” (Dkt. No. 53 at 1.) Respondent strenuously objected to this characterization in 6 an unsolicited letter to the Court, noting that Respondent ultimately pled guilty to second degree 7 assault, which in Respondent’s view cures and insulates from review the initial charging 8 problem. (Dkt. No. 54 at 1.) The Court was never under any misapprehension about 9 Respondent’s position on this point; being charged and therefore “prosecuted” in violation of the 10 Double Jeopardy Clause does not necessarily mean Petitioner is entitled to relief under AEDPA. 11 A. Exhaustion 12 The first hurdle Petitioner must contend with is exhaustion. Respondent argues 13 Petitioner’s double jeopardy claim is not exhausted and is procedurally defaulted. (Dkt. No. 13– 14 14.) Petitioner identifies several places in the state court proceedings, including Petitioner’s pro 15 se Motion for Discretionary Review to the Washington State Supreme Court, where Petitioner 16 brought claims that raised double jeopardy issues while omitting the “talismanic phrase ‘double 17 jeopardy.’” (Dkt. No. 55 at 18–19.) 18 The Court is mindful that the “exhaustion doctrine [ . . . ] is founded on concerns broader 19 than those of the parties; in particular, the doctrine fosters respectful, harmonious relations 20 between the state and federal judiciaries.” Wood v. Milyard, 132 S. Ct. 1826, 1833 (2012) 21 (citation omitted). In order to exhaust a claim, a petitioner must “fairly present” his “federal legal 22 theories to the state courts, so that those courts are alerted to the fact that the prisoner[ ] [is] 23 asserting claims under the United States Constitution and thus given the opportunity to correct 24 ORDER ON MOTION FOR RECONSIDERATION15 1 alleged violations of [the] prisoner[’s] federal rights.” Arrendondo v. Neven, 763 F.3d 1122, 2 1138 (9th Cir. 2014) (citing Duncan v. Henry, 513 U.S. 364, 365–66 (1995)) (internal quotation 3 marks omitted). “To fairly present a federal claim, a state prisoner must present to the state 4 courts both the operative facts and the federal legal theories that animate the claim.” Id. (citations 5 omitted). However, “the complete exhaustion rule is not to trap the unwary pro se prisoner.” 6 Slack v. McDaniel, 529 U.S. 473, 487 (2000) (internal quotation marks omitted). “[C]itation to 7 either a federal or state case involving the legal standard for a federal constitutional violation is 8 sufficient to establish exhaustion.” Castillo v. McFadden, 399 F.3d 993, 999 (9th Cir. 2005). 9 Here, Petitioner first presented the factual and legal basis for his double jeopardy claim in 10 a pro se “statement of additional grounds” filed as a supplement to his counseled opening brief to 11 the Court of Appeals in an appeal of his post-judgment Superior Court motion to withdraw his 12 guilty plea and petition for habeas corpus. (Dkt. No. 29, Ex. 10.) In this submission, Petitioner 13 briefed two assignments of error: “1) Did the state error [sic] when it refiled 1° assault charges?” 14 and “2) Were the states [sic] actions governmental misconduct?” (Id. at 4.) He argued, 15 16 17 Rishor’s cases was reversed and remanded on August 14, 2006 on the lesser included charge of count 1, 2° assault. After Rishor returned to the superior court, the state filed 1° assault charges against Rishor based on the original information. This was an error. When the jury came back from deliberation they had been silent on the 1° assault charge. [sic] thus invoking the silent doctrine[.] 18 (Id.) He cited two Washington state cases, State v. Schoel, 54 Wn.2d 388 (1959), and State v. 19 Linton, 156 Wn.2d 777 (2006), which were precisely on point: in both, the implied acquittal 20 doctrine was at issue and the holding rested solely (in Schoel) and equally (in Linton) on the 21 double jeopardy guarantee of the Fifth Amendment. He concluded, “The reversal and remand 22 was on 2° assault, and that is all Rishor could have been retried on.” (Dkt. No. 29, Ex. 10 at 4.) 23 24 ORDER ON MOTION FOR RECONSIDERATION16 1 These supplemental arguments were not addressed by the lower courts, in part due to the 2 procedure by which the underlying post-judgment motions were remanded to the Superior Court 3 and then transferred to the Court of Appeals for consideration as a personal restraint petition. 4 (See Dkt. No. 29, Exs. 13–14.) Respondent’s brief in the Court of Appeals did not address 5 Petitioner’s double jeopardy arguments. (See Dkt. No. 29, Ex. 16.) Before the Court of Appeals 6 ruled on the trial court post-judgment motions, Petitioner filed (apparently simultaneously on 7 January 6th/8th, 2010) a Reply Brief (Dkt. No. 29, Ex. 17) and a submission styled as a “Motion 8 on the Merits to Reverse” (Id., Ex. 18 at 2). Both briefs again raised the double jeopardy 9 argument. The Reply used the argument to attack the State’s conclusion that the guilty plea 10 waived any constitutional violation, and cited Schoel and Linton. (Id., Ex. 17 at 5–6.) The 11 Motion cited Schoel and argued, “The State had no Legal Authority to Re-charge Petitioner with 12 First Degree Assault [ . . . . ]The State Held First Degree Assault charges over Petitioner’s head 13 to secure the plea bargain, when they knew Second Degree Assault was all he could be charged 14 with.” (Id., Ex. 18 at 2.) It further requested that the case be remanded for a new trial on the 15 second degree assault charge. (Id.) 16 The Court of Appeals stated that it would not consider any argument that the guilty plea 17 was coerced because it was raised for the first time in a reply brief rather than in the immediate 18 post-judgment motions that were converted into a personal restraint petition. (Dkt. No. 29, Ex. 19 19 at 4.) As Petitioner points out, the Court nonetheless concluded that the plea was not coerced 20 and implicitly dismissed the basis for this claim (the double jeopardy argument). (Id.) 21 Petitioner again raised double jeopardy arguments in his Motion for Discretionary 22 Review to the Washington State Supreme Court. (Dkt. No. 29, Ex. 20.) In the course of an 23 argument about arraignment, he argued, “The State had no legal authority to re-file fist [sic] 24 ORDER ON MOTION FOR RECONSIDERATION17 1 degree assault charges against the petitioner” (citing State v. Ahluwalia, 143 Wash.2d 527 (2001) 2 (another Washington case dealing with double jeopardy under the Fifth Amendment)). A 3 separate argument, inartfully titled “Can the Court dismiss the Petitioner’s claims by stating he 4 failed to raise the issue when in his original motion it was clearly raise [sic]?”, directly addressed 5 the double jeopardy argument, both separately and as the basis for an argument that the guilty 6 plea was coerced. Petitioner wrote, “The acting Chief Judge dismissed Petitioner’s claim that the 7 Court re-charged him with first degree assault knowing that second degree was all he could be 8 charged with by stating he did not raise this argument in the motions transferred for 9 consideration.” (Dkt. No. 29, Ex. 20 at 14.) He continued, “The State re-filed first degree assault 10 charges with no legal authority, and secured a plea, negations [sic] of that higher charge. [ . . . ] 11 The State had no legal power to negotiate with first degree assault. Even stand-by counsel Tomas 12 [sic] Fryer was under the impression that the Petitioner was facing first degree assault charges.” 13 (Id., Ex. 20 at 15.) 14 The Commissioner of the Washington Supreme Court agreed with Petitioner that he had 15 raised the plea coercion claim with the trial court. (Dkt. No. 29, Ex. 21 at 2.) The opinion 16 denying discretionary review nonetheless held that his “bald claim of coercion” was insufficient 17 to merit collateral review. (Id.) 18 This history reveals the Washington courts had ample “opportunity to correct alleged 19 violations of [the] prisoner[’s] federal rights.” Arrendondo, 763 F.3d at 1138. At every stage, 20 Petitioner set forth both the facts giving rise to a double jeopardy claim and the legal theory (via 21 case citations) that animated the claim. Although he cited state cases, they were Washington 22 Supreme Court cases applying the double jeopardy prohibition of the Fifth Amendment. See 23 Schoel, 54 Wn.2d at 397–98 (1959); Ahluwalia, 143 Wn.2d at 539–40 (2001); Linton, 156 24 ORDER ON MOTION FOR RECONSIDERATION18 1 Wn.2d at 782–84 (2006). Respondent does not grapple with these aspects of the record, 2 appearing to rely entirely on the fact that the phrase “double jeopardy” does not appear in 3 petitioner’s filings. (See Dkt. No. 49 at 12–13.) But Respondent offers no case law to support its 4 interpretation of exhaustion doctrine, which would hold pro se litigants to a stringent standard for 5 the convenience of courts that neglect to check case citations. Petitioner has exhausted his double 6 jeopardy claim. 7 B. Clearly Established Federal Law 8 Petitioner alleges he was prosecuted in violation of the Double Jeopardy Clause when he 9 was re-charged with first-degree assault, a crime of which Petitioner further alleges previously 10 been impliedly acquitted at trial. The principle that the implied acquittal prohibits subsequent 11 prosecution under the Double Jeopardy Clause was explained by the Supreme Court as long ago 12 as 1898. See Selvester v. United States, 170 U.S. 262, 269 (1898) (“Doubtless, where a jury, 13 although convicting as to some, are silent as to other, counts in an indictment, and are discharged 14 without the consent of the accused, as was the fact in the Dealy Case, the effect of such discharge 15 is ‘equivalent to acquittal,’ because, as the record affords no adequate legal cause for the 16 discharge of the jury, any further attempt to prosecute would amount to a second jeopardy, as to 17 the charge with reference to which the jury has been silent.”). 18 This principle was reaffirmed in a context identical to Petitioner’s in Green v. United 19 States, where the implied acquittal occurred as a result of being convicted of a lesser included 20 charge accompanied by jury silence on the greater charge. See Green v. United States, 355 U.S. 21 184, 190 (1957). To the extent that Respondent draws a distinction between merely being 22 charged impermissibly and proceeding to a full trial on the impermissible charge (see Dkt. No. 23 54), that distinction is not found in the case law. See, e.g., United States v. Dixon, 509 U.S. 688 24 ORDER ON MOTION FOR RECONSIDERATION19 1 (1993) (affirming a district court’s grant of a motion to dismiss an indictment containing charges 2 which violated the Double Jeopardy Clause). 3 This Court requested additional briefing in part to determine whether Petitioner was 4 indeed acquitted of the first-degree assault charge when his jury did not reach a verdict. 5 Respondent conceded, “The trial minute records [ . . . ] do not indicate splits or divisions in not 6 reaching the verdict of the first degree assault. As Brazzel [v. Washignton, 491 F.3d 976 (9th 7 Cir. 2007)] and Green [v. United States] indicate, subsequent prosecution on the charge the jury 8 implicitly acquits is a double jeopardy violation.” (Dkt. No. 49 at 13.) Respondent proceeded to 9 explain why this problem was cured or avoided by Petitioner’s ultimate guilty plea on second 10 degree assault (id.)—an issue the Court will address further below. 11 Supreme Court cases available at the time of the state court’s decisions on Petitioner’s 12 personal restraint petition clearly establish that Petitioner was prosecuted in violation of the 13 Double Jeopardy Clause when he was charged on remand with first degree assault, a crime of 14 which he had previously been impliedly acquitted. Petitioner has thus fulfilled AEDPA’s 15 prerequisite that that the adjudication of his double jeopardy-related arguments resulted in state 16 court “decision[s] that [were] contrary to, or involved an unreasonable application of, clearly 17 established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 18 2254(d). 19 C. Guilty Plea 20 Once the “contrary to” prong is met for a particular point of law, the Court analyzes the 21 constitutional question without the deference that AEDPA otherwise requires. See Frantz, 533 22 F.3d at 735. Respondent claims the fact that the State eventually charged Petitioner with second 23 24 ORDER ON MOTION FOR RECONSIDERATION20 1 degree assault and Petitioner entered a plea of guilty on that charge cures the double jeopardy 2 error. (See Dkt. No. 54 at 2.) It is true that a “voluntary and intelligent” 3 4 5 guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea [ . . . . ] 6 Tollett v. Henderson, 411 U.S. 258, 267 (1973). Double jeopardy claims are treated like other 7 constitutional claims in that “when the judgment of conviction upon a guilty plea has become 8 final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to 9 whether the underlying plea was both counseled and voluntary.” United States v. Broce, 488 10 U.S. 563, 569 (1989). 11 Petitioner was proceeding pro se with the assistance of standby counsel at the time of his 12 plea. (See Dkt. No. 29, Ex. 19 at 4.) Unfortunately, Petitioner’s standby counsel, Mr. Fryer, 13 provided Petitioner with inaccurate information about the charge Petitioner could legally face 14 (due to the double jeopardy bar) if he chose to go to trial. Mr. Fryer provided Petitioner with an 15 affidavit that became part of the record before the state Court of Appeals in which he explained 16 that he had informed Petitioner of the standard range sentence that would be imposed for 17 conviction of first degree assault at trial (240–138 months) compared to second degree assault 18 (63–48 months), and stated, “While I can not [sic] speak to the defendant’s thought process as to 19 accepting or rejecting plaintiff’s offer to plead guilty to assault in the second degree. [sic] 20 Presumptively, the information I provided him as to the consequences of pleading guilty to 21 assault in the first degree factored into his decision to plead guilty to the amended charge.” (Dkt. 22 No. 29, Ex. 17, Appx. K.) Had Mr. Fryer been acting as Petitioner’s formal counsel at the time of 23 the plea, this “gross mischaracterization of the likely outcome presented in [the] case, combined 24 ORDER ON MOTION FOR RECONSIDERATION21 1 with the erroneous advice on the possible effects of going to trial, [would] fall[ ] below the level 2 of competence required of defense attorneys.” Womack v. Del Papa, 497 F.3d 998, 1003 (9th 3 Cir. 2007). 4 “[A] defendant has the right to make a reasonably informed decision whether to accept a 5 plea offer.” Turner v. Calderon, 281 F.3d 851, 880 (9th Cir. 2002) (alteration in original). The 6 standard for determining the plea’s validity is “whether the plea represents a voluntary and 7 intelligent choice among the alternative courses of action open to the defendant.” North Carolina 8 v. Alford, 400 U.S. 25, 31 (1970). Regardless of whether Petitioner can claim ineffective 9 assistance on the part of standby counsel, it is clear that due to the misinformation he received, 10 Petitioner did not understand the charges he was facing or the likely outcome of trial. See 11 Bradshaw v. Stumpf, 545 U.S. 175, 182 (2005) (stating a “guilty plea would indeed be invalid if 12 [the defendant] had not been aware of the nature of the charges against him”); c.f. Iowa v. Tovar, 13 541 U.S. 77, 92 (2004) (noting that an uncounseled defendant had “never claimed that he did not 14 fully understand the charge or the range of punishment for the crime prior to pleading guilty”). 15 At the heart of the Due Process clause is a concern with the reliability of proceedings that 16 permit the government repeated attempts at conviction: 17 18 19 20 [A] need for reliability accords with one of the central concerns animating the constitutional prohibition against double jeopardy. As the Court explained in Green v. United States, the Double Jeopardy Clause prevents States from “mak[ing] repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” 21 United States v. Monge, 524 U.S. 721, 732 (1998) (citation omitted). The filing of the first22 degree assault charge placed Petitioner at a grave disadvantage in the plea bargaining process 23 that undercut the reliability of the resulting plea. 24 ORDER ON MOTION FOR RECONSIDERATION22 1 Petitioner is thus entitled to habeas relief on the double jeopardy claim even though he 2 ultimately pleaded guilty to a permissible second degree assault charge. 3 V. 4 In the alternative, Petitioner seeks a certificate of appealability. (Dkt. No. 43 at 1, 3.) Certificate of Appealability 5 Because the Court agrees with Petitioner on the two central grounds of his Motion for 6 Reconsideration and is granting the relief sought, the request for a certificate of appealability is 7 moot. 8 9 Conclusion The Court GRANTS the Motion for Reconsideration, the Court’s prior order and 10 judgment are VACATED, and the Court DECLINES to adopt the Report and Recommendation. 11 The Court GRANTS the Petition for Habeas Corpus on the grounds of waiver of the right to 12 counsel and double jeopardy and DENIES the request for a certificate of appealability as moot. 13 Petitioner’s plea of guilty to second degree assault is vacated; Respondent shall release Petitioner 14 from state custody on the second degree assault sentence within 90 days of the date the judgment 15 herein becomes final, unless the State of Washington elects to prosecute Petitioner on second 16 degree assault within 90 days of the final judgment. 17 18 The clerk is ordered to provide copies of this order to all counsel. 19 Dated this 3rd day of December, 2014. 20 22 A 23 Marsha J. Pechman Chief United States District Judge 21 24 ORDER ON MOTION FOR RECONSIDERATION23
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