Farzad v. Snohomish County Superior Court et al

Filing 31

ORDER ADOPTING 27 REPORT AND RECOMMENDATION; Modifying Case Caption; and granting Writ of Habeas Corpus, by Judge Marsha J. Pechman. (SWT)(Robert W Ferguson and Mark Roe terminated.) (cc: Snohomish County Superior Court via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SAID FARZAD,
Petitioner,

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CASE NO. C17-1805-MJP-BAT

v.
SNOHOMISH COUNTY SUPERIOR
COURT,

ORDER ADOPTING REPORT AND
RECOMMENDATION;
MODIFYING CASE CAPTION;
AND GRANTING WRIT OF
HABEAS CORPUS

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Respondent.
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THIS MATTER comes before the Court on Respondents’ Objections (Dkt. No. 28) to the

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Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate

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Judge. (Dkt. No. 27.) Having reviewed the Report and Recommendation, the Objections, the

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Response (Dkt. No. 30) and all related papers, the Court ADOPTS the Report and

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Recommendations and GRANTS Petitioner’s 28 U.S.C. § 2241 Petition.

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Background
The relevant facts and procedural background are set forth in detail in the Report and

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Recommendation. (Dkt. No. 27.) Respondents raise three objections to the Report and

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Recommendation: (1) Respondents object to Magistrate Judge Tsuchida’s conclusion that the
ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 1

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state court proceedings violated Petitioner Said Farzad’s Double Jeopardy rights, and object to

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the recommendation that Petitioner’s habeas corpus petition be granted; (2) Respondents object

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to the inclusion of Respondents Mark Roe and Robert Ferguson in the caption of the Proposed

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Order and Proposed Judgment; and (3) Respondents contend that Petitioner is required to

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exhaust state remedies. (Dkt. No. 28 at 1-2.)

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Discussion
I.

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

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

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

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U.S.C. § 636(b)(1).

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II.

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Respondents’ Objections
A. Double Jeopardy

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Respondents object to the Report and Recommendation’s finding that Petitioner’s retrial,

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after the jury was unable to reach a verdict on Count I, violated Double Jeopardy. (Dkt. No. 28

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at 2-5.)

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The Report and Recommendation indicate that, while the jury expressly declared that

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they were deadlocked as to Count II, they did not do so as to Count I. (Dkt. No. 27 at 7-8.) The

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trial court did not make further inquiry or finding as to whether the jury was deadlocked on

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Count I. (Id. at 8.) Respondents contend that when Petitioner rejected the trial court’s offer to

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do so, he “acquiesced” in the jury’s discharge and provided “implied consent” such that retrial

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was permitted. (Id. at 3.)

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ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 2

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After review of the Report and Recommendation and all related papers, the Court

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concludes that Petitioner’s retrial violated Double Jeopardy. In Brazzel v. Washington, the Ninth

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Circuit held that “[a]n implied acquittal occurs when a jury returns a guilty verdict as to a lesser

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included or lesser alternate charge, but remains silent as to other charges, without announcing

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any signs of hopeless deadlock.” 491 F.3d 976, 981 (9th Cir. 2007). That is precisely what

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occurred here. Petitioner’s failure to affirmatively request that the trial court question the jurors

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as to whether they were genuinely deadlocked on Count I does not constitute “acquiescence” or

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“implied consent” allowing for retrial. Further, contrary to Respondents’ suggestion, Petitioner’s

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agreement to the use of the “failure to agree” instruction does not constitute “waiver” of the

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implied acquittal as this is the proper instruction in Washington. Daniels v. Pastor, No. C09-

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5711BHS, 2010 WL 56041, at *4 (W.D. Wash. Jan. 6, 2010) (citation omitted).

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The Court concludes that Petitioner’s retrial on Count I violated Double Jeopardy.
B. Dismissal of Mark Roe and Robert Ferguson

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Respondents object to the Report and Recommendation’s inclusion of Respondent Mark

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Roe and Robert Ferguson on the Proposed Order and Judgment. (Dkt. No. 28 at 5.) Magistrate

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Judge Tsuchida recommended that these Respondents be dismissed from the action, as neither

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has custody over or supervises Petitioner. (Dkt. No. 27 at 5-6); see also Rumsfeld v. Padilla, 542

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U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242).

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The Court concludes that Respondents Roe and Ferguson should be dismissed from this

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action, and modifies the caption on the Proposed Order and Proposed Judgment, entered

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herewith, accordingly.

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ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 3

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C. Exhaustion of State Remedies

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Respondents object to the Report and Recommendation’s finding that Petitioner need not

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exhaust state judicial remedies before claiming Double Jeopardy in federal court. (Dkt. No. 28 at

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5-6.) In its Order staying further proceedings and sentencing, the Court previously found that,

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under the precedent established by State v. Glasmann, 183 Wn.2d 117, 119 (2015), it was

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“highly unlikely” that Petitioner would succeed on his Double Jeopardy claim in state court, such

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that requiring him to exhaust his state judicial remedies would be “futile.” (See Dkt. No. 26 at 5-

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6.)

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The Court concludes that, for the reasons discussed in its prior Order, futility dispensed
with the exhaustion requirement in this § 2241 case.

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Conclusion
The Court, having reviewed the Report and Recommendation of United States Magistrate

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Judge Brian A. Tsuchida, the Objections, the Response, and all related papers, ORDERS as

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follows:

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(1) The Report and Recommendation is ADOPTED;

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(2) The case caption is AMENDED to remove Respondents Mark Roe and Robert Ferguson;

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(3) The 28 U.S.C. § 2241 petition (Dkt. No. 5) is GRANTED. Further proceedings against

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Said Farzad on the charge of Felony Telephone Harassment in Snohomish County Case

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No. 14-1-01917-8 would violate the Double Jeopardy Clause and are prohibited, and;

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(4) The Clerk of Court is directed to send copies of this Order to the Snohomish County
Superior Court, to Judge Tsuchida, and to all counsel.

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ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 4

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Dated May 3, 2018.

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A
Marsha J. Pechman
United States District Judge

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ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 5