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)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
8
9
10
SAID FARZAD,
Petitioner,
11
12
13
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
14
Respondent.
15
16
THIS MATTER comes before the Court on Respondents’ Objections (Dkt. No. 28) to the
17
Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate
18
Judge. (Dkt. No. 27.) Having reviewed the Report and Recommendation, the Objections, the
19
Response (Dkt. No. 30) and all related papers, the Court ADOPTS the Report and
20
Recommendations and GRANTS Petitioner’s 28 U.S.C. § 2241 Petition.
21
22
Background
The relevant facts and procedural background are set forth in detail in the Report and
23
Recommendation. (Dkt. No. 27.) Respondents raise three objections to the Report and
24
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
1
state court proceedings violated Petitioner Said Farzad’s Double Jeopardy rights, and object to
2
the recommendation that Petitioner’s habeas corpus petition be granted; (2) Respondents object
3
to the inclusion of Respondents Mark Roe and Robert Ferguson in the caption of the Proposed
4
Order and Proposed Judgment; and (3) Respondents contend that Petitioner is required to
5
exhaust state remedies. (Dkt. No. 28 at 1-2.)
6
7
Discussion
I.
8
Legal Standard
Under Federal Rule of Civil Procedure 72, the Court must resolve de novo any part of the
9
Magistrate Judge’s Report and Recommendation that has been properly objected to and may
10
accept, reject, or modify the recommended disposition. Fed. R. Civ. P. 72(b)(3); see also 28
11
U.S.C. § 636(b)(1).
12
II.
13
Respondents’ Objections
A. Double Jeopardy
14
Respondents object to the Report and Recommendation’s finding that Petitioner’s retrial,
15
after the jury was unable to reach a verdict on Count I, violated Double Jeopardy. (Dkt. No. 28
16
at 2-5.)
17
The Report and Recommendation indicate that, while the jury expressly declared that
18
they were deadlocked as to Count II, they did not do so as to Count I. (Dkt. No. 27 at 7-8.) The
19
trial court did not make further inquiry or finding as to whether the jury was deadlocked on
20
Count I. (Id. at 8.) Respondents contend that when Petitioner rejected the trial court’s offer to
21
do so, he “acquiesced” in the jury’s discharge and provided “implied consent” such that retrial
22
was permitted. (Id. at 3.)
23
24
ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 2
1
After review of the Report and Recommendation and all related papers, the Court
2
concludes that Petitioner’s retrial violated Double Jeopardy. In Brazzel v. Washington, the Ninth
3
Circuit held that “[a]n implied acquittal occurs when a jury returns a guilty verdict as to a lesser
4
included or lesser alternate charge, but remains silent as to other charges, without announcing
5
any signs of hopeless deadlock.” 491 F.3d 976, 981 (9th Cir. 2007). That is precisely what
6
occurred here. Petitioner’s failure to affirmatively request that the trial court question the jurors
7
as to whether they were genuinely deadlocked on Count I does not constitute “acquiescence” or
8
“implied consent” allowing for retrial. Further, contrary to Respondents’ suggestion, Petitioner’s
9
agreement to the use of the “failure to agree” instruction does not constitute “waiver” of the
10
implied acquittal as this is the proper instruction in Washington. Daniels v. Pastor, No. C09-
11
5711BHS, 2010 WL 56041, at *4 (W.D. Wash. Jan. 6, 2010) (citation omitted).
12
13
The Court concludes that Petitioner’s retrial on Count I violated Double Jeopardy.
B. Dismissal of Mark Roe and Robert Ferguson
14
Respondents object to the Report and Recommendation’s inclusion of Respondent Mark
15
Roe and Robert Ferguson on the Proposed Order and Judgment. (Dkt. No. 28 at 5.) Magistrate
16
Judge Tsuchida recommended that these Respondents be dismissed from the action, as neither
17
has custody over or supervises Petitioner. (Dkt. No. 27 at 5-6); see also Rumsfeld v. Padilla, 542
18
U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242).
19
The Court concludes that Respondents Roe and Ferguson should be dismissed from this
20
action, and modifies the caption on the Proposed Order and Proposed Judgment, entered
21
herewith, accordingly.
22
23
24
ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 3
1
C. Exhaustion of State Remedies
2
Respondents object to the Report and Recommendation’s finding that Petitioner need not
3
exhaust state judicial remedies before claiming Double Jeopardy in federal court. (Dkt. No. 28 at
4
5-6.) In its Order staying further proceedings and sentencing, the Court previously found that,
5
under the precedent established by State v. Glasmann, 183 Wn.2d 117, 119 (2015), it was
6
“highly unlikely” that Petitioner would succeed on his Double Jeopardy claim in state court, such
7
that requiring him to exhaust his state judicial remedies would be “futile.” (See Dkt. No. 26 at 5-
8
6.)
9
10
The Court concludes that, for the reasons discussed in its prior Order, futility dispensed
with the exhaustion requirement in this § 2241 case.
11
12
Conclusion
The Court, having reviewed the Report and Recommendation of United States Magistrate
13
Judge Brian A. Tsuchida, the Objections, the Response, and all related papers, ORDERS as
14
follows:
15
(1) The Report and Recommendation is ADOPTED;
16
(2) The case caption is AMENDED to remove Respondents Mark Roe and Robert Ferguson;
17
(3) The 28 U.S.C. § 2241 petition (Dkt. No. 5) is GRANTED. Further proceedings against
18
Said Farzad on the charge of Felony Telephone Harassment in Snohomish County Case
19
No. 14-1-01917-8 would violate the Double Jeopardy Clause and are prohibited, and;
20
21
(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.
22
23
24
ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 4
1
Dated May 3, 2018.
2
3
4
A
Marsha J. Pechman
United States District Judge
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
ORDER ADOPTING REPORT AND RECOMMENDATION; MODIFYING CASE CAPTION; AND
GRANTING WRIT OF HABEAS CORPUS - 5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?