Little v. Haynes

Filing 86

ORDER ADOPTING 59 REPORT AND RECOMMENDATION. The Petition, docket no. 6 , and this action, are DISMISSED with prejudice; A certificate of appealability is DENIED as to all claims; Petitioner's motion to correct certain filing dates, dock et no. 84 , is treated as a motion for an extension and is GRANTED in part, with respect to the amended objections to the R&R (docket no. 81 ), and DENIED in part, as to the amended motion for a certificate of appealability (docket no. 82 ). Signed by Judge Thomas S. Zilly. **6 PAGE(S), PRINT ALL**(Nicholas Little, Prisoner ID: 383972)(MW)

Case 2:20-cv-01071-TSZ Document 86 Filed 07/22/21 Page 1 of 6

1
2
3
4

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

5
6

NICHOLAS STERLING LITTLE,

7

Petitioner,

8
9

RONALD HAYNES,

10

13
14
15
16
17

ORDER

Respondent.

11
12

C20-1071 TSZ

v.

THIS MATTER comes before the Court on the Honorable Michelle Peterson’s
Report & Recommendation (“R&R”), docket no. 59, recommending the dismissal of the
petition for a writ of habeas corpus (“Petition”), docket no. 6, brought under 28 U.S.C.
§ 2254 by Petitioner Nicholas Little, who is proceeding pro se. Having reviewed all
papers filed in support of, and in opposition to, the R&R, including Petitioner’s
objections thereto (docket no. 66), his amended objections thereto (docket no. 81), 1 and
the remaining record, the Court enters the following Order.

18
19

The Court treats Petitioner’s motion, docket no. 84, for an order to correct the filing date of certain
documents as a motion for an extension. The motion to extend the deadline, docket no. 84, to file
20 amended objections to the R&R (docket no. 81) is GRANTED, and such objections are considered to be
timely filed. The motion to extend the deadline, docket no. 84, to file an amended motion for a certificate
21 of appealability, docket no. 82, is DENIED as moot, as the Court has already denied the original motion
for a certificate of appealability (docket no. 67) and will not consider any amended motion. See Minute
Order (docket no. 73).
1

22
23

ORDER - 1

Case 2:20-cv-01071-TSZ Document 86 Filed 07/22/21 Page 2 of 6

1 Discussion
2

1. Failure to Exhaust (First and Fourth Grounds)

3

Petitioner objects to the R&R’s conclusion that the first and fourth grounds for

4 relief identified in his Petition, docket no. 6, were not fairly presented to the Washington
5 Supreme Court for exhaustion purposes. See R&R (docket no. 59 at 12–13). Petitioner
6 maintains that his Petition for Review filed in the Washington Supreme Court (“State
7 Petition”) sufficiently raised the first and fourth grounds for relief, citing Davis v. Strack,
8 270 F.3d 111, 122 (2d Cir. 2001) (concluding that even minimal references to the U.S.
9 Constitution presents federal constitutional claims to state courts). See Am. Objections
10 (docket no. 81 at 5).
11

The Court adopts the R&R’s conclusion that Petitioner failed to fairly present

12 these grounds for relief to the state courts in order to satisfy the exhaustion requirement.
13 Petitioner’s first ground for relief is based on the state prosecutors’ alleged failure to
14 disclose exculpatory evidence in violation of Brady v. United States, 373 U.S. 83, 87
15 (1963); and Petitioner’s fourth ground for relief is based on newly discovered evidence
16 that allegedly exonerates him. See Pet.’s Mem. ISO Petition, Ex. 3 to Petition (docket no.
17 6-3 at 5–8, 20–34). Although Petitioner’s State Petition cited federal authority in support
18 of the Brady claim, it failed to sufficiently identify the factual allegations, or cite to any
19 portion of the record, giving rise to this claim. See State Petition, State Court Record, Ex.
20 9 (docket no. 29 at 36–37). The State Petition does not raise any factual allegations or
21 legal assertions with respect to the newly discovered evidence claim. See id. at 12–77.
22
23
ORDER - 2

Case 2:20-cv-01071-TSZ Document 86 Filed 07/22/21 Page 3 of 6

1

Nor did the State Petition sufficiently “incorporate by reference” any relevant

2 arguments made in Petitioner’s statement of additional grounds for review (“SAGR”)—a
3 900-page document filed by Petitioner, pro se, in a Washington appellate court on direct
4 review; that document was not attached to the State Petition filed in the Washington
5 Supreme Court and was not fully considered by the appellate court, as it far exceeded the
6 50-page limit. See SAGR, State Court Record, Ex. 6 (docket nos. 26–28); Division I
7 Opinion, State Court Record, Ex. 2 (docket no. 25-1 at 49). A petitioner “does not ‘fairly
8 present’ a claim to a state court if that court must read beyond a petition or a brief (or a
9 similar document) that does not alert it to the presence of a federal claim.” Baldwin v.
10 Reese, 541 U.S. 27, 32 (2004); cf. Insyxiengmay v. Morgan, 403 F.3d 657, 669 (9th Cir.
11 2005) (concluding a claim was “fairly presented” where it was included in the appendix
12 filed in the state appellate court, along with citations to specific authority and the relevant
13 parts of the record).
14

Petitioner also argues that his counsel did attach the SAGR to the State Petition,

15 but the record shows that the SAGR was not included as an appendix to the State
16 Petition. See State Petition, State Court Record, Ex. 9 (docket no. 29 at 12–77). Because
17 Petitioner does not otherwise challenge the R&R’s failure-to-exhaust conclusions, 2 the
18
19
20

Petitioner alternatively argues that if this Court finds that his former appellate counsel failed to fairly
present the first and fourth grounds to the Washington Supreme Court, he “hereby make[s] an Ineffective
21 Assistance of Counsel claim.” Am. Objections (docket no. 81 at 5–6). This argument, raised for the first
time in Petitioner’s objections, lacks any supporting evidence and is not properly before this Court for
purposes of resolving the Petition.
2

22
23

ORDER - 3

Case 2:20-cv-01071-TSZ Document 86 Filed 07/22/21 Page 4 of 6

1 Court adopts the R&R’s conclusions and reasoning that Petitioner failed to exhaust the
2 first and fourth grounds for relief, and such grounds are DISMISSED with prejudice.
3

2. Section 2254 Merits Review
a.

4
5

Right to Present Defense (Second Ground)

Petitioner objects to the R&R’s conclusion that the exclusion of “other suspect”

6 evidence violated his constitutional right to present a defense, reasoning that a “a blanket
7 rule that a defendant may not offer other suspect evidence is the type of arbitrary
8 expansion of exclusion that should be condemned.” Am. Objections (docket no. 81 at 4).
9 Petitioner also appears to object on the ground that he was unable to properly impeach or
10 cross-examine witnesses, although he does not specify which witnesses. See id. at 4–5.
11

The R&R concludes that certain other-suspect evidence was reasonably excluded

12 by the trial court, a decision affirmed by the appellate court, because “the facts presented
13 by Petitioner did not sufficiently connect the victims’ maternal grandfather [i.e., one of
14 the other suspects] to the abuse, and at most, only evidenced opportunity on the part of
15 the . . . grandfather”; the R&R further concludes that the state courts’ decisions were not
16 contrary to, or did not involve an unreasonable application of, clearly established federal
17 precedent. See R&R (docket no. 59 at 20–21). The Court agrees. There is simply no
18 indication in the state court record that the trial court excluded other-suspect evidence as
19 a blanket rule or violated Petitioner’s right to cross-examine or offer evidence to impeach
20 any witnesses. See Division I Opinion, State Court Record, Ex. 2 (docket no. 25-1 at 17–
21 22). To the contrary, Petitioner cites to a portion of the trial transcript showing that
22 defense counsel did in fact elicit testimony that a different suspect was named at one
23
ORDER - 4

Case 2:20-cv-01071-TSZ Document 86 Filed 07/22/21 Page 5 of 6

1 point during the investigation, and that defense counsel vigorously cross-examined the
2 minor witness on this point. See Sept. 24, 2014, Trial Transcript, State Court Record,
3 Ex. 29 (docket no. 31 at 376–83) (defense counsel repeatedly questioning a minor
4 witness about whether she told her mother that the suspect was “Nick” (Petitioner) or
5 “Doug” (Petitioner’s father)). The Court adopts the R&R’s conclusions with respect to
6 the second ground for relief, and that ground is DISMISSED with prejudice.
b.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Ineffective Assistance of Counsel and Right to Testify (Third
and Fifth Grounds)

Petitioner makes general objections to the R&R’s conclusions with respect to the
third and fifth grounds for relief but does not specify the nature of those objections. See
Objections (docket no. 66); Am. Objections (docket no. 81). The R&R correctly
concluded that Petitioner has failed to show that the appellate court’s relevant rulings
were contrary to, or constituted an unreasonable application of, clearly established federal
law. See R&R (docket no. 59 at 21–31). The third and fifth grounds for relief are
DISMISSED with prejudice.
Conclusion
For the foregoing reasons, the Court ORDERS:
(1)

The R&R, docket no. 59, is ADOPTED;

(2)

The Petition, docket no. 6, and this action, are DISMISSED with prejudice;

(3)

A certificate of appealability is DENIED as to all claims;

(4)

Petitioner’s motion to correct certain filing dates, docket no. 84, is treated

as a motion for an extension and is GRANTED in part, with respect to the amended

22
23
ORDER - 5

Case 2:20-cv-01071-TSZ Document 86 Filed 07/22/21 Page 6 of 6

1 objections to the R&R (docket no. 81), and DENIED in part, as to the amended motion
2 for a certificate of appealability (docket no. 82); and
3

(5)

The Clerk is directed to enter Judgment consistent with this Order and to

4 send a copy of this Order and the Judgment to Petitioner, proceeding pro se, Judge
5 Peterson, and all counsel of record.
6

IT IS SO ORDERED.

7

Dated this 22nd day of July, 2021.

8

A

9

Thomas S. Zilly
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
ORDER - 6