Contreras-Rebollar v. Key

Filing 49

ORDER ADOPTING IN PART AND DECLINING TO ADOPT IN PART REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 43 Objections to Report and Recommendation filed by Adrian Contreras-Rebollar. **3 PAGE(S), PRINT ALL**(Adrian Contreras-Rebollar, Prisoner ID: 819639)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 ADRIAN CONTRERAS-REBOLLAR, 8 9 10 Petitioner, ORDER ADOPTING REPORT AND RECOMMENDATION IN PART AND REFERING FOR FURTHER CONSIDERATION v. JAMES KEY, 11 CASE NO. C15-5471BHS-JRC Respondent. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 38), and 15 Petitioner Adrian Contreras-Rebollar’s (“Petitioner”) objections to the R&R (Dkt. 43). 16 On August 29, 2016, Judge Creatura issued the R&R recommending that the Court 17 deny grounds 1 and 2 of the petition on the merits and dismiss grounds 3 and 4 without 18 prejudice. Dkt. 38. On November 16, 2016, Petitioner filed objections. Dkt. 43. On 19 November 21, 2016, the government responded. Dkt. 45. 20 The district judge must determine de novo any part of the magistrate judge’s 21 disposition that has been properly objected to. The district judge may accept, reject, or 22 ORDER - 1 1 modify the recommended disposition; receive further evidence; or return the matter to the 2 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 3 In this case, Petitioner asserts numerous errors in the R&R. The main issue, 4 however, is not what is in the R&R, it is with what is not in the R&R. Originally, 5 Petitioner’s claim was that the trial court erred in denying his motion for a mistrial and by 6 removing his retained co-counsel from the proceeding. Dkt. 15, Exh. 14 at 6. The state 7 court framed the latter issue as ineffective assistance of counsel by remaining counsel 8 when co-counsel was removed. Id. at 9–10. In this petition, Petitioner stated that the 9 issue was whether the trial court abused its discretion when “it excluded petitioner’s 10 retained co-counsel of choice.” Dkt. 5 at 5. The R&R addresses the issue of denying a 11 mistrial, but not the issue of denying Petitioner his counsel of choice. Although the 12 relevant law is cited in the R&R, Dkt. 38 at 17, the ultimate conclusion is that co-counsel 13 of choice was “properly excluded” from the courtroom because he became a witness, 14 instead of Petitioner being denied his counsel of choice, Id. at 26–27. In his objections, 15 Petitioner expresses frustration with the fact that neither the courts nor the government 16 has addressed “the exclusion of [his] privately retained co-counsel . . . .” Dkt. 43 at 2. 17 Ultimately, Petitioner’s claim that he was denied his counsel of choice may be 18 unexhausted because it appears that it was not presented to the state court in this fashion. 19 However, the Court finds that it should be addressed to perfect the record. Therefore, the 20 Court will refer the matter for further consideration of the potential claim of whether 21 deprivation of Petitioner’s counsel of choice violated his Sixth Amendment right. United 22 States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006). ORDER - 2 1 Regarding the claims addressed in the R&R, the Court finds no error. The state 2 court’s adjudication of the denial of the mistrial and the ineffectiveness of remaining co3 counsel did not violate clearly established federal law. Therefore, the Court having 4 considered the R&R, Petitioner’s objections, and the remaining record, does hereby find 5 and order as follows: 6 (1) The R&R is ADOPTED in part; 7 (2) Ground 2 is DENIED on the merits; 8 (3) Grounds 3 and 4 are DISMISSED without prejudice; and 9 (4) The matter is referred for further consideration of a potential Sixth 10 11 Amendment claim within ground 1. Dated this 17th day of January, 2017. A 12 13 BENJAMIN H. SETTLE United States District Judge 14 15 16 17 18 19 20 21 22 ORDER - 3

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