Powell v. Obenland

Filing 16

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 15 Objections to Report and Recommendation filed by Steven Craig Powell. (TG; cc mailed to petitioner)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7

STEVEN CRAIG POWELL,

8
9
10

Petitioner,

CASE NO. C15-5761 BHS
ORDER ADOPTING REPORT
AND RECOMMENDATION

v.
MIKE OBENLAND,

11

Defendant.

12
13

This matter comes before the Court on the Report and Recommendation (“R&R”)

14 of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 14), and
15 Petitioner Steven Powell’s (“Powell”) objections to the R&R (Dkt. 15).
16

On November 3, 2015, Powell filed a petition for a writ of habeas corpus under 28

17 U.S.C. § 2254. Dkt. 4. Powell seeks relief from his jury conviction of twelve counts of
18 voyeurism and one count of second-degree possession of depictions of a minor engaged
19 in sexually explicit conduct. Id. at 2. Powell presents four grounds for habeas relief, all
20 of which are based on the Fourth Amendment. See id. at 5–13.
21

On February 18, 2016, Judge Strombom issued an R&R recommending the Court

22 deny the petition as barred by Stone v. Powell, 428 U.S. 465 (1976). Dkt. 14 at 8–11.

ORDER - 1

1 Stone provides that federal habeas relief cannot be granted on Fourth Amendment claims
2 “where the State has provided an opportunity for full and fair litigation” of such claims.
3 428 U.S. at 494. Judge Strombom also recommended denying the issuance of a
4 certificate of appealability. Dkt. 14 at 11. On March 9, 2016, Powell filed objections.
5 Dkt. 15.
6

Federal Rule of Civil Procedure 72(b) governs objections to a magistrate judge’s

7 recommended disposition. Rule 72(b) provides:
8
9

The district judge must determine de novo any part of the magistrate
judge’s disposition that has been properly objected to. The district judge
may accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.

10
Fed. R. Civ. P. 72(b)(3).
11
Powell objects to Judge Strombom’s conclusion that Stone bars his Fourth
12
Amendment claims. Dkt. 15. Powell argues his Fourth Amendment claims did not
13
receive full and fair consideration because (1) the state courts adjudicated his claims on
14
faulty grounds and reached decisions that were contrary to federal law, and (2) his
15
counsel did not defend him from the bias of Pierce County courts by seeking to change
16
the venue. Id. at 12, 16, 18–21.
17
Powell’s objections do not demonstrate that Judge Strombom’s conclusion was
18
erroneous. With respect to Powell’s first argument, the proper inquiry under Stone is
19
whether Powell had the opportunity to litigate his Fourth Amendment claims, not
20
whether whether his claims were correctly decided. Ortiz-Sandoval v. Gomez, 81 F.3d
21
891, 899 (9th Cir. 1996). As Judge Strombom discussed, the record shows that Powell
22

ORDER - 2

1 had the opportunity to litigate his Fourth Amendment claims and that he did so. See Dkt.
2 14 at 9–11; see also Moormann v. Schriro, 426 F.3d 1044, 1053 (9th Cir. 2005). As for
3 his second argument, Powell has failed to show that he properly presented a claim for
4 ineffective assistance of counsel or that he has exhausted such a claim.
5

Therefore, the Court having considered the R&R, Powell’s objections, and the

6 remaining record, does hereby find and order as follows:
7

(1)

The R&R is ADOPTED;

8

(2)

Powell’s habeas petition is DENIED;

9

(3)

A certificate of appealability is DENIED; and

10

(4)

This action is DISMISSED.

11

Dated this 19th day of April, 2016.

A

12
13

BENJAMIN H. SETTLE
United States District Judge

14
15
16
17
18
19
20
21
22

ORDER - 3