Stoll v. Key

Filing 22

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 20 Objections to Report and Recommendation filed by Sean P Stoll. **4 PAGE(S), PRINT ALL**(Sean Stoll, Prisoner ID: 312460)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 SEAN P. STOLL, CASE NO. C17-5158 BHS Petitioner, 9 v. 10 ORDER ADOPTING REPORT AND RECOMMENDATION JAMES KEY, 11 Respondent. 12 This matter comes before the Court on the Report and Recommendation (“R&R”) 13 14 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 19), and 15 Petitioner’s objections to the R&R (Dkt. 20). On February 21, 2017, Petitioner filed his petition for writ of habeas corpus. Dkt. 16 17 1. On April 20, 2017, Respondent answered. Dkt. 13. On June 28, 2017, Petitioner 18 replied. Dkt. 18. Petitioner raised four grounds for relief: 1. 20 21 22 The State presented insufficient evidence for a reasonable jury to convict 2. 19 The trial court erred when it provided a jury instruction misinforming the him. jury of the definition of reasonable doubt. ORDER - 1 1 2 3 4 5 3. The trial court erred when it did not instruct the jury that each count must be based on separate and distinct acts. 4. The trial court violated Petitioner’s right to confront the witnesses against him when it admitted a videotape of a police interview of the victim. See Dkt. 1. On August 31, 2017, Judge Creatura entered the R&R, recommending that the 6 petition be denied. Dkt. 19. On September 11, 2017, Petitioner objected to the R&R. Dkt. 7 20. On September 19, 2017, Respondent filed a response to the objections. Dkt. 21. 8 The district judge must determine de novo any part of the magistrate judge’s 9 disposition that has been properly objected to. The district judge may accept, reject, or 10 modify the recommended disposition; receive further evidence; or return the matter to the 11 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 12 Petitioner first objects to the R&R’s disposition that Petitioner failed to establish 13 that his conviction was supported by insufficient evidence. Dkt. 20 at 1–4. While 14 Petitioner objects to the R&R’s disposition, he fails to articulate any argument that was 15 not addressed by the R&R, nor does he assign any particular error to the R&R’s analysis. 16 See id. The Court agrees with the R&R’s analysis on this ground for relief and therefore 17 adopts it. 18 Petitioner next argues that the R&R erroneously determined that his arguments 19 regarding the admission of a videotaped interview were procedurally barred. To support 20 his objection, Petitioner argues that his failure to exhaust and any procedural bars may be 21 overcome on the basis that (1) he can show cause for the procedural default, and (2) 22 failure to review the claims will result in a fundamental miscarriage of justice. Dkt. 20 at ORDER - 2 1 4. Specifically, Petitioner claims that he can establish cause on the basis that he received 2 ineffective assistance of trial and appellate counsel. Id. at 4–7. However, in making this 3 argument, Petitioner advances new claims asserting ineffective assistance of trial and 4 appellate counsel, claims that are likewise unexhausted and procedurally barred. See Exs. 5 15, 17. Petitioner has made no showing that his failure to appropriately pursue his newly 6 asserted claims for ineffective assistance of counsel can themselves be excused for “cause 7 and prejudice.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000) (“[A]n ineffective- 8 assistance-of-counsel claim asserted as cause for the procedural default of another claim 9 can itself be procedurally defaulted [but may] be excused if the prisoner can satisfy the 10 cause-and-prejudice standard with respect to that claim.”) (emphasis added). 11 Accordingly, Petitioner’s present arguments regarding ineffective assistance of counsel 12 cannot be used to establish cause for the procedural default of his claim pertaining to the 13 admission of the videotaped interview, and the Court will adopt the analysis set forth in 14 the R&R. 15 Finally, the Court finds that Petitioner has failed to demonstrate “that jurists of 16 reason could disagree with the district court’s resolution of his constitutional claims or 17 that jurists could conclude the issues presented are adequate to deserve encouragement to 18 proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted). 19 Accordingly, the Court declines to issue a certificate of appealability because Petitioner 20 has not made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. 21 § 2253(c)(2). 22 ORDER - 3 1 2 The Court having considered the R&R, Petitioner’s objections, and the remaining record, does hereby find and order as follows: 3 (1) The R&R is ADOPTED; 4 (2) This action is DISMISSED; and 5 (3) A certificate of appealability is DENIED. 6 Dated this 23rd day of October, 2017. A 7 8 BENJAMIN H. SETTLE United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 4

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