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)

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