Womack v. Holbrook

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS (Dkts. 35 , 36 ), signed by Judge Benjamin H. Settle. Womack's Petition is DENIED. A Certificate of appealability is DENIED. **3 PAGE(S), PRINT ALL** (William Womack, Prisoner ID: 354117) (ERA)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C17-5822 BHS

WILLIAM WOMACK,
Petitioner,

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v.

ORDER ADOPTING REPORT
AND RECOMMENDATIONS

DONALD R. HOLBROOK,

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Respondent.

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This matter comes before the Court on the Report and Recommendations

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(“R&Rs”) of the Honorable Theresa L. Fricke, United States Magistrate Judge, Dkts. 35,

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36, and Petitioner William Womack’s (“Womack”) objections to the R&Rs, Dkt. 39.

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On February 1, 2019, Judge Fricke issued the R&Rs recommending that the Court

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deny Womack’s motion to supplement the record, Dkt. 35, and deny Womack’s petition

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for procedural and substantive reasons, Dkt. 36. On April 4, 2019, Womack filed

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objections. Dkt. 39.

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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

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ORDER - 1

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modify the recommended disposition; receive further evidence; or return the matter to the

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magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

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A.

Exhaustion

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The R&R addressing Womack’s petition concludes that seven of Womack’s

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eleven grounds for relief are unexhausted and procedurally barred. Dkt. 36 at 5–6.

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Womack objects arguing that he properly raised these claims before the Washington

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Supreme Court. Dkt. 39 at 2–3. The Court agrees with the R&R that at most Womack

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provided a summary reference of these claims, which does not constitute a full and fair

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presentation for review. Insyxiengmay v. Morgan, 403 F.3d 657, 667–68 (9th Cir. 2005).

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Therefore, the Court adopts the R&R on this issue.

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B.

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Merits
The R&R recommends that the Court deny most of Womack’s remaining claims

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on the merits and that the Court find that certain aspects of some of these claims are

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unexhausted and procedurally barred. Dkt. 36 at 14–29. Although Womack provides

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voluminous objections, he fails to establish any error in the R&R. Womack does identify

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one inconsistency in the R&R regarding Womack’s claim for ineffective appellate

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counsel. The R&R rejects Womack’s claim that counsel was deficient for failing to raise

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Womack’s additional grounds for relief before the Washington Supreme Court because

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Womack raised the issues himself. Dkt. 36 at 28–29. This is inconsistent with a finding

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that the additional grounds are unexhausted because they were not properly raised.

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Womack, however, fails to establish that the Washington Supreme Court’s rejection of

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this ineffective assistance claim was contrary to law because the court stated that his

ORDER - 2

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additional grounds for relief were “waived, unreviewable, or meritless.” Dkt. 11, Exh. 17

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at 4–5. Thus, Womack has failed to show deficient performance in failing to raise such

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meritless claims.

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C.

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Supplement the Record
Although Womack objects to the R&R denying his motion to supplement the

record, he fails to provide any relevant argument identifying an error in the R&R.
Therefore, the Court having considered the R&Rs, Womack’s objections, and the
remaining record, does hereby find and order as follows:

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(1)

The R&Rs are ADOPTED;

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(2)

Womack’s Petition is DENIED;

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(3)

A Certificate of appealability is DENIED; and

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(4)

The Clerk shall enter a JUDGMENT and close the case.

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Dated this 11th day of June, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3