Forga v. Haynes

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION by Judge Benjamin H. Settle re 15 Report and Recommendations. **3 PAGE(S), PRINT ALL**(Kenneth Forga, Prisoner ID: 237176)(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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KENNETH RAYMOND FORGA,
Petitioner,

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v.

CASE NO. C18-5079 BHS
ORDER ADOPTING REPORT
AND RECOMMENDATION

RONALD HAYNES,

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Respondent.

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

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of the Honorable Theresa L. Fricke, United States Magistrate Judge (Dkt. #15), and

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Petitioner Kenneth Raymond Forga’s (“Forga”) objections to the R&R (Dkt. 16).

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On July 2, 2018, Judge Fricke issued the R&R recommending that the Court deny

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Forga’s petition on the merits. Dkt. 15. On July 24, 2018, Forga filed objections arguing

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that the state court’s adjudication was based on an erroneous determination of the facts

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and that the R&R failed to address this issue. Dkt. 16.

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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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In this case, Forga asserts a potentially meritorious objection on an immaterial

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issue. It is true that the Washington Court of Appeals may have misconstrued the record

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in denying Forga’s ineffective assistance of counsel claim on the merits. That court

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seemed to find that the officer who searched Forga’s residence engaged in one

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continuous conversation on Forga’s phone. Dkt. 11, Exh. 11. The trial record, however,

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establishes that the officer answered the phone, talked with the caller, and ended the

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phone call. Dkt. 11, Exh. 16 at 247. The officer then called the individual back to

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confirm that the person was coming by Forga’s residence to complete a drug transaction.

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Id. Forga argues that his counsel was ineffective for failing to object or move to suppress

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the evidence of the second phone call and subsequent arrest of the caller who arrived at

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Forga’s residence to purchase drugs. Dkt. 16. The Court agrees with the Washington

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Supreme Court that these facts present an interesting question “whether a warrant that

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authorizes an officer to examine the contents of a phone allows the officer to use the

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seized phone as a means of communicating incognito with suspected drug traffickers.”

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Exh. 15 at 3. The answer to this question would then be used to determine whether

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Forga’s counsel was ineffective under the first prong of Strickland v. Washington, 466

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U.S. 668 (1984). Similar to the Washington Supreme Court, the Court will not address

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either of these questions because the material question is whether Forga has established

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“that, but for counsel’s unprofessional errors, the result would have been different.” Id.

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at 694.

ORDER - 2

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On the issue of prejudice, the Court agrees with Judge Fricke that the Washington

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Supreme Court’s conclusion was neither unreasonable nor contrary to law. Dkt. 15 at 9–

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12. At Forga’s trial, the state presented overwhelming evidence of guilt through

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controlled buys, drugs and drug paraphernalia at Forga’s residence, and ledgers with

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names, prices, and quantities of drugs at Forga’s residence. Dkt. 11, Exh. 15 at 3. In

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light of this evidence, the Washington Supreme Court concluded that Forga failed to

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establish that the result of his trial would have been different if his counsel had

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successfully suppressed the phone call and third-party arrest evidence. On federal

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habeas, Forga has failed to establish that this conclusion was unreasonable or contrary to

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law. 28 U.S.C. § 2254(d).yeah, Therefore, the Court having considered the R&R,

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Forga’s objections, and the remaining record, does hereby find and order as follows:

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(1)

The R&R is ADOPTED;

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(2)

Forga’s petition is DENIED on the merits;

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(3)

Forga is not entitled to a Certificate of Appealability; and

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(4)

The Clerk shall enter a JUDGMENT and close the case.

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Dated this 24th day of September, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3