Persell v. Haynes

Filing 18

ORDER DIRECTING RESPONDENT TO SUPPLEMENT ANSWER AND RENOTING ANSWER. Respondent is directed to supplement his answer to address the above-identified ineffective assistance of counsel claims on or before August 5, 2024. Petitioner may file a response to the supplemental answer on or before August 19, 2024. Respondent may file a reply on or before August 26, 2024. The Clerk is directed to re-note respondent's answer (Dkt. 13 ) to August 26, 2024. Signed by Judge Theresa L Fricke. **3 PAGE(S), PRINT ALL**(Adam Persell, Prisoner ID: 838791)(MW)

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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 6 ADAM JOSEPH PERSELL, 7 8 9 10 Petitioner, v. RONALD HAYNES, Respondent. Case No. 3:23-cv-05275-TSZ-TLF ORDER DIRECTING RESPONDENT TO SUPPLEMENT ANSWER AND RENOTING ANSWER 11 Petitioner Adam Joseph Persell, has filed a pro se federal habeas petition under 12 28 U.S.C. § 2254, seeking relief from a 2018 state court conviction. Dkt. 6. Respondent 13 has filed an answer arguing that the following grounds raised by petitioner are 14 unexhausted and procedurally defaulted, and that petitioner fails to show cause and 15 prejudice to overcome his procedural default: 16 1. Washington State deprived Persell of due process by improperly shifting the 17 burden of proof to him to disprove elements of the crime through an 18 affirmative defense. 19 2. Washington State deprived Persell of due process in how it crafted the 20 entrapment defense statute which requires a defendant admit guilt before 21 raising entrapment. 22 23 24 25 ORDER DIRECTING RESPONDENT TO SUPPLEMENT ANSWER AND RENOTING ANSWER 1 1 3. The trial court deprived Persell of due process by unlawfully extending or 2 misconstruing the statute requiring the state to prove Persell made 3 “substantial steps” to commit the crime of attempt. 4 5 6 7 8 9 4. The state violated Persell’s Fourth Amendment rights and Title III (18 U.S.C. § 2510) by improperly obtaining and using electronic surveillance. Dkt. 13 at 6 (citing Dkt. 6 at 20-36). Petitioner, in response to the answer, emphasizes that the issues he raises in his petition all “relate to the ineffective assistance of counsel.” Dkt. 17 at 2, 5. The Court has closely reviewed petitioner’s federal habeas petition, which 10 incorporates and relies upon the claims raised in his “motion to modify the 11 commissioner’s ruling denying discretionary review” filed in his personal restraint 12 petition proceeding. Dkt. 6. The petition appears to raise the following claims related to 13 ineffective assistance of counsel: 14 1. Trial counsel provided ineffective assistance in failing to pursue an 15 entrapment defense and failing to argue the entrapment defense statute was 16 unconstitutional. Dkt. 6 at 20-21, 24. 17 2. Trial counsel provided ineffective assistance in failing to argue that the State 18 improperly shifted the burden of proof to him to disprove elements of the 19 crime through an affirmative defense, and “erroneously informed [petitioner] 20 he must first admit to the crimes prior to allowing him the defense of 21 entrapment.” Id. at 20-21, 23. 22 23 24 25 ORDER DIRECTING RESPONDENT TO SUPPLEMENT ANSWER AND RENOTING ANSWER 2 1 3. Trial counsel provided ineffective assistance in advising plaintiff not to testify 2 on the grounds “that if he chooses to take the stand, it would open the door 3 for the state to bring up his prior conviction.” Id. at 20-21, 26. 4 4. Trial counsel provided ineffective assistance in failing to challenge the validity 5 of the search warrant(s) for petitioner’s cell phone and in failing to move to 6 suppress evidence obtained pursuant to the search warrant(s). Id. at 33. 7 Respondent does not address these ineffective assistance of counsel claims in 8 9 10 11 12 13 his answer to the petition. 1 Accordingly, it is hereby ORDERED: (1) Respondent is directed to supplement his answer to address the above-identified ineffective assistance of counsel claims on or before August 5, 2024. (2) Petitioner may file a response to the supplemental answer on or before August 19, 2024. 14 (3) Respondent may file a reply on or before August 26, 2024. 15 (4) The Clerk is directed to re-note respondent’s answer (Dkt. 13) to August 26, 16 2024. 17 Dated this 8th day of July, 2024. 18 A 19 20 Theresa L. Fricke United States Magistrate Judge 21 22 23 24 25 1 The Court notes that these claims are not specifically denominated as separate “Grounds” in the petition. See Dkt. 6. However, petitioner does appear to assert arguments related to these claims in the body of the petition and his reply emphasizes that he intends to raise ineffective assistance of counsel claims. Accordingly, construing the petition liberally in light of petitioner’s pro se status, the Court finds petitioner has adequately raised these claims in his petition and it is appropriate for respondent to address them. ORDER DIRECTING RESPONDENT TO SUPPLEMENT ANSWER AND RENOTING ANSWER 3

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