Cunningham v. Uttecht, No. 2:2012cv02278 - Document 24 (W.D. Wash. 2013)
Court Description: ORDER DENYING WRIT OF HABEAS CORPUS by Judge John C Coughenour; The Report and Recommendation is ADOPTED. Petitioner's habeas petition is DENIED and the petition is DISMISSED with prejudice. (TF) cc: D Cunningham
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Cunningham v. Uttecht Doc. 24 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DANIEL CUNNINGHAM, 10 Petitioner, 11 CASE NO. C12-2278-JCC ORDER DENYING WRIT OF HABEAS CORPUS v. 12 JEFFREY UTTECHT, 13 Respondent. 14 This matter comes before the Court on Petitioner Daniel Cunningham‘s Petition for Writ 15 16 of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 8), the Report and Recommendation 17 ( R&R ) of the Honorable James P. Donohue, United States Magistrate Judge (Dkt. No. 22), and 18 the Petitioner‘s objections thereto (Dkt. No. 23). Having thoroughly considered the R&R, 19 Petitioner‘s objections, and the balance of the record, the Court hereby ADOPTS the R&R for 20 the reasons explained herein. 21 I. BACKGROUND 22 Petitioner Daniel Cunningham is currently incarcerated at the Coyote Ridge Corrections 23 Center in Connell, Washington. (Dkt. No 1, Ex. 2 at 1.) After a jury trial, Mr. Cunningham was 24 convicted of one count of first-degree robbery with a deadly weapon and was sentenced to 126 25 months in prison. (Id. at 4.) The sentence included a mandatory deadly weapon enhancement. 26 (Id.) Because the parties are familiar with the facts of this case, which are set out in Judge ORDER DENYING WRIT OF HABEAS CORPUS PAGE - 1 Dockets.Justia.com 1 Donohue‘s R&R, the Court does not include them here. (See Dkt. No. 22 at 2–5.) 2 Mr. Cunningham appealed his conviction. (Dkt. No. 19, Ex. 3.) On appeal, Mr. 3 Cunningham, represented by counsel, made two arguments: 4 5 6 7 1. The trial court erred when it denied a defense motion for mistrial after jurors declared themselves deadlocked. 2. The trial court improperly influenced deliberations when it told deadlocked jurors the inability to reach a decision created a dilemma and it might be necessary to seat an alternate juror to participate in deliberations if they did not reach a verdict that afternoon. 8 (Id. at 1.) Defense counsel did not argue that either of these errors implicated the federal 9 Constitution. (Id.) The Washington Court of Appeals affirmed Mr. Cunningham‘s conviction on 10 February 28, 2011. (Dkt. No. 19, Ex. 2.) Mr. Cunningham‘s pro se motions for reconsideration 11 before the appellate court were denied (Dkt. No. 19, Ex. 8), as was his petition for discretionary 12 review before the Washington Supreme Court. (Dkt. No. 19, Ex. 10.) Although Mr. Cunningham 13 mentioned the federal Constitution in a supplemental motion for reconsideration, he did not refer 14 to it in his petition for review before the Washington Supreme Court. On October 5, 2011, the 15 Washington Court of Appeals finalized Mr. Cunningham‘s conviction by mandating the case 16 back to the Superior Court. (Dkt. No. 19, Ex. 11.) 17 Mr. Cunningham challenges his conviction pursuant to 28 U.S.C. § 2254. (Dkt. No. 8.) 18 Magistrate Judge James P. Donohue recommended this Court deny Mr. Cunningham‘s § 2254 19 petition and deny a certificate of appealability. (Dkt. No. 22 at 2.) Mr. Cunningham objects to 20 multiple portions of the R&R. (Dkt. No. 23). The Court adopts the R&R‘s conclusions to which 21 Mr. Cunningham does not object, which are well-reasoned and persuasive. These include: Mr. 22 Cunningham failed to exhaust state court remedies by never adequately alerting the state courts 23 to his federal claim (Dkt. 22 at 6–8); he is now procedurally barred from collaterally attacking 24 his conviction in state court (id. at 9–11); and the appellate court did not make an unreasonable 25 determination of the facts under 28 U.S.C. § 2254(d)(2) (id. at 14–15). The Court addresses Mr. 26 Cunningham‘s objections below. ORDER DENYING WRIT OF HABEAS CORPUS PAGE - 2 1 II. DISCUSSION 2 A district court reviews de novo those portions of an R&R to which a party objects. See 3 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Objections are required to enable the district 4 judge to focus attention on those issues—factual and legal—that are at the heart of the parties‘ 5 dispute. Thomas v. Arn, 474 U.S. 140, 147 (1985). General objections, or summaries of 6 arguments previously presented, have the same effect as no objection at all, since the Court‘s 7 attention is not focused on any specific issues for review. See United States v. Midgette, 478 F.3d 8 616, 622 (4th Cir. 2007); United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 9 Howard v. Sec’y of Health and Human Svcs., 932 F.2d 505, 509 (6th Cir. 1991); Lockert v. 10 Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988). 11 Mr. Cunningham objects to three conclusions of the R&R: (A) that the Washington 12 Appellate Court‘s decision was not contrary to, or did not involve an unreasonable application 13 of, clearly established federal law (Dkt. No. 23 at 3–5); (B) that an evidentiary hearing is not 14 warranted (id. at 5); and (C) that this Court should not issue a certificate of appealability (id. at 15 6). Even when given the most liberal construction, see Pagayon v. Holder, 675 F.3d 1182, 1188 16 (9th Cir. 2011), Mr. Cunningham‘s objections largely restate arguments made in his petition. 17 Even so, the Court has carefully reviewed all of Mr. Cunningham‘s objections. 18 A. Adequacy of State Court Adjudication 19 Mr. Cunningham argues that the trial judge improperly coerced the jury by giving a 20 supplemental charge directing the jury to continue deliberations and by remarking that having to 21 excuse a juror later in the day would pose a dilemma for the court.1 (Dkt. No. 23 at 3–5.) Mr. 22 Cunningham alleges that the R&R does not give full and adequate consideration of the facts 23 that surround petitioner‘s constitutional claim and it fails to give full and complete 24 25 1 Even though Mr. Cunningham never objected to the R&R‘s findings that he failed to exhaust state-court remedies 26 and that the jury-coercion claim is procedurally defaulted, this Court will nevertheless examine Mr. Cunningham‘s claim regarding the adequacy of the state court proceeding. ORDER DENYING WRIT OF HABEAS CORPUS PAGE - 3 1 consideration of petitioner‘s claims in light of the state record. (Dkt. No. 23 at 4–5.) These 2 deficiencies, he argues, result in a conclusion that ignores the violation of his right to an 3 impartial jury. (Id.) Mr. Cunningham‘s objection is generalized and fails to identify any specific 4 error within the R&R. 5 Regardless, the Court agrees with the magistrate judge that the state appellate court 6 properly considered the trial court‘s charge in light of the surrounding circumstances. (See Dkt. 7 No. 22 at 12–14 (discussing Lowenfield v. Phelps, 484 U.S. 231 (1988).) As the state court 8 described and was quoted in the R&R: 9 10 11 12 13 Here, the jury did not immediately reach a verdict upon learning of the potential dilemma that its failure to reach a verdict by 3:30 p.m. would create. Neither did the jury report a continued stalemate. Instead, the jury did the one thing the court said would cause the dilemma and require starting deliberations anew the next day: it reported making progress toward agreement. Further, the jury returned no verdict until it was recomposed with the alternate juror. Cunningham does not suggest the court acted in any way to influence this newly composed jury. 14 (Id. (quoting State v. Cunningham, 2011 WL 693699, at *6–7 (Wash. Ct. App. Feb. 28, 2011).) 15 The Court agrees with the well-reasoned conclusion of the R&R, which recognized both the state 16 court‘s appropriate consideration of Mr. Cunningham‘s claims and the support for the state 17 court‘s conclusions in the record as a whole. (Dkt. No. 22 at 13–14.) This Court therefore adopts 18 Judge Donohue‘s findings that Mr. Cunningham has not shown that the state-court adjudication 19 of the jury coercion claim was contrary to, or an unreasonable application of, federal law. 20 B. 21 Mr. Cunningham argues that an evidentiary hearing should be granted on the jury- Evidentiary Hearing and Appointment of Counsel 22 coercion claim and that counsel should be appointed. (Dkt. No. 23 at 5.) Yet Mr. Cunningham 23 did not object to the R&R‘s conclusion that he failed to alert the state courts to the existence of 24 his federal claim and is now procedurally barred from returning to state court to attack his 25 conviction. As review in state court is foreclosed, no factual development could entitle Mr. 26 Cunningham to relief. Even assuming that the claim is not procedurally defaulted, this Court ORDER DENYING WRIT OF HABEAS CORPUS PAGE - 4 1 agrees with the R&R that Mr. Cunningham‘s substantive claim is a legal claim that is refuted by 2 the record, and Mr. Cunningham gives no indication of what additional evidence could be 3 helpful. The district courts may appoint counsel for financially eligible persons where the 4 5 interests of justice so require. 18 U.S.C. § 3006(a)(2). As Mr. Cunningham‘s claims are 6 procedurally defaulted, the appointment of counsel would not aid him. This Court agrees with 7 the R&R that the interests of justice do not require the appointment of counsel. (See Dkt. No. 22 8 at 15.) 9 C. Certificate of Appealability Lastly, Mr. Cunningham objects to the R&R‘s recommendation that this Court deny the 10 11 petitioner a certificate of appealability. (Dkt. No. 23 at 6 n.2.) Mr. Cunningham‘s objection 12 merely states the rules guiding the issuance of certificates of appealability. A petitioner seeking a 13 certificate of appealability must demonstrate a substantial showing of the denial of a 14 constitutional right. 28 U.S.C. § 2253(c)(3). To satisfy this standard, the petitioner must 15 demonstrate either that reasonable jurists could disagree with the district court‘s treatment of the 16 constitutional claims or the issues presented were adequate to deserve encouragement to 17 proceed further.‘ Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting Slack v. McDaniel, 18 529 U.S. 473, 484 (2000)). Judge Donohue concluded, No jurist of reason could disagree with 19 this Court‘s determination that, even if the jury-coercion claim was not procedurally defaulted, 20 the state appellate court‘s adjudication of the issue was reasonable. Id. This Court agrees and 21 finds that a certificate of appealability is not warranted. 22 III. CONCLUSION 23 For the foregoing reasons, it is ORDERED that: 24 (1) The Report and Recommendation is ADOPTED; 25 (2) Petitioner‘s habeas petition is DENIED and the petition is DISMISSED with 26 prejudice; ORDER DENYING WRIT OF HABEAS CORPUS PAGE - 5 1 (3) Petitioner is DENIED issuance of a certificate of appealability; and 2 (4) The Clerk of Court is directed to send copies of this Order to petitioner and to 3 Magistrate Judge James P. Donohue. 4 5 DATED this 6th day of December 2013. 6 7 8 A 9 10 11 John C. Coughenour UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER DENYING WRIT OF HABEAS CORPUS PAGE - 6
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