Opinion
3:21-cv-05792-DGE-DWC
04-08-2022
LIA YEAR TRICOMO, Petitioner, v. JENEVA COTTON, Respondent.
NOTED FOR: April 29, 2022
REPORT AND RECOMMENDATION
David W. Christel United States Magistrate Judge
Before the Court is Petitioner's petition for writ of habeas corpus under 28 U.S.C. § 2254 (“Petition”). Dkt. 1. The Petition contains three grounds for relief. Id. at 5, 7-8. As discussed below, it is recommended that an evidentiary hearing be held on claim 1. It is further recommended that claims 2 and 3 be denied and that a certificate of appealability be denied on these claims. Finally, if this Report and Recommendation is adopted, the undersigned recommends consideration of appointment of counsel as provided herein.
BACKGROUND
I. State Court
The Court takes the following background partly from the opinions of Division Two of the Court of Appeals of Washington (“state court of appeals”) affirming Petitioner's conviction on direct appeal and denying her personal restraint petition (“PRP”). State v. Tricomo, 193 Wash.App. 1037 (2016) [“Tricomo I”]; Matter of Tricomo, 13 Wash.App. 2d 223 (2020) [“Tricomo II”]. Because Petitioner has not challenged these findings, the Court may rely on them to rule on the Petition. See Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir. 2004) (citations omitted).
“In late March 2013, [Petitioner] attempted suicide and was admitted to a hospital. As part of her treatment, her doctor prescribed her Paxil, an antidepressant.” Tricomo, 13 Wash.App. 2d at 228. “At a follow-up medical appointment on April 3, her Paxil prescription was renewed.” Id. “She saw her therapist the next day, who encouraged her to stay on her antidepressants.” Id.
“On April 29, [Petitioner] brought some of her belongings to the home of her former counselor, John Alkins, to move in with him.” Id. “[Petitioner] and Alkins drank vodka together.” Id. “They had a sexual encounter in his home.” Id. “During this sexual encounter, [Petitioner] attempted to tie him up with a rope, but he stated he did not like it, so she untied him.” Id. “After untying Alkins, [Petitioner] grabbed a razor blade knife she had hidden in the bedroom, and she slit his throat approximately six times.” Id. at 228-29. “Alkins walked around his house for several hours trying to stop the bleeding.” Id. at 229. “[Petitioner] followed him throughout the house to ensure he would not leave.” Id. “There was a struggle for the razor blade knife at the front door, and Alkins's wrist was cut during this struggle.” Id. “Alkins then went back upstairs.” Id. “[Petitioner] strangled Alkins with an extension cord, killing him.” Id.
“The next day, [Petitioner] was arrested, and she confessed to the police.” Id. “During her interview with the police, [Petitioner] mentioned the negative effect of her medication.” Id. “Later, when [Petitioner] was in jail prior to trial, a psychiatric note said, ‘Paxil, made her want to kill people, had horrible withdrawal,' and the Paxil was discontinued.” Id.
“The State originally charged [Petitioner] with first degree attempted murder and first degree murder, but the State amended the information on November 6, 2014 as part of the plea agreement.” Id. at 229 n.1. In the amended information, “[t]he State charged [Petitioner] . . . with second degree murder, three counts of second degree assault, and second degree taking a motor vehicle without the owner's permission.” Id. at 229. “The three counts of second degree assault were based on [Petitioner's] use of a razor blade knife to inflict neck wounds, use of a razor blade knife to inflict facial wounds, and use of a razor blade knife to inflict hand wounds.” Id. “[Petitioner] pleaded guilty to the amended information.” Id.
“For the second degree murder count, the parties agreed on a standard range sentence of 257 to 357 months.” Id. “The plea agreement stated that while the State was going to recommend 357 months on the second degree murder count, the defense [was] free to argue for a lesser sentence . . .” Id. (alteration adopted) (internal quotation marks omitted). “The State's sentencing memorandum provided [that], [p]ursuant to plea agreement, [Petitioner could] argue for no less than 257 months prison which [was] the low end of the standard range.” Id. at 230 (internal quotation marks omitted).
“At the plea hearing, the trial court informed [Petitioner] that the applicable maximum term of confinement for the second degree murder charge was a life sentence, the standard range of actual confinement was 257 to 357 months, and the State would recommend a sentence of 357 months.” Tricomo I, 193 Wash.App. 1037, at *1 (internal quotation marks omitted). “[W]hen discussing that the State would recommend 357 months, the court addressed [Petitioner] and said, ‘And you understand that you are not agreeing that that is what the court should order and that, in fact, defense counsel will be able to argue that the court should impose a lesser sentence on your behalf.'” Tricomo II, 13 Wash.App. 2d at 230 (alteration adopted). “[Petitioner] confirmed that she understood the parameters of her plea agreement as explained by the trial court.” Id.
“Before the sentencing hearing, both [Petitioner] and the State filed sentencing briefs.” Id. “In her brief, [Petitioner] asked the court to consider expert Dhyana Fernandez's mitigation report and the reports of Dr. David Dixon and Dr. Delton Young.” Id. “All three experts discussed the effects that the use and withdrawal from Paxil may have had on [Petitioner's] ability to form intent at the time of the crime.” Id.
“Dixon, the defense expert, and Young, the State's expert, reached contradictory conclusions regarding Paxil's effects on [Petitioner's] mental state.” Id. “Prior to pleading guilty, [Petitioner] was evaluated for diminished capacity by Dixon, a psychologist.” Id. “Dixon discussed Paxil in his report and concluded, ‘Use of and withdrawal from Paxil at the time of the alleged crime may have diminished her ability to form intent, a requisite mental state.' Paxil withdrawal exacerbated her mood disorder into a manic state with psychosis.” Id.
“The State's expert, Young, also conducted a forensic psychological evaluation.” Id. “He disagreed with Dixon about Paxil stating, ‘There was no withdrawal: she was taking the medication every day (including on April 29th) as prescribed. It is possible that the medication generated aversive side effects (e.g., feeling “nothing”); but it is more likely that the psychotic symptoms stemmed from alcohol abuse in a psychologically vulnerable individual.'” Id. at 23031 (alteration adopted).
“Fernandez wrote a mitigation report for sentencing, which included a section on Paxil.” Id. at 231. “Fernandez cited to several peer reviewed journal articles and articles from web-based sources, but the report contained no analysis.” Id. “The State objected to Fernandez's report because it did not believe Fernandez was qualified to opine about the effects of Paxil.” Id.
“At sentencing, the court said it would not consider the section on Paxil in Fernandez's report.” Id. “The court reasoned that it did not ‘find that Fernandez has any expertise in that particular area and she basically only sets forth a number of articles suggesting that they may have some relevance.'” Id. (alteration adopted). “However, the trial court did consider the expert reports from Young and Dixon, and it noted that ‘the doctors reference Paxil, both doctors, and the adverse side effects of this medication.'” Id.
“The State asked the court to sentence [Petitioner] ¶ 357 months and defense counsel asked the court to sentence [Petitioner] ¶ 257 months.” Id. “The court imposed the top of the standard range-357 months-for the murder conviction, with the other counts to run concurrently.” Id.
“[Petitioner] appealed her convictions and sentence, arguing that her convictions violated double jeopardy, that her guilty plea was not voluntary, and that the trial court erred in refusing to consider the portion of Fernandez's report regarding Paxil.” Id. (citation omitted); see also Tricomo I, 193 Wash.App. 1037, at * 6.
“On January 2, 2018, [Petitioner] filed a timely pro se PRP, arguing double jeopardy, ineffective assistance of counsel, and prosecutorial misconduct at the plea stage and trial court error for failure to consider the effects of Paxil on her mental state in rendering its sentencing decision.” Tricomo II, 13 Wash.App. 2d at 232; Dkt. 15-1 at 238.
All page citations to docket entries refer to the CM/ECF-generated page stamp number at the top, righthand corner of the page.
Petitioner subsequently obtained counsel who filed a supplemental PRP and reply on December 31, 2018.” Tricomo II, 13 Wash.App. 2d at 232; Dkt. 15-2 at 2. “In the supplemental PRP, [Petitioner] raised the new claim that she was deprived of effective assistance of counsel because trial counsel failed to obtain an appropriate expert on the effects of Paxil.” Tricomo II, 13 Wash.App. 2d at 232. “She argued that due to her counsel's failure to obtain a qualified expert, the trial court never received accurate information about Paxil's effects on her mental state, causing the court to sentence her to the high end of the standard range.” Id. “The supplemental PRP also contained [Petitioner's] reply in support of her timely raised argument that the trial court erred in declining to consider the effects of Paxil at sentencing.” Id.
“A commissioner of [the state court of appeals] accepted the supplemental petition for filing and ruled that [the state court of appeals] would decide whether to review the untimely claim when [it] address[ed] the merits of the timely filed pro se PRP.” Id.
The state court of appeals denied the PRP. Id. at 251. It concluded that “[t]he issue raised in [Petitioner's] supplemental petition [was] time-barred.” Id. It further concluded that “[t]he issues raised in the original petition [were] either denied on their merits or [] denied because they were resolved on direct appeal.” Id.
After the Petition was filed (Dkt. 1), Respondent filed a Response and the state court record (Dkts. 14-15) and a Reply to the Response was filed. Dkt. 22.
LEGAL STANDARD UNDER 28 U.S.C. § 2254(d)
“The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254 ....” Harrington v. Richter, 562 U.S. 86, 97 (2011). Subject to two exceptions, § 2254(d) bars a state prisoner from obtaining habeas relief on a claim that was adjudicated on the merits in state court. Id. at 97-98.
The first exception, § 2254(d)(1), allows habeas relief if the state court's adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” A state court's adjudication is “contrary to” clearly established Supreme Court precedent if the court either: (1) reaches a conclusion on a question of law opposite to that reached by the Supreme Court; or (2) decides a case differently than the Supreme Court has on materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under § 2254's “unreasonable application” clause, courts may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the case. Id. at 413.
An unreasonable application of federal law differs from an incorrect application of federal law. Renico v. Lett, 559 U.S. 766, 773 (2010) (citation omitted). For the application to be unreasonable, “a state prisoner must show that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Richter, 562 U.S. at 103.
The second § 2254 exception, § 2254(d)(2), allows habeas relief if the state court's adjudication “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Ochoa v. Davis, 16 F.4th 1314, 1325 (9th Cir. 2021) (citation and internal quotation marks omitted). “Rather, a finding is unreasonable if an appellate court could not reasonably conclude that the finding is supported by the record.” Id. at 1325-26 (citation and internal quotation marks omitted).
“[T]he relevant state court determination for a habeas petition is the last reasoned state court decision.” Dickens v. Ryan, 740 F.3d 1302, 1309 (9th Cir. 2014) (en banc). In applying § 2254(d) to the last reasoned state court decision, the Court's “analysis is limited to the facts in the state court record.” See Jones v. Ryan, 1 F.4th 1179, 1189 (9th Cir. 2021); see also McDaniels v. Kirkland, 813 F.3d 770, 780 n.7 (9th Cir. 2015) (en banc).
DISCUSSION
I. Claim 1
A. Introduction
Petitioner alleges that trial counsel provided ineffective assistance. Dkt. 1 at 5. In support, she contends:
My lawyer did not hire the proper expert to evaluate the effect of . . . Paxil[] on my behavior. He hired a psychologist who did not correctly understand the effect of Paxil. Had he retrained a . . . psychiatrist, counsel could have properly presented the mitigating effects of this drug to the judge who sentenced me. If the judge had been informed by a qualified expert of the mitigating effects of Paxil, he would have given me a lesser sentence ....Id.
“On January 2, 2018, [Petitioner] filed [her] timely pro se PRP ....” Tricomo II, 13 Wash.App. 2d at 232; Dkt. 15-1 at 238. Petitioner then filed her supplemental PRP in which she raised the claim she is raising in this case as claim 1. Dkt. 15-2 at 2-42. The state court of appeals denied this claim as untimely under Washington law. Tricomo, 13 Wash.App. 2d at 770-75; Dkt. 15-1 at 38-49.
Based on the state court of appeals' procedural ruling, Respondent argues that this claim is procedurally defaulted and that Petitioner has not shown cause or prejudice for the default. Dkt. 14 at 24-27. Petitioner does not dispute these arguments but contends that she satisfies the “exception for procedural default” enunciated in Martinez v. Ryan, 566 U.S. 1 (2012). Dkt. 22 at 16-22.
Martinez held: “Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 566 U.S. at 17. “To overcome the default, a prisoner must [] demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit.” Id. at 14. “The analysis of a claim's substantiality mirrors the standard for issuing a certificate of appealability, . . .-namely, whether ‘reasonable jurists would find' the denial of relief ‘debatable or wrong.'” McGill v. Shinn, 16 F.4th 666, 698-99 (9th Cir. 2021) (quoting Miller-El v. Cockrell, 537 U.S. 322, 338 (2003)).
Here, no counsel represented Petitioner when she filed her initial PRP. See Tricomo II, 13 Wash.App. 2d at 232. Furthermore, Respondent has not disputed that she has “satisfied the first part of the Martinez standard.” See Dkt. 14 at 27-28. Therefore, under Martinez, Petitioner has shown that “there was no counsel” “in the initial-review collateral proceeding.” See 566 U.S. at 17. Thus, the issue is whether reasonable jurists would find Petitioner's ineffectiveness claim debatable. See McGill, 16 F.4th at 698-99. If so, Martinez applies and the Court must review Petitioner's ineffectiveness claim “de novo.” See Atwood v. Ryan, 870 F.3d 1033, 1060 n.22 (9th Cir. 2017) (citations omitted). To be clear, when de novo review applies, courts do not apply § 2254(d)'s “deferential” standard. See Kernan v. Hinojosa, 578 U.S. 412, 413 (2016) (per curiam); accord Chaker v. Crogan, 428 F.3d 1215, 1221 (9th Cir. 2005) (citations omitted).
As discussed, § 2254(d) prescribes a “highly deferential standard for evaluating state-court rulings.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (citation and internal quotation marks omitted); supra pp. 7-8.
B. Facts Relevant to Claim 1
On January 14, 2013, Petitioner's therapist at Behavioral Health Resources (“BHR”), Lyn Hertz, completed a treatment note. Dkt. 15-2 at 158. The note states that Petitioner wanted “anger management” and knew that she had a problem with it. Id. The record reflects that Petitioner had a history of violent conduct, including a conviction for third-degree assault on a police officer and a charge of domestic violence against her sister. See, e.g., id. at 136; Dkt. 15-3 at 665.
Ms. Hertz continued to provide therapy for Petitioner in January 2013. Dkt. 15-2 at 15961. In her February 14, 2013 treatment note, Ms. Hertz stated that Petitioner “[p]rocessed two different experiences-sudden anger that she feels she has no control over and her enjoyment of inflicting pain on others.” Id. at 162. Ms. Hertz provided therapy for Petitioner in February and early March 2013. Id. at 163-68. According to Ms. Hertz's treatment note, during the February 28, 2013 session, Petitioner stated that her “bad mood” was “related to lack of sexual release.” Id. at 167. The note also states that Petitioner was “having ‘fun' fighting with her sister.” Id.
On March 25, 2013, Petitioner went to the hospital and complained of depression and suicidal thoughts in the hope of receiving medication. Id. at 131, 135. According to the provider's note, Petitioner stated that she had “been struggling lately with a guy who reported that she had assaulted him by going too far when they were doing sex play.” Id. at 135. The provider further reports that Petitioner stated she had taken Paxil before and it “worked well, but [] when she got 30 mg she became giddy and childlike.” Id. A physician at the hospital instructed Petitioner to take 20 mg of Paxil every morning for 15 days and to stop taking it if she felt giddy. Id. at 132.
On April 3, 2013, a doctor at a community health center renewed Petitioner's prescription for Paxil. Id. at 133-35. The following day, Ms. Hertz stated in a treatment note that she validated Petitioner's assertion that she did not have anger issues recently. Id. at 169. Ms. Hertz further stated that they discussed the addition of antidepressants to Petitioner's therapy and how well she was doing on them. Id.
On April 25, 2013, Ms. Hertz provided therapy for Petitioner. Id. at 171. In her treatment note, Ms. Hertz stated that Petitioner did not like how Paxil made her feel “calmer and happier” because it was “uncomfortable and unfamiliar” and seemed to “take away her energy for acting out in anger.” Id. Ms. Hertz also stated that Petitioner identified being alive as the “root cause of her anger.” Id.
Petitioner killed Mr. Alkins on April 29, 2013. See Tricomo, 13 Wash.App. 2d at 22829. The following day, police officers interrogated her. Dkt. 15-3 at 175-99. Petitioner stated that she had drunk a “crazy amount” of vodka before she killed Mr. Alkins. Dkt. 15-2 at 182-84. Further, Petitioner stated that her medication “wasn't really working” and made her feel “numb” and incapable of feeling. Id. at 180, 195-96, 198.
On September 9, 2013, a prison psychiatrist evaluated Petitioner. Id. at 201-02. According to the history-of-present-illness section of the psychiatrist's report, Paxil made Petitioner “want to kill people.” Id. at 201. Further, the report states that Petitioner had not taken Paxil for four months. Id. The psychiatrist discontinued Paxil and prescribed new medication. Id. at 202.
At a July 18, 2013 hearing, based in part on a recommendation from Western State Hospital (“WSH”), the trial court found Petitioner competent to stand trial. Dkt. 15-3 at 569, 573-74. Robert Jimerson represented Petitioner at this hearing. Id. at 570.
Sometime after the July 18, 2013 hearing and before February 22, 2014, Patrick O'Connor started representing Petitioner. See id. at 741. Mr. O'Connor referred Petitioner to Dr. Dixon, a clinical psychologist, for a forensic psychological examination and evaluation for “diminished capacity at the time of the . . . crime.” Id.
After interviewing Petitioner on four occasions, Dr. Dixon submitted his report on April 30, 2014. Id. at 741, 761. Dr. Dixon found that, at the time of the crime, Petitioner “suffered the following mental states contributing to her diminished capacity[]”: (1) voluntary intoxication that “may have diminished her ability to form intent”; (2) “Use of and withdrawal from Paxil may have diminished her ability to form intent ....Paxil withdrawal exacerbated her mood disorder into a manic state with psychosis”; (3) “PTSD from extension childhood trauma”; and (4) Borderline Personality Disorder. Id. at 759. Dr. Dixon further found that Paxil and vodka, “PTSD-like symptoms,” and Borderline Personality Disorder contributed to a “[d]ecreased ability to inhibit impulses.” See id. Additionally, Dr. Dixon diagnosed Petitioner with, inter alia, Bipolar Disorder II (“BPD”). Id. at 758.
Dr. Young, the state's psychologist, reached a different conclusion. Dr. Young noted that Petitioner believed Paxil could have contributed to her attack on Mr. Alkins. Id. at 775. Further, Dr. Young noted Dr. Dixon's conclusion that “Paxil . . . contributed to her actions on that day.” Id. However, according to Dr. Young, “there was no withdrawal: she was taking the medication every day (including on April 29th) as prescribed.” Id. Dr. Young added: “It is possible that the medication generated aversive side effects (e.g., feeling ‘nothing'); but it is more likely that the psychotic symptoms stemmed from alcohol abuse in a psychologically vulnerable individual.” Id. Also, Dr. Young disputed Dr. Dixon's finding that Petitioner had PTSD and BPD. Id.
Petitioner pleaded guilty on November 6, 2014. Dkt. 15-3 at 601; Dkt. 15-1 at 13-21. The parties “agreed that they would each recommend a sentence within the standard range” of 257 to 357 months. See Dkt. 15-3 at 659; Dkt. 15-1 at 14, 16.
On January 21, 2015, Mr. O'Connor submitted a sentencing brief and argued for a 257-month sentence. Dkt. 15-3 at 723-27. In support, in addition to Dr. Dixon's report, trial counsel submitted the mitigation report of Ms. Fernandez. Id. at 726, 734-39. Ms. Fernandez declared that she had “18 years [of] experience as a mitigation specialist in death penalty cases.” Id. at 731. As relevant here, in preparation of her report, Ms. Fernandez “conducted online research about the negative side effects of . . . Paxil.” Id. at 731-32. The report provides hyperlinks to those articles, some of which were published in peer-reviewed journals. Id. at 737-38. The report also references a book discussing the dangers of antidepressants such as Paxil. Id. at 738. Additionally, the report relays Petitioner's statements that Paxil caused her to have violent thoughts. Id. at 737.
On January 23, 2015, the prosecution submitted its sentencing memorandum. Id. at 803, 816. The prosecution contended that Washington law did not allow the presentation of mitigation information from “anyone other than [the defendant] or their counsel.” Id. at 814. Furthermore, as relevant here, the prosecution contended that Ms. Fernandez's opinion on the effects of Paxil was inadmissible because there was no evidence that she was an expert on that subject. Id. at 814-15.
The trial court held a sentencing hearing on January 28, 2015. Id. at 647. The trial court ruled that it would accept evidence in mitigation of Petitioner's sentence, but only within the agreed-upon sentencing range of 257 to 357 months. See id. at 657-59. However, the trial court refused to consider the section in Ms. Fernandez's report about Paxil. Id. at 658. It reasoned: “I don't find that she has any expertise in that particular area and she basically only sets forth a number of articles suggesting that they may have some relevance, but I'm not considering her report in that regard ....” Id.
Before announcing the sentence, the trial court stated that “the doctors reference Paxil . . . and the adverse side effects of this medication.” Id. at 696. Further, the Court appeared to credit Dr. Young's finding that Petitioner “was suffering psychotic symptoms” “[o]n or around the day of the [crimes].” See id. at 697. However, the court further stated that, while Petitioner had “mental issues,” “[s]ome of those . . . [were] self-created” by the voluntary consumption of “astounding” “amounts” of alcohol. See id. at 712. The Court added: “There are issues about taking anti-depressant drugs, Paxil, and that this may somehow have affected your view of life.” Id. Ultimately, the court sentenced Petitioner to 357 months' imprisonment. Id. at 714.
In support of her supplemental PRP, Petitioner submitted the psychiatric report of Manuel Saint Martin, M.D. Dkt. 15-2 at 57. Dr. Saint Martin declares:
The chronology of [Petitioner's] psychiatric treatment with paroxetine (Paxil) in the month preceding the offense indicates that she had an adverse medication reaction, namely aggressive and violent behavior.... [T]he conclusion is that paroxetine was responsible for [Petitioner's] aggressive and violent behavior resulting in Mr. Alkin[s's] death.
The issue of paroxetine's effect on [Petitioner's] neurobiological state was not addressed during her criminal proceeding because she was only examined by psychologists. Dr. Dixon and Dr. Young discussed the role of paroxetine in [Petitioner's] offense and arrived at opposing conclusions. I reviewed Dr. Dixon's and Dr. Young's resumes and neither have experience in the behavioral effects of psychiatric medications (also known as psychopharmacology).... [Petitioner] required a psychiatric evaluation to address the issue of paroxetine's effect on her mental state during the commission of the crime, but she never had one during the criminal proceedings.
.... Postmarketing [sic] studies have revealed that paroxetine produces adverse effects of agitation, anger and acting on dangerous violent impulses. These adverse effects include suicidal and homicidal behavior. The adverse effects are more common in adolescents and young adults and in patients who have a history of bipolar disorder. Paroxetine's adverse effects are documented in the Federal Drug Administration (FDA) medication guide published in June 2012.
[Petitioner] is in the latter two categories of persons whom paroxetine can cause serious adverse effects of violence and suicide. She has a diagnosis of bipolar disorder and a history of severe suicidal thoughts and urges to harm people....
In [Petitioner's] case, it is medically probable that using paroxetine accentuated her impulsive and violent behavior. There is a stronger causal link in the records between her psychiatric condition and paroxetine use than there is for alcohol and marijuana causing her violent behavior.... [Petitioner] had been taking paroxetine for sufficient time for both its beneficial and adverse effects to emerge.
On April 30, 2013, [Petitioner] called BHR's crisis line to report that she felt aggressive and suicidal and that she had urges to harm someone. She had already committed the offense.... When [Petitioner] was interviewed by the homicide detectives, she mentioned twice that she was reacting to paroxetine and that she wanted to discontinue the medication. While the former may be viewed as selfserving and excusing her conduct, the latter statement of feeling numb is a symptom that is reported in individuals who engage in impulsive behavior induced by antidepressant medication. It is improbable that [Petitioner] would have known this fact at the time she was interviewed....
At the time she committed the offense, [Petitioner] was not withdrawing from paroxetine. This medication has a duration of 21 hours in the body and she had taken it on the morning of the offense. Furthermore, the adverse effects of paroxetine occur when the individual is on the medication-not when they are withdrawing from it. Ms. Tricomo had been on the medication continuously for at least one month....
[Petitioner's] treatment subsequent to her incarceration at the jail and the DOC indicated that the doctors concluded that paroxetine was linked to her violent impulses and they refrained from prescribing it. In 2018, [Petitioner] expressed a desire to resume taking paroxetine, but the treatment team at the DOC thought that she did not have sufficient appreciation of the risks of adverse effects. Thus, the doctors treating [Petitioner] immediately after the offense and to the present also believe that paroxetine causes her impulsive violent behavior.Id. at 58-60; see also id. at 371-72 (Dr. Saint Martin's supplemental report).
Following her conviction and sentencing, petitioner received psychiatric treatment while in prison. See Dkt. 22 at 10-11. On April 19, 2018, Kathryn Hall, M.D., entered a psychiatric progress note. Dkt. 15-2 at 205. The note states that Dr. Hall and Petitioner “discussed at length her history of being on paroxetine, which she recalls very positively in terms of decreased depression, but admits it does give her feelings of wanting to kill people.” Id. The note further states:
Well before her crime when she was suicidal and depressed and sent by BHR to WSH, they put her on a combination of paroxetine and VPA [Valproic acid]. When on that combination she didn't have thoughts of wanting to kill others, but when she got out she stopped the VPA .... Without the VPA she had cravings to drink on paroxetine alone, and did drink heavily. So it is hard to know if without alcohol the paroxetine would have the same effect.Id.
Dr. Hall entered another progress note on June 18, 2018. Id. at 208. Dr. Hall states that Petitioner “asked to resume paroxetine, despite acknowledging that it made her want to kill people.” Id. Dr. Hall further states that “[we] shared our concerns that . . . paroxetine had possibly triggered an irritable manic state, leading to her crime.” Id. Dr. Hall added that Petitioner “did not appear to appreciate” the “risks” of paroxetine. Id. Dr. Hall did not prescribe paroxetine. See id. at 206, 209.
C. Discussion
To establish that counsel provided ineffective assistance, Petitioner must show that counsel's performance was deficient and that the deficient performance prejudiced her defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To prove deficiency, Petitioner must show that counsel's performance “fell below an objective standard of reasonableness” as measured by prevailing professional norms. Id. at 688. Courts must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. To prove prejudice, Petitioner must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Strickland applies to noncapital sentencing proceedings. See Daire v. Lattimore, 812 F.3d 766, 767 (9th Cir. 2016) (en banc).
Under Strickland, “counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” 466 U.S. at 691. Although “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[,] and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 690-91.
“Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence.” Hinton v. Alabama, 571 U.S. 263, 273 (2014) (citation omitted). Likewise, “[c]ounsel have an obligation to conduct an investigation which will allow a determination of what sort of experts to consult.” Caro v. Calderon, 165 F.3d 1223, 1226 (9th Cir. 1999). If a defendant has been exposed to chemicals causing “neurological damage” producing “aggressive behavior,” this duty may require counsel to present an expert qualified to render such an opinion in mitigation of the defendant's sentence. See id. at 1126-28.
Here, reasonable jurists could debate whether trial counsel's alleged failure to hire a psychiatrist to evaluate whether Paxil caused Petitioner to act violently was deficient. In the report supporting Petitioner's PRP, Dr. Saint Martin declares that Paxil was “responsible for [Petitioner's] aggressive and violent behavior resulting in Mr. Alkin[s's] death.” Dkt. 15-2 at 58. Furthermore, Dr. Saint Martin declares that “[t]here is a stronger causal link in the records between [Petitioner's] psychiatric condition and paroxetine use than there is for alcohol and marijuana causing her violent behavior.” Id. at 59. Additionally, Dr. Saint Martin declares that Drs. Dixon and Young did not have “experience in the behavioral effects of psychiatric medications” and were not “the appropriate experts[s] to diagnose [Petitioner's] condition . . . [or] render opinions regarding the patient's behavior and how it can be altered by medication.” Id. at 58, 372. Thus, Dr. Saint Martin declares that Dr. Dixon (the defense's expert) and Dr. Young (the State's expert) were not qualified to discuss, and did not discuss, “[t]he issue of paroxetine's effect on [Petitioner's] neurobiological state.” See id. at 58. Although Respondent disputes that trial counsel deficiently failed to hire a psychiatrist, Respondent has not disputed that Dr. Saint Martin is qualified to discuss Paxil's psychopharmacological effects.
Dr. Saint Martin's declaration supports a reasonable inference that Petitioner had a Paxil-induced neurobiological condition that contributed to her killing of Mr. Alkin's. Thus, trial counsel arguably had a duty to hire a qualified expert to provide such an opinion in mitigation of Petitioner's sentence. See Caro, 165 F.3d at 1226-28. Trial counsel did submit an expert opinion from Dr. Dixon. Yet Dr. Saint Martin declares that Dr. Dixon was not qualified to render an opinion on Petitioner's neurobiological state and did not render such an opinion. Therefore, the evidence supports a reasonable inference that trial counsel failed to present the trial court with the type of expert opinion necessary for it to assess Paxil's alleged role on Petitioner's conduct.
Respondent contends that Dr. Dixon “was qualified to render an opinion in [Petitioner's] case.” Dkt. 14 at 31 (citing Dkt. 15-2 at 298-99). In support, Respondent notes that Dr. Dixon “has a Ph.D. in clinical psychology” and “a certificate of proficiency in treatment of . . . psychoactive substance use disorders” and has taught “psycho-pharmacology at Seattle Pacific University.” Dkt. 15-2 at 298-99. However, Dr. Saint Martin declares that these credentials did not qualify Dr. Dixon to discuss “brain physiology and psychoactive medications.” Id. at 372. Dr. Saint Martin reasons that “[p]sychiatry and psychology are not interchangeable disciplines” and that psychologists have “no training in . . . the biochemical interactions of medications and the various body systems.” Id. Further, Dr. Saint Martin reasons that Seattle Pacific University is not a medical institution and that, in any event, a “psychologist's role is limited to explaining [] behavior” when he teaches “a psychopharmacology course in a medical institution.” Id. Dr. Saint Martin adds that “[t]he fact that Dr. Dixon stated in his report that he could not separate the effects of alcohol from paroxetine . . . is further evidence of his lack of expertise in neurophysiology because any psychiatrist could have done so.” Id. Thus, it is debatable whether Dr. Dixon-or Dr. Young-was qualified to discuss whether Paxil caused Petitioner to act violently.
Moreover, Ms. Fernandez's report (which Petitioner submitted to the state court) cited sources purporting to establish a scientific link between Paxil use and violence. See Dkt. 15-3 at 738. So the evidence supports a reasonable inference that trial counsel was “aware” of Paxil's alleged neurobiological effects on Petitioner and yet “failed to consult . . . [an appropriate] expert[ in this field].” See Caro, 165 F.3d at 1226; Dkt. 15-3 at 658; see also Dkt. 15-2 at 236 (trial counsel's admitting that he “relied on [only] Dr. Dixon's report and Ms. Fernandez's mitigation report in support of the defense recommendation for sentencing”). Nor is it evident why, when the trial court refused to consider the section in Ms. Fernandez's report about Paxil, trial counsel did not “ask[] for a continuance to obtain a proper expert to educate the judge about Paxil's [alleged] effect of causing people to act violently.” Dkt. 15-2 at 36. True, trial counsel submitted Dr. Dixon's report. However, while Dr. Dixon stated that Paxil diminished Petitioner's ability to form intent and inhibit impulses, he did not clearly state that Paxil caused her to behave violently, much less from a psychopharmacological standpoint. See Dkt. 15-3 at 759. And, to reiterate, Dr. Saint Martin declares that Dr. Dixon was not qualified to make such a determination. Dr. Dixon's statement that Petitioner was experiencing “withdrawal” of Paxil when she committed the offense may support an inference that he misunderstood Paxil's effect on her behavior; Dr. Saint Martin and Dr. Young both state that she was not experiencing withdrawal at that time. Dkt. 15-2 at 59; Dkt. 15-3 at 775. In short, it is arguable that trial counsel knew of the need to present expert testimony on Paxil's alleged potential to cause violence but failed to make reasonable efforts to obtain that expert testimony.
Reasonable jurors could also debate whether trial counsel's failure to hire a psychiatrist to evaluate whether Paxil caused Petitioner to act violently prejudiced her. In sentencing Petitioner, the trial court stated that some of Petitioner's mental issues were “self-created” by voluntary intoxication. Dkt. 15-3 at 712. The court further stated that there were “issues about taking . . . Paxil[] . . . and that this may somehow affected [her] view of life.” Dkt. 15-3 at 712. However, Dr. Saint Martin declares that Paxil was “responsible for [Petitioner's] aggressive and violent behavior resulting in Mr. Alkin[s's] death.” Dkt. 15-2 at 58. Furthermore, Dr. Saint Martin declares that “[t]here is a stronger causal link in the records between [Petitioner's] psychiatric condition and paroxetine use than there is for alcohol . . . causing her violent behavior.” Dkt. 15-2 at 58. Had trial counsel presented Dr. Saint Martin's testimony, the trial court arguably could have not given as much weight to Petitioner's alcohol abuse and been more likely to conclude that Paxil induced her to act violently instead of merely affecting her view of life.
Granted, had the trial court so concluded, there is no guarantee that it would have imposed a lower sentence. See Ramirez v. Ryan, 937 F.3d 1230, 1245 (9th Cir. 2019) (“To assess th[e] probability [of a more favorable sentence, courts] consider the totality of the available mitigation evidence . . . and reweigh it against the evidence in aggravation.” (citation omitted)). The trial court considered “a lot of” sentencing information and “factors.” See Dkt. 15-3 at 710, 713; see also Dkt. 14 at 31 (“Although [Petitioner] faults counsel for not using a psychiatrist in support of mitigation at sentencing, counsel did present extensive psychological evidence to argue that the [trial] court should impose a reduced sentence.” (citations omitted)). Furthermore, the trial court regarded Mr. Alkins's murder as a “terribly gruesome situation” that “involve[]d actions over a period of hours” and “numerous assaultive acts.” Dkt. 15-3 at 712.
Still, the sentencing transcript suggests that the trial court was open to sentencing Petitioner to anywhere between 257 to 357 months, subject to its evaluation of the Parties' mitigation evidence and other sentencing factors. Cf., e.g., Dkt. 15-3 at 658-60, 711. Furthermore, as noted, the trial court stated that there were “issues about taking . . . Paxil[] . . . and that this may somehow affected your view of life.” Id. at 712. Therefore, the trial court arguably indicated a willingness to consider Paxil's effects on Petitioner's behavior in mitigation of her sentence. But Dr. Saint Martin's report supports a reasonable inference that trial counsel failed to present proper psychiatric evidence that Paxil use, not alcohol abuse, caused Petitioner to act violently. On this record, it is debatable that a psychiatrist's opinion that Paxil use, not alcohol abuse, caused Petitioner to act violently would have caused the trial court to assess her mitigation evidence more favorably and impose a lower sentence in the 257-to-357-month range. In addition to potentially changing the trial court's understanding of Paxil's alleged role on Petitioner's behavior, such evidence arguably could have led the trial court to weigh the gruesomeness of the offense less heavily against Petitioner.
More evidence may weaken the contention that Paxil caused Petitioner to kill Mr. Alkins. There is evidence suggesting that Petitioner had taken Paxil at some point prior to the month before she killed Mr. Alkins without experiencing a violent reaction. See Dkt. 15-2 at 132, 205. Furthermore, there is evidence that Petitioner had a history of violence in general. See, e.g., id. at 135-36; Dkt. 15-3 at 665. However, in announcing Petitioner's sentence, the trial court focused on the gruesomeness of the murder and seemed to discount Paxil's alleged role. See Dkt. 15-3 at 712-13. Yet, as discussed, it is reasonable to infer that the trial court would have assessed these factors differently had trial counsel presented Dr. Saint Martin's report. So reasonable jurists would nonetheless debate whether Petitioner has shown prejudice.
Respondent's primary argument is that the “Ninth Circuit rejected an almost identical claim in” Brown v. Uttecht, 530 F.3d 1031 (9th Cir. 2008). Dkt. 14 at 29. However, Respondent does not address Caro, which reasonably supports Petitioner's ineffectiveness claim. Furthermore, while Brown presents some parallels with this case, it is distinguishable in several respects. In Brown, in relevant part, trial counsel's mitigation case was based on the theory that the defendant would not have committed the crime had he been “properly treated [with lithium] upon his release from prison.” Id. at 1033. Here, by contrast, Petitioner contends that the Paxil she was taking when she committed the crime caused her to do so. Furthermore, in Brown, the psychologist who provided mitigation testimony “was qualified to testify about lithium.” Id. at 1034. But, here, the Parties dispute whether Drs. Dixon and Young were qualified to offer an opinion about Paxil's alleged link to violence. Additionally, in Brown, “retaining a psychiatrist involved significant risk” because, had defense counsel done so, counsel “would have risked obtaining unfavorable written reports[] which they would [] have had to turn over to the prosecution.” Id. at 1035. In this case, Respondent has not identified any evidence suggesting that presenting Dr. Saint Martin's proffered testimony would have run such a risk. Moreover, in Brown, defense counsel initially contacted a psychiatrist and, when he “proved unavailable,” defense counsel decided to “seek[] a continuance” for “legitimate [tactical] reasons.” See id. at 1034-35. Defense counsel “wanted the jury to deliberate over the Christmas holiday, when jurors might be more merciful, and [] wanted to give the prosecution less time to prepare its penalty phase case.” Id. at 1034. Here, however, trial counsel admits that he did not consult with a psychiatrist. See Dkt. 15-2 at 236. Nor are any such tactical reasons for not presenting a psychiatrist apparent from the record. In short, reasonable jurists would debate Brown's applicability.
D. Remedy
In sum, reasonable jurists would debate whether trial counsel ineffectively failed to hire a psychiatrist to evaluate whether Paxil caused Petitioner to act violently and present evidence of the same in mitigation of Petitioner's sentence. These are the prerequisites for allowing a federal court to hear an otherwise procedurally defaulted claim that trial counsel rendered ineffective assistance. Martinez, 566 U.S. at 17.
Because the Court must review Petitioner's ineffectiveness claim de novo, “an evidentiary hearing on [the] [P]etition is required [if] [P]etitioner's allegations, if true, would entitle [her] to relief, and [] [P]etitioner has satisfied the requirements of Townsend v. Sain, 372 U.S. 293 (1963).” See Hurles v. Ryan, 752 F.3d 768, 791 (9th Cir. 2014) (citation omitted). Townsend requires an evidentiary hearing if: “(1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there is a substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.” 372 U.S. at 313 (emphasis added), overruled on other grounds, Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992).
Furthermore, under 28 U.S.C. § 2254(e)(2), Petitioner must show that she has “exercised diligence in pursing [her ineffectiveness] claim[] in state court.” See Jones v. Ryan, 1 F.4th 1179, 1195 (9th Cir. 2021) (citation omitted). “Diligence for purposes of the opening clause depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court[.] . . .” Williams v. Taylor, 529 U.S. 420, 435 (2000).
Here, an evidentiary hearing on Petitioner's ineffectiveness claim is warranted. As the above analysis indicates, if Dr. Saint Martin's allegations are true, Petitioner may be entitled to relief on her ineffectiveness claim. In some cases, counsel's failure to present qualified expert testimony in mitigation of a defendant's sentence may be ineffective. See Caro, 165 F.3d at 1226-28.
This case also satisfies Townsend's disjunctive test. The state court of appeals did not resolve the merits of Petitioner's ineffectiveness claim or develop the facts material to this claim. Additionally, Petitioner diligently pursued her ineffectiveness claim in state court. Petitioner timely filed a PRP alleging that the trial court did not properly consider Paxil's alleged role in her actions. Dkt. 15-1 at 246-47. Then, after retaining Mr. Fox, Petitioner filed the supplemental PRP that cited Dr. Saint Martin's report. Tricomo II, 13 Wash.App. 2d at 232; Dkt. 15-2 at 2, 57-58. In her supplemental PRP, in part, Petitioner asked the state court of appeals to remand the case “for reasonable discovery and a reference hearing if required.” Dkt. 15-2 at 42. Therefore, Petitioner has shown diligence under § 2254(e)(2). See Stanley v. Schriro, 598 F.3d 612, 624 (9th Cir. 2010) (“A petitioner who has previously sought and been denied an evidentiary hearing has not failed to develop the factual basis of his claim and therefore satisfies § 2254(e)(2).” (citation omitted)); cf. Ryan, 1 F.4th at 1195 (petitioner diligent where postconviction “counsel requested funding for a neuropsychologist and a thorough and independent neurological assessment to assist in the development of [c]laims” (internal quotation marks omitted)).
Accordingly, the undersigned recommends that the District Court hold an evidentiary hearing on Petitioner's ineffectiveness claim. It is appropriate for the undersigned to issue a Report and Recommendation on whether to hold an evidentiary hearing. See 1976 Advisory Committee Note to Rule 8, Rules Governing Section 2254 Cases (“Subdivision (b) [of Rule 8] provides that a magistrate [judge], when so empowered by rule of the district court, may recommend to the district judge that an evidentiary hearing be held or that the petition be dismissed, provided [the magistrate judge] gives the district judge a sufficiently detailed description of the facts so that the judge may decide whether or not to hold an evidentiary hearing.”); see also Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (explaining that Congress has “clearly expressed its intent that magistrate[ judges] may conduct evidentiary hearings in postconviction proceedings” (emphasis added) (citation omitted)). The undersigned defers to the District Court on whether the undersigned or the District Court should conduct the hearing.
E. Whether to Appoint Counsel
“If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” Rule 8(c), Rules Governing Section 2254 Cases. If “the interests of justice so require,” “representation may be provided for any financially eligible person who” “is seeking relief under section . . . 2254.” 18 U.S.C. §3006A.
In the Traverse, Petitioner requests court appointed counsel. Dkt. 22 at 26. Neil Martin Fox is Petitioner's retained counsel in this case. Mr. Fox has represented Petitioner throughout this case. Importantly, Mr. Fox has not sought to withdraw from this case since filing his notice of appearance on January 20, 2022. Therefore, Mr. Fox is the attorney of record. Mr. Fox, however, indicates he was only retained to litigate Petitioner's state PRP.
Through Mr. Fox, Petitioner filed her Petition. Dkt. 1. At the initiation of this case, Mr. Fox sought permission to withdraw from the case and requested Petitioner be appointed counsel. Dkt. 3. The Court granted Mr. Fox's motion to withdraw but denied Petitioner's motion to appoint counsel. Dkt. 4. Mr. Fox then filed a second motion to appoint counsel. Dkt. 8. The Court struck the second motion to appoint counsel and other filings that Mr. Fox submitted because he filed them after the Court granted his motion to withdraw. Dkt. 20 at 1. In striking these filings, the Court stated that “Mr. Fox must enter a new formal appearance and refile his submissions before the Court can consider any filings by [him].” Id. at 1-2. On January 20, 2022, after Respondent filed the Answer, Mr. Fox chose to enter a notice of appearance and file the Traverse. Dkt. 21, 22.
If the Honorable David G. Estudillo, the District Judge assigned to this case, adopts this Report and Recommendation, Petitioner is entitled to court appointed counsel as long as she qualifies under 18 U.S.C. § 3006A. As Petitioner is represented by retained counsel, the record does not definitively demonstrate that Petitioner qualifies for appointed counsel. Therefore, if this Report and Recommendation is adopted, the undersigned recommends:
(1) Petitioner be directed to provide evidence-such as an updated financial affidavit and a declaration from Mr. Fox stating if he was providing his services on a pro bono basis- showing she qualifies for court appointed counsel pursuant to 18 U.S.C. § 3006A;
(2) If Petitioner qualifies for appointed counsel and Mr. Fox intends to withdraw he should be directed to file a motion to withdraw in accordance with the Local Civil Rule 83.2.;
(3) If Petitioner qualifies for appointed counsel and the Court approves Mr. Fox's withdrawal, then the Court should appoint the Federal Public Defender for the Western District of Washington (FPD) to represent Petitioner.
II. Claim 2
Petitioner alleges that her “[m]ultiple convictions for assault and murder violated double jeopardy.” Dkt. 1 at 7. She reasons that “[t]he murder conviction and assault convictions all stemmed from a single criminal episode with one intention of killing the same person, Mr. Alkins.” Id. Therefore, Petitioner contends that she “should not have received separate and increased sentences for the three assault counts and the one murder count.” Id. Alternatively, Petitioner contends that she “should have been sentenced only for one assault count and not three.” Id.
Petitioner last raised this claim in her PRP. Dkt. 15-1 at 239-47. However, the state court of appeals declined to consider this claim because Petitioner “raised the same issue in her direct appeal.” Tricomo II, 13 Wash.App. 2d at 234. So, to determine its reasoning for denying this claim, the Court looks to the state court of appeals' decision on direct appeal. Cf. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
Regarding Petitioner's contention that she should not have received separate and increased sentences for the three assault counts and the one murder count, the state court of appeals asked “whether the convictions were the same in law and in fact.” Tricomo I, 193 Wash.App. 1037, at *4 (citation omitted). “If there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.” Id. (citation omitted). the state court of appeals found that Petitioner's “convictions for second degree murder and second degree assault [were] legally different.” Id. It reasoned: “Proof of second degree assault does not necessarily prove second degree murder because a person can assault another person without actually causing death. Second degree murder, on the other hand, requires proof of intent to cause death, and actual death.” Id.
Petitioner has not argued that Division Two incorrectly concluded second-degree murder and second-degree assault each has an element not included in the other. See Dkt. 22 at 27-28.
As relevant here, the Double Jeopardy Clause “protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969). “With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter, 459 U.S. 359, 366 (1983). Where, as here, there is no “clear indication of [] legislative intent” to impose “cumulative punishment,” courts apply the test in Blockburger v. United States, 284 U.S. 299 (1932). See Hunter, 459 U.S. at 366-67. Under Blockburger, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of [an element] which the other does not.” See 284 U.S. at 304.
Here, the state court of appeals determined that second-degree murder and second-degree assault each “require[d] proof of a different element” that the other did not. See id. at 304; see also Tricomo I, 193 Wash.App. 1037, at *4 (citation omitted). The state court of appeals' determination of the elements of second-degree murder and second-degree assaults bind this Court. See Brown v. Ohio, 432 U.S. 161, 167 (1977) (“[T]he Ohio Court of Appeals has authoritatively defined the elements of the two Ohio crimes[.]”); see also Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Therefore, the state court of appeals reasonably rejected Petitioner's contention that she should not have received separate and increased sentences for the three assault counts and the one murder count.
Petitioner contends that the state court of appeals' decision is inconsistent with the Supreme Court's decision in Brown. Dkt. 22 at 27-29. But Brown is distinguishable; the offenses there were the “same” under Blockburger because one offense “require[d] no proof beyond that which [was] required for [the other].” 432 U.S. at 168. As noted, Petitioner does not argue that second-degree murder and second-degree assault are the same under Blockburger and instead discusses other aspects of Brown's reasoning. See Dkt. 22 at 27-28. But Brown's determination that the two offenses were the same under Blockburger was essential to its holding. See, e.g., 432 U.S. at 169 (“The applicable Ohio statutes, as written and as construed in this case, make the theft and operation of a single car a single offense.”). Because Petitioner has not discussed this key aspect of Brown's holding, Petitioner has not met her burden under § 2244(d) to show that the state court of appeals' decision was unreasonable. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (petitioners have the burden of proof under § 2254(d) (citation omitted)).
Alternatively, Petitioner contends that she “should have been sentenced only for one assault count and not three.” Dkt. 1 at 7.
Petitioner “was charged, in relevant part, with three counts of second degree assault stemming from the events of one evening.” Tricomo I, 193 Wash.App. 1037, at *2. “Count II charged second degree assault based on the use of a razor knife to inflict neck wounds.” Id. (internal quotation marks omitted). “Count III charged second degree assault based on the use of a razor knife to inflict facial wounds.” Id. (internal quotation marks omitted). “And count IV charged second degree assault based on the use of a razor knife to inflict hand wounds.” Id. (internal quotation marks omitted). The State charged Petitioner with second-degree assault based on use of a razor knife to inflict neck wounds under R.C.W. § 9A.36.021(1)(a). The State charged the remaining assault offenses under R.C.W. § 9A.36.021(1)(c). Dkt. 15-3 at 560-61. Petitioner “pleaded guilty as charged and agreed that the trial court could rely on the State's statement of probable cause and police reports to find the facts necessary to establish a factual basis for her plea.” Tricomo II, 193 Wash.App. 1037, at *3.
The state court of appeals held that Petitioner's convictions on count II (assault based on neck wounds) and count IV (assault based on hand wounds) did not violate double jeopardy because “the assault that resulted in neck wounds was a separate course of conduct from the assault that resulted in wrist wounds.” Id. It reasoned:
[I]f multiple assaultive acts constitute only one course of conduct, then double jeopardy protects against multiple convictions. There is no bright-line rule for when multiple assaultive acts constitute one course of conduct. In determining whether multiple assault acts constitute one course of conduct, we consider the length of time over which the acts occurred, the location of the acts, the defendant's intent or motivation for the assaultive acts, whether the acts were uninterrupted, and whether there was an opportunity for the defendant to reconsider her acts. No single factor is dispositive, and the ultimate determination should depend on the totality of the circumstances, not a mechanical balancing of the various factors.
Here, the assaultive acts occurred over several hours and in different places in the victim's home. According to [Petitioner], there were hours in between the act of slitting the victim's throat and cutting the victim's wrists. Further, [Petitioner's] account of the events indicate that her motivation for the two attacks was different. [Petitioner] stated that she brought the knife with her into the upstairs bedroom as preparation to kill the victim, but that she cut the victim's wrists because the victim was attempting to take the knife from her. And, she had considerable time to reconsider her actions. For instance, she had time to reconsider during the hours the victim spent walking around the house after she slit his throat in the upstairs bedroom and before she cut his wrists during the struggle at the entryway.Id. (citations and internal quotation marks omitted).
Where, as here, a defendant alleges that she has engaged in “a single act or transaction” or one course of conduct but has been convicted of “multiple violations of the same statutory provision,” courts ask what the legislature “‘has made the allowable unit of prosecution.'” See United States v. Keen, 104 F.3d 1111, 1118 (9th Cir. 1996) (quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952)).
In Washington, “[t]here is no bright-line rule for when multiple assaultive acts constitute one course of conduct.” State v. Villanueva-Gonzalez, 180 Wash.2d 975, 985 (2014) (en banc). Courts generally consider: (1) the “length of time over which the assaultive acts took place”; (2) whether “the assaultive acts took place in the same location”; (3) the “defendant's intent or motivation for the different assaultive acts”; (4) whether “the acts were uninterrupted or whether there were any intervening acts or events”; and (5) whether “there was an opportunity for the defendant to reconsider his or her actions.” Id.
Here, applying at least four of these factors to Petitioner's conduct, the state court of appeals concluded that “the assault that resulted in neck wounds was a separate course of conduct from the assault that resulted in wrist wounds.” Tricomo I, 193 Wash.App. 1037, at *3. The record supports its factual findings regarding Petitioner's conduct. See Dkt. 15-3 at 556-57 (probable cause affidavit). Based on these undisputed facts, the state court of appeals reasonably applied Villanueva-Gonzalez's “controlling [judicial] gloss” for whether multiple assaultive acts constitute one course of conduct. Cf. Bell v. United States, 349 U.S. 81, 83 (1955).
Petitioner contends that this ruling was contrary to Brown. Dkt. 22 at 27-29. However, Brown is inapposite. Brown involved two different statues that were the same under the Blockburger test. 432 U.S. at 168. By contrast, “[R.C.W. 9A.36.021] defines a single crime- second-degree assault-and provides [] different means by which a person can commit that crime.” United States v. Robinson, 869 F.3d 933, 941 (9th Cir. 2017) (internal quotation marks omitted). “Because only a . . . single statute is at issue here, [courts] do not analyze this [claim] under [Blockburger's] ‘same evidence' test.” See Sanabria v. United States, 437 U.S. 54, 70 n.24 (1978) (collecting cases). Petitioner has not identified any other Supreme Court holdings that the state court of appeals' decision was contrary to, or an unreasonable application of, and the Court's research did not reveal any. See Pinholster, 563 U.S. at 181 (petitioners have the burden of proof under § 2254(d)).
In rejecting Petitioner's argument that her assault conviction for inflicting facial wounds violated double jeopardy, the state court of appeals provided a different rationale. The state court of appeals held that Petitioner waived this double jeopardy challenge because she pleaded guilty and the alleged double jeopardy violation was not clear from the record on appeal. See Tricomo I, 193 Wash.App. 1037, at *3 (citing State v. Knight, 162 Wash.2d 806, 811 (2008)). Knight cited United States v. Broce, 488 U.S. 563 (1989), for the proposition that “[a]fter a guilty plea the double jeopardy violation must be clear from the record presented on appeal, or else be waived.” 162 Wash.2d at 811 (citing 488 U.S. at 575-76).
“A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.” Broce, 488 U.S. at 569. “Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary.” Id. “If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.” Id.
In Broce, the defendants “pleaded guilty to two charges of conspiracy on the explicit premise of two agreements which started at different times and embraced separate objectives.” Id. at 571. Thus, Broce found that they “conceded that [they had] committed two separate crimes.” See id. at 570. Consequently, their “double jeopardy challenge [was] foreclosed by [their] guilty pleas and [their] judgments of conviction.” Id. at 565.
Broce stated that “[t]here are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence.” Id. at 569. It acknowledged one such exception in Menna v. New York, 423 U.S. 61 (1975). Broce, 488 U.S. at 575. Menna held that “a plea of guilty to a charge does not waive a [double jeopardy] claim that judged on its face [] is one which the State may not constitutionally prosecute.” 423 U.S. at 62 n.2. However, Broce distinguished Menna because, in Menna, “the indictment was facially duplicative of the earlier offense of which the defendant had been convicted and sentenced so that the admissions made by [the defendant's] guilty plea could not conceivably be construed to extend beyond a redundant confession to the earlier offense.” Broce, 488 U.S. at 575-76. By contrast, in Broce, the defendants “pleaded guilty to indictments that on their face described separate conspiracies.” Id. at 576. Therefore, the defendants in Broce could not “prove their claim by relying on those indictments and the existing record.” Id. So the above exception to waiver did not apply. See id.
Here, the state court of appeals reasonably applied Broce. Trial counsel represented Petitioner when she pleaded guilty and, as discussed below, her guilty plea was voluntary. See infra pp. 35-37. Furthermore, the amended information alleged that count III involved the use of a razor knife to inflict facial wounds and that Petitioner committed this assault “separate and apart” from the other assault charges. Dkt. 15-3 at 560. Because Petitioner pleaded guilty to the amended information, Id. at 604-05, her claim is “foreclosed by the admissions inherent in [her] guilty plea[.]” See Broce, 488 U.S. at 576. True, the state court of appeals found that the probable cause affidavit did not “include any information about count III.” Tricomo I, 193 Wash.App. 1037, at *3. However, the state court of appeals did not reference the indictment's allegation that the assaults were committed “separate and apart” each other. Dkt. 15-3 at 560-61.
Furthermore, the state court of appeals' rejection of this claim would be reasonable even if the indictment did not contain the “separate and apart” allegation. In that event, because she voluntarily pleaded guilty, Petitioner would still have to show that the trial court had “no power” “on the face of the record . . . to enter the conviction or impose the sentence.” See Broce, 488 U.S. at 569, 575. She has not made this showing. She merely states that the probable cause affidavit “did not contain any facts regarding the facial wounds.” Dkt. 22 at 28. But this was the state court of appeals' point: there were no facts about Petitioner's infliction of facial wounds. Thus, there were no facts from which the trial court could have concluded that count III was “one course of conduct” with one or both of the other assaults. See Villanueva-Gonzalez, 180 Wash.2d at 985. Petitioner could have provided these facts during her plea colloquy but did not. See Dkt. 15-3 at 611; cf. Broce, 488 U.S. at 574 (“A failure by counsel to provide advice may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.”). This case is not comparable to Menna, where “the indictment was facially duplicative of the earlier offense of which the defendant had been convicted and sentenced.” See Broce, 488 U.S. at 575-76.
Accordingly, Petitioner has not shown that the state court of appeals' rejection of claim 2 was contrary to, or an unreasonable application of, clearly established federal law or an unreasonable determination of the facts.
III. Claim 3
Petitioner contends that her guilty plea was not knowing and voluntary in violation of due process. Dkt. 1 at 8. In support, she alleges that she “was [incorrectly] told that the maximum sentence for the murder count was life in prison and 10 years for the assault counts.” Id. She contends that, under Blakely v. Washington, 542 U.S. 296 (2004), “the maximum sentences were the top ends of the standard ranges (357 and 70 months). Id. She adds: “I was misadvised of the maximum sentences and the guilty plea was not knowing and voluntary, and I should have been allowed to withdraw the guilty plea.” Id.
On direct appeal, the state court of appeals rejected this claim. Tricomo I, 193 Wash.App. 1037, at *1. It reasoned:
[Petitioner] pleaded guilty to second degree murder. At the plea hearing, the trial court informed her that the applicable maximum term of confinement was a life sentence and the standard range of actual confinement was 257 to 357 months, with the State recommending a sentence of 357 months. [Petitioner] acknowledged that she understood. The court then sentenced [Petitioner] within the standard range.
[Petitioner] contends that her plea was not made knowingly, voluntarily, and intelligently because the trial court misinformed her of the applicable maximum sentence for the offense with which she was charged. [Petitioner] asserts that the applicable maximum sentence was the top end of the standard range, not the
statutory maximum sentence declared by the legislature. Citing [Blakely], [Petitioner] claims that the trial court misinformed her when it told her that life imprisonment was the applicable maximum sentence for second degree murder.
[The Washington Court of Appeals rejected this argument in State v. Kennar, 135 Wash.App. 68 (2006)]. In [Kennar], the court held that CrR 4.2 requires the trial court to inform a defendant of both the applicable standard sentence range and the maximum sentence for the charged offense as determined by the legislature .... [N]oting that Blakely is a sentencing case, not a plea-entry case,” [Kennar distinguished Blakely, reasoning that],
[b]ecause a defendant's offender score and standard sentence range are not finally determined by the court until the time of sentencing, the Sixth Amendment concerns addressed in Blakely do not apply until that time. Thus, when Kennar entered his guilty plea, the maximum peril he faced was, in fact, life in prison. He was correctly informed of this by the trial court ....
Similarly here, at the time of her plea, [Petitioner] was informed of the maximum sentence and the standard sentence range for the charged offense.... Tricomo I, 193 Wash.App. 1037, at *5.
“[I]f a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void.” McCarthy v. United States, 394 U.S. 459, 466 (1969). “The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Parke v. Raley, 506 U.S. 20, 29 (1992) (citation omitted). This happens when the defendant has “a full understanding of what the plea connotes and of its consequence[s]” and chooses to plead guilty without being coerced to do so. See Boykin v. Alabama, 395 U.S. 238, 242-44 (1969); see also Brady v. United States, 397 U.S. 742, 755 (1970) (citation omitted). “The voluntariness of [the defendant's] plea can be determined only by considering all of the relevant circumstances surrounding it.” Brady, 397 at 749 (citations omitted).
“In assessing the voluntariness of the plea, statements made by a criminal defendant contemporaneously with his plea should be accorded great weight.” Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (citing Blackledge v. Allison, 431 U.S. 63, 73-74 (1977)). “[T]he representations of the defendant, his lawyer, and the prosecutor at such a hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings.” Blackledge, 431 U.S. at 73-74. “Solemn declarations in open court carry a strong presumption of verity.” Id. at 74.
Here, the state court of appeals reasonably rejected this claim. During her plea colloquy, Petitioner stated that: (1) she had a college degree; (2) trial counsel had reviewed the plea agreement with her and answered all her questions about the case; (3) she knew she was waiving constitutional rights by pleading guilty; and (4) no one had promised her anything to get her to plead guilty or forced her to plead guilty. Dkt. 15-3 at 605-06, 610.
Furthermore, the trial court informed her that, on count I (second-degree murder), her “standard range of actual confinement . . . would be 257 to 357 months, . . . and a maximum term of confinement of life.” Id. at 607. Further, the trial court informed her that the prosecutor was “going to recommend” “at the time of sentencing” “357 months on Count 1.” Id. at 608. Yet Petitioner acknowledged that she was “not agreeing that that [was] what the court should order and that . . . Mr. O'Connor [would] be able to argue . . . [for] a lesser sentence.” Id.
Kennar held that “CrR 4.2 requires the trial court to inform a defendant [at the time the plea is made] of both the applicable standard sentence range and the maximum sentence for the charged offense as determined by the legislature.” See 135 Wash.App. at 72-75. The Court cannot reconsider this state-law determination on habeas review. See, e.g., Richey, 546 U.S. at 76. As in Kennar, the trial court informed Petitioner of applicable standard sentencing range (257 to 357 months) and the statutory maximum on count I (life imprisonment). So the state court of appeals reasonably concluded that the trial court did not misadvise Petitioner.
Petitioner contends that the state court of appeals' decision is contrary to Blakely. Dkt. 22 at 30. However, Blakely involved a Sixth Amendment challenge to a state court's imposition of a 90-month sentence after judicial factfinding even though the “facts admitted in [the guilty] plea, standing alone, supported a maximum sentence of [only] 53 months.” See 533 at 298, 303. Here, however, the trial court did not engage any judicial factfinding resulting in the imposition of a sentence greater than the “[357]-month statutory maximum of the standard range.” See id. at 303. Blakely is inapplicable. And the remaining cases Petitioner cites simply state general principles governing due process challenges to the voluntariness of guilty pleas and are readily distinguishable factually. See Dkt. 22 at 29-30.
In sum, Petitioner has not shown that the state court of appeals' rejection of claim 3 was contrary to, or an unreasonable application of, clearly established federal law or an unreasonable determination of the facts.
EVIDENTIARY HEARING ON CLAIMS 2 AND 3
The decision to grant an evidentiary hearing lies within the discretion of the Court. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). The Court “must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief.” Id. at 474 (citation omitted). “It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing.” Id.
Here, based on the facts in the state court record, Petitioner has not shown that the state court of appeals unreasonably rejected claims 2 and 3. Because the record precludes relief on these claims, an evidentiary hearing is improper.
CERTIFICATE OF APPEALABILITY
The Court also recommends that no certificate of appealability be granted as to claims 2 and 3. A petitioner seeking post-conviction relief under § 2254 may appeal a district court's dismissal of the federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. A certificate of appealability may issue only if a petitioner has made “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). When a district court rejects a constitutional claim on the merits, to obtain a certificate of appealability, the petitioner “must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 474 (2000). Here, because Petitioner has not so shown, a certificate of appealability should be denied on claims 2 and 3.
Because the undersigned has recommended an evidentiary hearing on claim 1, it is premature to make a recommendation about a certificate of appealability on that claim or about petitioner's IFP status for purposes of an appeal.
CONCLUSION
As discussed above, it is recommended that the Petition (Dkt. 1) be denied in part, with the result that claims 2 and 3 be denied and that a certificate of appealability should be denied on the same claims. It is further recommended that an evidentiary hearing be held on claim 1 as described above. If this Report and Recommendation is adopted, the undersigned further recommends:
(1) Petitioner be directed to provide evidence-such as an updated financial affidavit and a declaration from Mr. Fox stating if he was providing his services on a pro bono basis- showing she qualifies for court appointed counsel pursuant to 18 U.S.C. § 3006A;
(2) If Petitioner qualifies for appointed counsel and Mr. Fox intends to withdraw he should be directed to file a motion to withdraw in accordance with the Local Civil Rule 83.2.;
(3) If Petitioner qualifies for appointed counsel and the Court approves Mr. Fox's withdrawal, then the Court should appoint the Federal Public Defender for the Western District of Washington (FPD) to represent Petitioner.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the Parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v.Anchondo, 684 F.3d 844, 848 (9th Cir. 2012). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on April 29, 2022 as noted in the caption.