Delorenze v. Haynes

SHANE A. DELORENZE, Petitioner, v. RON HAYNES, Respondent.

CASE NO. 3:19-CV-05578-RBL-JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

December 26, 2019

REPORT AND RECOMMENDATION

NOTED FOR: JANUARY 17, 2020

Petitioner Shane A. DeLorenze seeks 28 U.S.C. § 2254 habeas relief from his 2015 state court conviction by jury verdict of one-count of second-degree rape. Dkt. 3; Dkt. 7, Exhibit 9. Petitioner was sentenced to a 92-month minimum term. Dkt. 7, Exhibit 9.

Petitioner seeks habeas relief on grounds that the evidence presented at trial was insufficient, the prosecutor committed misconduct, petitioner's Fifth Amendment rights to self-incrimination were violated, and petitioner's trial and appellate counsel were ineffective. Although petitioner points to conflicting evidence at trial, the record reflects that there was constitutionally sufficient evidence to support the elements of second-degree rape, and petitioner has not demonstrated that the prosecutor's statements were unfairly prejudicial. In addition, the state court's adjudication of petitioner's challenge to his Fifth Amendment rights involved a reasonable application of clearly established federal law as nothing in the records suggests that petitioner's waiver of his rights was not voluntary and the defense stipulated to the admission of petitioner's statements at trial. And lastly, petitioner has failed to demonstrate ineffective assistance of his trial or appellate counsel because he has not shown that counsel's assistance was either unreasonable or the result of unsound trial strategy.

Thus, the Court recommends denying grounds 1, 2, 3(a) and (b), 4, 5(a), and 6. The Court recommends granting petitioner's voluntary motion to dismiss (Dkt. 10) and dismissing subpart (b) of ground five without prejudice. The undersigned also recommends denying the issuance of a certificate of appealability.

BACKGROUND

Petitioner raises six grounds for relief: (1) whether the evidence at trial supporting the elements of penetration and lack of consent were constitutionally insufficient; (2) whether the prosecutor committed misconduct in closing arguments by (a) telling the jury to "do its job" and find petitioner guilty and (b) describing counsel's argument as absurd; (3) whether defense counsel provided ineffective assistance at trial by (a) failing to object to the admissibility of an officer's opinion during the policy interview and (b) failing to object to the prosecutor's closing argument; (4) whether the trial court erred by admitting petitioner's statement to police because petitioner was an alcoholic blackout state and was incapable of voluntarily waiving his right to remain silent; (5) (a) whether defense counsel provided ineffective assistance stipulating to the admissibility of petitioner's statement to police, failing to move to suppress the statement, and failing to request a CrR 3.5 hearing and (b) whether petitioner was denied the right to a fair trialbased on the admission of petitioner's audio statement to police; and (6) whether defense counsel provided ineffective assistance by failing to present grounds four and five on appeal. Dkt. 3.

In his original answer, respondent did not address subpart (b) of petitioner's fifth ground for review as to whether petitioner was denied the right to a fair trial based on the admission of petitioner's audio recorded statement to police. Dkts. 6, 7, 8. The Court directed the parties to file supplemental briefing to address subpart (b) to ground five. Dkt. 8. Respondent argues that grounds 1, 2, 3, 4, 5(a), and 6 fail on the merits, and ground 5(b) is unexhausted and procedurally barred. Dkts. 6 (original answer), 8 (supplemental answer).

PETITIONER'S VOLUNTARY MOTION TO DISMISS

Petitioner filed a voluntary motion to dismiss without prejudice subpart (b) of ground five. Dkt. 10. Petitioner requests that the Court rule on the merits of the remaining claims contained in ground five. Dkt. 10. Respondent does not oppose the motion. Dkt. 11.

A petitioner may voluntarily dismiss an action without leave of court before service by the adverse party of an answer or motion for summary judgment. Fed. R. Civ. P. 41(a).

Based on the foregoing, the Court recommends granting petitioner's voluntary motion to dismiss (Dkt. 10) and dismissing subpart (b) of ground five without prejudice.

BASIS FOR CUSTODY AND FACTS

The Washington Court of Appeals summarized the facts in petitioner's case as follows:

On June 20, 2014, Jennifer Ashley had a birthday party at the home she shared with her husband, Eddie Ashley. Numerous individuals attended, including Ryan Jefferies and Jeffries' friend, Delorenze, whom the Ashleys did not know. Throughout the evening, Jennifer and the other attendees quaffed beer, wine, and hard liquor. Delorenze was "always in [Jennifer's] face" and encouraged her to take shots of alcohol. Report of Proceedings (RP) at 305. Jennifer was a "light[ ]weight," meaning she rarely drank alcohol, and she became highly intoxicated. RP at 309. After drinking for many hours, Eddie took her upstairs to the master bedroom, where she vomited. Jennifer went to bed and Eddie returned downstairs to entertain the remaining guests, which included Jeffries and Delorenze.

While Eddie and Jeffries were in the kitchen talking, they suddenly heard a "thump" come from upstairs. RP at 179. They realized that Delorenze was not with them and rushed upstairs, finding Delorenze naked from the waist down on top of Jennifer. Her legs were spread apart and Delorenze was thrusting at the hips into her. Eddie shouted, "What the f***!" prompting Delorenze to fly like a "bat out of hell" from the room. RP at 181. Eddie told Jeffries to leave with Delorenze, which he did after recovering Delorenze's underwear from the bedroom floor.

Eddie approached Jennifer on the bed and yelled, "What the f*** are you doing?" RP at 182. She was unresponsive. Eddie continued trying to rouse her by yelling, but was unsuccessful. He then slapped Jennifer across the face several times, which caused her to wake from her stupor and ask, "What? What?" RP at 182-83. Eddie explained that there had been another man on top of her. Jennifer saw a pair of sandals on the floor, later found belonging to Delorenze, and, after a short conversation with Eddie, Jennifer stated, "I was just raped." RP at 183.

Eddie called 911, and Jennifer was transported to the hospital where samples of her blood and urine were taken. After confronting Delorenze in a parking lot, police officers transported him to a police station where he was interviewed about the incident. Delorenze voluntarily provided a swab sample from his penis shaft and head to police officers for deoxyribonucleic acid (DNA) testing.

Dkt. 17, Exhibit 12 (unpublished opinion) at 2-3 (footnote omitted).

STATE PROCEDURAL HISTORY

Through counsel, petitioner appealed to the Washington Court of Appeals. Dkt. 7, Exhibit 10. On February 14, 2017, the Washington Court of Appeals affirmed petitioner's conviction in an unpublished opinion. Dkt. 7, Exhibit 12. Through counsel, petitioner sought review in the Washington Supreme Court. Dkt. 7, Exhibit 13. The Washington Supreme Court denied review without comment Id. at Exhibit 14. The Washington Court of Appeals issued its mandate on August 23, 2017. Id. at Exhibit 15.

On March 6, 2018, petitioner, proceeding pro se, filed a collateral attack of his sentence - his personal restraint petition ("PRP"). Dkt. 7, Exhibits 16, 17. On September 24,2018, the Washington Court of Appeals rejected petitioner's claims and dismissed petitioner's PRP. Dkt 7, Exhibit 19.

Petitioner moved for discretionary review with the Washington Supreme Court. Dkt. 17, Exhibits 20, 22. On April 4, 2019, the Washington Supreme Court denied the motion through a ruling by the commissioner. Dkt. 7, Exhibit 23. The Washington Court of Appeals issued a certificate of finality on August 14, 2019. Dkt. 7, Exhibit 24.

EVIDENTIARY HEARING

The decision to hold a hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] federal 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." Landrigan, 550 U.S. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, 131 S.Ct. 1388 (2011). A hearing is not required if the allegations would not entitle petitioner to relief under 28 U.S.C. § 2254(d). Landrigan, 550 U.S. at 474. "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.; see also Cullen, 131 S. Ct. 1388 (2011). "[A]n evidentiary hearing is not required on issues that can be resolved by reference to the state court record. See Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998).

Petitioner's habeas claims raise only questions of law and may be resolved by a review of the existing state court record. Therefore, the Court finds it unnecessary to hold an evidentiary hearing.

DISCUSSION

A habeas corpus petition shall not be granted with respect to any claim adjudicated on the merits in the state courts unless the adjudication either: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented to the state courts. 28 U.S.C. § 2254(d). Further, a determination of a factual issue by a state court shall be presumed correct, and the applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Petitioner presents the Court with six...