Eggum v. Holbrook

1

MARLOW TODD EGGUM, Petitioner, v. DONALD HOLBROOK, Respondent.

No. C14-1328-RAJ-MAT

United States District Court, W.D. Washington, Seattle

March 6, 2020

REPORT AND RECOMMENDATION

Mary Alice Theiler United States Magistrate Judge

I. INTRODUCTION

Petitioner a state prisoner who is currently confined at the Washington State Penitentiary in Walla Walla, Washington, seeks relief under 28 U.S.C. § 2254 from a 2011 Whatcom County Superior Court judgment and sentence. Although petitioner initiated this action pro se, he is now represented by the Office of the Federal Public Defender.

Respondent has filed an answer (Dkt. 133) to petitioner's second amended habeas petition (“SAP”) (Dkt. 125) and submitted relevant portions of the state court record. Petitioner has filed a reply in support of his SAP. (Dkt 136.) Petitioner requests oral argument, an evidentiary hearing, and accelerated consideration. (See id.) Petitioner also filed a motion to expand the record. (Dkt. 126.) After reviewing the parties' submissions, the Court ordered supplemental briefs, which the parties supplied. (Dkts. 139 (order), 143 (respondent's brief), 144 (petitioner's brief).) Having considered the parties' submissions, the balance of the record, and the governing law, the Court recommends that petitioner's habeas petition be GRANTED as to his First Amendment challenge to Washington's intimidating a public servant statute and DENIED as to his remaining claims, that petitioner's request for an evidentiary hearing be DENIED, that petitioner's motion to expand the record be GRANTED in part, and that a certificate of appealability be GRANTED in part.^[1]

II. FACTUAL AND PROCEDURAL HISTORY

The Washington State Court of Appeals (“Court of Appeals”), on direct appeal, summarized the facts relevant to petitioner's conviction as follows:

Between 2007 and 2009, Eggum was serving a sentence imposed following his guilty plea to two counts of felony stalking and one count of felony harassment. The victim of these offenses was Eggum's former spouse, Janice Gray. In 2009, before his scheduled release date, the State filed a new criminal complaint against Eggum based on letters he wrote while in prison. In some cases, the recipient of Eggum's letters provided the letters to law enforcement. The charges were also based on letters Eggum wrote to his mother that were copied and sent to the Whatcom County Sheriff's Office by the Department of Corrections (DOC).

Following a jury trial, Eggum was convicted of five charges based on his letters: two counts of intimidating a public servant (counts I and III), two counts of felony harassment (counts IV and V), and one count of felony stalking (count VI).^[2]The new offenses involved three victims: Gray; Eric Richey, the prosecutor who handled two prior prosecutions of Eggum; and Community Correction Officer (CCO) Melissa Hallmark.

Eggum's [intimidating a public servant] conviction involving the CCO was based on a letter he wrote to her in 2009 after she denied approval of his proposed release address. Eggum accused Hallmark of denying approval in order to thwart his plan to sell his [pornographic] movies containing images of Gray upon release. He threatened to file suit against Hallmark for her unlawful actions and also to release 1,000 films in Gray's hometown in Newfoundland, Canada in retaliation for her decision. He further stated, “For every month my release date is delayed past my ERD, I am going to release an additional thousand free promotional movies into the St. Johns [Newfoundland] market.” Eggum also told Hallmark that if his elderly mother died while his release was delayed because of her actions, “I'[ll] hold you personally responsible.” Exhibit (Ex.) 25.

A separate June 2009 letter forms the basis for Eggum's conviction for intimidating a public servant involving the prosecutor. In this letter, Eggum told Richey he should be less concerned about his business plans upon release and more concerned about the fact that if he remains in prison, he will continue to sell pornographic videos to fellow inmates on McNeil Island, many of whom are sex offenders. He wrote, “And here you are filing new charges against me, keeping me in prison where I tell everyone my story. Doesn't make sense.” Ex. 26. He told Richey he believed the new charge was baseless and offered to relocate to Snohomish County, stay out of the town where Gray lives, and withdraw a bar complaint filed against Richey in exchange for dismissal of the charge.

(Dkt. 125-8 at 93-94, 102-103.) With respect to petitioner's sentence, the Court of Appeals explained:

The State alleged and the jury found an aggravating factor with respect to each count. As to the three counts involving the CCO and the prosecutor, the jury found that Eggum committed the crimes against a public official or court officer in retaliation for performance of his or her duties to the criminal justice system. See RCW 9.94A.535(3)(x). As to the two crimes involving Gray, the jury found the crimes were part of an ongoing pattern of psychological abuse manifested by multiple incidents over a prolonged period of time. See RCW 9.94A.535(2)(h)(i).

Based on Eggum's four prior felony convictions, the top of the standard range was 60 months on the stalking count and 57 months on all other counts. The trial court found that each aggravating factor was a substantial and compelling reason to impose an exceptional sentence and sentenced Eggum to a total term of 240 months' imprisonment.

(Id. at 94-95.)

Petitioner filed a direct appeal through counsel and a pro se statement of additional grounds.^[3](Dkt. 125-5 at 68-122; Dkt. 125-6.) The Court of Appeals affirmed in an unpublished opinion and denied petitioner's pro se request for reconsideration. (Dkt. 125-8 at 93-109, 12141, 143.) Petitioner, proceeding pro se, unsuccessfully sought discretionary review by the Washington Supreme Court. (See id. at 144-64, 167-76; Dkt. 125-9 at 1-37, 44-45, 86-102.) Petitioner subsequently filed numerous pro se personal restraint petitions in the Court of Appeals and Washington Supreme Court.^[4] (See Dkt. 133 at 11-16.)

Petitioner filed the instant federal habeas petition pro se in August 2014. (See Dkt. 1.) After it became apparent petitioner had personal restraint petitions that were still pending in the state courts, the Court granted respondent's motion to stay and abey this action. (Dkt. 42; see also Dkt. 63.) Petitioner subsequently moved for the appointment of counsel. (Dkt. 82.) On May 17, 2017, the Court temporarily lifted the stay, granted petitioner's motion, and appointed the Office of the Federal Public Defender. (Dkt. 92; see also Dkts. 83-91.) With leave of the Court, petitioner filed an amended habeas petition. (Dkts. 99-100.) Petitioner also filed a motion to stay and abey this action so that he could file one last personal restraint petition in the state courts with the assistance of counsel. (Dkt. 101.) On August 10, 2017, the Court granted petitioner's motion and stayed this action. (Dkt. 103.) Petitioner did not prevail on the personal restraint petition, and on January 2, 2019, the parties filed a joint motion to lift the stay. (Dkt. 108.)

On April 17, 2019, the Court ordered petitioner to file a second amended habeas petition. (Dkt. 122.) On May 22, 2019, petitioner filed his SAP, supporting evidence, and a motion to expand the record. (Dkts. 125, 126.) Respondent opposed the motion to expand the record, and petitioner filed a reply. (Dkts. 129, 130.)

On June 12, 2019, respondent filed an answer to the SAP and relevant excerpts from the state court record. (Dkts. 133, 134.) On June 26, 2019, petitioner filed his reply in support of his SAP. (Dkt. 136.) On August 30, 2019, the Court directed the parties to file supplemental briefs. (Dkt. 139.) After being granted an extension of time, the parties filed their supplemental briefs on October 4, 2019. (Dkts. 143, 144.) On December 31, 2019, petitioner filed a notice to supplemental authority, arguing that a new Court of Appeals decision was relevant to his claims. (Dkt. 145.) At the direction of the Court (Dkt. 146), respondent filed a brief addressing this new authority (Dkt. 147). Both parties subsequently requested leave to file additional briefs (Dkts. 148, 149), which the Court denied (Dkt. 150).

III. GROUNDS FOR RELIEF

Petitioner's original pro se petition raised 26 grounds for relief. (Dkt. 13.) His SAP waives some of the original grounds, consolidates others, and presents them in a different order. (See Dkt. 125.) The Court will refer to the grounds for relief in the order they are presented in the SAP. Those claims, and the original grounds for relief to which petitioner claims they relate,^[5]may be summarized as follows:

SAP Ground 1: The First Amendment required the State to prove a “true threat” of bodily harm or death to convict petitioner of intimidating a public servant. (Original Grounds 11, 16.) (Dkt. 125 at 25-39.)

SAP Ground 2: Petitioner received ineffective assistance of appellate counsel when his attorney failed to raise the meritorious “true threat” argument. (Original Ground 26.) (Dkt. 125 at 39-47.)

SAP Ground 3: Insufficient evidence exists to uphold the intimidating a public servant convictions because there is no evidence petitioner made a “true threat” of bodily harm or death. (Dkt. 125 at 48-51.)

SAP Ground 4: Numerous trial court evidentiary rulings prevented petitioner from presenting his defense, in violation of due process. (Original Grounds 5, 78, 10.) (Dkt 125 at 51-54.)

SAP Ground 5: Petitioner's prosecution for threatening to do something he had a legal right to do-distribute pornographic videos of Ms. Gray-violated his right to due process. (Original Ground 9.) (Dkt. 125 at 54-55.)

SAP Ground

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