Tricomo v. Cotton

1

LIA YERA TRICOMO, Petitioner, v. JENEVA COTTON, Respondent.

No. 3:21-CV-5792-DGE-DWC

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

October 31, 2022

Noting Dated: November 18, 2022

REPORT AND RECOMMENDATION

David W. Christel, United States Magistrate Judge

Before the Court is Petitioner Lia Year Tricomo'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 pp. 5, 7-8. After consideration of the record, the Court finds Ground 1 is procedurally barred and the state court's adjudication of Grounds 2 and 3 was not contrary to, nor an unreasonable application of, clearly established federal law. Therefore it is recommended that the Petition be denied, no evidentiary hearing be held, and no certificate of appealability be issued.

I. BACKGROUND

A. Factual Background

Petitioner is challenging a Thurston County Superior Court judgment and sentence arising from one count of murder in the second degree, three counts of assault in the second degree, and one count of taking a motor vehicle without permission. See Dkt. 1. The Court of Appeals for the State Washington (“state court appeals”) summarized the facts supporting of Petitioner's underlying case as follows:

I. BACKGROUND

In late March 2013, Tricomo attempted suicide and was admitted to a hospital. As part of her treatment, her doctor prescribed her Paxil, an antidepressant. At a follow-up medical appointment on April 3, her Paxil prescription was renewed. She saw her therapist the next day, who encouraged her to stay on her antidepressants.

On April 25, Tricomo saw her therapist again who noted,

Discussed and processed her ambivalence about the medication she is on. Looked at what she identifies as the root cause of her anger; She is angry that she is alive. She does not plan to harm herself, and in fact, talked about ways she used to inflict pain on herself. She does not want to do that anymore and does not want to take her life. However, she still in [sic] not happy about being alive. ....

[Tricomo] does not like the way the medication makes her feel even though she knows she feels calmer and happier. She expressed confusion about the experience of being happier. It is uncomfortable and unfamiliar. It seems to also take away her energy for acting out in anger.

Am. PRP & Reply, Ex. 11, at 116.

On April 29, Tricomo brought some of her belongings to the home of her former counselor, John Alkins, to move in with him. Tricomo and Alkins drank vodka together. They had a sexual encounter in his home. During this sexual encounter, Tricomo attempted to tie him up with a rope, but he stated he did not like it, so she untied him. After untying Alkins, Tricomo grabbed a razor blade knife she had hidden in the bedroom, and she slit his throat approximately six times. Alkins walked around his house for several hours trying to stop the bleeding. Tricomo followed him throughout the house to ensure he would not leave. There was a struggle for the razor blade knife at the front door, and Alkins's wrist was cut during this struggle. Alkins then went back upstairs. Tricomo strangled Alkins with an extension cord, killing him.

The next day, Tricomo was arrested, and she confessed to the police. During her interview with the police, Tricomo mentioned the negative effect of her medication. Later, when Tricomo 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. Am. PRP & Reply, Ex. 14, at 146.

II. GUILTY PLEA

The State charged Tricomo by amended information with second degree murder, three counts of second degree assault, and second degree taking a motor vehicle without the owner's permission.^{[ ]} The three counts of second degree assault were based on Tricomo'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. Tricomo pleaded guilty to the amended information.

For the second degree murder count, the parties agreed on a standard range sentence of 257 to 357 months. The plea agreement stated that while the State was going to recommend 357 months on the second degree murder count, the “[d]efense is free to argue for a lesser sentence,” and the agreement recognized that the trial court could impose an exceptional sentence below the standard range. Clerk's Papers (CP) at 30. The State's sentencing memorandum provided, “Pursuant to plea agreement, Defendant may argue for no less than 257 months prison which is the low end of the standard range.” Id. at 128.

During the plea colloquy, when discussing that the State would recommend 357 months, the court addressed Tricomo 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.” Verbatim Report of Proceedings (VRP) (Nov. 6, 2014) at 8. Tricomo confirmed that she understood the parameters of her plea agreement as explained by the trial court.

III. SENTENCING

Before the sentencing hearing, both Tricomo and the State filed sentencing briefs. In her brief, Tricomo asked the court to consider expert Dhyana Fernandez's mitigation report and the reports of Dr. David Dixon and Dr. Delton Young. All three experts discussed the effects that the use and withdrawal from Paxil may have had on Tricomo's ability to form intent at the time of the crime.

Dixon, the defense expert, and Young, the State's expert, reached contradictory conclusions regarding Paxil's effects on Tricomo's mental state. Prior to pleading guilty, Tricomo was evaluated for diminished capacity by Dixon, a psychologist. 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.” CP at 78.

The State's expert, Young, also conducted a forensic psychological evaluation. He disagreed with Dixon about Paxil stating, “[T]here 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 94.

Fernandez wrote a mitigation report for sentencing, which included a section on Paxil. Fernandez cited to several peer reviewed journal articles and articles from web-based sources, but the report contained no analysis. The State objected to Fernandez's report because it did not believe Fernandez was qualified to opine about the effects of Paxil.

At sentencing, the court said it would not consider the section on Paxil in Fernandez's report. 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.” VRP (Jan. 28, 2015) at 39. 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. at 77.

The State asked the court to sentence Tricomo to 357 months and defense counsel asked the court to sentence Tricomo to 257 months. The court imposed the top of the standard range-357 months-for the murder conviction, with the other counts to run concurrently.

IV. APPEAL AND MANDATE

Tricomo 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. State v. Tricomo, No. 47238-4-II, slip op. at 1, 2016 WL 2347041 (Wash.Ct.App. Apr. 26, 2016) (unpublished) http://www.courts.wa.gov/opinions/pdf/47238-4.16.cor.pdf. We affirmed her convictions and sentence. Tricomo, slip op. at 1. The mandate issued on January 5, 2017.

Matter of Tricomo, 13 Wash.App. 2d 223, 228-31 (2020) (footnote omitted).

B. Procedural Background

1. Direct Appeal

Petitioner challenged her judgment and sentence on direct appeal. See Dkt. 15-1, p. 51 (Exhibit 4). The state court of appeals affirmed Petitioner's judgment and sentence. Id. at p. 130 (Exhibit 7). Petitioner sought discretionary review by the state supreme court. See id. at p. 180 (Exhibit 10). On November 2, 2016, the state supreme court denied review without comment. Id. at p. 233 (Exhibit 11). The state court of appeals issued the mandate on January 5, 2017. Id. at p. 235 (Exhibit 12).

2. Personal Restraint Petition

On January 2, 2018, Petitioner, proceeding pro se filed a personal restraint petition (“PRP”) seeking state post-conviction relief. See Dkt. 15-1, p. 238 (Exhibit 13). Petitioner retained counsel, Neil Fox, and, on December 31, 2018, Mr. Fox filed an amended PRP on Petitioner's behalf. See Dkt. 15-2, p. 2 (Exhibit 20). The PRP was referred to a panel of judges at the state court of appeals for determination on the merits. See id. at 376 (Exhibit 26). After supplemental briefing, the state court of appeals denied the PRP on May 12, 2020. See Dkts. 153, p. 2 (Exhibit 31); 15-3, p. 47 (Exhibit 32); 15-1, p. 23 (Exhibit 3). Petitioner sought discretionary review from the state supreme court, which the commissioner of the state supreme court denied on June 4, 2021. See Dkts. 15-3, p. 268 (Exhibit 37); 15-3, p. 350 (Exhibit 28); 153, p. 379 (Exhibit 39), 15-3, p. 397 (Exhibit 40); 15-3, p. 446 (Exhibit 41); 15-3,...