Womackv.Holbrook

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMAJun 11, 2019
CASE NO. C17-5822 BHS (W.D. Wash. Jun. 11, 2019)

CASE NO. C17-5822 BHS

06-11-2019

WILLIAM WOMACK, Petitioner, v. DONALD R. HOLBROOK, Respondent.


ORDER ADOPTING REPORT AND RECOMMENDATIONS

This matter comes before the Court on the Report and Recommendations ("R&Rs") of the Honorable Theresa L. Fricke, United States Magistrate Judge, Dkts. 35, 36, and Petitioner William Womack's ("Womack") objections to the R&Rs, Dkt. 39.

On February 1, 2019, Judge Fricke issued the R&Rs recommending that the Court deny Womack's motion to supplement the record, Dkt. 35, and deny Womack's petition for procedural and substantive reasons, Dkt. 36. On April 4, 2019, Womack filed objections. Dkt. 39.

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

A. Exhaustion

The R&R addressing Womack's petition concludes that seven of Womack's eleven grounds for relief are unexhausted and procedurally barred. Dkt. 36 at 5-6. Womack objects arguing that he properly raised these claims before the Washington Supreme Court. Dkt. 39 at 2-3. The Court agrees with the R&R that at most Womack provided a summary reference of these claims, which does not constitute a full and fair presentation for review. Insyxiengmay v. Morgan, 403 F.3d 657, 667-68 (9th Cir. 2005). Therefore, the Court adopts the R&R on this issue.

B. Merits

The R&R recommends that the Court deny most of Womack's remaining claims on the merits and that the Court find that certain aspects of some of these claims are unexhausted and procedurally barred. Dkt. 36 at 14-29. Although Womack provides voluminous objections, he fails to establish any error in the R&R. Womack does identify one inconsistency in the R&R regarding Womack's claim for ineffective appellate counsel. The R&R rejects Womack's claim that counsel was deficient for failing to raise Womack's additional grounds for relief before the Washington Supreme Court because Womack raised the issues himself. Dkt. 36 at 28-29. This is inconsistent with a finding that the additional grounds are unexhausted because they were not properly raised. Womack, however, fails to establish that the Washington Supreme Court's rejection of this ineffective assistance claim was contrary to law because the court stated that his additional grounds for relief were "waived, unreviewable, or meritless." Dkt. 11, Exh. 17 at 4-5. Thus, Womack has failed to show deficient performance in failing to raise such meritless claims.

C. Supplement the Record

Although Womack objects to the R&R denying his motion to supplement the record, he fails to provide any relevant argument identifying an error in the R&R.

Therefore, the Court having considered the R&Rs, Womack's objections, and the remaining record, does hereby find and order as follows:

(1) The R&Rs are ADOPTED;

(2) Womack's Petition is DENIED;

(3) A Certificate of appealability is DENIED; and

(4) The Clerk shall enter a JUDGMENT and close the case.

Dated this 11th day of June, 2019.

/s/_________


BENJAMIN H. SETTLE


United States District Judge