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SUPPLEMENTAL REPORT

AND RECOMMENDATION

PAGE -1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CURT F. HANSFORD,

Petitioner,

v.

ALICE PAYNE,

Respondent.

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CASE NO.: C06-1846-JLR

SUPPLEMENTAL REPORT

AND RECOMMENDATION

INTRODUCTION

Petitioner Curt Hansford is a Washington state prisoner who is currently serving a 281-

month sentence for attempted murder in the second degree and related charges. On April 7, 2006,

the undersigned United States Magistrate Judge issued a Report & Recommendation (“R&R”)

which is currently pending before United States District Judge James L. Robart. (Doc. #16).

After receiving an extension of time, petitioner filed, through a non-attorney named Tarea Lujan,

objections to the R&R. (Doc. #20). Respondent has filed a response to the objections. (Doc.

#21). Because the objections appeared to raise a new argument which had not been previously

addressed by the court, Judge Robart referred the matter to the undersigned for a supplemental

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SUPPLEMENTAL REPORT

AND RECOMMENDATION

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Report and Recommendation. (Doc. #22). Having reviewed the additional pleadings, and the

balance of the record, the court recommends again that the petition be denied with prejudice.

BACKGROUND

The facts of this case were summarized in the original R&R and will not be repeated here.

DISCUSSION

As an initial matter, the court notes that petitioner’s objections were filed by a nonattorney, Tarea Lujan. In his habeas petition, petitioner asserts that Ms. Lujan “has an irrevocable

attorney-in-fact filed in Snohomish County Court.” (Doc. #3 at 14). Apparently, petitioner views

this as the basis for Ms. Lujan filing objections on his behalf. Habeas petitioners, however, are no

different than other litigants, who are not permitted to be represented by non-lawyers. In a lengthy

analysis of this issue, the Ninth Circuit considered whether the right to self-representation set forth

in Faretta v. California, 422 U.S. 806 (1975), implied a corollary right to choose a non-lawyer

as counsel. See United States v. Kelley , 539 F.2d 1199 (9th Cir. 1976). The Ninth Circuit

concluded that allowing non-lawyers to represent others “is at odds with the whole tenor of the

Faretta opinion and runs counter to the competing institutional interest in seeing that justice is

administered fairly and efficiently with the assistance of competent lawyers.” Id. at 1202. See also

Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997) (holding that a non-attorney

may appear pro se on his or her own behalf, but has no authority to appear as an attorney for

someone else). Thus, it appears that Ms. Lujan had no authority to file the objections and they

should be stricken.

Notwithstanding this conclusion, however, it may be in the interest of judicial economy to

address the objections. If the objections were stricken, petitioner could move for an extension of

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 In addition, the court notes that respondent, in her response to petitioner’s objections,

does not argue that Ms. Lujan lacks authority to file pleadings on petitioner’s behalf.

SUPPLEMENTAL REPORT

AND RECOMMENDATION

PAGE -3

time to resubmit them under his own name, and depending on whether the court would grant such

an extension, the objections could come before the court again. Rather than potentially delay

resolution of this matter, the court will proceed to address the objections filed by the non-attorney,

Ms. Lujan.1

Petitioner’s First Objection: Evidentiary Hearing

In his first objection, petitioner argues that he was entitled to an evidentiary hearing on

several of his claims regarding ineffective assistance of counsel. At the outset, the court notes that

petitioner’s list of those claims in his objections does not match his habeas petition. (Compare

Doc. #20 at 3 with Doc. #3 at 69). The court will not address whether petitioner was entitled to

an evidentiary hearing on claims which were not presented in his habeas petition. Cf. United

States v. Birtle, 792 F.2d 846, 848 (9th Cir. 1986) (holding that claims raised for the first time in

a reply brief will not be considered). Rather, the court will address only the following three claims

which were presented in the habeas petition and were the subject of the court’s first R&R:

[A.] [Counsel] knowingly failed to present the lawful and written mandated maxim

he was told to present i.e., the State must face that they have made a mistake. See

PRP in court files.

[B.] The newspaper articles were not a product of careful preparation; [they]

introduced prejudicial and extraneous evidence not supported by the record, and

mirrored the indictment.

[C.] Entered legally erroneous jury instructions.

(Doc. #3 at 7-8).

In habeas cases, an evidentiary hearing is required only if (1) the petitioner has alleged facts

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SUPPLEMENTAL REPORT

AND RECOMMENDATION

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that, if proven, would entitle him to habeas relief, and (2) he did not receive a full and fair

opportunity to develop those facts in the state court. See Williams v. Woodford, 384 F.3d 567,

586 (9th Cir. 2004). Petitioner fails to meet the first of these two prongs, and the court need not

address the second prong. As the court noted in its R&R, the first claim (“A” above) is too vague

to present even a colorable claim for relief. The second claim (“B” above) questions counsel’s

decision to permit jurors to read two newspaper articles. This decision by counsel was a strategic

one which must be accorded deference by a reviewing court. See Strickland v. Washington, 466

U.S. 668, 689 (1984). As the court noted in the R&R, petitioner fails to show that counsel’s

strategy regarding the newspaper articles fell outside “the wide range of reasonable professional

assistance.” Id. The third claim (“C” above) challenged counsel’s acquiescence in erroneous jury

instructions regarding the four options for convicting petitioner. As noted, it appears that

petitioner suffered no prejudice as a result of this error, and in fact, benefitted from counsel’s

overall strategy regarding the jury instructions. (Doc. #16 at 12). Accordingly, because petitioner

has not alleged facts that, if proven, would entitle him to habeas relief, he is not entitled to an

evidentiary hearing on these claims, and his first objection is without merit.

Petitioner’s Second Objection: Jury Misconduct Claim

Petitioner’s second objection pertains to his argument that the jury engaged in misconduct

by considering evidence that was not introduced at trial. (Doc. #20 at 6). Although unclear, it

appears that petitioner is referring to the content of the newspaper articles which his attorney

permitted – indeed, requested – the jury to consider. Respondent argues that this issue is new and

therefore may not be raised for the first time in the objections. (Doc. #21 at 4-5). However, the

court need not decide whether the issue is new, because even if it were properly before the court,

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SUPPLEMENTAL REPORT

AND RECOMMENDATION

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the issue lacks merit.

First, as noted above, petitioner’s counsel introduced the newspaper articles and therefore

it cannot be said that they were not introduced at trial. Second, even if they were somehow

construed to be improperly considered by the jury, it is unlikely that such an error had a

“substantial and injurious effect or influence” in determining the jury’s verdict. See Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993). After all, petitioner was convicted after the jury heard

damaging testimony from at least one eyewitness (the victim) and also from petitioner’s sister.

See State of Washington v. Hansford, Unpublished opinion, 114 Wash. App. 1046 (2002) , 2002

WL 31689407 (Doc. #12, Ex. 2). This testimony likely had a far greater impact on the jury than

the newspaper articles, which described petitioner’s criminal history and identified him as a

suspect in the shooting then under investigation. (Doc. #20 at 8). Accordingly, petitioner’s

second objection is without merit.

Petitioner’s Third Objection: Certificate of Appealability

The heading for petitioner’s final objection states that “if this court adopts the Magistrate’s

Report and Recommendation, Mr. Hansford is nonetheless entitled to a certificate of

appealability.” (Doc. #20 at 12) (emphasis added; upper case letters changed to lower case).

Because the district court has not yet acted on the pending R&R, petitioner’s request for a

certificate of appealability is premature. See Fed. R. App. P. 22(b). Accordingly, petitioner’s

request should be denied without prejudice to its renewal if the court adopts the R&R and denies

the petition.

/ / /

/ / /

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 This proposed Order supercedes the Order previously submitted with the first R&R.

SUPPLEMENTAL REPORT

AND RECOMMENDATION

PAGE -6

CONCLUSION

For the foregoing reasons, petitioner’s objections to the R&R are meritless and do not alter

this court’s previous conclusion that his petition for a writ of habeas corpus should be denied with

prejudice. A proposed Order is attached.2

DATED this 3rd day of July, 2006.

A

Mary Alice Theiler

United States Magistrate Judge

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