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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

JAMES PITNER,

Petitioner,

v.

ALICE PAYNE,

Respondent.

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CASE NO. C05-1646-TSZ-MAT

REPORT AND RECOMMENDATION

INTRODUCTION

Petitioner is a Washington state prisoner who is serving a 102-month sentence for second

degree rape of a child. Petitioner has filed a pro se petition for a writ of habeas corpus pursuant

to 28 U.S.C. § 2254, contending chiefly that his retrial after an initial mistrial violated the Double

Jeopardy Clause of the U.S. Constitution. After considering the petition, respondent’s answer,

petitioner’s response, and the balance of the record, the court recommends that the petition be

denied with prejudice.

BACKGROUND

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

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REPORT AND RECOMMENDATION

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The State charged James Pitner with rape of a child in the second degree for

conduct involving his 13-year-old daughter, D.P. Pitner filed a motion in limine to

prevent the State from admitting evidence that he had been charged and acquitted in

1991 and 1999 with child sex offenses not involving D.P. The State agreed to the

motion, and the trial court granted it.

During the trial, the defense called Candy Ashbrook, a child interview

specialist who interviewed D.P., to testify for the purpose of impeaching D.P.'s

testimony. Following Ashbrook's interview with D.P., she generated an 11-page

report in a question and answer format. During Ashbrook's testimony, she repeatedly

testified from her report by reading directly from it. In cross-examining Ashbrook,

the prosecutor instructed Ashbrook to read from her interview transcript, which

included a statement referencing Pitner's past charges. The prosecutor asked

Ashbrook the following questions:

Q: And going to page six. Okay, counsel elicited from you that you asked the

question, “Has anything else happened with your dad?” 

A: Yes.

Q: And [D.P.'s] response was, “No, it always happened on a Sunday night always

when Carolyn's gone, when she's at work.” Correct?

A: Yes.

Q: And then you asked, “how [l]ong have your dad and Carolyn been together?”

A: Yes.

Q: And her response was, “Four years. Anyway – ” and can you read from there

starting with the “four years” response, what was her response?

A: “Anyway, there was one time when he was giving me a massage, it was one of

the first nights after I moved in there in April on a Sunday. He was giving me a back

rub, and he had my shirt off, and the light was off, so he said that he wouldn't be able

to see me, so he turned the light off, and he asked if I wanted him to rub my legs, and

I said no, and he said why – ” do you want me to continue?

Q: Please.

A: Okay. “Why, are you afraid I'll rape you? Because he said people accused him of

raping – ” 

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REPORT AND RECOMMENDATION

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Pitner immediately objected and requested a mistrial because of the in limine

violation. The court granted the motion.

Pitner then moved to dismiss the case, arguing retrial would violate his right

against double jeopardy because the prosecutor's conduct was intentional. The court

denied the motion, finding that although the prosecutor's conduct was negligent, it

was not intentional. The court also denied his motion that a second trial would

violate his right to a speedy trial. Pitner was retried and convicted as charged. This

appeal followed.

State of Washington v. Pitner , 118 Wash. App. 1073 (2004), 2003 WL 22384092 (footnotes

omitted) (Filed as part of State Court Record, Doc. #11, Ex. 10).

Petitioner appealed to the Washington Court of Appeals. The court affirmed petitioner’s

conviction in an unpublished opinion. (Doc. #11, Ex. 10). Petitioner sought review by the

Washington Supreme Court. The court denied review. (Id., Ex. 14).

On October 4, 2005, petitioner filed the instant petition for a writ of habeas corpus under

28 U.S.C. § 2254. (Doc. #4). Respondent filed an answer, along with the state court record, on

November 23, 2005. (Doc. #9). After receiving one extension of time, petitioner filed a response

to the answer on March 1, 2006. (Doc. #15). The matter is now ready for review.

GROUNDS FOR RELIEF

Petitioner sets forth the following grounds for relief in his habeas petition:

1. Violation of Fifth Amendment Double Jeopardy Clause of the United States

Constitution following mistrial.

2. Violation of Sixth Amendment right to a Speedy Trial.

(Doc. #4 at 6-7).

/ / /

/ / /

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REPORT AND RECOMMENDATION

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DISCUSSION

Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act, a habeas corpus petition may

be granted with respect to any claim adjudicated on the merits in state court only if the state

court’s adjudication is contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court. 28 U.S.C. § 2254(d) (emphasis added).

Under the “contrary to” clause, a federal habeas court may grant the writ only if the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law,

or if the state court decides a case differently than the Supreme Court has on a set of materially

indistinguishable facts. See Williams v. Taylor, 529 U.S. 362 (2000). Under the “unreasonable

application” clause, a federal habeas court may grant the writ only if the state court identifies the

correct governing legal principle from the Supreme Court's decisions but unreasonably applies that

principle to the facts of the prisoner’s case. Id. In addition, a habeas corpus petition may be

granted if the state court decision was based on an unreasonable determination of the facts in light

of the evidence presented. 28 U.S.C. § 2254(d)

In Lockyer v. Andrade, 538 U.S. 63 (2003), the Supreme Court examined the meaning of

the phrase “unreasonable application of law” and corrected an earlier interpretation by the Ninth

Circuit which had equated the term with the phrase “clear error.” The Court explained:

These two standards, however, are not the same. The gloss of clear error

fails to give proper deference to state courts by conflating error (even clear error)

with unreasonableness. It is not enough that a federal habeas court, in its

“independent review of the legal question” is left with a “firm conviction” that the

state court was “erroneous.” . . . [A] federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law erroneously or incorrectly.

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1

 The Double Jeopardy Clause applies to state prosecutions through the due process clause

of the Fourteenth Amendment. See Benton v. Maryland, 395 U.S. 784, 794 (1969), overruled

on other grounds, Payne v. Tennessee, 501 U.S. 808 (1991).

REPORT AND RECOMMENDATION

PAGE -5

Rather, that application must be objectively unreasonable.

538 U.S. at 68-69 (emphasis added; citations omitted). Thus, the Supreme Court has directed

lower federal courts reviewing habeas petitions to be extremely deferential to decisions by state

courts. See Hall v. Director of Corrections, 343 F.3d 976, 986 (9th Cir. 2003) (Tallman, J.,

dissenting). A state court’s decision may be overturned only if the application is “objectively

unreasonable.” 538 U.S. at 69.

1. Petitioner’s First Ground for Relief: Violation of Double Jeopardy Clause

Petitioner first contends that his second trial, following an initial mistrial, violated the

Double Jeopardy Clause of the Constitution. The Double Jeopardy Clause dictates that no person

may be “twice put in jeopardy of life or limb” for the same offense. U.S. Const. Amend. V.1

 The

Clause protects a defendant against multiple punishments or repeated prosecutions for the same

offense. See United States v. Dinitz, 424 U.S. 600, 606 (1976).

If, however, a second trial is the result of a mistrial that was requested by defendant, the

Double Jeopardy Clause does not ordinarily apply. See United States v. Tateo, 377 U.S. 463, 467

(1964). Courts have reasoned that by seeking a mistrial, the defendant has waived his right to a

verdict by that jury and thereby subjects himself to a second trial. Id. But in cases where the

mistrial was the result of purposeful conduct by the prosecutor intended to goad the defendant into

moving for a mistrial, courts have held that the Double Jeopardy Clause is implicated and a

subsequent retrial may be barred. See Oregon v. Kennedy, 456 U.S. 667, 673-76 (1982). The

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2

 Petitioner’s cryptic statement may be referring to the grounds that he raised in a pro se

brief that he filed in his state court appeal. (Doc. #11, Ex. 7). However, the state court did

address these additional grounds in the opinion affirming petitioner’s conviction. (Id., Ex. 10 at

6-7). The court found the grounds meritless. (Id.)

REPORT AND RECOMMENDATION

PAGE -6

focus in such an inquiry is on the prosecutor’s intent in causing the mistrial, which may be inferred

from objective facts. Id. 

Petitioner contends here, as he did in his state court appeal, that the prosecutor

intentionally caused the mistrial at his first trial, and that his second trial was therefore a violation

of the Double Jeopardy Clause. However, as the state court reasonably found, the record does

not support an inference that the prosecutor intended to provoke a mistrial:

First, the State had no reason to induce a mistrial. It agreed with the

defendant's pretrial motion to exclude evidence and references to his prior charges,

and the case had not been going badly or unexpectedly against the State. Second,

there was no indication that a second trial would have been advantageous to the State.

Third, the evidence [leading to the mistrial] came out on cross-examination, rather

than on direct with a witness prepared by the State. Fourth, the circumstances of the

conduct were consistent with the prosecutor's explanation that she had not read far

enough ahead in the witness' transcript to realize that inadmissible evidence was what

the witness would refer to next. . . . Fifth, the State did not seek to admit any other

inadmissible evidence during the trial, and it had avoided references to the excluded

evidence even though some witnesses were aware of it.

(Doc. #11, Ex. 10 at 4).

Petitioner offers nothing to challenge these reasons in favor of finding that the mistrial was

unintentional. His response to respondent’s answer simply contends, without support, that the

state court “refused to provide him with an opportunity to prove” that the mistrial was intentional.2

(Doc. #15 at 2). Therefore, he has not shown the state court decision to be contrary to, nor an

unreasonable application of, clearly established federal law, and his first ground for relief should

be denied.

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REPORT AND RECOMMENDATION

PAGE -7

2. Petitioner’s Second Ground for Relief: Violation of Right to a Speedy Trial

Petitioner’s second ground for relief is based upon his Sixth Amendment right to a speedy

trial. Petitioner appears to contend that the gap between the end of his first trial and the start of

his second trial – a period of approximately 120 days – violated this right. (Doc. #4 at 7).

Respondent argues in response that petitioner failed to present this claim as a constitutional

claim to the Washington Supreme Court and that the claim is now procedurally barred. (Doc. #9

at 6-8). As a result, respondent asserts that the claim is not cognizable on habeas review.

In order to present a claim to a federal court for review in a habeas corpus petition, a

petitioner must first have presented that claim to the state court. See 28 U.S.C. § 2254(b)(1).

This “exhaustion requirement” has long been recognized as “one of the pillars of federal habeas

corpus jurisprudence.” Calderon v. United States Dist. Ct. (Taylor), 134 F.3d 981, 984 (9th Cir.,

1998) (citations omitted). Underlying the exhaustion requirement is the principle that, as a matter

of comity, state courts must be afforded “the first opportunity to remedy a constitutional

violation.” Sweet v. Cupp, 640 F.2d 233, 236 (9th Cir. 1981).

In addition, a petitioner must not only present the state court with the first opportunity to

remedy a constitutional violation, but a petitioner must also afford the state courts a fair

opportunity. Picard v. Connor, 404 U.S. 270 (1971); Anderson v. Harless, 459 U.S. 4 (1982).

It is not enough that all the facts necessary to support the federal claim were before the state

courts or that a somewhat similar state law claim was made. Harless, 459 U.S. at 6. “[A] claim

for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as

well as a statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S.

152, 162-63 (1996).

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REPORT AND RECOMMENDATION

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Finally, a petitioner must raise in the state court all claims that can be raised there, even

if the state court’s review of such claims is purely discretionary. See O’Sullivan v. Boerkel, 526

U.S. 838, 841-47 (1999). In other words, a petitioner must invoke one complete round of a

state’s established appellate review process, including discretionary review in a state court of last

resort, before presenting their claims to a federal court in a habeas petition. Id. at 842-44. Thus,

in Washington state, a petitioner must seek discretionary review of a claim by the Washington

Supreme Court in order to properly exhaust the claim and later present it in federal court for

habeas review.

After reviewing the state court record, the court finds that petitioner did not present his

speedy trial claim as a federal claim when he filed his petition for review with the Washington

Supreme Court. (Doc. #11, #x. 13 at 12). In the petition for review, petitioner merely argued that

the delay violated his rights under state rule of criminal procedure CrR 3.3. (Id.) Consequently,

petitioner failed to properly exhaust this claim. In addition, because more than one year has

passed since his conviction became final, petitioner is now procedurally barred by state statute

from raising this claim in state court. See RCW 10.73.090.

When, as here, a petitioner has procedurally defaulted on a claim in state court, the

petitioner “may excuse the default and obtain federal review of his constitutional claims only by

showing cause and prejudice, or by demonstrating that the failure to consider the claims will result

in a ‘fundamental miscarriage of justice.’” See Noltie v. Peterson, 9 F.3d 802, 806 (9th Cir. 1993)

(citing Coleman v. Thompson, 501 U.S. 722 (1991)). Petitioner has failed to show, or even argue,

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3

 In fact, it appears that petitioner may have abandoned his second ground for relief. In

his response to respondent’s answer, petitioner does not mention the speedy trial claim and

affirmatively states: “This habeas case involves one issue: whether retrial of [petitioner] violated

[the] Double Jeopardy Clause.” (Doc. #15 at 1).

REPORT AND RECOMMENDATION

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that “cause and prejudice” exist excusing his default on the unexhausted claim.3 Nor has he shown

that failure to consider the claims will result in a miscarriage of justice. Accordingly, petitioner’s

second ground for relief is barred from federal habeas review and should be denied.

CONCLUSION

For the foregoing reasons, petitioner’s petition for a writ of habeas corpus should be

denied with prejudice. A proposed Order reflecting this recommendation is attached.

DATED this 29th day of March , 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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