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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

CLIFFORD GOODWIN,

Petitioner,

v.

DOUG WADDINGTON,

Respondent.

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CASE NO.: C05-1723-JCC

REPORT AND RECOMMENDATION

I

Petitioner Clifford Goodwin proceeds pro se in this 28 U.S.C. § 2254 action. He

challenges his 2002 conviction of rape in the first degree with a deadly weapon enhancement.

(Dkt. 5.) Respondent argues that petitioner failed to properly exhaust a number of his claims and

that his exhausted claims lack merit. (Dkt. 14.) Petitioner submitted a reply to respondent’s

answer. (Dkt. 17.) Having reviewed the record in its entirety, including the state court record,

the Court recommends that the petition be denied and this matter dismissed with prejudice.

II

The Washington Court of Appeals summarized the facts surrounding petitioner’s

conviction and sentence as follows:

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REPORT AND RECOMMENDATION

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In 1998, S.F. was brutally attacked and raped. During the subsequent

investigation, police officers recovered certain evidence, including S.F.’s semenstained underpants, a portion of which, later identified as “GRF 2,” was submitted to

the Washington State Patrol crime laboratory for deoxyribonucleic acid (DNA)

testing. The crime went unsolved and without a primary suspect until 2001, when

DNA extracted from a blood sample taken from Goodwin matched the DNA profile

of the rapist. Goodwin was charged with first degree rape.

Prior to the scheduled trial date, Goodwin’s trial counsel requested a

continuance so that a lab in California, named Technical Associates, Inc., could

analyze the DNA testing performed at the Washington State Patrol crime lab. The

trial court found good cause for the continuance, noting, “obviously it would be akin

to malpractice on the part of any defense attorney to not investigate the DNA in the

way [defense counsel] had indicated that she wishes to do so.” Trial was rescheduled

for March 1, 2002.

Several additional trial continuances were thereafter granted so that the

defense DNA expert could complete its review of the procedures employed and

documentation prepared by the Washington State Patrol crime lab. On each occasion,

the continuance was granted over the personal objection of Goodwin.

On March 29, 2002, Goodwin’s trial counsel moved for another continuance

to allow for independent DNA testing by Technical Associates, Inc. The motion was

granted, once again over Goodwin’s personal objection, and trial was eventually reset

for June 24, 2002. Meanwhile, a stipulated order was entered on April 25, 2002 that

requested specific items be released to Technical Associates Inc., for examination and

testing:

ITEM NUMBER DESCRIPTION

GRF 1 A piece of fabric from a stain off a shirt

(part of item KJZ-13) reported used as a

secondary reference same for [S.F.].

GRF 2 A cutting removed from a pair of

underpants (part of item KJZ-7) where

spermatozoa were previously identified.

Saliva sample of defendant Clifford

Goodwin obtained from the defendant at

the Snohomish County jail by Detective

Steve Rider, Lynnwood Police

Department.

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REPORT AND RECOMMENDATION

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On June 24, Goodwin moved to dismiss the case pursuant to CrR 8.3(b).

Goodwin asserted that when Technical Associates, Inc., opened the sealed envelope

received from the Washington State Patrol crime laboratory it contained a note

indicating the entire sample had been consumed by the crime lab during initial testing.

Noting his trial date had been continued numerous times over his personal objection,

Goodwin argued the State mismanaged the case by failing to notify him that there was

no DNA material from Item GRF 2 available for retesting. The trial court denied the

motion for dismissal. At the jury trial that followed, Goodwin was found guilty as

charged. This appeal followed.

(Dkt. 16, Ex. 3 at 1-3).

Petitioner appealed to the Washington Court of Appeals. Respondent asserts its inability

to locate petitioner’s appellate brief. However, respondent notes that only petitioner’s first claim

in this petition was contained in his petition for review on direct appeal and, therefore, that any

additional claims were not properly exhausted through presentation to the Washington Supreme

Court.

Petitioner also filed a statement of additional grounds for review in the Washington Court

of Appeals:

Additional Ground 1

Ineffective assistance of counsel/violation due process, defense counsel stated she

didn’t get a hard copy of the DNA independent testing because she would have been

required to pass that on to the state. I did request to see the results. I believe

independent testing never took place however the notes that were sent to independent

lab was duplicated to make authentic. Retesting never done prior to trial. Defense

counsel stated it was a matter of her trial strategy.

Additional Ground 2

Ineffective assistance of counsel/defense counsel took part in delaying trial when sent

independent lab the notes from state testing to analyze the DNA testing done being

uncertain if their should be a retest of the evidence. Defense counsel quoted, “I don’t

want to ask for that without having any basis.” Defense counsel had no knowledge

on how to handle the case.

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(Id., Ex. 2.) The Washington Court of Appeals affirmed petitioner’s conviction and sentence.

(Id., Ex. 3.)

Petitioner moved for reconsideration, presenting the following ground for review:

APPELLANT’S RIGHT TO PREPARE A DEFENSE FOR A FAIR TRIAL,

GUARANTEED BY WASHINGTON’S DUE PROCESS CLAUSE, ART. 1 § 3,

AND THE 14TH AMENDMENT TO THE U.S. CONSTITUTION, WAS

VIOLATED WHEN THE COURT OF APPEALS HELD THE TRIAL COURT DID

NOT ABUSE ITS DISCRETION IN DENYING THE CrR 8.3 (b) MOTION TO

DISMISS KNOWING THE STATE BREACHED A PRE-TRIAL STIPULATION

AND COURT ORDER FOR DISCOVERY, RESULTING IN EGREGIOUS

MISMANAGEMENT OF EXCULPATORY EVIDENCE, THUS,

PREJUDICIALLY CAUSING APPELLANT RIGHT TO A SPEEDY TRIAL TO

BE VIOLATED.

(Id., Ex. 4 (supporting citations omitted.)) The Washington Court of Appeals denied his motion.

(Id., Ex. 5.)

Petitioner petitioned for review with the Washington Supreme Court, raising the following

grounds for review:

Petitioner’s rights to prepare a defense for a fair trial, guaranteed by Washington’s

due process clause, Art I § 3, and the 14th Amendment to the U.S. Constitution, was

violated when the Court of Appeals held the Trial Court did not abuse its discretion

when denying the CrR 8.3(b) motion to dismiss contrary to well established law

knowing the State breached a pre-trial stipulation and court order resulting in

egregious mismanagement of exculpatory evidence intending to prejudicially cause

Petitioner’s right to a speedy trial to be violated[.]

(Id., Ex. 6.) The Washington Supreme Court denied the petition. ( Id., Ex. 7.) On January 16,

2004, the Washington Court of Appeals issued its mandate. (Id., Ex. 8.)

Petitioner filed a personal restraint petition on July 9, 2004, raising the following grounds

for relief:

Petitioner was denied his Sixth Amendment Constitutional Right to Effective

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Assistance of Counsel when Defense counsel failed to introduce evidence to support

her trial strategy.

. . . 

The petitioner’s 5th, 6th, and 14th Amendment constitutional right to Due Process

was violated when the State withheld exculpatory evidence.

. . . 

Petitioner also asserts that the cumulative effect of these errors also affected the

outcome of the trial and therefore denied his right to a fair trial thus, his conviction

and sentence is unconstitutional and relief should be granted in part D of this petition.

(Id., Ex. 9.) The Washington Court of Appeals denied the petition. (Id., Ex. 10.)

In a petition for review, petitioner raised the following grounds:

A. The petitioner was denied his Sixth Amendment Constitutional Right to

effective assistance of counsel when counsel failed to introduce evidence to

support her trial strategy.

B. The petitioner’s Fifth, Sixth, and Fourteenth Amendment Constitutional right

to Due Process was violated when the State Withheld exculpatory evidence.

(Id., Ex. 11.) The Washington Supreme Court denied review. ( Id., Ex. 12.) The Washington

Court of Appeals issued a certificate of finality on March 16, 2005. (Id., Ex. 13.)

Petitioner filed a second personal restraint petition directly in the Washington Supreme

Court, raising the following grounds for review:

GROUND ONE:

Petitioner’s fifth amendment rights, as applied to the states through the

fourteenth amendment, to remain silent at trial, to be convicted solely on the basis of

evidence adduced at trial, and to due process of law were violated when the state used

Det. Rider, in violation of ER 615, to comment on Mr. Goodwin’s in-court behavior,

and then relied on that “testimony” during closing argument.

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1

 Respondent construed petitioner’s habeas petition to contain additional, expanded

grounds for review. (See Dkt. 1 and Dkt. 14 at 7-8.) However, in his reply, petitioner clarified

that his grounds for review are limited to those delineated above. (See Dkt. 17.)

REPORT AND RECOMMENDATION

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GROUND TWO:

Petitioner’s attorney rendered ineffective assistance of counsel, in violation of

the sixth amendment, when she failed to object to the state’s use of Detective Rider’s

presence in the courtroom to violate Mr. Goodwin’s fifth amendment rights as stated

above.

(Id., Ex. 14.) The Washington Supreme Court dismissed the petition. ( Id., Ex. 15.) The

Washington Supreme Court subsequently denied petitioner’s motion to modify and issued its

certificate of finality on June 8, 2005. (Id., Exs. 16-18.)

III

Petitioner now raises the following grounds for habeas relief: 

GROUND ONE: Due process violation, Gross Governmental Mismanagement in

handling and testing the DNA evidence which breached a stipulated court order and

caused numerous trial continuances over defendant’s objections violating his right to

a speedy trial.

GROUND TWO: Petitioner’s Sixth Amendment right to effective assistance of

counsel was violated when defense counsel failed to independently test all DNA

evidence.

GROUND THREE: Conviction obtained by the unconstitutional failure of the state

to disclose all evidence exculpatory to the defendant.

GROUND FOUR: Prosecutorial misconduct deprived defendant of his right to a fair

trial; defense counsel was ineffective for failing to object.

(Dkt. 17.)1

 The Court finds no basis for an evidentiary hearing. For the reasons described below,

the Court concludes that petitioner’s claims lack merit.

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REPORT AND RECOMMENDATION

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Exhaustion of State Remedies

“An application for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court shall not be granted unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(1)(A). To

exhaust state remedies, a petitioner must present each of his claims to the state’s highest court.

O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). A petitioner must “alert the state courts to

the fact that he was asserting a claim under the United States Constitution.” Hiivala v. Wood, 195

F.3d 1098, 1106 (9th Cir. 1999) (citing Duncan v. Henry, 513 U.S. 364, 365-66 (1995)). “The

mere similarity between a claim of state and federal error is insufficient to establish exhaustion.”

Id. (citing Duncan, 513 U.S. at 366). “Moreover, general appeals to broad constitutional

principles, such as due process, equal protection, and the right to a fair trial, are insufficient to

establish exhaustion.” Id. (citing Gray v. Netherland, 518 U.S. 152, 162-63 (1996)).

Pursuant to RCW 10.73.090, no petition or motion for collateral attack on a judgment and

sentence in a criminal case may be filed more than a year after the judgment becomes final.

Additionally, if the state court expressly declined to consider the merits of a ground based on an

independent and adequate state procedural rule, or if an unexhausted ground would now be barred

from consideration by the state court based on such a rule, a petitioner must demonstrate a

fundamental miscarriage of justice, or cause, i.e. some external objective factor that prevented

compliance with the procedural rule, and prejudice, i.e. that the claim has merit. See Coleman v.

Thompson, 501 U.S. 722, 735 n.1, 749-50 (1991); Harris v. Reed, 489 U.S. 255, 263 (1989).

Respondent argues that petitioner failed to exhaust the “speedy trial” aspect of his first

ground for relief and the entirety of his fourth ground for relief, and that both claims are now

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2

 Respondent asserts that this claim was presented as a federal constitutional claim in the

Washington Court of Appeals, but not the Washington Supreme Court. However, the

undersigned finds no material difference between these two petitions warranting such a conclusion.

(See Dkt. 16, Exs. 4 & 6.)

REPORT AND RECOMMENDATION

PAGE -8

procedurally barred. Petitioner asserts that he properly exhausted all of his claims.

It is questionable whether petitioner presented his speedy trial claim as a federal

constitutional violation in either his motion for reconsideration to the Washington Court of

Appeals or his petition for review in the Washington Supreme Court. (Dkt. 16, Exs. 4 & 6.) 2

While expressly casting the evidence mismanagement aspect of this ground for relief in both

federal and state terms, petitioner points solely to state law in addressing the alleged speedy trial

violation. (Id.) However, because petitioner alleges evidence mismanagement resulted in the

speedy trial violation, the Court considers these intertwined claims exhausted and appropriately

addressed as a single claim on the merits.

Respondent does not dispute that petitioner raised his fourth ground for relief before the

Washington Supreme Court in his second personal restraint petition. ( Id., Ex. 14.) Instead,

respondent argues that, in first raising the argument in the supreme court, petitioner deprived the

Washington Court of Appeals the opportunity to rule on the claim. However, the Court also finds

that petitioner properly exhausted his fourth ground for relief.

Washington Rules of Appellate Procedure confer on the Washington Supreme Court and

Washington Court of Appeals original concurrent jurisdiction in personal restraint proceedings in

which the death penalty has not been decreed. RAP 16.3(c). While the supreme court ordinarily

exercises its jurisdiction by transferring the petition to the court of appeals, see RAP 16.3(c), in

this case, the supreme court decided to rule on the petition. (Dkt. 16, Ex.15.) Accordingly,

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because Washington State’s highest court considered the merits of this claim, it was properly

exhausted and is appropriate for this Court’s review. See Ylst v. Nunnemaker, 501 U.S. 797, 801

(1991) (“If the last state court to be presented with a particular federal claim reaches the merits,

it removes any bar to federal-court review that might otherwise have been available.”); Casey v.

Moore, 386 F.3d 896, 916 n.18 (9th Cir. 2004) (“Of course, a claim is exhausted if the State’s

highest court expressly addresses the claim, whether or not it was fairly presented.”) (citing

Castille v. Peoples, 489 U.S. 346, 351 (1989)).

Merit of Petitioner’s Claims

This Court’s review of the merits of petitioner’s claims is governed by 28 U.S.C. §

2254(d)(1). Under that standard, the Court cannot grant a writ of habeas corpus unless a

petitioner demonstrates that he is in custody in violation of federal law and that the highest state

court decision rejecting his grounds was either “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(a) and (d)(1). The Supreme Court holdings at the time of the state

court decision will provide the “definitive source of clearly established federal law[.]” Van Tran

v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000), overruled in part on other grounds by Lockyer

v. Andrade, 538 U.S. 63 (2003). A state-court decision is contrary to clearly established

precedent if it “‘applies a rule that contradicts the governing law set forth in’” a Supreme Court

decision, or “‘confronts a set of facts that are materially indistinguishable’” from such a decision

and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting

Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).

/ / /

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3

 Petitioner’s third ground for relief asserts generally an “unconstitutional” failure to

disclose exculpatory evidence. However, petitioner clarifies in his reply that this ground for relief

is associated with what respondent construed as separate alleged due process violations. (See Dkt.

17 at 4 and Dkt. 14 at 7.) Also, both this ground and petitioner’s first ground for relief concern

an alleged insufficient amount of evidence for testing. (See Dkt. 1 at 5A and 6.) Accordingly, like

respondent, the Court construes these grounds for relief as both asserting due process violations

associated with the State’s alleged mishandling of the evidence.

REPORT AND RECOMMENDATION

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A. Evidence Mishandling

Petitioner’s first and third grounds for relief raise due process violations stemming from

the State’s alleged mishandling of the evidence, and a resulting delay in petitioner’s trial. 3

Respondent argues that petitioner fails to show any prejudice resulting from the alleged

mishandling of the evidence.

On direct appeal, the Washington Court of Appeals disagreed with petitioner’s contention

that the State’s failure to notify him regarding insufficient testing material constituted

governmental mismanagement:

Our review of the record indicates that the State’s actions were not so

egregious as to warrant dismissal of the rape charge against Goodwin under

CrR8.3(b). While it is true, as Goodwin argues, that actions of the employees of the

crime lab are considered actions of the State, State v. Woods, 143 Wn.2d 561, 583,

23 P.3d 1046 (2001), there is no showing that those actions with respect to handling

of Item GRF 2 were unreasonable. Goodwin has not alleged, must less established,

that the State violated any court-ordered obligations or rules of discovery. Nor is

there anything to indicate that the State made assurances regarding the possible

retesting of GRF 2. As the State points out, any delay resulting from the fact that

GRF 2 could not be retested by Technical Associates, Inc., cannot fairly be attributed

solely to the State. If there was any lack of diligence, it was shared equally by

Goodwin and the State. Goodwin could have inquired if there was sufficient DNA

material from GRF 2 to be retested long before March 29, but didn’t. Moreover, it

appears Goodwin initially refused to provide a sample of his saliva for DNA testing

purposes as specifically ordered by the trial court on April 25. The State complied

with Goodwin’s request as best it could. Upon learning that GRF 2 no longer

contained a viable DNA sample, the State immediately sent the remaining portion of

S.F.’s underpants with approximately half of the original semen stain still intact to

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Technical Associates Inc., for testing. Therefore, the State’s actions did not amount

to misconduct.

Even assuming that the State’s actions constituted mismanagement, dismissal

would not be appropriate. Goodwin, citing State v. Michielli, 132 Wn.2d 229, 937

P.2d 587 (1997), argues that the State’s actions might have forced him into waiving

his speedy trial rights. Michielli, however, is a “Hobson’s Choice” case, inapplicable

here. Unlike the situation in Michielli, there is no showing that Goodwin was unfairly

or impermissibly prejudiced. No new facts were interjected in to the proceeding as

a result of the delay in obtaining Technical Associates Inc.’s DNA test results. [We

note that Technical Associates Inc., was able to conduct an independent DNA test

using the remaining portion of the stain on S.F.’s underpants and its results matched

those reached by the Washington State Patrol Crime laboratory.] The record shows

that Goodwin received, by all accounts, a fair trial. Under the circumstances we find

no manifest abuse of discretion[.]

(Dkt. 16, Ex. 3 at 4-5 (internal footnote included in text.))

The court also addressed petitioner’s claim that the state withheld exculpatory evidence

in addressing his first personal restraint petition:

Goodwin next contends that his constitutional rights were violated when the

State withheld exculpatory evidence. Due process requires that criminal defendants

be given a meaningful opportunity to present a complete defense. To comport with

due process, the prosecutor has a duty to preserve material exculpatory evidence for

use by the defense. However, there is no “absolute duty to retain and to preserve all

material that might be of conceivable evidentiary significance in a particular

prosecution.” To be material and exculpatory, the evidence’s exculpatory value must

have been apparent before the evidence was destroyed and must be of such a nature

that comparable evidence could not be reasonably obtained. If the evidence is only

potentially useful, the failure to preserve it does not deny due process unless the State

acted in bad faith.

Goodwin argues that the State failed to preserve enough of the evidence

collected for complete and accurate DNA testing. There is no showing that these

items had any exculpatory value. As previously noted, Goodwin does not dispute that

his DNA was extracted from a semen stain found on the rape victim’s underwear.

This evidence alone is compelling. Nor has Goodwin attempted to explain why

additional DNA testing was necessary to ensure he received a fair trial. There was no

due process violation.

(Dkt. 16, Ex. 10 at 3-4 (internal footnotes containing citations omitted.))

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Petitioner fails to show that the state court decisions were contrary to, or involved an

unreasonable application of, clearly established federal law. As argued by respondent, and as

found by the state courts, petitioner fails to establish any prejudice resulting from the alleged

mishandling of the evidence by the State. Indeed, testing ultimately conducted by the independent

lab confirmed the State lab’s conclusion that the semen on the victim’s underwear belonged to

petitioner. (See, e.g., Dkt. 16, Ex. 20 at 303 and 344 (transcript of proceedings reflecting that the

Washington State Patrol lab and Technical Associates Inc. reached the same results in testing the

evidence.)) Therefore, the Court recommends that petitioner’s first and third grounds for relief be

denied.

B. Ineffective Assistance of Counsel

The Sixth Amendment guarantees a criminal defendant the right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). Courts evaluate claims of

ineffective assistance of counsel under the two-prong test set forth in Strickland. Under that test,

a defendant must prove that (1) counsel’s performance fell below an objective standard of

reasonableness and (2) a reasonable probability exists that, but for counsel’s error, the result of

the proceedings would have been different. Id. at 687-694.

When considering the first prong of the Strickland test, judicial scrutiny must be highly

deferential. Id. at 689. There is a strong presumption that counsel’s performance fell within the

wide range of reasonably effective assistance. Id. The Ninth Circuit has made clear that “‘[a] fair

assessment of attorney performance requires that every effort be made to eliminate the distorting

effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.’” Campbell v. Wood, 18 F.3d 662,

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673 (9th Cir. 1994) (quoting Strickland, 466 U.S. at 689).

The second prong of the Strickland test requires a showing of actual prejudice related to

counsel’s performance. The reviewing court need not address both components of the inquiry if

an insufficient showing is made on one component. Strickland, 466 U.S. at 697. Furthermore,

if both components are to be considered, there is no prescribed order in which to address them.

Id.

Here, petitioner alleges ineffective assistance of counsel through his trial counsel’s failure

to independently test all DNA evidence (ground 2), and to object to the testimony of a detective

as to his in-court behavior (part of ground 4). Respondent counters that petitioner’s trial

counsel’s performance was objectively reasonable.

In considering petitioner’s second ground for relief, the Washington Court of Appeals held

as follows:

[Goodwin] argues that he was denied his right to effective assistance of

counsel when counsel failed to introduce sufficient evidence to support the defense

theory of the case. “The purpose of the requirement for effective assistance of

counsel is to ensure a fair and impartial trial.” In Washington, the Strickland test is

used for determining the effectiveness of counsel. To satisfy this two-pronged test,

a defendant bears the burden of proving both that trial counsel’s performance was

deficient and that the deficiency prejudiced the defense. In applying the test, courts

indulge in a strong presumption that counsel’s performance was effective. The

presumption of counsel’s effectiveness can be overcome, however, by showing

counsel failed to conduct appropriate investigations.

“Failure to investigate or interview witnesses, or to properly inform the court

of the substance of their testimony, is a recognized basis upon which a claim of

ineffective assistance of counsel may rest.” The defendant must show in the record

the absence of legitimate or tactical reasons for counsel’s conduct.

Goodwin points out that certain items processed or found during the rape

investigation, including a strand of hair and vaginal swabs, were never submitted for

DNA testing. Because defense counsel emphasized the failure by the State to test the

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evidence, Goodwin argues his trial counsel should have had the items tested. This

claim of deficient performance is too conclusory and speculative to establish

ineffective assistance of counsel.

There is no showing that trial counsel’s performance was deficient, let alone

that any deficiency prejudiced Goodwin. “[D]eficient performance is not shown by

matters that go to trial strategy or tactics.” By employing these tactics, defense

counsel was able to call into question the adequacy of the police investigation and the

strength of the State’s case with little or no risk to Goodwin. After all, Goodwin

acknowledges that the semen stain found on the rape victim’s underwear matched his

own DNA. At defense counsel’s request, a DNA expert was hired to conduct an

independent DNA test of the stain. The independent test results matched those

reached by the Washington State Patrol crime laboratory. Goodwin has not explained

why additional testing would likely have changed the outcome of his trial. Nothing

suggests that someone else’s DNA would be found on the evidence Goodwin now

claims should have been tested.

(Dkt. 16, Ex. 10 at 2-3 (internal footnotes containing citations omitted.)) The Washington

Supreme Court further addressed this claim:

[Mr. Goodwin] contends that his trial counsel was ineffective in emphasizing

the State’s failure to have certain items tested for DNA, while counsel herself failed

to have those items tested. But as the Acting Chief Judge [of the Washington Court

of Appeals] noted, the victim’s semen-stained underpants were tested and found to

contain DNA matching Mr. Goodwin’s. Mr. Goodwin provides no record or other

materials suggesting that additional items processed or found during the investigation,

including a strand of hair and vaginal swabs, would have pointed to another suspect.

There was thus no reason for counsel to risk having those items tested rather than

simply to call into question the adequacy of the State’s investigation and the strength

of its case.

Contrary to Mr. Goodwin’s argument, this case is not similar to Alcala v.

Woodford, 334 F.3d 862 (9th Cir. 2003). There, counsel asserted an alibi defense but

failed to present witnesses who could definitely say that the defendant was at another

location at the time of the crime. One person that could have so stated was not called

to testify. The defendant thus showed that counsel failed to present available

exculpatory evidence. Mr. Goodwin makes no such showing here.

(Id., Ex. 12 at 1-2.)

Petitioner fails to show that the state court decisions addressing his second ground for

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relief were contrary to, or involved an unreasonable application of, clearly established federal law.

As found by the state courts and as argued by respondent, petitioner fails to show that his trial

counsel’s performance fell below an objective standard of reasonableness. As such, the Court

recommends that petitioner’s second ground for relief be denied.

With respect to the ineffective assistance of counsel claim in petitioner’s fourth ground for

relief, the Washington Supreme Court held as follows:

Mr. Goodwin’s claims both stem from the testimony of a detective who was

present in the courtroom during trial. The victim said that her assailant was lefthanded. The detective testified that, in the course of the trial, he observed Mr.

Goodwin use his left hand to write and perform other tasks. He also said that, when

the victim testified that her assailant was left-handed, Mr. Goodwin put his pen down

and pulled his left hand off of the table. Mr. Goodwin argues that the prosecutor

committed misconduct in presenting this testimony and in referring to it in closing

argument. And he contends that his trial counsel was ineffective in not objecting to

it.

But even assuming, without deciding, that this evidence was improper, Mr.

Goodwin must demonstrate that he was actually and substantially prejudiced by

constitutional error or that nonconstitutional error inherently resulted in a complete

miscarriage of justice. In re Lord, 123 Wn.2d 296, 303, 868 P.2d 835 (1994). He

does not do so. Mr. Goodwin complains that the detective’s testimony attributed to

him the “same rare trait” of left-handedness that the perpetrator possessed. But

properly admitted evidence also attributed to Mr. Goodwin a far rarer trait: the

perpetrator’s DNA. Mr. Goodwin does not show that, in light of all of the evidence,

the detective’s testimony actually and substantially prejudiced him or resulted in a

complete miscarriage of justice.

(Dkt. 16, Ex. 15 at 1-2.) Again, petitioner fails to show that this decision was contrary to, or

involved an unreasonable application of, clearly established federal law. As found by the

Washington Supreme Court, in light of the other evidence before the court – including DNA

evidence found on the victim’s underwear, petitioner fails to show that any prejudice resulted from

his trial counsel’s failure to object to the detective’s testimony. Therefore, the Court also

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recommends that the portion of petitioner’s fourth ground for relief alleging ineffective assistance

of counsel be denied.

C. Prosecutorial Misconduct

Finally, petitioner alleges that prosecutorial misconduct with respect to the abovedescribed testimony of the detective deprived him of his right to a fair trial (part of ground 4).

Prosecutorial misconduct is limited to the narrow issue of whether the conduct affected the jury's

ability to judge the evidence fairly, and therefore violated the due process right to a fundamentally

fair trial. See Thompson v. Borg, 74 F.3d 1571, 1576 (9th Cir. 1996). Here, as indicated above,

the Washington Supreme Court held that, in light of all of the evidence in this case – including

DNA evidence found on the victim’s underwear, petitioner failed to show that the detective’s

testimony “actually and substantially prejudiced him or resulted in a complete miscarriage of

justice.” (Dkt. 16, Ex. 15 at 1-2.) As with the preceding claims, the Court finds that petitioner

fails to show this conclusion is contrary to, or an unreasonable application of, clearly established

federal law, and recommends that the remaining portion of petitioner’s fourth ground for relief

also be denied.

IV

For the reasons described above, petitioner’s habeas petition should be denied and this

action dismissed with prejudice. A proposed Order of Dismissal With Prejudice accompanies this

Report and Recommendation.

DATED this 13th day of April, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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