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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

MARK FARRELL 

Petitioner,

v.

DOUG WADDINGTON,

Respondent.

Case No. C05-5832RBL

REPORT AND

RECOMMENDATION 

 

 NOTED FOR: 

 MAY 5th, 2006

This habeas corpus action has been referred to the undersigned Magistrate Judge pursuant to

Title 28 U.S.C. §§ 636(b)(1)(A) and 636 (b)(1)(B) and Local Magistrates' Rules MJR 3 and MJR 4. 

Petitioner filed this action under 28 U.S.C. § 2254.

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner challenges his 2001 Clark County convictions. Originally petitioner was found

guilty by jury of two counts of rape of a child in the first degree and two counts of child molestation

in the first degree. (Dkt. # 11, Exhibit 1). He was sentenced to 120 months. (Dkt. # 11, Exhibit 1). 

On direct appeal the two counts of child molestation were dismissed. (Dkt. # 11, Exhibit 2). Having

reviewed the state court rulings, the briefs filed in this case and the remaining record, the court

recommends this petition be DISMISSED WITH PREJUDICE.

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FACTS

The state court summarized the facts surrounding petitioners convictions as follows:

M.M.’s parents live in Brush Prairie and have two daughters, M.M. and P.M.

Farrell worked at Lakeside Industries along with M.M.’s parents, where they met and

became friends. At the time of the incidents involving Farrell and M.M., P.M. was age

three and M.M. age five.

In April 2000, M.M.’s parents invited Farrell to their residence for dinner.

After dinner, Farrell, M.M.’s parents, M.M., and P.M. went into the hot tub located

at the residence. Everyone wore a swimsuit. Both of M.M.’s parents do not recall

whether they left M.M. and P.M. alone in the hot tub with Farrell, but both claim it

was possible that they had left the hot tub. At the time, M.M.’s parents felt

comfortable leaving M.M. and P.M. alone with Farrell.

A couple of weeks later, M.M.’s parents were watching television with P.M.

and M.M. P.M. told her parents that M.M. had “sucked [Farrell’s] peter.” Report of

Proceedings (RP) at 170. M.M’s mother asked M.M. if this was true and M.M.

started to cry for about an hour, which was unusual behavior for her. Unsure of how

to respond, M.M.’s parents did not immediately notify the police. On May 26, 2000,

M.M’s grandmother visited P.M. and M.M. During this visit, P.M. told her

grandmother that M.M. had “sucked [Farrell’s] peter.” RP at 287. In early June, after

M.M.’s grandmother discussed the revelation with M.M.’s parents, M.M.’s mother

reported the incident to Child Protective Services (CPS).

On June 22, 2000, Clark County Sheriff Deputy Cynthia Bull, an investigator

for the Child Abuse Intervention Center, interviewed M.M. M.M. told Bull that she

had touched Farrell’s penis in the hot tub. M.M. later testified that she had also

touched Farrell’s penis with her “hand and [her] mouth” while in the hot tub. RP at

386. M.M. also told Bull that she was scared to say anything about the incident.

M.M. testified about another occasion in her parent’s bathroom where she had

touched Farrell’s penis with her hand and her mouth. Farrell denied any sexual

contact with M.M. and said he was never alone with P.M. and M.M.

(Dkt. # 11, Exhibit 5, Unpublished Opinion, State v. Farrell, Washington Court of Appeals Cause

No. 27764-6-II, at 2-3).

PROCEDURAL HISTORY

On direct appeal the two convictions for molestation were overturned. (Dkt. # 11, Exhibit

5). Review of the remaining convictions was sought and denied and none of the issues raised are

germane to this petition. Direct appeal was concluded on May 4th, 2004. (Dkt. # 11, Exhibit 7).

In January of 2005 petitioner filed a personal restraint petition raising the following ground

for review: GROUND ONE

NO PROPER INVESTIGATION

I asked my attorney for an investigator and he said we would get one, but he

never did. It is crucial to perform a good investigation in a criminal case. Your

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defense hinges on it. I found an investigator later on, but my attorney would not

cooperate with him. This might have made a difference in the outcome of my trial.

(Dkt. # 11, Exhibit 9, at 4). The court considered the claim as an ineffective assistance of counsel

claim and analyzed the issues using the Strickland test. (Dkt. # 11, Exhibit 10, page2, citing

Stickland v. Washington, 466 U.S. 668 (1984)). The court dismissed the claim as petitioner had

failed to show what information would have been obtained by an investigator and how he was

prejudiced. (Dkt. # 11, Exhibit 10, page2).

Petitioner filed for discretionary review and raised the following grounds:

GROUND ONE

NO PROPER INVESTIGATION

I asked my attorney for an investigator and he said we would get one, but he

never did. It is crucial to perform a good investigation in a criminal case. Your

defense hinges on it. I found an investigator later on, but my attorney would not

cooperate with him. This might have made a difference in the outcome of my trial.

GROUND TWO

NO EXPERT WITNESSES

My attorney informed me in the beginning that we would hire a psychologist

for myself and M.M. This may have proven why M.M. would make such an

accusation and that I was not a person who could commit this crime. Later my

attorney said we could not hire a psychologist. I am sure that a professional person

like this could offer a lot to this case. In my opinion, things that may have made a

difference in my case, my lawyer did not follow through on.

GROUND THREE

FAILURE TO PRESENT KNOWN WITNESSES

I informed my attorney to two witnesses, who could testify to facts that could

have changed my verdict. They could have testified to the fact that the possible

perpetrator of the crime was staying on and off at the Merringer home from January

through April of 2000. My other witness would have testified on how M.M.

interacted with the possible perpetrator also named Mark. They never were called to

testify to these facts.

(Dkt. # 11, Exhibit 11, Appendix A at 1-3). The commissioner for the state supreme court dismissed

the petition as petitioner had not addressed the order dismissing his petition or shown why the prior

ruling was in error. (Dkt. # 11, Exhibit 12).

The petitioner filed his federal petition and raises only one issue:

Ground one: No Proper Investigation

I asked my attorney for an investigator and he said we would get one, but he never

did. It is crucial to perform a good investigation in a criminal case. Your defense

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hinges on it. I found an investigator later on, but my attorney would not cooperate

with him. This might have made a difference in the outcome of my trial.

(Dkt. # 1, page 7).

Respondent argues the petitioner did not properly exhaust the issue because he did not raise

the issue as a federal constitutional claim in state court. (Dkt. # 10, page 7). Respondent also

argues the claim is procedurally defaulted. (Dkt. # 10, Page 7).

EVIDENTIARY HEARING NOT REQUIRED

In its’ Order Directing Service and Response, the court directed respondent to state in his

response whether or not an evidentiary hearing was necessary. Accordingly, respondent has

informed the court that he does not think an evidentiary hearing is required. The function of an

evidentiary hearing is to try issues of fact, such a hearing is unnecessary when only issues of law are

raised. See e.g. Yeaman v. United States, 326 F.2d 293 (9th Cir. 1963). After careful review of the

record, the undersigned judge concludes that there are no relevant factual disputes to resolve in order

for the court to render its decision in this case. Accordingly, an evidentiary hearing was not

conducted.

STANDARD

Federal courts may intervene in the state judicial process only to correct wrongs of a

constitutional dimension. Engle v. Isaac, 456 U.S. 107 (1983). Section 2254 is explicit in that a

federal court may entertain an application for writ of habeas corpus “only on the ground that [the

petitioner] is in custody in violation of the constitution or law or treaties of the United States.” 28

U.S.C. § 2254(a). The Supreme court has stated many times that federal habeas corpus relief does

not lie for mere errors of state law. Lewis v. Jeffers, 497 U.S. 764 (1990); Pulley v. Harris, 465 U.S.

37, 41 (1984); Estelle v. McGuire, 502 U.S. 62 (1991). 

A habeas corpus petition shall not be granted with respect to any claim adjudicated on the

merits in the state courts unless the adjudication either (1) resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established federal law, as determined by the

Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). Further, a

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determination of a factual issue by a state court shall be presumed correct, and the applicant has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.

§2254(e)(1).

DISCUSSION

Exhaustion.

In order to satisfy the exhaustion requirement, petitioner’s claims must have been fairly

presented to the state's highest court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). A federal habeas petitioner must provide the state

courts with a fair opportunity to correct alleged violations of prisoners' federal rights. Duncan v.

Henry, 513 U.S.364, 115 S.Ct. 887, 888 (1995). 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. Id, citing Picard v. Connor, 404 U.S. 270 (1971) and Anderson v. Harless, 459 U.S. 4

(1982). The claims in this petition are unexhausted. A federal court faced with an unexhausted

petition dismisses the petition, without prejudice, so that the petitioner has an opportunity to exhaust

the claims in state court. Rose v, Lundy, 455 U.S. 509, 522 (1982). The exhaustion doctrine is

based on comity, not jurisdiction. Rose v, Lundy, 455 U.S. at 518.

Respondent’s position is technically correct because petitioner did not specifically raise his

issue as a federal constitutional claim and he did not cite to federal case law. (Dkt. # 11, Exhibit 9,

page 4). However, the state court of appeals properly characterized the issue as an ineffective

assistance of counsel claim and analyzed the claim using the federal standard, (Dkt. # 11, Exhibit 10). 

The point of an exhaustion requirement is to give the state court a fair and complete chance to

correct any issue without federal intervention. Where the state court properly identifies the issue and

applies the correct standard of review there is no reason to consider the issue unexhausted.

 On the Merits.

Here, the state court of appeals properly identified and considered petitioner’s claim as an

ineffective assistance of counsel claim. (Dkt. # 11, Exhibit 10). The court held:

To establish ineffective assistance of counsel, petitioner must show both

deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S.

668, 684-86 (1984); In re Connick, 144 Wn.2d 442 (2001).

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Petitioner first contends that although he asked his counsel to hire an

investigator, his counsel first failed to obtain an investigator and then failed to

cooperate with the one petitioner eventually hired. Petition, Ground One. But

petitioner fails to state what information could have been obtained by proper

investigation. Accordingly, he fails to allege facts establishing that he was prejudiced

by his counsel’s alleged failure to investigate and this argument fails.

(Dkt. # 11, Exhibit 10, page 2). Thus, the state court of appeals applied the proper standard of

review. Review of petitioners’ Personal Restraint Petition, Dkt. # 11, Exhibit 9, shows the court of

appeals decision to be correct. Petitioner made no showing of prejudice and made only generalized

statements without any evidence to support a claim of prejudice.

Petitioner has failed to show the state court decision resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established federal law, as determined by the

Supreme Court; or resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). Petitioner is not

entitled to relief. 

CONCLUSION

This petition is without merit. Accordingly, the petition should be DISMISSED WITH

PREJUDICE. A proposed order accompanies this report and recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report to file written objections. See also Fed.

R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on May 5th, 2006, as noted in the

caption. 

Dated this 11th day of April, 2006.

A

Karen L. Strombom

United States Magistrate Judge

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