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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

DENNIS D. CORBRAY,

Petitioner,

v.

SANDRA CARTER,

Respondent.

Case No. C06-5043 RJB/KLS

REPORT AND

RECOMMENDATION

NOTED FOR:

October 6, 2006

This 28 U.S.C. § 2254 petition for habeas corpus relief has been referred to Magistrate Judge

Karen L. Strombom pursuant to 28 U.S.C. § 636 (b) and Local MJR 3 and 4. Petitioner seeks

federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Dkt. # 7). Respondent has answered

(Dkt. # 18), Petitioner has replied (Dkt. # 20), and Respondent has replied to Petitioner’s response

(Dkt. # 21). This matter is now ripe for review. 

I. BASIS FOR CUSTODY

Petitioner is in custody pursuant to his 2002 second-degree assault (domestic violence) and

first-degree rape (domestic violence) conviction. (Dkt. # 19, Exh. 1). The trial court sentenced Mr.

Corbray, as a persistent offender, to life imprisonment without possibility of parole. (Id. Exh. 1at 3).

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II. STATEMENT OF THE CASE

A. Statement of Facts

The Court of Appeals summarized the facts and the procedural posture of Petitioner’s case as

follows: 

On the evening of January 6, 2001, Robin Donovan and Corbray planned to

meet Corbray’s friend, Aaron, and others at the 72nd Street Pub in Tacoma. Donovan

stated that she arrived at the pub between 7 and 8 p.m. and left at “closing,” which

was around 1:30-2:00 A.M. 

Donovan went to the bathroom and when she returned, found that her car

keys and cellular telephone were no longer on the table and that her car was missing

from the parking lot. Corbray was not in the bar, but Aaron remained. Aaron gave

Donovan a ride to his house where she planned to call Corbray. 

Donovan next saw Corbray when he drove up to Aaron’s house in her car at

the same time that she and Aaron were pulling up to the home. Corbray jumped out

of the car and pulled Donovan out of Aaron’s car, while Aaron watched. Corbray

called her a “slut” and accused her of “f---ing his brother.” Report of Proceedings

(RP) at 36. Corbray hit her in the head, forced her into the car, and told her to drive

to his sister’s house.

Donovan drove while Corbray repeatedly hit her. When Donovan could no

longer drive because of her injuries, Corbray drove the car. 

At his sister’s home, Corbray dragged Donovan out of the car and forced her

into the house. Corbray pushed Donovan into the bathroom, forced her head toward

the mirror, bent her over the vanity, and raped her, all the while calling her a slut and

hitting her head. Corbray also hit Donovan’s ankle and calf with some type of

“electrical cord” while in the bathroom. 2 RP at 49. After raping her, Corbray threw

Donovan into the bathtub. 

One of Corbray’s sisters, Tamara, walked into the bathroom while Donovan

was in the bathtub and asked, “what the hell is going on?’ 2 RP at 41. Corbray shut

the door on his sister and continued hitting Donovan, when his sister told him “to get

the hell out of her house.” 2 RP at 41. 

Both Corbray and Donovan left the bathroom. Corbray pushed Donovan

down on the hallway floor and repeatedly kicked her on the head with his foot.

Donovan recalls Corbray’s mother, sister, and some children witnessing the events in

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the hallway. While Corbray was distracted Donovan grabbed her keys off the floor,

got into her car, and drove away. Donovan drove to a convenience store and called

911. 

An ambulance transported Donovan to the hospital where she remained for

two days. Doctors diagnosed contusions on Donovan’s scalp, eyelids, white of her

left eye, entire jaw line, chin, face, cheek, elbow, upper arms, inside of her right upper

arm, entire right forearm and wrist. She also sustained a swollen 

right hand, right thigh, right knee (also an abrasion), right lower leg, left knee (also an

abrasion), left shoulder, right breast, a perforated left eardrum, a chipped front tooth,

and a bloody lip. A doctor placed splits on both of Donovan’s arms, which she said

she wore for two months. An internal examination revealed that Donovan had a right

vaginal tear and bleeding in the vaginal vault. 

The State charged Corbray with second degree assault and first degree rape.

A jury found him guilty of both counts. After reviewing Corbray’s criminal history,

the trial court sentenced him to life in prison without early release under the Persistent

Offender Accountability Act (POAA) former (RCW 9.94A.120(4)(2000). 

(Dkt. 19, Exh. 4 at 1-3 (footnotes omitted)).

B. Procedural History

 1. Direct Appeal

Through counsel, Petitioner raised the following grounds for review:

A. There is insufficient evidence of assault in the second degree when there is no

evidence of disfigurement, impairment of bodily function, or bone fracture. 

B. There is insufficient evidence of rape in the first degree where there is no

evidence of serious bodily injury. 

C. The State violated Mr. Corbray’s Sixth Amendment jury trial guarantee by

allowing the judge, rather than the jury, to determine the fact of Mr. Corbray’s

prior convictions, resulting in a sentence that exceeded the penalty he would

have received if he had been punished according to the facts in the jury verdict

alone. 

(Id., Exh. 2 at 4).

In a pro se brief, Petitioner raised the following additional grounds for review:

A. Trial counsel rendered ineffective assistance and violated Mr. Corbray’s right

to effective representation, by failing to exercise due diligence to retain a

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forensic expert to conduct analyzation [sic] of D.N.A evidence in a timely

manner for trial. 

B. Trial counsel rendered ineffective assistance and violated Mr. Corbray’s right

to effective representation by failing to interview and Eye-witness and failing

to subpoena witness and inform the court of the substance of their testimony. 

(Id., Exh. 3 at 3). 

The Washington Court of Appeals affirmed Petitioner’s conviction and sentence. (Id. at Exh.

4). Petitioner filed a petition for discretionary review (Id., Exh. 5), in which he raised the following

grounds for review:

A. Does Mr. Corbray’s claim that Wash. Const. Art. 1 §§ 21 & 22 provide the

right to a jury determination of priors in a Persistent Offender proceeding,

present a substantial issue of State constitutional law? 

B. Does the Sixth and Fourteenth Amendments of the United States Constitution

require a jury determination of facts giving rise to persistent offender status? 

(Id., Exh. 5 at 1). 

On March 2, 2004, the Washington Supreme Court denied the petition. (Id. at Exh. 6). 

 2. Personal Restraint Petition

Petitioner filed a motion to vacate his sentence, which the Court of Appeals treated as a

personal restraint petition (Id. at Exh. 7), raising the following grounds for review:

A(1). Mr. Corbray was denied his constitutional rights under the Sixth and

Fourteenth Amendment to effective assistance of counsel when his trial

counsel directed Aaron Fox, a witness, not to tell the jury that it was Mike

McCloud that Ms. Donovan left with along with Tim from the bar on the night

of the alleged incident.

A(2). Trial counsel had a duty to interview the witnesses for the defense, this is part

of the requirement of the Sixth Amendment guarantee to a criminal defendants

right to counsel. Strickland, supra, Crandell v. Bunnell, 144 F.3d 1213 (9th

Cir. 1998) .

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B(1). Mr. Corbray contends his trial counsel did not provide effective assistance and

he was prejudiced by his failure to impeach and to properly cross-examine Ms.

Donovan with prior inconsistent statements.

B(2). Defendant contends counsel was ineffective by not properly preparing for trial

and that the complete interest of justice requires relitigation of this issue. 

C(1). Mr. Corbray contends his constitutional Sixth Amendment rights to

confrontation was violated when he was denied the opportunity to crossexamine the doctor’s medical report.

(Id., Exh. 7, at 7, 10, 16, 24, 30).

The Washington Court of Appeals dismissed the petition. (Id. at Exh. 8). Petitioner filed a

petition for review, raising the following grounds:

A. Does the interest of justice require the re-litigation of an issue in order to

clearly establish actual innocence? 

B. Did counsels cumulative error violate Petitioners Sixth and Fourteenth

Amendment Constitutional rights? 

C. Is the affidavit of Michael McLeod newly discovered evidence under Savaria,

supra thus constituting a miscarriage of justice? 

D. Was the Petitioners right to Confrontation violated by Dr. Porter’s 

testimonial hearsay? 

(Id., Exh. 9 at iv).

The Washington Supreme Court denied review. (Id., Exh. 10). 

III. ISSUES PRESENTED

Petitioner’s federal habeas petition presents this court with the following grounds for relief:

A. Actual innocence/ineffective assistance of counsel; trial counsel’s failure to

conduct scientific examinations to completely exonerate Petitioner and

implicate third party despite Petitioner’s entreaties.

B. Denial of effective assistance of counsel; failure of trial counsel to interview

defense witnesses. 

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C. Denial of effective assistance of counsel; trial counsel’s wrongful withholding

of identity of an eyewitness and state court refusal to accept affidavit of

Michael McLeod as newly discovered evidence.

D. Denial of effective assistance of counsel; failure of trial counsel to impeach

and properly cross-examine Donovan with prior inconsistent statements.

E. Violation of Confrontation Clause; denial of opportunity to cross-examine Dr.

Porter’s medical report.

(Dkt. # 7, p. 7).

 

IV. EVIDENTIARY HEARING

In a proceeding instituted by the filing of a federal habeas corpus petition by a person in

custody pursuant to a judgment of a state court, the “determination of a factual issue” made by that

court “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). The Petitioner has “the burden of

rebutting the presumption of correctness by clear and convincing evidence.” Id. 

Where a Petitioner “has diligently sought to develop the factual basis of a claim for habeas

relief, but has been denied the opportunity to do so by the state court,” an evidentiary hearing in

federal court will not be precluded. Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir. 1999)

(quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998)). If the Petitioner fails to develop

“the factual basis of a claim” in the state court proceedings, an evidentiary hearing on that claim

shall not be held, unless the petitioner shows: (A) the claim relies on (i) a new rule of constitutional

law, made retroactive to cases on collateral review by the Supreme Court, that was previously

unavailable; or (ii) a factual predicate that could not have been previously discovered through the

exercise of due diligence; and (B) the facts underlying the claim would be sufficient to establish by

clear and convincing evidence that but for constitutional error, no reasonable factfinder would have

found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). 

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An evidentiary hearing “is required when the petitioner’s allegations, if proven, would

establish the right to relief.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). It “is not

required on issues that can be resolved by reference to the state court record.” Id. (emphasis in

original). “It is axiomatic that when issues can be resolved with reference to the state court record,

an evidentiary hearing becomes nothing more than a futile exercise.” Id.; United States v. Birtle, 792

F.2d 846, 849 (9th Cir. 1986) (quoting 28 U.S.C. § 2255). 

Petitioner argues that he is entitled to an evidentiary hearing because he sought, but was

denied a proper evidentiary hearing by the state court. In response, the State argues that his request

for a state evidentiary hearing was untimely because it was made for the first time in his petition for

discretionary review (per Washington RAP 16.11); that the affidavits are not credible and were

fabricated after trial; and that even if the alleged facts are true, the state courts’ rejection of

Petitioner’s claim on the merits amounted to a full and fair state evidentiary hearing. In support of

its position, the State submits the affidavit of Petitioner’s former counsel, Lloyde Alton. (Dkt. # 21,

Exh. 2). 

Where a state court has already made the relevant findings of fact, a district court

evidentiary hearing would have no purpose if not to produce new evidence possibly contradicting

those state court findings. Perez v. Rosario, 449 F.3d 954, 965 (9th Cir., 2006). On habeas review,

state appellate court findings are entitled to the same presumption of correctness as trial courts’

findings. Williams v. Rhoades, 354 F.3d 1101, 1008 (9th Cir. 2003). 

There is no indication from the arguments presented by Petitioner “that an evidentiary

hearing would in any way shed new light” on the grounds for federal habeas corpus relief raised in

his petition. Totten, 137 F.2d at 1177. As is discussed further below, the state courts’ factual and

credibility findings amounted to full and fair evidentiary hearings. The court finds that the issues

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raised by Petitioner may be resolved based solely on the state court record and no evidentiary

hearing is required.

V. DISCUSSION

A. Standard of Review

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). 28 U.S.C. § 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)(1995). The Supreme Court has stated many times that federal habeas corpus

relief does not lie for 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). 

Further, 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). A 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).

B. Exhaustion of State Remedies

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.

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Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). The record reflects that Petitioner exhausted his

claims in the state court within the meaning of 28 U.S.C. § 2254(b).

C. Petitioner’s Ineffective Assistance of Counsel Claims

Petitioner claims his trial counsel, Lloyde Alton, was ineffective. To support a claim of

ineffective assistance of counsel, a petitioner must satisfy a two-part standard. First, the petitioner

must show that counsel's performance was so deficient that it "fell below an objective standard of

reasonableness." Strickland v. Washington, 466 U.S. 668, 686 (1984). This burden is highly

demanding, as the defendant must prove he was denied a fair trial by the gross incompetence of

counsel. Kimmelman v. Morrison, 477 U.S. 365, 382 (1986). Second, the petitioner must show

that the deficient performance prejudiced the defense so "as to deprive the defendant of a fair trial, a

trial whose result is reliable." Strickland, 466 U.S. at 687. Unless the defendant's showing satisfies

both parts of the analysis, "it cannot be said that the conviction . . . resulted from a breakdown in

the adversary process that renders the result unreliable." Id. Because the petitioner must satisfy

both prongs of the Strickland test, a court need not address both prongs if the petitioner makes an

insufficient showing of one prong. Id. at 697. Judicial review of an attorney’s performance is

“highly deferential and doubly deferential when it is conducted through the lens of federal habeas.” 

Yarborough v. Gentry, 124 S. Ct. 1, 4 (Oct. 20, 2003). 

Under the first prong of the Strickland test, the question is whether counsel's assistance was

reasonable under the totality of the circumstances, viewed as of the time of counsel's conduct.

Strickland, 466 U.S. at 690. To succeed under the first prong, the petitioner must show the

attorney's conduct "reflect[s] a failure to exercise the skill, judgment, or diligence of a reasonably

competent attorney." United States v. Vincent, 758 F.2d 379, 381 (9th Cir.), cert. denied, 474 U.S.

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838 (1985). 

There is a strong presumption that counsel's performance fell within the wide range of reasonable

assistance. Strickland, 466 U.S. at 689.

Under Strickland’s second prong, the petitioner must demonstrate prejudice, i.e., "that, but

for counsel's unprofessional errors, the result would have been different." Strickland, 466 U.S. at

694. To prove prejudice, petitioner must establish a “reasonable probability that, but for counsel’s

unprofessional errors, the results of the proceeding would have been different.” Woodford v.

Visciotti, 537 U.S. 19, 22 (2002) (per curiam) (emphasis in the original) (citing Strickland, 466 U.S.

at 694). However, sheer outcome determination is not sufficient to make out a Sixth Amendment

violation: a proper prejudice inquiry focuses on whether counsel's errors or omissions rendered the

proceeding fundamentally unfair or the result unreliable. Lockhart v. Fretwell, 506 U.S. 364, 369

(1993). "Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive

the defendant of any substantive or procedural right to which the law entitles him." Id. at 372.

Petitioner claims Mr. Alton was ineffective when he (a) failed to obtain evidence other than

the DNA from the rape kit; (b) prohibited a defense witness, Aaron Fox, from testifying about the

driver of the car, (c) failed to interview the driver and the court failed to accept the affidavit of the

driver as newly discovered evidence, and (d) failed to impeach and cross-examine Ms. Donovan

about her prior inconsistent statements. 

There was no doubt in this case that the victim, Ms. Donovan had been beaten and raped. 

She remained in the hospital for two days. (Dkt. 19, Exh. 4 at 3). Ms. Donovan claimed that

Petitioner beat and raped her. Petitioner’s best friend, Aaron Fox, told police that Petitioner was

outraged because he thought that “everybody was f...... his bitch”. (Id., Exh. 18, Vol. 4 at 285). 

Petitioner’s mother, told the police that she saw her son “hitting, beating” Ms. Donovan,” and that

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she heard Petitioner and Ms. Donovan arguing. (Id., Exh. 19, Vol. 5 at 336). The police officer

placed this in his report. (Id. at 336). Petitioner’s counsel’s trial strategy was that Petitioner did not

beat or rape Ms. Donovan, but that someone else did. The court must strongly presume that

counsel made all significant decisions in the exercise of reasonable professional judgment. 

Strickland, 466 U.S. at 688. A strategic decision to pursue a particular defense theory and forgo

other theories, is presumed reasonable and virtually unchallengeable. Id. at 690-91; Bell v. Cone,

122 S. Ct. 1843, 1853-54 (2002); Anderson v. Calderon, 232 F.3d 1053, 1087-90 (9th Cir. 2000),

cert. denied, 122 S. Ct. 580 (2001). Each of Petitioner’s claims was previously reviewed and

rejected in the state courts.

C. Trial Counsel’s Failure to Obtain “Rape Kit” Evidence Was Objectively Reasonable

In his direct appeal, Petitioner argued that a DNA expert should have been retained to testify

on his behalf. The Washington Court of Appeals dealt with the Petitioner’s argument as follows:

Corbray argues that a DNA expert should have been retained to testify on his behalf. 

He asserts, somewhat confusingly, that the expert would have then opined that all of

the evidence collected during Donovan’s rape exam be ignored because no DNA was

found. The evidence shows that the State’s DNA expert did not find Corbray’s DNA

in Donovan’s vagina.12 But there was evidence that Corbray and Donovan had

consensual sex earlier in the day, and Corbray’s DNA could have been found

elsewhere on Donovan’s body. Thus, defense counsel’s decision not to call a forensic

expert was a legitimate trial tactic.

[12 Chris Sewell, the State’s forensic DNA specialist, processed Donovan’s vaginal fluid and was able

to determine semen was present; he did not find sperm. He testified that lack of sperm in semen

does not correlate to when sex occurred because sperm can live in a female for many days. Semen

itself does not have DNA; sperm is the major source of DNA in a semen sample. Thus, Sewell could

not confirm which male the semen was from.] [footnote in text].

(Dkt. 19, Exh. 4, p. 8).

Petitioner subsequently filed a motion for relief from judgment, which was transferred to the

Court of Appeals for treatment as a personal restraint petition. The Acting Chief Judge dismissed

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the petition and declined to consider several claims of ineffective assistance of counsel, including one

that Petitioner’s counsel failed to retain a forensic expert on his behalf, on the ground that similar

claims had been raised and rejected on direct appeal. (Id., Exh. 8 at 5-6). The Supreme Court of

Washington denied discretionary review of that ruling. (Id., Exh. 10). 

As noted by the Washington Court of Appeals and as a review of the record confirms,

defense counsel’s decision not to call a forensic expert was a legitimate trial tactic. Mr. Sewell, the

forensic scientist working for the Washington State Patrol lab, testified he examined vaginal samples

and clothes in Petitioner’s case. (Dkt. 19, Exh. 17, Vol. 3 at 122). Although semen was found, the

semen did not contain sperm. (Id. at 124). As only sperm contains DNA, Mr. Sewell could not

determine who the donor was. (Id. at 125). During cross-examination, trial counsel emphasized

that it was impossible to determine the identity of the donor based on Mr. Sewell’s findings. (Id. at

127). Both Ms. Donovan and Petitioner testified that they might have had intercourse on the

morning of the day the beating and rape occurred. (Id., Exh. 18, Vol. 4 at 223, Exh. 16, Vol. 2 at

56). 

The State argues that not inquiring further into the DNA testing fit perfectly into trial

counsel’s overall trial strategy that it was someone else who raped Ms. Donovan. The State points

to the testimony of Petitioner and Mr. Williams, who testified that they located Ms. Donovan in the

car with two unknown black males. According to Mr. Williams, Ms. Donovan’s pants were

unbuttoned and according to Petitioner, Ms. Donovan had injuries to her face. Mr. Alton raised the

issue that Mr. Sewell failed to test pubic hair combings and fingernail scrapings. (Id., Vol. 3 at

126). In addition, the State argues that there was damning testimony from the victim, Mr. Fox and

Mrs. Ford in their statements to the police, where they identified Petitioner as the assailant and

rapist. Therefore, the State argues, the reasonable strategy for trial counsel was to stop at DNA

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testing and to show the jury that the results were inconclusive, hopefully planting doubt in the jury’s

mind that it was Petitioner’s semen that was found. 

Trial counsel’s decision to not call a forensic expert was a legitimate trial tactic. Given the

strong evidence linking Petitioner to the crime, insistence on testing fingernail scrapings and pubic

hair combings might very well have produced irrefutable DNA evidence that it was Petitioner who

assaulted and raped Ms. Donovan. Thus, it is reasonable to conclude that trial counsel’s decision

not to pursue further testing as part of a trial tactic cannot be said to have been so deficient that it

"fell below an objective standard of reasonableness,” that prejudiced the defense so "as to deprive the

defendant of a fair trial, a trial whose result is reliable." Strickland, 466 U.S. at 687. Accordingly,

the Washington Courts adjudication of this claim on the merits cannot be said to be contrary to or an

unreasonable application of clearly established federal law.

D. Failure of Trial Counsel to Allow Defense Witness to Testify As to Real Driver of

Vehicle and Failure to Submit Affidavit of Driver

Petitioner claims that Mr. Alton was ineffective because, although Mr. Fox told trial counsel

that Mr. McLeod was the driver of the car, trial counsel prohibited Mr. Fox from testifying to that

fact at trial. Petitioner also claims that he was then prejudiced by the trial court’s refusal to accept

the affidavit of Michael McLeod as newly discovered evidence. Both of these claims were

adjudicated on the merits before the Washington Court of Appeals. In his direct appeal, Petitioner

was already making the argument that his trial counsel “knew the identity of the driver of the car,”

but the Court of Appeals found no support in the record for Petitioner’s claim that his counsel should

have subpoenaed the person who could have testified that someone else harmed Ms. Donovan:

Pro se, Corbray contends that he received ineffective assistance of counsel

because his attorney did not retain a forensic expert or interview and subpoena

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potential witnesses. 

The Washington State and United States constitutions guarantee a criminal

defendant the right to effective assistance of counsel. Wash. Const. art. I, § 22; U.S.

Const. amend. VI. The test for ineffective assistance of counsel has two parts. One, it

must be shown that the defense counsel’s conduct was deficient, i.e., that it fell below

an objective standard of reasonableness. Two, it must be shown that such conduct

prejudiced the defendant, i.e., that there is a reasonable possibility that, but for the

deficient conduct, the outcome of the proceeding would have differed. State v.

Thomas, 109 Wn.2d 222,225-26, 743 P.2d 816 (1987) (adopting test from Strickland

v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 

In reviewing this type of challenge, we presume that the assistance was

effective. State v. Sardinia, 42 Wn. App. 533, 539, 713 P.2d 122, review denied, 105

Wn.2d 1013 (1986). Generally, we will not consider those matters we regard as

tactical decisions or matters of trial strategy. State v. McNeal, 145 Wn.2d 352, 362,

37 P.2d 280 (2002). “If defense counsel’s trial conduct can be characterized as

legitimate trial strategy or tactics, then it cannot serve as a basis for a claim that the

defendant did not receive effective assistance of counsel.” State v. Mak, 105 Wn.2d

692, 731, 718 P.2d 407, cert. denied, 479 U.S. 995 (1986); State v. Adams, 91

Wn.2d 86, 90, 586P.2d 1168 (1978); see State v. McFarland, 127 Wn.2d 322, 336,

899 P.2d `1251 (1995) (“Because the presumption runs in favor of effective

representation, the defendant must show in the record the absence of legitimate

strategic or tactical reasons supporting the challenged conduct by counsel.”)

. . . . 

Corbray also asserts that his counsel should have subpoenaed the person who,

according to Corbray, could have testified that someone else harmed Donovan.1But

there is nothing in the record to support this claim and Corbray’s argument fails.

McFarland, 127 Wn.2d at 335. 

[1 Corbray relies on the two cases which both held that an attorney’s performance amounted to

ineffective assistance because the attorneys did not investigate potential alibi witnesses: Nealy v.

Cabana, 764 F.2d 1173 (5th Cir. 1985) and United States v. Gray, 878 F.2d 702 (3d Cir. 1989).

This argument fails because there was never an issue of Corbray needing an alibi. Corbray is arguing

someone else harmed Donovan; he is not arguing that he was never with Donovan [footnote in text].

(Dkt.19, Exh. 3 at 10, Exh. 4 at 7-9).

In his later, collateral proceedings, Petitioner requested a new trial based on newly

 discovered evidenced, asserting that he did not learn of Michael McLeod’s identity until he received

McLeod’s affidavit in November 2002, when he was in the middle of his direct appeal. The Court of

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Appeals held as follows: 

Corbray now submits, as newly discovered evidence, affidavits from Aaron

Fox and the driver of the car that brought Donovan to the Golden Bear Bar. Michael,

the driver, explains that he and someone named Tim gave Donovan a ride from the

72nd Street Pub to Aaron’s house because she was too drunk to drive. When they

discovered that Aaron was not home, they drove around trying to find him and ended

up at the Golden Bear Bar. When they got there, Corbray came over and helped

Donovan into Williams’s car. 

Michael adds that he saw Aaron Fox “around mid-January of 2002” and

learned of Corbray’s legal situation. He then told Aaron that he left the bar with

Donovan on the night of January 6, 2001, along with Tim. He told Aaron that he

would so testify, but Aaron replied that Corbray’s trial was over. Michael’s affidavit

is dated October 30, 2002. 

Aaron’s affidavit reports that he met with Corbray’s trial attorney on January

8, 2002, and told him that he had information about the people who left the 72nd

Street Pub with Donovan on the night of January 6, 2001. Aaron told defense counsel

that Donovan left with Michael McCloud2 and a person named Tim, and he also

reported that Michael was willing to testify on Corbray’s behalf. He asserts that

Corbray’s attorney told him not to mention the information concerning Michael when

he testified. Aaron’s affidavit is dated October 12, 2004. 

Corbray argues that these affidavits constitute newly discovered evidence that

supports his version of the events and contradicts Donovan’s account. He maintains

that he received Michael’s affidavit in November 2002 and submitted it to his

attorney. When his attorney failed to act, Corbray filed this petition. 3

To obtain a new trial based on newly discovered evidence, a defendant must

satisfy several criteria. He must prove that the evidence (1) will probably change the

result of the trial; (2) was discovered after the trial; (3) could not have been

discovered before trial by the exercise of due diligence; (4) is material; and (5) is not

merely cumulative or impeaching. State v. Macon, 128 Wn.2d 784, 800 (1996). 

Corbray asserts that he did not learn of Michael’s identify until he received

Michael’s affidavit in November 2002, when he was in the middle of his direct appeal,

and that he could not submit the affidavit to this court because it constituted evidence

outside the record that this court could not consider. In the pro se supplemental brief

that Corbray filed on December 16, 2002, however, he made the following claim in

arguing that he received ineffective assistance of counsel: 

Defense counsel knew that the identity of the driver of the car

that Donovan left with from the 72nd Bar and Grill on the night of

January 6th, 2001, would be crucial and pivotal evidence to the

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defense. During trial Corbray made known to Defense counsel that the

individual who Donovan left with had been located and that he was

willing to come to court and testify that it was him that Donovan left

with from the 72nd Bar and Grill and that it was him who gave her a

ride to the Golden Bear establishment, where Mr. Corbray and Mr.

Williams would later find Donovan getting out of a car. . . . Even

though this Eye-witness, the owner and driver of the vehicle who

Donovan left with from the 72nd Bar and Grill wanted to testify the

Defense counsel told Corbray that it was too late in the trial to present

him as a Witness. 

Pro Se Supplemental Brief, at 10-11. 

This argument undermines Corbray’s assertion that he did not know of

Michael’s identity until his case was on appeal. Although he does not identify Michael

by name, his brief reveals that he located Michael and discussed his proposed

testimony with his attorney. Consequently, Michael’s affidavit does not constitute

newly discovered evidence because its content was known during trial. Aaron’s

affidavit shares the same shortcoming, as it reveals that Aaron and defense counsel

discussed the possibility of Michael testifying, with counsel apparently deciding

against it. 

Moreover, to the extent that both affidavits support Corbray’s and Williams’s

testimony concerning the events that occurred on January 6, 2001, they are

cumulative. They are impeaching as well, since they discredit Donovan’s testimony

that she left the 72nd Street Pub with Aaron. The affidavits do not meet the criteria of

newly discovered evidence. 

As stated, Corbray also asserts that he received ineffective assistance of

counsel. He argues that his attorney was ineffective because (1) he told Aaron not to

testify about Michael; (2) he failed to interview Michael and to submit Michael’s

affidavit as newly discovered evidence supporting a new trial; (2) he failed to cross

examine Donovan about her inconsistent statements to an emergency room doctor

and a police officer; and (3) he failed to conduct DNA tests of the rape kit evidence

that would have established Corbray’s innocence. 

As stated, Corbray raised a claim of ineffective assistance on direct appeal,

arguing that his attorney did not retain a forensic expert or interview and subpoena

potential witnesses. A petition will not be considered if it presents grounds that have

been previously heard and determined. An issue will be barred on this ground if 

“(1) [T]he same ground presented in the subsequent application was

determined adversely to the applicant on the prior application, (2) the

prior determination was on the merits, and (3) the ends of justice

would not be served by reaching the merits of the subsequent

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application.” 

In re Haverty, 101 Wn.2d 498, 503 (1984) (citing Sanders v. United States, 373 U.S.

1, 15 (1963)). This standard applies to issues previously raised on direct appeal as

well as issues previously raised in a personal restraint petition. In re Jeffries, 114

Wn.2d 485, 487-88 (1990). 

The “same ground” is presented if the same legal basis for granting relief is

raised. In re Taylor, 105 Wn.2d 683, 688 (1986). The substantial revision of a

previously rejected legal argument does not create a new claim or constitute good

cause to reconsider the original claim. Jeffries, 114 Wn.2d at 488. 

The Fifth Circuit rejected an ineffective assistance claim made on appeal

where the same claim based on different allegations of wrongdoing was raised and

rejected in an earlier habeas proceeding. Cunningham v. Estelle, 536 F.2d 82, 83 (5th

Cir. 1976). “[A]ppellant cannot raise the same ground here by simply varying the

factors that he claims demonstrate incompetency.” Cunningham, 536 F.2d at 83.

Similarly, the Washington Supreme Court rejected an ineffective assistance claim

made in a personal restraint proceeding where the court already had considered and

rejected on direct appeal numerous challenges relating to the petitioner’s trial court

representation. In re Lord, 123 Wn.2d 296, 313, clarified, 123 Wn.2d 737, cert.

denied, 513 U.S. 849 (1994). 

The only new allegations of incompetency that Corbray could not have raised

on direct appeal and that arguably meet the “ends of justice” standard are those

concerning the two affidavits. As shown above, the substance of both affidavits was

known and discussed during Corbray’s trial. Consequently, they do not constitute

newly discovered evidence that warranted a new trial. Aaron’s testimony concerning

what Michael told him would have been inadmissible hearsay, and counsel’s decision

not to have Michael testify was tactical. See ER 801; State v. Mannering, 150 Wn.2d

277, 285-86 (2003) (decision not to call witness was strategic and did not support

ineffective assistance claim). None of Corbray’s arguments regarding the two

affidavits supports a claim of ineffective assistance of counsel. See State v. Thomas,

109 Wn.2d 222, 225-26 (1987) (to show ineffective assistance, defendant must

demonstrate that counsel’s performance was both deficient and prejudicial). This

court declines to consider Corbray’s additional allegations of ineffective assistance.

[

2

The correct spelling of Michael’s last name is something of a mystery. The affidavit spells it as

both “McLoud” and McCloud.” Michael states in his affidavit that he had outstanding driving

warrants at the time of the events in question. After the State responded that it could find no such

person with outstanding warrants on January 6, but that Michael McLeod did have outstanding

warrants later in January, Corbray replied that Michael’s last name was “McLeod” and that he was

the man the State identified in its response [footnote in the text]. 

[

3

The trial court transferred his CrR 7.8 motion for relief to this court for treatment as a personal

restraint petition. See CrR 7.8(c)(2) [footnote in the text].

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Where, as in this case, the state courts have considered the substance of the McLeod

affidavit, its admissibility, and the credibility of Petitioner’s claim that he did not know the identity of

the driver at the time of trial, an evidentiary hearing before the district court would serve no purpose

except to possibly contradict the state court findings. See Paragraph IV above.

REPORT AND RECOMMENDATION- 18

(Dkt. #19, Exh. 8 at 3-7).

The Supreme Court denied review, affirming, inter alia, that the identity of the witness who

was not called to testify was known to Petitioner at time of trial and that had he testified as stated in

his affidavit, his testimony would have been merely cumulative and impeaching and therefore, not

newly discoverable. 1

The State argues that Petitioner’s claim does not make sense. Why would his trial counsel,

whose entire trial strategy was based on the theory that someone other than Petitioner raped and

assaulted Ms. Donovan, inexplicably prohibit Mr. Fox from testifying as to the true identity of the

driver of the car from where Ms. Donovan emerged at the club? The State argues that this also does

not make sense when it is viewed from the standpoint of when the claim first emerged. Even though

the identity of the driver would be critical to Petitioner’s case (if the driver had some information of

another man attacking Ms. Donovan), the issue was not raised on direct appeal. (Dkt. 19, Exh. 2). 

Although, Petitioner makes reference in his pro se brief of defense counsel knowing the “identity of

the driver of the car Donovan left with . . . would be critical . . . , ” the affidavits appear for the first

time with Petitioner’s personal restraint petition, filed more than two years after he was sentenced. 

(Id., Exh. 7).

Mr. Alton declares that prior to trial, Petitioner and other defense witnesses, including Mr.

Fox, told him they did not know the identity of the driver of the car Petitioner claimed he found Ms.

Donovan in, and that it was only after trial that Mr. Fox gave him the statement of Mr. McLeod. 

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This assessment of the admissibility of Mr. Fox’s proposed testimony was the same

conclusion reached by the Washington Court of Appeals, See Dkt. #19, Exh. 8 at 7. 

REPORT AND RECOMMENDATION- 19

(Dkt. # 21, Exh. 2 at 1, ¶¶ 2, 7). Because he believed any testimony from the driver would be

harmful to the case unless the driver or a passenger would testify that he beat up Ms. Donovan and

because he believed that was extremely unlikely to happen, Mr. Alton did not investigate the driver’s

identity. (Id. at ¶ 3). Mr. Alton also states that he felt the testimony of the driver would only

enhance Ms. Donovan’s testimony because it would only tighten the time frame in which Ms.

Donovan received her injuries to the time she was with the Petitioner. (Id. at ¶ 4). Mr. Alton

concludes that Mr. Fox could not have testified about the identity of the driver because his testimony

at trial was that he left the bar before Petitioner located Ms. Donovan and removed her from the car

and that once he left the bar he spent the rest of the night at home in bed sound asleep. (Id. at ¶ 5). 

Thus, his testimony about his alleged knowledge of the identity of the driver would be inadmissible

hearsay as he would have to rely on others’ accounts as to who the driver was.2

 Finally, and perhaps

most telling, is Mr. Alton’s assessment of the contents of Mr. McLeod’s affidavit and the reason why

he did not file it:

7. After the trial was over, Mr. Fox gave me a statement of a Mr. McLeod. The

statement said he was the driver of the car, he gave Donovan a ride, and dropped her

off at the Golden Bear Bar. McLeod’s statement did not mention McLeod’s beating

up Donovan, witnessing her beaten up, or observing any indication that she had been

beaten up.

8. I did not file any motions based on this statement because McLeod’s statement

would have reduced the time frame in which Donovan’s injuries were inflicted to the

time she was with Mr. Corbray.

(Id. at ¶¶ 7-8). 

As noted by the State, Mr. Alton assembled a cast of witnesses in Petitioner’s defense to

testify that Petitioner never assaulted or raped Ms. Donovan in an attempt to overcome the damaging

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statements given to the police by Aaron Fox and Marcia Ford. (See Dkt. # 19, Exh. 18, Vol. 4,

Testimony of Spencer Miller, Krista Fox, Aaron Fox, Pat Williams, Dennis Corbray). Petitioner’s

mother, Marcia Ford, who was at the house, testified she did not see anything. (Id., Exh. 19, Vol. 5

at 327-335). Tamara Corbray, Petitioner’s sister and also a State’s witness, testified she did not

observe any assault or rape of Ms. Donovan by Petitioner. (Id., Exh. 17, Vol. 3 at 90-111). The

state courts found that the proposed affidavits would have been cumulative of the evidence already

presented; specifically, the testimony of Petitioner and Mr. Williams. 

 State court findings of fact are presumed correct unless the petitioner rebuts the presumption

by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Under 28 U.S.C. § 2254(d)’s

“unreasonable application” clause, “a federal habeas court may not issue the writ simply because the

court concludes in its independent judgment that the state-court decision applied Strickland

incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citing Bell v. Cone, 535

U.S. 685 (2002)). “Where . . . the states court’s application of governing federal law is challenged,

it must be shown to be not only erroneous, but objectively unreasonable.” 

Counsel’s decision to not call Mr. McLeod as a witness was a strategic one and does not give

rise to a finding of ineffective assistance of counsel. The duty to investigate and prepare a defense is

not limitless and does not necessarily require that every conceivable witness be interviewed. United

States v. Tucker, 716 F.2d 576, 584 (9th Cir. 1983). Additionally, the decision to call a witness falls

well within the wide latitude counsel must have in making tactical decisions. Strickland, 466 U.S. at

689. 

Petitioner’s claims relating to the driver of the car have been adjudicated and have been found

not credible and without merit. Even if we assume that Mr. McLeod drove Ms. Donovan to the

Golden Bear as he claims to have done, the state courts’ adjudication of the issue is not objectively

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unreasonable. The Washington courts analyzed the affidavit and petitioner’s claimed knowledge at

the time of trial and found, upon Petitioner’s own admission, that he knew the driver’s identity at the

time of trial. Therefore, the evidence could not be considered “newly discovered.” (Dkt. #19, Ex. 8,

p. 4-5, quoting Petitioner’s pro se brief). The Court of Appeals also found that proposed testimony

of Mr. Fox and Mr. McLeod would be cumulative to the testimony of Petitioner and Mr. Williams at

trial. (Id. at 5). This finding was not unreasonable as there is nothing in Mr. McLeod’s affidavit that

would shed any light on who assaulted Ms. Donovan. Indeed, as noted by Petitioner’s trial counsel,

the affidavit could have been more damaging to Petitioner’s case as it narrows the time frame in

which Ms. Donovan was assaulted to the time she was with Petitioner as Mr. McLeod does not state

that he or anyone else assaulted or raped her.

To show ineffective assistance, Petitioner must demonstrate that counsel’s performance was

both deficient and prejudicial. The record reflects that counsel’s decision not to call McLeod did not

fall below an objective standard of reasonableness. Even assuming that Mr. Alton erred in this

regard, the court is not persuaded that, but for such error, the result would have been different," 

Strickland, 466 U.S. at 694, in light of the cumulative nature of the testimony.

E. Cross-Examination of Ms. Donovan Was Objectively Reasonable

Petitioner next argues that Mr. Alton was ineffective in not aggressively cross-examining Ms.

Donovan on the stand. He points to several instances in her testimony, including statements she

made to Dr. Porter and to the police, where he believes she was inconsistent in her statements, and

argues that these inconsistencies should have been highlighted by his counsel during his crossexamination of Ms. Donovan during trial. The State counters that Mr. Alton’s cross-examination

was an objectively reasonable tactic because, as a young woman who had been severely beaten and

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raped and who was obviously very nervous on the stand, Ms. Donovan probably aroused sympathy

among the jury. The State argues that to have aggressively cross-examined her, would have more

likely been counterproductive to the Petitioner and the strategy chosen by Mr. Alton, to concentrate

on Ms. Donovan’s inconsistencies during his closing, was the more reasonable approach. The State

notes that, in closing, Mr. Alton touched on those inconsistencies, such as Ms. Donovan’s

evasiveness as to the amount of alcohol she had consumed (Dkt. # 19, Exh. 19, Vol. 5 at 354-355);

that at the hospital, Ms. Donovan said Mr. Corbray attacked her in the parking lot (Id. at 356, 359);

that the extent of her injuries and results of CT scan and x-rays were inconsistent with the weight of

Mr. Corbray had he actually stomped on her head and hit Ms. Donovan for an hour as she claimed

(Id. at 356-357, 368-69); that Krista Fox never heard any yelling or screaming, contrary to

Donovan’s testimony that Mr. Corbray dragged her out of the car and started beating her (Id. at

361); and, that Tamara Corbray and her boyfriend Spencer Miller would have heard yelling and

screaming if the rape and beating occurred inside their house. (Id. at 364). 

Petitioner first claimed he received ineffective assistance of counsel on direct appeal, for

having failed to retain a forensic expert or interview and subpoena potential witnesses. (Id., Ex. 3). 

In his personal restraint petition, he raised this issue of his counsel’s failure to cross-examine Ms.

Donovan about her inconsistent statements to an emergency room doctor and a police officer. The

Court of Appeals refused to consider the ground, however, as having been previously heard and

determined on direct appeal. (Dkt. # 19, Exh. 8 at 6). 

Even if this court were to agree with Petitioner that his counsel’s performance in crossexamining Ms. Donovan fell outside the wide range of reasonable assistance, Strickland, 466 U.S. at

689, it must still be persuaded that, but for counsel's unprofessional errors, the result would have

been different." Strickland, 466 U.S. at 694. Given the sensitive nature of the injuries suffered by

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Ms. Donovan, the court agrees that it was not unreasonable for trial counsel to choose to

concentrate on the inconsistencies in her testimony during his closing rather than during his crossexamination. 

F. Denial of Opportunity to Cross-Examine Dr. Porter Was Not Violation of

Confrontation Clause

Petitioner also claims that his constitutional Sixth and Fourteenth Amendment rights to

confront witnesses against him when he was denied the opportunity to cross-examine Dr. Porter. 

Dr. Bell was one of the physicians who saw Ms. Donovan at the hospital. (Dkt. 19, Exh. 17,

Vol. 3 at 76). Dr. Bell testified that Dr. Porter was the treating physician of Ms. Donovan in the ER. 

(Id. at 77). At the time of the trial, Dr. Porter was unavailable because he had been deployed to

Afghanistan. Dr. Bell testified as to the story related by Ms. Donovan at the hospital and the extent

of her injuries. (Id. at 79-82). 

The Washington Court of Appeals adjudicated this issue on the merits, finding no violation of

Petitioner’s Sixth Amendment confrontation rights:

Corbray raises a separate claim concerning his inability to cross examine Dr.

Clifford Porter, the doctor who interviewed and examined Donovan in the emergency

room. Because Dr. Porter was in Afghanistan at the time of trial, another emergency

room physician, who also examined Donovan, testified regarding Porter’s medical

report and his record of Donovan’s statements. Corbray argues that his evidence was

improperly admitted in violation of his confrontation clause rights. 

The confrontation clause of the United States Constitution precludes the

admission of hearsay testimony offered against a criminal defendant unless that

statement falls within a “firmly rooted” exception to the hearsay rule. State v. Woods,

143 Wn.2sd 561, 595 (2001). The medical treatment and business record exceptions

to the hearsay rule are firmly rooted, and Donovan’s statements to Dr. Porter and his

record of her injuries were admissible to Dr. Porter and his record of her injuries were

admissible under those exceptions. See In re Grasso, 151 Wn.2d 1, 19 (2004); State

v. Monson, 113 Wn.2d 833, 847 (1989); State v. Alexander, 64 Wn. App. 147, 156-

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57 (1992).

Corbray does not argue that the records include testimonial hearsay that

would require the opportunity to cross examine the declarant. See Crawford v.

Washington, 541 U.S. 36 (2004) (confrontation clause bars testimonial hearsay unless

declarant is unavailable and defendant had prior opportunity for cross examination).

In any event, Donovan testified during trial and was available for cross examination

about her statement to Dr. Porter. Corbray was afforded his full rights under the

confrontation clause. 

(Dkt. # 19, Exh. 8 at 7-8).

The Washington Supreme Court also adjudicated the claim, also finding no violation of the

Confrontation Clause: 

Finally, Mr. Corbray contends that his right of confrontation was violated

when a physician testified to the records of the physician who had examined the

victim. These records included both the examining physician’s medical report and

statements the victim made to him. (The examining physician was unavailable.) But

the Acting Chief Judge correctly observed that the records were admissible, without

violating the confrontation clause, under the medical treatment and business records

hearsay exceptions. See In re Grasso, 151 Wn.2d 1, 19, 84 P.3d 859 (2004); State v.

Alexander, 64 Wn. App. 147, 156-57, 822 P.2d 1250 (1992). Mr. Corbray relies on

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

But Crawford applies only to testimonial hearsay statements. Mr. Corbray does not

show that the medical records included any testimonial statements by the examining

physician. And to the extent the records included statements by the victim made in

response to questioning, the victim testified at trial and thus was subject to crossexamination. 

(Dkt. #19, Exh. 10 at 2). 

Criminal defendants in state court trials have a Sixth Amendment right to confront the

witnesses against them. Pointer v. Texas, 380 U.S. 400, 403 (1965). The right ensures reliability by

requiring the witness to make statements under oath, requires the witness submit to crossexamination, and allows the jury to assess the witness' credibility. California v. Green, 399 U.S. 149,

158 (1970); Lee v. Illinois, 476 U.S. 530, 540 (1986). In Crawford v. Washington, 124 S.Ct. 1354,

1369 (2004) the Supreme Court held that testimonial statements of witnesses, “absent from trial have

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been admitted only where the declarant is unavailable and only where the defendant has had a prior

opportunity to cross-examine.” Crawford is retroactive. Bockting v. Bayer, 399 F.3d 1010, 1012

(9th Cir. 2005), cert. granted, 126 S.Ct. 2017 (2006). In Davis v. Washington, 2006 WL 1667285

(U.S. Wash), the Supreme Court described non-testimonial statements as those made in the course of

police interrogation under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency.

The State argues that Ms. Donovan’s statements to Dr. Porter in the emergency room were

non-testimonial and therefore, Crawford does not apply. Dr. Bell was one of the physicians who saw

Ms. Donovan at the hospital. (Dkt. 19, Exh. 17, Vol. 3 at 76). Dr. Bell testified that Dr. Porter was

the treating physician of Ms. Donovan in the ER. (Id. at 77). At the time of trial, Dr. Porter was

unavailable because he had been deployed to Afghanistan. Dr. Bell testified to the story related by

Ms. Donovan at the hospital and to the extent of her injuries. (Id. at 79-82). 

The testimony indicates that Ms. Donovan was in the emergency room seeking emergency

medical help and that the primary purpose for Ms. Donovan’s relating the story of her injuries to Dr.

Porter and Dr. Porter’s compilation of his report was to enable Ms. Donovan to receive medical

assistance. In the emergency room, presumably, Ms. Donovan was not acting as a witness and she

was not testifying. As in Davis, then, Dr. Porter’s report was non-testimonial and his absence at trial

did not violate Petitioner’s confrontation rights. As noted by the Washington courts previously

adjudicating the issue, to the extent statements were made by Ms. Donovan, she was present at trial

and subject to cross-examination. For these reasons, the court finds that the Washington State

courts’ adjudication on the merits of this issue was not contrary to, nor an unreasonable application

of, clearly established federal law. Dows v. Wood, 211 F.3d 480 (9th Cir. 2000).

 

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28 REPORT AND RECOMMENDATION- 26

VI. CONCLUSION

Based on the foregoing discussion, the Court should DENY the petition. 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 and Recommendation 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 October 6,

2006 as noted in the caption. 

DATED this 7th day of August, 2006.

A

Karen L. Strombom

United States Magistrate Judge

Case 3:06-cv-05043-RJB Document 22 Filed 09/07/06 Page 26 of 26