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REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GINA HOWDEN,

Petitioner,

v.

DONNA CAYER, et al.,

Respondents.

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CASE NO. C06-0252-JLR

REPORT AND RECOMMENDATION

INTRODUCTION

Petitioner Gina Howden is a Washington state prisoner who is currently serving a 63-

month sentence for possession and manufacture of a controlled substance. She has filed a pro se

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the revocation of

her alternative sentence under Washington’s “Drug Offender Sentence Alternative” program

(“DOSA”). Respondent has filed an answer and petitioner has filed a reply. After considering the

parties’ submissions and the balance of the record, the court recommends that the petition be

denied with prejudice.

BACKGROUND

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

Petitioner was convicted of possession of a controlled substance and

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REPORT AND RECOMMENDATION

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manufacture of a controlled substance with intent to deliver. She entered a treatment

program after receiving a DOSA sentence. A psychologist evaluated petitioner when

she entered the program and found no mental illness. Petitioner was discharged from

the program for repeated rule violations, which were later found to be

unsubstantiated. No alternative program was available and [the Department of

Corrections] offered Petitioner the opportunity to re-enter the program with a

contract regarding behavior expectations. Petitioner refused this offer, and after a

hearing, her DOSA sentence was revoked.

In the Matter of the Personal Restraint of Gina Denice Howden, Order of Dismissal, Case No.

56134-1-l (Wash. Ct. App., Sept. 16, 2005) (Dkt. #18, Ex. 10).

Petitioner filed a personal restraint petition (“PRP”) in the Washington Court of Appeals.

(Dkt. #18, Ex. 7). The court dismissed the PRP. ( Id., Ex. 10). Petitioner filed a motion for

discretionary review in the Washington Supreme Court. (Id., Ex. 11). The court denied review.

(Id., Ex. 13).

On February 6, 2006, petitioner submitted the instant petition for a writ of habeas corpus

under 28 U.S.C. § 2254. (Dkt. #1, Attachment). Petitioner filed an amended petition on May 3,

2006. (Dkt. #7). After receiving an extension of time, respondent filed an answer, along with the

state court record, on July 26, 2006. (Dkt. #16, #18). Petitioner filed a reply to the answer on

October 16, 2006 (Dkt. #21), and the matter is now ready for review.

GROUNDS FOR RELIEF

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

1 .Due Process RCWA Washington Constitution Articles 1 & 3;

2. NON Compliance with procedure – RCWA 9.94A.634; and

3. RCWA 9.94A.737 Community Custody Violations

(Dkt. #7 at 6-9).

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DISCUSSION

Respondent argues at the outset that petitioner’s claims are not cognizable on habeas

review because she failed to exhaust her remedies in state court, as required under 28 U.S.C. §

2254(b)(1). In particular, respondent contends that petitioner failed to raise any federal issues

before the Washington Court of Appeals and that she raised federal due process claims for the first

time in her motion for discretionary review with the Washington Supreme Court. Consequently,

respondent maintains, the Washington Supreme Court was not obligated to consider the claims

and the claims are unexhausted. (Dkt. #16 at 8, citing Castille v. Peoples, 489 U.S. 346 (1989)).

Although respondent may be correct in her assertion that the Washington Supreme Court

could have denied petitioner’s claims because they had not been raised before the Washington

Court of Appeals, it appears that the high court instead chose to examine the merits of petitioner’s

claims and deny them on that basis. Specifically, in the “Ruling Denying Review,” the

Commissioner of the Washington Supreme Court succinctly disposed of petitioner’s due process

claims by stating: “Nor does Ms. Howden support her claim that she was deprived due process

in the [DOSA] revocation proceedings.” (Dkt. #18, Ex. 13). Thus, it appears that the

Washington Supreme Court examined the merits of petitioner’s due process claims, albeit briefly,

and rejected them as lacking support. Such a consideration of the claims appears to satisfy the

exhaustion requirement.

The court need not conclusively resolve the exhaustion question, however, because, as

discussed below, the court finds that petitioner’s claims here lack merit. A federal habeas court

/ / /

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 Although respondent’s answer exclusively addresses the exhaustion issue and does not

discuss the merits of petitioner’s claims, the court may address the merits of the claims based upon

a review of the petition and the state court record. Cf. Rule 4 of the Rules Governing Section

2254 Cases in the United States District Courts. (“If it plainly appears from the petition and any

attached exhibits that the petitioner is not entitled to relief in the district court, the judge must

dismiss the petition. . . .”)

REPORT AND RECOMMENDATION

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may deny a petition on the merits without first requiring exhaustion.1 See 28 U.S.C. 2254(b)(2).

Standard of Review Governing Habeas Petitions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rather, that application must be objectively unreasonable.

538 U.S. at 68-69 (emphasis added; citations omitted).

Thus, the Supreme Court has directed lower federal courts reviewing habeas petitions to

be extremely deferential to decisions by state courts. A state court’s decision may be overturned

only if the application is “objectively unreasonable.” 538 U.S. at 69.

Standard of Review Governing Petitioner’s Due Process Claims

Petitioner’s claims are based on alleged due process violations that occurred at the hearing

in which her DOSA sentence was revoked. Minimal due process requirements for a similar type

of hearing were set forth by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

 In Morrissey, the Court held that the following due process rights attached to a hearing for parole

revocation:

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of

evidence against him; (c) opportunity to be heard in person and to present witnesses

and documentary evidence; (d) the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically finds good cause for not allowing

confrontation); (e) a “neutral and detached” hearing body such as a traditional parole

board, members of which need not be judicial officers or lawyers; and (f) a written

statement by the factfinders as to the evidence relied on and reasons for revoking

parole.

408 U.S. at 489.

In proceedings before the state court, respondent conceded that petitioner, facing the

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possibility of revocation of her DOSA sentence, was entitled to the procedural safeguards

established in Morrissey. (Dkt. #18, Ex. 8 at 9). Accordingly, the court will apply this standard

here, where appropriate, to petitioner’s claims of due process violations.

Petitioner’s First Ground for Relief

In her habeas petition, petitioner does not set forth the facts supporting her first ground

for relief. Rather, she appears to quote from a case regarding due process protections in sentence

revocation cases. However, in the memorandum she attaches to her petition, under “Ground

One,” petitioner states: “The evidence in the [DOSA revocation] hearing was based on my

refusing to re-enter the [treatment] program to fulfill my DOSA requirements. The reasons WHY

I would not re-enter were discounted and passed over by all parties up to this point. The

[Department of Corrections] was not made to prove that alternative treatment could not be found

for me, they merely made the statement that they looked but never gave facts as to why I could

not do my DOSA treatment elsewhere more appropriate for my needs.” (Dkt. #5, Attachment at

7).

In terms of the procedural safeguards required under Morrissey, petitioner’s allegations

appear to implicate her right “to be heard in person and to present witnesses and documentary

evidence,” and possibly also her “right to confront and cross-examine adverse witnesses.” 408

U.S. at 489. Petitioner’s factual assertions, however, are belied by the record. In proceedings

before the state court, the hearing officer who conducted the DOSA revocation hearing, Kimberly

Miller, filed a declaration. (Dkt. #18, Ex. 6). In that declaration, Ms. Miller stated that she did

not recall disallowing any of petitioner’s witnesses, and that she in fact allowed one live witness

to testify on petitioner’s behalf. (Id. at 2). In addition, the written report that Ms. Miller issued

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after the hearing shows that petitioner attended the hearing and presented written statements from

other inmates on her behalf. (Id., Attachment A at 4).

Moreover, the written report of Ms. Miller establishes that before issuing her decision, she

considered petitioner’s reasons for not wanting to continue the treatment program and also

weighed evidence that DOC staff had looked for an alternative program. Thus, it appears that the

hearing comported with the procedural safeguards set forth in Morrissey. The state court decision

upholding the DOSA revocation was consequently not “objectively unreasonable,” and petitioner’s

first claim for relief should be denied.

Petitioner’s Second Ground for Relief

Petitioner’s second ground for relief is ambiguous. Based on her memorandum, it appears

that either petitioner is arguing that the hearing officer did not apply the correct standard of proof

– “preponderance of the evidence” – at the DOSA revocation hearing, or that the officer applied

the correct standard but that her conclusion did not satisfy the standard.

Regardless of which interpretation the court ascribes to petitioner’s argument, however,

her claims are contradicted by the record. In her written report, Ms. Miller cited the evidence that

was presented by both sides before concluding that “[b]ased upon a preponderance of the evidence

it is clear to me that despite the other issues that Ms. Howden has at [the prison], the bottom line

is that she refused to re-enter treatment as recommended and offered by the DOC. ” (Dkt. #18,

Ex. 6, Attachment A at 6). These facts compelled Ms. Miller to conclude that she had “no choice

but to revoke the DOSA sentences.” (Id.)

Thus, the hearing officer applied the correct standard and relied upon an undisputed fact

– that petitioner had voluntarily refused to re-enter the treatment program – in her decision.

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2

 Petitioner appears to also argue that her history of mental health issues precluded her

from functioning in the treatment program and that the hearing officer did not give adequate

weight to this as an extenuating circumstance that mitigated petitioner’s refusal to re-enter the

treatment program. (Dkt. #5, Attachment 1 at 9-11). However, petitioner’s mental health history

was vigorously disputed in the state court proceedings and the state court found that petitioner

“has not been diagnosed with any mental illness or disorder requiring treatment.” (Dkt. #18, Ex.

10 at 2). This factual finding is presumed to be correct and can be disturbed, on habeas review,

only if the petitioner presents “clear and convincing evidence” to the contrary. 28 U.S.C.

§2254(e)(1). Petitioner has failed to produce such evidence.

REPORT AND RECOMMENDATION

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Consequently, the state court decision upholding the DOSA revocation was not “objectively

unreasonable,” and petitioner’s second claim for relief should be denied.2

Petitioner’s Third Ground for Relief

In her third ground for relief, petitioner does not cite any federal due process protections

nor allege any specific factual violations of such protections. Rather, petitioner appears to discuss

a general principle that the Washington Legislature intended that the Department of Corrections

apply procedural safeguards before revoking “community custody” sentences. Because she does

not cite any specific violations cognizable on habeas review, petitioner’s third claim for relief may

be summarily denied.

CONCLUSION

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

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

DATED this 6th day of November, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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