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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

MATTHEW FRANZINO BOLAR,

Petitioner,

v.

F. LUNA, et al.,

Respondents.

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Case No. C05-2029-TSZ-JPD

REPORT AND RECOMMENDATION

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Matthew Franzino Bolar has filed a 28 U.S.C. § 2254 petition for writ of

habeas corpus challenging his May 19, 2000 conviction in King County Superior Court. Dkt.

No. 8. Respondents have filed a response opposing the petition, (Dkt. No. 22), to which

petitioner has replied by traverse. Dkt. No. 51. After careful consideration of the pleadings,

supporting materials, governing law and the balance of the record, the Court recommends that

the petition be DENIED and this case DISMISSED with prejudice.

II. FACTS AND PROCEDURAL HISTORY

 Petitioner was charged in King County Superior Court with first degree murder and

first degree felony murder in the course of first degree burglary. Dkt. No. 24, Ex. 3 at 7, Ex.

1. A jury found petitioner guilty of first degree felony murder, but was unable to reach a

unanimous verdict on the first degree murder charge. Id. Ex. 3 at 8. Petitioner received a

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 On July 17, 2000, petitioner filed a form PRP that contained virtually no substantive

argument, but referred to an “attached 25 grounds” and “attached grounds and facts.” Dkt. No.

24, Ex. 34. No such attachment was filed with the PRP, but a fifty-five page brief, submitted on

November 29, 2005, contains the same file number. See id. Ex. 35. The Court treats this

document as the attachment to which petitioner referred in his first PRP.

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firearm enhancement and was sentenced to 500 months incarceration. Id. Ex. 1, Ex. 3 at 8. 

A. Direct Review

Proceeding through counsel, petitioner appealed his conviction to Division One of the

Washington Court of Appeals (“Court of Appeals”). Id. Ex. 4-8. On August 1, 2003, in a

partially published opinion, the Court of Appeals affirmed petitioner’s conviction. Ex. 3,

available at State v. Bolar, 118 Wn.App. 490, 493, 78 P.3d 1012 (2003). 

On October 31, 2003, again proceeding through counsel, petitioner filed a petition for

direct review with the Washington Supreme Court (“Supreme Court”). Dkt. No. 24, Ex. 31. 

Petitioner argued that (1) he had been denied his right to represent himself; (2) the trial court

provided an erroneous accomplice liability jury instruction; (3) the State had failed to

disprove his self-defense claim; (4) the trial court erroneously admitted damaging evidence of

his prior acts; (5) the trial court refused to admit exculpatory evidence; (6) he received

ineffective assistance of counsel; and (7) the prosecutor committed prosecutorial misconduct

during closings arguments. Id. On June 2, 2004, the Supreme Court denied the petition for

review without substantive comment. Id. Ex. 32. On June 23, 2004, the Court of Appeals

issued its mandate. Id. Ex. 33.

B. Collateral Review

Before the conclusion of direct review, petitioner filed two personal restraint petitions

(“PRPs”). The first, filed with the Court of Appeals, recited a laundry list of alleged errors,

including prosecutorial misconduct, judicial misconduct, ineffective assistance of counsel,

due process violations, cumulative error and denials of petitioner’s right to present a defense,

cross examine witnesses, and receive a speedy trial. Id. Ex. No 34.1 The second PRP was

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filed directly with the Supreme Court on October 18, 2002, id. Ex. 37, but was ultimately

transferred to the Court of Appeals. It raised several claims of prosecutorial misconduct and

argued that cumulative error undermined the fairness of petitioner’s trial. Id. The Court of

Appeals stayed both PRPs pending the outcome of petitioner’s direct appeal. Id. Ex. 43. 

Following the conclusion of direct review, the stay was lifted and both PRPs were dismissed

by as barred by R.C.W. § 10.73.140, the State’s prohibition on successive and/or frivolous

petitions. Dkt. No. 24, Exs. 36, 40, 43.

Petitioner then sought Supreme Court discretionary review of both decisions. Id. Ex.

Nos. 41, 42. With respect to the first PRP, petitioner raised over twenty issues, many of

which were vague, conclusory, and overlapping. Id. Ex. 42. He also argued that the judge,

prosecutor and defense counsel conspired to convict him and that he received ineffective

assistance of counsel. Id. Ex. 42. Petitioner’s motion for discretionary review of the second

PRP also raised over twenty challenges. Id. Ex. 41.

The Supreme Court consolidated the two motions and on December 28, 2004, issued a

ruling denying review. Id. Ex. 43. With respect to the first PRP, the Court found that

petitioner failed to “show [that] the trial judge erred in his rulings” or “present any admissible

materials supporting any of his claims for relief.” Id. It agreed with the Court of Appeals

that the claims that had not been adjudicated on direct review were “too conclusory and

unsupported to merit consideration.” Id. It also ruled the “interests of justice” did not

require re-examination of petitioner’s claims. Id.

On January 11, 2005, petitioner filed a motion to modify the Supreme Court’s ruling. 

Id. Ex. 44. The motion itself contained no substantive arguments, but instead incorporated by

reference the claims in the original motions. Id. On March 1, 2005, the Supreme Court

denied the motion to modify without comment. Id. Exs. 45, 46. The Court of Appeals issued

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 The certificate of finality for the second PRP was issued on April 12, 2005, and the

certificate for the first on April 14, 2005. Exs. 47, 48.

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 These PRPs were filed as separate documents on the same day and received separate

case numbers. Dkt. No. 24, Exs. 49, 50. Although the parties briefed these PRPs separately, the

Supreme Court consolidated them and dismissed them in a single order. Id. Exs. 51-55. 

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certificates of finality for the first and second PRPs in April 2005. Id. Exs. 47, 48.2

On January 21, 2005, petitioner filed a third and fourth PRP with the Supreme Court.

Id. Exs. 49, 50.3 In the third PRP, petitioner raised three arguments. Id. Ex. 49. He argued

(1) that the trial court violated his due process rights by erroneously denying a pro se motion

in limine to exclude evidence or prior acts, (2) that his trial counsel provided ineffective

assistance by failing to object to certain testimony, and (3) that arguments one and two,

together with all of his other prior arguments (incorporated only by reference), rendered his

conviction fundamentally unfair and violative of due process. Id. The fourth PRP alleged

two grounds for relief: (1) that petitioner’s trial counsel was ineffective because he failed to

obtain and use readily available exculpatory evidence and (2) that this, and all other prior

arguments resulted in a fundamentally flawed trial that violated due process. Id. Ex. 50. The

State opposed the petitions as successive and meritless. Id. Exs. 51, 52. Petitioner replied

that his claims had never been adequately adjudicated and that he was raising new factual

grounds. Id. Ex. 53, 54.

The Supreme Court transferred the PRPs to the Court of Appeals, which consolidated

and dismissed them on June 21, 2005. Id. Ex. 55. It found that petitioner’s evidentiary

arguments had been adequately addressed on direct review and that the ineffective assistance

of counsel claim lacked merit. Id. It also found petitioner’s cumulate error claims

unconvincing. Id. It dismissed the claims as successive, but denied as extraordinary the

State’s motion to bar further filings. Id.

On July 7, 2005, petitioner filed a motion for discretionary review of the dismissal of

the third and fourth PRPs with the Supreme Court. Id. Ex. 56. The motion raised a laundry

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list of issues, including an attack on the constitutionality of R.C.W. § 10.73.140, numerous

ineffective assistance of counsel arguments, the trial court’s erroneous admission of

prejudicial evidence and refusal to grant a limiting instruction, several due process violations,

and cumulative error. Id. On August 30, 2005, the Supreme Court denied the motion

because petitioner had shown “no obvious or probable error meriting . . . review” and because

he had failed to show that he had been prejudiced by any constitutional error. Id. Ex. 57. 

Petitioner moved to modify the decision, incorporating the arguments in his original

motions by reference. Id. Ex. 58. He also argued that the Court of Appeals had selectively

applied its procedural rules to bar his claims without engaging in meaningful analysis on the

merits. Id. On November 11, 2005, the Supreme Court denied the motion to modify without

comment. Id. Ex. 59. The Court of Appeals issued a consolidated certificate of finality for

the third and fourth PRPs on December 30, 2005, . Id. Ex. 60.

On November 28, 2005, petitioner filed a fifth PRP directly with the Supreme Court. 

Id. Ex. 61. In it, he argued that an erroneous accomplice liability instruction had violated his 

due process rights. Id. The State opposed the fifth PRP and petitioner replied. Id. Exs. 62,

63. The PRP was transferred to the Court of Appeals and later denied on March 2, 2006. Id.

Ex. 64. Specifically, the Court of Appeals found that the instructional error argument had

been addressed on direct appeal and that the instruction had caused no “actual and substantial

prejudice” and eventually dismissed the entire PRP pursuant to R.C.W. § 10.73.140, the

State’s rule barring successive petitions. Id.4

On March 23, 2006, petitioner filed a motion for discretionary review in the Supreme

Court. Id. Ex. 65. The motion raised ten arguments related to petitioner’s claim that the

Court of Appeals erroneously rejected his argument regarding the accomplice liability

instruction. Id. The Supreme Court denied the motion on May 26, 2006, finding the trial

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court’s “referring to knowing participation in ‘a’ crime rather than ‘the’ crime” in its

instruction to be harmless error that, beyond a reasonable doubt, did not contribute to the

verdict against petitioner. In re Bolar, Case No. 78476-1 at 1 (Wash. May 26, 2006)

(unpublished opinion). Specifically, the court held that the error was harmless “in light of the

overwhelming evidence that Mr. Bolar not only directly participated in the predicate felony of

first degree burglary[,] but was the killer.” Id. (citing State v. Bolar, 118 Wn.App. 490, 506,

78 P.3d 1012 (2003); State v. Carter, 154 Wn.2d 71, 78-79, 109 P.3d 823 (2005)). The

Supreme Court also concluded that petitioner had failed to demonstrate that the interests of

justice required re-examination of the error. In re Bolar, Case No. 78476-1 at 2.

On December 7, 2005, petitioner filed the present 28 U.S.C. § 2254 petition for writ

of habeas corpus. He partially amended the petition on December 23, 2006. Dkt. No. 6.5

 

After several extensions of time were granted to allow the respondents to obtain and review

the lengthy state-court record, respondents filed an answer. Dkt. Nos. 17-22. Petitioner’s §

2254 petition, the parties’ numerous pleadings, and the complete record in this case are now

before the Court. 

III. ISSUES PRESENTED

Petitioner’s voluminous petition lists thirty separate grounds for relief. Dkt. Nos. 1-4,

9-11, 13. Many of the grounds involve similar, if not identical, legal theories and

overlapping factual allegations. In order to avoid a cumbersome and duplicative analysis, the

Court has grouped petitioner’s claims into general categories by claim, each of which are

addressed in the analysis section below. Petitioner’s claims can be grouped into eleven major

categories: (1) ineffective assistance of counsel; (2) right to self-representation; (3) right to

present a defense; (4) right to exclude prejudicial evidence; (5) prosecutorial misconduct; (6)

speedy trial violations; (7) jury bias; (8) deficient jury instructions; (9) insufficient evidence;

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No. 8, but will contain reference to only the pertinent claim number(s) (“Claim No.”) as found

in that entry. The lowercase use of the word “claim” refers to earlier, state court versions of what

later became petitioner’s federal habeas claims.

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(10) unconstitutionality of state collateral review rule; and (11) cumulative error. Each

category contains a flurry of subclaims, which the Court outlines as follows:

A. Ineffective Assistance of Counsel:

1. Trial counsel failed to obtain exculpatory evidence from John

Cahill (a resident of house where the crime occurred) that could have been

used to impeach Cahill’s trial testimony and refute the prosecution’s felony

murder theory. Claim No. 1.6

2. Trial counsel failed to object to or obtain a limiting instruction

for Marie Zemek’s testimony that petitioner allegedly threatened to harm her

baby. Claim No. 3.

3. Defense counsel Mike Danko and John Hicks violated the

attorney-client privilege by disclosing to the prosecutor statements petitioner

made regarding the whereabouts of his accomplice. Claim No. 11.

4. An assortment of other claims, including that defense counsel

Danko disclosed the location of petitioner’s accomplice, defense counsel

David Roberson delayed the issuance of defense witness subpoenas, defense

counsel John Hicks disclosed attorney-client confidences regarding petitioner’s

desire to be represented by counsel, and defense counsel Tony Savage’s

refusal to play certain witness tapes at trial. Claim No. 16.

5. Trial counsel Savage made statements in his closing regarding

the victim’s status as a confidential informant and why someone would be at

scene of the crime that, according to the petitioner, demonstrated to the jury

that Mr. Savage believed petitioner was guilty. Claim No. 20.

6. Trial counsel declined to show Kristine Zemek’s deposition to

the jury. Claim No. 21.

7. Trial counsel erroneously failed to object to the first aggressor

instruction. Claim No. 27.

B. Right to Self-Representation: The trial court refused to allow petitioner to

proceed pro se, despite repeated requests, defense counsel’s failure to prepare, and a

looming trial date. Claim Nos. 13, 22.

C. Right to Present a Defense:

1. The trial court erroneously denied petitioner’s request to admit

unedited versions of deposition tapes of defense witnesses Trina Baldwin and Kristine

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relieved the defense of its burden of proving guilt beyond a reasonable doubt. See Claim Nos.

2, 24.

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Zemek, which would have had impeachment value. Claim No. 15.

2. The trial court erroneously excluded evidence the victim’s

status as a confidential informant and his prior bad acts, which would have

helped to explain petitioner’s state of mind in relation to his self defense

argument. Claim Nos. 12, 25.

D. Right to Exclude Prejudicial Evidence:

1. Trial court erroneously admitted testimony from Marie Zemek

that petitioner had threatened to kill her baby. Claim Nos. 2, 24.7

E. Prosecutorial Misconduct:

1. The prosecutor erroneously led the jury to believe that

petitioner knew Kristine Zemek had a protection order against him. Claim No.

4.

2. The prosecutor erroneously left a photograph of the victim’s

gunshot wound on display during his two hour cross-examination of defense

witness Dr. Robert Olsen, which inflamed the jury’s passions. Claim No. 5.

3. The prosecutor introduced a hearsay report from a Dr. James

Butcher. Claim No. 6.

4. The prosecutor improperly treated petitioner’s self defense

argument as an insanity defense when he cross examined Dr. Olsen, which

allowed the admission of prior bad acts and led to the violation of several

constitutional rights. Claim Nos. 7, 8.

5. The prosecutor improperly used testimony from Dr. Olsen

regarding petitioner’s propensity to make threats. Claim No. 9.

6. The prosecutor improperly elicited testimony from Dr. Olsen

regarding petitioner’s veracity when petitioner’s character had not yet been

made an issue. Claim No. 10.

7. The prosecutor improperly intruded into petitioner’s attorneyclient relationship to discover the location of petitioner’s accomplice. Claim

No. 18.

8. The prosecutor misstated the law of self defense to the jury. 

Claim No. 19, 28.

E. Speedy Trial: Petitioner’s speed trial rights were violated by

unspecified delays that gave tactical advantage to the prosecutor and

prejudiced his case (e.g., at least one defense witness became unavailable). 

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Claim No. 14.

F. Jury Bias. The trial court erred by failing to hold a hearing to

determine whether the jury had been impacted by a newspaper article reporting

that petitioner had threatened his defense counsel. Claim No. 17.

G. Deficient Jury Instruction: Jury instruction number fifteen misstated

the law of accomplice liability by stating petitioner had to have knowledge of

any crime, not the alleged burglary predicate. Claim No. 23.

H. Insufficient Evidence to Convict: The prosecution failed to disprove

petitioner’s self defense claim. Claim No. 26.

I. Unconstitutional State Collateral Review Rule: R.C.W. § 10.73.140,

the State’s bar on successive and/or frivolous petitions, is unconstitutional

because it allows for “arbitrary and/or selective” dismissal without evaluating

the merits of a PRP. Claim No. 29.

J. Cumulative Error: All of the aforementioned claims render petitioner’s

trial proceedings fundamentally unfair. Claim No. 30.

Respondents’ answer argues that petitioner has (1) failed to exhaust seventeen of his

thirty claims, each of which are procedurally barred by adequate and independent state

grounds; (2) raised two claims which should be dismissed for failure to present a cognizable

federal question, and (3) raised eleven exhausted claims that are without merit. Dkt. No. 22.

The Court proceeds to these arguments in turn. 

IV. ANALYSIS

A. Petitioner Has Exhausted Twenty-Two of his Thirty Claims

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214 (1996), governs petitions for habeas corpus filed by prisoners who

were convicted in state courts. 28 U.S.C. § 2254. In order for a federal district court to

review the merits of a § 2254 petition, the petitioner must first exhaust his state court

remedies. 28 U.S.C. § 2254(b)(1)(A); Fields v. Waddington, 401 F.3d 1018, 1020 (9th Cir.

2005). The purpose of the exhaustion doctrine is to preserve federal-state comity which, in

this setting, provides state courts an initial opportunity to correct violations of its prisoners’

federal rights. Picard v. Connor, 404 U.S. 270, 275 (1971); Ex parte Royall, 117 U.S. 241,

251 (1886). A petitioner can satisfy the exhaustion requirement by either (1) fairly and fully

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Washington Supreme Court to those “raised in . . . the petition for review and the answer.” State

v. Collins, 121 Wn.2d 168, 847 P.2d 919, 924 (1993). For exhaustion purposes, then, a petition

for review must contain “[a] concise statement of the issues presented for review.” R.A.P.

13.4(c)(5), (7); R.A.P. 10.3(a)(5). The Washington Supreme Court has additionally “required that

the petition for review state the issues with specificity.” Collins, 121 Wn.2d at 178, 847 P.2d at

924 (citing Clam Shacks of Am. Inc. v. Skagit County, 109 Wn.2d 91, 98 743 P.2d 265 (1987)).

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presenting each of his federal claims to the highest state court from which a decision can be

rendered, or (2) demonstrating that no state remedies are available to him. Johnson v. Zenon,

88 F.3d 828, 829 (9th Cir. 1996). A petitioner fairly and fully presents a claim if he submits it

“(1) to the proper forum, (2) through the proper vehicle, and (3) by providing the proper

factual and legal basis for the claim.” Insyxiengmay v. Morgan, 403 F.3d 657, 668 (9th Cir.

2005) (internal citations omitted).

The Ninth Circuit requires that a habeas petitioner explicitly identify the federal basis of

his claims either by identifying specific portions of the federal Constitution or statutes, or by

citing federal or state case law that analyzes the federal Constitution. Insyxiengmay, 403 F.3d

at 668; Fields, 401 F.3d at 1021. Alluding to broad constitutional principles, without more,

does not satisfy the exhaustion requirement. Id. Although pro se petitioners may be entitled

to more leniency than habeas petitioners with counsel, Sanders v. Ryder, 342 F.3d 991, 999

(9th Cir. 2003), such petitioners ordinarily do not satisfy the exhaustion requirement if the

state court must read beyond their motion in order to ascertain their claims. Baldwin v. Reese,

541 U.S. 27, 32 (2004).8

In this case, the exhaustion analysis is complicated by the large number of direct and

collateral state court attacks, the number of claims raised in each, and the verbose nature of

petitioner’s prose. Because of these factors, it is difficult to tell precisely which claims have

been properly exhausted. Nevertheless, after careful analysis of the record and after resolving

all doubts in petitioner’s favor, it appears that twenty-two of his thirty claims are properly

exhausted, comprising eight of the eleven general categories outlined above.

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1. Ineffective Assistance of Counsel

Petitioner’s § 2254 petition alleges more than half a dozen instances of ineffective

assistance of counsel. Dkt. No. 8. However, the factual and legal basis for only three of these

claims was presented to the Washington Supreme Court: (1) that trial counsel failed to obtain

and utilize evidence to impeach John Cahill’s testimony; (3) that trial counsel failed to object or

obtain a limiting instruction for Marie Zemek’s testimony that petitioner threatened to harm

her baby; and (27) trial counsel failed to object to jury instruction 25, which stated that an

initial aggressor is not entitled to self-defense. Dkt. No. 24, Ex. 49 (claim 1); Ex. 50, (claim

2); Ex. 56 (claims 3-6). The factual basis of petitioner’s three remaining ineffective assistance

claims were never presented to the State courts and may not now be raised, as explained

below. See infra § IV.B. 

2. Right to Self-Representation

In two separate claims, petitioner alleges that the trial court denied him the opportunity

to proceed pro se. Claim Nos. 13, 22. These claims are sufficiently related to be considered as

a single claim. They were properly exhausted in petitioner’s petition for direct review to the

Washington Supreme Court. Dkt. No. 24, Ex. 31 at 5.

3. Right to Present a Defense, Have Relevant Evidence Admitted

In three separate claims, petitioner alleges that his right to present an adequate defense

was violated. Claim Nos. 12, 15, 25. In two of the claims, petitioner alleges that evidence of

his victim’s prior crimes and status as a confidential informant was erroneously excluded. 

Claim Nos. 12, 25. These claims are sufficiently related to be considered as a single claim and

were properly exhausted his petition for direct review to the Washington Supreme Court. Dkt.

No. 24, Ex. 31 at 17-18. The same cannot be said for Claim No. 15, relating to the trial

court’s denial of petitioner’s request to admit unedited versions of Trina Baldwin and Kristine

Zemek’s deposition recordings at trial for impeachment purposes. This claim appeared for the

first time in petitioner’s 2254 petition, and is barred for the reasons discussed below. See infra

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self defense argument as an insanity defense, which allowed the admission of damaging “prior

acts” evidence. These claims are substantially related and were exhausted in petitioner’s October

18, 2002 PRP. Dkt. No. 24, Ex. 37 (claims 4 and 5). Similarly, petitioner’s 19th and 28th claims

allege that the prosecutor misstated the law of self defense to the jury. Claim Nos. 19, 28. These

claims are substantially overlapping and were sufficiently exhausted petitioner’s motion for

discretionary review during his direct review proceedings. Id. Ex. 31 at 21-22.

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§ IV.B. 

4. Right to Exclude Prejudicial Evidence

Petitioner also alleges that the trial court erroneously admitted testimony from Marie

Zemek regarding threats petitioner had allegedly made against her baby (Claim No. 2), as well

as evidence that petitioner assaulted Kristine Zemek. Claim No. 24. Petitioner exhausted the

first claim in his July 7, 2005 motion for discretionary review regarding the dismissal of his

third and fourth PRPs, as well as in the third PRP itself. Dkt. No. 24, Ex. 31 at 56, Ex. 49. 

The second claim was properly exhausted by its filing in petitioner’s October 31, 2003 motion

for discretionary review. Id. Ex. 31 at 15-16.

5. Prosecutorial Misconduct

Petitioner raises nearly a dozen arguments he characterizes as “prosecutorial

misconduct.” Claim Nos. 4-11, 18-19, 28. Petitioner raised all but one of these claims in his

October 18, 2002 PRP, which was submitted to the Supreme Court but transferred to the

Court of Appeals. Dkt. No. 24, Ex. 37 (claims 1-7).9 Respondents argue that these claims are

not properly exhausted because the PRP was transferred to the Court of Appeals for review

and because petitioner’s subsequent motion for discretionary review of the Court of Appeals’

dismissal merely incorporated these arguments by reference—a practice that is generally

insufficient for purposes of satisfying the exhaustion requirement. See Baldwin v. Reese, 541

U.S. 27, 30-32 (2004); Kibler v. Walters, 220 F.3d 1151, 1153-54 & n.1 (9th Cir. 2000).

Although the Supreme Court transferred the PRP to the Court of Appeals, it

nevertheless addressed the merits of the prosecutorial misconduct claims in the motion for

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discretionary review. Dkt. No. 24, Ex. 40; see also id. Ex. 43 at 2. This is sufficient for

purposes of exhaustion. See Greene v. Lambert, 288 F.3d 1081 (9th Cir. 2002) (noting that

district courts may address merits of a federal claim where state court addressed merits in

unusual procedural context). Petitioner, however, failed to provide the Supreme Court with

the factual basis for his claim that the prosecutor improperly penetrated petitioner’s attorneyclient relationship to discover the whereabouts of his accomplice. Claim No. 18. Hence, this

particular prosecutorial misconduct claim may not now be raised, for the reasons discussed

below. See infra § IV.B.

6. Speedy Trial

Petitioner also argues that his right to a speedy trial was violated and tactical

advantages lost when unspecified trial delays occurred. Claim No. 14. These disadvantages

include the resulting unavailability of potential defense witness Gerald Whitehorn and

availability of State witness Dorsha Riggs, and the State’s “securing of a compelled psychiatric

examination [of petitioner] that was misused or abused by the State at Petitioner’s trial.” Id. 

Although passing “speedy trial” references were made in his November 9, 2004, motion

for discretionary review of his first PRP, petitioner failed to present the factual basis of this

claim to the Washington Supreme Court. Dkt. No. 24, Ex. 42; see also Johnson, 88 F.3d at

829 (noting that exhaustion requires petitioner to fairly and fully present his federal claim “to

the highest state court with jurisdiction to consider it”). As a result, this claim is unexhausted

and, regardless, cannot now be considered for the multiple reasons discussed below. See infra

§ IV.B. 

7. Jury Bias

Petitioner’s 2254 petition argues that the trial court erroneously failed to hold a hearing

to determine whether the jury had been affected by a newspaper article reporting that petitioner

had physically threatened one of his defense counsel. Claim No. 17. There is no evidence of

this claim in any of petitioner’s pleadings to the Washington Supreme Court. It is unexhausted

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and will not be considered. See infra § IV.B. 

8. Deficient Jury Instruction

Petitioner argues that jury instruction fifteen misstated the law of accomplice liability by

allowing the jury to convict petitioner if he knowingly aided in the commission of “a” crime

instead of “the” charged crime. Claim No. 23. He argues that this distinction relieved the

State of its burden of proof. Id. This claim was properly exhausted in petitioner’s petition for

discretionary review of his direct appeal and in his most recent PRP. Dkt. No. 24, Ex. No. 31

at 10; id. Ex. 61 (claim 1).

9. Insufficient Evidence to Convict

Petitioner argues that the prosecution failed to disprove his self defense claim, thereby

failing to adequately prove the mens rea of the alleged crime. Claim No. 26. This argument

was properly exhausted in petitioner’s petition for discretionary review of his direct appeal. 

Dkt. No. 24, Ex. 31 at 12-15.

10. Unconstitutional State Collateral Review Process

Petitioner argues that R.C.W. § 10.73.140, the State’s rule against successive and/or

frivolous petitions, unconstitutionally allows selective application and permits courts to avoid

merit-based determinations. Claim No. 29. This claim was exhausted in petitioner’s motion to

modify the Supreme Court’s denial of his January 21, 2005 PRP. Dkt. No. 24, Ex. 58; Ex. 42

(claim 12).

11. Cumulative Error

Petitioner also argues that the cumulative effect of his thirty claims for relief render his

conviction fundamentally unfair. Claim No. 30. Petitioner has raised this argument repeatedly

since his earliest collateral attacks. See Dkt. No. 24, Ex. 37 (claim 8); Ex. 41 (claim 21); Ex.

49 (claim 3); Ex. 56 (claims 7, 12). It is properly exhausted.

In sum, petitioner properly exhausted twenty-two of his claims, and failed to exhaust

eight. His unexhausted claims fall under the categories of ineffective assistance of counsel,

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right to present a defense, prosecutorial misconduct, speedy trial, and jury bias. As the Court

explains below, many of these claims are very similar to exhausted claims falling under the

same category.

B. Petitioner’s Eight Unexhausted Claims Are Procedurally Barred

1. Express and Implied Procedural Bar Rules Apply, Making a

Return to State Court to Futile

Ordinarily, federal district courts must offer habeas petitioners who present mixed

petitions with the choice of (1) returning to state court to exhaust their claims, or (2)

amending and resubmitting their petitions to include only exhausted claims. Rose v. Lundy,

455 U.S. 509, 510 (1982); Kelly v. Small, 315 F.3d 1063, 1069-70 (9th Cir. 2003). 

Thereafter, a petitioner may ask the district court to stay her federal habeas petition pending

exhaustion of state remedies on the unexhausted claims. James v. Pliler, 269 F.3d 1124,

1126 (9th Cir. 2001). If the court grants the stay and holds the petition in abeyance pending

the exhaustion of state remedies, the petitioner may then return to federal court without

encountering problems with AEDPA’s statute of limitations or prohibition on second or

successive petitions. 

However, these choices are only relevant when a petitioner has a meaningful chance

to present the claims to a state court. When unexhausted claims are procedurally barred, “the

district court dismisses the petition because the petitioner has no further recourse in state

court.” Franklin v. Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002). In such an case,

“unexhausted” claims effectively become exhausted, as a return to state court to assert these

claims “would be futile.” Phillips v. Woodford, 267 F.3d 966, 974 (9th Cir. 2001); see also

Engle v. Isaac, 456 U.S. 107, 125-26 n.28 (1982) (noting that the exhaustion requirement

applies “only to remedies still available at the time of the federal petition”); Harris v. Reed,

489 U.S. 255, 268 (1989) (O’Connor, J., concurring) (“[I]n determining whether a remedy

for a particular constitutional claim is ‘available,’ the federal courts are authorized, indeed

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required, to assess the likelihood that a state court will accord the habeas petitioner a hearing

on the merits of his claim.”).

A petitioner is deemed to have “procedurally defaulted” his claim if he failed to

comply with a state procedural rule, or failed to raise the claim at the state level at all.

Edwards v. Carpenter, 529 U.S. 446, 451 (2000). Procedural defaults in state court may

result in a procedural bar in federal habeas actions. Moreover, the United States Supreme

Court has recognized that when a petitioner has defaulted on his claims in state court,

principles of federalism, comity, and the orderly administration of justice require that federal

courts forego the exercise of their habeas corpus power, unless the petitioner can demonstrate

(1) cause for the default and prejudice attributable thereto, or (2) that failure to consider the

claim will result in a “fundamental miscarriage of justice.” Harris v. Reed, 489 U.S. 255,

261-62 (1989); Coleman v. Thompson, 501 U.S. 722, 729-32 (1991); see also Franklin v.

Johnson, 290 F.3d 1223, 1230-31 (9th Cir. 2002). The resulting bar can be express or

implied. A state court invokes an express procedural bar by explicitly referring to a state rule

or procedure to deny a petitioner’s claim, or by referring to a case or phrase that invokes the

applicable rule. See, e.g., Zichko v. Idaho, 247 F.3d 1015, 1021 (9th Cir. 2001) (rule); Park

v. California, 202 F.3d 1146, 1149 (9th Cir. 2000) (case); Bennett v. Mueller, 322 F.3d 573,

580 (9th Cir.) (phrase), cert. denied sub nom. Blanks v. Bennett, 540 U.S. 938 (2003). An

implied procedural bar exists when a petitioner has failed to fairly present his claims to the

highest state court and would now be barred from returning to do so by an adequate,

independent, and mandatory state procedural rule. Moreno v. Gonzalez, 116 F.3d 409, 411

(9th Cir. 1997). Both doctrines are subcategories of the “independent and adequate state

ground” doctrine, which “applies to bar federal habeas when a state court declined to address

a prisoner’s federal claims because the prisoner had failed to meet a state procedural

requirement.” Coleman, 501 U.S. at 729-30.

In the present case, the Washington Supreme Court and Court of Appeals expressly

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10 To this end, the Court summarily rejects petitioner’s argument that R.C.W. § 10.73.140

is not an adequate, independent, and mandatory state procedural rule. See Kibler v. Walters, 220

F.3d 1151, 1153-54 (9th Cir. 2000) (rejecting identical argument).

11 Furthermore, it is likely that petitioner could not return to state court to seek additional

relief for any of his claims for an independent reason. Under Washington state law, collateral

attacks must be filed within one year after the judgment becomes final. R.C.W. § 10.73.090(1).

The mandate for the direct appeal of his conviction issued on June 23. Dkt. No. 24, Ex. 33; see

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found, on more than one occasion, that R.C.W. § 10.73.140 barred many of petitioner’s

myriad claims relating to ineffective assistance of counsel, deficient jury instructions,

prosecutorial misconduct, right to present a defense, right to a speedy trial, right to exclude

prejudicial evidence and other vague due process claims made in some or all of his PRPs and

motions for discretionary review. See Dkt. 24, Exs. 36, 40, 55, 57, 64, and In re Bolar, Case

No. 78476-1. This provision requires the Court of Appeals to dismiss a PRP if it raises either

similar issues as those raised in a previous petition, or new claims, unless the petitioner shows

good cause for not raising the new arguments in an earlier PRP. See R.C.W. § 10.73.140

(barring successive PRPs if petitioner has “filed a previous petition on similar grounds”); see

also R.A.P. 16.4(d) (“No more than one [personal restraint] petition for similar relief on

behalf of the same petitioner will be entertained without good cause shown.”). 

Not only did the Washington Supreme Court and Court of Appeals expressly conclude

that petitioner was procedurally barred from raising several of his claims pursuant to R.C.W.

§ 10.73.140, this Court finds that certain claims, to the extent they are titularly “unexhausted”

and were not addressed by the above-cited state court rulings, are also subject to an implied

procedural bar, for they would now be prohibited by an independent, adequate, and

mandatory rule of state procedure, R.C.W. § 10.73.140, making a return to state court futile.

Phillips v. Woodford, 267 F.3d 966, 973-74 (9th Cir. 2001).10 Put differently, “the complete

procedural bar [rule] means these claims have been exhausted for habeas purposes, even

though they were never fairly presented to the state courts.” Valerio v. Crawford, 306 F.3d

742, 770 (9th Cir. 2002); see also Coleman, 501 U.S. at 735 n.1.11 Resolution of this matter,

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26 R.C.W. § 10.73.090(3). Accordingly, any further motion filed by petitioner in state court would

be time-barred, in addition to being repetitive. Id. § 10.73.040; R.A.P. 16.4(d).

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then, turns on whether petitioner has shown that cause and prejudice exist, or a fundamental

miscarriage of justice will result if his unexhausted claims are not considered. Harris, 489

U.S. at 261-62. 

The Court finds that neither exception applies. 

2. Petitioner Has Not Shown That Cause and Prejudice Exists, or

That A Fundamental Miscarriage of Justice Will Result If His

Unexhausted Claims Are Not Considered

Federal courts generally honor state procedural bars unless it would result in a

“fundamental miscarriage of justice,” or petitioner demonstrates cause and prejudice, absent

waiver by the respondents. Coleman, 501 U.S. at 750. “Cause” is a legitimate excuse for the

default, and “prejudice” is actual harm resulting from the alleged constitutional violation. Id.

To satisfy the “cause” prong of the cause and prejudice exception, a petitioner must

show that “some objective factor external to the defense” prevented him from complying with

the state’s procedural rule. McCleskey v. Zant, 499 U.S. 467, 493 (1991). Objective factors

establishing “cause” may include interference by government officials making compliance

with the procedural rule impracticable, as well as “a showing that the factual or legal basis”

for the claims “was not reasonably available” at the time of the default. Id. at 493-94

(internal quotations omitted). Constitutionally ineffective assistance of counsel may also

constitute cause, but any attorney error short of that—such as attorney ignorance,

inadvertence, or tactical decision—will not excuse the default. Id. at 494. Furthermore, the

mere fact that a petitioner is pro se or lacks knowledge of the law is insufficient to satisfy the

cause prong. See, e.g., Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986)

(pro se petitioner must be held accountable for failure to timely and adequately pursue his

remedy to the state supreme court). 

Petitioner has failed to establish “cause” for his numerous procedural defaults or even

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point to a single external impediment preventing him from timely and adequately presenting

some or all of his eight unexhausted claims to the Washington Supreme Court. Indeed, the

fact that petitioner was able to present and properly exhaust twenty-two substantially similar

claims belies the existence of such an obstacle. Furthermore, the fact that some of

petitioner’s unexhausted claims fall under the ineffective assistance of counsel category does

not, without more, establish the requisite cause in this matter, for the substantive reasons

stated below. See infra § IV.D.1. In sum, Petitioner simply makes no showing that some

objective factor external to his defense prevented him from complying with R.C.W. §

10.73.040. Because petitioner “cannot establish any reason, external to him, to excuse his

procedural default,” this Court need not address the issue of actual prejudice. Boyd v.

Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998); see Thomas v. Lewis, 945 F.2d 1119, 1123

n.10 (9th Cir. 1991) (finding of lack of cause eliminates courts need to discuss whether

petitioner was prejudiced by the alleged constitutional violation). Finally, because petitioner

has not demonstrated the likelihood of his actual innocence, this case does not present the

extraordinary instance where a habeas petition should be granted notwithstanding the absence

of a showing of cause. Murray, 477 U.S. at 495-96.

The foregoing analysis allows the Court to proceed to the merits on at least twenty-two

of petitioner’s thirty claims, many of which are strikingly similar to his eight unexhausted

claims which, as explained above, could not be remedied by a return to state court. This

approach will undoubtedly provide the finality petitioner has earnestly sought for over six

years. If the Court were to proceed otherwise, and allow the presence of petitioner’s eight

unexhausted claims to prevent analysis on the merits of his twenty-two exhausted claims, it

would “be allowing a very small tail to wag a very large dog,” to the severe detriment all

parties involved. Valerio, 306 F.3d at 770. 

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C. Standard of Review

AEDPA “demands that state-court decisions be given the benefit of the doubt.” 

Woodford v. Visciotti, 537 U.S. 19, 24 (2002). A habeas 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).

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, 389-90

(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 petitioner’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:

These two standards . . . 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.

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

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

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

overturned only if the application is “objectively unreasonable.” Id. Whether a state court

adjudication was reasonable depends upon the specificity of the rule; “the more general the

rule, the more leeway courts have[.]” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

D. The Washington Supreme Court’s Decisions Rejecting Petitioner’s 

Arguments and Upholding His Conviction Were Neither Contrary to Nor

an Unreasonable Application of Clearly Established Supreme Court Law

1. Ineffective Assistance of Counsel

Claims of ineffectiveness of counsel are reviewed according to the standard announced

in Strickland v. Washington, 466 U.S. 668, 687-90 (1984). In order to prevail on such a

claim, the petitioner must establish two elements. First, he must establish that counsel’s

performance was deficient, i.e., that it fell below an “objective standard of reasonableness”

under “prevailing professional norms.” Strickland, 466 U.S. at 687-88. Second, the petitioner

must establish that he was prejudiced by counsel’s deficient performance, i.e., that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 694.

Considering the first prong of the Strickland test, the petitioner must rebut the “strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689. The test is not whether another lawyer, with the

benefit of hindsight, would have acted differently, but rather, whether “counsel made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.” Id. at 687, 689; see also Dows v. Wood, 211 F.3d 480, 487 (9th Cir. 2000)

(“Under Strickland, counsel’s representation must be only objectively reasonable, not flawless

or to the highest degree of skill.”)

To meet the second Strickland requirement of prejudice, the petitioner must show that

counsel’s deficient performance prejudiced the defense. Id. at 687. It is not enough that

counsel’s errors had “some conceivable effect on the outcome.” Id. at 693. Rather, the

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petitioner must establish a “reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at 691. “A reasonable probability

is a probability sufficient to undermine confidence in the outcome” of the case. Id. at 694. 

Failure to satisfy either prong of the Strickland test obviates the need to consider the other. 

Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002).

a. Failure to Adequately Cross-Examine John Cahill

Under the Sixth Amendment, petitioner has a federal constitutional right to conduct

cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). Nevertheless,

petitioner’s first claim, that trial counsel failed to obtain and utilize evidence for further

impeachment of John Cahill’s trial testimony, Dkt. No. 8 at 4-5, fails for multiple reasons. 

First, the claim improperly conflates petitioner’s trial results with his counsels’ efforts. Trial

transcripts reflect that petitioner’s trial counsel engaged in a lengthy cross-examination of

Cahill, which exposed several of the very inconsistencies the petitioner asserts were

inadequately pursued. For example, using a March 11, 1999 police statement, petitioner’s

counsel exposed numerous inconsistencies between Cahill’s trial testimony and prior

statements, including whether petitioner was escorted by Cahill into the room where he

attacked his victim or was blocked by Cahill and/or admonished not to enter, and whether

Cahill actually witnessed the attack by petitioner and his accomplice. Dkt. No. 27-6 at 34-36,

38, 40, 44-46, 59-60. 

Second, petitioner’s argument, at best, attacks a tactical decision by his trial counsel

that is accorded great deference on habeas review and cannot, as a general matter, form the

basis of an ineffective assistance of counsel claim. Mancuso v. Olivarez, 292 F.3d 939 (9th

Cir. 2002); see also Dows, 211 F.3d at 487 (“[C]ounsel’s tactical decisions at trial, such as

refraining from cross-examining a particular witness or from asking a particular line of

questions, are given great deference.”). To this end, the fact that petitioner’s trial counsel

impeached Cahill using documents different from those which petitioner believes should have

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been utilized is of no moment. See Dows, 211 F.3d at 487; cf. Cannon v. Mullin, 383 F.3d

1152, 1164 (10th Cir. 2004) (“It is not . . . always the best trial strategy to exploit every

inconsistency in the statements of a witness, even a witness called by opposing counsel.”), cert.

denied, 544 U.S. 928 (2005). Petitioner has simply not met the “heavy burden of proving that

counsel’s assistance was neither reasonable nor the result of sound trial strategy.” Murtishaw

v. Woodford, 255 F.3d 926, 939 (9th Cir. 2001). 

Because petitioner’s trial counsels’ performance regarding the cross-examination of

Cahill did not fall below an “objective standard of reasonableness” under “prevailing

professional norms,” petitioner could not have been prejudiced by it. Strickland, 466 U.S. at

687-88. Furthermore, even if it could be said that his counsel so erred, petitioner has failed to

show the required prejudice resulting therefrom. 

b. Trial Counsel Failed to Object to or Obtain a Limiting

Instruction for Marie Zemek’s Testimony that Petitioner

Threatened to Harm Her Baby

Petitioner argues that his trial counsel rendered ineffective assistance by failing to

object to the trial court’s admission of testimony that petitioner threatened to kill Marie

Zemek’s baby several days before the murder. Claim No. 3. Additionally, petitioner argues

that counsels’ failure to obtain a limiting instruction as to this testimony constitutes further

constitutionally deficient assistance. Id. These arguments fail for at least two reasons.

First, the record reflects that petitioner’s counsel did lodge several objections to the

admission of this testimony, both before trial and during it, as irrelevant, inflammatory, and

violative of ER 403 and 404(b). See, e.g., Dkt. No. 24, Ex. 5 at 32-40 (May 18, 1999 pretrial

proceedings). The superior court twice denied this request, choosing to admit the evidence,

“limited to that weekend,” under the “MIMIC” exception of ER 404(b), finding it relevant to

prove motive and intent, as well as res gestae, and concluding that its relevance outweighed its

prejudicial effect. See id. Ex. 11 at 29. Before trial began, petitioner’s counsel once again

requested that the court bar all reference to defendant’s alleged assault on Kristine Zemek,

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Marie Zemek, and Dean Buchanan during the weekend preceding the homicide, arguing that

such evidence was “not relevant to the killing of Mr. Hill[,] excludable under Rule 403, and . . .

a violation of Rule 404(b)[,] and certainly . . . prejudicial.” Id. Ex. 18 at 25-26 (March 13,

2000 pretrial proceedings); see also id. at 26 (counsel arguing that “I can see [the prosecution

playing to the jury that, well, [petitioner] assaulted these three other people, therefore, he

could not been apprehensive or afraid of Mr. Hill.”). The court denied this motion, reiterating

its earlier opinion that such evidence was relevant to petitioner’s motive and intent, and

constituted a “part and parcel of a continuum of events that ended tragically . . . for Mr. Hill”

and others. Id. In sum, the record is replete with evidence that counsel vigorously objected

to this evidence, and the Court of Appeals properly denied this claim for reasons similar to that

stated by the trial court. See Dkt. No. 24, Ex. 55, at 1-2.

Second, even assuming petitioner’s counsel failed to object, a claim of ineffectiveness

based upon counsel’s failure to object must demonstrate that the objection probably would

have produced a different result at trial—i.e., establish the prejudice requirement of Strickland. 

See Strickland, 466 U.S. at 690. Petitioner has failed to meet this burden. Given the

overwhelming weight of the evidence against petitioner, it is highly probable that the jury

would have returned an identical verdict absent these statements of prior violent conduct,

which in no way constituted the core of the State’s case. See Humphrey v. Waddington, --- F.

Supp. 2d ---, 2006 WL 3312244, *3 (W.D. Wash. Nov. 9, 2006) (“Only in instances of failure

to object to egregious statements about testimony central to the prosecution’s case will failure

to object establish that counsel’s performance fell below an objective standard of

reasonableness according to prevailing professional norms.”) (citing Strickland, 466 U.S. at

694). Moreover, as explained above, this Court must give defense counsel wide latitude in

making tactical decisions, such as when and how and how often to object. Dows, 211 F.3d at

487.

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c. Trial Counsel Failed to Object to the First Aggressor

Instruction

Petitioner’s final exhausted argument in this category argues that his trial counsel were

ineffective when they failed to object to the trial court’s instruction that explained that a selfdefense argument was not available to one who provoked or commenced a confrontation with

the victim. Claim No. 27. This “first aggressor” instruction stated as follows:

No person may, by any intentional act reasonably likely to provoke a belligerent

response, create a necessity for acting in self-defense and thereupon kill another

person. Therefore, if you find beyond a reasonable doubt that the defendant or

an accomplice’s acts and conduct provoked or commenced the fight, then selfdefense of another is not available as a defense.

Dkt. No. 24, Ex. 27B (Instruction No. 25).

Failure to object is not ineffective assistance of counsel when the objection would have

lacked merit, as it would have here. United States v. Aguon, 851 F.2d 1158, 1172 (9th Cir.

1988) (en banc), overruled on other grounds by Evans v. United States, 504 U.S. 255 (1992). 

The facts presented to the trial court were of petitioner unlawfully entering a residence where

he shot and killed Mr. Hill, who was romantically involved with petitioner’s former girlfriend,

Kristine Zemek. While the parties still dispute exactly how petitioner entered the room where

he shot Hill, neither party argues that it was Hill who came after petitioner; rather, petitioner’s

self-defense argument peculiarly insists that his seeking out of Hill was itself a defensive act. 

See, e.g., Dkt. No. 24, Ex. 49 at 33-34. Furthermore, an ineffective assistance of counsel

claim based on counsel’s failure to object to a jury instruction requires a showing of prejudice. 

United States v. Swanson, 943 F.2d 1070, 1073 (9th Cir.1991). Petitioner cannot make this

showing. Instruction twenty-five was not constitutionally improper, and petitioner has failed

to establish that an objection to it would have been merited, much less successful, or that it

would have in any way helped petitioner’s cause.

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In conclusion, petitioner’s counsels’ alleged missteps do not amount to errors of

constitutional magnitude. Assuming arguendo that the opposite were true, the Court would

find that counsels’ deficient performance did not prejudice petitioner’s defense under the

circumstances. Strickland, 466 U.S. at 691, 694. 

2. Right to Self-Representation

In Claims 13 and 22, petitioner argues that the trial court denied him the opportunity to

proceed pro se at trial by “failing to grant petitioner’s repeated, consistent, and unequivocal

requests to represent himself” weeks before the commencement of trial. Claim No. 22.

In Faretta v. California, 422 U.S. 806, 821 (1975), the United States Supreme Court

held that a defendant in a state criminal trial has a right to self-representation which stems from

the Sixth Amendment—the so-called “Faretta right.” This right, however, “occupies no

hallowed status similar to the right to counsel enshrined in the Sixth Amendment.” Sandoval

v. Calderon, 241 F.3d 765, 774 (9th Cir. 2000). “A defendant may not invoke the Faretta

right if the Faretta demand is untimely, equivocal, made for the purpose of delay, or is not

knowingly and intelligently made.” Id. (citing United States v. Schaff, 948 F.2d 501, 503 (9th

Cir. 1991)); see also United States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994) (same). 

Accordingly, a court that is not reasonably certain of a defendant’s choice between exercising

his Sixth Amendment/Gideon right to counsel and his Sixth Amendment/Faretta right to

proceed pro se need not engage in a detailed colloquy with the defendant before appointing

counsel. Sandoval, 241 F.3d at 774 (“[I]n light of the disfavored status the right to

self-representation enjoys vis-a-vis the right to counsel, there is no rule that a defendant who

has once expressed a desire for self-representation must be cautioned or addressed personally

before receiving the assistance of counsel. The law is to the contrary.”). 

In the present case, while petitioner’s initial Faretta demand was arguably timely, it

was anything but unequivocal. On April 5, 1999, petitioner requested “to proceed pro se with

the assistance of counsel.” Dkt. No. 24, Ex. 9. at 12; Ex. 3, at 25. After being carefully

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12 Specifically, the trial court addressed petitioner’s request for counsel as follows:

Now, I want to be real clear with you on this. If you do this, Mr. Bolar, you’re

not going to sort of blow in and out, move in and out of representing yourself. If

you make this decision, which I believe is in your best interests . . . then Mr.

Roberson is going to be your counsel of record, and that’s the way we’re going to

go through [with] this . . . . 

Dkt. No. 24, Ex. 3 at 20 (quoting Report of Proceedings, 5/25/99, at 42-43).

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advised of his right to choose represent himself or be afforded counsel, id. Ex. 9 at 7-12, the

trial court expressly found that petitioner’s request was equivocal, and therefore retained the

appointed counsel, Ms. Kathy Lynn, at that time. Id. Ex. 9 at 13. Two days later, petitioner

moved the court to reconsider it decision and allow him to proceed pro se, which it did. Id.

Ex. 9 at 18. The following day, petitioner or the court (or both) slightly changed course on

this issue, and the court, after recognizing that initial counsel in this matter had a conflict of

interest, provided petitioner with private, conflict-free counsel (Mr. Mike Danko) at public

expense to simply advise petitioner of the pros and cons of proceeding without counsel. Id.

Ex. 9 at 34-35. After this process, petitioner expressed that he wished to invoke his Faretta

right to proceed pro se. Id. Ex. 9 at 45. However, shortly before the commencement of trial,

on May 25, 1999, petitioner again changed course and, after lengthy discussion with the trial

court, requested to be represented by counsel. At this point, David Roberson was appointed

and the commencement of trial was continued to October 20, 1999, to allow Mr. Roberson

additional time to adequately prepare. Id. Ex. 12-13; see also Ex. 15 at 27; Ex. 3, at 25-26.12 

This act was followed by petitioner’s September 13, 1999 puzzling oral motion to

remove Mr. Roberson as counsel and substitute new counsel or allow petitioner to proceed

pro se. See id. Ex. 15 at 33-34. The trial court denied both options of this conditional

request, explaining that “[t]here [would] not . . . be a further delay of this trial, Mr. Bolar, no

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13 Because the fact that petitioner was ultimately represented by two different attorneys

during the majority of his trial (Messrs. John Hicks and Anthony Savage) is immaterial to the

question of whether petitioner clearly and unequivocally requested to represent himself at trial, the

Court eschews an exhaustive analysis of how those lawyers joined petitioner’s defense team. In

other words, petitioner’s requests were far from unequivocal prior to the time Hicks and Savage

assumed primary representation of petitioner. 

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matter what.” Id. at 34.13

Petitioner’s vacillating conduct regarding his trial representation confirmed the superior

court’s worst fears. See infra, n.12. The Court of Appeals properly found that petitioner’s

“requests were . . . inconsistent, sometimes changing from one day to another,” Dkt. No. 24,

Ex. 3 at 26, and petitioner has presented this Court with no evidence that the opposite was

true. Cf. Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (holding that Faretta right

“may be waived through defendant’s subsequent conduct indicating he is vacillating on the

issue or has abandoned his request altogether”). Petitioner’s Faretta rights were not violated

because he did not clearly and unequivocally declare to the trial court judge that he wanted to

represent himself. Sandoval, 241 F.3d at 774; see also Adams v. Carroll, 875 F.2d 1441,

1444-45 (9th Cir. 1989) (concluding that although requests to proceed pro se were

conditional, they were not unequivocal). Moreover, petitioner’s attempts during trial to

remove and/or substitute his counsel were untimely, inconsistent and, in conjunction with

threats of physical violence toward counsel, were undertaken primarily for purposes of

disruption and delay. See, e.g., Dkt. No. 24, Ex. 16 at 11-14. In sum, the Washington

appellate courts did not violate clearly established federal law in upholding the trial court’s

refusal to remove counsel. 

3. Right to Present a Defense, Have Relevant Evidence Admitted

Petitioner alleges that his right to present an adequate defense was violated when

evidence of his victim’s prior crimes and status as a confidential informant was erroneously

excluded by the trial court. Claim Nos. 12, 25. 

Defendants have a constitutional right to present a defense. Chambers v. Mississippi,

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14 The Court notes that this analysis would also apply to Petitioner’s Claim No. 15,

relating to the trial court’s exclusion of unedited versions of Trina Baldwin and Kristine Zemek’s

deposition recordings at trial for impeachment purposes, assuming this claim had been properly

exhausted.

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410 U.S. 284, 301 (1973). However, this right is not absolute, and its mere invocation during

a § 2254 proceeding does not guarantee habeas relief. Accord Carriger v. Lewis, 971 F.2d

329, 333 (9th Cir. 1992). Rather, “the state court’s decision to exclude certain evidence must

be so prejudicial as to jeopardize the defendant’s [federal] due process rights.” Tinsley v.

Borg, 895 F.2d 520, 530 (9th Cir. 1990), cert. denied, 498 U.S. 1091 (1991). Generally, a

trial court’s exclusion of defense evidence does not implicate any constitutional considerations

because the Constitution gives trial judges “wide latitude” to exclude evidence. Delaware v.

Van Arsdall, 475 U.S. 673, 679 (1986); see also Jammal v. Van de Kamp, 926 F.2d 918, 919

(9th Cir. 1991) (“We are not a state supreme court of errors; we do not review questions of

state evidence law. On federal habeas we may only consider whether the petitioner’s

conviction violated constitutional norms.”). Furthermore, state law evidentiary questions

ordinarily do not raise federal questions. Johnson v. Sublett, 63 F.3d 926, 931 (9th Cir. 1995).

What the Constitution prohibits is the exclusion of critical, trustworthy defense

evidence, particularly where the evidence is central to the defendant’s case and directly refutes

the State’s allegations. See, e.g., Crane v. Kentucky, 476 U.S. 683, 690-91 (1986). 

Petitioner’s requested evidence fails to carry this significance, and his argument fails rebut the

strong presumption in favor of the trial court’s evidentiary rulings. At worst, this evidence was

hearsay and irrelevant; its exclusion failed to prejudice petitioner’s defense in any appreciable

way. Accordingly, the Washington Supreme Court’s denial of petitioner’s evidentiary

challenges in this regard was not contrary to or an unreasonable application of clearly

established federal law.14

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4. Right to Exclude Prejudicial Evidence

Petitioner also alleges that the trial court erroneously admitted testimony from Marie

Zemek regarding threats petitioner had allegedly made against her baby, Claim No. 2, as well

as evidence that petitioner had previously assaulted Kristine Zemek. Claim No. 24. 

This claim, like the previous claim, focuses on the state trial court’s application of

Washington evidentiary rules, which does not raise a federal question. Furthermore, petitioner

has failed to show that the trial court’s admission of this testimony, assuming it was error, “so

fatally infected the proceedings it rendered his trial . . . ‘fundamentally unfair as to amount to a

denial of [petitioner’s] constitutional right to due process.’” Karis v. Calderon, 283 F.3d

1117, 1129 n.5 (9th Cir. 2002) (quoting Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th

Cir. 1986)). For many of the same reasons stated above, see supra § IV.D.3., the Court

rejects petitioner’s argument and finds that the Washington appellate courts’ decisions denying

the same were not contrary to or an unreasonable application of federal law as determined by

the Supreme Court.

5. Deficient Jury Instruction

Petitioner argues that jury instruction fifteen misstated the law of accomplice liability

because it required only that petitioner knowingly aided in the commission of “a” crime,

instead of “the” crime—i.e., the charged crime. Claim No. 23. He further argues that this

distinction relieved the State of its burden of proof. Id.

Generally, federal habeas relief does not lie for errors of state law. Souch v. Schaivo,

289 F.3d 616, 623 (9th Cir.) (internal quotation omitted), cert. denied, 537 U.S. 859 (2002). 

This includes allegations of defective state court jury instructions, unless “‘the ailing instruction

by itself so infected the entire trial that the resulting conviction violates due process.’” Estelle

v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). 

“It is not sufficient that the instruction is erroneous; rather the petitioner must establish that

there was a reasonable likelihood that the jury applied the instruction in a way that violated a

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15 To this end, Washington’s felony murder statute, R.C.W. § 9A.32.050(1)(b),

“expressly establishes the nonkiller participant’s complicity in the homicide as a principal.” State

v. Rice 102 Wn.2d 120, 125, 683 P.2d 199 (1984); State v. Carter, 154 Wn.2d 71, 78, 109 P.3d

823, (2005) (same).

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constitutional right.” Carriger, 971 F.2d at 334.

In light of the legal landscape in this area, petitioner’s jury instruction argument is

without merit. Not only did instruction fifteen speak, interchangeably, of both “a” crime and

“the” crime, thus taking much of the wind out of this argument’s sail, but the Washington

Supreme Court properly found that the instruction was superfluous for the simple reason that

both petitioner and his cohort were acting as principals in committing the predicate burglary

felony,15 and any alleged error harmless in light of the overwhelming evidence that petitioner

not only directly participated in the predicate felony, but was indisputably the killer. In re

Bolar, Case No. 78476-1 at 1 (citing State v. Bolar, 118 Wn.App. 490, 506, 78 P.3d 1012

(2003); State v. Carter, 154 Wn.2d 71, 78-79, 109 P.3d 823 (2005)). Instruction fifteen did

not relieve the State of its burden of establishing guilt beyond a reasonable doubt. In sum,

petitioner’s argument fails to meet the high standard required for the type of defect alleged. 

6. Insufficient Evidence to Convict

Petitioner argues that the prosecution failed to disprove his self defense claim, thereby

failing to adequately prove the mens rea of the alleged crime. Claim 26. Petitioner’s selfdefense theory is premised on the argument that, because of Mr. Hill’s threats, prior criminal

history, and official protection as a police informant, petitioner needed to seek out and kill Mr.

Hill before Hill killed him. Id.; see also, e.g., Dkt. No. 24, Ex. 24 at 80-85.

In considering sufficiency-of-the-evidence claims, a habeas court must ask whether,

“‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.’” Hayes

v. Woodford, 301 F.3d 1054, 1084 (9th Cir. 2002) (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)). To this end, the Ninth Circuit has explained that “[t]he relevant inquiry is not

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26 16 Even assuming, for the sake of argument, that petitioner had presented overwhelming

evidence that the killing was an act of self-defense, such a defense would likely have been

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whether the evidence excludes every hypothesis except guilt, but whether the jury could

reasonably arrive at its verdict.” United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991). 

Respondents are correct that review is sharply limited in this area, and that the Court is limited

to “record evidence,” United States v. Montgomery, 150 F.3d 983, 1001 (9th Cir. 1998),

which must be viewed “as a whole in the light most favorable to the prosecution.” Gordon v.

Duran, 895 F.2d 610, 612 (9th Cir. 1990).

Here, the jury was presented with ample evidence that petitioner sought out and killed

Mr. Hill in retaliation and extreme jealousy. See, e.g., Dkt. No. 24, Ex. 21 at 4; Ex. 24 at 112;

see also id. Ex. 21 at 28-32 (testimony from Zemek regarding her 911 call, placed out of her

and the victim’s fear of petitioner on the night of the killing). Indeed, by his own theory of

self-defense, petitioner went looking for Hill and attacked him in the first instance. Additional

evidence was presented that upon killing Mr. Hill, petitioner, using an elaborate disguise, fled

the scene of the homicide, eluding law enforcement for a considerable time. See id. Ex. 23 at

106-12. The jury also heard testimony regarding Mr. Hill’s prior threats, propensity for

violence, and criminal history. See, e.g., id. Ex. 21 at 21-25; Ex. 3 at 15-18. Nonetheless, its

unanimous verdict apparently found that the evidence against petitioner outweighed that

bearing on Mr. Hill’s demeanor, threats, and violent history, and obviously concluded that

petitioner’s actions were not indicative of one who believed he acted in self-defense. Viewing

the evidence in the light most favorable to the prosecution, as this Court is required to do,

there is no question that a rational factfinder “could have found the essential elements of the

crime beyond a reasonable doubt.” Woodford, 301 F.3d at 1084 (internal quotation omitted). 

Accordingly, the state appellate court’s adjudication of petitioner’s post-conviction claim in

this regard was neither contrary to nor an unreasonable application of clearly established

federal law.16 

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unavailable under Washington law, rendering petitioner’s insufficiency-of-the-evidence argument

irrelevant. See State v. Dennison, 115 Wn.2d 609, 616, 801 P.2d 19 (1990) (holding that,

“[b]ecause Washington’s felony murder statute clearly holds felons strictly responsible for any

deaths occurring [during the commission of a burglary, defendant’s] proposed self-defense

instruction was properly refused”). For that reason, the state appellate court’s ruling that the State

did not bear the burden of disproving self-defense with respect to the felony murder charge was

not error, let alone constitutional error. See Dkt. No. 24, Ex. 3 at 17.

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7. Unconstitutional State Collateral Review Process

Petitioner argues that R.C.W. § 10.73.140, the State’s rule against successive and/or

frivolous petitions, unconstitutionally allows selective application and permits courts to avoid

determinations on the merits of a given petitioner’s case. Claim No. 29. This argument makes

vague references to the Fifth, Sixth, and Fourteenth Amendments, as well as to general dueprocess notions of “fundamental fairness.” Id. 

A federal court may not issue a writ of habeas corpus on the basis of a perceived error

of state law. Pulley v. Harris, 465 U.S. 37, 41 (1984). Petitioner’s claim fails to set forth,

even remotely, how R.C.W. § 10.73.140 violates the federal constitution and/or a fundamental

right established be federal law. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994)

(“Conclusory allegations which are not supported by a statement of specific facts do not

warrant habeas relief.”). To the extent petitioner is merely attempting to bootstrap his

§ 10.73.140 claim into a supposed constitutional violation, federal habeas relief will not lie. 

Turner v. Calderon, 281 F.3d 851, 867 (9th Cir. 2002). 

8. Prosecutorial Misconduct

As noted above, petitioner raises seven arguments he characterizes as “prosecutorial

misconduct.” Claim Nos. 4-10, 19, 28. They include the argument that the prosecutor (1)

misstated the law of self defense to the jury during closing arguments (Claim Nos. 19, 28); (2)

erroneously led the jury to believe that petitioner knew, before the killing, Kristine Zemek had

a protection order against him (Claim No. 4); (3) erroneously left several photographs of the

victim’s gunshot wound on the courtroom’s easel during his two hour cross-examination of

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defense witness Dr. Robert Olsen, which inflamed the jury’s passions (Claim No. 5); (4)

improperly treated petitioner’s self defense argument as an insanity defense when crossexamining Dr. Olsen, which allowed the admission of prior bad acts (Claim Nos. 7, 8); (5)

improperly used testimony from Dr. Olsen regarding petitioner’s propensity to make threats

(Claim No. 9); (6) improperly elicited testimony from Dr. Olsen regarding petitioner’s veracity

when petitioner’s character had not yet been put in issue (Claim No. 10); and (7) introduced a

hearsay report from a Dr. James Butcher (Claim No. 6).

The Court of Appeals methodically reviewed many of these claims, for which it found

there to be no actionable prosecutorial misconduct and, in the alternative, held that petitioner

failed to establish that the prosecutor’s conduct prejudiced his defense regarding the felony

murder charge. Dkt. No. 24, Ex. 3 at 30-33. The Washington Supreme Court summarily

concurred, finding petitioner’s arguments to be “totally devoid of merit.” Dkt. No. 24, Ex. 40. 

 Federal habeas review of prosecutorial misconduct is limited to the narrow issue of

whether the alleged conduct violated due process. See Thompson v. Borg, 74 F.3d 1571, 1576

(9th Cir.), cert. denied, 519 U.S. 889 (1996). Prosecutorial misconduct violates due process

when it has a substantial and injurious effect on or influence in determining the jury’s verdict.

Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996). 

After a careful review of the state court record, this Court finds no prosecutorial error

or misconduct of a constitutional dimension sufficient to grant the petition for writ of habeas

corpus. The prosecutor’s closing arguments not only did not misstate Washington law

regarding self defense, but such arguments, even if error, did not so infect the trial with

unfairness as to make petitioner’s resulting conviction a denial of due process. Fields v.

Woodford, 309 F.3d 1095, 1109 (9th Cir. 2002). The same conclusion must be made with

respect to the prosecutor’s protective order comment and other allegedly “improper” usages of

witness testimony or trial exhibits, for it is permissible for a prosecutor to argue inferences

based on evidence introduced at trial. See, e.g., Duckett v. Godinez, 67 F.3d 734, 742 (9th

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Cir. 1995); see also Thompson, 74 F.3d at 1576 (“Improper argument does not, per se, violate

a defendant’s constitutional rights.”) (internal quotation omitted). Furthermore, the trial court

instructed the jury that it was to follow the instructions of the court, not those of counsel, and

that counsel’s comments were argument, not evidence. See Dkt. 24, Ex. 27B (Instruction No.

1). This Court has no reason to believe that the jury in this case was incapable of obeying

these straightforward instructions. Assuming the opposite were true, the petitioner has failed

to establish that the prosecutor’s impropriety had a substantial and injurious effect upon the

jury’s verdict, therefore making any assumed error non-constitutional. Ortiz-Sandoval, 81

F.3d at 899; Thompson, 74 F.3d at 1577. Accordingly, federal habeas relief on the basis of this

claim is unwarranted. 

9. Cumulative Error

Petitioner finally argues that, viewed cumulatively, his thirty claims for relief render his

conviction fundamentally unfair.

The cumulative error doctrine in habeas jurisprudence recognizes that, “even if no

single error were prejudicial, where there are several substantial errors, ‘their cumulative effect

may nevertheless be so prejudicial as to require reversal.’” Killian v. Poole, 282 F.3d 1204,

1211 (9th Cir. 2002) (quoting United States v. de Cruz, 82 F.3d 856, 868 (9th Cir. 1996)). 

Where, as here, there is an absence of a specific constitutional violation, habeas review of a

cumulative trial court error is limited to whether the error “so infected the trial with unfairness

as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974). 

Here, petitioner’s numerous inadequate claims do not create a cognizable constitutional

claim in the aggregate. Because this Court cannot grant a writ on the basis of errors whose

combined effect does not violate the Federal Constitution, petitioner’s cumulative error claim

does not save his petition. Parle v. Runnels, 387 F.3d 1030, 1045 (9th Cir. 2004).

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V. CONCLUSION

For the foregoing reasons, the Court recommends that petitioner’s § 2254 petition for

writ of habeas corpus be DENIED and this case DISMISSED with prejudice. A proposed

order accompanies this Report and Recommendation.

DATED this 18th day of January, 2007.

AJAMES P. DONOHUE

United States Magistrate Judge 

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