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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PATRICIA WATKINS, 

Petitioner,

v.

STATE OF WASHINGTON,

Respondent.

Case No. C06-5141FDB

REPORT AND

RECOMMENDATION 

 

 NOTED FOR: 

 OCTOBER 27th, 2006

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

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

Petitioner filed this action pursuant to 28 U.S.C. § 2254. Petitioner is challenging the legality of a

2003 driving under the influence of intoxicants conviction in Pierce County. 

INTRODUCTION AND SUMMARY CONCLUSION

Petitioner challenges her 2003 Pierce County driving under the influence of intoxicants

conviction. She was found guilty after a jury trial and sentenced to 365 days jail time, 363 days of

which are suspended contingent on the completion of five years probation. (Dkt. # 14, page 1). 

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Having reviewed the entire file and the state record provided by the Pierce County Prosecutor’s

Office this court concludes that three of the four issues raised are unexhausted and procedurally

barred. The remaining issue actually contains two claims, one of which is exhausted and without

merit and one of which is unexhausted but procedurally barred. The petition should be DISMISSED

WITH PREJUDICE. 

SENTENCE, CONVICTION, AND FACTS

Petitioner was found guilty after a jury trial of driving under the influence of intoxicants. 

(Dkt. # 14). She was sentenced to 365 days jail time with 363 days suspended contingent on

completing five years probation. (Dkt. # 14 page 1). The facts surrounding the traffic stop and her

trial were set forth by the respondent as follows:

Aaron Latimer is a trooper for the Washington State Patrol. RP 3. In

addition to extensive training focusing on DUI (driving under the influence of

intoxicants) enforcement, Trooper Latimer has been trained and certified as a drug

recognition expert in Washington State. RP 3-4. On April 18, 2002 Trooper Latimer

was on routine patrol when he observed Watkins driving her white Fiesta, traveling

25 mph in a 35 mph zone on Pacific Avenue. RP 5. The trooper observed Watkin’s

car for approximately ten to eleven blocks; Watkin’s brake lights were on for the

entire time. RP 5. The trooper activated his emergency equipment and stopped the

vehicle. RP 5.

Upon contacting Watkins, the Trooper detected an odor of intoxicants coming

from within the vehicle. RP 5. Watkins admitted that she had consumed alcohol. RP

6. The trooper described Watkin’s as having bloodshot eyes and a dazed or confused

look on her face. RP 6. The trooper noticed that Watkins movements seemed a “bit

methodical or deliberate.” RP 6. Watkins agreed to perform field sobriety tests. RP

6. As she exited her vehicle, Watkins appeared “off-balance.” Once she was out of

the car, she kept one hand on the door, but continued to sway. RP 6. Trooper

Latimer testified that when she walked back to the rear of her car, she went slowly,

her legs were shaky and “her body seemed a little limp.” RP 6. Watkins denied being

on any medications. RP 7. Trooper Latimer testified that based upon his training and

expertise, Watkins exhibited all six clues of Horizontal Gaze Nystagmus (“HGN”). 

RP 8. A forensic toxicologist testified that HGN is an involuntary jerking of the eye

that occurs when someone is under the influence of a central nervous system

depressant, such as alcohol. RP 38. The HGN test is considered the most reliable

because it is not subject to practice or tolerance to alcohol which can affect the results

of other field sobriety tests. RP 38. Watkins failed to maintain her balance during the

walk and turn test. RP 8. Watkins further failed to maintain her balance during the

one-leg stand test. RP 11. During this test, she fell forward and landed in the

trooper’s arms. RP 11. Trooper Latimer testified that Watkins appeared to be

unconscious for a few seconds, but that she declined medical attention. RP11. 

Trooper Latimer attempted to resume the one-leg stand test, but again Watkins fell

over into his arms. RP 11. He seated her on the ground and called for medical aid to

arrive at the scene. RP 11. Watkins asked him not to call for an ambulance but to

allow her to go home, which she described as “just down the road.” RP 11-12.

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Trooper Latimer advised Watkins that she was under arrest for DUI and

advised her of her rights. RP 12-13. After the trooper advised defendant of her

implied consent warnings, defendant refused to take the blood draw. RP 16. Watkins

stated that she understood the implied consent warnings, but refused to sign them; she

wanted to call her roommate, “Kenny,” because he was a lawyer. RP 16. Watkins

attempted to reach him by phone but received no answer. RP 16-17. Trooper

Latimer asked if she wanted to call another attorney or the public defender. Watkins

indicated that Kenny was her lawyer and that she wouldn’t talk to anyone else. RP

17. She again refused another lawyer or public defender when her second attempt to

reach “Kenny” failed. RP 17. Trooper Latimer indicated that she needed to decide at

that time whether she would submit to the blood test. Watkins stated that she would

not do anything without talking to Kenny even though she knew that this would be

treated as a refusal. RP 17.

(Dkt. # 14, pages 2-4). 

PROCEDURAL HISTORY

Petitioner was found guilty and sentenced in Pierce County District Court. She filed a direct

appeal in Pierce County Superior Court in her direct appeal she raised the following challenges:

1. Her traffic stop violated her Fourth Amendment Rights.

2. The court violated her due process rights by failing to conduct a

hearing on her claim the court lacked jurisdiction.

3. Her Sixth Amendment rights were violated when the court entered a

not guilty plea on her behalf when she was unrepresented.

4. She was denied effective assistance of counsel based on a personal

conflicts between her and her attorney and the lack of a attorney/client

relationship.

5. Her Due process rights were violated by the court’s refusal to consider

her motion to vacate.

6. The evidence was insufficient to support a conviction for driving while

intoxicated.

7. The evidence was insufficient to support a “sentencing enhancement”, refusal to

consent to a blood draw.

(Dkt. # 14, Exhibit 4). On May 14th, 2004 the Superior Court affirmed the conviction and remanded

for imposition of the sentence. (Dkt. # 14, Exhibit 6). 

Petitioner then filed for discretionary review with the Washington State Court of Appeals. 

(Dkt. # 14, Exhibit 7). Petitioner presented only one issue in this notice. The only issue raised was

an alleged violation of petitioner’s Sixth Amendment right to counsel based on either an actual

conflict of interest or because of a breakdown in the client attorney relationship. (Dkt. # 14, Exhibit

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8). The Washington Court of Appeals denied the motion for discretionary review. (Dkt. # 14,

Exhibit 11). A motion to modify the ruling was also denied. (Dkt # 14, Exhibit 13). 

Petitioner filed a motion to modify the ruling denying review which was sent to the State

Supreme Court to be considered as a motion for discretionary review. (Dkt. # 14, Exhibit 14).

Review was denied on February 24th, 2005. Petitioner moved to modify and her motion was also

denied (Dkt. # 14, Exhibit 18).

Petitioner then filed a personal restraint petition. (Dkt. # 14, Exhibit 20). Petitioner raised

six separate headings in her petition. Each heading was followed by a number of examples. The six

headings were:

1. Ineffective assistance of counsel.

2. Unfair prejudice because of judicial decisions or rulings in the case by

Judge Heller.

3. Unfair prejudice because of judicial decisions or rulings in the case by

Judge Nevin.

4. Her case and trial was unfair and prejudicial because of the court’s

refusal to remove her public defender from the case.

5. Her case and trial were unfair because of third party interference by

Kenneth Wayne Lemming.

6. Her case, trial, and appeal were unfair. And prejudicial.

(Dkt. # 14, Exhibit 20). The Washington State Court of Appeals dismissed the petition. (Dkt. # 14,

Exhibit 23). Petitioner filed for discretionary review with the State Supreme Court. (Dkt. # 14,

Exhibit 24). In this three page motion petitioner uses no headings but claims her right to counsel

was violated because she did not have counsel at her traffic stop or at her initial arraignment. (Dkt. #

14, Exhibit 24). She also claims ineffective assistance of counsel and interference in her case by Mr.

Lemming. (Dkt. # 14, Exhibit 24). Her motion was denied . (Dkt. # 14, Exhibit 25). A subsequent

motion to modify the court’s ruling was not acted on as the motion was not timely. (Dkt. # 14,

Exhibits 26 and 27).

This habeas corpus petition followed and petitioner raises the following issues:

1. Lack of counsel at the traffic stop and arrest and failure to know or

understand her Miranda warnings because of her level of intoxication. 

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2. Denied counsel at arraignment.

3. Ineffective assistance of counsel due to irreconcilable differences

preventing proper attorney/client relationship and due to her attorney’s

poor performance. 

4. Third party interference by Kenneth Wayne Lemming.

(Dkt. # 1).

EVIDENTIARY HEARING

If a habeas applicant has failed to develop the factual basis for a claim in state court, an

evidentiary hearing may not be held unless (A) the claim relies on (1) a new rule of constitutional

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

unavailable, or there is (2) a factual predicate that could not have been previously discovered through

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

by clear and convincing evidence that but for constitutional error, no reasonable fact finder would

have found the applicant guilty of the underlying offense. 28 U.S.C. §2254(e)(2) (1996). 

Petitioner's claims rely on established rules of constitutional law. Further, petitioner has not set forth

any factual basis for his claims that could not have been previously discovered by due diligence. 

Finally, the facts underlying petitioner's claims are insufficient to establish that no rational fact finder

would have found him guilty of the crime. Therefore, petitioner is not entitled to an evidentiary

hearing.

STANDARD

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

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

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

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

U.S.C. § 2254(a)(1995). The Supreme Court has stated many times that federal habeas corpus relief

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

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

Further, a habeas corpus petition shall not be granted with respect to any claim adjudicated

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

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

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

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

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

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

§2254(e)(1).

DISCUSSION

A. Exhaustion and procedural bar.

Respondent argues petitioner did not exhaust claims 1, 2, or 4 and has only exhausted a

portion of the 3rd claim. (Dkt. # 14 page 7). Before claims may be raised in a federal habeas corpus

petition, state remedies must be exhausted; or an applicant must show there is either an absence of

available state corrective process or that circumstances exist that render such process ineffective to

protect the rights of the applicant. 28 U.S.C. § 2254(b)(1). A state prisoner is required to present

his federal constitutional claims to the highest state court before he may present his claims in a

federal habeas petition. O’Sullivan v. Boerckel, 119 S.Ct. 1728, 1733-34 (1999). However, a

petitioner who has not exhausted state court remedies may be excluded from presenting the issues to

the state's highest court when the petitioner has not complied with a state procedural rule. Id. at

1734; Harris v. Reed, 489 U.S. 255, 260 (1989).

When a state prisoner defaults on federal habeas claims in state court pursuant to an

independent and adequate state procedural rule, federal habeas review of the claims is barred unless

the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged

violation of federal law, or show that failure to consider the claims will result in a fundamental

miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750-751 (1991). Federal habeas

review is also barred where the petitioner has not exhausted state remedies but the state's highest

court would now find the claim to be procedurally barred. Coleman, 501 U.S. at 733; Noltie v.

Peterson, 9 F.3d 802, 805 (9th Cir. 1993).

Here, any attempt to raise these unexhausted claims in state appellate courts would now most

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likely be time-barred and would certainly be repetitive. See RCW 10.73.090; RCW 10.73.140;

RAP 16.4(d); In re Taylor, 105 Wn.2d 683 (1986). 2d 485 (1990). Further, petition cannot show

cause and prejudice as the only thing that prevented her from properly exhausting the issues was her

own failure to raise them as Constitutional claims. 

The court begins the exhaustion analyses with the direct appeal. Petitioner raised seven

issues at the Superior Court level. (Dkt. # 14, Exhibit 4). When she sought discretionary review in

the Washington State Court of Appeal, however, she raised only one issue. (Dkt. # 14, Exhibit 8). 

The only issue raised was an alleged violation of the Sixth Amendment right to counsel based on

either an actual conflict of interest or because of a breakdown in the client attorney relationship. The

opinion of the Washington State Court of Appeals is just over three pages long and is the operative

opinion showing the issue raised. The court stated:

The State charged Watkins with driving under the influence of intoxicants.

At her arraignment, Watkins filed a pro se motion challenging the district court’s

jurisdiction. Watkins refused to enter a plea until her jurisdictional motion was

decided. The district court entered a plea of not guilty for Watkins and referred her

to the Department of Assigned Counsel to obtain counsel.

Watkins’ appointed counsel filed a motion to withdraw, citing Watkins

failure to cooperate and Watkins’ belief that a conflict of interest existed. Watkins

had filed an action in federal court against the State of Washington and believed that

as a result her appointed counsel has a conflict of interest, either because her

appointed counsel was licensed by the State to practice law or because she

erroneously believed that her appointed counsel was employed by the State. Watkins

sought the appointment of counsel of her choice, including the choice of being

represented by someone who is not licensed to practice law in the State of

Washington. The district court denied the motion to withdraw, ruling Watkins did

not have the right to be represented by someone who is not licensed to practice law

and that Watkins’ lawsuit against the State of Washington did not create a conflict of

interest between Watkins and her appointed counsel.

Watkins requested an evidentiary hearing regarding her challenge to the

court’s jurisdiction. The district court denied her request. The superior court denied

her motions to order the district court to conduct such a hearing.

Watkins was represented by her appointed counsel during trial. The

jury convicted Watkins of driving while under the influence of intoxicants. She

appealed to superior court, which affirmed her conviction. 

Watkins seeks discretionary review. This court grants discretionary

review of a superior court decision reviewing the decision of a court of

limited jurisdiction only:

(1) If the decision of the superior court is in conflict with a

decision of the Court of Appeals or the Supreme Court; or

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(2) If a significant question of law under the Constitution of the

State of Washington or the United States is involved; or

(3) If the decision involves an issue of public interest which should

be determined by an appellate court; or

(4) If the superior court has so far departed from the accepted and

usual course of judicial proceedings, or so far sanctioned such

a departure by the court of limited jurisdiction, as to call for

review by the appellate court.

RAP 2.3 (d).

Watkins argues that under Rap 2.3(d)(2) and (3), this court should grant

discretionary review. She contends that she and her appointed counsel had an

irreconcilable conflict of interest and that as a result her appointed counsel could not

have provided effective assistance of counsel. In determining whether an

irreconcilable conflict of interest exists between an attorney and client, the court

examines “both the extent and nature of the breakdown in communication between

attorney and client and the breakdown’s effect on the representation the client

actually receives.” In Re Personal Restraint of Stenson, 142 Wn.2d 710, 724 (2001). 

The breakdown in communication between Watkins and her appointed counsel was

entirely of Watkins’ making. She erroneously believed that she has a right to be

represented by a person who is not licensed to practice law in Washington and

erroneously believed that her law suit against the State of Washington created an

actual conflict of interest with her appointed counsel. Given her views, Watkins

would have refused to cooperate with any other appointed counsel who the court

might have substituted. Further, the breakdown had little effect on the representation

Watkins actually received. Her appointed counsel presented an appropriate defense

to the charged crime. The district court did not abuse its discretion in denying

Watkins’ appointed counsel’s motion to withdraw. In Re Personal Restraint of

Stenson, 142 Wn.2d at 723. Watkins fails to demonstrate either presumed prejudice

or actual prejudice arising from the performance of her appointed counsel. Thus, the

superior court did not err in affirming Watkins’ conviction.

(Dkt. # 14, Exhibit 11, page 1-3). 

 

Review of the State Supreme Court’s ruling denying review shows petitioner raised this same issue, 

(Dkt. # 14, Exhibit 16). This issue, ineffective assistance of counsel based on lack of an attorney

client relationship, is exhausted. 

The court next considers the personal restraint petition filed by petitioner. A reading of the

69 pages of argument, attachments and exhibits show that while petitioner raises six separate ground

none are raised as federal Constitutional claims. (Dkt. # 14, Exhibit 20 filing numbers 14-8 to 14-

10). Further, while the motion for discretionary review filed in the State Supreme Court mentions

the concept of “right to counsel”, the document does not clearly raise any federal Constitutional

claim and does not squarely place the court on notice that it is considering a Constitutional challenge. 

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(Dkt. # 14, Exhibit 24).

Thus, the personal restraint petition did not exhaust any issues. The only issue exhausted in

this petition is the claim that counsel was ineffective because lack of an attorney/client relationship. 

All other claims are procedurally barred. 

B. Ineffective assistance of counsel.

This claim is not subject to the normal two prong analysis set forth in Strickland v.

Washington, because petitioner does not claim the representation she received fell below an objective

standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 686 (1984). Instead,

petitioner claims ineffective assistance of counsel because of irreconcilable differences. (Dkt. #1).

The state court properly identified the issue and held:

... In determining whether an irreconcilable conflict of interest exists between

an attorney and client, the court examines “both the extent and nature of the

breakdown in communication between attorney and client and the breakdown’s effect

on the representation the client actually receives.” In Re Personal Restraint of

Stenson, 142 Wn.2d 710, 724 (2001). The breakdown in communication between

Watkins and her appointed counsel was entirely of Watkins’ making. She erroneously

believed that she has a right to be represented by a person who is not licensed to

practice law in Washington and erroneously believed that her law suit against the

State of Washington created an actual conflict of interest with her appointed counsel. 

Given her views, Watkins would have refused to cooperate with any other appointed

counsel who the court might have substituted. Further, the breakdown had little

effect on the representation Watkins actually received. Her appointed counsel

presented an appropriate defense to the charged crime. The district court did not

abuse its discretion in denying Watkins’ appointed counsel’s motion to withdraw. In

Re Personal Restraint of Stenson, 142 Wn.2d at 723. Watkins fails to demonstrate

either presumed prejudice or actual prejudice arising from the performance of her

appointed counsel. Thus, the superior court did not err in affirming Watkins’

conviction.

(Dkt. # 14, Exhibit 11, pages 2-3). This court concurs with the State Court’s analysis. The ruling of

the state court does not result in a decision that is contrary to, or involves an unreasonable

application of, clearly established federal law, as determined by the Supreme Court. Further, the

state court ruling is not based on an unreasonable determination of the facts in light of the evidence

presented to the state courts. The record is clear that petitioner would not accept any attorney and

demanded that her boyfriend at the time, who was not licensed to practice law, be allowed to act as

her counsel. This petition is without merit.

CONCLUSION

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This petition is without merit and should be DENIED. Three claims are unexhausted and

procedurally barred and the remaining claim is without merit. A proposed order accompanies this

report and recommendation.

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

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

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

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

72(b), the clerk is directed to set the matter for consideration on October 27th, 2006, as noted in the

caption.

Dated this 4th, day of October, 2006.

/S/ J. Kelley Arnold

J. Kelley Arnold

United States Magistrate Judge

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