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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GARY ALAN NOBLE,

Petitioner, 

v.

SANDRA CARTER,

Respondent.

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Case No. C06-579-JLR-JPD

REPORT AND RECOMMENDATION 

I. INTRODUCTION AND SUMMARY CONCLUSION

Petitioner Gary Alan Noble, an inmate at the Monroe Correctional Complex in

Monroe, Washington, is serving a sentence of life in prison without parole after being adjudged

a “persistent offender” under the Washington Persistent Offender Accountability Act

(“POAA”), former R.C.W. § 9.94A.120(4) (2000) of the Sentencing Reform Act of 1981

(“SRA”). He has filed a 28 U.S.C. § 2254 petition for writ of habeas corpus arguing that his

current sentence was unconstitutionally enhanced by the use of a 1969 conviction in which he

was denied the assistance of counsel during a critical stage of his criminal proceedings. Dkt.

No. 1. Respondent has filed a response opposing the petition. Dkt. No. 10. Oral arguments

were heard in this matter on January 18, 2007. After careful consideration of the pleadings,

supporting materials, oral arguments, governing law, and the balance of the record, the Court

recommends that the petition be DENIED and this case DISMISSED with prejudice.

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 The POAA is now codified at R.C.W. § 9.94A.505. It is commonly known as

Washington’s “three strikes” law.

REPORT AND RECOMMENDATION

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II. FACTS AND PROCEDURAL HISTORY

 In early 2000, the petitioner was charged with five counts of second-degree robbery

which took place between January 6, 2000 and February 1, 2000. A jury convicted him on all

five counts on November 17, 2000, and he was subsequently sentenced to five terms of “life in

prison without parole” as a result of the trial court’s finding that petitioner was a “persistent

offender” under the POAA. Administrative Record (“AR”) Ex. 1.1

Proceeding through counsel, petitioner appealed his conviction and sentence to

Division I of the Washington Court of Appeals, to no avail. See State v. Noble, 116 Wn.App.

1043 (2003) (unpublished opinion). He subsequently sought review by the Washington

Supreme Court, which was denied on January 7, 2004. State v. Noble, 150 Wn.2d 1026

(2004) (unpublished opinion). The Court of Appeals issued its mandate on January 26, 2004. 

AR Ex. 9, App. C. 

On January 21, 2005, petitioner filed a personal restraint petition (“PRP”) with the

Court of Appeals, seeking relief from confinement arising from his life sentences as a

persistent offender. Id. Ex. 8. This petition was dismissed by the Court of Appeals on

October 19, 2005, and further review was denied by the Washington Supreme Court on

January 27, 2006. Id. Exs. 13, 15. The Court of Appeals issued a Certificate of Finality on

June 29, 2006. Id. Ex. 18. On April 24, 2006, petitioner filed the present § 2254 habeas

corpus petition. Dkt. No. 1.

III. CLAIM FOR RELIEF

This case presents the general question of whether federal postconviction relief is

available to a prisoner who challenges a current sentence on the ground that it was

unconstitutionally enhanced by a prior conviction for which he is no longer in custody. 

Petitioner’s § 2254 petition presents one specific issue for review: whether petitioner’s 1969

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 Docket No. 17-2, the juvenile court’s ruling declining jurisdiction, was added to the

record on respondent’s motion during oral argument in this matter. See Dkt. No. 18. Petitioner

lodged no objection to this motion, but moved in turn to expand the record with certain additional

declarations. Id. The Court granted this request, and eventually afforded petitioner until

February 12, 2007 to supplement the record. Dkt. No. 20. Petitioner filed a supplemental

declaration on February 13, 2007. See Dkt. No. 21.

REPORT AND RECOMMENDATION

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conviction properly constitutes a “first strike” under the POAA. Before petitioner could be

determined to be a “persistent offender” and sentenced to life in prison without parole, he had

to have been found to have committed certain predicate offenses preceding the 2000 seconddegree robbery convictions. Petitioner’s all-important “first strike” came as a result of a May

5, 1969 conviction (“1969 conviction”) for first-degree assault and attempted robbery that

took place on October 12, 1968, when the petitioner was a seventeen-year-old juvenile. AR

Ex. 9, App. B. During juvenile court proceedings on November 7, 1968, the juvenile court

declined jurisdiction over petitioner, and he was subsequently charged, convicted, and

sentenced in King County Superior Court. See Dkt. No. 17-2;2 AR Ex. 9 at 6 (reflecting

October 19, 1968 arrest); AR Ex. 5 (noting November 18, 1968 information); AR Ex. 9, App.

B (May 5, 1969 judgment and sentence). 

Petitioner’s § 2254 petition asserts that counsel was not appointed for him at this

juvenile decline hearing and he did not waive his right to the same. Although petitioner

concedes he was represented by counsel after his case was transferred to superior court, he

argues that the 1969 conviction could not be used to enhance his 2001 sentence, because he

was deprived of his Sixth Amendment right to counsel at that “critical” decline proceeding. 

He argues that if the juvenile court had not declined jurisdiction, the 1969 conviction would

not have constituted a “strike” under R.C.W. § 9.94A.030(31) and (33). Without that

predicate conviction, petitioner would not have “struck out” under the POAA in 2001, and

would have instead faced a maximum sentence of 84 months, not life without parole. 

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 Because petitioner did not petition the United States Supreme Court for writ of

certiorari, his conviction became “final” for purposes of habeas review 90 days after his direct

appeal was denied, or April 7, 2004. Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001).

REPORT AND RECOMMENDATION

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Respondent argues that the present petition is simply an attack on the 1969 conviction,

long since time-barred or, in the alternative, that the petition has not been properly exhausted,

and cannot now be exhausted due to an adequate, independent, and mandatory state

procedural rule. Respondent also contends that because the defendant is no longer “in

custody” on his 1969 conviction, his habeas petition should be dismissed. Finally, respondent

asserts that because the decisions of the Washington appellate courts were not contrary to

clearly established federal law, the petition must be denied on its merits.

IV. DISCUSSION

A. Petitioner’s Claim Is Not Time Barred

The respondent first argues that the current petition is time-barred because it was not

filed within one year after the 1969 conviction became final, or one year after April 24, 1996,

the date upon which the federal statute of limitations began to run on convictions that were

final before the passage of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), codified at 28 U.S.C. § 2254. The respondent’s argument misses the mark. The

petitioner is not challenging his 1969 conviction, except as it was used to enhance the

sentence for his 2000 convictions—the punishment for which he now seeks collateral relief. 

Petitioner’s direct challenge to his current sentence was rejected by the Washington Supreme

Court on January 7, 2004. AR Ex. 4.3 Petitioner’s first post-conviction PRP was filed on

January 21, 2005, or 289 days after finality, and was pending until a panel of the Washington

Supreme Court denied further review on March 7, 2006. See AR Exs. 8, 17. The present

habeas petition was filed 48 days later. Dkt. No. 1. Because the statute is tolled while

properly-filed PRPs are pending, 28 U.S.C. § 2244(d)(2), the petition was filed within the

one-year statute of limitations. The petition is not time barred.

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B. Petitioner Satisfies the “In-Custody” Requirement

In order for a federal court to have subject-matter jurisdiction to issue a writ of habeas

corpus, the petitioner must be “in custody pursuant to the judgment of a State court . . . in

violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a);

Maleng v. Cook, 490 U.S. 488, 490, 494 (1989) (per curiam); Williamson v. Gregoire, 151

F.3d 1180, 1182-83 (9th Cir. 1998). This requires that the petitioner be in custody pursuant

to the sentence he is attacking by way of the petition. Maleng, 490 U.S. at 490-91. “[O]nce

the sentence imposed for a conviction has completely expired, the collateral consequences of

that conviction are not themselves sufficient to render an individual in custody for the

purposes of the habeas attack upon it.” Id. at 492 (internal quotations omitted).

When a habeas petitioner is incarcerated pursuant to a subsequent conviction, and an

expired conviction was used to enhance the subsequent conviction, the in-custody

requirement can be satisfied for purposes of challenging the current conviction in certain

limited circumstances. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001)

(discussing Maleng, 490 U.S. at 493-94); Brock v. Weston, 31 F.3d 887, 890-91 (9th Cir.

1994)). However, before the Court can construe a habeas petition as an attack on a current

sentence as enhanced by a prior expired conviction, the petitioner must first show a “‘positive

and demonstrable nexus’ between [the] prior conviction and current custody.” Brock, 31 F.3d

at 890 (quoting Lowrey v. Young, 887 F.2d 1309, 1312 (7th Cir. 1989)). 

Even when this requirement can be met, a petitioner may generally not challenge the

expired conviction by means of the allegedly enhanced current sentence. Lackawanna, 532

U.S. at 403-04. Although the Supreme Court has identified very limited exceptions to this

rule, “to be eligible for review, the challenged prior conviction must have adversely affected

the sentence that is the subject of the [current] habeas petition.” Id. at 406. That is, the prior

conviction must have “actually increased the length of the sentence the [subsequent] court

ultimately imposed.” Id. at 407. In this case, the petitioner is serving a life sentence because

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 To this end, the Court disagrees with respondent’s argument that, to avail himself of

Lackawanna exception, petitioner was required to make a timely exhaustion of all collateral

remedies regarding his 1969 conviction decades before the ramifications of that conviction bore

out for POAA purposes in 2001. See infra § IV.C.

REPORT AND RECOMMENDATION

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his 1969 conviction was considered a first strike. If this conviction was not so considered,

petitioner would have faced a maximum term of 84 months. Consequently, he has satisfied

the “in-custody” requirement of 28 U.S.C. § 2254(a).4

C. Petitioner’s Claim Is Not Procedurally Barred

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. Edwards v.

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

procedural bar in federal habeas actions. The Supreme Court of the United States 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). 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 present his claims fairly 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). In the present case, the Washington Supreme Court and Court of

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Appeals expressly found that R.C.W. § 10.73.090(1) barred petitioner’s claims collaterally

attacking his 1969 conviction. See AR Ex. 13 at 2-4, Ex. 15 at 2-3. This provision bars

collateral challenges of convictions more than one year after such convictions become “final.” 

R.C.W. § 10.73.090(1). Where, as here, the pertinent conviction became final prior to July

23, 1989, the petitioner has one year from that date to file a PRP. R.C.W. § 10.73.130. 

According to the respondent, because petitioner defaulted by failing to meet the July 23, 1990

PRP deadline in state court, the present petition is procedurally barred in federal court. 

The Court disagrees with this analysis. Such a result would gut the exception

provided for in Lackawanna, and to that end, would provide constitutional protection to only

the most rapid recidivists. In addition, respondent’s analysis in this regard once again ignores

the fact that the petitioner is not challenging his 1969 conviction, but rather, his 2001

sentence as enhanced by that old conviction. Finally, it would defy all reason and

fundamental fairness to say that petitioner could not establish “cause” for failing to raise a

three strikes argument that did not exist in 1990, and would not be prejudiced by serving five

life-without-parole sentences as opposed to an 84 month sentence (now completed). For this

significant constitutional issue, form should not prevail over substance. Accordingly, the

Court refuses to dispose of petitioner’s § 2254 petition by invoking the procedural bar rule,

preferring instead to address the petition on its merits. 

D. The Use of the 1969 Conviction to Enhance the Petitioner’s Sentence Did Not

Violate Clearly Established Federal Law

1. Standard of Review

AEDPA governs petitions for habeas corpus filed by prisoners who were convicted in

state courts. It “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

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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 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. 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,” correcting an earlier interpretation by the

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

as follows:

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

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

clear error) with unreasonableness. It is not enough that a federal habeas

court, in its “independent review of the legal question” is left with a “firm

conviction” that the state court was “erroneous.” . . . [A] federal habeas court

may not issue the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly established

federal law erroneously or incorrectly. Rather, that application must be

objectively unreasonable.

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

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

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

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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).

2. The Supreme Court’s Jurisprudence on Sentencing

Enhancements Based on Prior Convictions Without the

Right to Counsel 

In Lackawanna, the Supreme Court was presented with the question of whether a state

prisoner could bring a habeas petition when his current sentence was enhanced by an

allegedly unconstitutional prior conviction for which the sentence had fully expired. 

Lackawanna, 532 U.S. at 401. There, the petitioner had been convicted in 1986, and sought

relief under Pennsylvania’s Post Conviction Relief Act, alleging that his trial attorney was

constitutionally ineffective. Id. at 397. No action was taken by the state court on his petition,

and he ultimately was released from custody after serving his sentence. Id. at 399. He was

subsequently convicted of aggravated assault, and the court relied, in part, upon his 1986

conviction to determine the petitioner’s criminal history for sentencing purposes. Id.

The Supreme Court in Lackawanna held that as a general proposition, the need for

finality of convictions and ease of administration of challenges to expired convictions

precluded direct or collateral attack on such convictions, even if used for the purposes of

sentence enhancements. Id. at 403-04. However, the Court noted an important exception to

this general proposition in the case where a petition challenged an enhanced sentence on “the

basis that the prior conviction used to enhance the sentence was obtained where there was a

failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v.

Wainwright, 372 U.S. 335 (1963).” Id. at 404. The Court noted the special status of Gideon

and concluded that the administrative concerns regarding failure to appoint counsel were

generally not applicable. Id. The Court ultimately held:

When an otherwise qualified § 2254 petitioner can demonstrate that his current

sentence was enhanced on the basis of a prior conviction that was obtained

where there was a failure to appoint counsel in violation of the Sixth

Amendment, the current sentence cannot stand and habeas relief is appropriate.

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Id.

The present petition is facially consistent with the exception described in

Lackawanna. The remaining question, then, is when should counsel have been appointed

regarding the 1968 charges? Petitioner asserts that counsel was appointed in the superior

court trial, but that counsel was not appointed, nor was he afforded his right to the same,

when the juvenile court was considering whether or not it should retain jurisdiction.

3. The Supreme Court’s Jurisprudence on the Timing of

Appointment of Counsel

The Supreme Court has long instructed that the Sixth Amendment right to counsel in a

criminal case extends to “all critical stages of the criminal process.” Iowa v. Tovar, 541 U.S.

77, 80-81 (2004); United States v. Wade, 388 U.S. 218, 224 (1967). “The essence of a

‘critical stage’ is not its formal resemblance to a trial, but the adversary nature of the

proceeding, combined with the possibility that a defendant will be prejudiced in some

significant way by the absence of counsel.” United States v. Leonti, 326 F.3d 1111, 1117 (9th

Cir. 2003).

In Kent v. United States, 383 U.S. 541 (1966), the Supreme Court held that a juvenile

court’s determination to retain or waive jurisdiction over a defendant is a “critical stage” in a

criminal proceeding, during which the basic guarantees of due process attach. Id. at 553, 556,

560; see also In re Gault, 387 U.S. 1, 36 (1967) (similar); Barker v. Estelle, 913 F.2d 1433,

1440 (9th Cir. 1990) (“[A] juvenile court’s decision to transfer a child from the statutory

protection of the juvenile court to an adult court is ‘critically important.’”), cert. denied, 500

U.S. 935 (1991); Harris v. Procunier, 498 F.2d 576, 577 (9th Cir.) (en banc) (same), cert.

denied, 419 U.S. 970 (1974). Accordingly, “before a juvenile can be transferred to an adult

court, the juvenile must be given a hearing, effective assistance of counsel, access to records

relied on by the court, and a statement of reasons for the juvenile court decision.” Barker,

913 F.2d at 1440 (emphasis added); see also Juvenile Male v. Commonwealth of Northern

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Mariana Islands, 255 F.3d 1069, 1072 (9th Cir. 2001) (same); Guam v. Kingsbury, 649 F.2d

740, 743 (9th Cir. 1981) (same); State v. Holland, 30 Wn.App. 366, 373, 635 P.2d 142

(1981) (“Although decline proceedings are non-adversarial, the juvenile is afforded the

protections of the due process clauses of the United States and Washington constitutions.”).

Petitioner argues that because he received a decline hearing, he was entitled to counsel

under Gideon and progeny, the failure of which constitutes a structural defect, not harmless

error. Respondent insists that counsel was provided, and in the alternative, argues that

petitioner’s decline hearing and concomitant right to counsel were never required because

petitioner was not charged until November 18, 1968—when he was eighteen years old. This

argument, in essence, contends that because the decline hearing was not mandatory due to the

automatic jurisdiction of the superior court upon charging, it was not “critical” to petitioner

under Gideon.

4. Because Petitioner Was Represented by Counsel at His Juvenile

Decline Hearing, the Washington Supreme Court’s Decision

Could Not Have Been Contrary to Clearly Established Federal

Law

On January 19, 2007, counsel for the petitioner filed a document entitled “Submission

of Additional Record,” which included a microfiche copy of the juvenile court’s ruling

declining jurisdiction. Dkt No. 17-2. This document, dated and file-stamped November 7,

1968, unambiguously refers to a Mr. Edmund B. Raftis serving in the capacity of appointed

counsel for the petitioner during his proceedings before the juvenile court. See id. The

document was added, without objection, to the administrative record in this case on

respondent’s motion during oral argument. See Dkt. No. 18. That Mr. Raftis represented

petitioner during this time period in the proceedings is further corroborated by a reference to

Mr. Raftis in a February 20, 1969 affidavit filed by petitioner’s subsequent counsel, Mr.

Barry A. Schneiderman. AR Ex. G at 2. 

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Among the hundreds of documents filed in this case, none is more important. The

information contained within the juvenile court’s decline order constitutes the only objective

evidence in the entire record regarding whether petitioner was represented by counsel at his

1968 juvenile decline hearing. Its authenticity is undisputed. The contents of petitioner’s

declarations and other subjective filings do not weaken the conclusive nature of the

information provided by this document. Rather, the latter undermines the reliability of the

former. Furthermore, petitioner’s final declaration of February 13, 2007 (Dkt. No. 21-2),

adds no new information controverting the 1968 decline order or the other objective

information in the record that corroborates its notation of appointed counsel. See AR Ex. G

at 2. 

The Court finds that Docket No. 17-2, the juvenile court’s 1968 decline order,

conclusively establishes that petitioner was afforded counsel at all juvenile proceedings

relevant to the matter now before the Court. Because petitioner was represented by counsel at

his 1968 juvenile decline hearing, Lackawanna’s Sixth Amendment exception does not apply,

and petitioner is precluded from collaterally attacking his 2001 sentence (as enhanced by his

1969 conviction) through this § 2254 petition.

5. Assuming Arguendo that Counsel Was Not Provided at

Petitioner’s “Critical” Juvenile Decline Hearing, the

Washington Supreme Court’s Decision Was Neither Contrary to

Nor An Unreasonable Application of Clearly Established

Federal Law

When considering the PRPs challenging the petitioner’s sentence, neither the

Washington Court of Appeals nor the Washington Supreme Court cited Lackawanna or Kent.

Instead, the Court of Appeals, focusing primarily on the 1969 judgment and sentence,

explained that petitioner’s claims were procedurally barred because his 1969 conviction was

never appealed, and alternatively, that such claims were without merit for failure to establish

that the 1969 conviction was facially unconstitutional. AR Ex. 14, App. A at 2-7. The

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Washington Supreme Court likewise concluded that petitioner’s challenge was procedurally

barred, interpreting the appeal to be primarily a challenge to the validity of the 1969

conviction, instead of an attack on its use to enhance the 2001 sentences. See id. Ex. 15 at 4

(“Since Mr. Noble establishes no ground for challenging his 1969 conviction beyond the oneyear time limit on collateral attack, the sentencing court properly counted that conviction as a

strike.”). The Commissioner did not discuss whether the provision of counsel was required at

a juvenile decline proceeding. The Washington Supreme Court denied review without

substantive comment. Id. Ex. 17. 

Although the Washington appellate courts failed to cite or otherwise address the

specific holdings in Lackwanna or Kent, it would be error to say that the principles of those

cases were ignored or flouted. Both the Washington Supreme Court and Court of Appeals

performed some analysis of petitioner’s right-to-counsel argument. See Early v. Packer, 537

U.S. 3, 8 (2002) (“Avoiding [“contrary to” clause’s] pitfalls does not require citation of our

cases—indeed, it does not even require awareness of our cases, so long as neither the

reasoning nor the result of the state-court decision contradicts them.”); Sims v. Rowland, 414

F.3d 1148, 1152 (9th Cir. 2005) (same). In rejecting petitioner’s contention that the superior

court improperly counted the 1969 conviction as a predicate strike under the POAA, the

Court of Appeals’ October 19, 2006 Order of Dismissal explained as follows:

Noble points out that he was only 17 years of age when he was arrested

on the assault and attempted robbery charges. Former R.C.W. 13.04.120

(1959) sets forth the procedures to be followed when a person under 18 years

of age was arrested for alleged criminal activity. That statute, which was in

effect when Nobel [sic] committed his offenses, provided that a juvenile court

“may proceed to hear and dispose of the case.” And, while this language may

be a bar to proceedings against a person under 18, it does not deprive the adult

court of jurisdiction after the juvenile reaches 18 years of age. In re

Application of Dillenburg, 70 Wn.2d 331, 341-42, 413 P.2d 940, 422 P.2d 783

(1966); State v. Ring, 54 Wn.2d 250, 253, 339 P.2d 461 (1959).

While Noble has presented court records that indicate some proceeding

took place in juvenile court, “there is no constitutional right to be tried in a

juvenile court.” In re Personal Restraint of Boot, 130 Wn.2d 553, 571, 925

P.2d 964 (1996) (quoting State v. Dixon, 114 Wn.2d 857, 860, 792 P.2d 137

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(1990)). Jurisdiction is automatically transferred to adult court when charges

are not filed against the juvenile until after he or she turns 18 years of age. 

State v. Bushnell, 38 Wn.App. 809, 811, 690 P.2d 601 (1984). As this court

found in Noble’s direct appeal, he “was 18 years of age when he was charged

and convicted.” Because there was no need of a decline hearing for

jurisdiction over Noble to be properly transferred to adult court, the absence of

any documents showing that juvenile court jurisdiction was declined proves

nothing. Unlike the cases cited by Noble, the State did not bring charges

against Noble until he turned eighteen. Under the circumstances, there was no

legal impediment to charging and convicting Noble in adult court. 

AR, Ex. 13 at 4-5. 

The same court’s April 21, 2003 ruling on petitioner’s direct appeal mirrored this

analysis, noting as follows:

Noble claims the sentencing court erred in holding that his 1969 conviction on

a plea of guilty to assault in the first degree qualified as a predicate strike. We

disagree. Noble was 17 years of age when he committed the assault and attempted robbery. 

A few days later, while still 17, he was arrested for being a runaway and for investigation of

an assault on a police officer. Noble turned 18 before charges were filed, approximately one

month after the crime. 

. . . .

Although he claims he was not represented in any of the juvenile proceedings,

the important fact is that he was charged and tried in adult court after he turned

18 and after the juvenile court lost jurisdiction. Thus, what might or might not

have happened in juvenile court is of no moment. 

AR Ex. 9, App. C at 6, 7-8.

The Supreme Court Commissioner commented similarly regarding the date of

charging in his January 26, 2006 ruling denying review:

But even if there was a decline hearing, about three weeks later Mr.

Noble turned 18, and after that date, the State first charged him in superior

court with the crimes to which he later pleaded guilty. When Mr. Noble

turned 18, jurisdiction automatically shifted to superior court, and he was

properly charged and convicted there. State v. Ring, 54 Wn.2d 250, 253, 339

P.2d 4561 (1959); State v. Bushnell, 38 Wn.App. 809, 811, 690 P.2d 601

(1984). And this is so even if there . . . was a defect in the decline order. 

Ring, 52 Wn.2d at 253. Even in the normal course of the juvenile

proceedings, Mr. Noble likely would have turned 18 before the charges against

him were resolved. 

AR Ex. 15 at 4. 

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Assuming, for the sake of argument, that petitioner was deprived of and did not waive

his right to counsel at his 1968 juvenile decline hearing, the Court would nevertheless find

that the decisions by the Washington appellate courts to affirm petitioner’s sentence under the

POAA was neither contrary to nor an unreasonable application of federal law as determined

by the Supreme Court of the United States. The undisputed evidence of record in this case

reflects that criminal charges were filed against petitioner, for the first time, on November 18,

1968, after petitioner’s eighteenth birthday, during which time he was provided counsel. Id.

Ex. 5 at 2-3. Accepting the above-mentioned assumption, then, resolution of this case would

hinge upon whether the appellate courts of Washington acted contrary to clearly established

federal law by determining that because the petitioner was not charged (or his cause heard on

its merits) until he was eighteen years of age, he was not deprived of his Gideon rights to be

represented by counsel at the juvenile decline proceeding. In answering this question, the

Court must decide whether petitioner’s 1968 juvenile decline hearing—ordinarily a “critical

stage” under Kent—was indispensable or merely optional and thus not critical at the time it

occurred.

An analogous case from the Seventh Circuit suggests that the latter conclusion is most

appropriate. In Grigsby v. Cotton, 456 F.3d 727 (7th Cir. 2006), the Seventh Circuit affirmed

the denial of § 2254 relief to a petitioner sentenced to a fifty-year enhanced prison term as a

habitual offender under Indiana law. Mr. Grigsby’s sentence was enhanced based upon a

1978 guilty plea to first-degree murder entered in an Indiana state criminal court when he was

seventeen years old, obtained after a juvenile waiver hearing during which Mr. Grigsby was

not provided counsel. Id. at 729. Mr. Grigsby’s argument for habeas relief was strikingly

similar to that advanced by the petitioner today—i.e., that his sentence was enhanced on the

basis of a prior Gideon-tainted conviction, cognizable in a § 2254 action challenging an

enhanced sentence under the exception provided by Lackawanna. 

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After rejecting the respondent’s arguments of procedural default and laches for

reasons similar to those stated by this Court above, the Seventh Circuit proceeded to the

merits of Mr. Grigsby’s petition, explaining that his “Lackawanna claim turn[ed] on whether

his juvenile waiver hearing was a ‘critical stage[ ] of the prosecution’ during which Gideon

required representation by counsel.” Id. at 732 (quoting Jackson v. Miller, 260 F.3d 769, 775

(7th Cir. 2001)) (second alteration added by Grigsby court). After acknowledging that Mr.

Grigsby was charged at sixteen years of age and convicted at seventeen, the Seventh Circuit

explained that while Indiana law gave juvenile courts the discretion to hold a waiver hearing

(which the juvenile court did), its pertinent definition of “child” excluded all persons charged

with first-degree murder. Id. at 733. This definition, according to the Seventh Circuit,

rendered the juvenile waiver hearing optional and transfer to state criminal court automatic

upon the return of the indictment. Id. For that reason, the court held that provision of

counsel to Mr. Grigsby at the juvenile waiver hearing, and indeed the hearing itself, was “not

. . . a critical stage at the time it would have occurred.” Id. at 734. Accordingly, the court

found no Sixth Amendment violation, and refused to set aside the use of Mr. Grigsby’s 1978

conviction to enhance his 1988 sentence. Id. 

This Court is convinced that the Seventh Circuit’s reasoning in Grigsby applies here.

Although petitioner’s acts of assault and attempted robbery occurred while he was seventeen,

he was eighteen when the charges were filed, the guilty pleas entered, and the convictions

obtained. At that point in time, any jurisdiction the juvenile court might have had was lost,

and transfer to the general jurisdiction of the superior court became automatic. See State v.

Bushnell, 38 Wn.App. 809, 811, 690 P.2d 601 (1984) (determining jurisdiction by date of

trial, not date of offense, noting that “[e]ven if a juvenile cause were pending and not yet

heard on the merits prior to the juvenile’s 18th birthday, the juvenile court loses

jurisdiction.”) (citing State v. Calderon, 102 Wn.2d 348, 351, 684 P.2d 1293 (1984); State v.

Setala, 13 Wn.App. 604, 606, 536 P.2d 176 (1975); In re Sweet, 75 Wn.2d 869, 870, 454

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P.2d 219 (1969); State v. Brewster, 75 Wn.2d 137, 142-43, 449 P.2d 685 (1969)); see also

State v. Kramer, 72 Wn.2d 904, 907, 435 P.2d 970 (1968) (“When a juvenile cause is

pending and not heard on its merits prior to the time the juvenile reaches 18 years of age, the

juvenile court loses jurisdiction over the cause.”) (emphasis added). At this time, the superior

court had jurisdiction to try petitioner as an adult regardless of whether the juvenile court had

properly declined jurisdiction. Kramer, 72 Wn.2d at 907, 435 P.2d 970; In re Lesperance, 72

Wn.2d 567, 576, 434 P.2d 602 (1967). Accordingly, what might or might not have happened

in juvenile court is of no constitutional moment. State v. Ring, 54 Wn.2d 250, 253-55, 339

P.2d 461 (1959) (affirming conviction and sentence of defendant, despite the fact that

juvenile court transferred defendant to the superior court by a faulty order; court viewing as

irrelevant “the fact that [defendant] was under eighteen years of age when the second

amended information was filed” because “[h]e was eighteen when the case was tried”). As

was the case in Grigsby, petitioner’s decline hearing was not “critical” under Gideon at the

time it occurred.

Although the Washington appellate courts failed to cite or specifically address the

pertinent holdings in Lackwanna or Kent, neither court arrived at a conclusion contrary to that

reached by the Supreme Court of the United States on a question of federal law. Williams,

529 U.S. at 389-90, 405-06. Accordingly, petitioner’s § 2254 petition should be denied.

D. An Evidentiary Hearing is Not Required

In his reply brief and during oral argument, petitioner argued that the Court should

conduct an evidentiary hearing. Dkt. No. 13 at 9-11. According to the petitioner, such a

hearing would resolve confusion regarding, among other things, the accuracy of the juvenile

court’s 1968 order declining jurisdiction. Dkt. No. 17-2. 

Generally, an evidentiary hearing is appropriate in a § 2254 proceeding when

petitioner’s allegations, if proven, would entitle him to relief. Totten v. Merkle, 137 F.3d 1172,

1176 (9th Cir. 1998). Such a hearing, however, is not required when the Court is able to

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resolve the petition on the existing state court record. Id. In this case, the record—which

includes all of petitioner’s state court briefs, superior court sentences and judgments, the

Washington appellate courts’ pertinent rulings, the juvenile court’s order declining

jurisdiction, and all declarations filed by petitioner—is sufficient for the Court to resolve the

petition without an evidentiary hearing. 

V. CONCLUSION

For the foregoing reasons, the Court recommends that petitioner’s 28 U.S.C. § 2254

petition be DENIED and this case DISMISSED with prejudice. A proposed order

accompanies this Report and Recommendation.

DATED this 13th day of February, 2007.

AJAMES P. DONOHUE

United States Magistrate Judge 

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