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1

While this Court adopts the R & R’s ultimate conclusions and much of its reasoning, there are

some issues for which this Court wishes to put its own legal analysis on the record. For other issues,

this Court will adopt the R & R’s analysis without significant elaboration.

ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

ROBERT DURALL,

Petitioner,

v.

 KENNETH QUINN, 

Respondent.

No. 06-cv-01012-MJP-MAT

ORDER ADOPTING REPORT AND

RECOMMENDATION AND

DENYING PETITION FOR WRIT OF

HABEAS CORPUS

Overview

State prisoner Robert Durall (“Durall”) has filed objections to the Magistrate Judge’s Report

and Recommendation (“R & R”), which recommended denying Durall’s petition for a writ of habeas

corpus. Upon review of the record (Dk. Nos. 4, 13, 16, 19, 20, 21) and documents submitted by the

parties, this Court ADOPTS the Magistrate Judge’s R & R1

 and DENIES Durall’s petition. 

Background

This Court adopts the factual and procedural background of this case as set forth in the R& R.

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ORDER - 2

Standard of Review

Regarding claims that were adjudicated on the merits in state court, this Court may only grant

habeas relief if the state court decision was contrary to, or involved an unreasonable application of,

clearly established Supreme Court precedent, or if the state court decision was based on an

unreasonable determination of the facts. See 28 U.S.C. § 2254(d). In conducting this inquiry, this

Court reviews the “last reasoned decision” of the state courts. See, e.g. Robinson v. Ignacio, 360

F.3d 1044, 1055 (9th Cir. 2004). For most of Durall’s claims, the last reasoned decision was the

decision of the Washington Supreme Court Commissioner (“Commissioner”) denying review of

Durall’s Personal Restraint Petition. 

This Court may not grant habeas relief on a particular claim if a petitioner failed to exhaust

state court remedies as to that claim and the claim would now be procedurally barred in state court. 

See Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991). 

Analysis

A. Durall’s Sixth Amendment right to counsel was not violated by the introduction of notes

and testimony from Durall’s private investigator.

Durall argues that he was denied his Sixth Amendment right to counsel when the prosecution

introduced notes and testimony from Durall’s conversation with his private investigator. The

Commissioner held that, even if the introduction of this evidence violated Durall’s attorney-client

privilege, the privilege is not of constitutional magnitude. Furthermore, the Commissioner held that

Durall did not suffer prejudice from the claimed error. 

The Commissioner’s two grounds for denying relief were not unreasonable. Regarding the

first ground, Durall cannot point to any Supreme Court case holding that the introduction of evidence

in violation of attorney-client privilege violates the Sixth Amendment. The closest case is Weatherford

v. Bursey, 429 U.S. 545 (1977), which stated (in dicta) that government eavesdropping on attorneyclient conferences, coupled with introduction of evidence gleaned by such eavesdropping, may violate

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ORDER - 3

the Sixth Amendment. Id. at 552. But Weatherford did not address the introduction of evidence

without prior government eavesdropping or malfeasance. Furthermore, at least two Circuits have held

that the mere introduction of evidence in violation of attorney-client privilege does not violate the

Sixth Amendment. See United States v. Mett, 178 F.3d 1058, 1066 (9th Cir. 1999); Lange v. Young,

869 F.2d 1008, 1012 n.2 (7th Cir. 1989). In light of Weatherford’s ambiguity, and lower court rulings

on the issue, it was not unreasonable for the Commissioner to determine that introducing evidence in

violation of attorney-client privilege does not violate the Sixth Amendment.

Regarding the prejudice ground, the Commissioner reasonably determined that Durall was not

substantially prejudiced by the introduction of the private investigator (“P.I.”) evidence. The

prosecution mainly used the P.I. evidence to indirectly discredit the testimony of Dignoraah Perez, a

convenience store clerk who testified to seeing Carolyn alive one day after Durall had allegedly killed

her. The P.I. evidence disclosed that Durall never bothered to tell his private investigator about

Perez’s story, thus implying that Durall knew Perez’s story was false. 

It is true, as Durall argues in his objections to the R & R, that Perez was a powerful defense

witness and it was important for the prosecution to discredit her testimony. However, the prosecution

did so in multiple ways besides the introduction of the P.I. evidence. For instance, the prosecution

introduced e-mails that Durall wrote to acquaintances regarding Carolyn’s disappearance, in which he

omitted any mention of Perez’s story and instead stated that no one had seen Carolyn since the

previous day. These e-mails created the same inference as the P.I. evidence – namely, that Durall

knew Perez was mistaken and therefore deliberately didn’t relay her story to others. Viewing the

evidence as a whole, the P.I. evidence was not an indispensible part of the prosecution’s case and

Durall was not substantially prejudiced by its introduction. The P.I. evidence did not have a

“substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson,

507 U.S. 619, 637 (1993). 

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ORDER - 4

B. Durall’s rights to due process and a fair and impartial jury were not violated by two

instances of juror misconduct.

Durall argues that he was denied his rights to due process and a fair and impartial jury by two

instances where jurors engaged in ex parte communication with third parties about his case. The last

reasoned decision of the state courts on this claim was the decision of the Washington Court of

Appeals on direct review of Durall’s conviction. The Court of Appeals concluded that Durall had not

made a sufficient showing that the jurors’ ex parte communications prejudiced him. 

The Court of Appeals’ conclusion was not unreasonable. Durall’s main objection is that the

Court of Appeals placed the burden on him to show prejudice, rather than putting the burden on the

state to show that the ex parte communications were harmless. He cites to Remmer v. United States,

347 U.S. 227 (1954) for the proposition that ex parte communications with a juror about the pending

case are presumptively prejudicial and the Government bears the burden of showing harmlessness. Id.

at 229 (citing Mattox v. United States, 146 U.S. 140, 148-50 (1892)).

However, as the R &R points out, the prejudice presumption of Remmer has been limited to

instances of juror tampering, rather than other communications with jurors. See United States v.

Dutkel, 192 F.3d 893, 895-96 (9th Cir. 1999). Under Dutkel, tampering involves “an effort to

influence the jury’s verdict by threatening or offering inducements to one or more of the jurors.” Id. at

895. None of the ex parte communications in this case involved any coercion or inducements of

jurors. Thus, the Court of Appeals was not unreasonable in placing the burden on Durall to show

prejudice.

In his objections to the R & R, Durrell cites Caliendo v. Warden of California Men’s Colony,

365 F.3d 691 (9th Cir. 2004) for the proposition that ex parte communications with jurors are

presumptively prejudicial under the Remmer and Mattox line of cases. However, Caliendo explicitly

limited its holding to jurors’ communicating with “a witnesses or interested party.” 365 F.3d at 696. 

No such communications occurred in Durall’s case. 

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ORDER - 5

C. Durall’s rights under the Confrontation Clause were not violated by the introduction of

hearsay statements from Carolyn’s acquanitances.

The Commissioner determined that the introduction of hearsay statements against Durall did

not violate his rights under the Confrontation Clause because those hearsay statements were not

“testimonial” in nature. This conclusion was reasonable. This Court agrees with the R & R – and the

Commissioner – that the hearsay statements were not “testimonial” and thus not barred by the

Confrontation Clause. 

D. Providing transcripts of Durall’s suppression hearing to the jury during deliberations

did not violate Durall’s Sixth Amendment right to an impartial jury or his Sixth

Amendment right to be present during all critical stages of his trial.

The last reasoned decision addressing this issue was the decision of the Court of Appeals on

direct review. The Court of Appeals did not address the constitutional aspects of this issue, instead

focusing on whether the trial court abused its discretion as a matter of evidentiary law by providing the

jury with the suppression hearing transcripts.

Nonetheless, this Court adopts the R & R’s conclusion that providing these transcripts to the

jury did not violate Durall’s Sixth Amendment rights. While the Sixth Amendment provides a

defendant with the right to be present at all stages of his trial, see Illinois v. Allen, 397 U.S. 337, 338

(1970), it does not prevent a judge from providing exhibits to the jury during deliberations. See

United States v. Sobamowo, 892 F.2d 90, 97 (D.C. Cir. 1989) (“defendant’s presence not required

when exhibits are submitted to the jury during deliberations”). 

Furthermore, while courts acknowledge that providing transcripts to jurors may unduly

emphasize the importance of those transcripts, no court has held that this problem implicates the Sixth

Amendment right to a fair and impartial jury. See, e.g. United States v. Montgomery, 150 F.3d 983,

999-1000 (9th Cir. 1998) (analyzing decision to provide transcripts to jury as a simple evidentiary

matter rather than a Sixth Amendment issue). 

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ORDER - 6

E. Durall was not denied effective assistance of counsel by his attorney’s failure to obtain a

written plea agreement in exchange for Durall’s leading police to Carolyn’s body.

A claim for ineffective assistance of counsel requires that: (1) Counsel was deficient, and (2)

The deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687

(1984). The Commissioner denied Durall’s claim on the first Strickland prong, holding that his

counsel was not deficient for failing to obtain a written plea agreement because Durall hadn’t show

that the State ever offered such an agreement in exchange for his cooperation. 

The Commissioner’s decision was not unreasonable. Durall has provided no evidence, besides

his own assertions, that the Government offered him a plea agreement in exchange for leading police

to Carolyn’s body. In the absence of any showing that a plea agreement was even offered, Durall’s

counsel logically cannot be deficient for failing to enshrine such hypothetical plea agreement in writing. 

Durall alternatively argues that, even if the Government never offered a plea agreement, his

counsel was deficient for falsely telling him that the Government had offered a plea agreement and

thereby inducing him to lead police to Carolyn’s body. But the Commissioner found that Durall’s

counsel said no such thing, and Durall has not shown that this factual finding was unreasonable. 

In his objections to the R &R, Durall argues that his counsel must have told him about a plea

agreement, because it is objectively unreasonable that he would have led police to Carolyn’s body

otherwise. But this circumstantial argument is insufficient to show that the Commissioner’s factual

findings were unreasonable. Durall admits that he has no direct evidence that his counsel ever told

him about a plea agreement.

Because the Commissioner reasonably determined that Durall’s counsel never made statements

about any plea agreement, Durall has no claim for ineffective assistance of counsel arising out these

alleged statements. 

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ORDER - 7

F. Durall was not denied effective assistance of counsel when his attorney altered the

agreement under which Durall led police to Carolyn’s body in exchange for a

Government promise not to introduce evidence that Dorall had led them there.

The Commissioner appears to have denied this claim on the second Strickland prong, holding

that Durall was not prejudiced by his counsel’s alteration of the agreement. The Commissioner’s

determination was not unreasonable.

The agreement at issue originally stated, in relevant part, “the State has agreed not to seek to

introduce at trial or to publicize beforehand any information relating to Mr. Durall’s involvement in the

discovery of the body of his wife.” The agreement was subsequently modified by striking the phrase

“or publicize beforehand” and inserting a final sentence: “If, however, the defense introduces such

information in any court proceeding, the State is no longer bound by the provisions of this agreement.” 

When a defendant alleges ineffective assistance arising out of a plea agreement, prejudice will

be found if a defendant shows that there was a reasonable probability he would not have entered into

the agreement but for counsel’s errors. Hill v. Lockhart, 474 U.S. 52, 59 (1985). Although Durall’s

agreement was an assistance agreement rather than a plea agreement, this Court concludes that Durall

must at least satisfy the Hill standard to show prejudice. That is, he must show that there was a

reasonable probability he would not have entered into the assistance agreement had he known about

the altered terms.

Durall cannot make this showing, for the altered terms are quite minor in relation to the overall

agreement. The added sentence, allowing the Government to introduce evidence about Durall’s

assistance if Durall does so first, would hardly be objectionable as it still gives Durall control over

whether such evidence will be admitted. The deletion of the “publication” phrase is a closer call, but

still is a fairly minor change. Any defendant facing trial for murder would be far more concerned with

what evidence is admitted at trial rather than what information is publicized in other forums. A court

could readily conclude that there was no reasonable probability Durall would have backed out of the

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ORDER - 8

agreement merely on account of these minor alterations. Thus, Durall did not suffer prejudice, even if

his counsel was deficient by altering the agreement without his consent.

This Court adopts the R & R’s conclusion that Durall has procedurally defaulted on his

argument that the alteration of the agreement violated his Fifth Amendment due process rights.

G. Durall’s constitutional rights were not violated by the admission of evidence that Durall

failed to return a detective’s call, “refused” a warrantless search, or hired counsel.

The last reasoned decision of the state courts on this claim was the decision of the Washington

Court of Appeals on direct review, which held that the introduction of this evidence did not violate

any constitutional rights. The Court of Appeals’ legal determination was not unreasonable.

Durall’s failure to return the police officer’s call and his “refusal” of a warrantless search were

really one and the same act. Durall simply neglected to call back the officer who requested a

warrantless search. Durall has provided no case law suggesting that introduction of this evidence

violates either his Fourth Amendment right to be free from unreasonable searches nor his Fifth

Amendment right to silence.

The introduction of evidence that Durall hired counsel shortly after Carolyn’s disappearance is

a more complicated matter. The Court of Appeals held that “[t]he fact that Durall had hired an

attorney was raised by Durall himself to explain his inquiries about withdrawing money from his

pension plan.” However, the trial transcript clearly shows that the Government elicited testimony that

Durall had hired counsel, during the direct examination of witness Allen Becker.

Some courts have held that the Sixth Amendment right to counsel prohibits a prosecutor from

eliciting testimony that a defendant secured counsel, even if the defendant secured counsel before any

criminal proceedings were instituted. See, e.g. United States v. MacDonald, 620 F.2d 559, 564 (5th

Cir. 1980). However, there is no clear Supreme Court authority on this subject. Moreover, even

highly protective courts will not consider it reversible error if the prosecutor briefly or “incidentally”

elicits this prohibited testimony and does not emphasize it in his arguments. See, e.g., United States v.

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ORDER - 9

Daoud, 741 F.2d 478, 480 (1st Cir. 1984); United States v. Milstead, 671 F.2d 950, 953 (5th Cir.

1982). 

In this case, the Government only briefly touched on Durall’s obtaining counsel and made no

mention of it in opening or closing arguments. Thus, the introduction of this evidence would not be

reversible Sixth Amendment error even on direct review. It logically follows that Durall cannot obtain

habeas relief on this ground. See Duckett v. Godinez, 67 F.3d 734, 742 (9th Cir. 1995).

For similar reasons, the prosecutor’s eliciting of this testimony did not “so infect[] the trial

with unfairness as to make the resulting conviction a denial of due process.” Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974). The testimony that Durrall failed to return a phone call

seems entirely unobjectionable, and the testimony that Durrall hired an attorney was elicited only in

passing. Neither piece of evidence “infected the trial with unfairness” for due process purposes.

H. Durall’s double jeopardy rights were not violated when the jury’s initial, sealed verdict

was destroyed and the jury began deliberations anew with an alternate juror.

The Commissioner determined that the jury’s initial, sealed verdict was not a “final verdict”

that terminated Durall’s jeopardy. Thus, double jeopardy did not prohibit the trial judge from

destroying that verdict, replacing a juror, and instructing the jury to deliberate anew. 

The R & R concluded that the Commissioner’s decision was reasonable, and this Court adopts

the R & R’s analysis of the issue. In his objections to the R & R, Durall argues that his situation

creates a case of first impression in the field of double jeopardy. But this argument, if anything, merely

reinforces this Court’s conclusion that Durall may not achieve habeas relief on this claim. Durall bears

the burden of showing that the state court’s decision was, inter alia, an unreasonable application of

clearly established Supreme Court precedent. See 28 U.S.C. § 2254(d). If there is no Supreme Court

case law that clearly applies to Durall’s situation, then Durall cannot meet the § 2254 standard for

habeas relief.

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ORDER - 10

I. Durall’s 560-month exceptional sentence did not violate his Sixth Amendment right to

have a jury determine all the facts that increase punishment above the prescribed range.

The last reasoned decision of the state courts analyzing this claim was the Commissioner’s

decision, although Durall framed this claim as a Blakely violation before the Commissioner and as an

Apprendi violation before this Court. See Blakely v. Washington, 542 U.S. 296 (2004); Apprendi v.

New Jersey, 530 U.S. 220 (2000). 

This Court adopts the R & R’s conclusion that “Petitioner’s argument is essentially an

argument that Blakely should be applied retroactively to his case.” And, Blakely does not apply

retroactively to convictions that were final before Blakely itself was announced. Schardt v. Payne, 414

F.3d 1025, 1038 (9th Cir. 2005). 

In his objections to the R & R, Durall argues that Blakely should apply retroactively to his case

because Blakely was pending before the Supreme Court during direct review of his conviction, and

because he raised what were essentially Blakely arguments to the state courts at that time. But this

argument does not change the simple fact that Durall’s conviction became final some four months

before the Supreme Court decided Blakely. Had Blakely been decided just four months earlier, Durall

would have had the benefit of its holding. But this timing does not mean that he is exempt from the

general rule that Blakely does not apply retroactively in habeas proceedings.

J. Durall has procedurally defaulted on his argument that the judge violated his due

process rights under McMillan v. Pennsylvania, 477 U.S. 79 (1986) by failing to apply a

clear and convincing evidence standard to facts that enhanced Dural’s sentence.

This Court adopts the R & R’s conclusion that Durall has procedurally defaulted on this

McMillan claim by not properly raising it in the state courts within the state statute of limitations.

K. Durall is not entitled to an evidentiary hearing on any of the above-captioned claims.

In his objections to the R & R, Durall points out the R & R did not address whether this Court

should conduct an evidentiary hearing on any of his claims. This Court concludes that no evidentiary

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ORDER - 11

hearing is warranted. The vast majority of Durall’s claims involve “issues that can be resolved by

reference to the state court record,” and thus there is no need for a hearing on these issues. Totten v.

Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). The only issue that might conceivably be clarified by an

evidentiary hearing is whether Durall’s counsel falsely told Durall about a plea agreement, or whether

the Government in fact did offer a plea agreement in exchange for Durall leading police to Carolyn’s

body. However, Durall failed to develop a factual basis for this claim in state court, and so this Court

may not hold an evidentiary hearing on the subject. See 28 U.S.C. § 2254(e)(2); Baja v. Ducharme,

187 F.3d 1075, 1078-79 (9th Cir. 1999). 

Conclusion

None of Durall’s claims of error afford a basis for Federal habeas corpus relief. Accordingly,

this Court ADOPTS the Magistrate Judge’s R & R and DENIES Durall’s petition for a writ of habeas

corpus. 

 

The Clerk is directed to send copies of this order to all counsel of record. 

Dated: May 29, 2007.

 /s Marsha J. Pechman 

Marsha J. Pechman

United States District Judge

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