Arndt v. Wofford

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA SHELLY MARGARET ARNDT, CASE NO. C20-5958 BHS Petitioner, ORDER ADOPTING REPORT 9 v. AND RECOMMENDATION DEBORAH JO WOFFORD, 11 Respondent.

13 This matter comes before the Court on the Report and Recommendation (“R&R”) of the Honorable J. Richard Creatura, United States Magistrate Judge, Dkt. 11, and Petitioner Shelly Arndt’s objections to the R&R, Dkt. 12.

16 Arndt brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her November 2015 conviction in Kitsap County Superior Court. Dkt. 3. In 2015, Arndt was convicted of two counts of murder, one count of first-degree arson, and six counts of second-degree assault. Dkt. 8-1 at 2–3. In October 2016, while her appeal was pending, Arndt moved for a mistrial after discovering that a juror (“Juror 2”) had committed misconduct by looking up the term “premeditation” on the internet during Arndt’s trial. Id. at 501. The superior court denied the motion, finding beyond a reasonable doubt that the misconduct could not have affected the verdict. Id. at 626.

3 Arndt appealed the superior court’s ruling, and the Washington State Court of Appeals affirmed the decision over a dissent. See State v. Arndt, 5 Wn. App. 2d 804 (2018), rev. denied 192 Wn.2d 1013 (2019). Arndt then filed a personal restraint petition in May 2019 in the State Court of Appeals, again challenging her conviction on the basis of Juror 2’s misconduct. Dkt. 8-1 at 830, 841. The State Court of Appeals dismissed the petition since it had already decided the issue on direct appeal, and the State Supreme Court denied review of the matter.

10 In October 2020, Arndt filed the instant petition for writ of habeas corpus. Dkt. 3.

11 On January 19, 2021, Judge Creatura issued the R&R, recommending Arndt’s petition be denied because Arndt failed to show harmful error. Arndt objected to the R&R’s conclusion, Dkt. 12, and Respondent Deborah Jo Wofford responded to the objections, Dkt. 13.

15 The district judge must determine de novo any part of the magistrate judge’s disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3).

19 Arndt objects to the R&R’s conclusion that Juror 2’s research was not harmful error and argues that she can show that Juror 2’s research had a substantial and injurious effect on the jury’s verdict. However, Arndt’s objections repeat the same arguments Judge Creatura considered in the R&R. Arndt argues that because it is unknown what websites Juror 2 reviewed in researching “premeditation,” Juror 2’s research had a substantial and injurious effect on the jury verdict. But Judge Creatura correctly concluded that Arndt’s speculation about what Juror 2 relied on does not meet the standard set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).

5 Arndt also argues that Juror 2 changed their vote as a result of the research; however, when “a juror reviews a definition that is substantially the same as the jury instructions, the juror misconduct does not merit habeas review.” Dkt. 11 at 5 (citing United States v. Steele, 785 F.2d 743, 745–49 (9th Cir. 1986); Mendoza v. Runnles, 251 9 F. App’x 406, 408 (9th Cir. 2007)). The R&R correctly concluded that the premeditation jury instructions included substantially the same information as Juror 2’s known research.

11 Finally, Arndt objects to the R&R’s recommendation that to not hold an evidentiary hearing and to not issue a certificate of appealability. The Court agrees with the R&R’s conclusion as Arndt’s petition can be resolved on the existing state court record and as the petition has not made a substantial showing of the denial of a constitutional right.

1 The Court having considered the R&R, Petitioner’s objections, and the remaining record, does hereby find and order as follows: 3 (1) The R&R is ADOPTED; 4 (2) Petition is DENIED; 5 (3) Certificate of Appealability is DENIED; and 6 (4) The Clerk shall enter a JUDGMENT and close the case.

7 Dated this 22nd day of March, 2021.

A BENJAMIN H. SETTLE United States District Judge