McField v. White

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA JEROME JOSEPH McFIELD, CASE NO. 21-5250 RJB-SKV Petitioner, ORDER ADOPTING REPORT AND 12 v. RECOMMENDATION 13 DANIEL W. WHITE, 14 Respondent.

16 This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge S. Kate Vaughan. Dkt. 11. The Court has considered the Report and Recommendation, the Petitioner’s Objections, and the remaining record.

19 In this petition, brought under 28 U.S.C. § 2254, the Petitioner challenges his 2018 judgment and sentence based on his guilty plea. Dkt. 1. He raises two grounds for relief: ineffective assistance of counsel and voluntariness of his plea. Id. On August 24, 2021, the Report and Recommendation was filed, recommending that the petition be denied and a certificate of appealability be denied. Dkt. 11. The facts and procedural background are in the Report and Recommendation (Dkt. 11) and are adopted here.

3 In his objections, Petitioner argues that the Report and Recommendation erred in concluding that trial counsel’s performance was sufficient in advising the Petitioner to take the plea because trial counsel failed to obtain all discovery (in particular over 250 photographs of the scene) and share them with the Petitioner. Dkt. 12. Accordingly, the Petitioner reasons, he could not have knowingly entered a plea of guilt. Id. 8 The Report and Recommendation (Dkt. 11) should be adopted and the petition dismissed.

9 As stated in the Report and Recommendation, the state courts properly analyzed counsel’s performance under Strickland v. Washington, 466 U.S. 668 (1984). The Petitioner failed to demonstrate deficient performance in relation to acquiring the scene photographs or other discovery and sharing them with Petitioner. Further, Petitioner failed to show prejudice. He did not demonstrate that “but for” counsel’s errors – that Petitioner’s direct review of all evidence including the photographs – would have changed his decision to plead guilty and that he would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985). As recommended in the Report and Recommendation, the state courts reasonably rejected Petitioner’s challenge to the voluntariness of his guilty plea.

18 Further, the Report and Recommendation’s recommendation that the certificate of appealability be denied should also be adopted. The district court should grant an application for a certificate of appealability only if the petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). To obtain a certificate of appealability under 28 22 U.S.C. § 2253(c), a habeas petitioner must make a showing that reasonable jurists could disagree with the district court’s resolution of his or her constitutional claims or that jurists could agree the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483–485 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

4 Petitioner’s objections do not provide a basis to reject the Report and Recommendation’s recommendation that a certificate of appealability be denied. Petitioner has failed to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253 (c)(3). He did not show that “reasonable jurists could disagree” with the resolution of his claims or that jurists of reason could agree that the issues presented were adequate to deserve encouragement to proceed further. Slack, at 483-485. The Report and Recommendation should be adopted, and a Certificate of Appealability should be denied.

11 ORDER 12 It is ORDERED that: 13  The Report and Recommendation (Dkt. 11) IS ADOPTED; 14  The petition IS DENIED; 15  The Certificate of Appealability IS DENIED; and 16  This case IS DISMISSED.

17 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address.

19 Dated this 6th day of October, 2021.

20 A 22 ROBERT J. BRYAN United States District Judge