Personal Restraint Petition Of Jaarso Ahmed Abdi ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal ) No. 80370-1-I
Restraint Petition of )
)
)
) ORDER DENYING MOTION
JAARSO AHMED ABDI, ) FOR RECONSIDERATION,
) WITHDRAWING &
Petitioner. ) SUBSTITUTING OPINION
)
Petitioner filed a motion for reconsideration of the court’s September 21, 2020
opinion. Respondent filed an answer at the court’s request. The court has considered
the motion and determined that reconsideration should be denied but that the opinion
filed on September 21, 2020 should be withdrawn and an unpublished substitute
opinion filed. Now, therefore, it is hereby
ORDERED that petitioner’s motion for reconsideration is denied. It is further
ORDERED that the opinion of this court filed September 21, 2020 is withdrawn
and an unpublished substitute opinion be filed.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Personal ) No. 80370-1-I
Restraint of )
)
)
JAARSO AHMED ABDI, ) UNPUBLISHED OPINION
)
Petitioner. )
)
VERELLEN, J. — In his personal restraint petition, Jaarso Abdi asserts his
counsel was ineffective at trial for failing to timely recognize that discovery from the
prosecutor included exculpatory statements by one victim to police and for failing to
present and properly argue that evidence at trial. But his counsel discovered the
exculpatory statements before trial, and the victim minimized the role of Abdi in her
trial testimony. Whether to cross-examine the victim about the statements or seek to
introduce them through another witness was a legitimate tactical decision. Abdi also
does not establish his counsel’s approach in opening statement or closing argument
was prejudicial.
Abdi contends his attorney was ineffective at sentencing for failing to
investigate, present, and argue mitigating circumstances of his youth. Abdi was 23
years old at the time of the charged conduct, and he had a traumatic and violent
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childhood. But he does not establish he was prejudiced by his counsel’s approach to
sentencing.
Because he does not establish ineffective assistance of counsel, we deny his
personal restraint petition.
FACTS
Jaarso Abdi was convicted of attempted first degree robbery and first degree
unlawful possession of a firearm in March 2015. This court affirmed his judgment
and sentence on direct appeal. Abdi timely filed his personal restraint petition after
the mandate issued.
The basic facts leading to Abdi’s convictions are set out in his direct appeal.
Mohamed Ali, his wife, Halimo Dalmar, and their seven children were at home. Abdi
and two other men, Said and Forbes, knocked on the door and loudly demanded
money. The family refused to open the door. The three men went to a nearby car,
removed weapons from the trunk, and returned to the family’s apartment. They again
banged on the door while demanding money. When the family did not open the door,
the three men went around the house and attacked a nearby neighbor.
Dalmar, thinking the coast was clear, left the apartment to drive her son
Mustafe to work. When Dalmar and Mustafe were in the car, the men approached
and again demanded money. Forbes pointed a gun at the window of the family
home where the children were. A neighbor saw a man holding a gun and called 911.
Seattle police arrived in minutes. They saw the three suspects matching the
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descriptions given on the 911 call. The suspects fled. Abdi and Said were quickly
caught and taken into custody. Forbes escaped.
Witnesses saw the men toss something into a bin, where the police later
retrieved two guns. Ali and Dalmar both identified Abdi and Said in separate lineups
and explained their roles in the crimes. They also identified the three men in court as
the attackers.
The jury convicted Abdi and Said of first degree attempted robbery against
Dalmar and first degree unlawful possession of a firearm. The jury acquitted Said of
the second count of first degree attempted robbery against Ali but could not reach a
decision as to Abdi on that count.
The court sentenced Abdi to a standard range sentence of 152 months in
prison.
ANALYSIS
A petitioner alleging constitutional error in their personal restraint petition
bears the “threshold, prima facie burden of showing by a preponderance of the
evidence that [they were] actually and substantially prejudiced by the alleged error.”1
The petitioner must show that the outcome of their trial “would more likely than not
have been different had the alleged error not occurred.”2
1 In re Pers. Restraint of Meippen, 193 Wn.2d 310, 315, 440 P.3d 978 (2019).
2 Id. at 316.
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A defendant has a constitutional right to effective assistance of counsel.3 Our
analysis of a claim of ineffective assistance of counsel begins with a strong
presumption that counsel was effective.4 The claimant bears the burden of
demonstrating that counsel’s assistance was ineffective.5 The claimant must show
that counsel’s conduct fell below a professional standard of reasonableness and that
but for counsel’s unprofessional conduct, there is a reasonable probability the
outcome at trial would have been different.6 If either of these prongs is not met, the
claim fails.7
A legitimate tactical decision cannot be the basis of an ineffective assistance
claim.8 “It is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable.”9 Therefore, we make every effort to
“eliminate the distorting effects of hindsight” and evaluate counsel’s performance
from counsel’s perspective at the time.10
3
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
4 Strickland, 466 U.S. at 690; McFarland, 127 Wn.2d at 335.
5 McFarland, 127 Wn.2d at 337.
6 State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011) (quoting
Strickland, 466 U.S. at 687).
7 State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (1990).
8 State v. Alvarado, 89 Wn. App. 543, 548, 949 P.2d 831 (1998).
9 Strickland, 466 U.S. at 689.
10 Id.4
No. 80370-1-I/5
Prejudice is not established merely by showing that an error by counsel had
some conceivable effect on the outcome of the proceeding.11 The party claiming
ineffective assistance must show a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.12
Failure to Present Exculpatory Evidence
In an October 2014 pretrial defense motion, counsel for Abdi asserted she had
not been provided discovery of a police report recounting that Dalmar disclosed to
Abdi and Said’s parents that they “had done nothing to her,” and that Forbes was
“the only one that had a gun.”13 When the detective asked Dalmar why she had
changed her story, she responded that she hadn’t changed her story and had always
maintained that Forbes “was the only one that did anything to her and the only one
that had a gun.”14
After comparing notes with the prosecutor during a recess of the November
19, 2014 hearing, counsel for Abdi acknowledged she had been provided that portion
of the police report in February of 2014.
In her opening statement on December 10, 2014, Abdi’s counsel told the jury,
“[Y]ou’re going to hear from Ms. Halimo Dalmar that she tells the detectives and
11 Id. at 693.
12 Id. at 694.
13 PRP, Ex. D at 25.
14 Id.5
No. 80370-1-I/6
officers in this case in an interview that Mr. Abdi absolutely did nothing to her
whatsoever. She’s going to tell you that herself.”15
During her direct examination at trial, Dalmar emphasized Forbes’s actions.
She testified Forbes was one of two men knocking and kicking at the door and
demanding money, Forbes was the only one she saw with a gun, and he pointed that
gun at her house. She minimized the roles of Abdi and Said. Abdi was with Forbes
on the porch. Said and Abdi were with Forbes at the car. She noted that Said “only
came towards the side of my [car] window, he did not even use his hands, and he
ha[s] not done anything to me.”16 “He came to my car, but he did not physically take
anything from me. None of these guys took anything from me. . . . [T]hey were all
talking. I cannot identify which one was saying what. They were saying, ‘Give me
money. Give me money.’”17
On cross-examination, Abdi’s counsel did not ask any questions of Dalmar
about her statements to detectives.
In closing argument, Abdi’s counsel focused on accomplice liability and Abdi’s
limited role. She noted, “[W]hat you heard from the evidence is that Mr. Abdi did not
have a gun, that he did not threaten anybody,”18 and “what [Dalmar] said is that Mr.
15 Report of Proceedings (RP) (Dec. 10, 2014) at 1349.
16 RP (Dec. 18, 2014) at 2264.
17 Id. at 2265.
18 RP (Jan. 12, 2015) at 2920.
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Abdi did absolutely nothing to her. She said that one person had a gun, and that was
Mr. Forbes.”19 Later in her argument, she added:
[W]hat was clear is that Mr. Abdi did not have a gun at any time. . . .
[The daughter] testified, and I asked her “Was Mr. Abdi holding a gun?,”
her answer was unequivocally no, he was not. . . . [W]hen I asked
[Dalmar] did Mr. Abdi have a gun, she said, “I did not see Mr. Abdi
either with or near a visible gun.” That was her testimony.
Unequivocally did not have a gun. In fact, she said he didn’t do
anything.[20]
Defense counsel should be aware of the contents of discovery provided by the
State, but Abdi does not establish the timing of counsel’s realization was of any
significance. Days before jury selection and opening statements, Abdi’s attorney was
aware of the police report with Dalmar’s statements that neither Abdi nor Said had
done anything to her and that Forbes was the only one with a gun. The essence of
Abdi’s claim is counsel was ineffective for failing to present exculpatory evidence
either on cross-examination of Dalmar or through another witness.
What direction to take how hard to push on cross-examination are squarely
strategic trial decisions:
Courts generally entrust cross-examination techniques, like other
matters of trial strategy, to the professional discretion of counsel. In
assessing Petitioner's claim that his counsel did not effectively cross-
examine a witness, we need not determine why trial counsel did not
cross examine if that approach falls within the range of reasonable
representation. “In retrospect we might speculate as to whether
another attorney could have more efficiently attacked the credibility
of . . . witnesses. . . . The extent of cross-examination is something a
19 Id. at 2922.
20 Id. at 2937.
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lawyer must decide quickly and in the heat of the conflict. This . . . is a
matter of judgment and strategy.”[21]
And in order to establish prejudice from deficient cross-examination, the petitioner
must show a reasonable probability the testimony to be elicited would have overcome
the evidence against him.22
Dalmar’s statements to the detectives did not stand in stark contrast to her trial
testimony. It was a matter of judgment and strategy whether to attempt to impeach
by means of the limited differences between her direct testimony and her statement
to the detectives. And further inquiry on cross-examination could have allowed the
prosecutor on redirect to explore whether Dalmar’s version of “not doing anything” to
her was limited to not physically touching her or actually taking property from her.
And Abdi does not establish that admitting Dalmar’s statements to the
detectives probably would have overcome the weight of the evidence against him as
multiple witnesses described his role in the attempted robbery, including his
possession of a gun.23
Counsel’s misstatement in closing about Dalmar’s testimony is troubling and
could have undercut her credibility with the jury, but it is clear that the focus of her
21 In re Pers. Restraint of Davis, 152 Wn.2d 647, 720, 101 P.3d 1 (2004)
(alterations in original) (quoting State v. Stockman, 70 Wn.2d 941, 945, 425 P.2d 898(1967)).
22 Id.23In the direct appeal, this court determined that sufficient evidence supported
his conviction for possession of a firearm. State v. Abdi, No. 73263-3-I, slip op. at 6,
(Wash. Ct. App. July 31, 2017) (unpublished) http://www.courts.wa.gov/opinions/
pdf/732633.pdf.
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No. 80370-1-I/9
argument was to emphasize the evidence that Abdi did not possess or use a gun in
the context of accomplice liability. Even if deficient, Abdi does not establish a
reasonable probability that a different tack in the opening statement or closing
argument would have made a difference in the outcome of the trial.
Abdi does not establish ineffective assistance at trial.24
Failure to Present Mitigating Factor of Abdi’s Youth
Abdi contends his counsel was ineffective at sentencing for failing to present
evidence and advocate for a mitigated sentence based on Abdi’s youth. Specifically,
he argues he was 23 years of age at the time of the underlying crimes and scientific
evidence supports that frontal lobe development continues into the mid-20s. Abdi
also relies on his violent and traumatic experiences as an ethnic minority and
refugee. He contends development of his brain architecture was disrupted by his
migration to new countries and his childhood was filled with fear, violence, poverty,
and hunger. His trial counsel acknowledges in her declaration that it did not occur to
her to investigate or advocate for mitigation based on youthfulness.
But prejudice for ineffective assistance for failure to present a potential
mitigating factor at sentencing requires a showing that the trial court would have been
24 The four federal cases cited by Abdi regarding the failure to present
exculpatory evidence are not persuasive. Anderson v. Butler, 858 F.2d 16 (1st Cir.
1988), Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002), Lord v. Wood, 184 F.3d 1083(9th Cir. 1999), and Hart v. Gomez, 174 F.3d 1067 (9th Cir. 1999) all involved facts
where the exculpatory evidence was compelling, as opposed to the limited exculpatory
statements here.
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inclined to accept such a factor.25 Abdi contends the sentencing court’s comments
about youthfulness revealed the court would have been receptive to this mitigating
factor. The court was aware of Abdi’s age at the time of the crimes and his immigrant
background, noting, “I also know that young men do stupid things and they grow up,
and fortunately, they grow out of them. And their brains are immature at this age,
but—and I’m a true believer in second chances and sometimes even third
chances.”26
But the court concluded Abdi had already been given multiple chances. His
criminal history included seven adult felonies and two juvenile matters. The court
was troubled by Abdi’s prior convictions and his “absolute disregard for your fellow
human being[s] and vulnerable people.”27 The court imposed the high end of the
standard range, acknowledging that the only thing the sentence would do is protect
the public for a period of time. The court acknowledged the science underlying
concerns with youthfulness and brain maturity and still chose a high end sentence
based on Abdi’s troubling history of disregard for others. The record reveals the
court was not inclined to mitigate Abdi’s sentence on the basis of youthfulness.
Abdi does not establish ineffective assistance of counsel at sentencing.
25 See State v. Knight, 176 Wn. App. 936, 958, 309 P.3d 776 (2013) (where
there is no indication the trial court would have considered or imposed even a low end
standard sentence, let alone an exceptional sentence downward, the defendant fails to
establish he was prejudiced by counsel’s failure to inform the court of the possibility of
an exceptional sentence downward).
26 RP (Mar. 18, 2015) at 3108.
27 Id.10
No. 80370-1-I/11
Impact of Recent Supreme Court Decisions
Abdi argues that the recent decisions In re Personal Restraint of Domingo-
Cornelio,28 and In re Personal Restraint of Ali29 reveal that prejudice for purposes of a
personal restraint petition related to consideration of youthfulness “simply requires
some showing of willingness to consider the missed arguments or evidence
pertaining to youth.”30 He concludes, “Domingo-Cornelio makes clear that, where
evidence and argument [of youthfulness] were lacking below, reviewing courts need
not be concerned with whether the sentencing court signaled a willingness to impose
a reduced sentence.”31
But Abdi’s arguments regarding prejudice are not compelling here. The
portions of Domingo-Cornelio and Ali regarding prejudice are both in the context of
whether our Supreme Court’s decision in State v. Houston-Sconiers32 represented a
significant change in the law in the sentencing of minors and whether the change
was material to the defendant's sentence. Under Houston-Sconiers, the court is
required by the Eighth Amendment to the United States Constitution to consider the
mitigating circumstances of youth when sentencing juveniles adjudicated as adults
28No. 97205-2, slip op. (Wash. Sept. 17, 2020), http://www.courts.wa.gov/
opinions/pdf/972052.pdf.
29No. 95578-6, slip op. (Wash. Sept. 17, 2020), http://www.courts.wa.gov/
opinions/pdf/955786.pdf.
30 Petitioner’s Motion for Reconsideration at 4.
31 Id. at 5.
32 188 Wn.2d 1, 391 P.3d 409 (2017).
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and must have absolute discretion to impose anything less than a standard adult
sentence based on that youth.33
In Domingo-Cornelio, the defendant committed several crimes between the
ages of 15 and 17 but, because of delayed reporting, was not sentenced until he was
20 years old.34 The sentencing court did not indicate on the record whether it had
considered the defendant's youth at the time he committed his crimes but imposed a
standard range adult sentence.35 Regarding prejudice, the court held “a petitioner
establishes actual and substantial prejudice when a sentencing court fails to consider
mitigating factors relating to the youthfulness of a juvenile tried as an adult and/or
does not appreciate its discretion to impose any exceptional sentence in light of that
consideration.”36 In Ali, the defendant committed a series of robberies when he was
16. He was charged and tried in adult court. Our Supreme Court noted the
applicability of Houston-Sconiers to a juvenile tried as an adult and recognized “Ali
has demonstrated actual and substantial prejudice. His sentencing judge was
presented with, and considered, testimony and evidence regarding the mitigating
factors of Ali’s youthfulness, but she found that she lacked the discretion to impose
an exceptional sentence downward based on those mitigating factors.”37
33 Id. at 19, 21.
34 Domingo-Cornelio, slip op. at 2.
35 Id. at 3-4.
36 Id. at 12 (emphasis added).
37 Ali, No. 95578-6, slip op. at 25.
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Unlike Domingo-Cornelio and Ali, Abdi was not a juvenile tried as an adult. He
was 23 when the crimes were committed. The discussion of prejudice in Domingo-
Cornelio and Ali in the context of Houston-Sconiers has no application here.
Abdi suggests that the court’s general openness to the circumstances of youth
at his sentencing was an adequate showing of prejudice. But in order to satisfy the
prejudice prong of ineffective assistance, he was required to show a reasonable
probability that the outcome would have been different.38 In order to establish actual
and substantial prejudice for purposes of a personal restraint petition, he was
required to establish the outcome would more likely than not have been different.39
Abdi does not satisfy the prejudice requirements.
We deny Abdi’s petition.
WE CONCUR:
38 Grier, 171 Wn.2d at 32-33 (quoting Strickland, 466 U.S. at 687).
39 Meippen, 193 Wn.2d at 316.
13