Robert Patrick Powell v. James Spalding & Slade Gorton

The panel has unanimously agreed that this case may be submitted without oral argument. See Fed.R.App.P. 34(a).

Robert Patrick Powell, a Washington state prisoner, appeals the denial of his petition for a writ of habeas corpus. He contends that the state trial court erred in allowing the jury to separate overnight without his personal knowledge or consent and that he was denied his sixth amendment right to the effective assistance of counsel. We reject both contentions. We do not reach the issue whether the trial court improperly communicated with the jury while Powell was not present because we conclude that the district court properly refused to allow Powell to amend his petition to include that issue. Accordingly, we affirm the denial of the writ of habeas corpus.

I

Background

Powell was tried in Washington state court and convicted by a jury of murder. His conviction was affirmed on appeal. The Washington appellate courts denied two postconviction personal restraint petitions before Powell filed his petition in federal court for a writ of habeas corpus.

Powell contended in his original federal habeas petition that: (1) the trial court improperly allowed the jury to…