United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATON
BRIAN A. TSUCHIDA, Magistrate Judge.
Pro se petitioner Saroun Phai seeks 28 U.S.C. § 2254 habeas relief from his jury-trial conviction for two counts of aggravated first-degree murder with a firearm and sentence of life imprisonment without possibility of parole. Dkt. 16. Mr. Phai raises four grounds for relief: (1) there was insufficient evidence to support a robbery aggravating circumstance; (2) the trial court failed to instruct the jury sufficiently that it must unanimously agree on the means of the "common scheme" or "single act" aggravating circumstance; (3) his judgment and sentence violates the Double Jeopardy Clause because it refers to vacated convictions for first-degree felony murder; and (4) Jury Instruction 23 concerning the firearm special verdict forms violated due process because it did not comply with Washington case law. Dkt. 16, at 6-11. The Court recommends DENYING Mr. Phai's § 2254 habeas petition and DISMISSING this matter because the state-court adjudication of these issues was not contrary to, or an unreasonable application of, established Supreme Court authority, and was not based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1)-(2). The Court also recommends DENYING issuance of a certificate of appealability.
According to the facts determined at trial, in July 2007 Mr. Phai and Areewa Saray planned to enter a house at which marijuana was being grown, shoot whomever they encountered, and steal money and marijuana. See State v. Phai, 2010 WL 3734059, at *1 (Wash. App. Sept. 27, 2010), also available at Dkt. 14 (State Court Record, hereinafter "SCR"), Exh. 13. On July 2, 2007, Mr. Phai and Mr. Saray entered a home, both of them shot and killed Linda Nguyen, then both shot and killed Ms. Nguyen's fiance Kevin Meas. Id. Mr. Phai and Mr. Saray did not, however, get away with money or marijuana because they were interrupted by the house's owner, who had arrived to collect back rent from the victims. Id. The house's owner saw Ms. Nguyen lying motionless on the ground before a gun was pointed at his head and the owner was told, "Go, go, go." Id. Mr. Phai and Mr. Saray then fled in their car. Id.
Mr. Phai was charged (separately from Mr. Saray) with two counts of aggravated firstdegree murder with a firearm and two counts of felony murder with a firearm. Id. at *3. Mr. Phai was also charged with two aggravating circumstances on the first-degree murder counts: (1) each killing was part of a "common scheme or plan, or the result of a single act" resulting in multiple victims, and (2) the killings were committed "in the course of, in furtherance of, or in immediate flight from Robbery in the First or Second degree." Id. A jury in Snohomish County Superior Court found Mr. Phai guilty of the four charged offenses and, by special verdict, found the firearm enhancements and the two aggravating circumstances. Id. At the State's request, the Court during sentencing dismissed the felony-murder charges and sentenced Mr. Phai to life without the possibility of parole. Id.
In September 2010, the Washington Court of Appeals affirmed Mr. Phai's conviction and sentence but remanded so the judgment and sentence could be corrected to omit any reference to the vacated counts of felony murder. Id. at *7-*8. In March 2011, the Washington Supreme Court denied without comment Mr. Phai's petition for review. SCR, Exh. 15. The mandate issued in June 2011. SCR, Exh. 16.
In March 2012, Mr. Phai filed a pro se personal restraint petition. SCR, Exh. 18. The Chief Judge of the Washington Court of Appeals dismissed the petition in a three-page order addressing the merits. SCR, Exh. 20. In July 2013, the Commissioner of the Washington Supreme Court denied discretionary review in a two-page ruling that agreed with the state appellate court's PRP determinations. SCR, Exh. 22.
Mr. Phai sent his federal habeas petition in June 2013. Dkt. 1. After respondent filed an answer, the Court ordered Mr. Phai to file a signature page for the petition and renoted the petition. Dkt. 14. Respondent concedes, and the Court agrees, that Mr. Phai exhausted all four of his federal habeas grounds in the state courts: grounds 1, 2, and 3 during his direct appeal and ground 4 during his PRP proceeding. Dkt. 11, at 7. The Court agrees with respondent that a vaguely alleged ground 5 need not be addressed-and the petition need not be stayed or dismissed as a mixed petition containing an unexhausted issue-because the purported ground does not satisfy even the rudimentary pleading requirements of Rule 2(c) of the Rules Governing Section 2254 Cases. See also 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
Mr. Phai has failed to demonstrate that the state-court adjudication of his habeas grounds was incorrect, let alone that it was contrary to, or an unreasonable application of, established Supreme Court authority, or was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1)-(2).
1. There Was Sufficient Evidence of the Robbery Aggravator (Ground 1)
Mr. Phai argues that there was insufficient evidence of the robbery aggravating circumstance that he murdered the victims "in the course of, in furtherance of, or in immediate flight from" a second-degree robbery because there was no evidence that he stole property or committed robbery. Dkt. 16, at 5; see RCW §§ 9A.56.190, 9A.56.210. On direct appeal, the state appellate court reasonably rejected Mr. Phai's argument regarding insufficiency of the evidence.
Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), evidence is sufficient to support a conviction if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Although federal courts look to state law for the substantive elements of the criminal offense, the minimum amount of evidence that the Due Process Clause requires to prove the offense is purely a matter of federal law. See Coleman v. Johnson, __ U.S. __, 132 S.Ct. 2060');"> 132 S.Ct. 2060, 2064 (2012) (per curiam); Jackson, 443 U.S. at 324 n. 16. It is exceedingly difficult for a petitioner to demonstrate insufficiency of the evidence on federal habeas review:
Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, "it is the responsibility of the jury-not the court-to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury's verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury." Cavazos v. Smith, 565 U.S. 1, ___, 132 S.Ct. 2, 4 (2011) (per curiam). And second, on habeas review, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The ...