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Anderson v. Glebe

United States District Court, W.D. Washington, Tacoma

April 9, 2014

TOBY KEVIN ANDERSON, Petitioner,
v.
PATRICK GLEBE, Respondent.

REPORT AND RECOMMENDATION

KAREN L. STROMBOM, Magistrate Judge.

Petitioner Toby Kevin Anderson seeks 28 U.S.C. § 2254 habeas relief from his 2009 conviction by jury verdict of first-degree robbery while armed with a firearm, first-degree criminal impersonation, and second-degree prowling. The jury returned a special verdict for the use of a firearm in the robbery and with an offender score of 10, the court sentenced him to a total of 210 months of confinement. Mr. Anderson raises four grounds for relief, including insufficient evidence of accomplice liability, ineffective assistance of counsel, erroneous jury instruction, and failure of judge to recuse. Dkt. 7, pp. 8, 20, 28, and 36. Respondent argues that Mr. Anderson failed to properly exhaust parts of his first claim and his third claim, and that the remaining claims should be denied on the merits.

The undersigned recommends DISMISSING subparts a and b of Claim 1 and Claim 3 (in its entirety) for failure to properly exhaust, and DENYING the remainder of the habeas petition on the merits as Mr. Anderson has failed to demonstrate that the state court adjudication of his claims was contrary to, or an unreasonable application of, established federal law, or was an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1)-(2). The undersigned also recommends DENYING the issuance of a certificate of appealability.

BACKGROUND

A. Facts

Mr. Anderson was tried together with four co-defendants, Contreras, Winter, Baxter and Woods. The Washington Court of Appeals summarized the facts:

At trial, witnesses testified as follows: On the morning of November 18, 2008, Cary Swofford awoke to see several men surrounding her trailer. One man approached her door and said he wanted to talk about his mother. She did not know him and had no idea what he was talking about. She refused to open the door because "he looked like a gangbanger." 3 Report of Proceedings (RP) at 348.
Russell Molnar, who had been sleeping on Swofford's sofa, testified that she woke him up and was in a very excited state. He saw people running around the side of the trailer and cars parked in front. The man at the door reiterated that he wanted to come in and talk about his mother. Molnar refused to open the door. At that point, the men became "aggressive." RP (Feb. 3, 2009) at 255. Molnar said they were "ranting and raving, " and two of them got into one of the cars, a Ford Explorer. 2 RP at 225.
Molnar decided to go outside because "they didn't need to be in there." 2 RP at 245. But as he began unfastening the door locks, the man outside tried to open the door. Swofford relocked the door and told Molnar not to go outside. She was scared because of the way the men were behaving.
Swofford and Molnar could see some of what was happening from a security camera video Swofford had installed because of problems with her neighbors. But they could not see everything due to the poor video quality, which caused activity beyond 25 feet to appear blurry. Molnar testified that he saw one of the men pull something out of the car. From the camera, it "looked like a gun, a rifle." 2 RP at 228. And "It looked like they cocked the gun and it looked like they were going to shoot at the door." 2 RP at 234. Although Swofford said she did not personally see a gun, she was frightened because she thought one of the men might have a gun based on the way he was standing. Molnar testified he was scared and called 911, but the men left before the police arrived. Swofford said they jumped into a small blue car and drove away. After the men left, Swofford discovered they had taken the Explorer's stereo and compact disc player.
While in route to the scene, Thurston County Sheriff's Deputy Cameron Simper saw a blue Datsun, full of passengers, driving in the opposite direction. He made a u-turn, stopped the car, and noted five men crammed inside. He identified Contreras as the driver, Woods as the front seat passenger, and Baxter, Anderson, and Winter in the back seat. He saw a car stereo and compact disc player on the front passenger floorboard. At that point, he did not see a gun in the car. But when he searched the area later that morning, he found a sawed-off, 12gauge shotgun lying in a ditch. Deputy Simper testified that Woods told him he threw the gun out the window after someone in the back seat passed it to him and told him to get rid of it. During trial, the court admitted the gun as State's exhibit 25. While Molnar did not believe it was the gun he saw from the security camera, he acknowledged he had not seen the gun up close, and he was sure he saw a gun.
Thurston County Sheriff's Deputy Kyle Kempke testified that Woods appeared nervous when he recovered the gun. Deputy Kempke drove Swofford and Molnar the scene of the roadway stop for a show-up identification. He said they both identified Woods as the person who held the gun and they also recognized Winter and Contreras.
The State charged all five defendants with first degree robbery, attempted first degree burglary, first degree unlawful possession of a firearm, and second degree vehicle prowling. Additionally, the State alleged that the defendants, as either principals or accomplices, were armed with a firearm while committing the robbery and burglary. In a consolidated trial, the jury convicted all the defendants of first degree robbery and second degree vehicle prowling and returned a special verdict finding they were all armed with a firearm. The jury also found Woods guilty of unlawful firearm possession. The defendants appeal.

Dkt. 15, Exhibit 2, at 2-4.

B. State Court Procedural History

Though counsel, Mr. Anderson appealed his conviction. Dkt. 16, Exhibit 3. Mr. Anderson also filed a pro-se statement of additional grounds. Id., Exhibit 5. The Washington Court of Appeals affirmed Mr. Anderson's judgment and sentence. Id., Exhibit 2. Mr. Anderson petitioned for review. Dkt. 15, Exhibit 6, at 1-2. The Washington Supreme Court denied review. Id., Exhibit 7.

In 2011, Mr. Anderson filed a personal restraint petition directly in the Washington Supreme Court (which was transferred to the Washington Court of Appeals). Dkt. 16, Exhibit 8, at 2-4. The Washington Court of Appeals dismissed the consolidated petitions of Mr. Anderson, Mr. Contreras and Mr. Winter. Id., Exhibit 11. Mr. Anderson moved for discretionary review. Id., Exhibit 12, at 1-2. The Washington Supreme Court denied review. Id., Exhibit 13. Mr. Anderson moved to modify. Id., Exhibit 14. The motion was denied. Id., Exhibit 15.

STANDARD OF REVIEW

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), a habeas corpus petition may be granted with respect to any claim adjudicated on the merits in state court only if the state court's decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court, or if the decision was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d).

Under the "contrary to" clause, a federal habeas court may grant the writ only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. See Williams v. Taylor, 529 U.S. 362 (2000). Under the "unreasonable application" clause, a federal habeas court may grant the writ only if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. A state court's decision may be overturned only if the application is "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 69 (2003). AEDPA requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). In addition, review of state court decisions under 28 U.S.C. § 2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 131 S.Ct. 1388');"> 131 S.Ct. 1388, 1398 (2011).

EVIDENTIARY HEARING

The decision to hold a hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Landrigan, 550 U.S. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388');"> 131 S.Ct. 1388 (2011). A hearing is not required if the allegations would not entitle petitioner to relief under 28 U.S.C. § 2254(d). Landrigan, 550 U.S. at 474. "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id.; see also Cullen, 131 S.Ct. 1388');"> 131 S.Ct. 1388 (2011). The Court finds it unnecessary to hold an evidentiary hearing because Mr. Anderson's claims may be resolved on the existing state court record.

DISCUSSION

A. Exhaustion of State Remedies

Respondent concedes that Mr. Anderson fairly presented and exhausted subpart c of Claim 1, Claim 2, and Claim 4. Dkt. 15, p. 10. Respondent argues however, that Mr. Anderson failed to exhaust subparts a and b of Claim 1 and Claim 3 in its entirety because he failed to properly raise the claims at every level of the state courts' review. The Court agrees that subparts a and b of Claim 1 and Claim 3 are not properly exhausted.

To present a claim to a federal court for review in a habeas corpus petition, a petitioner must first have presented that claim to the state court. See 28 U.S.C. § 2254(b)(1). Claims for relief that have not been exhausted in state court are not cognizable in a federal habeas corpus petition. James v. Borg, 24 F.3d 20, 24 (9th Cir. 1994). A petitioner must properly raise a habeas claim at every level of the state courts' review. See Ortberg v. Moody, 961 F.2d 135, 138 (9th Cir. 1992). "[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also Rose v. Lundy, 455 U.S. 509, 518-19 (1982).

"Submitting a new claim to the state's highest court in a procedural context in which its merits will not be considered absent special circumstances does not constitute fair presentation." Roettgen v. Copeland, 33 F.3d 36, 38 (9th Cir. 1994) (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)). Consequently, presentation of a federal claim for the first time to a state's highest court on discretionary review does not satisfy the exhaustion requirement. Castille, 489 U.S. at 351; Casey v. Moore, 386 F.3d 896, 915-18 (9th Cir. 2004). But see Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991) ("If the last state court to be presented with a particular federal claim reaches the merits, it removes any bar to federal-court review that might otherwise have been available").

"Fair presentation" requires that the prisoner alert the state courts to the fact that he is asserting claims under the United States Constitution. Duncan v. Henry, 513 U.S. 364, 365 (1995). The prisoner must specifically characterize his claims as federal claims, either by referencing specific constitutional provisions or by citing to relevant federal case law. Lyons v. Crawford, 232 F.3d 666, 670 (9th Cir. 2000), opinion amended, 247 F.3d 904 (9th Cir. 2001). The prisoner also "must describe in the state court proceedings both the operative facts and the federal legal theory on which his claim is based." Anderson v. Harless, 459 U.S. 4, 6 (1982). General appeals to broad constitutional principles such as due process, equal protection, or the right to a fair trial are not ...


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