United States District Court, W.D. Washington, Tacoma
April 28, 2014
TOBY KEVIN ANDERSON, Petitioner,
PATRICK GLEBE, Respondent.
ORDER ON REPORT AND RECOMMENDATION
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on the Report and Recommendation of U.S. Magistrate Judge Karen L. Strombom. Dkt. 21. The Court has considered the Report and Recommendation and the remaining record.
Petitioner seeks habeas relief under 28 U.S.C. § 2254 from his 210 month sentence after a 2009 conviction for first degree robbery while armed with a firearm, first degree criminal impersonation, and second degree prowling. Dkt. 1.
He raises the following grounds for relief:
1) Petitioner "was denied due process of law under the Fourteenth Amendment to the United States Constitution when he was convicted of robbery despite the fact that the State provided insufficient evidence to prove he acted as an accomplice to the crime."
a) It was "speculation that Petitioner got out of the defendants' vehicle while at the victims' residence;"
b) "Even with the aforesaid speculative testimony, the evidence was insufficient; there was evidence that someone "just stood there;"
c) "Even if the evidence was sufficient to establish that Petitioner acted as an accomplice to a crime, it was to theft not robbery."
2) Petitioner "was denied effective assistance of counsel under the Sixth and Fourteenth Amendment to the United States Constitution when his trial counsel failed to object to the admission of testimony about the images produced by a malfunctioning camera and monitor."
3) Petitioner "was denied due process of law under the Fourteenth Amendment to the United States Constitution when the trial court gave instruction No. 15, which allowed the jury to convict Petitioner as an accomplice to a different crime (theft) than the one he was charged with (robbery) and thereby relieved the state of the burden of proof."
4) Petitioner "was denied his right to a fair trial before a fair and impartial judge under the Sixth and Fourteenth Amendments to the United States Constitution when the trial judge, who is related to the victims, failed to recuse himself.
On April 9, 2014, the Report and Recommendation was filed, recommending that Claim One, subparts a and b, and Claim Three, in its entirety, be dismissed for failure to properly exhaust. Dkt. 21. It recommends denying the remainder of the habeas petition on the merits. Id. Lastly, the Report and Recommendation recommends denying the issuance of a certificate of appealability. Id.
The Report and Recommendation should be adopted for the reasons stated therein and the petition dismissed. Further, a certificate of appealability should not issue.
It is ORDERED that:
1) The Report and Recommendation (Dkt. 21) IS ADOPTED;
2) Subparts a and b of Claim 1 and Claim 3 of the habeas petition are DISMISSED for failure to exhaust; Subpart c of Claim 1, Claim 2, and Claim 4 are DENIED on the merits and DISMISSED WITH PREJUDICE;
3) The certificate of appealability is DENIED;
4) The Clerk is directed to send copies of this Order to Petitioner, counsel for Respondent and to the Hon. Karen L. Strombom.