United States District Court, W.D. Washington, Tacoma
BRIAN S. WINTER, Petitioner,
PATRICK GLEBE, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION AND REMANDING FOR FURTHER PROCEEDINGS
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 27), and Petitioner Brian Winter's ("Winter") objections to the R&R (Dkt. 28).
On June 5, 2014, Judge Strombom issued the R&R recommending that the Court deny Winter's petition for a writ of habeas corpus. Dkt. 27. On June 19, 2014, Winter filed objections. Dkt. 28.
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).
In this case, Winter first argues that his firearm enhancement was based on speculation and conjecture. Dkt. 28 at 1-3. While it is true that there was no evidence that the firearm allegedly used in the commission of the crime was repaired and was actually capable of firing a projectile, the testifying officer asserted that he could have repaired the firearm and made it capable of shooting a shell. The state court concluded that such evidence was sufficient to establish that the firearm was "operable at some point..., but not necessarily during the commission of the crime." Dkt. 27 at 7-8. The Court agrees with Judge Strombom that such a conclusion is not a decision that is contrary to, or involves an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, and is not a decision that is based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). Therefore, the Court adopts the R&R on this issue.
Winter also argues that there was insufficient evidence to support his conviction for first degree robbery. Dkt. 28 at 4-5. The Court, however, agrees with and adopts Judge Strombom's conclusion that there was no error of law or fact in the state court commissioner's ruling on this issue. Dkt. 27 at 16-17.
Finally, Winter argues that both the Government and Judge Strombom failed to address his double jeopardy claim. Dkt. 28 at 5. The Court agrees. Winter included the argument in his petition (Dkt. 6 at 40-44), and neither the Government's response nor the R&R addressed the whether the ground for relief was properly exhausted or whether the ground states a valid claim. Therefore, the Court remands the matter for the sole purpose of addressing Winter's argument.
The Court having considered the R&R, Winter's objections, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) The Court DECLINES to issue a Certificate of Appealability for the issues ...