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Gonzalez v. Holbrook

United States District Court, E.D. Washington

November 17, 2014

ARMANDO HERNANDEZ GONZALEZ, Petitioner,
v.
DON HOLBROOK, Respondent

Armondo Hernandez Gonzalez, Petitioner, Pro se, WALLA WALLA, WA.

For Don Holbrook, Respondent: Mandy Lynn Rose, LEAD ATTORNEY, Attorney General of Washington - Ecology Division, Olympia, WA.

REPORT AND RECOMMENDATION

JAMES P. HUTTON, UNITED STATES MAGISTRATE JUDGE.

BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody. ECF No. 6. Respondent answered. ECF No. 9. Petitioner (Gonzalez) appears pro se and Respondent is represented by Assistant Attorney General Mandy L. Rose. This matter was heard without oral argument. After review it is recommended that the Petition for Writ of Habeas Corpus be denied.

When he filed his petition Gonzalez was in custody at the Washington State Penitentiary (WSP) in Walla Walla, Washington, pursuant to 2010 Yakima County convictions for second degree murder, first degree assault and second degree unlawful possession of a firearm. Gonzalez, represented by counsel, was sentenced to a total of 518 months. ECF No. 10, Exhibit N. 1. His petition raises a single habeas claim. ECF No. 6 at ¶ 12. Respondent concedes Gonzalez " arguably exhausted his claim within the meaning of 28 U.S.C. § 2254(b)." ECF No. 9 at page 6. Because respondent does not advance further argument and it appears the claim was properly exhausted, the Court treats the claim as exhausted.

I. BACKGROUND

A. Factual History

The Washington Court of Appeals, Division Three, summarized the relevant facts:

" The facts in this case are not disputed. On November 10, 2008, Mr. Gonzalez shot and killed rival gang member Eric Vargas. He also shot and wounded Antonio Carrasco. The State charged Mr. Gonzalez with second degree murder, first degree assault, and second degree unlawful possession of a firearm. The case proceeded to trial.

In the middle of trial, one of the jurors indicated he might have an issue serving on the jury:

THE COURT: . . . I'm advised by the bailiff that you have expressed some concern about retaliation, is that right?

JUROR NUMBER 4: Well, just concerned for, you know, why my name is said out loud and, you know.

THE COURT: Well, let me --

JUROR NUMBER 4: Safety issues--

THE COURT: Yeah.

JUROR NUMBER 4: -- that kind of thing.

THE COURT: Let me just talk to you a little bit here.

JUROR NUMBER 4: Yeah.

THE COURT: Your name was said out loud because I address members of the jury that way, instead of juror number whenever I can.

No one has your address; no one has your telephone number. . . . So the only thing that's a matter of public record is your name.

This is a public proceeding; criminal trials are public proceedings. Anybody can come in and listen.

Another concern I'm advised is that you were concerned about who's in the gallery. The gallery consists primarily of members of the Vargas family, the deceased boy.

JUROR NUMBER 4: Uh-huh.

THE COURT: I'm advised that no one else has been here. . . . Does that help in any way with respect to your concerns?

JUROR NUMBER 4: To be honest, no.

THE COURT: Okay. You want--

JUROR NUMBER 4: What bothers me is--is, you know, not much-not necessarily what's happening here, but it could be anywhere. You know what I'm saying? I thought it was gonna be more anonymous than--

THE COURT: There's nothing--

JUROR NUMBER 4:-- it is.

THE COURT: --anonymous about a ...


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