United States District Court, W.D. Washington
November 24, 2014
KYLE DERIN BARROW, Petitioner,
JOHN ALDANA, Respondent
Noted for: December 12, 2014.
Kyle Derin Barrow, Petitioner, Pro se, FORKS, WA.
For John Aldana, Superintendant, Olympic Corrections Center, Respondent: Ronda Denise Larson, ATTORNEY GENERAL'S OFFICE (40116- OLY), OLYMPIA, WA.
REPORT AND RECOMMENDATION
Karen L. Strombom, United States Magistrate Judge.
Petitioner, Kyle Derin Barrow, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a Pierce County first degree robbery conviction from 2011. Dkt. 7.
The undersigned has reviewed the file and finds that this petition is unexhausted but not procedurally barred. Accordingly the Court recommends dismissal without prejudice so that petitioner may attempt to exhaust his claims in state court.
Mr. Barrow did not raise any of his claims as federal claims at the state court level. Dkt. 12, Exhibits 4 and 6. Respondent argues that Mr. Barrow cannot return to state court to exhaust his claims as Washington's procedural rules will not allow him to renew issues he raised on direct appeal in a subsequent personal restraint petition. In re Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). The rule as it is set forth in Gentry has a number of exceptions. Id. Federal Courts do not apply procedural bars unless the state court specifically relied on a procedural bar or the rule is mandatory. Federal review of the merits of a claim is barred only if the state would now apply a mandatory rule of state procedure to preclude the petitioner from raising his claim in state court. Moreno v. Gonzalez, 116 F.3d 409, 411 (9th Cir. 1997); Johnson v. Lewis, 929 F.2d 460, 462-64 (9th Cir. 1991). If the state procedural bar is discretionary, the state will not necessarily apply the bar, and the claim is unexhausted. See Moreno, 116 F.3d at 411.
The Washington State Court of Appeals summarized the facts of Mr. Barrow's crime as follows:
On November 7, 2011, Kyle Derin Barrow entered a Walgreens store, placed an MP3 player on a checkout counter, and asked for two cartons of cigarettes. The clerk bagged the MP3 player, worth $60, and the cigarettes, worth $160, [footnote omitted] and asked Barrow for identification for the credit card he presented. Instead of presenting his identification, Barrow grabbed the bag and ran from the store. Running from the store, Barrow brushed past a customer who was leaving and knocked the partially-open sliding door off its hinges. Store employees followed Barrow out of the store and saw Barrow get into a waiting vehicle, which drove away.
Off-duty Washington State Trooper Kyle Burgess saw a truck leave the Walgreens parking lot at a high rate of speed with the employees chasing after it. Because he was in civilian clothes, Burgess called 911 from his cell phone and pursued the truck, driving his personal vehicle. The truck drove recklessly. A man leaned out of the front passenger side window and " very deliberately used a two-hand handgun hold and pointed what [Burgess] believed was a handgun at [Burgess]." 2 Verbatim Transcript of Proceedings (VTP) at 58. Burgess continued to follow the truck, but at a greater distance.
The truck stopped. Burgess stayed at the scene until Tacoma police arrived. Burgess identified Barrow as the man who had pointed the gun-like object at him from the fleeing truck.
The State charged Barrow with first degree robbery. The Walgreens' employees and Burgess testified as described above. Diana Young, the truck's driver and Barrow's girlfriend, testified that Barrow had grabbed his " shoe" and, acting like the shoe was a gun, pointed it out the truck's window at what they thought was an unmarked police car. 2 VTP at 69. Barrow presented no testimony contradicting Burgess's and Young's characterization of his having displayed the shoe in a gun-like fashion as he fled the scene with Burgess in pursuit. The trial court denied Barrow's request for a lesser included instruction on third degree theft ruling that the " evidence presented does not allow the jury to reach any conclusion that Mr. Barrow could have gotten the money [sic] without having utilized some type of force" and enumerating the various types of force that Barrow had used. 2 VTP at 110. The jury found Barrow guilty as charged.
Dkt. 12, Exhibit 3, pp. 1-2.
B. State Procedural History.
1. Direct appeal.
On direct appeal petitioner argued that he was entitled to a lesser included offense instruction and that the Superior Court erred in refusing to give that instruction. Dkt. 12, Exhibit 4. He also argued that the evidence supported only the lesser offense and not a first degree robbery conviction. Id. Petitioner failed to characterize these claims as federal claims as he did not cite to any constitutional provision or federal statute. Id. The Washington State Court of Appeals did not consider petitioner's claims as federal constitutional issues and discussed state cases and statutory construction in the decision affirming the conviction. Dkt. 12, Exhibit 3.
2. Discretionary review.
In his motion for discretionary review petitioner argued that he could not be convicted of robbery in the first degree under RCW 9A.56.200(1)(a)(ii) because the person that he pointed his shoe at was an innocent bystander and not an employee or person with any interest in the property. Mr. Barrow also noted that this person was not present during the robbery and he noted that the display of what appeared to be a weapon took place over half a mile from the scene of the robbery. Dkt. 12, Exhibit 6. Petitioner argued that the case was a case of first impression regarding Washington State's interpretation of the crime of robbery. Id. Petitioner did not raise any federal constitutional claims in this petition for review. Dkt. 12, Exhibit 6. Mr. Barrow has not filed a personal restraint petition regarding this case in State Court.
ISSUES FOR FEDERAL REVIEW
Mr. Barrow asserted the following grounds for relief in his federal habeas corpus petition:
1. There is insufficient evidence to support the first degree robbery conviction.
2. Barrow was entitled to a lesser included offense instruction on third degree theft.
Dkt. 7, pp. 5 and 8.
STANDARD OF REVIEW
Federal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension. Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984).
A federal court cannot grant a writ of habeas corpus to a state prisoner with respect to any claim adjudicated on the merits in state court unless the state court's adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was 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). State court decisions must be given the benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002).
A state court decision is " contrary to" the Supreme Court's " clearly established precedent if the state court applies a rule that contradicts the governing law set forth" in the Supreme Court's cases or if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and " nevertheless arrives at a result different from that precedent." Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams v.Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). " The 'unreasonable application' clause requires the state court decision to be more than incorrect or erroneous." Lockyer, 538 U.S. at 75. That is, " [t]he state court's application of clearly established law must be objectively unreasonable." Id.
Under 28 U.S.C. § 2254(d)(2), a federal petition for writ of habeas corpus also may be granted " if a material factual finding of the state court reflects 'an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" Juan H. v. Allen, 408 F.3d 1262, 1270 n.8 (9th Cir. 2005) (quoting 28 U.S.C. § 2254(d)(2)). However, " [a] determination of a factual issue made by a State court shall be presumed to be correct, " and the petitioner has " the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
A. Exhaustion of state remedies
Respondent argues that petitioner failed to properly exhaust any claim and that he is now procedurally barred from returning to state court to exhaust his claims. Dkt. 11, pp. 3-4.
A state prisoner seeking habeas corpus relief in federal court must exhaust available state relief prior to filing a petition in federal court. As a threshold issue the court must determine whether or not petitioner has properly presented the federal habeas claims to the state courts. 28 U.S.C. § 2254(b)(1) states, in pertinent part:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted unless it appears that:
(A) the applicant has exhausted the remedies available in the courts of the state; or
(B)(i) there is an absence of available state corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
To exhaust state remedies, petitioner's claims must have been fairly presented to the state's highest court. Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985) (petitioner " fairly presented" the claim to the state Supreme Court even though the state court did not reach the argument on the merits).
A federal habeas petitioner must provide the state courts with a fair opportunity to correct alleged violations of federal rights. Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) ( citing Picard, 404 U.S. at 275). Petitioner must have exhausted the claim at every level of appeal in the state courts. Ortberg v. Moody, 961 F.2d 135, 138 (9th Cir. 1992). It is not enough that all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state law claim was made. Duncan, 513 U.S. at 365-66 ( citing Picard, 404 U.S. at 275 and Anderson v. Harless, 459 U.S. 4, 103 S.Ct. 276, 74 L.Ed.2d 3 (1982)). Petitioner must present the claims to the state's highest court, even if such review is discretionary. O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999); Larche v. Simons, 53 F.3d 1068, 1071 (9th Cir. 1995). " An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." 28 USCA § 2254(c).
Petitioner must present the claims to the state's highest court based upon the same federal legal theory and factual basis as the claims are subsequently asserted in the habeas petition. Hudson v. Rushen, 686 F.2d 826, 830 (9th Cir. 1982), cert denied 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983); Schiers v. California, 333 F.2d 173, 176 (9th Cir. 1964) (petitioner failed to exhaust the claim that the state trial court improperly admitted evidence because petitioner never presented such a claim to the state court). Specifically, petitioner must apprise the state court that an alleged error is not only a violation of state law, but a violation of the Constitution. Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). Vague references to broad constitutional principles such as due process, equal protection, or a fair trial are not enough. Gray v. Netherland, 518 U.S. 152, 162, 116 S.Ct. 2074, 135 L.Ed.2d 457 (1996); Gatlin v. Madding, 189 F.3d 882, 888 (9th Cir. 1999), cert. denied, 528 U.S. 1087, 120 S.Ct. 815, 145 L.Ed.2d 686 (2000) (petitioner's statement that the state court's cumulative errors denied him a fair trial was insufficient to specifically articulate a violation of a federal constitutional guarantee); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). Petitioner must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle petitioner to relief. Gray v. Netherland, 518 U.S. at 162-163.
Mr. Barrow did not properly raise any of his claims as a federal constitutional issue on direct review. Thus his claims are unexhausted. A court must dismiss an unexhausted petition so that petitioner can return to state court and exhaust his claims as federal issues. See Johnson v. Lewis, 929 F.2d 460, 464 (9th Cir. 1991); cf. Gatlin v. Madding, 189 F.3d 882, 887-89 (9th Cir. 1999) (affirming district court's dismissal of petition for failure to exhaust state remedies).
B. Procedural Bar.
Respondent argues that Mr. Barrow is procedurally barred from returning to state court. When a petitioner has failed to properly exhaust a claim and state procedural rules prevent him from returning to state court federal courts find the claim is exhausted but procedurally barred.
The state courts did not expressly hold that petitioner had procedurally defaulted on his claims and was therefore barred from filing a personal restraint petition. If it had petitioner would be barred from asserting the same claim in a federal habeas corpus proceeding. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989).
Respondent is relying on an implied procedural bar. Federal review of the merits of a claim is barred only if the state would apply a mandatory rule of state procedure to preclude the petitioner from raising his claim in state court. See Moreno v. Gonzalez, 116 F.3d 409, 411 (9th Cir. 1997). If the state procedural bar is discretionary, the state will not necessarily apply the bar, and the claim is unexhausted but not procedurally barred. Id. Washington State's ruling preventing a petitioner from raising an issue in a collateral proceeding when it was raised on direct appeal is not a mandatory rule and the rule has exceptions allowing for consideration, if required, by " the ends of justice." In re Gentry, 137 Wn.2d 378, 388, 972 P.2d 1250 (1999). A petitioner need only provide " 'justification for having failed to raise a crucial point or argument in the prior application.'" Id. ( quoting In re Personal Restraint Petition of Taylor, 105 Wash.2d 683, 688, 717 P.2d 755 (1986) and Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963)).
The undersigned concludes that Mr. Barrow should be given the opportunity to try and exhaust his claims in state court and explain to the state court why his claims were not raised as federal claims on direct appeal. Thus, the undersigned recommends dismissal of this petition without prejudice.
CERTIFICATE OF APPEALABILITY
A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of his federal habeas petition only after obtaining a certificate of appealability from a district or circuit judge. A certificate of appealability may issue only where a petitioner has made " a substantial showing of the denial of a constitutional right." See 28 U.S.C. § 2253(c)(3). A petitioner satisfies this standard " by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Under this standard and based on a thorough review of the record and analysis of the law in this case, the undersigned concludes that Mr. Harvey is not entitled to a certificate of appealability with respect to this petition.
Based on the foregoing discussion, the undersigned recommends that Mr. Barrow's habeas petition be DISMISSED WITHOUT PREJUDICE. Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on December 12, 2014, as noted in the caption.