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