United States District Court, W.D. Washington, at Seattle
REPORT AND RECOMMENDATION
INTRODUCTION AND SUMMARY CONCLUSION
MARY ALICE THEILER, Chief Magistrate Judge.
Petitioner John Stanley is a state prisoner who is currently confined at the Stafford Creek Corrections Center in Aberdeen, Washington. He seeks relief under 28 U.S.C. § 2254 from a 2010 King County Superior Court judgment and sentence. Respondent has filed an answer responding to petitioner's federal habeas claim and has submitted relevant portions of the state court record. This Court, having carefully reviewed petitioner's claim, respondent's response thereto, and the state court record, concludes that petitioner's petition for writ of habeas corpus should be denied and this action should be dismissed with prejudice.
In the early morning hours of May 28, 2010, Abdiqahar Adan was dropped off a few blocks from his home in the Central Area of Seattle after spending an evening with friends in North Seattle. (Dkt. 12, Ex. 2 at 151-52.) As Mr. Adan walked home, he passed two men on the sidewalk, one of whom he later identified as petitioner John Stanley. ( Id., Ex. 2 at 155-56.) Immediately after Mr. Adan passed them, the two men caught up with Mr. Adan at which point petitioner grabbed Mr. Adan from behind, placed him in a choke hold, and took him to the ground. ( Id., Ex. 2 at 157-58.) Petitioner put an unknown object to Mr. Adan's head and threatened to shoot him in the face. ( Id., Ex. 2 at 158, 173.) As Mr. Adan struggled, the men punched him repeatedly. ( See id., Ex. 2 at 158-59, 176-77.)
Mr. Adan told the men they could take everything he had, but Mr.Adan had only $20 in his pocket. ( Id., Ex. 2 at 158.) When Mr. Adan took the money out to give to them, the second man told Mr. Adan they wanted "everything" from him. ( Id., Ex. 2 at 158.) The second man searched Mr. Adan's pockets while petitioner held him down and he took Mr. Adan's debit card, cell phone, student ID, and the $20. ( See id., Ex. 2 at 160, 163-64, 177-78.) Mr. Adan refused demands to give the men the PIN number for his debit card. ( Id., Ex. 2 at 161.) He also refused demands to take off his jacket, and Mr. Adan ultimately demanded that the two men return everything they had taken from him. ( See id., Ex. 2 at 160-61.) The two men then fled. ( Id., Ex. 2 at 161-62.)
As petitioner and the other man walked away, Mr. Adan heard a phone ringing, saw a cell phone on the ground, and picked it up. ( Id., Ex. 2 at 162-3.) Mr. Adan taunted the robbers, yelling "I have your cell phone." ( Id., Ex. 2 at 165.) Mr. Adan began walking to a nearby AM/PM market when he saw petitioner running towards him. ( Id., Ex. 2 at 162-64.) Mr. Adan ran straight to the clerk at the AM/PM, told the clerk he had been assaulted and needed help, and asked the clerk to call 911, which the clerk did. (Dkt. 12, Ex. 2 at 164.) Petitioner entered the store as well and offered Mr. Adan money to return the cell phone he had picked up, but Mr. Adan refused. ( Id., Ex, 2 at 167-68.) The police arrived while both Mr. Adan and petitioner were still in the store, and petitioner was arrested. ( Id., Ex. 1 at 48-50, 77.) Officers conducted a search of petitioner incident to his arrest and discovered that he was in possession of crack cocaine. ( See id., Ex. 1 at 51-52, 63-64, 78-79, 86.)
On August 10, 2010, while petitioner was in pretrial custody at the King County Jail, Corrections Officer Chang An saw petitioner, who was in his cell, hand a note to another inmate, Anthony Terry, who was standing in the dayroom of petitioner's housing unit. ( Id., Ex. 2 at 99-102.) Shortly thereafter, inmate Terry handed the note to another inmate who was about to be released from custody, inmate Earl Barrington. ( Id., Ex. 2 at 103-04.) Corrections Officer An retrieved the note from inmate Barrington. ( Id., Ex. 2 at 106.) The note indicated that it was from "Doelow, " which is one of petitioner's nicknames. ( See id., Ex. 1 at 109-13, Ex. 2 at 122-26, and Ex. 33.) The note contained a telephone number next to the name "Abdi, " and it indicated that Abdi should be contacted and offered payment to not participate in the trial." ( Id., Ex. 33.) Mr. Adan confirmed at trial that his nickname is "Abdi" and that the telephone number listed on the note was his home phone number. ( Id., Ex. 2 at 149, 181.)
On September 3, 2010, following a jury trial, petitioner was convicted on charges of first degree robbery, possession of cocaine, and attempted bribery of a witness. ( Id., Ex. 4.) Petitioner was sentenced on November 5, 2010 to a total term of 144 months confinement. (Id. )
Petitioner appealed his convictions and sentence to the Washington Court of Appeals. ( See Dkt. 12, Exs. 5 and 10.) In the opening brief prepared by petitioner's appellate counsel, petitioner asserted that (1) the judgment had misstated his offender score and standard ranges, and (2) the sentencing court miscalculated petitioner's offender score and standard range on his conviction for attempted bribery. ( Id., Ex. 5 at 1.) The state conceded these errors. ( Id., Ex. 6.)
Petitioner also filed a pro se statement of additional grounds for review in which he asserted that (1) a police officer's testimony was inconsistent with an earlier report regarding her contact with petitioner, (2) John Collins was not called as a defense witness, (3) inmates Anthony Terry and Earl Barrington were subpoenaed to come to court but never appeared thus violating petitioner's right to confront his accusers, and (4) the victim testified only that he "believe[d]" petitioner was the perpetrator and he also failed to tell the court that he gave two different descriptions of the alleged perpetrator. ( Id., Ex. 10 at 1-2.)
On January 30, 2012, the Court of Appeals issued an unpublished opinion in which it accepted the state's concession of error regarding the sentencing issues, rejected petitioner's pro se grounds for review, and remanded for resentencing. ( Id., Ex. 11.) Petitioner did not seek further review by the Washington Supreme Court, and the Court of Appeals issued its mandate terminating direct review on March 9, 2012. ( Id., Ex. 12.)
On November 6, 2012, petitioner filed a personal restraint petition in the Washington Court of Appeals in which he asserted that his trial counsel's performance was deficient in various respects. ( Id., Ex. 13.) The Court of Appeals construed petitioner's petition as alleging the following deficiencies in counsel's conduct: (1) counsel failed to call witnesses; (2) counsel failed to call Anthony Terry despite the fact that the court had issued a subpoena; (3) counsel failed to obtain a handwriting expert as petitioner had requested; (4) counsel failed to hire an investigator; (5) counsel failed to interview the store clerk to determine whether other people were in the store at the time of the crime; (6) counsel failed to discover relevant case law; (7) counsel failed to sufficiently cross-exam the victim regarding differences between his original physical description of the assailant and petitioner's physical appearance; and, (8) counsel failed to fully investigate the case. (Dkt. 12, Ex. 14.) On April 22, 2013, the Acting Chief Judge of the Court of Appeals issued an order dismissing petitioner's personal restraint petition. ( Id., Dkt. 14.)
Petitioner sought further review of his ineffective assistance of counsel claim by the Washington Supreme Court. ( Id., Ex. 17.) Petitioner identified the following instances of deficient performance in his motion for discretionary review: (1) counsel failed to call Anthony Terry as a witness; (2) counsel failed to obtain the services of an investigator and handwriting expert; (3) counsel failed to investigate/interview the store clerk who called 911 and other potential witnesses who were in the store at the same time petitioner and Mr. Adan were there; (4) counsel failed to discover relevant case law; (5) counsel failed to adequately ...