United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATON
BRIAN A. TSUCHIDA, Magistrate Judge.
Petitioner Johnnie Lee Walters seeks 28 U.S.C. § 2254 habeas relief from his conviction by jury verdict of one count of assault in the first degree (while armed with a firearm) and one count of unlawful possession of a firearm in the second degree. Dkt. 3. The Court later granted Mr. Walters leave to amend his petition to include an additional ground for relief. Dkt. 23. The parties provided additional briefing on the fourth ground. Dkts. 24 and 25. Thus, Mr. Walters' petition as amended presents this Court with four grounds for relief: (1) insufficient evidence of first-degree assault; (2) violation of right to present a necessity defense; (3) denial of right to counsel of his choice; and (4) ineffective assistance of counsel. Dkt. 3, at 5-8 (Grounds 1-3); Dkt. 20, attached page (Ground 4).
The Court recommends DENYING the claims as Mr. Walters has failed to demonstrate that the state-court adjudication of his claims was contrary to, or an unreasonable application of, established federal law, or was an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d)(1)-(2). The Court also recommends DENYING the issuance of a certificate of appealability.
A. Statement of Facts
The Washington Court of Appeals summarized the facts underlying Mr. Walters' convictions as follows:
The State charged Johnnie Lee Walters, Jr., with one count of first degree assault while armed with a firearm and one count of second degree unlawful possession of a firearm following a shooting at a South Seattle gas station. Surveillance cameras at the station captured much of the incident, and the video recordings were played several times for the jury and witnesses during the course of the trial.
Detra Harris testified that she spent most of June 23, 2007, with her friends Treniqua Crowder and Deche Washington. Late in the evening, Washington became "stressed, " and Harris drove him and Crowder to a nearby Union 76 gas station. Appellant Walters and Charles Chappelle were already at the gas station when Harris arrived.
Harris parked her car near the air and water machines, and all three occupants got out. Harris saw Chappelle approach Washington "cussing and yelling obscenities." Harris understood Chappelle to be urging Washington to fight, and the two men then raised their fists and moved around as though they were going to punch one another.
When Walters walked up next to her, Harris asked him why the two men were fighting. Walters said that he did not know because Washington and Chappelle were supposed to be friends. Walters did not reply when Harris asked him to intervene, but Harris saw Walters place his hand near a shiny gun in his pocket or waistband.
A short time later, Washington walked away from Chappelle and removed a shotgun from Harris's car. Washington then approached Chappelle and fired a "warning shot" into the air. One of the video recordings showed Washington walking toward Chappelle with the shotgun and Chappelle running away.
Shortly after Washington fired the shotgun, Walters pulled out a semiautomatic handgun and began firing toward Washington. The video shows Washington, who was standing near a gas pump, turn suddenly and then stumble or fall to the ground, dropping his shotgun. Harris testified that Washington lay on the ground moving from "side to side" and trying to cover his head while Walters continued firing "by his head."
Washington got up and ran in a "zigzag" pattern around the gas pumps and then across Rainier Avenue as Walters chased after him and continued shooting. Harris immediately returned to her car, drove out of the gas station, and picked up Washington from a vacant lot across the street. When Harris discovered that Washington was bleeding and appeared to be severely injured, she drove quickly to Harborview Hospital. Harris noticed that Walters' car followed her for about a half-block before turning off. At the hospital, surgeons repaired serious injuries to Washington's femoral artery and vein resulting from a gunshot wound to the left groin area.
At the gas station, police officers recovered one spent shotgun shell casing and a total of fifteen.40 caliber cartridge casings from a handgun.
After viewing the surveillance video, Walters gave a statement to police that was admitted at trial. Walters said that he and Chappelle were at the gas station getting gas when Chappelle and Washington got into an argument. Walters asserted that he acted in self-defense and began shooting at Washington after Washington fired the shotgun at Chappelle.
The trial court instructed the jury on self-defense, but refused to give Walters' proposed instruction on a necessity defense for the unlawful possession charge. During closing argument, the deputy prosecutor conceded that Walters could have begun shooting in self-defense or in defense of Chappelle, but asserted that he committed the charged assault when he continued shooting after Washington dropped the shotgun and attempted to run away.
The jury found Walters guilty as charged, and the court imposed concurrent standard range terms for a total sentence of 198 months.
Dkt. 12, Exhibit 15, at 1-4.
B. State Procedural History
1. Direct Appeal
Mr. Walters appealed his conviction to the Washington Court of Appeals. Dkt. 12, Exhibit 10. Mr. Walters also filed motions to be released on bond during the pendency of his appeal, first on a pro se basis and later a motion submitted by appellate counsel. Id., Exhibits 12-REPORT 14. On April 18, 2011, the Court of Appeals rejected Mr. Walters' appellate claims and affirmed his conviction in an unpublished opinion. Id., Exhibit 15. Shortly thereafter, the Commissioner of the Court of Appeals denied his motion to set appeal bond and the three-judge panel denied his motion to modify the Commissioner's ruling. Id., Exhibits 16 and 18.
Mr. Walters sought discretionary review by the Washington Supreme Court. Id., Exhibit 19. Mr. Walters also filed a motion for discretionary review of the Court of Appeals' denial of his motion for an appeal bond. Id., Exhibit 20. On September 7, 2011, the Supreme Court in separate orders denied the petition for review and the motion for discretionary review without comment. Id., Exhibits 21 and 22. The Court of Appeals issued its mandate on October 5, 2011. Id., Exhibit 23.
2. Motion for Bail and New Trial/Personal Restraint Petition
On October 8, 2010, while the direct appeal was pending, counsel for Mr. Walters filed a motion for bail and for a new trial with the superior court, arguing that he was denied his right to counsel of his own choosing and that his defense counsel provided ineffective assistance at trial by failing to call Charles Chappelle as a defense witness. Id., Exhibit 24. On October 12, 2010, the superior court denied the motion for bail pending appeal and transferred the motion for a new trial to the Washington Court of Appeals to be considered as a personal restraint petition. Id., Exhibit 25.
After further briefing by the parties, the Chief Judge of the Court of Appeals dismissed the petition on May 3, 2013. Id., Exhibit 30. Mr. Walters filed a pro se motion for discretionary review with the Washington Supreme Court raising the same denial of counsel and ineffective assistance arguments he presented to the lower courts. Id., Exhibit 31. On February 26, 2014, the Commissioner of the Washington Supreme Court denied Mr. Walters' motion. Id., Exhibit 32. The Court of Appeals issued a certificate of finality on April 30, 2014. Id., Exhibit 33.
The decision to hold a hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Landrigan, 550 U.S. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388 (2011). A hearing is not required if the allegations would not entitle petitioner to relief under 28 U.S.C. § 2254(d). Landrigan, 550 U.S. at 474. "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id.; see also Cullen, 131 S.Ct. 1388 (2011). The Court finds it unnecessary to hold an evidentiary hearing because Mr. Walters' claims may be resolved on the existing state court record.
A. Claim 1 - Insufficient Evidence (First-Degree Assault Charge)
In his first ground for relief Mr. Walters claims the evidence presented at trial was constitutionally insufficient to support the jury's guilty finding for first-degree assault.
The Constitution forbids the criminal conviction of any person except upon proof of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358 (1970). When evaluating a claim of insufficiency of the evidence to support a conviction, the reviewing court must decide "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). " Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors draw reasonable inferences from basic facts to ultimate facts.'" Coleman v. Johnson, 132 S.Ct. 2060, 2064 (2012) ( quoting Jackson, 443 U.S. at 319). The jury is entitled to believe the State's evidence and to disbelieve the defense's evidence. Wright v. West, 505 U.S. 277, 296 (1992).
The Jackson inquiry focuses not on whether the trier of fact made the correct guilt or innocence determination but on whether it made a rational decision to convict or acquit. Herrera v. Collins, 506 U.S. 390, 402 (1993) (emphasis in original); see also Coleman v. Johnson, 132 S.Ct. at 2065 ("[T]he only question under Jackson is whether [the jury's] finding was so insupportable as to fall below the threshold of bare rationality."). The Jackson standard requires the reviewing court to keep in mind the requirements of state law: "the standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson, 443 U.S. at 324 n.16.
The Washington Court of Appeals considered Mr. Walters' insufficient evidence claim on direct appeal and, after reviewing the testimony and the video evidence, concluded that a reasonable jury could have convicted ...