United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, Magistrate Judge.
Petitioner Sergio Reyes-Brooks seeks 28 U.S.C. § 2254 habeas relief from his convictions of first degree murder and unlawful possession of a firearm. Dkt. 9, Exhibit 1. Mr. Reyes-Brooks presents twelve grounds for habeas relief in his petition. The Court recommends DISMISSING Claims 1, 4, 5, 6, and 7 because they are not exhausted and are procedurally barred. The Court recommends DENYING Claims 2, 3, 8, 9, 10, 11, and 12 as Mr. Reyes-Brooks has failed to demonstrate that the state-court adjudication of these 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 an evidentiary hearing and issuance of a certificate of appealability.
A. Statement of Facts
The Washington Court of Appeals summarized the facts as follows:
The charges in this case arose from an incident in 2006. Reyes-Brooks and Ray Porter were upset with Dominque McCray. They and Porter's girlfriend, Crystal Moore, drove McCray to a secluded dead-end street, where they forced McCray to strip naked at gunpoint. McCray tried to flee, but Porter shot him once in the back and once in the head with a.380 Grendel semiautomatic handgun. Reyes-Brooks then exited the car, walked over to McCray, and fired a single shot into the back of his head with a.357 revolver. Police found McCray's body lying in the middle of the street. They also found two.380 shell casings and a bullet fragment at the scene.
Later that night, King County sheriff's deputies responded to a shooting at a party attended by Reyes-Brooks, Porter, and Moore. As officers began to separate the people at the party and take witness statements, Porter shot and killed a deputy. Then he shot and killed himself. Deputies recovered a.380 handgun at the scene of Porter's death. Ballistics testing confirmed that a bullet recovered from McCray was fired from this same gun.
When deputies questioned Moore, she told them about McCray's murder. Deputies impounded Reyes-Brooks's car and found a.357 revolver under the driver's seat. Ballistics testing confirmed that the shot into the back of McCray's head came from this gun. The handle, hammer, and trigger area of the gun contained DNA (deoxyribonucleic acid) matching that of three people, including Reyes-Brooks, and DNA from small drop of blood found on it matched McCray's DNA. Police also found shoes at Reyes-Brooks's home stained with blood in a high velocity impact spatter. DNA tests showed that the blood matched McCray's.
The State charged Reyes-Brooks with one count of first-degree murder with a firearm enhancement and one count of unlawful possession of a firearm. A jury returned guilty verdicts on the first-degree murder and unlawful possession charges. In addition, the jury answered "yes" on a special verdict for a firearm enhancement.
Reyes-Brooks stipulated that he had previously been convicted of serious offenses. The court sentenced him as a persistent offender to life imprisonment without the possibility of parole. The court based its sentence on two prior convictions: a 1998 conviction for first-degree robbery and a 2003 conviction for first-degree burglary.
Dkt. 9, Exhibit 2, at 2-3.
B. Statement of Procedural History
Mr. Reyes-Brooks appealed from his judgment and sentence to the Washington Court of Appeals. Dkt. 9, Exhibit 3 (Brief of Appellant); Exhibit 5 (Statement of Additional Grounds). The Washington Court of Appeals vacated the firearm sentencing enhancement but otherwise affirmed the convictions and the sentence. Id., Exhibit 2.
Mr. Reyes-Brooks sought review by the Washington Supreme Court of the decision to the extent it affirmed his convictions and sentence. Id., Exhibit 6. He presented three issues to the Washington Supreme Court, summarized as follows:
1) A jury instruction that requires the jury to be unanimous to find the state had not proven the special verdict beyond a reasonable doubt is erroneous and the enhancement must be stricken.
2) Different punishments for recidivist criminals create an arbitrary classification in violation of the Fourteenth Amendment's equal protection clause.
3) Violation of Reyes-Brooks' Sixth and Fourteenth Amendment rights when a judge, not a jury, found by a preponderance of the evidence that he had two prior most serious offenses.
Dkt. 9, Exhibit 6, at 1-3.
The prosecutor also sought review of that portion of the decision vacating the firearm sentencing enhancement. Dkt. 9, Exhibit 7. The Washington Supreme Court denied Mr. Reyes-Brooks' petition for review, granted the prosecution's petition for review, and remanded the case for reconsideration in light of State v. Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). Id., Exhibit 9. On remand, the Washington Court of Appeals affirmed the entire judgment and sentence on November 13, 2012. Id., Exhibit 10. Mr. Reyes-Brooks did not seek further review by the Washington Supreme Court. The Washington Court of Appeals issued its mandate on January 18, 2013. Id., Exhibit 11.
In January 2013, Mr. Reyes-Brooks filed a personal restraint petition in the Washington Court of Appeals. Dkt. 9, Exhibit 12. The Washington Court of Appeals denied the personal restraint petition. Id., Exhibit 15. Mr. Reyes-Brooks sought review by the Washington Supreme Court, in which he presented five issues, summarized as follows:
and Reyes-Brooks' Fifth, Sixth, and Fourteenth Amendment rights.
2) The state violated Reyes-Brooks' due process rights and his Sixth and Fourteenth Amendment rights by restricting him of the Compulsory Process for obtaining witnesses.
3) Trial counsel rendered ineffective assistance when he failed to propose an instruction to lessen the effect of highly prejudicial testimony in violation of Reyes-Brooks' Sixth and Fourteenth Amendment rights to effective counsel.
4) Reyes-Brooks was denied a Franks hearing in violation of his Fifth, Sixth and Fourteenth Amendment rights.
5) Reyes-Brooks was denied a fair trial when the trial court allowed prejudicial testimony in violation of his Fifth, Sixth and Fourteenth Amendment rights.
Dkt. 9, Exhibit 16, at 1-2.
The Washington Supreme Court denied review on July 3, 2014. Dkt. 9, Exhibit 17. The Washington Court of Appeals issued a certificate of finality on October 17, 2014. Id., Exhibit 18.
GROUNDS FOR REVIEW
Included in the memorandum in support of his habeas petition, Mr. Reyes-Brooks sets forth twelve grounds for federal habeas review, summarized as follows:
1) Reyes-Brooks was denied a fair trial when the trial court misstated the law on jury unanimity regarding the firearm enhancement.
2) Reyes-Brooks was denied a fair trial when the jury did not make a persistent offender finding beyond a reasonable doubt.
3) Reyes-Brooks was denied a fair trial where the trial court imposed a sentence beyond the maximum term based upon prior convictions that were not found by a jury beyond a reasonable doubt. defense motions for dismissal or continuance to allow sufficient time to prepare for trial.
5) Reyes-Brooks was denied a fair trial when, during recess a relative of the victim was seen talking to seated juror, and where the court did not conduct the requisite test for possible juror excusal.
6) Reyes-Brooks was denied a fair trial when the trial court rejected his Duress Defense despite sufficient evidence supporting such a defense.
7) Reyes-Brooks was denied a fair trial when the trial court, relying on Crystal Moore's erroneous testimony, denied the defense motion on insufficient evidence.
8) Reyes-Brooks was denied a fair trial when the prosecutor withheld material evidence in violation of Brady.
9) Reyes-Brooks was denied a fair trial when the prosecutor restricted his right to access State witnesses.
10) Reyes-Brooks was denied a fair trial when his trial counsel failed to propose a jury instruction limiting the effect of other crimes ...