United States District Court, E.D. Washington
ORDER DENYING WRIT OF HABEAS CORPUS
O. RICE CHIEF UNITED STATES DISTRICT JUDGE.
THE COURT is Petitioner Gregory Sharkey, Jr.'s Petition
for Writ of Habeas Corpus (ECF No. 4). Respondent Donald
Holbrook has answered the petition and filed relevant
portions of the state court record. ECF Nos. 11-13.
Petitioner appears pro se and Respondent is
represented by Annie L. Yu, Assistant Attorney General. The
Court has reviewed the entire record, the parties'
completed briefing, and is fully informed. For the reasons
discussed below, the Court denies the Petition for Writ of
is in custody at the Washington State Penitentiary at Walla
Walla serving a sentence imposed by the Clark County Superior
Court for conspiracy to commit first degree robbery,
attempted first degree robbery, and ten counts of first
degree assault. The underlying facts and procedural
history, summarized by the Washington Court of Appeals on
direct appeal, are as follows:
Because of the evidence sufficiency challenges, we relate the
facts in a manner most favorable to the State. On the evening
of December 22, 2009, Mr. Sharkey was walking down a Spokane
street with Tony Dawson, Margaret Shults, Dominic Shaver, and
Danniela Shaver. Someone in a nearby house pointed a laser at
them. Ten people were in the house. An argument broke out
between the groups. Evidence showed Mr. Dawson and Mr.
Sharkey shot at the house. Mr. Sharkey used a .38 caliber
revolver and Mr. Dawson used a .45 caliber handgun. Bullets
passed through the house, and the people inside fled on foot.
Charles Everett was shot in his side, but survived.
Early on December 23, 2009, Mr. Sharkey was walking along a
street with Mr. Dawson and Ms. Shults while planning to steal
a getaway vehicle. Mr. Sharkey was still carrying the .38 and
Mr. Dawson was still carrying the .45. Jamie Cartwright was
leaving her house for work when she noticed someone down the
street pacing back and forth. She went inside and then
returned to her vehicle. When Ms. Cartwright climbed in her
vehicle, she noticed the person down the street was now
closer to her. As she began to leave, a different person, Mr.
Dawson, broke the driver window with a gun and tried to pull
her out of the vehicle. Ms. Cartwright fled in her vehicle.
Later, Ms. Shults stole a different vehicle; Mr. Sharkey and
Mr. Dawson were then present. Ms. Shults drove, Mr. Sharkey
was the front passenger, and Mr. Dawson was a rear passenger.
Officer Kristopher Honaker tried to stop the vehicle, but Mr.
Dawson shot at and hit Officer Honaker's vehicle. The
group escaped in the vehicle.
Police arrested Mr. Sharkey on December 25, 2009. At the
police station, Detective Timothy Madsen took statements from
Mr. Sharkey admitted by the court and more fully recounted in
our analysis of the CrR 3.5 arguments.
The State charged Mr. Sharkey as a principal or accomplice to
10 counts of attempted first degree murder or, alternatively,
10 counts of first degree assault. The State charged Mr.
Sharkey as a principal or accomplice to first degree robbery,
attempted first degree robbery, and conspiracy to commit
first degree robbery. The State did not charge Mr. Sharkey
with second degree TMV.
At a bench trial, the superior court acquitted Mr. Sharkey of
the 10 counts of attempted first degree murder, but found him
guilty of 10 first degree assaults. The court acquitted him
of first degree robbery, but found him guilty of second
degree TMV as a lesser included offense. Finally, the court
found Mr. Sharkey guilty of attempted first degree robbery
and conspiracy to commit first degree robbery. Mr. Sharkey
moved unsuccessfully to arrest the judgment or for a new
trial. The court then issued three separate findings of fact
and conclusions of law.
The superior court sentenced Mr. Sharkey to 2, 215
consecutive months of incarceration for the 10 assaults, to
run concurrently with 22 months of incarceration for TMV, and
no incarceration for the attempted robbery and conspiracy.
Mr. Sharkey was previously convicted of first degree robbery
in early 2007, a fact the court considered when imposing each
sentence. The court calculated Mr. Sharkey's offender
score as seven for the first assault, zero for the other nine
assaults, and nine plus for each of the other three crimes.
Defense counsel did not argue Mr. Sharkey's current
convictions for attempted first degree robbery and conspiracy
to commit first degree robbery were the same criminal conduct
for purposes of calculating his offender score.
Mr. Sharkey appealed.
See State v. Sharkey, 172 Wash.App. 386, 388-89
(2012); ECF No. 13, Exhibit 8 at 2-4.
Washington Court of Appeals reversed in part and affirmed in
part Petitioner's sentence on December 11, 2012. See
then moved for discretionary review in the Washington Supreme
Court. ECF No. 13 at Exhibit 9. On May 1, 2013, the
Washington Supreme Court denied review. Id. at
Exhibit 10. On May 6, 2013, the Washington Court of Appeals
issued its mandate to the Superior Court for further
proceedings. Id. at Exhibit 11.
April 15, 2015, Petitioner claims that he filed a Personal
Restraint Petition (“PRP”) with the Washington
Court of Appeals, which was rejected. ECF No. 4 at 3. On June
12, 2014, Petitioner filed two new PRPs with the Washington
Court of Appeals, which were later consolidated. See
ECF No. 13 at Exhibit 12-13. The Washington Court of Appeals
dismissed the consolidated PRP on July 8, 2015. Id.
at Exhibit 16. Petitioner then moved the Washington Supreme
Court for discretionary review on August 4, 2015, see
Id. at Exhibit 17, which was denied on December 23,
2015, see Id. at Exhibit 18. The Washington Court of
Appeals issued a Certificate of Finality on May 17, 2016.
Id. at Exhibit 19.
filed this federal 28 U.S.C. § 2254 habeas petition on
April 4, 2016, generally alleging three grounds for relief:
(1) insufficient evidence; (2) prosecutorial misconduct; and
(3) ineffective assistance of counsel. See ECF No. 4
his stated grounds for relief, Petitioner makes eight
specific claims.As to insufficiency of the evidence,
Petitioner questions (1) “Whether evidence that
petitioner intended to inflict Great Bodily harm is
sufficient.” Id. at 5.
prosecutorial misconduct, Petitioner claims (2) the
Prosecution “Denied me the right to confront My
accuser, Zachary Davis whos roommate/and victim Mr Everret
testified that the detective come to their home and told them
there were two different caliber bullets pulled from his
home. (Blatant Lie)[.]” Id. at 7. (3) The
Prosecution “Bought & paid for testimony of star
witness Shults twice by giving her a deal on this case as
well as the case she caught when released on this
case.” Id. (4) “Prosecutor withheld new
statements & interviews from Defense. Upon public
Disclosure request All interviews (on file) of
victims say there was one shooter a white male the black male
never approached or shot at them.” Id.
ineffective assistance of counsel, Petitioner claims (5)
“Defense failed to request a dismissal when two of 10
victims changed story on the day of trial accusing Sharkey.
and testifying ‘I did not see sharkey with a gun but
the detective said he was shooting at us.'”
Id. at 8. (6) Defense Counsel “Failed to ask
for a lesser included sentence the same as the principal or
primary suspect Mr Dawson.” Id. (7) Defense
Counsel “also did not present the evidence his
investigators turned in to him that greatly benefited the
defense Of Sharkey.” Id. (8) “When the
State argued Mr Sharkey committed a greater offense than
Dawson, (who admitted to firing the only gun fired and
hitting victim Mr. Everret) simply by being present Defense
Counsel did not argue or object to anything.”
Id. at 9.
contends that Petitioner failed to properly present and
exhaust claims 2, 3, 5, 6, and 8. ECF No. 11 at 16.
Respondent concedes that claims 1, 4, and 7 were exhausted
under 28 U.S.C § 2254(c) because Petitioner fairly
presented them to the Washington State Supreme Court.
Respondent contends Petitioner failed to show that the state
court decision was contrary to or was an objectively
unreasonable application of clearly established Supreme Court
precedent, or that the decision was an unreasonable
determination of the facts in light of the evidence and thus,
relief should be denied. Petitioner avers that he has
exhausted his state court remedies. ECF No. 4 at 6-9.
contends an evidentiary hearing is unnecessary for the issues
raised, ECF No. 11 at 10-11, and does not concede Petitioner
has properly exhausted his ...