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Sharkey v. Holbrook

United States District Court, E.D. Washington

October 2, 2017

GREGORY SHARKEY, JR., Petitioner,
v.
DONALD HOLBROOK, Respondent.

          ORDER DENYING WRIT OF HABEAS CORPUS

          THOMAS O. RICE CHIEF UNITED STATES DISTRICT JUDGE.

         BEFORE 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 Habeas Corpus.

         BACKGROUND

         Petitioner 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.[1] 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.

         The Washington Court of Appeals reversed in part and affirmed in part Petitioner's sentence on December 11, 2012. See id.

         Petitioner 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.

         On 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.

         Petitioner 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 at 5-9.

         Within his stated grounds for relief, Petitioner makes eight specific claims.[2]As to insufficiency of the evidence, Petitioner questions (1) “Whether evidence that petitioner intended to inflict Great Bodily harm is sufficient.” Id. at 5.

         As to 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.

         As to 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.

         Respondent 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.

         However, 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.

         Respondent 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 ...


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