United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
District Court has referred this action to United States
Magistrate Judge David W. Christel. Petitioner Steven Karl
Edwards filed his federal habeas Petition
(“Petition”), pursuant to 28 U.S.C. § 2254,
seeking relief from his state court convictions and sentence.
See Dkt. 1. The Court concludes Petitioner failed to
properly exhaust his state court remedies as to Ground 1.
Because Petitioner's time for pursuing state remedies has
expired, Petitioner has procedurally defaulted on Ground 1.
Further, the state court's adjudication of Grounds 2-4
was not contrary to, or an unreasonable application of,
clearly established federal law. Therefore, the undersigned
recommends the Petition be denied and a certificate of
appealability not be issued.
Court of Appeals of the State of Washington (“state
court of appeals”) summarized the facts of
Petitioner's case as follows:
In October 2013, Peter Lahmann approached his truck, parked
in southeast Tacoma, and saw Edwards and a female near the
vehicle. The two saw Lahmann and immediately fled. Lahmann
inspected the truck, discovered that his cell phone was
missing, and took off in pursuit.
As he ran after Edwards and the female, Lahmann heard
gunshots, though he did not initially recognize the sound. He
then saw Edwards pointing a firearm at him. Edwards said,
“I'm going to kill you if you don't quit
following me.” Edwards then proceeded to fire at
Two men drove up to Lahmann in a different truck and asked
him if Edwards was shooting at him. He said yes, asked them
to call the police, and ran off after Edwards again. Edwards
continued to fire at Lahmann, and several people nearby
witnessed the shooting.
Lahmann eventually lost sight of Edwards and the female.
However, the men in the truck saw the two enter a nearby
garage-apartment and told Lahmann. The police arrived, and
Lahmann and the men in the truck directed them to the garage.
When confronted by police, Edwards admitted he had stolen
Lahmann's cell phone. He was arrested, and police
subsequently searched the garage-apartment. They found the
cell phone as well as a semiautomatic handgun, which matched
a bullet casing found in the street.
Edwards' mother resided in the garage-apartment to which
he fled. Edwards was prohibited by a protection order from
coming within 500 feet of her residence or having contact
with her. Despite that order, he had been with his mother at
the residence earlier in the day.
The State charged Edwards with first degree assault, first
degree robbery, first degree burglary, and unlawful
possession of a firearm. For each charge except that of
unlawful possession, the State also charged Edwards with a
sentencing enhancement for the use of a firearm in the
commission of the crime. The jury found Edwards guilty on all
counts and found that he committed the crimes with a firearm.
The State sought a high-end sentence of 678 months'
confinement. Because Edwards had a prior conviction with a
firearm sentencing enhancement, each of the three
enhancements added 120 months to his sentence, for a total of
360 months. The sentencing court imposed an exceptional
downward sentence of 420 months' confinement, which
included 60-month concurrent sentences for each underlying
crime in addition to the 120-month enhancements.
Dkt. 10-2, pp. 379-80 (internal citations omitted); State
v. Edwards, 194 Wash.App. 1050, *1 (2016).
challenged his Pierce County Superior Court convictions and
sentence on direct appeal. See Dkt. 10-2, pp. 336,
357. The state court of appeals affirmed Petitioner's
convictions and sentence. Id. at p. 379-87.
Petitioner sought discretionary review by the Washington
State Supreme Court (“state supreme court”).
Id. at pp. 414-31. On February 8, 2017, the state
supreme court denied Petitioner's petition for review
without comment. Id. at p. 436. The state court of
appeals issued its mandate on March 14, 2017. Id. at
Personal Restraint Petition
February 9, 2018, Petitioner filed a personal restraint
petition (“PRP”) seeking state post-conviction
relief. See Dkt. 10-2, pp. 441-51. The PRP was
dismissed by the state court of appeals on July 27, 2018.
Id. at pp. 485-87. Petitioner sought discretionary
review from the state supreme court, which was denied by the
commissioner of the state supreme court on December 28, 2018.
Id. at pp. 489-92, 497-98. The state court of
appeals issued the certificate of finality on March 8, 2019.
Id. at p. 500.
January 17, 2019, Petitioner filed his Petition (Dkt. 1)
raising the following four grounds:
1. The State failed to present sufficient evidence to prove
all the elements of first degree burglary beyond a reasonable
2. The State failed to present sufficient evidence to prove
all the elements of first degree assault beyond a reasonable
3. Counsel provided ineffective assistance when he failed to
impeach Peter Lahmann with his inconsistent statements.
4. Counsel provided ineffective assistance when he failed to
ask for lesser-included-offense jury instructions.
April 12, 2019, Respondent filed, and served on Petitioner,
an Answer. Dkt. 9. In the Answer, Respondent asserts
Petitioner failed to exhaust Ground 1 and this ground is now
barred from federal review. Id. Respondent also
argues the state court's adjudication of Grounds 2-4, was
not contrary to, or an unreasonable application of, clearly
established federal law. Id. Petitioner did not file
a response to the Answer.
Exhaustion and Procedural Default
first maintains Petitioner failed to exhaust Ground 1 and is
procedurally barred from federal review of this ground. Dkt.
Exhaustion of State Remedies
state prisoner must normally exhaust available state judicial
remedies before a federal court will entertain his petition
for habeas corpus.” Picard v. Connor, 404 U.S.
270, 275 (1971). Petitioner's claims will be considered
exhausted only after “the state courts [have been
afforded] a meaningful opportunity to consider allegations of
legal error without interference from the federal
judiciary.” Vasquez v. Hillery, 474 U.S. 254,
257 (1986). “[S]tate prisoners must give the state
courts one full opportunity to resolve any constitutional
issues by invoking one complete round of the State's
established appellate review.” O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999).
federal habeas petitioner must provide the state courts with
a fair opportunity to correct alleged violations of federal
rights. Duncan v. Henry, 513 U.S. 364, 365 (1995);
Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir.
1985) (petitioner “fairly presented” the claim to
the state supreme court even though the state court did not
reach the argument on the merits). It is not enough if all
the facts necessary to support the federal claim were before
the state courts or if a somewhat similar state law claim was
made. Duncan, 513 U.S. at 365-66 (citing
Picard, 404 U.S. at 275; Anderson v.
Harless, 459 U.S. 4 (1982)). Petitioner must include
reference to a specific federal constitutional guarantee, as
well as a statement of the facts entitling Petitioner to
relief. Gray v. Netherland, 518 U.S. 152, 162-163
(1996); Insyxiengmay v. Morgan, 403 F.3d 657, 668
(9th Cir. 2005). Petitioner bears the burden of proving he
has exhausted available state remedies, and retains the
burden to prove all facts relevant to the exhaustion
requirement. See Rose v. Lundy, 455 U.S. 509, 520
(1982); 28 U.S.C. § 2254(b)(1)(A).
Ground 1 of the Petition, Petitioner alleges the State failed
to present sufficient evidence to prove all elements of first
degree burglary because the evidence failed to show
Petitioner entered his mother's residence intending to
commit a crime. Dkt. 1, p. 5. On direct appeal, Petitioner
raised Ground 1, asserting the State failed to prove beyond a
reasonable doubt that petitioner intended to commit a crime
while inside his mother's residence. See Dkt.
10-2, p. 336. However, in his petition for review filed with
the state supreme court, Petitioner did not allege there was
insufficient evidence to convict him of first degree
burglary. Rather, Petitioner challenged only the sufficiency
of the evidence regarding the first degree assault
conviction. See id. at p. 421. Petitioner did not
raise Ground 1 in his PRP. See Dkt. 10-2, pp. 441-51
(raising only ineffective assistance of counsel in the PRP).
Petitioner did not raise Ground 1 to the highest state court
on direct appeal or in his PRP, he did not give the state
court a full and fair opportunity to determine if a federal
constitutional violation occurred when he was convicted of
first degree burglary. See Baldwin v. Reese, 541
U.S. 27, 29 (2004) (“To provide the State with the
necessary ‘opportunity,' the prisoner must
‘fairly present' his claim in each appropriate
state court (including a state supreme court with powers of
discretionary review), thereby alerting that court to the
federal nature of the claim.”); Ortberg v.
Moody, 961 F.2d 135, 138 (9th Cir. 1992) (finding claims
were unexhausted when they were not raised on every level of
direct review). Therefore, Ground 1 was not properly