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Pena v. Holbrook

United States District Court, W.D. Washington, Tacoma

August 12, 2019

ANGELINO L PENA, Petitioner,
v.
DONALD R HOLBROOK, Respondent.

          REPORT AND RECOMMENDATION

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.

         The District Court has referred this action to United States Magistrate Judge David W. Christel. Petitioner Angelino L. Pena filed his federal habeas Petition, pursuant to 28 U.S.C. § 2254, seeking relief from his state court convictions and sentence. See Dkt. 9. The Court concludes the state court's adjudication of the sole ground raised in the Petition 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.

         I. Background

         A. Factual Background

         The Court of Appeals of the State of Washington (“state court of appeals”) summarized the facts of Petitioner's case as follows:

On January 26, 2013, Neil Hill, Vincent Burnett, Levi Blomdahl, and Elena Espinoza were using heroin in a hotel room in Vancouver. At 2:00 AM, Espinoza asked Hill to pick up Pena and bring him back to the hotel.
During the drive, Pena pulled out a gun and told Hill that he would shoot him in the stomach if Hill got pulled over by the police. Hill described Pena as intoxicated. While in the car, Pena played with the gun, repeatedly ejecting bullets from the ammunition clip and putting them back in. Hill feared for his life. When he arrived at the hotel, Pena knocked on the door with the butt of his gun, entered carrying the gun, acted belligerently, and appeared intoxicated. Pena continued to play with the gun and pop bullets in and out of the clip. He also passed the gun around to others in the room.
Blomdahl observed that Pena and Burnett were having a disagreement about Pena's brother. Later, Blomdahl was nodding in and out of sleep when he heard a gun fire. He opened his eyes and saw that Burnett had fallen over and was lying on the floor bleeding. He then saw Pena stand up and appear to put the gun in his pocket or waistband.
Burnett suffered permanent impairment because of his injuries. He could not remember who shot him, but he did remember that Pena was at the hotel room, that Pena had a gun, and that the two of them had both good and bad conversations that night about family.
The State charged Pena with second degree attempted murder and first degree assault, each with a firearm enhancement. At trial, Detective Erick Zimmerman, an investigating officer, testified that at the time of his investigation of the shooting he was assigned to the Safe Streets Task Force and that the task force was a regional gang unit. The trial court overruled Pena's objection to this testimony.
At Pena's request, the trial court gave an instruction on second degree assault. Pena did not propose an inferior degree offense instruction on third degree assault. The jury found Pena guilty of attempted second degree murder and first degree assault.
The trial court vacated the attempted second degree murder conviction because it merged with the assault, and imposed a standard range sentence. The trial court also imposed discretionary LFOs [(legal financial obligations)].

Dkt. 15-1, pp. 677-78.

         B. Procedural Background

         1. D ...


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