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Pena v. Holbrook
United States District Court, W.D. Washington, Tacoma
August 12, 2019
ANGELINO L PENA, Petitioner,
DONALD R HOLBROOK, Respondent.
REPORT AND RECOMMENDATION
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
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