DAVID W. CHRISTEL, Magistrate Judge.
RONALD B. LEIGHTON, District 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.
The Court of Appeals of the State of Washington ("state court of appeals") summarized the facts of Petitioner's case as follows:
Dkt. 15-1, pp. 677-78.
Petitioner challenged his Clark County Superior Court convictions and sentence on direct appeal. See Dkt. 15-1, pp. 588-616. The state court of appeals affirmed Petitioner's convictions and sentence. Id. at pp. 676-83. Petitioner sought discretionary review by the Washington State Supreme Court ("state supreme court"). Id. at pp. 685-709. On June 29, 2016, the state supreme court denied Petitioner's petition for review without comment. Id. at p. 711. The state court of appeals issued its mandate on July 15, 2016. Id. at p. 714.
On September 11, 2017, Petitioner filed a personal restraint petition ("PRP") seeking state post-conviction relief. See Dkt. 15-1, pp. 717-49. The state court of appeals denied the PRP on February 6, 2018. Id. at pp. 831-33. Petitioner filed a motion for reconsideration, which was denied. See id. at pp. 835-44, 846. Petitioner then sought discretionary review from the state supreme court. Id. at pp. 848-72. The motion for discretionary review was denied by the deputy commissioner of the state supreme court on September 26, 2018. Id. at pp. 874-75. Petitioner filed a motion to modify the commissioner's ruling, which was denied without comment by the state supreme court. Id. at pp. 877-87, 892. The state court of appeals issued the certificate of finality on December 6, 2018. Id. at p. 894.
On November 26, 2018, Petitioner initiated this case, raising the following ground for relief in his Petition (Dkt. 9):
On March 6, 2019, Respondent filed, and served on Petitioner, an Answer. Dkt. 14, 15. In the Answer, Respondent argues the state court's adjudication of Ground 1, the sole ground raised in the Petition, was not contrary to, or an unreasonable application of, clearly established federal law. Dkt. 14. After seeking an extension of time, Petitioner filed a Response to the Answer on June 19, 2019. Dkt. 22.
Pursuant to 28 U.S.C. § 2254(d)(1), a federal court may not grant habeas relief on the basis of a claim adjudicated on the merits in state court unless the adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." In interpreting this portion of the federal habeas rules, the Supreme Court has ruled a state decision is "contrary to" clearly established Supreme Court precedent if the state court either (1) arrives at a conclusion opposite to that reached by the Supreme Court on a question of law, or (2) confronts facts "materially indistinguishable" from relevant Supreme Court precedent and arrives at an opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000).
Moreover, under § 2254(d)(1), "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411; see Lockyer v. Andrade, 538 U.S. 63, 69 (2003). An unreasonable application of Supreme Court precedent occurs "if the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case." Williams, 529 U.S. at 407. In addition, a state court decision involves an unreasonable application of Supreme Court precedent "`if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.'" Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Williams, 529 U.S. at 407).
The Anti-Terrorism Effective Death Penalty Act ("AEDPA") requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Further, review of state court decisions under §2254(d)(1) is "limited to the record that was before the state court that adjudicated the claim on the merits." Cullen v. Pinholster, 563 U.S. 170, 180-81 (2011).
In the Petition, Petitioner alleges he received ineffective assistance of trial counsel when trial counsel failed to request the lesser-included jury instruction of third degree assault. Dkt. 9. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court created a two-part test for determining whether a defendant received ineffective assistance of counsel. First, a defendant must demonstrate his attorney's performance was deficient, which requires showing "counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment." Id. at 687. Second, a defendant must demonstrate the deficient performance prejudiced the defense to such a degree the results of the trial cannot be trusted. Id.
Under the first prong, the reasonableness of an attorney's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. Id. at 690. The petitioner must carry a heavy burden, as "reviewing courts must indulge a strong presumption that counsel's conduct falls within the wide range of professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689 (citation omitted).
Under the prejudice prong, a petitioner must establish there is a reasonable probability the results would have been different but for counsel's deficient performance. Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); Strickland, 466 U.S. at 696. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
In determining Petitioner's trial counsel was not ineffective for failing to request jury instructions on lesser-included-offense of third degree assault, the state court of appeals applied the standard as decided in Strickland. See Dkt. 15-1, pp. 678-79. The state court of appeals first found Petitioner was entitled to a "third degree assault instruction if he had requested one." Id. at pp. 679-80. The state court of appeals then found Petitioner's counsel was not deficient, stating:
Id. at pp. 680-81.
During closing arguments, Petitioner's counsel argued the State had not met its burden. Dkt. 15-1, p. 451. As the state court of appeals correctly explained, Petitioner's counsel first argued to the jury that the State failed to prove Petitioner was present during the shooting. Id. at pp. 451-54. Second, counsel argued that, if the jury determined Petitioner was present, the evidence failed to show Petitioner was holding the gun. Id. at pp. 454-58. Third, counsel asserted that, if the jury could overcome the first and second "hurdle," the State had still failed to show Petitioner shot the gun. Id. at p. 458. Last, counsel argued that State had failed to show the shooting was an intentional act. Id. at pp. 458-62.
Here, the state court of appeals found, and the state court record supports, counsel's trial strategy was to argue Petitioner was not guilty of first or second degree assault because there was, among other things, no evidence Petitioner intentionally shot the victim. Petitioner's counsel argued that the shooting was a result of reckless behavior, but there was insufficient evidence to prove Petitioner fired the gun or fired the gun intentionally. Id. at pp. 460, 466. Without a lesser-included third degree assault jury instruction, counsel was able to assert an "all or nothing" defense that Petitioner was innocent because there was no intentional shooting. Had counsel requested the trial court provide a jury instruction for third degree assault, counsel would not have been able to use this trial strategy. See RCW 9A.36.031(1)(d) (a person is guilty of third degree assault if, with criminal negligence, he harms another with a weapon); RCW 9A.08.010(1)(d) ("A person is criminally negligent or acts with criminal negligence when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation."); see also Dkt. 15-1, pp. 559, 561, 563-64 (jury instruction showing first and second degree assault requires the intention to inflict great bodily harm or the intention to assault another).
Furthermore, Petitioner has not provided evidence, such as a declaration from his trial counsel, supporting his assertion that counsel was deficient for failing to seek the lesser-included jury instruction. In fact, Petitioner has submitted evidence showing his counsel was aware that third degree assault could be more appropriate for the facts of the case when he attempted to reach a plea deal. See Dkt. 9-1, pp. 32-33. Evidence showing counsel was aware the case might be more appropriate under a third degree assault charge supports the state court's conclusion that counsel made a tactical trial decision to not request the lesser-included third degree assault jury instruction. Compare Van Nguyen v. Uttecht, 2017 WL 5054574, at *11 (W.D. Wash. July 21, 2017) (concluding the petitioner did not establish his counsel's performance was deficient in failing to request a specific jury instruction where the petitioner failed to provide evidence to support his assertion) with Crace v. Herzog, 798 F.3d 840, 853 (9th Cir. 2015) (finding counsel deficient for failing to request a lesser-included jury instruction where counsel explicitly stated in a declaration that he did not request a lesser-included jury instruction because he did not consider it).
Petitioner also does not assert, or provide evidence showing, the lesser-included jury instruction would have changed the outcome of the trial. For example, the jury convicted Petitioner of attempted second degree murder, which shows the jury found Petitioner acted with intent. See Dkt. 15-1, pp. 478 (finding Petitioner guilty of attempted murder in the second degree), 552, 554, 556 (jury instruction stating the crime of attempted murder occurs when, with intent to commit that crime, a person does an act that is a substantial step toward the commission of the crime). Thus, the jury found Petitioner intended to shoot the gun when they convicted him of attempted murder, negating the possibility that Petitioner acted with the lesser standard of criminal negligence. As such, Petitioner has not shown the outcome of his trial would have been different had counsel requested a jury instruction for the lesser-included-offense of third degree assault.
Petitioner has not shown the state court's conclusion that counsel did not render ineffective assistance by failing to request the jury instruction for the lesser-included-offense of third degree assault was contrary to, or an unreasonable application of, clearly established federal law, or was an unreasonable determination of the facts in light of the evidence presented at trial. See Miller v. Nooth, 403 F. App'x 291, 292 (9th Cir. 2010) (finding counsels' performance was not deficient when counsel made the strategic decision to pursue an "all-or-nothing" approach, which was compatible with the law and evidence, to obtain an outright acquittal); Hooks v. Ward, 184 F.3d 1206, 1234 (10th Cir. 1999) ("in the context of instructions on lesser included offenses, we see particular strategy reasons why a defendant might not want to present the jury with a compromise opportunity"). Therefore, the Court recommends Ground 1, the sole ground raised in the Petition, be denied.
The decision to hold an evidentiary hearing is committed to the Court's discretion. Schriro v. Landrigan, 550 U.S. 465, 473 (2007). "[A] federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which, if true, would entitle the applicant to federal habeas relief." Id. at 474. In determining whether relief is available under 28 U.S.C. § 2254(d)(1), the Court's review is limited to the record before the state court. Cullen, 563 U.S. at 181-82. A hearing is not required if the allegations would not entitle Petitioner to relief under §2254(d). Landrigan, 550 U.S. at 474. "It follows that if the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id. The Court finds it is not necessary to hold an evidentiary hearing in this case because, as discussed in this Report and Recommendation, the ground raised in the Petition may be resolved on the existing state court record.
A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of the federal habeas petition only after obtaining a certificate of appealability (COA) from a district or circuit judge. See 28 U.S.C. § 2253(c). "A certificate of appealability may issue . . . only if the [petitioner] has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
No jurist of reason could disagree with this Court's evaluation of Petitioner's claims or would conclude the issues presented in the Petition should proceed further. Therefore, the Court concludes Petitioner is not entitled to a certificate of appealability with respect to this Petition.
For the above stated reasons, the Court finds Ground 1, the sole ground raised in the Petition, should be denied as Petitioner has not shown the state courts' adjudication of this ground was contrary to, or an unreasonable application of, clearly established federal law. The Court also finds an evidentiary hearing is not necessary. Accordingly, the Court recommends the Petition be denied and a certificate of appealability not be issued.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on August 30, 2019, as noted in the caption.
THIS MATTER is before the Court the Report and Recommendation of Magistrate Judge David W. Christel [Dkt. # 25], Petitioner Pena's Objections [Dkt. #], and the underlying record.
(4) As Pena has been granted in forma pauperis, in forma pauperis may continue on appeal. See Rule of Appellate Procedure 24(a)(3).
IT IS SO ORDERED.
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THE COURT HAS ORDERED THAT:
The Report and Recommendation is adopted and approved. The Petition is denied. The certificate of appealability shall not issue.
