REPORT AND RECOMMENDATION
NOTED FOR: NOVEMBER 20, 2015
The District Court has referred this petition for a writ of habeas corpus to United States Magistrate Judge, J. Richard Creatura. The authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4. Petitioner seeks relief from a state conviction, thus, the petition is filed pursuant to 28 U.S.C. § 2254.
Petitioner Andre Parker seeks § 2254 habeas relief from his 2010 convictions by jury verdict for attempted first degree murder. Dkt. 4; Dkt. 19. Petitioner raises three grounds for relief including insufficient evidence, admission of prejudicial evidence and prosecutorial misconduct. Dkt. 4. Respondent argues that petitioner failed to properly exhaust any of his claims. Dkt. 18. The Court ordered respondent to expand the record with additional state court documents as to the issue of incorporation by reference and allowed respondent to supplement his answer. Dkt. 21. Respondent filed his supplemental answer and the supplemental state court record. Dkts. 23, 24, 25, 26. Respondent's supplemental answer argues that incorporation by reference did not exhaust petitioner's claims but that even if petitioner sufficiently exhausted ground one, petitioner's claim fails on the merits. Dkt. 24 at 7. Petitioner did not file a reply.
In this case, petitioner's incorporation by reference of the relevant facts and legal arguments from his co-defendants' briefs did not fairly exhaust the appellate review process, as it did not fully apprise the state court of petitioner's federal constitutional claims nor give the state a full opportunity to respond to the claims. As a result, petitioner failed to fairly present grounds one, two, and three under federal law by invoking one complete round of Washington state court appellate review and, therefore, has not exhausted his state remedies. Furthermore, petitioner has already filed one personal restraint petition and does not demonstrate cause and prejudice or a fundamental miscarriage of justice; therefore, he is procedurally barred from filing another collateral challenge. Accordingly, the undersigned recommends dismissing grounds one, two, and three as unexhausted and procedurally barred.
Although this Court recommends that ground one be dismissed because petitioner failed to exhaust the claim, because this is a close question, the Court also evaluated the merits of ground one and finds that petitioner failed to show that the state appellate courts' adjudication of ground one was contrary to, or an unreasonable application of, clearly established federal law. The undersigned also recommends denying the issuance of a certificate of appealability.
OVERLENGTH SUPPLEMENTAL ANSWER As an initial matter, when the Court ordered respondent to provide the appellate brief of co-defendant Randall Embry, the Court further stated that respondent could supplement hisanswer with an additional four pages of briefing to be within the 24-page limit, citing Local Rule 7(e). Dkt. 21. In respondent's supplemental answer, he contends that Local Rule 7 does not apply to answers. Dkt. 24. at 2. Further, respondent states that he found it necessary to exceed the four-page limit in his supplemental answer and requests that the Court accept all additional pages. See id.
The Court finds that Local Rule 7 does apply to responses or answers to habeas petitions because this Court's previous order directing service said it applied. As stated in the Court's order directing respondent to file an answer:
(2) Within forty-five (45) days after such service, respondent(s) shall file and serve an answer in accordance with Rule 5 of the Rules Governing Section 2254 Cases in United States District Courts. As part of such answer, respondent(s) shall state whether petitioner has exhausted available state remedies and whether an evidentiary hearing is necessary....
(3) The answer will be treated in accordance with LCR 7.
Dkt. 8 at 2 (Emphasis added to subsection (3)). However, upon review of the record and the previously filed answer, the Court finds good cause for permitting an over-length answer. The petition contains multiple claims and Rule 5(b) of the Rules Governing Section 2254 Cases provides that the "answer must address the allegations in the petition." Accordingly, the Court grants respondent's request to consider all pages of his supplemental answer (Dkt. 24).
BASIS FOR CUSTODY AND FACTS Petitioner was convicted by jury verdict of attempted first degree murder committed on February 24, 2009. Dkt. 19, Exhibit 1. He was sentenced to 351 months of confinement and 36 months of community custody. Id.
The Washington Court of Appeals summarized the facts in petitioner's case as follows:
In the early morning of New Year's Day 2009, at the 54th Street Bar and Grill in Tacoma, a fight broke out between Andre Parker and Michael Nelson, Tyrick Clark's friend. Clark and another friend, "Cornelius," observed the fight; and, according to Clark, Parker swung at Cornelius. Clark then retaliated, hitting Parker in the mouth. Parker was a member of the Hilltop Crips, a Tacoma street gang; Clark was a member of the Young Gangster Crips (YGC).
On February 23, 2009, Clark and Nicole Crimmins went to McCabe's, a Tacoma nightclub. Clark saw Parker at McCabe's that night, and although he did not interact with Parker that night, Clark's impression was that the two had not resolved their issues stemming from their New Year's morning fight.1 Curtis Hudson, a McCabe's patron, confirmed that he understood Parker and Clark had a "beef" with one another stemming from their earlier fight. 6 Verbatim Report of Proceedings (VRP) at 908.
Embry and Morgan, two Hoover Crip gang members, also visited McCabe's that night. Clark did not know Embry or Morgan. While at McCabe's, Clark visited with an acquaintance about the New Year's morning fight with Parker, and Embry briefly approached and tried to interject himself into Clark's conversation. Later that night, as he descended a McCabe's stairwell, Clark inadvertently kicked Embry's shoe as Embry visited on the stairs with Morgan.
Just before closing, Clark and Crimmins left McCabe's and walked toward their vehicle, which was parked along an adjacent street. As they neared their vehicle, a man wearing a hoody—later identified by Crimmins and Clark as Embry—approached them from behind another car parked along the same street. As Clark and Crimmins were about to pass Embry, Embry pulled out a gun and shot Clark several times. As Clark fell to the ground, Embry went to a nearby car. Embry entered the car's backseat. Crimmins followed Embry, called 911, and relayed the car's description and license plate number to the dispatcher.
As Embry departed, off-duty Tacoma police officers Scott Stanley and David Fischer, both moonlighting at McCabe's, arrived at the scene.2 An emotional Crimmins initially told the officers that the shooter got into a white Caprice with license plate number 698-YNT. After she calmed down, she described the car as a "silver Ford Escort-type vehicle." 2 VRP at 268.
Other witnesses also heard the gunshots. Telon Walker, Clark's cousin, was standing outside McCabe's when he heard the gunshots. He turned toward the gunshots, saw Crimmins and a body on the ground, and ran in that direction. Walker witnessed a 2006 to 2008 four-door "grayish, light mauve, tan color"Impala drive away from the scene. 5 VRP at 768. Before the car departed, he saw two men get into the car: one wearing a red hoody climbed into the rear, passenger side, and one wearing a dark hoody climbed into the rear, driver side. Walker added that earlier he had seen Morgan wearing the red hoody at McCabe's. Following the gunshots, Hudson witnessed a man in a "red sweatshirt, hoody sweatshirt" running away from the shooting. 6 VRP at 913. He recognized the red sweatshirt as that which Morgan wore that evening. Manuel Hernandez also turned toward the gunfire immediately after hearing shots. He saw a man with a "five-point star" tattoo on his neck,3 Embry, running from the shooting scene with another man. 6 VRP at 974. Embry carried a gun in his right hand.
SECURITY VIDEO FOOTAGE
McCabe's surveillance cameras partially captured the events in and around McCabe's. At 11:36 p.m. Embry entered McCabe's. Shortly after midnight, Morgan and Parker entered together. Parker wore a gray, blue, and white jacket with a hood; blue jeans; and white shoes. Morgan wore a red hoody. Embry wore a black and white hoody and a Houston Astros baseball cap. Video footage depicts Parker, Embry, and Morgan interacting with each other, as well as with others. Between 1:48 and 1:52 a.m., the three left McCabe's and visited in front of McCabe's. Clark exited the club at 1:51 a.m.
Embry and Morgan then jogged out of the picture toward Clark's parked van. Parker followed, walking in the same general direction. Then, at 1:53 a.m., Clark and Crimmins walked together in that same direction toward Clark's vehicle. Almost two minutes after Clark and Crimmins left, walking toward their vehicle, everyone in front of McCabe's turned their heads toward the direction that Parker, Embry, Morgan, Crimmins, and Clark had all gone. The cameras did not capture the shooting.
STOLEN VEHICLE REPORT
Within seconds of the shooting, Crimmins had provided officers the license plate number on the getaway car, 698-YNT; and, authorities alerted officers to watch for this vehicle. Less than two hours after the shooting, Tacoma Police Officer Mikael Johnson received a stolen vehicle report filed by Parker for a rented, dark gray or silver 2009 Chevy Impala with license plate number 648-YNT. Officer Johnson noted that this vehicle appeared "similar in description and license plate number to a vehicle from the McCabe
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