Crow v. Hayes

Filing 72

ORDER denying 71 Objections to 68 REPORT AND RECOMMENDATION, signed by Judge Robert J. Bryan. **3 PAGE(S), PRINT ALL** (Tommy Crow, Prisoner ID: 773446) (ERA)

Case 3:16-cv-05277-RJB Document 72 Filed 09/10/20 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TOMMY LEE CROW,

CASE NO. 16-5277 RJB
Petitioner,

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v.

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ORDER ON PETITIONER’S
OBJECTION TO REPORT AND
RECOMMENDATION

RON HAYNES,

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Respondent.

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THIS MATTER comes before the Court on the Petitioner’s Objections to the Report and

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Recommendation. Dkt. 71. The Court has considered the pleadings filed regarding the motion

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and the remaining file.

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On August 20, 2020, a Report and Recommendation was filed in this case recommending

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that no evidentiary hearing be held, the Petitioner’s grounds for relief be denied, and the petition

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be dismissed. Dkt. 68. It also recommended that a certificate of appealability issue. Id. The

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Report and Recommendation was noted for consideration on September 4, 2020. Id. On

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September 8, 2020, the Report and Recommendation was adopted and judgment was entered.

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ORDER ON PETITIONER’S OBJECTION TO REPORT AND RECOMMENDATION - 1

Case 3:16-cv-05277-RJB Document 72 Filed 09/10/20 Page 2 of 3

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Dkt. 69 and 70. On September 9, 2020, Petitioner’s objections were docketed; they were filed on

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September 4, 2020. Dkt. 71. The Court should consider the Petitioner’s objections and

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determine if the decision to adopt the Report and Recommendation should be affirmed.

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The Petitioner’s objections do not provide grounds to reject the Report and

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Recommendation. The order adopting the Report and Recommendation (Dkt. 69) should be

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affirmed.

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The Petitioner asserts that an evidentiary hearing is required because no reasonable jurist

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could find the state court’s findings reasonable. Dkt. 71. He contends that his post-conviction

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hearing, which was ordered by the court of appeals, should have been held in the court of appeals

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and not the superior court because the of superior court’s bias for the prosecutor. Id. Petitioner’s

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objection is without merit. Aside from his own speculation, he offers no basis from which to

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conclude that the state superior court was biased.

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Under the heading “Admission of Assault,” the Petitioner argues that the Report and

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Recommendation failed “to address whether the trial court erred in finding [by] a preponderance

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of evidence that [he] actually assaulted Cover” and that the record indicates he was not involved.

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Dkt. 71. He maintains that “no reasonable jurist[] could establish that there was enough

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evidence to meet the first prong of 404(b)” or that he was not substantially prejudiced. Id.

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Contrary to the Plaintiff’s assertions, the Report and Recommendation properly addresses the

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trial court’s decision to admit evidence of the prior assault on Cover. Further, the Petitioner

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offers no support for his contentions – just his own suppositions.

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The Petitioner argues that the Report and Recommendation failed to address the
prosecutor’s failure to disclose exculpatory evidence. Dkt. 71. The Report and Recommendation

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ORDER ON PETITIONER’S OBJECTION TO REPORT AND RECOMMENDATION - 2

Case 3:16-cv-05277-RJB Document 72 Filed 09/10/20 Page 3 of 3

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did discuss Plaintiff’s contention that that the prosecutor failed to disclose the letters and

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concluded that his claim “lacks merit.” Dkt. 68, at 22-25.

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The Petitioner repeats assertions from his reply related to the Christopher Durga’s

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testimony and his ineffective assistance of counsel claims. Dkt. 71. Each are addressed in the

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Report and Recommendation and his arguments offer no grounds to reject the Report and

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Recommendation.

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After considering the Petitioner’s objections, the decision to adopt the Report and

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Recommendation was proper. The decision to adopt the Report and Recommendation should be

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affirmed.

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It is ORDERED that:
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The Order Adopting the Report and Recommendation (Dkt. 69) IS AFFIRMED;
and

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The case IS DISMISSED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and
to any party appearing pro se at said party’s last known address.
Dated this 10th day of September, 2020.

A
ROBERT J. BRYAN
United States District Judge

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ORDER ON PETITIONER’S OBJECTION TO REPORT AND RECOMMENDATION - 3