Pounds v. Jackson

1

ROBERT NICHOLAS POUNDS, Petitioner, v. ROBERT JACKSON, Respondent.

No. 2:23-cv-01021-JCC-DWC

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

November 8, 2023

Noting Dated: November 24, 2023

REPORT AND RECOMMENDATION

David W. Christel, Chief United States Magistrate Judge

The District Court has referred this action to Chief United States Magistrate Judge David W. Christel. Petitioner Robert Nicholas Pounds, proceeding pro se, filed his federal habeas petition, pursuant to 28 U.S.C. § 2254 seeking relief from his state court convictions and sentence. See Dkts. 1, 4. The Court concludes the state court's adjudication of the sole ground raised in the Petition was not contrary to, nor 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

On November 8, 2017, in the Superior Court of Washington for King County (“trial court”), a jury found Petitioner guilty unlawful possession of a firearm in the first degree and theft of a firearm. See Dkt. 8-1 at 2 (Exhibit 1). The Court of Appeals of the State of Washington (“state court of appeals”) summarized the facts of Petitioner's case as follows:

In 2017, 79-year-old William Hansen lived alone in a house in SeaTac. Over the course of his life, Hansen collected nearly two dozen rifles and handguns that he stored in a locked metal cabinet located in his bedroom.

Huong Vuong, an across-the-street neighbor, occasionally checked in on Hansen. On May 29, 2017, Vuong felt strange about a woman she saw outside Hansen's home, so Vuong took several pictures of the woman and a black Toyota Celica the woman drove.

On June 5, 2017, Kimberly Ausbun, Hansen's acquaintance was visiting him. Hansen left Ausbun at his home by herself while he drove to a bank in Kent. Vuong, who was holding a yard sale in front of her home, saw Hansen leave his home.

About 15 minutes after Hansen departed, Vuong saw a man park his red minivan near Hansen's house, with the front end facing Vuong's home and the rear facing Hansen's. The man then browsed Vuong's yard sale while Ausbun stood near the street and introduced herself to Vuong as “Kim.” The man took a lawn mower that Vuong was giving away for free and pushed it to his minivan. As the man pushed the lawn mower away, Ausbun told the man something akin to “‘I forgot my keys.'” Ausbun and the man hurried off and entered Hansen's house. At that point, Vuong stood in her front yard and watched Hansen's house for a little bit.

Vuong next saw the man running from the back door of Hansen's house, carrying a hefty bundle of something wrapped in fabric, towards the minivan. As the man hurried to the minivan, his eyes looked around cautiously as if to see if anyone was watching. The man placed the bundle into the back of the minivan and then ran back into the house. Finding these activities very suspicious and strange, at 1:58 p.m Vuong called 911 to report a burglary in progress.

Minutes later, at 2:06 p.m., the first of multiple King County sheriff's deputies arrived at Hansen's house for a burglary in progress. The deputies surrounded Hansen's house and one used a patrol vehicle's loudspeaker to hail the persons inside Hansen's house to come out. Ausbun exited Hansen's house first, and the man exited several minutes later. Deputies detained the man in a patrol vehicle and identified him as Robert Pounds. While clearing Hansen's house and checking for additional suspects, deputies observed an open gun cabinet in the bedroom and saw several rifles laying on the bed.

While deputies were speaking with Ausbun and Pounds, Hansen returned home from the bank. Hansen informed the deputies that Ausbun had permission to be in the house and insisted that his guns were locked away in the cabinet. Hansen kept the only key to the gun cabinet in his pocket. He refused to go inside with the deputies to inspect his gun cabinet. Deputies then released Ausbun and Pounds.

A King County sheriff's sergeant last saw Pounds in the driver's seat of the red minivan while Ausbun was outside talking to Hansen. Vuong later saw Pounds and Ausbun leave together in the red minivan. The last deputy to leave the scene-after Pounds and Ausbun drove away-departed Hansen's house at 2:45 p.m.

Shortly thereafter, Hansen entered his home and discovered his gun cabinet had been forced open and most of his guns were missing. At 3:08 p.m., Hansen called 911 to report the theft.

At 4:24 p.m., a deputy returned to Hansen's home to take a report. Hansen showed the deputy that the gun cabinet had been pried open, possibly with a crowbar from his garage that was left behind on the bed. Two rifles were left on the bed and another rifle was left on the floor. The cabinet was mostly cleaned out. From memory, Hansen gave the deputy a list of many of the makes and calibers of his missing guns. Among the 10 firearms identified on Hansen's list of missing guns were three revolvers: a Harrington & Richardson .22-caliber revolver, a Colt .22-caliber revolver, and a Ruger .357-caliber revolver.

At 5:13 p.m., another deputy who had been responding to a medical emergency within five minutes of Hansen's house, responded to a report of an abandoned vehicle. According to nearby residents, a female driver noticed the medical emergency activity, turned into their driveway, exited the vehicle, and ran through their backyard.

Upon arrival, the deputy noticed the abandoned black Toyota Celica, with its windows down and doors unlocked, damaged ignition, and missing stereo. The deputy suspected the vehicle was stolen, and he could not reach the registered owner. While impounding the Toyota Celica and inventorying its contents, the deputy discovered a backpack in the trunk that contained three handguns: a Harrington & Richardson .22-caliber revolver; a Colt .22-caliber revolver, and a Ruger .357-caliber revolver. Later that evening, the deputy conducted a search that revealed Hansen to be the registered owner of the Colt .22-caliber revolver.

On June 8, 2017, a sheriff's detective began investigating Hansen's stolen firearms. The detective interviewed Vuong and Hansen, and showed photo montages containing Pounds and Ausbun to the residents who had witnessed the woman abandon the Toyota Celica, but they were not able to make any identifications.

On June 13, 2017, the detective and his sergeant went in search of Pounds to arrest him and located him driving the red minivan in between Burien and Seattle. Upon arrest, the detective found a single round of .22-caliber ammunition in Pounds' pants pocket. The detective also saw Ausbun walking with another woman nearby.

After obtaining a search warrant, on June 14, 2017, the detective and sergeant searched the red minivan and collected various items, including a wallet containing bank cards in Pounds' name, Pounds' driver's license, an Olympic .22-caliber pistol, two loaded magazines that fit the pistol, ammunition contained in the magazines, a green military-style ammunition can that contained old gun-cleaning supplies, and a brown rifle-cleaning kit.

On August 4, 2017, the State charged Pounds with unlawful possession of a firearm in the first degree (count 1) and theft of a firearm (count 2). The bifurcated trial commenced before a King County jury on November 2, 2017. The State called several witnesses to testify at trial, including Vuong, Hansen, and several King County sheriff's officers.

At trial, Vuong testified that the woman she photographed on May 29, 2017, who drove a black Toyota Celica was the same woman who identified herself as “Kim” on June 5, 2017. Vuong also testified that she did not see anybody else besides Hansen go into his house after Ausbun, Pounds, and the sheriff's officers left the scene.

In pertinent part, Hansen testified that when he went to the bank on June 5, 2017, his gun cabinet was locked and nothing was on his bed. He explained to the jury that although he left Ausbun in his house to take a shower that day, he did not give her permission to have anyone else at the house in his absence. Upon his return from the bank, Hansen saw only a “[b]unch of cops” and Ausbun standing outside his home, but had neither seen Pounds nor had he ever heard of Pounds.

Hansen also recognized the gun cleaning kits and firearms that were stolen from his home and identified several of those items for the jury. Hansen testified about buying a military ammunition can (containing gun cleaning material) in the late 1950's from an Army surplus store around the time he got out of the Navy. He explained that he realized his gun cleaning supplies were missing when he “talked to the cops that day, and they said my safe is broken.” He also identified the pistol that sheriff's officers located in the minivan as his Chinese-made, .22-caliber copy of a pistol from the 1936 Olympics, equipped with a counterweight to “make it easier to hold.”

Deputy Joe Emrick provided testimony matching the license plate number of the abandoned black Toyota Celica on June 5, 2017, and the license plate number of the Celica that Vuong photographed on May 29, 2017. Detective Benjamin Wheeler testified that upon showing Hansen some of the recovered firearms, Hansen had “immediate reactions to seeing them, and immediate commentary on them.” Detective Wheeler described the contents of the green military ammunition can and brown rifle cleaning kit that he discovered in the red minivan. Upon showing these two cleaning kits to Hansen, Detective Wheeler explained how Hansen was able to describe their contents without either of those containers being opened. Detective Wheeler also testified that Hansen consistently estimated that 12 of his firearms

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