Petition for Writ of Certiorari — Demicko Billie Thomas, Petitioner v. Maggie Miller-Stout, Warden, et al.

Supreme Court briefNov 27, 2019

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No.

S-S098 AplAfl^

IN THE SUPREME COURT OF THE

UNITED STATES

Supreme Court, U.S.

FILED

October term, 2019-2020

NOV 2 7 2019

OFFICE OF THE CLERK

DEMICKO BILLIE THOMAS,

Pro Se Petitioner,

THE STATE OF WASHINGTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

FOR THE NINTH CIRCUIT

DEMICKO BILLIE THOMAS Pro Se Petitioner

Staf ford'. Creek. .Correctional 8,Ceil ter

191 Constantine Way

Aberdeen, Washington 98520

QUESTIONS PRESENTED

WHETHER THE WASHINGTON STATE SUPREME COURT'S

DISAPPROVING OF THIS COURT'S DECISION IN

MUSACCHIO V. UNITED STATES,

U.S.

136 S.Ct. 709 (2016), IS BINDING ON THIS

COURT AND THE NINTH CIRCUIT COURT OF APPEALS.

WHETHER THE FOURTEENTH AMENDMENT REQUIRES EACH

AND EVERY ELEMENT OF A CHARGED OFFENSE TO BE

PROVEN BEYOND A REASONABLE DOUBT.

No.

IN THE SUPREME COURT OF THE

UNITED STATES

October term, 2019-2020

DEMICKO BILLIE THOMAS,

Pro Se Petitioner,

THE STATE OF WASHINGTON,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS,

FOR THE NINTH CIRCUIT

Petitioner Demicko Billie Thomas, respectfully prays that a

writ of Certiorari issue to review the decision of the Ninth

Circuit Court of Appeals, entered on August 30, 2019.

TABLE OF CONTENTS

OPINIONS

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED . .

STATE STATUTORY PROVISIONS

2, 3

STATE RULES OF COURT

3, 4

STATEMENT OF THE CASE

REASONS FOR GRANTING THR WRIT

CERTIORARI IS APPROPRIATE TO DECIDE WHETHER

THE WASHINGTON STATE SUPREME COURT'S

DISAPPROVAL OF THIS COURT'S DECISION IN

MUSACCHIO V. UNITED STATES, IS BINDING ON

THE NINTH CIRCUIT AND THIS COURT ................

WHETHER THE FOURTEENTH AMENDMENT REQUIRES

EACH AND EVERY ELEMENT OF A CHARGED

OFFENSE BE PROVEN BEYOND A REASONABLE DOUBT . .

CONCLUSION

y y

TABLE OF AUTHORITIES

FEDERAL CASES

Apprendi v. New Jersey, 530 U.S. 466 (2000) ....

Bradshaw v. Richey, 546 U.S. 74 (2005) ..................

16, 19

City of Chicago v. Morales, 527 U.S. 41 (1999) . .

Cooter & Gell v. Hartmark, 490 U.S. 384 (1990) . .

Cupp v. Naughten, 414 U.S. 145 (1973) ......................

.16

Engle v. Isaac, 456 U.S. 107 (1982) .........................

Estelle v. McGuire, 502 U.S. 62 (1991) ..................

Henderson v. Kibbe, 431 U.S. 145 (1977) ..................

Hicks ex rel. Feiock v. Feiock, 483 U.S. 624 (1988)

In re Winship, 397 U.S. 318 (i970) ......................

6, 8, 9, 11, 21, 23, 24

Jackson v. Virginia, 443 U.S. 307 (1979) ...............

10, 11, 12, 13, 14, 24

LeLand v. Oregon, 343 U.S. 790 (1952) ....

Lehman Bros. v. Shein, 416 U.S. 386 (1974) .

Martin v. Ohio, 480 U.S. 288 (1987) ...............

16,1 17

McMillian v. Pennsylvania, 470 U.S. 41 (1990)

Mullaney v. Wilbur, 421 U.S. 689 (1975) .

Musacchio v. United States,

U.S.

, 136 S.Ct. 709

(2016) .................................

6, 9, 13, 14, 15, 16, 17, 19, 20, 23, 24

Patterson v. New York, 480 U.S. 228 (1987)

16, 17

Uttecht v. Brown, 127 S.Ct. 2218 (2007) .

TABLE OF AUTHORITIES

STATE CASES

Louisiana v. Pacific Corp. v. Asarco, 131 Wn.2d 587, 934

P.2d 685 (1997)...........................................................

State v. Johnson, 188 Wn.2d 742, 399 P.3d 507

(2017) ......................................................................

6, 13, 16, 19, 20, 23

State v. Pierce, 155 Wn.App. 701, 230 P.3d 237 (2008)

21, 22

State v. Receunco, 163 Wn.2d 428, 180 P.3d 1276 (2008) . .

8, 9, 19. 22

FEDERAL CONSTITUTION AND STATUTES

U.S. Const. Amend. XVI

2, 6, 8, 20, 21, 23

28 U.S.C. § 2254

13, 14

AEDPA

STATE STATUTORY PROVISION

Former Revised Code of Washington 9.41.010 . . .

2, 5, 10, 18

Former Revised Code of Washington 9.94A.310 . . .

3, 5

STATE RULES OF COURT '

Washington Criminal Practice in Courts of Limited Jurisdiction:

Chapter 22 Jury Selection and Instructions: Part VII: Jury

Instructions § 22.17: Purpose of Instructions Generally . . . .

Washington Criminal Practice in Limited Jurisdiction:

Chapter 22 Jury Selection and Instructions: Part VII: Jury

Instructions § 22.19: Making Objections to Instructions . . . .

Washington Criminal Practice in Courts of Limited Jurisdiction:

Chapter 23 Felony Sentencing Part: Overview of Washington

State Sentencing Reform Act (of 1981 SRA) § 23.05

Mandatory Sentence Enhancements-Overview .................................

iii

OPINIONS BELOW

The Washington State Court of Appeals Division One, issued its

unpublished opinion in this case on July 23, 2007. A copy of that

opinion is attached as Appendix A. On August 22, 2007, a petition for

review was filed in the Washington State Supreme Court, attached as

Appendix B. On April 30, 2008, the court issued a one-page order denying

review. A copy of the order is attached as Appendix C. On

, a personal restraint petition was filed within the Washington State

Court of Appeals Division One, and was dismissed, based upon an ineffective

assistance claim, that the court claimed did not meet an enumerated

exception. A copy of the order is attached as Appendix D.

On May 6, 2015, the Washington State Supreme Court denied review. A

copy of the order is attached as Appendix E. On April 4, 2018, the United

States District Court Western District of Washington State, at Seattle,

issued its Order adopting the Report and Recommendations, denying the

issuance of the writ, Chief United States District Judge Ricardo S.

Martinez presiding.

Justice Martinez, expressing, "with regard tp Claim One, the

conflicting case law within the three divisions of the Washington State

Court of Appeals, and the lack of clear precedent by the Washington State

Supreme Court, surrounding the level of sufficient evidence to prove a

firearm operable for purposes of a sentencing enhancement. This court

will therefore approve the issuance of a COA, limited solely to the

determination of whether under Claim One sufficient evidence existed for

any rational factfinder to find beyond a reasonable doubt,

that at the

time of the underlying crime Thomas, possessed an operable firearm, for

purposes of the sentencing enhancement. A copy of the Report and

Recommendation is attached as Appendix F, Dkt.122, at 13. FN 1.

The Ninth Circuit Court of Appeals upon being briefed, scheduled

oral arguments for August 28, 2019, cancelling the proceeding a couple

days prior, issuing an unpublished opinion affirming on August 30, 2019.

A copy of the unpublished opinion is attached as Appendix G. This

petition is timely filed.

JURISDICTION

On August 28, 2019, the Ninth Circuit Court of Appeals affirmed

the district court's Report and Recommendation. This Court has jurisdiction

pursuant to 28 U.S.C. sections 1257 and 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Federal Constitutional Provisions

The Fourteenth Amendment to the United States Constitution provides

in relevant part: [N]or shall any state deprive any person life, liberty,

or property, without due process of law ....

State Statutory Provisions

Former Revised Code of Washington 9.41.010(1)(2001), provides:

A "firearm" is defined as "a weapon from

which a projectile or projectiles may be

fired by an explosive such a gunpowder."

FN 1 Citations to "Dkt" denotes opinions or pleadings filed within the

district court. Citations to "Dktt" denotes opinions or pleadings

filed within-the Ninth Circuit.

Former Revised Code of Washington 9.94A.310(3), provides in part:

The following additional time shall be

added to the presumptive sentence for

felony crimes committed after July 23, 1995,

if the offender or an accomplish was armed

with a firearm as defined in RCW 9.41.010,

and the offender is being sentenced for one

of the crimes listed in this subsection as

eligible for any firearm enhancements based

on the classification of the completed

felony crime.

(a) Five years for any felony defined under

any law as a class A felony or with a

maximum of twenty years.

(b) Three years for any felony defined under

any law as a class B felony or with a

maximum of ten years.

under any law as a class C felony or with

a maximum sentence of five years.

State Rules of Court

Washington Criminal Practice in Courts of Limited Jurisdiction:

Chapter 22 Jury Selection and Instructions: Part VII: Jury Instructions

§ 22.17: Purpose of Instructions Generally, reads:

Jury instructions are intended to furnish

guidance to the jury in its deliberations and

to the extent permissible, allow the court to

aid the jury in reaching a proper verdict.

They are used to explain the law of the case,

point out the essentials to be proved by one

side or the other, and discuss the relationship

between the particular evidence admitted and

the issues.

vWashihgtpnCCfeimihallPractice in Courts of Limited Jurisdiction:

Chapter 22 Jury Selection and Instructions: Part VII: Jury Instructions

§ 22.19: Making Objections to Instructions, reads:

Before instructing the jury the lawyers for

each party must be given a copy of the court's

proposed numbered instructions, verdict forms,

and special finding forms. Counsel for each

party must be given the opportunity, outside

the presence of the jury to object to giving

(or the refusal to give), any instruction or

submission of a verdict or special finding

form. Any objections to be instructions as

well as the grounds for the objections, must

be put in the record to preserve review. When

making an objection, the party shall state the

reasons for the objection, specifying the

number, paragraph and part of the instruction

to be given or refused. CrR 6.15(c).

Washington Criminal Practice in Courts of Limited Jurisdiction:

Chapter 23 Felony Sentencing: Part II: Overview of Washington State

Sentencing Reform Act of 1981 (SRA) § 23.05 SRA Mandatory Sentence

Enhancements-Overview, reads, in relevant part:

A mandatory sentence enhancement must be pled

any proved to a jury beyond a reasonable doubt.

In Apprendi v. New Jersey, 530 U.S. 466, 120

S.Ct. 2348, 147 L.Ed.2d 435 (2000), the Court

held, that for purposes of the Sixth Amendment

right to a jury trial and the Fourteenth

Amendment right to due process, the

prosecution must prove to a jury, beyond a

reasonable doubt and fact necessary to increase

the statutory maximum penalty for the charged

crime.

STATEMENT OF THE CASE

In a charging information filed on January 7, 2002, the State charged

petitioner Demicko Billie Thomas, in King County Superior Court with

one count of first degree robbery and two counts of first degree

kidnapping, stemming from an incident alleged to have occurred on

December 28, 2002. In an amended information filed on April 15, 2003,

the State included the following additional allegation to each count:

And I, further do accuse the defendant DEMICKO

BILLIE THOMAS, at said time of being armed

with a handgun, a firearm as defined in RCW

9.41.010, under the authority of RCW 9.94A.

310(3). FN 2.

The trial court's "to convict" instruction required the State to prove

three, separate, essential elements beyond a reasonable doubt:

For purposes of a special verdict the State

must prove the defendant guilty of the court

to which the special verdict pertains and in

addition the State must prove each of the

following elements beyond a reasonable doubt.

(l) That the defendant was armed with a firearm

at the time of the commission of the crime;

and

(2) That the firearm was capable of discharging

a projectile by an explosive such as

gunpowder; and

(3) That the firearm was operable at the time

of the commission of the crime.

Jury Instruction No.32. Appendix H.

The State offered no objection to the elements of the instruction it

were required to prove, other than the formatting of the proposed

instruction, expressing:

Your Honor, the WPIC's want the special verdict form to be

in the nature of interrogatories, rather than the

elemental to convict instruction. I, think we should be

consistent with the WPIC's in this nature. And we have

defined within the instructions, defining the special

verdict form of all those elements, or what the State

would have to prove. I, do not think they should be in an

element form, I, would like them to be consistent with the

WPIC's.

FN 2 The defined definition of a "firearm" as expressed in Revised

Code of Washington 9.41.010, in conjunction with Former Revised

Code of Washington 9.94A.310(3), when filed within a charging

information, authorizes the State to seek an enhancement penalty.

When asked by the court, whether the State had any exceptions to the

final instructions, as proposed the State replied, "no." RP 15-16, 23, 2526. FN 3. Appendix I.

The State's failure to object to the essential elements it were

required to prove beyond a reasonable doubt, provided the Washington State

Supreme Court became the "law of the case." See e.g., State v. Johnson, 188

Wn.2d 742, 399 P.3d 507 (2017)(our law of the case doctrine requires the

State to prove every element of the ”to-convict" instruction beyond a

reasonable doubt).

Further, expressing, "in Musacchio v. United States,

U.S.

136 S.Ct. 709 (2016), the Supreme Court rejected a "law of the case"

argument and held, "that Due Process requires only that evidentiary

sufficiency claims be assessed against the elements of the charged crime,

not against the erroneously heightened command in the jury instructions. If ft

Because our "law of the case" doctrine does not rest on federal due process

principles, this long standing procedural rule remains intact. Johnson, 188

Wn.2d at 747.

Relying upon Washington State's "law of the case" doctrine and the

Court's "proof beyond a reasonable doubt" mandate set forth in In re

Winship, 397 U.S. 358 (1970). Mr.Thomas, contended on direct appeal and

within both the federal district court and Ninth Circuit Court of Appeals,

, that he was deprived of his Fourteenth Amendment right to due process of

law. Because as a matter of federal and state law, "the Due Process Clause"

protects an accused against conviction, except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime for which he

FN 3 Citations to "RP" denote the Reporter's Trial Transcript, followed

by the page reference. Citations to "Br." denote the briefings filed

within the Washington State Court's.

is charged. Br.6-12. Appendix J.

The state court of appeals rejected the burden of proof standard set

forth in Winship, expressing, "the prosecutor was not required to prove the

operability element, and whether the firearm was operable does not matter."

Appendix A, at 5.

Mr.Thomas, subsequently filed a personal restraint petition within

the Washington State Court of Appeals, praying of the court to reexamine the

issue in the interest of justice, and to acknowledge the Winship, proof

beyond a reasonable doubt standard. The court declined to do so,

"expressing, "Thomas's claims involving insufficiency of the evidence are

without merit." Appendix D, at 3-4. Thomas, asserts the State failed to

establish that the firearm was operable for purposes of the firearm sentence

enhancements. But this claim was raised and rejected in Thomas's first

appeal. A petitioner may not renew issues that were considered on direct

appeal, unless the interests of justice require relitigation of those

issues. Thomas, does not demonstrate that the interests of, justice require

allowing him to relitigate these claims. Appendix D, at 3-4.

Mr.Thomas, sought review in the Washington State Supreme Court,

contending: (l) the lower court's reasoning on direct appeal, i.e., "whether

the firearm was operable does not matter, the prosecutor only needed to show

that the gun appeared real, rather, than a toy," is inopposite of the

explicit jury instruction, which required the prosecution to prove the

firearm was "operable" at the time of the commission of the offense, (2) the

Washington State Supreme Court has expressed, in regards to the

"operability" element, "the State must introduce facts upon which the jury

could find beyond a reasonable doubt the weapon in question meets the

defintion of an "operable" firearm": A weapon or device from which a

projectile may be fired by an explosive such as gunpowder," see State v.

Recuenco, 163 Wn.2d 428, 437, 180 P.3d 1276 (2008), (3) Washington State's

law of the case doctrine required the State to prove every element of the

"to-convict" instruction beyond a reasonable doubt, and (4) federal

constitutional due process under Winship, required the State to prove each

and every element of the offense before a conviction could be lawful. Br.2121. Appendix L.

The court commissioner blocked Mr.Thomas's petition for review from

being reviewed by the Washington State Supreme Court, to determine whether

the Washington State Court of Appeals finding was in conflict with its

decision in Recuenco; the court's law of the case doctrine; federal and

state due process; and Winship's proof beyond a reasonable doubt, mandate.

Expressing, "Mr.Thomas, raised this issue in his first appeal, in

challenging the firearm enhancements. The court of appeals there held, "that

the evidence was sufficient to show that Mr.Thomas was armed with a real

gun." Mr.Thomas, does not show the interests of justice require

reexamination of this issue. Appendix E, at 3.

Upon exhausting all of his state remedies'Mr.Thomas, filed a writ of

habeas corpus within the United States District Court Western District of

Washington, at Seattle. In relevant part, contending, in Claim One: That the

state court's violated his Fourteenth Amendment right to due process of law.

Due process required the State to prove three essential elements of the

firearm enhancement allegation, specifically, "that the object used

in the December 28th incident was "operable" " Dkt.70, at 23-28.

Mr.Thomas, subsequently filed a motion under 18 U.S.C. § 3006A, for

appointment of counsel. The court granted Mr.Thomas's motion.

Counsel virgously argued: (1) there was insufficient evidence in the

record that the firearm was operable, (2) an essential element of Thomas's

firearm enhancements was that he possesed a firearm that was operable at the

time of the commission of the crime, (3) in addresssing Mr.Thomas's claim

the State mistakenly asserts that he does not contend that the prosecution

failed to prove the statutory elements, but rather that the jury

instructions added an element to the sentence enhancements that required the

firearm operable, it argues that this claim is disposed of by Musacchio v.

United States, which held, "that review of the sufficiency of the evidence

does not rest on how the jury was instructed." The State mischaracterizes

Thomas's sufficiency claim, (4) under Washington law, before a defendant's

sentence can be enhanced the State must prove beyond a reasonable doubt that

the defendant was armed with a firearm, the Washington State Supreme Court

.interprets this language to require a gun to be operable, and (5) as a

matter of federal constitutional law a conviction based on evidence that

fails to meet the Winship, standard is an independent constitutional

violation. Dkt.92, at 2-4.

Counsel further, in respect to the magistrate's Report and

Recommedation, vigorously argued: (1) the Recuenco, court's statement that a

weapon is not a firearm under statutory language unless it is operable was

based directly on the plain statutory language defining "operability" and

firearm. Under this definition the State was required to prove the alleged

firearm was operable beyond a reasonable doubt. That was not done here,

lower court's cannot simply rewrite the legislature's statutory definition,

(2) no gun was admitted into evidence, (3) no expert testified that it was a

firearm or that it was operable or could be made operable, (4) no bullets

were recovered, (5) no muzzle flashes, and (6) the State provided no

evidence that would prove that the object held, by Mr.Thomas, was a firearm

as defined by RCW 9.41.010(9), the evidence supporting his firearm

enhancements did not meet the Jackson, standard, the absence of any evidence

that the firearm was "a weapon or device from which a projectile may be

fired by an explosive such as gunpowder made affirmance by the Washington

State Supreme Court," is an unreasonable application of Jackson. FN 4.

Dkt.94, at 3-6.

Mr.Thomas, upon reviewing counsel's objections to the Report and

Recommendation, subsequently filed a motion within the court for permission

to file the objections to the Report and Recommendation upon his own behalf.

For purposes of objecting to additional issues, thereby, perfecting the

record, in the event the filing of a COA were required. The court granted

Mr.Thomas's motion

Specific to the issue before the Court, Mr.Thomas, made the following

objections: (1) the magistrate failed to apply the Jackson, standard with

explicit reference to the substantive elements, as defined by state law,

constituting an abuse of discretion, (2) the magistrate's view of what he

FN 4 Jackson v. Virginia* 443 U.S. 307 (1979).

assumed the explicit instruction required the State to prove for purposes of

the "operability" element. Should yield to the Winship, proof beyond a

reasonable doubt standard, (3) Washington State's law of the case doctrine

required the State to prove each and every element of the to-convict

instruction, (4) the magistrate's asserted speculation as the basis to form

a speculative conclusion, cannot be the basis for subverting the application

of the Jackson, standard with explicit reference to the substantive elements

as defined by state law, and (5) requested of the court to certify the

question to the Washington State Supreme Court as to the "operability"

burden of proof requirement. Dkt.108, at 4-13. FN 5.

Consequently, Chief Judge Martinez, adopted the Report and

Recommendation, expressing, "as to Claim One, petitioner raises a number of

objections." First. Petitioner, argues that the magistrate judge erred by

failing to apply Jackson, to evaluate whether the substantive elements of

the crime were proven. Second. Petitioner, argues that there was no evidence

presented that supports that the gun used in the robberies was either

operable or a firearm, in fact. Third. Petitioner, argues that the

magistrate erred in not following the law of the case doctrine, requiring

the State to prove each and every element named in the jury instructions.

Finally. Petitioner, argues that the State court holding, "whether the gun

was operable does not matter, the prosecution only needed to show that the

gun appeared real, rather, than a toy, was contrary to, and an unreasonable

FN 5 Mr.Thomas, .within the scope of his objections to the Report and

Recommendation, prayed of the court to certify the question as to the

"operability" burden of proof requiremnt, provided, Revised Code of

Washington 2.60.020; Louisiana-Pacific Corp v. Asarco, 131 Wn.2d 587,

934 P.2d 685 (1997); Lehman Bros. v. Shein, 416 USS. 386 (1974). The

district court did not make such inquiry. Dkt.108, at 13.

application of federal law." Dkt.122, at 2-3. Appendix F. Holding, the

magistrate was not required to determine whether he felt the evidence was

sufficient to prove every element beyond a reasonable doubt, only whether

any rational trier of fact could have found that it did. Id. at 3.

Further, expressing, as previously asserted, "with regard to Claim

One, the conflicting case law within the three divisions of the Washington

State Court of Appeals and the lack of clear precedent by the Washington

State Supreme Court, surrounding the level of evidence sufficient to prove a

firearm is operable for purposes of a sentencing enhancement,

issue that is debatable amongst jurors of reason,

reflects an

This court will therefore

approve the issuance of a COA, limited solely to the determination of

whether under Claim One, sufficient evidence existed for any rational

factfinder to find beyond a reasonable doubt that at the time of the

underlying crime he possessed an "operable" firearm for purposes of the

sentencing enhancement. Id. at 13.

Simply, put the court passed on applying the Jackson, standard with

explicit reference to the substantive elements as defined by state law, as

well as analyzing the due procees violation. Thereby, punting the issue to

the Ninth Circuit Court of Appeals.

Upon being granted a COA, the Ninth Circuit reappointed Mr.Thomas

counsel. Counsel within the opening brief vigorously argued: (1) at trial

the State introduced no bullets from the alleged firearm, (2) no bullets

were recovered or examined by experts-neither the firearm, (3) the special

verdict instruction required the State to prove as an element of the

offense, "that the firearm was operable at the time of the commission of the

12 .

crime," Dkt.15, at 3, 5; (4) the court's task under AEDPA, specifically

under 28 U.S.C. § 2254(d), is to determine whether the decision of the state

court of appeals, upholding Mr.Thomas's conviction was an unreasonable

application of Jackson, assessing whether the record evidence is so lacking

that habeas relief is merited under Jackson, with explicit reference to the

substantive elements of the criminal offense, as defined by state law,

Dktt.15, at 18; (5) the Washington State Supreme Court commissioner,

unreasonably applied Jackson, because it did not apply Jackson's standard to

the elements the State was required to prove in this case, Dktt.15, at 19;

(6) Mr.Thomas, may not constitutionally be convicted of a criminal offense,

except proof that establishes guilt beyond a reasonable doubt, Id; and (7)

under Washington State's law of the case doctrine, the State must prove

unnecessary elements included without objection. Dktt.15, at 21.

Further, arguing, in Johnson. The Washington State Supreme Court

explained, that while Washington has adopted the federal standard for

insufficiency review. Washington's law of the case doctrine relies on

Washington's own procedural rules of common law, as such the Washington

State's rejection of the federal "law of the case" doctrine in Musacchio v.

United States, is not controlling. Dktt.15, at 21.

The State argued, that Musacchio, controls the court's decision

making on the issue. Thereby, arguing: (1) the Supreme Court rejected the

very argument presented by Mr.Thomas, in Musacchio, holding, "the due

process clause does not require proof of an additional fact added only by

the jury instructions,' rather, due process requires only proof of a

statutory elements.

Once the evidence proves the statutory elements the due

process requirement for sufficiency is satisfied. In light of Musacchio, the

state court decision on the issue was not an unreasonable application of

clearly established federal law. Dktt.22, at 7; (2) in light of Musacchio,

the state court adjudication cannot be an unreasonable application of

Supreme Court precedent and Mr.Thomas's claim must fail, and (3) Mr.Thomas,

tries to distinguish Musacchio, suggesting it applies only to cases

involving federal law of the case, but this argument misstates the Court's

clear holding that resolved the constitutional issue before this Court. The

government's failure to introduce evidence of an additional element does not

implicate the principles that sufficiency review protects. In light of

Musacchio, the state court adjudication was not unreasonable. Dktt. 22, at

12-13.

Mr.Thomas's counsel replied, by arguing, "the Jackson, standard must

be applied with explicit reference to the substantive elements of the

criminal offense, as defined by state law. While the State is correct that

Musacchio, establishes the constitutional minimum floor requirement. The

Washington State Supreme Court has made clear that Washington's law of the

case doctrine dictates the elements of a state crime for sufficiency review,

under Jackson, and remains intact even after Musacchio." Dktt.28, at 1.

In further, arguing, the State cannot rely on Musacchio, to supply

clearly established federal law for purposes of § of 2254(d)(1), because it

postdates the "time of the relevant state court decision," occurring on

March 6,2015, in respect to Mr.Thomas's case.

The Ninth Circuit in total disregard for the Washington State Supreme

Court's precedent set forth in Johnson, and the very fact that Mr.Thomas's

state court decision pre-dated the Musacchio, decision. Held

"the jury

instructions mistakenly and erroneously required proof the weapon was

operable, which was not required under Washington State law." The Supreme

Court has held, "when a jury instruction sets forth all the elements of the

charged crime, but incorrectly adds one more element, a sufficiency

challenge should not be assessed against the erroneously heightened command

in the jury instruction, citing, Musacchio." Dktt.41-1, at 2. Appendix G.

The state reasonably concluded the government was not required to prove the

weapon was operable, despite the erroneous instruction. Id.

This Petition for Writ of Certiorari follows.

REASONS FOR GRANTING THE WRIT

CERTIORARI IS APPROPRIATE TO DECIDE WHETHER THE

WASHINGTON STATE SUPREME COURT'S DISAPPROVAL OF

THIS COURT'S DECISION IN MUSACCHIO V. UNITED

STATES IS BINDING ON THE NINTH CIRCUIT AND THIS

COURT. .

Introduction.

This Court has repeatedly made clear, under the AF.DPA the federal

court's may not second guess state court determinations of state law.

Uttecht v. Brown, 127 S.Ct. 2218, 2231 (2007). "[l]t is not the province

of a federal habeas court to reexamine state court determinations on

state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

In Bradshaw v. Richey, this Court held, "a state court's

interpretation of state law,' includes one announced on direct appeal of

the challenged conviction, and binds a federal court sitting in habeas

corpus.' 546 U.S. 74, 76 (2005). See also Hicks ex rel. Feiock v. Feiock,

483 U.S. 624, 629 (1998)(federal court's are not at liberty to depart from

the state appellate court's resolution of these issues of state law);

Patterson v. New York, 432 U.S. 197, 210 (1977)(elements of a state crime

are necessarily established by state law); Mullaney v. Wilbur, 421 U.S.

689, 691 (1975)(state courts are the ultimate expositors of state law and

what constitutes the elements of a crime under a state statute); Martin

v. Ohio, 480 U.S. 228, 235 (1987)(same); Henderson v. Kibbe, 431 U.S. 145,

157 (1977); Cupp v. Naughten, 414 U.S. 141, 143 (1973).

Despite the Court's authorities in this area, the Ninth Circuit

has now, decided to depart from such precedent in its disapproval of the

Washington State Supreme Court's disapproval of Musacchio, in Johnson,

supra. Thereby, applying Musacchio, to Mr.Thomas's case, inspite of the

Washington State Supreme Court disapproving of the Musacchio case. In

regards to its application to Washington State's "law of the case" doctrine.

Such disregard for Washington State Supreme Court's precedent, constitutes

an abuse of discretion. See Cooter & Gell v. Hartmark, 490 U.S. 384, 406

(1990)(application of the wrong legal standard constitutes an abuse of

discretion).

Moreover, it is aximoatic that the Washington State Supreme Court's

construction of state statutory law, is binding on the Ninth Circuit, even

if the court believed the Washington State Supreme Court's disapproval of

Musacchio, was improper. See City of Chicago v. Morales, 527 U.S- 41, 61

(1999); Id. at 66-68 (O'Connor, J., concurring in part and concurring in the

judgment).

Furthermore, state's play the preeminent role of preventing and

dealing with crime, and state's possess primary authority for dealing and

enforcing the law. Patterson, 432 U.S. at 210; Martin, 480 U.S. at 232;

Engle v. Issac, 456 U.S. 107, 128 (1982). Therefore, the Washington State

Supreme Court has the power to regulate procedures under which its laws are

carried out, and the Court has declared, it will "not lightly" construe the

Constitution so as to intrude under the adminstration of justice by the

individual states. McMillian v. Pennsylvania, 477 U.S. 79, 85 (1986).

Certiorari is appropriate for three reasons. First. The instruction

charged to the jury by the trial court did not omit any elements; did not

add any additional elements; did not create an additional burden on the

State; was not objected to by the State; and was not mistakenly given or

erroneous, as asserted by the Ninth Circuit, within its unpublished opinion.

Dktt.41-1, at 2.

In fact, the trial court prior to charging the jury with instruction

No.32, had a discussion with the parties as to such:

Mr.Stimmel, FN 6: This is my number 10, its a two page document, for

purposes of special verdict the State must have proved

the defenadnt guilty on the count to which a special

verdict pertains. And in addition, the State must prove

the following elements beyond a reasonable doubt. One,

that the defendant was armed with a firearm at the time he

committed the crime; and two, that the firearm was capable

of discharging a projectile by an explosive such as

gunpowder; and three, that the firearm was operable at the

time of the commission of the crime.

Trial Court:

What's the State's position concerning that? It appears to

be an accurate recitation of the law.

RP 15-16. Appendix I.

Moreover, throughout the course of discussing the instructions that

would be charged to the jury, another discussion ensued about Instruction

No.32:

Mr.Stimmel:

We had some colloquy earlier today about this, the State

was objecting to 32, i.e., my number 10, because it didn't

follow the WPIC format, even though it makes more sense.

And I, think what—I, don't remember what the court

decided earlier this morning, but I, like what the court's

done here by including it as number 32, I, think its an

appropriate to convict instruction for the special

verdict.

Trial Court:

I, do to, I'm going to leave it. RP 25. Appendix I.

From a reading of the jury instruction discussions, it is clear that

the Ninth Circuit's misguided assertion of the instruction being mistakenly

given and erroneous, is incorrect and were not founded upon anything, other

than the court's personal views.

FN 6 Mr.Stimmel was Mr.Thomas's trial attorney.

In further support of the trial court finding Instruction No.32,

being an accurate recitation of the law. The Washington State Supreme Court

has expressed, "the State must introduce facts upon which the jury could

find beyond a reasonable doubt the weapon in question falls under the

definition of an "operable" firearm: A weapon or device from which a

projectile may be fired by an explosive such as gunpowder." Recuenco, 163

Wn.2d at 437. Such language was also mirrored by the trial court and charged

to the jury as Instruction No.31. Appendix K. Thus, the Ninth Circuit did

not retain the preogative to second guess the trial court's determination of

state law.

Second. The Washington State Supreme Court has explicitly, expressed,

"under the law of the case" doctrine, unless the State objects, the "toconvict" instruction defines the essential elements of the crime and

dictates the elements of the crime for purposes of sufficiency. Johnson, 188

Wn.2d at 740. In further, expressing

"our law of the case doctrine requires

that State to prove every element in the "to-convict" instruction, beyond a

reasonable doubt." Id. at 762. Our longstanding doctrine remains intact

following Musacchio. Id. at 747. We do not adopt the Supreme Court's

conclusion in Musaccchio.

A state court's interpretation of state law, includes one announced

on direct appeal of the challeneged conviction, and binds a federal court

sitting in habeas corpus. Bradshaw, v. Richey. Supra. The decision in

Johnson, was decided upon while Mr.Thomas's writ of habeas was being

entertained by the federal court's and should have been acknowledged as

binding on the federal court's.

Third. A stark split of authority has developed in the state court's

and the Ninth Circuit, regarding the application of Musacchio, as to whether

Musacchio, applies to Washington State's "law of the case" doctrine and its

relevance to Washington State sufficieny claims. As previously asserted,

Washington State disapproves of the Musacchio, decision. While the Ninth

Circuit believes that Musacchio, applies to Washington State's "law of the

case" doctrine and Washington State sufficiency claims. Despite, the

Washington State Supreme Court, conveying, "Musacchio does not."

Since this sharp split of authority has arisen, it cannot be resolved

and/or harmonized without the Court's intervention. Thus, in order to

correct the Johnson, and Musacchio, conflicts among both jurisdictions. The

Court should grant the Petition for Writ of Certiorari.

IT.

WHETHER THE FOURTEENTH AMENDMENT REQUIRES EACH

AND EVERY ELEMENT OF A CHARGED OFFENSE BE

PROVEN BEYOND A REASONABLE DOUBT.

Introduction.

District Court Chief Judge Martinez, as previously asserted, expressed,

in part, "with regard to the sufficiency claim, the conflicting case law

within the Washington State Court of Appeals, and the lack of clear precedent

by the Washington State Supreme Court, surrounding the level of sufficient

evidence to prove a firearm operable for purposes of a sentencing enhancement."

Is a profound statement when you take into account that Washington State is

charging, convicting and sentencing defendant's to thousands of years in

prison, founded upon a deadly weapon or firearm allegation. In spite of

there being no precedent, surrounding the level of sufficient evidence to

prove a firearm operable for purposes of a sentencing enhancement.

The Court should find such to be very problematic. As the Court in

Winship, expressed, "the Due Process Clause requires a State to prove beyond

a reasonable doubt, every element of the charged offense." 397 U.S. at 365.

Establishing, in Winship, that the Due Process Clause of the Fourteenth

Amendment guarantees a defendant the right not to be convicted, unless the

jury finds "proof beyond a reasonable doubt of every fact necessary to

constitute the crime with which he is charged." Id.

Washington State's failure to recognize this basic constitutional

requirement, has resulted in thousands of defendant's being sentenced to

thousands of years in prison, without the State meeting its burden of proof

requirement, as set forth in Winship. Even more troubling, upon a defendant

challenging his or her conviction based upon insufficiency of evidence.

There exist no precedent from the Washington State Supreme Court, and

conflicting case law from three sepapate state court of appeals, who all

disagree upon every aspect of Washington State law. And with neither willing

to acknowledge the Court's "proof beyond a reasonable doubt," mandate, set

forth in Winship.

However, in 2008, one of the court's decided to adhere to the "proof

beyond a reasonable doubt" mandate, which to the other court's was

repudiated. As in State v. Pierce, 155 Wn.App. 701, 714, 230 P.3d 237, 24445 (2008). In his personal restraint petition he argued that the trial court

erred by imposing a sentence for a firearm enhancement rather than a deadly

weapon enhancement, because the State charged him by information with being

"armed with a deadly weapon." Id. at 714.

The court agreed that the interest of justice required

reconsideration, but on slightly different grounds. The court, citing to

Recenco, explained that "to uphold a firearm enhancement, the State must

present the jury with sufficient evidence to find a firearm "operable" under

this definition." Id. (citing to Receunco, 163 Wn.2d at 437).

Because there was "no evidence that the firearm with which Pierce was

armed was capable of firing a projectile[,]" the court remanded to the

superior court with directions it dismiss the firearm enhancements and

resentence Pierce, without them 155 Wn.App. at 714.

And in responding to the State's argument that it did not have to

introduce the weapon to support a firearm enhancement, the court said that

"[t]his may be true when there is other evidence of operability, such as

bullets found, gunshots heard, or muzzle flashes" and that although, the

evidence was sufficient to prove an element of a deadly weapon, "where proof

of operability is not required, the evidence here is insufficient to support

the imposition of a firearm sentencing enhancement, where proof of

operability is required." Id. at 714, n.ll.

Similarly, here, in Mr.Thomas's case. There was no gun admitted into

evidence; no expert testified that it was a "firearm"; the alleged gun was

never tested; no gun was ever fired'; no bullets were recovered, nor were

there any muzzle flashes. The State presented only testimony from two

witnesses, both of whom conveyed having no experience with firearms and

thus, could only speculate as to whether the object was a gun-in-fact. RP

317-318, Appendix L; RP 37, Appendix M.

However, in speaking directly to the testimony, one witness conveyed,

"she knew nothing about guns and described the gun she thought she saw as a

"revolver" even though it could not have been a revolver as it lacked a

cylinder." RP 317-318. Appendix L. The other witness conveyed, "she had

never seen a gun in my life." RP 37, Appendix M. Thus, in light of the

afore-mentioned how then would a "commonsense understanding" of Winship,

result in a state court concluding that the State has met its burden of

proving each and every element of Instruction No.32? Certiorari is

appropriate four four reasons.

First. To determine whether Musacchio, is applicable to Mr.Thomas's

sufficiency claim. And if so, harmonize the Court's precedent with the

Washington State Supreme Court's precedent set forth in Johnson. However, if

Musacchio, is not applicable, remand with instructions to the Ninth Circuit

to grant a writ of habeas corpus, with respect to Mr.Thomas's sufficiency

claim. As the State argued to the Ninth Circuit that because of Musacchio,

the state court decision was not an unreasonable application of clearly

established federal law, and that the adjudication was not unreasonable.

Such rationale if the Court finds Musacchio, is inapplicable to Mr..Thomas's

case, due to the Washington State Supreme Court's decision in Johnson. Then

the State's argument must fail and remand is appropriate.

Second. This case involves the finding of what standard of

sufficiency of evidence will apply, in respect to Washington State's "law of

the case" doctrine, and the Court's view of the "law of the case" doctrine.

Both of which need to be harmonized for present and future purposes of

Washington State defendant's who may potentially present sufficiency claims

within the federal courts. Even more, to guide federal courts on how

Musacchio, is, or is not to be applied, in regards to Washington State or

other State's sufficiency claims. Whereas, as demonstrated, a State

disapproves of the Court's decision in Musacchio.

Third. Neither the district court or the Ninth Circuit applied the

Jackson, standard with explicit reference to the substantive elements of the

criminal offense, as defined by state law. Rather, means-ends-reasoning was

employed, to render a decision, i.e., (anti-defendant interpretations of law

to uphold an unconstitutional conviction). Constituting a miscarriage of

justice.

Fourth. The instruction was not mistakenly given or erroneous; was

not ambiguous; did not omit an element or include an additional element.

This is a case where the state and federal courts are proclaiming: Screw

applying the Jackson, standard with explicit reference to the substantive

elements of the criminal offense; Screw the jury instructions; Screw the

elements of the charged offense; Screw the Winship and Jackson standard;

Screw due process; and Screw the Fourteenth Amendment guarantees.

Effectively abetting the State in evading its burden of proof

requirement, and thus, lowering the State's burden of proof. If such

abetting is allowed to continue, such will erode the Court's precedent; the

Constitution and Our Nations rule of law. This Court should grant Mr.Thomas's

Petition for Writ of Certiorari, as thousands of defendant's are serving

thousands of years in Washington State prisons, founded upon deadly weapon

and firearm enhancement allegations, where the State was allowed to evade

its burden of proof.

Mr.Justice Frankfurter:

"It is the duty of government to establish guilt

beyond a reasonable doubt, this notion-basic in

our law and rightfully one that boasts of a free

society-is a requirement and a safeguard of due

process of law in the historic, procedural

content of due process."

LeLand v. Oregon, 343 U.S. 790, 802-803 (1952)(dissenting opinion).

CONCLUSION

For the foregoing reasons, this Court should grant the Petition

for Writ of Certiorari.

Respectfully Submitted,

DATED: November 27, 2019.

By: Mr.Demickc Billie Thomas

Pro Se Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.