Petition for Writ of Certiorari — William Randolph King, Petitioner v. Thomas Winn, Warden

No.T

]

IN THE

filed

SUPREME COURT OF THE UNITED STAT sN0V 1 2 2020

William Randolph King- Petitioner 1 supR^IgggggRK

vs.

O’Bell T. Winn-Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

The Michigan Court of Appeals

PETITION FOR WRIT OF CERTIORARI

William Randolph King #118612

Petitioner in pro se

Saginaw Correctional Facility

9625 Pierce Road

Freeland, Michigan 48623

received

NOV 2 3 2020

[i]

•PFICE OF THE CLERK

SUPREME COURTf l/s

QUESTIONS PRESENTED FOR REVIEW

I.

Could reasonable jurists debate whether the prosecution

committed a Brady violation when it failed to disclose the

prior victim’s pubic hair found during DNA testing in a

timely manner that would allow the defense to capitalize on

its use?

II.

Could reasonable jurists debate whether the trial court erred

when it failed to instruct the jury that it should presume

that the DNA testing on the pubic hair would have been

unfavorable to the prosecution?

III.

Could reasonable jurists differ with the district court’s y

assessment that Petitioner’s sentence violated the Eighth";

Amendment?

V ) **

c.

»

LIST OF PARTIES IN COURT BELOW

The caption set out above contains the names of all the parties.

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[iii]

TABLE OF CONTENTS

Page No.

Opinions Below

i

Jurisdiction

u

Constitutional and Statutory Provisions Involved

in

Statement of the Case

1-8

Reasons for Granting the Writ

8-9

Conclusion

13

Index to Appendices

appendix a: the April 22,2020, Judgment from the united states

DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN DENYING

PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS.

appendix b: The September 9,2020, order from the Sixth Circuit

COURT OF APPEALS DENYING PETITIONER’S MOTION FOR CERTIFICATE OF

APPEALABILITY.

[iv]

,;

Opinions Below

The order of the federal court of appeals for the Sixth Circuit

denying Petitioner’s motion for a certificate of appealability was not

reported, but is set forth at Appendix A

The judgment of the United States District Court for the Eastern

District of Michigan denying Petitioner’s petition for a writ of habeas

corpus was not reported, but is set forth in Appendix B

A

1

Jurisdiction

The order for the federal court of appeals for the Sixth Circuit was

entered on September 9, 2020. Rehearing was not sought in that court.

Therefore, the jurisdiction of this Court is invoked under 28 USC

§1254(1)

ii

Constitutional Provisions and Statutes Involved

1. The Fifth Amendment, United States Constitution, provides

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defense.

2. The Fourteenth Amendment, United States Constitution, ,

provides'

All persons born or naturalized in the United States, and subject

to the jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or enforce any

law which shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the laws.

3. The statutes under which Petitioner appealed were 28 U.S.C. §

2253(c), which providesUnless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court

of appeals from—

(A) the final order in a habeas corpus proceeding in

which the detention complained of arises

out

of

process issued by a State court; or;

(B) the final order in a proceeding under section

2255;

m

A certificate of appealability may issue under

paragraph (l) only if the applicant has made a

substantial showing of the denial of a constitutional

right.

The certificate of appealability under paragraph (l)

shall indicate which specific issue or issues satisfy the

showing required by paragraph (2);

and

4. 28 U.S.C. §1291, which provides:

The courts of appeals (other than the United States i

Court of Appeals for the Federal Circuit) shall have

jurisdiction of appeals from all final decisions of

district courts of the United States, the United States ■ ~

District Court of the Canal Zone, the District Court of

Guam, and the District Court of the Virgin Islands,

except where a direct review may be had in the

Supreme Court. The jurisdiction of the United States

Court of Appeals for the Federal Circuit shall be

limited to the jurisdiction described in sections

1292(c) and (d) and 1295 of this Title [28 U.S.C.

§§ 1292(c) and (d) and 1295]

IV

Table of Authorities Cited

CasesNo.

Page

Atkins v Virginia, 536 U.S. 304 (2002)

16, 18, 19, 20, 21

Cooper Indus vLeatherman Tool Group, 532 U.S. 424 (2001)

19

Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999)

13

Brady vMaryland, 373 U.S. 83 (1963)

9, T3 ■-

Enmund vFlorida, 458 U.S. 782 (1982)

Graham v Florida, 560 U.S. 48 (2010)

-18, 19

h .

< ' < /, 16, 20 -

Haliym v Mitchell, 492 F3d 680 (6th Cir. 2007)

"16

Harmelin vMichigan, 501 U.S. 957 (1991)

19‘

Kennedy vLouisiana, 554 U.S. 407 (2008)

16

Kyles v Whitley, 514 US 419, 429 (1995)

13

Maryland vDyson, 527 US 465 (1999)

9

O’Hara vBrigano, 499 F3d, 502 (6th Cir. 2007)

12

Penry vLynaugh, 492 U.S. 302, 319 (1989)

19

Ramirez v Castro, 365 F 3d 755 (CA 9 2004)

19

Roper v Simmons, 543 U.S. 551 (2005)

16

Sawyer vHofbauer, 299 F3d 606 (6th Cir. 2002)

12

Solem vHelm, 463 U.S. 277 (1983)

20

[V]

- >

r.

United States v Garner, 507 F3d 399 6th Cir. 2007)

12

United States v Larson, 558 F Sup 2d 1103 (D. Mon 2008)

20

United States vMoore, 643 F 3d 451 (CA 6 2004)

20

United States v Strayer, No. 8-CR-482, 2010 U.S. Dist LEXIS 62719,

21

2010 WL 2560466 (D. Neb, June 24, 2010)

-i

Weems v United States, 217 U.S. 349 (1910)

18 - •

Constitution, Statutes, Regulations, and RulesS Ct R 10(a)

9

SCtR 16.1

9

[vi]

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Table of Contents for the Appendix

APPENDIX a: The decision of the United States District Court for the Eastern

District of Michigan denying Petitioner habeas relief,

APPENDIX B; Sixth Circuit’s Judgment on Appeal.

*< .

Statement of the Case

In September 2016, a jury in the Wayne County Circuit Court

convicted Petitioner of first-degree criminal sexual conduct, Mich Comp

Laws §750.520b(l)(c), kidnapping, Mich Comp Laws §750.349, and

third-degree criminal sexual conduct, Mich Comp Laws, §750.520(l)(b).

The state trial court sentenced him as a fourth time habitual felony

offender to 40 to 70 years in prison for the first-degree criminal sexual

conduct conviction and to lesser concurrent terms forr the > other!

convictions.

The charges against Petitioner arose from a cold-case sexual

assault investigation that took place in 2005. Then, the complainant,

Erin Long, flagged down police officers in August of that year, telling

them that she had just escaped from a van after being raped. The police

took Long to a local hospital, where she was treated and samples were

taken for a rape kit. The rape kit was sent to the Detroit Police

Department (DPD), where it sat untested for almost ten years.

In 2015, the Michigan State Police (MSP) agreed to assist the

DPD with its large backlog of untested rape kits. The MSP sent Long’s

kit to a private firm, Bode Testing Group, for testing, and Bode returned

1

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the profile to the MSP, who then ran the profile through the Federal

Bureau of Investigation’s CODIS DNA database. The sample matched

Petitioner’s CODIS profile.

Police then obtained a known DNA sample from Petitioner, which

also matched the sperm sample from Long’s kit.

Around the same time, a second lab technician investigating' a

different DPD case identified Petitioner as a match to a DNA sample

taken from another complainant, Nichole McClintock.

<.

^

McClintock reported being raped by two men in Detroit on August

16, 2014.

A foreign pubic hair was also found during McClintock’s rape

examination. That hair, however, was not tested at the time, because,

unlike the sample that matched Petitioner, it required more specialized

mitochondrial DNA testing.

The Wayne County Prosecutor’s Office charged Petitioner with six

counts of criminal sexual conduct and kidnapping with respect to Long’s

allegations. But that Office decided not to charge Petitioner with

assaulting McClintock. Instead, that Office added as a MRE 404(b)

other-acts witness to Long’s case.

2

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In both cases, the Wayne County Prosecutor’s theory was that the

Petitioner demonstrated a common scheme or plan by targeting

vulnerable young women found in public places who were drug abusers.

The defense’s theory, however, was that both Long and McClintock were

prostitutes with whom Petitioner had had consensual sex.

Prior to trial, the prosecution disclosed to the defense the:

existence of the foreign pubic hair that was found in McClintock’s rape kite. Petitioner’s counsel then asked the trial teourt to'order* a-lab >to

conduct a forensic evaluation of the hair on the basis that the results of

the test may uncover exculpatory evidence.

It was the defense’s belief that the foreign hair, once tested, would

support its theory that Long and McClintock were sex workers who had

been having consensual sex with Petitioner, as well as with other'

people. In fact, Petitioner claimed that he had paid Long for consensual

sex and that he and his son had had consensual sex with McClintock.

From the outset, the prosecution claimed that it believed the pubic

hair had already been submitted for testing, but because the MSP did

not have the capability to conduct the test itself, the hair had to be sent

to the FBI.

3

The prosecution further claimed that it did not know how long it

would take for the FBI to conduct the test, arguing that, in any event,

the test results would not be exculpatory because McClintock had

reported being raped by two men and a pubic hair from a second man

would not exonerate Petitioner.

Believing itself that the hair evidence would not be relevant, the

trial court, nonetheless, entered an order requiring the hair be tested.

On the first morning of trial, the prosecution,provided to defense, a.

report from the MSP that the pubic hair had still not been-tested— The defense then moved to exclude McClintock’s other-acts

testimony due to the failure to test the hair as the court had previously

ordered. But when the prosecution mentioned to the state trial court

how the hair had been sent out and the testing had not yet been

completed,

the

court denied the

defense’s motion to exclude

McClintock’s testimony, indicating its intention to proceed with trial

that day.

The following morning, defense counsel requested a jury

instruction directing the jury to presume that the testing of the hair

would have been unfavorable to the prosecution, but the trial court

4

denied the request.

At Petitioner’s trial, Long testified that Petitioner had forcibly

sexually assaulted her multiple times after she accepted a ride in his

van. Long explained that she had only agreed to the ride because there

was another woman inside the van, but Petitioner later dropped the

woman off at a store and drove to a secluded spot at a gas station where

the alleged assault took place. Then, according to Long, Petitioner,

picked up several other men and drove to an industrial area of Detroit

where Petitioner and the men stole copper piping from a building. ‘

Long testified that Petitioner then sexually assaulted her a second

time in a residential neighborhood while the other men unloaded the

stolen materials. When Petitioner supposedly suggested that all of the

other men would be given a turn with Long. Long said she ran from the;

van, where she later flagged down the police officers.

■s:

Petitioner testified in his own defense, where he said that he

frequently did business with prostitutes, whom he would compensate

with money and drugs in exchange for sex. He admitted to having had

sex with Long and McClintock, to which he said that the sex was

consensual in both cases.

5

The jury found Petitioner guilty of two counts of criminal sexual

conduct and kidnapping.

Prior to sentencing, the prosecutor received the results of the DNA

analysis that had been performed on the foreign pubic hair found

during McClintock’s rape examination. Those results showed that the

hair belonged to a man named Rondal Lydiel Topps, who did not have

1

any connection to Long’s trial or Petitioner’s conviction.

At the sentencing hearing, the prosecutor gave Petitioner’s •>' • 4

counsel a copy of the test results showing that the hair belonged to

Topps. Petitioner’s counsel was outraged and indicated that he would

move for a new trial based that new evidence, but counsel never filed

the motion.

On appeal, Petitioner raised the following three claims in his

brief

Mr. King was denied due process when potentially

exculpatory evidence, which supported his theory of

the case, was not produced before or during trial.

Mr. King was entitled to have a jury given a negative

inference instruction regarding the material the

government had in its possession for years, but failed

to test.

Defendant-Appellant is entitled to be resentenced as

6

~

his current sentence is contrary to Const 1963, art 1, §

16, and his guidelines were incorrectly scored.

The Michigan Court of Appeals affirmed Petitioner’s conviction in an

unpublished opinion. See People v King, 2018 WL 1972792 (Mich. Ct.

App. Apr. 26, 2018).

Petitioner subsequently filed an application for leave to appeal in

the Michigan Supreme Court raising the same claims that he raised-in

the Michigan Court of Appeals, and the Michigan Supreme Court?

denied the application in a standard form order. See People v. King, 919

NW2d 58 (Mich 2018).

Petitioner filed a federal petition for a writ of habeas corpus,

raising three claims- (I) the prosecution withheld exculpatory evidence

from the defense when it failed to timely submit a pubic hair for DNA

testing! (II) the trial court erred when it failed to instruct the jury to2

presume the test results on the pubic hair would have been unfavorable

to the prosecution, and (III) the trial court incorrectly scored the

sentencing guidelines and sentenced him in violation of the Eighth

Amendment.

The district court entered a final, appealable judgment in this

matter on April 22, 2020, that denied Petitioner relief on his petition.

7

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(See App “B“)

In that judgment, the district court denied Petitioner a certificate

of appealability, but decided to grant him permission to appeal in forma

pauperis.

On or about April 18, 2020, Petitioner filed his notice of appeal.

Petitioner never received the order from the district court denying his

notice of appeal. But he did receive confirmation from the Sixth Circuit *

clerk of receipt of his filing and recommendation to file a motion for a w

certificate of appealability, with which Petitioner complied. On

September 9, 2020, the Sixth Circuit clerk, however, entered an order

denying Petitioner’s motion. (App “A,“ 6).

Reasons For Granting The Writ

Petitioner exhausted three claims through the Michigan courts,

alleging a Brady violation, an adverse-inference instructional error, and an Eighth Amendment sentence violation. The Michigan Court of

Appeals adjudicated the claims and affirmed. Both the federal district

court and the Sixth Circuit court of appeals ruled that Petitioner’s

claims were contrary to or an unreasonable application of clearly

established federal law or based on an unreasonable determination of

8

the facts. Petitioner, however, disagreed and maintained that the

opposite is true. He urges this Court to grant summary reversal (“GVR”). See S

Ct R 10(a)( The Court may "summaiy reverse" if lower court federal court

decisions "ha[ve] so far departed from the accepted and unusual course of judicial

proceedings, or sanctioned such a departure by a lower court, as to call for an

exercise of [the Supreme] Court's supervisory power."; S Ct R 16.1("order-

■

[disposing of the certiorari petition] may be a summary disposition on the merits"); „

f£.

Maryland v Dyson, 527 US 465, 465 n 1 (1999)(per-curiam)("summary reversal

does not decide any new or unanswered question of'law, but simply-'corrects^ a ■

lower court's demonstrably erroneous application of federal law").

ARGUMENTS

I.

Could reasonable jurists debate whether the prosecution

committed a Brady violation when it failed to disclose the prior

victim’s pubic hair found during DNA testing in a timely

manner that would allow the defense to capitalize on its use?

Petitioner maintains that the answer to this question is “yes:”

In his habeas petition, Petitioner alleged, as he did throughout the

state courts, that the prosecution violated his due process rights under

the Supreme Court’s decision in Brady v Maryland, 373 U.S. 83 (1963)

when it withheld exculpatory evidence by failing to timely submit the

pubic hair found during McClintock’s rape kit for DNA testing.

9

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McClintock’s testimony was admitted as other-acts evidence, serving as

an essential pillar of the prosecution’s case. As noted above, the result of

the testing had not been completed at the time of trial, and when

completed, the pubic hair was found not to be from Petitioner.

Petitioner contended that if the testing had been completed before trial,

he could have better questioned the prior victim at trial and utilized the •

identified person from whom the hair came as a witness. Because the’

Michigan Court of Appeals did not find a Brady violation, Petitioner - .

t ’v

>*

sought federal habeas relief.

The district court, faced with Petitioner’s compelling argument in

support of his claim, concluded, in pertinent part, thatThe Michigan Court of Appeals’ decision was not

contrary to, or an unreasonable application of, clearly

established federal law. It was not unreasonable for

the state appellate court to conclude that the

prosecutor did not violate Brady because the only

evidence that the prosecutor had at the time of trial—

that a foreign hair was recovered from McClintock’s

rape kit—was disclosed to the defense. Evidence that

the hair belonged to Topps was not suppressed

because that evidence did not exist at the time of trial.

And when the test results on the hair came back and

revealed that the hair belonged to Topps, that

evidence was also disclosed to the defense. Moreover,

King has not cited any clearly established Supreme

Court law that under these circumstances, a

prosecutor had a duty to test the hair at issue any

10

sooner than the prosecution did. Finally, King has not

shown that the Michigan Court of Appeals’

unreasonably concluded that the prosecution did not

act in bad faith. Indeed, King’s own counsel stated on

the record that the prosecution did not act in bad faith

with respect to the testing of the hair.

Dist Ct. Op, pp. 11-12.

Then, the Sixth Circuit, on appeal denied Petitioner relief by

concludingKing does not dispute that the prosecution did not

have the DNA test results in its possession before

trial. He therefore cannot satisfy the first Brady

prong- the prosecution could not have suppressed

evidence that it did not have in its possession.

Similarly . . . King’s counsel conceded that the

prosecution did not act in bad faith when it delayed

testing the pubic hair found on McClintock. And King

cannot show that the evidence was material or would

have been favorable to his defense insofar as his DNA

was also collected from McClintock’s vagina- the

presence of another individual’s pubic hair on

McClintock would have little or no bearing on his

guilt with respect to his sexual assault upon the

victim in his case. On this record, no reasonable jurist

could debate the district court’s conclusion that the

Michigan Court of Appeals’ adjudication of King’s

Brady claim was not contrary to or an unreasonable

application of clearly established federal law or based

on an unreasonable determination of the facts.

^

(App “ ,” 3-4).

Reasonable jurists, contrary to the findings of the Sixth Circuit,

however, could debate whether the district court’s assessment of

11

Petitioner’s claim was debatable or wrong, in light of Murphy and

Slack. Indeed, this Court has found a prosecution’s suppression of a

negative DNA test result violates Brady. See Sawyer v Hofbauer, 299

F3d 606 (6th Cir. 2002)(negative DNA test result was material to

petitioner’s guilt or innocence and it was reasonably probable that

disclosure ), and when the prosecution failed to disclose Brady evidence

m a timely manner). United States v Garner; 507 F3d 399 6th Cir.

2007)(the prosecution’s failure to disclose cell phone records in a timely:

manner that would permit the defense to utilize the evidence did result^

in a Brady violation).

Petitioner is cognizant that a belated disclosure of evidence

violates Brady only where a petitioner can show that the delay itself

caused prejudice. O’Hara v Brigano, 499 F3d, 502 (6th Cir. 2007). He

met that standard when he showed how he needed the suppressed

evidence to impeach McClintock’s testimony and to undermine the

prosecution’s theory of the case. Moreover, prejudiced is established by

the fact that Petitioner could have utilized the identified person from

whom the hair came as a witness, had he received the testing results in

time.

12

Contrary to the lower courts’ conclusion, the delay and its

prejudicial effect upon Petitioner, is attributable to the prosecution. The

state court record establishes that any blame for the failure to subject

the pubic hair to testing in a timely manner fell to the MSP, who sat on

the untested evidence for nearly a decade, as the prosecution explained

to the state trial court. If so, then the prosecution must bear the

responsibility for the MSP’s misconduct. Kyles v Whitley; 514 US 419,

429 (l995)(misconduct of the police is charged to the prosecution). In ; [

addition to that, both Michigan Court of Appeals and the district court

erred when it premised the validity of Petitioner’s claim on whether or

not he could prove the prosecution acted in bad faith. However, Brady’s

landmark decision stands for the proposition that “the suppression by

the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or

punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady, 373 U.S. at 87.

II.

Could reasonable jurists debate whether the trial court erred

when it failed to instruct the jury that it should presume that

the DNA testing on the pubic hair would have been unfavorable

to the prosecution?

Petitioner alleged in his habeas petition, as he did throughout the

13

state courts, that, because the prosecution failed to test and provide the

results of all of the DNA evidence from the McClintock’s rape kit, the

state trial court erred when it failed to provide a negative inference jury

instruction. The Michigan Court of Appeals rejected the claim on the

basis that the trial court did not hold that the prosecution acted in bad

faith when it did not produce the testing results by the time of trial.

Petitioner sought federal habeas relief based on the Michigan Court of

Appeals’ unreasonable adjudication. The district > court, however, ,

determined that there was no error in the state court’s refusal to find

bad faith on the part of the prosecution. The Sixth Circuit agreed, and

determined thatKing’s counsel admitted that the prosecution did not

act in bad faith when it did not produce before trial

the DNA results from the pubic hair that was

collected from McClintock. And King has not shown

that omitting an adverse inference instruction with

respect to this unproduced evidence “so infected the

entire trial that the resulting conviction violates due

process.” Estelle v McGuire, 502 U.S. 62, 72

(1991)(quoting Cupp v Naughten, 414 U.S. 141, 147

(1973)). No reasonable jurist therefore could debate

the district court’s conclusion that the Michigan Court

of Appeals’ rejection of this claim was not contrary to

or an unreasonable application of clearly established

federal law or based on an unreasonable

determination of the facts.

14

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(App “4).

Reasonable jurists, however, could differ with the lower courts’

assessment. For instance, this Court found that a state court’s failure to

give an instruction based on the court’s erroneous factual finding

~ •

warranted habeas relief. See e.g., Barker v. Yukins, 199 F.3d 867 (6th

'- r

Cir. 1999)(The failure to instruct on defendant’s -right to use deadly _

t

force to resist a rape deprived defendant of a meaningful opportunity to >

present a defense where the general self:defense instruction gave the

jury the ability to enter a guilty verdict while believing that defendant

had been resisting a rape, but that it was questionable whether the

rape would have led to death or serious injury).

III.

Could reasonable jurists differ with the district court’s

assessment that Petitioner’s sentence violated the Eighth

Amendment?

Petitioner maintains that the answer to this question is “yes.”

Petitioner alleged in his habeas petition, as he did throughout the

state courts, that his sentence is cruel and unusual because the term

exceeds his natural life expectancy, and thus, the sentence equates to a

life sentence without parole, and the trial court failed to consider

mitigating factors. Both the district court and the Sixth Circuit

15

concluded that the claim does not merit relief. Contrary to that

conclusion, however, reasonable jurists could disagree with that

assessment as wrong or debatable.

For instance, one of the mitigating factors that the state trial

court failed to consider was Petitioner’s mental health history. The

presentence investigation report documented his diagnosis of bipolar

disorder and “other mental health problems.” Meanwhile, the Sixth

Circuit itself had held that mitigating evidence may include evidence

that a defendant potentially suffered from a mental defect. Haliym v

Mitchell, 492 F3d 680, 712 (6* Cir. 2007).

Furthermore, Petitioner’s psychiatric history implicated Eighth

amendment principles of lesser culpability similar to those suffering

with intellectual disabilities, as is articulated in Atkins v Virginia, 536

U.S. 304 (2002), Roper v Simmons, 543 U.S. 551 (2005)(invalidating

death penalty for defendants who committed their crimes before the age

of 18), and Kennedy v Louisiana, 554 U.S. 407 (2008)(while death

penalty may be appropriate for murder, it is constitutionally

inappropriate for the rape of a child), Graham v Florida, 560 U.S. 48

(2010)(invalidating the sentence of life without parole for juvenile who

16

committed attempted robbery and a serous assault), that undermines

the trial court’s previous determinations regarding his culpability and

competency.

For example, in Atkins, the United States Supreme Court

declared that the execution of mentally retarded defendants, those

people with intellectual disabilities, is unconstitutional. The Court

explained that the reason the Eighth Amendment is violated with the ..

use of the death penalty on those convicted defendants is that

defendants with intellectual disabilities must be viewed as less culpable

than other defendants.

Mentally retarded persons frequently know that

difference between right and wrong and are

competent to stand trial. Because of their

impairments, however, by definition they have

diminished capacities to understand and process

information, to communicate, to abstract from

mistakes and learn from experience, to engage in .

logical reasoning to control impulses, and to

understand the reactions of others. There is no

evidence that they are more likely to engage in

criminal conduct than others, but there is abundant

evidence that they often act on impulse rather than

pursuant to a premeditated plan, and that in group

settings they are followers rather than leaders. Their

deficiencies do not warrant an exemption from

criminal sanctions, but they do diminish their

personal culpability.

17

t. •

The United States Supreme Court’s reasoning in Atkins for

justifying this conclusion proceeded through four steps. First, the Court

identified the normative punitory principle — what it referred to as a

“precept of justice” — “that punishment for crime should be graduated

and proportioned to [the] offense.” Id at 311 (quoting Weems v United

States, 217 U.S. 349, 367 (1910)). Second, the Court specified that the

graduation of proportionality requirements mean that “criminal

•

f

culpability must be limited to [the defendant’s] participation in [the

crime], and [the defendant’s] punishment must be tailored to his

personal responsibility and moral guilt.” Id, at 312'313 (quoting

Enmund v Florida, 458 U.S. 782, 801 (1982)). Third, the Court noted

that while mentally retarded individuals’ deficiencies “do not warrant

an exemption from criminal sanctions . . . they do diminish their

personal culpability.” Id, at 318. Fourth, the Court recognized that if the

retributive purpose of punishment Atkins faced was to be effectuated,

the severity of the punishment levied against him must necessarily

depend on his culpability. Id, at 319. In order to ensure that the

punishment in Atkins was constitutionally proportioned to the

defendant’s personal culpability, the Court announced that the State of

18

Virginia could not execute Atkins, whose diminished moral culpability

was established by the evidence of his mental retardation. Id, at 319320.

Petitioner, in his petition, was alleging that an Atkins type of

protection extend to his sentencing procedure. In the past, the United

States Supreme Court has frequently referenced ,a defendant’s

.

culpability in Eighth Amendment cases. See e.g., Cooper Indus v

Leatherman

Tool Group,

532 U.S. 424, 435 (2001)(recognizing

culpability as important criteria for Eighth Amendment excessive fines

claims); Harmelin v Michigan, 501 U.S. 957, 1022 (l99l)(White, J.,

dissenting)(“[I]n evaluating the gravity of the offense, it is appropriate

to consider the harm caused or threatened to the victim or society ...

and the culpability of the offender, including the degree of requisite

intent and the offender’s motive . . . “); Penry v Lynaugh, 492 U.S. 302,

319 (I989)(“punishment should be directly related to the personal

culpability of the criminal defendant”), overruled on other grds by

Atkins, 536 U.S. at 304; Enmund 458 U.S. at 801 (defendant’s

“punishment must be tailored to his personal responsibility and moral

guilt”); Ramirez v Castro, 365 F 3d 755 (CA 9 2004)(“[T]he [Supreme]

19

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Court [in Solem v Helm, 463 U.S. 277 (1983)] further endorsed

consideration of other accepted principles that courts may apply in

measuring the harm caused or threatened to the victim or society, such

as . . . the offender’s culpability”). Similarly, like the mentally retarded

individual described in Atkins, Petitioner’s “deficiencies do not warrant

an exemption from criminal sanctions, but they do diminish [his]

personal culpability.” Id.

.

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Although courts generally have interpreted Atkins to apply only to

capital sentences, “[t]his does not mean that a defendant s culpability is

irrelevant in non'capital cases.” United States v Moore, 643 F 3d 451,

456 (CA 6 2004)(relying on Solem and Graham). That is because Eighth

amendment principles regarding lesser culpability have been equally

applied to capital and non-capital cases. In fact, Graham involved a

term of imprisonment of life without parole for an attempted robbery

and a serious assault. The United States Supreme Court had declared

that term of imprisonment for a juvenile cruel and unusual, and

i

therefore unconstitutional. For that reason, several federal court

decisions have extended Atkins’s doctrine to non-capital crimes. See

e.g ., United States v Larson, 558 F Sup 2d 1103 (D. Mon 2008)(five-year

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minimum held unconstitutional under the Eighth Amendment, as

applied to mentally retarded 21 year old); United States v Strayer, No.

8-CR-482, 2010 U.S. Dist LEXIS 62719, 2010 WL 2560466 (D. Neb,

June 24, 2010)(granting below guidelines sentence for a 25 year old

whose psychological evaluation concluded that he was emotionally close

to an adolescent and also had other mental health problems). Petitioner

just believed that Atkins’ doctrine should have extended to his case as

well, and warranted a consideration the list of mitigating factors that

warranted a more reasonable sentence, one that affords him an

opportunity to become eligible for parole during his lifetime. He prays

that this Court agrees.

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CONCLUSION

Because the claims contained in his federal habeas petition are

not only debatable, but also implicate his constitutional rights,

Petitioner, WILIAM RANDOLPH KING, asks that this Court to reverse

the Sixth Circuit’s denial of his motion for certificate of appealability

and to grant this petition for certiorari as to all of his appellate issues

because he, just like the petitioner in Miller-El, has proven “’something

more than the absence of frivolity,’ or ‘the existence of mere good faith

on his or her part.’”

Respectfully submitted,

Dated-

_ I. V

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.

WILLIAM RANDOLPH KING #118612

Saginaw Correctional Facility

9625 Pierce Road

Freeland, Michigan 48623

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