Petition for Writ of Certiorari — Steven Nicholson, Petitioner v. Noah Nagy, Warden

Supreme Court briefApr 25, 2023

Ask Donna

What actually matters in this document.

Text

■

6 9-

IN THE SUPREME COURT

• r-

OF THE

UNITED STATES OF AMERICA

APRIL TERM, 2023

Supreme Court, U.S.

FILED

APR 2 5 2023

Steven Lynn Nicholson- Petitioner Pro Se

OFFICE OF THE CLERK

Vs.

Kim Cargor-Respondent

Petition for Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

Steven Lynn Nicholson/ #492918

3510 N. Elm St.

Jackson, MI 49201

QUESTIONS PRESENTED

Does the 6th Circuit Court of Appeals position to acquiesce to MCL 768.37 by not interfering with

Michigan’s jurisdiction conflict with how multiple U.S. Courts of Appeal handle the issue of

Diminished Capacity and Voluntary Intoxication?

Is the aforementioned question not an issue that needs a Federal check and balance in effort to preserve

every Americans constitutional right?

Is it a problem that needs to be reviewed by This Supreme Court regarding the difference in opinion

amongst the Federal Circuit Courts when it comes to Diminished Capacity and Voluntary Intoxication,

whereas Federal Courts generally agree with their accompanying lower state courts regarding Rule of

Law pertaining to Diminished Capacity and Voluntary Intoxication?

Is the 6th Circuit Court of Appeals in error of failing to acknowledge that Petitioner was denied his 14th

Amendment right of Due Process to present a COMPLETE defense; said failure being based on MCL

768.37 which denies one’s 14th Amendment right to present a COMPLETE defense?

Are Michigan state Courts in error [particularly in light of the amendment to MCR 6.502 (G) (3) (b)] in

denying the Federal 14th Amendment Right of Due Process to be able to present a COMPLETE defense

when Petitioner was forced to deny the primary defense in his case? [See (TT -1, Line 21 (from pg. 3

of 2012 Motion to Remand), on the record, the prosecutor objected to the voluntary intoxication defense

before this defense was even put on the record.

TABLE OF CONTENTS

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

INDEX TO APPENDICES

Appendix A- Opinion of U.S. District Court of Appeals reported in 22-1586, Steven Nicholson v. Noah

NaevFed. R. Add.. v.22(b), (2023). Opinion and Denial from the United States Eastern District Court

for Southern Michigan reported in 4:14-CV-l0828-MAG-DRG, United States Eastern District Court of

■v

Michigan, Southern Division.

Appendix B- Order Denying Application for Leave to Appeal from the Michigan Supreme Court is

reported in People v. Nicholson, 146222; and the second Michigan Supreme Court Order Denying

Application for Leave to Appeal is reported in People v. Nicholson, 156652.

Appendix C- Order Denying Remand and Opinion from the Court of Appeals is reported at People v.

Nicholson, Ml. Ct. Avv. 4/3/2012; 304784, and the second Court of Appeals Denial is reported at People

v. Nicholson, MI. Ct. Add. 8/31/2017, 914N.W. 2d918 (Mich. 2018) 338544.

Appendix D- The 2016 Opinion of the Trial Court of Wayne County, Michigan from Judge Shannon

Nicol Walker reported at LC-10-012115-01-FC, Wayne County Circuit Court.

Appendix E- U.S. Constitutional Amendment XIV / 28 U.S.C., Title 28, Section 2253/

28 U.S.C., Title 28, Section 2254(e) (A) ii / 28 U.S.C., Title 28, Section 2254(d)

TABLE OF AUTHORITIES CITED

PAGE NUMBER

CASES

22-1586 Steven Nicholson v. Noah Nasv. Fed. R. App., P.22M

1,2,4, 7

4:14-CV-l 0828-MA G-DRG

1,2

4.14-CV-10828

■2,3

People v. Nicholson. 146222

■2,3

People v. Nicholson, 156652.........................................................................................

■2,3 '

People v. Nicholson, 338544, MI. Ct. Ayp. 8/31/2017, 914N.W. 2d918 (Mich. 2018)

•2,3

People v. Nicholson, 304784. 2012 WL-4512570, MI. Ct. App., Oct. 2, 2012.............

•2,3

LC-10-012115-01

Wagner, 581 F.3dat 419

Michigan v. Corley, 2(17(5 Mich. App. Lexis 2406

quoting Armstrong v. Kenna, 534 F. 3d 857, 863 8th Cir. 2008

Beasley v. United States, supra

People v. Carter, 4(52 Mf’c/z. 20(5

Williams v. Taylor, 529 US. 5(52, 407120 S. Ct. 1495, 146L. Ed. 2d 389 (2000)

7, 9,13

2007 P.K Carpenter. 464

M’Naughten

People v. Flynn, 2020 MI App. Lexis 5477.....................................................................

p. K Dombrowski. 2022, MI App. LEXIS 6988 fpt 21) (P. V Anthony 1327 MI. App 24

Ttocfrv.

483 US. 44. 55: 107 S. Ct. 2704: 97 L. Ed. 2d 37 (19871

US. v. Sheffer

PAGE NUMBER

, CASES (cont.)

Lucio v. Lumpkin. 987 F. 3d 451

Kahler V Kansas. 140 S. Ct

Leland. 343 US., at 798. 72 S. Ct. 1002, 96 L. Ed 1302

Montana V. Eselhoff, 518 US. 57, 43, 116S.Ct. 2013, 135 L. Ed. 2d361, 1996_

.Judees for Third Judicial Circuit Court of Wayne, 383, Mich_l_0:.

STATUTES AND RULES

28 U.S.C §1254(1)

28 U.S.C. § 1257(a)

28 U.S.C., Title 28, Section 2253

3,8, 14

28 U.S.C.S. §2254(d)

28 U.S.C.S. §2254(e)(A)ii

3,4, 5, 6, 7, 8, 9,10, 14

U.S. Const. AM XIV; Const. 1963, Art. 1 §17

U.S. Supreme Court Rule 14.1 (f)

MCR 6.508 (D) (3) (a,b) (i, iii)....

MCR 6.502(G) (3) (b)

14, 15

MCL 768.37

.4, 6, 7

4, 6, 7, 8, 9,10,13

Due Process Clause

Constitutional laws §840 & §854

Alaska- Statute-§11.70.030(a)

Alabama- §13A-3-2(c)

Arizona- A.R.S. §13-502(A)

Arkansas- Arkansas Stat. Ann. §41-207

California- Cal. Penal Code §22(b).....

Colorado- C.R.S. §18-1-804

Connecticut- General Statute §52a-7

STATUTES AND RULES (cont.)

Delaware- 11 Delaware Code §401(c) & 421

Florida- FL. St. §775.05 & §893.02

Georgia- O.G.G.A §16-3-2 & 4

Hawaii- Subsection 5 of H.R.S. §702-230

Idaho- Idaho Code 18§ 116

Illinois- §720 I.L.C.S. 5/6-3

Indiana- Bums Ind. Code Ann. §35-41-3-5(2)

Iowa- §73 Iowa L. Rev. 935 (701.5 oflowaCode)

Kansas- K.S.A. §21-5205(b)

Kentucky- K.R.S. §501.080 (13)

Louisiana- La. R.S. §14:15(2)

Maine- 17-A.M.R.S. §37

Maryland- MCPJI 5:08(2d, 2016 Supp.)

Massachusetts- Commonwealth V. Brennan, 399 Mass. 358

Michigan- MCL§768.37

Minnesota- Minn. Stat. §609.075

Mississippi- Smith v. State, 445 So. 2d 227

Missouri- R.S. MO. §562.076

Montana- MCA §45-2-203

Nebraska- R.R.S. Neb §29-122

Nevada- N.R.S.A. §193.220

New Hampshire- (N.H.) R.S.A. 626:2

STATUTES AND RULES (cont.)

New Jersey- N.J.S. §2C:2-8

New Mexico- N.M.R.A. §14-5110

New York- N.Y. CLS Penal §15.25

North Carolina- NCPJI §206.307A

North Dakota- N.D. Cent. Code, §12.1.04-02

Ohio- ORC Ann. 2901.21(E)

Oklahoma- 21 Okl. St. §704

Oregon- ORS §161.25

Pennsylvania- 18 Pa. C.S. §308

Rhode Island- S.V. Vanasse, 42 R.I. 278 @ 281, 107 A at 86

South Carolina- S.C.Code Ann. § 17-24-10 [22 C.J.S Crim. Law § §112 & 113 (1989)]

South Dakota- 2005 S.D. 122/ §22-16-6

Tennessee- Tenn. Code Ann. §39-11-503

Texas- Texas Penal Code §8.04

13 .

Utah- Utah Code Ann. §76-2-306).

Vermont- S.V. Congress, 2014- 13 V.S.A. §2301

Virginia- Va. Code Ann. §18.2-32

Washington- A.R.C.W. §9A. 16.090)

West Virginia- 8 A.L.R.D.3d 1236 §4 (a) (1966)

Wisconsin- S.V. Guiden, 46 Wis 2d 328 (1970) ....

Wyoming- Wyoming Stat. §6-1-202

OTHERS

Schemer’s Report

Dragovich’s Report

TT-1, Line 21 (from pg.3 of 2012 Motion to Remand)

3rd Circuit Court Notice pursuant to MCR 6.433

5,6

TT-pg. 60, L-4, 6

TT-pg. 59, L-3-25......................................................................................

82 Michigan Bar Journal, 17 (Feb. 2003), by: Kimberly Reed Thompson

vii

No.

V-

IN THE SUPREME COURT

OF THE

UNITED STATES OF AMERICA

APRIL TERM, 2023

Steven Lynn Nicholson- Petitioner Pro Se

Vs.

Kim Cargor-Respondent

Petition for Writ of Certiorari

To the United States Court of Appeals

For the Sixth Circuit

Petitioner, Steven Nicholson, respectfully PRAYS, in Jesus’ name, that a writ of certiorari issue to

review the judgment below.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Sixth Circuit appears as

Appendix A to the petition and is REPORTED at 22-1586 Steven Nicholson v. Noah

Nagy, FedR. Aw., P. 22(b).

The opinion of the United States Eastern District Court for Southern Michigan

appears at Appendix A to the petition and is REPORTED at 4:14-CV-l0828-MAGDRG, United States Eastern District Court of Michigan, Southern Division.

The opinions of the highest state court to review the merits appears at Appendix B to

the petition and is REPORTED at People v. Nicholson, 146222_Michigan Supreme

Court from the Michigan Court of Appeals decision (unpublished) appears at People

v. Nicholson. MI. Ct. Add. 4/3/2012: 304784 (Appendix C) & the second opinion is

REPORTED at People v. Nicholson. 156652 Michigan Supreme Court from the

Michigan Court of Appeals decision at People v. Nicholson, Ml. Ct. App. 8/31/2011'L

914 N. W 2d 918 (Mich 2018) 338544XAppendix C).

The opinion of the Trial Court of Wayne County, Michigan appears at Appendix D

to the petition and is REPORTED at LC-10-012115-01, Wayne County Circuit Court.

JURISDICTION

Petition for Writ of Certiorari is sought from the January 25, 2023 order of the United

States Court of Appeals for the Sixth Circuit 22-1586 Steven Nicholson v. Noah

Naev. Fed R. App., P. 22(b) denying my Application for Certificate of Appealability

and is set forth in Appendix A.

[X] No petition for rehearing was timely filed in my case.

The jurisdiction of this Court is invoked under 28 U.S.C §1254(1).

The date on which the highest state court decided my case was March 4, 2013. A

copy of that decision, 4:14-CV-10828, appears at Appendix A.

The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Pursuant to U.S. Supreme Court Rule 14.1(f), the full text of U.S. Constitutional Amendment XIV is

set forth in Appendix E

Pursuant to U.S. Supreme Court Rule 14.1(f). the full text of 28 U.S.C., Title 28, Section 2253 is set

forth in Appendix E

Pursuant to U.S. Supreme Court Rule 14.1(f). the full text of 28 U.S.C. § 2254 (e)(A) ii is set forth in

Appendix E

Pursuant to U.S. Supreme Court Rule 14.1(f), the full text ofU.S.C.S. 2254(d) is set forth in

Appendix E

STATEMENT OF THE CASE

1. Procedural Facts

I, Mr. Nicholson, was initially charged with two counts of First Degree Felony Premeditated Murder,

two counts of Felony Homicide, and two counts of First Degree Child Abuse for the tragically

accidental drowning’s of my children, Jonathan Alan Sanderlin and Ella Grace Stafford, to which I was

their full time custodial Father and Guardian. Following a bench trial, I was convicted of First Degree

Felony Premeditated Murder, Second Degree Murder and First Degree Child Abuse. I filed a Direct

Appeal LC-10-012115-01, Motion for Leave to Appeal, twice (People v. Nicholson. No. 304784, 2012

WL 4512570 MI Ct. Add. Oct. 2, 2012). and People v. Nicholson, MI. Ct. Add. 8/31/2017, 914 N W. 2d

918 (Mich. 2018) 338544. followed by an Application for Leave to the Michigan Supreme Court for

each COA denial, case numbers, 146222 & 156652 and a Writ of Habeas Corpus 4.14-CV-10828.

had a basic lack of understanding of case law and was not able to properly formulate legal arguments or

offer any legal authority due to ignorance of the law MCR 6.508 ID) (3) (a,b) (i, in); and ineffective

assistance of appellate counsel, which is an issue I failed to bring up and have likely forfeited as a source

of recourse, nevertheless, it was a factor in my demise. I then filed in the United States Court of Appeals

for the Sixth Circuit 22-1586 Steven Nicholson v. Noah Nazv. Fed R. Ayp., P. 22(b..

My arguments were never “plainly meritless” or in any way were they meant to engage in “intentionally

dilatory tactics.” See, Warner. 581 F.3dat419. I have raised these issues during every petition I have

submitted and will continue raising these issues of Voluntary Intoxication and Diminished Capacity as

defenses as often as I can. One reason, is because I did not hurt my children and these defenses are the

only logical explanations to the tragic events that took my children’s lives and two, because these

issues/defenses were never properly exhausted by valid argument being allowed for it, then allowing

response to said argument due to the unconstitutional application of MCL 768.37 which laughs in the

face of the 14th Amendment right to present a COMPLETE defense, particularly when there was not

proof beyond a reasonable doubt to every fact necessary to prove the crimes I was charged and

convicted of. f“State may not deprive any person ‘of life, liberty, or property, without due process of

law...” (U.S. Const. AM XIV: Const. 1963, Art. 1 S17YI This constitutional challenge to MCL 768.37

is due to the fact that Michigan legislature would do its citizens justice to reform this law to reflect the

standard practiced in the majority of the States in the U.S.

2. Substantive Facts

The conclusion of Dr. Gerald Scheiner that I, Mr. Nicholson, was too incapacitated from Xanax

overdose to form the specific intent to kill my children was never truly investigated. (See Schemer’s

Report @ OTHERS) Court of Appeals Presiding Judge Cynthia Diane Stephens made Scheiner’s

report a part of the Lower Court record on 4/3/2012 in COA’s denial of my Motion to Remand, as she

clearly saw the relevance offacts contained within Schemer’s Report. This evidence was suppressed

during my trial due to the unconstitutional law of MCL 768.37. It continues to be ignored for the same

reason.

Furthermore, prosecutors are reserved the right to object to defenses brought forth by an

accused; THE PROSECUTOR, KAREN GOLDFARB, DID OBJECT OVER AND OVER AGAIN. I

was subsequently denied the opportunity to present the defense necessary allotted to me under my 14th

Amendment Right of Due Process. I concede the issue was forfeited, but it was forfeiture by force.

Prosecutor Karen Goldfarb continuously blocked every attempt I made through my lawyer to bring up

Schemer’s report. {TT-I, Line 21 (from pg.3, 2012 Motion to Remand)} [This transcript cite is

from my lawyer’s brief as I was denied the right to my Full Trial Transcripts, See: MCR 6.433

Order by Vera Massey Jones in OTHERS] They never wanted me to get him on the stand or to get it

on the record that I tried to use his report even though I knew how the MCL 768.37 standard would

have hurt that argument. I didn’t care. I tried over and over to get him on the record and his report on

the record because I knew his report was the only logical explanation to this nightmare I had caused with

my stupid choices. Thankfully, COA Judge, Cynthia Diane Stephens DID make it a part of the Lower

Court record as I mentioned. Judge Stephen’s decision is further validated by the report of Oakland

County Medical Examiner, Dr. L.J. Dragovich which absolutely validates Schemer’s report and the truth

that this horrible accident stemming from my horrible decisions was not purposeful. (See Dragovich’s

Report, @ OTHERS) This weighty evidence further establishes how necessary it is for the Highest

Court in the country to provide a check and balance for the differing opinions on the Voluntary

Intoxication / Diminished Capacity law nationwide. Take note, two unpaid experts validated my story.

The last paragraph of the dissent in Michigan v. Corley, 2016 Mich. App. Lexis 2406 is very revealing

in regards to Defendant Nicholson’s situation. Judge Kathleen Jansen states that the new evidence in the

Corley case deserves a remand for a new trial because the trial court failed to consider certain facts.

Judge Vera Massey Jones perpetrated this same neglect for due process when she ignored “a great deal

of mitigating evidence that was available for Counsel to utilize at trial, but went unutilized because

Counsel not only failed to exercise due diligence in searching for it,” (quoting Armstrong v. Kenna, 534

F. 3d 857. 863 8th Cir. 2008) but was severely persuaded to neglect the relevant evidence of

consequence pertaining to Schemer’s report. Beasley v. United States, supra states that “defense must

seek all possible defenses.” I never intentionally waived my right to present Schemer’s report. The fact

is that I never even knew it was a right I had that would become abandoned or forfeited due to my

failure and lack of guidance from counsel to assert said right. People v. Carter, 462 Mich. 206 A

waiver and a forfeiture is definitely different and to accuse me of waiving my right in regards to

Schemer’s report is unreasonable application of law, Williams v. Tavlor, 529 U.S. 362, 407 120 S. Ct.

1495, 146 L. Ed. 2d 389 (2000). Scheiner’s ignored report should be seen as new evidence since it was

not allowed as part of the COMPLETE defense I tried to bring. My trial lawyer would not comply with

my desire to push for the allowance of Scheiner’s report. All of Winters’ trial strategy was poorly

constructed and made a just result not likely. The “new” evidence of Scheiner’s report corroborates My

testimony from arrest until now, and discredits the prosecution’s theory. Prosecution had no proof of

intent or motive, NONE, to show that I killed my children. Intent and motive were imagined by Judge

Vera Massey Jones as the Trial Transcripts show. (Judge Vera Massey Jones’ key point in why she

convicted Me was that she didn’t believe in the so-called “perfect storm” said to have occurred for these

deaths to have been accidental. (TT-pg. 60, L-4, 6) Better yet she theorized to a scenario that she felt

fit why the Defendant would have chosen to kill his children instead of allowing for afull defense. [TTpg. 59, L-3-25]) However, as Scheiner’s report makes clear; when a person has NO control of thenfaculties, or the ability to be conscious, canceling the ability to be conscious of premeditation, then they •

cannot be responsible for premeditation to make a willful and deliberate decision; yet the

unconstitutional MCL 768.37 law didn’t allow this relevant aspect of this horror story to come to light.

Argument

The 6th Circuit Court, in their response to my Petition for COA, actually conceded that Schemer’s

report makes [abundantly] clear that I lacked the Specific Intent to harm my children, [pg.5 6th Circuit

Response in Appendix A- Opinion of U.S. District Court of Appeals reported in 22-1586, Steven

Nicholson v. Noah Nasv Fed. R. Add., 0.22(b), (2023)} The 6th Circuit surmises that I claimed to have

acted in an intoxicated manner to hurt my children; the Court is way off base with that prognosis. My

claim was and always has been that my action in an intoxicated manner was that I went to SLEEP.

When the Court can concede in such a way yet still deny my right to a defense/new trial due to the MCL

768.37 law constitutionally devoid of due process, then there is a serious flaw with said law and efforts

should be made by the Court of Highest Authority to rectify the differing opinions amongst the Circuit

Courts to provide every American their fullest rights to a complete defense.

REASONS FOR GRANTING THE PETITION

For context purposes only, various facts and issues of my actual case have been set forth in this

Petition. My goal is for Certiorari to be granted in hopes that the majority of people called “offenders”

who are Adults-in-Custody, who may or may not be guilty of the crime they are incarcerated for, will

have their United States Constitutional right to Due Process reinstated in order to present a complete

defense according to the 14th Amendment provision set forth when our country was established and

supposed to be a free, equitable and democratic nation. If by proxy, my case is shown favor through any

retroactive adaptations of rule of law, well then, God bless it. I do desire a fair chance at life though.

Legislature created an unbalanced scheme, denying many offenders their 14th Amendment, Due

Process right to a defense in the 2001 P. V. Carpenter, 464 case; this legislature clearly contrasts with

the introduction of Diminished Capacity / Voluntary Intoxication evidence and the constitutional right to

a defense. A defendant claiming Diminished Capacity does not admit guilt of the crime charged OR

assert he is legally insane. (I am not insane, nor was I insane at the time) Rather, they deny the

prosecution’s ‘ prima facie* case by challenging its claim that he possessed the requisite mens rea at the

time of the crime. Hence, insanity evidence to prove the affirmative defense of legal insanity is distinct

from the Diminished Capacity evidence to disprove the requisite mens rea of a specific intent crime.

Yet for somewhat substantive reasons (offenders abused the overly lax law based on earlier M’Naughten

rules), Michigan has decided to go too far in the opposite direction of the old law regarding Diminished

Capacity and Voluntary Intoxication, thus stepping all over the rights of every American based on their

14th Amendment. Due Process right to a COMPLETE defense. Ex Michigan Supreme Court Justices,

J. Kelly AND J. Cavanaugh and Ex MI Court of Appeals Judge Amy Ronayne Krause all agree with the

point I am making here. (See J. Kelly’s dissent in 2001 P. V Carpenter, 464 in which J. Cavanaugh

agrees with said dissent) (See Judge Krause’ opinion in People v. Flynn, 2020 MI App. Lexis 547J

where she URGED the Michigan Supreme Court to revisit the Carpenter ruling; she stated that she

would)

The 2001 Legislature has rendered Inadmissible Evidence Relevant to negate mens rea (for proving

their case); in turn, this shuts the door for a defendant to fairly, if at all, defend all of the facts. (See

“48” in P. V. Carpenter)

Before 2001, Voluntary Intoxication WAS a defense to Specific Intent crimes. The statute was abused

by some but was fair. The statute made sense when applied correctly. The statute also needed to be

tougher so it wasn’t abused. But the changes made to the Diminished Capacity law (including G.B.M.I.guilty but mentally ill) in 2001 P.V. Carpenter, 464 went too far.

Voluntary Intoxication by-

defmition/proxy is clearly in the same realm with Diminished Capacity and all its extensions. {P.V.

Dombrowski. 2022. MI Add. LEXIS 6988 fvt. 21) (P.V Anthony 1327 MI. App 24 [regarding (a)A4

superseding1)

x Also, the author of ‘82 Michigan Bar Journal, 17 (Feb. 2003),’ “Criminal Law: The Untimely Death

of Michigan’s Diminished Capacity Defense,” by, Kimberley Reed Thompson, establishes, among a

plethora of eye opening claims, that the change to Michigan’s law is: “erroneous statutory

interpretation,” (on the part of the legislature).

“Limitation to present a defense, may, under some circumstances violate due process.” {Rock v. Ark,

483 U.S. 44. 55: 107 S. Ct. 2704: 97 L. Ed. 2d 37 [19871) Change in the Diminished Capacity law in

p y Carpenter also diminished the constitutional requirement of Prosecutorial Proof of guilt beyond a

reasonable doubt on each element of the charged offense, thus making the Prosecution’s conviction of

Me incomplete and a violation of my U.S. constitutional due process rights as an American.

“Rules excluding evidence contravene the Due Process right to present a defense when they inffingea

weighty interest of an accused or significantly undermine a fundamental element of defense.” (U.S. v.

Sheffer)

(Lucio v. Lumpkin. 987 F. 3d 451)- Relitigated under 28 U.S.C.S. §2254(dHFederal due process right

to present testimony from an EXPERT (Scheiner in MY case); without this allowance she was deprived

her constitutional right to present a COMPLETE defense, just like in Mr. Nicholson’s case.] This

Voluntary Intoxication / Diminished Capacity issue must be uniform and justified nationwide.

An essential component of procedural fairness is an opportunity to be heard.

That opportunity

becomes an empty one when the state is permitted to exclude competent, reliable evidence directly

affecting the ascertainment of guilt (Voluntary Intoxication is a “mental abnormality,” especially when I

did not expect it to happen, even reasonably).

Quoted from U.S. Supreme Ct. Justice’s dissent from the opinion given in Kohler V. Kansas, 140 S.

Ct.\ “The Due Process Clause protects those “principles of Justice” so rooted in the traditions and

conscience of our people as to be ranked as fundamental...” (Leland, 343 U.S., at 798, 72 S. Ct. 1002,

96 L. Ed 1302)

A quote from: (Montana V. Egelhoff 518 U.S- 37, 43, 116 S.Ct. 2013, 135 L. Ed. 2d 361, 1996): The

‘Primary Guide’ to determine whether a principle of justice ranks as fundamental is a ‘historical

practice.’” Furthermore, in Montana V Egelhoff, the Justices of the U.S. Supreme Court could not agree

on an opinion in totality Justices O’Connor, Stevens, Souter and Breyer, JJ dissented, claiming that the

Montana statute on Voluntary Intoxication, in which the spirit of the law is the same as Michigan’s

statute on the same issue, PIT) violate the 14*h Amendment. How can Michigan s stance not also be a

violation?? With all due respect, the opinions for and against Voluntary Intoxication in Montana V

Egelhoff seem to be a broad and impotent attempt to satisfy the public with any answer, essentially

swe eping this issue under the rug instead of doing the hard work of figuring out an answer that will fully

and nationally satisfy such a momentous issue particularly when a basic defense IS that rooted in the

traditions and conscience of the people as to ranked as fundamental and a constitutional right.

With the way Constitutional laws §840 & §854 read, I propose these two laws are an example of how,

m so many ways, Rule of Law has died in this country if denial of a defense with merit for any

American is allowed to continue to be denied.

Judges for Third Judicial Circuit Court of Wayne. 383. Mich. 10 - “Every court has inherent powersto

do all things that are reasonably necessary for the administration of justice within the scope of its

jurisdiction, subject to. or not in conflict with valid existing laws AND constitutional provisions.”

(Provisions. such as the right to present a defense according to Due Process laws in the 14th

Amendment) Furthermore, The Supreme Court of the United States has the power to manage the

fundamental principles of justice that each state either correctly or incorrectly applies to any law ever

created; thus the reason The Supreme Court is The Supreme Court. Please see the necessity to review

the divided mind of the states on this matter.

If Federal Circuit Courts generally agree with the lower state courts for Rule of Law in most instances,

than that would mean there is a difference in opinion nationwide amongst the circuit courts regarding a

defense for an accused pertaining to Diminished Capacity/Voluntary Intoxication.

This ongoing

problem is one which needs to be reviewed by the U.S. Supreme Court. The following list is of every

state and the correlating statute or controlling case for said state which is used to either allow or disallow

a defense in SOME MANNER, even in the minutest manner, to Voluntary Intoxication / Diminished

Capacity:

Defense for Voluntary Intoxication/ Diminished Capacity Allowed- Yes or NO; Other

Alaska-YES/Statute-§11.70.030(a)/ (9th Circuit)

Alabama-YES/ §13A-3-2(c)/ (11th Circuit)

Arizona-NO/ A.R.S. §I3-502(A) /(9th Circuit)

Arkansas-NO/Arkansas Stat. Ann. §41-207/ (9th Circuit)

California-YES/ Only for forming Specific Intent/ Cal. Penal Code §22(b)/ (9th Circuit)

Colorado-NO/ C.R.S. §18-1-804/ (10th Circuit)

Connecticut-WHEN RELEVANT/ General Statute §52a-7/ (2nd Circuit)

Delaware-NO/l 1 Delaware Code §401(c) & 421/ (3rd Circuit)

Florida-NO/EXCEPT in cases of prescribed meds like in Michigan/FL. St. §775.05 & §893.02/(11th

Circuit)

Georgia-NO/JUST LIKE MICHIGAN; O.G.G.A §16-3-2 & 4/ (11th Circuit)

Hawaii-YES/Only under Subsection 5 of H.R.S. §702-230/ (9th Circuit)

Idaho-NO/BUT under Idaho Code 18 § 116 for Murder, there is wiggle room/ (9th Circuit)

Illinois-YES/§720 I.L.C.S. 5/6-3/ (7th Circuit)

Indiana-YES/Bums Ind. Code Ann. §35-41-3-5(2)/ (7th Circuit)

Iowa-YES/573 Iowa L. Rev. 935 (701.5 of Iowa Code) [Muddy]/ (8th Circuit)

Kansas-YES/K.S.A. §21-5205(b)/ (10th Circuit)

Kentucky-YES/K.R.S. §501.080 (13)/ (6th Circuit)

Louisiana-YES/La. R.S. §14:15(2)-ONLY for Specific Intent/ (5th Circuit)

Maine-YES, but Muddy/17-A.M.R.S. §37/ (1st Circuit)

Maryland-YES, Only for Specific Intent/ MCPJI 5:08(2d, 2016 Supp.)/ (4th Circuit)

Massachusetts-YES/ Commonwealth V. Brennan, 399 Mass. 358/

Michigan-NO, but.../ P.V. Garcia, 398 Mich.250 gives hope, but MCL§768.37 kills hope/ (6th Circuit)

Minnesota-YES/ Minn. Stat. §609.075/ (7th Circuit)

Mississippi-NO/ Smith v. State, 445 So. 2d 227 / (5th Circuit)

Missouri- NO, Only for Involuntary Intox. / R.S. MO. §562.076/ (8th Circuit)

Montana- NO, Only for Involuntary Intox. /MCA §45-2-203/ (9th Circuit)

Nebraska-NOT CLEAR/ R.R.S. Neb §29-122/ (8th Circuit)

Nevada-YES, For Specific Intent/N.R.S.A. §193.220/ (9th Circuit)

New Hampshire-YES/(N.H.) R.S.A. 626:2/ (1st Circuit)

New Jersey-When Relevant/ N.J.S. §2C:2-8/ (3rd Circuit)

New Mexico-YES, for Specific Intent/N.M.R.A. §14-5110/ (10th Circuit)

New York-Yes, for Specific Intent/ N.Y. CLS Penal §15.25/ (2nd Circuit)

North Carolina-Yes, for Specific Intent/ NCPJI §206.307A/ (4th Circuit)

North Dakota-WHEN RELEVANT/N.D. Cent. Code, §12.1.04-02/ (8th Circuit)

Ohio- Yes, for Specific Intent/ ORC Ann. 2901.21(E)/ (6th Circuit)

Oklahoma-Only for Criminal Specific Intent/ 21 Okl. St. §704/ (10th Circuit)

Oregon-YES/ ORS §161.25/ (9th Circuit)

Pennsylvania-YES, to decrease level of murder/18 Pa. C.S. §308/ (3rd Circuit)

Rhode Island- Yes, for Specific Intent, will drop to manslaughter/ S.V. Vanasse, 42 R.I. 278 @ 281,

107 A at 86/ (1st Circuit)

South Carolina- Only for consideration punishment phase/ S.C.Code Ann. § 17-24-10 [22 C.J.S Crim.

Law § §112 & 113 (1989)]/ (4th Circuit)

South Dakota- Yes, for Specific Intent; S.D. codified Voluntary Intoxication-NO/ for S.I.-Schouten,

2005 S.D. 122/ for V.I.-Laws §22-16-6/ (8th Circuit)

Tennessee-YES/ Tenn. Code Ann. §39-11-503/ (6th Circuit)

Texas-YES, for Temp. Insanity/ Texas Penal Code §8.04/ (5th Circuit)

Utah-YES, If mental state needed is negated regarding Specific Intent/ Utah Code Ann. §76-2-306/ (10th

Circuit)

Vermont-YES/ S.V. Congress, 2014- 13 V.S.A. §2301/ (2nd Circuit)

Virginia-YES, for Specific Intent, Premeditation/ Va. Code Ann. §18.2-32/ (4th Circuit)

Washington- Yes, for Specific Intent/ A.R.C.W. §9A.16.090/ (9th Circuit)

West Virginia- Yes, for Specific Intent/ 8 A.L.R.D.3d 1236 §4 (a) (1966)/ (4th Circuit)

Wisconsin-NO, only if Involuntary Intoxication, but also, not clear, SEE: S.V. Guiden, 46 Wis 2d 328

(1970)/ (8th Circuit)

Wyoming- Yes, for Specific Intent/ Wyoming Stat. §6-1-202/ (10th Circuit)

As the list of U.S. States previous shows; 37 of the 50 states in the United States either allow outright

for a defense to offenses involving Voluntary Intoxication / Diminished Capacity, or at least they have

even the slightest, justifiable concession for a defense to Voluntary Intoxication / Diminished Capacity

Cases for any American to present the circumstances involved in any potential case of this magnitude.

How is it that this miscarriage of justice can continue to be ignored?

All of the statutes cited above, for each state, substantiates how this is a miscarriage of justice.

Looking to the precedent in U.S.C.S. 2254(d), I submit that Michigan State Court Law based on People

v. Carpenter are “diametrically different: and “mutually opposed” to Supreme Court decisions which

concur with states who allow defenses for Voluntary Intoxication and Diminished Capacity cases.

Therefore, Michigan courts’ decision in the 2001 People v. Carpenter case regarding rule of law

pertaining to Voluntary Intoxication and Diminished Capacity are “unreasonable application” of the 14^

Amendment Due Process Clause of the United States. Amendments to the Michigan law in this

particular area of law must be made for valid constitutional defenses for Americans in Michigan, and

other lacking states, which have made bad choices and caused tragic accidents to occur; otherwise there

is a double standard particularly when the new standard of Michigan Court Rule is taken into account.

DOUBLE STANDARD

According to the amendment to MCR 6.502 (G) from a November 16th 2022 order issued by

Michigan’s Legislature (effective 1.31.2023), my request in this Writ for Certiorari for The Supreme

Court to make Voluntary Intoxication / Diminished Capacity laws, including Michigan’s, uniform

nationwide is vitally crucial and even more relevant now.

MCR 6.502(G1 (3) (b) substantiates how relevant the expert in my case actually was. Schemer’s

expert report and opinion based on his scientific expertise establishes that I needed a COMPLETE

defense for my constitutional rights to have been upheld. I had nothing close, to that COMPLETE

defense. If Michigan is willing to concede to the change in MCR 6.502, than the Voluntary Intoxication

/ Diminished Capacity law must be amended as well in order for any defendant to utilize prong (b):

FMCR 6.502'(G) (3) (b) - for purposes of sub rule (G) (2), “new evidence” includes new scientific

evidence. This includes, but is not limited to, shifts in science entailing changes in:

(a) a field of scientific knowledge, including shifts in scientific consensus;

(b) a testifying expert’s own scientific knowledge and opinions; or

I reiterate to the premise that there must be a uniform mindset towards how these issues regarding

Voluntary Intoxication and Diminished Capacity are handled among all 50 states in order for

constitutional Due Process to have its way, which you Supreme Court Justices have the authority,

granted by the Almighty God of Abraham, Isaac and Jacob, to find a resolution to.

CONCLUSION

The petition for writ of certiorari, if granted, would be justified.

Respectfully submitted,

Is! Steven Lynn Nicholson

Date:

H.7.M. Z7,

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.